Video (Part 1)
Video (Part 2)
The Chairperson excused the witness, Ms Nelisiwe Thejane, from the meeting as two recusal applications by Public Protector’s legal team were presented to the Committee.
There were 12 grounds for the recusal of the Chairperson and each one it maintained was sufficient for recusal. The grounds for recusal included: undue interference by the Chairperson in the High Court litigation by writing to the High Court to influence the litigation related to this Committee; the Chairperson had agreed that the Public Protector should be mounted with personal costs; his rulings on cross-examination as the Public Protector’s legal team's cross-examination was curtailed and time granted for it was insufficient and was dependent on the evidence leaders; his rulings on re-examination as the legal team was denied the right to ask questions after the Members had asked their questions; his refusal to subpoena the President and Mr Ramaphosa is also the President of the African National Congress of which the Chairperson is a loyal member; the unidirectional hostility and negative remarks directed only at the Public Protector and her team.
The second recusal application was about Committee Member, Mr Kevin Mileham on the ground of inherent bias since Mr Mileham was the spouse of Member of Parliament, Ms Mazzone, who brought an impeachment charge against Adv Mkhwebane.
The Committee noted the seriousness of the application and requested that the Committee be given enough time to apply its mind with the assistance of Parliamentary Legal Services to process this and reach a decision on 23 September.
Chairperson: Welcome to all of you, Hon Members, at M46 here and on the virtual platform. Welcome to the Public Protector and her legal team led by Adv Mpofu here at M46. Welcome to the evidence leaders, Advocates Bawa and Mayosi. Welcome to the media present with us, our support staff and the members of the public. Hopefully you can hear us on your YouTube and 408 platforms. Firstly, to upfront apologise for a late start. Hopefully now that things are underway, we would be able to proceed as expected. Maybe it is we have not met for a week now and I can see the break of that momentum. Having said that, maybe before I make my remarks, just to check if Ms Thejane – are you there on the platform?
Ms Nelisiwe Thejane: Morning, Chair and Members. I am here. Thank you, Chair.
Chairperson: Okay, thank you very much. I'm asking you for your attention. I appreciate that you were with us seven days ago last Tuesday. You are here with us today. Today, we have quite a number of issues on the agenda. The main issue would be the recusal application that I will refer to later. For that I would want to excuse you for the day. We will indicate to you when you are needed. Thank you for coming. You are excused.
Ms Thejane: Thank you very much, Chairperson. I note that and goodbye.
Chairperson's update on proceedings
Chairperson: Thank you. Appreciate it. And therefore, I'm going to before we proceed with the business of the day. I’m going to make a couple of remarks from the chair and put certain issues on record, especially with reference to what transpired after we adjourned the hearing on Tuesday, 13 September. I do this to update Members and the public alike in relation thereto. I'll spend a few minutes to do that. Thereafter, we'll ask the Secretary to place one or two issues that will come from my remarks. After that we're going to invite Adv Mpofu, leading the Public Protector team. Members would have received an application for recusal. We want to invite him – Members having read what you have received – we want him to place… take us through his own salient points. We’ll give him a very reasonable time to do that, between an hour and a half to two hours. Hopefully that will be enough to allow him to place on record the recusal application. But let me quickly make my own remarks. By way of background, what was scheduled on 13 September was the cross-examination of Ms Nelisiwe Thejane, who I've just excused now which would have been followed by Members’ questions and the evidence of Mr van der Merwe the following day. Prior thereto on Monday 12 September, a letter was received at approximately 12 o'clock by the Committee Secretary from the PP legal team requesting a postponement of 13 September. A response was expected from me at one o’clock on the same day. Obviously, it was a deadline I could not meet as I was required to make a fair determination. After considering this request, I responded. Included in that response was a proposal on the way forward. This proposal included the PP legal team cross-examination of Mr van der Merwe be extended but to allow the cross-examination of Ms Thejane to be completed. Adv Mpofu indicated to the evidence leaders that he would not likely be more than an hour in such cross-examination. A copy of the correspondence will be made available by the Secretariat. Shortly after the proceedings commenced on 13 September, and whilst awaiting the arrival of Ms Thejane, who was delayed due to technical difficulties that we all witnessed. Adv Mpofu SC indicated that he was seeking a postponement of the sittings of the Committee for 13 and 14 September, as foreshadowed in the letter of the previous day. The postponement application was sought in the context of a court application that had been brought by the PP in the Western Cape High Court on an urgent basis. This – I saw that, I don't know maybe somebody does not want to see the Chair. I don't want to suspect who that is, but it must be fixed, but it won't stop. I'm sure you can hear – following a ruling of the Western Cape High Court which had found the President's conduct in suspending the Public Protector to be unlawful, and at the same time upholding the legality of the proceedings of this Committee and declining to interdict or stop the work of this Committee. Hence in the absence of any interdict, the Committee is to proceed with its work. In his submissions in support of the hearings postponement, extensive references were made to the papers received for application for leave to appeal to the Constitutional Court, filed by the Democratic Alliance and the Public Protector on enquiry evidence. At this stage no document has yet been filed by the respondents in the Western Cape High Court. However, in addressing the postponement, Adv Mpofu indicated that he had been involved in the drafting of papers until the early hours of that morning to meet a filing deadline of 9:00. As such, he was not able to prepare for the cross-examination of Ms Thejane. Adv Mpofu also raised with the Committee that the Public Protector had taken ill but that he did not have the details or any further information of such illness at that stage. Neither was he submitting an apology for the PP’s nonattendance at the hearing. It was made clear that he had no knowledge as to what ailed the PP. Prior to this announcement, neither I nor the Secretariat had received notice that the PP would not be in attendance as expected. The only available information provided was that the PP had gone to the doctor. After hearing Adv Mpofu’s request and following questions from the evidence leaders and the views expressed by some Members, I ruled that the cross-examination of Ms Thejane will stand over given that Adv Mpofu was not ready to proceed. However, mindful that the proceedings were already behind schedule and in the light of the Committee rules which require that it must conduct its business within a reasonable time, I ruled that Members may proceed to question Ms Thejane. As I was of the view that we had secured the witness already and that time should not be wasted. In considering this I had due regard to the fact that the PP and her legal team, in any event, had no entitlement to intervene in the questions from the Members and that if irrelevant questions were asked they would simply be disregarded. I was also mindful of the fact that this is not a court of law, and the PP is not being prosecuted. Underlying this process is one of fairness and no prejudice would result to the PP from such questions given that the witness would be available at a later stage to answer questions under cross-examination. In the event any issue arises during the PP’s absence and the questions posed to Ms Thejane, the PP legal team would have ample opportunity to be able to take instructions on any aspect raised in the PP’s absence. Weighing this up, I determined that the PP would not be prejudiced in any way. I further instructed the Secretary to ensure that all Members’ questions and Ms Thejane’s answers be sent to the PP team. The Secretary advised that he ensured that the recording was sent directly. It was after commencing with the Members’ questions that Adv Mpofu sought to interject and display what was referred to as a sick certificate, which by that stage he had received. I did not allow this in the middle of Members’ questions, as you would remember. You will have noted that to date, I've taken care to ensure that sessions are not disrupted and that witnesses are, where possible, not made to sit through what is essentially Committee business. This disrupts the flow and is unfair to the witness and to Members. I indicated clearly that the PP’s sick certificate should be sent to the Secretary. I did not deem it appropriate for me to permit the showing of a document that contains personal information of the PP regarding her health in her absence and without the express consent of the PP, which we did not have. I've been at pains to remind the Secretary to ensure that personal information is not displayed where there is no lawful basis. Although the Secretary sent the certificate to me via email at 11:44 during the Committee proceedings, as the hearing was still in progress, I considered it only once the meeting adjourned at 12:44. Having satisfied myself with the content and noting it provided for the PP to be off for the rest of the week, I liaised with the Secretariat instructing that Committee hearings would not be convened during the dates reflected on the medical certificate, to amend the schedule and postpone the hearings. The postponement application was duly considered, and relief was granted with reference to the arguments made. In addition, I had ruled that only the direct evidence of the next witness would be heard, alleviating the need for preparation for cross-examination on the part of the PP legal team prior to the Western Cape High Court hearing brought by the PP. It would therefore be incorrect to suggest or say that I refused to grant a postponement despite the PP being ill. On the contrary, I immediately took a decision to postpone the hearings upon consideration of the certificate. Those are the few comments I wanted to make upfront. I'm now going to quickly ask the Committee Secretary to speak to the matters raised and place those on the record. From there we'll proceed to the PP legal team. Thank you.
Mr Thembinkosi Ngoma: Thank you, Chairperson. Good morning, Hon Members. Good morning, PP, legal team and all those on the platform. Members will remember that the Committee has not had a housekeeping meeting in a while. I thought it best that I put the exchange of correspondence between the Committee and various stakeholders before this Committee. I've prepared this table that I'll be talking to so Members can see correspondence received. On 29 July 2022, we received a letter from the SARS Commissioner, Mr Kieswetter. The letter sought to clarify the contents of one of the letters raised during cross-examination of Mr Johann van Loggerenberg. Members might perhaps wonder why they don't have this correspondence that I'll be tabling to this Committee. The reason is that some correspondence contains confidential information. As soon as that has been blocked out, we'll upload all these letters on the committee storage platform, Uvimba. But there were a few letters that have been shared with Members that did not contain any confidential information. On 1st August, we received another letter from Ms Maotwe of the EFF. It was a submission on follow-up questions to Mr van Loggerenberg. Those questions were submitted to Mr van Loggerenberg for response. We have received that response. On 5 August, Mr Shivambu wrote to the Chairperson raising the conduct of evidence leaders. That matter is also being dealt with and at an appropriate time a response will be provided. On 8 August, we received a letter from Seanego Attorneys requesting the summoning of the President. We responded to the letter and provided a legal opinion on the matter. That matter was talked to here in the Committee, Chair. We provided a legal opinion which was sent to Seanego. On 10 August, we received a letter from Seanego. They were requesting the recall of Mr van Loggerenberg and Mr Pillay. We since wrote to Werksmans Attorneys that represents the two, and we are awaiting the response. I have given them a deadline of 26 September to provide a response. On 15 August, we received a letter from Werksmans Attorneys on the recall of Mr van Loggerenberg where he indicated non-availability to appear for further cross-examination from the Committee. However, he responded to us before we had sent the request. Hence, we've requested them to respond to our letter and as already indicated provided the deadline of 26 September. On 16 August, the Chairperson on behalf of the Committee provided a response to Seanego on the summoning of the President. The request, as discussed in this Committee, was declined with a legal opinion as I've already indicated and a schedule of Committee sittings. On 19 August, Seanego Attorneys responded to the 16 August letter requesting an extension for provision of the witness list to 24 August. That request was granted by the Chairperson. On 24 August, Seanego indeed sent the list of provisional witnesses which was shared with Committee Members. On 25 August, the Chairperson wrote again to Seanego, providing an explanation on the summoning process. This was not related to the President. We had written to Seanego to ask that if they request assistance from the Committee in summoning the witnesses, they should indicate this and also submit the witness statement. Seanego then requested an extension to 8 September 2022. On 5 September, Werksmans Attorneys provided an affidavit where Mr van Loggerenberg responded to the questions raised by Ms Maotwe of the EFF. We had sent via email to Seanego a draft addendum 1 to the Committee directives. However on 6 September, we received a response from Seanego rejecting the addendum, and as such no amendments have been made to the directives yet. On 12 September, we received a letter from Seanego requesting that we adjust the programme and stating reasons. Therefore, on the same day, we responded and the adjustment was then made to the programme. On 12 September we received a letter dated 13 September from Mr Holomisa requesting that we postpone the meeting scheduled for 13 September. As everyone knows, the meeting proceeded which was then indicated that Mr Holomisa's request was declined. On 14 September, we wrote to Seanego granting the postponement which the Chairperson spoke to earlier – that after receiving the medical certificate and considered all that was placed before the Committee, he gave permission to postpone the meeting to the 19th. Again on 14 September, the Secretariat wrote to Seanego because of what had transpired in the meeting we were unclear what some of the matters raised in the meeting were indicating. Therefore, we wrote seeking clarity on attendance of hearings so we could be in a position to draft a revised Committee programme. On 15 September we received a response from Seanego Attorneys confirming hearings attendance and indicating they intend to file a recusal application. It was also requested that we postpone the 19 September hearing to 21 September. We noted the intent to file a recusal application and also granted the requested extension, which is why we are sitting today and not on the 19th. On 19 September, we received a letter indicating that an application will be launched for the recusal of the Chairperson and Mr Mileham. On 20 September, Seanego submitted the recusal application and that was shared with the Members. Chairperson. Apart from that, there is communication is between the Committee and various stakeholders, not necessarily only Seanego. I have been writing to a number of persons where I requested information from them as arising during the Committee sittings or when evidence was presented to the Committee. Letters have gone out with annexures of what was presented during the hearings to Ms Kim Heller and Mr Seepe. A letter was also sent to Ms Baloyi as Seanego had requested that she appear again before the Committee. We expect a response before the 26th. As I earlier said, we are expecting responses by Mr Pillay and Mr van Loggerenberg to avail themselves from Werksmans Attorneys on or before the 26th. We sent a letter that contains annexures to Mr Hlatshwayo where we request information to assist the Committee in its work. The same letter went out to Mr Paul Ngobeni also requesting same. The last one was the letter that we sent out to Seanego. Chairperson, I table this correspondence to the Committee. As I have indicated once we have done blocking out confidential and personal information, we will put up these letters on the Committee page on Uvimba. Chairperson, thank you very much.
Chairperson: Thank you very much, Mr Ngoma, for that. I will proceed, colleagues, to the next point. I'm going to invite Adv Mpofu and allow him his allocated time to take us through the recusal application. I'm going to encourage Members that having received and read this, I would encourage that you allow uninterrupted presentation. There will be clarities at the end. Thank you very much. Adv Mpofu, over to you.
Adv Dali Mpofu: Thank you, Hon Chair. Good morning, Hon Members and everybody, our colleagues and members of the public. Chair, before you start to run the clock. Let me also do my own housekeeping. Chair, I want to make the following proposal because on some of the issues that you have placed on the record. I would have wanted to respond to them now. But if you allow me, the deal is this. If you allow me, rather allow me a few more minutes if I need them so that I incorporate that response in my recusal application, rather than… Yes, that it gets into its place, as it were, in what I had planned. Thank you, Chair. I'll remind you if I need those minutes at the end. The other thing, Chair, just by way of housekeeping is pertaining to the presentation by Mr Ngoma. I have reliably learned that there was some correspondence that he did not refer to which might be more relevant to the proceedings of today. Namely, that some Members of this Committee who are not able to be here, had indicated that they will not be here and they are engaged outside of the country, on the basis that there were not going to be sittings this week. I don't know anything about it. I'm just saying that. Chair, I'm sure you can respond. It's your Committee, not mine. But I'm just placing this on the record, that it might not be appropriate if certain political parties are excluded from this important meeting. My understanding is that the political parties that are represented not by many members, but by one member, would then ipso facto be excluded if that single representative is not here. The persons who are overseas and unable to come, Mr Brett Herron from the GOOD party, who I understand had written to the Committee to ensure the meeting does not take place today; another party that's represented by one person is General Holomisa is not here; the FF+, Dr Mulder, is also not here to represent his party; and the Member from the Economic Freedom Fighters, Ms Omphile Maotwe. All of them represent parties that are only here by a single representative. I'm just putting it out there, Chair, for the record. I'm sure you might have dealt with it administratively elsewhere, but I just wanted it to be recorded that it would be preferable if every party at least participates in this proceedings today. Chair, I don't know if you may want to deal with it now or at a later stage or not.
Chairperson: No, please proceed. I'll deal with it later.
Adv Mpofu: Right. Well, then on that basis, then I will proceed on the assumption then that the meeting is still properly constituted, even subject to what I've just said. Now I can start with the clock. Thank you. Chairperson, I'm going to try and tighten this. As you've already indicated, according to the directive that you gave us on Monday 18 September, we had to submit the application on 20 September. I'm assuming, as you have indicated, that the purpose for that was for the Members to familiarise themselves so that so that we can then tighten the proceedings, rather than going through word for word what is there. If I leave out anything in the document, please, it's not because it is being abandoned. It will be because either we have run out of time or we have prioritised it in a particular way. Yeah, now let me start right at the first page of the document we have submitted. Okay. I think I'm being recorded to some other headquarters. We've submitted, Chair, as you've indicated a 24-page document which constitutes the application. Committee directive 10(2) says any person wishing to make an application to the Committee, which is not otherwise provided for in this procedure, or in the Assembly Rules must do so in writing to the Chairperson. In compliance with that directive, we submitted the 24-page document and I'll be speaking to that document. You also on Monday directed us to then file the notice, because at that stage we did not have firm instructions. By Monday, which we did and also the application by yesterday, and we apologise. There was an hour’s delay in the submission yesterday. Chairperson, you will have noted that both in the notice and in the document we sent you yesterday, we indicated that there are in fact two applications. But for the sake of word economy or efficiency, we have combined them into one so that we don't have to bring two piecemeal applications and because they relate to the same process anyway. Those two applications are in the first instance, and what we might call the main application is the application for the recusal of yourself, Chairperson, as the chairperson. The second application is the recusal of Hon Kevin Mileham, who is a Member of this Committee. As I say, there are two separate self-standing applications. We have proposed and there's been no objection that they be moved together. What I will then do, Chair, just in terms of structure, I'll make some broad remarks about the application situating the applications in the legal context in which they take place. Then I will deal with the two applications in turn, starting with the recusal application of the Chair and then more briefly, because there are fewer grounds relied on, the application of the recusal of Mr Mileham. Thereafter, I will address the meeting on some of the principles, legal principles, that are applicable to an application of this kind. The other thing is that I would… I'll try to save time because I will request you at the end to give me a few minutes to reply to whatever might have been put by the evidence leaders. But I'm saying a few minutes, Chair, because some of that response would have been covered anyway when the Members ask questions. I don't want to waste time and cover things that would have been covered by the Members when they ask me for clarity, or whatever, at the end. Thank you, Chair. So then, if I can then proceed, Chair. The starting point is this. This Committee is bound by various legal instruments that govern it. At the most basic level, it would be directives. The directives, after all, are directed at this particular Committee. There may be another impeachment committee, it will have its own directives and so on. The directives are custom made for this particular committee. That's really the starting point. Then, of course, the directives and the Committee are products of the rules of Parliament. So that's the second important instrument which will then bind the work of this Committee; the rules, particularly rule 129. The next thing then, Chair, is the empowering legislation which establishes Parliament itself in terms of which the NA Rules themselves are subject. That cluster of legislation includes the Powers and Privileges Act and more, most importantly, it's the Constitution of the Republic. All those instruments and sub instruments and what have you are nothing if they don't conform to the Constitution, because they would then be invalid as a matter of law. If you like, that's the regulatory framework in which this application must be viewed, with those instruments in mind. Now if you zoom into the rules of this Committee, the most important rule for the purposes of this application is Rule 129 AD (2). For that reason you will find in paragraph one of our document, Rule 129 AD (2) simply says the following, and I've quoted it here before, so I won’t explain much: The Committee must ensure that the enquiry is conducted in a reasonable and procedurally fair manner, within a reasonable timeframe. Now that instrument, really should be the Bible for the Committee. It covers three things, reasonableness, a reasonable timeframe, that's the practical side of it, but most importantly, procedural fairness, which is really what today's discussion is mostly about. Then, Chair, before I get into that I want to say this, I think it's very important also to situate our discussion. I will refer you later to case law that says that a recusal application is not something that should be done lightly. You know like every time you're unhappy, you do a recusal application. That is something that must be done as a matter of last resort. We will demonstrate that we have really done that, more than the call of duty. We have made several warnings here that, you know things were going in a particular direction. We have issued and sounded warnings. You will remember on 26 August, with your permission, Chair, I addressed the Committee for half an hour when we were concerned about certain conduct on your part. I can’t remember the words I used verbatim now. I know that the media said I had asked for your recusal, but I had not. I had specifically said that if these things are not addressed we would consider an application for your recusal or removal. That was again an effort to try and get things back on track because we were under some impression that that could still be done. Again, on 13 September, I did say that things might escalate to this. You might not have liked the language I used when I said the day will come. But that day has come now. All that was really in an effort to try and avoid this situation. We know there was a hullabaloo and big outrage about those warnings. But they were sincerely meant to say, let us try and avoid this moment of having to ask for recusal. It was in the spirit, Chair, as I say, of our understanding that the recusal application is not something you just jump into every time you disagree with something. You must do your utmost to avoid it. Otherwise, proceedings can just be unnecessarily interrupted. So even when there was serious provocation, we indeed tried to avoid it. I have to say this, Chairperson, for the record, that actually, you know when you were shutting us down and all the things I'm going to talk about now you were doing what is literally called shooting the messenger. As far as our client is concerned, the Public Protector, the moment at which this application should have been brought happened a long, long time ago. She was uncomfortable with some of the things that happened in this Committee as far back as July. It was the legal team led by me that persistently insisted and persuaded her that we had not reached a point of no return on several occasions including on that occasion on 26 August. The reason I used that careful language was because I had to mention the intention to recuse, but also expressed the view that it was not something that was happening there and then, as it was wrongly later reported in the media. I think it's important to place that on record. It was only when things reached the stage where we could no longer persuade the client that her impression about the inherent bias in this process was wrong. In a way she won that battle because we kept on saying, no, we have not reached that point. Until we learned the hard way last week that maybe that point had not only been reached, but it had actually been exceeded. Now that ground, Chairperson. Let me then get into the meat of the application. We have referred you already to Rule 129 AD (2) which prescribes that the Committee must operate according to, among other things, the standard of fairness. There's also an issue of reasonableness and transparency, which are raised in that rule. The basis of this application is that the Chairperson has breached all those three standards. The main basis, as I've indicated, is that the compulsory standard of fairness, which is not negotiable and is not something we asked for, as we said earlier, as a favour. It is something that we're legally and constitutionally entitled to. A fair process. That is why in the past two years, we have gone up and down the courts and succeeded to affirm or win the right to fairness, including the right to legal representation. The Constitutional Court has confirmed that we're entitled, legally entitled, to that right. Now fairness is, as I say, it's difficult to define. But it's easy. Everyone knows when unfairness is being visited upon them or when an injustice is visited upon them. But it is a matter that the legal scholars have defined in the way that I'm going to get into now. Procedural fairness, in particular, is founded in two common law principles, Hon Chairperson, which are known as the rules of natural justice. Those two rules are, and I think I've said this before, I've got an aversion to using Latin, but sometimes it's not avoidable. The first one is commonly known as audi alteram partem. That's known by people, even non lawyers. It simply means that the other side must be heard. That's a fundamental rule of fairness. If you don't observe that rule, you can't say a process is fair. The second rule is called nemo iudex in rem sua. It just means nobody can be a judge in their own case, and it's the rule against prejudgement or predetermined outcomes. Those kinds of things that we've spoken about before. It's commonly known as the rule against bias. That's the one that we want to emphasise today with the proviso that the two rules of natural justice are not separated by a Chinese wall, so to speak, they overlap.
Chairperson: Okay, apologies for that. Please mute yourself Hon Msimang. Proceed, Adv Mpofu.
Adv Mpofu: Thank you, Chair. I was saying, the two rules overlap. Ironically, the overlap between the two rules was established by the Constitutional Court in a case that involved the Public Protector, which is part of the cases, one of the cases that feature in this Committee. That's the case that deals with CIEX, Chair. In that case, you might remember that the majority judgement of Khampepe established the view that sometimes, not sometimes, particularly in that case, you'll remember there was this whole thing about whether the Reserve Bank had been given audience when the Public Protector had meetings with the Agency or the Presidency. The court there found that a denial of the right to hearing may lead to an inference of bias. So the court found that in that case, the Public Protector had been biased purely because she had not given somebody a hearing. That was the most classical overlap of the two rules. In other words they were saying by denying audi, you may be inferred to be biased. As a result of that, that court then issued a personal cost order against the Public Protector. Then we will also rely, thirdly, on another format of fairness called the doctrine of legitimate expectations. Fortunately, that one is not expressed in Latin. But again, to just simplify that doctrine, it simply means that there are certain situations where a person is entitled, legitimately to expect fairness arising from various instruments, either arising from practice. For example, if let's say Chairperson, whenever we come here there's a lunch break, and so on. Then one day you just decide, no, we're just going to ahead; there'll be no lunch break. Then we're legitimately entitled to expect that there will be a lunch break. I'm just simplifying it so that it's not as complicated. But again, it's something that all human beings, you don't have to be a lawyer, you will know that if your parents always allow you to come home at six, and then one day will say, no, you must come home at four, you might well say, 'you created the expectation that I'm allowed to come at a particular time. But now you're changing the rules midstream', so to speak. It's unfair, in the literal sense of the word. So those are the three bases then, Chair. It's an audi, it’s nemo iudex and legitimate expectations. Those are the three grounds on which both applications against Hon Dyantyi and Hon Mileham are based. If we can then come to the Chairperson’s application more specifically. This one, I'm going to try to manage it because of the time factor, Chair. We have set out in the document 12 grounds for the recusal of the Chairperson. Each of those grounds, I have to say upfront, is sufficient to base the recusal application. There must never be a notion that says that if we show six of the grounds or if you agree with six or three or two or even one, then it means that because there is that kind of logic, which has been applied even in this Committee, that it's about numbers. If you have ten grounds and then you get two or three, then it means… no, it’s not like football. So even one of those grounds is sufficient in its own right. In fact, Chairperson, honest, we could have put 25 grounds, but we just had to cut it at some point and take the most important grounds. From a time management point of view, I'll cut it even further down by doing what I propose to do now. Maybe before I even do that, if I can just point out some typos. Unfortunately, these documents were done under tremendous pressure. We noticed some of the typos. One of them is relevant to what I'm dealing with now in paragraph 20 where we say: we raise the primary grounds 'dismissed' in sections B1 to 'B2'. It should be 'discussed' and 'B12'. Thank you, Chair. Let me just do the others now. Paragraph 29, it says 'section B3 above'. It should be 'below in paragraph 30'. Certain 'scatting' remarks. Okay, this is attributed to my PA. It should be 'scathing'. Then of course paragraph 31. It's not Hon Heron but Hon Herron. Then paragraph 33, it says 'unnumerable'. There's no such thing, it should be innumerable. Paragraph 80 it should be 'suspension' not 'subpoena'. Thank you, if I pick up anything else, I'll indicate. So back to paragraph 20, which is where we are now. I'm now going to try and arrange the discussion of the 12 grounds. As I say, I want to emphasise that these 12 grounds, which we have nicknamed The Dirty Dozen, these 12 grounds, each… only one of them is sufficient.
Chairperson: You have nicknamed it?
Adv Mpofu: The Dirty Dozen. There was a movie before your time, Chair, which is called the Dirty Dozen.
Chairperson: I’m glad I’ve never watched that movie. Go ahead.
Adv Mpofu: It's a good movie, Chair, but it was made in the 70s or even before. That's just to indicate that it's a dozen reasons that we rely on. Now what I'm going to do, to try, because we don't have time now to go cover a dozen reasons, one by one. I'm going to do it like this. If you go to B1 Scope of the enquiry; B4 Undue comments and interference in the High Court litigation; B6 Rulings related to cross-examination and re-examination. B7 Rulings related to the concept of relevance. I will start with those, Chair, very briefly. The reason for that is because these are matters that we have already canvassed in the Committee at different points. I'm not going to belabour them. I'm obviously raising them now in a different context of recusal application. But these are matters that are known to all the Members. So I don't have to waste time on them, I'll just literally get them out of the way so to speak. So B1 is the scope of the enquiry. That is the issue that we started with on day one on 11 July regarding the inherent unfairness in expecting the Public Protector to deal with those matters that have effectively been ruled by the Independent Panel not to constitute prima facie evidence of any wrongdoing. We do this, Chair, mindful of the very first thing that we all had consensus on day one, that this is a pioneering process. Something that has not been done before. You know we're all trying as much as we can to find the pattern and hopefully to set pace for the country. But our view, Chair, is that it simply doesn't make sense to have a whole hullabaloo about an independent panel, which must sift the evidence and explain whether there's prima facie evidence and then just revert back to investigating things – even things that they have specifically said there's no prima facie evidence on. It just doesn't make any logical sense. From a practical point of view, from a time management point of view, from a financial point of view, from a legal point of view, it just doesn't make sense. The insistence on that has led to all sorts of witnesses being called and led on totally irrelevancies and wasting the time of both the Committee and the Public Protector. But it has also led to inherent unfairness because certain evidence that gets led is prejudicial completely. I'll refer later, for example, to the flighting of statements and letterheads of our attorneys, which is just gratuitous and doesn't serve any purpose. It cannot inherently serve any purpose if it's something that's outside of the independent panel’s ambit. The only thing we achieve by doing something like that is just to waste people without any gain whatsoever because the gain is zero; because it's irrelevant. It's got nothing to do with the ambit. If I may say so, already that has been experienced, sadly so. Last week, there's a fraud that was committed in respect of a payment that was being made to Mr Seanego’s firm by the Public Protector’s Office where that was diverted by some fraudsters into some account. They had put a fake letter and his letterhead directed it to the Public Protector's Office and they paid money into the criminal’s account. It's now being investigated. We're convinced that that fake letterhead was generated as a result of the gratuitous display of Mr Seanego’s details here. As I say, if that had to be done it had to be done – assume there was some value that we could gain. But when there is no value the only real reason or rather outcome or value that we can get from it is just criminality. It boggles the mind why that would be allowed. I then move to the… we then say that reasonable operation of bias is generated by that because, apart from the criminality, the only other basis to do this is just sensationalism and media hype and all sorts of noise to try to paint the Public Protector in a particular light, in respect of things that are not before this Committee, quite frankly. If anyone wants to go and insult the Public Protector or call her names, you can go and do it out there, but she didn't use this Committee as a conduit for such. Or, you know totally valueless so-called evidence. Then we jump, Chair, to B5 Undue interference by the Chair in High Court litigation. The reason I will not address that is because as I say on 26 August you kindly gave us half an hour to deal with that. We dealt with it. We addressed the Committee, again, just to emphasise that we're including it now in the context of recusal application, but it's still the same thing. We're not going to repeat what we already said to the Committee. That really had something to do with the irony of the Chairperson, sitting here as supposedly neutral Chairperson, while outside, in our humble view at least, writing to the High Court to try and influence litigation which is related to this Committee. Also celebrating, well maybe I'm exaggerating, but at least agreeing that the Public Protector should have been mounted with personal cost when that was such an unfair outcome anyway because she was not given an opportunity, Chair. All she was asking was how did information leak from the Constitutional Court. For that audacity she was mounted with personal costs. That's… we can't do anything about that but we can do something about the Chairperson endorsing such an injustice. Then there's B6 Rulings related to cross-examination and re-examination. Again we've raised that before; a ruling has been made. We're raising it now. But in a nutshell, what that means is there are various rulings, as you know which were made here relating to cross-examination. Firstly, our cross-examination gets curtailed. Secondly, the time granted for the cross-examination is insufficient and is actually dependent on the evidence leaders. If the evidence leaders want two hours for a witness then we also get two hours. If they want three hours, we also get three hours. So that's inherently unfair. I've indicated here that cross-examination by definition is longer than leading a witness. But if we can’t even get, you know in fact, in one instance, I think it was Ms Mayosi said, 'I need three hours'. Then if she needs three hours, then it means we'll also get three hours. Not what we need, it's what they need. So that's the one thing. Then, of course, we have been denied the right to ask questions after the Members have asked their questions, which is also inherently unfair. Because questions that arise from the Members or from the Chair for that matter, in any forum that I've ever been to, are then subjected to questions by the parties. When I say parties I don't mean in the formal sense. But we should if the Chair raises certain questions from a witness, for example, what should happen is then to say, arising from my questions is there anything that evidence leaders want to say? Then they put their questions. Then is there anything the Public Protector wants to say? We've asked for that right, it was denied and that is inherently unfair. The last issue with cross-examination has to do with what I can only describe as shocking conduct – what happened in the case of Mr Muntu Sithole who was blatantly cross examined. It didn't matter how many times we pointed out that a party that has called a witness cannot cross-examine that witness. Secondly, in any event, the evidence leaders are not entitled to cross-examination at all, according to the rules of this Committee, of anybody. But I think it took the witness who was fortunately also legal, it's safe to say, maybe for other people to understand that that's what was happening to him. He was being cross-examined. That was what we call an egregious violation of the directives by the Chair in allowing that despite our protestations. We say at paragraph 48 the Chairperson's ruling to the effect that the questioning did not amount to cross-examination cannot withstand an objective scrutiny. It was also correctly refuted by the witness himself, who's a qualified attorney and whose evidence was credible, balanced and exemplary in general. B7 Issues of relevance – this one, really, it's just, it's exhausting to even talk about it. I won't be long on it for that reason alone. There is clause 6.1 and 8 of the directives, which is very clear and we’ve read it out to you, Chairperson. 6.1 simply says that all questions put to witnesses must be relevant. Can we maybe put 6.1 of the directives up? It's an annexure to the application. It says all questions put to witnesses must be relevant to the assessment of the motion. Even if you forget about whether it's the narrow or the broad one, even if you take the broad one, it must be relevant to the assessment of the motion. Disputes regarding relevance shall be determined in accordance with 8. Then 8 tells us what needs to be done. Only questions, evidence and submissions relevant to the issue of incompetence or misconduct as alleged in the motion shall be asked, led or made during oral hearings. It can’t be clearer than that. In other words, all this stuff we've listened to about labour and human resource grievances and whether 15 witnesses were called to tell us about their own views about how deadlines should be met or not met and what have you, all of that. Some of the witnesses were only called, like this one who’s on the stand now to deal with those things without any visible, except for contrived, references to the motion.
Chairperson: Maybe pause, Adv Mpofu. I see the hand of Hon Marawu. You have your hand up?
Ms T Marawu (ATM): No, no. Sorry, Chairperson, it was placed by mistake. Sorry.
Chairperson: All right. Thank you. Proceed, Adv Mpofu.
Adv Mpofu: Okay. Anyway, I wanted to move from that. So the idea, Chair, of allowing, as I say, some evidence which may even be prejudicial, which is prejudicial to the rights and interests of persons on the basis that as you put it, Chair, when we raise these issues at the end of the hearing then the Members will have to work out if they can even remember that, oh, witness number 12 said something which may have been irrelevant, and therefore it will be excluded. By which time that thing would have been floating in the public space for two or three months. Then it might be ruled out sometime in November, December or January, or whenever we finish - when it has been bandied about in the public space for months and months. It should be clear to anybody that that is the rule, that rule was meant exactly to prevent that basically. It's floating in this Committee. It can only be a product of inherent bias, because anyone should understand that the standard of relevance is meant to keep everyone in check. Otherwise, we can all come here and tell our life stories on the basis that later they will be excluded. That can’t be what this enquiry is all about. So those are the four grounds, Chair, that I wanted to start with so that we get them out of the way. Now let's get to the main grounds for recusal. Forgive me I'm going to sound like a broken record, but I have to repeat this. That even on the grounds that we've dealt with, which emanate from previous discussions, the reason I'm dealing with them quickly is because they've been dealt with before, not because they are lesser grounds, and they themselves are sufficient in my respectful submission to form the basis of the recusal. The grounds that I do want to address in slightly more detail then, Chair, start at B2 Unlawful and unilateral amendment of directives and misapplication thereof. Again, Chair, you'll be happy that part of this has been addressed before and so I won't dwell on it much except to say this. On the raw facts, this is what happened. We arrived here on the 11 July. The directives were in the making. We were at that stage actually in consultation with the evidence leaders, because we had hoped that we could have the directives adopted by consensus. It became clear that consensus was not going to be achieved, because the issues that were raised here on the 11th were not listened to basically. As you are entitled to, Chair, you intervened by effectively imposing the directives on us because they could not be put in by agreement. We explained at that stage that, you know because we wanted the process to get on, that despite our objections we would operate in terms of those directives. That was on 14 July 2022 when you signed them. Then certain things happened particularly around witnesses that did not finish their evidence: Mr Pillay, Mr van Loggerenberg and I think Ms Baloyi. We indicated that we would need them to be recalled and there was an understanding that is what would happen. I don't want to elevate it into anything higher than an understanding. Out of the blue, on 26 August, we were told that there's a new directive or so-called amendment or addendum. I think it's the first annexure to the application. Right in the middle of the process on 26 August 2022, we were told that there's something called Addendum 1 to the amended directives, whatever that means. It is directions on the recalling of witnesses and amendment to directive 5.9 is issued by the Chairperson, and so on and so on. The long and short of that directive was now to impose a whole long thing about curtailing the recall of witnesses: 6.1(A), 6.2(A)(i) to (iv), 6.3, 6.4 (A) and (B). Now there are two objections about this, Chairperson, which point to both a breach of the rule of fairness and the rule against bias. In relation to the rule of fairness, you can't impose new rules. You can't have a process and then somewhere in the middle of it, you impose rules or change the rules as you go along. You know that's just wrong. But more importantly, if you do that in those exceptional circumstances where you might be allowed to do that to cater for an unforeseen situation or whatever, then that rule cannot be made to operate retrospectively, that's just… Again, these things, fortunately, anyone with a sense of fairness, as I say, will just understand. In other words, you can't just say okay, let's assume the rule was put out on 26 August – but why should it apply to Mr van Loggerenberg and Mr Pillay who have already testified? It might be allowed to apply to witnesses going forward. As I say even that might be wrong but for different reasons. Also you can't do… you can't legislate for a particular person, so to speak. Had we not… had Adv Mkhwebane not asked for the recall of Mr van Loggerenberg and Mr Pillay and Ms Baloyi, that addendum would not have been there. You wouldn’t have just woken up on 26 August and decide to have an addendum. That addendum was there specifically to respond to her request for the recall of those particular witnesses. It's what is known in the South African context as the Sobukwe clause, where the apartheid government passed a law particularly for a particular person. Something like that is inherently unjust and unfair. When you pass directives, they must be for general situations which will apply forever and to any person – not a law that is specified for a so-called Mkhwebane clause, as it were – one that is directed at a particular request for a particular witness. Again that's something… at least any student of South African history would know that it is inherently unfair to have a Sobukwe clause type of legislation. It's an exhibition of bias. Very few people in the country would deny that the Sobukwe clause was inherently unfair. We don’t even have to justify that. So that's what's wrong with the so-called addendum or amendment or whatever it's called. Then we go to B3. This is again a matter that we have dealt with before. The refusal by the Chairperson to subpoena Mr Cyril Ramaphosa. We have said that… I'll just read it out so that we don’t waste time. "In August 2022 the Chairperson refused the request of the Public Protector to be assisted in securing the relevant evidence of Mr Cyril Ramaphosa who had made certain scathing remarks against the Public Protector which form part of the impeachment motion, with particular reference to the so-called CR17/Bosasa litigation in paragraph 11 of the Charge Sheet or Motion…. In the process the Chairperson unfairly and unreasonably rejected the proposal made by Hon Herron to seek further information from the Public Protector regarding the relevance of Mr Ramaphosa’s evidence". This is information we got from your letter to us. We say, "in so doing the Chairperson acted unreasonably, unfairly and in a manner which exhibited manifest bias against the Public Protector and in favour of Mr Ramaphosa who is also the President of the African National Congress of which the Chairperson is a loyal member". That part we’re just guessing. What's important about this, Chairperson, before I expand is the following. That ruling is actually in conflict with your ruling on the scope. Let me explain. According to the scope ruling, you said you're bound by the motion of Ms Mazzone, as it is, line, hook and sinker, or whatever the correct expression is. You can't do anything to it. Now the motion of Ms Mazzone contains the references to the CR17/ Bosasa matter, and those matters are specifically taken from remarks made by or on behalf of Mr Ramaphosa in court papers. Mr Ramaphosa and Mr van Loggerenberg or Pillay in that situation are in exactly the same position because the only reason why Mr Pillay and Mr van Loggerenberg were called here is because they also made certain remarks under oath against the Public Protector, which were why they were brought here. It's impossible. I mean, it's just completely illogical. You cannot say in the same breath that Mr van Loggerenberg and Mr Pillay are relevant witnesses, but Mr Ramaphosa is not. It offends everybody's fairness bone or should offend anybody. Actually, to be honest, Mr van Loggerenberg and Mr Pillay are peripheral witnesses because in the cases where they were called to come and testify here, it was Mr Gordhan who was actually the main person. But Mr Gordhan was not called for all sorts of reasons that we can only guess. Only the other secondary people who had made remarks were called. Fine, that's not our business. That's the business of the evidence leaders. If we want Mr Gordhan to testify, we will subpoena him as we intend to do. But I'm making a different point now which is that it would have been impossible to have either Mr Gordhan, Mr Pillay or Mr van Loggerenberg to be relevant while the person who did exactly what they did, which is to put affidavits in respect of which the Public Protector has now been impeached. Then we're told that that's irrelevant. That's number one. Number two, we have noticed with interest that the evidence leaders have, since we raise this issue stayed away from any evidence to do with the CR17 or Bosasa matter. But that's irrelevant. If that is meant to dissuade us from the relevance of this evidence, well then it's just a waste of time. As I say, you can’t have your cake and eat it. It doesn't matter whether the evidence leaders lead evidence to do with CR17 or not. The fact is that it is in the motion. If it's in the motion, the evidence leaders have no right, quite frankly, not to call witnesses in relation to any part of the motion, and by that amend the motion of Ms Mazzone. I'm not saying that is what they were intending to do. I'm simply saying that to the extent that they have not led evidence on CR17 that changes nothing about its relevance, because it is in the motion. You can't say, no, I'm taking the motion as it comes originally. Then when it suits you say, no, I'm only taking the motion as far as evidence has been led, just all in the effort to save Mr Ramaphosa from coming to assist the Committee about the remarks that he made under oath. So that's clearly a matter of bias. But what is worse is that unfortunately when we drafted the document it was in the morning of the 20th. After that, there was a judgement that came yesterday which underscores this fact. In that judgement, you will see one of the things raised is that people like Mr Ramaphosa, who have raised money to run political campaigns are now required as by law to make a disclosure of those donations in terms of the Executive Members Ethics Act. Therefore, if they don't do that then… The judgement says openly that this is a measure that is intended against corruption, which is what it is to conceal money that you are benefiting from. That we know that, Chairperson, if you read the judgement, it's not a long judgement that is traced in section 96 of the Constitution. That section – I think I've said this here before or I don't know if I said it here or I said it in court – but that section is what distinguishes members of the executive from you and me. You and me must also not be biased, which is why I'm making this application. But members of the executive, on top of whatever governs you and me, have an obligation under section 96 of the Constitution not to place themselves in situations such as the CR17 situation. That's what the Constitutional Court said yesterday and it cited section 96 specifically and it's cited the Act specifically. So how can that… now we know that the so-called remarks made against the Public Protector in relation to CR17 is because she also agreed with that approach. She said if you are a member of the executive and you receive money and it's going to benefit you politically, then not to disclose it, is corruption or maladministration or whatever. I can't remember what was said in the report now. Mr Ramaphosa’s defence there was that, no, this has nothing to do with him being a member of the executive, it's some private thing in the political party and so on. Well, yesterday's judgement shows that that is a fallacious argument. Albeit it is going to apply going forward and not retrospectively. But the point I'm making, Chair, is that is in the heartland of what this Committee is examining. It's not whatever the courts have said. It is whether the Public Protector, in taking the view, which was confirmed by the Constitutional Court yesterday, should be impeached. If she should be impeached for saying that if you get money and it benefits you politically and you are a member of the executive, that is maladministration, then the entire Constitutional Court should be impeached as well. Because that's what they said yesterday, exactly what she said. Apart from the fact that we should be grateful to the Public Protector for having taken that stance, because had she not initiated that litigation, had she not opposed that litigation we would not have had the judgement of yesterday, which develops our law and our anticorruption efforts in this country – takes it to a step further. But forget about that. We don't expect anyone here to praise the Public Protector for anything. But at least let's agree that we don't condemn her for saying the same thing that was said by the Constitutional Court, one. Two, let's also agree that that debate is relevant to the work of this Committee. That's all, actually, that we need. Your refusal to understand those simple basic facts which emanate from the motion itself, in our respectful submission, is not a coincidence or a lack of appreciation of the relevance. It's simply pure bias and a desire to pander to Mr Ramaphosa and whatever other luxuries he might be able to offer. That is not the sign of an impartial mind. I might say here, we have referred before, you know there are foolish people who say that a minority judgement is not something to be even considered. But that's not true. Lawyers know that we say minority judgments of today are the ground-breaking judgments of tomorrow. That is what has happened here because in the case of CR17, Justice Mogoeng had said that it's fallacious to distinguish between the benefits that one gets in the way Mr Ramaphosa got and he's now been proven right, at least to that extent. But that's a story for another day when we deal with the merits. For now we're still just dealing with the recusal application and the illogicality of the ruling made here, which can only be ascribed to bias. Then, Chair, if you go to B4 Unduly favouring the evidence leaders and unwarranted proximity to collusion with them and generally adopting an oppositional posture towards the Public Protector and/or her representatives. Well, this one we can go on all day, so I'll just try and cut it down. That's where we said that there were innumerable examples of such conduct, but we've put a few of them. It includes the Chairperson rejecting almost all objections by the Public Protector, including those that have referred to dealing with relevance for cross-examination. But dealing differently when similar objections are made by the evidence leaders. We make an example of the objection of evidence leaders pertaining to the allegations of sexual harassment against him by Mr Ndou. Sorry, I didn't put the name there. But that's what we're dealing with, which the Chairperson ruled to be relevant in respect of his and other testimony. This was the most blatant example. Here we have been pointing to the Chairperson that certain evidence, either in whole or in part, was irrelevant. We were told no, you must wait until one day in November or December, when it might be excluded. But for the first time, when the evidence leaders wanted evidence to be excluded, the whole attitude then changed. The Chairperson not only ruled that evidence must continue, the Chairperson actually stopped the proceedings and called for a meeting of the Committee, and so on, and then came back with a ruling. None of that had happened before. Our objections just get rejected out of hand. That was the purest exhibition of bias on your part. Now and then we've already spoken about the duration of cross-examination is just determined by whatever the evidence leaders want or need, or whatever they say. This one is very important. We have at least tangible evidence of this. When we wrote to you about the postponement last week, for example, you responded to us and gave us a four- or five-page letter, which included in it discussions that we had had exclusively with the evidence leaders. Now I'm not saying that they're wrong by conveying those discussions to you, or whatever. I don't know what the actual relationship or how the workings are on that side. But to the extent that I've ever been an evidence leader, or initiator, the relationship is hopefully arm's length. I have no doubt that my learned friends know what that is. But that's not the point. The point is, when we are having discussions with evidence leaders about a matter which affects the Public Protector, in particular, we can have discussions about anything else, but we can't then… those discussions can't find themselves in your correspondence to us, which means they were discussed in our absence. A matter that affects us. It's one of the most basic rules of fairness, that a person in your position, Chairperson, cannot have those kinds of… It's improper to have those kinds of discussions with the one of the parties, quote unquote, in the absence of the other. Let me pause here because I don't want to listen to, you know unnecessary lectures about that, no, there are no parties here or there's no or the evidence leaders don't have a case to close or whatever. I'm not at that infantile level. Or even to say that this is not a court of law. I know it's not a court of law so please, spare me that. Fairness is fairness whether you're in a court of law or on top of the roof or whatever. What is unfair is unfair. When I make examples about fairness of a process or a court process, and so on, if I don't know by now at my age that this is not a court of law, then you might as well not say it because it means I will never understand it. The point that we make is that fairness is a standard that cuts across all sorts of processes. You know when you're doing something that's unfair. It doesn't matter if it's under some tree in the village or whether it's in a formal court sitting or indeed in a process such as this one. There are certain basic things, you cannot discuss matters that involve one of the participants, let's call them that instead of parties, in the absence of the affected participant. It's just simple. So that, as I say, we have concrete evidence of that having happened, because how else would you have put in the letter things that were discussed bilaterally between us and evidence leaders, except if we had a discussion with them about that matter, which we discussed with them, which affects the Public Protector. Then we talk about what we call unidirectional hostility and negative remarks directed only at the Public Protector and her team, while not censoring the same conduct on the part of the evidence leader. We say this includes the undue levels of impatience, shouting at and suppression of the Public Protector’s legal representatives in violation of the clear ruling of the Constitutional Court. This is a serious matter. The shouting and haranguing and all that we, you know is water on a duck's feather. We don't particularly care much about that. I've said many times here that please don't shout at us, Chairperson. For that, I'm the one who was told that I should not. I don't know what I must do. I should be shouted at and demeaned and I must lie down and play dead. I think I've made it clear that that will never happen. But be that as it may, I'm not the Chairperson. The Chairperson’s own impatience, shouting at us and suppression of what we have to say is an exhibition of bias because that has never… we've never seen that being done to anybody else. Then we've said that there was instinctive rejection of proposals, unless they are supported by evidence leaders or a Member of the Committee. That is actually… I'll make a classical example of this. It’s a pity that Hon Herron is not here. When Mr Pillay was testifying I said to you, Chairperson, there's somebody whispering to this witness, which is a serious matter and that was dismissed. It was only once Hon Herron said, I heard it myself, there's someone who was whispering, that the matter was attended to. I mean, if that's not bias, then nothing is because what if Hon Herron had not heard the whispering and I was only one who had heard it? Then it would have been some alleged madness or whatever the media is warned to say, which I didn't care much more. But it is just an example of the inherent bias in just dismissing anything that we say. Then I've noted a reference to the, what for lack of a better word, again, I didn't want to elevate it. I call it a gentlemen's agreement. Sorry for the sexist metaphor. I was using that because I didn't want to elevate it to what it is not. Because there was no agreement, written agreement or even verbal one. But there was certainly an understanding, maybe that's what we should call it. An understanding, Chairperson, that we would need after the last witnesses called by the evidence leaders, we would need a period of about two weeks to put our own ducks in a row to prepare our own witnesses, to decide which witnesses we want to call and so on. I had discussed that with you, Chair, and evidence leaders informally, I admit. As I say, there was no protocol that was signed by anyone. But that was always the understanding. When we asked for clarity on that, we were either not getting any answers or were not getting any, in fact, I think the last response was basically to tell us that we're not going to get that, the fruits of that understanding. Now that's inherently unfair, Chairperson. Let me explain why. As I said to you, in our informal discussions, this is not… let me put it this way. The Public Protector is committed to having this process speedily done away with as soon as possible, as yesterday, because she believes that this is just a waste of time. There's no impeachable offence that has been committed and we must just all get on with it, quite frankly, and stop this unnecessary waste of money. When we ask for that period it's not to waste two weeks, you know we have no interest in that. It is only to try and get witnesses. The evidence leaders will tell you how difficult it is to deal with witnesses. That's why we've been so lenient, not insisting on seven days this and that, because we know witnesses have a mind of their own. That's one of the hazards of trial work, as opposed to motion work. But this is what we asked for, Chair, in respect of that. The evidence leaders, at least, they were appointed at the end of March. They've had since then two or three months before we started the proceedings in July. Therefore, they were able to look at the evidence, decide who they're going to call, subpoena who they want to subpoena and all that in that three-month period. Decide the sequence of witnesses, who to eliminate, who to call and not to call. We're saying, we don't want three months, because that would be ridiculous. All we're saying is give us a reasonable period, which we have put at two weeks, so that we can have the same approach and decide which of the witnesses we really want to call, which evidence implicates them, cut it down. Actually, that two weeks would be saving the time of the Committee, because otherwise we will call unnecessary witnesses. So, we expected that kind of logical understanding, but it has been unreasonably rejected. Well, to the extent that we can read it. I hope we're wrong about that. So that attitude is also indicative clearly of bias in the crudest sense of the word. Because, as I say, here the evidence leader had a period, whatever it is. Whether it's a month or two months or three months within which to do that, and we want not even half of that, or even a quarter, you know. We just want a reasonable period, and the two weeks was really for this, Chair. We'll make those decisions in the first week, for example. But we still are able to comply with the seven-day submission of statements, basically. Then, Chair, if I may quickly go to B5. No, we've dealt with B5. If we can go to B8. Now this is an important one, Chairperson, because this one deals with you directly and is an exhibition of the inherent bias of what the Western Cape High Court called in the latest judgement against the President of the Republic, bias of a disqualifying nature. That's the judgement that was passed by the Western Cape in the Public Protector’s matter, in which you were a party. Now what is bias of a disqualifying nature? We say, you, Chairperson, have made express statements which show conclusively that you have prejudged the issues before this Committee as an individual, as a Member of Parliament. Remember one of the key issues around this Committee is the issue of incompetence. There’s incompetence and misconduct. Now just tell me, this is what you said, Chairperson, in Parliament. You'll find at page 16. Yes. These are your words, Chair. You said, 'here we have to budget for incompetence'. You were addressing the Public Protector Adv Mkhwebane.' Here we have to budget for incompetence'. I will use that word. You said you are being called incompetent and on the basis of the facts before us I think I can venture into that. Now in anybody's language, this was you calling the Public Protector incompetent, which is the exact issue that has to be determined by this Committee. Now even the most naive person who can believe that a person who has said these words can bring an impartial mind to bear to these proceedings on the issue of incompetence, then that person would need their head to be examined. This is classical bias and classical prejudging, I mean, again, one doesn't have to be a lawyer. Prejudging means exactly this, it means you pass judgement on the incompetence of the Public Protector and now you're supposed to have an open mind on it. Let's talk about what we call reasonable apprehension of bias, Chairperson. Remember, again, you, fortunately, you’ll have the advantage of the judgement that was passed by the Western Cape High Court. There is actual bias and there's a reasonable apprehension of bias. Actual bias exists, we all know that, but it's very difficult to prove, because it's almost like you need to get into the head of the person to show the actual bias. Fortunately, the law has created this issue of reasonable apprehension of bias, so that you don't have to get into the head of the person. I don't have to say, Mr Dyantyi, I know your bias, because I've read your mind, or I have hypnotised you and find that you are. The test is the reasonable apprehension of bias and it’s articulated like this, Chairperson. Put yourself in the shoes of Adv Mkhwebane and ask yourself the following question. Is it reasonable for her to perceive that a person who has passed judgement on her competence cannot possibly be fair or open minded on that question? That's all you have to do. You just have to be human and be able to put yourself into somebody else's shoes. It's not… the test is not to you or what's happening in your mind, or whatever. The test is whether a reasonable apprehension of harm on her part is justifiable under these circumstances. Again, really, I don't think I have to say anything further than that. It's like if I'm going to face you on charges of murder or whatever. Then I get a judge and I find that the judge the previous week said 'that killer, that murderer Mpofu is going to appear before me next week'. That's Recusal 101. It's therefore, if you apply the correct test, really, the matter should stop right here. This should be enough to make it clear that we can never get fairness or justice in a process chaired by you, when you have said these things. Then I move, Chair, to the issues that are in B9, B10, B11 and B12. To save time, Chair, if you allow me to, those matters are related and with your permission I'll address them holistically. These are the matters that, I dare say, what constituted the last straw for us, and even for me, who has been defending you and trying to argue against your recusal. These are the matters that happened last week on 13 September. This is when I, speaking for myself, then had to sheepishly say to the client, okay, it means you were right all along. I've now reached a point where we have no option but to agree with you. What happened last week contrary again to the fake outrage and choreographed noise out there is shocking for various reasons. Not because of the alleged threat, which I've explained ad nauseam, insofar as you can call it a threat or a promise or whatever it was. It related to this matter of recusal. If it was a court case, I would be one of the worst clients because I would confess that it was not even the first time that I was issuing that so called threat or warning or promise or whatever you call it. I had done so on the 26th. I did it last week. It all didn't assist. So that only shocked bigoted, racist and their fellow travellers about which I don't care. It was shocking because we had two grounds. I listened carefully to your summary this morning. I came here, Chairperson, you will remember, I don't know what was wrong on that day. Or what happened to you wherever it happened. Because you displayed hostility and impatience of a kind that I have not experienced before. You will remember that actually, it started literally on the first minute. You now say here in your summary, you don't want to waste the time of witnesses on things that affect the Committee. Well, that's exactly the opposite of what you did on the 13th. We came here, literally, it's just that I don't have time I could play the video. Nine o'clock, exactly, or whenever we started. You said the witness is not here and there was some technical connection problem or whatever. I said to you, Chairperson, as you know I'm going to raise a matter which does not concern the witness. Can I carry on with that matter? We don't need the witness for that. No, we will wait for the witness. Okay, if you want to waste time and wait for the witness, that’s fine. I waited for the witness. Then I raised my point and the first thing I said, again your summary is distorted. Because I said it, I started with the issue of the Public Protector not being well, because I had to. I couldn't just get into the issue about the lawyers unavailability. Because you would have asked me, that's all very well, but where's the Public Protector? I had to start with the Public Protector’s absence and said she's not here. I have just been informed that she has been taken ill and is for that reason she's not here. You asked me is that an apology? I said it's not an apology because I don't even know. I've just been told by a family member myself. I was expecting her actually to come to my office, I think, in that period and I was told that she had been taken ill by a family member. From that point on, so it's not true to say no, there was this issue of the lawyers and then the issue of the Public Protector came. The issue of the Public Protector’s illness came up front. Anyway, be that as it may and that's what we deal with at B9. I said, in all honesty, I can't come here and say I'm now asking for the postponement only because the Public Protector was not here because that would have been opportunistic. As you knew the postponement was going to be based on the issue of the lawyers. That is why I dealt with that. What happened there was really what one might call the most embarrassing display of chairpersonship, because the next thing I had to now tell you what it is that I'm going to do in terms of preparation, I don't know what. But it should have been sufficient to say, there's an urgent application, there's an exchange of documents. I can’t be telling you that 10 o'clock I'll be doing the replying affidavit, at this time I'll be doing that. That's just degrading and demeaning and serving no purpose, except to question my integrity – because it can only mean that I was just making it up, actually, the fact that I have to prepare for an important urgent application. But again, even that it’s not about me. You can have whatever views you might want to have. It's about the client. So that was the first issue, the non availability which was explained. And, Chairperson, in your summary I can hear what you're trying to say. You're saying that, well, this application was brought by the Public Protector, supposedly, therefore, she had no reason to come and ask for a postponement. Because she should not have brought the application. That's wrong. I explained to you even on that day, that the application, yes, it was brought by her as the applicant, but it had been thrust upon her by the situation that arose from the judgement of Friday the 9th. Where in the stealth of night we received documents from the DA. On the Sunday, we received other documents from the President. We didn't bargain for that. We didn't ask for it. They did it. They had 15 days in which to do it, but they decided to do it on the weekend. I had warned about this on Saturday when Ms Thejane finished, without even knowing that the President was going to enter the fray. To be now asked here which comma am I going to put at what time, as if I'm a machine who must just do those commas and then come and do cross-examination. I can tell you, Chairperson, very few people you know work harder than I do. When I say this is now a situation that is impossible and I need time, you should accept that. Well, you don't have to, but at least any sensible person would accept that. That is a situation that would have been thrown on us. Why else would I ask for time? I don't understand. Then the… but that… again, as I say, it's not about me. You may have your suspicions that maybe I wanted to go on holiday or whatever. But the one, that is what I call the proverbial last straw, Chairperson, is when you refused to grant the postponement, even on the basis of the temporary medical unfitness of the Public Protector. You know it's only in this country that you can have, as I say, the fake outrage about the so-called promise or threat or whatever, in the face of the harshest display of unacceptable, unlawful, unconstitutional and patriarchal behaviour that we have seen. Where I don't know what is the Public Protector supposed to do if she's sick? Is she supposed to schedule her sickness according to the whims of the Chairperson? No, she, she had a sickness. She did not have to be subjected to that. Even when I begged you, Chairperson, to say, here's a medical certificate. No, you cannot display it. Now we're told after the fact, which is a bigger insult, that you did that, because one, you did not want to interrupt Hon Gondwe I think was the one who was on the platform, number one. Number two, you did not want the display of medical information belonging to the Public Protector. Both of those reasons are unacceptable to put it mildly. The one about interrupting is wrong. Because surely, whatever interruption which, if it was necessary, I'm sure Hon Gondwe, even her, would understand that there was a medical emergency. The two things really don't match. You can't say you didn't want to interrupt a Member and therefore didn't accept a certificate. It's just as I say, using a sledgehammer to crack a nut. So that's the first thing that that explanation, I think, doesn't deserve much more discussion. The second one about the confidential information, medical information is just a convenient afterthought, which also should not carrying much credence, because it was I, who represent the Public Protector, who was saying I want to display the certificate. You must assume that a) I have a mandate to do so b) I have seen it at least myself. I would have known if it details chapter and verse of her illness, and in that case, therefore violated. Can you please put up the annexure of the medical certificate? In the process, the Chairperson said to me, what is the nature of the Public Protector’s illness. That question was inappropriate and uncalled for. Firstly, because, well, fortunately, I did not know the nature of the illness myself so even if I wanted to answer, I wouldn't have answered it. But it's not the answer that I'm worried about, it’s the question. It's not… it can’t be true to say you did not want her confidential medical information to be displayed when you asked me what is the nature of illness because that was confidential medical information. As I say, fortunately, I didn't even have an answer. But this is all I wanted to do, Chairperson, all I wanted us to do – what I'm doing now. Put the certificate up there. It says, "This is to certify that Ms Mkhwebane has seen doctor so and so on 13/9/2022. She has been unfit for work from 13/09 up to and including 16/09", signed by the doctor. That's all. It would have taken half a minute as I've just done it now. But you flatly refused that we should do that, to show the Members that. There is no confidential medical information there. Nothing like that. It's just says that she's unfit on those three days. I would never have in my rightful mind put up a certificate that discloses the nature of her illness, which fortunately, I don't know even now. Neither is it relevant. Here, if we really had time, I would have put up. You would have just, all anyone has to do is to just listen to that exchange, where I say, Chairperson, I want to put this up. You shout me down and I say, don't shout at me. There's no need for you to shout at me. I simply want to put this up, until I gave up. As they say, the rest is history. So that, Chairperson, if anybody who watches that exchange or sees your conduct and behaviour around the issue of the Public Protector’s medical condition. Any person, any neutral person who sees that will see the crassest display of a lack of ubuntu, empathy, humaneness and just really just being human. And, again, if you use the test, the Public Protector cannot be expected to assume that a person who behaves like you did around that issue, even with those explanations you gave this morning, will treat her as a human being alone. Forget about fairness and all those things. Just to be treated as a person. I have no doubt that if anybody that you respect or you care for was being impeached and they said they were sick, you would accept it. It's only because it's according to your previous statement that has been done by this incompetent Adv Mkhwebane. Really, I think anyone even the most rampant racist Mkhwebane-hater would understand that she cannot be expected to assume the bona fides and the impartiality of someone who behaved the way you did on 13 September 2022. What is worse, which is at B11, Chairperson, is that Members of this Committee were pleading with you. Hon Maotwe, Hon Holomisa, Hon Zungula said please let’s adjourn, Chairperson, so that we can have a consultation with the Committee and deal with this matter of the medical information and the unavailability of the lawyers, and you refused flatly. Unlike when the evidence leaders wanted to shield Mr Ndou from his alleged sexual escapades. And, you know in fact, instead, what you did was to cut out Hon Maotwe and mute me for simply saying the things that I was saying, in the calmest possible manner, to say please listen to me, don't shout at me. I want to assert the rights of the client. I was muted. In fact, the muting was just because I say, don’t worry about me. I'm fine. I can take care of myself. But the meeting was just laughable in the sense that I had already muted myself at that point. But, again, it's not the muting per se. It's just the type of conduct and your dictatorial tendencies in refusing to have a meeting when the Members were asking for it were, in our respectful view, a clear signs of bias of a disqualifying kind, and impropriety and a display of, as I said, undue patriarchal tendencies, which have no place in a fair process like this. Particularly, demanding to know what illness the Public Protector was suffering from. You know none of us here with our whatever positions we were given should play God or the super guardian of the little girl who is playing sick type of thing. It's just nauseating to even go into the implications of what happened here last week. None of us, the father of the Public Protector, or the school principal, or whatever, who must demand more than what we're entitled to. For that, Chairperson, you are not fit to fill the position which requires impartiality and ethical conduct. Remember that you are representing an organ of state, which is the Speaker of Parliament, and organs of state, in terms of section 195 of the Constitution, are duty bound to act, not just fairly, but also impartially and ethically. There was nothing unethical about questioning somebody's illness in the face of objective evidence from medical experts, if you didn't want to take it from me at least. Then I've already dealt with the last ground which is B12. Which is that the realisations, which you have made in the public domain, about your conduct and this morning, are also just aggravation if anything else. Not only did you… as I say, the facts were put in a particular… with a particular spin. Which is not what would be… what would come out if we were to watch the actual footage of what happened but based on the noise. I mean this morning this what you say. You're saying things like, when we asked for a postponement no papers had yet been filed by the respondents. So what? I mean, what does that got to do with anything? If I tell you that, at that time, when we were speaking, actually the respondents’ papers were supposed to be in at 10. Which is why I really didn't even want to be where I was. Now there were even two respondents. In fact, there were three, a third one threatening, in the face of the Acting Public Protector, you know. But the point is, why do I have to go into those minutiae to, to, you know. My word, when I say that we are stressed and we're in the middle of an application should be taken at its word. Unless I’ve done before. If I've misled you before or said things that were not true, which I have not. I've dealt with the issue of the personal information. So the… and you went onto television shows, as is your right to do, but you, you then misrepresented the facts there. Even went as far as to say that for what happened there I should be referred to the Legal Practice Council, which quite frankly, I didn't mind. But it just… I'm raising it only in the… to show your bias in the sense that you are already… not only did you prejudge the Public Protector, but you prejudged me. But you can prejudge me as much as you want. As I said, it's got nothing to do with me. But you cannot prejudge the Public Protector. I will deal with whatever you were trying to instigate in those TV shows when it comes from people whose job it is to deal with it, or anybody for that matter. I think by now you know my attitude to those things. But I don't want to make the thing about me, as I said, I'll look after myself. But as far as the Public Protector is concerned, she cannot be expected to accept that you are not a person who was really trying to bully insofar as we are bullying me. It was on behalf of, or rather vicariously to bully her because I'm here representing her. Chair, those are the grounds. I've covered all the grounds, I think, that relate to the Chair. I just want to emphasise something which I just put in my notes here. About which relates, forgive me, Chair, for going back to this. This relates to the issue of relevance and some of the prejudicial things that have happened to not only to us as a team as a result of your conduct. Well, maybe that's putting it too high. Partially as a result of the conduct that has put it… that has been displayed here, not only by you. But I have to go back to this. I can tell you for free that one of the issues that have been suffered by my team. Again, I'm only raising this because we are not cry babies. But I’m only raising this, as far as it affects the Public Protector. Is that my team since we started this process here until last week, forget about the fact that that’s in breach of regulations, my team has not been paid at all by the Office of the Public Protector. Not one cent. Our work, which goes back some of it to March. But I just want to refer to the period between June and now where we were busy with this work here. It's fine. Again, we will deal with it when the time comes and in a manner that might be befitting. But Chairperson, what has happened to them is, as I say, either a display of the letterheads and other details, which have, when eventually they, last week they were supposed to be paid for the historical work, then it was interrupted by the fraud that I explained earlier, which will link directly to the fact that the documents were displayed here. But what is worse, is the kind relating to the issue of relevance now. It's the kind of information that gets bandied about and deliberately abused, which is intended only to hurt, as I say, not to assist the Committee, but simply just to… it's just vindictiveness, basically. I'll give you an example. We were told here that so-called R148 million had been spent over a period of five to six years and I don't know what that was in aid of. But it certainly achieved the intended effect of portraying that money as having been spent recklessly, I suppose, by the Public Protector. Nobody puts this in perspective that actually what you're talking about is an average of R25-26 million per annum. Which for an Office of that size, you know the police spend about R300 million or I don’t know how many billions in legal fees. Just because of the nature of their… Home Affairs spends about R100 or maybe R75 million and so and so on. But it's not put in perspective… just one figure. In fact, that R148 probably most of the departments spend it in half a year, not even in six years. Fine. That's fine. It's fine if you open us up to that kind of gratuitous insult. But where we draw the line is where lies are then peddled and misinformation, because we were told that of that money R49 million had gone to Seanego. Well, firstly, thanks to Hon Herron, even if that was true, it didn't mean that money had been paid to Seanego, simply because they are there to pay other people. But it's also not true. The actual amount of money is not R49 million. It's something like R27 or 29 million, of which not even about a third actually goes to Seanego. The rest of the money is paid out, as it should be to, I think about five or six different advocates depending on which matter was being handled. Now as I say, all this we could tolerate if it actually was meant to assist the Committee, but it doesn't assist the Committee at all, except to portray Mr Seanego or some of us, at least those who care, as voracious lawyers who have cooked and cooked – according to Mr Mileham, benefited from that money. That's the kind of thing that gets bandied about here to the prejudice, not of us – as you know I hope I can believe that some of us really don't worry about this – the worry is the impact of all this to the Public Protector. That's the person that we have to worry about. When you do that, when you squeeze her legal team and not pay them for months, when you portray them as thieves, and all that, what you're really doing is to try to strip her of her legal representation or to discredit her legal representatives and her, you know. It's not about us. It's about the prejudice to the Public Protector, which is undue, unwarranted, unfair, biased and cruel. Maybe let me just say this, the reason the Constitutional Court said the Public Protector is entitled to legal representation is because, apart from anything else, she's a human being, she's a South African. When you are having a process like this against the mightiest organisation called the state and the National Assembly and, you know the Committee, of political parties and so on, and you are a sole human being, you know surely you must be entitled to assistance so that the scales as far as possible can be balanced. No, but what is required here is that the state must use all its might to bludgeon her to death. But she must not do anything. She must not be represented. She must not have two weeks to prepare witnesses. She must not raise objections. What must she do? She must not even get sick, for God's sake. But anyway, we're supposed to come here and smile and say we're in the land of impartiality. No, we’re not. We're far from it. Then, Chair, if we can go to the issue of Mr Mileham. I'll be quick. Mr Mileham, again, the first ground is inherent bias based on his relationship with Ms Mazzone. I'll just read it out to save time, it's paragraph 72, Chairperson. "It is common cause that Hon Mileham is the lawfully married husband or spouse of the complainant, Hon Mazzone. It is also undeniable that Honourable Mileham has consistently displayed a hostile and condescending attitude towards the legal representatives of the Public Protector, and therefore by extension, the Public Protector. These issues have been previously raised with the Chairperson who failed to address them adequately". Then we raise the first round which is the inherent bias of Mr Mileham. It is legally and ethically untenable to allow a person who suffers from a conflict of interest of the kind which affects Honourable Mileham, to sit in the purported impartial determination of the guilt or innocence of the Public Protector, or any other person in her current position. Now Chair, again this is trite. If you… let's go back to the issue of reasonable apprehension, Chair, that I raised. Again, Hon Mileham might be the fairest and most balanced person in the world. It doesn't matter. The point is that, should the Public Protector be reasonably expected to subject herself to the impartial and unbiased participation of Mr Mileham in this process? When she knows that he is the husband of the complainant. People can be husbands or wives of anybody that they choose. But the point is that you cannot expect that the person who is placed in that position – there are many cases, my learned friends will know them, court cases where people are disqualified. I think I've made this example before. If I'm sitting as the CEO of Denel, or whatever, and I'm sitting there adjudicating a tender document opportunity. One of the people who's tendering is my wife or husband, then surely, it doesn't matter if I'm like, you know the saint of whatever, but I cannot be expected to put a neutral mind to bear in that situation or worse still, if there's another person who’s the competitor, they cannot expect me to sit there. It's very simple, Chair. We accept that it might have been done inadvertently. We know we're not naive. We know that Hon Mileham is an MP in his own right and I'm sure whoever appointed him to the Committee probably didn't think of this point that we are raising. We will prepare to accept that. But that cannot absolve him of the duty that has been raised to recuse himself. Nor can it absolve him from the duty to have raised it with you, Chairperson, at least. I don't know, maybe he did. But if he did, then you should have raised it with us. I'm assuming that he did not raise it with you. Because he would have given us an opportunity to either say it's fine or not fine. I can safely assume he didn't raise it with you. That's already a breach of the rules of impartiality and recusal, because he should have disclosed it. He can't just sit here and keep quiet about it even before it's raised and then when it's raised, he can't insist on sitting here. Neither should the DA, actually, but I don't think that they are that way inclined. But nobody in their right mind can blame the Public Protector for insisting that this should not happen. The second one, Chairperson. If you can put up RA6. This, what I've said, then shows a predetermined outcome on the part of Mr Mileham at least. Remember the interest of a complainant is only one – it is a finding of guilt. So that's the outcome with which he is associated. It's a predetermined outcome, just like your predetermined outcome when you proclaimed the Public Protector to be incompetent. Now in line with this, this is what Mr Mileham does. And you know the devil Mpofu is supposed to endure all this, as I say, and play dead even when you're being provoked like this, which is never going to happen. Well, it happened in this case, unfortunately, because I respect this process, contrary to whatever anyone has to say. This is what I was subjected to, Chairperson, a few weeks ago and I did not respond because I thought it would really demean this process. Hon Mileham puts up these tweets about me. Go to the previous one the one that talks about predetermined outcome. That was the first one. He says, 'I haven't made up my mind on Adv Mkhwebane’s fitness to hold office yet'. If you believe that you’ll believe anything. But here's the important part. He says 'Adv Mpofu is rude, disrespectful and unwilling to accept the rules of Parliament'. I don’t know which rules. 'I will continue to stand up for the rights of witnesses and our right as MPs to ask whatever we like'. Move on. Then somebody must have responded to explain the rules of fairness. 'This isn’t a court of law' he says, trite. 'The rules for cross-examination are court rules, not parliamentary rules'. The less I say about that the better. 'There's a BIG difference'. I don’t know what that is. 'The rules of Parliament apply to everyone equally - including Adv Mpofu. If you breach those rules, expect to be "disrupted".' In other words, I must expect to be disrupted. Carry on. 'When he is dignified, competent and respectful,' – this is me now, in other words, he's calling me undignified, incompetent and disrespectful – 'he will be treated as such. As many others are every single day. Sadly, the advocate fails badly in this regard'. Again, going to be judged by someone like Mileham, Mr Mileham is something that I quite frankly don't worry much about. But it's the implication that it has on the process here. I've been judged and tortured by people like him before and then he then responds again.
Mr K Mileham (DA): Chairperson?
Chairperson: Just a pause, Adv Mpofu. You did not raise your hand, Hon Mileham.
Mr Mileham: I apologise, Chair, I’ll raise my hand right now. Sorry, I don't know how to do a point of order. Sorry. Can I go ahead, Chair?
Chairperson: What is the point of order on?
Mr Mileham: Chairperson, He says he's been tortured by people like me. Chairperson, I'd ask that be withdrawn. It's unparliamentary behaviour and it's unparliamentary language. I certainly have never tortured anyone in my life, and I take the gravest exception to Mr Mpofu making statements like that.
Chairperson: Thank you, Hon Mileham. You certainly have not been tortured by Hon Mileham, Adv Mpofu.
Adv Mpofu: I have.
Chairperson: I would want you to so that we are able to listen to your presentation to refrain from that.
Adv Mpofu: Thank you, Chair. Let me just explain then you can make a ruling. Maybe I can withdraw the remark that I've been tortured by people like Mileham, Mr Mileham. I've been tortured by him, Mr Kevin Mileham. No, I'm telling you. I have been, I mean.
Chairperson: Let’s do it step by step.
Adv Mpofu: Let's do it step by step. I have withdrawn the earlier remark.
Adv Mpofu: I'm making a new remark now which says I have been tortured by Mr Kevin Mileham. Torture doesn't just include the physical torture that I've suffered in the hands of the apartheid regime, if that's what he thinks I'm referring to. That I have been tortured about as well. But here, I've been tortured by Mr Kevin Mileham by insulting me. He has tortured me emotionally by saying that I'm undignified, incompetent and whatever he has said, so he has tortured me. He can’t define my torture.
Chairperson: Okay, that's fine. Okay, thank you, Adv Mpofu.
Adv Mpofu: But let's move on, Chair.
Chairperson: Before you move on, so I want you to step back, Hon Mileham, because firstly, he would have withdrawn the first reference. But he's now making a statement about how he feels in the hearings in relation to your interactions with him. I don't want you to respond to that. Now let's proceed.
Adv Mpofu: Thank you, Chair. The point is that, you know, when the Public Protector is subjected to this kind of patent and obvious bias… as I say, and when her representatives are subjected to that, particularly in the public domain… Chairperson, I'm quite sure you'll forgive me, I've called you biased and everything. But I'm quite sure that even you will not approve of a Member of the Committee behaving in that fashion and on social media. I mean if I was so minded I would have addressed Hon Mileham on Twitter, which I'm very capable of doing. But I decided not to do it because it's just… it's really the lowest form or the highest form of provocation. Which I was not going to fall into. That is why I'm raising it here, Chair, instead of raising it in that space. Because, as a professional, I have a duty to await the correct opportunity for me to deal with the torture that I'm subjected to by Hon Mileham. That torture is directed at the Public Protector again, as I say, and that's what's most important.
Chairperson: Just a pause there, Adv Mpofu, because I want to indicate to you where we are and the need to wrap up. I would have handed over to you at 10:17. You made your remarks, about five minutes, and 10:22 you indicated to me that's when I must start counting your two hours, which I gladly did. I'm actually counting from 10:30. So now we are now at full two hours that I would have agreed with you that we're giving you. I would want you to wrap up.
Adv Mpofu: Yes, I will, Chair. I told you, I'll remind you of the time.
Chairperson: Already given, as I’ve indicated.
Adv Mpofu: Chair, then I'll try and wrap up. I’m almost there, Chair. Please bear with me. Right. So anyway, we've dealt with that. We've dealt with what I call the inherent bias of Hon Mileham, which is just that. It's an objective fact. The second one is the one represented by his gratuitous and unsolicited Twitter attacks on the representatives of the Public Protector. I've said, Chair, there are what we'll call aggravating factors there. Those factors affect other members of the DA so I'm not raising them against them as such, except to raise them to show the aggravation in the case of Hon Mileham because we have to take him from whence he comes. I've said that, firstly, his conduct has led us to raise the issue that in any event he's a member of the DA and the DA leader Mr John Steenhuisen stated on national television on 9 June 2022, that he and other members of the DA were, quote, popping champagne at the news of the unlawful, biased, improper suspension of the Public Protector by President Ramaphosa on that date. That's the first thing. Popping champagne, it's such illegality, it should itself be a disqualifying factor. We say more recently, the DA has committed gross misconduct, and again, Chair, everything I've said against you, but I expect you to censor this kind of behaviour very seriously. The DA went on last week to attach statements in this Committee to their court papers, which were totally irrelevant. The court matter was about whether the Public Protector should in the meantime – assuming the confirmation proceedings in the Constitutional Court – be at work or not. I'm not exaggerating. The DA attached in their papers there about 400 pages of the statements of Ms Mogaladi, statement of Motsitsi, Thejane and including annexures 400-500 pages. On the day of the… before the hearing, they apologised because we pointed out, what is this now? What has the Section 194 statements got to do with this? Firstly, it was disingenuous and, you know again, trying to create sensationalism, because if as we pointed out in court, if indeed they wanted let's assume it was relevant, they wanted to bring the information from this Committee, then what you do is you then bring the statement of Ms Mogaladi for example and bring the record of her cross-examination. You can’t just bring the statement and wish away whatever has happened. So that was the first problem with it. So the apology in that regard is not accepted, at least insofar as it was directed to us. The court I'm sure will accept it. Secondly, Chair, that is a matter that might go up to appeal stages. It means every time it goes, there must be this 400-500 pages, which is just a waste of everybody's time. So that's what they did. We know why they did it. It was to portray… to put those statements with all the negativity, the irrelevant statements, which we have said, and this is another reason why accepting irrelevancies can be harmful. But what takes the cake, Chairperson, and here we place this on your door… And, again, unless you can explain it, maybe this is where there's a cross pollination between your recusal and the recusal of Mr Mileham. The Democratic Alliance in those papers included the witness list of the Public Protector in the court papers. It's now out there; it was actually written upon by a newspaper, in newspaper articles. Now the problem with that, Chairperson, is twofold. One is that that witness list, we only gave it to you. The witness lists have been exchanged here on the common understanding that those witness lists are not going to be publicised. When we received the witness list of the evidence leaders in June they specifically and correctly and understandably said do not share this witness list. Because in there, there are names of people, some respected – some rightly so, some not rightly so – who appear, whose names appear on that list that, for example, the evidence leaders have not called. If we wanted to be sensationalist, we would have published the list and say, oh, look, so and so is on the list. But that would be disrespecting those people and disrespecting this process and disrespecting the evidence leaders, who gave us the document in confidence. When we gave you our witness list, the only thing we expected was to be treated in the same way, you know, that it would be handled with the same discretion by all concerned. Chair, by saying that, I don't mean that you should have hidden it. I'm sure you probably have an obligation to share it with the other Members. I don't know. But whatever that obligation is, surely cannot extend to those people broadcasting a witness list because it affects witnesses. As I said, again, you can take it from the evidence leaders. Witnesses are people that you have to beg because there's no other reason. They're doing you a favour. Some of our witnesses are already saying, well, if our names are being bandied about before you even consult with us, we're not interested in assisting you. The complaint comes at that level, that it affects the Public Protector’s ability to defend herself in this process and it’s done gratuitously, hatefully, spitefully, maliciously to achieve no purpose other than sensationalism. So that's the context in which Mr Mileham’s recusal is being sought. For what it's worth, Chairperson, I am imploring you that before recusing yourself or asking whoever is going to take over from you, that the conduct, the Twitter conduct and the inclusion… the biased inclusion of statements in the court papers and the inclusion of the witness list should be taken up with at least the DA and any other person here who might be inclined to do such a despicable thing. Now Chair, I know I'm now at your mercy. But allow me to then deal with the last section which is quite important. That is, I promise you, maybe I'll just read it out to make it easy as well. It's the last two to three pages. I'll just read it out, Chair. I think it's easier if I do that. In this section we briefly outline some selected and well-established principles – I’m reading from paragraph 82 – which are applicable to recusal applications and on which reliance will be placed to support the recusal application in this and any other appropriate forum. 83, we say, bias can be classified into actual bias, I’ve already dealt with that, and a reasonable apprehension of bias on the part of the affected party, in this case the Public Protector. "Although it sometimes happens that actual bias is proved, the majority of cases involve a reasonable suspicion or apprehension of bias, which has the same legal effect as actual bias. Recusal applications must not be brought lightly", I’ve made this point. "While it is legally permissible for legal practitioners to bring and/or to threaten to bring recusal applications, which some naively think is something that should be punished, they must do so, as in the present case, as a matter of last resort and only once the situation truly becomes untenable". I've explained what is. "In the very recent case of Bennett v State, that’s a 2021 case, which was decided by Hon Judge Spilg, this is what the judge said. 'More and more recusal applications are brought as a tactical device or simply because the litigant does not like the outcome of an interim order made during the course of the trial'." Let me pause there. This is the situation I was describing where, which must be avoided by all practitioners, that, as I say, if you are unhappy about some ruling about this or the other, then you bring your recusal application. This is why we were advising the Public Protector for months now not to do so until the situation became untenable with the climax of what happened last week. When she was sick in bed and not even able to answer for herself. When the proceedings were ordered to proceed in her absence in those circumstances. Then the court says: " 'The seeming alacrity with which legal practitioners bring or threaten" – there’s that word so legal practitioners bring or threaten to bring – "recusal applications is cause for concern'. Recusal of a presiding officer, whether it be a magistrate or a judge, should not become standard equipment in litigants arsenal, but it should be exercised for its true intended objective, which is to secure a fair trial in the interests of justice in order to maintain both the integrity of the courts and the position they ought to hold in the minds of the people whom they serve". Very important. It’s the integrity of this process in the minds of the South African public out there that we must preserve. Your recusal is not something between you and me. It's something that we must do to secure a fair process and justice and integrity in the minds of those who are watching us. I think we have demonstrated that we have abided by that rule either bringing or threatening of this application was done when the situation as the type described happened. The judges foresaw that. Actually, on a lighter note, it's laughable that people think that if a legal practitioner, assume, issues a threat of something… steps that might be taken – that is something. If you did that there would be no lawyers in this country. Because every day we write what we call threatening letters, which says that if you don't do this we will take you to court, or we'll meet in court and all sorts of sometimes empty threats like that. So that's what the judges said about the so-called threats. Then at 85, we say, "The following pronouncement by Chief Justice Ngcobo who was sitting in the Constitutional Court is relevant against both the Chairperson but more directly to Honourable Mileham, demonstrates that to continue to sit under the circumstances would be a breach of the Constitution". In other words, both on your part and that of Hon Mileham to sit any further in this process would be a breach of the Constitution. Then I’ll read it out to save time. The quotation, Chair, this one comes from the Constitutional Court and that is the case of Bernert v Absa. It's a decision of Chief Justice Ngcobo in the Constitutional Court. He said, and I quote, " 'The apprehension of bias may arise from the association or interest that the judicial officer". Let me pause there as well. I don’t want anyone to tell me that that you are a chairperson and not a judicial chairperson or whatever, I mean judicial officer. All this must be read with what we lawyers call mutatis mutandis, with the necessary adjustments. If I say judicial officer, I mean, any presiding person in a position such as yourself. It says, "The apprehension of bias may arise from the association or interest that the judicial officer has in one of the litigants or in the outcome of the case". That obviously applies to Hon Mileham. Or it may also arise from conduct or utterances by a judicial officer, or chairperson, prior to or during the proceedings. That one applies to you, Chairperson. The first sentence applies more to Hon Mileham. Second one applies to both Hon Mileham and to you because it refers to the conduct and utterances which you made about the incompetence of the Public Protector, prior to or during the proceedings. It says, "In all these situations a judicial officer" – or chairperson – "must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principles that the courts must be independent and impartial". We've already explained why this Committee also has to be impartial, but not to be independent, even though it should be. But we understand the differences. But it must certainly be fair and impartial and not suffer from any defects that affect the rule against bias. Then we say, "In this regard it must be added that enmity and/or hostility towards a party also constitutes sufficient reason for recusal. Where the presiding officer has communication with either party in the absence of the other party in relation to issues directly affecting that other party, this also constitutes a good ground for recusal". I’ve spoken about that. "Whereas in the present case, the presiding officer has heard inadmissible evidence and is unable to disabuse his mind of the effect of what was heard, he or she ought to recuse himself or herself". 89 we say, "In contrast to the televised conduct of Hon Dyantyi and Mileham, the propriety of a party's legal representative’s motives in bringing a recusal application or other objections, should not be lightly questioned. The gratuitous suggestion of misconduct on the part of such representatives" – and that was by you in newsroom; at least the one that I saw; I didn’t see the other one– "is a ground for recusal by its maker". Then we refer there to a statement which was made by Judge Kotze in State v Bam. That was a judgement which agreed with another judgement. If you forgive me, Chair, I won’t abuse the platform. I will read from the actual law report because it gives context. A lot more than what I've put there. This is what, it’s the judges, the two judges, said there before I come to that part. It says "The magistrate's statement that the accused reflected on his integrity in making an application for recusal is unfortunate. I can find no ground for concluding that the accused impugned the integrity of the magistrate. He did no more than to invoke, in his favour the rule basic to our system of jurisprudence that justice must not only be done but should manifestly be seen to be done. Likewise, the magistrate, if he submitted to the application, would have acted" – that’s you now Chair – would have acted in recognition of the rule without conceding any preparedness on his part to conduct an unjust trial". Let me just pause there. If you recuse yourself, Chairperson, it doesn't mean that you agree, as I say, subjectively, that you are biased. It doesn't. I can give you an example, Chair. It's a pity. I should have thought about that to include in this package. Last year, we had a case that involved Mr Ramaphosa where we were claiming on behalf of the Marikana miners. You might have seen this, it was in the public domain, civil damages against him. It turned out that the judge, I don’t have to mention his name. The judge had shares in Lonmin or Sibanye, the company that we were suing, so the respondents were, the defendants were Mr Ramaphosa and that company. The judge, unlike Mr Mileham, disclosed that to us the day before the case and said, I hold shares in this company, what do you say about it? We then applied for his recusal, and he recused himself. In granting that judgement, Chair, he said the following. I hold these shares. They are not even many. I think they were 200 000 or whatever. Which for some people is not a lot of money. It was not going to affect my judgement in this case. But I agree with the miners, the workers, that I cannot sit in this case, because a reasonable person would think that I'm going to find in such a way to protect my investment. So here was a judge and we couldn't question his integrity, who said I'm not biased, actually. But I'm recusing myself because to sit, I'm not conceding... That's what they mean here where they say, if he submitted to the application of recusal he would have acted in recognition of the rule without conceding any preparedness on his part to conduct an unjust trial. Then it says, "The magistrate regrettably showed unnecessary sensitivity in dealing with the application". Then comes the part that I've quoted there, which says, on page 23, "It should always be borne in mind that an accused or his representative, who finds it necessary to apply for the recusal of a judicial officer" – or a chairperson – "is confronted with an unenviable task and the propriety of his motives should not be lightly questioned. The proceedings in the magistrate’s court were then set aside on the basis that the magistrate did not recuse himself. Even though he should have just on the reasonable apprehension of bias". What does that mean here? It means that if you don't recuse yourself in the face of such blatant grounds, you run the risk of this entire exercise going on for many more months and particularly being a waste of time, because it will be set aside if it is found that you should have recused yourself or that Mr Mileham should have recused himself. Then lastly we say, "Another crucial dilemma is usually whether to bring the application as soon as possible or to wait until an adverse outcome is made before raising the issue of recusal". Pause, small pause. That is a difficult one, I can tell you that. Because the issue again is, we can just let this happen and you come with your outcome, it doesn't matter what it is and then we take it to court. It's found that you should have recused yourself. Or we can bring it now which is better for everyone to save money and to save time and so on. We say the better view was articulated by the Constitutional Court as follows. I quote Justice Ngcobo again, "It is not in the interests of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal is sought, to wait until an adverse judgment before raising the issue of recusal. Litigation must be brought to finality as speedily as possible. It is undesirable to cause parties to litigation to live with the uncertainty that, after the outcome of the case is known, there is a possibility that litigation may be commenced afresh, because of a late application for recusal which should have been brought earlier. To do otherwise would undermine the administration of justice". What that means in simple English, or as it applies here, is that if there is a possibility that the non recusal might cause the starting of the proceedings afresh of this Committee, then it would obviously be foolhardy to wait for the outcome, and then start again in 2023 or once that issue has been… It is our duty, professional duty, to bring this as soon as it becomes as I say, untenable, to proceed without having brought the application. Otherwise, we can be criticised if we bring it up after the outcome. Two things happen. One, you can be criticised rightly, because you're bringing it too late. But secondly, you can also be criticised because people will say, oh, well, you are a sore loser. It’s because there's an outcome that doesn't favour you and now you're bringing this application. You should have brought it earlier. But we bring the application now not because, we’re very confident that there's no case to answer for the Public Protector in these proceedings. But it is incumbent upon us to bring it now so that we don’t waste everybody else's time. Then finally, it is important to note that the High Court will intervene in unfinished proceedings if grave justice would otherwise result or where justice may not be obtained by other alternative means. In other words, should having done everything, recusal not be forthcoming – it is only at that stage that we have to bring it to you. We couldn't, for example, just go to court and say, the Chairperson did not allow us a postponement and so on. We have a duty to bring it to you so that you make a decision one way or the other. Chairperson, I won't read those closing remarks, because you’ve already given me an indulgence. Simply to say that the grounds that we have raised, you would agree are quite grave. As I keep on saying, each one of them would be sufficient to justify the recusal of yourself and Hon Mileham. We implore you in the exercise of your duty because, Chair, we know that you understand this. So don't think – we're not patronising you – that you are sitting there and not as yourself as a person. You're sitting there in an institutional capacity, representing an institution representing Parliament, having been mandated to do so by the structures that be and to that extent. We also plan to send this application to the Speaker of Parliament for noting. We just wanted to put it on record here, so that if and when the outcome comes, it would have been embraced hopefully by all the relevant parties. This is not something we're doing lightly, Chairperson. It is not something that is personally directed at you or even Hon Mileham. But it is our right to protect the interests and rights of the Public Protector, of Adv Mkhwebane in particular, as a person. On those grounds then, Chairperson, we request that you return an outcome, you or whoever has to make that decision to return an outcome for the recusal of yourself and Hon Mileham on the grounds that we have set. Thank you very much, Chairperson. Thank you for the extra time.
Chairperson: Thank you, Adv Mpofu. The time now is exactly 1:00. You have been given this marathon time from 10:17. I am going to ask that colleagues, we break for lunch. Back at 2:00. We’re going to get into the process of clarities when we come back and thereafter it will be a Committee process. But let's break for lunch. Thank you.
Chairperson: The time is now 2:00. We're back from lunch. I did indicate, colleagues, that when we come back, we'll get into the area of interacting with the application in the form of clarities and questions that you might not be sure of, from what the application said. Evidence leaders, I’ll start with you before I go to Members. Adv Bawa, I want to recognise you for any clarities that you might have picked up or you want to raise.
Adv Nazreen Bawa: Chair, there is certain issues that relate directly to us that emerge from the application and from the oral submission. I do not wish to engage on the merits of the application for recusal. But I do think where it directly touches on us, it's important that we place what our views are on that, on record. So, I want to start, and it mostly relates to the fourth ground of recusal, in particular, the aspect that speaks to what is referred to as the Chairperson’s unwarranted proximity to collusion with evidence leaders. Because if one party is colluding then the party with whom they are accused to be colluding is similarly accused to be colluding. This is set out in B4, paragraph 33 onwards of the recusal grounds. Now the literal, ordinary, Collins Dictionary meaning of the word 'collusion' is that it is a secret or illegal cooperation, or secret cooperation for an illegal or dishonest purpose. The legal definition of 'collusion' from Black's Law Dictionary is that this is a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose as to defraud a third party of his rights. What is of concern is the prospect of collusion in a sense attributed thereto and I'm going to refer to two cases. One is a Curlewis judgement, which is quite an old case, which is referred to subsequently in Bevan v Bevan and Ward, which states in our law ordinarily speaking, collusion is akin to connivance and means an agreement to mutual understanding between the parties that the one shall commit or pretend to commit an act, in order that the other may obtain a remedy at law as for a real injury. The second is in Koen v Carp, which says, in my view, collusion consists in our law in an agreement between the parties to assert to suppress facts or to put false evidence before the court or to manufacture evidence in order to make it appear to the court that one of the parties has a cause of action or ground of defence, which in fact, it does not. So it is of concern to us that allegation is made in relation to us. The evidence leaders wish to place on the record that at no stage have they engaged in such an enterprise with the Chair of the Committee and the allegations are unfounded. No evidence is placed whatsoever to support allegations of this nature. We turn briefly to deal with allegations to the extent it relates to us, and what is alleged we have done with reference to paragraph 33 of the recusal grounds. Firstly paragraph 33.1, the contents of this paragraph are with respect not correct to the extent that they relate to the allegations of sexual harassment in relation to the evidence of Mr Ndou. The manner of how we anticipated dealing with this was discussed. We made our position quite clear to the PP legal team upfront to seek a closed hearing, in which I actually said to the Committee, Adv Mpofu was not going to object to and in this closed hearing the PP legal team would seek to ask any questions relating thereto if they wish. To the best of my recollection the approach was not objected to. Given the nature of the allegations and that the witness had not been found guilty of anything, we were of the view that both his rights to privacy and dignity and those of his family did not warrant – in the event the allegations were going to be examined to impugn his credibility – should be done in the public domain. It did not relate to relevance at all in the manner the decision was taken. But it is not clear why this is now a matter in relation to which the evidence leaders and the Chair seem to have colluded when ultimately in terms of the National Assembly Rules, it was a decision to be taken by the Committee and not the Chair. Hence the proceeding was convened for the Committee to consider whether those closed hearings had to take place for purposes of that part of the evidence. There is no basis to attribute collusion to the evidence leaders in relation thereto. As far as paragraph 33.2 is concerned, this is not correct. The evidence leaders have been subjected to timeframes in the leading of the evidence. The record will show that the Chair has held the evidence leaders strictly to the time allocated save in a few exceptional circumstances. We respect those parameters and for the most part the evidence leaders have managed to plan the evidence and to lead the witnesses in compliance with the times allocated to them. This too the record will show. The fact that the evidence leaders have managed to comply with the times allocated to them is hardly a basis to accuse us of collusion with the Chair. The evidence of Mr Sithole was different for reasons which I articulated at the time. The questions posed arose as a consequence of cross-examination, wherein Mr Sithole agreed with propositions put to him which materially contradict the propositions put to him in direct evidence and in respect of which we regarded it an obligation to explore certain evidence before the enquiry. But for the numerous interruptions and objections, in my assessment it would have taken us about an hour to complete the process we sought to undertake. But again, whichever view one sought to adopt it, does not come close to collusion. With respect to paragraph 33.3, we're not sure we understand the nature of the complaint. To the extent that it may be suggested that the Chairperson has made a decision on the evidence leaders written inputs, this is denied. The Chair has had no input in any of the affidavits filed before this Committee. There is no evidence in place to support the assertion in paragraph 33.3 that we can meaningfully address in this process beyond the bold allegation. In paragraph 33.4, the allegations made in this paragraph about the evidence leaders is similarly without basis. Ultimately, there is a five-prong framework which governs this process. It starts with the Constitution, the Powers and Privileges Act, the National Assembly Rules, the Terms of Reference and the directives. We are appointed pursuant to the Terms of Reference. They say the following, I'm going to specifically refer you to clauses 4 and 9: "The enquiry is inquisitorial in nature and the evidence leader does not act as a prosecutor. The role of the evidence leader is limited to presenting the evidence and putting questions to the PP or other witnesses, with the aim of empowering the Committee to assess the merits of evidence in line with its mandate". That we regard to be our primary purpose, to empower the Committee to assess the merits of the evidence in line with its mandate. The format for questions by way of oral or by way of statements with a view to limiting issues in dispute will be determined by the evidence leaders in consultation with the Chairperson. Clause 9 says: "An external evidence leader, other experts, as may be determined by a Committee, and a dedicated team of officials, including Committee secretaries and assistants, researchers, content advisors, and legal advisors will support the Committee under the direction of the Chairperson". Now let me say this, this is the third time I've had the task of being an evidence leader. The interactions with the Chair in the context of this enquiry is in no material respect different to the interactions I've had in previous experience of leading evidence. As the evidence leaders, we regularly interact with the Chair directly, but mostly through the Secretary and Ms Ebrahim, the legal adviser who advises the Chair and the Committee, who is apprised at all material times as to what passes between us and the PP legal team. In fact she's on the WhatsApp group with us. We regularly discuss issues as to the numbers of witnesses to be called, what is limited, the availability of the PP legal team, witnesses, the logistics. There's nothing sinister about these discussions. Particular reference was made to a letter of the Chair which is said to either have been written or heavily influenced by the evidence leaders. I'm presuming it is the three-and-a-half-page letter sent by the Chair on 12 September because I've searched, and I can't find a five-page letter. This letter was written at a time when Ms Ebrahim was on sick leave. I, at the time informed Adv Mpofu thereof. In her absence, the evidence leaders was consulted by another parliamentary team member. I had provided the WhatsApps that had passed. I apprised him of what the factual position was and what had transpired in dealing with the response to the PP legal team request. I was asked for input on what had transpired, and I gave it. Adv Mpofu will be aware that I had liaised with him telephonically, both that Saturday morning and there was a WhatsApp exchange between us that Sunday. Only we would have had knowledge of it. There was no way they could deal with application for postponement without knowing what actually transpired between us. That would have been foolhardy not to ask me. This was provided to the substitute legal advisor. In fact, I asked the Secretariat during the proceedings on 13 September for a finalised version of the letter. Without further detail, we find the accusations of collusion against the evidence leaders to be unfounded and in the absence of details of our conduct, which is alleged to have been collusive, beyond what I can address or what necessitates censure, we can't take it any further than what I've now taken it. But there's three further aspects that has arisen during oral submission today that I must deal with. We provided the witness list before these proceedings which did not reflect any witnesses giving oral evidence on Bosasa. We didn't plan on leading any witnesses on the Bosasa matter, even prior to Adv Mpofu having raised the issue of a subpoena. We similarly didn't plan, when we were planning it, to raise any witnesses on what is encapsulated in the section dealing with charge four and I'll tell you now for a moment why. As evidence leaders, we didn't approach the litigants in the Absa case. We didn't approach the litigants in the DA case. In the Baloyi matter it was an exception because she had been the COO during the proceedings. In support, the actual motion reads as follows: In support of charge four, I rely on the evidence submitted in support of charges one, two and three, the affidavit of Mr Samuel, the notice of motion and affidavits in the matter of Basani Baloyi, which you're all familiar with. Number four, the court papers in the matter of the President of the Republic of South Africa v Public Protector and Others in the Gauteng division, and the court papers in the Public Protector v Gordhan and Others in the Constitutional Court case. as far as we're concerned, the directive is permitted. The evidence that we will deal with, and we will attend to before this Committee, will relate to the court papers. We have no intention of calling witnesses relating to any of the cases in that regard. This brings us to the question of Johann van Loggerenberg and Ivan Pillay. Now we have repeatedly said that this is a novel process, but it's still a parliamentary process that has to comply with the parliamentary rules. Pursuant to that, it had gone out as part of a public process asking the public to make submissions. In response to that, Mr van Loggerenberg and Mr Pillay submitted affidavits as part of the public participation process seeking to give evidence before the enquiry. On an assessment of the affidavits provided during that process we recommended that they be invited to give evidence. In our assessment the issues raised in the affidavits in the public participation process, to the extent they bore relevance to the motion, could not be ignored. That is the context in which Mr Pillay and Mr van Loggerenberg had come to give evidence before this enquiry. It had never been our position that we were going to call any of the litigants involved in any of the cases for purposes of giving evidence. Our approach has not been informed to the extent that there has been an innuendo based on the Public Protector’s stance on the subpoena. It brings us to two further and last points. Our appointment may have been announced in March due to prior court commitments on my part and the delays in the provision of the record. We were only able to really work from May on substantive issues and frankly it’s a daunting task. We started very much on the back foot. Part of, I think, what led to our choice was because we probably had not been involved in Public Protector matters before this. We don't have Adv Mpofu’s extensive knowledge that he regularly tells us about. We were not familiar with the record – the record which the Public Protector’s team would have been familiar with having made representations to the Independent Panel. What we have produced before this Committee is the work product of essentially two months work and a system in which where we have had to draft affidavits whilst leading other witnesses for affidavits. We want to disabuse any perception that's been created that we have had months to work on what we've provided to this Committee. I raise this not because I don't have an understanding for what Adv Mpofu’s…but to put into context how the evidence leaders have gone about this. I have no illusion. I agree with Adv Mpofu that time is required for doing the affidavits. That's not an issue between us. But let me place this on record. I don't enter into gentlemen agreements as a matter of principle for obvious reasons. But I do enter into agreements with my colleagues as a matter of integrity. The word gentleman doesn't sit quite right with me. To the extent that there is an acknowledgment that time is required, that is accepted. I don't think there's an issue about that. The Chair has told us, go and sort this out in the backroom between you. But the issue is not so much about what time is required that concerned. It's the notion of a "last witness and the closing of a case". If it was up to us, our last witness would be the Public Protector, to whom a number of questions arising from the oral evidence and the affidavits filed in a number of court proceedings would be put to her so that she can put her version before the Committee. But because she seeks to place other evidence before the Committee, the process runs in such a way that evidence is to be led before we are able to put those questions to the Public Protector. That in itself may give rise for us saying to the Committee we acknowledge that we would need to apply to do so if any witness needs to be recalled, or any witness that is not on our list needs to give evidence. In fact, I had indicated to Adv Mpofu that there may well be one or two witnesses, depending on the evidence that comes out, that we may want to call. One of the things that happened during the evidence of Mr van Loggerenberg is Adv Mpofu placed on the record that they would potentially call the investigators involved in the Gordhan investigation, particularly about the subpoena. If he doesn't lead that evidence, and we regard it as material that evidence be put before the Committee, we may well have to put in an application before the Committee to do so. But that bridge we’ll come to whenever we come to it. That time required by the Public Protector for purposes of doing affidavits. Let's assume, for instance, this recusal application goes to the Committee and takes three months to determine and it comes back three months later. I would have thought that three months would have been an opportunity for the Public Protector’s team to get their evidence together. Let's assume we come back, and we then lead Mr van der Merwe. What I'm concerned about is we stop at that point, and we then have to break because "evidence needs to be required". I think in not firmly indicating to the Public Protector’s team on what time is required – really depends on what happens after today. From our part, we've not reneged on anything, but we must be guided by the way forward. When we initially had this conversation we looked at very different timeframes to what we're looking at now. We had a block session in October, to which the Committee was readily available for the Public Protector to lead evidence. I'm under no illusion that's unlikely now to be able to be utilised. But it does mean that depending on where we are in a court calendar and other commitments, we would have to go back to a backroom negotiation with the Public Protector’s team on that. Finally, it comes to the allegation that we had put false information before the Committee on the question of legal fees. The evidence was led, because in our assessment it linked directly to clause 11 of the motion. We note that orally it was said that Seanego received only about, I think, Adv Mpofu said between R27 to 29 million. In the written submission it said under R40 million, of which only R10 million less VAT had been received directly. Let me say this, the amount I indicated during oral submission of R49 million was provided by the Public Protector’s Office. I recall indicating when I reflected that R148 million was the cost of legal fees, and I've said this even when we led the evidence on costs, that that includes labour fees, court orders, litigation costs and that one needed to dissect that amount to ascertain precisely how it was spent to make sense as to whether it was a reasonable sum or not. That evidence hasn't yet been laid. Finally, there seemed to be some suggestion that on the basis of evidence put up by the evidence leaders, this had resulted in a fraud transaction. Nothing to my recollection had been put up that reflected bank details from Seanego. Their letterheads are publicly available on court papers, CaseLines, many other papers. I am also informed now on what had occurred having ascertained. I'm advised that it was a bank confirmation letter received from an employee at Seanego’s email address. It did not relate to a letterhead from Seanego that may have emanated from this enquiry. It does beg the question on how anyone watching these proceedings would have known that there was a payment coming to Seanego. But that's not my problem. That's a problem for whoever's investigating that. I simply want to say that to the extent that there's a inference that anything we have evidence leaders have put up has led to fraud, we strongly reject that. Thank you, Chair.
Chairperson: Thank you, Adv Bawa. Any issues, Adv Mayosi? Thank you. Hon Members, you clarities? Hon Zungula.
Mr V Zungula (ATM): Thank you, Chair. Mine is not a clarity for now. I'm still coming to the clarity. However, I wanted to raise two things, Chairperson. The first one is the number of people or the Members of this Committee that are not presently in attendance. You will note, Chair, that you have a lot of Members who were previously engaged in the proceedings from the GOOD party, UDM, Freedom Front Plus, EFF, which are not here. Now this process in my view, Chair, is very important, which requires, firstly, a multi-party contribution coming from the different parties. Therefore, the fact that we are going to proceed in the absence of such Members who play a critical role in this process. I think, Chair, that is not something we should do. We should rather wait. Because if you check the people that are in attendance in this meeting. Largely from two parties, the ANC and the DA, and Parliament has got 14 parties in total. Now if there's only going to be two parties that are engaged in this process of the recusal, I think, Chair, it would not be doing justice on the matter. That is the first point I want to move, Chair. Hopefully we'll get a ruling that for the benefit of fairness, for the benefit of having an inclusive process let's suspend proceedings for this particular issue until those Members are back. That is the first thing. The second thing, Chair, I wanted you to have a view on, is that you are presiding over a recusal application of yourself. Does it make sense that you preside over something that is about you? I have no doubt that there'll never be fairness. There'll never be impartiality on such an incident. I know some judges do that. But I don't think, Chair, it would be wise for you to preside over a process that is for the recusal of yourself. So those were the only two issues, Chair. Should you rule otherwise then I'll have no other option but to actually raise the other issues – the clarity seeking questions. But for now I wanted to raise those two issues, Chair. Thank you.
Chairperson: Thank you, Hon Zungula. Hon Dlakude.
Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. Good afternoon, Adv Mkhwebane and your legal team and our evidence leaders, my colleagues. Hon Chair, let me start by correcting something here, which is also raised by my colleague Hon Zungula. Just to put on record, that in this meeting is not the ANC and the DA only. He’s a member of the ATM. He is not a member of the ANC or the DA. We have Members representing the PAC, ACDP, AIC and IFP. So those are the members of the parties which are represented in this meeting. I will also go to the rule book, which is our guiding document. Rule 161 Meetings of Committees. I'll quote: 161(1): "Committees meet whenever necessary and as determined in accordance with these rules. The decisions, directives and guidelines of the programme committee in accordance with Rule 210. (2) A meeting of a Committee may be called in terms of (i) the Chairperson of the Committee (ii) by the resolution of the National Assembly". We don't have a rule, Hon Chairperson, that says because some parties are not part of the meeting, then a meeting cannot sit. We don't have such a rule. Then, Hon Chairperson, Rule 162 says that it's only a quorum that is required for a Committee meeting to sit. If we have a quorum, then any Committee of Parliament can sit. Now coming to the matter before us. Hon Chairperson, we are noting the seriousness of this application as a Committee. We would therefore request that as a Committee we be given enough time to process to go and look into this matter. We cannot come up with a decision today as this Committee because of the seriousness of this matter with regard to what Adv Mpofu raised in the application. We don't take it lightly. We need as a Committee to apply our minds so that when we arrive at a decision, it wouldn't be seen as if that decision is biased or anyhow with the assistance, of course, of the legal unit of Parliament. So that would be my submission, Chair. Thank you very much.
Chairperson: Thank you, Hon Dlakude, for that contribution. Hon Lotriet.
Prof A Lotriet (DA): Thank you, Chairperson. I will also confine myself now to the matter raised by the Hon Zungula and concur with what Hon Dlakude has said and perhaps just add the following, Chairperson. I think we have to understand that what we are busy with here is Parliament's work. We are here to represent the people but for Parliament's work. If it should happen that there are some overseas strips on study tours, which I presume, I stand corrected on this, is not a formal parliamentary trip, then Parliament's work gets precedence. Therefore, parties have the responsibility in terms of their leaders and whips to ensure that they do have representation. If there is another member of a party, then that person should be present, should be taking notes. Chairperson, quite frankly, it has happened regularly, that members who travel overseas and have important parliamentary work can connect online. I think the whole notion that work should stop because a number of members are on some study tour, which I'm not aware of, what it is and whether it has been sanctioned by Parliament or is parliamentary work. We cannot see to a request that the Committee's work now just stops. Thank you. That's all I want to say at this point, Chair.
Chairperson: Thank you, Hon Lotriet. Hon van Minnen.
Ms B van Minnen (DA) Thank you, Chair. Mine’s a point of clarity. Do you want me to raise it now or do you want to resolve this issue first?
Chairperson: No, you'll raise it.
Ms van Minnen: Thanks very much. It pertains to B9, the ninth ground on the refusal to postpone on 13 September 2022 / availability of legal representatives. If I remember correctly, the issue was raised after 9:00 in the morning and the reason for that is relevant. If I remember correctly, the application had already been lodged with the High Court. It wasn't that the representatives weren't available. It was the fact that they had been working all night and therefore were very tired. I just want clarity on that and if I remember that correctly. Thank you, Chair.
Chairperson: Thank you, Hon van Minnen. I hope that will be clarified. Hon Mananiso.
Ms J Mananiso (ANC): Thank you, Chairperson. Let me greet Adv Mpofu and Adv Bawa with their teams. Chair, let me start by saying I'm covered on two issues that Hon Dlakude has clarified – the one of the quorum and the second one that we actually go through this particular application and get some legal advice on the decision. However, can we be given some clarity on B7 on witnesses that came before us who are seen as not relevant for this particular process. Perhaps if we can be given that list specifically of who are those people who came before us who are irrelevant? Chairperson, one would want just to comment to say that this particular process from start, some of us have been noting these particular processes [speaks in her vernacular].
Chairperson: You can explain so that the Chair can understand that?
Ms Mananiso: No, it's Heritage month. I cannot explain. You can Google – the nice thing is Google has translation. You can Google and find out what it is that I'm talking about. However, one would want to say that – at least I've been part of this particular process from when we started as the Portfolio Committee – I agree with Adv Dali Mpofu that the directives and the NA Rules are our Bible. I believe that in this particular Committee we've actually tried to by all means to apply the Bible. However, one would want to indicate to both of you as evidence leaders that you could have failed us. People who have interest in this particular matter is the community. You have failed us in the sense that I remember Hon Seabi once indicated that they must have this backroom so that we don't find ourselves where we are today. It really shows that your backroom was not effective as it was supposed to be and you didn't do what you were actually delegated to do. Hence, we are here and it's so disappointing, Adv Mpofu and Adv Bawa, as you know, learned friends. It's so disappointing that we are here now dealing with recusal and other issues.
Chairperson, one would want to affirm that throughout this particular process, the word bias / fairness has been, you know, part and parcel of our discussion. One would say that you've been fair in this process in the sense that there was a time where as an individual I felt that you are just making Adv Mpofu abuse us, you know. Repeatedly, you're taking us back to other issues that he has elaborated on. I think fairness has been at play in this particular Committee and perhaps we need to do more as we will be continuing with this particular process. That's what I just want to say. Adv Bawa, Adv Mpofu, do the right thing. You're equal to the task. We cannot deal with this issue while we’re supposed to be on the other stage of this particular process. It is a first-time process in the country. We know that there would be trial and testing errors where some of you would do whatever… that you never thought that you will do. Adv Dali, I thought you were going to indicate as well that there were times where on this particular platform, you issued out threats, not warnings. You issued out threats in the sense that some of us felt that it's as if there are other issues besides this issue with you and the Chairperson. If one could take this particular document and change the sides upside down, there are so many things that one would say that Adv Mpofu, yourself, you need to even try to apply emotional intelligence as well because there were times that you insulted other people here. That’s what I can say for now. Or undermine them in how you were talking, undermining, interjecting when people were on the ground / on the platform. You were interjecting and the Chairperson would overrule Hon Mileham.
Adv Mpofu: Chairperson, I need protection. Otherwise, I'll protect myself.
Ms Mananiso: Okay, I withdraw the word and I apologise unconditionally so.
Adv Mpofu: Okay, Hon Member.
Ms Mananiso: But please note that some of us, we felt that in this particular process, we have been undermined in terms of the language that you were using in this particular Committee. So that's what I can say, Chairperson. Thank you.
Chairperson: Thank you, Hon Mananiso. Hon Seabi.
Mr A Seabi (ANC): Thank you, Chair. greetings to all in the House and on the platform. I'm a bit confused. Maybe it's because I didn't start with the meeting this morning because I was in another meeting. Of course, it's something that I will present in our in-Committee meeting. I thought there was a presentation by the Public Protector, through her representative, and there was clarity from the side of the evidence leader. That's why I want to support the submission by the Deputy Chief Whip that we heard the two sides and as a Committee we must sit and adjudicate on the matter, considering its seriousness. That’s why I'm saying I'm confused if we go into deliberations now. But at the same time, if we ask questions…
Chairperson: I have given an opportunity for clarities and questions. You are at liberty to ask questions or clarities from what has been presented. The deliberations are going to come at another point, not today. You are on point.
Mr Seabi: That's why I'm saying I'm a bit confused because it might mean Adv Mpofu must come and present again. It might mean Adv Bawa must come present again. That's why I'm saying for me, it creates a problem. I thought we'll say we've listened to them, then it must be an opportunity for the Committee to discuss what they've presented. We have legal backing. They are here. They are listening. Where we need legal interpretations, we know that we have that assistance. That's what I want to present because if the Deputy Chief Whip has suggested and I know there was secondment from the DA member. I thought that's the direction we can take so that we don't 'go there' otherwise we're going to fall in Hon Mananiso’s trap. We move on.
Chairperson: Thank you, Hon Seabi. Hon Siwela, Zungula and Hon Nqola.
Ms V Siwela (ANC): Thank you, Chairperson. Greetings to our evidence leaders and to Adv Mpofu and Adv Mkhwebane and my colleagues. Chair, I think the latter speaker has covered me. I want to support that. Can you hear me, Chair?
Chairperson: Yes, we can hear you.
Ms Siwela: Thank you. Chair, I think it’s good to receive what has been presented by Adv Mpofu and limit ourselves to discussions, as the Committee. We need to be given an opportunity to go and look at it. We also require assistance from other legal gurus because indeed, we don't want to fall into a trap. We were quiet all the time during these proceedings, not that they're not issues which we are observing. But because we respect this process, we respect our legal gurus, and we want this process to unfold smoothly. Now I want to support Hon Dlakude that in terms of rules, we don't look at issues of political parties. I think we need to clarify this once and for all. We are a Committee, not to protect political parties. We are a committee of Members of Parliament which has been appointed to execute a responsibility under Section 194. The issue of quorum is critical. If the quorum is there, we proceed with the business of the day. We won’t wait and we want to be mindful that we need to conclude this business according to the timeframe, which has been adopted by this Committee in terms of the National Assembly Rules. I want to confine myself with those latter speakers that we received the presentation from Adv Mpofu and then we go and engage so that we are not seen as if we are biased. That’s my submission, Chair. Then again, I will also request the Members check National Assembly Rule 210. What does it say? It will assist all of us here on the issue of the Chairperson chairing this meeting. The Chairperson has not yet been dismissed. He’s still the Chairperson of this Committee as appointed by the Speaker. He is still the Chairperson. The question of why is he chairing I think needs to be clarified. We're in a situation where we need to engage; but know that the Chairperson has been found guilty to chair or not. I will pause here, Chair. Thank you so much.
Chairperson: Thank you, Hon Siwela. Hon Zungula? Hon Zungula, you said you would raise clarities later?
Mr Zungula: No, Chairperson I would ask that you make a ruling first because I raised an issue that I think requires a ruling from yourself. Once a ruling has been done, then we can proceed. I find it’s going to be confusing and all over the place, Chairperson, if we are going to be dealing with many issues at once. The issues I was raising require a ruling so that we know that a decision has been made. This process, meaning the interaction based on the application by the Public Protector’s legal representation, we're continuing with it. But if we're going to be speaking many things at once, we won't know whether we’re coming or going. To put into context, Chairperson, the issues of the Committees of Parliament, they operate somewhat different from how this particular process is operating. Hence you find in a normal Portfolio Committee there's going to be set members whereby the ANC has seven members, the DA, two members of three members; the EFF one and the other so-called smaller parties will have one or two members. Whereas in this particular Committee, that is not the approach. The approach here, as communicated by the Speaker, was that all parties must be part of this process. Hence, I raise that even in this particular meeting, there's only two parties participating with the exception of myself from the ATM. It’s only the ANC and the DA. That is why I was raising this in light of the manner in which this Committee has been configured. It would be prudent to wait until there is proper representation of the people who, firstly, were part of this process and, secondly, ensuring that all parties are represented in that meeting that will deal with the application. That is what I wanted to stress, Chairperson. The second issue is that we're dealing with an application to recuse yourself as a chairperson. I do not think it is wise for you to preside over such. Perhaps you could search or get legal advice on how you should proceed with this; but I do not think, Chairperson, it is wise for you to preside over a session or over an application that deals with your conduct as chairperson. You must make a ruling. After you've made the ruling, then we'll know how to proceed. Thank you.
Chairperson: Thank you, Hon Zungula. They're competing now each one of them wants to… I'm trying to assist Zungula first before I note both of you. I still have a Member. A ruling will be made, Hon Zungula, by the Chair on the issue that you would have raised. Adv Mpofu and Adv Bawa?
Adv Bawa: We both want to say the same thing.
Chairperson: I don't know how do you…
Adv Bawa: We’ve communicated telepathically across. We note the Members concerns. It is a standard practice that when recusal applications are brought against a presiding officer that that presiding officer presides over that recusal application. It's commonplace. It happens all the time. I think Adv Mpofu and myself are in agreement that you should be the person that presides over it. We hoping not to waste further time on that aspect. We thought we would just place that on record.
Chairperson: Thank you, Adv Bawa. Adv Mpofu?
Adv Mpofu: Yes, Hon Chair. That is correct. I thought for the sake of progress. We were signalling that. On the first issue of the quorum and the peculiarities of this Committee, I said even when I was addressing it’s your…
Chairperson: I will attend to that.
Adv Mpofu: It’s your Committee, Chair. But on this second issue, Hon Zungula is incorrect. On who should chair this meeting, as Adv Bawa has explained, we thought for the sake of progress, maybe instead of taking it to the parliamentary legal people, at least, if both of us are saying the same thing as Adv Bawa’s saying, then we can move away from that point. It is standard procedure that, in fact, in one of the extracts that I read out it was actually put that one of the awkward things about the recusal is that you have to raise it to the person – whether it's a judge or the Chief Justice or whoever. You have to raise it to that person, because that's why it's called recuse yourself. It's because you are being asked to recuse yourself from those proceedings.
Chairperson: Thank you.
Adv Bawa: Chair? Sorry, I don't mean to interrupt. Through you, Chair. May I say something? Given the unusual nature of this process, it may be something that you take back to the Committee that it may well be that certain aspects is a Committee decision, given the powers of Parliament and the way the Committee is structured. I won't say anything further – all we’re limiting this to is the question of presiding.
Chairperson: That’s fine. You’ve covered your point. Don’t elaborate any further, please. Switch off your mic as well. The point is covered. Thank you. Hon Xola Nqola.
Mr X Nqola (ANC): Thank you very much, Chair. I hope I'm audible. We are mourning the untimely passing of electricity on this side.
Chairperson: You are audible. Go ahead, Hon Nqola, in your mourning.
Mr Nqola: Thank you very much, Chair. One, I think you have said, let us ask clarities from Adv Mpofu in respect of the application, and then get into the Committee process. When you said get into the Committee process, my understanding was that it is then that we're going to entertain whether we meet a quorum in terms of us being eligible to take a decision on this application. Who's here, who's not here and all that. The other aspect, Chair, which I think both Adv Mpofu and Adv Bawa have covered me on is the issue of preside or not preside. I wanted to make an example of the recent case against Pastor Omotoso, where he made an application against Judge Mandela Makaula, who presided over that particular application. I don't understand where this thing is coming from that there is one person and that there was a blah, blah, blah, blah, blah, blah. It's completely not there. But, of course, we're going to have time to deliberate on the contents of the application itself. The other issue, Chair, I wanted to raise – I particularly raised my hand way before Adv Mpofu delivered the application in the Committee – is one that I have seen the public yesterday was already in discussion through social media platforms on the grounds that Adv Mpofu is making an application on. I do not think, Chair, necessarily that it would be a professional way of working, that an application is brought to us by Adv Mpofu but whoever was having the appetite did inform the public about it without it being first entertained by this Committee. I think every party in this enquiry, Chair, must exercise maximum professionalism in that we don't take to the public matters that have not yet been tabled before this Committee. Chair, I want to plead with all of us, that whatever documents are shared to us as Members, as evidence leaders, as the Chair, as the Secretariat, as the staff, as the Public Protector legal team – documents meant to be tabled before this Committee should not be shared with the public until such time that this Committee has made its determination on the contents of those particular applications or whatever form of document. I have one clarity, Chair, because my understanding is that we are still at the stage of Adv Mpofu delivering the application to the Committee. When we ask questions, he is still on the platform to clarify those questions. We are in that stage; we have not passed the stage. We have not deliberated. We have not gone to other issues. My question on one aspect in the application which speaks about the timeframe between the last witness called by the evidence leaders and the first witness called by the Public Protector. There is an issue about one day / two weeks proposal. Part of what I want to check, Chair, is that even in the correspondence, there have been a number of extensions on the submission of the witnesses list of the Public Protector. Now my first question is has there been a conclusive witness list agreed on by parties of witnesses brought by the Public Protector to the enquiry? Two, Chair, if you check the application, paragraph one speaks about rules but I want to single out the issue of reasonable time frame. How do we balance what Adv Mpofu calls the fairness of the time granted between witnesses, which is two weeks they requested, and the actual reasonableness of the time that we must proceed with the enquiry? The last issue, Chair, is that I want to second the proposal by Hon Doris Dlakude that the Committee note the application by the Public Protector for the recusal of the Chairperson and Hon Mileham. Then the Chairperson arranges a legal opinion in the matter from Parliamentary Legal Services. There is a backdoor although Hon Mananiso said it has collapsed, but there must be a backdoor arrangement that will determine the date at which the Committee will actually deliberate solely on the recusal application. I wanted to second that as well, Chair. Thank you very much.
Chairperson: Thank you Hon Xola Nqola. Hon Maneli.
Mr B Maneli (ANC): thank you, Hon Chair. Please my apologies for not opening up my video. I'm in transit just to get connection. I think for me, Chair, I will confine myself now that the way forward is clear on how the matter will be handled post the item you are on. Just to have clarity as at the time of deliberations, we may not have the Public Protector’s legal team. I want to check, Chair, because you said that we would come back to the matter about Members who are not present. This was emanating from the presentation made by Adv Mpofu, where he referred to those Members specifically and the reasons thereof. Just to be sure, this was on the basis of information forwarded to him, even though we were not aware at the time. Really it's clarity on whether that would not constitute holding a brief for them? Because we would expect that to come through this process. It's really to understand it. This question is linked directly to what is also in the body of the application, where reference again is made to political parties that may agree and political parties that hold a different a different view. Then given the conduct in that regard, to check again whether it is just a general point or whether he understands it may be that another view is it can also be construed as dividing the Committee from those that he believes may be reasonable to his own way of looking at things and those that just be showing bias. Now this is important after the clarity about parties versus Members of Parliament represented in this Committee. I think it's important that all the time we make input, we also want to be sure that he is not prejudiced in approach. That before you even say something, because you are located in that group of parties, he perceived in a particular way that your input may not even make sense on that score. It's important to clarify that. The last point, Chair, I want to check if I heard him well when he made the conclusion that indeed this is not a tactic of trying to avoid an outcome – because there's no outcome. I think this was how he was putting it. However, the point he emphasised was that anyway the Public Protector has no case to answer. For me, the clarity I would need is whether he makes it as a general point on the basis that anyway he would have had that view. Or this is on the basis of having listened to evidence led and he came to that conclusion? That it's not about what could be the judgement but based on what he has gone through so far that the client, or the Public Protector in this case, has no case to answer. I want to be sure that I have heard these points well, because in his absentia I may not have the chance to clarify so that I can change my notes if there's anything. Thank you.
Chairperson: Thank you, Hon Maneli. The last Member, Hon Gondwe.
Dr M Gondwe (DA): Thank you very much, Chairperson. I have one question for.
Adv Mpofu: Sorry, Chair? I hope that Hon Gondwe doesn’t take it personally that…
Chairperson: Switch off your mic for now. Adv Mpofu?
Adv Mpofu: It was just a matter of clarity. Well not even clarity, it was a request but I'm subject to your ruling, Chair. There's quite a lot of… number of issues that have been raised. Whether we can do this in two rounds so that I can deal with some of these because otherwise…
Chairperson: She's the last one.
Adv Mpofu: Okay, thank you, Chair.
Chairperson: Hon Gondwe.
Dr Gondwe: Thank you, Chairperson. I just have one clarity seeking question around the application. Paragraph 81, Adv Mpofu, you make reference to the DA attaching witness statements of the Section 194 Committee to court papers. Then you also talk about a confidential witness list, and you talk about potential witnesses. In the course of your submissions, you made reference to the fact that you had not consulted with some of the witnesses or something to that effect. I'm also trying to get clarity and I'm piggybacking on the question by Hon Nqola around your witness list, because at this point my assumption was that you should have already submitted your witness list. It should have been finalised. Have you consulted with your witnesses because you make reference to them as potential witnesses? Then on the confidential witness list, I wanted to clarify why your witness list is confidential because the assumption is that they would have to appear before the Committee. Then you mentioned that the DA attached the Section 194 witness statements to court papers. Are those statements pertaining to your witnesses that you would like to call for the Public Protector? I just wanted clarity on that. Thank you.
Chairperson: Thank you, Hon Gondwe. At this stage I'm going to invite you, Adv Mpofu, to pick up on all the clarities that were sought on the application. Thereafter, I will make a summary and the way forward.
Adv Mpofu: Thank you, Chair. Let me start with Hon Gondwe, while it's still fresh, because I think hers are quite easy issues to just get out of the way. No, Hon Gondwe, just a bit of background. The list that we submitted to the Chair, can't remember now when, we were given some deadline to provide the list of witnesses. We provided it under the heading of provisional witness list. If you remember, the Chair announced here the day after we had provided that list and he specifically called it a provisional witness list. That was because of the heading of the list that we gave him. So that covers your first question. The explanation of why we call it a provisional list. Well, let me put it this way, the reason we called it the provisional list is because it is a mixture of all the witnesses that we intend to call. That would involve witnesses that we've consulted with and those that we have not consulted with or those that we might have wanted to be subpoenaed, for example, because they're not willing to come voluntarily. That's how a witness list gets compiled. The same when we got the list from the evidence leaders. It was a list of all sorts of people. Some of them were called, others were not called, others were subpoenaed, others came voluntarily, and so on. So that's an answer to whether we've consulted with all witnesses. The answer is that with some of them; obviously not the unwilling ones or those that we had not been able to reach at this stage. But that's not even the problem, Hon Gondwe. The problem is not whether we've consulted or not consulted. The point we were really making is that the DA put in its papers that list. That comes to your second question, why is it confidential? It was wrong for the DA to do that because that list is by its nature confidential. I explained to you why. The evidence leaders made a point of informing us that their list was confidential. That's why we made sure it doesn't even reach… It could have been very juicy news if you saw some of the names there. But we honoured that arrangement because you know it can drive witnesses away or just invade people's privacy unnecessarily who may not even ever be called as witnesses. So that's why it's confidential. As I've said, it has already happened to us. Some of the witnesses are already reticent exactly because their names have been bandied about where we had provided them with a guarantee of confidentiality. You're obviously right that, ultimately, if those people come to testify here they're not going to testify in camera. They'll be sitting there. But that's a different issue. Once they're here, then obviously it would mean that they have waived whatever confidentiality. But it's not fair for me to say it about the list I have, Hon Gondwe. It might turn out that you might want to change your mind, or you might never even be called, but you will always be identified as that person who was once prepared to testify. So that's why it's confidential. Then there was the witness statements. No, the witness statements are not of our witnesses. Witness statements attached by the DA where the people that I mentioned, Ms Mogaladi, Ms Motsitsi, Ms Thejane. I can't remember the other one. Our objection there was simply that to put those statements in court papers is disingenuous, and there's no other word for it. Let me give you an example. You put a statement, who was it, Baloyi? I'm not even sure if her statement was there. But I'm just using it as an example. You’ll remember one of the things – we've been joking about it here – is that she said the Public Protector wanted to be called madam or to be bowed down to. When a question was put to her, it was clear that that is just an imagined kind of situation. If you want to put in that statement, then you also have to put that statement was since retracted or qualified or whatever. You can’t just put it in court papers before judges who don't know that this person actually retracted the statement, or it was discredited by other witnesses. So that was the point we're making. Okay. It's wrong for the DA. Anyway, while I'm there, I might as well deal with one of Hon Maneli's issues because it's related to that – as to why there is a reference to political parties. There is a reference to political parties, because political parties are represented in this Committee, as it was explained. I mean, we all know that people, we're not naive to think that people are just here representing their jackets. They're here representing their political parties by design. Of course, Members have taken an oath of office to act according to their conscience, and so on. That principle was established in the case of the UDM v Speaker of the National Assembly in the so-called secret ballot case. But you can’t run away from the fact that people are here representing parties. That's why there's proportional representation. There's so many for the ANC, so many for the DA, so many for the EFF, so many for whatever party. It’s political parties. It's not a secret. It’s not some secret that we must whisper about. It’s a fact. So that's really the context in which it was raised. Then, while we're with Hon Maneli, whether it was a general point. Okay, I've dealt with that. Dividing the Committee, well, I have no interest in dividing the Committee. But it's true that people are here representing political parties. Or whether they come with mandates or not, it's not for me to say but they represent their political parties. Holding a brief? No, I don't hold a brief for any political party or political parties. I speak to all members of political parties here. Even here, again, that's not a secret. I speak to them here in front of everyone. Some of them I’ve known for half of my life. Others I have, you know relationships that go beyond this. Some of them are even my clients. I don't hold a brief for them in this particular… I might hold a brief for them in other court proceedings, like I do for General Holomisa, for example. I'm not going to stop talking to him about other matters that I'm involved in with him just because there's this Committee. The point I was making there was not holding a brief or whatever, it was that the Members… The point that was raised was not so much the absence of Members or the issue of a quorum. It was that there had been, and that's why I was raising it with the Chair, there had been a specific communication with the Chair that there would be no sitting this week, and therefore, some people were comfortable to go elsewhere. They might have chosen to stay here, maybe. I mean, I don't know. But we've already said, that's a matter for the Chair. Even when I raised it I had said that I don’t want to enter that space. But I also don't want to participate in a meeting that is not properly constituted, if it is not. If it is, it is, that's fine. But it's my duty as a professional to raise it with the Chair. If there was no quorum, for example, I would have said, Chair, have you noticed that there's no quorum? Otherwise, we will all be sitting here wasting our time. The fairness? No, Hon Maneli. What I was saying about the fairness of the Public Protector’s view of the merits of the case. I was saying it in the following context. I was saying she does not believe and neither do I nor would any reasonable person believe, that there's been anything that has been said here that constitutes an impeachable offence. The point I was making is, it's that dilemma that was referred to by Justice Ngcobo. If you wait until the outcome, then you can run a process which might take months. Let's say it's a trial, months and months and then at the end you ask for a recusal. That's one way of doing it. But that way is not recommended because it would mean that you're just wasting time when waiting for the outcome. So that's the first thing. The second thing is that if you do that, you can also be accused, rightly or wrongly, that you're only doing it because the shoe is pinching, because you don't like the outcome of guilty or not guilty or whatever. Then suddenly you'll find all sorts of retrospective reasons why there should have been a recusal. That's why the Constitutional Court says you must raise it as soon as you have the reason. I think the Court said, where the litigant has knowledge of all the facts upon which a recusal is sought. It is not in the interest of justice to wait until an adverse judgement before raising the issue of recusal. So that's obvious. I was saying in this case, we don't even have to wait for the so-called adverse outcome, because if there's any justice there'll be no adverse outcome. But we're still raising it now. It was also in the context of turning this into the CCMA and having all sorts of witnesses who wouldn't speak to the issues. But that's a debate for another day. Okay. Hon Nqola, I agree with you 100%. It's not the first time that this is happening. Where there's a matter that's going to be raised in this Committee it should not play itself in the public domain. It's the same issue, the same complaint, you should at least accept that I agree with you because that's the same complaint that we're levelling against the DA of putting in the public domain documents which are, strictly speaking, only before this Committee. We don't know why they did that. But we have no control over what Members do with their own documents. If Members decide to give documents on Twitter or whoever they want to give it to, we have no control over that. I suspect even the Chair doesn't have control of what Members do with the documents which they get given legitimately but might use for illegitimate purposes. It's just people's discipline that we can rely on. We can’t say the Chair must not give people documents, but we assume that everyone understands the protocols and so on. It's regrettable. The only thing we did was to send the application to the Chair and I'm assuming the Chair sent it to the Members. What the Members did with it is not our business. But I agree with you. The next issue is the two weeks. Look, I don't know why this is misunderstood. The reason I've been at pains to find words to even describe it, is exactly what you're saying. There was no agreement in the true sense of the word. It was an understanding between us and the evidence leaders and the Chair. If it was an agreement, I would tell you. I don't want to accuse people of things that are not there. It was not an agreement. It was an understanding and Adv Bawa is right. Even that understanding was not rigid or cast in stone on the 12 tablets. It was a moving target. If the evidence led us in a particular way that those two weeks would also move. It's not like it was from this particular date to that date. But what I was just explaining there was that understanding, why we even made that request, whether it was accepted or not. I've explained, I don't want to go into that as well why we needed that period. Adv Bawa’s right. I don't… it's not a criticism of that evidence leaders or I'm not saying that they had 100 months or whatever. I don't care whether they had a month or two months, whatever. I'm just saying, anybody who's preparing to lead witnesses requires a period, whether it's one day or two hours or two minutes is irrelevant. It requires a period where you check the evidence of the other side, cross out certain witnesses that you might have thought you need but don't need, re-sequence your witnesses, re-consult if you need to on certain issues that might have arisen. For example, now we have two witnesses – one or two of those witnesses might say something that might lead me either to eliminate witnesses or to add witnesses. I've said that. The Chair will tell you, I can't remember which witness it was, where I said I'm going to give you propositions, if you agree on these propositions, it might eliminate my cross-examination or even witnesses to call. Why would I call someone if the evidence has been conceded, for example? It's that kind of management process. It happens in every situation, particularly of this magnitude, where there’re so many witnesses. If it's a big criminal trial, there'll be a short break between the evidence of the prosecution with 100 witnesses and starting the other witnesses. Okay, but anyway, that's why we wanted the period. I’m just saying it's unfair the way it panned out. Has there been a conclusive list of witnesses, Hon Nqola, I've already answered that question when I was addressing Hon Gondwe. The reasonableness of the two-week thing, again, there's no… I don't know what the reasonableness is. In my view, two weeks is reasonable. Maybe I need three weeks. Maybe I need less or whatever. There's no… it's not written in any book. It just depends on each particular process. Reasonableness can be judged by others. This is the perspective that needs to be put there. The evidence leaders, when we had meetings with them, had informed us that they will finish their last witness on 26 August. That did not happen. It's not their fault. The evidence just took us in that particular direction. Then they told us that they would finish on Saturday, 10 September. That's the Saturday where we sat here. Also that did not materialise because, as I say, you can't control these things. And that's why I was saying the two-week thing was a moving target. All we're asking is the same understanding that if things don't work out in the way that we might have predicted, you know, there should be flexibility. We can’t say now the 26 August became 10 September and then it became something else, but the date on which we have to start remains the same. I mean that’s just blatant unfairness because as that date moves, it's then shrinks the period, the so-called break period. Hon Nqola, I’m sure it was a slip of the tongue. He was referring us to a backdoor process with the Chair. We don’t want a backdoor process with the Chair, it’s the backroom.
Mr Nqola: Yes, backroom, Chair.
Adv Mpofu: Thank you, Hon Nqola. Adv Bawa and I will not participate in a backdoor process with the Chairperson or anybody. Okay, so alright. That covers those. The last. No, there were two. Hon van Minnen asked about the application, yes. No, the application for postponement was not because the legal representatives were tired. We wouldn't have known on Sunday already that we're going be tired on Tuesday [13 September]. We started on Sunday. I think I traced it on the day. But basically, the timeline was this, Hon Member. You'll remember that on Saturday we had Ms Thejane. We finished around 6pm. When we finished, I said I want to raise something for the record. I said we have just now been involved in this urgent application because the DA had served us papers the previous night. Unfortunately, I couldn't even… The reason I didn't sleep that night is because I had to deal with the DA application which arrived at 8pm and prepare for the cross-examination on Saturday. So that's what I did. When we finished the evidence of Ms Thejane. I then raised it because I didn't want members to be brought here the following Tuesday in vain. I said there's this possibility, but because it's late in the day, we'll deal with it in the backroom, not the backdoor. On Sunday, I then initiated the backroom process by sending a WhatsApp to evidence leaders. I said, it was even before the President, I think, came into the picture. I said it looks like we're going to be involved in this thing. No, it must have been after because the President had already said that they wanted more time or whatever. Then the feedback I got from the evidence leaders, I can't remember now was that, no, this was not acceptable to the Chair. So that's why we then wrote a letter on the 12th, which was the Monday, to the Chair to say please now we’re formalising the thing outside of the backroom. Please there are these developments. The Chair wrote back and said no. That's why we sat on Tuesday which is what we had been trying to avoid from Saturday. We sat on Tuesday, because we had no choice, we had to come here. We then said this is the situation we are now – everything that you must have heard – inundated. There are now almost two or three other parties more than Saturday and on top of it the Public Protector is not feeling well, which obviously we wouldn't have known before that morning. And the rest, you know what happened. The thing about the 9:00 deadline was just something I was... When the Chair then asked me the minute details now what are you actually going to do. It was raised in that context. I was illustrating to him that actually even now at 9:00 when I came here, I had just met a deadline. I would not have been able to prepare for the cross-examination of Ms Thejane, for example. It was only in that context but that was not the reason why we asked for the postponement. List of witnesses. No, I think that was your only issue. Chairperson, I really take strong exception to what Hon Mananiso has done. I want to thank the Hon Member who tried diplomatically to call her to order to say we are now here, we're not in the deliberations. In your deliberations you can do… you can insult me as much as you like. But it's not correct now to use this platform of clarity seeking to say the things that are false and not true. Secondly, it will clearly have to be responded to by me; I don't want to enter that space. In actual fact, I know the Member withdrew and I accept that. But for her to have said that she was of the view that I abused them or whatever and saying that I've insulted anyone. I've never insulted anybody here. Never, not once. Otherwise, you must tell me who I insulted and what the insult was. Instead of complaining about abuse, she was actually abusing me. I don't take kindly to being abused, as you know. But I accept the withdrawal of those statements. But insofar as the Hon Member saying that we should do the right thing, I agree with her. I'm just simply saying the backroom was not just myself and Adv Bawa. It was myself and Adv Bawa and the Chairperson. He must do the right thing as well. At the moment the right thing is the recusal application. I accept again the criticism that you give to us, at least my part of that criticism. Where you were saying that it means the backroom failed. Obviously, if things were managed properly in the backroom, as I've explained now to the Hon Member. For example, the sitting last Tuesday should not have happened at all if the backroom had happened the way it should have happened. We should not have sat here. There should not have been so-called threats or doctor's notes and all that. It should not have happened. I tried from Saturday to prevent that sitting from happening. Everybody who’s honest, knows that. I tried on Saturday. I tried on Sunday. I tried on Monday. I tried on Tuesday morning, as I've explained here, to say we should not come here to sit even before I knew that the Public Protector was not well. Even worse then the Public Protector fell ill. If you want to blame me for that, I'll take the blame. But, you know, I can't unless if you wanted me to put guns on people's heads, which I'm not inclined to do. So that's really what we tried to do. The Public Protector tried everything in her power to prevent this. But of course, we were blamed. We are the ones who should be lynched and burned at the stake. That's fine. Between a rock and a hard place in English. But you… B7. Oh, yes. Hon Mananiso, you said you wanted a list of the witnesses who were not relevant. Okay. We'll supply you that list. I don't know it offhand but let me just give you an answer that might tease your mind. I think it started with the witness, Neshunzhi. Before he testified, I made a presentation in the morning to say this witness is irrelevant for this and that and that reason. The Chairperson made a ruling to say – I've already said – well, we'll deal with it when we deliberate. Which is wrong. Well, there's nothing we could do, again, you can’t stop the Chairperson from listening. Even when I was cross-examining that witness, I said, well since you are here, I have to ask you some questions. That happened with the next witness. I can't remember now the proper sequence. I made the same objection. The Chairperson overruled it. It happened again with the third witness. I made the same objection. The Chairperson overruled it. Now I might be many things but I'm not mad. I can't keep on saying the same thing for, you know every witness. After three witnesses, I gave up. All the other witnesses were irrelevant. There was nothing because I knew what the outcome… I even told the Chair, I know what the outcome is going to be, but I have to do it to discharge my duty. There were countless other witnesses who came with irrelevant evidence, but there's nothing we could do. We can’t… I’ve said that. I think it was Einstein who said that madness is repeating the same thing that has failed. I'm not mad. We’ll give you those witnesses. But I can tell you this much, there were 18 witnesses that would have been called by the evidence leaders at the end of this. Only three of them, well, if you don't count the so-called expert… There were two others, Mr van Loggerenberg and Mr Pillay, those are the only witnesses who were called here that were not employees of the Public Protector’s Office. The 15 witnesses as employees of the Public Protector’s Office were telling us about all their problems about this meeting and that meeting and what have you, you know. That’s why I said, this has been turned into the CCMA or the labour desk of the Public Protector’s Office. Maybe that's what this Committee was supposed to be. But I would have thought those things can go to the National Assembly, not to this Committee, but that's a story for another day. Of those 15, I think maybe half of them fall under that category. But we'll give you the list that were totally irrelevant. Completely. Chair, I think that covers everything. Thank you, Chair. Sorry. Oh, I'm sorry. Sorry. The issues raised by evidence leaders. I would have wanted to respond to them before the Members actually spoke. But let me just quickly deal with them. I don’t know where I made that note. Okay. Let me, I'll do it offhand. I've already explained that when I say the evidence leaders did this or did that, it's not necessarily a criticism of what they did. There are areas which may be properly construed as criticism. The recusal application is not aimed at the evidence leaders. The recusal application is aimed at the Chair. If the Chair did something together with the evidence leaders, well, it’s the Chairperson's fair share of that conduct which we are interested in for now. I think that’s the spirit in which it should be addressed. I don't know about the dictionary meaning of collusion. But that's the spirit in which we meant it that there were meetings, which we regard as untoward, in the sense that… I've explained the sense. This is mercifully not my first commission or process of this kind, as well. I know that evidence leaders and the chairperson have a different type of relationship. But that's why I qualified it. I was hoping to avoid this, to say that if there's a matter that is raised by us, or that concerns the Public Protector, that matter we expected to be debated with both sides, quote unquote. That's what happens in every commission that I've ever participated in. But it doesn't mean that every time the Chairperson has to speak to the evidence leaders about this, that or the other or scheduling, we must be invited, as would happen if it was a court case. In a court case, the judge cannot even talk about those practical things with one person without the other one. This is not what I'm asking for. Then there's the issue about Mr Ndou. I can't believe my learned friend, Ms Bawa, says that the issue of Ndou was not about relevance at all. That’s what she says. Well, that's just not true. The whole point of the objection to Mr Ndou’s alleged sexual harassment being raised or not raised, was on the basis that it is not relevant because he didn't make allegations regarding HR issues. I'm just paraphrasing. We accepted that. That's why in the end, we didn't even question Mr Ndou on those issues. It was all about relevance. To say it wasn’t about relevance at all is not the issue. It was exactly about that. To say it was the Committee decision, not the Chair’s decision, just underscores our complaint. That’s the point I was making, that when we made relevance issues they were summarily dismissed by the Chair without consulting anybody. But when the evidence leaders made an evidence relevant-related issue, it was subjected to a Committee process. That's the exact bias I'm talking about, of treating us differently. I can only say I agree. Evidence leaders have been held to their time save exceptional times. Again, I agree but that's exactly the point I'm complaining about. It's not that evidence leaders have not been held to the times. It's just the evidence leaders have been allowed to choose how much time they need. If they say they want three hours then they get three hours. The fact that they get held to that three hours doesn't detract from the fact that it is their own self-imposed three-hour duration. Whereas with us, the duration is then imposed on us, and we're also held to it. On the holding, yes, it might be equal, but on who determines, that's where the bias is. Mr Sithole, I don't really, I don't want to get involved in this. Mr Sithole was cross-examined wrongly and against the prescripts of the directives in particular. We all know it. The Chair might not know it, but Adv Bawa knows it. She knows exactly what cross-examination is and Adv Mayosi knows what cross-examination is. I know it. Mr Sithole knows it and that's what happened. In fact, Adv Bawa says herself that Mr Sithole contradicted himself and she then had an obligation to explore. Well, if you are exploring, whatever you call it, a person who has contradicted themselves, that's called cross-examination. It was wrong. It's not true either that if there had been no interruptions that three- or four-hour exercise would have taken one hour. I can put every little cent I still have having not been rewarded for my work, that if we played that tape you will find that the so-called interruptions did not even come up to half an hour. But it's fine. It's a subjective view. It's just false. Okay. Terms of Reference, yes, thanks to my learned friend. When I mentioned the instruments, Chair, that govern the process I'd forgot to mention the Terms of Reference. It is indeed the fifth instrument, and it does say that the evidence leaders should not be prosecutors. I think I've covered all the, sorry…
Chairperson: Still getting more notes? I’m about to close you off now. Otherwise, those notes will never end.
Adv Mpofu: They won’t, Chair. This will be the last one. I’m out of Twitter since I was insulted there. That’s a joke. I’m still there, Chairperson. I’m just trying to hold my peace. No, just one, Chair. This is Mr Seanego, about the fraud. She said that the IT of Seanego has confirmed that email was fake. Generally, what happened is that whoever got to know that money was supposed to be paid wrote an email pretending to be coming from Seanego, saying the money must be diverted to a particular account, and that was done. Obviously, I think, we can blame the thieves, but also the vigilance of the people who are in the Public Protector’s Office, because they should have spotted or called them, but they put the money in the wrong account. Incidentally another client of Mr Seanego they tried to dupe. It’s an NGO, SOE which I don't need to mention them by name. But they have better systems so they call Mr Seanego and he told them not to pay them. The point I was making there is not… I can't say I've got evidence that the thieves saw the thing here. I'm simply saying that by putting up irrelevant evidence here that opened Seanego, among others, to that kind of abuse by thieves. If you say to me, I must prove it, I’ll say I can't. But I'm saying this is the reason we were saying that irrelevant evidence must not be led, particularly when it involves people's firms or bank accounts and all that. Thank you.
Chairperson: Thank you, Adv Mpofu.
Adv Mpofu: Thank you again for your patience, Chair.
Chairperson: The time now is 15:49, and you would have started at 15:08. Just indicating that this is what I do all the time for everybody, including the Members. I'm indicating that sometimes facts matter, and I believe in that. Thank you for that, Adv Mpofu. Maybe just a couple of points from the Chair. I think the first one will be to acknowledge and welcome the comprehensive application you have made for the recusal of the Chair as well as Hon Mileham, it’s well received. Members have asked clarities. As the Chair, I don't have clarities. I think we are going to have our own time as a Committee to deliberate on the application and definitely make a decision on the application. We're going to give ourselves time to do that, to apply our minds. I want to thank you for that. I have been very patient to give you time. It's not easy to give somebody two hours when one is the reference point. It's an exercise. I would have joked about Hon Mileham as he was mentioned only for 20 minutes. It comes with the terrain. Thank you. Maybe just so things are clarified I'm going to do this before I make my further points and ask Thembinkosi [Committee Secretary] to put on record and clarify for the purposes of today's meeting. The Section 194 Committee is a history-making committee. It's the biggest National Assembly Committee since 1994. There's never been such a big committee where every party is represented. There's 36 members in this Committee. The ANC have 19 of those, based on the confidence that organisation has from the electorate. Every other Committee has 11 members and doesn't have every party in it; other parties are not in some Committees. But this is one Committee every party is involved. The quorum of this and other Committees is not along party lines. For this Committee to proceed you need a certain number. Every time we start our meeting, we don't start without reaching that quorum. When we start we would have confirmed, the quorum which is across parties is 50% of 36 is 19, based on the strength of proportional representation, so I have to emphasise that point. It is what it is. Six if it is 11 members. So as of today, and I'm going to ask the Secretary to do that, because Hon Mulder might be in Denmark but the Freedom Front Plus alternate was here, Hon Denner, throughout the day. I'm going to ask him to quickly clarify because after you spoke, Adv Mpofu, on that ground that related to the three parties, about two emails have come. One from General Holomisa and you can indicate the time. Can you quickly do that?
Adv Mpofu: Chair, you are exposing Thembinkosi to a recusal application.
Chairperson: No, unless you are intending to go there.
Committee Secretary: Thank you, Chairperson. The email of Hon Holomisa, Chair, came at 10:43. That was about an hour and 40 minutes after the meeting had started. Safe to say, Chairperson, I've seen the trail of interaction between Members, where all the Members and Committee support staff are copied to that. Members are aware of the processes to follow in submitting an apology. I have not received a formal apology from the three Members. Just to elaborate, Chairperson, that as you had indicated some political parties in the Committee have fulltime members and alternate members. Where a fulltime member is not present then an alternate Member attends and sometimes they both attend. Chair, I have also not received any form of apology from Dr Mulder but Ms Denner has been on the platform and she is still on the platform for the FF+. Thank you, Chair.
Chairperson: Maybe just to take the point further. I want to recognise the point raised by Hon Herron the day he was sitting here and raising the meeting of today on the basis that he would be overseas. He would have wished to be present as the initial programme had this week free. Again, I'm going to take you back to Hon Mileham at the very beginning when we tabled and adopted the Terms of Reference. He had the problem with what we call a 'living document' – a programme that is dynamic, that is going to change all the time. He did not want us to use that language of a living document. Our programme is a dynamic one. There are things that are beyond our control that are forcing us to have meetings sometimes that we would not have planned. I have explained that to Hon Herron when he was raising that concern, to say there are things beyond our control that we have a meeting that we did not plan for. So that would be his concern. But I don't want to labour that point. There are meetings that we go to where parties are absent, including in this enquiry, and that is reflected in the minutes. So we take note of all of those kinds of issues. The second point I want to deal with is, I think Hon Nqola has raised this point as a concern. You have attempted to address it, Adv Mpofu. I’m in agreement with you on that issue. I might not have comprehended exactly his concern that he registered. Can you hear us, Hon Nqola?
Mr Nqola: Yes, Chair. I can hear you.
Chairperson: Thank you. I'm invoking you because I'm talking about you. You have raised a critical point which is going to be very difficult for us to implement. The one about the documentation. I might not have comprehended you very well on the concern you're trying to address. What we do, once Thembinkosi Ngoma as Committee Secretary sends out the documents that the Chair has approved, we lose control of those. As to who gets, who shares that with who, it gets to be out of our hands. I think Adv Mpofu was trying to attend to that because remember we are operating transparently. If we send a document tomorrow for a meeting on Friday, we expect that even the media and everybody else would have access to that document so that everybody is ready for that. It isn't the nature of this… and I don't know whether that's what you were addressing, or you are addressing a different point altogether. Just as a quick comment, I think both yourself, the team of the Public Protector, the legal team, as well as evidence leaders, you can continue doing what you're doing in terms of the backroom. I was never part of the backroom. You always met together, and I get the reports of those. Unless you are saying you need my assistance now. I'm available.
Adv Mpofu: No, we'll need the assistance of the new Chairperson.
Chairperson: You can’t pre-empt things, Adv Mpofu. You do need assistance of the Chair, is that what you’re saying?
Adv Mpofu: Yes, Chair.
Chairperson: No, I will consider that. Perhaps the next point that I want to make. Thembinkosi would have sent out a programme for the meeting today as well as Friday. The ruling that Hon Zungula would have raised because Hon Dlakude made that proposal, this in-committee meeting of ours. So that has been approved for us. We’re going to have to utilise that day, which is Friday, as the Committee because we don't want to delay making a decision on these matters. It can't be prolonged. It will not be fair to the process, to how we want to run and speed up processes in this regard. We will have that Committee meeting that will attend to all of these issues that would have been placed here today. I'm indicating to Members that will be our next meeting, as was proposed by Hon Dlakude. I'm happy that both yourself and Hon Lotriet addressed the issue of Member participation in Committees and what becomes a priority at what point. Okay, Hon Nqola, you wanted to clarify that issue quickly?
Mr Nqola: No, I think you captured the point I wanted to make properly. I think Adv Mpofu as well captured it properly about documents that are meant for this Committee but are being shared before they are actually tabled in this platform. Chair, another issue that I wanted to plea to all Members of this Committee, try not to open a different enquiry through social media. Or rather if it is possible that the Whips of the political parties represented talk about it. I remember with the ANC complement we were told by Deputy Chief Whip Dlakude that no one is allowed to speak about the proceedings of this enquiry on social media, because the problem that we are doing is to…
Chairperson: Just hold it there, Hon Nqola. You’re going to do that on Friday 23 September.
Mr Nqola: No problem.
Chairperson: Thank you very much. Hon Seabi.
Mr Seabi: Thanks, Chair, and my apologies for coming at this stage. Maybe something I must also raise on Friday. As you decide on the meetings, especially those might be beyond our control, as you said, Chair, I think there's a need to consider certain things. For example, in this Committee, there are in some instances, there'll be a Chairperson and a Whip and other members of a Portfolio Committee. If we allow many clashes, yes, there might be a quorum, but it disadvantages those who do not follow the proceedings to the end. I'm just saying let's look at it. We may discuss it on Friday, or you may look at it in your own time in your office. In the 19 of the ANC, for example, we also include substitutes in that 19. If the 19 or part of the 19 is not here, you're not going to have another person representing there. Let's look at it so that especially with Portfolio Committees in the mornings, if we can try to avoid – we may not avoid it completely – but if we can try to minimise those clashes. Thank you, Chair.
Chairperson: Thank you, Hon Seabi. We will continue to improve. You will realise that we have started meeting almost every day. Once other Committees come back from recess we have to readjust in the interest of other Committees. But your caution is that even as we change times and dates, we must not lose sight of that so that we don't lose the consistency of Members here, because they have other responsibilities. The homework is taken care of. Thank you for that. Thank you to everybody, colleagues. The meeting now is adjourned. Thank you.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Joemat-Pettersson, Ms TM
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Mananiso, Ms JS
Maneli, Mr BM
Mileham, Mr K
Msimang, Prof CT
Nkosi, Mr BS
Nodada, Mr BB
Nqola, Mr X
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
Zungula, Mr V
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