PP Inquiry day 33: Recusal Application response and legal opinion

Committee on Section 194 Enquiry

17 October 2022
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

Having adjourned for past three weeks, the Section 194 Committee into the fitness of the Public Protector (PP), Adv Busisiwe Mkhwebane, sat to discuss the recusal application brought by the PP’s legal team against the Chairperson of the Committee, Mr Qubudile Dyantyi. As mentioned by Parliamentary Legal Advisor, some of the grounds listed for the recusal against Mr Dyantyi were: scope of the Inquiry; the unlawful and unilateral amendment of directives and the misapplication thereof; a refusal to subpoena President Ramaphosa to appear before the Committee; and unduly favouring the Evidence Leaders.

Mr Dyantyi informed the Committee of his response. After taking the facts into account and having taken the time to carefully consider the recusal application, he took the decision not to recuse himself from the Inquiry. This decision was premised on his belief that the PP had failed to establish grounds on which it could be said that he was biased or that his conduct would give rise to an apprehension of bias.

Mr Dyantyi reiterated his belief that thus far the Committee’s proceedings have met the required standard of fairness, with the PP legal team being afforded the opportunity to repeatedly speak over its time allocation and to cross-examine all witnesses called by the Evidence Leaders.

Committee Member, Mr Kevin Mileham, who also faced allegations of bias and an application to recuse himself, told Members that he too would not do so. In his written response to the application, he disputed the assertion that he had failed to declare his marriage with Ms Natasha Mazzone – who, on behalf of the Democratic Alliance, initiated a motion into Adv Mkhwebane’s fitness as the PP, in her previous role as the DA Chief Whip – indicating that he does so annually in the Register of Member’s Interest. Their marriage was celebrated in Parliament during a sitting of the National Assembly in August 2017 by the former Speaker of the House.

Of contention between Members was the independent legal opinion sought by the Committee on the merits of the recusal application – which resolved that neither the Chairperson nor Mr Mileham had to be recused from the Inquiry. The parties against the legal opinion argued that the Chairperson did not receive a mandate to obtain it. In addition, those in opposition to the opinion questioned its independence because they deemed its author, Adv Ismail Jamie SC, was conflicted on the matter as he had represented the DA in a prior case.

However, the majority of Members agreed with the point that while Adv Jamie did represent the DA previously, he is an independent lawyer who is a member of the Cape Bar Council. The majority noted that no claims of conflict have been raised between the Economic Freedom Fighters (EFF) and Adv Dali Mpofu, was had represented the EFF in several legal matters before.

The majority of the Committee members supported both the Chairperson and Mr Mileham’s decisions not to recuse themselves from the Inquiry. However, objections were noted from the EFF, the African Transformation Movement (ATM) and the United Democratic Movement (UDM), who submitted their rejection of the legal opinion provided by Adv Jamie. Further, the UDM stated that it had submitted a request for the Evidence Leader, Adv Nazreen Bawa, SC, to be removed from the Inquiry. The Chairperson indicated that Adv Bawa would respond to the issues raised by the UDM in a letter sent to Adv Bawa and the Committee.

The Committee agreed that there was a need for it recommence with its agenda and finalise the proceedings as soon as possible, so as to not disadvantage the PP and her Office.

Meeting report

Chairperson: Morning colleagues, Members present at M46 as well as those on the virtual platform. Let me also welcome members of the public with us, on their various platforms, members of the media and our support team. Good morning, on this day, 17 October. Today we have a Committee meeting which purpose is for the Chair to make the long-awaited response to the application that was presented on 21 September. We are convening today for that purpose. Maybe before I proceed, I would like to check if there are any apologies.

Ms Tshepo Morie (Committee Secretary): Thank you Chairperson and good morning to everyone. There are no apologies I am aware of.

Chairperson: Thank you very much. Before I start, I want to note the hand that has been up before I started the meeting. I recognise Hon Holomisa.

Mr B Holomisa (UDM): Thank you Chairperson and colleagues. We did receive the requested a legal opinion yesterday. Because of the sensitivity of the issue of fairness, when the recusal application came, the UDM made only one recommendation: for the Committee to obtain an independent opinion from outside counsel. However, we have made inquiries from our attorneys in the PP cases, and to our shock, they informed us that Ismail Jamie, the senior counsel who gave us this opinion, is currently representing the Democratic Alliance in the Zuma parole matter, which is pending before the Supreme Court of Appeal (SCA). We do not comment on the integrity of Jamie, SC but his appointment to this brief is clearly problematic because it is tainted by a conflict of interest at two major levels. One, the DA is the complainant in the impeachment motion, which gave rise to the inquiry in the first place. Two, the recusal application involves an Hon Member of the DA. Jamie, SC should not have been appointed by the Committee; he also should not have accepted the brief. How can the Public Protector and members of the public believe that she could get an objective Independent opinion from someone who is currently representing the DA in another high-profile matter. Finally, we are also informed that this senior counsel has also previously represented the DA when it was firing Patricia De Lille as Mayor of Cape Town. We are still investigating other less prominent cases in which he may have been regularly briefing the DA. The UDM therefore demands that a truly independent opinion be obtained. We also need to be given time to consult our legal experts before we can be implicated in illegality. This is not just a matter of voting numbers where the ANC and the DA can bulldoze the Committee with the numbers. So we reject this opinion in totem.

Chairperson: Thank you Hon Holomisa. I had indicated that today’s meeting has a very focused and single purpose, which is to bring us back to issues post our 23 September meeting. The very first and main point of today’s meeting is the Chairperson presenting and responding to all of the issues raised in the recusal application. We will, later on, deal with other matters that would have arisen once I conclude the response on the recusal. I did not want to rule you out of order… I allowed you to proceed and conclude I note what you say: we will deal with that later in the form of a response. For now, Hon Members, I want to take this opportunity, as I promised on the 21 September, immediately after Adv Mpofu presented the recusal application… that we welcomed that application and that we are ready and will do everything else to respond comprehensively to that application. I have indicated that I would focus on the facts of this process and that we will respond, in detail, to that. Today is convened specifically for that purpose. I want to start, Hon Members, in welcoming you.

Ms O Maotwe (EFF): Chair? Chair? Hon Chair?

Chairperson: Yes, Hon Maotwe?

Ms Maotwe: Yes. Do we have the document that you are reading? Was it sent to us or is it only with you?

Chairperson: It should have been sent to you… just check your emails. Thank you.

Ms Maotwe: No, no, Chair. What I have is the legal opinion. Actually, I wanted to come after Hon Holomisa to say that. You just captured it correctly, Chair, that in the meeting of September – the last meeting we had – we never, as a Committee, gave you a mandate to go and seek legal opinion. After Adv Mpofu presented the issue, we sat as the Committee and we gave our views and we asked you to recuse yourself – directly yourself. We never ever had a resolution, as a Committee, that said you should seek legal opinion: that is one. If you are reading this legal opinion that was sent last night, we reject, by the way… it is very wrong, Chair. We want to utter the same sentiments as Hon Holomisa that you went to seek the legal opinion from a DA lawyer [who is involved] in all of the matters that we know of.

Chairperson: I have responded to that and made a ruling on that matter, Hon Maotwe.

Ms Maotwe: No, you have not. No, you have not responded. With the greatest respect, Chair, you have not responded.

Chairperson: Hon Maotwe, I have responded to that and made a ruling. Please do not repeat that. Hon Zungula?

Ms Maotwe: Chair, you have not responded. Okay, I will give Hon Zungula a chance but I will come back.

Chairperson: I am giving Hon Zungula the platform, not you.

Ms Maotwe: And your body language is a problem Chair. You know when you speak here we can see through your body language already what you are going to say. We were looking at you when Hon Holomisa was speaking. It is very wrong. You should be an unbiased Chair.

Chairperson: Hon Zungula, you are on the platform.

Mr V Zungula (ATM): Thank you, Chair. Greeting to the public, colleagues and everyone that has joined. Mine, Chair, is to ask two things. The first one is that normally when there is a meeting, there ought to be an agenda for any particular meeting. That agenda gets to be adopted, rejected and then we know what the meeting is all about. It becomes a meeting of the Committee because the Committee would have adopted whatever has been discussed. I do not recall you doing that this morning: that is the first thing. The second thing is that the emails you are saying were sent, is only the notice of the meeting that is today, and also the legal opinion. This recusal response that you are reading from is not there. I want to ask, Chair, are you intending on sharing it with us so that we are able to read and understand? So that when we deliberate after you are done speaking, we are able to make informed positions on your response. Those were the two things, Chair. The first one is a meeting agenda that gets to be adopted. The second being is that your response, share it with us.

Chairperson: Thank you Hon Zungula. Your first point has been attended to: the purpose of this meeting would have been explained properly so I will not repeat that. Secondly, what I am now tabling has been sent to all of you. I am going to ask Members… I am very patient. Today has a particular purpose and nothing is going to derail us from doing that. I want to proceed and respond to the recusal application. I am going to ask that Members do not raise any frivolous points and allow the Chairperson to proceed with presenting the response to the recusal application.

Mr J Malema (EFF): Chair, Chair. You are not going to do that. You are not going to treat us like that… please.

Chairperson: You have not raised your hand, Hon Malema.

Mr Malema: I am raising my hand but you are not going to… People have raised concerns here. Firstly, you have been asked that…

Chairperson: Hon Malema. Hon Malema. You raise your hand; recognised and speak.

Mr Malema: Chair, my hand has been up.

Chairperson: I still do not see it but I am going to allow you to speak.

Ms Maotwe: I can see it, Chair.

Mr Malema: Chair, Chair. Points have been raised here. You have no mandate to do what you are doing. To come here and read something that we did not mandate you to go and do… and then read it to us as if we are your audience; that we came here to listen to you. You are reading an opinion that was not sourced by anyone. This Committee has got no minutes of such a thing. Secondly, you convened a meeting and you come and tell us that today we're going to do one and one thing only: and this is what we're going to do. And then you don't seek for adoption of that which you are suggesting is today's agenda, if that is the agenda. You even informally just go like, ‘hey, is there apologies?’ As if we are some who are here to come and listen to you running all over us. You're not going to do that. You have no mandate to do what you're doing. And you know that very well. And we reject this report that we have never asked for, with all the reasons advanced by the speakers before me. So I don't understand what is the purpose of this meeting? You call a meeting to come and speak on a mandate that you gave yourself? Why can't you go and address yourself? Instead of coming to address us here on something we never requested from you. We do not agree with that approach.

Chairperson: Thank you, Hon Malema. You have raised the same issues that were raised by Hon Holomisa, Maotwe and Zungula. I've responded to all four of you about the purpose of today's meeting. And when we concluded 23 September meeting, in fact, we said that in two weeks’ time we would have come back and convene this meeting for only one purpose. And that purpose is the response of the Chairperson to the recusal application. There is nothing unclear about that. It was raised and firmly agreed to on 23 September. You would have received correspondence inviting you to this meeting with that purpose in mind. So I've made a ruling that all four of you, the points you have raised are not sustained. I would like to proceed with this meeting for the purpose that it was planned for. Thank you. With that, colleagues.

Mr Zungula: Chairperson?

Mr Holomisa: On a point of order, Sir?

Chairperson: Hon Dlakude?

Mr Zungula: Chairperson?

Ms D Dlakude (ANC): Thank you very much Hon Chairperson. Good morning to you and our colleagues. Hon Chairperson I agree with you. On that day when we discussed the issue of recusal, then we agreed that after two weeks we would convene where you will be responding. I want to plead with my colleagues that let's allow the Chairperson to respond, then we will raise our concerns after the meeting. He does have a right to respond to that application for recusal, so can we please allow him to finish what he is presenting so that we can discuss it after. Thank you.

Chairperson: Thank you, Hon Dlakude. There will always be the opportunity for Members to engage with the response. I now proceed colleagues.

Ms Maotwe: Chair, our hands are up: please check your gadget. There are a few hands: Hon Zungula was the first, I am the second.

Chairperson: All of those hands did not go down, they have always been up. So these are legacy hands that you have.

Mr Malema: No, my hand just went up.

Mr Zungula: My hand just went up now Chairperson.

Mr Holomisa: I did the same.

Chairperson: Are those the points of order so that I… I have made a ruling on this point. I am hoping it's for a different point. Hon Maotwe?

Ms Maotwe: No, Chair. Once again, we want to remind you, I'm happy because you started with it by saying after the September meeting you said you will come back to us in two weeks. You never said you're going to seek legal opinion. Hon Dlakude just confirmed that the proceedings of the September meeting that you will come back to us in two weeks. The issue of you seeking legal opinion, Chair, is what we have a problem with. And now you are even reading that legal opinion that is prepared by a DA lawyer. It's wrong Chairperson. That is what we are saying: that we cannot continue with this meeting. What happened to the OR Tambo organisation? Why are you handing over power to the DA like that?

Chairperson: Thank you Hon Maotwe.

Ms Maotwe: It cannot be correct. You must be condemned for this, Chair. You are giving back the power to the DA, you do not have that power.

Chairperson: Thank you Maotwe. I have made a ruling on the point you have raised. I'm not going to repeat and allow you again to repeat the same points. Hon Zungula?

Mr Zungula: Chairperson, my first issue is the meeting agenda being adopted.

Chairperson: You have raised that, Hon Zungula, I have responded and made a ruling on the matter.

Hon Zungula: Allow me to finish, Chairperson.

Chairperson: Do not repeat the same points.

Mr Zungula: Allow me to finish. Do not interrupt me when I am speaking, Chairperson. Thank you. Now, the speakers are saying in the last meeting, the agreement was that we're going to come to this particular meeting to hear your response. Now on the proposed agenda for today, because it's still a proposed agenda, the Committee has not adopted this agenda, you know, we must proceed with it. It includes an overview of an independent legal opinion, which was not sanctioned by the Committee. That is why I am appealing to you. Let us first start with the basics of a meeting. The basics is that in a meeting, there is an agenda that must be adopted. We can't allow you to proceed Chairperson and then later on, when you come to the part of the independent legal opinion, so-called independent legal opinion, when we raise our issues, you say the meeting adopted or agreed that we are going to proceed with that particular agenda. Let us first deal with what is the purpose of this meeting. And we remove things that are not supposed to be part of the purpose of the meeting. We deal with your response, as the last meeting indicated that that will be the purpose of this meeting. The things that were not agreed to, that we have not adopted today, they must be removed from the agenda. Thank you.

Chairperson: Thank you Hon Zungula. Same point: I have made a ruling. Hon Lotriet?

Prof Lotriet: Good morning, Chair and colleagues. Thank you very much. I want to concur with Hon Dlakude that at that September meeting that is what was agreed to by the Members who were actually present on the day. And the question about the agenda, yes, you have ruled on that. But I think we also have to understand that this was the instruction and decision from that Committee on that particular day. Therefore that is the agenda and your response is the way that you would like to respond, Chairperson. If it means that you have a legal opinion as your response, then that is the agenda point that we are busy on. So there's nothing that needs to be removed. You are in fact now dealing with the matter, as decided by the Committee at the last meeting. Thank you.

Chairperson: Thank you Hon Lotriet. That helps to further clarify the point. This is the agenda that would have been sent to all Members. You were invited to this meeting on the basis of what you see there. It's very clear. There's no confusion about that. Unless there's something else we're looking for. Colleagues, I insist I want to proceed. I have attended and listened to all of the issues you've raised. They are not relevant to the matter that we're dealing with because that confusion has been clarified. The last meeting of the 23rd was very clear about the Committee taking a decision to seek legal opinion. That's a decision of the Committee, I'll come to that later, once I've finished with my response. I'm asking Members not to repeat unnecessary points of order when matters in front of you are so clear. I therefore proceed. Hon Holomisa, is that a legacy hand?

Mr Holomisa: Thank you very much, Chairperson. Please be patient with us. Can we start with item number three, if I'm not mistaken, which talks about legal opinion, and read that legal opinion with what we have raised? Surely that legal opinion, if we have read it properly, it comes from somebody who is questionable – insofar as conflict of interest. You seem to want to dodge this issue. Let's start with that. We will get your response. Don’t worry, we have time.

Chairperson: Thank you Hon Holomisa, I heard you. You have repeated the very first point you have made. I am now proceeding with the meeting in the way this agenda has been laid out and sent to all of you. I ask you to please desist from making these unnecessary points of intervention when matters have been clarified… not once. I'm asking that you don't do that again. I want to proceed, Members.

The Chairperson read out his written response to the recusal application (see document)

Chairperson: On that note, I ask that we pause and take a fifteen minute break; come back and proceed from there.


Chairperson: Okay, we are back. I am now going to complete the offloading of these matters and allow two short briefings – not as long as the Chairperson’s summary. Thereafter, I will invite the Members to engage. So the two items… I will call Hon Mileham to put on record what he would have done in writing, briefly. Thereafter, I will ask Ms Fatima Ebrahim to give us a summary of the legal opinion. Thank you. In that order. Hon Mileham?

Mr K Mileham (DA): Chairperson, on advice received that recusal is personal in nature, in other words, that one must recuse oneself, I hereby advice that I have no intention from recusing myself from these proceedings. I shall lay out my reasons for this decision.

Mr Mileham read out his written response to the recusal application (see document)

Mr Mileham: Chairperson, I point out that I have been unfailingly polite to Mr Mpofu, who has in turn, ranted, shouted and told me “Shut up, Mileham”. Chairperson, I want to pause at this point to bring to your attention that if I had used those kind of words towards Adv Mpofu, I would have been ruled out of order immediately, on the basis of an objection and yet he was allowed to get away with it.

Chairperson: Thank you Hon Mileham. I proceed straight to invite Ms Fatima Ebrahim to give us a summary of the legal opinion. Ms Ebrahim, can you hear us?

Legal opinion on recusal application
Ms Fatima Ebrahim (Legal Advisor at Parliament): Yes, Chair. Thank you. Good afternoon to all the Members and everybody else on the platform. Chair, in the last meeting our office was directed to go and seek an external legal opinion on the merits and the legal effect of the recusal application against yourself and Hon Mileham. Our office then procured the services of Adv Ismail Jamie, SC, to provide this opinion. Chair, this is the procurement process that happens at the level of our office that involves the Secretary to Parliament; neither the Chair nor any other politicians play any role in that process. We had approached various counsel to provide us with this opinion but for differing reasons other persons approached were not able to provide the opinion. That being said, Chair, Adv Jamie is a member of the Cape Bar Council. He is well aware of the prescripts that will be applicable in terms of conflict of interest and declaring no such conflict. In fact, he has chaired that Bar Council – he also serves as a member, as I understand it, of the Legal Practice Council (LPC) which is the body in terms of the Legal Practice Act, which is responsible for dealing with such issues as conflict and so on… the behaviour of legal professionals. There was no reason for us to believe, Chair, as is now is being asserted, that Adv Jamie had any conflict. Indeed, Adv Jamie has acted for the DA as I'm sure he's acted for many other parties and many other institutions. There's nothing unusual about that. Counsel is by no means limited to act only for one party or one person. Mr Jamie is not the advocate of the DA. He does not work for the DA or for any other particular party for that matter. Also, Chair, I just want to emphasise something that we've been saying from the beginning. This motion is not a DA motion. I think it's important that we need to move away from that discourse. The motion adopted by the House is now a motion of Parliament. Whilst it may have originally been initiated by the DA, it's certainly not a DA motion that is before this Committee. Chair, Members would have a copy of the opinion. It is self-explanatory, so I'm going to try not to go into too much detail. The first issue that we asked counsel to advise on was what the legal test for bias would be in terms of the current proceedings, which are sui generis proceedings, because we noted to counsel that these are not judicial or quasi-judicial proceedings. So we wanted advice on what the appropriate test would be to apply. Counsel advised that this Committee is a fact-finding Committee which essentially must reach conclusions based on the evidence and the material presented to it. The fact that this Committee comprises of politicians does not detract from that responsibility of ensuring that they do not bring to this fact-finding inquiry, their own biases or political views. That being said, Counsel emphasised that it is not expected that Members may not have prima facie views, as long as they keep an open mind and honestly and fairly evaluate the evidence before them. Based on this, counsel was of the view that the case for bias is the case as articulated in the BTR case which was a Supreme Court case, and which is commonly referred to as the reasonable suspicion test. This is a case that's also been accepted by the Constitutional Court. Briefly, the test requires that there must firstly be a suspicion that the judicial officer might be biased. The suspicion must be that of a reasonable person in the position of the accused or the litigant, in this case being the PP. The suspicion must be on reasonable grounds; and the suspicion finally must be a suspicion that a reasonable person would have. So this is a test that would need to be applied. Importantly, the opinion also emphasised the fact that the person who alleges the bias carries the onus of establishing that bias. The opinion then considered the 12 grounds. I know, Chairperson, you've gone into detail in respect of your own responses to those grounds, so I’ll try to keep this fairly short. In respect of the scope of the Inquiry, Members will recall that revolved around an accusation that the Chair failed to narrow the scope, as per the findings of the Independent Panel. The advice accords with the advice previously given by our office, that neither the Chairperson nor the Committee had the power to narrow the motion and it did not establish bias in the view of counsel. The second ground had to do with the unilateral amendment of directives. Chair, I had dealt with this in our last meeting, where I explained to Members what had happened in terms of the misunderstanding of the correspondence that had flowed. Here counsel agreed that this did not form a ground that could establish bias because in fact those directives were never adopted. But also counsel importantly noted that one of those two draft directives favoured the PP procedurally, so it could hardly be said that the Chair would be biased in wanting to adopt such a directive. The third ground was around the refusal to subpoena the President. Here counsel also found that it cannot be attributed to the Chair when the decision, in fact, was a decision of the Committee and that the Chair enjoyed no powers to unilaterally make a determination on whether the President should be summonsed or not. The fourth ground was an allegation that the Chairperson unduly favours the Evidence Leaders; that there is an unwarranted proximity to and collusion with them, in addition to the adoption of an oppositional posture to the PP and her legal representatives. Counsel importantly noted that this ground was very vague. It was made in broad terms and didn't contain the necessary detail to substantiate the allegations. As such, counsel notes that it was difficult to assess, save for them considering the transcripts and audio visual recordings. But given the length of such recordings, of course, they couldn't watch it in its entirety. They note that the Evidence Leaders made far fewer objections than the PP’s team did, which would explain why the PP’s team was overruled in more instances. They were of the view that the Evidence Leaders were not given more time than what the PP was given and that generally, in fact, the PP had more time to cross-examine witnesses than what the Evidence Leaders had to lead those witnesses. They noted further that the mere fact that the Evidence Leaders may have conferred with the Chair, in and of itself is not indicative of bias. No facts were provided to substantiate the nature of those engagements. Counsel noted that from their consideration of the proceedings, they did not observe the Chair to have shouted at Adv Mpofu. So those were just some of the issues that were raised under that ground, which counsel also felt was unsubstantiated. The next ground was undue interference in High Court proceedings and that ground concerned the papers filed by the Speaker and the Chairperson in the High Court litigation in terms of the Constitutional Court order dismissing the second rescission application brought to the attention of the court. In addition, in terms of this ground, reference was also made to a media statement that was released by Parliament, which was said to have celebrated the loss of that rescission application. Counsel found that even if the Chair did instruct the filing of that particular application, this could not amount to bias as the Constitutional Court order was relevant to the proceedings that were currently before the High Court. In addition, the Chair played no role in the issuing of that media statement, which was in fact done on behalf of the Speaker, by the Spokesperson of Parliament. The sixth ground related to rules on cross-examination and re-examination, and there were various complaints, hereunder, which included that Members were allowed to ask questions before cross-examination had been completed. The PP was asked questions during the process and the fact that the Chair allowed the Evidence Leaders to cross-examine a witness. Counsel, on consideration of the facts against the Rules of the Assembly and the directives governing the process, was of the view that none of those gave rise to any reasonable apprehension of bias. The seventh ground was a ground relating to rulings on issues of relevance, where the PP alleged that by allowing evidence related to legal costs and human resources, these were irrelevant and therefore showed that the Chair was biased. Counsel was of the view that both of those matters are in fact covered in the motion. In respect of the Chair allowing Members to ask irrelevant questions, Counsel noted that Members are lay persons, and the Chair understandably must afford them some leeway. That evidence would have to be considered at the end of the hearings to determine its admissibility. Thus, the Chair’s rulings in this regard have not given rise to any bias or reasonable apprehension thereof. The eighth ground, Chair, was in respect of previous utterances made by the Chair and this related to statements made by the Chair during oversight proceedings in the Portfolio Committee on Justice of which the Chair is a member. Counsel was of the view that those statements were made before the initiation of this S194 process In the context of conducting oversight in relation to the annual performance plan of the Public Protector South Africa (PPSA) and its budget. In light of the principle that a decision-maker must have an open mind and absolute neutrality is not expected, coupled with the fact that the entire Committee in this process will make a decision rather than the Chairperson on his own, counsel was of the view that this ground also fails to meet the requirements for the test for biasness. The ninth ground, Chair, had to do with the refusal to postpone the meeting of 13 September based on the availability of legal representatives. Here counsel found that this ground must fail as it was not supported by the facts and there was no impediment preventing the PPs team from appearing that day, as the legal representatives were in fact available and the court was not sitting. The tenth ground, Chair, relates to the previous ones, it has got to do with the same meeting but on the basis of the Chair’s refusal to postpone the meeting based on the temporary medical unfitness of the PP. Counsel here, on consideration of the facts, found that the Chair took a considered approach and that the ground was not established. The 11th ground was the rejection of requests by Members to be consulted. That had to do with consultation that certain members had requested in that meeting as to whether the meeting should be postponed or not. Here counsel was of the view that if such a request did not have the support of the majority, or was not properly motivated, then the Chair was within his powers to refuse that request from those Members. The last ground was misrepresentations made in the public domain, where the Chair is alleged to have publicly called for an investigation by the LPC into the conduct of Adv Mpofu during the hearings. Here counsel found that if the Chair simply referred to the exchange and the fact that the LPC may want to investigate Adv Mpofu, rather than himself calling for such an investigation, that conduct cannot be regarded as objectionable. That was how counsel dealt with the grounds raised against the Chair. Then moving on to the recusal of Hon Mileham. The recusal request was based on two issues. Firstly, Mr Mileham’s marriage to Ms Mazzone, who initiated the position in her then former role as the former Chief Whip of the DA and then certain statements made by him on Twitter. They also made mention of the party’s general attitude. Counsel advised similarly to the legal opinion, Chair, that the mere marriage does not justify the inference that Mr Mileham has already reached a conclusion on the matter. Such an assumption is devoid of facts to support it and there is no evidence in the transcripts of Mr Mileham already having determined the outcome of the matter. In respect of Twitter, counsel reiterated that the personal animus between a Member and a legal representative is not enough to give rise to a reasonable apprehension of bias in respect of the Member against the PP. So that was an important aspect in the opinion, that the engagements between the PP’s legal representatives and any Member, including the Chair, cannot, in and of itself, be said to give rise to bias against the PP unless that is supported by the facts. Thus in regards to the analysis, the opinion concluded that the PP had failed to establish that either the Chairperson or Mr Mileham are biased, or that there is a reasonable apprehension of bias. In terms of the way forward, counsel agreed with the previous advice that we gave to this Committee, that the matter should be considered individually by the Chair and Mr Mileham, who must consider, based on their own conscience, whether they are biased and whether their conduct may give rise to a reasonable apprehension of bias – if so they must recuse themselves. We are now aware that both the Chair and Mr Mileham have indicated that they had no intention to recuse themselves. However, the Committee must now, as a whole, determine whether the Committee is satisfied with the response given by the Chair and Hon Mileham and reach its own conclusion on whether it is of the view that they are biased or whether their conduct may give rise to a reasonable apprehension of bias. If Members are of the view that there is no basis for the removal, then the proceedings can simply continue. If however, Members are of the view that either Mr Mileham or the Chair must recuse themselves, the advice is that matter must be resolved in terms of the rules and through the work system – I did speak to this in the previous meeting. So Chair, what is left now is for the Committee to determine whether they are in agreement with your submissions and the submissions of Mr Mileham, together with the legal opinion, so that we can determine the way forward. If the Committee is of the view that either yourself or Mr Mileham must be recused, then we will provide advice on the correct procedure to be followed and that will be done in consultation with the procedural advisors. Thank you Chair.

Chairperson: Thank you, Ms Fatima Ebrahim for that… That is an 87-page document that you took, unlike the Chairperson, very few minutes to summarise. So thank you very much for that work. Thanks to you. Thank you to Hon Mileham for the presentation. Hon Members, I now turn to you for your comments, contestations and questions, having listened to the three presentations that have been made in line with the purpose of this meeting. I recognise the following hands: Hon Holomisa will be first up, followed by Hon Dlakude… I see the House is fine, as there are no hands here… Hon Nqola, Hon Mananiso, Hon Zungula, Hon Hendricks, Hon Lotriet, in that order. Hon Holomisa?

Mr Holomisa: Chairperson and colleagues, can you hear me?

Chairperson: Yes, we can hear you Hon Holomisa.

Mr Holomisa: Thank you very much. We have just received your response It was also sent to us an hour ago. It is a lengthy report, I would ask that we be given a day or two to go through it, to avoid further delays in this Inquiry. I would suggest that those who will not be satisfied with the Chairperson’s refusal to recuse himself, should appeal to the Speaker, Whips and of course, to the National Assembly; and they should also seek if they're not satisfied, advice or opinion. Otherwise we will be tainted with this illegality. Lastly, I heard the legal advisor who seemed to be wanting to respond to the point I raised at the beginning. I thought she was asked to respond on a legal opinion sought from outside. If we were satisfied with the calibre of the legal advisors we have in Parliament we would have not said we want a legal advice from outside but we'll deal with that matter later on. Thank you very much

Chairperson: I did not understand your last point but maybe we will check that. Thank you Hon Holomisa. Hon Dlakude?

Ms Dlakude: Thank you very much Hon Chairperson. Good day colleagues and Ms Fatima Ebrahim.

Chairperson: Your network is weak, please switch off your camera. Hon Dlakude just reposition yourself we will come back to you. Just find a better place, thank you. Hon Nqola?

Mr X Nqola (ANC): Thank you very much, Chair. Let us indeed welcome your address, that of Hon Mileham and the legal opinion. Chair, I can only say all three are in coherence with my submissions in the last meeting, so I need not go to the merits and details of what has been said. But I want to say that I move that the Committee accepts your address, that of Hon Mileham and the legal opinion, so we can move the Inquiry forward. Failure to do so, Chair, will actually be a breach of the rules that direct us that we must conduct this Inquiry within a reasonable time. Failing to conduct this Inquiry within a reasonable time, Chair, would actually amount, or cause a prejudice to the Public Protector. So Chair, I move that we must accept all the three as the Committee and go back to the programme of calling witnesses and proceed with the Inquiry. Thank you very much.

Chairperson: Thank you Hon Xola Nqola for those brief remarks and your comments; and for already moving for the acceptance. I now recognise Hon Jane Mananiso.

Ms J Mananiso (ANC): Thank you Chairperson. Let me start by welcoming all the presentations and as well the responses from you and Hon Mileham. One must say that I'm very satisfied in terms of responses given because it was based on the grounds presented by Adv Dali Mpofu. Chair, one agrees with the fact that the PP has not laid down a factual basis. The Chairperson does not take final decisions relating to impeachment… it is comprehensively by the Committee. PP still has an opportunity to refuse all the evidence presented. The Committee makes recommendations which can be rejected by the National Assembly (NA). Allegations of predetermined outcomes by the Chair are therefore not manifestly prejudicial towards her. One would want to agree let us continue with the Inquiry. From my side, you have not been biased towards anybody and you have been exercising, by all costs, fairness in this particular process. So I want to thank you and as well agree with the fact that you have eloquently responded to the recusal application. Thank you.

Chairperson: Thank you, Hon Mananiso for your contribution, it is well noted. Hon Zungula? Hon Zungula, you are recognised. Hon Vuyo Zungula, please unmute yourself. You have the platform.

Mr Zungula: Thank you Chair. I have been having network issues. Chairperson, from my side, what one can note in your response, including Hon Mileham’s… the issue becomes the independent legal opinion. I would like to raise – even though the advice is that the legal opinion is independent – but my view, Chairperson, is that if the advocate who did the legal opinion, as close as they are with, you know, with the party that wrote the motion… Whilst I get the sentiment that this is a motion of the House, sorry, it is the resolution of the House. However, this motion would not have been, you know, in discussion in the proceedings of Parliament if it was not brought about by a political party called the Democratic Alliance. Therefore, in my view, there is no way in which you can divorce the Democratic Alliance as a people or as the party that brought about this motion via their Whip, Hon Mazzone and this particular process. On those grounds, Chair, I want to put it on record that as the ATM, we disagree with the notion that the independent legal opinion is truly independent because it has been done by a person with relations, you know, with a person that is having… who has represented the original movers of the motion to Parliament. If it was a person or an entity that has got no business with any of the political parties in Parliament, then we would have a reason to believe that it might be independent. I wanted to put that on record Chairperson. Thank you.

Chairperson: Thank you Hon Zungula for your contributions. They are well noted. I now notice Hon Hendricks. Hon Hendricks, you are now recognised. Hon Hendricks, can you hear us? You are recognised to speak. Is Hon Hendricks still on the platform?

Mr Thembinkosi Ngoma (Committee Secretary): Yes he is on the platform, Chair.

Chairperson: Please unmute yourself and take the platform. Hon Hendricks? Okay, we will proceed. I recognise Hon Lotriet.

Prof Lotriet: Thank you very much Chairperson. I will firstly not deal with the matter of the slight made concerning the integrity and independence of the legal professionals responsible for the legal opinion. Chair, I have listened very carefully to your response, as well as that of the Hon Mileham. I have to state here that I truly believe given the substance of the replies to the request for recusal, that all the grounds were answered sufficiently, adequately, in depth. I do not think, based on the responses by both you as well as Hon Mileham, that the grounds for recusal can stand. Therefore from my side, I do not believe that there's any necessity for yourself or Hon Mileham to recuse yourselves. Thank you.

Chairperson: Thank you Hon Lotriet for your contributions. Hon Maotwe, you are next.

Ms Maotwe: Oh, thank you very much, Chair. So Chair, firstly, it is unacceptable that we received your written response while sitting in the meeting, actually an hour into the meeting. Why was your submission not emailed at the same time with that illegal legal opinion? It is unacceptable. Your office must really improve on that. How are we going to contribute fairly on this process when we only get documents whilst sitting in a meeting? It is unacceptable Chair I think you must reprimand your office. Now Chair, you know, the majority vote doesn't mean that the majority is actually correct, legally. Numbers don't have brains in law. What matters in law is how you argue the law and not the numbers. So it doesn't matter whether ANC and the DA, jointly, with their friends, FF+, agree on this. If it is legally incorrect, it is incorrect. Chair, we want to put it on record that as the EFF, we reject your response on why you should not be recused. We still call strongly and submit that you must recuse yourself. What you have said does not really help this Committee. If you recuse yourself and leave this Committee to deal with this matter in the most fair manner, it will be beneficial for all of us, including all South Africans. Chair secondly, I personally did not hear what Hon Mileham said. It is not clear what he says on his recusal. Can he please state his position on the recusal application against him so that it is for the record, and the world knows? Also, he must, again clarify his position on the fact that he has got a conflict of interest. It is a known fact, Chair, that his wife is the one who tabled this motion before Parliament from the DA, and he is now sitting in this Committee. We can't shy away from that. I mean, he's the husband unless they've divorced, we do not know. The third one, Chair, is Adv Fatima (Ebrahim) started by saying that – talking about Adv Jamie – that he did not just do work for the DA. So can she tell us which other political parties he did work for because all we know is that he did the work for the DA – at least the DA is sitting in this Committee. We are talking about the people that are in this Committee. We are saying that the DA... and we are not going to shy away from that, Chair. It is said everywhere that the motion on land expropriation without compensation as debated in Parliament was an EFF motion. This one is the motion of the DA, and we can't be told that we should not call it the motion of the DA but the motion of Parliament. It is before Parliament; it was brought by the DA and we are not going to shy away from that. So this motion of the DA, Chairperson, where the member of the DA is sitting in this same Committee and you as the Chairperson of this Committee, you go and source legal opinion from the advocate of the DA… How do you not see that as conflict of interest? Why did you not go to Adv Ngcukaitobi or any of the advocates used by the EFF? For those reasons, Chair, we are saying there is clear conflict of interest. But not only that, the fact that we still put on record that we never mandated you to go and seek legal opinion. We debated here as a Committee, and of course, I am one of those who said why don’t you go seek legal opinions but it was never a resolution of this Committee. You went beyond your borders to go and seek legal opinions. Well we reject that, Chair, we are not going to accept it. I thank you.

Chairperson: Thank you, Hon Maotwe for your contribution. I now recognise Hon Bheki Nkosi.

Mr B Nkosi (ANC): Thank you Chairperson. I switched on my camera to show you that I am here. May I switch it off?

Chairperson: Yes, go ahead.

Mr Nkosi: Chair, There are three issues tabled before us. Firstly, it is your response to the recusal application. I will deal with that in that order. Chair, I have read as you were responding to the recusal application by the PP. I think my conclusion is that it is a fair presentation by yourself; and because it is personal and directed to you that you provide adequate reasons for not accepting the recusal and therefore I accept your decision. In as far as Hon Mileham is concerned, I think the same approach applies. I've listened to him. I've not read any document, but I've listened to him attentively. I am convinced that there is no conflict of interest and he should continue his membership of the Committee and make a contribution. On the third issue, Chair, on the legal opinion, I'm satisfied that Parliament has gone on a public procurement process based on the transcripts and the law, including the Constitution. I think it’s Section 217 which calls for an open and unbiased procurement system and to satisfy that process has been followed. Therefore, what concerns us is that and that only. I do not see any bias in relation to the advocate chosen through an open process. I support this. Thank you, Chair.

Chairperson: Thank you, Hon Nkosi. I now recognise Hon Maneli.

Mr B Maneli (ANC): Thank you Hon Chair. Greetings to Members on the platform. I request your permission, Chair, not to switch on my video, as I am in transit.

Chairperson: Go ahead.

Mr Maneli: Thank you, Chair. Chair, I want to firstly join those who accept the presentations that both yourself and Hon Mileham have made in response to the recusal application, and that we should accept that and be able to proceed with the work of the Committee. Of course, Chair, in relation to the legal opinion, as Hon Nqola said, in the previous meeting we were already making inputs similar to what has been presented today. But out of courtesy and to ensure that the process can be defensible going into the future, there was acceptance of the calls for a legal opinion, not to see you as just responding in order to stay in that position. If the Chair remembers, there was warning to say if we proceed without getting an independent legal opinion, we will set ourselves up for legal problems in the future. We now have the legal opinion, Chair. I'm raising this so that it's understood that the main item is whether we agree with the presentation that you have made. The legal opinion sets the legal basis in looking at that matter. Of course, I have not heard even in the objection to the legal opinion given, that there has been any wrong quotation of case law to justify what has been put to us. That has not been the case. Therefore, I agree also. The legal opinion supports the view with the facts you've presented before us, which we can attest to as Members who have been regularly present in the meetings. This is the bar that has been set, right in the beginning. These assurances were such that even at the time of continuing under protest, it has been the belief even from the PP’s side, that matters were being handled as they are expected to be handled. We are almost at the end of the first phase of witnesses. Under that guidance, I think we should accept that is the case. And lastly, it's really that, Chair, we should at all times remember this – and now it's proven by legal opinion – that indeed, we may come from different political parties and we cannot pretend that people may have not held views either side, at a particular time on a matter. But we have conducted ourselves as Members of Parliament with an open mind. That is why we even entertain some of the questions raised by Members which may have been confirmed previously. When we ask the question whether the advocate holds a brief with others. Adv (Ebrahim) made it very clear that it's raised on the basis that some of them may be the clients of Adv (Jamie). We have never seen that as bias whatsoever in the way they interact with legal issues. I want to suggest Chair that we proceed on the basis that there has not been that demonstration of bias on your side. That we must be able to proceed, Chair. We have accepted that the legal opinion only serves as the basis to give the legal framework which we can also lean on. Otherwise, we would have finalised the matter, Chair, respectfully, even on that day, but we respected that it cannot be just about numbers. We are now warned again about numbers. I hope at some point, you can also make a ruling on this. The numbers are not an issue here. Those have already been dealt with in an election outcome in 2019; so there is no doubt about numbers. But we should allow space for us to engage freely as Members of Parliament, not to use anything to precipitate or pre-empt what a Member would say or not say. I submit, Chair. Thank you.

Chairperson: Thank you Hon Maneli for your contribution. I now recognise Hon Nodada.

Mr B Nodada (DA): Good afternoon, Chair. Chair, am I audible?

Chairperson: Yes, we can hear you.

Mr Nodada: Yes, thank you so much, Chair. Chair, I think I've been covered by the majority of the Members, and appreciate the fact that when we did request this legal opinion to be sought, it has been done so. I remember being part of that Committee meeting. I am not aware as a legislator, that legal scholars belong to specific political parties. The last time I checked, it is the High Courts of this country that admit legal scholars. If they are advocates, they belong to a bar. But be that as it may, I want to support the notion that this legal opinion be taken on board by the Committee as presented because that's what we sought to be advised on as a Committee for us to determine the grounds put to you as Chairperson on the allegations of bias, as well as Hon Mileham. I want to support that we accept the legal opinion as presented to us because it was thoroughly done. It stated everything in law, which as legislators, the makers of law, we should be able to understand. In moving forward, Chair, to also accept that you and Hon Mileham have exercised your rights not to recuse yourself based on the facts you have presented to this Committee and based on what we have read in the legal opinion, and support the statements that you have made here today. Without wasting any time, Chair, to ensure that the Public Protector is not prejudiced in any way, let us ensure that we proceed with a timetable of meetings to ensure that the proceedings take place without prejudicing the PP in time taken to take her through this process, to ensure that she gets justice Chair. Thank you so much.

Chairperson: Thank you, Hon Nodada. Hon Hendricks, are you back? Hon Hendricks? Hon Siwela?

Ms V Siwela (ANC): Thank you Hon Chairperson.

Mr G Hendricks (Al Jama-ah): Chair, I have been struggling with the device.

Chairperson: I will come back to you, Hon Hendricks. Hon Siwela, please proceed.

Ms Siwela: Thank you Chairperson. Chair, let me welcome the presentation by your good self and Hon Mileham as well as the independent legal opinion. Chair, I do not want to go deeper but just to indicate that the legal opinion was raised by our good selves in that particular meeting. Fortunately, I was there, so there was nothing wrong with that. I want to support what has been presented so far because we're not legal gurus, we rely on the wisdom. Secondly, Chair, I have not observed any biasness or unfairness in your conduct as the Chair. Hence, I would like to support your presentation and your firmness that you are not moving an inch to move out from this Committee. What we are expecting, Chair, is to allow the PP to be given an opportunity to come and respond to those issues which have been tabled by those witnesses. Secondly, Chair, we are not in a court. We are in a process of Inquiry, where fairness should prevail. We must not deprive the PP her rights. We must allow her to come and present herself, so that at the end of the day we can be able to make a decision. For now there is no outcome according to my understanding but to allow this process to unfold, let us stick to the rules. I don't see any reason for deferring this matter, because it's not our matter, this matter belongs to you and Hon Mileham. We are accepting your presentation – both of you. We are saying let's proceed with the Inquiry. Thank you Chair.

Chairperson: Thank you Hon Siwela for your contributions. Hon Hendricks?

Mr Hendricks: Thank you for your indulgence, Hon Chair. Hon Chair, thank you for agreeing to the Al Jama-ah position when we had the debate that you should not recuse yourself, as it is our view that you showed no bias, and did your best endeavours to speed up this Inquiry – and that is what we liked about you. We did not want you to recuse yourself. Having said that, let it be known that this was a DA motion, most probably captured from the EFF, which was adopted. We also note that this motion had the support of the ANC when it was a DA motion or an EFF motion. We also know that about 60 MPs of the ANC, including Ministers, abstained from this motion. That is why Al Jama-ah, however, has a quarrel with the agenda. If you put the agenda to the Committee, Al Jama-ah would have objected to the adjective that a legal advisor is 'independent'. There are different views on whether he is independent or not, as we heard. We would have been able to address that and not drown the Committee with the many responses we had. However, the legal responses, like other Hon Members have indicated, were certainly independent… professional in terms of the case law; I doubt very much if anyone would challenge that. Hon Chair, you went the extra mile to get an opinion to assist you in making a personal decision, so that has nothing to do with the Committee. We do not have the right to tell you how to exercise your mind and make independent decisions and the same with the DA representative. What we have seen is that you have been very careful and maybe too careful; so Al Jama-ah calls on you to continue to speed up this process and keep the cost down. You say you are not a judge and that this is not the court. I however have a problem that you are trying to act as a judge and you are giving the legal eagles, all the rights that they have in court, which I do not think you need to do. You are also becoming a bit legalistic and trying… which delays a resolution to this matter. No other matter like this has taken up so much time of Hon Members, who must now neglect, for example, their constituency work. Mr Chairman, don't let Constitutional Court processes and leniency extend this hearing unnecessarily. No one can force you to practice the hardcore court procedures you seem to be adopting to be accommodating. This Committee is not a court. You are not a judge. We call on you to take up your position as Chairman and give us leadership because it cannot be that Parliament is spending so much money on the matter. This motion that was put forward by the DA or the EFF – there seems to be uncertainty – is now costing the taxpayers a lot of money. Motions must not cost so much money. That is why, in our view, we make another call, which is that this matter must be speeded up and come to a conclusion – and we ask all parties not to derail this Committee, that we forever and forever have to deliberate on this matter. Thank you very much, Hon Chair, and thank you very much for not recusing herself. That's a personal decision which the nation will appreciate. Thank you.

Chairperson: Thank you Hon Hendricks. Your contributions are well noted on the issues you have raised. I now recognise Hon Majozi.

Ms Z Majozi (IFP): Thank you Hon Chairperson. With regards to the matter that is at hand, I would state that we had something similar to this before about you not being fair. Then as Members of this Committee we were outspoken on your fairness during proceedings. With this recusal matter, we do not see you, Chair, and Hon Mileham acting in any way that would warrant either one of you recusing yourself or being removed from this Committee. The IFP position is that both of you are not going to recuse yourself or be removed from the Committee. Bringing such a recusal process is undermining the work of the Committee and also Hon Members that serve on this Committee. We have read the legal opinion and we agree. Paragraph 30-36 talks about the impartiality the case requires; 40-41 is about the ConCourt and the SCA. We agree that you have been very, very objective. You have been very fair in this Committee. All of us in this Committee came with the same mandate to see the Committee process finishing and we will then have an opinion or put what we think as Members of Parliament should happen in these the proceedings. But what then happened was we came here with a subjective mind; we were not objective, and that on its own, does not give us a mandate or an idea of what is it that we should do. But as the IFP our position is that you must stay as the Chairperson. Do not recuse yourself or be removed from the Committee. Hon Mileham as well should stay in this Committee as a full Member of Parliament and as a full Member of this Committee, and he must not recuse himself. Thank you very much, Chair.

Chairperson: Thank you Hon Majozi for your contribution. It is welcomed and noted. Hon Sukers, followed by Hon Mulder. Then hopefully Hon Dlakude will be available to speak.

Ms M Sukers (ACDP): Thank you Chair. Chair, I am not going to be long because I think I have been covered substantially by every Member that has spoken in support of you not recusing yourself, as well as the Hon Mileham. Chair, you stated earlier the oversight function that we have as a Committee of Parliament. In light of that, and also on what has been raised by Hon Hendricks, I want to request a detailed report on what the legal costs are to the people of South Africa because our role as public representatives, first and foremost, is that of accountability and oversight. I think in line with that, we need to have detail on what the costs are. We know with the Budgetary, Review, and Recommendations Report (BRRR) right now, every single cost has an impact on service delivery on the ground for our people. In light of that, I would ask we be provided with that. Thank you.

Chairperson: Thank you Hon Sukers. That is well noted. Hon Mulder?

Dr C Mulder (FF+): Thank you, Hon Chairperson. We find ourselves in a constitutional democracy, which means that the Public Protector as well as her advocate, Mr Mpofu, has rights. That is correctly so and they were completely within their rights to bring such an application because they felt it was necessary for yourself to recuse yourself as well as Mr Mileham. But in a constitutional democracy, they are not the only ones with rights: the Chairperson, Mr Mileham, the Committee, also Parliament has rights. The application was brought against yourself as the Chairperson and against Mr Mileham, as an individual Member of the Committee. It was correct then that both of you express yourselves in terms of your perception and your view, whether you should adhere to that application or not; nobody else can decide on your behalf. It was your own interpretation and your decision to do so. The legal opinion in that regard, I see as a bonus. Technically, we did not need a legal opinion but you went that far to get a legal opinion. It was necessary looking back, because if you did not do so, I can assure you that some would have argued that your decision not to recuse yourself is not a rational decision; that you have not applied your mind. So the legal opinion, I think, was quite important to bring us to that point and to that position and the same with Mr Mileham. I am a bit amazed at the arguments about the biased position, so-called biased position, of the legal practitioner. I think that it is quite fascinating to hear that argument because I have never heard that people go into the background of legal people to see who they represented or not. If you want to go down that route, I think the advocate of the Public Protector appeared for the EFF on numerous occasions, and nobody said the EFF should withdraw or recuse themselves from these proceedings. So I think that is a false argument. The law is the law. I think the legal opinion quite clearly indicates what the position is. I am of the opinion that neither yourself nor Mr Mileham should recuse yourselves. I think you should proceed with the proceedings here. I have not been involved in any procedures in Parliament over many years where someone has been given such leeway and the opportunity to be protected and to state her case, than has been the position of the Public Protector. We now come to the point in the proceedings where it is up to the Public Protector, now to convince us of her innocence. I think she should proceed with that. In conclusion, Chairperson, I would like to second the proposal made earlier in this discussion by Mr Nqola, when he said that we take note of your position as well as that of Mr Mileham, that you will not recuse ourselves and that we accept the legal opinion from the advocate and that we move on as soon as possible. Thank you.

Chairperson: Thank you Hon Mulder for your contribution. It is well noted. I now recognise, as I get to the end… I see the hand of Hon Malema. Hon Malema, are you still raising your hand? Hon Malema, can you hear us? Okay. Hon Dlakude, are you back online?

Mr Malema: No, Chair. I have lowered my hand.

Chairperson: Okay, thank you Hon Malema. Hon Dlakude, have you also lowered your hand?

Mr Ngoma: Chair, I think she is disconnected. I do not see her on the platform.

Chairperson: That is fine. Thank you very much. That would have been the last Member to speak on this. I want to thank all the Members that have spoken and made their contributions on this matter; in your diverse way of doing things. We can only embrace that and not have an issue with it. Firstly, Hon Xola Nqola has proposed that the meeting moves acceptance of the non-recusals by both Mr Dyantyi and Mr Mileham, and accept the legal opinion. Hon Mulder has supported that. I also note a firm point being made by Hon Maotwe, that as the EFF, the non-recusal is not accepted and they want that recorded. We will note that as part of the decision of this Committee. Members in their contributions of support also firmly suggested let us move on with the work of the Committee. Therefore, the decision of the Committee is to accept the two non-recusals, having noted a legal opinion. I have noted the firm minority view by Hon Maotwe, for that to be recorded. Hon Holomisa has raised the options available to himself and others that they would wish to take up beyond this. That is also welcome. We are in no way going to stand in the way of Members exercising their various options. The next point is on the legal opinion. Listening to all the Members, there has not been much contribution about the content of that legal opinion. I have noted the remarks about it, as to how it originated, who authored it and so on. But we missed the opportunity to robustly engage with the content of that legal opinion. I must also say up front that as Hon Mulder indicated, the legal opinion is advisory in nature. This is advice sought; it was not a decision. I took a decision on non-recusal, Hon Mileham took a decision. Members of this Committee are in support of the decisions we have taken. You seek a legal opinion not to direct you. You seek it to help guide you. I have said it before, it is a decision enabler. It is not in itself a decision. I think that is going to help. I think Hon Members have also raised the commentary. We must desist, regardless of how we feel about certain issues, so the officials who work for Parliament and the National Assembly never find themselves to be part of the collateral damage in the manner we engage and articulate. I really want to ask Members to refrain from such now and in the future. That is not asking them not to do be robust, not to engage vigorously. We have to protect the professional body of this House. That would be really appreciated, colleagues. I think that Ms Ebrahim there would not be many issues you need to respond to. So you do not need to say anything. I would want to proceed. I think issues have been attended to about how the appointment of anybody who provides legal services gets done as a transparent, open, competitive kind of process. Our State Attorney's Office is involved in those processes. I think there is a big charge arising from a number of Members, Hon Hendricks, and all other Members to say that the delays firstly are no longer going to be appreciated. We need to move with speed because delay in this process is also not good to that Office, first; but as well to the incumbent Public Protector. A sense of direction is needed. It is important that we allow the Public Protector very soon to state her case in the time that would be given to her. But before we can do that, we need to be able to conclude the last witness… the last two witnesses. The PP team is supposed to conclude the cross-examination of Ms Thejane. We are supposed to lead evidence of Mr van der Merwe. It is the intention therefore that we do not delay that any further. I have indicated that the intention is to make sure that balancing the work of what I call annual reports, others call it the BRRR. That's actually the annual report. It is just a sexy thing… that is an annual report. We have to balance finding time, as all of you are now engaged in that process. So with the Committee Secretariat – I am going to ask him – we're even looking at within this week, if there is a possibility for us to sit either on a Thursday, Friday, or even a Saturday. We want to share that with you. Once we have the necessary approvals, we will proceed in that way. So as you do your annual reports, be on standby to complete the task and continue with it. Mr Ngoma, are you there? I invite you to present what Members have called for: the restarting of the programme.

Mr Ngoma: Thank you Chairperson. Good afternoon, and good afternoon to Hon Members. Chairperson, as you have correctly indicated, we will have a look at the current parliamentary programme, taking into consideration that a number of Committees are busy with the Budgetary Review And Recommendations Reports – the BRRR process that you spoke to. However, Thursday and Friday will be the possible days that we will look at during the course of this week; but we will conclude those discussions, Chair, after this meeting. I want to take the Committee through the correspondence it has received since the last meeting. You will remember, Hon Members, that previously I indicated that we had written to a number of people seeking information. On 26 September, we received a response to a letter sent to Mr Seepe and Ms Keller, requesting information. That letter was shared with the Members during the course of the meeting. The response from Werksmans Attorneys, on behalf of Mr Loggerenberg and Mr Pillay, following the request from the PP legal team that they re-appear before the Committee; however they both indicated not being available to appear for further cross-examination. The letter has also been shared with Members. We also had the same letter that went out to Ms Baloyi – she has also responded indicating that due to her other commitments, she is not able to reappear before the Committee. However, she advised in the letter that if there are any questions that the legal team of the Public Protector wants to pose, they are welcome to do so in writing and she would respond under oath. Chairperson, I had also indicated that we had written to Mr Ngobeni, requesting information. We have received a response on 30 September. It is currently being studied in my office. Chairperson, on 1 October, we received a letter from Public Interest SA, complaining about Adv Mpofu’s conduct during the Committee meeting of the 13th and requesting that maybe you launch a complaint with certain legal bodies that regulate legal people. Chair, we wrote back to Public Interest SA, indicating that we cannot deal with their matter now because there is this recusal application before the Committee. Also just to remind the Committee that it had resolved at its previous meeting, that the conduct of Adv Mpofu be investigated. However, for the purposes of the letter to the Public Interest, it was personally addressed to you, Chairperson. You responded to say that ‘unfortunately, we could not deal with that at the current stage.’ On 11 October, we received a letter from Gardee Godrich Attorneys requesting the recusal of the Evidence Leader, Adv Bawa, SC. Chair, we have since sent that letter to Adv Bawa and we are hoping for a response very soon. On 14 October, even though the letter is dated 12 October, and this was upon request, Chairperson, that through the office of Mr Holomisa, that they provide us with a letter that was being inquired about in the Committee, but the Committee had not received. Eventually, on the 14th we received the letter also calling for the Evidence Leader to recuse herself from the Committee. Chair, that letter will be transferred to the Evidence Leader for a response as well. Chair, if I can just request that Hon Members when they write to the Committee that they try at all times to address the communication to the Committee Secretary. Members have my email address. We had to make numerous requests for the letters of the 11 and 14 October, Chair, as they were not sent to my office. That is the correspondence before this Committee, which has been shared with Members and will also be uploaded on Uvimba, which all Members have access to. Thank you very much, Chairperson.

Chairperson: Thank you Committee Secretary, Thembinkosi Ngoma, for placing that important information on our correspondence. Before I proceed, I see the hand of Hon Maotwe.

Ms Maotwe: Thank you, Chair. I wanted to come in before the Committee Secretary but I did not want to interrupt. Chair, just two things on my side. I raised the issue of costs way back in July, and you said that you were going to come back to us. You still have not come back to the Committee to tell us how much we are spending per day on average, and how much we have spent so far. I just respectfully would like to remind the Chair to please let us know. Secondly, Chair, it is just a point of clarity – was the PP or (her) legal team in today’s proceedings? You spoke in response to your recusal. Mr Mileham spoke, even though we did not hear what he was saying, but he spoke. Then the legal opinion was presented to us, we as Committee members also had an input, but you have not indicated when the PP or her attorneys (will be) coming to respond because remember this is their application – we are just responding to it. If you can give that clarity, Chair, I will appreciate (it). Thank you.

Chairperson: Thank you Hon Maotwe for those two points. I think the first one, myself having a bit of a good memory, I want to agree with you that you did raise that matter before on the costs. So I can only say that we're going to take up the matter. I am just confirming that your recollection in that regard is correct. On the second point, today's meeting is a Committee meeting. That is why you do not have the Evidence Leaders as well as the Public Protector (present). Based on this, we are going to communicate immediately with the Public Protector about the outcome of the response to the recusal… formally so. They will be able to join us in the next meeting, which will be an Inquiry session. I hope therefore that clarifies the points you have raised. Based on this correspondence, we will come back to the Members either in our next meeting or maybe before that. For now, as Thembinkosi has indicated, we are going to wait for the response of Adv Bawa to respond to the issues. I have written her a letter to clarify, with letters from Gardee Godrich Attorneys, as well as Hon Holomisa’s letter. You will be informed of that particular process, as Members of this Committee. I just wanted to clarify that.

Mr Ngoma: Thank you very much. Just one important letter that I omitted Chair, which I will share with the Members – the response by the Evidence Leaders to the letter from the EFF Chief Whip relating to their inappropriate conduct. We also do have that letter. I felt that I mention that I had omitted it previously. Sorry, Chair. The necessary action will be taken to process the letter, Chair. Thank you very much.

Chairperson: Thank you, Thembinkosi. Hon Members, those were the last matters that we will attend to. Certainly as a Chair, I think that there are certain things that we are going to have to expedite and speed up and keep you in touch with all of those. There being no other matter… Ms Omphile Maotwe?

Ms Maotwe: I am so sorry to do this to you, Chair. This is the very last one. Are you saying we are continuing on Thursday? If that is the case, are we continuing still with Adv Bawa’s issue not being resolved or are you saying that you are going to get Adv Bawa’s response prior to Thursday, so that when we continue on Thursday, at least there's no pending issue from her side in terms of her own recusal?

Chairperson: Thank you Omphile Maotwe. As the Committee Secretary has indicated immediately after this meeting, we are going to confirm the exact date of our meeting, whether it is Thursday, Friday or Saturday and Members will be informed. It is our intention to attend to Adv Bawa’s matter before such a meeting. So I am hoping that you hear before that meeting from us. I hope that helps, Hon Maotwe and other Members. Hon Gondwe?

Dr M Gondwe (DA): Thank you Chair. It is just a question on clarity. I wanted to get an indication of when exactly we are going to hear about subsequent meetings, because I am a bit worried that sometimes we hear at the last minute and we have made plans.

Chairperson: That is fine. As you leave here now, and we adjourn, myself and Thembinkosi will be at work. We are hoping later tonight or first thing tomorrow morning to indicate that. Thank you. Hon Hendricks?

Mr Hendricks: Sorry to do this to you, Mr Chairman. I heard that the Secretary has taken a unilateral decision to refer the matter to Ms Bawa. I was just wondering why he did not refer the letter to the Speaker, because it was the Speaker who asked the State Attorney to appoint an Evidence Leader. Why must this Committee be burdened with these things? You know, so many things are being done to derail us. I do not know why people are thinking of ingenious methods just to derail us. That is not our concern. That is a matter between… the Speaker has appointed her, with the State Attorney, they must not burden this Committee with these things. Why did the Committee Secretary not refer it to the Speaker to deal with? We have enough work on our plate.

Chairperson: Thank you Hon Hendricks. For now, I am going to ask that we accept all the bona fides of everybody here, including those that are raising critical issues either about myself or about the Evidence Leaders. The Committee Secretary has been instructed by myself as Chair on how to process the matters. It is in good hands. You would know that this is a Committee matter so the Speaker has an arm's length to such an issue. It is Committee operations. She cannot get involved. We will report to her at the end but rest assured, the matter is well handled. Thank you very much, Members. The meeting is adjourned. Thank you.

The meeting was adjourned.

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