PP Inquiry day 34: Evidence Leader Recusal Application

Meeting report

Introductory remarks by the Chairperson
The Chairperson said that the meeting would focus on the consideration of the application for the Evidence Leader to recuse herself lodged by the United Democratic Movement (UDM). Members had received the document with the Evidence Leader's response to the recusal application. He asked if Members would prefer this being presented by the Parliamentary Legal Advisor or by the Evidence Leader herself.

With the agreement of the Members, the Chairperson asked that the Evidence Leader present her response to the recusal application. He noted that the Evidence Leader might be limited to answering questions, as some matters are still pending.

Response of Evidence Leader (Adv Bawa SC) to recusal application
See document for further details

Evidence Leader Adv Nazreen Bawa SC said that she had prepared a response which was done in writing. She will take the Committee through her response, not necessarily verbatim, in respect of some of the issues raised that may be a concern to the Members.

She had been provided with the correspondence from Gardee Godrich Attorneys, representing Mr Chumani Maxwele, as well as the letter signed by Mr B Holomisa on behalf of the UDM. Where necessary, she referred to them collectively as “the complainants”.

She pointed out that both complaints have the following in common:
• Whilst the complainants rely on an affidavit filed in legal proceedings, neither expressly indicates that the deponent of the affidavit is Mr Barnabas Xulu, the sole director of the law firm, B Xulu & Partners Inc (BXI) (referred to as “the Xulu affidavit”). Mr Xulu has been in repeated litigation with the Department of Forestry, Fisheries & Environment (DFFE).

• Both complaints share the use of the same turn of phrase, indicating a desire that she be recused in order to give her “space” to deal with allegations, inter alia, on her alleged subversion of court processes (of which the two complainants have no knowledge).

• Both complaints appear to labour under some misconception that there exists a 407-page affidavit which, in its entirety, impugns her reputation and implicates her in some sort of criminality and to which she has some obligation to respond – whether in Court or in some unspecified criminal or other process.

She had respectfully declined the invitation to recuse herself. She is not a decision maker or a Member of the Committee. The complainants have not pointed to anything done during this Enquiry that warrants her removal. The decision is inevitably for the Committee to make.

At the outset, she had raised the following:
• The Xulu affidavit was irregularly lodged in court, styled as a supplementary founding affidavit dated 4 October 2022 in an application brought by BXI in the Western Cape High Court (WCHC). In this matter I am the senior counsel on brief for the Sixth and Seventh Respondents, being DFFE and the Minister of Forestry, Fisheries and Environment and it is but another case emanating from litigation that commenced in 2019 already. The other respondents in this case include the National Prosecuting Authority (NPA) and the National Director of Public Prosecutions (NDPP). The Xulu affidavit is a 78-page affidavit, which in the main consists of allegations that have already been made in affidavits deposed to by Mr Xulu in other applications which have already been responded to and are simply repeated, and which in fact have no bearing on the relief being sought in the case pending in the WCHC. The remaining pages are annexures, of which very few are relevant to her directly or to this Committee.

• Adv Bawa stated that she does not require any “space” to deal with vexatious allegations – which are based on supposition and have before this Committee been mischievously and erroneously elevated to “prima facie” evidence, despite constituting substantial misrepresentations to a court. For a prima facie case to be established there must exist credible evidence in support of each element of a crime and for guilt to be proven a prosecutor must prove the defendant's guilt as to each element beyond a reasonable doubt to obtain a conviction. Unsubstantiated allegations based on hearsay and speculation do not meet even the lowest threshold.

• The complainants rely on allegations made by a disgruntled litigant (Mr Xulu / BXI), who continues to engage in dilatory and unmeritorious litigation to avoid repayment to the DFFE of an amount in excess of R20 million. The litigant had lost or abandoned no less than 13 court appearances against DFFE (mostly with costs – which is detailed in the affidavit), in which matters she had represented the DFFE, together with Adv Joseph SC and Adv Williams.

The litigant faces serious disciplinary charges, relating to dishonesty, pursuant to a complaint that was lodged in January 2020 at the Legal Practice Council about R1 million which had been paid into BXI trust account, and which funds have been dissipated, having been spent without any compliance with the Legal Practice Act and with complete disregard to the fact that this money constituted trust monies.

The litigant's Porsche, which to date he has failed to provide to the sheriff, and a luxury holiday home in Ballito Bay, largely paid for from public funds and earnings of approximately R2.6 million, being earnings due in relation to legal fees, were attached as a consequence of litigation by DFFE.

Adv Bawa pointed out that instead of paying back the more than R20 million that several courts have found BXI / Mr Xulu to have unlawfully removed from department bank accounts, BXI / Mr Xulu have embarked on a vendetta – and indications are that he is aided by his erstwhile clients, Mr Maxwele and Mr Paul Ngobeni – against the legal team engaged by DFFE. This involves from time to time making scurrilous, vexatious and unsubstantiated allegations through supposition and inferences in a manner that defies logic, and in the instant case, on the part of Mr Xulu making material misrepresentations to a court under oath. This is behaviour unbecoming an officer of a court.

The threat of a criminal complaint by Mr Maxwele who bears no personal knowledge of the BXI / Mr Xulu litigation in the circumstances can only have one objective, and that is to aid Mr Xulu in discrediting the DFFE legal team to create grounds for Mr Xulu to embark on further litigation.

The essence of the complaint in the Xulu affidavit is similar to what served before the Cape Bar Council (CBC) and the Legal Practice Council (LPC) in 2020. Those professional bodies dismissed the complaints served before them, which complaints are essentially the same as what is being raised again by Mr Xulu. They remain unmeritorious.

For the avoidance of any doubt, Adv Bawa stated that:

• She has not interfered in any NPA prosecution, nor any investigation into criminal conduct, nor sought to frustrate any criminal investigations, nor sought to shield any person from criminal investigations, be it in relation to Mr Michael Mlengana or Mr Knorx Molelle. She has had no involvement at all in the disciplinary proceedings in relation to Mr Molelle which, according to media reports, involved, inter alia, the irregular appointment of curators and related charges, and did not relate to the litigation involving BXI / Mr Xulu / DFFE at all. In relation to Mr Mlengana, there is a pending criminal matter in the Commercial Crimes Court in Bellville. Undoubtedly, had the DFFE legal team in any way interfered in that investigation, the investigator/prosecutor would have taken the appropriate steps.

• She has not knowingly, or even unwittingly, placed false evidence before the WCHC on the instructions of Mr Mlengana, former Director-General of Department of Agriculture, Forestry and Fisheries (DAFF) or otherwise, for purposes of misleading the Court. The judgment in relation to Mr Mlengana’s evidence speak for itself. The factual allegations that Mr Mlengana lied formed the basis of a rescission application. The allegations were rejected by the Court in those proceedings.

• As indicated in the LPC submission, in 2019 consultations occurred with Mr Mlengana and several other officials at DAFF to take instructions prior to the launching of the urgent application against BXI. This was the first time she had met Mr Mlengana. She has never had any dealings with him in a personal capacity. Her role is limited to that of senior counsel representing the interests of the clients – initially DAFF and later DFFE, when the latter assumed control over the Fisheries branch. Mr Mlengana in his personal capacity is – and never was – the client. To the best of her recollection, litigation instructions were thereafter obtained from DFFE, from early 2020 already, and the then Acting Director-General, Mr Abader.

• At all material times in the litigation she has been on brief with the Office of the State Attorney. Steps taken in the litigation have been pursuant to instructions received from DAFF / DFFE.

• She is not aware of any records of alleged ‘misconduct’ or criminality presently before the WCHC, nor is she aware of any criminal investigations pending against her, or any reports regarding her conduct that have been resubmitted to the LPC or the CBC. As at 12 October 2022, there was no complaint lodged with the CBC.

The litigation between Mr Xulu / BXI, on the one hand, and DFFE and the NPA, on the other as co-respondents, is still pending before the courts. She remains counsel on brief for DFFE. As counsel she is bound by legal professional privilege in interactions/consultations and information obtained both for DFFE and provided by the NPA / NDPP. In two matters, replying affidavits have not yet been filed, and have been pended until Mr Xulu / BXI has exhausted the proceedings in other courts specifically to avoid the incurrence of unnecessary legal costs. Nothing clandestine or surreptitious was taking place, nor was there anything unlawful in the way in which the cases were being handled. The allegations stem from the fact that Mr Xulu has repeatedly been unsuccessful. The complaints to the CBC / LPC were sent to the NDPP, Adv Batohi, who clearly did not regard there to have been any improper conduct that warranted steps to be taken at the behest of the prosecuting authority.

Complaint by Mr Maxwele and its timing

• In terms of Mr Maxwele’s involvement, Adv Bawa stated that she does not know him personally, nor to her knowledge has he had any involvement in the BXI/Mr Xulu litigation, yet he appears to issue a threat to lodge a criminal complaint, and demands her recusal based on a complaint premised on an affidavit of which he bears no personal knowledge and events in which he had no involvement. She finds this to be difficult to understand.

Of relevance is that Mr Maxwele was represented by Mr Xulu in disciplinary proceedings at the University of Cape Town (UCT). Her co-counsel in the BXI / Xulu litigation, Adv Brenton Joseph SC, presided over those proceedings. In October 2020, Maxwele lodged a vexatious complaint against Adv Joseph SC with the CBC, some 2½ years after the proceedings at UCT had already been concluded – and during the ongoing BXI / Mr Xulu litigation. Initially she represented Adv Joseph SC before a disciplinary hearing process pertaining to the complaint.

Adv Joseph SC, in his response to the complaints, attributed the very reason for the complaint to be because he was part of the legal team briefed by the State Attorney Cape Town in the litigation against Mr Xulu / BXI since August 2019. This was pertinently raised by Adv Joseph SC in his response to the complaint, where he indicated that Mr Xulu had clearly incited Mr Maxwele to raise a complaint against him. Mr Xulu’s involvement was not mere conjecture or speculation, because on 29 January 2021 he directed an email to the CBC in which he enquired as to the progress of the complaint against Adv Joseph SC, making it clear that the “matter is not over” in the same email insofar as it related to her. Adv Joseph SC reflected that Mr Maxwele was merely a tool in Mr Xulu’s hands. The complaint against Adv Joseph SC was extensively investigated and dismissed.

• In terms of Mr Ngobeni’s ties to Mr Xulu, Adv Bawa stated that the timing of the allegations contained in the Xulu affidavit of 4 October 2022 is no coincidence, especially given that the affidavit was irregularly filed in the High Court. It was clearly directed at this Enquiry, hence it having been brought to the attention of the UDM. Prior thereto, Mr Xulu had taken no steps in furthering any complaint with the CBC or the LPC – his last communication with the LPC having been on 8 October 2021.

Mr Xulu represented Mr Ngobeni during the erstwhile Public Protector (PP), Adv Thuli Madonsela’s investigation, which culminated in Report 17 of 2011/2012.

Mr Ngobeni’s name came up during evidence in the Enquiry, and on documentation which was made available to the PP legal team on 10 September 2022, and some of which was attached to a letter to Mr Ngobeni dated 21 September 2022.

Mr Ngobeni responded to the letter of 21 September 2022 on 30 September 2022, foreshadowing some of the very same allegations, almost verbatim, that appear in the Xulu affidavit of 4 October 2022 and in other affidavits that Mr Xulu had filed in related proceedings and which have been raised in several affidavits before the courts (and rejected) to the effect that the erstwhile Director-General, Mr Mlengana had been “aided and abetted” by herself and Mr Manuel and placing reliance on other allegations that courts have rejected. Clearly some of this information had been provided to Mr Ngobeni prior to the affidavit being filed.

Like Mr Xulu, Mr Ngobeni also labours under the misconception that the client in the litigation was Mr Mlengana in his personal capacity, when indeed the client was the government department whose money had been unlawfully taken.

What Mr Ngobeni does not disclose (and neither does Mr Xulu) is that, in 2020 one of the BXI bank accounts which contained R3.6 million (of what remained of the approximately R20 million) that Xulu/BXI was ordered to preserve, reflected payments made to a payee with the reference “Abel Ngobeni”. These payments were made from funds that Mr Xulu / BXI had been interdicted from dissipating and yet did so, contrary to the court order. Abel Ngobeni is the same name of the bank account holder reflected on an invoice that had been rendered by Seanego Inc to the Office of the Public Protector reflecting services that ex facie had been rendered by Mr Paul Ngobeni.

In her response, Adv Bawa detailed some of the payments that were made by BXI with the reference “Abel Ngobeni”.

Litigation background

Adv Bawa pointed out that there was a judgment handed down on 30 January 2020, it was held that BXI had unlawfully attached slightly more than R20 million from departmental bank accounts (public funds). Mr Xulu proceeded to spend approximately R15.5 million thereof between the Friday afternoon when the funds cleared and the Monday, when an urgent application was brought to preserve the funds. BXI was ordered to pay back the money and Mr Xulu was held to be personally liable jointly with BXI. To date this payment has not been made, instead litigation continues.

The affidavit on which Mr Maxwele (and the UDM) relies is irregularly filed in the umpteenth application in the BXI/Mr Xulu v DFFE dispute to avoid payment and this time ten other parties including the NDPP and NPA have been cited, including amongst others, the President, and other Ministers. The application is an attempt by BXI to stop the execution of the warrant issued for the recovery of the R20 242 472.90 owed to DFFE. Mr Xulu has continuously employed a “Stalingrad” strategy of litigation since August 2019 in an endeavour to avoid liability. DFFE has given notice to attach fees earned by BXI in the amount of R2 655 134.18 (excluding counsel’s fees).

The attachment of BXI’s fees was necessary because BXI/Mr Xulu had depleted the funds in BXI, vacated their Cape Town offices and the sheriff was unable to secure any property to satisfy the judgment debt. This despite the Department having obtained preservation and anti-dissipation orders. In the face of this defiance, Mr Xulu was held to be in contempt.

Mr Xulu’s strategy had included impugning the impartiality of several judges in the Western Cape Division, as well as launching recusal applications against Rogers J, Binns-Ward J and other judges sitting in the High Court, and even going so far as to lodge complaints against Rogers J with the Judicial Service Commission – which complaints have been dismissed.

Pursuant to a request directly to the Judge President, Mr Xulu’s recusal request of Rogers J was granted and his matters have since mostly been heard by a judge seconded from the Eastern Cape. But after Smith J (from the Eastern Cape) granted the preservation and anti dissipation orders, Mr Xulu objected to Smith J’s continued involvement. The latter indicated that he would remove himself from the matter simply to ensure that the matter was not unduly delayed and another Eastern Cape Judge, Zilwa J, was appointed in his stead. He, too, found in favour of DFFE, holding Xulu to be personally liable and refused Mr Xulu leave to appeal.

There are a number of material misrepresentations in the Xulu affidavit. One example is the claim by Mr Xulu that the Rogers J judgment is the subject of an appeal at the Constitutional Court. This is incorrect. BXI/Mr Xulu have been denied leave to appeal by the High Court and the Supreme Court of Appeal (SCA); and the President of the SCA declined to reconsider the SCA’s refusal to grant BXI’s petition. BXI then brought an application, out of time, seeking condonation from the Constitutional Court to bring its late application for leave to appeal to that Court. This condonation application has never been granted. There is thus no appeal pending before the Constitutional Court.

The lack of substance of the Maxwell complaint read with the Xulu affidavit

Adv Bawa pointed out that there is no evidence, prima facie or otherwise, in the Xulu affidavit that reflects a contravention of the Legal Practice Act (LPA), the Rules of Professional Conduct governing members of the Bar, section 34 of Act 12 of 2004 and sections 32 and 41 of the Act 32 of 1998. In fact, no specific provisions of the LPA and the Conduct rules have been identified, to which she can meaningfully respond to. Mr Maxwele’s complaint also does not explain precisely what the nature of those contraventions are or how he reaches his conclusions. It is quite clear that the contents of his letter are obtained directly from Mr Xulu. There is also a misrepresentation of the CBC position in the documentation served before it in 2020.

Neither Mr Maxwele who appears to be parroting Mr Xulu, nor Mr Xulu has provided evidence that she improperly interfered with, hindered or obstructed any member of the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

Adv Bawa stated that she sees no point in dealing with wild unsubstantiated allegations, the high water mark of which appears seemingly to be some photographs taken of documents in a lever arch file of the NPA – those photographs, based on their quality, appear to have been surreptitiously taken as opposed to being scanned. This is clearly not the work of a whistleblower, but one who is unlawfully taking photographs of confidential NPA documents and forwarding it to Mr Xulu. Blatant unlawfulness cannot be hidden under the guise of “whistleblowing”.

Apart from the fact that the information was in all probability unlawfully obtained, it is so illegible that she is not able to confirm if it is indeed a communication that passed between herself and Adv Cronje, and for that reason dispute the authenticity thereof. Despite a request, she has not been provided with a more legible copy. There were several interactions between the DFFE legal representatives and various NPA members, including the NDPP, on events arising from the Bengis matter. Given the legal professional privilege that prevails she is not at liberty to provide details of the discussions, communications or advices rendered. There was nothing clandestine about it, and there is no wrongdoing in cooperation between DFFE legal representatives and NPA members.

She has not been able to find the email ostensibly sent to Adv Cronje in her “Sent items” in order to be able to verify the authenticity of the contents thereof, but at the level of principle she fails to understand the nature of the complaint. She does recall that there were times when emails were sent to Adv Cronje’s “capebar” address due to email difficulties with the NPA server. She also recalled sending emails to Adv Hofmeyr, then Acting Head of the Asset Forfeiture Unit at the NPA, from her office, in the presence of Mr Manuel, her instructing attorney, due to the consultations taking place at chambers. This followed on communications which Mr Manuel had sent to Adv Hofmeyr which were annexed to court papers during one of the applications and as it is a tangential issue, she has sought to explain the latter in an annexure marked “B”.

She only has one email address that she uses. The suggestion that there is something covert arising from the email address that she used is fanciful. It is also not “common cause” that advocates do not send communications as suggested in paragraph 9.1. Advocates frequently communicate with each other and with clients. This often happens in briefs from the State Attorney, with the consent of the instructing attorneys who are either included in those emails or apprised thereof if the State Attorney server is down. This especially occurs when the network of the State Attorney is down. In fact, more and more in litigation the creation of WhatsApp groups where attorneys and advocates are both included have become common. The assumption that the Head of the Asset Forfeiture Unit or even the NDPP was subverted is simply mischievous speculation. On the one hand, the accusation appears to be that an improper communication with the Head of the Asset Forfeiture Unit occurred, whilst on the other hand it is said that the Head had been excluded. This shows how preposterous the allegations in the Xulu affidavit are.

Though she has not found the email sent to Adv Cronje in order to authenticate the copy attached to the Xulu affidavit and despite its illegibility, on the assumption that it is correct, she pointed out that it is also not untoward to provide a document and indicate that it should be amended to reflect a particular language style. It remains unclear how this constituted a criminal offence or interference in any investigation, especially where such appears to have been provided to Adv Mzinyathi. This defeats the allusion sought to be created that she was engaged in some sort of private nefarious communication with Adv Cronje.

To the extent that there appears to be an assumption that the contents of the email reflect prima facie contraventions of the NPA Act, it falls woefully short.

Complaints before the CBC and the LPC and the Xulu affidavit

A copy of her response to the LPC is annexed marked “C”. The complaints were entirely without substance and include what she had put before the CBC. She pointed out that the contents of the Xulu affidavit are but more of the same.

Adv Bawa stated that Mr Xulu said under oath that it was as a result of the failure of “Bawa SC and Manuel to respond” that he then directed a complaint to the Cape Bar. She referred to this as a material misrepresentation. She explained that what had actually happened is that on the first day of argument in the matter before Smith J on 22 June 2020, Mr Xulu, just prior to the Court commencing, threatened the DFFE legal team, saying “there will be casualties along the way”. Just before she got up to present argument on 24 June, the team, via email, received a letter from Mr Xulu threatening herself and their instructing attorney, that steps would be taken if they did not remove themselves from the brief. They were offered a period of “safe harbour” if they withdrew from the case. She reported this to the Bar Council and they addressed a letter to Mr Xulu, asking for a response. His response was to file a complaint against her and Mr Manuel to the CBC and the LPC.

She was specifically asked by the CBC whether she wished to pursue the matter against Mr Xulu. Given that there was pending litigation and she did not want to be conflicted, putting the client’s interests first, she indicated that at that juncture she would not do so.

Adv Bawa said that the 2020 Xulu complaint used words like “improper”, “surreptitious” and “committing of an offence” but provided no details to either the CBC or the LPC. In fact, it was alleged at the time that details could be obtained from the NPA file dealing with the Bengis matter. She questioned Mr Xulu’s knowledge of the contents of NPA files that are meant to be confidential. This remains a concern. Mr Xulu’s complaint was at best poor and contrived and obviously a bullying tactic. Given that it had been so poorly constructed, it did not warrant substantive input from herself on the allegations contained therein, but she nonetheless provided a response to the extent that she deemed necessary.

The complaint of 30 July was so convoluted, one could not actually make proper sense of it. She did not “hide” behind the various judgments handed down by Rogers J and Smith J as a form of justification. As far as she was concerned a number of the accusations had been made on the affidavits before the Court and as they were engaged in litigation that was pending it should be dealt with circumspectly. Not only are these judgments binding, but there were just no unlawful, unethical or criminal actions to answer for. To the extent that allegations of that nature were made on affidavit and dealt with, judgments were handed down and there was no conclusion that any false evidence had been put before the Court was reached or that the legal teams had knowingly or even unwittingly placed false evidence before the Court.

It was simply because Mr Xulu was dissatisfied with the findings of the Court, and left with little recourse in the courts, he appeared to be “litigating” these allegations against the legal representatives under the guise of complaints to the CBC and the LPC, in the hope that it would give him a reason to go back to court.

Adv Bawa stated that there was also no frustration of any prosecutorial process. As the NDPP was copied into the complaints to both the CBC and the LPC and given that Adv Batohi would have knowledge of the cooperation that ensued, Adv Batohi would have been aware of the matter and her involvement, as well as the communications that had ensued with Adv Hofmeyr, in his capacity then as the Acting Head of Asset Forfeiture. The latter appears to be the case from the very memo being relied on, assuming that it is indeed authentic.

The high water mark of the Xulu affidavit is unsubstantiated allegations of “unlawful and possibly criminal actions”. Mr Maxwele, who personally knows nothing about the allegations in question, elevates this to “necessitating a criminal complaint” and appears to reach unsubstantiated conclusions that there had indeed been contraventions of certain laws and codes of conduct.

She said that it was not correct that she had not denied the allegations made against her in her response to the LPC, as she expressly stated in paragraph 33 thereof that there is no basis upon which to conclude “that any false evidence was put before the Court and/or that the legal team knowingly or even unwittingly placed false evidence before the Court”.

Whilst the CBC did not seek to refer to the judgment of Smith J to make a finding in relation to what was put before the Court, she respectfully disagreed with the CBC in that it was evident from the judgment of Smith J, that the Court had no cause for complaint that the evidence placed before it had been false, belying the allegation that the DFFE legal team had put false evidence before the Court, knowingly or otherwise. Accordingly, the CBC should have informed the complainant that based on the judgment there was no merit to the first charge, as was the case on the substance of the case.

Mr Xulu is thus not being truthful when he says to the Court that there had been no denial of the allegations. She also explained to the LPC and provided reasons why there was no merit to the complaints.

She has no knowledge of the nature and extent of the investigation conducted by the CBC and LPC in relation to this complaint, but given the thoroughness with which the disciplinary process is ordinarily dealt with at the Bar, in her own experience, she would be very surprised if the matter had not been dealt with, and closely scrutinised, by a more senior member of the Bar, or that the Bar Council had not thoroughly considered the complaints, given the nature of the complaints.

Adv Bawa said that she understood that Mr Xulu/BXI did not seek to exercise their right of internal appeal with the CBC and that Mr Xulu’s last communication with the LPC was in October 2021. To now raise allegations in an affidavit irregularly filed on 4 October 2022, has every appearance that he seeks to create mayhem in the Enquiry, and then use that as a basis to impugn her credibility in the court processes.

The last communication she received from both the LPC and the CBC indicated that she had not transgressed the conduct rules of her profession and to all intents and purposes indicated that the complaints were meritless.

It remains so that there is no further substantive evidence in the most recent Xulu affidavit to give rise to any fresh consideration of the complaints that had been raised in 2020, or that warrant re-consideration by either the CBC or the LPC.

She found it mischievous to say to this Committee that there are “records” pertaining to misconduct on her part serving before the High Court or to hint or suggest that there are any pending criminal investigations that she is involved or has been implicated in, when this is not the case. It appears to be nothing more than a ploy for reasons already stated, with the knock-on effect of derailing the Enquiry. There are no records reflecting any misconduct before the Court. Criminal investigations are done by the South African Police Service (SAPS), not the NPA.

Mr Maxwele’s conclusions are entirely fictitious as to the reasons for any communications with Adv Cronje. Even if the contents of the illegally obtained email relied on are correct, it still does not point to any transgression.

The supposed “other officials” referred to have not been properly identified. With regard to the memorandum to which is referred, paragraph 9.3 of Mr Maxwele’s complaint can only be a reference to email communication with Adv Hofmeyr. These communications were referred to in court papers. Mr Manuel under oath explained how the communications with Adv Hofmeyr occurred. There was nothing sinister about it, nor did it amount to an interference or hindrance with any prosecutorial process. To the extent that Mr Maxwele has seemingly elevated the reference to Adv Hofmeyr in the memorandum to “other officials” in plural, appears to be a deliberate misrepresentation as the memo ex facie does not refer to communication with any other member of the NPA, apart from Adv Hofmeyr. She does not accept that the memo is indeed authentic and lawfully obtained.

Adv Bawa stated that she had not engaged in impermissible and unlawful behaviour to obtain information and she denied that she at any stage misled a court. The bald averment that her “standing, character and conduct” has given rise to speculation is precisely being raised to create “smoke and mirrors”. Using this test would mean any one can raise unsubstantiated allegations in unrelated proceedings and it is then invoked to taint the Section 194 process now, and in future, for whatever nefarious motive under the guise of “speculation”. The averment only needs to be stated to be rejected.

She said that Mr Maxwele wanders into the world of conjecture, supposition and theories which have no foundation in law and fact. Mr Maxwele does not point to any allegations which impugn her standing, character and conduct as an advocate in practice or otherwise. The reliance on his erstwhile attorney’s affidavit in the context as described herein is hardly a legitimate basis and the allegations emanating from Mr Xulu do not warrant the elevation to bona fide accusations that would imperil the Enquiry. On the contrary, to do so would be unwise and set a dangerous precedent for parliamentary committees.

Given that Mr Xulu had no hesitation to threaten the DFFE legal team in Court demanding the withdrawal of its senior counsel and instructing attorney, is an indication of the scandalous manner in which Mr Xulu conducts litigation. If there had been a legitimate basis to raise a complaint it would have been properly and openly done in open court with submissions being addressed to the court in the context of the case as opposed to sending emails containing threats. The very matter which was then argued before Smith J resulted in a judgment dismissing Mr Xulu’s case and the Judge awarded the cost of three counsel in favour of the DFFE. The matter was not appealed. This was not surprising as the case in itself had such poor merits from inception.

With reference to the Xulu affidavit specifically, she pointed out that:

• The allegations against her in this application were an afterthought, made clearly with the intent that it serves before the Enquiry.

• She is not a party to the litigation though she remains senior counsel in that matter. Most of the Xulu affidavit is a regurgitation of what had been previously stated in other affidavits by Mr Xulu – a largely “cut and paste” job. These allegations bear no relevance to the relief sought.

Adv Bawa pointed out that at the time the allegations were made in 2020 there was, to the best of her recollection, no credible information to indicate that there were pending criminal investigations against Mr Mlengana. This was dealt with in an affidavit filed by Mr Manuel. She has no personal knowledge or involvement in the criminal matter currently pending against Mr Mlengana but it appears from reports that it relates to supply chain management irregularities. Summons was issued on 4 March 2022 in the Bellville Regional Court and reflects that the investigating officer is Captain Darries and the prosecutor is M Seroto. The matter is being dealt with in the Western Cape. She is not acquainted with either, though clearly the prosecution would fall under the jurisdiction of the Western Cape Director of Public Prosecutions. The charges attached to the summons do not include a charge for perjury in relation to affidavits filed in the BXI/Xulu matter. More pertinently, it is highly unlikely to have involved either Adv Cronje or Adv Hofmeyr, and the suggestion that these charges could not have been brought until after they had left NPA is a figment of his imagination.

Absent details as to how precisely there was manipulation and subversions of court processes in the Bengis matter, the mere say-so of Mr Xulu does not constitute a prima facie case of unlawful conduct. Communications with Adv Cronje and Mr Hofmeyr were not secret or unlawful and the conclusions drawn are spurious. Suggestions that communication was “unsanctioned and undisclosed” is speculative. There is no evidence beyond Mr Xulu saying so that the communications were unsanctioned or undisclosed.

With reference to paragraph 25, Mr Xulu refers to documentation provided by a whistleblower who allegedly “feared retaliation at the hands of their superiors in the event that same was realised and presented in public records”. Adv Bawa said that she has no knowledge of what he is referring to but it appears that some of the annexures to the affidavit are photographs taken of what can only be regarded as documentation in the possession and under the control of the NPA. This is not the work of a whistleblower. This is the work of somebody who illegally obtained information in possession of the NPA and provided such unlawfully to Mr Xulu. This illegality is being hidden under the guise of whistleblowing. This is concerning given the nature of the work the NPA conducts. In any event, for that reason she disputes the authenticity of the documentation attached to the affidavit.

Adv Bawa found it ironic that Mr Xulu suggested that an internal and confidential memorandum to the NPA was provided to her outside of conventional communication channels (which is denied) and yet he is relying on NPA documentation which he unlawfully obtained clearly outside “communication channels” and in contravention of the very legislation relied upon. She was not provided with the memorandum of Mr Molelle and Adv Mzinyathi by Adv Cronje. The speculative and uncorroborated statement that documentation was leaked to her is also not supported by any evidence.

It is to be noted that despite the thousands of pages of documentation that had been provided by Mr Xulu/BXI during April 2019, there was not one page that reflected an authorisation being granted to BXI to act as the attorney of record for the NPA in court proceedings at a time when BXI obtained a court order in chambers from the Judge President Hlophe, and which remains the subject of litigation before the WCHC.

In light of the condonation application pending before the Constitutional Court, her instructions have been that no further steps would be taken in the pending cases until that litigation reached finality. At no stage has the litigation been spurious or driven by a desire to write fees.

There are pending matters that have precisely not been actively pursued given the number of costs orders against Xulu/BXI and money owing to DFFE by him. This means that DFFE would litigate at risk of not being able to recover costs. Given this, BXI and Mr Xulu’s inability to provide security for the vexatious litigation and the proceedings pending in appeal courts, no further steps have been on these matters, precisely so that unnecessary costs are not incurred.

To the extent that any information was provided to the NPA, this was done on request. To the extent that there are allegations that she personally sought to obtain information from the NPA in a surreptitious manner with some unlawful motive in mind, this is denied. No personal benefit accruing to her to do so has been pointed out. In order for such to have been surreptitious, it would have meant that it was done without the knowledge of the NDPP and there is no evidence thereof in the Xulu affidavit.

To the extent that it is alleged that she did not deal with the allegations as contained in this affidavit in respect of the LPC, a copy of her response to the LPC is annexed. Given how poorly the complaint was drafted, not all allegations even warranted a response.

The suggestion in the Xulu affidavit that she interfered with the NPA’s processes through correspondence with Adv Cronje and Mr Hofmeyr, is without basis. There is no evidence attached to the affidavit. It is stated to serve a fanciful conclusion that the NPA only took action against Mr Mlengana following the departure of Mr Hofmeyr and Adv Cronje from the service of the NDPP. Adv Bawa pointed out that Mr Hofmeyr had left the services of the Asset Forfeiture Unit at the end of November 2019. As Head of the Asset Forfeiture Unit, he is unlikely to have been involved in any prosecutions relating to contraventions of supply chain management provisions for which Mr Mlengana has been charged in the Bellville Commercial Court in the Western Cape.

The farfetched conclusion reached that Adv Cronje, appointed as Head of the Investigative Directorate, had involvement of any nature in respect of the prosecution of Mr Mlengana is also without basis. There is no evidence of the wild and defamatory allegations made in the Xulu affidavit. In the absence of evidence, she cannot meaningfully respond further to the allegations.

Adv Bawa reiterated that there is no evidence of interference in any NPA processes. There is no evidence in the Xulu affidavit of any surreptitious behaviour or manipulation of court processes. The ad hominem attacks simply serve to illustrate the lack of substantive merit in BXI / Mr Xulu’s applications.

UDM Complaint

On the request from the Honourable Member Holomisa, dated 12 October 2022, seeking her recusal as Evidence Leader; Adv Bawa noted the following:

• With reference to paragraph 2, the entire submission is premised on what had “come to the attention” of the UDM that she is “implicated” and “embroiled in legal proceedings” where her alleged conduct is being questioned on an issue which, at the face of it, could lead to criminal prosecution in terms section 41(6) of the NPA Act. Adv Bawa noted that she is not embroiled in legal proceedings as she is not a party to the litigation. She is also not implicated in any crime beyond Xulu’s spurious allegations.

• To the extent that the UDM was informed that the Xulu affidavit in its entirety implicates her in any wrongdoing and/or unlawful activity, the UDM was misled. Of the 409 pages filed, approximately 5% thereof deal with the allegations.

• She was not sure why the Judicial Service Commission would have any jurisdiction to look into allegations made in the Xulu affidavit.

Adv Bawa noted that the Xulu affidavit casts aspersions on both Adv Cronje and Adv Hofmeyr but presents no evidence that they had at any stage acted outside of the performance of their functions and duties. On that simple premise, there is no “prime facie” case that has to be met in this regard.

The allegations of any subversion or manipulation of court processes are without merit and denied. The CBC and the LPC have investigated Mr Xulu’s complaints against her and dismissed them. Mr Xulu may not like the basis on which they were so dismissed. In relation to the former he took no further steps and in relation to the latter he has taken no steps since October 2021.

In conclusion, Adv Bawa pointed out that there is no criminal investigation that had been interfered with. It is not clear whether the UDM had been apprised that the affidavit brought to their attention is nothing more than an untested and untrue affidavit from a disgruntled litigant who repeatedly embarks on unmeritorious litigation or has stalled litigation to avoid paying back the R20 million of public funds that he had unlawfully removed from departmental bank accounts. The motive to discredit her before this Committee appears to be but a stepping stone, to create further grounds to embark on further litigation.

It is said that “a document only proves what is written in it but not the truth of what is written”. Whilst it would not ordinarily apply to an affidavit, in this case it does.

Discussion
Mr B Holomisa (UDM) said that his main focus was on the procedural issues of solving this problem. He found Adv Bawa’s presentation to be very detailed. The Committee has a duty to hear both sides of the story, and should invite both complainants after giving proper notice. A statement must also be obtained from Mr Xulu to provide his version. Adv Bawa had made serious allegations of dishonesty against Mr Xulu.

The Committee cannot only provide an opportunity of an oral presentation to Adv Bawa, without affording the same opportunity to those that accused her of wrongdoing. The Committee cannot just hear a defence without hearing the accusations being responded to. The agenda only deals with the complaint of the UDM, but the Committee had allowed Adv Bawa to deal with separate complaints by Mr Maxwele and Mr Ngobeni. Therefore, the Committee should hear the side of those who she has mentioned. If the Committee makes a decision after only hearing one side, then it would be meaningless and a waste of time.

Mr K Mileham (DA) thanked Adv Bawa for her very detailed and comprehensive response to the allegations, as it helps the Committee put it into perspective. Firstly, he referred to Mr Holomisa’s remarks on procedure, and said that the Committee needs to acknowledge that Adv Bawa is not the person of interest to this Committee. In other words, Adv Bawa is not the person for whom the Committee should consider whether or not there are impeachment proceedings that need to be followed. As far as that is concerned, Adv Bawa is not a person who the Committee should be investigating or taking further action against.

Secondly, the allegations that were made by the various complainants are completely unsubstantiated. It is basically allegations that are thrown out there, in the hope that something will stick. There is no evidence provided, there is no supporting documentation, there is no reference to cases or case numbers where charges have been laid, or anything like that. They are mere allegations. It is not the job of this Committee to consider those allegations.

The third point he would make is something that Adv Bawa had elucidated quite well, that she is not the decision maker in this matter. In other words, it is Adv Bawa’s job to present evidence, it is her job to lead the witnesses and it is her job to collate information and present it to the Committee. Other issues that she may be dealing with outside of the Committee are absolutely irrelevant to the Committee’s deliberations and whether or not the Committee reaches a decision for or against the Public Protector. As such, he found it bizarre that this recusal application is even brought, because it is not something that would materially affect the outcome of the process that the Committee is underway with. Adv Bawa is perfectly competent to continue as the Evidence Leader, she is well qualified and has done a sterling job so far. The allegations against her in no way prevent her or preclude her from continuing as the Evidence Leader and should not be entertained by this Committee.

Ms J Mananiso (ANC) agreed that Adv Bawa’s response was reasonable and dealt with facts. The Committee is told about using the majority vote, and while she does agree that the majority can sometimes be wrong, the minority should not delay the majority. She rejected the request for the recusal of Adv Bawa.

Mr X Nqola (ANC) equally moved for the rejection of the recusal of Adv Bawa. He explained that if one read the application by the UDM, it has seven paragraphs, all of which bases its own wisdom on allegations. Paragraph 2 to 7 contain the words “allegedly”, “allegations” and “alleged”. It seems as if the entire application is based on the wisdom of allegations. Regardless of one's profession, Section 35 of the Constitution grants all citizens a right to be declared innocent until proven guilty. Section 2 of the Constitution declares or proclaims the Constitution as the supreme law of the country, so any conduct or law against it is unlawful and invalid. The application from the UDM does not meet what one would expect from a recusal application.

The other application, whether by Mr Xulu or Mr Maxwele, is not based on the proceedings of this Enquiry, but it is solely based on the conduct and character of Adv Bawa. Once a person provokes the character of another person, then that person in return provokes his/her character to being judged as well. If the Committee cannot have Adv Bawa as the Evidence Leader, on the basis of her conduct or character and in all the matters stipulated in the application, then it also questions the character of the applicants as well. He explained that the character of the complainants is also attended to in the response. Adv Bawa’s response is the antithesis of what is in the application for her recusal.

The third matter is whether the Committee would condone the application that only deals with the disputed character of Adv Bawa, that has no bearing in the Enquiry. Given that the application refers to matters that are outside the jurisdiction and the operations of this Enquiry, it does not give the Committee much issues to raise. In her response, Adv Bawa disputed that she has committed any interference with criminal investigations. Adv Bawa also said that she is not aware of any pending matter against her before the High Court. So what is written in the application exists only as a figment of the applicant’s imagination. Adv Bawa’s response is a complete denial of what is being accused or alleged in the application itself.

The relationship between Mr Ngobeni and Seanego Attorneys that are representing the Public Protector in this Enquiry has not been detailed at length. He asked if Adv Bawa could elaborate what was meant when she spoke of an invoice that involves Mr Ngobeni and Seanego Attorneys.

He noted that Adv Bawa stated that the last communication that she had received from both the CBC and the LPC, indicated that she did not transgress the conduct rules of her profession. Meaning that the professional bodies did not find any transgression on her part, on what is being alleged in the application. Further, the UDM speaks of Adv Bawa being embroiled in many litigations, but Adv Bawa disputed that she is embroiled in any litigation. Adv Bawa had explained her involvement, in terms of her being instructed by DFFE, in which she executes her role as an advocate of the High Court – not as a suspect, respondent or any other form.

From what he has read, from all angles, he is of the view that this Committee can continue to do its work. The allegations and accusations have no concrete and substantive submissions. The Committee should be transparent and open, because this is a matter of public interest, but should not allow frivolous applications to delay this Enquiry. In her detailed response, Adv Bawa detailed how Mr Xulu had continuously employed a “Stalingrad” strategy of litigation.

He moved for the rejection of the recusal application and for the Committee to proceed with its work. He does not think it would be adequate for the Committee to call in any other person that is outside of this Committee or this Enquiry. Mr Xulu, Mr Maxwele and Mr Ngobeni are not part of this Enquiry, and therefore it is not adequate for them to do any oral presentation in this Committee. The Committee had already received their affidavits and application.

Dr M Gondwe (DA) appreciated the effort that Adv Bawa has made in taking the Committee through her response to the recusal application. She agreed with Mr Nqola, that there is no need for the Committee to call in anyone that is outside of this Enquiry, as it will not add relevance to the work of this Committee. She supported Adv Bawa’s decision to decline this invitation to recuse herself as Evidence Leader in this Enquiry.

The matter that was used as the foundation for the recusal application is so far removed from the work of this Enquiry. Adv Bawa had just confirmed to this Committee that she has been on brief in the matter raised in the recusal application since 2019, and that there are several pending applications in terms of this brief. The matter not only predates the work of this Committee, but it is also very complex in nature and has no bearing or relevance to the work of this Committee.

In her opinion, Adv Bawa had not uttered or done anything that would warrant or necessitate her recusal from this Enquiry. If anything, she has conducted herself with the professionalism and decorum that is expected of someone of her standing, as senior counsel of the Cape Bar and as senior officer of the Court.

She agreed with Adv Bawa’s assertions in her response to the recusal application. These are that she is not the ultimate decision-maker in this Enquiry and neither is she a Member of this Committee. Adv Bawa’s role is merely limited to that of being the Evidence Leader; an Evidence Leader that can either exonerate or implicate the Public Protector. She therefore requested that the Committee move on and not even give any more thought to the recusal application. The Committee are just about to listen to the last of the witnesses called by the Evidence Leader, and thereafter, have the Public Protector lead her witnesses.

Ms D Dlakude (ANC) thanked Adv Bawa for the detailed response to the recusal application. She agreed that the Committee should reject the recusal application, because it has no basis. She supported the response given by Adv Bawa and she looked forward to continuing with the work that is before the Committee.

Ms B van Minnen (DA) agreed with most of the Members remarks, particularly Dr Gondwe’s. She noted that Mr Holomisa had said that the Committee has to have both sides of the story; she said that this is exactly what the Committee has. There is a recusal application that Adv Bawa had more than adequately answered. The Committee has heard both sides. This Committee has no choice but to dismiss the recusal application. The recusal application is ill-founded, does not have any basis in relevance, some of the facts appear to be dubious and no case has been made at all. The Members that have worked in practice, in law, are very aware of malicious litigants; it unfortunately seems to be a discipline that does attract its fair share of people who seek to possibly misuse the process. In this particular case, the Committee should dismiss the recusal application and move forward, not only for this Committee but for the good of the people of South Africa.

Mr B Maneli (ANC) accepted Adv Bawa’s decision to not recuse herself as Evidence Leader of the Enquiry. He said that there is no ground given that proves her bias in the way she has led evidence in this Enquiry. The Committee has one witness left, on the evidence led on charges brought against the Public Protector. The Committee is almost at the tail-end.

There is no evidence to prove any ethical issue which could be raised to the effect that it would taint the Enquiry, even from a point of morality which is very difficult to prove. Adv Bawa had provided a comprehensive response to the recusal application, which he accepted.

He pointed out that when one reads the document in response to the recusal application, that the matters predate the functioning of this Enquiry. Adv Bawa was not elected into this Committee, but she was appointed as the Evidence Leader. This has been made public, because the Committee’s meetings are public. He explained that when reading about the character of the complainants, in terms of the litigation, that one would come to the conclusion that Adv Bawa had made, that the allegations had been brought before the Committee to derail the Enquiry.

He said that theory has not helped, because the Committee had thought that everything would be confined to what is the Enquiry. If theory fails, then events will teach. The events are beginning to teach the Committee that it can get out of what it is mandated for if the Committee does not screen better. He explained that he had used the term “screen better” because if the recusal application made reference to a criminal matter before the court, then the first question should have been whether it had a case number. It should not be a case of giving the other side an opportunity to be listened to, to try and build up a criminal case that the Committee are not even aware of. As a citizen, over and above being a Member of Parliament, he respectfully assumed that even the UDM may have not been aware of the details that were presented to the Committee this morning, because if they were aware then he would be worried as a citizen, particularly the details of the complainant that had unlawfully removed public funds from departmental bank accounts.

He agreed that the Evidence Leader should be able to continue to do the work she was appointed for. The terms of reference of her appointment have not been under question in the whole discussion. He suggested that this event should teach the Committee to screen the matters better; the Committee should first try to get background information to determine whether the matters really deserve the attention of this Committee.

Ms O Maotwe (EFF) said that the Committee does want to continue with the Enquiry, but it should not continue with questionable characters amongst it. This is very crucial and should not be taken lightly. This is the first Section 194 Enquiry; it is the first of its kind in a post-apartheid South Africa. Therefore, this process is bound to be contested. It requires all Members, at all times, to be balanced and put aside what is not in the interest of Parliament, and definitely not in the interest of the public at large.

She recalled that her initial response to the Chairperson’s recusal by the Public Protector’s legal team, was that the Chairperson needed to appreciate that such a process would require all of the Members to have confidence that they have done everything in their power to make the process appear as objective as possible. If not, then the public will not have confidence in this process. She maintained that this was an important objective that the Members should all seek to maintain and achieve throughout this process.

It is impossible to look at the outcome of this process without serious questions. This is extremely important because it involves the Evidence Leader. The terms of reference are clear about the role of the Evidence Leader, that it must be someone who is tasked to assist both the Public Protector and the Committee to lead evidence, not in a biased manner.

The Members have studied the submission by Gardee Godrich Attorneys and the response by Adv Bawa. The affidavit does represent allegations and question the conduct of Adv Bawa. The Committee should not be subjected to the task of judging if the allegations are material enough or not. In some instances, it was not clear whether Adv Bawa was saying that she did, or did not, do some of the things that was alleged. At some point is sounded as if Adv Bawa wanted to complain about the complainant, because instead of addressing the affidavit she began to discredit the complainant. Adv Bawa went at length to try to discredit the complainant and not focus on the allegations.

All the Committee needs to do is to think and prioritise the integrity of this Enquiry. She said that Adv Bawa must recuse herself – not to say she is guilty of the allegations, but to simply allow the Committee to arrive at a conclusion on time and without challenges that could be avoided. The simple suspect of the wrong conduct and questions of involvement will lead the Committee to wasting the taxpayers’ money. It should not be a matter that Adv Bawa remain as part of this Enquiry at all cost.

The EFF had also raised a matter to the Speaker, about the conduct of the legal team assisting the Committee. For example, the Members had witnessed a very disturbing scene where Adv Bawa had passed a note to another Committee Member, which was believed to contain the name of the EFF Deputy President, Mr Floyd Shivambu. The EFF are suspicious of Adv Bawa’s political motives. For the sake of the Committee, time, and the people of South Africa, Adv Bawa should recuse herself and allow the Committee to continue with someone whose character is not questioned.

She is aware that in the Zondo Commission, the Evidence Leaders were paid close to R50 000 a day. So, she is not sure of the financial implications for Adv Bawa to want to remain Evidence Leader of this Enquiry at all cost. For the sake of the people of South Africa, for the sake of Parliament and for the sake of this Enquiry, Adv Bawa should recuse herself so that the Committee can have a clean Enquiry, and so that no one can question the character of anyone participating in this Enquiry.

Ms V Siwela (ANC) said that she is worried about the way that the Committee is moving with this Enquiry, because it started very well but all of a sudden there are a festival of letters coming forth. She is worried about the cost, time and the integrity of this Committee. She suggested that the Committee stick to the guidelines and proceed with doing its work properly. She does not think it is reasonable for Adv Bawa to recuse herself. The recusal of Adv Bawa would indicate that the Committee are not realistic, because she is one of the best senior counsels based on her character and soberness in doing her job. The Committee are not there to politicise and should not punish a person without evidence. She supported Adv Bawa and rejected the application that she must recuse herself. Adv Bawa does her work very well. There is no one who can perform better than what she does.

Mr B Nodada (ANC) said that by virtue of being Members of Parliament, the Members are legislators. Meaning that they are people that make the law. The Committee are bounded by the Constitution and are not a court of law. The Committee are not people who determine allegations of criminality or any other form of law breaking. The Committees of Parlaiment are an institution that needs to play an oversight role in those particular entities.

The Committee are now discussing issues of allegations on matters that have no relevance whatsoever to this Enquiry. The Committee has no jurisdiction to determine whether the allegations that have been put forward are valid or not. It is a waste of time to deal with applications that have been put at the doorstep of the Committee, where it does not belong. This resulted in the Committee dealing with matters that it has no jurisdiction to engage with.

He has read through the response of Adv Bawa and her recusal is sought simply because of rumours and allegations that have nothing to do with this Committee. It is disrespectful to have things sent to this Committee that have no bearing whatsoever. He pointed out that Mr Maneli had raised something very important, that the Committee should be very careful of entertaining things that it has no jurisdiction of and that the Committee should ensure that it has a legal obligation to deal with what is put before it. Whatever is put before the Committee should pass a test by its legal services, to advise whether the Committee should be dealing with something like this.

The Committee had spent the morning talking about things that has no relevance to this Enquiry. The Committee are wasting time on allegations and rumours that it has no business in dealing with. If somebody has an issue with any person in this country then they have the courts to go to and have a legal route to do so. Once the courts have made a determination as to what the outcome of those allegations are, then if it is relevant to this Committee then the Committee can deal with it, but to deal with rumours is really annoying.

He proposed that the Committee accept the fact that Adv Bawa has legally utilised her right to not recuse herself, for whatever reasons stated. Moving forward, he suggested that the Committee make a resolution that whatever is put before this Committee should pass the test of relevance and that the Committee should be legally guided on whether it is relevant for it to deal with those issues.

Mr B Nkosi (ANC) agreed that the matters raised in the recusal application are not relevant to this Committee, there are other courts and tribunals that can make decisions on it. He suggested that the Chairperson of this Committee request the Speaker to enquire whether the Public Protector South Africa has a budget for legal fees, and how much of these fees are ringfenced for the Section 194 process involving the Public Protector. This will indicate whether the Public Protector South Africa can afford to spend taxpayers’ money on a strategy that is intended to stall the process.

He also suggested that the Chairperson should ask the Speaker and Parliamentary Legal Services whether the National Assembly may approach the Constitutional Court to ask for a declarator or a decision that compels the Public Protector to utilise and exhaust the processes of this Section 194 Committee, before approaching any courts and without limiting her rights.

Mr G Skosana (ANC) said that in his understanding, a recusal application can be sought in such an Enquiry if there is a reasonably perceived conflict of interest, or a reasonable suspicion of bias based upon objective facts. Given that the grounds of the two recusal applications are not directly related to this Enquiry and fall outside the scope of this Enquiry, he agreed with the Members that said that the Committee should reject the recusal applications. He also supported the decision made by Adv Bawa to not recuse herself.

It has repeatedly been stated this Committee is not a court of law. The Committee are limited to the scope of its work, which is an Enquiry into the fitness of the Public Protector to continue holding office. If there is a recusal application then it should be related to the Committee’s scope of work.

He recalled that a month ago, the Committee had dealt with a recusal application that was submitted by the Public Protectors legal team, that had asked the Chairperson of this Committee and Mr Mileham to recuse themselves. In his view, that recusal application was relevant, because it dealt with the work of the Committee. It was said that the Chairperson and Mr Mileham was biased in the manner that they had presented themselves in meetings and the decisions taken, and that Mr Mileham was conflicted because of being married to Honorable Mazzone. However, the two recusal applications that pertain to Adv Bawa are not relevant, because it deals with matters that are outside the scope of this Committee.

This Enquiry had witnesses appear before the Committee who self-confessed that they have been convicted in a court of law, or have pending cases in a court of law. However, the Committee could not say that it would not listen to the witnesses' evidence on the basis that they have pending cases in a court of law or because they had been found guilty in one or two cases. Those witnesses have been allowed to present evidence, because the Committee’s interest is only limited to the evidence that relates to the work of the Committee. Whether a witnesses’ character is questioned or not, is not a determination for this Committee. The Committee are only interested in the evidence that relates to the Enquiry.

Moving forward, he agreed with the suggestion that the Committee should screen matters that are put before it on the basis of relevance.

Legal Services’ Opinion
Ms Fatima Ebrahim, Parliamentary Legal Advisor, said that she will not deal with the merits of the allegations or the circumstances of the litigation matter, because Adv Bawa had covered that extensively. She will make some brief remarks in respect of what she thinks the Committee should consider or take heed of.

Firstly, the rules of the National Assembly never provided for the appointment of an Evidence Leader. Members will recall the Constitutional Court judgement that confirmed the WCHC ruling that the Public Protector must be afforded legal representation and a legal representative who would be allowed to participate in the proceedings of the Committee. This Committee then decided that it would be necessary to have an Evidence Leader. This was included in the terms of reference. The terms of reference dealt with the appointment but it did not deal with the removal of the Evidence Leader. As the appointing body, this Committee has the power to make a decision to solely remove the Evidence Leader. There would be nothing untoward or unlawful in making such a decision to remove the Evidence Leader.

Secondly, she wanted to comment on the nature of the so-called recusal applications or recusal requests. She had said “so-called”, because the legal concept of recusal relates to allegations of bias or conflict of interest, such allegations are not being made here. She cannot clearly see this in the submissions that have been made, the allegations seem to relate entirely to a litigation matter in which Adv Bawa has found herself acting for one of the parties. While Adv Bawa has explained the links between that litigation matter and the current process before the Committee, it does not in fact have any bearing on the work of this Committee.

On what has been submitted, she does not see anything in law, that would prevent Adv Bawa from continuing as an Evidence Leader. The allegations made against her remain allegations. There are no findings against her of having breached any laws, nor has she been convicted of any crime or found to have breached any ethical standards, in terms of the professional standards that she is held by.

It is also unclear of how Adv Bawa’s continued participation in the process could pose any legal risks. There has been no case made out for biasedness or conflict of interest, which would have been the legal test applied.

It seems that the removal requests are based on the fear that her participation of the process, because of these allegations, might taint the process. It is reputational in nature rather than legal. From her understanding of what the Members have said so far, it seemed that the Members have adequately grasped that.

The role of the Evidence Leader has been clear from the beginning. As per the terms of reference, the Evidence Leader is not a prosecutor. The Evidence Leader is not a decision maker in this process. The role of the Evidence Leader is purely to assist the Committee by placing the evidence before the Committee, but it is the Committee itself that would have to weigh that evidence and determine what its recommendations would be to the National Assembly.

It seems that the question is whether the Members are of the view, that based on these allegations, there is a breakdown of the trust relationship with Adv Bawa, that Members therefore feel that she should be removed and that she would taint the process. From what has been heard, it appears that the majority of Members do not feel that way. Nonetheless, Members must take cognisance of what the allegations are.

She noted the proposal that the complainants and Mr Xulu, whose affidavit formed the basis of the two complaints, should be afforded an opportunity to come before the Committee. She respectfully disagreed with this proposal, because that litigation process has nothing to do with the work of this Committee. The affidavit and the allegations contained therein must and will be tested by a court, it has nothing to do with this Committee at all. The mandate of this Committee is very narrow. The allegations against Mr Xulu are that the monies that he is alleged to have taken relates to public funds. It may well be that the Portfolio Committee on Forestry, Fisheries and the Environment may want to consider getting an update on this matter, because it does involve public funds, but it certainly has nothing to do with the mandate of this particular Committee. The Committee cannot allow an Enquiry within an Enquiry.

She reminded the Committee of its Constitutional obligation that this matter be dealt with diligently and with without delay. There have been various delays since the start of the proceedings. It is important that the Committee keep focus and not lose track on what it is meant to be doing.

Should the Committee wish to remove Adv Bawa because it is felt that they have lost trust in her, then they certainly can do so, but in so doing, it would not be based on any legal grounds. It would be a reputational issue and nothing more.

Evidence Leader comments
Adv Bawa said that she will limit her comments on issues of clarification and not engage in the dialogue of what the Members have raised.

There was a question raised on the link between the invoice and the reference to payments that have been made in the matter. There was correspondence that was tabled before the Committee and a copy of that invoice is attached to it. This evidence has been delayed, because of interlocutory applications, but the invoice has been attached and provided to the Committee.

This Committee’s discussion is being limited to the questions that have been raised in the communications put before the it. This is to the extent that there has now been reference made to a particular note, which everyone had seen being passed in an open hearing. That note lies with the Secretariat and the contents of it would be quite clear. Within minutes of that, she had a good chuckle with Adv Dali Mpofu about every kind of nefarious motive that is going to be attributed to it. She had invited the Public Protector’s legal team to have a look at how innocuous the note was. She will ask the Secretariat to make that note available to all Members, so that it can be put to bed without any guesswork of what was contained in the note.

Chairperson comments
The Chairperson said that the key issue is for the Committee to stay focused on its mandate. While the Committee stays within its mandate and stays focused, he urged that the Members have listening ears and seeing eyes. In other words, that the Committee should attend to what it notices while it marches forward in its Enquiry of the fitness of the Public Protector. The Committee does have the ability to attend to the complexity of issues. No one should feel that the Committee does not want to hear anything else.

The Members have made a strong point that any further request or correspondence to the Committee must pass a test of relevance.

He had taken note of Ms Maotwe’s firm view that there is a need to protect the integrity of this Committee and that it would be in the best interest for Adv Bawa to recuse herself.

However, having listened to all the 14 Members that have spoken, it is clear that 12 Members are of the view that the basis of the recusal application bears no relevance to the work of this Committee. As such, that the allegations of the complainants should have not been entertained. Furthermore, that the majority of the Members support the decision of the Evidence Leader to not recuse herself.

He had also taken note of Mr Nkosi’s suggestion of certain things that the Committee would need to pursue or request, as a way of protecting the constitutional work of the Members as legislators and the work of this Committee.

He concluded that the decision of this Committee is that it accepts Adv Bawa’s decision to not recuse herself. The Committee would proceed with its Enquiry.

Further Discussion
Ms Maotwe wanted to put on record that this is not a majoritarian exercise. The importance and strength of democracy is the ability to hear the minority views, when there is the slightest sense of truthfulness. It does not matter whether 12 Members said whatever they have said and two Members have said something different. She asked that it be noted that the EFF rejects the decision of the Chairperson. She asked that this also be noted in the Committee report.

The Chairperson replied that he did note and appreciate the points that Ms Maotwe had firmly raised. It is not just about numbers, but each of the Members that spoke dealt with the detail and the contents of this response. It is the incorrect perception that this was just a numbers game, it was an overwhelming view which is backed by clear articulations and argument that is in line of what is before the Committee.

Correspondence
Mr Thembinkosi Ngoma, Committee Secretary, briefed the Committee on the date and nature of correspondence that the Committee had received.

• On 18 October 2022, the Committee received a letter from Seanego Attorneys, regarding the recusal application of the Chairperson and Mr Mileham.

• On 18 October 2022, the Committee/Chairperson had responded to Seanego Attorneys providing information.

• On 18 October 2022, the Committee had also received a letter from Seanego Attorneys, regarding a notice of application for adjournment.

• On 19 October 2022, the Committee/Chairperson had responded to Seanego Attorneys that the notice of application was noted.

The Chairperson added that on 5 August 2022, the Committee had received correspondence from the Chief Whip of the EFF, that laid a complaint about the Evidence Leaders in relation to whether they have made additions to Mr Samuel’s affidavit and matters that were not brought to the attention of the Public Protector’s team. He had asked the Evidence Leaders to respond to this, which they have. Having received response from the Evidence Leaders, he will forward a response correspondence to the EFF to indicate the outcome.

Closing remarks
The Chairperson thanked the Members for their participation in directing the work of this Committee. He appreciated that he was able to work with a team that is diverse in their thinking and intervention.

The meeting was adjourned.