PP Inquiry day 35: Public Protector Adjournment Application

Committee on Section 194 Enquiry

27 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

Parliament media statement: The Section 194 Inquiry Committee into the Public Protector's fitness to hold office heard Adv Busisiwe Mkhwebane's application to postpone the proceedings to an unspecified date, pending the outcome of her intended review proceedings in the Western Cape High Court to challenge the decision by the Chairperson, Mr Qubudile Dyantyi, Mr Kevin Mileham and the Committee’s decisions to decline her application for the two Members’ recusal.

Adv Dali Mpofu, SC, informed the Committee that the PP instructed her legal representatives to launch this application urgently, and it was anticipated that it would be brought by approximately 31 October 2022. Today’s application sought to halt the Committee’s work in the meantime.
Members were told by Adv Mpofu that the basis of the application will be to request the court to declare the non-recusal decision as unlawful, unconstitutional and/or invalid coupled with the just and equitable remedy of setting aside or nullifying the said decisions. 

The basis for the application was due to the PP’s perceived injustice that she has been subjected to during the Inquiry. Moreover, Adv Mpofu argued that if the Committee were to continue, knowing that a review application was imminent, it would be in contempt of court.

However, Ms Fatima Ebrahim, from Parliament’s Constitutional and Legal Services disputed Adv Mpofu’s assertions, indicating that there was no legal impediment that prevented the Committee from continuing its work in the absence of an interdict or court order to that effect. There was no legal obligation the Committee to cease discharging its functions merely because an affected party has declared that they will initiate a legal challenge against it. In fact, that obligation can only arise if a competent court grants an interdict.
Following lengthy discussions, the Committee resolved to dismiss the adjournment application, with the EFF expressing its objection to the decision. Shortly after that decision was taken, Adv Mpofu indicated that the PP’s legal team would no longer be able to take part in what he described as the Committee’s “illegal activities”. As such, he and the rest of the members of Adv Mkhwebane’s legal team left the meeting altogether.

Members questioned the reasons for Adv Mpofu’s decision, and asked the PP if she had been consulted prior; to which she responded that, like Members, she was left surprised by the decision taken by her counsel. She explained that her understanding was that they would be moving ahead with the proceedings, as agreed to. The PP added that she would need to confer with her counsel and her attorney to find what transpired and whether they would continue to represent her.

The Chairpersonr stated that the scheduled meeting for the following day would continue, unless notice to the contrary was provided.

Meeting report

PMG draft report

Chairperson: I would like to acknowledge Members of this Committee here at M46 and on the virtual. To also acknowledge the Public Protector, here at M46, as well as her legal team, led by Adv Mpofu, also here at M46: you are recognised. I recognise the Evidence Leaders, Adv Bawa and Adv Mayosi. I recognise members of the media joining us and the entire support staff of the Inquiry. Last but not least the most important people of this inquiry, those that have sent us to be here – members of the public in your various platforms. Let me welcome you on this important day… an important month. October is a month of Legends. One of those legends is a true democrat. A constitutionalist who dedicated his life to us being here. Judge Albie Sachs, in his book, titled ‘Oliver’s Dream’, says that his DNA can be found from the first page to the last page of our Constitution because today is the birth of that South African… Kaizana Reginald Tambo, who I acknowledge. I also acknowledge even those who would not have been October legends. I am told that Adv Mpofu, you reached a milestone sometime in September, but not in October… A 60th Milestone. I recognise that.

Adv Dali Mpofu: Thank you Chairperson.

Chairperson: Thank you. We have no apologies, therefore I will quickly set the scene with my introductory remarks and then outline, as would have been outlined in the agenda, the proceedings of the day – as we resume our work. The Public Protector had indicated via correspondence sent to me that she intended to challenge the failed recusal application in court by way of review proceedings and requested that these hearings be adjourned depending on the outcome of that review. I responded acknowledging her request and advising that such an application be made in writing – this is the application that the Members would have received and studied. I further indicated that I will give Adv Mpofu, and the PP’s legal team the opportunity to make oral submissions on the application this morning. I indicated to the PP’s team that I will allow them and hour to make oral submissions on their adjournment application; a timeframe that I was comfortable would be fair. I did, however, indicate that I would reconsider at the start of this meeting, whether in the light of the length of the written application, additional time should be granted. I have therefore decided to grant an additional 30 minutes allowing an hour and 30 minutes to make oral submissions, after which I will allow the Evidence Leaders to make any comments, if any, and then opening the floor for Members to seek clarity questions… only at that point. Thereafter I will ask Adv Mpofu and the Evidence Leaders to excuse themselves to allow us to deliberate and reach a decision. Unlike in the past, where I determined requests for short delays and minor amendments to the programme – as is within my powers to do so, as a Chair – this application is somewhat different in nature, in that it seeks to adjourn the proceedings and in essence postpone the entire Inquiry to some unspecified future date, which will depend on litigation still to ensue. I intend to allow the Committee, as a whole, to deliberate on it and reach a collective decision. I will await Adv Mpofu’s oral submissions before making up my mind on the matter, which I will shed further light on the issues. It is only once the fate of this application is decided, depending on the outcome, which will be one either the Inquiry adjourns with further hearings to be held at some future date or, two: in the event that the Committee does not mind to grant the request to stay the Inquiry, pending (the) High Court application to be brought. You would have seen from the correspondence that I had informed the PP’s team that in the event of the latter, that the Committee will immediately continue with either the cross-examination of Ms Thejane, which is an outstanding matter or Adv Bawa will lead evidence of Mr Neels van der Merwe. However, we will cross that bridge if and only if we get there. But I mentioned it so Members are aware that the hearings may continue today. Therefore, on that note, Hon Members, allow me to recognise and invite Adv Mpofu to address the Committee. Over to you, Adv Mpofu.

Adv Mpofu: Good morning Chairperson, colleagues and everyone else. Chairperson, thank you very much for the birthday wishes. I just want to tell you two things… that 60 is the new 30.

Chairperson: You what?

Adv Mpofu: New 30. I also take exception to you not placing me under the categories of legends… One day I will be a legend. On a more serious note, Chair, I will, because there is not so much time, get right into the written submissions. It is 10:10 now. Chair, I know you have given some of the background but I think to situate my address… Indeed as you have said, this is an application for an adjournment or postponement (which) surely means the same thing of the proceedings pending a review application, which we have formally informed the Committee to be instituted, very soon, as you indicated, Chair. Let me point out that one of the reasons why those proceedings have not been instituted is exactly what we are busy with today, because whatever happens today will form part of those court papers. So, I can say that those papers are probably about 60%, really, so the other 40% is in your hands. That is quite a serious matter, because depending on the outcome, you will be hearing those words from me many times today, depending on the outcome of today. All sorts of permutations… When we come to what I call the practical arrangements, then we will map out whatever scenarios; whether we are going to go to court once or twice or whatever, all depends on the outcome of today. So, today is quite important. Chair, the second thing is, and I want to say this upfront, so that there is no confusion. In the letter that we wrote to you about this… about today, we made it clear that at paragraph five of the letter that we wrote you, dated 21st October 2022 – again, we appreciate the fact that you gave us time to come this week… We said that even when we attend here it will be our intention to attend for the purposes of making an application for the adjournment of the Inquiry, pending the envisioned court challenge (and) depending on the outcome of that application, notice of which is hereby duly given, we will be available to make realistic and practical arrangements of the way forward at that stage. So, for now, our mandate is to move this application and depending on the outcome, we will then deal with the way forward. Chairperson, I think the most practical way to do this is to try and follow the written submissions and then I will just speak to them on the assumption that the Members have had time to gloss over (them) even if they have not read it in detail, but at least to understand the parameters of the application. Chair, just to do some typos, on the first page, the preamble there says ‘an authority should halt its actions when it is aware their review’. It should be that it is aware of the review proceedings. The second one is your error, Chair, which I will take the opportunity to correct. On paragraph five, where we quote your letter, you say ‘In this application kindly indicate by what date you intend to launch such recusal application’ –you obviously wanted to say review application. I think it was just a slip of the pen. At page five, heading C says ‘illustrate case law’, it should be illustrative case law. Okay, if we pick up anything else, we will correct those, but those are the ones I could pick up quickly, Chair. Right. Now, if we can then please go to the very preamble that I referred to now. I will be coming back to this theme very often. What we are busy with here, Chairperson, is not a small thing. In our law, it has been said that the issue of administrative rights… administrative justice, let me put it that way, is quite serious. That is why we have the Promotion of Administrative Justice Act, otherwise colloquially known as PAJA, which is what really governs things like this. So, although Parliament is part of the legislature, when it performs functions such as this one, which in the old days we used to call a quasi-judicial, then it is acceptable to the Promotion of Administrative Justice Act. So, the review that we are going to launch is primarily premised on that act, but also on the principle of legality, but that is for another day. I am saying that to explain the importance of review proceedings in this larger scheme of things. Now, the question becomes, and this is going to be the central question when you adjourn, Chair, which is we can, as normally happens… we can do this the hard way, or, we (can) do (it) the easy way. The hard way would be, as I say, what I am going to tell you all (about) the legalities. But we have, as you would have seen, by reading this, we have also proposed that we could also do it by way of an arrangement. That arrangement would involve probably, myself, yourself, the Evidence Leaders, being locked up in some room for an hour or so and being told that you cannot come out before you have a practical way forward… because it is not an easy thing, Chair. We appreciate the fact that it is a balancing act. On the one hand, the Inquiry has to proceed, and nobody wants it to proceed more than the Public Protector. On the other hand, we live in a constitutional democracy, so people's rights have to be protected. It is not an easy thing, always to balance those… even for the courts; it is not an easy thing. So it is always better if there is a way in which it can be negotiated… that it should be. But if you can put back that preamble, this comes from the case of Pikoli v The President, (a) well-known case about the suspension of an NDPP (National Director of Public Prosecutions). This is the quotation that I really want to be at the back of everybody's mind, when I say anything that I am going to say. It says “inappropriate circumstances… an authority”, that would mean this Committee, “should halt its actions”, that would mean the Inquiry, “when it is aware that review proceedings are to be instituted against it. Failure to do so, may render the official”, that would be the Committee, “concerned, liable for contempt of court. Let me unpack that, very briefly. You see that is exactly where we are, Chairperson, it says “proceedings to be instated”. In other words, the mere fact that the proceedings have not yet been instituted now, is not relevant, as long as, you correctly pointed out, that the Committee has been made aware, formally, that such proceedings are to be instituted. The reason for this, for other people, is that it is to protect the integrity of the constitutional democracy. Contempt of court is a criminal offence… always something that is punishable by a criminal offence just shows how seriously the law takes it. So if the law regards… If you continue with your Inquiry, when you are aware that proceedings are to be instituted, you may render yourselves guilty of contempt of court in appropriate circumstances, and that will be the question that I am going to address now: whether these are indeed appropriate circumstances. Chair, the first two pages are just the background, which you have already mapped out, so I will jump that. I will go to paragraph nine, just to re-emphasise what I said earlier, it is important to state it clear and upfront that in bringing this application before this Committee as presently composed, the Public Protector does not thereby abandon or in any way waive her right to forcefully argue that the Committee is not entitled to sit at all, once it has been made aware of her intention to challenge its composition and jurisdiction in the envisioned judicial proceedings. To paraphrase that part, Chair, is to say… Do you remember, I think it was Hon Zungula, who raised the issue (on) whether you could Chair the previous sitting on recusal, and I think Adv Bawa and I explained to him that you were the only person who could Chair that? The point we make here is that once you have made the decision on recusal, then that dispensation basically expires. For practical purposes, if the Tribunal is being questioned, that should be… basically you would then be conflicted, because you would then be conflicted because you would be Chairing on the issue about your own alleged conflict – but there is no other way to do it. There is no other place where we can bring this application. Therefore, to that extent, only we are here. But we say this so that later, we are not accused of having waived our right to object to the Committee. So that dispensation will end as far as we are concerned, once the outcome of the application has been determined, because we have to, I think, from a practical point of view… we have to give the Committee, as currently constituted (or wrongly constituted), the chance to do the right thing. So, we say “Her participation is therefore not acquiescence in the legal capacity in the Committee to proceed with any other business, which capacity is hereby specifically disputed”… that is at paragraph 11. Now, if we go to paragraph 12, Chair, we say that, because you asked us specifically to postulate when the application might be ready, we have set 31st October, which is Monday, but I just want (to) immediately to qualify that. That also depends on what happens; whether the outcome of this application… but we have every intention, at least to do it. Not… if it is later than that, they will be a day or two, because of just the practicalities of drafting and some engagements of… for the weekend and all that. But I think the principle is the same, Chair, which is that it will be done expeditiously. Obviously, if the decision… I think let us just work on the principle. So, the principle is that if you make the decision today, then it might be three days afterwards (when) it will be ready. If you make the decision at another time. It will be soon thereafter. So, I am just qualifying that so that you do not put my neck on the block, to say that it is the 31st or bust – it is a target. Then we say that “Depending on the outcome, we will seek an order declaring in the application itself now, the decision of the majority of this Committee to refuse to attend the proceedings, to be also unlawful.” By that we mean that when the application comes, one of the players in that application, if you dismiss the application today – as we think you will – will be to set aside not just the non-recusal decision, but also the non-postponement decision. I am just using those as…We say there that “Although that decision has not been made, we anticipate…” I think we have been here long enough to anticipate what the decision is likely to be. We are saying that then if it is different, that the prayer in the review application will simply not be pursued. In other words…

Chairperson: When you say that we will take that particular decision, what are you basing that on?

Adv Mpofu: As we say on paragraph 15, based on past experience, it makes it easy to predict. We can be wrong, but at least, if we are honest, we… from past experience it will be easy for us to predict what is likely to happen, given the, what we used to call in the 80s, balance of forces.

Chairperson: So when you have a possibility of two assumptions available, you prefer to stay on this one?

Adv Mpofu: No, Chair. I am not discounting that. I am saying that in life, from past experience, if the sun comes from the East one day it might come from the West, but normally, you can predict certain things. I am just saying that, given the fact that people vote, according to party lines, and according to whatever the issue is, I think any, even a two-year old can just do a headcount and tell us what is likely to happen. But we are not there yet, Chair. The third point that we make is that the relief we will seek in the review application will be substitution. Now, again, I will simplify that. When you review, you either say the court must remit; in other words, it can take it back to the decision maker, or the court must make the decision itself. Now, in a case where there is bias alleged, I will not put it higher than that. There is no point in taking it back to the decision-maker who was already biased. It is just illogical. So, that is when you ask the court to make the decision itself.

Chairperson: You mean the decision-maker who was alleged to be biased?

Adv Mpofu: Yes.

Chairperson: Just so that we are on the same lane.

Adv Mpofu: Thank you Chair. If you play the record you will hear that I said alleged bias. So, I agree… I agree. The point is that, one, it would be illogical if it is a fait accompli, as we the lawyers like to say, as the court will just give a substitution. If it was just an inadvertent error of some sorts, then obviously, the decision-maker can do it again. That is because of a higher principle the courts normally do not like to, because of (the) separation of powers, make a decision for other arms of the state. So, the default position is to remit, but under certain circumstances you substitute. Then the last point, which is important, is on number 17 – on the nature of the application we are going to bring, and that is that “The application is premised on the notion that it would be gravely unjust to expect the Public Protector, pending her court challenge to the composition and unfairness of this very Committee, to be subjected to an Inquiry before the very same Committee. In the event that she succeeds in court, the entire exercise would have been futile and wasteful.” Let me just pause there, Chair. This is another poser if you like and a difficult one to balance as well. There is a school of thought that says ‘Look, you might feel that the person is biased or a judge is biased and so on but for the sake of progress, wait until the end, and then raise it at that point… or until the outcome.’ The reverse, which is favoured by the court, is that you must not wait until the end – you must raise your objections as soon as you are able to do that because what would be the point of wasting more resources on something and then later… and also it makes it susceptible to the accusation that… In fact, it happened in one of the cases that I am going to refer you to where the lawyers actually said ‘No, we knew about this’, it was about a judge who had shares in a company, ‘but we thought we will wait until the outcome before we raise (it) because if we win, then it is okay.’ Then the Constitutional Court said, ‘No, you cannot do that. You cannot say you are going to wait for the outcome and only when the outcome does not favour you, you raise the issue.’ But this is more important for you as lawmakers, Chairperson, because you are the people who oversee wasteful expenditure and those kinds of things. So, it would be sad if the Parliament itself would be promoting going through a wasteful exercise, which might be nullified by the court, because it would just be completely a wasteful exercise to do that. That is why it is the courts encourage you to bring it as soon as possible, so that you do not waste resources, particularly in a process like this. So, we then say, Chair, that without cause, the last thing we want to do is to come here and then re-argue the recusal application. That has been done, and it has been determined. So, we refer to the recusal application only to show that the review application has got prospects of success. That is why we do not go through all the twelve things, we just pick two or three that we think are quite obvious because I think it would be fair, Chair, to say, one of the things the Committee has to consider, when you consider your decision, will be that issue of… I mean, if you thought this review application was hopeless, completely, that is a factor you must consider; but if you think that it may succeed, then you consider that against the wasteful exercise that might ensue thereafter. So, we only raise it for that purpose. Please, nobody must accuse us of re-arguing the recusal application through the backdoor: that is not our intention. Okay, the issue of prejudice is obvious that the Public Protector, well, everybody, the public and the Public Protector and the fiscus would be prejudiced if we just go through an exercise for the sake of it. Chair, before I get to the illustrative case law, let me just put something to bed. Many people here have been saying that this is not a court of law. Even you, in your reasons (said) this is not a court of law (and that) I am not a judge, which is all true, but let me assure you that when it comes to this, what we are debating now, which is the issue of bias and administrative justice, there is no difference whatsoever: Whether you are a judge or whatever, justice is justice; fairness is fairness; (and) bias is bias. There might be different standards that get applied. If you are a judge, for example, there is something called the presumption of impartiality. So when you want to recuse a judge, you have to first overcome that presumption, of impartiality. Unfortunately, you are not a beneficiary of that… you and many other administrators. But other than that small difference, the test is exactly the same. So, that is the first… That is very important Chair. Let me just… I do not know if the cases were sent through? I sent through some of the cases that we are going to refer to, just so that Members can have access to them. I think they were loaded yesterday… Thembinkosi, you got them? Okay. You do not have to put them up, I just wanted to know if Members had access to them. The first case… okay, it is not the first that I wanted to refer to but I will refer it to it now in this context… it is the case of Basson. In Basson, the following was said – Chairperson, at paragraph 25 and it was quoting a Constitutional Court decision – “A cornerstone of any fair and just legal system is the impartial adjudication of disputes, which come before the court and other tribunals”, such as this one, “Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants, or the general public than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.” Here is the important part of the point I was making, “The rule against bias is thus firmly anchored to public confidence in the legal system, and extends to non-judicial decision makers, such as tribunals. The rule reflects the fundamental principle of our Constitution that courts and tribunals must not only be independent, impartial, but must be seen to be such. The requirement of impartiality is also implicit, if not explicit in Section 34 of the Constitution”. Paraphrased, (there) are two takeaways from that. One, is that the rule applies equally; whether it is a court or not a court is completely irrelevant. Secondly, that it is rooted in Section 34 of the Constitution. As we all know, at least in this room, Section 34 of the Constitution specifically also says that. It says ‘You have the right to have your dispute decided in a fair process in a court of law or any other tribunal, which is constituted in terms of the law.’ So, those are crucial issues. So, this refrain that no, this is not a court of law, and so on, in respect of what we are discussing, I hope nobody is going to go there because, as I say, fairness is fairness; bias is bias. In any event, your own rules for this Committee, Rule 129 (8)(2) enjoins you to follow a fair process. So, what we have then done, Chair, to illustrate the principles… and this is really now what I call the meat of what we want to talk about, (which) is to show again… This is for two purposes, Chairperson. One is to show you what the law says on this but at the back of the mind, also keep the fact that we are also talking about prospects of success because I believe in fairness – that it is a crucial consideration that you must have. So, in other words, I am showing you what the law is but I am also saying in a way that the review is going to succeed. Why I am saying it is going to succeed (is) because every principle, every court in this country, has said that a review of this nature, its chances of not succeeding are probably less than zero. Therefore, you will remember that there were those 12 grounds that we spoke about. Some of what I am going to say will touch on some of those grounds, just as (an) illustration, again. It does not mean we abandoned the other grounds. So, of the 12 grounds that refer to you to Chairperson, and then the two grounds that refer to Mr Mileham, we will use them for this illustrative purpose, just to show that on the cases it is a slam dunk type of case. We deliberately, Chairperson, for that purpose, want to take you through every conceivable court you can think of. So, we show you the High Courts... what the High Courts have said on this. We then show you what the SCA has said on this. We then show you what the Constitutional Court has said on this and we will even show you an example of an international case, which have all said the same thing. So, the chances of ever… Remember, if we take this review, we will be taking it the High Court first. So, the High Court is bound by what the SCA has said: it has no choice, what the Constitutional Court has said… and what the international courts have said will be persuasive, but not binding. So if we are correct that all those levels of courts have said basically the same thing, then, as I say, the chances… yeah, would be miraculous. So, let us start with the High Courts. As far as the High Courts are concerned, we refer you firstly to a case that the Committee will be familiar with, which is the case of the Public Protector versus yourselves and the President, where the presence of bias on the part of the President was seen as a ground enough to set aside his decision to suspend the Public Protector. That should illustrate to anybody who cares to know that the courts will ‘punish’ bias by setting aside a decision, which is tainted thereby. In that case of the President it was worse because there was also dishonesty, bias, ulterior motives, bad faith and/or corruption from the highest office in the land, in the sense that the action was taken for self-serving personal purposes of escaping an investigation. Now, we say at paragraph 22, Chair, that the dictum or the statement made in Pikoli, that is the one in the preamble, is also a High Court decision. So, the thing that says that it will be contempt of court to continue in circumstances where you are aware that there is a review application, is also a decision of our High Courts. So, whatever court will hear this will also be aware of that, as to when it looks at your decision, assuming for now that my prediction is correct. If and when it looks at your decision to refuse to postpone the matter, the court will then be guided by those decisions of itself. But, I cannot emphasise this more, Chair. The second case that we deal with is the case of Basson. Everyone will remember this is the Basson, Wouter Basson – Dr Death… I think that is what he was called – the gentleman who used to work for the Apartheid regime and poisoned our leaders under the guise of being a doctor pretending to be a doctor. So even (a) subhuman people like that unfortunately have to benefit from the law. So he was protected by our courts: disgusting, as some might find his conduct. We make that point at paragraph 23. We say “Even somebody so objectionable and cruel must enjoy the full protections afforded by our Constitution, let alone a Public Protector, whose only sin is seemingly her enthusiasm for chasing backlogs, ensuring service delivery to the poor and investigating alleged Presidential misconduct.” So we are saying even though she might have been pursuing those noble causes, and Basson was pursuing vile causes, the very least she can expect is the same type of justice. Now, what happened there, in a nutshell, Chair, without wasting time, is that Basson then had to be removed from the role of medical practitioners because of those dastardly acts that he was involved in. So the HPCSA, which is the Health Professionals Council of South Africa, then set up set up a committee, much like your Committee, Chairperson, to investigate… inquire into the conduct of Dr Death. He raised an issue an interesting issue, much like the issues that have been raised against you and Mr Mileham. He said, ‘Look, I know you want to remove me from being a doctor but two of the people sitting in your committee are members of one of the bodies that have complained or that have supported the case, and therefore, they are biased, automatically biased, so I cannot continue with this.’ Now, there were two interesting things that were raised in that case. One was something which is not directly relevant to this case about internal remedies. So the Court said in these kinds of circumstances, he is even exempted from exhausting internal remedies, which is normally the requirement in administrative reviews because how could you be expected to exhaust internal remedies on Mondays, which involve the same biased chain of events, so to speak, including even the appeal process in that case. But the most relevant thing to this case is that the court then said that the… it dealt with the issue that we are busy with today, which is that you cannot then expect that very committee that he says is biased to be the one that is going to proceed with the inquiry. That is just nonsensical, if you excuse the language, for the reasons that I have explained earlier. This is what, Justice Shongwe, who was acting president of the SCA said in that matter “If a presiding officer”, now bear in my mind that I have said there is no distinction… it does not matter whether it is a judge, you or the Committee. So whenever I say presiding officer you must just substitute the Committee or the Chairperson. “If a presiding officer should have recused himself, proceedings conducted after the dismissal of an application for recusal must be regarded as never having taken place at all.” I have to read that again. “If a presiding officer should have recused themselves, proceedings conducted after the dismissal of an application for recusal must be regarded as never having taken place at all.” In other words, it is just a complete waste of time and money. Then it says here “In the instant case, the appellant’s complaint was not that the finding of the committee is an irregularity committed by an otherwise competent tribunal. Instead, his complaint about the committee let competence from the outset, because of the actual or reasonable apprehension of bias on the part of two of its members. Stated differently, the appellant alleged that by virtue of its composition, the committee could not exercise jurisdiction over him. So this is not a case where the committee wrongly acted within its jurisdiction: the appellant alleged that it had no jurisdiction from the start. The issue is one of elementary justice.” Again, one does not have to be a lawyer to understand this. What is being said there is the point that was made by Hon Zungula, with respect to him prematurely at that stage, and it is that… What we are saying here is that the Committee as currently constituted has no jurisdiction to do this, until the problem has been resolved and therefore, you cannot then expect the litigant or the person who is facing the Committee to just continue. That is really in a nutshell, what we are here for; to say, either you are going to say ‘No, we are just going to forge ahead, even whatever we are doing is going to be regarded as never having taken place… we will just do it, irrespective of the obvious consequences.’ Or you will do the right thing and say, ‘Let us let the justice system take its course and we will await… or we will make sure that it does not take too long, and we will negotiate a regime that would involve all sorts of things like jointly approaching the Judge President to say, let it be done as soon as possible’ and so on and so on. But if you do not enter into those kinds of discussions, then it is open season… it can take as long as it takes, because we do not know (as) we do not control the court rolls and so on. So the SCA has made it clear. Then Chairperson – I have already read out the other part from Basson – then the big one… The Constitutional Court. The Constitutional Court has always weighed in on these matters and it has also made it clear. Chief Justice Ngcobo, as he then was, in the famous case of Bennet v Absa Bank, which is a Constitutional Court case. Chair, again, I do not want to bore you much with the facts, but I will just give you two or three highlights. In this case, the case had gone to the SCA. In the SCA, one of the judges, Judge Cachalia disclosed that he was a shareholder in ABSA. It was Bennet v ABSA, so in one of the parties, among other things… It has very interesting facts. It is the case I was telling you about where the lawyer was told, the disclosure was made in chambers but the lawyer said I did not tell the client because I wanted to await the outcome. The court said you should not do that. Anyway, the courts… One of the things that the Court said about the test, which is really why I am citing this case… you will find it on page eight of our document. I want to read it out in full because this one is crucial because the Constitutional Court here, in a way covered both the recusal against yourself, Chairperson, as well as the recusal against Mr Mileham and I say, to some extent, the alleged bias of the Committee. Remember – I am just pausing here – the application we are bringing now, Chair, is much more serious than even the recusal application itself because the recusal application was against yourself and Mr Mileham. This application now covers yourself, your non-recusal decision, Mr Mileham’s non-recusal decision, but crucially, it covers the Committee's decision to endorse those two decisions. So it really covers everyone else. So it is a much more serious issue. So the court… I mean when we talk about contempt of court, in this case, it will not be contempt of court by yourself or Mr Mileham, it will be by the entire Committee to proceed under these circumstances. Actually, ironically, it will not be contempt of court against you and Mr Mileham because you would not have decided to proceed in the face of a review application. It will only be the Committee that would have decided that. So you will only be co accused in what we used to call common purpose. Like everyone else, you will not have any special liability. Alright. The only people who might be safe are those who would have not been part of that contempt of court. So this is what Ngcobo CJ said, “It is by now axiomatic that a judicial officer who sits on a case in which he should not be sitting because seen objectively, the judicial officer”, that is the Committee, “is either actually biased, or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.” I mean this should be obvious to anybody, with a few exceptions. “This case concerns the apprehension of bias. The apprehension of bias may arise either from the association or interest…” let me pause there. This is the Mr Mileham situation, “It may arise either from association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case”. Why do I say this involves Mr Mileham’s situation? Because the interest of one of the litigants means this in the context of this case. One always runs the risk of making an example that will be taken literally, but it is a risk I am willing to take here. It depends on… So Chair, we say there are charges. We all know that when we say charges we do not mean it is like a criminal case here, but we use that word; so let us take it from there. So you have charges, and then you have (a) complainant, then you have an accused. All those terms are not exactly appropriate, but I am just using them to illustrate. So the complainant in this case is Ms Mazzone, MP. The accused is ‘the Public Protector’ and the charges are the motion. Okay? So that is what is meant here. So if you have any interest or conflict relating to one of the parties, that is it. It is what is called automatic disqualification. I will show you later that in the international case of Pinochet, it is said that kind of conflict… actually, you do not even have to go to the issues of reasonable apprehension of bias and what have you – automatically, you are out… the same as that judge. So if the judge had shares… you are out. English law is very clear on that. I gave you an example, I think earlier, when I was doing the recusal application of a case that I did last year, where the judge correctly as he disclosed to us as the parties and said, ‘Listen, I have said in Sibanye’, it was the matter of the Marikana workers suing Mr Ramaphosa and Sibanye… the judge rightfully disclosed to us – which is one of the problems here because there was no disclosure, and I will explain that later. Then the Judge said to us ‘Look, do whatever you want.’ I obviously went to my clients, and I said, ‘The judge has disclosed that he has these shares, what must happen?’ I know the Judge; it was Judge Collin Lamont. Personally I had no problem with him sitting in the case, but it is not my case. Then the client said, ‘No ways, we cannot have a judge who has got shares in the defendant, you must apply for his recusal’… always the most difficult thing for any lawyer once the client says that, your heart sinks; fortunately I have only done this three times in my entire life. Anyway, so we did the application. The judge said, which is very crucial, Chairperson, like you and Mr Mileham, the Judge said ‘Look, I have these shares but I am going to do this matter objectively.’ I know him. As I say it is someone I know from the bar when he was still an advocate. So I had no reason to disbelieve him when he said he is going to do it fairly. Yet, he recused himself because he said, applying this principle, ‘It does not matter that I am objective. It does not matter that I am going to decide this matter objectively but from the reasonable litigant point of view, I cannot sit in this matter’ and he recused himself. The matter was only heard six months before another judge. That is one of the fundamental problems with what was happening here a couple of weeks ago. I watched it on TV, because the Committee was swayed by the Chairperson or Mr Mileham saying ‘I am fine. I have no predisposition or predetermined outcome’ but that is utterly irrelevant. The test is whether (a) person in the position of the Public Protector reasonably expects somebody, who is the husband of the complainant, to be objective. Anybody who expects her to reasonably believe that, is out of their minds, because that is just not something that you can reasonably expect from anyone… she might. The disclosure point is very important, because let us assume, Chair, the right thing had been done. If Mr Mileham had said, for example, when we start, ‘Public Protector, I want you to know that I have this potential conflict.’ Public Protector could have said, like I would have said in the other case, ‘I do not; it is fine. Let us just carry on with the Inquiry’. In that case then you waive your right. That is why disclosure is important. Non-disclosure is also a big ‘no, no’ because once you do not disclose, it is either you are hiding something or you… Even if you are not hiding something, you are at least depriving the other side of the chance to say you can carry on. So that one… Both the relationship and non-disclosure are fatal, in a case of this kind. That is what they say there. “Or it may arise from the conduct…” This is now you, Chairperson and Mr Mileham by the way, “or utterances by a judicial officer, prior to or during proceedings.” Now, this is important for you, Chairperson, they say the bias may arise from utterances that are made by a judicial officer. Now, the legal experts, who I learned from the discussions I watched on TV, are said to be advisors of the DA, or representing the DA, but that is a separate matter raised by the MPs, which, at this stage, we will raise it in the review papers to be fair, but I am not raising it now. But I am just saying the fact that those so-called legal experts or independent experts were not independent, is a matter that will be dealt with by the review committee. Now, I am only dealing with the fact that they were wrong, even if, let us assume they were independent… they were just wrong because one of the things they say in their opinion, is that ‘No, it does not matter what the Chairperson said; the fact that the Chairperson said that the Public Protector is incompetent…’ because they say... there are two reasons they give. One is that he said its two years before the Inquiry, which is factually untrue. But let us assume it is true for now. Then Secondly, they say the Chairperson took an oath of office. Now, both of those are actual… like… non-reasons. The first one is that, whether you say two years or five years or 10 years or whatever, it does not matter. The point is that if you have made the utterances, you have made them. So that is why the Chief Justice said, ‘or it may arise from conduct or utterances by a judicial officer prior to or during the proceedings.’ So the mere fact that they were said, prior to, does not make them acceptable. Then the second one about the oath of office is just laughable because judges who have taken an oath of office get recused, as I have explained before, so why should a Member of Parliament not be recused just because they took an oath of office? Anyway… It then says “The apprehension of bias principle reflects fundamental principle of our Constitution that courts must be independent, impartial, including tribunals and fundamental to our judicial system is that courts must not only be independent and impartial but they must be seen to be independent and impartial.” Crucial rider. Then Chair, if I may, let me just jump to the Pinochet case... No, let me follow the sequence. I will come to the Pinochet case, which is the fourth case, because it is also important. Let me just deal with the prospects of success. I have already dealt with them as I indicated, Chair. So we say that “The purpose of the section is merely to demonstrate by using these few examples that the Public Protector’s case, on review is virtually an answerable and therefore it has excellent prospects of success on review.” Okay, then the thing about the oath of office, I have already dealt with; the thing about utterances made prior to… I mean, this is just… Yes. Then we talk about the events of the 13th of September, Chair. We said that “The explanations given for this tribunal here to continue in the absence of the Public Protector who was sick at the time…” I do not know how long it will take me to just show you that all of them completely cannot withstand scrutiny. It should be obvious that you cannot proceed. Even in terms of PAJA… PAJA says that one of the things that must happen is that when you are being tried or subjected to any process, disciplinary or otherwise, by a tribunal, one of the rights you have is to be present. That is what we have tried to explained, ad nauseam, to this Committee, that you cannot do this. Even a serial rapist who goes to court, when they are sick, the case is postponed. I mean, you know why? Not because people like the serial rapist, but because he has a right to be present. You cannot be tried in your absence for something which might result in so much jeopardy to yourself. It is not done. Okay? So there is no way to explain such a thing, let alone the breaching of the directives, by allowing Members to ask questions before cross-examination, then you breach your own directive. Put that aside. It is just the idea of uttering even one word when the person is sick, and say, let us just carry on – let them eat cake, as it were. There the refrain was not let them eat cake, it was ‘She will watch it on TV’ or something… It is not done. Alright. So there are certain things in… Ironically one of the cases that you say you are bound by, which is the case of the Public Protector versus the South African Reserve Bank, established that principle, that sometimes if you… just by disallowing somebody of their audi rights, that disallowance may be so gross to only be explained by bias. That's what Khampepe J said against the Public Protector in that case. So it applies here as well. When something is so blatantly… the denial of rights is so blatant, that there is no other explanation for it, except bias. In other words, what it means is that if this was someone who you regarded as a human being, you would not have done this. Or if it was someone you like, someone, you know, one of the other people who might be having impeachment proceedings. If they are sick, there would be an automatic adjournment. So the only reason why you treat this particular person this way is because you are biased against them. There cannot be any other… There is nobody in this world, lawyer or no lawyer, who does not know that proceedings must be postponed if somebody is sick. We then, Chair, from Section E, just show that there are other grounds for review. I will just give you an example – I have already touched on it. One of the grounds of review in Section 6 (2) (d) of PAJA talks about making a material error of law. So that is a ground of review on its own. The other ground… There is another ground which talks about the breaching (of) your own empowering provisions. In other words, you have got the provisions that bring you here (which) are the rules of Parliament, the directives, the terms of reference and the Constitution. So if you breach those, then you are committing a material error of law. I have already touched on the situation where this Committee has breached its own directives; so that will be a ground of review on its own. That either allowing cross-examination by people who are not allowed to cross-examine or allowing Members to ask questions before the cross-examination is finished when your own empowering provision says it can only happen thereafter. Then, Chair, I go… I will try and kill two birds with one stone here. Again, at Section F, we say the case against Mr Mileham. We do this also for illustrative purposes – just to show that that case against Mr Mileham is completely but completely unanswerable, despite all the things that have been presented to this Committee. Forget about the things that were presented to this Committee, which hold no water. The problem is that the Committee accepted them. I mean, you know… unquestioningly. The two so-called defences put by Mr Mileham, is that he is not a Members member. In other words, he makes up his own mind about these things: but that is not the point. The point is… The quotation we have in paragraph 44, from Hoexter, who is the foremost expert on these things. She says – Professor Hoexter – “A family relationship, friendship, or enmity, give rise to a personal interest, real or apparent, that disqualifies the decision-maker.” Okay? It cannot be clearer than that. So again, it does not help for someone to say ‘No, me, not me, it might affect other people, this family relationship, but me I am very independent.’ It is irrelevant. It is automatic disqualification. Chair, I mean, again, some of these things, really, are just logic. You do not have to be a genius. Chair, if I am chairing something and you have a dispute between yourself and my sister, then you come to the dispute that I am chairing, honestly, you do not have to be a lawyer to say ‘No, here I am getting a raw deal’. Again, I might be the most independent person in the world and I might even find a case my sister, but that is irrelevant. From your point of view, you cannot be expected to put yourself through that and still call it justice. Now, here, Chair, I would like to refer the Members to – if you can put this one up – the case of Liebenberg v Brakpan Liquor Licensing Board 1944 WLD others. That case is exactly on point. In that case, what had happened is that a Mayor of Brakpan was sitting as part of a committee that was going to decide liquor licences and his brother, Mr Mitchell, was one of the applicants, and he was told that ‘Look, you cannot sit (here)’ and he said ‘No, I am very objective. You do not know me.’ But the court said, you cannot do that. It said, among other things, “The absence of impartiality and the presence of bias may often be hard to prove but the court does qualify for judicial work not only persons who in fact are biased and not impartial but those who are probably so.” In other words, by the mere fact of the relationship that this is your brother, you are probably biased. You may not be really biased in real life, but that is completely irrelevant. Then the court also said, “Mr Mitchell…” that is the Mayor now, “Ought to have recused himself immediately, but his standards appear to be different from those commonly attributed to the ordinary reasonable man.” In other words, he should have known that this is not done. Then here's what the committee… an indictment on the committee because now the judge was talking about how the Committee should have judged Mr Mileham. It says “To dismiss, in one word, the protestations that the members of the board of this committee did their duty properly, I need only say that according to the cases, this consideration is irrelevant. If in fact a person is biased or likely to be biased was one of the group of judges.” So if he is one of the group of decision-makers, says the fact that the committee says… allowed him to continue is irrelevant because it does not change his bias. Right. Then one of the things that was said is that there was no application made for the recusal of this person but unlike here where there has been an application. The judge said “At common law, this case is too clear, to merit detailed consideration.” That is what I mean, when I say this is a slam dunk case – it is unanswerable. “Plainly, there was a real likelihood of bias in Mitchell, on account of his blood relationship to the second respondent. Where it necessary for my decision, I should not hesitate to hold that actual bias has been proved.” Let me pause there. So the judge went on to say this is not even a case of reasonable apprehension of bias: it is actual bias for someone to sit when their family member is a party. “If a case, so scandalous…” says the Judge, “succeeded in passing the scrutiny of the court, the standards hitherto applied by judging of such matters would have to be revised, and the principles of natural justice modified.” If such a scandalous thing would not be allowed to go, they say you would have to change the rules of the law of natural justice. It is nothing less of scandalous… but if you do not see it, you do not see it. Then it says “The law draws no distinction between actual bias and real likelihood of bias, and I hold that this includes cases where a real likelihood of bias has been proved, as in my opinion, it is proved where a brother elects to be a judge in a competition for the grant of a liquor license amongst a number of applicants, one of whom is his own brother. Then it says, “Amongst them are the spouses…” Then there was some clever argument which was put there. Which basically is fatal even in this case. So the lawyer there, Mr Price said ‘No, the only people who are excluded are spouses.’ Now here we are dealing with a spouse as it happens but the judge even rejected that. It said that ‘No, even if you're a brother, that's enough.’ It says “amongst them are spouses, of, to put it shortly, persons engaged in the intoxicating liquor trade in that matter. The intimacy of the marriage relationship may well give a spouse such an interest in the trade, as will place him or her in much the same position as the actual trader who is disqualified by section for appointment. Hence, the general disqualification of a spouse, even for appointment but the fathers brothers and other near relatives of traders are not at all in that position. It would be absurd to disqualify them for even such appointment; but it is by no means to give the court the power…” and so on. Then the court said, basically rubbishing that argument of trying to distinguish the brother from a spouse… The point I am making is that even in that case, the spousal disqualification was accepted as God given, as it should really, by any right thinking people. Now, so the first thing that says… You will see that when we deal with the Pinochet case. In the Pinochet case, it is said again, that when you are talking about this kind of interest of a relationship, either a blood relationship or one by marriage, you do not even have to go to the stage of is there a reasonable apprehension: it is an automatic disqualification. It is just a no, no. You just do not do that. But what makes it worse in this case, is the issue of non-disclosure. Non-Disclosure is said to be a complete disqualification as well. Now, Mr Mileham says ‘I don't know what you're talking about, because I disclosed this matter in the Parliamentary register… The Parliament even celebrated the marriage.’ I mean, really, what is that got to do with it? The law is very clear. You cannot say I have disclosed it to some other people: you must disclose it to the parties. In other words, you must disclose it to the Public Protector in this case. This would be like the case of the Judge who holds shares, as I explained. If the Judge says ‘No, but I don't know what your clients are complaining about Mr Mpofu, because I disclosed these shares in the registry for charges or whatever.’ I mean, everyone would laugh that out of court. That is why the judge called me and disclosed it to me, so that I can tell the parties. He could not say, ‘Well, you, it's your baby, you should have just read the Judge’s disclosure, somewhere in the Chief Justice's Office’, I do not know where these things are kept. So the disclosure that we are talking about is one that should have been done here to the Public Protector, not in some register... and the independent or legal opinion people accepted that kind of thing… yeah. So again, Chair, we are talking about a case that is not even debatable. A court will say, you have now two unanswerable things; a relationship of marriage admitted; (a) non-disclosure, admitted because the other non-disclosure is just not something that can be taken seriously. So in which world can it be said that a person in that position, who has hidden the relationship and number two, is in the list of the people who have been disqualified, must continue to sit here and judge, just because he says that he is fine? It does not work like that. So I say Chair, and maybe this a blanket statement which I will make a case you… against Mr Mileham, against the Committee and against the independent opinion. If you read those documents, you will find ‘in our view; in our view; in my view; in my view, I am not conflicted…’ It does not matter. It has nothing to do with your view. It is the reasonable perception of the Public Protector who is faced with that situation. That is the test. You can have your view as much as you like. That is why we make this point about Mr Mileham’s tweets, for example. When Mr Mileham puts his tweets and insults me and says something about my intelligence or whatever… me, me – I am talking about myself – it does not matter. I am also like you, my views are completely irrelevant. I might be annoyed by Mr Mileham’s insults, or I might not be annoyed. Does not matter if I am annoyed. I will sue him or do whatever I have to do if he was not protected by the privilege but that has got nothing to do with it. I am irrelevant in that. The issue is whether the Public Protector in her position, will believe that somebody who has attacked, in public on Twitter, her legal representative, whether she must expect that person to be assumed to be neutral. I mean that is just ridiculous. It is not how annoyed I might be or whatever, that is my baby. It has got nothing to do with her. Anybody who is human must just put yourself in her shoes and say ‘What would you do?’ Let us assume this was a court case (and) there is a judge and you argue and argue in front of this Judge. Then on the Sunday, when you are reading the Sunday Times, you hear that this Judge has been insulting you… then on Monday, you must go back to that Judge? You call that justice? Anyway… So those are the issues. For the Committee, I mean really… This Committee… Mr Nqola, I hope is listening here… Even Mr Nqola said here, when we did the application, Members must refrain from attacking or involving themselves in anything to do with this case on social media, for obvious reasons – and he was right. But when it came to voting, this Committee voted that ‘No, there is nothing wrong with that. Let us go. There is no reason for recusal. Let us just proceed as if nothing has happened.’ You call that a reasonable Committee? Chair, you blame me when I say I know what is going to happen. If something like that can be seen by anyone to be okay, not even one word to say ‘okay, it is not’… Anyway, it is fine. The Committee endorsed that and said ‘It is all systems go. There is no problem.’

There is no problem about the spousal relationship. There is no problem about the non-disclosure; there is no problem about the tweets, says our Committee. Anyway… That then takes us to the Pinochet case. The Pinochet case, starts on page 50 and forgive me, Chair, I am just going to read this because, again, I do not want to bore you with the facts. But for those who have not read the case, this case happened… It is that dictator called Pinochet, who was a puppet of the West, like other leaders. There was an issue about his extradition. This guy had literally butchered… anybody who knows the story of Pinochet. But anyway… Amnesty International was one of the bodies that was participating in the case. Now, there was a Judge called Lord Hoffman, in the House of Lords, and we should be proud because he is originally from here, but he rose in the ranks of that place to become a Lord. He has ties to South Africa. One of the bright people that are associated with this country… very bright. So Lord Hoffman’s wife was involved with Amnesty International and he himself was chairing one of the charities of Amnesty International. Then the case went on… I think there were five so-called lords who were sitting in this case, and they made a decision. Pinochet the dictator, then said, unfortunately, these cases involve very vile people, ‘No, I have just found out afterwards that there is this linkage with Amnesty International.’ The House of Lords said ‘There is no way that this case can be allowed to proceed, because we set aside the decision because Lord Hoffman, A, should have disclosed that he is a member of Amnesty International…’ oh sorry, not a member, that he is associated and all these other things that his wife is involved there, and so on. B, it does not matter. In fact, the Lords were at pains every one of them – there were four of them. They all said, ‘We believe Lord Hoffman. He is not biased, we know that. But that does not matter. The point is, what would a reasonable person in the position of Pinochet think.’ Then they quashed the thing. This is what they said, Chairperson, starting at 50.1, some of the highlights – again this talks to you and Mr Mileham and the Committee… One of those, Lord Goff of Cheverly, said, “In my judgement the case falls within the first category, namely, where a judge is disqualified because he is a judge in his own costs. In such a case, once it is shown that the judge is himself a party to the cause…” in other words, a complainant or whatever, “or has the relevant interest in the subject matter, he is qualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made a sufficient disclosure.” So there it killed two birds with one stone. The mere fact of the non-interest and it said that can be ameliorated only by disclosure. Why is that so? Because if you had disclosed, then they – I have explained this earlier – then the litigant might have waived their rights. Then he says, “I will call this automatic disqualification”, said the lord, there. Then the next lord, Lord Brown Wilkinson said “There is no room for fine distinctions if Lord Hewart’s famous dictum is to be observed: it is ‘of fundamental importance of justice and should not only be done but should manifestly and undoubtedly be seen to be done.’” Then the next one, Lord Hope of Craighead, said “Only in cases where a judge is taking an active role as trustee or director of charity, which is closely allied to an acting with a party to the litigation should a judge normally be concerned either to recuse himself…” and here is the important part, “or disclose the position to the parties…” not to Parliament (or) some Parliamentary register… disclose to the parties. In other words, to the Public Protector. “However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.” So again a possible interest must be disclosed. Then the next Lord, was Lord Hutton. This is what he said “It is no answer for the judge to say that he is in fact impartial, and that he will abide by his judicial oath…” That is the special about the oath that was from the so-called independent legal opinion. “The purpose of the disqualification is to preserve the administration of justice from any suspicion of impartiality”, not real impartiality, “The disqualification does not fall automatically in the strict sense of that word, because the parties to the suit may waive the objection” I've already explained that “But no further investigation is necessary, and if the interest is not disclosed, the consequence is inevitable. In practice, the application of this rule is so well understood, and so consistently observed, that no case has arisen in the course of this century, where a decision of any of the courts exercising a civil jurisdiction in any part of the United Kingdom has had to be set-aside on the ground that there was a breach of it.” That is what they are saying. It is so obvious that there was not even a case for a whole century where someone tried their luck by saying, ‘No, I am a spouse, but I will be objective,’ or ‘I did not disclose, but I must be exempted’… in a century, but here in South Africa we have got it in a quarter of a century. As I say, South Africa (is) alive with possibilities. Now, we say “It should be clear from these statements that when applied to the present Inquiry, it would be unlawful, futile and wasteful, to insist on continuing with this Committee pending the review application. Such a decision can only come from spite, but will in any case be not rational.” So even if from hatred, one wants to carry regardless of what might happen… that is fine. You can do that because you have got the power but it will just be a waste of time on these facts. Chair, I know that I am probably coming closer to the time but just allow me one more quotation from the Pinochet case. I just want to stress the point that the subjective bias of the person is not important. Lord Brown Wilkinson said “It important to stress that Senator Pinochet makes no allegation of actual bias against Lord Hoffman. His claim is based on the requirement that justice should be seen to be done as well as actually being done. There is no allegation that any other member of the committee has fallen short in the performance of his judicial duties.” So even Pinochet accepted that Lord Hoffman is not actually biased, but he was still disqualified. Then that same lord said: “Although this is an area in which legal technicalities, particularly to be avoided, it cannot be ignored that Lord Hoffman took no part in running Amnesty International and that they are separate”, whatever, but still, they found him to be disqualified. Then, he said, “I think that the connections which existed between Lord Hoffman and Amnesty International were of such a character in view of the duration and proximity.” Now, I cannot think of any better proximity than between husband and wife, but… “Duration and proximity as to disqualify him on this ground in view of his links with Amnesty International as the Chairman and Director. He could not be seen to be impartial. There has been no suggestion that he was actually biased but his relationship was such that he was in effect, acting as a judge in his own cause. I consider his failure to disclose these connections leads inevitably to the conclusion that the decision to which he was a party must be set aside.” That's what is going to happen to the decision of this Committee.

Chairperson: Are you stating that as a fact?

Adv Mpofu: Chair?

Chairperson: Are you stating that as a fact?

Adv Mpofu: We can bet on it.

Chairperson: Okay. Proceed.

Adv Mpofu: Sorry. No, Chair, you and I will make our bet outside. I am simply saying that it is unfathomable – I cannot put it higher than that, Chair – that there is any court in this land or any land that can say that you do not disclose a spousal relationship to a party, but you must not recuse yourself. Miracles do happen, especially in South Africa. Now… So Chair, maybe it is overconfidence but I think it is a calculated guess.

Chairperson: We will not blame you for overconfidence.

Adv Mpofu: Yeah. Then, Chair, there is just one more. Where they say “Like my noble learned friend…” this is one of the Lords, “I am of the opinion that the principle which governs this matter, that a man shall not be judged in his own cause, nemo iudex in sui causa. The principle is not confined to a cause to which the judge is a party, but applies to causes in which he has an interest”, for example a judge who holds shares and so on but we have already gone through that. Then he says “The question which arises is whether his connection with that party will subject, to waiver, make it clear that my decision is not that Lord Hoffman has been guilty of bias of any kind, he was disqualified as a matter of law automatically, by reason of his relationships.” I think, Chair, it is very clear. The last one, they say “The fundamental principle is that a man may not be… but in some other way, his conduct or behaviour may give rise to a suspicion that he's not impartial, for example, because of his friendship with a party.” So even friendship may disqualify you, let alone married relationships. “This second type of case is not strictly speaking, an application of the principle that a man must not be a judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit of another kind by failing to be impartial.” Now, Chair, I mean… I am taking your challenge again. I am saying that on those facts, barring all sorts of miracles happen, there is no ways that this case, when it goes on review, it will not succeed. I have spoken about some of the 12 grounds and some of the grounds to do with Mr Mileham but I do not have to be 100% right, Chair. All you have to be convinced when you are having a deliberations is that let us put it at its lowest (that) there is a reasonable possibility that the review will succeed. If that is so then anything you do from now on, we will just be wasting taxpayers' money, where you could have just waited and then proceed, subject to all the protections that we might build in if we decide to discuss the way forward. Then, Chair, lastly… Thank you Chair. I want to deal with what I call the practical proposals. In your letter you invited us to indicate and I appreciate that Chair, I must say… whoever advised you to do that got you some points because at least it makes it look like there is an open mind there somewhere. But you correctly asked us to say okay, please indicate. I think it was in the proper discharge of your duties, Chair, to say, ‘well indicate are you saying that the thing must be postponed while you review the decision of the Chair and Mr Mileham and of the Committee until you go to the Constitutional Court one day, which we know can take years? Or are you saying that you want it up until the High Court?’ In other words to get, as I say, maybe because of what you have accused me indirectly of over confidence. We are saying, Chair, we understand where that question comes from and as a compromise, if you like, what we are asking for is a postponement only to the extent of the High Court, firstly because we think that will be sufficient to… because the case is so open and shut. But also because it will just take too long to go the other route. Therefore, we are hoping that if, in the event of an open minded Committee that would have been seen as something that can work with all of us, to say, let us at least get to the High Court stage. The second thing, Chair, is that what I hope, again, a reasonable Committee would do is to say ‘Let us avoid a situation where there has to be an application for an interdict, and then the actual review, because then that will take us to forever, because the interdict might be appealed and all sorts of things.’ We could agree that look, let us cut all that. The Committee will postpone for a reasonable period and then you say to us we must bring your application also within a reasonable period and when the High Court has decided we resume. That would be something that would be practical. It would cut away two cases, it would cut away the SCA and Constitutional Court and what have you. It would make it tight and more predictable. I take your point, Chair, when you said to an unspecified date, that is true, but at least bring some level of certainty. But nobody can say for sure ‘well, we will start on the 23rd of January or the second or whatever…’ Let me give you an example, Chair. Rule 53, which is how you bring reviews… it has been bandied about here, but let me just explain what it says. Rule 53 gives the following steps for a review and that is now cut out any interdict or anything. Let us assume for a minute that each of those steps takes one week, which is ridiculously impossible but I am just doing it for illustrative purposes. So we would give you the application next week, let us say. Then the week after that, you have to give us the record of the decisions. Then the week after that, we would do the supplementary affidavit based on the record that you have given us. Number four, the week after that the Parliament or the Committee will do an answering affidavit. Then the week after that, we will do a replying affidavit. The week after that we do heads of argument. Then the week after that, the other party will do heads of argument. That is impossible, as I said, but let us just use that as a yardstick. If that happens, then the matter would be had on New Year's Day. Which is the… if you just took one week; one week; one week. Now, as I say that is almost impossible and we are not even factoring in the availability of judges and all that. So that is the kind of timeframe we are talking about, Chair, on the best case scenario. In other words, where there is no interdict application; where we have sat down and mapped out a programme for the hearing, and when we present that to the judge President to say ‘Please accommodate us within this period and give us a judge or judges.’ So that would be the best case scenario. The worst case scenario is, there is no agreement, you find that you do not want to postpone and we have to go to court and without any agreement as to how long it will take, well then…nobody knows what would happen, that might take literally years and years. I do not think it is in anybody's interest to go that route. So we say then, Chair, that we then project that the hearing would be… let us say, around about January, and then the dates that we give are indicative, then maybe somewhere after the SONA (State of the Nation Address) we would be able to presume, depending on… obviously, we cannot predict how long the judges will take. But again, if parties approach the judges jointly, they are able to say to the judges, ‘Look, this is important. We are not imposing on you, my lords and this and that, but we would like a quick outcome.’ It is known to happen. Then we say ‘Obviously if no agreement is reached, and the matter has to be taken to court in respect of part A for the interdict, and Part B for the review, it will be impossible to predict how long the process might take until it reaches the final judgement at the Constitutional Court. This may take a year or two.’ Chair, we then say we are available to take any questions on this submission. In the totality, we ask the Committee either to grant application for adjournment for all the reasons that we have said, or to engage the Public Protector and her legal team with a view to reaching a mutually acceptable arrangement to cater for the period between now and the determination of the review application by the High Court. If you remember what I said earlier. Chair, thank you very much. I would like to wrap-up by just taking the four minutes, as follows, Chair. This is a very serious matter, and as I said that it is much more serious than the recusal application because this one involves our Parliament at least, which may act either in a way, which is in contempt of court, or acts in a way that is responsible. I dare say, Chair, that unless if we are not driven by emotions and hatred, and all sorts of vindictiveness and all sorts of things, and bias, I dare say, then the outcome of this should be very obvious, which is that let us rather do a reasonable accommodation of each other and find a way to balance the interests if finalising this matter, with the interests of the Public Protector and being able to enjoy her rights, which are enshrined in Section 34 of the Constitution… to have an impartial decision-maker to decide her fate. She is not asking for much. She is asking for what you promised in the rules, that there will be a fair process. A fair process and one that has biased people sitting in them are two diametrically opposed things. So the promise of a fair process cannot be achieved by this Committee as currently composed… it is just an impossibility. The second way to look at it, Chair, in closing, is to say ‘Okay’… and that is why I have been at pains to say, I am not convincing you to recuse yourself. We have gone past that (and) you have made your decision. All I am saying is that there are two positions now. You say there are no grounds for bias; we say there are 12 grounds for bias. We say in the case of Mr Mileham, there are two grounds for bias; he says there are no grounds for bias: fine. It is a free country. So all we are saying is that let the court decide. You may be right, we may be wrong, or vice versa. What I have been at pains to show you today is that we are probably right but as I say you do not have to believe me. You just have to say that on these facts, let somebody who is not you or the Public Protector, decide whether she is… this is a fair process, when it says somebody who has already prejudged her to be incompetent, or when it is somebody who is married to the complainant, or when it has somebody who has not disclosed that connection – except to some MPs somewhere, or to the MP, who is not even a party to this. It is up to you, Chair. The test is very clear that the… It is not... That is why you will see somewhere in my writing I said I am pitching this particular application, not on the basis of actual bias… deliberately. I am pitching it at the level of reasonable apprehension of bias. I am happy to do that. So assume that for all intents and purposes, both you and Mr Mileham are the fairest people ever produced by this country… that is not the point. The point is the reasonable apprehension of the Public Protector and I do not want to pitch it higher than that. At that level, anybody who is neutral, objective and fair will know that from the point of view of the Public Protector on these facts that are before this tribunal, there is no ways that either you or Mr Mileham or both, are not automatically disqualified. Thank you Chairperson.

Chairperson: Thank you, Adv Mpofu. There is a new possibility you have created. You would have started at 10:08 and you have utilized the shortest extra time. About 11 or 13 minutes. Thank you very much.

Adv Mpofu: I have learned from you, Chair. I have learned from your time analysis.

Chairperson: I still do. Thank you. Thank you, for that. I could see that the Public Protector was standing up and I was responsible for that because we did not have a break. So we will take fifteen minute break and come back to follow the other matters.

The meeting was adjourned for fifteen minutes.

Chairperson: I am briefly going to ask for the Evidence Leaders, if there is any clarity sought from your side? Adv Mayosi?

Adv Ncumisa Mayosi: Thank you, Chair. We do wish for an opportunity to address one aspect that arises in the written submissions of the Public Protector in support of today's postponement. Chair, the Evidence Leaders do not play and have not played a role in the decision making of this Committee in respects of postponement applications and we do not intend doing so. But, we do wish to respond to an assertion that is made in paragraph 15 of the written submissions in support of the postponement that is sought today, insofar as that paragraph is directed at us. So it is said in paragraph 15: “Although the adjournment application is still to be made past experience has made it easy to predict that whatever the merits of the application, the majority will almost certainly find against the PP, especially if the Evidence Leaders oppose the application. In the unlikely event of a different decision, this prayer will simply be abandoned or not pursued.” It is this assertion, Chair, that we wish to address. The imputation of a certain outcome of this application but in particular, if that outcome is supported by the Evidence Leaders. There is no postponement that has previously been sought by the PP and her legal team that the Evidence Leaders have proposed since these proceedings began. Members will recall that this is not the first postponement being sought by the PP and her legal team. For instance, when these proceedings began, Mr Mpofu sought an adjournment of the proceedings of his inquiry, in order to attend to the full bench hearing before the Western Cape High Court, where the PP sought to challenge her suspension. The proceedings then adjourned sometime in July, I think it was on the 25th for this purpose, and they resumed again later on in July. This was not opposed by the Evidence Leaders. On some occasions after that, the PP’s legal team had requested the rescheduling of hearings, so that they could attend to other litigation commitments such as, for example, when they had to attend to the PP’s criminal proceedings for perjury. The Evidence Leaders did not object to this. On the whole, Chair, the Evidence Leaders have adopted an accommodating rather than an oppositional stance in relation to requests of this kind. We have done so notwithstanding the personal impact that these delays caused to us as external legal counsel, who have practices of our own and other clients to attend to. The PP’s request for a postponement on the 13th of September was not opposed by the Evidence Leaders. Rather, as the Chair and Members will recall, during the proceedings on that day, we sought clarity from Mr Mpofu, regarding, amongst other things, the postponement that he was asking for. In other words, was it an adjournment of the proceedings, until the PP’s litigation was finally determined or was it only a postponement until after the hearing of the PP’s application on the 16th of September? This was not opposition to the request for a postponement, but it was rather an attempt on our side to ascertain whether the postponement being asked for was going to result in an indefinite delay, which in turn impacts on us in our ability to make ourselves available for these proceedings. So Chair, given that there are no postponements that have previously been opposed by the Evidence Leaders, it is not correct to say, as it is said in paragraph 15 of the written submissions in support of today's application… it is not correct to say that based on past experience, the PP can easily predict what the outcome of this application will be, especially if it is opposed by us. As far as the Evidence Leaders opposition of applications of this nature is concerned, we say there is no past experience of this. To be clear, Chair and Members, the Evidence Leaders are neutral regarding both the merits and the outcome of the present application. We are not decision makers in regard of this application. The Chair and the Committee are the decision-makers and we will act in accordance with whatever decisions are made in that regard. It is important for us, Chair, as Evidence Leaders to place ourselves on record in regards to this assertion, particularly because in the written submissions that were made in support of the PP’s application for the recusal of yourself and Mr Mileham, MP, one of the grounds relied on there was phrase as unduly favouring (the) Evidence Leaders and unwarranted proximity to collusion with them, and so on and so on. We addressed this accusation of collusion and others orally on the 21st of September, and the record will reflect what we said there. We do not intend to repeat it. We denied this; and to the extent that this inference is being raised here, again, we deny it. Suffice to say, Chair, that this assertion made in paragraph 15 has the same collusive connotations, as what was said in the written submissions in support of the recusal. We will throughout this proceedings, seek to address deny and place our denials on record each time such aspersions are made against the Evidence Leaders… they are unfounded, Chair. In fact, to borrow from the PP’s phraseology, based on past experience, assertions of this nature have tended to be used to impugn the character of the Evidence Leaders as legal professional, which in turn can and has been used as a tool to attack the integrity of the Section 194 process, hence, the need to place our position on record, Chair, whenever this occurs. Thank you.

Chairperson: Thank you, Adv Mayosi. On that, I will proceed with Hon Members. I am to ask you at this stage to stay on clarities, so that you do not when we get into deliberations, say you did not understand what the PP was saying on the application. Any issues that you are uncertain about, you need clarity on… I want to open up opportunity for that so that we do not get into the merits of what has been placed in front of us. I am going to invite you seek those clarities. After that I will revert back to Adv Mpofu, to provide us with those responses. Any Members wishing to seek clarities? I see Hon Nqola, on the virtual platform. Hon Herron. Are there any further Members on the virtual platform that wishes to make any clarities? Hon Zungula… thank you. Those are the Members that I have indicating that they want to make clarities. Then there is a late comer, Bhekizizwe Nkosi. Thank you. Here at M46? Hon Sukers… thank you. In that order. Hon Xola Nqola, you have the platform.

Mr X Nqola (ANC): Thank you very much, Chairperson. I only have one question and the question is that can a contempt of court arise if the court has not adjudicated on an application, particularly when the application has not been lodged but there is an intent that has been indicated to launch that particular application? That is the only question I have, Chair. Thank you.

Chairperson: Thank you, Hon Nqola. Hon Herron?

Mr B Herron (GOOD): Thank you, Chairperson. Chairperson, my question is about the proposals with regards to a reasonable period of time to bring the review application. I see in the application for the adjournment at paragraph 56 there is a proposal that the application will be brought by the 31st of October. So I just want clarity if that is still the proposed date by which the application for review would be brought and that would be considered the reasonable period of time because I do not think Adv Mpofu in his oral submissions referred to what date they had in mind for bringing the review application. Thank you.

Chairperson: Yes, before I let you go. He also indicated, Hon Herron, that the date of the 31st would largely depend on the outcome of today’s meeting but I will leave that to him. I was just raising (it) in order, if you want a follow-up. Thank you, Hon Herron. Hon Zungula?

Mr V Zungula (ATM): Thank you, Chairperson. I have a couple of questions. One is similar to what Hon Nqola was saying, about the contempt of court. So I think I will just let that go. So my first one…

Chairperson: If you could also just assist… come closer to your mic. So that we can hear you properly. You are far away.

Mr Zungula: Is it okay now, Chairperson?

Chairperson: Your voice is usually strong but today it seems that you are down. I do not know if it is our system or not. We are also asking them to increase the volume. Carry on.

Mr Zungula: Alright. I have a couple of clarities. The first one is that the Chairperson says he has taken an oath of office. Does that make the Chairperson immune to bias? Secondly, if we continue as the Committee in face of such a clear cut case, who will be liable for the criminal case of contempt and contempt of court? Will it include also people who would be against us proceeding as a Committee or (would) every Member of the Committee will be liable or is it Parliament? But the biggest issue from my side as to who will be liable for the contempt of court. You will remember, Chairperson, those who are in contempt of court will be arrested. That is why I need to understand who will be liable for being in contempt of court. Then the third question is the Chairperson denied shouting (at) Adv Mpofu on the 13th of September when he tried to present the medical certificate but everyone who was listening, I think would have heard him. Will the review court have access to the YouTube material? Then the last one, what are the possibilities of getting an earlier date no later than January? Those are the only questions. Thank you Chair.

Chairperson: Thank you, Hon Zungula. Hon Bhekizizwe Nkosi? Hon Nkosi? He is very quiet. We will come back to him. Hon Sukers?

Ms M Sukers (ACDP): Thank you, Chair. I do not think (that) mine is a clarity seeking question, but I have a concern. It seems that Adv Mpofu is indicating that Public Protector may withdraw from the process and I think I just want to ask the question that was actually mentioned by Hon Mulder some time ago, where he said that there is no guarantee that the Public Protector would put her side to this Committee, given that she was indicating then that she would answer only on written questions. My question is whether the Public Protector… whether Mr Mpofu can indicate that the Public Protector is going to give evidence to this Committee.

Chairperson: Are you done? Did you get that, Adv Mpofu? Okay. Thank you Hon Sukers. Hon Malema?

Mr J Malema (EFF): Thank you very much, Chairperson. I just want to ask Adv Mpofu as to how do we navigate the fact that there is no case before any judge as we speak now because ordinarily, we will say, now that the matters before the court, we cannot proceed with this matter? But in your own submission, you said you are 60% ready to complete the papers, meaning there is no case number or any court before… I mean any papers before the judge on which basis are we going to base our argument or postponement? I heard you quoting some cases that say if you are made aware of the matter before the court, and you still proceed, you may be in contempt of court. From a layman's perspective, and this is the argument we have always used in Parliament, that if the matter is before the courts we cannot even debate it in the full sitting of Parliament… but there is no matter before court. I was going to be more comfortable if there was a matter before court where the Chair and the Committee, or whoever, is served with papers… and as we speak now, we have got papers that have been submitted to court; a case number has been released; and all of us have been made aware that we are respondents and therefore let us leave the matter before the court. So I am troubled by that issue. So I hope to get the clarity from you. Thanks Chair.

Chairperson: Thank you, Hon Malema. Hon Bhekizizwe Nkosi, I hope your line is back? Hon Nkosi, can you talk to us, as we can see your picture? We suggest that you logout and join again. Thank you. Whilst we are waiting is there any other Member because I do not want to invite Adv Mpofu and then there is somebody else who wants to come in? Hon Gondwe?

Dr M Gondwe (DA): Thank you very much, Chairperson. I think I have two questions…

Chairperson: Raise your voice.

Dr Gondwe: Of clarity, Chairperson. In his opening remarks, Adv Mpofu stated that no one wants the Inquiry to proceed as much as the PP does. Then my question becomes if indeed the PP does want this Inquiry to proceed, why then have we as a Committee have had to sit through three recusal application and today we are sitting through an adjournment application? I mean, they have brought these applications in such a short space of time: one after the other. For the ordinary person on the street, you know, they would think that the PP does not want this inquiry, to proceed and for her side of the story to be heard. We are really looking forward to hearing her side of the story. So I also need to ask you, Chairperson, have the PP and her legal team finalised their list of witnesses that they would like to call? Have they submitted that list to you? Because, you know, we are really keen to hear her side of the story and these recusal applications and this adjournment application seems to suggest that she is not really keen on, you know, proceeding with this inquiry. If she did, she wants… she would be rearing for this Committee to hear her side of the story and for her team to lead, you know, witnesses that would, you know, exonerate her from the charges in the motion… so I am puzzled. Then my second question becomes… so the adjournment application suggests that, you know, this pending review proceedings, which have not even been brought before a court of law, you know… should they be brought before a court of law come the end of this month, then, you know, and with everything that needs to take place, you know, in-between, then we will then resume at the end of February and the beginning of March 2023. By then Adv Mkhwebane’s term of office is around the corner – it will literally be six months away. So does Adv Mpofu think we can conclude this Inquiry before her term of office? I mean… I am puzzled. I would like clarity on that, Chair. Thank you so much.

Chairperson: Thank you, Hon Gondwe. Hon Nkosi is the last one. Then we go to Adv Mpofu.

Mr B Nkosi (ANC): My first question relates to exhausting the mechanism provided by the Section 194 Committee itself. We are creature of the legislature. Has the Public Protector’s team considered approaching those that constituted this Committee, meaning the Speaker and through the Speaker, Parliament, to try to resolve the matters that they bring before us? If so, why is that not open to them? Why go to court on a matter that you can easily resolve through that process? Secondly, I think I heard the legal representative Adv Dali Mpofu say that… I have not found it in the paper in the application but I seem to have heard that he says that perhaps you, Chair, and the Evidence Leaders can take can take an aside and try to iron these matters out and come back to the Committee. In relation to that one, is that a commitment that whatever the outcome of that process will be accepted? Two, if that does not work, will they still go to court? Thanks Chair.

Chairperson: Thank you Hon Nkosi and thank you colleagues… Hon Members. I think at that point I am going to ask Adv Mpofu to do the brief responses to the clarities that have been sought.

Adv Mpofu: Thank you, Chair. In the interest of time, what I will do is… I will try and group those related. So for example, the question from Hon Nqola and the one from Hon Malema and Hon Gondwe, are related in respect of procedure. Let me just tackle those very quickly. Those who were listening when I started, I said to the Chair, that the reason… I do not know if Members have the correspondence between the Chair and I, over the past week or so, and I will not go to it now but let me just paraphrase. What happened is that… Yes, our duty is to make the Committee aware, via the Chair, obviously, of our intended application. That has been done. The Chair when he was summarizing at the beginning, explained that. Now, the reason why there is no application before a court now as we speak is very simple. It is because, as we have said, the decision of this… Otherwise we would go up and down the courts and the courts do not like their time being wasted like that. There are two primary decisions that will be reviewed by the review court. The one is what I call the non-recusal decision. That decision has been made by three separate entities and I do not mean to disrespect, let us say persons. It is the Chairperson’s non-recusal decision. It is Mr Mileham’s non-recusal decision. The third decision, which is an important one is a decision of this committee, endorsing those two decisions. So that is the first cluster of what the court will have to review and see whether those decisions were rational – all those three decisions. But the second cluster of decisions is what you are going to decide now… alright. In fact, we even considered that go to court and say we know what they are going to decide, because we do. But that would not be procedurally proper. We have to await the decision of today because that decision, if it is adverse to the Public Protector must also be reviewed, because of the cases that are cited, which say that you will be wasting your time if you proceed, knowing that there is a review application. Okay? So that is the first answer as to why it would be foolish to go to court. Then there is a decision and then you go to court again. It just not done like that. That is why the court in Pikoli’s case said… and I put that right up front, before my submissions, you will see the preamble to the submissions. It says on page one “In appropriate circumstances an authority should halt…” that means stop, “its actions” or the Inquiry, “… when it is aware that the review proceedings are to be instituted.” Right. Not have been instituted, when it is aware that they are to be instituted. “Failure to do so may render the official consent liable for contempt of court.” In short, for the Committee to be held in contempt of court all that is needed in law is for it to be aware that the review proceedings which are to be instituted, and it is common cause that test has been passed, here. Okay? Alright. So that is the answer to the issue about whether… It is true that in (an) ideal world, it is better to say, ‘Oh, here is the case number and so on’, but in these situations, you cannot. If you do that, you would just be wasting the time of the court and you might be mounted with costs… with a punitive cost order because you know that generally you should not review a decision pre-emptively. Okay? Alright. So that covers, I think… Chair, please indulge me. The first part of your question, Hon Nqola, I think I missed… I got the part about the proceedings have not been in court, which I have just dealt with. But you had asked something else – can I just ask him?

Chairperson: Whether he said…

Adv Mpofu: He started by saying can contempt be applicable if the application has not been lodged, which I have dealt with, and then there was another one.

Chairperson: Okay. Do you want to complete that Hon Nqola?

Mr Nqola: No, Chair. I think that Adv Mpofu has captured the question correctly.

Adv Mpofu: Have I? Okay, thank you. Thank you very much. Okay, so that cluster of questions… So that is the 60% or 70% or whatever it is, was about that. The other part is impossible. You cannot do it until there is a decision here. Okay. I do not want to get into legalese but before there was something called constructive contempt of court, and it dealt with situations like this. In other words, contempt of court normally is that you must have a court order, and then you defy the court order but constructive contempt means when you know if I go to court and the court cases next week, and I say I want you to return my car, then you sell the car, you cannot then turn around and say, ‘Oh, well, the court was only sitting next week’ because you knew that I am going to court next week. So it is… anyway. Then Hon Gondwe, I think let me just, since I have answered one of her questions, finish with her. She says if no one wants the Inquiry to proceed, why do we have recusal applications? It is a… Pardon? Well you said why do we have to sit through…

Chairperson: Order, Hon Gondwe. You speak through the Chair. It does not matter how close you are with Adv Mpofu. So if you want to clarify that, I give you that opportunity.

Adv Mpofu: Okay, maybe in fairness, Chair, let Dr Gondwe say her own question but I wrote it down. Carry on.

Dr Gondwe: Okay. My question was you said in your opening remarks that if there is anybody that wants this inquiry to proceed, it is the Public Protector. So my question to you was if indeed she wants this Inquiry to proceed, then why have we as a Committee had to sit through three recusal applications and this adjournment application, if indeed she does want you to proceed? Then I asked, through the Chairperson, that are you ready to lead your witnesses? Have you submitted? Have you finalised your list? Are you ready to lead your witnesses because we are looking forward, rather let me speak for myself, I am looking forward to hearing her side of the story? If indeed, she was rearing for us to hear her side of the story and for this inquiry to proceed, then you know we would not be at this point.

Adv Mpofu: You are puzzled. Yes but that is exactly what I am saying. I do know where the problem is. That is exactly what I was saying. I cannot answer all the three questions in one sentence; I have to do them one by one. So I was dealing with question number one, which is if indeed she wants to proceed, why do you have to sit through the recusal? That is exactly what I said. Is there anything wrong that I said?

Chairperson: No. Proceed, Adv Mpofu.

Adv Mpofu: As said before, and then repeated now… The reason, Madam, why you have to sit through a recusal application and a postponement application is because of something which is called ‘fairness’. Okay? Your Committee has bound itself; it is bound by the Constitution; and it is bound by the rules, to act in a manner that is procedurally fair. Procedural fairness includes two things. One is called audi alteram partem. The other is called nemo iudex, which is the rule against bias… right? Now, anything that lacks those two things is ipso facto not fair. Right? So the Public Protector… when I say the Public Protector wants the Inquiry as to proceed, you must build in there, the word ‘lawful’. In other words, the Public Protector wants a lawful process to proceed. She cannot be keen to have an illegal process proceed, that would be madness. Okay. So what she wants to happen is a process that conforms with your own rules about fairness. Now, if one of those rules, which is the rule against bias, is being breached because sitting here in her judgement, are people who are automatically biased, as I have explained, then it is like saying I am just rushing for the sake of into a cliff… You rush to the actual destination. You do not rush to an inherently unfair process. So that is the answer. That is why everybody, including the DA, goes to court. They go to court to make sure that there is a fair process. That is what they did in the case of Phalatse. That is what they did in the case of all sorts of people. You cannot say if you want something to happen… ‘Why do you go to court?’… I cannot claim to understand that. People go to court because they want that process to be done fairly and justly. Okay? Alright. So that is why, unfortunately the law, it is not me, provides for such a thing called recusal because the law seeks to protect us, you and me, from kangaroo justice. It wants us to be subjected to fair processes, whether it is by a judge, or a committee of Parliament, a tribunal that is giving out dog licenses or tenders, or whatever; there must be a fair process. Otherwise you would ask ‘why does the losing tenderer go to court?’ because they want the bridge to be built they must not exercise their rights? You say that going to court or asserting your rights means that she is not keen. Yes, she is not keen to have an unfair process, proceed. She is not keen to have the money of taxpayers wasted in a process that is doomed to be found to have been unlawful, because you can just do that to satisfy our, our insatiable appetite to hurt but it is not going to achieve any purpose. It would just waste money and time because, again, you will be rushing to a cliff; and obviously, because the court will tell you, you should not have… it is as if you did not sit at all, as I quoted from that case. Then, you say that you are puzzled whether if the processes are followed, you would be able to finish in six months. Again, that logic escapes me, because the target for you – no, no, for all of us – should be a fair process; not six months, or three months, or 10 years, or whatever. The target is that we must have a fair process. If that can be achieved in six months, so be it. If it can be achieved in six minutes, so be it. But, we cannot be chasing minutes or days or weeks or months – we must chase justice. Right. Now, then you say that you are looking forward to hearing her side of the story and that ties with the question of Hon Sukers, Chair. So if I can just combine those two? Yes, you are looking forward to hearing her side of the story. She is more than looking forward, I can tell you from personal experience. She is more than looking forward to giving you her side of the story in a fair Inquiry. Okay, so unfortunately that hurdle that has to be passed. If you want to give a side of the story in some hall in a moving train, somewhere… She does not want to give it there. She wants to give it in a fair Inquiry, that is properly constituted; that does not have people who are biased inherently because of their marital status or previous utterances or all the things that have (been) raised. Okay? That goes to… Hon Sukers says two things – whether the Public Protector will give evidence. The answer is a big yes. She will give evidence once all the unfairness and bias and all that goes with it, has been cleared. In fact she is looking forward to it. If we could clear it now, she would give it right now. We are more than ready for that, especially given the kinds of things that have been said here about her. She is more than keen but what she will not do, It does not matter who says what, but (what) she will not do is not to exercise her rights like all of us, you and me and just, you know walk into a lion's den… I do not know… expecting a Daniel miracle. That is really all that is happening here. Then you say the Public Protector… you said that I said that she is going to withdraw from the process. I do not know where you got that from. I have never said such a thing. All I said is that the Public Protector wants to proceed in a just process and that is true. That has always been true. It should be true for any other human being. Yeah, I think that covers Hon Sukers. Now coming back to Hon Gondwe’s questions about lists of witnesses. We gave a list of witnesses in August, as you know. The Democratic Alliance issued that… distributed that list to the public. We raised it here, as an objection because that was objectionable conduct to put it neutrally. But that list you have got, so for now you must live with the list you got in August. If you want another list, you will get it when we're going to call witnesses. Whenever that is. There is a rule in this place. This is not just… You do not just do things because you feel like (it). The rule says that you must give statements seven days before calling a particular witness. I can assure you will comply with that rule. I have spoken about it before. If we do not comply, it will be because of practicalities, just like the Evidence Leaders have not always complied with it. But as lawyers, we know that it is difficult to control human beings and witnesses. Sometimes it is not possible but all things being equal we will comply with that rule, you can rest assured. There was something else… Oh, the puzzle. I hope that you are no longer puzzled by the fact that it might take six months or whatever it is. It does not matter how long it takes. The most important thing is that, and I think that links up with somebody else. I am sorry, Chair, I cannot remember. One of the Members spoke about… Oh no, it is Hon Gondwe. ‘Why does she not just put her side of the story and let us get on with it and all be happy?’ No, the law is different. The law says you must bring your application as soon as possible. We cannot wait for the outcome and then only when the outcome comes and maybe it does not suit you, you start saying ‘Oh, what about Hon Mileham? Oh, what about this, what about that?’ it is not allowed because that is opportunism among other things. You need to bring it… In other words, even if we succeed, let us assume the Committee will find the Public Protector not guilty or that there is nothing wrong that she has done that has nothing to do with whether the processes is biased or not. Okay? So it is not about the outcome. It is about the processes: procedural fairness. This is what Chief Justice Ngcobo said at paragraph 71 of the ABSA case: “It is not open to the applicant to wait for the outcome of the appeal before pursuing his complaint of bias. It is highly desirable – if extra costs delay and inconvenience are to be avoided – that complaints of this nature are raised at the earliest possible stage. A litigant should not wait for the outcome of the appeal before raising a complaint based on recusal when all the facts giving rise to the recusal complaint were known to the litigant. The conduct of the applicant is simply inconsistent with a reasonable apprehension of bias. If he had any application of bias, it must have been of the kind that he thought could be cured by a judgement in his favour but that can hardly be said to be a reasonable apprehension of bias that is reasonably entertained. The applicants have wanted to have the best of both worlds.” Okay? That is the law… according to the Constitution at least. So that is how it works. So that is why I am saying you have situations here where the highest court in the land has pronounced on these things. So it does not matter… I mean, if the court says that if you are married to someone, you are conflicted, but that person whose involved in that says, ‘No, I'm not conflicted’ who are you going to believe, the court or the person? The answer to that should be obvious. Yeah, so I think that covers those sets of questions. Hon Sukers… We have covered Hon Malema… Hon Herron, the Chair is quite right: I did, if you like, water down the date of the 31st of October, by saying that it is like a moving target. By that I mean… Let us say for argument's sake, this Committee takes the decision next week, on Wednesday, you cannot then say to me, ‘but you said you were going to bring the application on the 31st of October because that will be the 2nd of November already.’ All I am saying is that it will be a few days after the decision of this. So it is an indicative date that we are giving. Already, I can tell you now that date might even end up being the following day, or whatever, for various reasons, which are not relevant. But the principle, as I said to the Chair, and that is why the Chair summarised it correctly, is that the application will be brought as soon as possible. That, Chair, ties up with another question from Hon Zungula on what are the possibilities of getting an earlier date no later than January. The possibilities… When I did that postulation, which led us to New Year's Day, I was doing exactly that. I do not know what the possibilities are because some of the things are not in my power. One is if this Committee finds that it adjourns, I think it is possible that it can happen in January. But if the Committee says it will not adjourn, then it is out of my hands. Two, the Judge President has to allocate a date, possibly for a full court but from past experience, I would say that the Judge President has accommodated Parliament and us… especially. That is why I am so keen about this thing of negotiation because we have had all the cases that we have done around this matter. We have been able to negotiate as the legal teams of the President, the DA, the Speaker and ourselves; and do what we call a joint letter to the Judge President and then ask for a specific date. If we do it like that, he almost invariably gives the dates that we have asked for. But obviously, if one of the parties says no, I am not available and so on, then you cannot force people to come to court. That is why that negotiation is faster than litigation just for the sake of litigation. So the January date is based on an optimistic projection that people will act reasonably, but that is not necessarily what happens. Okay. Then, Chair… Yes, that also covers Hon Herron’s second part of the question. The date of the actual review, then would be, as I say, give or take around about January, if we joint asked for it from the JP (Judge President) and unknown if we do not.

Mr Herron: Chairperson, may I just clarify?

Adv Mpofu: Sorry?

Mr Herron: Sorry, sorry, advocate. I am talking to the Chairperson. I just wanted to clarify my question.

Adv Mpofu: Yes.

Chairperson: Go ahead, Hon Herron.

Mr Herron: Thank you. I was actually… When I raised 31 October, just asking, what is a reasonable period to launch the review application? Today is the 27th; the 31st is four days away. So if the Committee was to agree to an adjournment based on you launching a review application, how long should that be?

Adv Mpofu: Hon Herron, I think I have answered that question. I am saying two things that it will be as soon… If it is not the 31st, it could be before or slightly after and so on. The principle, I am saying is that we are committed to doing this as soon as… That is why I can assure you, we have spent the past few days drafting so that we do not wait for this outcome of this application and then we start again, I the undersigned, Busiswe Mkhwebane… all of those have been done. The question now is… The only outstanding bit is the outcome of this application because that has to be factored into the prayers. One of the prayers is to say that the refusal of this call of this committee to recuse… to postpone, is irrational because of the reasons I have explained. But for that to be a reality, there would have to be such a refusal. I cannot explain that more than that. Yeah. So they… It's a moving target and that… and then I have also explained that if the Committee for some reason, for example, it says, it wants to get legal advice, or whatever and then it gives the decision on the first of January… I mean on the first of November, then you cannot say to me, but you said you are going to do the thing on the 31st because it is a moving target. I do not know if that covers you, Hon Herron?

Chairperson: Proceed.

Adv Mpofu: Yeah. The principle is as soon as possible within days of the decision of this Committee the application… From there, the thing will roll as I have explained, until notionally New Year’s Day, or the first of week of January or whatever. I am just doing that just to show the dates. I do not really mean that we will be in court on New Year’s Day. I was just showing the indications. Alright. Thank you, Chair. Hon Nkosi… The only thing that is left now is the rest of Hon Zungula’s questions. Hon Nkosi… exhausting internal remedies. Yes, Hon Nkosi. That is a good question. I think, again, in the interest of saving time, just after the recusal application, if I am not… Yeah, just after the recusal application, which was sometime on 22 September, literally the day after. On 22 September, we wrote this letter to the Speaker of Parliament and we copied the Chair of this Committee. It starts like this “As you may be aware on 25 September the Public Protector moved an application on the ongoing section 194 Committee for the recusal of the Chairperson, Hon Qubudile Dyantyi, and one of the Members representing the DA, Hon Kevin Mileham” and so on. “The purpose of this letter is to formally inform you of the above and to supply you a copy of the application for further instructions. After the application, the Committee duly adjourned the proceedings in order to deliberate on the recusal…” and so on, and so on. The answer is yes, we did do that. The Speaker’s response was that – which came on the 27th of September – it is not her, it is the Committee. She said “Dear Mr Seanego. The Committee’s functions independently within the confines of Assembly Rules. The Speaker cannot interfere nor involve herself in the functions, except to the extent that the Speaker chairs the National Assembly. As such, the Speaker is not in a position to respond to your requests. The client is at liberty to take whatever course of legal action she wishes, following considerations and decisions that emanate from the recusal applications.” So that was done: thank God. That is ticked. We have no problem because that would have been another problem, by the way, in the timeline. We would have had to escalate the thing to the Speaker that might have taken another two weeks. Fortunately, we have already done that to save time, and she has already responded. So there is no further duty upon us to exhaust internal remedies, because the Speaker has basically said, the Committee will decide whatever it decides. So that is done: thank you. We did it in the interest of saving time, as well. Oh, yes. The last question from Hon Nkosi was if we have the… Where I was saying that someone must lock us into a room and throw away the key, is that a commitment that whatever the outcome… It will be accepted. If it does not work, will we still go to court. Well the answer is, you never know. It is called in our trade, settlement discussions. Settlement discussions are done in order to avoid prolonging time and burdening the court with obvious things and taking months and months to get a judgement and so on, in something that you could have resolved in an hour of talking. But there is no such thing as saying, well, we will go into settlement negotiations but if they fail, we will not go to court. It does not work like that. The whole point is to avoid going to court, by having those negotiations. But if they collapse, they collapse and then we are back to square one. We were just given a commitment from our side. Whether people believe it or not, we are committed to having this thing moving as fast as possible and that is why we have taken all the steps of pre-empting, writing letters to the Chair; writing letters to the Speaker, so that there is no… If we wanted to waste time we would then be dragging and say, now we are going to spend another month writing to the speaker. Now we are going to do this… We do not want that. We want the thing to… In fact, you will be surprised, when you do hear our witnesses and understand why we wanted to come as soon as possible, but before a fair process… a fair Committee. Okay, sorry Chair. The last one is Hon Zungula’s three other questions. ‘The Chair says that he has taken an oath of office, is he immune to bias?’ I think I answered that in my main address, Hon Zungula. Nobody is immune to bias, not even the Chief Justice or the Pope. Nobody can be assumed to be immune from bias, particularly… It cannot be simply because they have taken an oath of office. That involves, by the way, even this issue about the lawyers that were chosen by this Committee. No one can be… There are rules of… I wanted to make this example against myself. I have done cases for the UDM (United Democratic Movement), for example, or the president of the UDM since 1995, almost 30 years. So if this Committee were to say it wanted to recuse Hon Holomisa for some reason or another, while I am doing a case for him, I would not take that case. Nobody says I should not take it but ethically, I would not because, again, I could be the most objective lawyer in the world but how is it going to look if I now take the same case, for the recusal or non-recusal of my client. It will work against him either way, by the way. Either I will say he must not be recused, in which case I will be accused of bias, or I must say he must recuse, in which case I will be overcompensating. Anyway… No is immune from bias. That is the short answer. No one is immune from bias, not me, the Chair, not anybody… The oath of office even of judges does not immunise anybody from bias. Okay… and the test is objective, by the way. It is not the test of the ‘reasonable Chairperson’, (it) is the test of a ‘reasonable Public Protector.’ who will be liable for criminal offence or contempt of court. Would it be every Member of the Committee? Theoretically, bearing in mind that contempt of court these days carries 15 months… It is no longer the customary six months. That will mean… No, I do not – here I am speculating – think those Members who vote against the motion… We know the motion that is going to come. It is going to say ‘No, we are proceeding.’ So if I was advising those Members who are not part of that, they should have their names registered so that it is known who is not part of that decision. Generally, without that it would be what I call common purpose because the Committee in law is a person. It is not the individual Members. So it is the Committee that is biased, because it took a majority decision but criminal law is a different kettle of fish. So the short answer is that…

Chairperson: Can you wrap up now, Adv Mpofu?

Adv Mpofu: Yes, yes. Sorry, Chair. Okay. That is the short answer. It would be those who have taken that decision. That is what… Although the Pikoli quote that I made says, ‘if the tribunal or the official, they will be guilty of contempt,’ and the official here is the Committee. But I do not think it can be taken literally. So it is only those who will go for 15 months. Okay. Now, then you say that the Chairperson denies shouting and everyone heard him, what, what… and YouTube material. Yes. If you remember that when I was giving the stages of the Rule 53, one of them is the record. There is no review court, because the review court is not here now. So the review court is literally going to go through the record of these proceedings from the first day where that is, and then we will have to show them where they are relevant, for example, where we applied about Hon Mileham, where we say the Chair was shouting and so on. The record will include the audio-visual material, actually, the law says, every scrap of paper that informs that decision must be… So all these things, the opinion, the record written, the YouTube and what have you, will be part of that, so that the court can assess for itself. So again, it does not matter if the Chair says I did not shout. Or if I say he shouted, because both of us might be subjective about it. It is what the court will observe for itself and it will say, either I am right, or the Chair is right. Then we move on. Last one Chair… Oh, no, I think I covered that one. Thank you, Chair.

Chairperson: Thank you Adv Mpofu. Hon Members, we are now going to take lunch. I am requesting that Members we come back at 13:45 but we will excuse the Evidence Leaders, Adv Mpofu and the PP’s team, so that we get into that slot whilst they finishing their lunch. So that it is convenient for all of us. Thank you very much. It is a shorter lunch for us.

The meeting adjourned until 13:45 for lunch.

Chairperson: Now that we are now able to deal with the next items, having excused the Evidence Leaders and the PP… Before I invite the Members for their own deliberations, I am going to invite our legal adviser Ms Fatima Ebrahim, to make important reflections, having listened. Ms Ebrahim?

Ms Fatima Ebrahim: Thank you, Chair. Good afternoon to all the Members and everybody that is on the platform online as well. Chair, I want to start by just reminding Members of the nature of the Committee and the standards by which the Committee is bound in conducting its work, including the making of the decision today as regards to this adjournment application. The Committee is established to conduct a public Inquiry in pursuit of its oversight function to hold the Public Protector to account. Thus, whilst it may have elements of a disciplinary process or even a court process, it is a sui generis process. In fact, in the simplest of terms, this Committee is the ultimate accountability mechanism. In that sense, it is incomparable to any other structures. The nature of the oversight, Chair, and the manner in which the process is conducted is circumscribed by two things, and that would be the overall process and the process of making this decision today. Firstly, procedural fairness is a standard made applicable by the Assembly rules to the conduct of the Inquiry. In other words, the process must allow the people an opportunity to have her side heard. We have done so in the broadest sense by giving her an audi before the commencement of the hearing, but allowing her to please enter evidence when the time comes and of course, at the end of the process, she is also going to be allowed an opportunity to look at the draft report and make her comments. In particular, in this application, she has been provided an opportunity to make written submissions and her oral submissions, which we had this morning. Procedural fairness, also as Adv Mpofu indicated earlier, requires that there be no bias. The nature of the letter requirements – I think we dealt with in sufficient detail in the last meeting. I trust that Members will decide on this application today with an open mind. Secondly and importantly, is the standard of procedural rationality and that is ha standard for the validity of all exercise of public powers, meaning that Members must make any decision including the decision on whether to grant this application today in a rational manner. They must have lawfully sound reasons for the decision that they are going to take. The Committee is now seized with this adjournment application which I will need to adjudicate, as I said, in this procedurally fair manner, by allowing the PP to state her case which has already been done, and making the decision in a manner that is not biased. Finally, by ensuring that the decision we make is a rational decision. In other words, it must be well-reasoned, and there must be sound and defensible grounds for why the Committee concludes in the way that it will, however, Chair whilst the Committee is bound by the basic tenets of fairness, it is not required to conduct itself as a judicial authority. The requirements of fairness are flexible and context dependent, one cannot, as I said, ignore the unique circumstances in which this committee operates. From a legal perspective, Chair, in short, it is my view that there is no legal impediment that prevents this Committee from continuing its work in the absence of a court interdict or an order to that effect. The Constitutional Court confirmed this in the Tshwane v Afriforum matter, which is a 2016 matter. In that matter, Chair, the municipality was challenged in terms of its decision to remove street names. There the Court confirmed that there is no legal obligation on a body to cease discharging its functions merely because an effective person like the PP in this case, would be initiating a legal challenge. That obligation can only arise if a competent court grants an interdict. Under the Constitution, this Committee is duty bound to discharge its function of determining whether the PP has misconducted herself and is incompetent as alleged. In that judgement, Justice Mogoeng stated as follows: “It needs to be stated categorically that no aspect of our law requires of any entity or person to desist from implementing and apparently lawful decision simply because an application that might even be dismissed has been launched to hopefully stall that implementation. Any decision to that effect lacks a sound jurisprudential basis and is not part of our law. It is a restraining order itself as opposed to the sheer hope or fear of one being granted that can in law restrain. To suggest otherwise reduces the actual grant of an interdict, to a superficiality. For these reasons, there was no obligation on council to desist from removing all street names upon becoming aware that an urgent application for a restraining order had been filed. Only sheer choice or discretion, but certainly not any legal obligation or barrier, would lead to action being desisted from in anticipation of a successful challenge or application for an interdict.” Adv Mpofu in his oral submissions, and in the written submissions of the PP, placed reliance on the 2010 Pikoli judgement. This is a judgement which is in essence in conflict with the constitutional judgement that I have just quoted from. There is in fact, no risk of contempt of court, as there is no court order presently, restraining proceedings. On the contrary, there is a constitutional obligation for this committee to deal with the motion that is before it. That being said, however, Chair, the Committee must still consider the fact that the PP has indicated that she is proceeding with this review process, and what the likelihood of success is in that process; as a successful process, because it would certainly then have an effect on the work of the Committee going forward. Essentially, what the Committee must determine is the risk of continuing visa vie the risk that the court sets aside that recusal application. We may adjourn for an unspecified time and await the outcome of court processes: this speaks to that rationality component that I mentioned earlier. In this regard, Chair, I just want to make the following observations to assist members into reaching a rational decision on the matter. The recusal application was decided on after considered deliberation in this Committee informed by legal advice and a very thorough response from the Chair. I am confident that the Committee in considering that application complied with its duty to do so in a procedurally fair manner, and arrive at a rational conclusion based on the submissions of the PP weighed against the response of the Chair and Mr Mileham, which was not in any way in conflict with the independent view obtained from counsel. On the issue of Mr Mileham, in particular, Chair. It seems that we keep going back to this assertion that this is a motion of Ms Mazzone. This is not a motion of Ms Mazzone. In fact, Ms Mazzone has played no part whatsoever in these proceedings to date. I have been involved in these proceedings long before this Committee began and to the best of my recollection, the last time she has even received so much of an update was when the Speaker declared that the motion was in order. Other than that she plays absolutely no role. Neither is it a motion of the DA, it is a motion of Parliament. Whilst the PP is of course at liberty to approach any court for any appropriate relief, such action on her part, does not and in of itself cannot apply to this Committee to see its constitutional functions, nor does it relieve the Committee of its constitutional obligation to hold it to account. The motion has been referred to the Committee and it is now constitutionally bound to deal with it as per the mandate. It must do so as the Constitution requires diligently and out with and without delay unless they are very compelling reasons to do otherwise. What is styled as an adjournment application is not a short term request of a few days or even a few weeks to adjourn. It is a postponement requested without a confirmed end date (and) it would be dependent on the judicial system. There is no fixed date for resumption. I took note of what Adv Mpofu said earlier today, that they are willing to only go up until the stage of the Western Cape High Court but if history tells us anything, the Public Protector has repeatedly appealed matters, we have gone so far as to historically see the first of a rescission application. So I therefore do not place any confidence in what in what was said in that respect. The previous requests for us not to sit on particular days and so on had been granted, but was granted with the understanding that we would make up the time (on) some days by starting early at 9am and other times we have booked Saturdays into the programme. So I do not think that this particular adjournment application can be compared to previous occasions when the committee has agreed or the chair or there has agreed to grant such. The Committee cannot ignore the timeframes under which it is now operating. The fact of the matter is that the PP’s term comes to an end in October of next year. It is a year from now, it would be reckless to allow without solid reasons for the process to be delayed until after this date, as it would mean that the NA may very likely fail in its obligation to hold the PP to account simply based on legal status or warnings, as it has so been called, which have been made since the very start of these proceedings. The knock on effect if we were to go to court, and where we do not have an end date and there can be no commitment to an end date because the court is not beholden to this Committee would mean that this entire issue may become moot because by the time the court makes a decision, whichever which way the term of office may come to an end, and that the Committee must bear in mind. We previously advised and we iterate again that Parliament cannot and should not be paralysed every time someone files an application or threatens to do so. If that were the case, Parliament would never be able to fulfil its functions. That notion is as absurd as it is incredulous. That being said, a rational decision still requires that regard must be added to the merits and the prospects of success of that review of the recusal application. My view, which was supported by the external independent counsel opinion, was that many of the grounds in the recusal application were vague and failed to adequately express what the alleged bias, whether that was actual perceived bias, was. The claims of bias were raised as early as day one and we cannot ignore that the proceedings have been characterised by introductions and objections, making an odd difficult task all the more harder. In addition, Chair, much of the jurisprudence in which the PP now relies in her adjournment application relates to the standards of impartiality for judge. In our view, that reliance in support of the application is for the reasons I stated earlier misplaced. Essentially, whilst reliance is placed on the standards applicable to judges, the Committee is not a court and Members are not judicial officers. The Constitution exclusively entrusts the Section 194 task to a Committee of the National Assembly, a committee of publicly elected representatives that the drafters of the Constitution would have been well aware, were not going to necessarily be lawyers. The site of case law establishes that if the PP is able to make out a case of bias, she may be able to convince a court to interfere in the Committee's ongoing proceedings, either to interdict the Committee from proceeding and or to set aside the Committee's decisions in respect of the recusal application. However, the PP would still have to prove that case to the satisfaction of the High Court – she cannot obtain relief merely by alleging bias. Furthermore, the complexities of the separation of powers and the courts reluctance to interfere in the business of Parliament is not canvassed in that application. Parliament has the right to make its own rules, and to run its processes as it sees fit, provided, as I said, that we are confident that in so doing, we have done it fairly. The motivation places much reliance on the Pikoli judgement. That judgement, as I have said, is in conflict with the later judgement of the Constitutional Court, and therefore, in our view, is entirely incorrect. With particular reference to these proceedings, the constitutional and when I say these proceedings, proceedings involving the PP that was taken to the Constitutional Court, when it considered the challenge to the rules for removal, it stated that the committee's proceedings should not be suspended in mid-air because it's important for the PP to be held accountable in accordance with Section 194 of the Constitution before her term of office expires. Otherwise, and I quote, “the administration of justice runs the risk of being brought into disrepute.” The Committee has, in my view, consider the PP’s claims of unfairness within the applicable constitutional framework, and found them to be without justification. It therefore follows that it may reasonably believe that the prospect of success of a recusal review is slim and in light of its constitutional obligations, it must therefore continue with its process. The law is not black and white. I know that Adv Mpofu said earlier that they are if I'm not mistaken, 100% certain that the application is going to be successful. If that were the case, Chair, we would not be having this discussion. So whilst I'm not in a position to give that guarantee, or to say that there are no prospects of success, I am certain that the process, regardless of the outcome will be one in which Parliament can offer a rational and well-reasoned defence, for the manner in which it has conducted the proceedings to date, for any decision not to grant an adjournment today. In fact, we have closely considered all the case law relied upon in the application. As I have indicated, we believe that it is misplaced. I take exception to the comment by Adv Mpofu that is contained in the written application that the Committee's making decisions, without having thought them through and that they are predetermined. If anything, the Committee has been seeking legal advice and much work goes on in the backroom in order for us to give such advice. There are reams and reams of preparatory work that goes in and what I say here is just a portion of that in order to summarise for the benefit of the Committee. Conversely, though, Chair, my view is if the Committee cannot rationally justify adjourning the proceedings today in a matter of such national importance and in light of our constitutional obligations, given that the allegations of bias are in the view of the majority of this Committee without merit, then we are going to find ourselves in legal difficulties. Further, the effect of such an adjournment may very well be given the likely court timeframes to result in a permanent cessation of the work of the Committee because there is no end date in sight. A judge could take five or six months to hand down a judgement, and the committee would be powerless to do anything precisely because of the separation of powers. In any event, nothing stops the PP from bringing her interdict application on urgent grounds. If successful, the Committee will abide by such decision and pause it processes. I do not think that there is any question of that if we were not to do that, then, Chair, we would certainly be in contempt. But to do so without being legally obliged, under the current circumstances is a course that as a legal adviser to the Committee, I would warn against. I however, leave it to the Committee to assess those risks and arrive at a decision that the Committee bases on reasonable grounds, as well, as an alternative. The Committee may wish to offer them an opportunity to continue with the proceedings, but then agree that we expedite the court proceedings as far as Is possible, bearing in mind that we are at the behest of what the court will allow, as far as that is concerned in the setting down of dates. From what I have heard this morning, though Chair, would seem unlikely that such an offer would be agreed to. If Members want particular input on judgments that were referred to, we have, in fact, done that work and we can speak to those judgments but as I said, we're fairly confident that they are misplaced. Thank you, Chair.

Chairperson: Thank you, Ms Ebrahim for that contribution to that work and the presentation from our legal services. That is meant therefore, colleagues before we get into our discussion as Members… because I am inviting you now to come in. I am very specific, this is the area of decision that you are getting in. I do not want us to be all over the place, so that we are also mindful of time. You would have listened from this morning. You would have read the application for postponement indefinitely. You would have listened to the oral presentations being made and the timelines presented about certain scenarios. You would have asked clarity questions. You have now just heard Ms Fatima Ebrahim, on behalf of the legal services, as we always do, from the start of this… in the design and everything else, we have always had that important service. Thank you very much for always being available to walk the journey with us. It is a noble process (and) I always call it virgin territory. That kind of guidance would have made us walk this journey. I want to invite you therefore, Members to make your contributions, in mind that at the end of your contributions, there has to be a decision either way. Thank you. Hon Mileham. Hon Dlakude. Hon Denner, here today. She normally runs away on the virtual (platform). Hon Herron, on the virtual platform. Hon Minnen. Hon Zungula. Hon Holomisa. Hon Nkosi. Hon Malema. Hon Nqola. Hon Gondwe. Hon Nodada. Hon Siwela and Hon Maneli. In that order. We start with Hon Mileham. It is 14:11.

Mr K Mileham (DA): Thank you, Chairperson and let me express my thanks to Ms Ebrahim as well because I think she gave a very comprehensive advice to this Committee. Chairperson, I want to start with the Pikoli quote that Adv Mpofu opens his application with. He has used this quite extensively to threaten this Committee with contempt of court and Members of this Committee with contempt of court. Now, I think, first of all, that this is bad advice on the part of Adv Mpofu. I think it is legally bad. In terms of the Constitution, in terms of Section 58 (1)(b) of the Constitution, which reads as follows “Cabinet members, deputy ministers and members of the National Assembly are not liable to civil or criminal proceedings, arrest imprisonment or damages for anything that they have said in, produced before or submitted to the assembly or any of its committees, or anything revealed as a result of anything that they have said in produced before or submitted to the Assembly or any of its committees.” So right there, we have the first immunity, if you will, of Members of Parliament and Members of the Committee. Then if you go to the powers, privileges and immunities of Parliament Act, it is right there in that legislation as well. In fact, that Act goes further and it suggests at Section 81, that “a person may not by fraud, intimidation, force, insults or threats of any kind, or by the offer of or promise of any inducement or benefit of any kind, or by any other improper means influence a member in the performance of the members functions as a member”, and it goes on. But my point, Chair, is that the threat of contempt of court against Members is, in fact, improper influence of Members in terms of the Powers, Privileges and Immunities of Parliament Act. I think it is scare tactics. I think it is… there is a lovely Afrikaans phrase (unable to translate but it can be found at 4:33:20 of YouTube video). That is exactly what this is. It is to muddy the waters and to make us feel threatened by what might happen to us as individuals. I want to stress firstly, that that is not correct. Chairperson I want to pick up on something that Ms Ebrahim spoke about where the motion originated, and she spoke about the fact that, well, let me not go there. Let me put it like this rather, that we are here as Members of Parliament. Now, it would be an absurdity for us when this decision finally goes to the National Assembly, because the ultimate decision in the impeachment process of the Public Protector is not made here. What this Committee is doing is it will make a recommendation to the house to the National Assembly who will then make a decision. It would be an absurdity, for any Member of Parliament to be recused on the basis that they have an interest in the matter when it reaches the National Assembly. In fact, I cannot recall a single instance in the last 28 years of democratic South Africa, where a member of the National Assembly has recused himself from a decision in a sitting of the House. I might be wrong, but I cannot recall any. So it would be an absurdity to expect Members of this Committee to recuse themselves but not then recuse themselves from the National Assembly. So I think there is a legal inconsistency in Adv Mpofu’s arguments. Chairperson, the one other thing that I just want to touch on is that we, as a Committee, have no real decision to make, apart from whether or not there is validity and credibility to the charges; and then to make a recommendation to the National Assembly. The decision is not made here, and therefore we cannot be held accountable for any administrative action, based on that decision. The decision is made at a Parliament… at the National Assembly level, not at the Committee level. I think that we need to make sure that Adv Mpofu understands that this is a recommendatory… an advisory Committee, rather than a decision-making Committee. Thank you, Chairperson.

Chairperson: Thank you Hon Mileham. Hon Dlakude?

Ms D Dlakude (ANC): Thank you very much Hon Chairperson. Good afternoon, colleagues and the legal unit reps (representatives) who are here. Let me start, Chairperson, by thanking the legal opinion by Fatima Ebrahim. We really appreciate it and we agree with it. Hon Chairperson, from that legal opinion, I have isolated some few items which I want to emphasise. As we all know, Hon Chairperson, I do not know where this thing of saying it is the Mazzone… Mileham as the husband… what a what… I do not want to entertain that but what I want to say is that as this Committee, we are dealing with a motion, which was adopted by the National Assembly. We have terms and references, and we are being guided by the Rules of the House. Constitutionally, we have the mandate to do our work as Parliament. So nothing as of now is preventing us from doing that unless we have a court order on our table or a court interdict. Those are the two documents that would stop us from doing our work. Then, as a Committee, Hon Chairperson, we have the directives that are also guiding us. We have been very patient. Our take as a Committee, not as a particular party or individuals, is that we are on a fact-finding mission. Ours is to get to the bottom of this so that we can make informed recommendations and findings. As of now, we are not yet there where we are talking about removing or not removing anyone. As a Committee, we are looking forward to that day when the PP will take a stand and give us her side of the story because right now since we started what we have been dealing with is the witnesses who came before us who were giving us their evidence based on their affidavits. By so doing, we have not said ‘Okay, now that we have this evidence by the witnesses, then we have a concrete case against the PP’… no, we are not yet de we are not even near that. So what we are saying we are waiting for is the PP to submit her witnesses and for her to take the stand so that we can have her side of the story. That is audi enough for her as we have been guided by the legal services. So Hon Chairperson, there is this issue that kept on coming out from Adv Mpofu, that we have hatred towards the PP. I do not know where that is coming from because we have not questioned the PP of anything. What we have been doing as this Committee, we have been questioning witnesses who came before based on the materials that they submitted to this Committee so that is what we have been doing. So that one is uncalled for, Hon Chairperson. This notion of saying that we are going to use our numbers to vote – vote for what? As there is nothing to vote for here. So as and when we get a court interdict or a court order, will we stop doing our work? As of now there is nothing. So as a Committee we will proceed with our work. We have been advised from day one, to be impartial in this process. That is what we have been trying to do all along. We have never insulted anyone. Ours is just to listen to what is presented before us and we have been questioning those. So Hon Chairperson we cannot abandon our responsibility based on the application that is brought before us today, we are not going to do that we will continue with our work. As for the recusal of both yourself and Hon Mileham… that one we have rejected as this Committee. As I am sitting here, Hon Chair, as a Member of this Committee, I am saying I reject this application for the permanent adjournment or whatever. We will proceed as this Committee until such time the court says otherwise. Thank you Hon Chair.

Chairperson: Thank you Hon Dlakude. Hon Denner?

Ms H Denner (FF+): Thank you Hon Chair. Chair, I agree with Hon Dlakude. I think we as a Committee have already set the precedent for this. You will remember in February of this year, the PP also wrote to the Speaker of Parliament to inform her that she was applying for a rescission of certain parts of the ConCourt judgement. She also wanted us to postpone our work. We decided then that we would not postpone we would proceed. So I think we should look at that precedent that we have set: the same is true for now. We have been informed that there is an intention to approach the court for the review application. But the fact remains there is no order made by court. There is not even a court date if I listened correctly. So I think we should stick to the precedent and proceed with our work. I would like to thank Ms Ebrahim and agree with her. We base our decisions in this Committee on well-researched and very sound legal advice. So I would feel comfortable if we would proceed with our work. I think it is our constitutional duty and I think we should go on with it.

Chairperson: Thank you Hon Denner. Hon Herron.

Mr Herron: Thank you, Chairperson. Chairperson, I think to start off with, we must be careful about a motive response to the application, and to taking exception to what is inside the application. I think it is the fact that the decision that was made that is now possibly the subject to review may have been made bona fide but that does not necessarily mean that the decision was a lawful decision. The argument that this Committee does not ultimately make a decision… I think we must be cautious of that argument. This Committee is the only Committee that is actually hearing the evidence and will hear the evidence being tested and will obviously make a recommendation to the National Assembly. But if the National Assembly was to disregard the Committee that heard the evidence, the National Assembly's decision could actually be an irrational one, because on what basis could the National Assembly make a decision without actually having heard the evidence. So we are the ones that are hearing the evidence and we bear the burden of making sure that this process is fair. None of us know whether a court will set aside the decisions and sustain the review and we have not really heard any argument that… in response to the application other than a legal argument, but ultimately the review application will be both an application on the facts that are presented and were presented in the previous application as well as a legal argument. So Chairperson, my proposal is that the legal team and maybe yourself, whoever operates in the so-called backroom, attempts to negotiate a process that allows the Public Protector to bring an application for review as soon as possible and that allows for us to proceed as soon as possible with this process. If that agreement cannot be achieved, that we reconvene and then decide whether to continue with the hearings, regardless of the Public Protector’s application. Thank you.

Chairperson: Thank you Hon Herron. Hon van Minnen?

Ms B van Minnen (DA): Thanks very much, Hon Chair. I really want to agree with Ms Ebrahim. I think that her argument was very cogent and I think it was really clear. Her points were well made. I really do think that at this particular point, we cannot afford to continually get stuck in sort of the trenches of constant legal applications. There is, as we have heard in the evidence, there is a whole series of these applications to do their different things over time. This is a Parliamentary Committee, there is nothing that is currently stopping us proceeding – we need to do that. We have also unfortunately, seen a tendency with the witnesses to threaten them with various contempt of court or whatever the case might be… perjury, things like that, and to now see those weapons directed towards the Committee, I think is deeply, deeply unfortunate. I think we really do need to proceed. Time is moving on. We are now at the end of October; we know what the original timelines were. We cannot afford to essentially just engage in ongoing trench warfare when nothing moves forward and everyone is at an impasse all the time. That is not something that is carrying out our constitutional mandate at all. So I really do think we need to proceed there is nothing stopping us proceeding. As has already been said, the other side is more than welcome to go and actually get an interdict if they feel strongly about that. But at this particular point, the Parliamentary Committee must continue. Thank you.

Chairperson: Thank you Hon van Minnen. Hon Zungula? Hon Zungula?

Mr Zungula: Thank you, Chairperson. Before I proceed, can you hear me?

Chairperson: We can hear you. Please continue.

Mr Zungula: Yes. So in… This is a critical process, Chairperson, and the first of its kind in our democracy, where there is a fitness Inquiry for a head of a Chapter Nine institution. Therefore the work of the Committee somewhat sets the precedent, and sets the, you know… sets the precedent for other future committees that would have a similar mandate in future. Therefore, we must always be cognisant that whatever that we do as a Committee, here now, today, is critical for what would happen in future. Therefore, the issue of fairness becomes very important that it must not be… it must not appear as if there is a predetermined outcome and, you know, we are going to rush deadlines or we are going to poach certain process so that we are able to do our work within a certain particular time. Therefore, the issue of justice is also very critical, Chairperson… that there must be justice. The process must not appear as if there is a witch hunt, and it must be an impartial process, so, that everyone that has trust in the Parliament of the people of South Africa is that when Parliament is doing its work, it is not doing its work, you know, in favour of someone or against a particular individual, however, it is doing its work and based on principle that could apply to the next person tomorrow or the next year. So in the nature of such processes, Chairperson, there will be disputes. Disputes are in the nature of such processes. So I would propose Chairperson that in light of what also Hon Herron said, that we do not take any motive decision. This Committee does not take a decision, because it wants to proceed hasty, or it has a particular timeline or timeframe in which it wants to reach certain outcomes. So I would suggest that we halt the proceedings because also in the court proceedings, you are not sure how, you know the judgments, no one knows what the judgments will be. There could be a judgement that would come up and say, you know, the Chairperson was wrong for not allowing for your recusal to take place. Now, what then must happen once that is a determination? Will it mean that everything that has been done; all of the monies that would have been spent; all of the time that would have been spent, you know, they become wasteful expenditure. That is why I support the adjournment. If it happens that the, you know, the majority in this Committee feel otherwise, maybe the next best thing to do is to get an independent legal opinion, not a legal opinion that is based on someone that is intricately involved in the running and the operations of the Committee, because obviously they will take to let direction. However an independent legal opinion will afford the Committee to have an opinion that is, you know, that is independent, that is not, you know, conflated with a lot of information or issues regarding the work of the Committee. Lastly, Chairperson, I would also, you know, raise the issue that regardless what happens, whether the National Assembly will make a determination, however, the National Assembly is determined on the report that will be issued, or report that will be tabled by this Committee… report that will be prepared by this Committee, therefore, would not want to have a report that is tainted by court proceedings; tainted by issues of lack of fairness from the side of the Chairperson. Court proceedings that have a lot of back and forth. Therefore, I want to end off on that note, Chairperson. Thank you.

Chairperson: Thank you Hon Zungula for that contribution. Hon Holomisa?

Mr B Holomisa (UDM): Hello?

Chairperson: You have the platform Hon Holomisa. We can hear you.

Mr Holomisa: Thank you. Thank you. Mine would be to encourage you and the Evidence Leaders, as suggested by Adv Mpofu, that you could perhaps meet and avoid this litigation: try and find each other. In the event that you are not prepared to entertain that suggestion of Adv Dali Mpofu, I would strongly suggest we may have to seek a legal opinion as well. I do not have full confidence, I must confess. I won cases against legal advisors of Parliament who have lost many cases. So I always like us to get an independent opinion from outside but if the Members of the Committee – majority Members of the Committee – feel that let Adv Mpofu and the PP advance to challenge this is in court, I would request from this Committee that in the meantime, Adv Mpofu, as well as the Evidence Leaders, can they share (with) us or highlight in the report some of the disgruntled witnesses who were subjected to disciplinary hearings by the Public Protector, and I am referring now to those who said some of their evidence was tampered with. Who drafted this evidence and tried to mislead and misrepresent those witnesses? So if during this period, you are going to court Adv Mpofu as well as Evidence Leaders, please share with us all those documents, or rather not documents but rather highlight those witnesses who claimed that their evidence was tampered with by the Evidence Leaders. Thank you.

Chairperson: Thank you Hon Holomisa, for your contribution. Hon Bhekizizwe Nkosi?

Mr Nkosi: Thank you Chairperson. I, Chair, welcome the fact that the Speaker has said that this Committee and only this Committee can and should take decisions on this matter. So this matter lies squarely with ourselves. Secondly, Chair, I think that I am comfortable that we are exercising our constitutional duty on oversight, and in doing so, are guided by our own rules as the Committee but also by the rules of the legislature, which is the National Assembly and these require us to be fair, impartial, and at all times, to allow processes to exhaust themselves objectively. I move from the standpoint, Chair, that one, we have timeframes and in terms of the directives, we must complete this process within a reasonable time period or within a reasonable time as directed by our own objectives. In view of the fact, which has been alluded to, that the PP’s term of office will come to an end next year, I think that being engaged in protected legal processes may overrun us and the process. I agree with the advisors that if we accede to such we may seem or we may be neglecting our constitutional responsibility to exercise oversight. That for me, is an overriding motivation. The other issue, Chair, I have listened to Adv Mpofu and the cases cited, and the standards outlined by him. I tend to think that the standards are as applicable to judicial officers sitting as judges, and these are much higher than standard required of chairpersons of tribunals. While they may be the same, they are not entirely speaking to each other. So it may be important that when we take decisions, we remind ourselves that we do not sit here as judges. We do not sit here as legal practitioners or experienced people or raw experts. We are sitting here as Members who are required to take decisions on the basis of rules of the legislature, which is the National Assembly, and this Committee. Chair, I have said in the past that we are engaging in a process where the Public Protector is sitting on the steps of the Western Cape High Court. Anything that we do, she will knock on that door. So the continual threat of taking legal action against us should not impede us from taking positions for fear of being taken to court. If we are able to demonstrate that we are exercising our inherent powers and responsibilities, and we do so in an objective, fair, open and transparent manner. I do not think that there is any court that is going to fault us on that in any way. If you were to, let us say were to accede and we were to get a different Chairperson, there is no guarantee that Chairperson themselves will not be subjected to a similar process, which may add another six years to this process. So my suggestion is that we proceed with the process; reject the application for the adjournment by the PP; and build into that a process that allows you, as the Chairperson, to engage with the PP’s team, to ensure that there is objectivity.

Chairperson: Hon Nkosi, are you done? You are frozen. You are cutting, we cannot hear you. Thank you Hon Nkosi. If you are done… we will ask the Secretary to check.

Mr Nkosi: Yes, Chairperson, I am done.

Chairperson: Okay Hon Nkosi. Thank you. Hon Malema?

Mr Malema: Thank you very much, Chairperson. I think that, firstly for… I do not know you said, Parliament legal advisors… She keeps on saying that this is not a DA motion. This is a Parliament motion and trying to sound technical and smart, in favour of perhaps a preferred party… we may not know. But this is not a court of law; it is a parliamentary process and is constituted by politics. So do not come here with your neutrality – your pretentious neutrality – and create an impression that there are no politics behind that which we are dealing with here. There is nothing called Parliament motion. No Parliament sponsors any motion. It is political parties. It is Members of Parliament, who sponsors motions and then they become Parliamentary solutions. So your repetition of this becoming a Parliament motion shows your biasness and your interest to see this matter through in favour of a certain political party that has sponsored this motion. It does not matter how many times you repeat it – it is a DA motion and get it in your head. It is a DA motion sponsored by a wife of one of the Members of the Committee here. It is a fact. It is your wife. Whether you are turning; whether you are sleeping; whether you are facing up… it is your wife that presented the motion in Parliament. It is a fact. Whether you are conflicted or not it is something that we can debate about it, but the fact of the matter is your wife has sponsored this motion and that is why you are vividly participating in it, because perhaps it is even part of the pillow talk, this motion… I do not know. But your eagerness and your uncontrollable interest in this matter as an Hon Member, it shows that it goes beyond an innocent Member of Parliament, but a partner who is vividly participating in a motion that was sponsored by the wife. You want to make sure that this motion is seen through in the best interest of your wife and enhancing her capacity and her image in society. So those are facts, whether you like them or not… it is a reality. So whether you must recuse yourself or not… it is not a Committee resolution, it is a personal conscience that you and the Chair have actually responded to. Now that we are being taken to court, Chair, off it is now upon us as Members of Parliament to now… as Members of this Committee, to now on our own, seek legal advice on how do we navigate this because I have got no confidence in your legal advisors and that legal Parliament department because it is partisan and biased itself. So I will ask that we adjourn this matter and you allow us time to go and consult our own teams as well as you continue yourself to explore a possible way out of this through the engagement with public protectors legal team. A very persuasive and comprehensive matter has been presented yet here and case law has been referred to. Different cases are being referred to. As a layman standing here, I cannot confidently say, like others have said, let us dismiss this matter. I have got no such qualification. I do not have such qualifications to confidently without consulting my legal experts on how do we get out of this one… say ‘no, let's dismiss it.’ If we do not carry partisan mandates that have already concluded to guillotine the Public Protector, we cannot object to the fact that a very comprehensive document has been presented before us by the legal team of the Public Protector. Give us an opportunity to go and make legal consultation so that we can give a more informed input with regard to this matter. A new matter had been raised, Chair, that we will be in contempt of court if we proceed with this matter. I heard the Hon Husband of the person who sponsored the motion saying that we cannot be intimidated and all of that. I am not going to allow that. I am not going to be arrested here. Zuma has been arrested for 15 months for contempt of court and I must be told by people who are conflicted; who are accused of bias; who are accused of having uncontrollable interests on this matter; that I must proceed with this matter without consulting my legal experts… my legal team. Even when I am told that there is a possibility of me being arrested? In this country, anything is possible. An 80-year old man was sent to prison for fifteen months for contempt of court, and a Senior Counsel comes here and says ‘If you guys proceed, ignoring what we are telling you, you will be in contempt of court, and you will go to jail for a very long time’ and I must trust the Parliament's legal advisors, the biased legal advisors of Parliament, who have lost so many cases. It is not only General Holomisa who has won against them, we have won against them, many a times because of their incompetency. So I am not going to take that incompetent legal advice, as the true reflection of what is going to happen. We are asking, as the EFF, that we be given an opportunity to consult on this matter, our legal experts before we can continue to participate in this because we do not want to be arrested. Thank you.

Chairperson: Thank you Hon Malema. I note you, and I will come back to you. I now recognise Hon Xola Nqola. Hon Xola Nqola? He is not there? We will come back. Hon Gondwe?

Dr Gondwe: Thank you Chairperson. Chairperson let me start by appreciating the legal advice from Adv Ebrahim and allow me to use this opportunity to thank the head of legal services, Adv Adhikarie, and the rest of her team for supporting us throughout these proceedings. Their support has really, you know, enabled us to get this far. Chair, I also agree with the advice from Adv Ebrahim that in the absence of a court order or an interdict, no one and nothing should prevent us from carrying on with the business of this Committee. Not even the threat of arrest, or of being found in contempt of court. Look, Adv Mkhwebane will be well within her rights should she decide to proceed with this review of our proceedings – she is entitled to do so. But until such a time, a court says we must stop, let us carry on. We are operating under very tight timeframes, given that we recently took a break between considering some of the recusal applications, and should we accede to this adjournment application we would be failing in our duties and our responsibility as a Committee to hold Adv Mkhwebane accountable before her term ends in October. If we agreed to this adjournment, we might as well wrap up our business as Parliament, because we would not have enough time to proceed with, you know, the business that remains. Chairperson, contrary to what Adv Mpofu has indicated, that the PP is more than ready to tell her side of the story, I am not convinced that is true. We have sat through three recusal applications, including this adjournment application and for me, all of these applications points to someone who is not ready to have her side of the story told, and we are sitting here, and we are ready to hear her side of the story – but she does not want us to hear her side of the story. Adv Mpofu indicated that they had submitted a list of witnesses in August, and as far as I can recall that was a provisional list, as some of the witnesses had not confirmed their attendance. So I am not entirely sure what's going on. Let us get on with the business of this Committee. Let us proceed. Let us reject this adjournment application. It has no merit. It has no grounds and get on with the business of the Committee. We do not want to be found failing in our responsibility. We have been charged by Parliament to ensure that we make a recommendation to the NA, after gathering all the facts, and we need to gather all the facts, including her side of the story. We are willing and we are able. So through you, Chairperson, please, let us carry on. We have sat through three recusal applications and now this adjournment application. I think it is time to move on we are waiting for us to, you know, to conclude with the cross-examination of Madam Thejane and we are waiting to hear from Mr van der Merwe, who is the last witness from the Evidence Leader’s side. We are looking forward to her team leading witnesses, and her ventilating her side of the story before this Committee, and before everybody that watches these proceedings. Thank you very much.

Chairperson: Thank you Hon Gondwe for your contribution. Hon Sukers?

Ms Sukers: Thank you, Chair. Chair, a lot of what I am going to say I think has already been said maybe, in some form, just in a different way by Members. But I think the first thing that I just want to highlight is our constitutional obligation that has been spoken of by several Members. To what extent do the current delays and challenges impede us to perform that duty? That is a consideration that we as a Committee must take very seriously our obligation as Parliamentarians and our duty in that regard because Chair, we can become delinquent in the delay of our duty. I think that is an important point for us to consider. The Public Protector – it must be said and I have said it before, Chair, and I think a few people have said it before, not today but previously – has a very competent legal representative sitting here with her and that is providing her with support and defending her and making sure that she… defend is the wrong word… but making sure that she is being treated fairly. She has a right to a review. So the rights of the Public Protector are being protected here. The process however, for us, as Members of Parliament is one that we need to fulfil our obligations as has been said here. I think that is the biggest concern right now… is the issue of how do these delays hamstring Parliament; hamstring us as a Committee and stops us from performing our work. That is the consideration the constitutional rights of the Public Protector has been considered it is being protected, as I have said, and the function of the Committee, as an oversight body, cannot be disregarded by any one of us who has sworn an oath to perform our duties. So any other delays now brings us to the point which was in the beginning of the process, spoken of by Hon Mulder and also by Hon Hendricks, where it becomes such a drawn out process that already now we are going way beyond what any other process has previously been embarked on. So Chair, I just want to highlight that the length and the duration. I want to ask, I asked previously, if the cost, the legal costs, of the Public Protector can please be shared with us as well in part to do with our role as oversight because as I am speaking to you, I have a constituency that is currently unable to go to court because they don't have money they so poor. They (are) somewhere there in the Karoo and they just, you know… and here we are sitting. The issue of costs is a big issue. A normal, South African does not have this privilege. So for me, I want to highlight that, Chair, and just say that we need to continue – we must continue. We must assert the rules of Parliament, and we have got the rules of Parliament, and we have got the directives. Those are the things that are guiding this process: so we must proceed.

Chairperson: Are you done?

Ms Sukers: I said thank you, Chair.

Chairperson: Thank you Hon Sukers. Hon Siwela?

Ms V Siwela (ANC): Thank you Chairperson. Thanks for the opportunity. Greetings to everyone. Chair, I have listened to Adv Mpofu’s presentation, as well as Fatima Ebrahim’s. What I would like to indicate, Chair, and consistently I am saying this, that we must give the PP opportunity to present herself because there is no one who has been found guilty up to so far. We cannot pre-empt our outcome, Chair, before we have dealt with this process fairly so. So my humble appeal is that let us stick to the Rules of the House. Let us continue with the process. If ever there is anything which will come to us to prevent us moving forward legally, is then that we are going to observe that, but for now to delay this process, we are not even doing justice to the PP herself. So my humble appeal is that we proceed with the process, so that at the end of the day, we are able to consolidate and recommend to the National Assembly because as the Committee, we were not going to take any decision; the decision is going to be taken by the House. So my humble appeal is that we proceed with the process. I want to support those who say less reject the application and move forward. Thank you.

Chairperson: Thank you Hon Siwela. I now recognise Hon Maotwe.

Ms O Maotwe (EFF): Thank you very much Chair. Chair, I am 100% covered by Hon, the President of the EFF, Julius Malema. But I just want to bring one issue to your attention, Chair that is distributing me sitting here. You called on the legal person from Parliament to speak and she spoke in the absence of the PP and her team – her legal team. Even worse, of course she was going to criticise the application brought by the PP, but even worse, Chair, you do this after lunch when we are now expected as Committee Members to make our input and comments. So to me it appears like you are trying to hypnotise us because what we remember is the last speaker before we came in. So you made the application of the PP to be erased from our memory and only to think about this biased legal person from Parliament. It is wrong. I do not think you should do that, because firstly the PP does not have a right of reply on the things she has said. Now, secondly, Members are engaging but before we engage, we get told that no, this is how we should perceive this application, I think it is wrong, Chair. Thank you. Just correct that, Chair and let us run this process fairly for everybody, please. Thank you.

Chairperson: Thank you, Hon Maotwe. The next speaker I will recognise is Hon Nemazinga Tshabalala.

Ms J Tshabalala (ANC): Good afternoon to Hon Members. Firstly, Chair, one would have listened attentively to what has been presented in the morning, rather, when we started this meeting, and I want to declare perhaps that one does not have a memory eraser whatsoever. Now, the matter of the legal persons from Parliament… Is this not a Parliament Inquiry? It is a Parliament process. They have been presenting especially when we have closed meetings. So I do not understand where that one comes from but nonetheless we are here now. We are more than happy with the legal opinion of Parliament that has a mandate to really take us through as the committee and advise us accordingly. Now, Chair, I want to state it perhaps in advance categorically clear that sitting as a Member of Parliament, but also a member of the ANC that firstly one rejects this adjournment that has been brought to our shores. That is the first part. Let me just put a bit of context of where we are. Chair, if you check into our role and how we are constituted – we are constituted to ensure that we proceed with these matters and that we are able to report to Parliament. Now, anything else that seeks to perhaps derail the work of this Inquiry, if not of this Committee, we should be able to scrutinise, fairly so. I want to also state that it is important for us to ensure that the PP matters we treat with utmost fairness. This notion that keeps on popping up that says that perhaps we have predetermined objectives or issues whatsoever, and we want to take it out of the window. I think that it has been long time coming as is really unbecoming, honestly speaking, if not condescending to ourselves, having to sit here many times and many days… resources and times that we are coming here and we are not wasting it because we understood the functions that have been bestowed upon us. Now, if you look, Chair, in the matter of Van der Berg and Others that said in an open court… “In proceedings like in any inquiry in balancing the interests of the individual, it will often be inappropriate to insist upon the grant of a remedy developed for and suited for judicial type proceedings.” The adjournment application is sought by the PP as a consequence of the refusal of recusal by the Chairperson based on judicial types of specifications, and or grants advanced and as a provider for above there are no judicial proceedings here. That has been very clear. I would like to think that colleagues understood that this is not a judicial proceeding. It will… This will be wholly inappropriate for the Committee to grant the application for the grounds for adjournment, as set out in the application, therefore, extends to feel for where I am seated. In fact, this recusal application is brought in the middle of the Inquiry. That is one. When the Inquiry is about to conclude the first phase of witnesses wherein the PP participated and challenge this evidence. Just before the PP presents evidence, under the circumstances constitutes a disruption of the proceedings and that is where I am seated. I think this is disruption of these proceedings. I am quoting in terms of Rule 129(a)(d)(2) of the National Assembly Rules “The Committee must contribute its work”, Chair, “within a reasonable timeframe.” The Committee has a constitutional responsibility of ensuring the Inquiry is not unduly delayed – that is also a third point, which seems to be the approach adopted by the Public Protector. That is my view. Anybody can challenge that. From where I am seated and in terms of the judicial review, Chair, the PP submits that they are attending judicial proceedings to review the decision of the Chairperson and Mr Mileham. This is yet another misrepresentation if you ask me. The matter is not currently before the Western Cape High Court or any other court whatsoever. Even if there were, Chairperson, such a pending matter before the court, it will not have prevented this Committee from continuing with its work unless the PP interdicts the Committee from continuing with its work. In succeeding with such an interdict, Chairperson, the PP will have to prove that there are prospects of success of the main review application. In the absence of such, Chairperson, of an indirect interdict from the PP, there is no legal basis for the Committee to adjourn its business and its proceedings so we want to move with the process. We are very ready to conclude and see that we carry the mandate that the Parliament has bestowed upon ourselves. No delay tactics should be entertained at this point. Thank you.

Chairperson: Thank you Hon Nemazinga Tshabalala. Hon Nodada?

Mr B Nodada (DA): Thank you so much, Chair. Good afternoon to everyone. Chair, am I audible – before I continue?

Chairperson: We can hear you. Thank you.

Mr Nodada: Thank you so much. Chair, first and foremost, we have read the application that has been presented to us today. We have listened to it being orally presented to us and the aim for this application is on three things. To review, one, the recusal application that had been put forward by… in fact the decision that has been put forward by yourself and Hon Mileham not to recuse yourself. Secondly, it was also part of the decision that was taken by the Committee based on legal advice, to accept the fact that you have exercised your rights and Hon Mileham has exercised his rights not to recuse yourselves. Thirdly, then it is indicated that part and parcel of this review based on the two above, we must then adjourn and then negotiate with the legal team of the Public Protector and so on. Now, Chairperson, we have got a legal and constitutional responsibility, that is why we are elected Members of Parliament who serve as legislators. I continuously repeat this because we need to understand our role and responsibility. Upon legal services' advice, the legal opinions that have been sought, at this point in time, having read what has been in the application, having listened to the oral submissions, having listened to the legal comments, by the legal department of Parliament, and obviously having sought legal advice ourselves is that there is nothing that is legally stopping us from continuing as a Committee at this point in time. The reason why I say that is part and parcel of our constitutional responsibilities as elected legislators is that we are in this committed to exercise a particular function that we have been elected to do, by the way, we are bound by the Constitution to go for. Having had nothing that is legally stopping us from continuing with this process, I see no reason to do so. Now coming to what is being put to us to consider the adjournment of the committee with various threats that had been put on the table. As if we do not understand the law as legislators – that you will be in contempt of court? What contempt of court, which contempt of court? And that we will be arrested for some sort of contempt of court which is nowhere to be found? I think sometimes we need to kind of call up these things of people illegally threatening legislators as if we know nothing about the law. Now with the point of us considering the adjournment of the Committee, based on the very same facts that were put to us around the recusal, which by the way, we all, as Committee Members made our inputs, and the vast majority of the Members of the Committee based on the inputs had factually through legal advice and opinion, rejected the merits that were put on that, from a factual point of view, and a legal point of view. In any case, now we must adjourn based on the very same facts. That has been sought upon us to accept the fact that there's a review on this recusal application that was put forward on you as Chairperson and Hon Mileham, which by the way, we had personally as a Member of this Committee rejected. Because, one, factually they were not correct, two, legally the advice that has been sought, has taken us to a direction whereby we will accept you exercising those rights to do so. So I see no reason why we need to be able to now at this point in time, having made a decision based on our inputs, based on the legal advice that we got, that now we must backtrack and say fine, let us adjourn and go and negotiate. The Public Protector has every single right to exercise the legal routes that are available to her and exercise the rights that are available to her based on whatever perception she has determined on whether you are biased or Hon Mileham is not supposed to sit here or whoever else whether the cat runs out of the room and whether it is unfair or not. It is up to her; she can exercise those rights but we are more than willing, since we have said on day one, to listen to all sides of the story in a fair manner, to achieve justice at the end of the day, because there is no fair process that does not have a timeline. It seems as if now fairness, you know is unlimited time. There is no such thing as fairness being unlimited time. Fairness comes with the responsibility of ensuring that there is reasonable time put in place to exercise that particular fairness to ensure that the there is a just outcome at the end of the day. Now Parliament 101, Chairperson, is that once a motion is adopted by the House, it becomes a Parliament motion. The Chief Whip of the majority party can stand up and say we nominate Hon J.S Malema to serve at the Pan African Parliament. That motion, once it is adopted by the House, it is a motion of Parliament and therefore when that information is sent to the Pan African Parliament, it becomes communication from Parliament; it does not become a motion of the Chief Whip of the majority party. So it is very important for us to understand the facts as legal as legislators and Members of Parliament that have a responsibility to understand how the House functions; what the constitutional obligations are; and what the legal requirements are of us to exercise our duties. It is very, very important. Now the last point, Chair, I would like to make is that this particular application that has been put forward to us requires us to look at what has because we cannot just make things arbitrary, make decisions arbitrary. What advice have we received on the three different occasions when these things came to us? What decisions were made? Based on what facts? Based on what legal advice? Based on what opinion that has been put there legally, not based on emotions? What decision was then taken? Now, when we adjourn, or when we say ‘Oh, its fine we will accept this application for adjournment’, it means those decisions that we have taken on three different occasions, we now exceed that there are questionable. Now, Chairperson, I do not believe that the decisions that we have taken are questionable, because we have sought legal advice; we have thoroughly gone through them; and we have made a decision based on the facts. It is important for us to understand that there is a process that has taken place prior to this. Once we take a decision now to say, look, we will accede to the adjournment and take an engagement and discussion means those decisions then become questionable. The Public Protector can exercise all the rights that are available to her and she has every single right to do that. I do advise now, Chairperson, based on the decisions that we have taken in the past the legal advice that we have received in the past, including the legal advice that we are receiving now, that Parliament can be able to put reasonable facts and be supported with the Constitution and legal prescripts to be able to rationalise as to how do we get to this point in time as a Committee and why did we take specific decisions based on whatever factual and legal reasons there have been? So we need to proceed. The Public Protector has every single right to go exercise her duties. I think that Hon Gondwe put it clear, that we are more than keen to listen to the side of the story of the Public Protector. But from a layman's point of view, from somebody sitting from outside, having a perception or perspective of what is going on in this Committee, could reasonably conclude that she may not want to exercise that right, you know, these different applications to delay the process up until her term of office may end, it might as well not be the case. That is exactly why we would like to afford a reasonable fair time for the Public Protector to present her case so that this Committee can consider all the facts before making a determination and recommendation to the House in the National Assembly. So I think, Chairperson, let us proceed. Let the Public Protector exercise her rights, and then we will take it from there as a Committee. At the end of the day, whether it is an urgent application; whether you know, it is a review application, there has to be proof that there is urgency for that to be taken place and the facts must be placed on the table. I think we will take it from there once that has been done. Thank you so much, Chair.

Chairperson: Thank you Hon Nodada. Hon Maneli?

Mr B Maneli (ANC): Thank you Hon Chair. Greetings to Hon Members and the Parliamentary Legal Team present here. Maybe just a few points Chair. Firstly is to note the submission made by the legal team of…

Chairperson: Just a pause, Hon Maneli. I see a second hand. Hon Malema is that a point of order?

Mr Malema: No, I am queuing. I am on a Shosholoza train waiting to take my next bite.

Chairperson: Oh, okay. Thank you Hon Malema. You are safe on that train. Hon Maneli?

Mr Maneli: The first point to raise, is to note that there has been a submission made by the legal team of the PP, on behalf of the PP. For that reason, we have an item to discuss. Having noted that, Chair, I also note from the submission when one looks at 10 and 15 read together. That we are presented with a situation, in my view, where it is either you agree with me or I am already in court 60%. So in essence, you do not give the Committee an opportunity to make a proper reflection other than to give it two options. You agree with me if you disagree I am 60% in court, which I think there has not been any further justification you can give to what has been presented before us, Chair. I also want, Chair, to note and accept the presentation made by our legal team, Ms Ebrahim. But more importantly I note the reminder from a point of recency that whilst we may have case laws that are quoted, there is a recent Constitutional Court decision, which paves the way for this Committee to proceed with speed. It does not just say proceed but with speed, understanding the importance of this matter that we are dealing with. Therefore, if we do not move with speed… if there is any contempt in life, you will be the contempt in terms of what the Constitutional Court has said we should do. That is the one I would be in contempt of because the other one is still an intention to go to court, which the document itself does say, I may not go there in case you resolve my way. I cannot make decisions based on that. That I can change my view depending on what comes when there is a standing matter of a court decision that says proceed, but proceed with speed. If you do not do that, that is a travesty of justice. Now… and I want to contextualise the justice, as I understand the role of the Public Protector. Like Adv Mpofu has repeatedly reminded us in this Committee that the Public Protector is not really about sitting here but in the main it is about protecting the Public Protector. Dragging the matter further, we will also be complicit to that of keeping the Public Protector in this process, instead of ensuring that there is stability in that Office and that the public… for what the Public Protector has been put forward, in terms of the Constitution is protected. I would not want to be again, part of such a contempt, Chair because then it would mean I am also working against the Constitution, when the Constitution made provision for these other Chapter 9 institutions to further ensure that the public is protected even from abuse by those that are in power. This is the drilling we have been given throughout this hearing. We just need to have it in practice on both sides. Chair, having made that point, therefore as I said, I accept this. I think for me, consistent to what Hon Malema raised in the presence of Adv Mpofu as a form of question, was that as parliamentarians we would have said, we cannot deal with this matter if it was before court. Now, that it is not before court, how would you get to that point of contempt? I think that is a consistent question… What we need to be dealing with? That question could not be answered, except to repeat that there is an intention to go to court. But I am still arguing, Chair, that there is a court decision for us to proceed when we stopped by time, so that court decision paved the way to be where we are today. Therefore, I agree with those that are saying then, as a decision, having noted all this, as a decision that we proceed, Chair. But in that point of proceeding, I want to suggest that that's where we can get your back office to be doing the work. Working with the PP’s side, and by that I mean… I think having a decision today and expect that the PP will swing into action tomorrow may also be seen to be just about pursuing the PP, instead of pursuing justice. That is why I am talking to this back-office (backroom) doing work. In doing that work, you should be able to put that proceeding means that we have to get the remaining witnesses, whether the other one was just about getting cross-examination, and the other one was going to start and then prepare along those lines, so that at least is still put to before the PP and the team for them to elect whether they would want to still do cross-examination or not, because in any event on record, there are witnesses that appeared before the Committee and they may elect that we do not even want to ask or cross-examine these witnesses because we not believe there is anything except to clarify one or two questions that I want to clarify. But that is how they will elect to go in that score. You would not be really compelling them to do it. So I am saying, Chair, that is what we would probably need to do as a way of moving forward that we are now continuing. The second point I want to raise for consideration is that there is a two weeks that was agreed upon… include all that in the in the way forward on operationalising a decision to proceed that with the confirmation to the question asked by Hon Gondwe that there are witnesses in place, but there may have been issues that happened whether by publication or whatever. But give again space to the PP to check if the PP elects to bring in witnesses because I also want to stress the point that necessarily the person to account is the PPE. The witnesses may be about, of course concretising her points that she would want to bring to the Committee in defending or rejecting whatever has been put before the Committee thus far. So I thought it is important that we remind ourselves that the inquiry is about the PP in the main. Yes, there may have been provision that the legal be representing the PP but it is not Adv Mpofu who is before the Committee but Adv Mpofu advises his client… the PP, in that regard… on her brief. So I am just saying, Chair, we may need to look at that. I think in my view, it is still about ensuring that within reasonable time, the PP is also afforded an opportunity, whilst everything fresh in the mind, to be able to give her side of the story, and that we can make also informed decisions… because when you take many gaps in between, you will end up being in a situation where you are not sure whether you're dealing with an adjustment, or you are dealing with the revival of the recusal application. So I do not want us to get to that, Chair. So that is really my submission, Chair, as we move forward, so that at least if you are to take that break even the intention will become clearer. If it was a genuine intention of the 31 of October, that you will still have that if there's no reason to proceed. But it may be that out of that engagement, there will be a bit of common ground that at the end, this is not about pursuing the PP, but pursuing justice. There is a Constitutional Court decision that says do it within time, which is an agreement with the mandate given to us by Parliament. I will reserve my comments on other matters of criminality because they still do not exist as we speak. Thank you.

Chairperson: Thank you Hon Maneli. The last hand that got lost… Hon Nqola.

Mr Nqola: Thank you very much Chair and apologies. My system has collapsed and ICT (Information and Communications Technology) department is not assisting me. Chair, I will just say this, I am in support of the general view that the Inquiry must proceed and the application be dismissed. I equally share the same sentiments that it is quite misleading that just by an intention to go to court, then if the Committee proceed, it will therefore be in contempt, of course… So Chair, I support the view that the Committee must proceed with the Inquiry. That is the view that I am submitting. Thank you very much.

Chairperson: Thank you Hon Xola Nqola. It helped that you had this network that made you to be very short. We must get this network every day. Thank you to the network. Hon Members that would have been the last hand that I would have noted from the Members. I want to proceed but before I do the summary of your inputs and your decision, today I want to make my own separate comments; in addition to what all other Members have said. There are two things. I will give Thembinkosi to read that. Your hand is up, Hon Malema?

Mr Malema: Yes. Should I proceed, Chair?

Chairperson: Yes.

Mr Malema: No, no. Chair, I wanted to say you can make your summary, it is fine but it is actually disingenuous for Members to say, we have ruled on this matter of recusal before and therefore we can't be entertaining (it). This is a completely different matter. This is a matter that deals with a review of the refusal to recuse yourself. So it cannot be that no have dealt with it before and then the same approach will take place. It is wrong. Then the second issue is that Hon Omphile Maotwe… she is correct. The legal advisor cannot speak after you have asked those colleagues to leave the room, because they do not have the right of reply, but also its intention as I look at it, was to try and influence us. So Hon Omphile should not be worried about people who say their memories will not be erased because they have got no memories and brains of their own. That is why nothing will not be erased, you can only erase where there is (a) brain or memory. In the absence of such, there is nothing to be erased. So the intention was to influence us and I think that the way you have staggered it… it was very problematic. But the last point we want to make as an EFF…The last submission that we want to make is that… we have asked that we adjourn so that we can get a legal opinion. That is separate from Adv Mpofu said. The EFF is asking that we want to make consultation on the basis of the presentation made, which contains possible arrest for contempt of court and we do not want to find ourselves in that situation. We are asking that we adjourn this because we really cannot proceed with participating in this Committee. If there is such serious matters of concern that have been raised with us, and we are being coerced by the majority to participate in illegal activities. If you insist that you are going to proceed, even when we asked you for an adjournment to make our own consultation (then) we will be left with no option but to pull out of this Committee and not continue with participation. It will not be for the first time we refuse to participate. If you do not know in the in Nkandla Committee when the majority of you participated and proceeded with it, and later for the court to tell you ‘you are absolutely wrong.’ So it will not be for the first time. You can use your majority to insist that we proceed but we are politely asking you as colleagues to give us time to go and make consultations with our legal team because we have no full confidence in your legal advisors who were positioned to influence us in our deliberations. Thanks.

Chairperson: Thank you Hon Malema. Is that a point of order, Hon Dlakude?

Ms Dlakude: Thank you Hon Chairperson, I raised my hand earlier but as Members were making their own inputs, then I put it down. Hon Chairperson, I want to caution us as Members of Parliament, that irrespective of whether we are happy or not, with the legal opinion that we are getting from Parliamentary Legal Services, there is no need for us to insult them. They are parliamentary officials; they are not like us as Members of Parliament, who can respond when there is something that we are uncomfortable about. So there is no need for us if we are not happy with their work, there are processes to be followed. There are presiding officers in this Parliament, then we can forward our complaints to them not to insult them because they cannot respond for themselves. Then secondly, I just want to say, Hon Chairperson, that while we have made our inputs as Members of this Committee sitting here… I do not know, maybe I did not hear it properly (but) here is no court interdict in front of us. The application that we are dealing with, the application for adjournment is an application by the PP’s legal team. That is what we are dealing with. So those are my concerns, are my concerns and cautions to us as Members of Parliament. Thank you Chair.

Mr Malema: Chair? Chair? There is no one who is insulting…

Chairperson: Thank you Hon Dlakude. Hon Tshabalala?

Mr Malema: Chair, it is Hon Malema here.

Chairperson: Yes, I have noted Hon Tshabalala.

Ms Tshabalala: Thank you for acknowledging me, Chairperson. Really, truly appreciate it. Chair, I just wanted just to make a quick follow up to what the honourable Malema would have said the part on the fact that he's making an application is not an application, but he submitted to the Committee to say that they will seek for us to adjourn so that they get a legal opinion as EFF participation in this process. So I was not too sure, Chairperson, if we are allowed to ask the Hon Member what does that mean because now he is submitting to the Committee? But beside(s) what does that mean, the question that I wanted to ask is the fact that he says that we are engaging in an illegal process hence they want us to adjourn. So I want to understand what is illegal about the process of this Committee, of a Committee of Parliament appointed by Parliament? Really, that language for me… I am just shocked but I want clarification Chairperson because from where I am seated, there is nothing illegal for us to be able to sit here and deliberate on what has been brought before the Committee. Thank you Chair.

Chairperson: Okay. Thank you Hon Tshabalala.

Mr Malema: Chairperson?

Chairperson: Hon Siwela, you have your hand up?

Ms Siwela: Chairperson, I think I am covered by Hon Dlakude. But I just want to check with us, amongst other responsibilities of the Committee, that we are allowed to allow Members to pull out – because all of us we have been appointed by the Speaker? I wanted just that clarity so that we are on same page all of us. The request by Hon Malema, I heard it but my question is, do we have that authority to can allow any Member to pull out as the Committee? Thank you, Chair.

Chairperson: Thank you Hon Siwela. That will be clarified.

Mr Malema: Chair? No Chair.

Chairperson: I thought that you could allow me to do what I wanted to do. Who is speaking on the platform?

Mr Malema: It is me.

Ms Maotwe: It is the President, Chair. He says there were questions asked directly to him to clarify. Can we give him…

Chairperson: Hon Malema, do you want a third bite?

Mr Malema: No, not a third bite. Hon Dlakude made a terrible observation that when we disagree with the legal opinion, we are insulting those members – we were not insulting them, we disagree with them. We must never be blackmailed into agreeing with things we do not agree with. Secondly, I have never said we are engaged in an illegal process. I said there are serious issues presented before us that include the possible contempt of court which can lead to arrest. So we want to consult so that we do not find ourselves on the wrong side of the law. That is why the legal experts and the legal arguments being made. We are lay men, as it were. We are asking that we get a legal opinion on that matter. But for Hon Dlakude to confuse me with voting cattle – that I should mimic what they say… I'm not the type. You' are confusing me with those types that will tell them what to say: not me. I have never insulted anyone. I do not agree with the legal officers and I am not insulting them. Their opinion is not correct and they are biased. What is the insult about saying a person is biased? They are wrong.

Chairperson: Thank you Hon Malema. As I indicated, Members, I just want to make my own comments, as a Chair, both on the oral and written presentation today, and also would endeavour to reflect in summarising your contributions as Members into a decision of this Committee. But perhaps before I do that, I need to start clarifying a few things. This has been the case, since we have started in the way we work. This Committee has a support team. So every day when I open a meeting, I recognise the entire support team of this Committee that would have started with us from day one. It is not by accident, that I do that. That support team is a support team of various teams of Parliament; whether it is content; it is media; it is the kind of catering that we sometimes never recognize; or security; or the legal services… From day one they are part of the functioning of the Committee. They can never be linked to (the) Evidence Leaders, or even the legal team of the Public Protector. They are a team of this Committee. So when we excuse the legal team of the Public Protector, and Evidence Leaders, they are not in the same space with them. They are us. I thought that was what we have always understood. Therefore, every day when I welcome and thank people, I make that recognition that this is who we are. So also it is not a mistake that the line-up would have been designed in the way it was. It was important that we gave the Public Protector this hour, one hour and a half, for us to here if there are any concerns or issues from the Evidence Leaders and allow Members to make their own clarities. Then after, excuse both the Evidence Leaders and the Public Protector and her team so that we remain as a Committee… and this Committee has the support team. So there must not be any confusion that the Legal Services of Parliament can never present anything to us until the external people can hear that. It cannot work like that. I did not know that I have to go to that extent and explain that this is a team that we have designed to be with us. That is driving (us)…That has guided us… giving advice. Sometimes we might not like the advice that they did. We worked with them. They have created this reference journey that many scholars and students will have to study and read. I do want all of us as Members of Parliament of this Section 194 Committee to recognise them as such. The second point: we have said this before that this is the biggest Committee that has ever had since 1994. This is not a Committee of 11 Members like other Portfolio Committees. It is a Committee of all the parties that are in Parliament, and to that extent, it has gone up to 36 – at some point at the beginning, it was 35 Members because the ATM elected not to participate at the beginning of this Committee. Then later because it is their decision to participate or not to participate, nobody can force – not a Speaker, not a Chairperson of this Committee – can force anybody to do that, it is their right. They have been voted to be Members of Parliament. They have canvassed. They have gone to out the country to seek for those votes (so) it is their right to represent that kind of voice and that remains so. So all parties are here. They might not be here all of them every meeting we meet, you know that you see that and the records will speak for themselves in relation to that. So I think Hon Siwela I am going to summarise the issues because in the summary, I also have to recognise, each and every speaker that would have spoken here and the parties and the issues they have raised. That is what I thought you would allow me to do. Now, just to do my own prepared comments or remarks as I go to the summary, because much of what I will say, in some way colleagues has been covered by yourself. But nonetheless, I feel it is important to put my views on a matter on record. The recusal application was given close consideration by two Members in question. Mr Mileham submitted reasons why he would not recuse himself. I submitted detailed reasons why I would not recuse myself. In addition to our submissions, the Committee obtained a comprehensive opinion from an eminent Senior Counsel, who advised that no case for recusal had been made out against either Mr Mileham or myself. The Committee considered the PP’s application; the response from the Evidence Leaders as we have witnessed the opinion and reasons for Mr Mileham and I… The Committee, when it met, was satisfied that no case for recusal has been made out. This is a decision of the Committee. The PP now seeks an adjournment of these proceedings, while she challenges the recusal decision in court. I am of the view therefore colleagues that such adjournment should not be granted and for the reasons I will set out. However, as indicated, I will approach this matter as a Committee decision and do not seek to decide on behalf of Members, I merely share my own rationale. The Committee is discharging a constitutional obligation imposed by Section 194 of the Constitution. Under Section 237 of the Constitution it says emphatically that it must do so “diligently and without delay.” That is a task on us. The Constitutional Court has already confirmed the importance of the Committee holding the PP accountable in terms of Section 194 of the Constitution. With due regard to the fact that her term of office expires in October 2023, as the Constitutional Court noted in Speaker v Public Protector, the exercise of holding the PP accountable is not the sort of matter that should be dragged out. There is a strong public interest in finalising such an important matter. This the Constitutional Court. On the case that was brought in front of it, that would have started in the Western Cape High Court, where the Public Protector had 12 prayers. She was successful in two of those prayers, one relating to the issue of her legal representation, as you would have seen, and the second one on the involvement of the judge in the panel. That matter, we appealed and it went to the Constitutional Court and the Constitutional Court found in our favour on the issue of the involvement of the judge and found in her favour on the issue of legal representation. That is why today she is here with the legal team actively participating. That work would have been prepared for us. We would have been properly advised by the legal services. So facts on the ground… This is from the ConCourt. That is how far we would have taken this and we would have had success. The second matter would have also recently when we started his proceedings, Adv Mpofu came here and indicated that, again he was going to do the Western Cape High Court on a number of issues, including the suspension, but in relation to the Section 194 Committee that this process was illegal and unlawful and a number of prayers. None of those by the Western Cape High Court… they succeeded in those players. So that work again, we are guided on by our legal services. It is useful to briefly share the timeline of this matter to date. The NA having accepted the independent panel report resolved on the 2nd of March 2021, to proceed with this Section 194 Inquiry. The Committee was duly constituted and I was elected Chairperson thereafter, on the 20th of July 2021, 15 months ago. The hearings only began on 11th July 2022, due to various legal challenges brought by the Public Protector. Now more than three months later, we have yet to conclude the leading of evidence by the Evidence Leaders whereas our initial programme anticipated that we should have already adopted our report by the 29th of September of this year. It is clear therefore, that we are far from concluding this process. This is not helped by the fact that Members do not have the luxury of being solely dedicated to the work of this Committee. Indeed, Members are required to participate in other many Committees whose oversight work and legislative process are also important. There can be no doubt that much time has already been dedicated, and the process has already been long and drawn out. If the Committee were to adjourn its proceedings to allow the challenge to the recusal decisions to be ventilated in courts, it may never resume its proceedings, as any finding by the High Court may be appealed through various other courts, as we have seen already and those appeals could take years to conclude. This may well be so even in the face of by that stage the PP’s term of office would have been terminated by operation of law. The duty of this House (is) to ensure accountability will have been lost. We would in fact have failed as Parliament and performance of obligations… We would have failed. The PP was given a full and reasonable opportunity to make her recusal application. However, that application was in many instances, not supported by the necessary level of detail and supporting documentation. Despite that, I made great efforts to respond to the generalised allegations that were made against me in as detailed a manner as possible. That lack of specificity has not been corrected in the application before us today. In other words, I do not see any new supporting information in this application. The recusal obligation has already received extensive consideration by the subject of the complaint, by senior counsel and by the Committee. It has been determined to have no merit. We have made that conclusion. That has not been changed by this application that we have listened to today, which merely repeats some of the recusal grounds and criticises the independent legal opinion, but does not set out any additional evidence in support of the claims made. There would accordingly, in my mind be no justification in pausing these hugely important proceedings, in order to allow a court to consider what this Committee has concluded is a meritless application. The application does not indicate that the PP will have any prospects of success, and we would have asked that in the proposed legal proceedings. The fact that they are 12 grounds is meaningless if they are without merit. Nevertheless, if a court should disagree with the Committee and the independent Senior Counsel and should further conclude that it will not contravene the separation of powers principle to interfere in the Committee's proceedings, then it may issue an interdict or any other relief. The Committee will respond to any such order lawfully and responsibly. In paragraph 51 of the application, the remark is made that the dismissing of the application can only come from spite that would have been even flighted here, today. This accusation is unfortunate and baseless. The PP is entitled to have her properly made applications duly considered. That entitlement has been observed. However, she is not entitled to have any applications she wishes granted automatically, particularly when she has not made out an adequate justification. For these reasons, colleagues, I am of the view that the adjournment application must be dismissed. However, in the light of the continued allegations of bias made against me and the legal advisors advice that a risk assessment be made, I am led by the decision of this Committee on this matter. Having heard you making your own contributions today, now it is important therefore to summarise our meeting and proceedings in the following manner that we must note the contributions and suggestions that says maybe there is a need to consider involving a negotiated approach and settlement, as would have been sponsored by Hon Herron. However, other Members are in support of that, but not as a stand-alone. To say that, firstly, many Members would have spoken here to say let us reject this application; decline it and proceed with our work and that which has been suggested by Hon Herron can still be done as well as we proceed with the work. So you do not have binaries here: either or that, or all of that can happen. If I am correctly summarising what I think I would have been listening to here. Further, Members here have been very strong to say they will still want to consider their options because some would not be happy and would make argument about not happy about legal advice, but therefore want to proceed and do their own legal advice to satisfy them. I do not think we can stop that. We can never say that nobody must do that: that must be allowed. So people must exercise those kinds of options, but that should not stop us from proceeding with our work, especially when it is very clear. Hon Maneli has been very clear about the ConCourt has restarted this process and as indicated, and as I would have reflected here, in front of us, there is not interdict, there is no legal impediment that we have on this issue… not on any other issue. Therefore, there is no reason for this Committee to decide otherwise not to proceed. We therefore have to proceed. When there is such legal impediment or interdict we will have to observe that as lawful citizens and as a lawful institution in that regard. Therefore colleagues, it is my view that therefore, having listened to you, the summary of our meeting, in the main says the application brought in front of this committee today by the Public Protector for postponement is rejected. We want to proceed with our work. There are suggestions about improving on how the teams can work in an integrated way. The Evidence Leaders, the Public Protector and team to speed up the process of the way forward, including ensuring that the Public Protector is afforded her opportunity to present her case and reasons why she must be exonerated. We are looking forward to that and that must be done. As I would have indicated in the morning, if then that is our decision, having noted those minority interventions about exercising further options to seek further legal opinion as we proceed with our work but also incorporating the improvement in the manner in which the committee must work under the guidance of the Chairperson for all of these teams. I would have indicated in the morning that therefore if that becomes our decision, we therefore need to proceed with speed and allow Adv Mpofu, the PP team to cross-examine Ms Nelisiwe Thejane and the Evidence Leaders to start leading the evidence of Mr Neels van der Merwe. We are then going to have to convene that backroom, to properly plan that seven-day period or whatever period that would be agreed to about when therefore, once we conclude that with these two witnesses, as of tomorrow. We are then going to need to ensure that the team works very smoothly in ensuring that post the Neels van der Merwe leading of evidence, there is a clear programme of how we are getting into the witnesses that would have been identified by the Public Protector and the Public Protector herself. So in the platform we would have invited the last witness that must be cross-examined. She would have been in the platform. I would have indicated in the correspondence, and even this morning, that it is the intention that depending on the outcome of the meeting today, if this Committee declines the application, it means we proceed with our work immediately. Therefore, it has been planned that Friday has been set aside, in fact, today, but it is clear that today is likely no longer going to be relevant, that we need to proceed as from tomorrow, with the remaining one and a half witness to conclude. Before we ask the Evidence Leaders and the team of the Public Protector to come in, in order for them to be notified of this decision, anybody with a difficulty with that will indicate so.

Mr Mileham: Chair, it is not a difficulty per se but could we get indication of at least the next week's sittings of this Committee?

Chairperson: It would possible to do that but maybe let me repeat what I said. What we what we have remaining is the cross-examination of Ms Nelisiwe Thejane and that cross-examination is going to be done by the PP’s legal team. That should be a period of two to two and a half hours. Okay? As planned. Then the next process is the leading of evidence of Mr Neels van der Merwe, with cross-examination following with Members asking, and then we conclude that phase of witnesses. Hence we would have said today and tomorrow for that. Now, if today, we are not able to start with any of those two witnesses tomorrow, the first thing that is where we (are) starting. It is not possible that today, because we would not have wanted to anticipate. At least Mr Ngoma can tomorrow come in at the end of the meeting, and then proceed and say this is the programme going forward. That programme might then indicate that we will give the Public Protector seven days to prepare, because that is in our directives. But that I think he can be able to indicate tomorrow… it would be unfair if I put him on the spot now. I hope that answers your question. Thank you. Hon Maneli?

Mr Maneli: Thanks Chair. I wanted to check if the Chair would be persuaded on this point – that indeed we would not (want to) pre-empt what the actual outcome of this meeting would have been because objective do have to look at what has been submitted. Objectively we have arrived at a decision. I am just worried about the gap that gets created in-between. Therefore we would have suggested that if everything else that you made in the summary was to be accommodated, probably, maybe two weeks was too much of a stretch the seven days is something you may want to look at. So that we allow that backroom work to happen. If witnesses could be persuaded, the remaining ones. So that when we start with those witnesses we do not get to get many breaks in-between because we may then get to another application instead of dealing with the witnesses that must come before the Committee. Also, Chair, anybody would have wanted to exercise any other options and by the way, you have also given yourself an option that in case you want to go the independent. I am sure there will be no question the next meeting where you have got a legal opinion because in the other meeting there was that mandate that you can look at the legal opinion outside. So I am just saying you can accommodate all that, so that when you restart the process, we can really proceed to get to a point of completion. But, of course, if arrangements are different Chair, I submit to your ruling. I just thought because I raised the point about two weeks, maybe the two weeks was too much of a stretch. But in principle, I was just raising a point that says, we should not be seen to be pursuing the PP, but pursue justice. I submit, Chair.

Chairperson: Yeah. Thank you for that. They would have been informed as well about the planned session of today and tomorrow. That would have been discussed with them. I am aware that the leading of evidence might need more than a day, given the amount of work that is there. So that is something else. But today, and tomorrow has been set. We have been given that by Parliament to work on that. So as things stand are the extra days, one or two days to complete, this one and a half witness. It is important to do that, and then create a gap between that and the seven days for… to allow the Public Protector to be ready for the next session. We should be ready, therefore, for tomorrow. Any other questions or concerns raised? Yes, Hon Gondwe?

Dr Gondwe: Thank you Chair. Once we are done with this one and a half, you know, witness we have left please Chair, let us be mindful of the time, in terms of, you know, any breaks that we take in-between. You will know we took a break between the recusal application, and that set us back quite a bit. You know, you have also pointed out in your submissions, that, you know, time is against us, you know. We are a Committee with a lifespan and we have to always be mindful of that fact that we are not one of those Committees that are standing; we have a lifespan. Thank you very much Chair.

Chairperson: Yeah. I want to take it back to you Hon Members. It is now just after 16:00, okay? Okay, so today seems to have been exhausted by this, even before we relayed a decision and called the Members. But to conclude this, it might be important that you also yourself become flexible that if we cannot finish tomorrow, even if it is virtual, we will finish, as we have done before. We did this even on a Saturday – so that we are able to clear this first phase. It is important that we do that. Then Ngoma should be able to indicate tomorrow the next steps in terms of the programme. The issue here, Hon Maneli it is not even pursuing anybody. It is pursuing our work that we need to conclude. There has been too many stop starts you losing the momentum. It is even worse for issues of cross-examination where a witness would have been here a month ago. It is undesirable. That will work in that way. So I am open to you Members. If you do not have any suggestions we will indicate to you even after the meeting. You fine? Okay we will adjourn for ten minutes, so that we are able to call them back and convey the decision.

The meeting adjourned for ten minutes.

Chairperson: Can I please get your attention? The time now is 16:22. Our sessions are normally from 10:00 to 17:00. Let me first start with an apology to both the Public Protector and the legal team, as well as the Evidence Leaders that our discussion extended beyond the time limit we would have hoped for. Therefore we seriously want to apologise. With all the precious work you have to do and go through, that we have to keep you redundant, if I may put it that way. So I want to start with that apology from the Committee. It was important that we exhaust our discussions because we are such a vibrant and robust Committee that is made up of people from different backgrounds, let alone the fact that it's an all-party Committee, unlike others that have six and five representation. So the reason we, as indicated in the morning that after such a discussion, we would then having asked you to excuse ourselves who would then call you in and relay our own decision to you in that regard. So I think I am ready to do that now.

Mr Malema: Yeah, before you do that, Chair.

Chairperson: Hello?

Mr Malema: It is Mr Malema here.

Chairperson: Is that a point of order?

Mr Malema: No, no. I just wanted you in that decision you're about to announce to note the objection of the EFF.

Chairperson: Thank you Hon Malema, for the objection before I announce the decision.

Mr Malema: No, in the summary earlier…

Chairperson: Thank you Hon Malema. Maybe you should have allowed the Chair because the Chair would have reflected that important view, that you are raising. Thank you for that but let me proceed. Colleagues, after lengthy discussions, which were very constructive and as I indicate not easy discussions that we have had because we have to consider all facets of these matters especially having listened to the both the written and oral presentation. Now, before I proceed now, there is another hand. Adv Mpofu, you do not want to hear the decision?

Adv Mpofu: No, I know the decision, Chair. I told you in the morning. No, I am saying, Chair, that in the interest of time we actually even though you excluded us from here, unfairly. The thing was on YouTube and so you should have just allowed us to sit here. So we have been listening to everything. So I'm just sparing you all the… how difficult that decision was – we saw how difficult it was… very difficult. We know. We were watching. That is why we came here. When Thembinkosi was coming to fetch us, we were already at the door. Thank you.

Chairperson: You are out of order Adv Mpofu.

Adv Mpofu: I am saving you time. Take the time.

Chairperson: I take that. On a lighter note, Adv Mpofu. Well, then the YouTube would have helped us but what I will do, I will give you a very brief summary, let me start saying that, and that we are going to humanly possible also by tonight to give you something in writing, in detail formally, of the decision itself. But the decision of the Committee, has resolved that having listened to your presentation, written and orally, and the discussion that we got into as Members, that the Committee is of the view that the application for adjournment of postponement is declined by this Committee. We want to endeavour secondly, that having declined that we want to proceed with our work of this Committee, as I would have indicated in the morning in my opening remarks, and that we need to we need to ensure that we make that backroom work as we go towards the issues of the way forward both for what we do in the next day, and the break of that seven days, but also to, as you would have seen in the YouTube and listened to my summary, I would have noted. Let me also note that that decision would have had a version of a minority view that indicated that some parties would want, especially the EFF, to exercise an option of further seeking a legal opinion on the basis of not having much confidence on the Parliamentary Legal opinion. That is what Hon Malema is recording as an objection as part of the summary decision that I am indicating. So that is our decision to both your Evidence Leaders and Public Protector Team. As I indicated to furnish you with the details, reasons, formally, in writing in that regard. Thank you. Before I adjourn, any remarks or comments? Before I close the meeting, none? You heard from YouTube so you do not have any remarks. Thank you Adv Mpofu. Adv Bawa?

Adv Mpofu: No, Chair. I want to talk.

Adv Nazreen Bawa: Chair, can we just sort out housekeeping tomorrow. Are we going to start with the cross-examination of Ms Thejane and then go on to Mr van der Merwe?

Chairperson: Cross-examination I have to look this side because everybody else by with Ms Thejane. Adv Mpofu?

Adv Mpofu: Thank you Hon Chair. Yes, no… Thank you. As I said, we have listened to some of the input. We have problems with the fact that some of the things that were said in our absence could have been said when we are here for the Members who were making remarks about our own input when they had a chance to say it and also the Parliamentary Advisors were passing remarks about the input, which is also part of the unfairness. But be that as it may, Chair… There are also some factual issues which we do not want to get into, that we heard being said about our own input. Including the fact that we once went to court and asked for twelve prayers, which never happened. But that is fine. Also that those previous cases were done, on the advice of parliamentary advisors, we saw two senior counsel in court, but that is fine. There are just some factual inaccuracies, which, if we were here, would have corrected. Chairperson, as I indicated earlier, the decision really does not come as a surprise. So what we are going to do now Chair is just to explain… to revisit what we said to you in the morning, which was that the mandate, our mandate, the legal team was only to come here and do the application for the adjournment and we made that clear in the letter we wrote to you on the 21st of October, and in the application we submitted on Monday and this morning, as well. So that is it. What that means is that we are not able to take part in any of the further illegal activities, which would involve anything beyond the application, as we indicated this morning of the adjournment, because to do so would be to acquiesce in the dispensation in this Committee (which) as it is currently constituted, its completely illegal. Your question was about cross-examination? I think the answer, therefore, is that anything beyond the point of the application, even breathing, after that point would be an endorsement of the illegal activities of this Committee. As I say, in any event, beyond the mandate that we are asked to perform today, so I am afraid then as far as the legal team is concerned, at least, we… that will be as far as we can take it. And good luck. We will see you again maybe or maybe not.

Chairperson: Let me do this then. So that I get much clarity. So are you indicating that you are electing not to do cross-examination tomorrow or being part of the process of Evidence Leaders leading evidence of the next witness? I need that to be to be clear. Is that what the Public Protector is saying?

Adv Mpofu: No, the Public Protector will speak for herself. In fact, once I finish speaking, here, now, she can only speak for herself. As I said, my mandate… once my mandate comes to an end, I cannot speak for her. So if you do not mind, Chair, can you excuse us, the Legal Team? Then maybe you can ask those questions to the Public Protector.

Chairperson: Okay, you want to ask something?

Adv Bawa: Chair… Sorry Adv Mpofu. My apologies, I do not want to unduly detain you… your instruction and brief from Seanego Attorneys.

Adv Mpofu: No, it is fine. You can talk to me as a colleague.

Adv Bawa: Can I just understand, are you withdrawing as counsel or is Seanego Attorneys withdrawing as attorneys? Or can we just… can I just… would you prefer that I asked that question of the Public Protector?

Adv Mpofu: Yeah, you can ask her whatever you want to ask. I am done.

Mr Malema: Chair, Adv Mpofu has withdrawn. Release him.

Chairperson: Thank you. I am now going to invite the Public Protector. Tomorrow we had planned to continue with the cross-examination of Ms Thejane. Your legal team has just indicated that you would have given them a mandate that they must leave and tomorrow we are planning to proceed.

Mr Malema: No, on a point of order Chair. On a point of order. On a point of order, Chair. Point of order, Chair?

Chairperson: What is the point of order?

Mr Malema: The point of order is that you are distorting what the legal team of the Public Protector said. They never said she instructed them to withdraw. They never said that. They said as far as they are concerned, that is where their mandate end(s). So why do you say to her, she has given her legal team instruction to withdraw? They never said that.

Chairperson: Thank you Hon Malema, if that is your point of order, it is not sustained because the senior counsel would have been working with the attorneys of the Public Protector. So the issue of the mandate has a source. I am now trying to verify the issues with the Public Protector who accounts to this Committee because I am trying to indicate to her the work that we would want to proceed to do. But maybe before I proceed, Adv Bawa, you want to come in?

Adv Bawa: Yes, Chair. My apologies for interrupting. Before we proceed with the work, and maybe if the Public Protector doesn't mind me asking the question directly. As in ordinary parlance, legal counsel get the mandate from an attorney an attorney is the only person who could terminate their mandate on an instruction from a client. In this case, the client is the Public Protector and so I just want clarity as to whether the Public Protector had given Seanego instruction to terminate her counsel’s mandate? Thank you.

Chairperson: Thank you Adv Bawa. I was also, in my own way going there but I think you have…

Adv Bawa: Sorry, Chair. There is a second question to that because the attorney from Seanego also walked out. So the second to that is whether the Public Protector also terminated the mandate of Seanego?

Chairperson: Thank you Adv Bawa. Public Protector?

Mr Nqola: Yeah. That is law 101. It does need shouting, it just needs reasoning. Thank you.

Mr Malema: There is no shouting wena (you) man. You are suffering from a mind of a peanut. A mind the size of a rat’s poo-poo. That is what you are suffering from.

Mr Nqola: You are a suffering from a mind of a cockroach yourself.

Mr Malema: A cockroach has got no mind that is why you do not know that a cockroach does not have a mind.

Mr Nqola: You are a cockroach.

Mr Malema: You and the cockroach are the same. You are a small boy who has nothing to show in the history of politics, except opportunism. You are here because you have nothing to offer. Poverty brought you here.

Chairperson: Hon Malema, are you done?

Mr Malema: Why are you not asking your colleague if he is done? I am not your Member wena (you). I am not your Member wena. Do not think that I am a member of the ANC.

Chairperson: Hon Malema?

Mr Malema: Why are you not asking your Member if he is done because he is the one who spoke nonsense here? Why are you not asking him? Do not confuse me with your Members… do not do that.

Chairperson: Hon Malema, I am addressing you.

Mr Malema: Jesus.

Chairperson: Do not mute Hon Malema, I am addressing you.

Mr Malema: Yeah, I am listening.

Chairperson: You are using un-parliamentary language in this Inquiry session. I would want you to withdraw that.

Mr Malema: Withdraw what? Withdraw what? Which one is Parliamentary?

Chairperson: You cannot refer, both of you – and I am going to address both of you – to a Member in the language that you have just used.

Mr Malema: Okay. Why are you not starting with the one who started? Why are you not starting with him? You are starting with me because I am a member of the ANC.

Chairperson: I do not even know who started but I am speaking to you now. I will address both of you.

Mr Malema: Start with him. It is him who started. Start with him.

Chairperson: Hon Malema, I do not think that is how we work in Parliament… that you must indicate to the presiding officer on what he or she should do.

Ms Maotwe: Chair, no. Chair you are being unfair. It is Nqola who started with cockroaches… Chair, you are out of order, yourself. It is Nqola who started with cockroaches.

Chairperson: I did not recognise you, Hon Maotwe.

Ms Maotwe: You are unfair. I am asking you.

Chairperson: Hon Nqola, I heard you doing exchanges with Hon Malema, using un-parliamentary language of cockroaches on the platform now.

Mr Nqola: Chair, I rose and said that is law 101, it does need any shouting. I did not refer to anyone in the Committee nor even outside this Committee. I just passed a remark. It is when Hon Malema shouted at me and said a lot of things when I retaliated but, Chair, for the sake of progress, I withdraw unconditionally. Thank you very much.

Chairperson: Which words did you use?

Mr Nqola: The word cockroaches.

Chairperson: Thank you for withdrawing that. Hon Malema?

Mr Malema: Yes?

Chairperson: I have heard you using un-parliamentary language in your exchange with Hon Nqola. I would like you to withdraw that.

Mr Malema: Which one? You may not like what I said but what I said but which one I said is un-parliamentary? Which one?

Chairperson: It is the rats and the poverty.

Mr Malema: Sorry?

Chairperson: The rats and the poverty and cockroaches, Sir.

Mr Malema: No, I said that he was brought by poverty into this thing. He has got no conviction of his own. How is that un-parliamentary?

Chairperson: Hon Malema, I am asking that you withdraw, in the same way I have done with Hon Nqola.

Mr Malema: Okay, I withdraw. I want to hear (the) Public Protector. I am withdrawing.

Chairperson: Thank you Hon Malema. You can remove your hand, Hon Nqola. Thank you. Apologies for that Public Protector. I now have the Public Protector on the platform because I have recognised her. Public Protector?

Adv Busisiwe Mkhwebane: Thank you Chairperson. Thank you Hon Members. I think for correction, Chair, I did not say or I did not give a mandate to my legal team to… Yes. So I think that is what they have discussed with the attorneys and for now I am not in a position to… I would have to discuss with them because we did not discuss the continuation of the process because the issue was for them to apply for this process. So I will have to go back and discuss with them or alternatively if they decide to withdraw, especially the attorney of record. Then I will have to find a way of finding an attorney who will have to proceed with the matter or as well, alternatively convince the current legal team.

Chairperson: I hope the response helps Adv Bawa. That there is no mandate to terminate the attorneys.

Adv Bawa: No. Adv Mpofu’s words were that his mandate has been terminated. In other words, he does not have a mandate beyond these proceedings.

Ms Maotwe: No, he did not say that.

Adv Bawa: Adv Mpofu and his legal team were engaged to represent Adv Mkhwebane through the Section 194 process, as was Seanego Attorneys but Seanego Attorneys also walked out. Chair, there is authority in the courts, which I do not want to get embroiled in giving the Committee legal advice but I would suggest that your legal advisor go and look at what the position is in respect of when legal representatives walk out of proceedings and what the consequences are for hearings. I am not giving the Committee legal advice. That is not my role as an Evidence Leader. I think…

Mr Malema: Chair?

Chairperson: Okay, I see now a couple of hands. I will start with Hon Malema, Maneli, Mananiso, Tshablala and Skosana.

Mr Malema. Yes, Chairperson. I think there are two issues I want to raise. One is that the Public Protector gave the response she gave and she is entitled to legal representatives, and this put these proceedings to an end, then you can decide when and how we are going to meet so that she can do her consultations and maybe find new legal representatives, or anything of that sort – or convince the same people to come because she has not been privy to that type of an action that we have observed. But the second thing, Chair is that because we have decided to proceed with this Committee, depending on your ruling, we are considering withdrawing as well as the EFF because we do not think that we should take these matters light. The advocate said that were engaged in an illegal process, and therefore they are unable to proceed with engagement in the illegal process. I said earlier, we are asking for adjournment to go and consult our legal team so that we see how we proceed with these matters. That matter is not being even considered by so-called colleagues but when the other colleague says, can we be given an opportunity to look into these matters so that we are confidently moving at the same level and speed? No, we are being brushed off like that. So I think that she is entitled to a legal representative and we must allow her; and if you see so proceeding, we are also going to withdraw from these proceedings. Thanks.

Chairperson: Thank you Hon Malema. Hon Holomisa?

Mr Holomisa: Thank you Chairperson. Hon Malema has…

Chairperson: We cannot hear. Please repeat.

Mr Holomisa: I would suggest that you postpone this meeting today, subject to the Evidence Leader(s) and the Office of the Public Protector… I mean the Public protector rather, ironing out this and what would be the way forward as from tomorrow. At least by tomorrow when we meet, you should be in a position to tell us and the country as to where the process is. Thank you.

Chairperson: Thank you Hon Holomisa. Hon Nkosi?

Mr Nkosi: No, Chair. I think that has happened is unfortunate. I however think that yourself as Chair, in terms of the directives, now has the opportunity to give direction as to what should happen. Firstly, we should recognise that the Public Protector has, as per decision of the CC (Constitutional Court) the right to have legal representation. We cannot depart from that and we must respect that at all times. Two, in that regard that she be afforded an opportunity to indicate to yourself what her next steps should be and that would require that you engage with her. That engagement should, in my, in my opinion, be given space to take effect. Thirdly, that without taking advice from the legal, I mean the Evidence Leaders, but that we ask what the implications of the withdrawal from our legal team, thank you.

Chairperson: Thank you Hon Nkosi. Hon Siwela?

Ms Siwela: Thank you Chairperson. I think Hon Nkosi has covered me. Chair, we need to seek advice from our legal team because this has just happened and we have got our programme which we are saying we are proceeding. I believe you will have to engage with advocate… the PP, since she is saying she did not mandate them to withdraw. She is still going to consult. But for me, I believe that should happen urgently so that we proceed with the programme. Thank you.

Chairperson: Thank you. Hon Tlhape, followed by Hon Nqola.

Ms M Tlhape (ANC): Thank you, Chair. Chair, I would also submit that this was unexpected and unfortunate (and that) we stop here, so that we do not speculate. You retreat to the backroom with the legal team, Evidence Leader and the Public Protector. And tomorrow, you should be able to give us a way forward so that we do not cloud this with many ideas of what if or what could happen. Thanks.

Chairperson: Thank you very much. Hon Nqola?

Mr Nqola: Thank you, Chair. I think I agree with a lot of submissions, except to equally submit that why can we not maybe allow them that they should not come to the Committee tomorrow so that they sought their own things out. I am worried, Chair. They were supposed to have started with the cross-examination and by the look of things, and by the material conditions, it does not seem like there will be. I am not sure, Chair, if it will not derail us more if we give them even tomorrow to sort their issues out. Thank you.

Chairperson: It is fine. I think I have a sense of the summary. Hon Maneli… because you have raised your hand… if you want to withdraw it is fine. Hon Maneli and then Skosana. Maybe before that, Adv Bawa.

Adv Bawa: Chair, we have remained silent when the issue came up before the Committee about the Evidence Leaders meeting in the backroom with the representatives of the Public Protector when the Committee was talking about it earlier on. We do not have a mandate from the Committee of any sorts, to enter into any sort of arrangements with the Public Protector, which would be an antithesis or in contravention of a decision that the Committee has already taken. So for me to go into a backroom, with the legal team of the Public Protector, I would not know where my authority comes from, to make any deal with them. Which is different from a decision taken from this Committee. I do not mean any disrespect to the suggestion made. But I do think I must clarify that from our position we would not know what we entitled to agree to and what we wouldn't be entitled to agree to. We would not want to do that with the Public Protector on her own. It does not seem to be clear whether the instructing attorney has withdrawn from the matter. I am not sure about what the rules are but counsel out of the own withdrawing from a mandate but it was not quite clear how this occurs. But be that as it may, I have great reservations about it being left to us as Evidence Leaders to make arrangements with the Public Protector’s legal team.

Chairperson: That's fine. I thought their suggestion… But let me hear you because we have to go back to the legal services team. Maneli?

Mr Maneli: No, thank you. Chair. I think the first point is really to once again emphasise that on the basis of the submission, there's already a decision; and that decision is to proceed. I think the point was to really look at how you operationalise that decision. At this point, we are faced with the practicality that there is something that has happened. I think Hon Nqola said it that the material conditions allow dictating to us what needs to be done and we cannot keep that shift that we have because there is this reality and the understanding Chair was that the backroom discussion is about the operationalisation of that. It may be also an opportune moment, Chair, to consider all the points that have been raised including what you would have recognised as minority submission, if that is what you would want to call it. An opportunity to have that discussion and creating space that all these other matters could take place, including in a situation where as the Committee would have discussed and agreed. If you need further opinion on the matter, you still have space to do that in such a period. So once we reconvene and whether we get to cross examination and all that, firstly, an opportunity would have been given to the Public Protector to indicate or elect on how she would participate because again… even the legal provision, it is really a point for her to exercise. That will be what she would elect to look at… whether that is the route to go or not; to look at whether that's true or not. But even at this point, Chair, if we are to take what has been presented to us, there is still going to be clarity in another backroom, whether there is withdrawal or not, and whether there was a misunderstanding, probably of what she would have instructed or not instructed. So I just thought that it is important that we do not get to a point where we think there is no decision. That decision has been there: it is the operationalisation. Now there are new developments. In that score I do not think even the Evidence Leaders will be launched in this case because the Chairperson, as per the Committee discussion, coordinates, that engagement… who has got full understanding of where the Committee comes from, in terms of such a discussion, which makes it indeed to as Hon Nqola puts up to be important. That looking at the time now, it may be important to look at using tomorrow to still get this ironed out than to meet, just to get a sense that there are still discussions otherwise we are going to meet and stop. It may cast some doubt on whether we want to proceed or not, when we have (already) decided that we are proceeding Thank you.

Chairperson: No, thank you. Maybe, I think I will not go to other Members at this stage. It is to take the advice of Hon Tlhape that we will retreat… I will remain here as a Chair, and the team with the Public Protector. Members can leave knowing that tomorrow's meeting is still standing unless there is further notice. I am not going to get into that discussion now. So you have to leave here knowing that tomorrow's meeting as scheduled still stands until advised otherwise. Okay, so that we clarify we retreat as suggested properly and clarify the matters. Is that in order Nemazinga and Skosana because that is what I want to rule on? Hon Skosana?

Mr G Skosana (ANC): No, thanks Chair. I hear your ruling. However, just to make one point, I think we must also make sure that we are not being unfair to the witnesses, who are supposed to appear before the Committee. You have got Ms Thejane and Mr Neels van der Merwe, who are always on half clutch. They always come. We do not deal with them, we deal with other matters. Another date is set… they always come. So if you say the meeting tomorrow continues, if it happens, that the meeting does not continue. They have to make arrangements in the meeting and the meeting does not continue, or the meeting does continue, but we do not deal with their evidence. So I think it also becomes unfair on their part, because there is always uncertainty as to whether are they going to give evidence or not equal to give evidence or not, are they going to be cross-questioned or not? So my view… I was aligning myself with Hon Maneli…

Chairperson: Let me just stop you there because I do not want to get into that discussion. I thought I must give you because you have raised your hand so that you allow us to deal with all of those issues you are raising instead of having them ventilated here in this forum. Hon Tshablalala.

Ms Tshabalala: No, Chair. In exactly what you just mentioned now… As much as a Member had many questions that I also wanted to pose to the PP on the proceedings. However, I'm going to respect the fact that, you know, you look into the Rules 164 (which) speaks about interruption, suspension or adjournment. So that we are on record in a way how the Chair then adjourns a meeting. Then on record B, it speaks about “You may change the date for the resumption of business, provided reasonable notice is given.” I think that is what Hon Skosana is trying to raise. I just brought the list, at least when you close it there is something that gives us on record, even though I was kind of worried with what Adv Bawa said, when she said they do not have mandate to do the backroom outside. Those are the things but let us leave it at that Chairperson and trust you that you will consider all these matters. But when you need the Committee and as a matter of urgency, so that we are able to deliver these matters and ask questions, please let us do so.

Chairperson: Thank you. Hon Sukers, you are the last one.

Ms Sukers: Yes, Chair. My question really touches on what the Evidence Leaders indicated. We are not clear on what the current conditions are. I am not sure now, if that is being determined offline, between yourself the Evidence Leader(s) and the Public Protector, because it is this Committee that needs to make a decision. So the conditions needs to be clear to us as well, whether the Public Protector is without legal representation, and on the basis of what that legal representation has now led: because this is an oversight body. The Public Protector is accountable to this Parliament and we cannot get this process to be delayed. The conditions are still the same. I think the Hon Member has now indicated that the conditions are exactly the same. This Committee has decided to proceed and the Committee has deliberated on that. So the basis of this current interruption then the conditions, on what basis… we need to know what that is. Does the Public Protector… and it needs to be timelined. We cannot come tomorrow. There is not only the rights of the Public Protector, there is the rights of witnesses; there is the obligation of this Committee that needs to be considered and we cannot be in a position where we have a delay that is on the basis of a technicality. So we need to know what Adv Bawa has indicated. What are the conditions currently in terms of legal representation for the Public Protector? Because that will indicate to us how we proceed and it must be timelined.

Chairperson: Effectively what are you suggesting, Hon Sukers?

Ms Sukers: Sorry, Chair. I did not hear?

Chairperson: Effectively what are you suggesting?

Ms Sukers: What I am asking is if the Public Protector can answer us and tell us now what are the conditions that that her team has left. What has been communicated to her, so that we know whether she is proceeding with her current legal representatives or is she without representatives? Because certainly there must have been communication between the Public Protector and the legal representative: both of which were here.

Mr Malema: On a point of order, Chair.

Ms Sukers: It is not clear to me.

Chairperson: Public Protector?

Mr Malema: No, on a point of order Chair. Point of order. Point of order Chair?

Chairperson: Point of order?

Mr Malema: Chair, you asked the Public Protector what is the situation and she answered you? What more do you want from her? She answered you.

Ms Sukers: On a point of order, Chairperson. I am not speaking to Mr Malema.

Mr Malema: Who said you were speaking to me? Am I interested in speaking to you? I would not be interested to speak to a person like you.

Ms Sukers: I will not be insulted, either.

Mr Malema: I am speaking to a Chair. I am not speaking to you. I do not speak to your type. I am not speaking to you. Chair, I am not speaking to her, I am speaking to you. So you asked the Public Protector that question – she answered. She is going to find out. She is going to speak to the legal representatives, and she will be able to advise once she has had a conversation with the legal team. What more do you want from her? She is entitled to have her legal representatives. You wanted to speak to her without a legal representative is in an attempt to want to put a… cross-examine her without her legal representative. It is wrong. It is illegal

Chairperson: Okay. Thank you Hon Malema. Hon Dlakude?

Ms Dlakude: Thank you Hon Chairperson. I think you gave us some marching orders, by saying that you will release this Committee and you will be… you will sit behind so that you discuss whatever you will be discussing as the Chairperson of this Committee, if I heard you correctly. So I would suggest that you do that Chairperson, then communication will come to us as Members of Parliament as to what is the way forward from now onwards? We cannot keep on going around on circles. Thanks Chair.

Chairperson: Okay. That is what I have suggested Members. Public Protector?

Adv Mkhwebane: No, I wanted to clarify, Chairperson, what I said is, I cannot proceed without my legal team and not to say we discuss this because they… I think everybody heard – there is a recording that they will just end it for today here because they said they cannot proceed with this illegal process. So I would ask that… I do not know. But you said you would want possibly for us to discuss. So I do not know… how do I discuss without my legal representation, which is a constitutional right, which the Court said I should be having? So hence, I am saying I will have to discuss with them whether and even including the attorney. Indeed, we know that the attorney briefs the counsel, and I have to decide the legal team of my choice. So and I did not even say they are terminating. I must find out from them, are they willing to proceed with me or, then Chairperson I will have to start afresh and get a new legal team. If I get a new legal team, that is another challenge, because then it might delay the whole process because the new legal team must start afresh and go through all the evidence. So I would want to be given an opportunity to engage with them because I do not know why this came out the way it did. But anyway… it is in your hands, Chairperson.

Chairperson: Adv Bawa?

Adv Bawa: Chair. Sorry for my ignorance, do I understand the Public Protector to say that you were completely taken aback by them leaving today?

Mr Malema: Again, on a point of order, Chair. On a point of order.

Adv Mkhwebane: I have to answer you as the Evidence Leader. What I am saying is that Ms Sukers was saying, ‘what did they say?’ I am saying we didn't discuss such issues. We were discussing what we came here for – the documents, (and) the presentation. So we did not discuss the way forward because I thought as well, we will be moving with the programme, hence, I am saying, for now, I will have to get the details (on) what is happening (and) what is the plan of action, and that…

Mr Malema: On a point of order Chair?

Chairperson: Hon Tlhape and Nodada.

Mr Malema: Chair?

Chairperson: I noted you Hon Malema.

Ms Tlhape: Chair, the reason why I said we must stop here, and you retreat with your team, legal team and the Public Protector, was for the very same fact that let us not ventilate all these here. And like we are cross-examining the Public Protector now. Let us allow you to go and find out all these issues from her tomorrow morning. You would have arranged everything that needed to be arranged and have more information for us as Committee Members. So I still stand with the fact that let us stop here as Members of Committee would have indicated, and allow you to when find out everything. Then let us receive that report tomorrow as the meeting is continuing tomorrow. Thanks

Chairperson: Hon Nodada? Thank you Hon Tlhape.

Mr Nodada: Chairperson, I think it's very important for us to… you must be able to take the clarities from Members of this Committee in whatever form it comes from, because we individually need to get an understanding as to what is going on. Now, from my understanding from what the Public Protector has responded and said to us, is one she did not know that her legal counsel and I obviously want to best understand this, so that we know how to deal with this moving forward – would leave at this point, and she does not know whether or not she will still be utilising the same legal counsel. Therefore she is requesting two things, one either to engage her current legal counsel, that she says to us, she did not know he was going to leave what she terms now, “illegal process.” Then the second thing is to say, well, if they do not agree, then I will have to go and find, you know, a legal team that needs to be briefed, and so on; and so on; and so on. Now, Chair, I hear what other Members are saying in terms of, you know, you engaging the Public Protector, and so on. She just indicated to all of us now that she does not understand what she will be engaging with you and the Evidence Leaders without her legal team with her. So I think it is important, Chair, for us to understand what is going on as a Committee and set a decision or resolution of the Committee as to what must happen moving forward, because the Public Protector has a right to have legal representation and, you know, we must give a specified timeline as to when that can be sorted out. So that we continue with the programme that has been resolved by this Committee. I think it is important to understand those clarities. There must not be Members that are curtailed to ask questions as Hon Sukers has tried to ask her own questions, so that we have a full understanding as all the stakeholders that are involved in this process, so that we know how to advise to proceed even to you as the Chairperson. Thank you so much.

Chairperson: Okay, let us round it off Members so I can wrap up the meeting. Hon Malema and Nkosi?

Mr Malema: Thank you Chair. No, no, I do know why you allow the Evidence Leader to do what she is doing because at the point where we are, she has got no room. There is no any evidence that is being led now. We are having a discussion as Members of Parliament on how we are going to proceed. Now you leave her to ask the Public Protector the questions, Chair. Please protect the Public Protector. Her legal team is not there. Do not engage in unconstitutional things. Where does she get the right to ask Public Protector questions? We are doing exactly that. We are trying to find a way out of this situation and then ask the Public Protector questions as if we are leading evidence. Her role is to lead evidence and no evidence is being led here. She must respect us.

Chairperson: Thank you Hon Malema. Hon Nkosi, you are the last one.

Mr Nkosi: No, Chair. I think perhaps what we should do if Members feel we should have a discussion on this issue. One that we should excuse both the Evidence Leaders and the Public Protector, and continue with the meeting to discuss the next steps on our side as an oversight Committee. In other words what steps are we going to take to address this issue? That will depend on your summary because I think every time you summarise we come back, et cetera and it creates a problem. Perhaps, to follow your precedence today, excuse them and then discuss the way forward with yourselves and take forward the suggestions that may have been made, Chair.

Chairperson: You are clearly not in the mood to allow us to prepare even for that. Nemazinga?

Ms Tshabalala: Like when I said, when you concluded and we kind of were agreeing with yourself with the adjournment of today proceedings. However, the issue that we are then …as MPs we've taken it to proceed with the proceedings. That is the first thing. Now the second part comes in that it hampers now on our proceedings, that which has happened currently. Therefore, it means that then you need to give yourself time to be able to deal with that which you need as part of your proceedings. Now, (the) Public Protector is not in a position to really… because you do not want to prejudice her from her legal representation as a right. She just said to us that she has to consult with her counsel and lawyers, so that she can understand. But clearly it then means that she needs to be in a position, perhaps, to respond to the Committee. My suggestion will be that we still go back to what we agreed when Hon Tlhape made the submission to adjourn. But secondly, Chair to allow her the opportunity to be able to deal with that process of herself with the legal team and perhaps what you can say then she can also be able to confer with the Committee section, when she is ready. However, as we said, there are issues of timelines that the Rules empower you to be in a position to get the timelines that are reasonable for that process to happen. I think that is where we are, Chair, because if we were to want to deliberate this issue, I am afraid that we might find and put ourselves in a situation where we do not want to find ourselves. But I think the Chair is correct in his posture and what you said, however, the only thing that you are taking out, is to have the backroom discussion. Perhaps that is something that we are seeing Chair, your consideration on the backroom also on the issue of a meeting proceeding tomorrow, Hon Deputy Chief Whip, that it might not be at this point. So we will leave those administrative matters to your, Chairperson, to ensure that you adhere to the rules you give us within reasonable time, the date where we are going to resume because it does not take away from the decision. We are still resuming with the process, however, you give the Public Protector a chance to be able to do that. So the rest of the administrative we need to leave them to you in terms of timeframe when are you calling us back where the matter between yourself or your Committee and the Public Protector would have been dealt with. So that we can continue with the cross-examination. The colleagues who are coming tomorrow they need to be communicated on time in terms of the suspension – I know suspension is not a good word but the pause of the process… it is a pausing. Thank you Chair.

Chairperson: Thank you Members. I think Members what would what would help is that… retreat for tonight. The time that is set for the meeting tomorrow is still that time whatever nature of that meeting, because it would help that will go to that meeting with matters much better clarified than wanting to continue now, with us not doing any kind of groundwork. It really would not assist. So I think you just need to take a step back and retreat and we will continue to do our work. And so we will indicate for tomorrow, in terms of the meeting, you would come back and give also us a proper direction, but we are going to do the work to clarify a number of things that cannot be clarified in a meeting like this. I do not think it really it would work, no matter how strong we feel about getting this particular answer and that answer: it is not going to work. I think having the reality is pointing to that. So we have tonight to just re-think about how we proceed tomorrow. I want you to leave here knowing that the meeting has not been changed for tomorrow. Can we leave it at that, colleagues?

Ms Siwela: Yes, Chairperson. Thank you.

Chairperson: Thank you, Honourable members on the virtual platform. The meeting is adjourned for now.

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