PP Inquiry day 37: Legal representation report-back; Cornelius van der Merwe

Committee on Section 194 Enquiry

01 November 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

The Section 194 Committee Inquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office considered Adv Mkhwebane’s report-back on her legal representation status and heard evidence from Mr Cornelius van der Merwe, Senior Manager for Legal Services at Public Protector South Africa (PPSA).

The PP in her report-back stressed that she had not terminated her legal team’s mandate to represent her during the proceedings. Moreover, despite their decision to walk out of the 27 October proceedings, on the following week, the team led by Adv Dali Mpofu informed Adv Mkhwebane that they had never withdrawn from the Inquiry and remained her counsel. Whilst Members were relieved by this development, they asked why Adv Mpofu and the legal team had walked out if they still intended to continue representing the PP.

Adv Mkhwebane’s attorney, Mr Theo Seanego, refused to explain the reasons the legal team decided to leave the proceedings and argued that this would have to be answered by Adv Mpofu when he next appeared on 7 November. Unsatisfied with this response and fearing further interruptions to proceedings, some Members proposed that the Committee consider approaching the courts to obtain a declaratory order against the PP. Further, Members requested that the Committee Chairperson and the Secretariat circulate a draft agenda programme, so with the assistance of the PP legal team, work towards concluding the Inquiry before Adv Mkhwebane’s term of office expires in October 2023.

In the latter part of the meeting, the Committee heard evidence from Mr Cornelius van der Merwe, which mainly dealt with the appointment of media communication consultants directed at improving the public and media image of the PP and the Office. The invoice from Seanego Attorneys for services that included a billing for consultancy work provided by Ms Kim Heller, Prof Sipho Seepe and Mr Paul Ngobeni as part of legal fees. The invoice included disbursements from an entity named “Ngobeni Executive Consultants” for rendering services, most of which revolved around countering the alleged media onslaught against Adv Mkhwebane. The invoice to PPSA was for ‘strategic services’ from the three external consultants on items such as: advisory notes on dealing with emerging negative publicity and propaganda; key thought pieces on judicial prejudice, the lynch mob mentality of the media and the unpacking of the Pravin Gordhan saga. Mr Van der Merwe testified that records showed that an invoice for services labelled "Media Publications" to the legal services department was not paid after an objection from the former Chief Executive Officer.

The Committee will continue to hear Mr van der Merwe’s evidence on 2 November 2022.

Meeting report

[PMG draft report]

Chairperson: Good morning colleagues. Welcome to our meeting today, on 1 November 2022. Let me welcome Members here at M46 and the Members at the virtual platform, who now have the required quorum – those who were late have now joined as Members on the virtual platform. I also want to welcome the Public Protector, here at M46. I recognise Evidence Leaders, Adv Bawa and Adv Mayosi, here at M46: the entire support staff with us; members of the media, in their various platforms here, and in their other platforms; and most important, and lastly, the members of the public who are joining us from their various platforms… thank you very much. We welcome you all to the resumption of our Inquiry today. We concluded on Friday with the key decision that we could not proceed on Friday, owing to a discussion we had but also the request from the Public Protector for more time to be given. The Committee acceded to that request, even though not as what would have been wished for but for a limited period of time. We would have agreed that we would resume today, at 10:00, which is exactly what we are doing. We concluded in saying that today is going to be the leading of the last witness and what will be outstanding is the cross-examination of the two last witnesses, Ms Thejane as well as Mr van der Merwe. I hope Mr van der Merwe will be on the platform when he is needed. Before we get into that space, we then agreed that it would be important we give the platform and the space for the Public Protector to give us whatever feedback she would have prepared for us. Therefore, today it would be important that we start there because that is going to assist everybody. As we concluded, the Public Protector was strictly on record that there would not have been any termination of mandate of her legal team but she was equally clear that she needed time to engage and hear out her legal team to which we acceded. So we are looking forward to that briefing. We would have continued with our correspondence and in brief, the Public Protector… we corresponded with her even yesterday and responded in confirming that she would be here and that detailed exploration would be done here in the meeting. I also corresponded with her attorneys – we will hear that from the Public Protector. Maybe later we can also flight the correspondence. Thank you very much colleagues. Thank you Public Protector for being with us today. I now want to recognise you and hand over the platform to you. Thank you.

Adv Busisiwe Mkhwebane: Thank you Hon Chairperson and Committee Members; and everyone who is a part of this process – Evidence Leaders and Legal Services from Parliament. I will take you through the update and report back on what has transpired.

Thereafter, Adv Mkhwebane read out her report back on the status of her legal representation.

Chairperson: Thank you very much, Public Protector. Maybe it would help, for completeness sake, to flight the correspondence that the PP referred to, including her instruction for Seanego to write a separate letter so that Members can see that I have certainly received that. Whilst she is doing that, I must just check if Seanego is on the platform.

Mr Theo Seanego: Good morning Chair, and good morning Hon Members.

Chairperson: Can you hear us?

Mr Seanego: Yes, I can hear you, Chair.

Chairperson: Can you hear us?

Mr Seanego: Yes, I can you hear you, Chair. Can you hear me? Chair?

Ms O Maotwe (EFF): Mr Seanego, we can hear you clearly but I think the problem is with the Chair, in the Committee room.

Mr Seanego: Chair, can you hear me?

Chairperson: Okay. Let us check first. Maybe it is not his problem.

Mr X Nqola (ANC): Chair, I think the problem is in the chamber because we can clearly hear Mr Seanego and we can hardly get what you are saying on that side. So could the ICT…

Chairperson: Okay, we are going to have to fix that. The problem is clearly not with Seanego. We are just quickly checking the system. They seem to be speaking but we cannot hear them. Hon Omphile, can you hear us?

Ms Maotwe: Yes, Hon Chair. We can hear you clearly?

Chairperson: Hon Maotwe?

Ms Maotwe: Chair, I can hear you, can you hear me?

Chairperson: You are very far; it looks like you are in another country.

Ms Maotwe: Let me come closer to you, Chair. Can you hear me now?

Chairperson: Okay, we will still try and solve it.

Mr Nqola: Can you hear me Chair, on the other side?

Ms Maotwe: Wait wena (you). Chair is dealing with leadership. Wait.

Mr Nqola: Chief, you are not leadership. What is your problem?

Ms Maotwe: Wait man. Wait, Nqola.

Mr Nqola: Do you know that the public is listening to us whilst we are doing this thing.

Ms Maotwe: Ja, the Chair is calling me, not you. What is your problem?

Mr Nqola: No, I wanted to check if the problem is not your network. I know these things of the bundu. Chair can you hear me?

Chairperson: Only you. Okay, Hon Nkosi, can you hear us?

Mr B Nkosi (ANC): Yes Chairperson, I can hear you.

Chairperson: Thank you. It now seems to be working. Mr Theo Seanego, are you there?

Mr Seanego: Good morning Chairperson, I am here. Can you hear me?

Chairperson: Yes, thank you very much. We hear you very loud. Thank you. Let me just check this with all of you on the virtual platform – the Public Protector would have made a presentation. Did you hear her when she was making that presentation?

Mr Nkosi: Yes.

Chairperson: Okay, thank you. So we have not lost that. Appreciated, thank you. I am now going to ask Thembinkosi…

Committee Secretary Thembinkosi Ngoma: Good morning Members. Good morning guests; members of the public and everyone present… the Public Protector, Adv Mkhwebane. Thank you Chairperson. Chair, as you had rightfully indicated that there was a letter that went out on the 28th of October to Seanego Attorneys, on the adjournment application and the way forward. The purpose of the letter was to inform Seanego Attorneys on the outcome of the adjournment application and the way forward. Chair, safe to say that the full letter… in actual fact, all the correspondence that I am going to be tabling now, has been shared with the Members. In actual fact, the letters were shared this morning – just a few minutes ago – if Members want to read through them. Chairperson, there has been email communication between my office and the Public Protector relating to assistance that we have offered in the event where the PP would have challenges in terms of travel logistics, however her response was that the PP has someone who deals with that and it was taken care of. As such, Chairperson, PP is sitting in this meeting with us. Then, Chairperson, in that communication there was also an email… the last email we received, which is basically a summary of what the PP has now presented to the Committee. That statement that the Chair presented in the morning… she has shared it with me and I have shared it with the Members, together with the annexures that go with it, Chairperson. Last one, Chair, was the letter I received last night from Seanego Attorneys in response to your letter of 28th of October, where in that letter they indicate Chairperson, that they had not withdrawn their services, neither has counsel, and that they would also await further address from the Public Protector this morning, of which PP had addressed the Committee. On that note, Chairperson, that is what I had for now. Thank you very much.

Chairperson: I am going to ask you to flight the Seanego letter – it is a very brief letter. Then I will ask Mr Theo Seanego to say something on that.

Mr Ngoma: Thank you Chair. On the screen is the letter from Seanego.

Chairperson: Can you read (it)?

Mr Ngoma: Thank you Chairperson. This letter, Chair, was received as I had indicated, on the 31st of October, which is yesterday. It reads as follows: “We refer to the above matter and specifically the clarities sought in paragraph nine of your letter. We confirm that Seanego Attorneys Inc acts on behalf of the Public Protector and never withdrew as her attorneys of record. We further confirm that we have not terminated counsel’s brief on the matter. We are instructed by the Public Protector, that the rest of the matters raised in your letter under reply shall be addressed by the Public Protector.” That is it. Thank you Chair.

Chairperson: Thank you very much, Mr Ngoma. Mr Theo Seanego, any comment you want to make? I want to give you an opportunity, perhaps to emphasise that letter?

Mr Seanego: Okay, thank you Chair. Good morning Chair. Good morning Hon Members, Evidence Leaders. Good morning PP and everyone who is present at the Inquiry. I guess I only have to confirm the contents of the letter because I think the Secretary has already read it. We confirm that the letter came from our offices. As you know, Chair, some letters can be sent from fake emails, so I think… We thought it would be proper for us to be here to confirm the contents of the letter instead of just sending the letter and keeping quiet… and also out of respect for the Chair. Chair, thank you. I think that is all I can say for the moment. Chair, as the PP has already mentioned, I would beg leave to be excused from this discussion, so that I can attend to other things.

Chairperson: It might have… I have not seen you before, maybe you have a network. Can I see you before we let you go? This is Theo Seanego.

Mr Seanego: Thank you Chair.

Chairperson: Please stay on the platform. I am just… any… Members, you have heard the presentation from the Public Protector and we flighted the letter from Seanego Attorneys. Any comments, Members, on what you have heard? Hon Herron and Hon Mileham?

Mr B Herron (GOOD): Thank you Chair. Obviously the clarity is… or the clarification on the way forward is welcomed but I really do not understand what happened last week. There is no explanation for what happened last week, at all. Clearly the attorneys and counsel are back on board, although there is a suggestion that they never really left. That is the only comment I have is that I am still not sure what happened last week.

Chairperson: You (are) probably not asking the Chair?

Mr Herron: If someone wanted to explain it that would be very welcome.

Chairperson: I understand your dilemma… I understand your dilemma. Thank you Hon Herron. I share your dilemma. Hon Mileham?

Mr K Mileham (DA): Thank you Chairperson. Chairperson, I really only have one concern, and that is that the Public Protector and her legal team were advised repeatedly prior to the walkout on Thursday hat or whatever you want to call it, however, we want to describe it and I apologise for my voice, Chair… They were advised repeatedly that in the event that the application for adjournment failed, the committee would be proceeding with the witnesses and they were advised over a week ago of that fact. So to come now, and say that there was no prior notice that the Committee would be meeting this week or next week or whenever it might meet is actually a bit disingenuous. In fact, it is not a bit disingenuous, it is disingenuous. I think that part of the problem here is the difference between the Public Protector being ‘entitled to legal representation’ and her legal representation actually being present. She can bring any legal representative she likes here now. Nothing is preventing her. This committee is certainly not preventing her from having her legal representatives here at the moment. So I think that there is a little bit of mischief at play here, Chair. Thank you.

Chairperson: Hon Van Minnen, Gondwe and Hendricks?

Ms B Van Minnen (DA): Thank you, Chair. Yes, I just want to express my concern about the events of the last few days. It is completely so that the Public Protector, of course, is able to get legal representation of her choice but it is concerning to me that she seems to have selected a legal counsel that is either unwilling or is not able to represent her the way that they should and I think that that is something that (the) Committee should really express their concern about. Thank you.

Chairperson: Hon Gondwe?

Dr M Gondwe (DA): Thank you very much Chairperson. Chairperson, Like Hon Herron, I still do not understand what happened around the, you know, the walkout that we witnessed last week. So I would just like them to explain why they actually walked out of the Inquiry if they are still, you know, representing her. I am not entirely sure what the point of the walkout was. I just need the clarity. I mean I am…maybe I just do not understand what happened but I think we deserve to know why they walked out. Chairperson, like Hon Mileham I remain concerned about, you know, these repeated delays. I mean, now, they are asking for them to be able to proceed with the Inquiry from the 7th… I mean we would have lost a number of day’s in-between. So I remain concerned Chairperson that time is against us, and we really do not have time on our side – and this is a Committee with a lifespan and really we need to make sure that we get on with our work and all these repeated delays are really hampering what we have been, you know, set out to do as a Committee. Thank you very much Chairperson.

Chairperson: Thank you. Hon Hendricks?

Mr G Hendricks (Al Jama-ah): Thank you very much Hon Chair. Hon Chair, I agree that there is mischief, as referred to by other Hon Members, and this mischief must not be allowed to derail the timelines that the Committee has set. I hope, Hon Chair that you will be strong enough to ensure that we stick to the deadlines. So tough luck if cross-examination, for example is reduced. The way I feel at the moment, Hon Chair, is that we must do what they do in cricket…that we must just make a decision, refer it to Parliament and let them vote on this. You know my layman understanding is that attorneys and counsel take instructions and certainly they got no instructions to walk out. That shows contempt for their client. It shows contempt for the legal fraternity and it shows contempt for Parliament. Thank you very much.

Chairperson: Thank you Hon Hendricks. Maybe the cricket thing you did not complete it. It is called a third umpire. There is a third umpire sitting next to a TV and then there is what is called a referral. I am not sure it will apply but I just wanted to complete your example of the cricket. I can see (that) you do watch cricket from time to time. Hon Maotwe?

Ms Maotwe: No… Thank you Chair. Mine is very simple. We now know that (the) PP managed to speak to a legal team to remain on board, so there is not really an issue where we should be going back and say ‘what happened and how are you going to assist us?’ We need to move forward. So now the issue that is on the table right now is that although the PP legal team is still on board, but they are not available now. So what we should desist with as Committee Members is to say, we cannot continue in the absence of the PP legal team. She just said now I was actually trying to check the programme, Chair… maybe Thembinkosi can send it back… flight it back. Indeed, there was nothing scheduled for this week according to the programme. So they had planned their work according to what the problem of this committee says. So let us postpone it and let us then resume as our programme, but really going into stories of what happened, we are not taking us anywhere. Let us move forward. We are happy that there will not be any time delays, because it would have been a serious time delay if the legal team had withdrawn and PP had to start from scratch looking for new attorneys on board and the senior counsel. So let us all be excited that at least we will not have to go through that but the reality is that for this week they are not available. (The) PP is pleading that let us wait until they are available. In any case, Chair, as per the Constitutional Court judgment, we cannot continue in the absence of the legal team. I heard Mr Mileham saying ‘entitlement’… there is no entitlement. It is an order by the highest court in the land that says she must have – it does not say (that) she may – a proper legal representation. So we cannot be in contempt of court. Now, let us move forward, Chair. Let us schedule this meeting for the next day. I see your agenda is already talking about taking the other witness. It will be in contempt of court because we would be doing that in the absence of a legal team. So I think let's put it like that, Chair. Thank you very much.

Chairperson: Thank you Hon Maotwe. Hon Zungula?

Mr V Zungula (ATM): Thank you, Chairperson. Greetings to yourself, the PP, Hon Members and everyone listening. Firstly, Chair, I think let us appreciate the presentation by the PP. The Committee did give her a task and she's delivered even though there was a short turnaround time… she did deliver. What I want to comment on, Chairperson, is basically that, in my view, it would be unfair that the PP is made to answer for the actions of the advocate. The advocate… when there is a session when the advocate will be here. I think all of the actions relating to the advocate conduct or actions of the advocate must be answered by the advocate. I think what was required by the PP… of the PP, which is to indicate whether she is continuing with that legal counsel… she has covered that part. That is the one area (I) needed to touch on. The second area, Chairperson, is that indeed, as per the programme, there is nothing that was scheduled for this week. As you know, and including the presentations by the PP, there is the list of court cases in which the legal counsel has to prepare for and fortunately, it is cases that are in line or that have got… that are intertwined with this process, or the standing of the PP relating to her going back to work. So it would be, you know, amiss of the Committee to act or to position themselves as if those cases are not related to the work of the committee. Those cases are not even… because even the Committee itself, yourself, Chairperson, is part of that some of the court proceedings, even our party as well, we do know these court proceedings. Then the last thing, Chairperson, I would propose that we let the PP and the legal counsel to continue preparing for those court cases, because it is very important that those court processes are not handicapped by the legal counsel having to be part of these proceedings, whereas they are equally important. Like it has happened in the past. Whenever there is court processes that the legal counsel of the PP had to participate in, they were given of time to prepare for those court processes. So even in this case, the legal representative of the PP must focus on that court processes in order to be best prepared for those court processes. In line with what the Constitutional Court had said that the legal representation of the Public Protector is critical to make sure that this process is fair; it is balanced and there is justice. Therefore, I think we should not allow a situation whereby the Committee does proceed without the legal representative of the PP because by doing so we would be somewhat undermining that judgement of the Constitutional Court with stress that the PP must be afforded legal representation in everything that is happening in this process. So if they are going to be parts of the process, or parts of the Inquiry that (are) held without the legal representation, I think, Chair in my view, we would be, you know, undermining the Constitutional Court, and in view to be in contempt of that certain judgement. Thank you.

Chairperson: Thank you. Hon Siwela, followed by Hon Dlakude.

Ms V Siwela (ANC): Thanks Chairperson. Greetings to Adv Mkhwebane; to yourselves, colleagues. Chair, I do not have much to say rather than to say that we really appreciate the cooperation by the PP but I just want to raise two issues. The first one, I think that (it) has been the observation of the Committee that the legal team walked out: it not something that we are fabricating. So I want that to be on record that has been our observation as the Committee and is a worrying factor from our side; and it should be also a worrying factor from her side because it is her right to have such a legal team. Secondly, the Hon Member who said we must not ask her those actions is quite right but to indicate those observations as they commit, I think it is important, because even the senior counsel himself said to us that our mandate ends up here. So those observation needs to be reflected, because it is what transpired rather than to be seen as if we are doing something or we are trying to create something which was not there. But we appreciate the cooperation and we also want to indicate that we cannot deprive her to have legal rights because it is a constitutional… it is constitutional that she must have legal representatives and not may… but at the same time, that time or the framework, which has been scheduled to make sure that the proceedings moving smoothly, must also be taken into cognisance, because here we have set up some timeframes, which I believe from today, here is something which we need to indicate on how are we going to battle to arrive to that point. So my proposal, Chair, will be that let us proceed but let us try to schedule our programme in such a way that we meet the deadline because it is time consuming, and it is also costly. So I think these are the two inputs which I wanted to make before this august House. Thank you Chairperson

Chairperson: Thank you Hon Siwela. Hon Dlakude?

Ms D Dlakude (ANC): Thank you very much Hon Chairperson. Good morning colleagues, Evidence Leaders and the PP. Hon Chairperson, let me take this opportunity to welcome the presentation by the Public Protector and also to thank her for presenting us before this Committee. Hon Chairperson while we hear what the Public Protector said in this meeting, and also what Mr Seanego said, we also, as this Committee, acknowledge that constitutionally, the Public Protector has a right to have legal representation – that one we agree with fully and we support that. As a Committee we also have work to do and I believe that we are also protected by the very same Constitution and also the Rules of Parliament. Then, we appreciate that her legal representatives have not withdrawn from representing her but what I do not understand is why did they walk out of this Committee last week? That is the part that we do not understand. We were left with only one and half witnesses that we were supposed to deal with as (the) Committee so that we can move forward and the Public Protector be afforded an opportunity, to present her own witnesses and also for her to take a stand. So this is where the confusion is for this Committee to move forward. If we can be clarified there… why did they have to walk out? Because for them presenting that application for adjournment, even if the Committee rejected it, there was no need for them to walk out, because we were going to finish with the witnesses, then we see how to move forward from there.

Chairperson: Thank you Hon Dlakude. Hon Holomisa?

Mr B Holomisa (UDM): Thank you Chairperson and morning to all. I align myself with those who say that there should be no leading of any witness in the absence of (the) legal representatives. Secondly, the issue of the advocates withdrawing in the manner in which they did, I do not think is relevant for today’s discussion. This thing is going to drag. I can see that we are going to waste time by talking. My proposal is that we come with a timeframe which will in line with the Public Protector’s. Finally, Chairperson, we have other issues to deal with such as the Phala Phala. Let us finish.

Chairperson: Thank you Hon Holomisa. I have heard you. We will talk to that. Hon Nkosi?

Mr B Nkosi (ANC): Thank you Chairperson. Greetings to all Members of the Committee, the PP and Evidence Leaders. Chair, I have a question that I want the PP to respond to before I come with a proposal and that really relates to explaining what happened last week. What… I mean, physically, we saw people walk out. We saw the SC (Senior Counsel) call the team behind him – whether it was Seanego or whatever… I do not know, but he called the team out and they left in this meeting. So it is not something that we were dreaming about. We then engaged on a lengthy process to clarify what was happening. Clearly, at that point, our view was that there was a walkout and that that walkout was initiated and happened at the instance of the senior counsel. So until the Public Protector explains to us she cannot come back here and say that the, including Seanego by the way, that they have not withdrawn. What happened last week? Why were they not part of a meeting after hearing our decision? Why did they leave this meeting after hearing our decision? If they are not withdrawing they would have continued to participate, or at least, they would have indulged the Committee to explain that they needed to confer with the Public Protector to determine any next steps or any way forward out of that very incidents and that would have afforded them at least an hour or 20 minutes to do So but it did not happen. So I just need a clarification from the Public Protector before I come back on what possible solution should be, Chairperson.

Chairperson: Thank you Hon Nkosi. I will park you for now. Hon Nqola?

Mr Nqola: Thank you very much Chairperson. Chair, I think we all agreed that there is no question of whether the PP shall be represented or not. I do not really get the point of repeating all that. But I think it is incorrect of the PP to say that Members incorrectly said her legal team marched out; and later in her submission, project that thing was actually a march out. As things stand, until now, if the explanation says the legal team did not march out, did not withdraw… what they did they do? Nevertheless, Chair, it is fine. It will not help us to repeat that. But, I think, Chair, it is incorrect to say that Members must not ask the PP on what happened… the behaviour of her legal team. Chairperson it is the Public Protector that is appearing before the Committee. Whoever she brings, as her legal team is her choice, as she said in the submission. So questions are going to be posed to her when there is a matter that needs a clarification in the Committee. But Chair, beyond that, what makes it more difficult for the committee to arrive at a decision now is the PP says there was a consultation over the phone with the lawyers. Then there is the scheduled consultation with the counsel, later today or tomorrow, I think so but there is no specific timeframe at which how will the Committee a cooperate with her need for a consultation and all those things? Because it cannot be that we are going to wait as the Committee for a period not determined because now we are made to wait until the legal representatives are in the mood again to come back. So I do not understand because that is where the confusion lies, that the Committee must wait for an undetermined period. So Chair, I think if clarity can be can be can be given to that extent to I think it will then set the light on how then should we plan going forward from today. Thank you, Chair.

Chairperson: Thank you Hon Nqola. Hon Lotriet?

Dr A Lotriet (DA): Thank you chairperson. My apologies for not switching on my camera, but the connection is not what it should be. Chairperson I want to start with what was said just now. We have to understand this is not an open-ended process. There is a specific programme and I also have to take us back to there was a full programme, which is then regularly updated as is necessary, but the dates have been set down already by this Committee. Even if they are tentative, they are there and one would assume that you plan accordingly. Secondly, Chairperson I think it is extremely relevant to discuss what happened last week and what was said this morning. It is critical for this matter to proceed. I also have to state that I am deeply concerned about the fact that what happened on Thursday, what was said by the Public Protector on Friday and what is again now said this morning are three different versions. So I agree with the Hon Members who said that we must get that clarity. Then thirdly chairperson, we have stated quite clearly last Friday based on case law, that the right to legal representation is not absolute. It is in the interest of the public that we do proceed and that it is not only a matter of the Public Protectors right to be represented. We have to balance all these rights. I think in terms of what we have done up to now, this committee has been more than generous and accommodating in terms of adjournments, postponements, et cetera. So I would strongly argue that we proceed immediately and it is up to the Public Protector and her team that has apparently not withdrawn, or withdrawn, we do not know, that they just make their plans. This Committee must proceed with its work. It is our constitutional duty. Thank you.

Chairperson: Thank you Hon Lotriet. Hon Malema?

Mr J Malema (EFF): No… Thank you very much, Chairperson. I think that the question that the Public Protector must clarify what happened last week is rhetorical and unnecessary and I do not even think she must to respond to that, because that question was dealt with last time and even now, it has been dealt with. Those who are familiar with legal representatives will know that they come for a particular purpose. The SC explained that before they left, that, what we came for today ends here with your judgement, because that is what we were prepared for. That is what we came here to do and because you ruled in a manner you ruled, we cannot proceed with this illegal process. No one, not a single person, none whatsoever ever uttered a word we are withdrawing. It is you, Members of the Committee who went around putting words in the mouth of the Public Protector’s representatives that they have withdrawn. What more do you want? You are now being told that they have not withdrawn? You still ask what happened last week. They came (and) represented the Public Protector and they made their points and they were done and they said they can proceed because of the ruling that we made and they were going to take up this matter outside our processes. That is s what happened last week. You might know, like it or whatever, but do not behave like you do not know what happened last week, and ask questions of what happened last week when you know what happened last week. So Chair, it is unnecessary that question and I do not think (the) Public Protector must deal with it. She dealt with it when she was giving a response. You all wanted to know what's happening are they still here and all of that…a clarity has been provided. They are still here. Once again, the Public Protector is asking for time, so that she does a thorough consultation with her people. It's a right you can't take away from her. You cannot. She has got a right to be represented and that right was reaffirmed by the Constitutional Court. So you are not going to come… it is not even… It is not a matter of choice. The mistake we make is this thing of every time she asked for some time, so that she can consult properly and do her work, Chairperson makes unreasonable rulings of one day, one night… things that are impractical, because you have got a predetermined outcome for this process. But if we are genuine, and have got no agenda and predetermined outcomes, you will not even have any difficulty, affording me an opportunity to do a thorough consultation. Those who are the beneficiaries of Apartheid; children of colonisers and Apartheid dictators; they are the ones who will suggest let us proceed with this and violate her rights because that is how they survived all their life – violating (the) rights of people. That is why they say it with ease… beneficiaries of Apartheid. That let us proceed. We do not care. We know you do not care – you have never cared about rights of our people and rights of black African women in particular. So we see that in action today, where the rights of an African woman is being violated and at the forefront of that is the beneficiaries of Apartheid, who are missing those days of violating the rights of our people. You do that now with a Public Protector. Please, Chair, as a revolutionary and a person who fought for this Constitution and the rights of our people, let it reign in your conscience, that you cannot violate the rights that we fought so much for; for the Public Protector, for me and you to be legally represented. Our people were hanged. Our people were killed by parents of some of these people who are speaking here, without being properly represented, without being properly listen to. Today, you joined forces with Apartheid murderers to destroy an African woman and put no value into her rights… It is unacceptable, Chair. So I think let us give Public Protector what she has asked for and we will proceed. That document you are referring to of timeframes and all of that is the living document. As and when the need arise(s), it will always be amended and it will not be for the first time we do not meet the deadlines of the National Assembly. We will always explain that we need more time as long as we have guaranteed and protected the rights of one of our own. Thank you Chair.

Chairperson: Thank you Hon Malema. Hon Manketsi Tlhape, you will be the last one.

Ms M Tlhape (ANC): Thank you Chair. Greetings to everybody on the platform and in the physical attendance. Greetings to you Chair and the Public Protector. Chair, let me start by saying I'm relieved in the sense that what seemed to be a tall order when we broke last week, has been resolved in the sense that the legal team of the Public Protector is still intact. My worry, Chair, would have been starting this process all over again if she had to appoint new legal representatives. So for me, it is a relief. I think for this process, that I might be wrong, we are about 85%... we can still make it. Two, Chair, what the Public Protector is presenting, like the Hon Members are saying, is valid (and) it is there. My take, Chair, would be to say let us look into our living documents as indicated and balance it with the notion that we do not have much time. Look at how we will cover this other time that we missing because, Chair, I am sitting here and thinking to myself that if indeed, we did not schedule anything for this week, do we have a leg to stand on if we are taken onto task? Which then brings to the proposal that I want to make, that the Secretariat always meet with the Chair and look into the weeks ahead. Even if we have draft programmes it will help us a lot so that we avoid such pitfalls and not only to do it for (the) intentions of putting Members on hold, but there the reasonable programme of having to offload what we need to offload like this witness that we still have to process. So it will be my submission, Chair, that as and when we deal with this draft programme, that we can change as and when. Let us always identify days, that we will need the legal representatives to be here so that they're also able to plan their things. But my take, Chair, is that all is not lost. We are still on track. I am relieved that there is no new legal team that needs to be consulted and we have to start this process all over again. So on that regard, Chair, I would say, let us do it like we did last time. I remember we had strenuous week sometimes that we even had to work way before beyond working hours, just to balance the issue of time constraints. Thank you, Chair.

Chairperson: Thank you Hon Tlhape. We are going to try and roundup. There would have been clarities sought to the PP and clarities to the Seanego team. I just want to redirect… I will start with Seanego, from the Chairperson’s point and (we) would conclude with a PP whatever comments she wants to make. If there are any follow-ups, we will do that but at the end, I will be making a ruling. Let me start with Seanego… two things. We… On Thursday Seanego left the PP alone. Seanego knew before Thursday that we had a scheduled meeting for Thursday and Friday. Seanego left on Thursday and left the PP here. Seanego did not come on Friday. I want you to clarify that. What is the reason of Seanego not coming to the Committee on Friday? The question of Seanego leaving is not to be answered by the PP. The PP on Friday said she did not know why they left. I take that. I cannot want to doubt (her). She had also done that in writing. Seanego has written to the Chair, as we flighted the letter (and) indicated that we have not withdrawn (and) that they are still the attorney’s on record for the Public Protector. So with that, they have not withdrawn. I think what is being asked is a simple thing to say, for Seanego, exactly what happened on Thursday and why did they not join us on Friday knowing there was a scheduled meeting? Today and tomorrow is a scheduled meeting that we agreed to on Friday.

Mr Seanego: Chair?

Chairperson: These are scheduled meetings. I will speak to that later on in terms of my ruling. I now want to quickly just ask Seanego because those clarities are not the clarities to be responded to by the Public Protector who was here with us on Thursday and who came back on Friday. Can I here…

Mr Malema: On a point of order, Chair.

Chairperson: Yes, what is the point of order?

Mr Malema: The point of order is that Seanego is not accountable to this Committee. It is accountable to their client and they are not to be cross examined or questioned by anyone. You have got an issue with the legal team of the Public Protector. It is the Public Protector who is accountable to you, not Seanego. Seanego is accountable to the Public Protector. So do not ambush these fellows with things they are not expected to perform here, in this Committee. Their job is to represent the Public Protector their client and they are responsible and accountable to their client, not to this Parliament Committee. The person who is accountable to this Parliament Committee, which is something that all of you like today for convenience sake, you want to forget that you have been repeatedly saying the person who is answerable to you is (the) Public Protector, not the lawyers.

Chairperson: Thank you Hon Malema. Your order is not upheld. Thank you for that. I proceed. We have already preceded us from yesterday there is a letter that was written to Seanego (by) the Chair of this Committee, which they responded to. They clarified this morning. I want Seanego to conclude responding to these issues I am putting on the table. Mr Theo Seanego?

Mr Seanego: Thank you Chair.

Ms Maotwe: Sorry, Chair. On a point of order Chair. Chair?

Chairperson: Yes, what is the point of order?

Ms Maotwe: Are you able to clarify why you did not agree to the point of order of Hon Malema. Can you just explain to us why you ruled otherwise?

Chairperson: Thank you Hon Maotwe. I have already clarified. I have ruled and declined it. Mr Seanego?

Ms Maotwe: No, Chair. I am not disputing that you have declined it. All I am asking is can you give us reasons why you declined it? I know you declined it. But I am asking you to give the reasons why you declined it.

Chairperson: I have given that.

Ms Maotwe: Chair, I might have missed. Can you please repeat because I did not hear you?

Chairperson: Thank you. I will repeat that later. Mr Seanego?

Ms Maotwe: But how… Chair, no, no. You cannot dismiss me like that.

Chairperson: Hon Maotwe you are not going to do a dialogue with the Chairperson. I have given you an opportunity.

Ms Maotwe: No, but you want to create a dialogue. All I am asking is that you clarify and you say that you will do it later.

Chairperson: Hon Maotwe, you are going to stop what you are doing. Please. Mr Seanego?

Mr Seanego: Chair, when I was confirming the contents of our letter earlier, I indicated that I was just here to confirm that. In fact, I think what Hon Malema has mentioned is exactly what I wanted to say to the Committee that look I… we… Firstly, we wrote a letter on the 21st of October indicating that we are coming for the adjournment application. I… Beyond that I do not think there was anything that was supposed to be dealt with in that week on Thursday and Friday last week. So that was the letter. We made it clear to the Committee prior to the hearing on Thursday. Secondly, I do not think it is appropriate for me to be answering questions, where I am being cross… questioned about what happened on the day. I think Hon Zungula captured it accurately when he said the SC, is the person who is better placed to respond to those questions, especially because – and I am not trying to divorce myself from the process or anything…

Chairperson: Just hold… Just pause there, before you proceed. Hon Zungula might have said that but it does not mean that it is entirely correct because the Constitutional Court speaks about legal practitioners. It is not specific – Mr Seanego you should know that.

Mr Seanego: I hear you. Yes.

Mr Zungula: On a point of order Chairperson?

Chairperson: What is your point Hon Zungula?

Mr Seanego: Chair, in these proceedings, as you are aware from the beginning, I have never…

Mr Zungula: Chairperson? Chairperson?

Chairperson: I am recognising you with your point of order. Just pause Mr Seanego.

Mr Zungula: You asked a question to Mr Seanego and he is answering. You are interjecting when he is giving an answer that you perhaps do not like. So I want to make the point of order that allows a person to finish answering a question. Do not interject a person when they are speaking, Chairperson. That is not in order, Chairperson. Allow a person to finish. Thank you.

Chairperson: No, no, no. Hon Zungula that is not a point of order. Please do not rise on frivolous issues. Mr Seanego?

Mr Seanego: Chair, I was saying the… I referred you to the letter of the 21st, which I think we indicated we made it clear that we will be attending the proceedings for… to deal with the agenda application. But I am just saying that Chair, just to explain why we were not expecting to proceed. But, on the day, Chair, whatever happened, the SC, who is the leader of the legal team, will deal with that when he appears on the 7th, depending on what your ruling is today. So from my side, I cannot speak on that point until the person who has been representing or who is speaking on behalf of the legal team and the PP, from our side, has responded to your question.

Chairperson: Okay, thank you. Hon Nkosi, I parked you. Do you want to come in before I go to the PP?

Adv Nazreen Bawa: Chair, can I raise a point of clarification?

Chairperson: I will note that.

Mr Nkosi: Chair, the PP has not responded. But I have got an additional question then to ask the PP. What is the nature of the mandate? Is it per hearing, per issue or (is) the legal team retained for the entirety of the proceedings… the process, sorry?

Adv Mkhwebane: Chairperson, must I address everything or only this one? Maybe to clarify, Mr Nkosi, I answered Mr Maneli that the legal team briefed for the entire proceedings but I indicated to you when you asked, and I said, the letter of the 21st is very clear. They were here for that application for postponement. I am very much concerned, Chairperson, to proceed without my legal representation. It is very concerning to hear Mr Mileham, the very same person who is part of the application for recusal, which was refused, including what the DA member, Ms Lotriet, is saying that the right to representation is not absolute. It means you just saying we must throw the decision of the Constitutional Court to the dustbin in other words. I am saying… Mr Mileham, you are even saying we are even disingenuous and the very same person whom I am not comfortable to sit here and be subjected to you and the Chairperson… I mean, today the President is dealing with the issue of GBV (gender-based violence). It is like you are subjecting me to stay in an abusive relationship with yourselves because I feel threatened. I cannot… So I think Chairperson it is unfair. I have indicated that I need to be represented by…

Mr Mileham: On a point of order, Chair?

Chairperson: Just a pause Public Protector. Hon Mileham?

Mr Mileham: Chairperson, as a Member of Parliament I have every right to ask every question of any person who appears before a Committee. I have not abused the Public Protector in any way. To accuse me or to liken the questions that we have asked to GBV is absolutely untenable and we cannot proceed in that manner, Chair.

Mr Holomisa: Chairperson, this is not a point of order.

Mr Mileham: We are here to find out the facts and we are here to make a determination and a recommendation to the National Assembly.

Mr Holomisa: That is not a point of order.

Mr Malema: That is not a point of order, Chair.

Mr Mileham: Sorry, I believe I have the floor, Chair?

Mr Malema: No, do not say ‘sorry’. We are talking to (the) Chair. We are not talking to you.

Mr Holomisa: This is not a point of order, Chair.

Mr Mileham: Chair, in terms of the Rules of Parliament, it is un-parliamentary to cast aspersions or to malign any Member of Parliament and that is exactly what the Public Protector is doing by likening my presence and my questions to abuse. I have not put any questions to her directly except for those in writing to being likened to gender-based violence, and I take the strongest exception to that, Chair.

Chairperson: Thank you Hon Mileham. PP, I am going to ask you to restrain from that kind of an approach. It included me too, as a Chair (but) I did not call a point of order. I think it borders on being inappropriate to say you feel that we are abusing you. So I would like you to proceed and respond to the issues put.

Mr Malema: You are scared of white people.

Adv Mkhwebane: I said, I feel – I am giving an example – saying to a women who is abused, just stay in that relationship. I am saying I feel like that; I am not saying you are doing that. That is how I feel. I am saying to you… He is saying, I am disingenuous, so I wonder whether that is fine for a Member of Parliament to also say that in these proceedings. So it is nothing, and I wonder whether you will request him to withdraw that? But then secondly, I am saying, I feel like being a woman who's sitting in that environment and being told, just sit there and not do anything. Hence, I said to you on Friday, Chairperson, you think you are fine, I can proceed under you. I feel I cannot proceed under you. Hence, I said to you, then you need a third person, that third umpire who would say that then is that the proper environment to proceed? I'm just saying that, Chairperson.

Chairperson: Just to assist you… that issue that you are raising is related to the recusal application. We are not there. We're not asking you to respond to that. We have passed that stage. We're asking you to respond to specific issues as to what happened on Thursday, your attorneys on record, and so on. That matter was placed on record firmly here by your legal representative. Please proceed.

Adv Mkhwebane: I think chairperson I've already addressed everything in the in the letter. I've dealt with all the questions which have been asked, and it's up to you what you decide whether we proceed with the… without the legal representation but I think everything is addressed in my letter and what needs to happen. I've indicated that the legal team is available on the seventh of November.

Chairperson: Are you done PP?

Adv Mkhwebane: Yes.

Chairperson: Thank you. Hon Xola Nqola? Before I go to Adv Bawa.

Mr Nqola: Thank you Chair. No, it is just a follow-up question because the Public Protector says the attorneys and the counsel appeared in respect of the adjournment application on Thursday. Now, they left because they were done on their instructions on the day in question but what is not clarified more is that Friday, we were not dealing with the adjournment application but they were not in attendance. Hence, we had to postpone the sitting. So what was the issue on Friday? Thank you Chair.

Chairperson: Okay, thank you. Adv Bawa?

Adv Bawa: Chair, this all started with a postponement application to have the matters postponed till the 7th of November – that was refused. Adv Mpofu, on Thursday, indicated that his mandate after that application was refused… that his mandate as the legal team was to do this application and then he said, what that means is that we are not able to take part in any of the further, he called it, illegal activities, which would go beyond the application for the adjournment. He went as far as to say, “I am afraid as far as the legal team is concerned that will be as far as we can take it. Good luck. Maybe we'll see you again, maybe not.” Now, what has not come out of this entire exchange is that Mr Seanego, who is the attorney of record, has indicated that he gave counsel a mandate to move on to the adjournment application… did he get an instruction from the PP to do that? That is the first issue that's not come out today. The second thing I would like to clarify is that the first Constitutional Court directions for the proceedings on 24 November, came out on 3 October. It combined, for hearing, on the 24th of November, both applications that had been brought by the DA as well as the President set down for hearing on the 24th of November with filing dates. The second application came out… the second set of directions came out on the 12th of October. It combined any appeals and cross-appeals to be heard simultaneously with that. (The) Third set of directions, which came out on Friday did only one thing: the PP had brought an application to implement in the High Court and an application for leave to appeal in the High Court and it simultaneously brought an application for leave to the Constitutional Court. The Constitutional Court consolidated that impeachment application with the application that had already been pending. That is what the series of directions of the constitutional court shows. There is there is nothing untoward about that. It was not the basis for the postponement application last week, knowing that the applications were pending before the Constitutional Court. That was not the reason why the postponement was being sought. I just sought to clarify that.

Chairperson: Thank you for that clarity. I want to go towards the break. Bhekizwe Nkosi, you have your hand up?

Mr Nkosi: Yeah. Chair, are you going to make a ruling now or later?

Chairperson: If you want to say something, I will give you that (opportunity). We are going to, immediately after hearing from you, are going to take a break.

Mr Nkosi: Chair, in making your ruling, I would like you to consider the following: PPSA and its incumbent are accountable to Parliament and only to Parliament for the performance of their work through and through. In this instance (and) in this type of hearings, the PP is accountable to Parliament. Secondly Chair, I indicated in earlier discussions, I cannot remember when that as a Committee, we must determine that we do have recourse ourselves either to the National Assembly, through its leadership, or the courts of the country. I would have made a suggestion earlier that in the event that we see that there are obstacles placed in this process, should we not ourselves on our own through Parliament approach the courts or the declaratory (sic) to determine… I mean to ensure that this process is done within reasonable time? We are not without recourse, Chairperson. And that us my issue. We can do anything I can tell you and assure you that next time we meet, there will be other obstacles that are placed. Let us look at alternatives to ensure that this process continues. Thank you.

Chairperson: Thank you Mr Nkosi. Hon Gondwe?

Dr Gondwe: I was going to suggest a way forward but after hearing what Hon Nkosi has said. I do agree. I think last time I impressed upon the fact that we should look into the possibility of exploring what legal options we have, because I suspect that we are going to encounter more hurdles in terms of, you know, this Inquiry proceeding. But I was going to suggest as a way forward that we proceed with the Inquiry today. We hear evidence from Mr van der Merwe. Chair, by proceeding with Inquiry today we will not be denying the Public Protector her right to legal representation. We have not you know, in any way tried to deny her of that right. If anything, it is the legal team that walked out on the day that denied her right to be represented. So I suggest that we carry on with the proceedings, as you stated as well as her legal team was informed that should the adjournment application, not succeed before the Committee they will be required to proceed. We are still not sure what happened, you know, last week why her team walked out. We are not getting answers at this point. So I suggest we proceed chair. Time is not on our site, the cost implications of delaying this Inquiry further are also, you know, increasing day by day yet, as we keep on putting of proceeding with this Inquiry, thank you very much Chairperson.

Chairperson: Thank you Hon Gondwe. Hon Members…

Adv Mkhwebane: Chairperson?

Chairperson: Public Protector?

Adv Mkhwebane: I want to just put on record that my legal team is not on retainer, like the Evidence Leaders; and too indicate that they received this and this… and this is not to say the just sitting and only doing this kind of work. Secondly, for them to prepare on the one side, and on the other side to also comply with all those necessary timeframes. As I am indicating that on the 28th of… on Friday, they received more than 2000 pages of pages from the DA, and they have to respond to that and comply with timeframes. Secondly the fact that I am here accounting and indicating what is the best solution and being given few days… and I said it as well on Friday, it is a matter of communicating and agreeing. It is so unfortunate that that is treated as if it is waste of resources but now there is a proposal to go to court to waste resources to get legal teams again to prepare documents, which would want to also defend… So I think when you consider all these things, it is just a question of few days and it is just a question of being seen to be fair, Chairperson. That is all I am just saying to when you consider the matter.

Chairperson: Thank you, PP. I have noticed your hand Hon Malema?

Mr Malema: Chair.

Adv Bawa: Chair?

Chairperson: Just hold on please. I see that people do not want us to break for tea. Hon Malema?

Mr Malema: Chair, in a way I think that Public Protector asked you to ask Hon Husband of Hon Mazzone to withdraw that disingenuous thing. If you want us to use polite language, please apply it even if it affects white Honourable members. Your ruthlessness must not only be applied on as Africans, please, that utterances that this submission is disingenuous is unacceptable and please ask that Hon Husband to withdraw.

Chairperson: Thank you Hon Malema. Maybe let me make a ruling on that disingenuous is not un-parliamentary. I cannot ask a Member to withdraw that. We use that in their House with us. It is not un-parliamentary. I cannot be applied… There will be no rule that I will rely on to do that. It may be a harsh word but that is not un-parliamentary.

Mr Malema: Even you, you are disingenuous.

Chairperson: Haibo, Ntate? Adv Bawa?

Adv Bawa: As a point of clarification or correction. The Evidence Leaders are not on retainer. We do our work as we would on billing rates as advocates and we… no work, no way.

Chairperson: Alright, thank you Hon Bawa.

Mr Malema: Chair, can I get clarity, please?

Chairperson: On what now?

Mr Malema: This Evidence Leader, why is she speaking if there is no evidence being led? Why is she speaking in this Committee? She must only speak while she's leading evidence. What is this? Chair, why is the Evidence Leader speaking when there is no evidence being led… why? If there is any matter that seeks clarity like the ones she says needs clarity, you can clarify that. Under which rule is she participating fully so she is a Member of this Committee when she has got a specific role to play? Please man.

Chairperson: Thank you. Thank you Hon Malema. I took some time on Friday, as we are closing the meeting, and I touched on two areas. Unfortunately, you could not be with us. I touched on two areas where I gave a bit of detail. One had to do with the issue of the support staff that I explained their role as anchoring and supporting this committee, be they content advisors, legal advisors, and entire Secretariat. I went at length in explaining what their role is, and the fact that they are part of the Committee. I proceeded in explaining that unlike other Portfolio Committees that we have, in our terms of reference, we designed what we called a hybrid process. This supposed to be instead of it just being a Member-led kind of an Inquiry, we agreed in terms of those terms of reference to create that hybrid and get external expertise, and that we then designed it as the Evidence leaders, and that their role is to assist the Committee. It is not just limited to cross-examination, or it is not just limited to leading evidence, they have to participate to ensure that every step of the way this Committee is empowered and issues are enlightened and so on. I am not going to necessarily repeat, but I am taking this opportunity to say I did address the matter on Friday, as we concluded our meeting. I do recognise that you would not have been with us in that meeting because you are raising this concern. Thank you Hon Members. We are now going to take a break and be back at 12. Thank you.


Chairperson: Welcome back colleagues after that tea break. As indicated, it is now just 12 o'clock. We are resuming quite clearly, Friday, the Committee concluded in this deliberation as part of the decisions it has taken, that today we are going to resume. Central to that resumption was the issue of putting on the stand the last witness Mr Neels van der Merwe to start leading the evidence, as you will see in the affidavit… is quite a lengthy and it is planned for today and tomorrow. As I indicated earlier on, the second part of us on Friday agreeing to resume today and tomorrow was that we were going to get a feedback also, from the Public Protector, which she has given. It is that feedback that would have taken from 10 o'clock up and until now. Today, we have been given a half a day owing to the three-line-whip that is happening, that our day must end at one o'clock. We are going to do that. Members had a lot of deliberations. What is clear and this would have been the first question asked that there are quite a number of questions that are unanswered as we sit here, that we will continue having to find answers on. I would have even given an opportunity for further clarity on those including specifically the attorneys on record. I have not received answers to those questions. We will pursue getting answers to those even beyond this meeting. Having given everybody time to place their matters on record to make their contributions and suggestions, it is clear Members that the resolution we took on Friday must be proceeded with. For that, I want to indicate that the attorneys on record (have) been with us since 10:00. They are still here. Mr Seanego you are not excused or permitted to leave. We will start now with the next proceedings and conclude at 13:00 exactly. That next proceeding is to allow the Evidence Leaders, starting with Ms Fatima Ebrahim to introduce this next and last witness, which is Mr Neels van der Merwe, who will lead evidence from now until 13:00 exactly. For that… Tomorrow we will continue with the same witness for the entire day. There is no cross-examination expected today or tomorrow. There would not be a cross-examination. The focus will be on leading evidence of this witness. The Public Protector placed on record that on 4 November, there is an expectation for them to put together court papers (and) heads of argument… that date is on Saturday. So even if we conclude tomorrow, she is still given time, and her legal team to be able to do that… and that the heads of argument is in preparation for 24 November. It is going to require that today, after one o'clock, we're going to re-look at the programme. She would have indicated from the 7th that availability. We have got to look into before the 24th how many days we're going to give for those parties that are involved, to prepare for that date of the 24th. So that speaks to the programme already… something that as a Chair and the Secretariat, I am going to attend to. I am hoping that we can present that tomorrow to you to say, in the light of what we've heard, availability was indicated from the 7th, because after tomorrow, it is going to be even if we take a break a few days for a week, it is going to be a time when we then invite the Public Protector, firstly, to the cross-examination of those two witnesses, but also the entire witness list that she has that will be led in that way. So there will be time therefore to allow for preparations for that. Hon Members and colleagues, that is the ruling that I am now making. I am going to ask Ms Fatima Ebrahim to do the preliminaries and introduce the witness.

Ms Fatima Ebrahim: Thank you Chairperson. Good afternoon Mr van der Merwe, can you hear me?

Mr Cornelius van der Merwe: Good afternoon advocate. Yes. Am I audible?

Ms Ebrahim: Yes, you are. Thank you. I am now going to administer your oath.

Following this, Mr Cornelius van der Merwe was duly sworn in.

Chairperson: Thank you Mr van der Merwe for availing yourself. I am aware that you would have been ready all the days that we were dealing with our issues here that we were processing, because we have to have a very credible and a fair process. I now invite Adv Bawa to lead the evidence.

Adv Mkhwebane: Excuse me, Chairperson?

Chairperson: Pause Adv Bawa.

Adv Mkhwebane: I want to check… can I be excused?

Chairperson: No.

Adv Mkhwebane: Because I am not… I do not have my legal representation, so I will just sit here. It is fine.

Chairperson: Please proceed.

Adv Bawa: Good day Mr van der Merwe. You are currently the Senior Manager: Legal Services in the Office of the Public Protector, correct?

Mr van der Merwe. Good afternoon advocate. Good afternoon to you, Chair and the Hon Members. That is correct, Chair.

Adv Bawa: Right. You have occupied that position since one August 2020, following a recruitment process that commenced in May 2022. Correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Mr van der Merwe you set your history of your employment in your initial affidavit at page 406 of the record in paragraph two. I am just going to quickly take the Committee through it so that they can have some background and then you can confirm it once I've done that. You started working at the PP’s Office in January 1997 as a senior investigator. In 2010, you were appointed as a Manager in Knowledge Management and Research, to provide research support at various levels in the Public Protector’s Office, including making submissions to Parliament and providing research support in the Office. You did so to the executive levels to the Public Protector, the Deputy Public Protector, the CEO (Chief Executive Officer), as well as the investigative components. You provide specific input and research as well as updates and judgments are handed down and implications thereof. Your input was hardly ever sought in respect of the merits of litigation matters and to strategic decisions. You then point out that as knowledge manager, you are responsible for statutory functions under PAIA (Promotion of Access to Information Act) and the Protection of Personal Information Act, and you draft submissions for the internal policy review committee. You currently sit on the quality assurance committee as well as the structure now known as ‘full bench.’ You have been involved in updating the electronic case management system for the PPSA as well as being involved in information technology. You then point out that you are also involved in data relating to a number of cases finalised and backlogs, reviews of reports and judgments; and orders; and legal fees actually incurred in each year, in your capacity as senior manager, legal services… you have had a look that. We are going to during the course of your evidence go to that and we point out that these amounts will not include accruals, as would be the case of the annual financial statements. Can you… Is there anything you would like to add to that?

Mr van der Merwe: No, that is correct. Thank you, Chair.

Adv Bawa: Because of our time constraints today, for the Committee's purposes, Mr van der Merwe’s evidence is going to span evidence that we heard right at the beginning of the hearings relating to the CIEX ABSA matter because he had some involvement in that. His evidence will also deal with the question of statistics and the number of cases reported in the Office, from the annual reports, and he will deal with items 11.1 and 11.3. In the course of his evidence, because of our time constraints today, I do not want to touch on the ABSA matter, and the statistics, because we might just lose each other in that. I would rather start with that fresh tomorrow. So I am going to start off by taking him to his supplementary affidavit, firstly. That is at 4185.45 of the bundle and it relates to documents, invoices and emails in the main of which Mr van der Merwe, you did not have personal knowledge, but it came to be with you in your capacity as Senior Manager: Legal Services, correct?

Mr van der Merwe: That is correct. Yes, I am now the custodian of these records and documents.

Adv Bawa: So it is through you that this evidence is being led to facilitate it to the Committee?

Mr van der Merwe: That is correct.

Chairperson: You will have to raise your voice – speak closer to the mic so that we hear every word you say and every response you make.

Mr van der Merwe: Thank you, Chair. That is correct, Chair.

Adv Bawa: You had no reason to doubt the veracity of the accuracy of the contents of these documents and they emanated from the PPSA Mimecast system. Can you just tell the Committee what the Mimecast system is?

Mr van der Merwe: Thank you, Chair. The Mimecast system is our client cloud security system that protects and stores our emails doctors and web information and protects the critical communications people and data of the Public Protector South Africa.

Adv Bawa: Right. You explain that it came about after you were requested by the Evidence Leaders to provide you with documentation arising from an invoice which is to be found at Bundle F item number 145 page 2990?

Mr van der Merwe: That is correct, yes.

Adv Bawa: That is an invoice from Seanego dated 20th December 2019. We have had it before. 2997 is the page.

Mr van der Merwe: Yes.

Adv Bawa: Your assistance was sought in locating an invoice dated 27 August 2019, which was identified as media publications, in the amount of R416 726, correct?

Mr van der Merwe: That is correct, yes. We made inquiries with our finance section as well as the Manager: Legal Services, Mr Sithole, to try and trace this invoice.

Adv Bawa: He was not able to provide you with a copy thereof, correct?

Mr van der Merwe: That's correct, yes. He said he would check his emails and later on said that he would request a duplicate or a copy of the invoice from the attorneys. The statement is from Seanego Inc.

Adv Bawa: Right. You then explain that this document that is now on screen was found among invoices and statements that was provided to the evidence leaders in 13 bundles of invoices covering the period 2017 to 2022 by the finance department – you say that in paragraph three of your affidavit. It also included invoices that was provided by Mr Sithole?

Mr van der Merwe: That is correct, yes. Our finance went through all the legal services, invoices and we provided hard copies as well as electronic copies to the Committee, Chair.

Adv Bawa: Right. Now in paragraph three near the end in the last three lines, the finance department indicated to you (that) they would have to search for this invoice because at the time it was all handed in hardcopy, but the records show that it was not paid. Correct?

Mr van der Merwe: That is correct, yes. There was a query from the CEO at the time, which led to its withdrawal.

Adv Bawa: Alright. Mr Sithole had received this invoice and he confirmed that to the Committee when he gave evidence?

Mr van der Merwe: That is correct.

Adv Bawa: In paragraph four, you explain that at the time the PPSA was on a manual system and invoicing documentation to obtain the approval of payments was not submitted electronically and it would have required a search to find that invoice. Mr Sithole indicated that they would search any with request it from Seanego. Did revert to you in respect thereof?

Mr van der Merwe: No. Thus far I have not received any indication that he has been able to trace and find the invoice.

Adv Bawa: But we have found the invoice if I go to annexure CM1 to your affidavit at page 4185.49.

Mr van der Merwe: That is correct, yes. The invoice was traced in the bundle of invoices that we supplied.

Adv Bawa: It is the invoice that in the amount reflected on the statement of 41672640?

Mr van der Merwe: That is correct.

Chairperson: Unfortunately I cannot chair whispering.

Adv Bawa: Sorry… My apologies, Chair. If you go down at 4185.49 one sees the invoice in Bundle D item 24 in van der Merwe. You go to supplementary affidavit and it is (on) 24.8.2… got it? This is the invoice (and) it does not have a heading. The first entry says “Travelled to Pretoria. Met with client, Mr Ngobeni, Prof Seepe and Ms Kim Heller, to discuss how to counter the onslaught of the media on the Public Protector with Seanego charged to do that with travelling costs, received documents for perusal and consideration various telephone calls.” Then a second consultation of travelling. Then if you go to a disbursement, you see an entry that says Ngobeni Executive consultancy fee in the amount of R390 000. Correct?

Mr van der Merwe: That is correct.

Adv Bawa: If we go to the next document in the bundle, which is at 4185.51. We see the invoice for Ngobeni executive consultants, we see an account into which presumably payment must be made in the name of Abel Ngobeni, dated 1 August 2019. If you go further down, you see ‘Paul M Ngobeni Public Protector project invoice April 2019/July 31 2019’, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you go down further in this invoice you will see various entries dealing with a number of matters and I am going to take you through the documents, which relate to these matters. As we go along, we will link it to an entry in this document. So that is just to give the Committee an idea of where we're going. We are going to page 3143 in bundle F. For the most part, all the documents we're going to be referring to is item 161, Bundle F. We start with 3141 at the bottom. Most of the time the emails go from the earliest to the latest. We see on the bottom on the 18th of February 2019, is an email from K Heller from consultancy… I am sorry, let us not go there. We see an email from Kim Heller to Sipho Seepe and Ephraim Nkabinde. Who is Ephraim Nkabinde?

Mr van der Merwe: Ephraim Nkabinde is the personal assistant to the Public Protector.

Adv Bawa: Right. Now we know that Ms Heller contacts the PA (personal assistant) and says “Dear Ephraim. I hope you are well. May the year ahead give you great fulfilment” and I do not intend for Committee’s purposes to read out all of it. I am just going to highlight certain aspects of communications as I go through. It says “I would like to set up a follow up meeting with the Public Protector on the discussions we had in late 2018 on strategic consultancy services.” In the last couple of lines, it says “Further to our meeting last year and the submission of a detailed proposal, as the Public Protector requested we have extended our scope and network beyond communication services to include unique strategic offerings; thought leadership research; and investigative capacity. In this regard, a registered entity is in place.”

Mr van der Merwe: That is correct, yes.

Adv Bawa: If we go up to the second email, we see Mr Nkabinde sends this email to the Public Protector and cc’s Mr Sibusiso Nyembe. We know that he was the Chief of Staff at the time, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: “The PA seeks to confirm the contents of the email”. If we go up to the top of the document, we see that the Public Protector responds and says “yes, we had an engagement and I said they should arrange another meeting. “She goes further and she says CEO and CFO, can you engage the sender of this email on my behalf? Advise on how we can use the services to augment marketing of PPSA and its impact. CEO forwarded the proposal and I’d hoped you will follow up and advise on how we can source the services?”

Mr van der Merwe: That is correct, yes.

Adv Bawa: We know from the next page, which is 3144, the services, which we told is about what Ms Haller offered was “Professor Seepe and I will present this amplified service offering to the Public Protector and the team, which we believe will strongly augment our original proposal and value proposal to the team and there's a plan to meet in March.” We then go to 3151 and we see Mr Seanego provides what he identifies as Prof and Kim, with his contact details. If you go to 3152, you will see there, Mr van der Merwe, Ms Heller responds and says “Good evening Theo. Lovely to meet you today. I look forward to working alongside you.”

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. So she acknowledges that she will be working alongside him… you see that?

Mr van der Merwe: Yes. Mr Seneago and Prof Seepe.

Adv Bawa: You will see Professor says “Great, got it”. He is also provided with the contact details. If you go to 3154, you see that Ms Haller then provides what is a PP strategic communication service document and she sends it to “Dear Theo and Oupa”… who is Oupa, Mr van der Merwe?

Mr Van der Merwe: Oupa was, until yesterday, the Public Protector’s Spokesperson. Mr Segalwe… He was in communications at the time.

Adv Bawa: He was, during this period, the Spokesperson for the Public Protector?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you go to 3155, we see the proposal that Ms Haller makes and I just want to highlight certain aspects of it. It says “Further to yesterday's engagement on the pressing need to counter the total and unwarranted onslaught by media on the person and Office of the Public Protector. May you please find below a proposal with reference to strategic communication services for the period Friday, 7 June to Friday 4 July”. Do you see that, Mr van der Merwe?

Mr van der Merwe: That is correct, yes.

Adv Bawa: So there is a proposal for a four-week period to” reshape the agenda and change the negative perception landscape created by negative publicity and propaganda”?

Mr van der Merwe: That is correct.

Adv Bawa: It says that “This will be done principally through reasserting the primary constitutional mandate of the office and correcting faulty misperceptions of the Office and the person of the Public Protector, orchestrated by mainstream media and interest and the residents in the public arena.”

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Then what they call “our communication posture and programme is informed by the following” and I am just going to highlight a few of them. In three, it says “Assisting the Office to purposefully navigate all platforms and media opportunities.” Did the Office have a communications department at that time?

Mr van der Merwe: Yes, they did and still do, which is tasked with dealing with media responsibilities, and communication functions of the Office.

Adv Bawa: How many people are employed in that department?

Mr van der Merwe: I think it is about four or five people, including the manger. There was a Senior Manager at the time.

Adv Bawa: Right. So then, in paragraph four, it says that “there a need for all communication to be strategically aligned and integrated. This will require the underpinning of a pre-agreed set of messaging and the tonal fibre fabric of communication. It will require a full concert and accord between the communication service providers, the Office Spokesperson and the legal advisors. Protocols and procedures on communication, development and distribution will need to be agreed upon the commencement of the project claiming. Full adherence to factual communication and fact checking.” In six it says “the need for fullest preparation and rehearsal of any public appearances and announcements by the Public Protector herself or any representative of the office to guarantee best delivery of message and exemplary response to media questions.” Mr van der Merwe: That is correct.

Adv Bawa: To your recollection, was this proposal ever put before the MANCO?

Mr van der Merwe: No. We checked both against the operational plan of communication section as well as the MANCO minutes around time. There was no report back or decision register or anything covering such a project or such a strategy in the communication section at the time formally reporting to the CEO or MANCO.

Adv Bawa: Right. It then goes on to say “with immediate effect the Rapid Deployment Force made up of the Public Protector Spokesperson, the communication and legal advisors and senior executives from the Office will need to be ever ready and ever present operationally and strategically to respond to any crisis that may arise as well as to develop proactive communication initiatives.” It further then talks about dealing with… “To counter an immediate and intensified media onslaught over a four-week period.” Ms Heller says “as we activate the communication programme over the next four weeks wherein the next 10 to 14 days will be extremely intense. The following factors must be borne in mind. One, what we are seeing is the perfecting of the media strategy that was used against Jacob Zuma. Two, opposition to the PP is akin to a spiritual war; she can do nothing that could be considered right. This will require a very sophisticated reincarnation positioning exercise. Three…” it talks about an “echo chamber to be unleashed in the Office and a person heavily resourced.” Four, it talks about “detractors wearing her down, identifying the Vrede matter as a case in point.” Five, “She is faced with the challenge of having to contend with judges that seem beholden to a political party and elite interest. Six, “that the resource will always create the highest level of noise”. They then put forward a certain recommendation. Then they say, in the next page, “that over a period, they will write and publish a series of articles and social media communications, which correct misperceptions as well as offering a convincing portraiture of the good works of the office.”

Mr van der Merwe: That is correct, Chair.

Adv Bawa: Are you aware of this senior management being alive or participating in any of these series of articles? Were you aware of it?

Mr van der Merwe: Yes. Around that time, during our MANCO, I am not sure if it was at EXCO as well, there was a call for what they called good news stories or good stories about the Office that the investigative the branches were requested to provide to communications.

Adv Bawa: So they then detail on page three, what they're going to (be) providing messaging for all communications. This is presumably leading back on different social media platforms. Is that how one should understand it… communications?

Mr van der Merwe: Yes, that is correct. With external stakeholders, mostly.

Adv Bawa: “Advisory notes on dealing with emerging negative publicity and propaganda; educational videos and fact sheets for strategic guidance; assistance with social media drives; skill development” and then it says “key thought pieces will focus among others on judicial prejudice; the lynch mob mentality of the media; the judiciary and civil society in the deliberate unsteadying of the PP; the unpacking of the Pravin Gordhan saga; the undone matter of the Rogue Unit and the CIEX; and profiling the people's Public Protector.” It says that “The first article will be ready by 10 June” and they will bill for Strategic Services from 7 June to 4 July in the amount of R120 000. On the next page they set out the key skill sets and experiences. Mr van der Merwe, if one reads this, it is either Professor Seepe or Ms Heller does not reflect any legal qualifications, correct?

Mr van der Merwe: Yeah, no legal skills, competencies or qualifications reflected here in the profiles, Chair.

Adv Bawa: Right. If you go down to 3160, we see the email where Ms Haller attaches the brief proposal on strategic communication services. If we go up, we see, on the 6th of June, the proposal is given to Mr Nyembe, as the Chief of Staff and Mr Mahlangu, who Members will recall was the then Acting CEO, are provided with a copy of the proposal. Mr Mahlangu was Acting CEO at this stage?

Mr van der Merwe: No, he was the CEO.

Adv Bawa: Was he the CEO? Okay. My apologies, Mr van der Merwe. Then if you go further up, from the Public Protector it says “COS”. Are we correct in understanding to be short for Chief of Staff?

Mr van der Merwe: Chief of Staff? That is correct, yes.

Adv Bawa: It says… The Public Protector writes “Cos, this should include Adv Ngobeni and please request cost-breakdown, not total, so all can be accommodated. Ask Theo advice cost per article, per interview arranged et cetera”.

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you see the timing, it is sent about five minutes after having received the proposal.

Mr van der Merwe: That is correct, Chair.

Adv Bawa: If you go to the bottom of page 3163, Mr Nyembe sends an email to Mr Seanego “PP suggested that this should include Adv Ngobeni and they should provide a cost breakdown cost per article, per interview arranged, et cetera. Not total, so all can be accommodated. Kindly advise what your view is of the above.” You see that Mr van der Merwe?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Mr van der Merwe, are you acquainted with Mr Ngobeni at all?

Mr van der Merwe: No, not personally. I just knew from the discussion in the Office that he was involved in some of the projects in the Office. A panel that was apparently advising the Public Protector on the side and as far as I know, he was not a legal practitioner that was on our panel of attorneys or one of our service providers.

Adv Bawa: Did the name of Ngobeni ever come up in any interactions between you and the Public Protector?

Mr van der Merwe: No, not in any interactions with the Public Protector… no.

Adv Bawa: With anybody else?

Mr van der Merwe: Yes. Well, as I said, colleagues… and we were discussing about the fact that one of my colleagues mentioned… we were aware of the fact that there was a so-called panel of advisors that were assisting the Public Protector – external people that were not contracted per se or employed by the Office as advisors or assistants to the Public Protector.

Adv Bawa: Okay. Can we go back to 3163? If you go to the top of 3163, you see that Mr Nyembe has a phone call with Mr Seanego to discuss the proposal. If you go to 3165, it says there… Mr Seanego then writes “Morning Mr Nyembe. Kim will speak to the Prof and revert with an itemised fee proposal and see if they can include Mr Ngobeni. I will revert as soon as I hear from her”. That accords with what the instruction was from the PP to them, from an earlier email, correct?

Mr van der Merwe: Yes, that is correct. To do a breakdown of the fees, not to just to quote a total amount of R120 000. Also to include Mr Ngobeni.

Adv Bawa: Can we go to page 3205… at the bottom of the page. We see that on the 13th of June, we get an email from Ms Haller, that says “Dear Theo” and she provides to Mr Seanego “as requested, please find a breakdown of our consultancy costs for strategic communication services for the period 7 June to 4 July. Paul will send these costs on the separate cover.” That is presumably Paul Ngobeni, correct?

Mr van der Merwe: Yes. Mr Ngobeni, Chair.

Adv Bawa: “The Professor and I would like to arrange a meeting with a team, at your soonest convenience to concretise next steps.” In fact, if you go up on that email list, the people to whom the email is sent, we see Mr. Ngobeni is included in the email list as Paul Ngobeni.

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you go up to the top, it says “Dear Kim, thank you for the mail and breakdown. Will seek guidance from the PP’s Office and revert.” If you go to page 3203, we see this breakdown – there is an explaining on the first page. I will take you to the last paragraph of that page. It says “Since the 7th (of) June 2019, we have provided advisory notes and directions crafted high impact and highly publicised articles, radio interviews and social media postings.” On the next page, the costing is broken down as per the PP’s request of an hourly rate at R1 850; Services at R120 000. “The rate is below the recommended government consultancy right signalling our commitment to this project.” We see an estimate for hours is put out for reading article, prep interview, set up social media activation, advisory notes and correspondence meetings.

Mr van der Merwe: That is correct.

Adv Bawa: “At the end of this period, we will do a reconsideration of the hours worked and the measuring impact”. Are they included in the database of consultants at the PP’s Office?

Mr van der Merwe: No. We checked with supply chain and we could not find any… either persons or consultancies in the name of Professor Seepe, Kim Heller, Mr Ngobeni or the entity in which some of the invoices were made out. So they were not consultancy service providers or on the database of consultancy service providers for the PPSA.

Adv Bawa: Right. Then if you see at 3206, there is an email which Mr Seanego writes to Mr Nyembe and the Communications Spokesperson, Mr Segalwe and he says “Good evening, gentlemen. I hope you are well. I had a telephone conversation with Professor Seepe today. He suggested that we meet sometime next week to jointly map the way forward. We also need to finalise the fees with Kim. I hope you read the emails she sent yesterday. No need for the PP to attend the meeting. Kindly advise which suits you.”

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then if we go to 3166, this is an email from Mr Ngobeni and it refers to advisory notes, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Just before we deal with it, could you go back to 24A2, which was the invoice we had earlier, and look at the entry for 11 and 12 June. We see “drafted legal opinion on controversy on PP social media and Section 7(9) Notices” is the entry by 11th and 12th June. Do you see that Mr van der Merwe?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Now, we go back to the email at page 3166. That is the same as the heading in the subject line.

Mr van der Merwe: Controversy on PP’s social media and Section 7(9) Notices. Yes, that is correct.

Adv Bawa: Essentially, Mr Ngobeni is providing them with an “advisory attached, regarding Section 7(9) Notices and the Public Protector’s use of social media in connection therewith. In connection there was, I concluded that both the use of social media platform in the public announcement of Section 7(9) notices regarding Gordhan were lawful and proper.”

Mr van der Merwe: Yes, that it what it says.

Adv Bawa: If you go to 3207, you see an email from the Public Protector saying: Thanks Adv Ngobeni, Legal and COS, please advise?

Mr van der Merwe: That is correct. For the benefit of the Committee, can I explain what this Section 7(9) Notice is or will we get to that?

Adv Bawa: We will get to it in a moment. If you go to page 3167… This is the advisory that is drafted, right? Mr van der Merwe. It has been a while since we have dealt with it. Could you just, very briefly, deal with the Section 7(9) Notice?

Mr van der Merwe: Yes. In terms of the Public Protector act when investigation is concluded, and before the Public Protector can… and there is a possibility of an adverse finding or person who is implicated, then Section 7(9) of the Public Protector Act requires the Public Protector to notify the person implicated or whose interests are affected by the outcome of the investigation, and to be given an opportunity to respond to the summary of the investigation and adverse findings are provided in a Notice, what we call… It is a confidential notice (and) it is issued to the specific persons and they are provided with an opportunity to respond, where after a finding and remedial action is taken in terms of Section 182 (1) (a) (b) of the Constitution.

Adv Bawa: If you go back to page 3167, on the advisory. We see from this that it arose because the Public Protector issued the Section 7(9) Notice to Minister Gordhan on a social medial platform, and the erstwhile Public Protector, Adv Madonsela, then responded criticising this, correct?

Mr van der Merwe: That is correct, yes… because it is, as I said, a confidential notice. We have had various leaks and it is one of the issues we take serious note of – to treat it confidentially.

Adv Bawa: So I do not want to take you through the entire note but there are two or three things I want to highlight to you at the bottom of page 3168, the last paragraph, because it touches on something that arose a few months ago in this Committee. It starts with the sentence “The Public Protector’s decision to issue provisional reports, serves the salutary purpose of providing an adequate notice to the affected party.” Then it says “at the minimum due process means that the citizen who will be affected by a Public Protector’s decision must be given advanced notice of what the Public Protector is investigating, and how the person is being implicated in the matter being investigated and how implication may be to the detriment of that person, or that an adverse finding pertaining to that person may result.”

Mr van der Merwe: Yes, that's exactly in accordance with the provisions of the act.

Adv Bawa: You would agree that that is a salutary approach, and it's in accordance with what you should be doing, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. Now, I raised this, Mr van der Merwe because when Mr van Loggerenberg was giving evidence, it was put to him that the position is that he was not the primary target of the investigation and hence he did not need to get such a Notice. What are your comments in respect of that?

Mr van der Merwe: That is in fact, one of the principles that the courts have been elaborating on, which is that there is no such thing as a primary target of the investigation. Any person whose interests are affected, or maybe adversely affected by the outcome of the investigation, is in terms of the audi alteram partem rule entitled to be informed not only of the finding, but also of remedial action. A number of the Public Protector’s reports have actually been set aside based on non-compliance with this provision.

Adv Bawa: Okay. In fact, on page 3169, at the top of the document provided by Adv Ngobeni – we are not going to read that section – but he essentially articulates that very basic rule of natural justice, correct?

Mr van der Merwe: That is correct. Although the PP refers to Mr Ngobeni as advocate, I think we have confirmed from our side that we could not find that he was indeed an advocate.

Adv Bawa: If we then turn (to) page 3174, at the bottom. The advice given in the very last paragraph, it says “Similarly there is currently no jurisprudence on the conflict between the right to dignity and the Public Protector’s duty to fulfil her mandate in terms of sections 181 and 182 of the Constitution. More importantly, that when it comes to remedies, it will be not short of dereliction of duty for the Public Protector to allow individuals who have been implicated in serious acts of maladministration, to publicly malign her, call her incompetent and vilify her as political tool for others without any effective response from her. She may be compelled at times, to refer to other investigations in order to refute accusations that she has ulterior motives or that she has targeted the prominent politician for political reasons. Gordhan’s public utterances and political antics invited the appropriate response he received from the Public Protector.” Do you recall what that public response was from the… what that response was from the Public Protector?

Mr van der Merwe: Not off hand. The Public Protector was basically explaining why the Section 7(9) Notice was publically made available as well.

Adv Bawa: That was the response that she made the seventh I noticed public. Lastly on this document, right at the bottom of page 3175, it says, in the last paragraph, “In dealing with a serial offender like Gordon, would tax the Public Protector’s findings on one case, it may be necessary to inform the public about the other serious matters still in the pipeline of investigation. Gordhan has no legitimate constitutional interest in maintaining a reputation or perpetuating status as a victim based on a false foundation.” Has the Office of the Public Protector, done several investigations of Minister Gordhan?

Mr van der Merwe: Yes, quite a number of investigations and reports issued against Mr Gordhan. This statement, and I am not sure if you are going to ask me, but in essence it means that he has no legitimate interest in maintaining a reputation, that means that it is as if it is pre-just his rights to be treated impartially, fairly and equitably, in terms of the constitutional imperatives are non-existent because he is seen as a serial offender.

Adv Bawa: Has the Office made any findings against Minister Gordhan that has been upheld by a court in final instance that you are aware of?

Mr van der Merwe: No. All the adverse findings have been set aside. The most recent report was unsubstantiated, so there are no current substantiated findings against Minister Gordhan.

Adv Bawa: This is Mr Seepe then writing to Mr Ngobeni, and he says “”Thank you very much for this considered opinion. It must be summarised to 800 or 1000 words.” Then he says, “More pressing right now is the reported story that the President has been implicated in the BOSASA method. It would help to have real facts before one launches into repeating what others have misinterpreted upon reading the statement. Some media have stated that the President has inadvertently misled parliament. A summary of the key findings will be helpful.” Do you see that Mr…?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Now the complaint that was lodged with the Public Protector, who lodged it… in respect of the President?

Mr van der Merwe: I think it was two Members… two political parties.

Adv Bawa: It was the DA and the EFF, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Chair, I am aware of your constraints. I'm going on to the next item. Would this be a good time to adjourn?

Chairperson: Yes. Please don't go on to the next item. We'll pause there. It's now 13:00 (and) we Members have to be in the House at 14:00 and they still need to go to lunch. We will pause there Members and resume tomorrow at 10. Thank you, Mr Neels van der Merwe, we will see you tomorrow at 10. The Inquiry is adjourned.


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