PP Inquiry day 38: Cornelius van der Merwe

Meeting report

[PMG draft report]

Chairperson: Welcome to our session as we continue today. I want to welcome the Members of the Committee, present here at M46, as well as on the virtual platform. I want to welcome the Public Protector at M46, here. I want to welcome and recognise the Evidence Leaders, here at M46; the entire support staff of the Committee; members of the media; members of the public in their various platforms. Thank you very much. We are today resuming with our leading of evidence done by Adv Bawa as we started yesterday. Before I continue, Mr Cornelius van der Merwe, are you on the platform?

Mr Cornelius van der Merwe: Good morning, Chair. Yes, I am. Good morning to you and the Members and the Public Protector and the team.

Chairperson: Thank you. You remain under oath. Thank you.

Mr van der Merwe: Thank you, Chair.

Chairperson: So it means our system is working. Before I go to Adv Bawa to continue... I have just received an email from the Public Protector, just a few minutes before we started and I am going to ask her to just indicate the issue she is raising in the email. Public Protector, I hand over to you.

Adv Busisiwe Mkhwebane: Thank you Chairperson, Hon Members, Evidence Leaders. I would like to just confirm and explain my position on the current position on the current course proceedings, for the record, Chairperson. In the letter to you, which I read out yesterday, I made a specific request that if you decide to proceed in the absence of my legal representatives of choice, you must give me reasons. That has not been done. I am still waiting for that. My attorney, yesterday asked to be excused since he had other commitments. You refused to excuse him, even though he had finished his assistance to the Committee. When it became clear that you had ruled to continue without representation, I asked to be excused and I was no longer participating. You refused as well to let me go. So I sat against my will and I felt as if I am just sitting here as a hostage. So I said yesterday again, Chairperson explaining that, I feel that sitting here, as if, and I am just giving an example, that as if I am in an abusive relationship. I am just to sit and listen and not view my issues. Yesterday, Mr Mileham indicated that I am disingenuous and I think that to me, I felt it is not… Well, I am not a Member of Parliament. You said it is not un-parliamentary but disingenuous is being dishonest. And I think I was expecting you, Chairperson, to request him to withdraw it. So allow me today… Again, if you still insist you proceed, you can proceed but I am still expecting the reasons. And I still feel that sitting here, I would not be doing anything. And again, I want to register that there was no scheduled sitting of the Committee today until you made an announcement to that effect yesterday afternoon. So we were only informed about the sitting on 1 November, actually, because I was coming just to report. And there is no programme which says the Committee is sitting today. So I think I just wanted to register that, Chairperson. Thank you.

Chairperson: Thank you, Public Protector – Adv Mkhwebane – for placing those issues on record. And I would have just indicated that we received your letter a few minutes ago. Let me just say this so that we remain to be clear. I am not going to repeat the ruling I made yesterday. The ruling of yesterday stands. There is no re-discussion and re-opening of that ruling. That ruling was… As we have started, we continue leading evidence as Mr van der Merwe, led by Adv Bawa. Today, we are going to continue to complete that. You asked to be excused and I denied… I declined that. It is in your best interest for your own benefits to be here as the Public Protector, South Africa, who accounts to the National Assembly. This is the work of the National Assembly. It is an exercise in accountability. I still maintain that you are going to be given no leave of absence for these proceedings, as a Head of Chapter Nine institution accounting to this body. And so that ruling is repeated today, that you will not be excused participating and sitting in this hearing as we lead evidence. In relation to your attorney of record, Seanego Attorneys… and I would have indicated yesterday as well, they were not given any leave of absence nor excused and they were with us until 13:00. I expect them to be here today. And again, today, there is no leave of absence given to them – they are not excused. If they are absent today, they would have to be a reason why and they must have to explain why they will be absent. And so that takes care, for example… And I would have communicated this even after the Committee, that they were here as your attorney of record and therefore, as the Constitutional Court would have indicated, they are your legal representatives and practitioners. The issue is not having a senior counsel here in order for you to fulfill that your legal reps are here. I expect them to be here today. If they take a particular choice not to be here that will have to be explained. So today, there is an expectation that Seanego is on the platform, as we concluded the meeting yesterday. And so the reason would have been given that you… because everything else that would have started yesterday, even the leading of evidence is already on record. And when there is going to be cross-examination, that will be available as we would show the programme later on, as to when that that would happen. And so we are under no obligation to pause or postpone this. There is no legal impediment for us not to proceed with our hearing. So I want to urge you… I would have attended to the matter of the disingenuous statement, and I indicated that I would not ask a Member to withdraw that, which I still maintain was not un-parliamentary to say that. I would have spoken to him to refrain from making an example, that … of the GBV example, that you are here almost like in an abusive relationship. And I addressed that as well. I do not want to repeat; I indicated the kind of ruling that I made yesterday. So I just wanted to remain focus on that and repeat that the ruling stands. And as of today, there is nothing of new evidence in front of me, as a Chair, that then indicates that we need to revisit that and therefore take a different decision. So thank you for that. And I think that is my ruling. That is where it will stand, so we are able to have the Witness on stand continuing. The plan is that Witness must conclude today. Adv Bawa?

Adv Nazreen Bawa: Good morning, Chair. Good morning everybody. Mr van der Merwe, are you… I think he is with us on the platform, Chair.

Mr van der Merwe: Good morning, again, Chair and Members and Advocate. Yes, I am trying to testify without the aid of the earphones and I just wanted to confirm if the audibility has improved, as a first point of order?

Chairperson: We can hear you properly. We will always remind you when you fade or when you look the other way. Maybe just before you proceed, Ms Ebrahim, is there something that you would like to raise?

Ms Fatima Ebrahim: Thank you Chair, I just wanted to remind Mr van der Merwe that he is still under oath, and that you will continue to be under oath, even if there is a delay in the process for cross-examination questions by Members. Thank you, Chair.

Chairperson: You got that?

Mr van der Merwe: Yes, thank you Chair.

Chairperson: Thank you. Adv Bawa, I am asking you to proceed. You started yesterday, with some very long pauses – I hope that you will get rid of them today. Proceed.

Adv Bawa: We have tried to sort out our electronics. Good morning, Mr van der Merwe. If I could just take a few minutes to recap.

Mr van der Merwe: Yes. Thank you, Chair. There are also three issues that I just want to clarify of something that occurred to me on the evidence of yesterday, if you will allow me Chair?

Adv Bawa: Sure, there is also one mistake that I made, which I will fix, but you can go first Mr van der Merwe.

Mr van der Merwe: You asked me to confirm the date of my appointment as Senior Manager: Legal Services and that was actually 1 August this year 2022, following a recruitment process that started well earlier in the year. The second issue was the invoice. I was under the impression that it was with… There were about 13 bundles of documents that we couriered up and down between the Committee and our office but the invoice that we were reflecting yesterday with the yellow markings was actually retrieved from the Mimecast Cloud Service and not as part of that document. Then the third issue was you asked me about whether the Public Protector ever engaged me on Mr Ngobeni and I said ‘No, not in the context of this work’. The project was and the work was facilitated with Professor Seepe and Kim Haller but there was a situation afterwards, a while back, when PP asked me and a number of colleagues to get a file that will… for a matter that was handled in Adv Madonsela’s time. It led to a report that dealt with the appointment of Mr Ngobeni, then as a special advisor, and it was under the guise of something about a fugitive from justice. The PP asked us to get the actual file. It was quite urgent. When we could not file, I asked for details and then it came out that it related to Mr Ngobeni. There was a letter in the file from the Minister of Justice. The PP wanted us to access and to provide to her and it was apparently for an application either to be allowed or to be recognised as a legal practitioner by Mr Ngobeni. I just wanted to clarify, that was the only other event that we engaged on the issue of Mr Ngobeni. I could not get the file and I was unable to trace the email. Now, I cannot remember the heading of the topic. Thank you, Chair.

Chairperson: Thank you, Mr van der Merwe. Before Adv Bawa, I just want to acknowledge, Mr Theo Seanego, that you are using another colleague's laptop. We note that. Thank you.

Adv Bawa: Mr van der Merwe, you took care of the mistake I made yesterday because I thought that I said August 2020 yesterday, as opposed to August 2022. If I just took a minute to recap where we were at yesterday. We were at the invoice of page 3382 which dealt with a tax invoice which Seanego Inc had rendered to which was attached an invoice of R390 000. And that invoice of R390 000, I should have pointed out something to the Committee yesterday – it is attached to your supplementary affidavit at page 4185.52. If you could just go there? Go to the bottom of page 4185.52 of your supplementary affidavit. So we see from there, it says “invoice number SS-KH 1-19 Wekunene BS (Pty) Ltd equal to R120 000. You see that Mr van der Merwe?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then it says total billing rate ‘(R2000) X Billable Hrs (135.00).’ If we tally the amount of hours on the invoice, you come to 135 times R2000, you get R270 000. Do you know this entity called Wekunene BS (Pty) Ltd?

Mr Van der Merwe: No. Again, I checked with our supply chain and it is not on our database of consultants, or service providers.

Adv Bawa: Okay. We addressed… We understood when we saw that ‘SS’ stood for Sipho Seepe and the ‘KH’ stood for Kim Heller, so we addressed correspondence to them. And if we go to bundle I page 1951, it is the response we received from Professor Seepe. If we go to the bottom paragraphs at… It is a letter in which they deal with a number of issues but what they confirm in paragraph three… It is a letter dated 26 September 2022, and essentially they say the Committee has access to the proposal that was presented to our office in 2018. We went through the proposal, correct, Mr van der Merwe… yesterday?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: For reasons that have nothing to do with the incompetence, that proposal was not concluded. That is the correct letter. I am reading at number three. And then it goes on and says “Subsequently in mid-2019 and for a period of three months, strategic communication services were provided on an ad-hoc part-time basis to Adv Paul Ngobeni, who was assisting Seanego Attorneys on matters of legal services and opinions. No services were provided beyond the three months period.” And if we turn the page, it says “the invoices to support services rendered were duly submitted through Wekunene business services, registered in 2016”. Mr van der Merwe, it was not created for the services of the Public Protector. If you recall yesterday, when we read the email from Ms Heller to Ephraim Nkabinde, which was on page 3143, the very last sentence said “A registered entity is in place”, do you recall that, Mr van der Merwe?

Mr van der Merwe: Yes, correct. The last page, in this regard, the registered entity is in place.

Adv Bawa: Then it says there “Mr Hlatshwayo is the sole director. My relationship with Mr Hlatshwayo goes far in 2019.” If we turn the page, there is a statement of fact. If we go to page 195. The next page is a statement of fact, which they put out into the media domain on 11 September. And I am not going to repeat what it said but at paragraph five it says “at no time was any money paid to us by the Office of the Public Protector.” Right? And then we go to Bundle F, “There was any further correspondence from us and a follow up because we requested the invoices that had been provided under the name of Wekunene Business Services” which is at Bundle F. Item 168, page 3679, which is a letter of 24 October, in which in the first paragraph, “It was confirmed that we provided our services, this time to Mr Paul Ngobeni, who was contracted by the Office of the Public Protector as opposed to advocate.” And then if you go down at the bottom, on the 2nd, it says “Second in providing our services to a client, our invoices have details of what we consider to be fair value. It is the responsibility of the client to determine whether what is bold is commensurate to services provided. Third, while we have been in conversation with the Office of the Public Protector as far back as 2018, regarding possible provision of strategic communication services, our proposal was not successful. We subsequently in the summer services through Mr Ngobeni’s consultancy for a brief period of three months in 2019” and then “as regards the specifics that fall within the engagement with Mr Ngobeni consultancy”. Number one, they attach the invoices. They tell us there are notes and recordings. They do not have minutes and then they say in three “The invoices submitted to Mr Ngobeni provide details of breakdown of rates, works and hours.” And in four they say “we had no direct working relationship with Theo Seanego or Seanego Attorneys Inc. except for the email communication, recording regarding meetings amongst others. We were engaged by Mr Ngobeni” and they attach a tax clearance and deal with procurement issues. In the very last sentence at the bottom, “It is unclear to us are any subsequent engagements with a client outside the stated three months period of rendering the service is of relevance to the inquiry”. If turn the page… Mr van der Merwe, are you aware of them having rendered any service at all to the Public Protector’s Office of the Public Protector?

Mr van der Merwe: Are we talking about Professor Seepe and Kim Heller?

Adv Bawa: That is correct. Do you have personal knowledge and opinion of it?

Mr van der Merwe: No, not as a direct engagement. Not to my knowledge.

Adv Bawa: Right. If we then turn to the invoice and the invoice was provided to us, we see that there is no name as to who the invoice is rendered to on the invoice. But if you go down on the invoice you see the references ‘SS-KH 1-19’, which is same reference as on the invoice on the Ngobeni Consultancy invoice, which is attached to the Seanego invoice… at all. Then we see the hours and the work that was done to the tune of R120 000 for 65 hours. Mr van der Merwe you had an opportunity yesterday to look at the proposal put forward by Ms Heller and Professor Seepe to the Public Protector. Do the rate and the hours correspond to what was contained in that proposal?

Mr van der Merwe: Yes, that was exactly what they proposed. In the breakdown as well, when they were requested to provide charity – it is exactly as per this invoice.

Adv Bawa: And it is for the period, this one, for 7 June to 4 July. If we turn the page and we see the second invoice, we see it is for a total of R99 000 and there is a breakdown of hours for reading, research, articles writing publications – they put out three articles – 11 hours of interviews on radio and TV scheduling including ETV, SABC, SAFM, nine hours of social media; narrative building and activation; and then briefing notes and lobbying three and a half hours; five and a half hours meeting in correspondence; and they indicate that a summary and impact report will be provided at the next meeting with the Office. Are you aware of any summary or Impact Report being provided to the Management Committee at the Office of the Public Protector?

Mr van der Merwe: No. As I said, this project was not reflected in any of our decision registers, or any of our feedback reports, either from communications or from any of the other offices in the Public Protector. So no.

Adv Bawa: If we then turn to where we left off yesterday, which was on page 3208 of Bundle F, item 161 and you see this is an email dated 19 June 2019, from Mr Ngobeni to Mr Seanego, the late Mr Nyembe, Ms Heller and Professor Seepe. Do you see that?

Mr van der Merwe: That is correct, yes.

Adv Bawa: The subject heading says “Judge Tolmay’s proposal to stay matters until ConCourt decides on cost.” Do you know what that relates to, Mr van der Merwe?

Mr van der Merwe: Yes. There was a ruling on the merits of the matter by Judge Tolmay but she did not want to rule because the issue of costs, personal costs, were going to the ConCourt as a subject of litigation in the ConCourt. There was a proposal that the judge would not rule on the issue of costs in the High Court matter until… so there was a ruling by the ConCourt on the issue of personal costs.

Adv Bawa: Then Mr Ngobeni renders advice that says “I propose you reject the judge's proposal to defer the appeal until the ConCourt rules on costs.” Then he says about six lines down, “There was no compelling reason for a decision it was a purely political carefully calibrated move to assist the DA and CASAC. There is a way she can mitigate the prejudice to Adv Mkhwebane. The judge can rescind the judgment and then wait until the ConCourt rules on the other issues, including costs. She took a gamble and now she pretends to care. I suggest that you reject her approach. Thanks.” Was this proposal as far as you were aware, ever put before the Management Committee?

Mr van der Merwe: No. I do not have any recollection that was ever proposed to or considered by the Management Committee.

Adv Bawa: Okay. If we go to the next page, we see the Public Protector responds and says “Thanks advocate agreed with the proposal”. If we proceed to the next page at 3180, this is an email dated the 13th of June 2019, where Mr Ngobeni writes an email that says “Should we challenge the BUSA petition?” Now, BUSA stands for Business Unity South Africa?

Mr van der Merwe: That is correct.

Adv Bawa: Right, and as I read the email, they had put in a petition to the National Assembly for the removal of the Public Protector. Do you recall that, Mr van der Merwe?

Mr van der Merwe: Yes, that it correct but it was to the Speaker.

Adv Bawa: To the Speaker? That is correct. According to the email, this email, it was a non-compliant petition. If we got to 3182, we see Professor Seepe responding to the email to Mr Ngobeni, Mr Seanego, and the Chief of Staff and agrees with Mr Ngobeni. If we go to 3184, we see the name is, I think it is deleted because it is just the email address, but it is from Ms Heller and she says “Agreed Paul, can you draft an initial letter which the team can review prior to distribution?”

Mr van der Merwe: That is correct.

Adv Bawa: Do you have a copy, Mr van der Merwe that the ‘from’ is not deleted?

Mr van der Merwe: Yes, it is from Ms Heller.

Adv Bawa: Right. And she asks “Paul can you draft an initial letter which the team can review prior to distribution?” Correct?

Mr van der Merwe: That is correct.

Adv Bawa: If we go to 3186, we see that Mr Ngobeni distributes it…It is addressed to the Hon Speaker and it says “Representations in opposition to incompetent, misguided and misinformed calls from BUSA to institute removal proceedings in respect of the Public Protector, Miss Busisiwe Mkhwebane”. And number one reads “background to BLF”. Mr van der Merwe, do you know what BLF stands for?

Mr van der Merwe: Yes. In other correspondence where we encountered them, it stands for Black First, Land First. It was not an organisation or an NGO.

Adv Bawa: And if we go to the top of this email, Mr Ngobeni writes “Dear colleagues, ideally the letter should be sent by an NGO or activist outfit, it is not a good idea to send it on the Office of Public Protector. Please think it over and correct whatever errors, spelling, grammar and substantive. It should read as follows…” Do you know, Mr van der Merwe, whether this letter had ever been sent?

Mr van der Merwe: No, we tried to check… well, it was not sent by our Office. I do not think we were able to get any record of it being sent to the Speaker’s Office. It was not in the public domain.

Adv Bawa: And at 3193, if we down, we see Mr Seepe saying “This is an excellent letter. Clearly BUSA has displayed not only its legal incompetence but also glaring ignorance of the fact. Importantly, given that the stone throwers have dressed themselves in glory, this petition is self-serving. We will be guided by colleagues on the forward.”

Mr van der Merwe: That is correct.

Adv Bawa: If I take you back to the fee invoice by the consultancy, which is attached to 24 of your opinion, and we go up to the line item at 12 to 13 June 2019. We see drafted correspondence urging challenge to the BUSA self-styled petition; drafted letter to the Speaker, nine hours. While I am there, Mr van der Merwe, the next item says 13 June 2019, drafted legal opinion on Waterkloof and Zondo Commission. Do you know what that related to?

Mr van der Merwe: Yes, we had a complaint about the Gupta landing of the plane at the Waterkloof Airforce Base and there was an issue following the State Capture, there was a request for information or records from the Zondo Commission. And I can only imagine that they were asked for services in that regard. It was two matters then that was dealt with internally by the Office.

Adv Bawa: Okay. If I take you back to the bundle at page 3220, it is an email from Mr Ngobeni to the PP, saying “Attached, please find the rushed legal opinion. Time is of the essence so I could not be delivering the message please let me know if anything is amidst or left unanswered. In my view, the Public Protector must cooperate with the Zondo Commission, but must explicitly inform the Commission that it is not answerable to the Executive and that the Public Protector is not a Department of State or administration, and neither can it be said to be part of the national, provincial or local spheres of government”. Mr van der Merwe, was there any ever question that the Office of the Public Protector should or should not operate with the Zondo Commission?

Mr van der Merwe: No. The internal thing was that the Zondo Commission was the result of the Public Protector’s remedial action in the State of Capture Report. If anything, it was an extension of the Public Protector’s investigation. So any suggestion or any hesitation that we should not cooperate with be actually undermining our own work and our own investigation in the State of Capture matter.

Adv Bawa: If you go up, we see the response from the Public Protector says “legal opinion well received and agreed with.” So if we turn the page to 3211, this is the legal opinion. And the first question is “Our consultant seeks our advice on a series of questions relating to the finalised Public Protector investigation into the Waterkloof landing. The first straightforward issues whether the Public Protector is legally accountable to the state capture commission about the investigations, her final report and actions closing or dismissing any investigation. A related question is whether the State Capture Commission has any review powers over a final decision of the Public Protector and whether the said final decision is only reviewable by court of law.” Those seem to be the issues that came up and on the opinion that was rendered. If you go to page 3219, the opinion is signed or submitted by Paul Ngobeni. Sorry, Mr van der Merwe, let us take a step back. Was the same questions considered internally by the office as well?

Mr van der Merwe: I was not part of the Waterkloof investigation or the State of Capture Report. I had just known that the late Mr Madiba and myself because there was an issue of access to information and we were instructed to provide the State of Capture Commission with certain records. I am not sure if that was in pursuance to whether there was a decision taken in that regard by the Office but we did cooperate.

Adv Bawa: Then if we turn to page 3222 at the bottom we see that there is correspondence “please find the attached correspondence for the attention of the Public Protector Adv Busisiwe Mkhwebane” Who is… and it comes from Webber Wentzel, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If we go scrolling up, we see that the email is then provided by... We see that Ephraim Nkabinde then forwards the email on to the Public Protector and the Chief of Staff. Who is Rodney Mataboge?

Mr van der Merwe: It is one of the Chief Investigators: Senior Manager Investigations at Head Office.

Adv Bawa: If we go further up, there is a request from the PP to Muntu Sithole “Please request Seanego to respond or rebut this. I will not withdraw or apologise.”

Mr van der Merwe: That is correct, yes.

Adv Bawa: Further up, Mr Sithole responds and says “Noted, PP”. And then we go further up and we see the heading of Adv Mkhwebane’s email, it says “Subject: Urgent demand publication of false and defamatory statements regarding Mr Ivan Pillay and van Loggerenberg”, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then the email deals with “There is proof of threats to arrest for money laundering, threats to poison me and actually my protector has been poisoned. We have proof from the doctors. My car tampered with. Witnesses who fear for their lives confirmed two people who died when they spoke about the rogue unit, Phiyega arrested for rhino poaching after speaking out (setup), Mokoena charged for non-existent tender irregularity and frustrated until she resigned”. Do you know what this related to?

Mr van der Merwe: No, only one of the incidents I am aware of and that is the issue of the… I suspect these were issues that the Public Protector raised as making her unsafe or related to this matter of the rogue unit. But I am only aware of the one incident about protector, the alleged poisoning of one of the protectors.

Adv Bawa: And what are you aware of?

Mr van der Merwe: We were recently requested to deal with the issue of the Public Protector’s accommodation and in the process, and I do not want to reveal information about it, but in the course of that we looked at the issue of threats assessments being done and there was an issue that was raised about one of the risks or threats that was identified was an incident where one of the protector’s fell ill. According to the report that we received or that we had insight into from the protection services, he was interviewed and it was actually that (they) did not find any poisonous substance in his body. It related to issue of overindulgence in some food, Kentucky or something like that, and not related to an incident of actual poisoning or threat. That was the police's report on the matter. They did an interview with the protector and that was his explanation.

Adv Bawa: Okay. If we then turn to the annexure 2482, going back to the invoice 4185.52, and you look at the top entry, it says “Receive urgent demand publication of false defamatory statements, RE: Pillay and van Loggerenberg, from Webber Wentzel, research Sikhakhane Report, Kroen and Nugent reports and research defamation law. Read PP’s address to sheriffs… four hours.” Right?

Mr van der Merwe: That is correct.

Adv Bawa: Right. You know that the Sikhakhane report, the Kroen and Nugent reports, relates to the investigation into the alleged Rogue Unit, correct?

Mr van der Merwe: The SARS matter, yes.

Adv Bawa: Let us call it the SARS matter as we proceed. Then we turn to page 3226 on F161. We see on 30 June, Ms Heller sends an email “Please find the attached for tabling at tomorrow's meeting an overview of strategic communication activities over the past three weeks and some recommendations on the next step.” And she sends this off to Mr Seanego, the Public Protector and included in this email is Mr Seepe, the late CEO, Mr Nyembe but she includes Mr Segalwe, who is the Spokesperson, correct?

Mr van der Merwe: That is correct, yeah. It was the late COO, the Chief of Staff, Mr Nyembe.

Adv Bawa: Included in this mail is the CEO, Vussy Mahlangu and Mr Muntu Sithole?

Mr van der Merwe: That is correct.

Adv Bawa: If we go to page 3228, we see that those who were in the email received the feedback report that she provided and it details the strategic communication focus over the past three weeks, is there. She explains in this report, if you go to paragraph at the bottom “our work”… just go down to the bottom. The last paragraph “Our work has been orientated around high impact initiatives and interventions that influence and shape desired outcomes. We have sought and secured prime space and audience on radio and television and in newspapers. We have also pursued and delivered a high-presence social media campaign. Our media interventions have been coupled with advisory notes to the office and briefing of key influences behind the scenes. We believe we have managed to cause some disruption of the master narrative and succeeded in spearheading multiple calls by others for tax on the Public Protector to cease.” Did you see any of these advisory notes that was provided to the Office?

Mr van der Merwe: No, I was just thinking that this report… none of these feedbacks came through the media reports. We do receive on reports from the communications unit, MANCO and also at the PP’s Dashboard. This was not reflected in any of those reports.

Adv Bawa: Right. If we go to the next page, we see there is a R120 000 at the R1 850 that was rendered into the invoice to Mr Ngobeni, which is the 65 strategic hours. And if we continue in the report, page three, they detail what the media specific activities are: three opinion pieces, radio interviews, one television interview, nine social media activations over 250 000 impressions. Do you know what impressions are Mr van der Merwe?

Mr van der Merwe: No, I would have to speculate. I do not know, Chair.

Adv Bawa: I am not sure but my children tell me every time you make a hit on one of the social media you leave an impression but let us leave that for a moment. At 3232, the next page “We are looking into the feasibility of public televised colloquium on the deliberate manufacture of discontent and partisan Eyes Wide Shut approach of media to the truth by advocating decisive legal action against those who trade in propaganda without evidence and harm, the reputation and standing of the Public Protector is recommended.” And if you go to the very last line on the page we see that it was submitted by Professor Sipho Seepe and Kim Haller, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: I want to back to page 3225. We see an email from somebody called Salvation Mokgatle. Do you know who that is, Mr van der Merwe?

Mr van der Merwe: Yes, he is in communications. It is one of our staff members.

Adv Bawa: Right. And he sends what is called a ‘media monitoring report’ on the 26th of June 2019. Do you know what that is?

Mr van der Merwe: Yes, communications, scanning media, the public space in terms of media reports and statements And so on. And then when they pick up something that relates to the Public Protector or even matters that may serve as an initiative for own initiative investigations…matters of public interest. Then they distributed to the management and leadership.

Adv Bawa: Okay. And if we go to the top of the documents, to the next email, we see… Chair, I am in your hands. I think the Public Protector has probably taken a bathroom break.

Chairperson: Continue.

Adv Bawa: If you see on the middle of the page, there is an email from the Public Protector that says “Good afternoon, please rebut the City Press article”. Would it…?

Mr van der Merwe: That is correct.

Adv Bawa: And would your media monitoring report that comes from your own communications department have included any articles that deals with the Public Protector?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Then if we go to the top of the email, it says “Dear Adv Ngobeni” and it comes from Kim Haller – and we see again that Kim Haller has included the Public Protector, Mr Segalwe, Mr Nyembe and Mr Sithole as well as Mr Seanego in this email – and it says “Dear Adv Mkhwebane. I have written a piece that will be published this week, which will help in part to respond to the specific article. Further to this article, we are looking at a specific CIEX one for next week. The piece written by the Professor last week, also addressed some of the misrepresentations found in the City Press piece And so many others across the mainstream media. The Professor’s article has helped to shift the agenda and has been very well read and widely distributed. We are meeting with the team on Monday, and will share an impact as well as summit upcoming communication initiatives.” And we see it signed by “Kind regards, Kim.” Correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And we then go to page 3233. We see Mr Ngobeni on 1 July 2019. What does the heading read Mr van der Merwe?

Mr van der Merwe: “Advisory opinion on urgent need to litigate matter of Section 194 removal”.

Adv Bawa: Right. And then he says “Attached please find the discussion document I prepared in anticipation of our meeting. Unfortunately, I could not make it due to transportation issues. I firmly hold the view that the only solution to the incessant political attacks on the Public Protector by those MPs, politicians and their allies being investigated or found guilty of corrupt and unethical behaviour is a declaratory action in court and an interdict which would effectively bring to an end the cycle of retaliatory actions against the Public Protector and put an end to the abuse of the process of Parliament. The PP or at least her effectiveness will not survive the current lynch mob frenzy thing being seemingly endorsed by the speaker. Please consider thanks.” Are you aware of a discussion on the need to litigate taking place at the Office of the Public Protector?

Mr van der Merwe: Not on the levels that I was engaging in, no. Such a strategy was not discussed internally as far as I am aware of.

Adv Bawa: If we go up on the email, it says, from the Public Protector “Thanks advocate. Noted”

Mr van der Merwe: That is correct.

Adv Bawa: And if you turn the page, you see the opinion is provided on page 3235.

Mr van der Merwe: Yes.

Adv Bawa: And it runs for several pages. Now, Mr van der Merwe, I just want to interrupt the flow to throw your attention to something which had happened the previous year, which would be in a different bundle. And if we could just turn, actually, let me do this… I am not going to take Mr van der Merwe out of the flow but I want the Committee to just note this, because at some point during Mr van der Merwe’s evidence… I am going to revert to what the Bills were in 2018 and it touches on this opinion as well. Right? So instead of me disrupting the flow, I am going to continue. And it touches on this opinion as well, right? Just tell me what that page was again?

Mr van der Merwe: 3235.

Adv Bawa: The opinion carries on until 3249. We know that this note is not signed, and the conclusion says “No amount of peer work undertaken on the matter will ever overcome to determined insidious efforts of the well resource conflict running scared. Only a court action for declaratory relief directed at parliament would put an end to the process.”

Mr van der Merwe: That is correct.

Adv Bawa: If we go then go back to the annexure to your affidavit at 24 A1 and we see the next entry was the correspondence on Judge Tolmay’s proposal which was two hours, which I took you through. And then from 30 June to 1 July, “research and drafted advisory opinion on urgent needs to litigate matters was spent 13 hours.” Right?

Mr van der Merwe: Yes.

Adv Bawa: Then, so that we do not come back here for the next one, you will see on 2 July, “read correspondence from Accountability Now, regarding holding the Public Protector to account, research allegations on the Absa lifeboat matter in which Parliament is ordered to change the mandate of the Reserve Bank, a matter about which AN had allegedly not complained. Wrote advisory on need to write to speak about referrals of PP removal matter to a committee” and that is four hours. So if we go Bundle F at 3250, we go to the email which Adv Paul Hoffman sends on 2 July. Do you know who Adv Paul Hoffman is… from which organisation?

Mr van der Merwe: Yes. He is from… the Director of Accountability Now.

Adv Bawa: Right. And he was initially a complainant in the Absa/CIEX Matter, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: He addresses correspondence to the Parliament and he includes the Public Protector in this correspondence, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If we go to the top of the email, we see that the Public Protector sends this to Mr Ngobeni, Mr Seanego, Mr Sithole and Mr Nyembe, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: We see on page 3252, Mr Ngobeni responds and says: Herewith is the letter to the Speaker. It is deliberately detailed and long because we need to put an end to the abuse of the parliamentary process. The Speaker is the gatekeeper under the rules of Parliament and the Constitution. We are asking for a rescission of the decision to refer the matter to a committee as this was done in violation of the Public Protector’s due process rights. We leave open room for constructive engagement with the Speaker and to assist her in putting an end to the Section 194 Process. Thank you.” We see that the author of the letter is Mr Ngobeni, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you turn the page we see at the bottom, an email from Mr Hoffman and it is a letter to the Legal Practice Council.

Mr van der Merwe: Yes.

Adv Bawa: The Public Protector is included in this email and it is headed “Adv Busisiwe Mkhwebane“.

Mr van der Merwe: Yes.

Adv Bawa: And he is asking the Legal Practice Council to take note of the findings of the Constitutional Court in the matter between the Public Protector and the South African Reserve Bank, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: If you go up to the top, we will see Mr Ngobeni responds to the Public Protector, Mr Sithole, Mr Segalwe… Who is Alfred Mhlongo again, just remind me?

Mr van der Merwe: He was the Senior Manager: Legal Services at the time.

Adv Bawa: And he says “This is actually rubbish. We must ask for reconsideration. Failure to record the Public Protector’s decisional independence exactly equal to that afforded the judiciary effectively nullifies the provisions of Section 181 of the Constitution. The PP’s ability to function without fear is destroyed, and she must view every case as potential financially ruinous that my bankrupt her. The PP must request reconstitution in the ConCourt to revisit the practical effects of the judgments on her work. The four acting judges will be gone, and regular judges including Madlanga, Zondo et cetera, will deal with the matter. As for Paul Hoffman, he is just giving us a chance to revive a case that they swept under the rug by the GCB after they decided he was misrepresented in court for the striking of an application. He benefited from that favour and now he is making noise. We shall vigorously deal with his nonsense.” Do you know what court case is being referred to, Mr van der Merwe? The ConCourt decision in respect of the private cost order, or the personal cost order against the Public Protector?

Mr van der Merwe: Yes, it was decision of the confirmation of the Constitutional Court on the personal cost owed against the Public Protector, where I think the Chief Justice was in the minority.

Adv Bawa: Right. If we go to page 3271, we see Mr Ngobeni then addresses a response and in this response I note that Mr Sithole, unlike some of the others is now not included. But he says “I suggest that we develop standard responses for lunatics like Hoffman and not waste much time trying to be reasonable with him. We know the evil agenda”. And there is then a response crafted on the Hoffman Inquiry, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then, as I already showed you, that was the four hours that was attributed in the invoice. And then we go to page 3273. We must go down. The very first email is actually a communication which starts on page 3274. My apologies. We see an email from a gentleman called Dumisani Nhlapo. Do you know who that is?

Mr van der Merwe: I only noted from this email that he was involved in the Masiphumelele Community. I personally do not have any knowledge of him.

Adv Bawa: He then embarks on a communication, if you go up, with Mr Hoffman who then inquires from you “how much help have you really had from the Public Protector’s Office?” He responds to that email. The Public Protector then forwards this email on to people within the office and we see Mr Sithole responds “This is really humbling. It deserves to be spread as wide as possible.” Correct?

Mr van der Merwe: That is correct.

Adv Bawa: Then if we go to page 3276, we see Mr Mahlangu indicates “Good evening Chief of Staff” and Mr Sithole is included, Mr Nyembe is included. He says “I have just spoken to Mr Sithole and he undertook to respond to Hoffman. I am forwarding the draft piece below prepared by Adv Ngobeni to assist him in doing so. He said he will copy us.”

Mr van der Merwe: That is correct.

Adv Bawa: Are you aware of a response that had gone out from the Office?

Mr van der Merwe: Not that I am aware of.

Adv Bawa: Then if we go to 3255, we see there is draft answers to Sunday Times questions. Do you see that?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Is it so that you would, from time to time, get questions posed to the Office from the media that you would respond to?

Mr van der Merwe: Yes. So all the time the communications, especially when Mr Segalwe was here, would distribute questions to people that he think might have relevant information and then we would be required or requested to provide input to the questions. These days it is done…

Adv Bawa: Sorry, Mr van der Merwe, I interrupted you.

Mr van der Merwe: Sorry. No, these days it is easier. It is done not but via (a) WhatsApp communications interest group within the Office.

Adv Bawa: And so here we see on 2 August, Mr Ngobeni responds by providing the answers. And if you go up, you see the Public Protector responds and says “Brilliant response, Adv.” Correct?

Mr van der Merwe: That is correct.

Adv Bawa: There is just one thing I want to draw to your attention in her response, which is the answer in the last section… No, it is fine. Let us go to 3262. Then we go to the bottom. It is Mr Seanego saying “Good morning Mr Mhlongo. I seem to remember a conversation between you and I where you mentioned that we are appealing Judge Potterill’s judgment. I also believe you mentioned that we need to meet with the EFF’s attorneys to align our strategies. Kindly advise if I can go ahead and arrange a meeting with the EFF’s attorneys.” Mr van der Merwe, it says case number 48521/19.

Mr van der Merwe: Yes.

Adv Bawa: That is the case dealing with the SARS Unit, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: The complaint in that matter had been made by Mr Floyd Shivambu, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Would it ordinarily be the case for the Public Protector’s Office to align its strategies with the attorneys of a political party?

Mr van der Merwe: Not in my short experience in Legal Services and in terms of our litigation approach. And I would also imagine that this might have an impact on our independence and impartiality to be aligned to (a) specific party's legal strategies.

Adv Bawa: Then if you move up on the same chain of emails we see it goes to the Chief of Staff as well as to the Public Protector and Mr Mhlongo responds and says “Good morning Mr Seanego. I confirm my instructions that the Public Protector is appealing the judgment. We will advise you as discussed telephonically this morning of the counsel we will be utilising for the appeal. In the interim, kindly proceed with setting up the meeting. If necessary they can have their counsel present depending on who we have on brief we can do the same. I had a brief discussion with Mr Sithole during our meeting this morning. We are both leaning towards Mpofu, SC but we will confirm with COS and revert.”

Mr van der Merwe: That is correct.

Adv Bawa: We then turn to page 3264.

Ms D Dlakude (ANC): What is that?

Chairperson: I do not know what that is.

Ms Dlakude: I suspect it is the NCOP bells.

Chairperson: I can see there, the machine… The red thing. ICT, is that part of your system doing that? It is not yours? Okay. Hon Dlakude says that is the NCOP bells. I hope they stop because we do not need bells here. We are just a few minutes away from break. Please continue, Adv Bawa. Sorry for that, everybody.

Adv Bawa: On page 3624, it is then an email from Mr Seanego “I hope you are well. Further to your mail on Friday 2 August, kindly advise on the counsel you would like to brief for the appeal. Would you like the new counsel to work on his own or to work with Adv Masuku, SC?” Mr van der Merwe, in the court below, in the High Court matter before the appeal, Adv Masuku was the counsel in the matter, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If we go to the bottom of 3263, it says “Good morning Mr Seanego”, from Mr Mhlongo, “I have just spoken to the COS and he has confirmed with the PP that we are retaining Adv Masuku, SC in the matter. He accordingly has to deal with three aspects of the matter”. Let us go down and see what those three aspects are. “That is the application for leave to appeal in respect of the urgent interdict from Judge Potterill; the review application in the main proceedings; the interlocutory applications from the Minister of State Security to exclude the intelligence reports from forming part of the court processes. We will revert to you regarding a junior for him, given Adv Mankge’s recusal, during her acting stint on the bench. Kindly do not hesitate to contact me.” Mr van der Merwe, that intelligence report is the IGI Report that has already been discussed in this Committee, correct?

Mr van der Merwe: That is correct.

Adv Bawa: The Public Protector then sends an email off a few minutes later that confirms “I agreed provided we use Ngobeni to support Masuku.” Right. And then further up on the email, it says “Kindly contact Adv Hangwi Matlhape as a replacement for Adv Mankge.” So now we have a junior and a senior counsel and Mr Ngobeni. If you go further up on the email, we see the Senior Legal Services Manager and he includes Mr Sithole, Mr Seanego and the PP in the email with the Chief of Staff (COS)… “Good afternoon Mr Seanego. I confirm the emails below from the PP and COS. We will accordingly have Adv Thabani Masuku, SC, assisted by Adv Hangwi Matlhape, with Adv Paul Ngobeni, SC, providing support in the background. I trust you will find this in order.” To the best of your knowledge, is Mr Ngobeni an SC?

Mr van der Merwe: No. As I said yesterday, we could not even confirm that he was indeed admitted and I think he addresses that in the communications. But he is definitely not an SC.

Adv Bawa: Right. And then if we go to page 3281, you see Adv Masuku sends off the draft answering affidavit in Minister of State Security and PP and he sends it off to Mr Seanego, Adv Matlhape, Mr Ngobeni … “Could you kindly consider this answering affidavit and give me your comments. I have highlighted the areas that I wish some instructions and comments. I am toying with the possibility of a counter-application directing the Minister to give a declassified IGI report. I accept the disclosure of names may create problems??” And then attached to that is a draft affidavit which we will not deal with specifically. We then take it to the bottom of page 3294. Mr Seanego takes the draft answering affidavit and he says “Kindly forward any comments, suggestions, questions that you may have, so we can finalise it” and he says it to Mr Sithole and Mr Mhlongo and the Chief of Staff. And we see that the PP is provided with a copy of it “Please find the email below from our external attorneys enclosing a draft answering affidavit in respect of application, excluding the IGI intelligence report from the Rogue Unit review application. May I kindly request you to review the draft answering affidavit concurrently with us so that we can provide consolidated feedback to counsel?” The PP then responds with four comments in respect of the draft that is being provided, to do that, correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. Let us not leave it there. And she comments on two of the paragraphs and she answers the question that he asks as to whether a counter-declaratory should be required. In paragraph 20, it says “We only want the declassified report not interested to the agents and sources. I agree we avail copy to the judge's in chambers. You see that, Adv van der Merwe?

Mr van der Merwe: That is correct, yes.

Adv Bawa: We then go to 3298. Mr Ngobeni then provides “Argument on appeal Gordhan v Public Protector” and it says “Please find the attached argument on appeal in the Gordhan v Public Protector matter. I have done no spell check”. If you go up, you see that this is forwarded to the Senior Legal Manager and Mr Sithole and the Chief of Staff, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you go to page 3295, he also provides his draft of his appeal argument to the Public Protector, inter alia, and he says “Herewith is my draft of the appeal argument in the above matter, shared with the attorney and relevant advocates. In the normal well-functioning judicial system, I would predict the clear cut victory, but now in the face of political mobilisation of the judiciary, I am just not sure.” And he then lists a number of issues and this arises from the judgment of Judge Potterill, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: That went on appeal and the Public Protector’s Office was not successful, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you go to page 3296, we see Ms Haller comments on “very powerful observations from a compromised judiciary.” Then if you go to page 3299, you will see the actual page of arguments provided and it runs for approximately 54 pages. Correct?

Mr van der Merwe: Yes.

Adv Bawa: Now, if we just pause there for a moment, to go to the invoice, which is at 24 A2, we see on the 21st to 31st July, we see that “Read Gordhan’s urgent interdict and review documents. Research jurisdictional issues on interdicts legal standards; analyse Potterill’s judgment 22 hours”. If you see 6-10 June “Received in…” we will come to that in a moment. If you go to page 3356, at 31 July, you see an email from Mr Ngobeni that says “Subject: Judge Potterill’s unethical and incompetent judgment.” He calls it ‘Judge Potterill’s unethical and incompetent judgment ’ in Gordhan v Public Protector’ and it seems to be an article that is written, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: In this article, he starts off by saying “Judge Potterill’s ruling in Gordhan v Public Protector and others, is emblematic of an overwhelming miasma of fake law untethered to the record.” Now, Mr van der Merwe, do you know what that means?

Mr van der Merwe: I think it is a collection of fake law. I know we checked the word but I cannot recall the meaning. I did not make a note.

Chairperson: A collection of what? We cannot hear. Just repeat that.

Mr van der Merwe: A collection of fake law.

Chairperson: Okay.

Adv Bawa: We had the opportunity of looking at what miasma means. Do you recall what that means, Mr van der Merwe? You had a look in the dictionary when we were consulting on this.

Mr van der Merwe: I know we checked. Unfortunately because there were a number of words, I got mixed up with the explanations.

Adv Bawa: It was ‘an unpleasant or unhealthy smell’, if you recall, Mr van der Merwe? Do you recall that Mr van der Merwe?

Mr van der Merwe: Yes. That was (what) I recall. That is correct.

Adv Bawa: Right. And then in the next paragraph, it says “In a haste to get on the pro-Pravin bandwagon, Potterill overreached.” In the last sentence it says, in that paragraph “A judge who uses abusive and contumacious language against the head of a chapter nine institution and characterises her rulings as nonsensical, fails to follow the law; treats political inappropriately; and publicly displays contempt for the judicial system. Sadly a careful perscrutation of Potterill’s unenviable judicial record exposes her inverted bigoted behaviour and incompetence.” On the next page…

Mr van der Merwe: Sorry, Chair. For the benefit of the Members, we checked that word “perscrutation” and it means thorough examination.

Chairperson: I did not get that. You were saying, Mr van der Merwe?

Mr van der Merwe: Sorry, Chair. Perscrutation… it says “a careful perscrutation of Potterill’s Judicial record, it is a thorough examination of her judicial record”, Chair.

Adv Bawa: Then in the next paragraph I am referring to, it is “The litany of gross errors Potterill routinely makes in judicial decisions also highlights that she does not observe the principles that in reversing the opinion of a lower court, a quasi-judicial tribunal, such as the Public Protector, she must not insult a hallowed rule that the function of her Court is to see.” Now, what do you make of this, Mr van der Merwe?

Mr van der Merwe: The whole article is an attack on Judge Potterill, criticising her for her ruling in the Gordhan v Public Protector’s matter. It is very personal and it attacks the judge on all levels, professionally and personally.

Chairperson: Thank you. We are going to take a pause there.

Adv Bawa: Can you give me two minutes to just finish this page?

Chairperson: Okay… Alright.

Adv Bawa: Can we just go to page 3356? In response to the article, the Public Protector responds, “The article is perfect advocate. Though the language used is very complex for her understand. Should have used simple language so she can get the message. Busisiwe Mkhwebane”. That is the Public Protector’s email, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then Mr Ngobeni responds and he says “What angers me is that Potterill wrongly convicted and sentenced black guys in a judgment the SCA described as one where there has been a gross departure from the established rules of procedure: that the appellants have not been properly tried. This is per se a failure of justice.” Are you familiar at all with Judge Potterill’s Judgment s? Have you had anything to do with it?

Mr van der Merwe: Yes, at one point I was requested… I was given the names of a number of judges. I had to check with the Public Protector if any of their judgments were set aside or overturned on appeal, either by the SCA or the ConCourt. I do not have the document now but I know that Judge Tolmay, Potterill and a number of other judges were on that list of names we had to check whether their judgments have been overturned.

Adv Bawa: Okay. Go up to the last email on that page. And it is an email from the Public Protector that says “Good Afternoon. Please incorporate the below arguments by Adv Ngobeni. Alfred, collect my handwritten notes on the affidavit to be incorporated further. Page 50 of the report and 134 of the court papers, I refer to the IGI recommendations and not the whole report to protect the agents on the operations and I said legal must make sure Rule 53 included only the pages relating to the recommendations. Further, Rodney, check whether we gave the correct recording of those who confessed. Please work on incorporating some of these issues.” That relates clearly to the SARS matter, correct?

Mr van der Merwe: That is correct, yes.

Chairperson: Thank you. We will pause there and take a break and be back at 11:45. Thank you.

The meeting adjourned until 11:45.

Chairperson: Colleagues, we resume. Mr Cornelius van der Merwe, are you there?

Mr van der Merwe: Yes, thank you, Chair. I am back.

Chairperson: Or are you still trying to get something? Are you ready?

Mr van der Merwe: Yes, I am ready. Thank you, Chair.

Chairperson: Just help us so that we do not lose you. Just keep up your voice and make sure you speak closer to where the mic is. We need to hear every response you put forward on these issues. Just stay in that way. We do not want your voice to go down and then I have to ask you to repeat. Thank you.

Mr van der Merwe: Thank you, Chair.

Chairperson: Adv Bawa?

Adv Bawa: Can we then go to page 3366, on bundle 161. We are starting with the earliest email on the bottom of the page, on 366. It is an email from Mr Seanego to Adv Masuku “Good afternoon Thobani, I hope you are well. I have included Adv Hangwi Matlhape, who will be assisting you. As you are aware, we have the following matters.” He then lists the matters that is relating to that. These are all matters involving, or tangentially involving the SARS Unit matter. Correct, Mr van der Merwe?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. Then, if we go to the top, Adv Masuku confirms the amount of days for the appeal. If we go to the previous page, 3665, we're told that the application for leave to appeal is due on the 20th and they will map the way forward. If we go to 3664, at the bottom, we see Adv Masuku provides an affidavit for her application to leave for appeal, together with Hangwi, “Please make sure that it reads well and raises the issues that we need to raise. Find somewhere to attach the silly judgment of Pot J. Please draft the Notice of Motion. I will forward you a draft. Warm regards, Thabani”. Just for the Members, Mr van der Merwe, the previous set of emails dealt with the affidavit in the Minister of Safety and Security matter, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: This deals with the affidavit in the application for leave to appeal the judgment of Potterill J. Correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Mr Mhlongo says “Good afternoon PP, please find the attached draft appeal papers in respect of the Rogue Unit urgent interdict unit. As agreed this morning was our various counsel, we are going to the Constitutional Court to petition it to hear the appeal. May I kindly request you to review concurrently with us so that we can finalise and file by tomorrow?” And the judgment of Potterill J, it has been a while since we dealt with this with the Committee, but that was the appeal separately from the main case, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. Then go up… We see Mr Sithole provides his comments on the draft. Go further up. He brings the question of direct access to her attention. Go further up. We see Mr Mhlongo then provides an email to Mr Seanego, the Chief of Staff, the Public Protector, including Mr Sithole, and says “Good morning Mr Seanego. Further to Muntu’s comments, the PP’s notes and Adv Ngobeni’s contributions. Please find the attached revised draft, with my minor changes and comments for your consideration”. So everybody has had the opportunity to comment. And then they say “There are some issues which I think did not come through in the affidavit, which I also highlighted to you during our consultation yesterday with our various counsel as follows.” And the first one is “the fact that you cannot interdict a constitutional function or an exercise of a constitutional power…” we will park that for a moment as there is some argument… “There must be extraordinary factors for doing So which Jamnandas has not demonstrated” Do you know who is Jamnandas?

Mr van der Merwe: Jamnandas. That is reference to the second name of Minister Pravin Gordhan.

Adv Bawa: Right. Then it deals with the Potterill Judgment and after the numbers it says “kindly also solicit input from our other counsel as the application was sent to them, particularly as Adv Sikhakhane, SC”. So now there are other counsel also… Do you know if Adv Sikhakhane was on brief in this matter?

Mr van der Merwe: No... I am not sure.

Adv Bawa: If we look at paragraph three of this email, “Potterill committed an absurdity in the matter by premising a judgment on the strength of correspondence relating to another report (Ivan Pillay in this matter). It would have been absurd for the PP and Cyril to exchange correspondence on the implementation of remedial action, which was not yet in existence at the time.” Mr van der Merwe, this related to the PP’s office saying to the President, “I have issued a remedial action, you must implement. In the absence of an interim interdict the remedial action must be implemented”, correct?

Mr van der Merwe: Yes, that was the approach and that is indeed the approach of the Public Protector, unless it is interdicted, it is binding and must be complied with.

Adv Bawa: Correct. And so unless you have a court order, you must comply with your Public Protector’s report… is that as I understand it?

Mr van der Merwe: Yes, that is correct. That is the legal position.

Adv Bawa: Right. The Public Protector was correctly applying that standard, even against the President?

Mr van der Merwe: That is correct.

Adv Bawa: Then if we go to page 3367, we see the Senior Counsel saying he has nothing further to add; he is leaving it to you; he is in court; they must please clean up the Notice of Motion. And then we go to page 3386. Go to the bottom of that page. Mr Ngobeni, at August 27 “I have attached the affidavit with a few corrections I made. All in all, it is well articulated but I will suggest that the legal theory of the Public Protector defence be made more explicit.” And he then suggests that the court be reminded of the following: “That Minister Dlodlo is stalling rather than assisting the Public Protector.” Mr van der Merwe, at the time of that, Minister Dlodlo was the Minister of State Security, correct?

Mr van der Merwe: State Security, yes… SSA.

Adv Bawa: Right. At the end… The last sentence says “That would preclude unwarranted shielding of information and hiding behind the veil of secrecy to prevent the Public Protector from doing her job.”

Mr van der Merwe: Yes.

Adv Bawa: And he then goes on and says, on paragraph two, “It is also very important to be alive to the reality that members of the executive and others were being investigated by the Public…” I think he omitted ‘Protector’ “are likely to adopt an obstructionist posture and the classification of documents can be one such tactic used to deny access to evidence” and he then cites authority for this. And at the end… at 3388, he advocates a position that “the affidavit must make a compelling case even for the future that security legislation and the whims of the executive must give way to the Public Protector.” You see that?

Mr van der Merwe: Yes.

Adv Bawa: If we go back to 3386, we see the instruction to Mr Seanego is “We acknowledge receipt of the attached draft” which he forwarded. If you go just a little bit further down, you will see that it is Mr Seanego that forwards the draft, onwards… Go up to Mr Sithole and “We acknowledge receipt of the attached draft and the email input below from Adv Ngobeni. We request that you kindly forward the input to Adv Masuku and Adv Matlhape to incorporate into the answer. I am bit concerned about timeframes.” Right?

Mr van der Merwe: Yes.

Adv Bawa: And we see that the Public Protector is included in that email.

Mr van der Merwe: Yes.

Adv Bawa: If we then go to 3390, we then go further down to the email from Mr Ngobeni, with an article written “Can judgment in the Jiba case provide grounds for impeaching President Ramaphosa?” We see, if you go up to the top, that he then forwards the article to the Office of the Public Protector. I raise this because I am going to come to invoices, in a while, that is rendered and I want the Committee to take note of this. The article looks at the actions of the President in having established the Committee… the Inquiry under the National Prosecuting Act, for the removal of Adv Jiba and 166 of the Constitution. Correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Can I maybe get a sense of the article by taking you to the last line of it? “The President has dared the indomitable Jiba and must now pray for or pay the Judges surreptitiously for a favourable outcome.” We then go to page 3402. We see at the bottom, Mr Ngobeni renders an advisory opinion on the Accountability Now litigation that has been instituted. He says “I have not been favoured with a complete set of papers in Accountability Now case.” There was litigation, which Accountability Now instituted against the Public Protector, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: He says “In summary we can and must defeat the accountability now case” and he says what that must be based, in his email, correct?

Mr van der Merwe: Yes.

Adv Bawa: If we go to the email on the top of the page, we see Mr Seanego forwards this to Mr Mhlongo, Mr Sithole and the Chief of Staff. So all three of them would have been alive to the opinion rendered by Mr Ngobeni, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And he asks them “as discussed in our last meeting, we need to resolve this matter as soon as possible.”

Mr van der Merwe: Yes.

Adv Bawa: Right. And you find that on page 3403, is the advisory opinion on the application. If you go to 3423, you will see that it is not signed, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: if you go to 3424, it is an email of 9 October, 2019, to Mr Mhlongo, Mr Sithole and Mr Nyembe, correct?

Mr van der Merwe: Yes.

Adv Bawa: It is a meeting regarding Ngobeni and Prof Seepe?

Mr van der Merwe: That is the topic… the subject, yes.

Adv Bawa: And he asks if a meeting can take place after a meeting with the DJP (Deputy Judge President), on that Friday, correct?

Mr van der Merwe: Yes.

Adv Bawa: Then, if you go to 3426 – this is an address by the Public Protector during a Social Justice Conference at the University of Zululand. It is so from time to time the Public Protector would make addresses or speeches in the public domain or be invited to talks, correct?

Mr van der Merwe: Yes. The PP and the DPP (Deputy Public Protector) makes public engagements.

Adv Bawa: And who would usually do her speeches for her? Would that be the communications department?

Mr van der Merwe: Myself and Oupa used to do it… Mr Segalwe, communications and when they required legal research or legal input or statistical inputs, they would ask for inputs.

Adv Bawa: If you go up on the email, you see that she forwards this to people in the Office, and she says “attitude of these white NGOs towards Social Justice issues (CASAC, FUL, Accountability Now et cetera)”.

Mr van der Merwe: Yes.

Adv Bawa: Then at page 3400… This kind of email with a notification, is this the manner in which the office schedules meetings, Mr van der Merwe?

Mr van der Merwe: Yes, the Private Office would usually draft a weekly schedule of the engagements of the Public Protector and then they would distribute to people who would have to know. These are all members of the Private Office: Memory, Lethabo, Mr Nyembe and the PP.

Adv Bawa: That is presumably so that the people in the private office would know what the PP’s businesses for the week… or something like that?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: What do you see scheduled there on 19 December?

Mr van der Merwe: It is a meeting with Kim Heller and team from 09:00 till 11:00. Then they say who is invited, it was the Chief of Staff, the CEO, Mr Segalwe and Legal Services.

Adv Bawa: Legal? And the CEO at that stage would have been Mr Vussy Mahlangu, correct?

Mr van der Merwe: That is correct.

Adv Bawa: And Legal… Mr Alfred Mhlongo and Mr Muntu Sithole would have still been there?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: You will recall earlier this morning we looked at correspondence that had been received from Ms Heller and Professor Seepe, where they indicated that they only were involved in the period of July and September, 2019. Do you recall that Mr van der Merwe?

Mr van der Merwe: Yes. It was in her letter… In her or Prof Seepe’s letter, yes.

Adv Bawa: This is dated 19 December 2019?

Mr van der Merwe: Yes. Outside of the period that period that she said.

Adv Bawa: Right. Then, if you go to 3433, we see Mr Ngobeni forwards a PDF version of the document he sent yesterday. You see that?

Mr van der Merwe: Yes.

Adv Bawa: If you go up, it is then forwarded to Mr Sithole, correct?

Mr van der Merwe: Yes.

Adv Bawa: If you turn the page that you see it appears to be the first pages of a draft... go down. Are you aware of an application of this nature which the PP had brought, which includes the South African Human Rights Commission, the gender equality, Auditor-General, the Electoral Commission and the Commission for the Promotion and Protection of Rights of Culture and Religious Communities?

Mr van der Merwe: No, these were all members of what we call the FISD (Forum for Institutions Supporting Democracy.) And it would have certainly been on the agenda or a topic for discussion, it was never… it never came to light that there was an anticipated or proposed or even intended application of this nature.

Adv Bawa: Was it discussed at MANCO level?

Mr van der Merwe: No.

Adv Bawa: If you go to page 3436. This heading says “PPSA v National Assembly of the Parliament”, right? If you go down you'll see on 24 January 2020, “please find attached the draft founding affidavit for your consideration”. And it says “Revised PP founding affidavit, edited Ngobeni version”

Mr van der Merwe: Yes. That is the draw founding affidavit for your consideration.

Adv Bawa: If you go up, you see that the Public Protector is acknowledging receipt thereof.

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. In this… cc’d in this is both Adv Tshabalala and Adv Matlhape, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: They are the junior counsel in the litigation against the Speaker. Is that correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: You also see that Mr Sithole is a part of this?

Mr van der Merwe: Yes.

Adv Bawa: If you go to the bottom of 3480, you will see an email from Mr Nyembe. We are back in the timeline in May 2019, right? And it is an email from the Chief of Staff to the Public Protector, and to Mr Sithole, and it says “Good day, PP and Muntu. I have just spoken with Adv Masuku, SC, just checking his availability for us. We agreed to rather discuss face to face. He is in town next week on the third of June. We will see each other then. Accordingly, we can suspend the completion of the team on PG”, PG, presumably stands for Pravin Gordhan, “Pillay and Magashule matter. We have Adv Mpofu, SC, for now, while we await receipt of Pillay and Magashule’s applications.” Right?

Mr van der Merwe: Yes.

Adv Bawa: The Public Protector responds and she says “Noted.” Then we go to 3481… it is an email from the Chief of Staff that says “In order to satisfy counsel’s preferences we propose to terminate VZRL Attorneys and replace them with Seanego Attorneys. Given the specialty and significance of the matter, we think the proposal is sound and over financial year the briefing pattern will average. Unless PP has alternative opinion, Muntu can prepare the necessary memorandum according to the above” and it's signed by the Chief of Staff. What do you understand from this email, Mr van der Merwe?

Mr van der Merwe: Yes. VZLR was the attorneys of record and they were replaced by Mr Seanego Inc. and I think what we are referring to was counsel’s preference that was in order to include the team the PP wanted on the matter. Including Mr Ngobeni.

Adv Bawa: Sorry, Mr van der Merwe. I interrupted you.

Mr van der Merwe: No, no. Including Mr Ngobeni. Sorry? Sorry, Chair.

Adv Bawa: No, go ahead, Mr van der Merwe.

Mr van der Merwe: Yeah… Because the practice was that the Mr Ngobeni’s invoices would have been channeled through Seanego Attorneys.

Adv Bawa: And if you go up on that email, you see Adv Mkhwebane says “Agreed.”

Mr van der Merwe: Yes, that is correct.

Chairperson: Please keep improving, Mr van der Merwe because some Members cannot hear you. They have to struggle to hear you. Just make sure that you continue to raise your voice and connect properly with the mic that you have there… please. Adv Bawa?

Adv Bawa: If you go to the bottom of page 3439, we see that there is correspondence in the Pravin Gordhan matter v Public Protector to Judge Raulinga, from Ian Levitt Attorneys, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Now, let us go up to the next email. Mr van der Merwe, those are the EFF’s attorneys in this matter. Do you recall that?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: If we then go to the second email, it says “The above matter, and our telephonic discussion earlier this afternoon refers. Attached hereto please find correspondence we sent a few minutes ago to the judge, which we believe is currently seized with the matter, Raulinga J, the contents of which are self-explanatory.” And if you go down, it says “As discussed we represent the EFF and would like to join in this matter, however, we have not managed to have sight of the papers. Please, could you furnish us with a copy of the papers, once you are in receipt of the same (you informed me on the phone you have still not been served with the papers), correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Then if you up, Mr Muhammad from VZLR Attorneys responds and says “Dear Muntu, see below and attached as received from Ian Levitt Attorneys, for your attention.”

Mr van der Merwe: Yes.

Adv Bawa: Go to the previous page. She then inquires “Is there any feedback on this matter?” And then “Hi Muntu. As telephonically discuss on 3 June 2019, I confirmed that the new legal team was assigned to the review application known by Mr Gordhan in this matter. Once our final bill has been paid, should I proceed to close my file? “

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Alright. So she confirms that VZLR Attorneys is being replaced?

Mr van der Merwe: Yes, that their mandate is being terminated.

Adv Bawa: You will then see that Mr Sithole tells her to close her file, correct?

Mr van der Merwe: Yes.

Adv Bawa: Then you go to 3498. On the first of July 2019, the heading says “strategy and tactics review, PG/Pillay Matter”.

Mr van der Merwe: Yes, Pravin Gordhan/Pillay.

Adv Bawa: Pravin Gordhan… “Good day, PP and Mr Sithole. Mr Sithole, please bring this email to the attention of Mr Mhlongo, I still cannot pick him up from the email addresses. I have just received a call from Adv Dali Mpofu; this is in respect of his concerns about the conduct of the brief he holds. He raises two issues with his legal team and strategy. We have since agreed that I attempt to set up a meeting on Wednesday at the PPSA Office. The purpose is to deal with the two aspects. We have tried to get Thursday after knowing whether or not they are supplementary but there are clashes of time there. Ephraim kindly check with PP whether the proposed time and date is suitable for her. Let us finalise everything tomorrow. I will brief you in person in the morning about my impression the concerns counsel raised.”

Mr van der Merwe: Yes.

Adv Bawa: Then we see on the next page there is confirmation of the meeting that will take place at 11:30, correct?

Mr van der Merwe: Yes.

Adv Bawa: Then, if we go to page 3442, we now switch to the question of… at the same time in the DA CASAC matter comes out.

Mr van der Merwe: Yes, that is correct.

Adv Bawa: So the Office is currently dealing with the Gordhan matter in May 2019 and on the side the DA/CASAC judgment also comes, handed down by Judge Tolmay, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. And Mr Sithole then informs the Public Protector, the Chief of Staff, the CEO, the Spokesperson about the judgment. I am not going to read it. We went through this email with him. Let us go up to the response. On 20 May the Public Protector responds and says “It is a buildup Vela to PP removal, at instruction of PG. Go ahead an appeal the judgment. Oupa work with COS and Legal to issue the statement of such glaring and embarrassing judgment. Further, the very same provisional report never implicated politicians. Expose the shenanigans in the statement for the public to know the truth.”

Mr van der Merwe: Yes.

Adv Bawa: The Tolmay judgment was upheld on appeal, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Then, if you go to 3445… This relates to a matter brought by a Mr Mostert. And it regards the section 7(9) notice issued in relation to an investigation into the allegations of maladministration, abuse of power and improper conduct by the former Executive Office of the Financial Services Board (FSB), Adv Tulsie, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: This was the evidence which Ms Mogaladi had given before the Committee. It related to this matter.

Mr van der Merwe: Yes, the FSB matter.

Adv Bawa: Right. And there were two applications: the Adv Tshidi application and an application for an interdict which was initially brought by Mr Mostert, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. And this email deals with the Mostert application. In January 2019, Mr Nemasisi is still the Senior Legal Manager, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Now go up. And the PP says “Good afternoon. I requested COS to handle the matter. Will advise for the SC to use but let us oppose the application urgently.” Do you see that?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Go the page earlier. Mr Sithole informs the attorney of the preferred counsel and an alternative. The attorney advises that the counsel is not available. Go up. The PP… Mr Nemasisi indicates that, to the COS, that the “Counsel suggested is not available. Give alternative names.” Go up. The Public Protector says “Please contact Ngobeni, SC to check his availability.”

Mr van der Merwe: Yes.

Adv Bawa: Now, go to the bottom of page 3452. Mr Sithole advises as to the rules of lodging an appeal, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And he asks the PP’s indication on which “Counsel we should keep on the matter” so he can instruct attorneys to request a memorandum of advice from counsel.

Mr van der Merwe: Yes.

Adv Bawa: Right. And then go up. In the DA/CASAC matter you had two sets of counsel, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: The one dealt with the DA application and the one dealt with the CASAC application?

Mr van der Merwe: Right.

Adv Bawa: The PP then responds to Mr Sithole’s request and says “Noted". Can you do due diligence about Platt? What does she stand for? Let us consider senior Junior and junior also who can fight these with our interests at heart.”

Mr van der Merwe: Yes.

Adv Bawa: Would it ordinarily be relevant what an advocate stood for?

Mr van der Merwe: No. This issue of due diligence is not something… well, not in my experience. We do not do background checks or due diligence about legal service providers.

Adv Bawa: Okay. Go up. Mr Sithole then says “Noted PP. I will conduct due diligence and check credible senior juniors. PP can also indicate any preference on the senior junior.” Right?

Mr van der Merwe: Yes.

Adv Bawa: Then go up. The PP then responds “Can you send me the CASAC and DA Notice of Motion to send to Adv Ngobeni. Did you get the information from Nemasisi about Motimele? I asked Ngobeni whether he can assist the senior junior to prepare papers for appeal.”

Mr van der Merwe: Yes, it comes from the Public Protector.

Adv Bawa: And if you look at the invoice that we refer to, if you go back to 24A, the first entry on 21 May “Receive CASAC/DA, Vrede Judgment and provisional and final PP reports. Final Notice of Appeal, all DA CASAC papers researched and drafted. Preliminary argument 18 hours”. Right? If we go back to 3453, we see that Mr Sithole, although during his evidence he could not recall Mr Ngobeni having any involvement in the DA CASAC matter, he addresses an email to the Public Protector that says “Herewith the applications by DA and CASAC. I also attached the heads, which will assist Adv Ngobeni in preparing the papers. I am waiting for Mr Makhoba so that I can access Nemasisi’s previous office, to look for the file on the Motimele matter. PP will forgive me because at the time I was not part of Legal Services, therefore I do not have any electronic documents. I will search in his office.” At this stage why would they need to get into Nemasisi’s office? Had he left?

Mr van der Merwe: Yes, he left. I think the files were in his office. Mr Makhoba was the risk manager involved in… So it is probably to get access to his office through security structures in his office.

Adv Bawa: Right. If you go to 3455, we see that the PP forwards all of the documents. Mr van der Merwe, you have a redacted version, whose email is that, that is redacted in the document?

Mr van der Merwe: Mr Ngobeni. So the PP forwards all these documents to Mr Ngobeni and says “Advocate, find all the below documents.”

Adv Bawa: If you then go to the next page, we then see that the Public Protector had asked Mr Sithole to provide… The Public Protector had also asked for her affidavit to be provided. And if you go up, you see that she had also… He also provided the PP’s answering affidavits and heads to both of the matters, correct?

Mr van der Merwe: Yes, that is correct.

Chairperson: Hon Majozi, we have asked them to switch it off. I can see you are unsettled, so it is being attended to. Proceed, Adv Bawa.

Adv Bawa: Then, at the bottom of 3457, we see an article from Mr Ngobeni, on 23 May 2019, where he says “Mobilising the Judiciary for political attacks on the Public Protector: Can justice be done amid efforts to intimidate and remove our Public Protector? By: Paul Ngobeni” and he says “Please share with the relevant folks, and give feedback.”

Mr van der Merwe: That is correct, yes.

Adv Bawa: Now if we go to the annexure, and it is the second entry, on 24 May, he says “Research drafted and published article, mobilising the Judiciary for political attacks on PP.” You see the correlation?

Mr van der Merwe: Yes, it is exactly the heading of this article.

Adv Bawa: Right. Now let us go back to the article. The article relates to the Vrede Estina Dairy Project and the judgment of Justice Tolmay, correct?

Mr van der Merwe: Yes.

Adv Bawa: And if you go to the last sentence on the paragraph, it says “The judiciary heeds the admonition of Chief Justice Mogoeng against allowing themselves to be captured; against the temptation to be celebrities judges; and against being lured by manipulative praises from politicians, analysts or the media. Certainly there are exceptions like Judge Tolmay, who allows vicissitudes of political controversy. Their policy preferences are shaped by an amalgam of factors that include the race, and most importantly, ideology or partisanship to determine court judgments they issue. A plethora of legal errors in Tolmay’s judgment makes it unlikely that an appeal court will ever countenance such a travesty.”

Mr van der Merwe: Yes.

Adv Bawa: He was obviously incorrect because the Appeal Court upheld the judgment.

Mr van der Merwe: Yes, they upheld the judgment.

Adv Bawa: If you then go to page 3461, it says “Tolmay also committed incomprehensible judicial overreach when she found that an exercise of public power is constitutionally invalid, declared the report invalid, reviewed and set it aside, and then claimed that the specific circumstances in this case made it not appropriate to refer the matter back to the Public Protector. Contrary to the narrative of propagandists, the Public Protector had not abandoned the Estina investigation. As recently as April 2019, the Public Protector was busy meeting with emerging black farmers who were meant to benefit from the Vrede dairy Farm project, as part of an ongoing investigation. This is nowhere in Tolmay’s biased judgment.”

Mr van der Merwe: Yes, that is what he said.

Adv Bawa: That meeting that took place in April 2019, was that part of the subsequent investigation that occurred?

Mr van der Merwe: Yes. Into the Vrede Dairy Project.

Adv Bawa: He then goes on and says “this ruling is not surprising as Judge Tolmay is no stranger to utilising court judgments to advance populist causes untethered to the Constitution and the rule of law.” And then he refers to a 2017 judgment of the judge, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Was Judge Tolmay’s name on the list of judges in respect of whom you were asked to find judgments?

Mr van der Merwe: Yes, as far as I can recall. As I said, I could not check it recently, but as far as I can recall, yes.

Adv Bawa: Then if you go to the next page, in the middle, says “there is a paradox here. Tolmay the white paragon of judicial virtue has had her only significant decision reversed in its entirety by the ConCourt but she is white and closed with a presumption of competence but in the eyes of the white dominated CASAC, the DA and their self-hating non-white puppets, court rulings criticising a black professional, such as the Public Protector ineluctably points to incompetence or malfeasance, must be career ending.”

Mr van der Merwe: Yes.

Adv Bawa: So this is an article that strongly criticises the judgment of judge Tolmay, and the judge personally. Would that be fair?

Mr van der Merwe: Yes, very personally… yes.

Adv Bawa: If we go back to the email to which this is attached, which is on page 3457, we see that this article is forwarded to the Chief of Staff and Mr Seanego. Go up. The Chief of Staff then forwards this to Mr Sithole and to the Public Protector. Do you see that?

Mr van der Merwe: Yes.

Mr van der Merwe: Yes.

Adv Bawa: Right. The Public Protector then gives instruction to the Chief of Staff and to Mr Sithole that says “article is good, he can publish.”

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And we have seen from the invoice list that this is one of the items which Mr Ngobeni sought to add to his invoice, correct?

Mr van der Merwe: Yes, absolutely.

Adv Bawa: If you go to 3464, at the bottom, you see there is an address by the Public Protector during a media briefing on 24 May 2019.

Mr van der Merwe: Yes.

Adv Bawa: The media briefing is there. Right?

Mr van der Merwe: Yes.

Adv Bawa: The PP, from time to time, gave media briefings when reports were being issued, correct?

Mr van der Merwe: Yes, it is usually done on a quarterly basis. It started with Adv Madonsela, and it continued with Adv Mkhwebane, where the reports would not just be issued to the parties but would be released during usually a quarterly media briefing, where all the reports are covered.

Adv Bawa: Right. And if you go up on this email, we see an instruction from the Public Protector “Oupa, please get the signed Carol Bower report, I changed it, ask copy from Ephraim and correct it. The Prime Minister’s one, I will read from the fact sheet. I suggest that you include some comments about Vrede Judgment (interpret vs apply) also use Adv Ngobeni article.”

Mr van der Merwe: Yes.

Adv Bawa: This is the same day on which the article which we referred to, was forwarded, correct?

Mr van der Merwe: Yes.

Adv Bawa: Right.

Chairperson: There is a Prime Minister here? Who is the Prime Minister in the email? We do not have that in South Africa.

Adv Bawa: Mr van der Merwe, do you know what the reference to the Prime Ministers could be?

Mr van der Merwe: I think Prime Ministers means… We usually had anchor reports and I think it might Prime… or Prime in the sense of the Chief or primarily the Ministers. So I do not think it refers to the position of a Prime Minister. It would have been referring to one of the reports that dealt with a Minister.

Adv Bawa: Right. Just take a step back, Mr van der Merwe. What is an anchor report?

Mr van der Merwe: An anchor report? Usually, when there is a media briefing they select one or two reports of public interest or that would be the prime report or the main report that would be released. And on which they would focus, the PP would focus in terms of attention. It might be an Executive Members Act, or a service delivery… It is the theme and what they want to highlight during the media briefing. And the rest of the reports would either be supportive, thereof or of equal importance, but anchor report is basically the report towards we were working to for releasing during that media briefing.

Adv Bawa: Right. So when you read that you do not read that as Prime Minister, but more like the central report relating to the Minister she will read from the fact sheet. Is that my understanding?

Mr van der Merwe: That is my understanding too. Yes.

Chairperson: Thank you. Now understood. I follow.

Mr van der Merwe: Thank you, Chair.

Adv Bawa: Then go to page 3501, sorry, 3502. Let us start with the bottom of the emails. We actually dealt with it earlier – this was Hoffman’s complaint to the LPC (Legal Practice Council). Then go up. We see Mr Ngobeni’s response. Then go up. We see Mr Sithole who is tasked with drafting a response and we know that the 22 July 2019, he says “Afternoon Oupa. Please find attached the documents for the Prof and Kim.” So Mr Sithole is in possession of a document that has to be provided to the Prof. Presumably that is Prof Seepe and Mr Heller, as discussed in the meeting. Presumably Mr Sithole is present in the meeting for him to be aware of that. Would that be a correct assumption?

Mr van der Merwe: Yes, that would be a correct presumption.

Adv Bawa: “I tried to put out the contrasting factual and legal findings in summary, as I have not yet finished reading the entire judgment. I propose to the team that this document becomes a working document on these contradictions from the Justices.”

Mr van der Merwe: Yes.

Adv Bawa: The Public Protector then says to them “Then add the background of this matter per COS article, institution under threat and letter to JP Mlambo.”

Mr van der Merwe: Yes.

Adv Bawa: And she then says… Mr Sithole says “I will request the chief of staff to assist with the background and litigation history of the High Court.”

Mr van der Merwe: Yes.

Adv Bawa: And, this is in respect of the criticism from accountability now relating to the Absa/CIEX matter, correct?

Mr van der Merwe: Yes, from Adv Hoffman.

Adv Bawa: Right. And if you then go to page 3505. You see that clearly, at the bottom of 3505, the judgment from the Constitutional Court comes out. Go up. It is provided to the legal people. It is then forwarded on to the Chief of Staff and the Public Protector for their perusal. There is then a suggestion for a meeting. And the Public Protector then suggests that they must summarise key points from the dissenting judgments and then do the same from the majority judgments, with pointers given later. Go back up. It says “Good morning PP. I apologise to the late response to your instructions below. I was at court for the better part of yesterday.” He then provides the summary of the highlights from the Constitutional Judgment, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: The PP then responds to that saying “Good morning, Alfred. Thank you for the summary. Let us share as widely as possible. Am advised that you alliances to do that instead of appearing as if I am fighting the judiciary.”

Mr van der Merwe: Yes.

Adv Bawa: Are you aware of alliances. Do you have any knowledge of the Public Protector’s Office establishing alliances? Let me rephrase the question.

Mr van der Merwe: No, no. We would have MOUs with institutions that we are cooperating with but we do not use the phrase “alliances with”, in respect of those, so I would think that it would exclude those we have formal engagements with.

Adv Bawa: In your view, is it appropriate for the Public Protector’s Office to have alliances?

Mr van der Merwe: No. The risk is that it would compromise the impartiality and independence of the Public Protector, because you would never know when any of these alliances would have to be either the subject or the beneficiary of a complaint to the Public Protector. So it is a risk, and we are compelled to be independent and impartial. So… and that seems alone is a risk.

Adv Bawa: So Mr van der Merwe, we have worked through the documents to which was referred to in paragraphs five and six of your supplementary affidavit on 4185.47. If you can just put the supplementary affidavit on the screen. And, it would be fair to say, Mr van der Merwe that the then appointed Chief of Staff featured quite centrally in these emails that we looked at. Would you agree with that?

Mr van der Merwe: Yes, he was copied in and giving instructions in most of them.

Adv Bawa: Right. You were then asked in paragraph seven of your affidavit to confirm the dates of the late Mr Nyembe’s appointment.

Mr van der Merwe: That is correct.

Adv Bawa: Right. And we uploaded the folder dealing with documents related to him, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: These, you saw some of them for the first time, when this was provided to you by the Evidence Leaders. Would that be correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: The first of that document is attached to your affidavit at 4185.55.

Mr van der Merwe: Yes.

Adv Bawa: If we could just go there. That is dated 6 February, 2018. That precedes Mr Nyembe’s appointment, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And it is written on a letter head of an entity identified as ‘Lawyers for Radical Economic Transformation.’

Mr van der Merwe: LawRET, yes.

Adv Bawa: LawRET?

Mr van der Merwe: Yeah.

Adv Bawa: Right. And this is addressed to the Public Protector?

Mr van der Merwe: Yes.

Adv Bawa: And it says “Dear Madam. Proposal letter to you dated November 2017. The letter subsequent thereto dated 15 January 2018. And the follow-up telephone conversations between you and the writer have reference. Are you aware of any of those communications?

Mr van der Merwe: No.

Adv Bawa: Was it discussed at MANCO level at any stage?

Mr van der Merwe: No, not in… I must also clarify. Even if we are not at MANCO, the decisions register is distributed before and after any MANCO. So my knowledge would only come from the meetings itself. But if the… if I had sight of decision registers and I can't recall this being noted there.

Adv Bawa: Right. In this, there are certain what is identified as key performance areas in the letter, which appears to be services that could be offered. Go down. And I specifically want to come to the one dealing with litigation matters. And it entails “giving special assistance to the Legal Services Department on specific court cases of significance of the PP attending court hearings and conducting watching briefs.” Do you see that?

Mr van der Merwe: Yes.

Adv Bawa: It also relates to providing media services.

Mr van der Merwe: Yes.

Adv Bawa: He then goes further and says “necessary attributes…” sorry just before that heading comes in “conclusion, underpinning our engagements with the PP is a need to educate the public on the role of the Public Protector with a view to ultimately address the risk profile three as identified in the PPS a strategic documents among other things.” That PPSA strategic document is an internal document, correct?

Mr van der Merwe: Yes, it is the strategic plan that the Public Protector prepares and signs-off or the office in general and Public Protector signs-off and then submits it to Parliament and through to the Portfolio Committee as their strategic plan and also the annual performance plan of the Office.

Adv Bawa: Right. Now, the… It then goes on and he says “The PPSA operates within the justice and legal environment” and he indicates that he has certain attributes, legal training and experience clear writing and communication skills. And he then goes on to Job trading. Go down. Next page. He considers the job to be the equivalent of a DG (Director-General) DDG (Deputy Director-General) posts and he estimates entry point at R1.3 million, midpoint R1.5 (million), high-point R1.7 (million). He offers his services for a long term professional relationship; a long-term contract for the remaining part of her office or alternatively, a minimum period of three years with a top up. And he then suggests “What will work best and convenient for both parties we can contract in the form of LawRET, the company, or Nyembe SC, the natural person”. Do you see that?

Mr van der Merwe: Yes.

Adv Bawa: Now that SC is not SC as in an advocate that is his initials?

Mr van der Merwe: No, it was the late Mr Nyembe’s initials… yes.

Adv Bawa: Sibusiso Christopher, I think it is.

Mr van der Merwe: I cannot recall the second name.

Adv Bawa: And in paragraph eight of your affidavit, you confirmed that his services were engaged on the 15th of February 2018, as a special advisor for the fixed period of 1 April 2018, to 30 June 2018, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then just to complete your affidavit because I want to go to some documents after this. For the period one July 2018 to 31 December he was not in the employee of the PPSA, correct?

Mr van der Merwe: No, no. That is correct.

Adv Bawa: He was then appointed as a Chief of Staff on a fixed-term employment contract as of one January 2019?

Mr van der Merwe: Yes.

Adv Bawa: Right. So you then find, as is on CM3, perplexing that in July 2018, when he was not in the employee of the PP’s Office that he would still have a PP address and receive emails from Mr Ngobeni and send to Mr Seanego, to which we referred?

Mr van der Merwe: Yeah, because access is usually suspended if the person either the contract or his employment is terminated. So for some reason, his email account was still active.

Adv Bawa: But not only was active… if you see CM3 to your affidavit, which is at 4185.58, he is included in the email communication. And, if we look at that email, it says in terms “Dear Attorney Seanego. Kindly find my very abbreviated invoice for recent work performed on our recent Public Protector project. It was my understanding that I would process my invoices through your office. If I am mistaken or incorrect in any manner, please do not hesitate to let me know.”

Mr van der Merwe: Yes.

Adv Bawa: He then renders an…

Mr van der Merwe: Sorry? Sorry, no… Please proceed. Sorry, Chair.

Adv Bawa: He then renders that amount that is there.

Mr van der Merwe: Yes, that is correct. Through Mr Seanego.

Adv Bawa: We have looked at the invoice early on and I am going to take you to that shortly. But let me just finish the Mr Nyembe… If we go to Bundle F, item 155. Mr van der Merwe, what was your involvement in respect of the appointment of Special Advisors – while we get the documents?

Mr van der Merwe: I have got quite substantive historical knowledge, institutional knowledge of the conditions of service and the appointment and establishment of the Public Protector. And the more or less the job profiles, and I advise HR on the issues that might emanate from time to time relating to the conditions of service. And I recall in January about that year, we had an inquiry about the level of appointment of Special Advisers because we are benchmarking against the public service. And the first determination by Adv Baqwa was to say that the staff of the Public Protector would be appointed at equivalent positions, or levels of equivalent posts in the public service. So our post structure is generally broadly aligned to positions in the public service, although the post description might differ. Originally in the position of senior investigators, although it is a different post position was that of senior legal administration officer in the public service and later on state law advisor. So when they were looking at the position of a special advisor it was not on our structure. So they were looking for the equivalent position the public service to which we can align or benchmark the position.

Adv Bawa: And did you know at the time when you did this at any particular person, was being considered?

Mr van der Merwe: No, as far as I know there was only the need identified. And that is how we motivated in the subsequent for the Public Protector to have a person who was removed from the administration or not accountable to that administration, more independent but that can advise the Public Protector on some of the matters.

Adv Bawa: Okay. And then if we go to a document which is style as the policy on the appointment of Special Advisors to the executive authority, but before you deal with the policy, what was your advice rendered in respect of what was required for the purposes of appointing a special advisor?

Mr van der Merwe: We found… When I did the research, we found that there was no equivalent position in the Public Protector’s establishment, because the special advisors are appointed in terms of Public Service Act, and there is a special dispensation for them, because not only is there an appointment, but also the accountability and relationship with the administration is removed, because they are not subject to issues like the conditions of the Code of Conduct, because in the public service, they are usually used to advise the executive authority on party political matters. So the affiliation… They cannot be removed from political aspects like normal public servants. And it is a special dispensation, and the Public Protector’s Office did not have an equivalent position that would provide for such a special dispensation. So basically there was no position internally that we could benchmark against. And we then recommended even in January that year, that the Public Protector will have to make a determination in terms of Section 3(9) and (10) of the Public Protector Act, and submit it like Adv Baqwa had to do many years ago, to provide for the conditions of service and remuneration of a deposition of a special advisor.

Adv Bawa: And submitted to who?

Mr van der Merwe: In terms of the act that PP is required to consult the Minister of Finance, then make a determination and submit it to Parliament to the Speaker's Office to be tabled in Parliament. The act only requires tabling in Parliament. Then within 14 days of the determination is made; then it becomes valid as the determination in terms of Section 3 of the Public Protector Act, that says the Public Protector may determine the conditions of service of staff members on the establishment of the Public Protector. And that is the process to determine the conditions of service as well as the remuneration of people on the position on the establishment of the Public Protector.

Adv Bawa: Right. And did this take place prior to the letter of appointment being issued to Mr Nyembe on 15 February, 2018?

Mr van der Merwe: No, no. We followed some processes but it was way after that. We drafted the process. I traced my documents and we have made a draft determination in January of that year. So we did propose it to the powers that be but at the time it was not implemented.

Adv Bawa: Right. So if we then… Chair, I am going onto four documents. Do you want me to continue or do you want to take the adjournment now?

Chairperson: You are going to four documents?

Adv Bawa: Yeah. I would like to deal with him together. That is why I am asking you.

Chairperson: Okay. And how long do they take?

Adv Bawa: It should take me 10, 15 minutes.

Chairperson: Okay.

Adv Bawa: Can I continue?

Chairperson: Yup.

Adv Bawa: Okay. Mr van der Merwe, we are going to page 155… page 3097, and the document is the “policy on the appointment of special advisors to the executive authority.” It is item 155 in Bundle F. Right?

Mr van der Merwe: Yes.

Adv Bawa: It is dated 14 February 2018, right?

Mr van der Merwe: Yes.

Adv Bawa: It is a policy that is signed by the Public Protector the day before Mr Nyembe is appointed, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: What was the purpose of this policy?

Mr van der Merwe: As far as I can establish, it was to provide for…

Adv Bawa: Sorry, Mr van der Merwe. Sorry, sorry. We are talking past each other. Can we just go to page 3098… the next page? Let me ask this question simply: did you draft this question, Mr van der Merwe?

Mr van der Merwe: No, I think it was drafted by HR.

Adv Bawa: The purpose of this policy is to regulate the appointment of Special Advisors to the executive authority, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And if you go to paragraph four, the need for the Special Advisor is identified that it is based on the Public Protector, having wide powers, is expected to deal with matters efficiently as effectively. And if you go to 4(3), for that purpose she is requested to have high-level specialist advice on each matter as identified. You see that?

Mr van der Merwe: Yes.

Adv Bawa: Since Adv Nyembe’s passing, has there been another special advisor appointed?

Mr van der Merwe: No. No special advisor appointed.

Adv Bawa: If we go to page 3081… sorry, the item 153 and that is simply the appointment letter of Mr Nyembe, dated 15 February, which confirms his appointment. I do not think we need to go there specifically. And then we go to 3108… No, sorry, it is 3092, item 154. There is a memorandum dated 24 May 2018.

Chairperson: You said 3092? Do we have such a page?

Adv Bawa: Got it. So this is a memorandum that is sent to the CEO from the Senior Manager: Legal Services, Mr Nemasisi. Go down. This takes place in May of 2018.

Mr van der Merwe: Yes.

Adv Bawa: Right. And it is legal advice on the appointment of the Chief of Staff and the Special Advisor.

Mr van der Merwe: Yes.

Adv Bawa: The reason for this is articulated in the first paragraph, “is to advise the CEO about the process to be followed subsequent to concerns raised in the bargaining forum and media queries regarding the appointment of the Special Advisor and the Chief of Staff.”

Mr van der Merwe: Yes.

Adv Bawa: Now, Mr van der Merwe, this Committee had heard evidence from Mr Samuel and Mr Kekana the concerns had been raised in that period in respect of the appointment of the Chief of Staff who was not properly qualified and the special advisor who was not lawfully appointed. Would that be correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: This memo talks to that?

Mr van der Merwe: Yes. Bargaining forum is the internal collective process between the union or organised labour and the Office.

Adv Bawa: Right. And those in the Public Protector’s Office, who were the union representatives, would include those like Adv Isaac Matlawe Mr Tebego Kekana, Mr, I think… I stand corrected. I am not sure if Mr Samuel was…

Mr van der Merwe: Mr Nditsheni [Raedani], yes.

Adv Bawa: That is correct. Right. Then, if we see on 3093 of the document, dealing with the Chief of Staff, who was the Chief of Staff at that stage?

Mr van der Merwe: Ms Maluleke.

Adv Bawa: The issue was the fact that Ms Maluleke did not have the qualifications, correct?

Mr van der Merwe: Yes, that was the concern.

Adv Bawa: Right. And was that correct that she did not have the requisite qualifications?

Mr van der Merwe: As far as I can recall, we were requested to provide that and in response to media inquiries, and in response to a request from the union. And the Office, as far as I am aware, could not produce any post matric qualifications. There was something about the secretarial course, but yes.

Adv Bawa: Right. So then if we go to 3.1, Mr Nemasisi advised that “although the prerogative to appoint the Chief of Staff, laid the Public Protector, the person still required minimum qualifications.” And he records, at the next page, at 3143 that “the appointment is invalid and must be terminated with immediate effect”, correct?

Mr van der Merwe: Yes.

Adv Bawa: When it came to the issue of a special advisor, he referred to the policy, to which I referred you. He referred to the provisions of the Public Protector Act, indicating – go down – that the special advisor was not part of the staff complement. And essentially explained the process of the Minister of Finance that you had referred to and then at the bottom of page four he concludes, “due to the invalidity of the policy on appointment of special advisors to the executive authority, the appointment of the Special Advisor must be terminated with immediate effect and the normal process prescribed must be followed.” Did that occur, Mr van der Merwe?

Mr van der Merwe: Yes, I think that Mr Nyembe’s contract was subsequently terminated.

Adv Bawa: Well, actually his contract was for three months. He saw his contract out, Mr van der Merwe.

Mr van der Merwe: That is right.

Adv Bawa: In fact, if you turn the page at 3096, he says the “Chief of Staff's appointment is linked to the Public Protector’s term of office. The special advisors contract is coming to an end on the 30th of June, that is one month more salary compensation and it may result in fruitless and wasteful expenditure. It is then recommended that there be some negotiation with him so that they do not risk the dignity and integrity of the Public Protector and the office for their personal interests.” Right?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: What happened to Ms Maluleke?

Mr van der Merwe: She returned to her original position or another position, I think in customer services because she was seconded to that position in the private office. And she just reverted back to the two the establishment of the Public Protector – the administration part… or the Head Office part.

Adv Bawa: Right. And notwithstanding the advice provided by Mr Nemasisi, external legal advice from counsel was sought, correct?

Mr van der Merwe: Yes, and the fact that we already had already advised on the process in January of that year.

Adv Bawa: And if we go to item 161, 3129, Mr Sithole then asked Mr Seanego to obtain urgent legal advice to be finalised to the CEO in 7 June 2018, in respect of this matter. If you go to 3132, we see that there is then a draft letter of consultation that then is sent to the Minister Nene about that. Right? And if you go to the next page, we see that 2.4 and 2.5 of the letter indicates that there was a letter from Treasury. Are you missing a page? Okay, we will sort that out. There is a page missing in this but the paragraph reads, “The Public Protector received a letter dated 5 June from the National Treasury. The letter requests the Public Protector to withdraw the policy and appointment of Special Advisers, on the basis that the Public protector did not consult with the Minister of Finance when implementing the policy, as required by Section 3(1), 3(9) and 3(10) of the Public Protector’s Act. Then the instruction is given to Seanego to brief a senior counsel and request a legal opinion.

Mr van der Merwe: That is correct, yes.

Adv Bawa: They provided with documents in respect to that. And the legal opinion that comes back essentially, does not say anything much different. Would you agree?

Mr van der Merwe: Yeah, it confirms the process as we advised on.

Adv Bawa: Right. We will deal with the cost of the legal opinion later. There is then correspondence with the Portfolio Committee, which we see at 152 in respect of that matter, which we do not need to go further. And subsequent to that, Mr Nyembe is appointed as the Chief of Staff in January 2019.

Mr van der Merwe: 2019. Yes.

Adv Bawa: Now, if we look at 3104, of Bundle F…

Chairperson: That would be the last document.

Adv Bawa: That will be the last document. It is the CIPC document, which shows that Mr Nyembe was the sole director for the legal entity “Lawyers for Radical Economic Transformation”. I will give the page reference after the lunch adjournment. Chair, is this the right time to take the adjournment?

Chairperson: Thank you Adv Bawa. Thank you Mr van der Merwe. Colleagues, we pause now. We will be back exactly at 14:00. We take a lunch break. Thank you.

The meeting adjourned for a lunch break until 14:00.

Adv Bawa: These will be Acrobat references because the documents, for purposes of convenience were pulled together in one folder, but are found at different places in the record with different numbering. So it is just to see if we can get the jumping around a bit, and I have pulled it together. So the first document, Mr van der Merwe, if we see the date that is 29 June 2018, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: That is the first instruction letter going out to Seanego Attorneys. Correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: They were engaged “To the Public Protector in preparing the submission to the portfolio committee on justice and to represent the Public Protector on the inquiry into her fitness.” This related to the complaint that then had been lodged by the previous Chief Whip of the DA, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. If we then jump a bit… If we go to file 125, page 18, which would be 513 in your bundle, Mr van der Merwe. Right? I am skipping through some of the other pages you would have.

Mr van der Merwe: Yes.

Adv Bawa: Right. We see that this bill is for the purpose of that submission to the Portfolio Committee on Justice and Correctional Services correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And effectively what we will find from this bill is approximately 25 hours being spent on looking at the documents and perusals of the letter… or the drafting of a letter, correct?

Mr van der Merwe: Yes.

Adv Bawa: And we see that total coming to R206 000, on the next page, being 514 or Adobe 19. And attached to that invoice is the invoice headed “Adv Paul M Ngobeni” which is the next page, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And we see that he too spends between 2 and 4 July, 13 hours on drafting a response to the Public Protector together with case law and the rules. Correct?

Mr van der Merwe: Yes.

Adv Bawa: Then we find… Sorry, I am going very quick. Just tell me if I should slow down, Mr van der Merwe.

Mr van der Merwe: No, no. I am with you, Chair.

Adv Bawa: Right. On the next page we see the counsel on brief, perusing of the files and the drafting of what could only then be the letter, is another 44 hrs, correct?

Mr van der Merwe: That is correct.

Adv Bawa: We know that comes to R206 000 and that the bill was submitted to Mr Sithole, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Now we turn to what would in your file be the email dated the 19th of September, from Mr Sithole. Got it?

Mr van der Merwe: Yes, I have got it.

Adv Bawa: Right. This is an email that Mr Sithole writes as an instruction, correct?

Mr van der Merwe: Yes.

Adv Bawa: He refers to a telephonic conversation with Mr Seanego, and he says “Consider the contents of the below article and the attached initial draft letter for your settling. Do you see that, Mr van der Merwe?

Mr van der Merwe: Yes.

Adv Bawa: This is one of the articles that Paul Ngobeni produced, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And you saw that from correspondence which was provided to you which lists Mr Ngobeni’s articles?

Mr van der Merwe: That is correct, yes… His response.

Adv Bawa: That is right. “You are requested to paraphrase the letter to be as near as possible to the contents of the article.”

Mr van der Merwe: Yes.

Adv Bawa: “We attach you to our rates to assist you in preparing the invoice.”

Mr van der Merwe: Yes.

Adv Bawa: Attached to that is 161, 3535, which is page 7 of the draft letter to the Speaker, correct?

Mr van der Merwe: Yes.

Adv Bawa: And attached to that is the tariffs?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: That is the tariffs of fees for attorneys approved by Mr Themba Dlamini. He was the previous CEO, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: That was approved in May 2017?

Mr van der Merwe: That is correct.

Adv Bawa: They're usually in effect for three years… would that be so?

Mr van der Merwe: Yes.

Adv Bawa: The next document would be F1259, which would be 2749 in your Bundle. Right. It is headed “submission to the Portfolio Committee on Justice and Correctional Services.”

Mr van der Merwe: Yes.

Adv Bawa: That's consistent with instructions given to them, correct?

Mr van der Merwe: The letter of appointment, yes.

Adv Bawa: Now, if you look at the first entry, it says “Prepare and send an email to Mr Nemasisi regarding the possibility of applying to court for a declaratory order which may clearly define the rights and obligations of the Public Protector.”

Mr van der Merwe: Yes.

Adv Bawa: That' is not submissions to the Portfolio Committee, correct?

Mr van der Merwe: Yeah, that was not included in the original brief.

Adv Bawa: Right. And if you go down to the bottom, you see telephonic discussions with Adv Mankge and Mr Ngobeni for a draft legal opinion and comments.

Mr van der Merwe: Yes.

Adv Bawa: Right. And if you turn the page then you see there is a legal opinion provided, to the tune of R100 000 and Mr Seanego amends this legal opinion, conducts further research, and finalises this opinion. In fact, he is assisted by a candidate attorney who does this as well.

Mr van der Merwe: Yes.

Adv Bawa: Right. And we know from Mr Sithole’s evidence that he approved the payment of these invoices.

Mr van der Merwe: Yes.

Adv Bawa: If we go to annexure CM3, to your supplementary affidavit, page 418.59, we see that by March 2019, Mr Ngobeni seeks payments of his fees from Mr Seanego and he includes Mr Nyembe in the email. Correct?

Mr van der Merwe: Yes.

Adv Bawa: And he is seeking payment of his March 2019 fees, correct?

Mr van der Merwe: That is correct.

Adv Bawa: If we go to F125, page 26, we see that Mr Ngobeni’s fee is in the amount of R87 000 and the heading is “Tito Mboweni”. We had, as you would be aware traversed the bill from Mr Ngobeni at length, dealing with media articles and advisors in respect of that matter. So I am not going to detain you with that. Correct?

Mr van der Merwe: Yes.

Adv Bawa: Mr Sithole also confirmed that he approved payment, thereof, correct?

Mr van der Merwe: Correct.

Adv Bawa: Right. Then if we go to your annexure to your affidavit, 4160, it is an email from Mr Ngobeni to Mr Seanego, as well as to Mr Nyembe and he says “Attached is my invoice as discussed. I am aware that an opinion may be priced differently but not necessarily paid on the basis of the number of hours. I remain flexible and I will accept reasonable amount is determined by the client. Even if that resolves downward adjustment.” There can be no doubt that the client here is the Public Protector’s Office, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. If you turn the page, you see an invoice, or what passes for an invoice, for the purposes of an opinion that is rendered for 48 hours, which comes to R96 000.

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. And if you go to page 1 of F125 and you turn the page, Mr van der Merwe. You see a statement for the Tito Mboweni invoice and it says “Offer to appoint to act on behalf of the Office of the Public Protector in the provision of a legal opinion from Senior Counsel" in the amount of R165... If you turn the page you will see the invoice that shows Mr Ngobeni’s fees for R96 000. And we know that…

Mr van der Merwe: Yes.

Adv Bawa: This is the opinion in respect of the CR17 matter that was provided on a Seanego letterhead, as traversed with Mr Sithole. Do your recall that?

Mr van der Merwe: Yes.

Adv Bawa: Now if we go to F161 again... Can we go to page 3297? There is a tax invoice that says “Defamation, Pillay and Loggerenburg”, correct?

Mr van der Merwe: Yes.

Adv Bawa: And it deals with a letter from Webber Wentzel, in the amount of R8 750.

Mr van der Merwe: Yes.

Adv Bawa: We had earlier in this morning, seen Mr Ngobeni, also wanting to bill for four hours, dealing with the Webber Wetzel defamation matter.

Mr van der Merwe: Yes.

Adv Bawa: But that is not reflected on the Seanego invoice?

Mr van der Merwe: No.

Adv Bawa: Do you see that?

Mr van der Merwe: No.

Adv Bawa: In fact, we have come across no invoice where Mr Ngobeni is, other than the one that we know was not paid, is again reflected on an invoice for work… for this work rendered. Do you agree?

Mr van der Merwe: Yes.

Adv Bawa: If we go to your affidavit – it is 4185. 62 – we see an email from Mr Ngobeni on 30 August and he provides it to Mr Seanego. He asks for prompt payment. If you go up, we see Mr Seanego then sends it to the legal people and Mr Nyembe, correct?

Mr van der Merwe: That it is correct, yes.

Adv Bawa: That is the invoice for August the 1st to August the 30th. And we see here is the bill for the draft response to Adv Hoffman and the draft appeal argument in the Gordhan v Public Protector matter; the Rogue Unit; the answering affidavit in the Dlodlo matter; and correspondence with Adv Masuku – 70 hours.

Mr van der Merwe: Yes.

Adv Bawa: At what we know Mr Ngobeni’s rate to be at R2 000, have we come across and invoice of R140 000 from Seanego, to be paid to Mr Ngobeni?

Mr van der Merwe: No, not to my knowledge. Not that I can recall.

Adv Bawa: If we then go to F161 3398… As we go down and there is a… he is writing to inquire about payment of his July invoice. He makes a point of indicating "as previously requested the invoice reflects work of several months and I have explained my special circumstances”. He requires prompt payment. And this is then, if you go up, forwarded back to the Public Protector’s legal people.

Mr van der Merwe: Yes.

Adv Bawa: Right. If you then go to 3399, we see Mr Hlatshwayo, who we know to be the sole director of…

Mr van der Merwe: Wikunene [sp?].

Adv Bawa: Then he says “Kim Heller had asked me to send you an invoice that was sent to Paul last week. I have attached an invoice to this mail.” Go up. And by the way, it is directed to “Dear Theo”.

Mr van der Merwe: Yes.

Adv Bawa: So it is quite clear that Ms Heller knows that the invoice is going to Seanego Inc., correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. In fact, there is an email that follows on that, that says “Dear Theo”. You have a clear copy of that, who is the sender of that email?

Mr van der Merwe: Ms Heller.

Adv Bawa: And it says “Dear Theo, I hope you are well. This invoice is for communications services provided by Prof and I over the course of July, August and September. The amount is less than contracted as we have based it on direct hours work. We are due to meet today with the Office but it has been rescheduled. I will provide you with a report on the impact of articles, posts and other interventions.” Right? That is the invoice 002, that we know to be R170 000… R120 000?

Mr van der Merwe: Yes, that is correct. R120 000.

Adv Bawa: And we see, go up, that is then forwarded to Mr Mhlongo, Mr Sithole and Mr Nyembe, so all of them would be aware of the work being rendered by Ms Heller and Prof Seepe, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Then if you go to page 3432, Mr Ngobeni asks “Dear Mr Seanego. May I kindly have a prompt response to my previous queries which have gone unanswered? It is quite unsettling that I must repeatedly nag folks or lobby each time just to get my invoices paid. On 30 August 2019 I sent my invoice and about two months later, made a follow up inquiry never responded to. May you kindly respond with clear indication of when I get paid.” Have you found any reference subsequent in November 2018… 18 November 2019, in the Seanego invoices on which Mr Ngobeni is paid for the work he rendered?

Mr van der Merwe: No.

Adv Bawa: If you go up, you see that's forwarded to the legal people, Chair, for the record so that it reflects, we addressed correspondence to Mr Ngobeni, asking him for information. The Committee has that correspondence, as well as Mr Ngobeni’s response. He, not without some justification, indicated that our questions were compound questions and convoluted, and if we asked a simple question, we would get a simple answer. Taking that on board, we redrafted the questions. We sent it to Mr Ngobeni appreciating that our questions may have been complicated. And we will put that before the Committee once we get an answer to the questions in that regard. We have asked him for certain documentation, so that we quite clear as to how this got paid. On the record, we currently do not have a reflection of the payments made by Mr Ngobeni, to Ms Heller and Prof Seepe. If we now…

Chairperson: Thank you. We will await that and watch that space.

Adv Bawa: Mr van der Merwe, we then turn to your main affidavit, which is at 4060, in Bundle D of the bundles. It is item 24. The affidavit is item 24 and the annexures are the sum numbers 1-18. Included in the Bundle were two revisions of 12 and 17 and a summary of judgments, to which we will also refer to. Mr van der Merwe, I want to pick up the affidavit at paragraph six of the affidavit, right? And the Committee will recall that during the course of evidence of Mr Kekana, a document was referred to… an incomplete draft headed “Public Protector’s observations and constitutional principles applicable to the independence and governance of the Reserve Bank and proposals for the review.” And it was presented to Mr Kekana during his evidence of the Committee. Are you the author of this document, Mr van der Merwe?

Mr van der Merwe: Yes, I am.

Adv Bawa: Right. Now, you deal with this… This is the document. It is at bundle H, Item 3, page 3. Is this the correct document?

Mr van der Merwe: Yes, that is the correct document.

Adv Bawa: Now, from paragraph eight onwards of your affidavit, you deal with this with reference to the annexures, right? Can you take us through the background to the how this document came to be created?

Mr van der Merwe: Yeah. It was not long after the Public Protector’s Office in December 2016 that I received an email – by the time she was already acquainted with my role as institutional knowledge and providing research – and she asked me for an update on outstanding tasks that I was involved in relating to the amendment of the Public Protector Act (we were preparing proposals for the Department of Justice), the finalisation of the Public Protector rules; Transnet matter (which was a report); and then she needed a paper on the Extension of Security of Tenure Act, where we were going to make a presentation to the Portfolio Committee in Parliament; and then referred to a proposal on the amendment of the constitution both in relation to land, as well as full control of the central banks. With regard to the Constitution, I was not fully… I did not have the background, because I suspected that this emanated from a Dashboard or internal discussion where certain decisions were taken. And that decision… that resolution was not conveyed to me. It was not raised in think tanks or any of the other internal meetings. So I sought clarity on it and I waited for instructions. Mr Nemasisi and I were going to deal with it together. But then a bit later, the then CEO, Mr Dlamini called me to his office and he handed which was, he said, a Private Members Bill, which he said that the late Mr Mario (Oriani-)Ambrosini, MP, made to Parliament in relation to certain proposed amendments to the Constitution. And he requested that I prepare a submission to the Constitutional Review Committee, on behalf of the Public Protector, based on the Bill. The brief was that the Public Protector wanted to endorse this Private Member's Bill as a submission to the constitutional…

Adv Bawa: Sorry, I think I interrupted you. I just want to keep the Members up to speed with the documents as you go along. The email to which you referred, from which you got the initial instructions from the Public Protector is annexed to your affidavit as NVM1, at 4100 and its contents are repeated in paragraph 8 of your affidavit. That is correct, yes?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. Then in paragraph 11 of your affidavit, your request for the submission to the Constitutional Review Committee. It was not uncommon for you to make submissions to the Constitutional Review Committee, correct?

Mr van der Merwe: No, no. It is part of my normal functions to do legal research, make submissions on legislation or even concept papers for the executive authority, and the leadership.

Adv Bawa: And as you just indicated, and you were given a draft bill, and you were told that this was a Private Member's Bill?

Mr van der Merwe: That is correct, yes.

Adv Bawa: The CEO at the time was Mr Themba Dlamini?

Mr van der Merwe: That is correct.

Adv Bawa: Right. And that Bill that was provided to you is annexed to your affidavit, at NVM2, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. And if I get that put on the screen, that is at page 4101, correct?

Mr van der Merwe: Yes, that is the document.

Adv Bawa: Right. So now just tell us… We will talk a little bit about… Pick it up again from where you left off when I interrupted you. Sorry, Mr van der Merwe, I am going to interrupt you so that we can keep track of where we at in this. At paragraph 12.

Mr van der Merwe: Yes, I then started to look at the Bill, the content thereof and with the brief in mind that we were going to endorse this as a submission to the Constitutional Review Committee for the review… for the amendment of Section 223-225 of the Constitution. But then, when I did the research, and I also looked at the context, the first thing I wanted to check is what happened to the Bill. If it was indeed submitted by the late Mr Ambrosini to Parliament, and if it ever was ever put on the papers or the agenda, And so on. And then when I checked the source of the Bill, I found that it was actually not drafted by Mr Ambrosini but it came from a book from a certain Mr Stephen Mitford Goodson called “inside the South African Reserve Bank, its origins and Secrets Exposed.” It was a 2014 book. And I then addressed an email to Mr Nemasisi because he was the co-worker or the co-author of the submission to the Constitutional Review Committee, but I wanted to share my concerns with him about first of all, the impression that we had… that this bill actually came from a Member of Parliament… while that was not the case. And then the contents of the bill in itself and also Mr Goodson’s background raised certain red flags for me, which I felt I should raise with him. And I alerted him to what the Bill proposed in terms of the Constitution: that Parliament shall have the sole power to issue money in any form, which will be interest and debt free; the amount of money decided by a monetary trusteeship, which would be seven to 11 individuals, to be appointed by the National Assembly; that they will meet once a month to exercise duties and have the cooperation of the Minister of Finance and a state bank called the “People's Bank”. And the Minister would issue directives to the monetary trusteeship and the amounts will be monitored against price index computed by Stats SA. That new money would be paid into, this is the wording of the bill, the economy by Treasury and withdrawn and the withdrawal will be achieved by temporary taxes. I was asked to check if it would be possible to use these principles as a basis for the amendment of the Constitution. In addition to the amendments to the Constitution, there was draft legislation which was called the new proposed Monetary Reform Act, providing for basically the nationalisation of the money supply, but not the banking system and would include provisions that all banks withhold 100% reserves; the retirement of the national debt; permanent stabilisation on the money supply then the establishment of a monetary trusteeship; and withdrawal from all international banks and related agencies such as the IMF and the Bank for International Settlements; and the establishment of a foreign exchange stabilisation fund. According to the drafters of this proposal, it would mean the abolition of income tax and reduction of VAT, zero inflation, termination of what they term business cycles, full employment and eradication of unemployment due to a massive public works initiative; budget relief; housing loans at a zero rate interest; housing for the entire population at the five-year period and the rapid implementation of what was called the contribution philosophy in order to expand community projects and de-urbanisation. I pointed out to…

Adv Bawa: Mr van der Merwe, you detail this in the email to Mr Nemasisi and that is located at 4106 of your affidavit, as NMV3, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. And then in paragraph three of this email, which is them copied in your affidavit at paragraph 14, you state the following in the email. Can you just read that to the Committee?

Mr van der Merwe: Yes, I said to him: “I do not mean to question the instructions from the PP and the CEO”, because remember, the CEO said that the PP wanted to endorse this to the Constitutional Review Committee… I said “Apart from the concerns about” and I highlighted apart “from the concerns about the content and the implications of the amendments…” because we were not… sorry, let me first just read “Apart from concerns about the content and the implications of the proposed amendments that we would be endorsing. I established that the job proposals were not compiled by Dr Mario Oriani-Ambrosini but it is actually the political manifesto for a party called the Ubuntu Party, who contested the general election in 2014, but only managed 8 000 votes. Afterwards, they accused the ruling party the ANC of election fraud. The Ubuntu party intended to submit draft legislation as a Private Member's Bill if they managed to get representation in the National Assembly. Apart from my concern that our endorsement of the jobs proposal effectively amount to supporting the political agenda of a specific party. The other more significant reasons why such an endorsement might constitute a huge risk for the Public Protector, see the document enclosed ‘Why do we need banking reform?’ Can I proceed, Chair?

Adv Bawa: Yes. Yes, you may. You then highlighted the author of the book?

Mr van der Merwe: Yes. I then highlighted that Mr Goodson is both the Deputy Leader of the Ubuntu Party but he's also a former director of the South African Reserve Bank who left the Reserve Bank under a cloud of controversy, as a result of his support for what was termed a ‘Nazi economy and banking system’, which was presumably the basis of the proposed amendments. I referred to certain articles in the public domain and in media, where it was reported that Mr Goodson held contentious views that included admiring the economic policies pursued by Hitler in Nazi Germany and the belief that international bankers financed and manipulated the war against Hitler because they saw his model of state capitalism as a threat to their usurious ways. I also pointed out that the South African Israel Public Affairs Committee had some problems with him basically because he was a holocaust denialist and adherent to anti-Semitic hate speech and falsehoods. The matter received widespread media coverage. I included copies of the media articles. Irrespective of whether these allegations were true, it was in my view, problematic.” And as I said, I was hesitant, because I had specific instructions, but I felt that by just endorsing it would create a risk. And I specifically said to Mr Nemasisi that I feel I would not be doing my duty to the Public Protector and the institution if I do not deal with this and not raise the fact that “in the circumstances I am concerned that the endorsement of the proposed legislation prepared by the Ubuntu party and Mr Goodson might pose a high risk for the Public Protector, particularly in view of the fact that she was under close scrutiny by all parties.

Adv Bawa: Mr van der Merwe, can I just interrupt you at that point?

Mr van der Merwe: Yes.

Adv Bawa: You were employed at the Public Protector’s Office when Adv Mkhwebane was employed there previously, correct?

Mr van der Merwe: Yeah, a long time.

Adv Bawa: And what was your view when she was appointed as Public Protector?

Mr van der Merwe: We at the Office were very optimistic and positive. First of all because we knew her as a colleague. And at the time when Adv Madonsela’s ended, there were a number of internal, I would call them HR issues and people would have expectations and the focus was different. So the first expectation was that the Adv Mkhwebane knew how it would feel like to be a staff member and that Human Resources would be a priority for her and she would…

Chairperson: You got cut there. You are cutting. I do not know if you have challenges there? You are frozen now. Mr van der Merwe? Mr van der Merwe? I think he is now properly frozen. Just give a few minutes for that to be attended. He has been okay, so far. It might be affected by network issues. Let us give it a few minutes, colleagues – maybe just two, three minutes. Thembinkosi, you can check him in the meantime, please. He is there with you… in the air. He got kicked out? Please accept him back?

Mr Thembinkosi Ngoma: Chair, he will be re-joining now. He lost connection, so he will be re-joining now.

Chairperson: Thank you. That also helps so that we can see that you are still here. Mr Ngoma, is he travelling far to join?

Mr Ngoma: Okay, he is in the waiting room, Chair. I am letting him in now.

Chairperson: Mr van der Merwe, can you hear me? Can you hear me Mr van der Merwe? Okay… I see your lips are moving which means you are talking but we cannot hear you. I am going to suggest that you go out and join again, so that you can get into the voice issue. Your mic is not audible. Just go out and join properly again – it is the quickest way to do it. Log out and log in again.

Mr van der Merwe: Good afternoon, Chair. Can you hear me?

Chairperson: Now we can hear you. So it was the machine that you did not switch on. We had lost you. Then you got caught and then got frozen. So we just want to pick up where we left. Can you hear me? There is something there that you are doing. You are muting yourself. I think it just your own system because I think we just heard you now.

Mr Ngoma: Chair, he is requesting that you give him a few minutes, he is going to have to change devices. He tried logging on now but he could not hear anything from your side. So he is going to try and change the device. So he is asking for a few minutes. Thank you.

Chairperson: Go and help him. You are all up in the air.

Mr van der Merwe: Good afternoon, Chair. Can you hear me now?

Chairperson: Mr Cornelius van der Merwe, yes we can hear you. Are you back now properly?

Mr van der Merwe: Thank you, Chair. I switched to a mobile network. It said our office network was unstable. Sorry about that Chair.

Chairperson: Yeah you did break and it got frozen. So I am going to ask Adv Bawa to just take you where she needs you to be. So that we can hear everything else.

Adv Bawa: Mr van der Merwe, you were telling us that there were certain HR issues in the office? You were enthused by the appointment, because you understood that she had come from an employment background at the PP’s office and she would have an understanding about that. Is that a correct summation of what you sought to relay?

Mr van der Merwe: Oh, yes. Yes, as I said, there was sense of optimism internally about the relationship. And generally as I said because one of our own made it back to the Office as the head of the Office… So there was a general sense of optimism, and welcome to the Public Protector and even me personally. We've always had a good relationship.

Adv Bawa: So you continued to have a good relationship throughout her tenure in Office?

Mr van der Merwe: Yes. Yes, the Public Protector… I always felt like a valuable member and I was able to contribute to the Office. And the institutional knowledge I had was valuable on various aspects – when in the FISD context, when we were dealing with other Chapter Nine institutions; with the engagement with the Commission on the remuneration… yeah. We have never had any issue in terms of the work or any relationship problems.

Adv Bawa: Sorry, I interrupted you. If we then go back to paragraph 18 of your affidavit. You had stated in paragraph 17, that you had raised it because of the risks involved to her and you were aware that she was under close scrutiny by all parties at the time, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. But you also point out in paragraph 18, that before sending this email, you were mindful you were not an economist?

Mr van der Merwe: That is correct, yes. Because like all the subject matters that comes to us, we try and do research as much as possible. But these are very highly technical and I acknowledged the fact that it comes from experienced people, so whatever we had to deal with, I had to acquaint myself was the principles and that it was always from a legal perspective that we were dealing with these matters and not from an economic perspective. But we then proceeded to draft a presentation or a submission to the Constitutional Review Committee, basically developing an alternative line based on a need for oversight. We wanted to take just some of the principles we found was good like, on the governance base and also based on highlights of the Constitutional Court matter and the role of the National Assembly of Parliament of institutions like ours, I felt similarities could be extended to the Reserve Bank and linked to that, and see if we cannot propose that as an alternative basis… to still propose amendments, and improve governance and oversight over the Reserve Bank, as opposed to the idea of a national bank. As such, I prepared a draft. And we also in that draft, and that was what the CEO said to me at the time, we just must then alert the Committee to the fact that they are alternative views, like those of Mr Goodson, even if we do not endorse it, then just to alerting to the fact that they are these views out there. And I prepared a draft, which I enclosed to my email and that was sent to Mr Nemasisi.

Adv Bawa: That draft is attached to your affidavit as NVM4 4114, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. Then if we go to NVM3, and I just want to take it from the bottom up. And we go to page 4111, at the bottom email. Mr Nemasisi tells you “He is not involved in the matter, initially, but the concerns you raised in your below email are very serious and I suggest we have an urgent meeting to discuss your concerns with the CEO and the Public Protector. I await the directions of the CEO.” Correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. If we then go up, you then email the CEO and you say “I am sorry to bother you, but I was wondering if you had a chance to look at the issues raised in the emails or to the consider the draft submission, excluding the potentially controversial draft legislation, proposed by the Ubuntu Party”. If we go to the next page up, we see the CEO asked the Public Protector “Dear PP. I need PP’s approval that we make the submission as proposed by Neels. The attachment M of Ubuntu Party and changes to the South African Constitution are for the PP to note but also to acknowledge the envisaged risk if we opt to support the manifesto of a party, which was included in Mr Goodson’s book as draft legislation. We are in a better position with the submission without relying on Goodson’s book.” Go up.

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. The Public Protector then answers on 7 June and says “I am aware about Neels's concerns, can he propose how we can amend the Constitution to have state bank and Parliament to oversee the state bank?”

Mr van der Merwe: That is correct, yes.

Adv Bawa: There is a response to that that says “I will meet with Neels and Mr Nemasisi to discuss PP’s concerns.” What then transpires is Mr van der Merwe…

Mr van der Merwe: We did not have a meeting but on 6 June, I then started to research which culminated in that draft document that you reflected. I did extensive research on the issue of a state bank, comparatively with other countries and on the principles that I thought the PP would be highlighting and how we thought… because the whole aim of this thing was to motivate a review of Sections 223-225 of the Constitution. It did not even come to the point of having concrete amendments in mind, but just to deal with what we can support and what we can induce in view of the background to the matter. And then…

Adv Bawa: Can I take you to paragraph 19, of your affidavit, which is on page 4070, were you aware at the time that the PP had met with Mr Goodson?

Mr van der Merwe: No. no. The first time I read or encountered Mr Goodson was in the research. And then later on even after the CIEX matter, I then saw tweets or something where the PP said his book was a good read. And then only I learned that she actually engaged him and had a meeting with him during the CIEX investigation.

Adv Bawa: Right. Now, at the time you were working on submissions that you were going to submit to the Constitutional Review Committee as part of your responsibilities, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And how did that work fit into the CIEX report?

Mr van der Merwe: No, I was not even thinking about the CIEX report. I had no knowledge or suggestion that it was for the purpose of crafting any kind of finding audit, because usually in an investigation, you will deal with the legal framework in the context of that investigation and this did not relate to the legal framework, in my view. I did not even think it would be informed or endorsing whatever legal framework was governing, the CIEX report. I wasn't even at that time to be aware of what was the… until I got to the actual inputs to the report, where we were supposed to have a mini think-tank but that would come in later. At that time, CIEX was not in my in my scope, or thought process.

Adv Bawa: If we you to paragraph 25, of your affidavit, having dealt with the previous paragraphs in your answer to the… You then say in an endeavour to meet the PP’s aforestated request you embarked on this research, which you told us about and you commenced drafting that paper. You did not have a deadline for that paper?

Mr van der Merwe: No, No. It might have been that there was a deadline for the Constitutional Review Committee, so I know I dealt with it as a matter of priority but I can't recall any deadline because I was still busy with it later on. It was not finished.

Adv Bawa: Then the CIEX was issued on 19 June 2017 and you say it created a furore. Tell us what, what that was?

Mr van der Merwe: Yeah… The first reaction was there was… the Rand fell, and there was losses, and everybody was up in arms in the media about the nature of the Public Protector’s remedial action; the fact that she was now instructing amendments to the Constitution, and it had an impact on the economy as a whole. And there were questions about the legality and validity of the remedial action. So everything blew up at once after the release of the report.

Adv Bawa: And what then happened? You then say you recall speaking to Mr Kekana. Tell us what transpired?

Mr van der Merwe: Yes. I do not know if called me or I called him but then the issue of my research came up, since it was now relevant to the remedial action that we contemplated because the remedial action basically then circumvented what we were trying to endeavour with the submission to the Constitutional Review Committee. So… but I ended up sending a copy of the research document and said it was still a work in progress. As I said, I am not sure if it was for him to address the aftermath of the CIEX or whether it was just informative and information that could support to anything that they were thinking would have been of any value to him. But I sent to him a copy of the draft documents, saying that it was still a work in progress.

Adv Bawa: So then if you go down, you say there “This was so as I was seeking to support instruction given to me in preparing the submission,” and you say” at that point I had not yet given so to whether it was feasible, or putting any countervailing views. The document lacked the conclusion recommendation.”

Mr van der Merwe: Yes, it was incomplete. We had not come up with any substantive recommendation to say this is how we think… because the motivation was to substantiate a review and say these are… to sort of guide review as opposed to coming up with concrete wording of how we think the Constitution should be. Knowing as well what the impact could be of any words that we put out there. So I was still not at that point, because that required careful consideration, and we did not find enough support yet.

Adv Bawa: You see at NVM5 at page 4118?

Mr van der Merwe: Yes, that is when I sent Mr Kekana a copy of the document.

Adv Bawa: Right. And you make it clear to him it is an incomplete draft document that you are working on?

Mr van der Merwe: Yes. That is on 20 June.

Adv Bawa: That is after the CIEX report was issued?

Mr van der Merwe: Yes.

Adv Bawa: Right. Now, I asked you whether you had provided this document to anybody else prior thereto.

Mr van der Merwe: No, this was the first time that I dispatched the document to anybody.

Adv Bawa: And I asked you to go and double check and triple check whether you had provided it to anybody else. And did you do that?

Mr van der Merwe: Yes, I checked in my normal email, on all Outlook items, as well as on Mimecast. I did searches on all the various keywords ‘Central Bank’, ‘Tebogo’, I checked all my emails to him, around the time I checked emails under the subject heading, and I couldn't trace any other communications to any other person on this matter… with this document.

Adv Bawa: Then if you look at NVM6, you then asked to assist with a media query, in relation to the CIEX report, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. Then the PP then instructs that you must assist in the crafting of this media query?

Mr van der Merwe: Yes.

Adv Bawa: And Mr Kekana comes to you and he asks for your assistance?

Mr van der Merwe: Yes.

Adv Bawa: And if we go up at 4119, you then asked him to provide you with a copy of the report as finalised?

Mr van der Merwe: Yes.

Adv Bawa: Because you had not seen the final version?

Mr van der Merwe: No, no. I only heard about in the media. I had not seen it at the time.

Adv Bawa: Then in September 2018, if you look at Annexure NM62, you provide a copy of your research and the draft you are working on as well as the notes of the research to Mr Nemasisi. How did that come about?

Mr van der Merwe: Yes, that was for the purpose of the litigation, the review of the CIEX report. This was to help the legal team to prepare for the various grounds from which the report can be defended after the fact. So Mr Nemasisi asked me and I provided him with a copy of this research document.

Adv Bawa: Right. And in your view, whatever was contained in the CIEX report, could it have been informed by the research that you had done?

Mr van der Merwe: No, because it was not shared with anybody that was involved with the CIEX report. It was not done before the CIEX report. And frankly, the approach was totally different. If you look at the provincial remedial action, in the CIEX report, it contains specific instructions or directives for the amendment of the Constitution. And we were still contemplating in this document, to propose a review and how to motivate the review of the Constitution. So it is totally not aligned to what we had in mind, and as I said, it was not shared with anybody prior to the finalisation of the CIEX report.

Adv Bawa: Did you ever complete the submission to the Constitutional Review Committee?

Mr van der Merwe: No, because it became water under the bridge, because we had already basically made… issued a directive now, so we cannot go back to now and propose a review if we have already taken remedial action that sought to compel the amendment of the Constitution, and then to go back to a lesser intrusive approach of suggesting a review. So it would not have served any purpose to complete it.

Adv Bawa: Right. In paragraph 31, of your affidavit, you say you were never consulted in respect of the proposal that was contained in the CIEX report, is that correct?

Mr van der Merwe: Yes, that is correct. I did make mention of the fact that we were asked to deal with, as a mini think tank with the report, but that version of the report did not have any remedial action that included a Constitutional review, to the extent that it eventually was in the CIEX report.

Adv Bawa: And you also say you do not know where the proposal came from?

Mr van der Merwe: Yeah… Nom wording like it was in the final report… I do not know what the source of that is.

Adv Bawa: Right. In paragraph 33 of your affidavit, you indicated that you were contacted by Adv Mkhwebane on 18 July this year?

Mr van der Merwe: Yes. When Mr Kekana was testifying, counsel produced this paper and he made certain propositions to Mr Kekana, suggesting that this was one of the documents that might have influenced the proposal and the PP, later on, contacted me telephonically mobile and asked me to provide a copy of the email that I sent to Mr Kekana. And I had a problem that night with load shedding but I sent it to her early the following morning about 06:30 on 22 July, clearly showing when I submitted to Mr Tebogo.

Adv Bawa: Now, you then in paragraph 34, and I want to run through this quite quickly… you had some involvement in the CIEX investigation and compilation of the report, correct?

Mr van der Merwe: Yes, that is correct. I first went to the investigators… with the investigators to the Absa offices. I was not one of the investigators but they had to go and access certain files. Absa did not want to give it to us or copies. We had to go in inspect them then and they anticipated that some of the records were in Afrikaans. So I was going along to interpret and also to translate some of these documents. And then in February 2017, there was an inquiry from one of the organisations that we mentioned, Black First, Land First, had written to the PP about this issue, and one of the concerns they raised was around the tax implications and I was asked to provide some information… to research the tax implications of the so-called lifeboat transaction they gave to Bankorp.

Adv Bawa: Sorry… Stop there, Mr van der Merwe. Can I just take you to annexure 8, page 4125 of your affidavit. It is the letter which came in from Black First, Land First?

Mr van der Merwe: Yes.

Adv Bawa: I just want to draw you to the first paragraph, “Black First, Land First” and we see the abbreviation there is BLF.

Mr van der Merwe: Yes.

Adv Bawa: That is the letter to which you refer to earlier in your evidence, when you said you knew that BLF was the abbreviation of Black First Land First.

Mr van der Merwe: Yes.

Adv Bawa: Right. Sorry, I interrupted you. We can go back to 34.3 and 4. You could not find a submission that you had made on the taxing matter. And then you pick it up at 34.4 where you say that you were asked to take part in a mini Think Tank with Adv Matlawe and Adv Fourie?

Mr van der Merwe: Yes. The Committee might know that the think tank process was a peer review process where the managers and knowledge management and research and legal would sit around and look at reports, but there was a resolution of the task team in March that there would be just a mini think-tank on this report. Myself, Adv Matlawe and Adv Fourie, who was the Executive Manager at the time would go through the report. Mr Matlawe told the PP… I had an injury and I was not at the Office and Adv Fourie was also not available. The PP indicated that the think-tank should go ahead only with Mr Kekana and Matlawe. But I still had an executive summary of the report. And in order to try and make a contribution, I did go through the executive summary. And I did make quite a few inputs to the issues that I felt were relevant what we would have done in the mini Think-Tank.

Adv Bawa: The gist is that at the time when you got the draft at paragraph 34.7, you say “there was no reference to amendments of the Constitution in the draft”?

Mr van der Merwe: No.

Adv Bawa: And you say that after providing your inputs, you were not further involved in the finalisation of the CIEX report, correct?

Mr van der Merwe: No. After making those inputs, and it was quite substantive, they… we did not know if was ever taken into consideration or anything. That is the last I was asked to be involved in the CIEX report.

Adv Bawa: Right. You then subsequently attended a meeting with counsel in August, correct? How did that come up?

Mr van der Merwe: Yes, that is correct. There were two issues, basically my research background. And then one of the issues that Mr Nemasisi identified was the fact that Absa raised the issue of prescription, and the fact that this transaction had taken place such a long time ago. And I had prepared an opinion on the description relevant to the Public Protector on the issue of whether or not it would limit the Public Protector’s remedial action. And my conclusion was that, no, it did not. It could not serve as a limitation. And he wanted me to present that opinion to counsel to see to what extent it could assist in the either responding affidavit or the litigation in itself. And I did make notes of the meeting and I did share it. Now, it is included in my affidavit.

Adv Bawa: Right. But you point out that that was prescription in an entirely different context, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: That's correct. You were also then asked to do an affidavit for the PP, to clarify your recommendations in relation to the CIEX report?

Mr van der Merwe: Yes. I cannot remember whether it was for the purpose of this motion or the criminal matter, but I was asked to put my involvement in the research, basically, to support through the research. But I then… When Mr Sithole reminded me, I did send him an email… I just could not trace it. I was not sure that my recollection and the documents that I had would be helpful. And I did not hear anything further. I was not requested to finalise such an affidavit.

Adv Bawa: Right. We then come to that part of your affidavit that heads “Complaints”. Now, you were at some point, requested to prepare statistics regarding the handling of complaints by the communication department for providing an overview of the Office over 20 years. I am going to… It is annexed to your affidavit, as annexure NMV12 and I am going to put up on the screen of NMV12, which deals with the 25 cases, reflecting updated figures.

Mr van der Merwe: Sorry, Chair. Can I, on the last issue, point out something? The affidavit that I was requested to provide, would effectively take the same factual circumstances that I have provided to this Committee.

Adv Bawa: Now… So Mr van der Merwe, if we go to the revised NMV12 documents on the screen, right? The difference with this is that we put in totals for all the Public Protector’s periods in question. We are going to come in a moment to an explanation of what is received, finalised and carried over. But could you just explain the document and then we will scroll down and we look at it?

Mr van der Merwe: Yes. Every Public Protector is appointed for a period of seven years. But remembering that a term would start in October so it does not correlate with a financial year or a calendar year. So it is difficult. We took the statistics as it was reported at the end of every financial year, as per the Annual Reports. And this was an exercise I did previously for the 25 Years celebration and I just elaborated on that. It takes the period of every Public Protector ; then the cases that were received during his or her term; the number of cases that were finalised in that year; those that were carried over for that financial year; and then the staff complement in the Public Protector’s Office. So it dealt with Adv Baqwa, the first Public Protector. Then from 2002 to 2009, October, Adv Mushwana and then…

Adv Bawa: For the record, can we just put the totals in as received finalised and carried over? So in the Adv Baqwa period… If you can just take us through the totals of each Public Protector?

Mr van der Merwe: Yes. In Adv Baqwa’s we received 44 627 cases. We finalised 36 669 cases during that whole period. This did not mean that at the end of the period, it was the number of cases carried over. It is just cumulative, because we only carried the number of cases. So it would also reflect during the course of the period how many cases were carried over. But it was not at the end of the period. So the same for Adv Mushwana, we received, during his term of office and this is relative because of the fact that the reporting periods would not correlate with the terms of office… In Adv Baqwa’s time we carried over 13 000 cases. Then at the start of Adv Mushwana’s time, we received 15 000 cases. That is with the cases carried over we were able to finalise 20 000 cases during his period. In Adv Mushwana’s time, we received 130 984 cases, and we finalised 110 632. That number is carried over throughout the period effectively at the end of his term, we carried over 5 900 cases to Adv Madonsela’s time.

Adv Bawa: Yes. Adv van der Merwe, you reflect in the last two columns, the budgets available to the Public Protector and the number of staff members as well, correct?

Mr van der Merwe: Yes, that is correct. R92 million at the end of Adv Mushwana’s time and 240 something staff members – 247 staff members. That would include investigators and support staff.

Adv Bawa: Right. Then we come to Adv Madonsela’s period.

Mr van der Merwe: Yes. For the whole period, we received 136 841 cases and we finalised 131 050 cases. At the end of her term we… and this we broke up between the actual amounts, we basically split in half because it was six months, six months. Adv Mkhwebane took over six months into the financial year, so we just took the whole of the number for 2016-17 and divided by two. So Adv Madonsela for that six months, we finalised 5 394 cases, carried over to October 2016, 5 255 cases. And then we would then come to the current partial period of Adv Mkhwebane.

Adv Bawa: Right. So let us go down. Bear in mind that we are not comparing apples with apples because we effectively want financial years short in the period for Adv Mkhwebane… that would correct, right?

Mr van der Merwe: Yeah. This is March 2022 this year. So we still left with 18 months… at that point there was still 18n months left to complete Adv Mkhwebane’s term. But thus far, in the term, we have received 42 302 cases and we have finalised 54 334 cases. At the end of March, this year, we carried over 1937 – you would see that it reduced drastically through the last number of years.

Adv Bawa: Right. So there has been, as we have heard from other witnesses, a significant dent made in the backlog of cases?

Mr van der Merwe: Yes. This backlog is particularly the older cases we were exceeding to two years or that we carried over to the next financial years.

Adv Bawa: Right. And then we specifically deal with… If I take you to paragraph 38 of your affidavit, you deal with annual statistics as it appears in the Annual Report on the PPSA caseload. And you say you have confirmed the information that you are dealing with now, with the senior manager strategic support? Can you explain to us? What is her role?

Mr van der Merwe: Yes. She collects all of the statistical data. She monitors performance against the strategic planned targets and APP (Annual Performance Plan). And all the statistical management reports would come to her on a monthly basis and a quarterly basis against the APP. So she is monitoring the strategic performance of the office and reporting on that to the various management structures within the office.

Adv Bawa: Right. And you then set out to explain how the statistics in the annual report work, from paragraph 39 and one has to look at that with reference to NMV13. So Mr van der Merwe, I am going to let you go through your affidavit and put NMV13 on the screen. Would that work? So NMV13 is the caseload and the statistics for the 2020-21 period, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And so we look at that and I lead you in this so we can do that… We essentially have ten categories: Head Office and the nine provinces, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: The head office collectively reflected the CSM, which is what?

Mr van der Merwe: Customer Service and Stakeholder Management. And then…

Adv Bawa: Administrative justice? Okay… Go ahead, Mr van der Merwe.

Mr van der Merwe: Previously the investigating units in head office were divided between service delivery matters that were dealt with by what we called AJSD that is Administrative Justice and Service Delivery unit, and then GGI matters – that came from the special investigations, who deal with good governance and integrity matters, ethical matters, corruption, procurement, and so on. But nowadays, it is just one investigative branch with more than one… We now have them all, provincial integration, Head Office investigations, and customer service and stakeholder management at Head Office.

Adv Bawa: Right. So the moment that complaint comes into the Public Protector’s Office, it gets a complaint number, correct?

Mr van der Merwe: That's correct, yes.

Adv Bawa: This is an accounting of everything that has a complaint number, irrespective of whether it has been investigated or not?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. And so you have a category on the top which says “finalised cases” and that's the finalised cases for the financial year, correct?

Mr van der Merwe: Yes.

Adv Bawa: That would include cases that had been withdrawn by complainants; cases to whether complaints have been resolved prior to investigations commencing; cases that are referred to other institutions, for example, we were told that they are agreements with Home Affairs for example, where complaints don't get investigated, they simply get referred; and cases which are rejected because the Public Protector has no jurisdiction, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And, and we know that in the annual report, these are recorded as closed without investigations, and are distinguished from complaints that either substantiated or not substantiated.

Mr van der Merwe: That is correct.

Adv Bawa: And we see that on page 4180A on annexure… the next page. We see that extract from the Public Protector’s report. And we see there the total complaints, the annual report will tell us that 41% were substantiated 23% was not. And 16% had been closed without investigations, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Right. Now, if we go back up to the 2013… the 2020 to 2021 financial year, we will see that there is a total that comes in that is reflected on the documentation as being the number for one financial year, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: now, if we go to the starting point in each… If we go to NVM14, which is at page 4181. We will use that as the example. We see there that there is a backlog that comes from the previous year of 3363, correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. And that is carried over to start of the financial year.

Mr van der Merwe: Yes.

Adv Bawa: You then get 1 108 new cases that come in?

Mr van der Merwe: Yes.

Adv Bawa: And so you start off your year with 8471?

Mr van der Merwe: That is basically throughout the year. That's the total cases handled.

Adv Bawa: Throughout the year… not just at the start of the period?

Mr van der Merwe: Yes.

Adv Bawa: You are right… correct. For that financial period, cases that is marked finalised, is 6927?

Mr van der Merwe: Yes.

Adv Bawa: That would include the 23%, which we have seen is closed as not being substantiated. Correct?

Mr van der Merwe: Yes… or referred, or declined.

Adv Bawa: Or declined. If you look at the heading, if you just go a little bit up on the document, the heading says that “percentage is the no jurisdiction referred to other institutions withdrawn by complaints resolved by parties before the office could conclude the investigation.”

Mr van der Merwe: That is correct.

Adv Bawa: So we have subtracted from the total number of cases that does not engage investigative resources, would that be correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. So in other words, the total that one sees under the total investigations finalised reflects a total of 5334 cases that actually engaged investigative services – and I say investigative services, because that would include your CSM officials, who would register it and then pass it on. Would that be correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: So effectively for the period, although the finalised total would reflect over 50 000 cases, for the period in question, the total actually investigated is 40,117, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. Mr van der Merwe, this is a statistical issue. This is not… I do not want us to be misinterpreted here. The other Public Protector report, as far as you aware, reported it on the same basis of finalised cases. Am I correct?

Mr van der Merwe: Yes. So this would not mean that is 40 000 as opposed to 136 000 or 110 000 because the same exercise was not conducted in respect of those statistics. It is just high level compared to a deeper drill down of these specific statistics.

Adv Bawa: So if you were doing a comparison, you would use the figures that you had relayed over the 25-year period but if you wish to show what was actually investigated by the office, then this would be the figure you would use, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Then you would carry that over to the next financial year of the 1197, right? And in the last two financial years, you would show what is early resolution; what is service delivery; and what is GGI?

Mr van der Merwe: Yes.

Adv Bawa: Right. Can you just briefly tell us what is the difference between the three?

Mr van der Merwe: Early resolution is investigation without embarking on an evidence gathering exercise. The aim of at least resolution is to resolve the matter. Usually in an investigation, the point is to gather evidence to adjudicate on the merits of the matter. And early resolution, the methodology as well as the outcome is different. We try and resolve the matter without adjudication. We try and bring the parties together or try and just, sometimes by just alerting an institution to a delay – they address that undue delay. And we do not need to make a finding that there is an undue delay. They would either expedite or prioritise the issue of a person's ID or a social grant or whatever was the subject of the complaint. And service delivery and GGI matters involve both investigations as well as what we call ADR – that is alternative dispute resolution mechanisms. We bring the parties together to try and resolve the matter. But the primary cause of action is to investigate / gather evidence, and then to close the investigation by means of the various options available to the Public Protector.

Chairperson: Thank you. Let us pause there. We will take a tea break and come back in 15 minutes.

[Break]

Chairperson: Mr Francois van der Merwe, are you there?

Mr van der Merwe: I am here. Thank you, Chairperson.

Chairperson: Adv Bawa, can we resume?

Adv Bawa: Before the adjournment, you were explaining to us early resolution and service delivery matters. And essentially, as I understood it early resolution matters are matters which get resolved quickly. Service delivery matters is usually government departments or organs of state that is meant to render a service and do not, and there is a complaint to the Public Protector’s Office, essentially. And then the more complicated and the complex matters are the GGI matters. If we put NVM14 back up on the screen. These statistics, Mr van der Merwe, in the annual reports only appear to be detailed in this manner in the last two financial years, for early resolution service delivery and GGI, right?

Mr van der Merwe: Yes. The breakdown is only over the last two years. Previously it was just general.

Adv Bawa: Right. So one sees a breakup of the complaints in the numbers that are there in the columns which show you what the bulk of it is made up of, right?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Then ‘HA’ column is Home Affairs… that is the amount of complaints that go to Home Affairs, correct?

Mr van der Merwe: Referrals, yes. What I can also add, if you allow me, is that it is not only about the nature of the complaints and the solution. In terms of the service standards of the Public Protector, there is a predetermined period of time allocated to the finalisation of each of these categories of complaints and the backlog would then arise once it exceeds the prescribed service standard or prescribed timeframe.

Adv Bawa: Okay. So if you look at the outreach clinic, which is the second last column, and we had Ms Motsitsi testifying to this, so we are not going to take you through it. There has been a decrease in outreach clinics for reasons which she explained to the Committee already. And then we look at the last column, which are reports. There has been an increase in the last three years, in particular in the number of reports that get issued. Now we go much higher than in fact has been issued by any other Public Protector. Would that be correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. If we take you to 39.16 of your affidavit, on page 4081, with reference to 39.16. The preceding sub paragraphs are essentially the explanation that we had now afforded on how the table operates. And so there are three types of reports or categories that the reports fall under. Could you just briefly tell us what each are?

Mr van der Merwe: Yes. Closing reports are reports that are issued without… where the investigation reveals that the allegations are unsubstantiated, or the matters were resolved before the issuing of the report. So it would not mean an adverse finding against the institution. Those are signed-off at two levels on an executive management level and senior management level. And then there are closing reports that are signed-off by the Public Protector it would be for instance on Executive Members Ethics Act and that would be included in the statistics. And the informal reports were findings in remedial action in terms of Section 182 of the Constitution. That is usually when the allegations are substantiated, and the report would cover both findings and remedial action. And then there would be an advisory report, which is in terms of Section 6(4)(c)(2) of the Public Protector Act. After an investigation when there is a systemic issue or root cause issue, and the Public Protector does not have enough evidence or is not substantiated by means of a completed investigation but there still… we were still able to identify a problem, that is to benefit people that might not have come to us with the same problem, and we want to improve in a proactive manner administration, then we advise the institution of what the Constitutional Court referred to as remedial measures, as opposed to remedial action. It is the classic recommendations that ombudsman offices or Public Protector’s Offices would do. And those are the three types of reports covered in the statistics.

Adv Bawa: Right. Now, you also point out that does not include reports that are finalised and signed-off at provincial level. That is not reported in the annual report. These are only reports that are signed by the Public Protector herself, correct?

Mr van der Merwe: Yes, that is correct. All those statistics that you reflected of matters finalised, they would all require a type of closing report and that would be done on unit and branch level.

Adv Bawa: Right. Then you say that most of these reports relate to GGI matters and it is mostly those reports that get taken on?

Mr van der Merwe: Yes because the findings as well as the remedial action relate to conduct issues. Where there is service delivery and there is a delay, it would mostly not be in dispute and we would be contributing to an improvement on the service delivery. But most of the reports that are taken on review are those that deal with findings on conduct of either politicians or heads of departments or chief executive officers And so on. Am I still audible, Chair? There is a silence and I am not sure if it is on my part?

Mr Ngoma: I am sorry, Mr van der Merwe, we seem to have lost M46.

Chairperson: We are muted here. Sorry colleagues, we were muted, which is not a usual thing. It is a very strange thing. We normally mute you, so that is a different experience. Mr van der Merwe, are you there?

Mr van der Merwe: I am here, Chair.

Chairperson: I am here, Chair. Thank you. Adv Bawa, please continue?

Adv Bawa: I put the proposition to you that the increase in reports that have been issued by the Public Protector has been as a consequence of an endeavour to deal with these outstanding GGI complaints. Would that be correct?

Mr van der Merwe: Yes, definitely. The backlog issues that… because part of the reason why the backlog was incurred is because it's more complex matters. So that will naturally take time and it was an endeavour to finalise this matters. So you are quite correct, Chair.

Adv Bawa: Right. And so you deal from paragraph 40 of your affidavit on 4082, on the issues of backlogs quite briefly. And you point out that the 2015-2016 report, “the overwhelming majority of cases finalised did not result in formal investigations.” That is the year preceding Adv Mkhwebane, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: They used ADR mechanisms, mediation, conciliation, et cetera. This was also the case in the 2016-2017 period?

Mr van der Merwe: Yes.

Adv Bawa: The backlog had been a long running difficulty, with some cases running beyond for five years.

Mr van der Merwe: Yes. 46 months, 42 months… like that, yes.

Adv Bawa: And so Adv Mkhwebane implemented a different approach, a new model being done, top-down, to eliminate and reduce this backlog and the time periods involved, including weekly task team meetings, extracting commitments for deadlines, by when investigations must be completed, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Then you said the CEO was appointed to manage and reduce the backlog and she was quite effective in doing precisely that?

Mr van der Merwe: Yes.

Adv Bawa: That she developed good relations with the team, put systems into place to speed up investigations and managing the quality control, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: You then refer to two extracts in the 2016-17 report… actually three. Can you just take us through these three extracts?

Mr van der Merwe: Yes. In 2016-17 the backlog matters were reduced by 77%, in line with the investigation plans. The difference in approach is that bottom up is… there is an investigation plan and it depends on the investigator when or not it is escalated or intervention is required from the executive authority. And the top-down approach is that the Public Protector intervenes and sets deadlines for the outstanding matters. And in the next financial year 61% of the cases out of 417 out of 682 cases that were older than two years were finalised by the end of that period. The reason was the complexity of some of the cases that needed to be resolved. The lack of responses, that was for them matters that could not be resolved. And then there was 67% reduction in cases older than a year in 1 April 2016. This was due to investigation teams dedicating more time to actually focusing on the backlog. We recorded… and in the annual report, the reason for the backlog was recorded as “the absence of an electronic case management system delays by the organs of state to respond to the inquiry letters and providing evidence or availing themselves to meetings.” That was the main reason for the backlog. And then in the 2018-19 report, the turnaround time of six months for early resolution was adopted. That is when we started with… that was actually the year before was the service standards. Service delivery matches were given 12 months and GGI within 24 months. And of the cases finalised, 99% were completed within these turnaround times and 77% of the backlog cases that were two years older were finalised. And then in 2019-20 report, the Public Protector again exceeded the target of finalising at least 7000 matters on our caseload by nearly 5000. So 12 000 cases were finalise. The achievement of this… The positive effect… The objective was to finalise 56 reports and it was nearly doubled – more than doubled – 157 reports were finalised, 81 reports more than was targeted and 95% of the caseload were finalised within the set turnaround times of six months, 12 months and 24 months. And to achieve this, it meant a lot of hard work.

Adv Bawa: So essentially there had been significant progress done on the backlog over a number of years, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. So then you say this was achieved with the investigators, senior staff working extensive hours?

Mr van der Merwe: Yes. I know that a lot of has been said about the performance culture of the office, which has obviously also improved but this is not without a lot of stresses and sacrifice amongst the investigative staff because these deadlines were… the delays were there for a reason. That was well recorded. And none of the circumstances changed. We did not have a case management system. We did not have suddenly an increase in cooperation from government departments. So it was mainly because of internal effects and dedication and the hard work from investigators that resulted in the... and the direction and the structures that were put in place that these improvements were achieved.

Adv Bawa: Right. Now, if we then turn to the review applications that have occurred, and the legal fees. You heard the evidence, and you have been party to compiling the schedule, which was largely referred to during Mr Sithole’s evidence, correct?

Mr van der Merwe: That is correct.

Adv Bawa: And if we go to NVM15, we will see from the summary of the total revenue, which is all the money at the Office’s disposal, for the relevant periods, that by far, the bulk of the money for the Office is spent on its human resources, correct?

Mr van der Merwe: Yes. COE, we call it cost of employment. That is for the warm bodies of the Office.

Adv Bawa: You effectively left with just over R100 million in the last two financial years for…

Mr van der Merwe: Operational costs, yes.

Adv Bawa: Yeah. Operational costs, which means the offices that exist across the country, investigations, outreach, administration costs, stationery, telephone expenses and…

Mr van der Merwe: Leases.

Adv Bawa: That is right.

Mr van der Merwe: That is correct, Chair.

Adv Bawa: And if you then go to paragraph 48 of your affidavit, you make the point that as litigation costs increase, it obviously meant that other costs had to be curbed?

Mr van der Merwe: Yes because COE cannot be sacrificed. As long as the positions… the cost there is fixed. The only variable is in terms of operational costs.

Adv Bawa: And so you make the point that it has a knock on effect on investigations when resources become more limited, correct?

Mr van der Merwe: That is correct, yes. Because in the MTEF and Treasury there are funding requirements in terms of additional funds which relate to the additional resources, not COE, not a permanent establishment, but expert evidence and expert witnesses and training and those kind of things that comes from the variable part of the budget.

Adv Bawa: Right. Then you deal with the issue that as more reports get issued, it obviously meant that there's more focus on it and it means they are more reviews, correct?

Mr van der Merwe: Yes because we found that there is general what we call litigious response or culture from government departments. Because the Nkandla Judgment said that if a matter is not taken on review, the remedial action is binding and it must be enforced. So we found that as a default position that many of the institutions would revert to… We raised this as a concern with access to justice, with the Law Reform Commission when they reviewed legal fees as well. But it became a big problem – the escalating number of reviews.

Adv Bawa: Right. Obviously, the costs on cases differ from case to case. In fact, the approach adopted on cases and the persistence of cases would impact on how much is spent on cases as well. Would you agree, Mr van der Merwe?

Mr van der Merwe: Definitely. Yes.

Adv Bawa: You also point out in paragraph 50, how that gives rise to review applications and in paragraph 51, you acknowledge that “mistakes do happen, and errors do occur that cannot be rectified and would result in matters having gone to court. The question is whether you persist in defending the report or you acknowledge the error, and you accept that the report must be set-aside.”

Mr van der Merwe: That is correct, yes.

Adv Bawa: You also point out that “unless the report is remitted, the investigation is not revisited.”

Mr van der Merwe: Yes. Very few if any of the reports that were set aside, would be reinvestigated and re issued. That means effectively that the beneficiaries left without a recourse or redress, for this matter, meaning the public, the people that are the intended beneficiaries of our services.

Adv Bawa: But you also then go further, and you say that a “number of these reports do not go through the prescribed assessment process or there is not sufficient time before it is issued, for it to reach those structures, for it to be properly quality assured.”

Mr van der Merwe: Yes. The two main problems are some of the reports, the challenge or the gap with the report was start with very early in the day when the complaint was lodged and accepted. And there are certain requirements in terms of how it must be assessed. The timelines within which it must be accepted. And some of those reports were accepted without compliance with those timelines. And then later on in the investigation, you get two types of gaps. One is that the view that the court might miss certain processes not complying with principles of the… that is in perception of the courts requirements for a good investigation – open and inquiring mind. Or Then procedural matters, where we did not notify parties of the adverse findings and later on the remedial action. And those are the main areas that then are highlighted by the courts, as areas that result in the setting aside of the reports.

Adv Bawa: Right. And so you say that there are times that these reports have actually not reached the quality assurance mechanisms put in place?

Mr van der Merwe: Yes. Some of the reports would not come through the… because we are currently working on a review standard operating procedure (SOP) but in terms of the general SOP, there was a process after COO. The reports would go through the structures. First, the mini think-tank at unit branch level, then the COO office, quality assurance, and these days what we call the full bench. These are all peer reviewed mechanisms going through the report and then it would be submitted to the Public Protector for signature. Many of these reports, some of the more public interest matters sometimes would not have gone through this peer review process. We wouldn't have seen it as the internal structures of the office. They would have been signed-off by the Public Protector directly between the branch and the Public Protector without going through the peer review and quality assurance mechanisms.

Adv Bawa: Right. And do you use it on those quality assurance structures?

Mr van der Merwe: Yes. Quality assurance and full bench.

Adv Bawa: And before the existence of full bench where you also part of quality assurance then?

Mr van der Merwe: Yes. Quality assurance, knowledge management at the time was part of quality assurance, and we would have been asked to check on an ad-hoc basis if there any specific legal research questions that would pop up. But generally up to the level of quality assurance, yes.

Adv Bawa: Right. And then in paragraph 54, you say that the litigation has been the domain of Legal Services, and they act on instructions from the PP directly?

Mr van der Merwe: That is correct, yes. There is a litigation strategy that sets out the process how we would obtain a principled decision whether or not to oppose or to abide or to… what specific response to the litigation would be. And then there is a process for the appointment of service providers as well.

Adv Bawa: Right. You then point out that there was a… litigation reports would go to MANCO, on which you sat and during the time of Mr Nemasisi you would write a memo to the PP within… what would happen in the matter. A decision would then emerge and an external legal representative is appointed if any and that as far as you recall, Mr Mhlongo adopted the same approach, correct? Have we frozen again?

Chairperson: Mr van der Merwe? Can you hear us, Hon Herron?

Mr B Herron (GOOD): Yes, Chair.

Chairperson: Thank you. So the problem must be with Mr van der Merwe. We will just a few minutes and fix that.

Mr Ngoma: Hi Chair. Mr van der Merwe disconnected again. He is asking for a minute or two to reconnect.

Chairperson: No problem.

Mr Ngoma: Chairperson, Mr van der Merwe is back.

Chairperson: Thank you Mr Ngoma. Mr van der Merwe, are you back?

Mr van der Merwe: Yes, sorry. Thank you, Chair. Sorry, again, for the interruption.

Chairperson: It is fine. You got frozen there. Are you fine now? Mr van der Merwe?

Mr van der Merwe: Sorry, Chair. It shows my internet connection is unstable. If it continues I will go to a third device.

Chairperson: That is fine. Maybe you can switch off your camera for that process and we see how it works.

Mr van der Merwe: Okay. Thank you, Chair.

Chairperson: We are just trying to preserve it. I do not think you would change after this and get another Mr van der Merwe. Adv Bawa?

Adv Bawa: Mr van der Merwe, I pointed out to you in paragraph 55 of your affidavit, the process that was adopted in obtaining the approval from the Public Protector, via memorandum. And you pointed out that Mr Nemasisi’s successor, Mr Mhlongo, adopted the same approach. And that memos would be sent to the CEO to appoint a firm of attorneys to represent the PP and sign-off on the payment of fees. And you then provide an example of how that was done, in NVM16, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. So you then in paragraph 56, point out that the GNR approach was adopted. Could you just tell us what that was? Mr van der Merwe, we cannot hear you. So we are not sure if you are frozen or you can hear us.

Mr van der Merwe: Yes, let me try and switch to another… perhaps it might be better. Can you hear me now, Chair?

Chairperson: Yes, we can hear you.

Mr van der Merwe: Yeah. The connection seems to be quite bad on our side. It is through the office network but I am not sure what is disturbing it. Otherwise, I can just try and revert back to the mobile connection.

Chairperson: Okay. We can hear you. Let us see Adv Bawa speak to you.

Adv Bawa: Right. I asked you to just explain the GNR approach, which is referred to in paragraph 56 of your affidavit?

Mr van der Merwe: Yes. The GNR is when Legal Services signs off that the service has been rendered and the invoice should be paid. We get invoiced in accordance with our tariffs or fees and then Legal Services would check the invoice against the appointment later and work done. And then they would process it through to SCM and Finance and they would process the payment on our electronic system, which is the GNR system.

Adv Bawa: You then say that it is not clear whether the CEO’s attention is drawn specifically to cost the cost of litigation. Could you explain that?

Mr van der Merwe: No, because he or she is not an approver in this GNR process. It happens between Legal Services, Supply Chain And Finance. The CEO would basically only know about the litigation impact if the legal expenditure is presented on a quarterly basis at EXCO or MANCO. In terms of the process, as I found it, it does not need the approval of the accounting officer for the payment.

Adv Bawa: The cost of each case has not been reported individually at MANCO meetings?

Mr van der Merwe: No.

Adv Bawa: So you confirmed with the CEO that once the litigation decision is taken by the PP, the CEO is neither appraised of nor signs off on the legal fees incurred?

Mr van der Merwe: That is correct, yes.

Adv Bawa: So the end user who signs off on it is Legal Services?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. You then, in 57, say that under Mr Sithole, there were matters that were dealt with by an external legal service and there were matters dealt with internally, both unopposed and opposed, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. And the internal opposition was part of a strategy to curtail costs?

Mr van der Merwe: Yes, we expanded Legal Services by the appointment of legal advisors with the intention to oppose matters internally without having to appoint external legal service providers.

Adv Bawa: And Mr Sithole then also appeared personally in court under the misconception that he had the rights of appearance, as a legal advisor, correct?

Mr van der Merwe: Yes, we were not aware of at the time that we could not practice… we were not allowed to operate as legal practitioners appearing in court on behalf of the Public Protector.

Adv Bawa: The legal cost that was incurred was meant to be confirmed against the tariffs and the written appointments by the attorney, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And since you have taken over as Senior Manager: Legal Services, have you found that this had been done in all instances?

Mr van der Merwe: No. We had a number of concerns with a number of firms. Some of them from the onset, some of the invoices that you displayed earlier, show that even after we distributed the tariffs or fees the attorneys would still, for instance, charge an hourly rate instead of already fee instead of an item on the tariffs or fees. And it is a few… they are exceptions, basically. The majority of the legal invoices and statements of account are in accordance with tariffs. But there also have been some matters that have not been and it was acknowledged before the committee.

Adv Bawa: Okay. And there have been cases where you say in paragraph 59, which deals with a table of the summary of judgments and cases we have already dealt with before… You then point out that there have been cases, in your view, that the “PPSA could have opposed more vigorously because the litigation in judgment, served to the essential powers and the discretion of the Public Protector.” But there are “certain reports that are so weak, that they would inevitably be reviewed and set aside and no purpose is served in putting up any kind of defence”, correct?

Mr van der Merwe: Yes, that is correct. It does not matter how much we would argue the facts, the flaws were incorrectable. And the courts were going to find in any event that they would not withstand scrutiny.

Adv Bawa: Right. And you then in paragraph 61, point out that you are not part of the litigation strategy adopted in cases and you cannot talk about why some cases were vigorously opposed from high court right up to the Constitutional Court, while others are not during the same time period when the same financial constraints and resources would have existed, correct?

Mr van der Merwe: Yes. Even in my experience as an investigator, some of the… my own reports when I was an investigator would be taken on review. Some of them would not be opposed and then others, like the Vhembe matter and the NEF matter – the Vhembe matter referred to quite a number of citizens: quite a big group of people. And the report was set-aside, and then that was the end of it. We, at the time of the NEF matter, dealt with an important principle of what we call ‘sorry money compensation’ or redress. And we could not take the matter any further because the report was not strong enough. That was also the end of the matter… well, other matters appeared to be pursued to the highest courts.

Adv Bawa: Right. And so you point out that certain reports that should have been defended was not defended because of lack of funds?

Mr van der Merwe: Yes. If you look at our litigation report, very few, actually now even less… At one point we had about 60 something litigation matters and I think if we were in a position to oppose 20 or more of them… A lot of the matters we had to abide, withdrew opposition or just abide by the outcome, or file an explanatory affidavit. With the litigation costs contributing a lot to those decisions. Just looking at it from expo facto point of view, I was not part of the initial processes but I can just see in the number of reports that were not opposed.

Adv Bawa: Right. And so at paragraph 64, you say that there has been a significant increase in the litigation as well as on the question of legal opinions that is being obtained, and we will come to that in a moment. Not all of it relates to the review of reports, correct?

Mr van der Merwe: Yes, yes. The litigation budget started from, I do not know when, I think it was less than R10 million up to R25 million at one point, but now it is going down again. Yes, it is quite a significant proportion of the operational costs: one of the last largest cost drivers in the Office.

Adv Bawa: Right. So you point out that the number of cases has increased since the Nkandla Judgment, but there is also an increase in the number of reports that will not withstand legal scrutiny?

Mr van der Merwe: Yes. Proportionally because we have increased the output on the number of reports, which were so big, inevitably there would be matters that because of the gaps that I alluded to earlier, in either the inception stage, or the investigation stage or the report writing stage, we would not actually be in a position to defend them.

Adv Bawa: Right, so then… we… In your last sentence in paragraph 65, you say, as far as you can ascertain, it does not appear that any report that was not defended has withstood legal scrutiny. Do I understand that if the Public Protector does not oppose, in quote, invariably it is set aside?

Mr van der Merwe: Yes. There are a very few… Well, we are still tracking some of the reports that because our management reports on this did not have all the information, but we still tracking those matters that went unopposed; and have been set down and have been subject to a ruling. We have not been alerted to any of those where the review was not successful and the report was not set-aside. The only other matters would be by means of a settlement with the institution. But none of the reports that we did not oppose, I think, withheld any legal scrutiny… withstand any legal scrutiny.

Adv Bawa: If we then go to paragraph 66 onwards. We have prepared a number of schedules. We dealt with the reviews in terms of cases. I took the Committee through the labour cases and other litigation earlier on – a few weeks ago. And the outcome of cost orders endeavoured. We sought to separate those from which Adv Mkhwebane dealt with and her predecessor dealt with. The second issue that came up was the question of legal costs, and I am going to put onto the screen the revision of NM17. And this arose as I started to deal with the question of how legal costs incurred, and the Committee then requested a breakdown. Can you go to the first document? Right. Mr van der Merwe, that is the figures for consulting and professional fees for the respective financial years, as reflected in the Annual Report, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. And the first column is the total consulting and professional fees and the second column is the legal fees?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: So if one looks at it, in 2016-17, something like R6.4 million of the R13 million was spent on legal fees, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: At the high watermark of expenses on legal fees, which is in the 2019-2020 period, there was an over-expenditure of more than R48 million on legal fees, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. So in total, although legal fees for the period of 2016 to 2022, reflected a total of R150 (million), close to R159 million for plus professional and consulting fees, approximately R147 million constitutes legal fees?

Mr van der Merwe: That is correct.

Adv Bawa: So would it be fair to say that not professional and other consultants or other professional fees is not a huge component of the amount spent on legal… on this category?

Mr van der Merwe: Yes, you are correct. They are not a significant portion of the expenditure.

Adv Bawa: Right. Now, if we go to the next document… actually, go to the one that says “Seanego payments” first. Can you identify what this document is?

Mr van der Merwe: Yes, it is a document that we drew from our GNR system and from finance of payments on all the invoices that we have processed. These invoices were specifically then for the firm Mr Seanego Inc.

Adv Bawa: Right. And if we go to VZLR payments, we will see the same for that law firm, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And if we go to Boqwana Burns payments, we will see the same for that law firm. It comes off your electronic payment system, if I understand you correctly?

Mr van der Merwe: That is correct, yes.

Adv Bawa: And each of the amounts at the end would either reflect one invoice, or a combination of invoices that is paid on the given date, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: Now, let us go to the document that is called… just before we go to that document, let me take you to paragraph 68 of your affidavit so that we can just put into context as to how it was collated, right? It reflects the legal costs incurred for the years 2017 to the end of May 2022, and a little bit beyond in some instances, correct?

Mr van der Merwe: Yes. Some of them most recently.

Adv Bawa: Right. On the figures that we are now going to show, they are done with reference to the actual fee notes that have been paid correlated to the actual invoices?

Mr van der Merwe: Yes.

Adv Bawa: Right. “There have been some instances where we have not been able to find disbursement documents”, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: “We have tried in almost all the instances to separate attorney’s fees from advocate fees, but some instances, we were not able to do that.”

Mr van der Merwe: That is correct.

Adv Bawa: And so “when we talk about the amount spent on legal fees, it is the attorney rate and the counsel brief, except in the instance of Mr Ngobeni, which will reflect separately”, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. “This”, you say, “should provide the Committee with an indication in broad terms as to what the PPSA was paying for in relation to legal fees, which matters was a priority and on which limited funds will be spent”, right?

Mr van der Merwe: Yes.

Adv Bawa: And “this exercise is done for the purposes of this hearing and not for audit purposes.”

Mr van der Merwe: That is correct yes.

Adv Bawa: So it does not reflect accruals? So it might be an underestimation in respect of any given financial year when something has accrued?

Mr van der Merwe: Yes.

Adv Bawa: And it also would not automatically correspond with your financial statements? Because it uses a calendar year?

Mr van der Merwe: Yes.

Adv Bawa: So it's got a different cut-off period, which you would ordinarily do for purposes of that. Correct?

Mr van der Merwe: That is correct.

Adv Bawa: So if we go to NM17 against that background of an understanding. “I was asked effectively, to provide a breakdown of the funds.” And what you see is of the R149 million for the period in question, you see the payments made in the broad yellow is the total payments that go to the law firms in question on the principle we have articulated, correct?

Mr van der Merwe: Yes.

Adv Bawa: And so if we take the example… We then see that for the period… and we use R2 million as the minimum cut-off for this exercise, correct?

Mr van der Merwe: Yes, only those firms that were paying in excess of R2 million.

Adv Bawa: So it does not account for the full R149 million in this exercise. And we see that two of us law firms was only engaged from the 2018 period on the schedule – the top two.

Mr van der Merwe: Right.

Adv Bawa: Those firm payments comes to those amounts, right?

Mr van der Merwe: Yes.

Adv Bawa: Right. So then we go across the screen, the column in line three is the total of the amount that goes into what's called attorney’s fees. These are all VAT inclusive figures, correct, Mr van der Merwe?

Mr van der Merwe: That is correct, yes.

Adv Bawa: So we see that column being the amount that goes to the attorney. So let us take Seanego, for instance. Of the R55.5 million that we have accounted for, approximately R17 million is the attorney’s fees.

Mr van der Merwe: Attorney’s fees, yes.

Adv Bawa: Right. And if you go down in that column, in column ‘G’, you will then see what Seanego paid out in the remaining amount to counsel, on various matters. And again, we have only taken either the counsel who have earned a significant amount of money or more money or alternatively where they have been involved in cases, which are before this Committee in some way or another. So there are many counsel that have been briefed that are not on this list, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. So essentially, one then sees this total in those columns. And we can see across the board, if we just go to the end of this. The Dyason figure we have not included because we don't have all the documents to be able to divide it between attorneys and counsel, correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. Then you see there's an ‘other category’, right? That is P. Those amounts are which the counsel in those columns have been paid in matters that have not been dealt with by any of these attorneys, but by attorneys who received less funds than R2 million, correct?

Mr van der Merwe: Yes.

Adv Bawa: And in the ‘R’ column, you see the number of matters, in which that is dealt with. So for example, in line six, the counsel would have received an amount of R1.68 million, but that R1.68 million results to six different matters in which he had been briefed, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. In the last column, we specifically deal with the Vrede matter and that is because the law firm who had been initially briefed in the Vrede matter does not fall into the plus R2 million category. Would that be correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. And the law firms changed from appeal. So this is just the High Court matter, correct?

Mr van der Merwe: Yes.

Adv Bawa: The High Court application cost R1.135 million in the High Court, right? That is what the law firm charged.

Mr van der Merwe: Yes.

Adv Bawa: Right. If we break it down per case and the easiest way to do that is let us use one of the law firms as an example. I want to take cases that relate to matters before this motion. In particular, go to the Seanego fees. Let us go to the top. You have the date of invoice, the name of the matter; the amount of the total fees that is attributed to the attorney and that includes disbursements. For Seanego we called it ‘other’ because Mr Ngobeni is not an advocate, so we did not put junior. So what is spent on ‘other’ and we have the SC, what the SC gets. Let us go to the combined totals. So you will see in H’ there is a total of the total amount of fees spent in relation to matters in that regard.

Mr van der Merwe: Yes.

Adv Bawa: Now, in the first category, those were the invoices we referred the Committee to earlier, which relates to the Portfolio Committee and at number four, we make the point of this included the opinion on the court application for the declaratory order. So it was not totally a submission to the Portfolio Committee, correct?

Mr van der Merwe: Yes.

Adv Bawa: That came approximately just over R380 000?

Mr van der Merwe: Yes, for one submission to the Portfolio Committee.

Adv Bawa: These are what the Public Protector, correct?

Mr van der Merwe: Yes.

Adv Bawa: In the ‘A’ column, each one is a different brief and it reflects how many briefs got signed out to a particular attorneys firm, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. And would it be fair to say that by far, Seanego got the most briefs?

Mr van der Merwe: Yes, most of the opinions went to Mr Seanego Inc.

Adv Bawa: Right. Let us just look at the opinions as to what was done. We have dealt with the first one – we have dealt with Tito Mboweni articles. The second one was a legal opinion on crowdfunding. Can you tell us what that related to, Mr van der Merwe?

Mr van der Merwe: Yes. The PP was instructed or directed to pay personal costs orders. I think it was in the CIEX matter. And then the Legal Services were required to source a legal opinion on whether or not it was acceptable for the Public Protector to receive what I called crowdfunding or donations from the public and organisations to cover personal expenditures or expenditure for those… for the personal cost orders. I think the personal cost order in this case amounted to about R350 000 and we spent R213 000 just to get a legal opinion to say that ‘yes, she is entitled to get to get donations’ or to be funded from external sources for the covering of those cost orders.

Adv Bawa: From the evidence of Mr Sithole because I pulled it up on the summary of judgments that the payment due was in the amount of R226 621.94, as per the court order. It was a 15% amount of the total of the tax bill. Mr van der Merwe, I will show the Committee where that came from later.

Mr van der Merwe: Sorry. Then it is my error. I did not know the exact amount. R226 (000) versus R213 (000). Oh, I see. Sorry, it is there.

Adv Bawa: So if you look at the legal opinion, in respect of the PP’s employment of special advisors, this was the opinion that was obtained in respect of the employment of Mr Nyembe, correct?

Mr van der Merwe: Yes, that is correct. In May 2018.

Adv Bawa: Then the next one is the appointment of the opinion on the employment contract of Mr Vussy Mahlangu, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Which ultimately led to his resignation… well, he subsequently resigned, let me rephrase that?

Mr van der Merwe: Yes. Two days or so after the final legal opinion was obtained.

Adv Bawa: Right. So the final opinion comes and according to Mr Mahlangu’s evidence, he resigned on his own accord, two days later.

Mr van der Merwe: That is correct.

Adv Bawa: Then we got two further legal opinions that came… And then we see a legal opinion on the classified IGI Report. And the Ngobeni one, which we already dealt with there. We then get an opinion on the State Capture matter. And then there is an opinion on the CIEX report, which comes in post the Constitutional Court judgment. Are you able to talk to that opinion, Mr van der Merwe?

Mr van der Merwe: I know it was about… Not much, just whether the Public Protector would have been able to reopen the investigation after the report was set aside. I have read the opinion but I have not refreshed my memory. I was not involved at the time, but I think that was the gist of it.

Adv Bawa: So after the ConCourt judgment and… Was this during the time period in which there were some serious financial constraints at the Public Protector’s Office?

Mr van der Merwe: Yes, absolutely. It was close to a million rand.

Adv Bawa: We see a total of about R2.2 million for opinions being obtained at the Public Protector’s Office during this period, right?

Mr van der Merwe: Yes.

Adv Bawa: The next is dealing with the Minister of Safety and Security case – that was an adjunct in respect of the IGI Report, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. There is expenditure of R373 000. We then go to the Nkwinti matter. This is the case that the Public Protector won, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. And there was an expenditure of approximately R2.3 million in total.

Mr van der Merwe: Yes.

Adv Bawa: If we go down, we see in respect of the CR17 matter. We come to a total of approximately R4.2 million.

Mr van der Merwe: Yes.

Adv Bawa: We then go to the DA/CASAC matter and we say approximately R3.365 million. This is only in respect of the application for leave to appeal and the proceedings that followed. Correct, Mr van der Merwe?

Mr van der Merwe: Yes because another firm was involved in the High Court matter.

Adv Bawa: Then in the next category, it appears that… Does this refer to all the Gordhan matters?

Mr van der Merwe: It looks it, yes. Yes, it is all the Gordhan matters.

Adv Bawa: That comes to approximately R16 million… R15.9 million.

Mr van der Merwe: Yes.

Adv Bawa: The case against Basani Baloyi comes to approximately R1.9 million, correct?

Mr van der Merwe: Yes.

Adv Bawa: Then there was some litigation involving Accountability Now, which was a lesser amount for R367 000.

Mr van der Merwe: Yes.

Adv Bawa: Then in respect of the Commissioner of SARS, the subpoena matter, that came to R3.7 million.

Mr van der Merwe: Yes.

Adv Bawa: Then we come to the litigation involving the National Assembly and I just want to point out here, the fee notes start off from 2020, correct?

Mr van der Merwe: Yes.

Adv Bawa: And it comes to R19.6 million. Mr van der Merwe, this is an increase from the previous amount of R14 million that was reported because of the last invoices. Can you just explain that? It comes into the current financial year.

Mr van der Merwe: Yes. Recently there was an invoice that was delayed. We have paid so far the counsel fees on that. That was in respect of the impeachment matter of the Speaker of the National Assembly, and we are settling the invoice on the attorney’s fees. It is a substantive invoice so that explains the amount that was previously reported and the amount that was has now been settled. And there is still an outstanding amount of about R1.7 / R1.8 million we are currently processing on that matter.

Adv Bawa: So although approximately R5 million is included here, and it includes the R19 million total, you have not paid that full amount as yet?

Mr van der Merwe: Not the full amount. The R1.1 (million), I think it's a bit more, but the attorney’s fees have not yet been settled. We are in the process of settling it now.

Adv Bawa: There is a correspondent attorney fee that is included in that amount, correct?

Mr van der Merwe: That is correct, yes. Because we do not have someone on the panel in Cape Town.

Adv Bawa: Then there is an amount for the Madiba disciplinary hearing of R111 000. And then the next one is the criminal matter involving the Public Protector, correct?

Mr van der Merwe: That is correct.

Adv Bawa: That comes to R672 000, approximately, right?

Mr van der Merwe: Yes.

Adv Bawa: Of the total R55 million that you have expended on legal fees, R17 million goes to the attorney, about R17 million goes to the junior and other, and senior counsel bill comes close to R21 million, correct?

Mr van der Merwe: Yeah. That R17 million is less the amount. It includes the amount we have not yet settled. So it is about R15 point… almost R16 million.

Adv Bawa: And it includes disbursements and all of the figures include VAT.

Mr van der Merwe: That is correct.

Adv Bawa: Go back to firm fees. We see the total counsel’s fees as paid per other briefs, in respect of a number of briefs, is reflected there. Go back to Seanego’s fees? Those is what gets paid out in counsel fees and by far the litigation in the Gordhan matter and the National Assembly matter means that Adv Mpofu has been paid substantially more than the other counsel. Would that be so?

Mr van der Merwe: Yes.

Adv Bawa: So let us just go to the VZLR fees. I am just going to do two of them because those are there two highest recipients of fees out of the Public Protector’s Office. We see at the top, that VZLR provided the legal opinion in the matter of the Pillay saga. We see that the second matter is the Mostert matter, which we know was related to the Financial Services Board. Correct, Mr van der Merwe?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: That was also a matter in which the Public Protector was successful in staving off the interdicts there, of the investigation, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: So the Mostert costs R3.4 million. The next matter, which is the Financial Services Board, is the case which Ms Mogaladi gave evidence, correct?

Mr van der Merwe: That cost approximately R6.4 million.

Adv Bawa: There is a matter against something called ‘Osasa’. Can you offhand remember what that abbreviation stands for?

Mr van der Merwe: No, sorry not…

Adv Bawa: It is okay, Mr van der Merwe. Even I've forgotten it now. The Msibi matter is the other one, and it is currently… Is that appeal still pending? You got leave to appeal this judgment, correct?

Mr van der Merwe: Yes.

Adv Bawa: That was about R3 million. Then there was legal opinions obtained during the COVID period, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: We see of the R14 million paid to this firm, it is about R5.5 million to the attorneys, R4.2 to the juniors and R4.6 to the seniors and by far the biggest being in respect of the Tshisevhe matter correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. I want to go, one more, to the Boqwana Burns matter. Boqwana Burns is the attorneys on brief in what was the Breytenbach defamation matter, correct?

Mr van der Merwe: Yes.

Adv Bawa: They replaced another law firm that had previously dealt with the matter. Do you see that?

Mr van der Merwe: Yes.

Adv Bawa: And we see that the cost incurred in the defamation matter was just over R2 million. What has happened in that matter, Mr van der Merwe?

Mr van der Merwe: We are in the process of reviewing. I am not sure if we have withdrawn or in the process of withdrawing but I know the leadership will still engage the Public Protector on that. There is a review of the litigation strategy in that matter because the incident occurred before the appointment of the Public Protector.

Adv Bawa: Yes. And is there interest of the Office in this litigation?

Mr van der Merwe: No, not to my knowledge.

Adv Bawa: Okay. Then if we could just go to the two law firms of Bowmans and Adams. Mr van der Merwe, if we scroll to these cases. These are all cases of costs incurred or costs that commenced prior to the appointment of Adv Mkhwebane, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: If you go down to the total amount, these were costs that arose as a consequence of this litigation, right?

Mr van der Merwe: Yes.

Adv Bawa: The R5.4 million in that regard. If we go to the Adams column, you will see that there are a number of cases in this matter. The matter was Zwane and it was never completed, I think. Mr Sithole’s evidence was that the opposition was withdrawn, correct?

Mr van der Merwe: That is correct.

Adv Bawa: There was a cost order we had dealt with earlier in terms of the van Rooyen matter. There was the Zuma matter that was pending, which the Public Protector’s Office was successful on. I think the Winston Ngcobo, Adv Mkhwebane withdrew. The commencement of this litigation preceded her appointment, correct?

Mr van der Merwe: Yes.

Adv Bawa: Some of these were pending when she came into office and opposition was withdrawn, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: So the bulk of the R6.3 million is not attributed to cases Adv Mkhwebane commenced, correct?

Mr van der Merwe: That is correct.

Adv Bawa: You see there is one that says ‘Fasken fees’. This was the law firm engaged in respect of the Absa leave to appeal application. Correct, Mr van der Merwe?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: So let us do the math. For that, they bill the Public Protector’s office in total R2.3 million. And if you go further down, we will see who preceded them as the attorneys, which is a firm called Bill Motsoeneng and they billed approximately a further amount of just over R6 million. And then the opinion that was obtained by Seanego, correct?

Mr van der Merwe: Yes.

Adv Bawa: Okay. If you go back to the first document, essentially without having dealt with the firms specifically in the R2 million category, we have covered the main ones in the litigation that makes up the R133 000. Mr van der Merwe, the Cheadle one at R4.2 million that is mostly the labour related matters, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: It also includes an amount that was paid in costs in respect of the CIES matter.

Mr van der Merwe: Yes.

Adv Bawa: Okay. If we go back to your affidavit, this essentially dealt with what was set out in paragraph 68/69 of your affidavit. And you have already testified to the contents of paragraph 70, that you had been informed of an endeavour for invoices to be submitted for consulting work through Legal Services. And we have taken you through those invoices, specifically with reference to Mr Ngobeni, correct?

Mr van der Merwe: That is correct.

Adv Bawa: Right. Did you at the time know of the invoices to which the Committee had specifically been referred?

Mr van der Merwe: I just heard that there was an attempt to produce these invoices or submit them through Legal Services, and Mr Nemesis had a problem with that. That was just corridor talk at the time, that there was this panel, as I said, that was advising the Public Protector and that they have tried to obtain the payment from the Office for services that were not related to Legal Services.

Adv Bawa: Then if we go to paragraph 72, you point out the numbers that have been withdrawn and the notices to abide that we had asked for follow-up. You say that is an ongoing process, correct?

Mr van der Merwe: Yes, that is correct. After the Committee has assisted us in getting a proper schedule, we are in the process of following up on those matters that were not opposed.

Adv Bawa: You also point out that there are a number of cost orders against PPSA that to date have not been actioned.

Mr van der Merwe: Yes, we found one where the costs were awarded in our favour in 2000. The Evidence Leaders actually in this process alerted us to that. We are only now in the process of recovering the monies from those cost orders.

Adv Bawa: That was in respect of the Zuma matter, correct?

Mr van der Merwe: That is correct, yes.

Adv Bawa: Right. We have already dealt with in a large part what is contained in paragraph 74, which deals with the budgets and the number of cases that have been litigious. We will go Section F of your affidavit, quickly. Just in summary, Mr van der Merwe, you set it out in quite a bit of detail but if you could just, in summary, tell us what the position was in respect of the electronic case management system of the Public Protector’s Office? Historically, there was an endeavour to do it with foreign funding and… pick up the story from there.

Mr van der Merwe: Adv Madonsela, towards the end of her period, employed a Business Process Engineer because we have been operating without a case management system – we were – for since about 2004. We had one on a subsystem that was not working and was written-off. Then we tried procurement processes and we found that the major problem was that when the product was delivered, it was not within in spec – specification. So Adv Madonsela appointed a Business Process Engineer with the view to draft the specifications for a case management system also to review our business processes. This then resulted in a business process document that informed the… and we got donor funding that was managed through GIZA. And we appointed a service provider to translate or to take the business process document and convert it into a high-level user requirements and specifications for a case management system. When Adv Mkhwebane came on board, there were concerns about the sources of the donor funding. And the donor funding was… We were not going to be able to procure the system through donor funding, it was just for the use of service providers and resources. But that process was then stopped. We tried through procurement processes. We engaged SITA (State Information Technology Agency). In the end, the budget amount that was available when we tested the market exceeded the budgets by far. So we were stuck with our case management system. And then eventually in about 2017, we came across… we were part of the Ombudsman community in broader and some of the other associations. So we were then alerted to a case management system that was developed by the Samoan ombudsman. It was an open source system, meaning that you do not have to procure licences and, and off the shelf system. So we reached out to the developers, and they were prepared to assist us on a pro bono basis. But then… It was called the NHRI system, it stands for National Human Rights Institute. And we made a presentation to leadership and they were interested, although there were concerned about the security of the system, both because the service provider would have been from the UK and the US as well as the fact that we were going to do the development remotely, which means access to our database. And there was a request that we… the system and the developer be vetted by the State Security Agency (SSA). This was in October September 2017. The PPSA team met with the SSA. It was myself, the then security manager, Mr Neshunzhi, Ms Motsitsi and Mr Tebele because there were also other issues that Mr Neshunzhi was raising with the SSA. We asked them, this is the brief, help us to vet the NHRI system. They ended up making a proposal to assist us with the actual development of a case management system based on what they called a capacity and resources on the technical requirements customization and ensuring that correct security layers and requirements were implemented in the system. The SSA was to advise on the technical requirements, customise, ensure that the correct security layers were implemented and the system would be paid for and owned by PPSA but SSA might have been involved in system maintenance and support. A proposal was then developed by SSA and presented to the PPSA leadership; it was called ‘Project Promise’. But when they developed the actual proposal, and it was submitted, the cost, and remember we were not able to pay R7 million for external service providers but the cost they quoted us at the time was approximately R30 million. They were still going to span it over a number of years, but it was still going to be a commitment of several million more than our budget per year. But when we were reporting on the progress with the implementation of the case management system because it was an issue that was constantly raised by the Portfolio Committee and their involvement of the SSA came to the fore. The Portfolio Committee recorded serious concerns and it was even in the media about the proposed involvement of the SSA in the development of the project and that project promise was then abandoned. We re-engaged the pro bono service providers for the open source in a fire hub system, which resumed in 2018. We entered into an agreement for the customization and development of the system on a pro bono basis. We were only going to pay for hosting and licences but then our developer for which we were internally grateful at the time, fell ill during the COVID period. And in the end, we were unable to proceed within him. Last year, we embarked on an in-house development through the secondment of a developer from SASSA, with the assistance of the CEO… for the development of the system. The person then came on board internally – we developed the specifications internally. The development was done internally and the case management system was developed in January 2022. And we have implemented the system with effect from 1 August 2022. This affidavit was drafted before that time. We are now in the process of registering new cases and also migrating cases from the manual systems to the new case management system. So that project has eventually been concluded, or is in the process of being concluded.

Adv Bawa: Your current CEO had previously been employed at SASSA (South African Social Security Agency), correct?

Mr van der Merwe: That is right, yes. Through her interventions and contacts, we were able to get the assistance from a developer. It is not from the institution. They were gracious enough to second a knowledgeable and extremely bright person to us for the development of the system.

Adv Bawa: Mr van der Merwe, there are a few things that are dealt with in general in your affidavit. What had come out in evidence is this issue of whether the Public Protector’s Office actually has a document classification system in place?

Mr van der Merwe: No, we do not.

Adv Bawa: Are the documents at the Public Protector’s Office classified in accordance with the Minimum Information Security Standards?

Mr van der Merwe: No, no. All the contents of case files are confidential by virtue of Section 7(2) of the Public Protector Act which says nobody may disclose it without permission but there is no classification as such. We do not have a marking on top of a document saying ‘secret’, ‘confidential’, ‘top secret’.

Adv Bawa: Then in paragraph 93, you point out that your service delivery methods do not require classification and they are by far the majority of the complaints received by the office, correct?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: And about 70% deal with service delivery and 30% deal with GGI matters of ethical unethical behaviour, procurement and elements of corruption?

Mr van der Merwe: Yes, that was the last…

Adv Bawa: And you have been there for… since the first Public Protector?

Mr van der Merwe: Yes. In January next year, it will be 26 years.

Adv Bawa: Right. And you say that the only time you came across a document in relation to which secrecy was involved was the Bank contract, which involved no classification?

Mr van der Merwe: Yes, that is correct.

Adv Bawa: You also point out that “There was a change after the Nkandla investigation because prior thereto the Public Protector’s Office had mostly bread and butter matters and the complainant was the person in the street, and not politically sensitive matters”, correct?

Mr van der Merwe: Yes.

Adv Bawa: Right. You then point out that… maybe you should talk to your next two paragraphs, 96 and 97, Mr van der Merwe?

Mr van der Merwe: Yes, I have alluded to it earlier our annual report would show that there was a drastic reduction in the backlog matters and narratives that was put to most of the witnesses. And it was because of the culture of poor-performance that was turned around. I have made a note here of the “unprecedented performance, established through the think-tank, Dashboards, the task team and the new culture introduced by the Public Protector, which also resulted in a clean audit.” And while those structures And so on might have been also contributing factors, I wanted to address this impression of a culture of poor-performance because the annual reports and our presentations to Treasury, and whenever we wanted to motivate for additional resources, clearly stated the impact of the lack of resources; the lack of training; the lack of enough resources; the increasing complexity of cases as having… And we were, in fact, stating that it was rendering the Office unable to exercise and perform its constitutional function. So those factors cannot be left aside. And in my view, this is an opinion matter coming from my experience and observations in the office. The backlog did not just arise because of performance issues. There were factors beyond the control, and that has always been recognised. So what has happened in performance culture, was not addressing poor performance, but just making – well, that is my observation – people work harder than they were already working. The issue of deadlines was proposed as it is not unreasonable to put a deadline because if you look at the matter holistically to put a deadline to finalise a matter that is older than 42 months, and to say that you must commit to finalising this matter in the next six months… six weeks, is very reasonable and accurate for that delivery. But it does not take into account that the reason why the matter was delayed was not because a lack of a deadline. Am I still audible?

Adv Bawa: Yes.

Mr van der Merwe: Lack of a deadline or a lack of commitment. It just forced the investigators to work towards an end goal. As I said it was a top-down approach, because it was expected from investigators to escalate delays and implement investigation plans. And there is a lot of reasons why that process was not as effective as the top-down approach where deadlines through the think-tanks and through the TT (Task Team) and the Dashboards, forced people to commit, which caused a lot of stress. And in the end, it yielded the result. But as I say, the only way in which people could meet those deadlines must work harder than what they were already working. It was not the factors that caused the matter to be delayed for 42 months… did not suddenly disappear. They were just forced to the point where they now had… if they say did not comply, there would have been consequences. So that is the change in my perspective that I wanted to address on the issue of performance. The contribution is obviously from the leadership but also, I want to emphatically say that it is not in my view, a question… because the audits, everything else, would not have reflected and our request for funding would not have reflected the incapacity issues, and the capacity constraints and limitations if it was just a question of poor performance. Thank you, Chair.

Adv Bawa: Then finally, you make the point in the last paragraph, that “whilst the issue arose of financial constraints in the context of an investigation in the report, there had been austerity measures” but you were not aware of a directive at the time that any litigation should not be conducted because of financial constraints, correct?

Mr van der Merwe: That is correct. The only, as I indicated, investigation that could not be finalised was the State of Capture Report. And you could have seen the amount of money and resources that eventually had to be expended on the finalisation of that investigation. But then the investigation was completed up to a point where we were able to make findings and remedial action. There were no other investigations that were suspended because of financial constraints in the context of reports, or a directive to this nature.

Adv Bawa: Mr van der Merwe, just one last part that I could not find when I took you to it. Could you just put NM17 back on the screen? There were two issues I should probably clarify to the Committee. As I fumbled around a little bit. If you go to the document that says ‘Fasken Fees’, the total, which I was fumbling and trying to get to the Committee on the Absa matter, was R10.1 million. Furthermore, in respect of the Reserve Bank case, taxed amount was R1.5 million of which the PP was ordered to pay 15% personally, being an amount of R226 621. Both amounts have been paid in full by the PP and the PPSA, as per the court order. Correct, Mr Van der Merwe?

Mr van der Merwe: That is the correct amount. We paid R213 000 for a legal opinion to verify that the PP can recover R226 000.

Adv Bawa: Right. And effectively you were correct about the R350 (000) because that was the contingent amount that was catered for prior to the actual amounts having come through on taxation.

Mr van der Merwe: Yes.

Adv Bawa: Yeah. Those are…

Chairperson: Thank you. Mr van der Merwe, you can now switch on your camera.

Mr van der Merwe: Thank you, Chair.

Chairperson: So you have just completed one part of a four part section, which is the leading of this evidence; to be followed by cross-examination; to be followed by questions by Members; and if any to be followed by any outstanding questions from the Evidence Leaders. But for today, that is where we are going to pause. And please do not go away – stay on the platform. As agreed yesterday, before we conclude, I am going to invite the Secretary of the Committee, Mr Ngoma to share with the Members the draft programme of what will happen next, from today. Thereafter, once Members commented on that programme, we will go towards closing. Mr Ngoma, please take us through.

Committee programme
Mr Ngoma: Thank you, Chairperson. Good afternoon to you. Good afternoon to Members and good afternoon to Mr van der Merwe. Chairperson, the first two columns on the programme would indicate the meeting of yesterday and today. From tomorrow, which is the third until the eighth next week, we are allocating those days to the Public Protector to prepare for cross-examination of the remaining witnesses, which is in this instance, Ms Nelisiwe Thejane, which is scheduled for Wednesday next week and the cross-examination of Mr van der Merwe, which is scheduled for Thursday and Friday next week. You will see, Chair, on the programme, that it is two days, reflected there on Mr van der Merwe. And you would see that those two days are allocated for the cross-examination and also the question by Members. Then Chairperson that will then conclude Phase One of the Hearings. Chair, the following week, after the 11th, would then be afforded to the Public Protector legal team to prepare. That will also include the week thereafter, which is the week beginning 21 November, which is also to allow for the team to attend to legislation that is set for that week. Then, Chair, we will resume on Monday 28 November for Phase Two of the Hearings where the Committee is set to hear witnesses of the Public Protector. So those Hearings, Chair, are set for that whole week and the following week, until 9 December. Obviously, Chair, we will allow time for the break because it will be in December. Then, Chairperson, depending on whether we complete the hearings of the Public Protector witnesses by that Friday 9 December… If not, we will continue with those hearings in January. For now, Chairperson, the Committee is set to resume on 23 January for closing arguments, which is set for five days and then 30 January is then the Committee deliberations. And as we always do table correspondence; review the programme; adopt minutes of the Committee – something which we have not done for a while. Chair, then we anticipate that from the end of January until the first week of February the Committee support staff would be drafting the report, which will then be deliberated on 15/16 February. And we expect that on 17 February, the Committee will consider and adopt a draft report, which will be sent to the Public Protector for comment. We will give her about 20 days to comment on that report. The responses will then considered by the Committee on 27 March. As it stands, we expect that the Committee will adopt the final report and table it to the National Assembly by 29 March 2023. That is the final draft programme that I have presented to the Committee. Thank you, Chairperson.

Chairperson: Thank you, Thembinkosi Ngoma. I am going to invite you, Hon Members, for your brief comments, if there any suggestions about things you think must be considered for changes And so on. And your comments are only confined to the programme at this stage because you will still have an opportunity to engage with other matters. I see Hon Xola Nqola, Hon Gondwe, Hon Dlakude.

Mr X Nqola (ANC): Yes. Thank you, Chair. Just a slight proposal in respect of the programme. Can we not deal with the minutes for 2022 on the last day of 2022, so that we adopt all of them before we close for December? We will adopt the rest when we come back.

Chairperson: Alright. Adoption of minutes. Thank you Hon Nqola. Hon Gondwe?

Dr M Gondwe (DA): Thank you, Chair. Mine is more of a clarity seeking question. I did not quite catch why we have that huge break between the 11 and 28 November. That's a good 17 days that we are not sitting.

Chairperson: Okay. Thank you. Before I go to Hon Dlakude, do you quickly want to clarify that Mr Ngoma – the long break?

Mr Ngoma: Thank you, Chairperson. As indicated, the PP team requested that we afford them some time to prepare for their witnesses and also indicating what is contained in the directive – the number of days that we would afford the… But we are also aware, Chairperson, they will be preparing for litigation that is taking place in the week of the 21st. So that is also to afford them time to prepare for that. Hence the Committee resuming on the 28th. Thank you, Chairperson.

Chairperson: Thank you, Mr Ngoma. Clarified Hon Gondwe? Follow-up? Yes?

Dr Gondwe: Chair, it is a good 17 days but do they really need all that time? Not that I am being unreasonable, but I am looking at the fact that time is against us. I mean, even finishing our business in March next year, it is still cutting too, too, too short. We have to factor in eventualities and the like, you know? That is just a concern I have but I guess I understand.

Chairperson: Thank you. Hon Dlakude?

Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. What a long day. Hon Chair, I want to differ with my colleague here, Hon Gondwe, and agree with Mr Ngoma on this programme of the Committee. Remember when we first started, we were advised that we must conduct our work in a fair manner? Also taking into account that this is not the only Committee that we are serving in, there are other committees of Parliament. Also I believe that the Evidence Leaders will have enough time to do the other work. And the PP will be given enough time to prepare for her witnesses. Hence, I am supporting this proposal. Also to remind ourselves that our programme is a living document, which is always flexible. Thank you very much.

Chairperson: Thank you for reminding us of the living document. Thank you. There are no other hands. I think the issue raised to create a slot for adoption of the minutes so that 2022 is closed properly. Mr Ngoma will take that up. I think there is clarity on what seems to be a long break, maybe as we go, you will be able to see. We will still look into that, but Hon Dlakude has tried to respond to that. But your concern is taken about that. You do not want to miss the Chairperson and this Committee; otherwise there is going to be lull. Thank you Hon Gondwe. Maybe before I summarise the way forward and closure, Adv Bawa?

Adv Bawa: Yes, Chair. There is an issue that I do need to address. It is often referred to that the Evidence Leader’s last witness is Adv van der Merwe. He is not our last witness. Ideally, we would have preferred our last witness to be the Public Protector. And the reason for that is that you would be aware that under the directives and the rules, there are a number of affidavits that are part of the court papers including affidavits of the Public Protector. We have not sought to deal with that and duplicate it in oral evidence. But there are pertinent questions that arise that that we will need to put to the Public Protector in that course. In light of an indication that Public Protector seeks to lead other evidence that would then arise in asking those questions after those witnesses had been led. I had also in passing indicated that there are particularly the investigators that dealt with the Gordhan matter, we have not called as witnesses. And they are on the Public Protector’s list. And it may well be, depending on the evidence, that we may need to subsequently depending on how the evidence unfold, the committee may benefit from hearing from them. Very early on in the proceedings Adv Mpofu had indicated when he cross-examined Mr van Loggerenburg that he intended to call them. And so it must be quite clear that this is not a trial where there is a closing of a case. This is an inquiry in an inquisitorial instance, in which one component of what we put before the Committee has concluded and that's the oral evidence from our side.

Chairperson: Thank you, Adv Bawa: I have just been reminded that the Public Protector sent an email to Thembinkosi that she needed to be at the airport, so I do not want to keep you any longer. That, colleagues, concludes our meeting today, until we resume next week. Thank you very much. The meeting stands adjourned.

The meeting was adjourned.