PP Inquiry day 39: Nelisiwe Thejane

Committee on Section 194 Enquiry

09 November 2022
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary

Video (Part 1)

Video (Part 2)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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


Parliament media statement: The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, rejected claims by her legal team that it has been violating the PP’s rights and as currently constituted, operates like a kangaroo court.

The Chairperson made his final remarks after allowing Adv Dali Mpofu, SC, the time to place issues relating to what transpired on 27 October – when the PP legal team abruptly left the Committee meeting – and the events that transpired thereafter, on record. After noting Adv Mpofu’s stated reasons for why Adv Mkhwebane’s legal team left the meeting, Mr Dyantyi expressed the Committee’s rejection of them. He further indicated that the process was in accordance with the National Assembly’s instruction for the Committee to continue the Inquiry.  

Adv Mpofu voiced discomfort with the time allocated to lead his witnesses. He said Adv Mkhwebane, alone, would take up the full ten days that have been allocated. As such, he requested that the Chairperson afford her more time to prepare and lead her witnesses. To which the Chairperson indicated that discussions were underway between the Evidence Leaders and the PP legal team on concluding her leading of witnesses by 6 rather than 9 December.

Another issue raised by Adv Mpofu was the Evidence Leader’s decision to make public the fees paid by the Public Protector to certain advocates and attorneys, to defend Public Protector South Africa (PPSA) reports taken on judicial review. He claimed that the disclosure has put those lawyers and their families in danger of being targeted by criminals. Also, he felt that this was an attempt to target black lawyers, and he called for the names of white lawyers who have previously represented Parliament, to also be published.

During the deliberations on Adv Mpofu’s submissions, the majority of the Members indicated supported the Committee’s previous resolution to continue with its hearings. Adv Mpofu’s assertions that the Committee was racist and had held the PP hostage in a previous sitting, were strongly rejected by Members.

Earlier during the proceedings, the Committee heard the cross-examination of Ms Nelisiwe Thejane, Executive Manager: Provincial Investigation and Integration: Inland at PPSA. Ms Thejane’s cross-examination focused on Charge Four of the Motion in terms of which Adv Mkhwebane is alleged to have intimidated, harassed or victimised staff or alternatively failing to protect staff, harassment or victimisation from the former Chief Executive Officer, Mr Vussy Mahlangu.

Adv Mpofu put it to the witness that her affidavit did not contain her own words and that she was, in fact, a disgruntled employee. Ms Thejane rejected this and said she was requested by the Evidence Leaders to assist the Committee by explaining how the Office of the PP was managed and staff was treated. Speaking on the issue of backlogs she said the PP wanted to deal with the backlog of cases but the unrealistic deadlines affected the quality of the investigations. 

Meeting report

Chairperson: Good morning to everybody, on this day, the 9 November, 2022. It is exactly 10:00, which is the time to start our meeting. Allow me to welcome the other Members of this Committee, those who are here physically at M46, and many of you on the virtual platform. Let me welcome the Public Protector and her legal team, who are all on the platform. To recognise Evidence Leaders, who are with us. The members of the media; the entire support staff of the Inquiry and members of the public who are with us in their various platforms. Welcome to the resumption of the Section 194 Inquiry. I just want to indicate to you that the Committee, when it met last week, reinforced and refreshed its programme of action, as would have been sent and be seen by everybody in terms of what would happen from today, tomorrow and Friday. That today, tomorrow and Friday, the single purpose is to ensure that cross-examination continues with the two witnesses: Ms Nelisiwe Thejane and Mr Cornelius van der Merwe. And that by Friday we will take a pause and resume in terms of our programme on 28 November. I want to first check if Ms Nelisiwe Thejane is on the platform?

Ms Nelisiwe Thejane: Morning Chairperson and Hon Members. I am on the platform.

Chairperson: Ms Thejane, are you on the platform?

Ms Thejane: I am Chair. Can you hear me?

Chairperson: Okay. We can see your visuals… your face but we cannot hear you. Let us check if it is you or any other Members. Hon Holomisa, can you hear us?

Mr B Holomisa (UDM): Yes, I can hear you, Sir. I can hear you.

The Chairperson: Hon Holomisa, can you hear us? We cannot hear you.

Mr Holomisa: I can hear you.

Chairperson: Okay. Give us two to three minutes to sort that out with ICT and then I will proceed once that is attended to. And I already see a hand from Adv Bawa. I will entertain that once we are connected with the system. Hon Holomisa, can you hear us?

Mr Holomisa: I hear you, Sir.

Chairperson: Thank you Hon Holomisa. Ms Nelisiwe Thejane, can you hear us? I am just testing if we can hear you.

Ms Thejane: Yes, Chairperson, I can hear you clearly.

Chairperson: Okay. Before I proceed, there is this disturbing hand. Adv Bawa?

Adv Nazreen Bawa: Good morning, Chair. Chair, you will recall that last week we had put certain numbers before the Committee in respect of legal fees. And we need to place something on record about this. There were few errors that they would need to correct. I am in the Chair’s hands on this.

Chairperson: Thank you, Adv Bawa. Let me just say this… I hear that you want to put certain things on record in relation to what you have presented last week. Let me just say this, because I have received correspondence from the Public Protector, asking to also place certain matters on record in today’s meeting. I think let me start with you. We met as I indicated and decided that today, tomorrow and Friday, we have got a single purpose of what we want to. I hear what you are saying, I am not going to entertain you placing those matters on the record now because I am interested that we deal with matters related and relevant to the witness on the stand. And the Public Protector, I would have asked an hour and a half to place things on the record. That hour and a half will be granted. But it will also be granted after we have listened and given opportunity to the witness, Ms Nelisiwe Thejane. Ms Nelisiwe Thejane has been here since 10 September – would have been here on 13 September; would have been here several other times after that. It is not fair. And it is downright disrespectful of this Committee to call her into sessions and let her wait – not even 10 minutes that you require for placing on record or the hour and a half before she is cross-examined. We will allow that once Ms Thejane is cross-examined which will be happening today. If that is your request I am declining it as the Chair, for now and we will attend to it. You will be free to place those matters on the record. I am also indicating that the request by the Public Protector to have an hour and a half before cross-examination to place certain matters on record is also deferred until we complete the cross-examination of Ms Nelisiwe Thejane today. All of that will be allowed. But it is only fair that we start prioritising what was asked for this meeting and even in the agenda – that is what it is. Later on Thembinkosi will place a number of correspondences and that will happen after the Public Protector’s team has placed things on record. But as for now, the readiness, and after that delay of the IT, it is about us respecting the time and rights of the witness, Ms Nelisiwe Thejane. I will attend to the other requests that have been placed both in writing from the PP, and you as you are raising it now verbally. I hope that helps and I hope that makes sense. I now want to recognise Public Protector, Adv Mkhwebane, and your team, having welcomed you in this meeting. I have just indicated my response as Chair to the request that has been made in writing to ask for a certain amount of time to put things on record. I have indicated how that will unfold. I am recognising you now to help us with your team to start the cross-examination of Ms Neliswe Thejane. Thank you.

Adv Dali Mpofu: Hello. Good morning.

Chairperson: Good morning. We can hear you.

Adv Mpofu: I cannot hear you properly. It is a bit faint, Chairperson. But I just heard what you said now. Yeah, it does make a bit of sense, Chair, because some of the issues, particularly the one raised by the Evidence Leaders, is more related to the next witness. So I can understand where you are coming from. But, Chair, with your permission, I do just want to say that maybe if I can define for you the issues that we wanted to raise include the 27 October events – the issue of legal representation, the way forward and the programme, and an update to the Committee about the litigation, including the review and all that. But because of your ruling, some of those would have been proper, particularly the issue about the 27 October to place before we move any further, so that you can clear the air on some of those issues, but we respect your ruling. And so what we will then do is to deal with those issues, even those that properly speaking should have been dealt with upfront so that our participation here is clearly defined. So it might be illogical to have that participation and then define it later. But I understand what you are saying. So unless if you allow me to deal with that aspect of 22 October, or if you stick to your ruling, then we will move on to the cross-examination, Chair?

Chairperson: Thank you, Adv Mpofu. I share the difficulty that you are expressing in terms of issues being intertwined. I am respectfully going to ask you that, at this stage, we stick with the ruling and proceed with cross-examination, understanding the issues that you are raising and you would have the required time to fully place things on record without being put on pressure because of the witness. I would request that we proceed in that way. Maybe before just for the record to indicate to Ms Nelisiwe Thejane, you are still under oath as always you have been and therefore as we continue with this cross-examination, that still stands. And I want to hand over to Adv Mpofu.

Adv Mpofu: Thank you very much, Chair. Thank you. Thank you. Chairperson, we indicated in our letter to you how we are going to approach this cross-examination broadly. But if I may indicate to you that we will do it in two parts. I will come in at the end. The first part is going to be done by Adv Tshabalala who is going to take the witness through some of the issues, and then I will come afterwards with your permission, Chairperson?

Chairperson: It is in order. Please proceed in that way.

Adv Mpofu: We have a bit of a problem with the devices here, so Adv Tshabalala will come and occupy my seat. Just give a few seconds.

Chairperson: Just be careful he does not take over completely.

Adv Mpofu: You never know. This is Africa, Chair. I will watch him. I will watch him. I will get Gen Holomisa to advise me how to deal with such things.

Mr Holomisa: Order, advocate.

Chairperson: Adv Tshabalala, I am going to give you time to settle and prepare yourself but we are going to be in your hands.

Adv Bright Tshabalala: Morning, Chair.

Chairperson: That is too soft. We know that you are not a hard talker but that is getting even worse now.

Adv Tshabalala: Okay, I will try again. Morning, Chair.

Chairperson: That is better, Adv Tshabalala. Go ahead.

Cross-examination of Ms Nelisiwe Thejane

Adv Tshabalala: Morning Hon Members. Morning, Ms Thejane.

Ms Thejane: Good morning.

Adv Tshabalala: Yes. How are you this morning, Ms Thejane?

Ms Thejane: I am well, thank you very much Sir. How are you?

Adv Tshabalala: Thank you. Ms Thejane, you have a degree in law?

Ms Thejane: Yes, I do.

Adv Tshabalala: In fact, you have two law degrees.

Ms Thejane: That is correct.

Adv Tshabalala: A BProc and a LLB?

Ms Thejane: That is correct.

Adv Tshabalala: I cannot hear you, Ms Thejane.

Ms Thejane: That is correct. Can you hear me now?

Adv Tshabalala: So it is fair to say you are well-educated? Mr Chair? Ms Thejane is freezing.

Chairperson: Yes, Adv Tshabalala. Ms Thejane, can you hear Adv Tshabalala properly?

Ms Thejane: Yes, I can hear him clearly, Chair.

Chairperson: Yes, because there seems to be a long pause between the two of you. So I want to make sure that you hear each other. Adv Tshabalala… so that we test it first, you are struggling to hear Ms Thejane?

Adv Tshabalala: Yes, there is a long pause, Chair.

Chairperson: Yes, I have realised that. Let us test that again between the two of you. Ms Thejane, if you can answer that question that says you are a well-educated person with two law degrees, as a response to Adv Tshabalala?

Adv Tshabalala: Should I repeat the question, Chair?

Chairperson: Go ahead, Adv Tshabalala.

Adv Tshabalala: Ms Thejane, I understand that you also have experience in programming forensic and investigative auditing?

Ms Thejane: Yes, Adv Tshabalala.

Adv Tshabalala: Do you have any qualifications in these areas?

Chairperson: Adv Tshabalala, the problem is not on your side. The two of us we can hear each other. I think the problem is with Ms Thejane on her side because she continues to have a long pause in responding to the question. So I do not know what you need to fix there, Ms Thejane, so that you are able to connect properly with Adv Tshabalala because you are going to be with him for some time. So we need to fix that.

Ms Thejane: Okay, Chair, it does say my network bandwidth is low. I am going to change back to my router. When I was connected to my router, I lost connection completely, so I am back on the office network. I am just going to change again to the router and see if it will improve. Otherwise…We have been experiencing network problems since yesterday.

Chairperson: Okay. Please fix that. We will give you a minute or two whilst Adv Tshabalala is waiting, so we do it properly. Can you take a pause, Adv Tshabalala just for a while that so that she fixes that network issue?

Adv Tshabalala: Thank you, Chair.

Ms Thejane: May I check now, Chair, if it has improved? I am now on my router. Before I call IT, I just want to check?

Chairperson: I will ask Adv Tshabalala to test it because it is always a problem between the two of you there. Can you test it to see if it works?

Adv Tshabalala: Yes. Can I proceed with the same question? Can you hear me, Ms Thejane?

Ms Thejane: I can hear you. I just want to check if there is a time delay this time around?

Chairperson: There is no time delay this time around.

Adv Tshabalala: Yeah. It is improving.

Ms Thejane: Okay. I will stay on my router then.

Adv Tshabalala: Yes. Let us see how far we can go. So you have testified that you have experience in programming and forensic and investigative auditing?

Ms Thejane: I have studied that through UNISA. That was part of my studies. Can you hear me?

Adv Tshabalala: Yes. You studied programming and forensic investigative auditing?

Ms Thejane: Yes, I did.

Adv Tshabalala: But in your affidavit, you only mentioned that you have an experience in programming and forensic investigative auditing? If I may refer you to Bundle B? If someone can put up Bundle B?

Chairperson: Okay. Bundle B, what page?

Adv Tshabalala: Page 4345.

Chairperson: They say it is Bundle D. 4345?

Adv Tshabalala: Sorry, yes. It is Bundle D. Ms Thejane, may I refer you to paragraph 7 of your affidavit?

Ms Thejane: Yes, I am there.

Adv Tshabalala: There you say: “I have a law degree (BProc LLB) as well as experience in programming and forensic and investigative auditing.” You do not mention that you have an academic qualification in those areas.

Ms Thejane: That may just be an oversight in including the actual qualification. But yes, I do have… It is a certificate that I got through UNISA.

Adv Tshabalala: Okay. Also you have testified that at some point you were employed at the South African Post Office?

Ms Thejane: Yes.

Adv Tshabalala: As a senior manager?

Ms Thejane: That is correct.

Adv Tshabalala: Do you have any qualifications in management?

Ms Thejane: No, I have not studied a management course, necessarily. It is experience that I have gained.

Adv Tshabalala: Okay. And you have testified that you have an LLB degree. Do you have any practical legal experience?

Ms Thejane: No.

Adv Tshabalala: You have never practiced the law before?

Ms Thejane: No, I have not.

Adv Tshabalala: So your evidence is that although you have experience in management but you have no qualifications and also that although you have law degrees but you have no…

Ms Thejane: Chair, may I check again… pardon me advocate. I can see that you are talking but I cannot hear you. Chairperson, can you…?

Chairperson: Yes, we hear both of you. Adv Tshabalala, maybe if you can just increase your volume, we can hear you much softer than her. Just increase your volume – she seems not to hear you.

Adv Tshabalala: Yeah. It is not a volume thing, Chair. My volume is on maximum.

Chairperson: Can you engage with Ms Thejane and we see whether it can improve? I would not push you beyond how you can do it in terms of the volume, so I accept that.

Adv Tshabalala: Can you hear me, Ms Thejane?

Chairperson: Adv Tshabalala, please pause. It is clear the problem is with her.

Ms Thejane: Chairperson, may I check if you can hear me clearly?

Chairperson: I can hear you clearly but I am going to ask that Adv Tshabalala tests that with you. Over to you, Adv Tshabalala.

Adv Tshabalala: Can you hear me?

Ms Thejane: Yes, I can hear you clearly. I hope my line is also clear?

Adv Tshabalala: Thank you. Yes, my proposition to you was that although you worked in management position, but you have no academic qualification in management?

Ms Thejane: No, not in management.

Adv Tshabalala: Yes. You have two law degrees but with no experience – no experience in law.

Ms Thejane: May you explain how you define experience?

Adv Tshabalala: The first question I put to you was, do you have any practical legal experience and your answer was no, you do not have it. So the follow up question is in management, you work in management but you have no qualifications. In law, you have qualifications, but with no experience. That is the proposition that I am putting to you.

Ms Thejane: I would differ in terms of the law practical experience, in that I did not practice law – in practising law going to court – but I have worked in the legal environment to understand and to gain the experience within the legal environment I have worked in. So if you are referring to actually practising law, yes, I have not done so to the extent of going to court but I have worked in the legal environment.

Adv Tshabalala: Okay, let me put it this way, Ms Thejane. Did you do your articles?

Ms Thejane: No, I did not do articles.

Adv Tshabalala: Yes. Did you do your pupillage?

Ms Thejane: No, I did not.

Adv Tshabalala: So that is what I am saying. You have no practical legal experience, either as an attorney or as an advocate. Do you understand that?

Ms Thejane: Yes, in the manner that you put it.

Adv Tshabalala: Yes. Would it be fair to say to you that you have no genuine expertise in the law?

Ms Thejane: May I ask a definition of 'genuine expertise'?

Adv Tshabalala: I mean knowledge in a particular field… practice of law. You have never been to court. You have never handled the case. This is what I am putting to you.

Ms Thejane: That would suggest that anyone who has not practiced or gone to court, but is in any other legal field and capacity in playing that role, then would not have such capacity. I would actually differ with you because one can gain experience in management, as well as in certain legal fields, especially where one is actually focusing or has worked to gain that kind of experience. So to that extent, I will then differ with you.

Adv Tshabalala: Ms Thejane, maybe I should clear this because I can see we are going to have a long way today. Can you try to be less technical, and no less informative, please? We all know what we are talking about. You have never practised the law, which means you have no practical legal experience. I am trying to speak to you with brevity here. As simple as that. You have never practised law. So you have no legal experience, practical experience, as simple as that.

Ms Thejane: Yes, if you refer to going court, I agree with you. I do not have that kind of experience.

Adv Tshabalala: Exactly. Let us come now to the second part. You have been in management but you hold no qualifications in management. You only draw from experience in management. Otherwise you have no academic qualification. Again I will take you back and say you have no genuine expertise in management.

Ms Thejane: I differ with you. I disagree.

Adv Tshabalala: Let me put it… Okay. No qualifications in management?

Ms Thejane: I would agree that I do not have qualifications in management.

Adv Tshabalala: Can we… I have already referred you to your affidavit but can we... I refer you to your affidavit again, and confirm a few things. You say you deposed to this affidavit at the request of the Evidence Leaders?

Ms Thejane: Yes, I did.

Adv Tshabalala: But what do you make of this affidavit? Does this affidavit constitute your evidence?

Ms Thejane: Yes, it does.

Adv Tshabalala: And you are happy with it?

Ms Thejane: Yes, I am.

Adv Tshabalala: So… let me paraphrase. So you agreed to be a witness for Evidence Leaders to assist this Committee?

Ms Thejane: Yes, I did.

Adv Tshabalala: Did you know that this Committee was established in terms of Section 194 of the Constitution?

Ms Thejane: Yes.

Adv Tshabalala: It is a Committee for the removal of Adv Mkhwebane from the Office of the Public Protector on grounds of misconduct and incompetence. Yes, Ms Thejane?

Ms Thejane: Yes, it is.

Adv Tshabalala: And this motion was initiated by the DA through it’s then Chief Whip, Ms Mazzone?

Ms Thejane: May you repeat that?

Adv Tshabalala: Yes. I am putting to you that this motion for the removal of the Public Protector from office was initiated by Ms Mazzone, the then Chief Whip of the DA?

Ms Thejane: Yes, that is my understanding.

Adv Tshabalala: In support of her motion for the removal of the Public Protector, Ms Mazzone formulated four main charges and a multitude of sub charges. Are you aware of that?

Ms Thejane: Yes, I am aware.

Adv Tshabalala: Part of your job is to assist this Committee to gather evidence to substantiate the charges formulated by the DA through Ms Mazzone.

Ms Thejane: Well, may I also get an understanding because this is a Parliamentary Inquiry? While the motion may have been submitted by Ms Mazzone, it is a Parliamentary Inquiry. So I am then assisting the Committee as requested by the Evidence Leaders.

Adv Tshabalala: Yes. But the proposition I am putting to you is that this motion was formulated by Ms Mazzone, a DA member. That is the proposition I am putting to you. Are you aware of that?

Ms Thejane: Yes, I am aware of how the process started.

Adv Tshabalala: And this Inquiry is proceeding on the basis of that motion – of the DA motion. That is what I am putting to you.

Ms Thejane: Okay. I note that.

Adv Tshabalala: More particularly your evidence is relevant to Charge Four of Ms Mazzone’s motion.

Ms Thejane: May I understand, with your permission also, Chairperson, because the focus is on Ms Mazzone whereas there were other processes that led finally to the Parliamentary Inquiry also being convened. So while I follow your line of questioning or proposition as you indicate, there were other processes.

Adv Tshabalala: Maybe I may be able to assist the Inquiry here. There was a debate as to whether this process or Inquiry should proceed on the basis of the Independent Panel’s report. Then a ruling was made by this Committee, through the Chairperson, that we will only proceed on the basis of Ms Mazzone’s motion. Just to qualify that may I refer you to Bundle C, the amended directive. Can you flight it for me, please? Yes. Then may I refer you to paragraph 1.5. You see there? ‘Motion' means the motion of Ms NWA Mazzone MP”. Can you see that?

Ms Thejane: Yes, I can see that.

Adv Tshabalala: So we are proceeding on the basis of this motion – Ms Mazzone’s motion.

Ms Thejane: Noted.

Adv Tshabalala: Are you happy now?

Ms Thejane: Yes.

Adv Tshabalala: So part of your job is to advance Ms Mazzone’s motion?

Ms Thejane: Well, I am not advancing Ms Mazzone’s motion. I am assisting the Committee in respect of the inquiry and those charges to which I have been requested to assist with.

Adv Tshabalala: Yes. Can we then go back to your affidavit – refer to paragraph three of your affidavit?

Chairperson: Thank you. There you are Adv Tshabalala. It is flighted.

Adv Tshabalala: Yes, there. I am going to read it aloud into the record and for the benefit of the witness. You say – this is your affidavit, Ms Thejane – “In Charge Four of this motion, with which this Committee is concerned.” That is Mazzone’s motion – that is what you are referring to in your affidavit. “It is alleged that Adv Mkhwebane (the PP) is guilty of misconduct in that, amongst other things, she has intimidated harassed and or victimised staff. Alternatively that she has failed to protect staff in the Office of the PPSA from intimidation, harassment, and/or victimisation by the erstwhile CEO, Mr Vussy Mahlangu.” Can you see that?

Adv Mkhwebane: Yes.

Adv Tshabalala: Yes. If you look at this charge, there is a main charge and an alternative charge, yes, Thejane? Yes, Ms Thejane? I am sorry for that.

Chairperson: I can see that people are disturbing you there. They must not do that. Ms Thejane, did you get that?

Ms Thejane: Yes, Chairperson, I got that in terms of Charge Three. I am still waiting for the question.

Adv Tshabalala: Yes. I am saying to you, in terms of how you have captured this charge in your affidavit, which then forms part of your evidence, there are two components to this charge. We first have the first component and the second component of the charge, which is an alternative charge, which implicates the Public Protector and Vussy Mahlangu. Can you see that?

Ms Thejane: Yes.

Adv Tshabalala: And do you understand these charges?

Ms Thejane: Yes, I do.

Adv Tshabalala: Now in the body of your evidence, is there any case that you make out to implicate the Public Protector and Vussy Mahlangu?

Ms Thejane: No, not in that manner. What I was requested then to explain – it follows on paragraph number five onwards of my affidavit.

Adv Tshabalala: So is it your evidence that there is no evidence in your affidavit on which the PP may be drawn to this alternative charge?

Ms Thejane: The explanation that I have provided in my affidavit relates to the manner in which staff were treated in the course of doing the work.

Adv Tshabalala: No, Ms Thejane. You are not listening to me now, please. Do not try to be evasive. You have made specific allegations in your affidavit. You say “Adv Mkhwebane has intimidated staff in the Office of the PPSA from intimidation, harassment and/or victimisation by the erstwhile Vussy Mahlangu”. I am saying this is an alternative charge, contained in Charge Four and you have reproduced it in your affidavit. So what I am opting to you is that there is no evidence in your affidavit, on which the PP can be drawn on this charge. In other words, what I am saying is that there is no evidence in your affidavit to substantiate this alternative charge in simple terms.

Ms Thejane: In terms of the manner in which the decisions were made, and the audis that were issued in our operations, as much as…

Chairperson: You are just going down. Just reposition yourself, we cannot hear your voice properly.

Ms Thejane: Can you hear me now, Chairperson?

Chairperson: Okay.

Ms Thejane: Can you hear me better now? I am pretty close to the screen.

Chairperson: Yes, we can. Thank you.

Ms Thejane: Yes. I was saying in terms of how the audis and the intimidation happened within the office, these two are linked as per my explanation and the rest of the affidavit, specifically relating to the work that was done and the audis that were issued. So to me, these two are linked.

Adv Tshabalala: So if I hear you, it is your evidence that the Public Protector used Mr Mahlangu as an enforcer to issue the audis to the staff members?

Ms Thejane: Yes.

Adv Tshabalala: Okay, then the next question is, can you show me in your affidavit where you make or you give evidence in support of that allegation?

Ms Thejane: Well, I have provided an explanation of what has been happening in the Office.

Adv Tshabalala: No, no. Ms… I am talking about evidence now. I am talking about… You testified that this affidavit constitute your evidence. So I am making things easy for you. You say the Public Protector used Mr Mahlangu, as an enforcer to issue audis to the staff members? This is a reproduction of the charge sheet. Then I am taking you to the body of your evidence. And I say to you, give me the evidence in support of this charge.

Ms Thejane: Alright. I have indicated in my affidavit starting from paragraph number five.

Adv Tshabalala: Ms Thejane, please. You are legally trained. We have lost a lot of time, you know. Here, this paragraph does not speak to the charge and the CEO. You say in the charge sheet, you are going to present the evidence in support of this charge. And you are saying – I am going to take you slowly – the Public Protector used the erstwhile CEO, Mr Mahlangu, to harass staff or members in your Office. Then what you are referring me to has got nothing to do with Mr Mahlangu. There is no Vussy Mahlangu here. Yes. You are making specific allegations. That is why I am challenging you on those specific allegations that are making. Where, in your affidavit, there is evidence that or an incident, one incident… Let me make it easy for you, was Vussy used by the Public Protector to harass either you, any member of the staff. Can you show me?

Ms Thejane: No, it is not contained in the affidavit.

Adv Tshabalala: So you are misleading this Inquiry?

Ms Thejane: I am not misleading the Inquiry. What I was requested to respond to was the issue of intimidation and victimisation in the manner in which staff were treated. So that is contained there. While my affidavit may not make specific mention of Mr Vussy Mahlangu but those were actioned by him as the CEO at the time.

Adv Tshabalala: Look, it is no longer about what you think now. You have confirmed that. I will take you back again, you said that this affidavit constitutes your evidence. You have law degrees… I am sorry, two degrees in law; you should understand. This is basic stuff. I have afforded you an opportunity to present or direct us where we can find evidence that says the Public Protector used Vussy Mahlangu to harass the staff. You have not been able to do that. It is not there. So now we know that it has never been correct and the Public Protector is facing a false charge, insofar as your evidence is concerned. But let us move on. Can we move on?

Ms Thejane: Yes, we can move. I disagree but we can move on.

Adv Tshabalala: And then, can I ask you this question again? You said that you depose to this affidavit and you were assisted by the Evidence Leaders. To what extent did the Evidence Leaders assist you? Did they draft this and then only asked you to come and sign it… to what extent?

Ms Thejane: Well, the affidavit itself… I was consulted by the Evidence Leaders in terms of my role and my experience within the Public Protector since I started working here. The affidavit itself was drafted by the Evidence Leaders.

Adv Tshabalala: But you still claim that it is your affidavit?

Ms Thejane: Well, to the extent that I read and deposed thereto. Then they provided also information to support what I have indicated in the affidavit.

Adv Tshabalala: Did you bother to check if the information provided was accurate?

Ms Thejane: Well, I read the affidavit. You may direct me where you believe that the information is…

Adv Tshabalala: No. The first question is did you bother to check whether the information provided was accurate? Can you answer that question first?

Ms Thejane: Yes, I did.

Adv Tshabalala: It is accurate?

Ms Thejane: Yes, I did.

Adv Tshabalala: In particular… Insofar as paragraph three is concerned – Charge Four?

Ms Thejane: Yes, I did. That is why I have explained the context within which I have responded to paragraph three.

Adv Tshabalala: Can I refer you to… You know when we started we had to deal with the history of this matter because I was trying to help you refresh your memory and to make things easy for you. Can I refer you to Bundle A? That is the Notice of Motion – the DA’s Notice of Motion… Mazzone motion.

Chairperson: Number? Bundle A… Come again?

Adv Tshabalala: It does not have an item but it is in Bundle A, the first Bundle. Handwritten numbers… It is the first bundle. It is page one.

Chairperson: The motion itself?

Adv Tshabalala: The motion itself and the charges, Chair.

Chairperson: Okay. We will try and check that and get it. Is that what you are referring to Adv Tshabalala?

Adv Tshabalala: Yes, Chair. Thank you.

Chairperson: Thank you. Go ahead.

Adv Tshabalala: Ms Thejane, Annexure A, for your benefit… By the way, have you seen this document before?

Ms Thejane: Maybe not in this form.

Adv Tshabalala: Okay, it is fine. I will assist you. This is Annexure A to Ms Mazzone’s motion. Ms Mazzone motion has an annexure to it and the annexure contains the charges formulated by Ms Mazzone. And paragraph three, which refers to Charge Four, of your affidavit is one of the charges formulated by Ms Mazzone. Do you see that?

Ms Thejane: Yes. May I see paragraph three but I understand… I hear what you are saying.

Adv Tshabalala: Ms Thejane, I am referring to paragraph three of your affidavit, where you make reference to Charge Four. Do you get that?

Ms Thejane: Yes, I do.

Adv Tshabalala: Yes. And you have testified that the information that is contained or provided in your affidavit is 100% accurate? That then I am now referring you to this motion, which forms the foundation of this Inquiry and your affidavit. Do you hear that? Can you follow that?

Ms Thejane: Yes, I do.

Adv Tshabalala: May I then refer you to… just bear with me… paragraph 10 of the document. Can you see that?

Ms Thejane: Yes, I can.

Adv Tshabalala: Yeah. This is with reference to Charge Four. This referred to Charge Four of the motion. Can you see that?

Ms Thejane: Yes, I can.

Adv Tshabalala: And read that together with your affidavit, paragraph three of your affidavit, yes… You also refer to the very same charge – Charge Four.

Ms Thejane: Yes, I am listening.

Adv Tshabalala: So that means you read this motion otherwise you will not have referred to this charge.

Ms Thejane: No I did not read this motion in its form like this. I was provided with this Charge Four as contained.

Adv Tshabalala: So it's the Evidence Leaders that read this motion? Is this your evidence that it is the Evidence Leaders who read this?

Ms Thejane: When you say read, as opposed to? This is what I was provided in the… Sorry.

Adv Tshabalala: In other words, you are saying that you never read this motion?

Ms Thejane: No, I did not.

Adv Tshabalala: Yes. The point I am making is that in your affidavit you are referring to Charge Four, which you have never read.

Ms Thejane: Well, I read Charge Four, as it was presented to me, as contained in the affidavit.

Adv Tshabalala: Okay. Let me put it differently… Okay, let me move on. Are you aware that Charge Four has been altered – significant information has been removed from this charge in your affidavit?

Ms Thejane: No, I am not aware.

Adv Tshabalala: And I am going to make, bear with me, serious allegation that that was done to mislead this Committee. And I am beginning to suspect that clearly, judging you by your answers, this is not your affidavit. I do not know whether we should proceed or not. But I am in your hands. Clearly this is not your affidavit. It refers to things you have not read. It is even worse, I'm going to demonstrate to this Inquiry and the public, that you have altered the charges which you know, as an officer of the court, what it means and to the public out there, because this goes to the foundation of the case against the Public Protector. So the question will be if the foundation of the case is based on false information or information that has been falsified, should we proceed with this?

Ms Thejane: Well, I have not altered the charges at all.

Adv Tshabalala: Yes, but you signed the affidavit.

Ms Thejane: Yes, I have signed the affidavit.

Adv Tshabalala: And you agree with it 100%? You testified that you agree with it 100%.

Ms Thejane: Yes, but you have also not indicated to what extent… you have said that Charge Four has been…

Adv Tshabalala: I am coming to that, Ms Thejane.

Ms Thejane: Okay. Sorry.

Adv Tshabalala: Can I take you back to paragraph 10 of the motion, please? You see, this charge lists seven names of the employees who were allegedly intimidated by the Public Protector and the CEO. Can you see that?

Ms Thejane: Yes, I can.

Adv Tshabalala: Can we go back to paragraph three of your affidavit? Can you flight it? Where is this information? Since it is based on Charge Four.

Ms Thejane: It is not in the affidavit.

Adv Tshabalala: Yes. So you have altered this charge. This is no longer the Mazzone Charge. This the Thejane Charge now. And remember we're proceeding here on the basis of the motion of the Mazzone Charge. Yes? There is evidence now that you have altered a charge of misconduct. What do you say to that?

Ms Thejane: Well, I have not altered the charge. That is what I was provided by the Evidence Leader as contained in my paragraph three, as Charge Four. As indicated, I was then requested to respond to what has been happening internally. That is what is contained in my affidavit.

Adv Tshabalala: You do not have an answer as to why you left out or your altered the charge? Because clearly the evidence that the Public Protector has presented before this Inquiry, is that this Charge has been altered, not by Ms Mazzone, not by the Inquiry, but by Ms Thejane, who deposed to an affidavit. There is clear evidence, under oath for that matter.

Ms Thejane: Well, I hear… Sorry?

Adv Tshabalala: Yes, you can continue.

Ms Thejane: Yes. As I indicated, that in my affidavit that I deposed to the affidavit, not with the intention of altering the charge at all but to explain the circumstances and the victimisation or intimidation that I have observed. So if you look at the rest of my affidavit, it speaks to those issues that I was requested to speak to. I did not alter the charge.

Adv Tshabalala: But you have specifically referred us to Charge Four. I have taken you to the original form of the charge. Maybe let me… Do you have any reason why you left out…?

Chairperson: Just a pause Adv Tshabalala and Ms Thejane. Hon Violet Siwela, you are disturbing our meeting. Hon Siwela, you are disturbing our meeting. Please mute. Thank you. Please proceed, Adv Tshabalala.

Adv Tshabalala: Okay, let us take it slowly Ms Thejane. I am trying to assist you here. Let us compare these two documents, for your benefit, I have already done my homework, by the way. Do you see any difference between these two charges?

Ms Thejane: Well, the difference is where the names of specific employees are listed. You may flight it again so I can compare what is there in my affidavit and what was projected.

Adv Tshabalala: Yes. No, not the affidavit. Okay, let us start with the affidavit. Okay, it is fine. Can we go to the last sentence of paragraph 10. That is where the altering begins. Yes, which is crucial because it goes to the elements of the misconduct that need to be proved here in this Inquiry. It says “In particular the following staff members”, they are making specific allegations, “who have been threatened with or had disciplinary action taken against them unlawfully and on trumped up charges.” Can you see that? And then they list the names of these seven employees.

Ms Thejane: Yes, I can see it.

Adv Tshabalala: All that is not listed on your affidavit.

Ms Thejane: Yes, I can see it.

Adv Tshabalala: I put it to you that the reason why this was altered is because the names of all the people listed here, these are disgruntled members… employees of the office who have volunteered, some of them, or who have testified against the Public Protector. And under cross examination, all of them were discredited… those who came. I am putting it to you, this is the reason why you altered this, because you also fall under the same category of the disgruntled employees who come here to make up stories against the Public Protector – baseless allegations. This is the reason why you have altered this. What do you say?

Ms Thejane: I disagree with you. And I must say I am not a disgruntled employee. I do not fall into that category, however, I did agree to assist the Parliamentary Inquiry – this Committee. Yes… but I am not disgruntled.

Adv Tshabalala: But at least you're making baseless allegations. You have just admitted that there is no evidence in your affidavit that links the Public Protector to Vussy Mahlangu. So at least at that level, can you agree that you're here to present baseless or you are making baseless allegations against the Public Protector? We have established that. You can answer if you like, but I do not want to waste the Inquiry’s time.

Ms Thejane: Well, maybe to the extent that my affidavit does not specifically refer to Mr Vussy Mahlangu but there is the first part that I was also requested to… I was requested to assist the Committee in terms of how the Office was managed and how staff were treated. And that is what I have deposed to.

Adv Tshabalala: Let me put it this way, your affidavit, not only does it not refer to Mahlangu, it also does not refer to other employees. In the court's term it is, I do not want to say it is defective but this information is misleading. I get a sense that you do not take this Inquiry seriously.

Ms Thejane: No, no. I was saying that I disagree with you that I do not take the Inquiry seriously. I strongly disagree with you. I cannot hear you anymore.

Adv Tshabalala: How do you explain a situation where you have placed yourself in? You make allegations you come here under oath. Under the pretext of coming to assist the Committee or the Inquiry. But you provide no evidence whatsoever in support of the charges that are before this Inquiry. How do you explain that?

Ms Thejane: Well, I have provided evidence as contained. We may differ, but I have provided that evidence.

Adv Tshabalala: Ms Thejane, I just want to move on now, because I have been putting propositions to you and directing you to where you make specific allegations. As a matter of fact, you have not been able to provide answers. So can you move on to the next point? It's going to be argued at the end of this matter that your evidence be rejected. What do you make of that?

Ms Thejane: Yes, we can move on. I hear you.

Adv Tshabalala: So you agree?

Ms Thejane: No, I do not agree. I have indicated various times that I do not agree. I have provided evidence in my affidavit of my experience and how the office has been led and that is why I am saying we agree to disagree and we can move on.

Adv Tshabalala: So do you then agree that the foundation of your affidavit is Charge Four which you have not read at all. You have altered?

Ms Thejane: Well, I have agreed that Charge Four is there as presented to me by the Evidence Leaders. I have not altered Charge Four.

Adv Tshabalala: Yeah, but you have never read Charge Four?

Ms Thejane: Well, not what you presented to me – what was projected. But, I was provided with Charge Four by the Evidence Leaders.

Adv Tshabalala: Can we move on, Ms Thejane?

Chairperson: Maybe at that point, Adv Tshabalala, we will take a pause for fifteen minutes and then we will come back and you resume from where left. Tea break for fifteen minutes. Thank you.

[Break]

Chairperson: Ms Thejane?

Ms Thejane: I am here, Chairperson. Thank you.

Chairperson: Adv Tshabalala, are you back?

Adv Tshabalala: Thank you, Chair. Ms Thejane, can you hear me?

Ms Thejane: Yes, I can hear you.

Adv Tshabalala: May I make this statement quickly to say without the truth it is difficult to determine how to proceed. But anyway there are more questions in relation to Charge Four which we have already submitted that it forms the basis or the foundation of Ms Thejane’s affidavit. So Adv Mpofu will deal with the rest or the remainder of the allegations in respect of Charge Four. Can I just move on and deal with other topics of my cross-examination?

Chairperson: Proceed.

Adv Tshabalala: Yes. Thank you, Chair. You know, Ms Thejane, all songs have a theme and a theme drives a narrative, and a theme for your evidence is unrealistic deadlines.

Chairperson: I did not get the theme – what is the theme?

Adv Tshabalala: The theme is the unrealistic deadline. Can you get that, Chair?

Chairperson: Repeat it, Adv Tshabalala? Come again?

Adv Tshabalala: All songs have a theme. A theme drives a narrative. And a theme for Thejane’s evidence is unrealistic deadlines.

Chairperson: Unrealistic deadlines… is that the theme?

Adv Tshabalala: Yes, Chair. Chair, I am happy because you are reacting to this. I have at some point also looked at you not once but twice when this evidence on unrealistic deadlines was led to say now your own witness is throwing you under the bus because I know how strict you are when it comes to a deadline. Now here we have a witness who comes and says ‘Hey, forget about the deadline.’ I said ‘Oh, Chair, you are in trouble now.’ As matter of fact, we are working under very strict deadlines here. And it is not even a question of saying we have unlawful deadlines or irregular deadlines. The theme is unrealistic deadlines. As, yes, Mr Chair... May I proceed, Chair?

Chairperson: Yes, proceed.

Adv Tshabalala: Ms Thejane, do you know of the document called the strategic plan document? It is a high level document.

Ms Thejane: Yes, I know of a strategic plan document.

Adv Tshabalala: This document stipulates the timeframes or deadlines within which to finalise cases.

Ms Thejane: I do not know. Are you waiting for a response? I was still waiting.

Adv Tshabalala: Yes, Ms Thejane.

Ms Thejane: Well, amongst other things, it is a…

Adv Tshabalala: Yes, that is correct. Can we agree on that?

Ms Thejane: Yes.

Adv Tshabalala: And you are a signatory… You are one of the signatories of this document.

Ms Thejane: Which one are you referring to, so I know?

Adv Tshabalala: I am talking about the 2020-25 Five-Year Plan.

Ms Thejane: Yes, I am a signatory.

Adv Tshabalala: Yes. There is also what we call the PPSA service standards for the resolution of cases. It also deals with the timeframes or the deadlines within which to finalise cases. Are you aware of that?

Ms Thejane: Yes, I am.

Adv Tshabalala: May I, with your permission, Chair, refer to a document found in Bundle H.

Chairperson: Bundle H… item number?

Adv Tshabalala: Item 26.

Chairperson: Item 26 in Bundle H. Yes, is that the document you are looking for?

Adv Tshabalala: That is correct, Chair. Can you see that, Ms Thejane? This what you call the Strategic Plan. Can you see that?

Ms Thejane: Yes, I can see it.

Adv Tshabalala: May I refer you to page eight of the document? You see the first sentence there “It is hereby satisfied that this strategic plan was developed by employees and management of the Public Protector South Africa”. Can you see that?

Ms Thejane: Yes, I can see that.

Adv Tshabalala: Yes. So this document you all contributed; it is not the Public Protector’s document. Can you see that?

Ms Thejane: Yes, I can see.

Adv Tshabalala: Further down… there is your name and your signature. Can you confirm that is your signature?

Ms Thejane: Yes, it is.

Adv Tshabalala: Then can I quickly take you to page 28 of the same document. Can you see that an item in the middle there in bold. Can you see that?

Ms Thejane: You will have to guide me, I do not see anything in bold.

Chairperson: Which item?

Adv Tshabalala: The subheading is percentage of investigations. This document says the indicator measures the number of cases that get finalised within stipulated timeframes of six months. And then it says, for early resolutions, it refers to simple cases, it is six months. Twelve months for service delivery cases. 24 months for good governance and integrity cases. 36 months for very complex good governance and integrity cases. Can you see that?

Ms Thejane: Yes, I can.

Adv Tshabalala: Do you agree with those deadlines?

Ms Thejane: Those are the deadlines that have been set by the office. So I agree with them to the extent that they do appear. Yes

Adv Tshabalala: Yes. And not only that – also to the extent that you have signed – you as signatory.

Ms Thejane: Yes.

Adv Tshabalala: Yes, as the Executive Manager [EM], these are your deadlines.

Ms Thejane: Yes, they are.

Adv Tshabalala: So this notion of the Public Protector setting out deadlines has no basis?

Ms Thejane: I disagree with you.

Adv Tshabalala: Okay. Do you know of an Act of Parliament called the Executive Members Ethics Act [EMEA]?

Ms Thejane: Yes, I do.

Adv Tshabalala: What does it say on the finalisation of cases? It says matters must be finalised within 30 days, is it not?

Ms Thejane: Yes, it does.

Adv Tshabalala: So the timeframe is prescribed by the law. In fact, by the very same Parliament.

Ms Thejane: Yes, it is.

Adv Tshabalala: Would you say that date is unreasonable?

Ms Thejane: Yes, I would. It is.

Adv Tshabalala: Then…

Ms Thejane: May I explain, Chairperson?

Adv Tshabalala: No, no, no. Can you just listen to me? I am just taken aback in fact that you seem to even challenge the very same Parliament that… I thought that maybe it is easy for Public Protector but, you know, you are even now challenging the Parliament, of which its function is to make laws. We all comply. Even if I do not like something, but if the law says I must do, I do it. For you to say openly, it is a cause for concern. This is why I am not sure whether should I continue with you. I am considering to stop this cross-examination, it is taking us nowhere. But for the sake of my colleagues here, you know, from the beginning, I realised that we are going nowhere. This is a waste of the Parliament’s time and resources, surely. Especially with someone with a legal background, this is a serious cause for concern. I must make the statement that you are really making a mockery of yourself in front of millions of the South African people, but let us leave it at that.

Ms Thejane: Chairperson, if I may be allowed?

Chairperson: Yes?

Ms Thejane: Through you, Chair, if I may be allowed?

Chairperson: Yes, go ahead.

Ms Thejane: Yes, I wanted to explain, Chairperson, my response and it will also be backed up. Let me start with the EMEA first, then I will go backwards. Yes, indeed, the Act prescribes as such that such matters must be investigated and finalised within 30 days. But also it makes provision in case one is not able to finalise it within a 30-day period. So that is not to disregard an Act of Parliament, or to even disrespect Parliament to the extent that where we are now, a recommendation was made to Parliament for reconsideration of the 30-day rule or period within which to finalise investigation in those matters. I was not even involved necessarily in those recommendations that were sent to Parliament. But it was with appreciation that some of the investigation or many of the investigations, we have not been able to finalise within a period of 30 days, for various reasons that are entailed in conducting any of the investigations. So that is why then, Adv Tshabalala, I am not in agreement with you, when you talk about whether the dates are realistic or not. Indeed, those dates are set. Indeed, we work towards those dates. But as you would have noted in my affidavit, that is, when I came to the Office of the Public Protector in March, I was already set or held to account on the dates that I was not really a party to at that stage and on investigations that were already overdue at that stage. Chairperson, and thank you for affording me this opportunity, I wanted to explain that so that I can put it within context, without leaving an impression that I am totally undermining Parliament or an Act of Parliament. Thank you, Chairperson.

Adv Tshabalala: Yes, Ms Thejane. The only point that I am making is that to an extent that these deadlines are unrealistic, I am putting it to you that is not the Public Protector’s problem… or the Public Protector’s deadline. For instance, the Executive Members Ethics Act is an Act of Parliament. The very same Parliament that we are appearing before today is the Parliament that stipulated that the investigations must be finalised within 30 days. I cannot take it further than that. I am only saying it is not the Public Protector’s deadline. And again, I also in terms of the strategic plan, which you have signed, it stipulates the deadlines for various cases. I am only putting to you that it is not the Public Protector but it is in terms of the strategic plan, which you are also one of the signatories of the plan. I am not taking it further than that. That is the only point that I'm making.

Ms Thejane: Yes, I hear you, Adv Tshabalala.

Adv Tshabalala: Do you agree with that?

Ms Thejane: Not outright. There are deadlines that are…

Adv Tshabalala: I am coming to that. For now I am sorry to interrupt you. I will come to that. I am only saying my proposition is limited to these two instruments for now. We will come to that please.

Ms Thejane: Yes. If you will just allow me, Adv Tshabalala?

Adv Tshabalala: I am going to afford you an opportunity. Please, can I just proceed… please?

Ms Thejane: Okay.

Adv Tshabalala: So insofar as these two instruments are concerned, do you agree that they are the sources of the timelines or the deadlines and not the Public Protector?

Ms Thejane: Yes, they are the sources but that is why I am asking you to allow me… The main source of…

Adv Tshabalala: Yes, we are coming to that.

Ms Thejane: Okay.

Adv Tshabalala: You know, you will bear with me, these topics, the backlog timeframes; they are so intertwined, so sometimes I can be talking about the timeframes and ended up talking about the backlog. I hope you understand. I am not trying to confuse you, no. We're here…. because you want the truth – not to score political points or anything of that sort. Can I…? I just want to put a proposition to you, a fair proposition. You can comment if you want, if you do not, it is up to you. Here is my proposition on the issue of a backlog and timeframes – that the failure to finalise cases within the prescribed timeline contribute or is a major cause to the development of a backlog, what do you make of this statement?

Ms Thejane: That is correct. But, one should not only stop there. Indeed, if one does not finalise cases within the prescribed turnaround time and some or most of those cases, then will fall into the backlog. But the inquiry must not stop there. It must then go further to determine what the causes are of them not meeting the turnaround time. You made an example of EMEA and the prescribed timeframe within which to investigate and finalise those matters. But also you would have noted, even under PP herself – she is still our Public Protector – that we have not been able to meet the 30-day turnaround time or timeframe that is prescribed in a Parliamentary Act. Now if one was to stop there, and say ‘Public Protector you were not able to meet the turnaround time on any of the EMEA matters, as prescribed in the Act’ and we stop there, the answer to you would be ‘Yes’ then there would be a backlog. But it is the fact that we have not been able to meet those turnaround times on those EMEA matters of 30 days, then the inquiry must move on to what are the reasons thereof? And that is why I beg your indulgence to also appreciate when one talks about unrealistic timeframes that are then set by the Public Protector. It is done within this particular context that you already appreciate that, indeed, this matter has not been finalised within the prescribed timeframe as indicated in our strategic plan documents. Indeed, but what are the reasons? And if you then say, ‘I do not want to listen to your reasons,’ or ‘I disregard your reasons. I want this matter to be finalised within this particular timeframe’, that is where the unrealistic part comes in. In the same way that we have seen people getting concerned with the current investigation or big investigations to the extent that there was a march. But we are saying we want to do a very good investigation that when this matters are taken to the High Court on review, the court must agree with us. But because of these unrealistic deadlines, without appreciating where exactly the investigation is –what still needs to be done for the investigation to be completed – that is where my concern has been.

Adv Tshabalala: Yes, I hear you. But can we agree that the failure to finalise cases within the prescribed time line contributes or is the major cause to the development of a backlog? Can we agree on that? I am not talking about the justifications. Can we agree on that?

Ms Thejane: Yes we do agree. We can agree on that. But I am just requesting you to also take note of those reasons because for our environment they are very, very pertinent and they lead also to the backlog being created. For example, people who then leave the Office and you have to re-assign those cases. We also need to be aware of the fact that, when we look at the backlog, it is more of your GGI or what we call Good Governance and Integrity matters, which are more complex. Most of them were assigned to head office and even at head office, to a particular team of investigators or senior investigator. That is why I am saying there are various factors. While one may strictly look at you have not been able to adhere to a six-month, 12 month 24 month period, and that creates the backlog – indeed, that is where it starts. It will be identified as a backlog but we must also take into account the other factors: state organs or officials not responding on time. Those varios factors should not be ignored.

Adv Tshabalala: Yes. Can I make a bold proposition and say… I put it to you that you are a major contributor or one of the major contributors to a backlog solely because of your failure to meet the deadline? You have contributed.

Ms Thejane: I would disagree with that. The reason why I would disagree is because it would be in total disregard of what I have just indicated to you. If we look at the court judgments, there is nothing that pains me as part of this Office for the courts to say our decisions or our conclusion and remedial action is irrational. You've got to focus on what creates that. To simply say one is the cause of the backlog would be to totally disregard those circumstances.

Adv Tshabalala: Yes. Ms Thejane, you have on three occasions been issued with audis by different senior officials? What is common with all audi letters? They all have to do with your failure to meet the deadline.

Ms Thejane: Let us look at…

Adv Tshabalala: No, can you first admit that… Are you aware… Is it true that you have been issued with the audi letters, first question?

Ms Thejane: It is true that I have been issued, yes.

Adv Tshabalala: These letters all relate to one charge of failing to meet the deadlines. Is this true?

Ms Thejane: Yes, that is the addition there.

Adv Tshabalala: Okay. Can I quickly take you through to provide the evidence to substantiate this proposition because I do not want to be accused of making up things later? Can you go to the affidavit please.

Chairperson: Where in the affidavit? Just indicate page or paragraph, Adv Tshabalala?

Adv Tshabalala: Yes, Chair. Can we first go to page 4361?

Chairperson: 4361? Thank you.

Adv Tshabalala: Can I refer you, Chair and Ms Thejane to paragraphs 51 and 52.

Chairperson: 51 and 52? Thank you.

Adv Tshabalala: Yes. I am going to read for the record. “The deadline for eradicating 272 backlog cases within 44 days was not met. The PP instructed the CEO to issue us with audi letters, asking us to make representations as to why disciplinary steps should not be taken against us. I received an audi letter from the CEO, Ms Sibanyoni, dated 4 October.” Do you see that, Ms Thejane?

Ms Thejane: Sorry, there was a break. Sorry, sorry.

Adv Tshabalala: Yes, I was taking you through the paragraph that deals with Ms Baloyi… I am sorry, Ms Sibanyoni, with reference to your audi letter, which you received from Ms Sibanyoni. Can you see that? Can you hear me?

Ms Thejane: Yes, I can see it and I can hear you.

Adv Tshabalala: I refer you paragraph. “I received an audi from Ms Sibanyoni...” This audi relates to your failure to meet the deadline. That is the point I am making.

Ms Thejane: Yes.

Adv Tshabalala: Then can we move to paragraph 77. Mind you, this letter was issued by Sibanyoni and not the PP. “On 6 August 2019, Ms Basani issued me with an audi letter in relation to the failure to meet the targets of 31 July 2021.” This is another audi in relation to your failure to meet a deadline by a different official of the Office of the Public Protector. Now it is not Sibanyoni but Basani. Can you see that?

Ms Thejane: Yes, I can.

Adv Tshabalala: Then can we move to paragraph 83? “The former COO, Mr Mohalaba, was instructed to discipline me for refusing to be held on a deadline.” Can you see that?

Ms Thejane: Yes, I can see it.

Adv Tshabalala: Do you remember when I started, I talked about the theme of your evidence, that it is unrealistic deadline.

Ms Thejane: Sorry, I lost you there. Pardon me, Adv Tshabalala, I missed you when you said remember…?

Adv Tshabalala: It is fine. It is not that important. I am putting it to you that with these facts presented before this inquiry, based on these facts, you are incapable of meeting deadlines repeatedly.

Ms Thejane: I would disagree with you. Again if you do not want to be mindful of the context within. If I may request, chairperson to refer to paragraph 78, in particular 78.1 of my affidavit, as it was projected?

Chairperson: Okay. There you are. It is flighted, Ms Thejane. Are you there? Ms Thejane?

Ms Thejane: Can you hear me now, Chairperson?

Chairperson: We can hear you now. There is paragraph 78.1 for you.

Ms Thejane: Yes. 78.1, I no longer see it on the screen. You will note, Adv Tshabalala, Chairperson and Members of the Committee where I am referring to the response that I presented to Ms Baloyi, who was the COO at the time. I do say in paragraph 78.1, that “Whilst I had agreed to the target of 31 July 2019, this was done at the insistence of the PP, who gave no leverage to go beyond this period.” Now Chairperson and Committee members, what I am trying to highlight here, and this response was submitted back in 2019, when I came in the matters that I inherited, were already in the backlog, they had missed their turnaround time already. And this is the issue that I addressed with the PP at our various meetings, that for me, who has just come in and also having identified certain gaps in our investigation in those matters that are within my area of responsibility. It goes on actually, as we go down paragraph 78… The issues of quality that we need to focus on. I have pointed out there that the absenteeism of people due to ill-health, it affects our turnaround time. It affected the timeframe that was provided. In 78.4, I pointed out that one of the major concerns, and I am indicating it as a major concern, is the quality of the Section 7(9) notices and reports, because that is what we were dealing with in particular. At that time, being responsible for the provinces, I was receiving from the provinces. To me, the quality was poor – indicative of a serious need for training on report writing. So these are the factors I am trying to highlight. Yes, if you focus on the various timeframes per classification when we are supposed to finalise those matters, yes, one did not meet the challenge on time; but if you ignore the reasons of poor quality of responses. For the benefit of the Committee, we may receive a response at the time we had hoped, but where does that response take us in terms of finalising that investigation? It may take us to further inquiries before we can then say an investigation has been concluded. That is the nature of an investigation. So while Adv Tshabalala, you may directly focus on 'you have not met the turnaround time' but I have indicated based back in 2019, that the deadline itself was unrealistic of the work that needs to be done. The quality of the Section 7(9) notices that one has to quality assure because of the reports, which then takes the time further because in some instances, it goes back for further investigation, before you can then finalise that Section 7(9). However, if you are going to focus just on the timeframe you have given, you're then going to get a product – this product, is it really a quality product that will stand the test of any tribunal?

Adv Tshabalala: Yes, Ms Thejane. Can we proceed, please?

Ms Thejane: Please take that in context on exactly what has happened there. Paragraph 83, if I can move to that? Paragraph 83, again based on what I indicated in my affidavit, that actually the issue of September projects, we did say to the PP, those deadlines we cannot meet based again on where those investigations were. But in terms of what needed to be responded to the CEO at the time, the executive manager responded. I am going to finish if you bear with me. 83 is related to a matter that was not even mine at the time because I was in another unit. And then I came back and there was again a deadline imposed on me that led to that. What I am trying to have the Committee understand is the context, because if we do not have the context, we may then misinterpret what has been the proposition placed before me. So on that basis, I am saying I disagree. Do not look on the basis of just the timeframes, but what goes into an investigation. Thank you. I hope you can hear me?

Adv Tshabalala: Yes, Ms Thejane. You say you disagree? Are you aware that I was reading from your affidavit? So if you say you disagree – are you saying you disagree with your own affidavit?

Ms Thejane: No, no. I was saying I disagree to the extent that you do not take the context what I have indicated as the reasons. I do say already in 2019 that those dates were imposed by the PP, to use my words, yes.

Adv Tshabalala: It means you are not listening to me. My proposition was limited only to the issue that you have on three occasions been issued with the audi letters in relation to your failure to meet the deadline. It was only limited to that. The reason why you failed is not for this forum to determine. Maybe if they had that disciplinary internal inquiry somewhere, these are the issues you could have raised to give the justification for your failure to meet the deadlines. My proposition I am making here, of course emerging from your affidavit, is only limited to that you have been issued with the audis by different officials, but the common denominator with all these three, is that the audis related to your failure to meet the deadline. That is the only proposition that I am making. About the reason and the factors, I am not there. I am not interested. I am only making this proposition. Do you agree with this proposition?

Chairperson: Just a pause there, Ms Thejane? I see the hand of Adv Mayosi?

Adv Ncumisa Mayosi: Thank you, Chair. Chair, may I just perhaps correct Mr Tshabalala? The proposition that he put to the witness is he said, ‘I am putting to you that with these facts having been presented before this Inquiry, you are incapable of meeting deadlines.’ So it went further than just the issue of the audis. The witness then answered and said she disagreed and explained further.

Chairperson: Adv Tshabalala, back to you?

Adv Tshabalala: Can I respond?

Chairperson: Yes.

Adv Tshabalala: Yes. Ms Mayosi missed the second part.

Chairperson: Just come closer to your mic, we are losing your voice.

Adv Tshabalala: Yes. She has missed the second part. Yes, I made a proposition but after the proposition, I then put it to her that based on this set of facts, she is incapable of meeting the deadlines.

Adv Mayosi: To which the witness disagreed – it is said she was not listening.

Adv Tshabalala: Yes, that is fair. I only…

Chairperson: Okay. Ms Thejane?

Ms Thejane: Thank you, Chairperson. Yes and to reiterate, I still disagree.

Adv Tshabalala: Yes, we can leave it at that. I cannot take it further than that. We can leave it at that. The letters and your affidavit, I mean they speak for themselves. This is your affidavit. So let us leave it at that.

Ms Thejane: Through you Chairperson? I would be failing this Committee, if I did not raise those issues in the context within which, yes, the audi was issued. I responded to the audi. And funny enough one never really gets a response thereafter to the audi because the reasons that are advanced for not delivering on a particular target, even in your own work that you are doing. If the reasons are then not accepted, then that is the issue. There is always a context within which and mindful that it touches. I have indicated and I am going emphasise it for the Committee that I said: I am very, very concerned about the quality. That was five months after I joined the Public Protector’s Office. That was level of division, that if we continue, indeed, I acknowledge that is where I agreed to the timeframe and not meeting the timeframe. I say I acknowledge that the timeframe was not met however the reasons thereof supersede not meeting the timeframe, especially for an office like ours, that, if then pushing the timeframe, to the extent of issuing an audi. Indeed you are well within your rights to do that. But what is the quality of the work that we really send out there? Particularly for a person in my position that I work with provinces? Investigations are done by investigators. It gets escalated to a provincial representative [PR]. Then it comes to me to do quality assurance. Already, the timeframe for an investigation would have been exhausted on those backlog matters. But if it comes to me, I would have been failing also as an Executive Manager, to take that report or Section 7(9) and give it to the Public Protector. And Public Protector knows that I would even have arguments with her because I would say ‘PP, it is not ready for your signature’ and she would say to me ‘Ms Thejane, you have missed the deadline’ and I would say ‘PP, I would rather miss the deadline than give you a report or notice that is not of quality.’ And I would still stick by my position there that, if really…

Chairperson: The point is made. Thank you.

Ms Thejane: Thank you.

Chairperson: The point is made. Adv Tshabalala?

Adv Tshabalala: Yes. Ms Thejane, now you are talking about the issue of the quality of the report, I might as well just quickly, quickly round it off – that point. May I refer you to page 4376 of your affidavit?

Chairperson: 4376.

Adv Tshabalala: 4376. Paragraph 102. Yes. We are dealing here with the quality factors. What according to your evidence affects the quality of the reports. In paragraph 102, you say “The speed expected to turn around reports at all costs has undoubtedly compromised quality.” Can you see that?

Ms Thejane: Yes, I can see it.

Adv Tshabalala: Then you say “this is one of the issues identified by the managers consulted during the engagements with investigators in February and March 2020. To which I have referred above that the pursuit of quantity was having a negative effect on the quality of the work produced.” Do you subscribe to this view?

Ms Thejane: Yes, I do.

Adv Tshabalala: That the speed expected to turn around reports was the cause… it is one of the major causes that caused or compromised quality of the reports; is that your evidence?

Ms Thejane: Yes, I do subscribe to this.

Adv Tshabalala: Thank you. Can I then refer you to paragraph 78.4? You say “I pointed out what was a major concern to me that the quality of the Section 7(9) notices and reports, I was receiving from the provinces, to me…” that is the reason now, “the poor quality was indicative of a serious need of training on report writing, for both investigators and PRs”. Which is which here, now?

Ms Thejane: It is actually both and I will explain why I am saying so. If the quality of the reports that are coming through is not at the level that is required. And to my assessment, I identified the need for…

Adv Tshabalala: I am sorry, Ms Thejane. Maybe can we first agree that these two paragraphs are contradictory – inherently contradictory?

Ms Thejane: Necessarily not. They actually should not be read as contradictory. But the issue of the speed, if you are going to do your work at a very high speed, because you must then meet the deadline, it is one issue. If there is a concern in terms of the quality of the report that we are receiving which may be addressed…Remember, the issue of this training, the quality of the report in terms of how they are written, it is one factor. The issue of the speed is another factor. So you do not read them as contradictory that ‘Oh’ on one hand I am saying it can be resolved just through the training on report writing for investigators and PRs but you are still working within such a high speed trying to meet the deadline. So on that basis they are not really contradictory; they are both equally important.

Adv Tshabalala: Tell me, Ms Thejane, if you are poorly trained would it matter whether it takes a day or 20 days to produce a report, because the problem is that you do not have the necessary skills. I think you had…

Ms Thejane: Sorry, sorry.

Adv Tshabalala: Yes. I am saying the fact that you are poorly trained, you have no skills at all, it would not matter if I can give you 1 million years but if you lack the basic training, you will never be able to get things right to perform the task. That is the point I am making. Do you agree?

Ms Thejane: One, I am not saying that people lack the basic training – those are your words. These where my observations when I came in. Two, if you then are going to expect people to work faster; remember, once you reduce the speed, you then deal with the issues of poor quality, including the training itself. Various interventions in terms of their own on-the-job training, as well as a formal training within that consideration of that timeframe. Let me give you an example if I may be allowed. There were training initiatives that, for example, were planned but people would be called away from that training because you must answer to a matter that must be finalised within a particular period. That is why I am saying do not look at them as totally exclusive and maybe contradictory. So if you do give time, you will improve on the quality because you are also providing that feedback, that training, including internal on-the-job as well as the formal training. Yes, while you are mindful of the conclusion of that investigation, I would disagree with you that a person can be given 20 years or longer but if they do not have the skill, then they will not achieve. But what are you doing in that period. That is the basis on which I differ on how you presented it.

Adv Tshabalala: Ms Thejane, I am not arguing with you. I was only making a point, based on your written statement, in particular paragraph 78.4, where you said that the poor quality was indicative of a serious… in fact, you said a major concern for you. And then you took it further to say, the quality of the reports and the Section 7(9) notices: "To me, the poor quality was indicative of a serious need for training on report writing for both investigators and the PRs.” I do not want to take it any further than that. I was only making this proposal based on your affidavit. If you want to disagree with your affidavit, it is your problem. Can we now…

Ms Thejane: I am not in disagreement. I am not in disagreement with my affidavit at all. What I am saying is that what is then involved in my role, while I am doing quality assurance, is that when I pick up any gaps in the investigation in how certain information is written, I send it back to the provincial representative, who then engages with the investigator to address those issues. That is why I make reference to on-the-job training. But if you move very fast, when you give feedback and send it back so that they can address certain issues of quality. But the focus is the deadline. Did you meet this deadline or not?’ It was clear-cut like that as you also asked me: ‘Did you meet the deadline or not?’ And I would say ‘Yes, I have not met the deadline’ because I had to send it back, that is the kind of improvement that one must make. I believe it is my responsibility as the executive manager to show… to make sure that we close those gaps. So it was in that light that I am saying what is entailed in that paragraph.

Adv Tshabalala: Yeah, no. I am happy.

Chairperson: Maybe before you proceed, Adv Tshabalala… just for completeness of this. Earlier on, Ms Thejane, you said both rushing the implementation and lack of training yield to backlogs and poor results. You have made that statement. Later on Adv Tshabalala is putting to you specifically the issue of poor training and makes the point that no matter how much time is given, if that is not attended to, it would yield this. You seem to be disagreeing with that. I just want to check so that I am in the same space as you. What are you disagreeing on in his statement?

Ms Thejane: I am saying, Chairperson, the way I understood Adv Tshabalala, he said even if you can give a much longer time, you would still come to the same results if training is not provided. What I have said is that within that time given I make reference to on-the-job training. It means you correct, you give feedback and you capacitate as you go. The shorter period for us to finalise our investigation, it was not enabling for that improvement because the focus is 'meet this deadline.' Where I am disagreeing is that given more time to give that on-the-job training, we can improve. It would not take as long; it would not take 20 years to improve. It is something that we are even doing currently when we engage, aggressively so. So that is what I was saying, Chair.

Chairperson: Okay. Thank you. Over to you, Adv Tshabalala.

Adv Tshabalala: Hopefully, Chair understands. The more she tries to explain this, the more I get… it gets complicated and confusing. I might as well… I have made my points and I have made reference to paragraph 7.8 of her affidavit. I cannot take it further than that. Her response was that she does not disagree. She admits that lack of training is a major concern insofar as she is concerned. I cannot take it further than that. I already have an admission in that regard. Can I then move on with your permission, Chair?

Chairperson: Yes, as you move on, I see a hand of Adv Mayosi.

Adv Mayosi: Chair, to be fair on the witness, Adv Tshabalala is not reflecting the position correctly. There is no admission. The witness was referred to paragraph 102 and paragraph 78.4 and she was asked if these statements are contradictory. She said that they are not contradictory and she explained why. There was no agreement on this issue.

Chairperson: Adv Tshabalala?

Adv Tshabalala: I think Adv Mayosi is not following the proceedings. Yes, that is how I started the proposition. I thought it was a simple proposition. At the point where I realised that there was an inherent contradiction in the proposition then I made reference specifically to paragraph 78. I put it to her and her response was that she does not disagree with paragraph 78 of her affidavit. This is why even the Chair himself was confused. But I leave it at that, Chair. If I may proceed, Chair?

Chairperson: Yes, proceed.

Adv Tshabalala: I am about to round off my cross-examination, Chair. Let me quickly deal with this sensitive issue. May I refer you to paragraph 71 of your affidavit, Ms Thejane, where you say in a way the Public Protector’s conduct or pressure she putts on the employees negatively impacts on the health and private lives of employees. Can you see that?

Ms Thejane: Yes, I can see it.

Adv Tshabalala: Yes, the last line in paragraph 71. Can you see that?

Ms Thejane: Yes, I can see it.

Adv Tshabalala: It makes reference to health and private lives of employees. May I also refer you to the second sentence of paragraph 72. It says “Those staff members must be treated reasonably.” I know… I mean, you blame PP for everything anyway. So you're attributing this inhuman conduct to PP “respectfully and with understanding and patient taking that work must not interfere with private lives”. Can you see that?

Ms Thejane: Yes, I can see it.

Adv Tshabalala: What do you mean about this?

Ms Thejane: What I meant was because of the speed at which we had to work; we worked very long hours so we would work outside of your normal or even reasonably extended hours. We could be in meetings, whether it is Dashboard or any other meeting late into the night. Meetings would finish…

Adv Tshabalala: Are you blaming the PP for that?

Chairperson: Just hold. I think she is frozen. Ms Thejane?

Ms Thejane: Sorry.

Adv Tshabalala: I am saying are you blaming the PP for interfering with employees’ private lives?

Ms Thejane: Sorry, can you hear me? Before I continue.

Adv Tshabalala: Yes, I can hear you. Yes.

Chairperson: Yes, we can hear you.

Adv Tshabalala: The point I am making is that are you blaming the PP for interfering with employees' private lives in that you would work long hours. Are you blaming the PP?

Ms Thejane: Sorry, sorry. Just when I thought you were done… I was saying, yes, because we would sit in those meetings for a very long period of time, well into the night. And in some instances for consecutive days. In those instances, remember you are leading a team and people are in these meetings and there is work that still needs to be done. And it is done during those extended hours. While I am mindful of the time they do put in to reach those targets but when it goes way beyond those hours, it does interfere. That is why we saw people getting upset more often, which again affects productivity on its own. So those meetings or work that needed to be done well into the night – those were really affecting people's lives negatively so.

Adv Tshabalala: But were you instructed by the PP?

Ms Thejane: Yes, because remember when there is meeting and we are not done, the meeting then continues. And then there will be another meeting. So those were PP’s meetings. So that is why I am saying that… Remember, if the mind is not rested, then again it affects the quality of the work you are going to produce. That is why I am saying it is various factors that must be taken taking into account. So those were PP’s meetings.

Adv Tshabalala: Tell me, I am sorry, in what capacity are you making that statement to say not getting enough sleep can cause illness, because I understand you are not a doctor? In what capacity are you making that statement?

Ms Thejane: Well, I am not making that statement as an expert in the field but I am making it as the person who experienced it first-hand. A person who has gone to an expert to say ‘This is what I am now experiencing’ and it was confirmed that it is due to stress, due to not sleeping, because of work. So I would not claim to be an expert but that is what I have experienced.

Adv Tshabalala: Yes. I put it to you because of that your statement will have to be disregarded insofar as where you express an opinion.

Ms Thejane: Yes. Well, it is an opinion. It is my opinion.

Adv Tshabalala: Yes, at least we agree on that one. Let us round it off now. Can I refer you to paragraph 95 of your affidavit? It reads: “In the period of March 2019 to 2020 I barely slept properly in an endeavour to meet impossible deadlines. In fact I in turn found that the PRs themselves were not sleeping much because they would be available to me when I would contact them at odd hours of the night to deal with the reports.” Can you see that statement?

Ms Thejane: Yes.

Adv Tshabalala: You making a statement that you would contact your PRs at odd hours of the night, so interfering with their private lives?

Ms Thejane: To avoid the audis.

Adv Tshabalala: The point I am making is that you are the one, not the PP. You are not saying in this statement…

Ms Thejane: Sorry, sorry.

Adv Tshabalala: Can I finish? You are not saying in this statement that the PP instructed you to phone your PR at odd hours. It's your statement to say you used to phone them. I'm saying to you, you are the one who interfered with the PRs' private lives but now you want to turn around and blame the PP.

Ms Thejane: Again I will emphasise to meet that deadline – that audi – I am requesting that it must not be viewed as one incident. There are meetings. They are documented. They are recorded. PP’s meetings or rather meetings called by the PP that stretched way into the night. But to also achieve those timeframes or to work towards achieving those timeframes, then indeed I would call the PRs, so that we can finalise whether it's a section 7(9) or a draft report. It again goes to showing the kind of work environment that we worked in. Because if you do not deliver you knew that there was an audi coming or very harsh words would be said. So it is within that context.

Adv Tshabalala: Yes, Ms Thejane. The question is not complex. It is simple. Did the PP ask you to interfere with the employees' private lives?

Ms Thejane: No, she did not ask me to call them during that period but there was a target to be met. The next day you must answer. So if the work environment is not conducive to understanding why certain things have been met at a particular time, that is what would happen.

Adv Tshabalala: I'm only interested on this, Ms Thejane – it was your decision to call them at odd hours?

Ms Thejane: In those instances, yes.

Adv Tshabalala: Yes. I have no further questions.

Chairperson: Thank you for that, Adv Tshabalala. It is exactly 13:00. We are going to lunch. We will be back at 14.00. Thank you very much. We will pause for lunch. Back at 14:00.

[Break]

Chairperson: Welcome back colleagues here at M46 and on the virtual (platform). We proceed from the break and we continue with our cross-examination. Welcome, Ms Thejane. Are you back?

Ms Thejane: Thank you very much, Chairperson. I hope you can hear me?

Chairperson: Okay. We can hear you. And then, Adv Mpofu, are you with us?

Adv Mpofu: Yes, Chair, I am. Can you hear me?

Chairperson: Thank you. I hand over to you.

Adv Mpofu: Thank you, Chairperson. Good afternoon Ms Thejane.

Ms Thejane: Good afternoon Adv Mpofu.

Adv Mpofu: Yes. Okay, ma’am…. Hopefully this is not going to take too long because I agree with Adv Tshabalala, I do not think there's much point in continuing with this cross-examination but we have to raise a few things to benefit the Committee. So if you can just kindly cooperate.

Chairperson: Just a pause Adv Mpofu. I see the hand of Adv Bawa. Adv Bawa?

Adv Bawa: Chair, my apologies. I did not understand Adv Mpofu this morning to indicate that he will be continuing with the cross-examination. I understood that he was going to come in to place on record. I know we are not operating as a court of law – it is not ordinarily the case that a witness gets cross-examined by two counsel but if that is going to be allowed in the committee, I am just noting.

Chairperson: Thank you for pointing that out, Adv Bawa. Yes, also as you are indicating that this is a different platform, not necessarily a court of law. He did indicate at the beginning that Adv Tshabalala will start and he will conclude. So I will allow it and then we can deal with that later in whatever way we deal with it. I am going to let him proceed. Adv Mpofu, please proceed.

Adv Mpofu: Yes, thank you, Chair. Well, as you say, Chair, it was mentioned first thing in the morning and Adv Tshabalala, more than once also mentioned it, so I do not understand what the problem is now. But anyway… Ms Thejane, I was saying that I am just going to cover some of the ground as I explained in the morning. I just want to get one thing out of the way. You agree, do you not, that the entirety of your affidavit is based on your response to Charge Four. That is what it says. If someone reads this, they will understand that the foundation is Charge Four, correct?

Ms Thejane: Correct.

Adv Mpofu: And that you have explained that Charge Four was not put by you. That was put by the Evidence Leaders, correct?

Ms Thejane: Correct.

Adv Mpofu: And you yourself had never read Charge Four in actual fact, correct?

Ms Thejane: Not what was shown or projected, no.

Adv Mpofu: No. You had not read Charge Four, whatever… whether it was shown or projected or not. When you did this affidavit, you had not read Charge Four, correct?

Ms Thejane: Correct.

Adv Mpofu: Therefore, as Adv Tshabalala said, then the entire… if the foundation of the house falls then the whole house must fall. You would agree with that metaphor, correct?

Ms Thejane: No.

Adv Mpofu: You do not agree with that metaphor that if the foundation is shaky and brittle, then the whole house is likely not to last?

Ms Thejane: No, not in this context.

Adv Mpofu: No, I am not… In the context of construction, do you agree that if the foundation is baseless than the house or building will likely fall flat?

Ms Thejane: Well, it depends if the foundation is total…

Adv Mpofu: Pardon?

Ms Thejane: I am saying that if the foundation is totally flawed that it cannot be repaired, then I would agree with you.

Adv Mpofu: Yes, correct. Yeah. Then it will not help us to say let's deal with the first floor, the second floor, the third floor… the whole building will just fall apart, correct?

Ms Thejane: Correct… suppose so.

Adv Mpofu: Yes. Now let us… Okay, that was in construction. Let us now come back to your affidavit. Your affidavit is based on… if you go to paragraph four, that will be, Chairperson, 4345.

Chairperson: 4345?

Adv Mpofu: Yes. Are you there Ma’am?

Ms Thejane: Yes, I am.

Adv Mpofu: Okay. You see that your foundation is actually a double foundation? Not only do you mention Charge Four in paragraph three, but also if you go to paragraph four that is the part that Mr Tshabalala said I was going to deal with. It says “It is further alleged in Charge Four of the motion that the PP had committed misconduct or demonstrated incompetence in the performance of her duties or failing to do so, the various things alleged and set out from paragraph 11.1 to 11.4 of the motion.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mpofu: And since we know that you have not read the motion, then that reference is also not yours, correct?

Ms Thejane: Yes, it is. That is correct.

Adv Mpofu: What is correct?

Ms Thejane: Sorry, I am responding.

Adv Mpofu: Okay. Let me ask the question – maybe I did not understand your answer. I am saying, there in paragraph four, the further solidification of the foundation, to continue that metaphor, there you go on to refer to… You say things, the various things alleged and set out from paragraph 11.1 to 11.4 of the motion. I am saying that you don't know what those things are correct?

Ms Thejane: No, I do not.

Adv Mpofu: Yes. Yes. And therefore, the second layer, if you like, of the foundation of your affidavit is also false. So we know what happens in construction. We would expect the same thing to happen here, correct?

Ms Thejane: No, I do not agree. That is why I say you can use that analogy in construction, but I do not agree with you.

Adv Mpofu: Okay, fine. Let us forget about construction. So if somebody reads this affidavit, just an innocent bystander, and it says its foundation on paragraphs three and four is the Charge Four of the motion. And then you go further and say not only Charge Four but also the various things alleged in paragraphs 11.1 to 11.4 of the motion, that person will be forgiven for thinking that you have read the motion, correct?

Ms Thejane: Correct.

Adv Mpofu: But that person would be wrong because you have not read the motion, correct?

Ms Thejane: If you look at it that way. However, what I have presented in my affidavit speaks to Charge Four in terms of the victimisation and the intimidation of staff. So that is what I was responding to.

Adv Mpofu: Yes, will come to that Madam. I am saying to you something much simpler. You and I have agreed that someone reading this affidavit, will accept that its foundations, at least you and I have agreed is Charge Four, correct?

Ms Thejane: Correct.

Adv Mpofu: They will also find that it is further foundations are ‘the various things alleged and set out from paragraph 11.1 to 11.4 of the motion’, correct?

Ms Thejane: That is correct. May I see?

Adv Mpofu: I am sorry Ma’am. Sorry, I cut you.

Ms Thejane: No, continue.

Adv Mpofu: Okay. No, I am saying then that an innocent person would be… that impression they would be getting would be false, because they will think that you have read these things, because you put them there under oath. But that would be a false impression on the part of that innocent bystander, correct?

Ms Thejane: Necessarily not because what I have provided in my affidavit is incidents that speak to Charge Four. That is why I'm saying if the contention outright is that based on what is contained in the evidence does not speak to Charge Four, then that would be incorrect, to my understanding.

Adv Mpofu. Okay. I am asking you this for the last time because it is either you are evading the question or you do not understand it. I am not asking… I know what is in Charge Four. Everyone knows, except you, maybe we can show it to you. That's not the point I am making. I'm making a different… Ma’am, I am saying to you, you have agreed that a person reading your affidavit would assume that you have read the charges – falsely, wrongly that assumption would be wrong. Yes or no?

Ms Thejane: Well, you have now said I would have read it falsely, wrongly. Can you just reiterate or repeat your statement?

Adv Mpofu: Okay, okay. Alright, alright. I will rephrase it. I am saying, ma’am, you and I have agreed that an innocent person…. If I take someone from the street, and I give them your affidavit, and they read the first four paragraphs, they will assume that Ms Thejane is a person who had read Charge Four and the various things alleged in 11.1 to 11.4 of the motion. Agreed?

Ms Thejane: Agreed.

Adv Mpofu: But that impression of that person would be wrong because in actual fact you have not read those things, correct?

Ms Thejane: Yes, it is correct. But Charge Four has been paraphrased.

Adv Mpofu: I am sorry Ma’am? What is paraphrased? What are you saying now?

Ms Thejane: That is fine. We can continue.

Adv Mpofu: So you agree with me?

Ms Thejane: I agree.

Adv Mpofu: Thank you. Right. Now it is that… so I am sorry to belabour this, as you are sitting there, those words ‘the various things alleged and set out from 11.1 to 11.4 of the motion’, mean nothing? It could be Greek to you? It could be nothing? It could be: 1, 2, 3, 4, 5, A, B, C, D, X… You do not know what those various things are, correct?

Ms Thejane: Correct.

Adv Mpofu: And therefore, those words were basically put in your mouth, correct?

Ms Thejane: Well, I would not use those words.

Adv Mpofu: You can use whatever words you like. Those words were not your words, they came from the author of this document. Let us put it nicely. Correct?

Ms Thejane: Correct.

Adv Mpofu: Yes. Alright. And even the individual words in paragraph four, where you talk about… where you say, ’she intimidated, harassed and victimised staff’, those are not your words, they are from the author, correct?

Ms Thejane: That is correct. But I have signed it. I have read it, so I can associate with it.

Adv Mpofu: Okay, fair enough. So you associate yourself with the author of this document? That is as high as you can take it. Correct?

Ms Thejane: Yes, as far as I can attest to those parts of Charge Four.

Adv Mpofu: No, ma’am, let us take it step by step. I am saying the words that are used in paragraph four that the Public Protector intimidated, harassed and victimised staff, are the words of the author with which you associate yourself as well, but they are not your words, correct?

Ms Thejane: Yes, that is correct. But I was saying to the extent I was requested to provide information, that is, to the extent I associated myself with those words.

Adv Mpofu: Yeah. Now that is what Adv Tshabalala was trying to put to you. You accept then that you… this whole thing of your so-called testimony is misleading the Committee deliberately?

Ms Thejane: No, I disagree. As I have said to Adv Tshabalala.

Adv Mpofu: Alright. Let us again do this step by step. An innocent Member of the Committee, Member X – right? – who reads this statement, at home to prepare for today; do you think they thought this is your statement or this is a statement of someone else with which you associate yourself? Which of the two do you think? I am saying that Member of Parliament, do you think when they were reading this last night, they thought ‘I am now reading the statement of Ms Thejane?’ Or did they say ‘I'm reading the statement of some other author with which Ms Thejane associates herself’. Which one do you think it is?

Ms Thejane: My statement.

Adv Mpofu: But that Member would have been wrong, from what we have already covered, Correct?

Ms Thejane: No, they would not be correct.

Adv Mpofu: Yeah, that is the same thing. If they would not be correct. That means they would wrong, correct?

Ms Thejane: No, no, no. Let me see if I understand you correctly. I am saying they would not be correct to believe that it is not my statement.

Adv Mpofu: Okay, Ma'am. Sorry. Maybe it is my fault. I am saying you and I have agreed that Member X of the ABC party reading this statement would have thought that they were reading your statement, not a statement by someone else with which you associate yourself. On that we have agreed?

Ms Thejane: There is no other statement. There is one statement: the one that I signed.

Adv Mpofu: Yes, but we now know that the statement is a statement that with which you associate yourself, not one that you did yourself.

Ms Thejane: Well, it may be an incorrect use of associate. It is my statement. I signed it. I deposed to that affidavit.

Adv Mpofu: Yes, but it is misleading, ma’am, because it gives the impression that you have read documents which you have not read. Are you at least prepared to accept that?

Ms Thejane: I have indicated as such that, yes, Charge Four was drafted. I read it and that is what I offered information on.

Adv Mpofu: Oh, I see. Now you are changing your testimony? So you did read Charge Four?

Ms Thejane: I did even indicate with Adv Tshabalala – as it appears on my affidavit.

Adv Mpofu: What you have said now in the last 20 minutes that you had never read Charge Four – that is a figment of my imagination?

Ms Thejane: No, not in terms of the motion. There are two things. There is Charge Four as it appears in my affidavit, I said I have read that. That is what I said earlier on.

Adv Mpofu: Oh, I see, you've read the reference to Charge Four but not Charge Four itself?

Ms Thejane: That is correct.

Adv Mpofu: Yes, then what is the difference between you and me? I am saying the person who would be reading this would think that you had read Charge Four itself and that would be incorrect. Right?

Ms Thejane: That is correct, as in the motion.

Adv Mpofu: Alright. So that is the point I am making. I was not trying to be… I am just saying that these were… You did not like the expression, words put in your mouth, so I was saying that these were words conceived by somebody else and you associated yourself by signing later, correct?

Ms Thejane: That is correct.

Adv Mpofu: And I will show you that, you know, this is just a poor attempt to align your statements to the charge sheet and that is what Adv Tshabalala was trying to explain. What do you understand by victimisation?

Ms Thejane: Well, I understand victimisation in the form of how a person gets treated, the manner, in this instance how people were intimidated by the Public Protector. And intimidation is when… Sorry?

Adv Mpofu: I see. So to you intimidation and victimisation is the same thing?

Ms Thejane: Necessarily not. If you are victimised and intimidated. So…

Adv Mpofu: No Ma’am. I asked you about victimisation, you are now talking about intimidation. Therefore, you are saying victimisation as if you are intimidated. So that means that they are the same thing.

Ms Thejane: No, I am saying intimidation is when somebody actually intimidates you in the manner… in the language that they are using towards you, then they will be intimidating you depending on what they say to you. Intimidation can take various forms of, for example, the audis that I received, I saw it as a form of intimidation. The conduct of a person which can be words or actions can amount to intimidation.

Adv Mpofu: I cannot claim to understand what you are saying. But I never even asked you about intimidation yet. I was asking you about victimisation. Okay, that is your definition of intimidation. What is victimisation?

Ms Thejane: Yes. When you put fear in a person, you are victimising that person to compel a particular… sorry?

Adv Mpofu: Okay, I thought when you put fear that is intimidation? Let me ask you, is intimidation the same thing as victimisation?

Ms Thejane: Excuse me? May you repeat that question, Adv Mpofu?

Adv Mpofu: I thought that the idea… When you were describing about putting fear, I thought that's what you call intimidation. I agree with that. Intimidation is when you put fear in someone. I was asking you what is the difference between that and victimisation? Or what is victimisation?

Ms Thejane: Yes. Victimisation is when you treat a person unfairly unjustly, you know you victimise that person.

Adv Mpofu: I see. So it is like an unfair labour practice – you call that victimisation?

Ms Thejane: Yes, when you… Yes, it is victimisation within a work context. It can translate or it can be unfair labour practice.

Adv Mpofu: Okay, so an example like if you come late and I say to you, you must stop coming late, and it turns out that maybe you did not come late. That is victimisation to you?

Ms Thejane: No, the way that you put it, it will not be victimisation. But if I then start… Sorry?

Adv Mpofu: Yes, carry on.

Ms Thejane: Yes, I was saying if you then start threatening a person, especially where a person gives you an explanation. So it then forms part of you are intimidating. But, also, you may be victimising a person, you know when you then…

Adv Mpofu: No, carry on Madam. I am just…

Ms Thejane: Yes, so, when applying it in our context what I am saying is if a person is not fairly treated the example that you are giving, if a person comes to work late. It is a rule and they come late. If you caution a person, that is not victimisation.

Adv Mpofu: Okay. Now we know what victimisation is not. What is victimisation?

Ms Thejane: When you victimise a person, in that same example or in our context, if you want to achieve performance, and through that objective you then start using the audis. On one hand you are actually threatening a person; on the other, then the tone, the language the way that you speak to the person you are then victimising them.

Adv Mpofu: Okay, what you have just described, is it intimidation or victimisation?

Ms Thejane: I have described intimidation but I have also described victimisation.

Adv Mpofu: What is the difference between the two?

Ms Thejane: Because if you start threatening a person… If you start using a threatening tone, or you put measures in place that are then threatening, then you are not intimidating a person.

Adv Mpofu: And what is harassment?

Ms Thejane: Harassment on its own can also involve threats. Harassment can take different forms.

Adv Mpofu: So these are synonyms, victimisation, intimidation and harassment from what you have described, correct?

Ms Thejane: It can have elements of both. If you victimise a person… If you intimidate a person there is a form of threat of the language you are using to that person.

Adv Mpofu: Alright. Okay, ma’am. Look, I am going to argue – let me take you out of your misery – that you do not know the definitions of intimidation, harassment and victimisation or the differences between them. And that confirms your earlier testimony that this statement, the foundation of this statement is not yours, but that it was written by somebody else. What would be your response?

Ms Thejane: I would disagree because if you intimidate me and use fear in that process, that for me is intimidation. We may then differ.

Adv Mpofu: Yeah. Okay. You, yourself, were never victimised, correct?

Ms Thejane: Well, there is that fearful language, the threats that have been used, so I have received those audis. So I have.

Adv Mpofu: Okay. So these words that are used in this charge, intimidation, harassment and victimisation, you attribute them to the audi letters that you received, correct?

Ms Thejane: Yes.

Adv Mpofu: Yes. And those audi letters you received from Ms Sibanyoni, the CEO, correct?

Ms Thejane: Sibanyoni, yes, CEO.

Adv Mpofu: CEO. That is the first person who victimised you, correct?

Ms Thejane: Well, it was not the first audi I received.

Adv Mpofu: Okay. She is one of the people who victimised you, correct?

Ms Thejane: Well, she was also acting on instructions.

Adv Mpofu: Yes, but she is the person who victimised you. Yes, ma’am?

Ms Thejane: Well, in the sense that it was issued by her.

Adv Mpofu: Yes. And the second person who victimised you was Ms Basani Baloyi, correct?

Ms Thejane: Correct.

Adv Mpofu: The third person who victimised you was Mr Mohalaba, correct?

Ms Thejane: No, he did not.

Adv Mpofu: Did he not send you an audi?

Ms Thejane: No.

Adv Mpofu: Who was the third person who sent you an audi?

Ms Thejane: I had two audis, one from Ms Basani Baloyi and the other one from Ms Sibanyoni.

Adv Mpofu: Okay. Mr Mohalaba just disciplined you… or rather, threatened to discipline you?

Ms Thejane: He said he was told to discipline me.

Adv Mpofu: Yes. Okay. So the only two people who disciplined you are Ms Sibanyoni and Ms Baloyi?

Ms Thejane: In the context of them being instructed to do so.

Adv Mpofu: Ms Baloyi was instructed by who?

Ms Thejane: By the Public Protector.

Adv Mpofu: Where do you get evidence for that?

Ms Thejane: It is because it happened. The first one happened at the meeting. The second one again, what would happen in the meeting is that PP would say this, "This has not been done, CEO, act on it."

Adv Mpofu: Okay. So by saying ‘act on it’ she was instructing them to victimise you?

Ms Thejane: Through the audis.

Adv Mpofu: No, ma’am. Listen to the question. By saying this has not been done, CEO or COO act on it, she was victimising you? That is your evidence?

Ms Thejane: Yes, within the context, I am saying it was unjustifiable.

Adv Mpofu: Yes. Okay. So that is what we must understand by, when you use those words, in paragraph four, intimidating, harassed and victimised, is that the Public Protector once said to a COO 'this has not been done, please act on it'. That is something…

Ms Thejane: Sorry, let me allow you to finish.

Adv Mpofu: No, I am finished.

Ms Thejane: If you may repeat, please?

Adv Mpofu: When we decode the big words that you use, like victimisation and intimidation, we must reduce it to what you have just said you were victimised by Ms Baloyi and you are saying that victimisation was traceable to the Public Protector because at a meeting she said to the COO ‘This has not been done, act on it’... That is it?

Ms Thejane: Well, not act on it but the audis that we must then explain why we have not achieved the turnaround time.

Adv Mpofu: Right. So that is the victimisation that you must explain why you have not met a particular deadline, for example? You call that victimisation?

Ms Thejane: No, the victimisation comes in that I would have given an explanation already as to why those targets were not met and it was not accepted. And still there will be an instruction that an audi must be issued. Now why I'm saying it becomes victimisation is that when there is a reasonable and logical explanation that is provided and that explanation is still not accepted. And then an audi is issued in the sense of a punitive measure, in a sense of threatening, in what is said because the explanation itself has not been accepted. That is why I say it then becomes victimisation because you are now being threatened with an action that is going to be taken in a form of anticipation of a disciplinary process, because the response or the explanation that I would have already provided would not be accepted.

Adv Mpofu: Yeah. Alright. The audi letters that were issued to you once you gave the explanations, you were not subjected to disciplinary action, correct?

Ms Thejane: No, I was not.

Adv Mpofu: Okay. Now have you read the statement of Ms Mogaladi?

Ms Thejane: But there would be a reminder that an audi… that the environment or the tone would be like that. Sorry, pardon me?

Adv Mpofu: Ma’am?

Ms Thejane: There is something that you said. I was saying if you could repeat?

Adv Mpofu: Okay. I was saying have you read the statement of Ms Mogaladi?

Ms Thejane: No, I have not. You will have to direct me.

Adv Mpofu: Okay. That is fine. You have never read it?

Ms Thejane: No.

Adv Mpofu: Okay. So if you have never read it… Just a minute, ma’am. Go to page 4355, paragraph 32. Read that. Madam, read that.

Ms Thejane: Must I read it out loud?

Adv Mpofu: Yeah.

Ms Thejane: “Ms Mogaladi, in her affidavit before this Committee already referred to the fact that in these meetings, the PP was interested only in what product was expected and by when. The answers to these questions are typically informed by the information available to the EMs and CIs at the time”… sorry?

Adv Mpofu: That is fine, you can end there. I just wanted the first sentence. You see that first sentence also gives a false impression that you have read Ms Mogaladi’s affidavit but that is false, correct?

Ms Thejane: Yes, I know what is contained therein.

Adv Mpofu: No, Madam, no. Please, please. You are a legally trained person. Do not evade the question and waste the time of the Committee, please. When anyone reads this, they will assume you have read Ms Mogaladi’s affidavit, correct?

Ms Thejane: I suppose so.

Adv Mpofu: Is that a yes or a no?

Ms Thejane: Yes.

Adv Mpofu: Yes. And that is false because you have not read Ms Mogaladi’s affidavit, correct?

Ms Thejane: I have not read it, but I know what is contained in it because I spoke to her.

Adv Mpofu: How do you know it, are you a sangoma?

Ms Thejane: No, no. I spoke to her.

Adv Mpofu: Oh, you spoke to her? And she said what? She recited her affidavit to you?

Ms Thejane: Not recited the affidavit but I know what is contained, therein.

Adv Mpofu: Okay. What is contained? Okay. Now that… Thank you Ma’am. You know what is contained in her affidavit. What is contained in her affidavit?

Ms Thejane: I am saying as far as that paragraph is concerned in terms of the deadlines and what is contained in that paragraph.

Adv Mpofu: No, Ms Thejane, please man. Why are you lying to the Committee? Madam, have you read… you have not read the statement and Ms Mogaladi did not recite it to you, correct?

Ms Thejane: Not recite to me but I know what is there, yes.

Adv Mpofu: Okay. What is there?

Ms Thejane: That is why I am saying as far as that paragraph is concerned, I know that is why I provided information or evidence relating to that.

Adv Mpofu: No, ma’am. So you only know one paragraph of Ms Mogaladi’s statement… affidavit?

Ms Thejane: To the extent that it relates to my own evidence, I know it. I know the other things she presented before the Committee, in terms of the hearings and what went through the hearing but I have only responded to those or confirmed those issues that are relevant to me.

Adv Mpofu: No, but it is not relevant to you, this. You are saying Ms Mogaladi, in her affidavit already referred to the fact that and then you quote almost verbatim from that affidavit which you have never read. So once again, this is not you who is speaking, it is the Evidence Leaders, correct?

Ms Thejane: Yes, this was included there by the Evidence Leaders. But I also know the issue of being interested in a product and when it is expected. So that is why I'm saying I was then responding to that.

Adv Mpofu: Maybe we do not understand each other. The Evidence Leaders or whoever wrote this, was giving the impression to the Members of Parliament, who will be reading this statement, that you had read Ms Mogaladi’s statement, correct?

Ms Thejane: Yes, but I did not read Ms Mogaladi’s statement.

Adv Mpofu: I know that. Please, let us do it one by one. The Evidence Leaders, or whoever wrote the statement, were giving the impression that you had read Ms Mogaladi’s affidavit, correct?

Ms Thejane: Necessarily not, in terms of the actual read. I can respond to that part of her affidavit. I cannot, in other words, respond on behalf of the Committee members.

Adv Mpofu: No, ma’am, no. You said you have done two law degrees. I am asking you a simple question. Do you really think that a Member of Parliament sitting at home reading this document looking at paragraph 32, will be left with the impression that you have not read Ms Mogaladi’s affidavit or will they be left with the impression that you have read it?

Ms Thejane: May I leave that to the Committee members to make a decision.

Adv Mpofu: Okay. Forget the Committee members, you. If you got this affidavit from me, written by me, and I say at paragraph 32 “Ms Mogaladi in her affidavit before this Committee already referred to the fact that in this meeting, the PP was interested only in what product was expected and when.” Would you be left with the impression that I have read Ms Mogaladi’s affidavit?

Ms Thejane: Necessarily not. That is why I am saying, I have been following the proceedings. I know what Ms Mogaladi has said. So I can then also give my own views and experience as far as what is contained in her affidavit.

Adv Mpofu: Yeah, ma’am. Really, I do not know. I must just apologise to the Committee for wasting their time with you but we have to do what we have to do. So you are not or rather, the only paragraph you know of Ms Mogaladi’s statement is that one that you happen to know by osmosis or by some, I do not know… magic?

Ms Thejane: It would not be by osmosis or by magic. I have indicated that I've been following all these proceedings, you will then have to guide me if there is any other reference to Ms Mogaladi in my affidavit that I will need to respond to. Otherwise, I would wish to be confined to my affidavit.

Adv Mpofu: Yes… no. That is what I am saying. According to your affidavit… Okay, let us forget the affidavit, ma’am. I am saying the only point that you remembered was this paragraph, correct?

Ms Thejane: That is not the only point that I remembered.

Adv Mpofu: What else do you remember from Ms Mogaladi?

Ms Thejane: I do not know if I am now required to go through the affidavit of Ms Mogaladi. I have indicated that I have only drawn what is relevant to what I wanted to present to the Committee and that is contained in that paragraph.

Adv Mpofu: Alright. Okay. I think that is very clear to everyone. Okay. You are just fudging the evidence I think as we go along. Okay. You were saying earlier when you're talking about intimidation and the fear: what is the fear that you guys are talking about? It is the fear of audi letters, is that what it is?

Ms Thejane: Well, the audis are the ultimate but the fear starts from when we even go to those meetings – before we go to those meetings that you provide an explanation on the reasons you have not achieved a particular target or why certain matters are not finalised. So just the tone, the environment of the actual meetings that is when the fear is actually instilled. The audis are at the end. The fear itself is just the environment itself that is not conducive to a proper working environment.

Adv Mpofu: Right. Okay. Sorry, ma’am. We will come back to the audi thing. I was just looking for this, just to round off the previous point and I am sorry to belabour this but it is important because it goes to what both Adv Tshabalala and I have called the false foundations of your affidavit. You understand that theory, correct?

Ms Thejane: Well, as you have put it, which I have disagreed. But we may continue.

Adv Mpofu: What is it now that you do not agree with? You do not agree that your affidavit is based on Charge Four and the things in 11.1 to 11.4, and some sections of Ms Mogaladi’s affidavit, all of which you have never read?

Ms Thejane: I explained myself.

Adv Mpofu: So why are you saying we disagree? Do you want us to go back to that again?

Ms Thejane: No, that is not my intention but I have explained, including the reference to Ms Mogaladi’s affidavit. I have explained it.

Adv Mpofu: You know, ma’am… really. You are taking me back now. You have never read Charge Four?

Ms Thejane: I have already responded to that. I can hear that you are speaking – bear with me. Can you hear me now? Chairperson, can you hear me?

Chairperson: Adv Mpofu, we cannot hear you?

Adv Mpofu: Can you hear me now?

Ms Thejane: I can hear Adv Mpofu now.

Adv Mpofu: Yes, I can hear you now, ma’am. Sorry, I was saying I do not want to go back but you are taking me back. You have never read Charge Four, correct?

Ms Thejane: I have already responded to that.

Adv Mpofu: Yeah, can you respond again, please, ma’am. Maybe I am slow. You have never read Charge Four?

Ms Thejane: I responded Adv Mpofu, that in the motion I did not read Charge Four but I read Charge Four as it is contained in the affidavit.

Adv Mpofu: Yeah but there is no… Okay. Before you read the affidavit, you had never read Charge Four?

Ms Thejane: That is correct.

Adv Mpofu: You had never read the things that are in 11.1 to 11.4?

Ms Thejane: I have indicated as such.

Adv Mpofu: And you had never read Ms Mogaladi’s affidavit?

Ms Thejane: Yes, I did not read it.

Adv Mpofu: Yes. Now I am saying those three pillars of your affidavit are not from you. That is the point I am making. Go to paragraph 23, ma’am.

Ms Thejane: Of?

Adv Mpofu: Of your affidavit. Read it out.

Ms Thejane: “From paragraphs 107 to 112 of her affidavit, made for this Committee, Ms Mogaladi described dashboard meetings – how they were conducted initially and what they were about, and how dashboard meetings evolved in their content and focus. I do not seek to repeat what Ms Mogaladi has already stated in this regard, but I concur with the views that she expressed.”

Adv Mpofu: That is another fourth false foundation of your affidavit, correct?

Ms Thejane: No, we disagree to the extent that I say, I know I have followed the proceedings. So while I have not read Ms Mogaladi’s affidavit in its entirety but I know what is contained there and that is why I was able to provide information based on my own experience and also having sat in the same meetings that Ms Mogaladi was in, that it was based on that.

Adv Mpofu: Okay but that is… You are now lying… That is an untruth, right?

Ms Thejane: I do understand what you mean.

Adv Mpofu: You know that you are under oath? You have sworn to God and someone told you that if you give false information, it might be the basis of a criminal charge, correct?

Ms Thejane: I know.

Adv Mpofu: Do you remember that?

Ms Thejane: Yes, I know.

Adv Mpofu: So do you want to maybe reconsider giving false information?

Ms Thejane: I have not given false information.

Adv Mpofu: Okay. So you want this Committee to believe that you, without having read Ms Mogaladi’s affidavit, you knew what is in paragraph 107 to 112? Is that what you want us to believe?

Ms Thejane: Yes, because it was communicated to me by the Evidence Leaders and that is what I responded to. As far as the dashboard meetings were concerned, how the dashboard meetings were held and what happened in those dashboard meetings. It was explained to me.

Adv Mpofu: Ma’am, I am not asking you about dashboard meetings. I am asking you that you said from paragraph 107 to 112 of her affidavit… At that time you had never read Ms Mogaladi’s affidavit. We have established that. Do you understand?

Ms Thejane: Yes, but it was explained to me.

Adv Mpofu: No. Madam, when you wrote these words… when you signed on these words, you did not have a clue in the world what is in paragraph 107 of Ms Mogaladi’s affidavit, correct? You still do not have a clue even now as you are sitting there, correct?

Ms Thejane: Necessarily not, in that Ms Mogaladi concluded her affidavit and she also presented before the Committee. So that is why I'm saying that what is referred to there, I'm able to then respond thereto as far as my experience is concerned.

Adv Mpofu: Alright. What is in paragraph 107 to 112 of Ms Mogaladi’s affidavit?

Ms Thejane: Well, I would have to refer to it. I do not have it in front of me.

Adv Mpofu: Yes, but forget about the fact that you do not have it. When you did this, you have never, actually you told this committee you have never read it.

Ms Thejane: I have not read the actual affidavit – I have said so. But I have… Yes.

Adv Mpofu: Yes. So the answer then is you do not know what is in paragraph 107 to 112?

Ms Thejane: I have said that I followed the proceedings. I have heard what Ms Mogaladi has said as far as what is contained in those paragraphs.

Adv Mpofu: Ma’am, you do not want to answer my question. As you are sitting there, and as when you were signing this affidavit, you did not know and now today on 9 November 2022, you do not know what is in paragraph 107 to 122 of Ms Mogaladi’s affidavit, correct?

Ms Thejane: I am saying the difference is that I have not read it in the affidavit but as she was presenting, yes I do, as far as those are concerned.

Adv Mpofu: I promise you, I'm asking this for the last time. If you still want to evade it, it's your choice. Ms Thejane, as you're sitting there, today, you do not know what is in paragraphs 107-112 of Ms Mogaladi’s affidavit, yes or no?

Ms Thejane: I responded and I beg to differ with your conclusion.

Adv Mpofu: So… Okay. You differ with my conclusion and my conclusion was that you do not know what is in those paragraphs. Therefore, it means you know what is in those paragraphs?

Ms Thejane: That is why I said I have followed the proceedings including when Ms Mogaladi was testifying.

Adv Mpofu: Okay, if you know what is in those paragraphs, can you share that with the Committee? What is in paragraphs 107 to 112 of Ms Mogaladi’s statement?

Ms Thejane: As I indicated that since I have been following the proceedings, the issue of dashboard as she has indicated and I have responded thereto, I know about that. But to then recall the whole of… from 107 to 112, I will not be able to do so, right now, without it being projected.

Adv Mpofu: Yeah but you are misleading the Committee again. How can you recall something you have never seen?

Ms Thejane: No, I am saying I responded to the extent that I have experienced those incidents in her affidavit.

Adv Mpofu: Ms Thejane, you are a very… I do not know. Alright. Can I just summarise it by saying then that fourth pillar of your statement is also false?

Ms Thejane: I have disagreed.

Adv Mpofu: Pardon?

Ms Thejane: I am listening.

Adv Mpofu: No, I was saying that we had gone through the three areas. I was saying that this was now the fourth pillar. Obviously the building with three pillars gone was already going to collapse. But just in case, you never know miracles can happen, I was trying to give you the last pillar. So that is also crumbling, correct? You have never read those paragraphs.

Ms Thejane: I disagree with you. I have responded.

Adv Mpofu: That's the truth. You have responded but you have responded falsely. That is not what I want to know. What I want to know from you is that you have not read the affidavit. If you are not even honest enough to admit that which you admitted a few questions ago, then where are we, Ms Thejane. Do we really have to go through this? Do you need to subject South Africans to this?

Ms Thejane: Adv Mpofu, I have indicated that I have responded to those things, dealing with dashboard meetings dealing with issues of backlog. I have responded to that as contained even in my affidavit. I may not quote verbatim as it is in Ms Mogaladi’s affidavit, but I have indicated in my affidavit.

Adv Mpofu: Are you fine? Are you okay?

Ms Thejane: I am very fine, actually.

Adv Mpofu: I am glad to hear that. Now you said that… You agree that poor performance was a contributor to the backlogs, do you not?

Ms Thejane: Where did I say that?

Adv Mpofu: No, I am asking to you now. Don't you agree that poor performance was a contributor to the backlogs?

Ms Thejane: Necessarily not.

Adv Mpofu: I do not understand those things. Please. I do not know what ‘necessarily not’ means. Was poor performance a contributor to the backlogs or not?

Ms Thejane: I have indicated, I would say no. That is why I am saying necessarily not, because there are factors that contributed to the backlog. Therefore, to say it is just poor performance, I do not agree.

Adv Mpofu: Okay. Maybe it is me or you do not listen. When you say something is a contributor, do you mean it is the only thing in your language?

Ms Thejane: No.

Adv Mpofu: So why are you now changing what I have said to you? I said to you, do you agree that poor performance is a contributor to the backlog? I did not say it is the only thing. Do you agree or do you not agree?

Ms Thejane: I do not agree.

Adv Mpofu: It is not a contributor?

Ms Thejane: It's a contributor where there could be poor performance.

Adv Mpofu: So what is it that you do not agree with? I have just said exactly what you said. I said poor performance is a contributor to the backlog, as a general statement, not the sole cause. I accept that. But it is one of the contributors, correct?

Ms Thejane: Correct.

Adv Mpofu: So what is it that you are disagreeing with?

Ms Thejane: No, I was saying it can contribute to the backlog.

Adv Mayosi: Chair?

Adv Mpofu: And other factors would be training, correct?

Ms Thejane: May I understand when you say training, as a contributor the backlog?

Adv Mpofu: Okay. Can lack of training also be a contributor to the backlogs?

Ms Thejane: In what sense, so that I know that I understand you?

Adv Mpofu: Pardon?

Ms Thejane: In what sense, so that I can understand what you are saying… what do you mean?

Adv Mpofu: Okay. If you get poor quality reports because people are not trained, I thought your evidence earlier was that then you have to send them back, correct?

Ms Thejane: Yes.

Adv Mpofu: Okay, then let us say that takes a month. You send it back, it takes another two months, then it comes back and the quality is still not good, you send it back, it takes another two months, will that not contribute to not meeting the deadline?

Ms Thejane: It would contribute if the deadline itself remains the same, then it will contribute to the backlog in light of what you have also indicated that there are certain intervening measures that must be taken including training; but if the deadline itself remains the same, then it will contribute to backlog.

Adv Mpofu: Okay. So poor performance, training, those are the things that can or do contribute to backlogs. Also, vacancies contribute to slowing down the delivery, correct?

Ms Thejane: Correct.

Adv Mpofu: The fourth one would be the transfer of people to other provinces, correct?

Ms Thejane: Correct.

Adv Mpofu: The fifth one would be financial constraints, correct?

Ms Thejane: Correct.

Adv Mpofu: Okay. Now you know that financial constraints could make sure that cases would remain active and not completed, correct?

Ms Thejane: Correct.

Adv Mpofu: So you would not agree with a statement that says that financial constraints do not contribute to or are not one of the causes for investigations not being conducted or completed?

Ms Thejane: I have agreed with that, that financial constraints can contribute.

Adv Mpofu: Yes, which means you do not agree with the opposite, that they cannot contribute, correct?

Ms Thejane: No, no. I have said that financial constraints can contribute.

Adv Mpofu: Do contribute. Yes, that is what I am saying. Therefore, I am saying a statement that says financial constraints should not contribute to such backlogs – it would be incorrect.

Ms Thejane: Yes.

Adv Mpofu: Thank you. And then, the next issue for what it's worth, as I said, I mean, I'm just doing this for the benefit of the Members but quite frankly I could be speaking to myself. I am saying that you also agree that – this is probably the most serious thing I am going to ask you to assist the Committee with – you accept that, there are certain prices to be paid for achieving delivery?

Ms Thejane: Yes, if you may just explain to me when you say prices, what do you mean?

Adv Mpofu: Yeah. Okay. Do you accept just as a general statement, in South Africa we have a crisis of poor service delivery, agreed?

Ms Thejane: Yes.

Adv Mpofu: It is actually at pandemic levels, the non-delivery at various levels. You are a South African, I do not have to take you to those examples. You would agree with that as a general statement, correct?

Ms Thejane: Yes, as a general statement.

Adv Mpofu: Yes. Now I am saying, here we have a Public Protector who has unlike all the people who are trying to judge her, has done something and actually improved service delivery. Would you agree with that – that she has improved service delivery?

Ms Thejane: You are talking service delivery in what context, so I know what I am responding to?

Adv Mpofu: In the context of the Public Protector… Okay. In the context of the Public Protector’s Office, have you and when I say you, I mean, the Public Protector and yourself and others, delivered the services better under her leadership?

Ms Thejane: Yes, what I am trying to get clarity on, you are talking as in executing our duties as the Public Protector’s Office or are you talking service delivery in general, outside by state organs? So that I know what I am responding to.

Adv Mpofu: Okay. No, no. I understand, ma’am, sorry. The first statement was just a general South African statement. We have agreed on that. Put that aside now. I'm now coming to the Public Protector’s Office. I am saying that you will agree that the Public Protector has achieved… Okay, let me maybe simplify it. She has achieved, for example, bringing in strong women leadership into the organisation, correct?

Ms Thejane: That is correct.

Adv Mpofu: Okay, that is one. She has massively reduced the backlog, correct?

Ms Thejane: That is correct.

Adv Mpofu: Achieved three clean audits, correct? That is number three.

Ms Thejane: Correct.

Adv Mpofu: In three successive years – unprecedented, correct?

Ms Thejane: Correct.

Adv Mpofu: She has delivered services to the public faster and in bigger quantities, correct?

Ms Thejane: You mean in terms of the matters we have dealt with?

Adv Mpofu: And the Office has even achieved international recognition. The Public Protector serves on some international ombuds bodies. The profile of South Africa's Public Protector’s Office is quite high internationally, correct?

Ms Thejane: Yeah, which can also be attributed to the other Public Protectors. I do not disagree with what she has achieved as the current incumbent. But also the other Public Protectors, I think the Office has really maintained that reputation internationally.

Adv Mpofu: Has… Okay, maybe… I did not want to do a comparison, but since you are dragging us there, let us do it. Has any other Public Protector before reduced backlog to the levels that she has?

Ms Thejane: Well, it would depend on what we look at per Public Protector and what the status is. I must indicate that the current Public Protector has…

Adv Mpofu: Yeah… Okay. Let me put it this way – the evidence of Mr van der Merwe, who has been there since long time ago, and it is backed up by statistics, that this is almost a superlative performance in terms of reducing the backlog. It has never been at these levels. Would you quarrel with that? Is that not your experience?

Ms Thejane: No, I do not disagree. I agree.

Adv Mpofu: Yes. Okay, so let us then say that she has performed better than all the other Public Protectors in the area of backlog reduction, correct?

Ms Thejane: Correct.

Adv Mpofu: Did any other Public Protector achieve a clean audit, or two or three clean audits in succession?

Ms Thejane: No.

Adv Mpofu: So in the area of governance and clean audit she has also performed better than any other Public Protector in history, correct?

Ms Thejane: Correct.

Adv Mpofu: Right. That is the point I am making. Now the issue I was saying to you is that those, I have just chosen randomly five areas, where the Public Protector has exceeded expectations and performed so well. Now I am saying you would accept as someone who has worked in management that those achievements must come at some personal cost to somebody? The Americans say ‘no pain, no gain’. Nothing for mahala. Uzoyithola kanjani, uhleli ekhoneni. Those expressions mean that when you get those things, there must be some payback, some sacrifice or price, correct?

Ms Thejane: Correct.

Adv Mpofu: Yeah. Now this seems to be at the centre of this so-called Impeachment Inquiry. Because it is now… You are probably, I do not know, the 15th person brought who was been brought here to criticise the Public Protector. And it seems to be something like this, ‘We are happy to get the service delivery. We are happy to get the clean audit. We are happy to get the backlog reduction and faster delivery to the masses of our people. But it must not come at any… Nobody must do anything extra. That must just fall from heaven.’ Is that really what this is all about?

Ms Thejane: No, I would not agree to that, especially to the extent that I have responded and presented that information – I would not agree. In fact, I do share those sentiments, that when you are given a particular task, you do everything possible to achieve the task. That is why I personally have spent long hours to try and achieve the task new as I was. So that does not take away any objective or intention from the Public Protector because, yes, the Public Protector works through us to then do everything that is possible. However, when you work in an environment where you present even what you have achieved, and then it is actually said ‘but you are celebrating the numbers’. On the other hand, those are the very same numbers that are reported by the Public Protector that she is also saying as the Public Protector, ‘judge me by my performance’, and those are the numbers that we have actually given in terms of the work; in terms of the output that we have given the country, not just the Public Protector, because we are mandated by the Constitution. But when I talk about this environment, where you say, ‘Yes, we have finalised so many.’ And then we're saying, ‘but you are giving me the numbers.’ But it is the very same numbers that PP is saying, ‘judge me by performance.’ Secondly, yes, indeed, there is that performance but where one is now saying ‘Yes, we have a backlog, let us deal with the backlog. Let us also look at those factors that have created the backlog’. As we have listed them as factors that affect the turnaround time of matters that eventually fall into the backlog. You have mentioned staff transfer; you have mentioned vacancies; you have mentioned budgetary constraints – it is also those issues that we would put before the Public Protector. That the person has been transferred; sometimes they are transferred with their cases, sometimes they are not transferred with their cases. Some people would leave the organisation; we have to redistribute those matters. However, if that is seen as an excuse when we present it, and the deadlines on those matters are not adjusted, in line with those challenges, in line with the poor quality picked up – that is what I am talking about, Adv Mpofu. But I am not taking away from, yes, somebody must work towards achieving those targets and the service delivery, as you put it. I agree with you.

Adv Mpofu: Okay, but you accept… I let you give that long answer because I really, really… this thing troubles me, it makes me not to sleep at night. But we are here actually wasting the time and the money… to want to punish somebody for these achievements that I have listed, simply because in the process of those achievements, some people might not have been happy, or they might have slept late or woken up early in the morning, or whatever. The point I am making to you and it is a very serious point, madam, is that you and I at least accept that to achieve these things – three clean audits in a row never been done since 1994 – that cannot fall from the sky, it takes some blood and sweat and sacrifice and lack of sleep and all sorts of things like that from people like you. You accept that the one cannot happen without the other, correct?

Ms Thejane: Correct.

Adv Mpofu: Yes. So if then we cannot get these achievements for our people: clean audit, cutting backlogs, faster delivery to the masses of our people… If we cannot get that without the sacrifices, which one must we forego? Must we stop the sacrifices so that we do not get the delivery, or impeach those who give us the delivery simply because there's some cost? Or should we just live in a cesspool of non-service delivery as a country and degenerate into sewage that is running in our streets, as it is now?

Ms Thejane: Yes. I cannot speak to the impeachment or not, because it is not my decision. However, what I can respond to is that it does not help to push and make those sacrifices, including sleeping late, if the final product as the courts have also determined, is then causing the very same disservice to the communities that you want to serve or the changes that you want to bring in public administration. It does not help to threaten. It does not help to victimise. That is why I was saying, Adv Mpofu, I am interpreting it within that context. That if you push and you say I want this within this particular time, and you do not consider all those factors you have listed. You produce a product; you produce a report that then goes to court and that report is set aside on review. Firstly, you have given hope to that member of the community who has entrusted that hope in the Office of the Public Protector. You issue a report that would have far reaching consequences in public administration, for an individual, also for the country, depending on each and every investigation in that report. But if that report is then set aside, and we know that had we placed more emphasis on proper investigation and quality. Had we been listened to when we said this matter is not ripe; it is not ready for conclusion for finalisation and signing-off. And those factors are considered as opposed to being seen as excuses; as issues of mere poor performance. I do agree there can be issues of poor performance, but if they are seen as issues of solely poor performance and then an audi is issued as opposed to dealing with those reasons, then you are still not serving the public because those reports then get set aside.

Adv Mpofu: Okay, So you are talking about like 14 reports that were set aside? So what about the other 50 000 matters? Must they suffer so that we can save two or three reports?

Ms Thejane: No, they should not. They should not.

Adv Mpofu: Yes. What you are telling us is a false comparison because even if you were not asked to perform well, the reports were still going to be challenged in court, I can assure you that much as a lawyer. If somebody came to me… Even if you take a 100 years to do the report, if someone is going to review it, they will review it. Do you accept that?

Ms Thejane: Yes, I agree. It is the right they have.

Adv Mpofu: So then that is why I am saying, ma’am, and I really want you to help us on this. Put aside the thing of the review, that is a non-issue because that will always happen. I am saying, should we massively cut down on backlogs, and let people do as they wish, just so that the reports are not reviewed? Is that what South Africa should become?

Ms Thejane: No, I do not agree that people must do as they wish, but I do say that while we may look at the few reports that have been taken on review and set aside; however, in terms of the quality assurance of our work, that still remains critical. If one looks at those reports that have been implemented, the changes that have been made, versus those that have not been implemented.

Adv Mpofu: Okay. Ma’am, let me put it like this. Let me agree with you just for argument's sake. Let me say that maybe this massive output, one of the… what I call the price, is quality. Let me grant you that. Let us say that quality will then suffer. But do you agree that is a balance that we must live with? If quality must suffer so that we deliver faster and better services to our people, rather than delivering nothing and have, let us say, one report in 10 years but it is of great quality, that we should choose the balance that says maybe you are not going to have Rolls Royce reports, but you will have Toyota reports, but they will be sufficient to run on the road, if you get my example? Do you agree that that's the kind of balance that we should strive for?

Ms Thejane: I would not agree because then it would also say as a member of this Office, and at my level, I can take work that is of poor quality or is also substandard, just so we can produce a report and…

Adv Mpofu: No, then you are not listening to me. I did not say anything about substandard. I said from a Rolls Royce to a Toyota, not substandard. I am saying, do you agree that part of the sacrifice that we must make as a country now, let us say Eskom or any of these areas where there is a crisis, would be that maybe you could have the best electricity distribution or the best reports from the Public Protector’s Office. But rather than having load shedding every two hours, maybe we should have, if the price to pay is to have lower quality, but better service, but those might be the only choices we have, rather than the Rolls Royce or nothing. Do you understand how complex service delivery can be that you have to make certain sacrifices?

Ms Thejane: I hear your analogy but I would not want to agree with it in our context. We want to strive to produce quality reports that would make an impact, including those service delivery issues that you are referring to. So one does not want to reach a compromise. It would be wrong to then say it is okay, as long as we can compromise. I would disagree. I would strongly disagree with that.

Adv Mpofu: You disagree with that?

Ms Thejane: Yes.

Adv Mpofu: So you do not think it's a compromise or a balancing exercise? As a leader, you do not think it is about balance and compromise? It is either we will get the most perfect reports in the world or we will get nothing. There is no balancing act?

Ms Thejane: It is not even about the report. Remember, in every complaint that we investigate, it is about the change that we need to influence in our public administration in the country. So for me to then say, let us reach a balance, that is where I do not agree with that kind of approach. The report must be perfect for us to influence that change.

Adv Mpofu: Alright. No, I think I know where the problem is now. Yeah. Thank you. Alright. So then they… Who then, if to the extent that you accept that there must be sacrifices made to get these outcomes, clean audits, and all these things, who must make those sacrifices?

Ms Thejane: All of us in this Office, to the extent how we play each role as per our position.

Adv Mpofu: Okay. Let me ask it differently. You and I agreed about five contributing factors; I will not go through them again. Remember?

Ms Thejane: Yes.

Adv Mpofu: Of those, do you accept that the Public Protector has no control over the budget?

Ms Thejane: Yes.

Adv Mpofu: She has no control over most of those factors, but the one she has control over as a contributing factor is poor performance. She can improve on that one. Actually, that is what we pay her to do, correct?

Ms Thejane: Correct.

Adv Mpofu: And therefore she cannot, you know that saying ‘God make me accept the things I cannot change’? She cannot change all those things. But the one area that she can change, she must make sure that there is improvement in that one area. She cannot change the other four, but the one that is in her province is performance. Agreed?

Ms Thejane: Yes, but the other ones that you also included are issues of transfer, people who leave the office and therefore having to fill those positions. Those ones can be controlled, because when those factors come into play, it says you need to revisit certain areas, including backlog. That is why you must say what has also contributed to the backlog – it is work that is redistributed to other investigations.

Adv Mpofu: Okay, ma’am. I do not want to waste more time on this. I am saying… let me call it the HR or internal issues. She can control those but not the other factors outside of her control, correct?

Ms Thejane: Can we agree on the factors that are outside of control? That is why I have listed, because I want to agree with the issue of poor performance but I have indicated the other factors that are also within the area of her control, because they are internal.

Adv Mpofu: Yes, ma’am. But I am helping you with that. That is what I mean. So you are just repeating what I said. You can just say yes.

Ms Thejane: Alright. Yes, it is just I heard poor performance.

Adv Mpofu: I never said… I did not say poor performance. Poor performance was four questions ago. I said to you the internal issues… the HR issues and internal issues at the PP’s office. That is where she can make a difference, not the externally controlled factors.

Ms Thejane: Agreed.

Adv Mpofu: And we must accept therefore, that to the extent that the Office has improved massively in certain areas, it is because she has improved those areas that she can control, irrespective of the fact that nothing has changed on budget; nothing has changed on staff and she cannot control people resigning or whatever, but those improvements must therefore compensate for those areas where she has no control, correct?

Ms Thejane: Correct.

Chairperson: Thank you. We can pause there, Adv Mpofu.

Adv Mpofu: Thank you, Chair. I will just round off when we come back here.

Chairperson: We will take a break up until 15:45 and then run through the last stretch. Thank you.

[Break]

Chairperson: Welcome back, Ms Thejane and Adv Mpofu. We are not getting into our last stretch. We are going to ask you to continue and conclude your cross-examination so that you can proceed to placing matters on records between now until the adjournment of the meeting. Thank you. I hand over to you.

Adv Mpofu: Thank you, Chairperson. Good afternoon, Ms Thejane. Are you back. You are muted.

Ms Thejane: Sorry, can you hear me now?

Adv Mpofu: I can hear you now, yeah. Alright. We are going to cover two or three issues, but I just want to round off the previous point, which I said really symbolises the kind of evidence that you and the other employees have given, which I find quite disturbing. So we agree that really the… All of you, well, I do not want you to speak for other people, yourself…. You said you have come here to tell the Committee that the Public Protector intimidated, harassed and victimised you or other people, correct?

Ms Thejane: That is correct.

Adv Mpofu: And we know that… I do not want us to go back to that confusion about describing those terms, here. So I am just trying to unpack them now. So effectively we agreed that the Public Protector never came to that office and beat people up or got there and she was drunk or all sorts of things like that. All these problems that you have with her are because she was driving performance, correct?

Ms Thejane: It is how she was driving that performance.

Adv Mpofu: Yes. No, I accept that. It is how she was driving performance. But all the problems that you and the others have are about driving performance – the manner of driving performance. It is not like she went there and she was stabbing people and doing things like that, correct?

Ms Thejane: Well, PP can be a very soft-spoken person. It is what she says and how she says it and her actions that can be an equivalent, well let me compare it to driving around and the way that you have placed it. But within a work environment, it is how things are done.

Adv Mpofu: Ma’am, I do not think you understand my question. All these bad things, whatever they are, that she did, were aimed at improving performance, correct?

Ms Thejane: Yes, that was her aim.

Adv Mpofu: Yes, yes. I am not underestimating or undermining the fact that you are saying the how. What I am saying is that all the problems that you have with her are related to the manner in which she was driving performance service delivery, and all these performance indicators, correct?

Ms Thejane: Correct.

Adv Mpofu. Alright. And you say that one of the issues is that… Okay, Adv Tshabalala asked you about yourself now. You phoning people in the wee hours of the morning, correct?

Ms Thejane: Not in the wee hours of the morning but late at night, yes. Very late at night.

Adv Mpofu: Pardon?

Ms Thejane: Yes, I was calling people.

Adv Mpofu: Yeah, in ungodly hours, correct?

Ms Thejane: That is correct.

Adv Mpofu: Right. That was victimisation in your language, correct?

Ms Thejane: No, I was not victimising people.

Adv Mpofu: Oh. So when it is you… I thought you were saying victimisation entails this idea of interfering with people's private lives?

Ms Thejane: Yes, I did say… You see, we are the ones who have to deliver the work. PP was not calling people at ungodly hours. I was explaining or describing the work environment itself that because of these tight deadlines that are often prescribed, then you have to get things done. Yes, it included calling people at odd hours. In other words for me, who is based here in head office and also my position, and who sits in these meetings, then it translates in that way that you affect each and everyone. That is why I was saying while, yes, the objective was to drive performance, but how you then drive performance because the more harsh you are, the more threatening you are, people are going to then deliver that product by the time that you said – 'product by when'. But what is the quality of the product, then it affects everyone along the chain.

Adv Mpofu: Yeah, okay. We have gone through the quality. I do not know you did not hear the question or you are dodging it. I'm saying you… you, Ms Thejane. When you phoned people in the wee hours of the morning, do you count from their perspective that you were harassing and victimising them, correct? Because they were sleeping at home and…

Ms Thejane: Yes, indeed. They could see it that way. They could be justified, yes.

Adv Mpofu: But when you are victimising and harassing those people, it was because you were feeling pressure to deliver, correct?

Ms Thejane: That is correct.

Adv Mpofu: It was not because you are a bad person yourself. You were calling them in those odd hours of the morning, because you wanted them to deliver so that you can deliver, correct?

Ms Thejane: That is correct.

Adv Mpofu: Yes, so the same applies to the PP. Do you know that she also has pressure to deliver, just as you have pressure maybe from her and the people you were waking up in the morning had pressure from you. And they probably phoned other people as well and woke them up in the odd hours of the morning. But the Public Protector also had pressure to deliver and she did deliver as we know, you accept that?

Ms Thejane: Yes, I accept. But also I want to say, yes, everybody is under pressure but where one has explained why a particular milestone has not been achieved and then it is not accepted at that level and the deadline does not change. That is what then leads to this ripple effect of putting pressure on each and everyone. So yes, I agree everybody, including the PP, is under pressure. But when one then says to the PP, these are the issues…

Adv Mpofu: Okay, good. Thank you. That is what I am saying. Yes, ma’am. I am saying therefore if you are saying victimisation; so PP insofar as she was also acting under pressure, she was a victim herself? Just like the people you were phoning. The people you were phoning were your victims. Do you accept that?

Ms Thejane: No, I do not agree.

Adv Mpofu: You do not agree that the people you called at three in the morning… okay sorry, I do not know what the time. The people you phoned at odd hours were at face value, victims of your phone call, correct?

Ms Thejane: No, I have agreed to that, but I do not agree that PP is a victim.

Adv Mpofu: Yes. Oh, I see. So the only victims were the people you phoned and the people they phoned and you, and that is where it stops?

Ms Thejane: You know why I say that I do not consider the PP as a victim? It is because we are in control of that. We are in control. With the main focus of producing quality. If there is an explanation that is provided and that deadline does not change, you end up putting pressure on each and every other person to then produce work that may not be of good quality.

Adv Mpofu: Alright. Since you say you followed Ms Mogaladi’s evidence, you accept that what you are saying is false? That is not what happened. Actually on many occasions people had to determine their own deadlines.

Ms Thejane: No, I disagree with that.

Adv Mpofu: But do you accept… Since you followed Ms Mogaladi’s evidence, do you accept that she conceded on that point? Ms Motsitsi as well. I think in the case of Ms Motsitsi we saw some deadlines that were moved like 25 times. But deadlines did get moved. So it is not true what you are saying that the deadlines were immutable because we have live examples of Ms Mogaladi, for example, when she got her audi letter, she had determined her own deadline and did not meet it.

Ms Thejane: I hope you can hear me, because you are now frozen on my side.

Adv Mpofu: I can hear you, yes.

Ms Thejane: The screen is frozen. I will continue until you stop me.

Adv Mpofu: No problem.

Ms Thejane: Yes. No, I do not… I think it will have to be contextualised specifically because the deadlines for backlog matters, one would sit in meetings and then those deadlines would propose that this is the deadline based on the work that still needs to be done. That is why PP will say, ‘No, that is too far’. And that is why I have said even though I agreed, it was at her insistence. One would say yes but that is not necessarily the deadline I would have set based on the investigation and the work still needing to be done.

Adv Mpofu: Okay. Okay. Let me round it off like this because I do not want a tit for tat with you. You refute that people like Ms Mogaladi who agreed here – and you said you followed her evidence – conceded that some of the deadlines that she failed to meet were set by her. Not anyone else – by her, Ms Mogaladi.

Ms Thejane: No, I am not refuting that. I was just explaining that…

Adv Mpofu: No… Alright. And Mr Tebele who also gave evidence here, you know him?

Ms Thejane: Yes, I know him.

Adv Mpofu: Yes, he also testified that people at times would give their own deadlines and failed to meet them. So let us leave the issue of the ones that were not changed. What about the ones where the people set the deadline themselves and still did not meet them? Do you think that is fine?

Ms Thejane: No, I do not think that is fine – if they have set their deadlines.

Adv Mpofu: Okay. Yes. Therefore, in the instances, like in the case of Ms Mogaladi where she had missed I think four or five deadlines until it came the point where she set her own deadline and she still missed it. You would accept that there must be consequences?

Ms Thejane: Depending obviously on the reasons for still not meeting the deadline she set for herself. Then I would agree, there should be consequences.

Adv Mpofu: Then if we do that then it means we'll go back to the dark days before Adv Mkhwebane, where matters would last for five years, correct? Because then it will be ‘depending, depending and depending’. I am sure even Ms Madonsela and the others wanted the backlog to be slashed but people were giving these ‘depending and depending’ for five years. At what point should we say that this matter must be delivered; you cannot be giving us excuses for five years?

Ms Thejane: Yes, you have correctly used the word excuse… excuses, because that is what it was seen as, excuses, instead of listening and viewing objectively why it has not been achieved. I fully agree with you, where those reasons are not legitimate then, yes, there must be consequence management – I agree with you.

Adv Mpofu: Alright. Thank you. Then we have made progress.

Ms Thejane: However, where those are justifiable, then consequence management is not the approach.

Adv Mpofu: No, that is fine. Good. And we are not here debating matters of style. You accept that different managers or different leaders will have different styles, correct?

Ms Thejane: I accept. That is critical to the success of an institution.

Adv Mpofu: Okay. And PP’s style is to be rigid on deadlines. And I think that one we all know that, but that's how she has achieved what she has achieved, correct?

Ms Thejane: Rigid, but at what cost? Like you say…

Adv Mpofu: Now you are going back to my theory. I said there will always be a cost, ma’am. Remember, that is where we started? You said you do not understand what I meant by cost or price. I am saying that's the point I'm making. So at that cost, I'm saying she, with all the costs included, has achieved what she has achieved by being rigid and sticking to the deadlines. You accept that?

Ms Thejane: Yes. Rigid in this context, if you may allow me, I am applying it to the service delivery that you were talking about. It starts here because this we can control and say we are doing it correctly – close to perfect, if not perfect, to change that service delivery you were talking about.

Adv Mpofu: Well… But, you can only work with what you have. If you have so many employees and so much money, those are the constraints. That is what I tried to explain to you but let us leave that. Okay. When it comes to the deadlines, you accept that… you have already accepted to Adv Tshabalala that the deadlines were not necessarily the PP’s deadlines. Some of them were deadlines that you had taken ownership for yourself, correct?

Ms Thejane: Yes, correct.

Adv Mpofu: Sorry, ma’am. And you also accepted that some of those deadlines were even imposed by Parliament, correct?

Ms Thejane: Correct.

Adv Mpofu: Yes. So those deadlines cannot be attributed to the Public Protector. And you said that the 30-day deadline imposed by Parliament on EMEA matters is unrealistic, right?

Ms Thejane: Yes, that is my view based on the time it has taken to conclude investigations.

Adv Mpofu: Yes, you explained that to Adv Tshabalala. What would you say is realistic? What should Parliament consider with EMEA? Two months, three months?

Ms Thejane: I do not know if it is for this sitting but on average we have found that the average for conducting EMEA matters ranges between seven months or more. So seven months… EMEA, with a team conducting the investigation, because we are still using the very same resource.

Adv Mpofu: And that matter has been communicated many times to Parliament, correct – the issue of the 30-days given by Adv Madonsela, I think?

Ms Thejane: Correct.

Adv Mpofu: And for the past 10 years or so Parliament has not shifted that deadline, correct?

Ms Thejane: Well, it has not changed, yes.

Adv Mpofu: So they have been rigid with that deadline themselves, correct?

Ms Thejane: Well, I would say rigid in the sense that the Act has not changed. But there has been flexibility when the first letter is sent, notifying the Speaker that we are not able to finalise that investigation within 30 days, or even the President where it has to be escalated to the President. We have been given that indulgence to continue with the investigation and complete it and provide that report. It is the same thing that we have also been asking in this instance – that as we would explain to Parliament that we are not able to meet this deadline, because of 123, the same we would request of the Public Protector that there is a rigid timeframe.

Adv Mpofu: Yeah, thank you. The evidence of the Public Protector will be that is exactly what she has done as well. There's one example which you may or may not know about it, of the Vrede report, which was promised to her, I think in November 2017 but it was eventually produced in 2018. Exactly because of what you are saying. Even though there was deadline but it could not be met for valid reasons. That happened. That is what the Public Protector will say. Are you saying that never happened? She would be lying?

Ms Thejane: No, I would not say that. I do not know what happened on the Vrede.

Adv Mpofu: Okay. Alright. And you agree that to get these outcomes you have to crack the whip now and again, correct?

Ms Thejane: Of course. Yes, I agree.

Adv Mpofu: And you have actually said I think at page 4368, Chairperson.

Chairperson: What page?

Adv Mpofu: 4368.

Chairperson: Okay.

Adv Mpofu: You said: “I do not take issue with management cracking the whip where performance has been substandard. In some cases, it appears shocking how little has been done to investigate certain complaints that have been received or the length of time it has taken to get certain complaints” do you still agree with that?

Ms Thejane: Yes, I do.

Adv Mpofu: Okay. And then at paragraph, I think, 47. Which is 4360. You say that you share the “concern of the executive authority” that is the Public Protector and EMs that the eradication of the backlog and preventing the accumulation of further backlogs must remain a priority for an office such as the PPSA.” Agree with that?

Ms Thejane: Yes, I do.

Adv Mpofu: And you say “In order to deal with the backlogs and move investigations along from time to time, various mechanisms have been embarked upon since my time at PPSA in 2019.” And those various mechanisms are the ones that you and I have discussed of deadlines, pressure, working long hours, correct?

Ms Thejane: No, mechanisms to…

Adv Mpofu: Cut the backlog. It is what we have already discussed some of what we call the cost or the price of getting that done, correct?

Ms Thejane: No, what I mean here… I am talking about measures that have been put in place to try and deal with the backlog. That is what I mean here.

Adv Mpofu: Alright. And then one of the things – one of the good things that the PP did was to get COO to drive some of these issues, correct?

Ms Thejane: That is correct.

Adv Mpofu: And you have been happy, for example, with the fact that the COO managed to contribute to the slashing of the backlog as well, correct?

Ms Thejane: Correct.

Adv Mpofu: But that intervention itself was done by the PP in a way because she is the one who identified that gap and delegated those tasks, correct?

Ms Thejane: Correct.

Adv Mpofu: Okay. So you still have not had a chance to read the motion of Ms Mazzone that you came here to support, correct?

Ms Thejane: Correct.

Adv Mpofu: Alright. And, sorry, just to round it off. You have testified as well that one of the innovations that was created was this thing called ‘full bench’, correct?

Ms Thejane: Correct.

Adv Mpofu: But even that full bench… and then there is another called leadership? Even that full bench could not function optimally because people were not performing or meeting the deadlines or they were submitting late, correct?

Ms Thejane: Yes, it is correct that since there would be a deadline for submission, there would be a time set for full bench. Some of those matters would not be ready to serve at full bench for reasons that have already articulated – that they would go back. So yes, members of full bench would not have read in advance as the intention is to have full participation at full bench to do some form of quality assurance so that was the challenge.

Adv Mpofu: The problem, yes. So again even with full bench, in order to get it to work for its intended purposes there would have been a need to crack the whip Correct?

Ms Thejane: Again it comes down to this issue of tight deadlines versus what needs to be done because if the calendar for full bench is already set, and it cannot be shifted for all those matters that are supposed to be presented at full bench, then there will be pressure to finalise and submit at full bench. But quality will still be compromised. The cracking of the whip, yes, the whip can be cracked but it is the reason that matter cannot serve the full bench, that I want to emphasise. They should not be undermined.

Adv Mpofu: Yes. No, on that we agree, Ms Thejane. Obviously, there's a limit beyond which one cannot go even in pushing performance, correct? There are human factors.

Ms Thejane: Yes, that is correct.

Adv Mpofu: Yeah. I mean, for example, you were here on 13 September where the Chairperson insisted we continue with the hearing when the Public Protector was sick. You would say you would not do that. You would not crack the whip beyond the level of humanness, correct?

Ms Thejane: Well, it may be unreasonable for me to be expected to respond in that context.

Adv Mpofu: No, I am just making an example. Okay, forget about the Chairperson. If you had a deadline and you wanted to achieve something, and the person said, 'look here is a medical certificate, I cannot do it.' These are the kinds of things you are talking about of… that if you…

Ms Thejane: Sorry, sorry. I lost sound for a few seconds. Can you hear me?

Chairperson: Yes, you will have to repeat Adv Mpofu. You know that is what happens to the system when you mention the Chairperson, you freeze – when you include him in the examples. He is frozen now. That is just a lesson. We will wait for him until he is back. You can take some water in the meantime, Ms Thejane. It is called water audi.

Ms Thejane: Thank you, Chairperson.

Adv Mpofu: Okay, Ms Thejane. It is not true what I said, I am going to talk about the… When we got frozen I was saying to you, just as an example, the kinds of things that you are saying. You agree there must be cracking of the whip, that there must be performance and there must be pressure put, but you are saying that it must not go beyond certain levels of humanity… or humanness, correct?

Ms Thejane: Yes, I said there must be fairness.

Adv Mpofu: There must be a limit, yes. That is the central thesis of what you are saying, not that you are against cracking of the whip per se, correct?

Ms Thejane: Yes, correct.

Adv Mpofu: And then, that was why I was using that example that you, yourself now, you would not, for example, insist… If you said to somebody look, you are going to be here, you are going to give evidence on 13 September or whatever date. And you would not insist on that happening – or to give you a report and so on? Or these people you were phoning at odd hours, if they said look, I am in hospital, I am lying in hospital, you would not harass them any further than that, right?

Ms Thejane: Indeed, that is why I did not do that.

Adv Mpofu: That is the kind of disgraceful conduct you would not do. You also would not…

Ms Thejane: Adv Mpofu? Adv Mpofu? I hope it is not still in the context of before we parted, especially when we use disgraceful.

Adv Mpofu: Yeah, it is within the context of meeting deadlines. Yes, the performance.

Ms Thejane: Yes, the word disgraceful is not what I would use. But what I wanted to say is that those…

Adv Mpofu: Alright. Fine. So let us say it was you now. Let us say it was you sitting on your deathbed. And if I phoned you, and I said, ‘No, I want my thing… I want my report’ you would not think that would be disgraceful? You think that would be admirable?

Ms Thejane: Maybe disgraceful is a strong word. However…

Adv Mpofu: Okay, maybe let us leave disgraceful. You would think that would be a horrible thing to do to phone you on your deathbed at ICU and say that you must give me a report. Would you not?

Ms Thejane: Yes, I would think… Sorry, may I respond?

Adv Mpofu: Pardon?

Ms Thejane: Yes, I wanted to respond.

Adv Mpofu: Yes, you may, ma’am.

Ms Thejane: Yes, I think there may be a time delay. What I wanted to say… Yes, I would think it is unreasonable and that is why one would go back to the… You cannot hear me?

Adv Mpofu: I can, but you are faint.

Chairperson: We can hear you.

Ms Thejane: Is it clear, Chairperson, on your side because Adv Mpofu says I am faint?

Chairperson: I can hear you. Proceed.

Adv Mpofu: Maybe it is on our side because the Chair says he can hear you.

Ms Thejane: Yes. I was saying, Adv Mpofu, I would consider it unreasonable and that is why one would go back to the PP and explain. There are people who would not even answer at those times and one wanted to limit interfering with their own private time but it is what then happens as we give feedback on what could not be achieved and the reasons including the people who are ill. But if it is then followed with an audi, or it is not accepted as a reasonable explanation because deadlines were set, that is where the challenge is.

Adv Mpofu: Yeah, you have said all that. I am not talking about audi. I am talking about demanding performance from somebody in the ICU, not audi. But it is fine. If you do not understand, you do not.

Ms Thejane: No, I do understand. That is why…

Adv Mpofu: I do not know how we got to audi. I am just saying, that you agree or disagree that to demand from somebody who is sick any form of performance, is a horrible thing do. Either you agree or you do not agree?

Ms Thejane: I agree, even for our purposes.

Adv Mpofu: Thank you.

Ms Thejane: Yes.

Adv Mpofu: And also, that is the point I am making. There must be a limit. So for performance, which we all want, there are certain things you cannot do, for example, you cannot hold somebody hostage for two days, just because you want performance. You would not do that, correct?

Ms Thejane: I am glad that you agree with our position that was also unreasonable from the Public Protector’s side as well, to explain the performance. Thank you.

Adv Mpofu: Thank you. Absolutely. Thank you, ma’am. If you ever have another opportunity to give evidence under oath, please make sure that you do not do it on somebody else's statement, that you actually do your own statement, because it is unprofessional conduct. You would know that as a lawyer, because when you swear, we assume that you have read the things yourself. Not that they have been put by somebody else, because otherwise that somebody else is not here to be cross-examined, so it becomes unfair. But, I am sure it is a lesson learned, is it not?

Ms Thejane: I have disagreed with you, so let us keep it there, where we have disagreed.

Adv Mpofu: Yeah. So you think it is a good thing. You disagree that it is a bad thing to sign a statement with things you have not read? Is that what you disagree with?

Ms Thejane: No, I have explained myself, Adv Mpofu, on those issues and I have no intention of re-opening what we have dealt with.

Adv Mpofu: Okay, fine. Well, it is up to you. If you do not want to learn any lessons, ma’am. There is nothing I can do. But I thought at least because you said you had legal training that it might help you in the future, if you ever consider practising law. But that is fine. Thank you. Thank you, Chairperson.

Chairperson: Thank you.

Adv Mpofu: As I said, I was just clarifying for yourselves.

Chairperson: Thank you, Adv Mpofu. Thank you very much. I will just take a few minutes before I come back to you now. Before I address the witness, I am just going to check in terms of Directives 6.16 and 6.17. Adv Mayosi, if there is anything you want…

Adv Mayosi: I do have some issues to cover, Chair. Can I proceed?

Chairperson: Yes.

Clarification by Evidence Leader
Adv Mayosi: Ms Thejane, good afternoon.

Ms Thejane: Good afternoon, Adv Mayosi. I hope you can hear me.

Adv Mayosi: Yes, I can hear you clearly. Thank you. I just want to clarify some things that arose during the course of your cross-examination. I want to start with the assertion that you allegedly altered paragraph 10 of Charge Four. Do you remember Adv Tshabalala taking you through that?

Ms Thejane: Yes, I do.

Adv Mayosi: I just want to have a look at it. Can you put up the motion please – paragraph 10? Yes, so do you see that Ms Thejane?

Ms Thejane: Yes, I do.

Adv Mayosi: That is paragraph 10 of the motion where it is said that “Adv Mkhwebane is guilty of this conduct in that she intimidated, harassed and victimised staff, alternatively has failed to protect them from intimidation, harassment and victimisation by the erstwhile CEO of the Office of the Public Protector, Mr Vussy Mahlangu, in particular, staff members who are listed below.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: Can you put up paragraph three of Ms Thejane’s affidavit? It says “In Charge Four of the motion, with which this Committee is concerned, it is alleged that Adv Mkhwebane is guilty of misconduct and amongst other things she intimidated, harassed and victimised staff. Alternatively, she failed to protect staff in the Office of the PPSA from victimisation, harassment by the erstwhile CEO.” Do you see that Ms Thejane?

Ms Thejane: Yes, I do.

Adv Mayosi: So your paragraph three is the same in material respects then, to what is said in 10, except that it does not name the specific people who were alleged to have been threatened and so on, correct?

Ms Thejane: Correct.

Adv Mpofu: No, Chairperson. Chairperson? Oh, sorry. I am sorry, Chair. I should have raised my hand.

Chairperson: Okay. Just a pause, Adv Mayosi. I recognise you.

Adv Mpofu: Oh, thank you. Apologies, Chair. No, I think Adv Mayosi is now again misleading the Committee. That is not true what she has just said. She says it only leaves out the names. It says “the following staff members”, she stopped at staff members, “who have been threatened with or had disciplinary action taken against them unlawfully”, those are serious things, “and on trumped up charges.” So why is she misleading the Committee again?

Chairperson: Okay. Thank you, Adv Mpofu.

Adv Mayosi: Chair?

Chairperson: Adv Mayosi?

Adv Mayosi: Thank you. I am not sure what Adv Mpofu’s reference is to misleading the Committee again, is about. But I did put to the witness that the paragraph three is the same in material respects. That is what I said. Put it up again?

Chairperson: There was an issue about the names? Go ahead.

Adv Mpofu: Chairperson, are you allowing that?

Adv Mayosi: My question was not that paragraph three was identical.

Chairperson: Conclude that.

Adv Mpofu: It is fine. Okay, Chair. Thank you.

Adv Mayosi: If we can continue then?

Chairperson: Yeah.

Adv Mayosi: Ms Thejane, you continue in paragraph four “It is further alleged in Charge Four of the motion that the PP has committed misconduct and or demonstrated incompetence in the performance of her duties by doing or failing to do the various things alleged and set out in paragraphs 1.1 to 1.4” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: So paragraph 11, at the preamble, says that “Adv Mkhwebane has committed misconduct by and or demonstrating incompetence in the performance of her duties by failing intentionally or in a grossly negligent manner to manage the internal capacity and resources of management staff, investigators and outreach officers in the Office of the Public Protector effectively and efficiently. Failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful expenditure, and/or unauthorised public expenditure and legal costs. Failing intentionally or in a grossly negligent manner to conduct her investigation and/or to make her decisions in a manner that ensures the independent and impartial conduct of investigation.” And at 11.4, “by deliberately seeking to avoid making findings against or directing remedial action in respect of certain public officials, whilst deliberately seeking to reach conclusions of unlawful conduct and impose far-reaching disciplinary measures and remedial action in respect of other officials (even where such conclusions and or measures and or remedial action, manifestly had no basis in law or in fact).” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: If you go back to Ms Thejane’s affidavit. The real purpose of your affidavit and how you say you can assist this Committee appears in paragraph five. Is that right?

Ms Thejane: That is correct.

Adv Mayosi: Where you say that in your capacity, in your current position in the organisation, you have witnessed instances where staff at the PPSA have felt intimidated and victimised as a result of the conduct of the PP. So you talk about what you say, is your experience and what you have witnessed as the conduct of the PP. Is that right?

Ms Thejane: That is correct.

Adv Mayosi: Not Mr Mahlangu but the PP, correct?

Ms Thejane: That is correct.

Adv Mayosi: And then, of course, in paragraph six, you state that you then deposed to this affidavit at our request as the evidence leaders to assist this committee with information, which this committee may consider to be relevant in discharging its functions, right?

Ms Thejane: That is correct.

Adv Mayosi: So your evidence relates in the main to what you say was the manner in which staff including you, were treated in the office of the PPSA rather than about specific individuals that are named in Charge Four itself? Is that right?

Ms Thejane: Indeed. That is correct.

Adv Mayosi: And would you agree that in order to appreciate the full context of why you made this affidavit, paragraphs three to five must all be read together? That it is perhaps incorrect to isolate a single paragraph in that section of your affidavit? Would you agree with that?

Ms Thejane: Certainly correct. That was the intention.

Adv Mayosi: I would like to move onto the issue of the audis that were issued to you.

Chairperson: Just before you move. Just pause, Adv Mayosi. I recognise the hand of Adv Mpofu.

Adv Mpofu: Yeah, Chairperson. I will not make an objection because that would be a waste of my time. I just want to put on the record that Ms Mayosi is now testifying or giving legal argument. All the witness has to say is ‘Yes, yes, yes’. But that is fine, let it continue.

Chairperson: Thank you, Adv Mpofu. Adv Mayosi?

Adv Mayosi: On the issue of the audis that were issued to you, Ms Thejane, it was said that you were issued with three audis, because of your failure to meet deadlines. But you clarified that during Mr Mpofu’s cross-examination of you, when you said that you were in fact issued with two audis, is that right?

Ms Thejane: That is correct, Chair.

Adv Mayosi: Adv Tshabalala then referred you to paragraphs 51 to 52, as the first audi. Can you put it up. Page 4361. And it was said that this is the audi… I think the assertion that Mr Tshabalala was putting to you was that you received audi because of your failure to meet deadlines. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: And this is the audi first issued by Mr… It was not the first audi but it was issued by Ms Thandi Sibanyoni, when there was a failure by the EMs to meet the deadlines set for 30 September 2021. Is that correct?

Ms Thejane: That is correct.

Adv Mayosi: I just want to clarify because Mr Tshabalala did not take you there, that your evidence was that there was a report that was done by the CEO in response to this, right? I am not going to take you to that, because you have already led evidence to that in chief, is that correct?

Ms Thejane: Yes, indeed, there was a report by the CEO.

Adv Mayosi: And that is the one you referred to in paragraph 55?

Ms Thejane: That is correct. If I may see paragraph 55 on the screen? But I do note the reasons.

Adv Mayosi: Where she set out the reasons for the non-achievement.

Ms Thejane: That is correct.

Adv Mayosi: Right. The second audi you were referred to is the one in paragraph 77. It appears to have been the first audi that was actually issued in terms of chronology. And that's the one that was issued by Ms Basani Baloyi as a result of the failure to meet deadlines first on 31 March, a month after you arrived and then on 31 July, is that right?

Ms Thejane: That's correct.

Adv Mayosi: And Mr Tshabalala took you to your response to that audi, in the form of paragraphs 78.1 to 78.4. And just to close the loop in terms of that evidence, because he did not take you there, your response is also included in paragraph 79, correct? Your response to that first audi.

Ms Thejane: Yes, it is included.

Adv Mayosi: Where you say ‘Proposed solutions’.

Ms Thejane: That is correct.

Adv Mayosi: And the solutions that are stated in 79.1 to 79.3, correct?

Ms Thejane: That is correct.

Adv Mayosi: Were these proposals heeded?

Ms Thejane: No, in terms of changing the times to something that is a realistic timeframe, that is realistic, that did not change. As you have noted there was a further audi. No, there was nothing in between to say that it was not in the form of an audi. But those threats continued. Meetings did not change also. There was training that was provided but I did indicate when I was responding to Adv Tshabalala, that even during the training that was provided to investigators, some of them would be called back from the very same training to attend to matters to the extent that they had to withdraw from the training. So the training also had those challenges.

Adv Mayosi: Thank you. Mr Tshabalala also took you to paragraph 83, which is the one that talks about Mr Mohalaba and you already clarified with Adv Mpofu that Mr Mohalaba did not in fact issue you with an audi, right?

Ms Thejane: Yes, he did not.

Adv Mayosi: And he did not discipline you?

Ms Thejane: No, he did not.

Adv Mayosi: You said that he was nevertheless instructed by the PP to discipline you, right?

Ms Thejane: That is correct. That is what he said to me based on this incident.

Adv Mayosi: Are you able to explain why he did not obey the instruction?

Ms Thejane: Well, one thing that he said is that because I had changed from one unit to the other, and the view of the PP at the time was that the person that I took over from should have told me what the deadline was, but I did say to PP that deadline I could not have met it. He then said he appreciated the circumstances and he would not take any action. I actually said ‘No, look go ahead’ because I knew he was going to get into trouble, ‘Go ahead, I will then answer at that point’. But he said, Look, I understand exactly what happened. That you cannot meet a deadline that was for somebody else which by that time, it was actually passed and I could not meet it. It had passed.

Adv Mayosi: You also testified that you were assisted by the Evidence Leaders in terms of drafting your affidavits. Do you recall that?

Ms Thejane: Yes, I do.

Adv Mayosi: So consultations you will recall took place between you and the Evidence Leaders and these were both virtual and physical, right?

Ms Thejane: That is correct.

Adv Mayosi: Do you recall your first consultation with Adv Bawa in July at the PPSA? Where she showed you the motion and also talked to you about what was contained in Charge Four of the motion? Do you recall that?

Ms Thejane: Yes, I recall that.

Adv Mayosi: In consultation with you and the Evidence Leaders, the Evidence Leaders asked you if you have personal information of intimidation, harassment and victimisation either by the PP or Mr Mahlangu, correct?

Ms Thejane: Correct.

Adv Mayosi: During those consultations you presented to us that information that was within your knowledge or experience relating to the victimisation and intimidation, is that right?

Ms Thejane: That is correct.

Adv Mayosi: Can you confirm that various drafts of your affidavit were then exchanged with you?

Ms Thejane: That is correct.

Adv Mayosi: And you made comments and you made changes until the final draft of your affidavit, correct?

Ms Thejane: Yes, I did.

Adv Mayosi: You also said during your cross-examination by Adv Mpofu that you followed Ms Mogaladi’s evidence and that is how you know what she what she said. Do you remember that?

Ms Thejane: Yes, I do remember.

Adv Mayosi: But do you recall that I also emailed you Ms Mogaladi’s for your consideration before you finalised your affidavit on 5 September 2022. Do you recall that?

Ms Thejane: No, I did not recall it for this sitting, but I do recall that we went through what was there. That is why I say I have responded to those areas that are relevant to me, and I have also said I followed the proceedings. So when he talks to those issues I actually can… I have deposed in my affidavit to those issues.

Adv Mayosi: Okay. You now say you did not read it but I do want to clarify whether you have personal experience of the matters in Ms Mogaladi’s affidavit – that you said you did not read. I am going to go through that and establish and clarify whether you nevertheless do have personal experience of these matters, even though now you say you did not read that affidavit. So is it still your evidence based on your own personal experience, that dashboard meetings were intense and that they became more time consuming? Is that still your evidence and is it based on your personal experience? That is really the question.

Ms Thejane: Yes, it is.

Adv Mayosi: What is said in that you confirmed… what you tried to confirm in Ms Mogaladi’s affidavit to the effect that instead of reporting on the status of each case, the meetings became operational and were subsequently required to prepare memoranda on each matter and present a dashboard meeting. Is that based on your personal experience?

Ms Thejane: Yes, that is where I related my own first-hand experience on those issues, including dashboard.

Chairperson: Just a pause. Just a pause, Adv Mayosi. Adv Mpofu, I see your hand?

Adv Mpofu: No, thank you, Chair. Sorry, I was muted. I just want to put on the record that all this evidence is coming once again from Adv Mayosi. If she said she has not read the thing, she has not read it. It cannot be changed.

Adv Mayosi: Yes. Chair, you would have noted that I am not disputing…

Adv Mpofu: Yeah. Sorry, I just got muted. I am sorry, ma’am, I got muted or I muted myself. So I just wanted to say that, Chair, and to say that ordinarily should not allow this – what is happening now – because it is not worth anything. It is just worthless. Thank you.

Chairperson: Thank you Adv Mpofu. Adv Mayosi?

Adv Mayosi: Chair, the purpose of this witness is to place information before this Committee, and it is for this Committee to make of the information what they will. What I am doing here is that you will have noticed that I do not dispute the witness's evidence that she now says she did not read the affidavit. But I do think it nevertheless needs to be clarified whether she has personal experience of these things. That is what I'm seeking to do. If she does not, she will say no.

Chairperson: Okay.

Adv Mayosi: Do you have personal experience of memoranda that had to go through quality checks, quality assurance approval processes and how this contributed to the intensity of dashboard meetings? Do you have personal experience of that or not?

Ms Thejane: Yes, I do. And what I have stated in the affidavit is what is my personal experience.

Adv Mayosi: Do you personal experience of the PP at dashboard meetings being interested only in what product and by when?

Ms Thejane: Certainly. That was the decision that was always taken.

Adv Mayosi: So coming back then to how your affidavit eventually came about? It is so that you were eventually satisfied with the contents of that affidavit and that it contained matters that were within your knowledge and personal experience, correct?

Ms Thejane: That is correct.

Adv Mayosi: Lastly, Ms Thejane, you first gave evidence here on 10 September 2022. Do you recall that? On a Saturday, do you remember?

Ms Thejane: Yes.

Adv Mayosi: Do you recall that on 8 September 2022, almost nine weeks ago, I provided you with a copy of the motion in one email, do you recall that?

Ms Thejane: I do not really recall. I got the directives but not the motion.

Adv Mayosi: Yes. So thereafter in another email, you do recall that I provided you with a copy of the directives on the same day, right?

Ms Thejane: Yes.

Adv Mayosi: I have no further questions, Chair.

Chairperson: Okay, Adv Mayosi. Ms Thejane, if I may get your attention, please? We are reaching the end of your journey with us from as long as 10 September. I do want on behalf of the Committee to express our appreciation and thank you for availing yourself on 10 September, on the 13th and the other occasions when we could not attend to your cross-examination. I sincerely apologise on behalf of the Committee that we have dragged you along for such a long time. It has been such a long time that it is even possible that certain moments will be forgotten, and so on. We want to thank you for that. But maybe before I officially excuse you just want to share if there is anything you want to say to the Committee?

Ms Thejane: Thank you very much, Chairperson. Thank you also for the opportunity of listening to me amongst other colleagues. I hope that I have assisted the Committee in at least the Charge I was requested to assist with. I must also say to the Committee, it has been a very, very difficult process, not for me, but for the Office as well, to sit on this side and actually be seen as an adversary to the PP. It is not coming out of a position of hate. And I am not really pleading my position with her. I am just saying it is a very tough period for the whole institution. And for me for such a process to be exposed not only nationally, but even internationally, on what we are going through as an Office. I do hope that we all learn from this process; that we learn also as executives to be more vocal. One learned person called it ‘courage deficit’ that has placed us where we are today. But without taking any further time of the Committee, I do want to appreciate this moment. And I do hope that we are going to see certain changes in terms of the management and leadership of this institution, which has really not been good to us. Thank you very much Chairperson and also to the Hon Members.

Chairperson: Thank you, Ms Thejane, for your contribution. We do hope that it will assist us either way in our work as we deliberate and formulate whatever report we have to. Thank you. You are now officially excused. I do not hear you. You are excused but you are just muted.

Ms Thejane: Sorry, sorry. I muted myself.

Chairperson: Unless you want to come back?

Ms Thejane: Thank you very much, Chairperson and Hon Members.

Chairperson: Thank you, Ms Thejane, we appreciate. You are excused. You can remove yourself from the platform officially. That being said and done, I now go back to Adv Mpofu and allow him the time to place matters on record, as requested. Thank you.

Matters for record: Public Protector Legal Team
Adv Mpofu: Thank you very much, Chair. Chair, yes, I have already outlined the issues I wanted to deal with, so I will not do that again. I will start with the events of 27 October 2022. That fateful day of the birthday of Oliver Reginald Tambo, which you pointed out, Chair, who was incidentally a lawyer. There has been a lot of misrepresentation and some of it we have dealt with in the letter we wrote to you, Chair, which we asked you to kindly table in front of the Committee. So I will not rehash that ground. But I just wanted to clarify a few things, because certain things have been said in our absence and I suspect deliberately because we were not there to answer for ourselves, which need to be put into perspective. The first one, Chair, is the fact that we… Well, the terminology changed with time, on Thursday, we're accused of withdrawal. And then the following day, out of what was said, by I think, Hon Maneli or Hon Nkosi, sometimes I am not able to differentiate between their viewpoints. Then the terminology changed to that word ‘staged a walk-out’. Well, both of those are false and not in accordance with what happened. Members, at least the Chair, for starters, I do not know if the Members had access to all our correspondence, but we informed the Chairperson as long ago as 18 October. And please, I hope we will correct the record because we have all been referring to that date as 21 October. That was a different letter. It was actually even three days before that. The 18 October we wrote a letter to you, Chairperson, in which we said, among other things, at paragraph five, that “even then”, meaning when we attend the Committee, “It is our intention to attend for the purpose of making an application for the adjournment of the Inquiry, pending the envisaged court challenge.” And we say “Depending on the outcome of that application, notice of which is hereby duly given, we will be available to make realistic and practical arrangements for the way forward at that stage.” That is what we informed the Chairperson. And as I say, I am sure at least the Chairperson read it, I am not sure about the others. Then, Chairperson, on the 24th, that is four days after that, again, on the assumption that these things get read out, or the reason why you wanted us to give it on the 24th because it was by your directive, was presumably that someone was going to read it before we come on the 27th. This is paragraph nine of the document we gave you on the 24th, “It is important to state it clearly and upfront that in bringing this application for the Committee as presently composed”, in other words with you and Mr Mileham, “The Public Protector does not thereby abandon or in any way waive her right to forcefully argue that the Committee is not entitled to sit at all, once it has been made aware of her intention to challenge its composition and jurisdiction in the envisaged judicial review proceedings. On the contrary, the Public Protector will participate in the sitting scheduled for 27 October 2022, purely for the purpose of moving this application, and in an endeavour to give the Committee an opportunity to do the right thing by suspending the proceedings and to comply with the duty to exert internal remedies.” We wrote that to you on the 24th, three days before the day. “Purely for the purposes of moving the application.” Right? And then at paragraph 11 we said “her participation is therefore not acquiescence, in the legal capacity of the Committee to proceed with any other business which capacity is hereby specifically disputed.” Now again, anybody who had read the letter of the 18th and this before we even set foot in your chamber, would have understood or at least, would have asked us what we meant by it. As if that was not enough, on the 27th, I personally read out these things and explained them again in the morning – that we are there purely for the purposes of moving the application and gave the necessary qualifiers. But clearly all that also was either not heard or seen or read. And then again, in the evening of that day, I explained myself before the end of the proceedings. So the confusion that was then declared on the following week really should not have happened. Then, Chairperson, after the explanation we gave on the 27th, we went or rather the Public Protector herself then came and gave the same explanation, I think on the 28th. That is when the new theory of the so-called walk-out started. After that it spread like a wildfire, because then it was embraced by the Chairperson, by the Parliamentary Advisors by the Evidence Leaders and by everyone. The new buzzword now on the 28th was the walk-out. Well, we have explained that as well, that we did not stage any walk-out, and I can assure you, Chairperson, the day I want to stage a walk-out you will not be confused. I will tell you that I am staging a walk-out. I am not scared of saying that, if it ever happens – or of anybody. So if I ever stage a walk-out, it would be no secret. Any form of protest I have ever done in my life, including hunger strikes, it was what it was, not something that looks like it. Okay, so what we did on the 27th, I mean if you want to be literal about it, is did we walk? Yes we walked. Did we go out? Yes, we went out. But did we stage a walk-out? No. Otherwise, every time you walk out of that chamber, Chairperson, you are staging a walk-out. The two things are too different… are totally different. So if you take it literally, just using your feet and getting out of the room means a walk-out, then you are right but that is not what happened. We left and we were out, just as you do every time there is a tea break there. But we were not staging a walk-out. As I say, the day that happens, you will know. In case you do not understand how we work as lawyers. We, which is what we explained, are creatures of instructions. So we work according to a mandate. So unless you want to leave the brief, you do as you are told, okay? And that is the nature of our profession. So whatever we do, particularly when it has been explained ad nauseam, about where our instructions ended for the day and where they started. Then it should either be understood in that context. So none of the epitaphs that were used there are true, except if I say, if you want to be literal or look at it from the point of view of physical movements. So there was no withdrawal and there was no walk-out. Now what then followed there, Chairperson, is the second issue that I want to deal with, which is the denial of legal representation of the Public Protector. Before we were able to get any new instructions, the Public Protector came as a courtesy at your invitation, Chairperson, to explain some of the things I have explained now. Yes, it was at your invitation, do not shake your head, Chairperson. It was at least reported to us that at the end of the session on the 27th, you had indicated that the Public Protector should write something to Thembinkosi. A few hours later, she wrote to Thembinkosi and one of the things she asked was whether you expected her to come the following day. Thembinkosi wrote back to say, yes, you did. So I do not know what the problem is? That is exactly what happened. There is documentary proof of it. Then the Public Protector came to explain some of the things I have explained, Chairperson, including the fact that our purpose of being there on the day was specifically for the application, which we had explained to you. Now it meant that when you asked her to come back on the 1st, which was not a scheduled date for sitting, again she explained to you, and I don't want to read the document to save time, she explained to you for the second time what had happened – and Mr Seanego was also in attendance. Now on 1 and 2 November, Chairperson, what happened in that Committee is one of the most serious violations of the rights of the Public Protector. Against her will, she was kept there without her legal representatives of her choice and against the injunction of the Constitutional Court that she must be afforded legal representation by practitioners of her choice. And what is even worse – apart from the fact that her legal representatives were not there, which was explained to you, Chairperson and which you tacitly accepted the explanation, because that is why we are here today. And you have allowed us to do the cross-examination today, which should have been done on that day, which means that you accepted the explanation that was given to you. But be that as it may, you insisted on conducting the proceedings, in the absence of the Public Protector’s representatives of her choice and despite her protestations. And you went further, by not even allowing her to leave, even if she was going to leave and watch it on YouTube, or join on the Zoom, she was… no, she had to sit there as a hostage, as she said – your hostage. Now that, Chairperson, was not just a violation of the Public Protector’s rights to legal representation. And I must, for my sake now, explain to you that, indeed, due to unforeseen circumstances, we were not able last week, because of the deadlines that were explained, to be there. But as I say, you seem to have accepted that somehow. Although in the same breath, you also wanted the proceedings to continue. Now Chair, this is a… we are registering this complaint for the record, for that purpose, to say that the irregularity that occurred on 1 and 2 November is something that must be registered. It will probably be dealt with at some other stage in other forums, but we must never be understood to not to have placed it on the record, as soon as it has happened. You went even further, Chairperson, and you were thankfully stopped by, I think it was Hon Malema and other Members, of interrogating even the attorney and opening an inquisition of the attorney, which is not allowed, because the client, who is the Public Protector, had expressly addressed you and in that way, exercised her privilege. There is something called attorney and client privilege or the professional legal privilege, where you cannot go beyond and want to interrogate discussions that may or may not have taken place between the attorney and the client. It is a rule that the Chair might not have been aware of, but it is one that is recognised in South Africa, alongside the right to legal representation and the right to access the courts, as enshrined in Section 34 of our Constitution. What happened in those two days, Chairperson, is proof of why legal representation is important, because some of the abuses that followed just in a short space of two days, showed the reason why the Constitutional Court, in its wisdom, saw that this process cannot be trusted to continue without legal representation. I will come back to the issue of the privilege but the Constitutional Court, Chairperson, we know that you do not want us to be here, or you do not want the lawyers to be here – you have never wanted the lawyers to be here. I am not talking about you, personally, I am saying you and the other 399 Members, or the majority of them. You went to court, to the highest court of the land, to prevent legal representation in this process. I have said this before, that even the DA abandoned the refusal of legal representation, when it came to the Constitutional Court. It was only Parliament that insisted on that. And the Constitutional Court… Thank God, you lost that case and that is why were are here. The point I am making, Chairperson, is that we… the feeling is mutual – we also do not want to be here, just as much you do not want us to be here. But we all have to perform our duties. We do not particularly want to be here with you as well. But here we are, the court has spoken. So we need to find a way of making it work, even if we do not want to be in each other's company: for the sake of justice and our Constitution. So we understand that. We understand that we are in an environment of people who do not want us to be there. Now Chair, I just want to demonstrate if, for us not being there for two days, the things that happened, imagine what would have happened for this process if the Public Protector was not represented at all because some of the things that happened represented the law of the jungle; including what I have spoken about the hostage situation and other kangaroo-type activity. If there was no legal representation, we would have experienced even more than what we experienced, like the interrogation of legal representatives in contravention of the Constitution. Not to mention the abuse of black advocates, by information that was put up and an attorney's information that was put up out of malice and spite, which was irrelevant to the matter. Had legal representation been there, it would not have been allowed or at least would have been objected to. But all that happened under your watch, Chairperson. No problem. It was all allowed to take place and abuse not only of us but of other black practitioners who, unlike us, at least, we have a chance to address you now, but the other people whose earnings were put there incorrectly with the wrong figures did not have any recourse, neither did they have any prior warning. Just the rules of common decency, let alone professional ethics would have demanded that if such an abuse was going to be done on legal practitioners, then at least they should have been told. But that did not happen. I am saying things like that which have now caused national consternation and concern and ruins people's careers, and maybe even lives because some of the people whose names were bandied about there might face criminals, because they are supposed to be having that money probably in their mattress or in their couches, if they follow the example of the leadership. So they… those kinds of abuses were done in your process, literally, because for that day or two, you allowed a situation where there was no legal representation. Those things should not have happened. In fact, the entire sitting should not have happened. But I am just demonstrating to you the importance of – you might hate it yourself – the importance of having legal representatives or rather the dangers of continuing as you did without such representation. Now Chair, I said I wanted to… I just want to read this to you that the behaviour was actually reminiscent of the worst forms of oppression. To intrude into the space between the lawyers and their client, is something that was done by the Apartheid regime at its highest – at the most exploitative stages. In a case called Mandela v Minister of Prisons, the Minister of Prisons allowed the prison authorities to keep privileged information between attorney and client for so-called safe keeping and the court allowed it. But even our courts have since departed from that. And one of our judges said that “Interference with the rights to professional privilege between attorney and client is a violation of the right to effective legal representation and the constitutionally enshrined right to counsel”. And it said "A serious assault upon that right constitutes an irregularity so grave, as to lead, per se, to the conclusion that a fair trial would no longer be possible.” And that is in South Africa. And the following was said as well, in the leading authority, or writing on this question, by Professor…. He likened the relationship between an attorney and the client to a close friendship, but it was just to make the point. And he says “Since in relation to a response to human needs, it creates a dependence, which it would be a betrayal to compromise. To allow social expediency to limit and compromise what by hypothesis is an entailment of the original grant of the right to the individual” in his view, “to take away with the left hand what has been given with the right. If I have a client with legal needs, then neither another person with the greater needs, nor a court should be able to compel or morally oblige me, to compromise my care for those needs.” And he said “It is true in relation between personal friends and in relationship between a lawyer and his clients differ superficially, the latter is not reciprocal, not does it depend on some mutual devotion and would seem to be motivated by money but these differences are not fundamental. In the relationship between lawyer and client, the law has created an institution which” in Fright’s view “exemplifies at least in a unilateral sense, the ideal personal relations of trust and personal care. The fact that the relation is cemented by pay does not derogate from this. Once the relation has been formed, it is the client's needs and not economics that determine its content.” Now what that means in simple English is that the very idea of wanting to intrude and go beyond the giving of instructions and so on, offends our Constitution. And it was described as follows, in relation to the Constitution, “The right is of crucial constitutional importance and the obligation to provide effective legal representation is one of the most important constitutional obligations imposed on the state by the Constitution. Two, it is the closest of all the rights in the Bill of Rights to being absolute” the right to legal representation. “Three, it is a right of substance, not form. Four, it is part of the rights to a fair trial. Five, it is the right to be properly informed if the right is corollary thereto. Six, a breach of the right is a serious irregularity although the failure to inform the accuser adequately of the right in criminal matters is not necessarily fatal to the fairness of the trial, to the extent that the trial is vitiated. Seven, the right to legal representation means the right to proper and effective legal representation” proper and effective legal representation. And the Constitutional Court in this case went further by saying “full legal representation by practitioners of her choice.” And that is the right that you violated serially from the morning of 1 November, up to the evening of 2 November, Chairperson. Then, Chairperson, when it comes to this issue of… Sorry, I just lost my train of thought. Before I forget this point here, you had what was posed as legal advice, or I do not know what to call it, but based on a so-called withdrawal. All sorts of things were said there and about the oldest trick in the book and what have you. But all that was based on the wrong assumption that there was a withdrawal. So it is just a waste of time to talk about. It is like talking about, you know, someone talking about studying for the, you know, for something that is irrelevant, like somebody said, coastal affairs in a place like Lesotho, that is landlocked. So to have a discussion, however long it is, about withdrawal which is not there, is just nothing else but a waste of breath. Although I noticed that there was congratulations and clapping my hands about an issue that is completely irrelevant, and actually has not happened. It is interesting at academic level, but not related to anything that happened in this Committee. So those are the issues, Chair. The first two issues, I have combined them – the issue of what happened on 27 October and the second issue, which was the denial of the legal representation of the Public Protector. The third issue, I will also, for the sake of time, I will merge it with the last issue. It was an issue of the way forward. Chair, you have received a letter from us which protests seriously in respect of the way in which we have been treated in this Committee, again, in a way that denies the Public Protector effective legal representation, by unilaterally imposing upon us times, some of them which are not scheduled, and which have not been discussed with us. The programme which you released gives the Public Protector 10 days to do everything that she is supposed to do in relation to her own impeachment. This is against the background of the evidence that has been led here since July up to now. And I accept that there have been breaks in between some of which, were necessary, some of which were not necessary. In fact, there should be no Inquiry at all, at this stage. But be that as it may, the… we accept that the four months or so that has passed, does not mean that we were sitting every day. I think on our count, we would have sat for something like 35 days, by tomorrow or whenever we finish on Friday. But, be that as it may, Chair, to give the Public Protector 10 days to respond to all that, to 16 witnesses, and almost 40 days of sittings, is just plainly, you know, absurd And we know that the witnesses like the one who has just finished now, who has taken, maybe she took two days in effect. Those witnesses come for specific topics and deal with specific things. The Public Protector will be dealing, I am just talking about her herself now, will be dealing with all the evidence from those witnesses and more. I do not know what you expect, that she is going to come there for half an hour and just say what, ‘No, I disagree with the witnesses’? Well, the Public Protector herself, will probably take that period that you have given us or thereabouts, just giving you the evidence to deal with the multitudes of evidence that have been given against her. And to give context to some of the issues, not to mention all the reports that have been mentioned; all the court proceedings; all the incidents; the HR issues that have been led here and so on… the issues of backlog – all the issues that have been dealt with by the by the witnesses that are contained in the Mazzone motion. Anybody who would have thought that to deal with all that will take 10 days, must be living in a completely different world. So that is the kind of thing that we have come to expect. In fact, at some stage, the programme did not even have anything, any input by the Public Protector, so I suppose we should be grateful for even the ten days. So that is the situation, Chair. And then last time when we said you gave us one day to prepare, you said no, you did not do that and that it would have been unreasonable to do so. But you have gone to do the exact same thing now. Because to your knowledge, we are facing a mammoth hearing on 24 November. In fact, Chair, for your information, yesterday we received the following directives from the Constitutional Court. It says “The hearing of the consolidated application set down for hearing on Thursday 24 November 2022, shall commence at 09:00.” In other words, not at the normal time when that court commences and that is because of the unprecedented volume, well maybe not unprecedented but certainly unusual volume of cases. It is about six or seven cases condensed into one day. Even now we are in the process of filing heads of argument in respect of that matter. And it is a matter that concerns this Committee, and it is going to detain us until the 24th, at least. So we only have 25 November to do all the things that we are supposed to do and then we must be back with you on the 28th. So we are back to the same situation in September, where you gave us one day to prepare as against all the other…. And these are things, Chair, to be fair, which, if you had simply just spoken to us, could have been clarified. But because all these programmes and deadlines and whatever you are unilaterally imposed from high and above, you know, and we must just, I do not know what, just accept, without even being asked to comment or even to check whether we are available. You want us to sit in December: people have made plans, family plans. We have had to negotiate with some of the team members but nobody bothers to even say ‘look, we know the programme was going to end at the end of November, now we are thinking of doing one week in December, will you be available?’ No. No such luck for us. It is just you know, the Chairperson has spoken – the mighty Chairperson. And we must simply comply, or be accused of walking out or if we are not available, then I suppose it will proceed with or without us: that is the attitude… as what happened last week. Well, Chairperson that is a gross irregularity and it is not to be expected of proceedings other than kangaroo courts. And it is not fair to expect when you are in the jungle, that you must follow the law of the sea, which is what happens. We are expected to play by the rules, but the rules are not applied to us. But we have said in our letter that we are prepared to compromise on the December issue. We have spoken to some of the members of the team and up to a particular date, which is indicated in the letter to you, which we hope you will take to the Committee and which was discussed with the Evidence Leaders yesterday. But, certainly the time you have given, to call it inadequate would be an insult to the word inadequate. Now that they… So hopefully, Chair, one day you will call us and discuss with us before you impose such issues on ourselves and our families. Then, Chairperson, if I may deal with the last issues, which is the update on the litigation matters, with specific reference to the review application. I have already mentioned the case on the 24th and by the way, I am told now by my attorneys that you have just filed papers and the Speaker in that matter today, in the Constitutional Court matter. I hope you are not like Ms Thejane, you know that you filed an affidavit there. But anyway… For the record, you have filed papers and so has the Speaker intervening in that matter, so that matter has actually become even more complex now than it was when I started addressing you. Because that means next week, we are going to have to respond to the papers you filed today. I do not even know what they are. I have just been told that they have been filed. That then emphasises the point I was making, Chairperson, that we will be detained with that matter up until the 24th. As I say, the information I'm giving you now, I did not even have it when I started addressing you. So it compounds the matter even further, and it then exacerbates the unfairness of your unilaterally imposed date of 28 November. And that is why, you know, one of the Members was saying it is a long time, because if you do not look at these things in their proper context, or you are just sitting and looking at it might look like a long time, but in reality is one day. But anyway… That is the Constitutional Court matter. And by the way, that matter has a bearing on whether this Committee even is sitting lawfully in the first place. And I suppose that is why the Chairperson has put in papers. Unless you were putting the papers for, I do not know… for whatever reason. But you may or may not know, looks like you do not know, that it has a bearing on these proceedings – a serious bearing. The second matter, Chairperson, is the more pertinent matter, which is the issue of the review application. By now, you would have received the review application. It was served on you yesterday, or the day before… on the 7th – Monday, served on you and the other parties. It was filed in court yesterday. I have the case number somewhere, but it is not important for now. But once it is allocated a number automatically that means that it has been entered into the court system. And if you allow me, Chair, that is the matter that I really would like to address the Members on because that also has serious implications on… or more direct implications on this Committee. The one of the 24th has implications on the Committee, but maybe more serious implications on the President, because it also deals with his unlawful and retaliatory suspension of the Public Protector as found by the Western Cape High Court – which found that the suspension was motivated by him trying to escape the Phala Phala consequences of 31 questions. That is one of the matters that will be debated on the 24th. But the one of the review is focused purely on you, Chairperson, as a person and as a Chair, and Mr Mileham. Those are the respondents. The other people are cited as just interested parties. I am also told that Mr Mileham has just filed a notice to oppose. And as expected, the DA has also filed a notice, even though it was cited like all the other political parties just for whatever interest. I am sure one doesn't have to be a genius to think that the Chairperson is also going to file a notice soon, if he has not done so. That matter is set down on the urgent roll for 13 and 14 December. Again those dates were carefully identified for two reasons. One, it was to try and avoid having to do that while the Committee is running so that no more time would be wasted. Those of us who have been able to have to change their December plans, unlike others, in our teams will have to be sitting here. I am sorry, Chairperson. So that is the first reason why it has been put in that awkward period and hopefully the Judge President will be able to accommodate us. But we will also be discussing with your advocates, Chairperson, as to how it should be proceeded. There is a chance that the dates might hopefully be brought forward or whatever is arranged. But the purpose of that application is merely to review, judicially, your decision and that decision of Mr Mileham, and the decision of this Committee to agree with both of you in your non-recusal decisions. And I do not need to repeat what I said last week about that. But you know, that if that is found to be the case, then the consequences are more than dire for the rest of these proceedings or, actually, for any proceedings. It might be that even sitting here we are just wasting time and money for nothing, as we warned last week. And on that note, Chair, I just want to say that we specifically agreed I am not going to deal with the issue of the malicious use of our names and portraying us as thieves and criminals and looters of taxpayers' money and all that. Some of us are used to that, but others are not, and it is unfair to impose it on those who are not used to it. Some of us have lived to expect that and it really does not make any difference. But to do that on innocent junior advocates who are trying to make a living and to make a career and to do that to the Public Protector, so that any other lawyer who might want to associate with her must know that they are going to be bandied about as looters of state coffers, is very, very unfortunate. And the fact that the Chairperson and the Members who did not protest; at least thank God some of the Members protested last week at some of these things – allowed to happen in this House, hallowed house or revolutionary house is something that I am sure will be written about in years to come. It is the same as those Members – there were Members from two political parties who actually continued with the questioning of Ms Thejane when the Public Protector was in hospital, or being treated. And some of those things that happen in this Parliament make one shudder to think what could have happened if the… or rather that those things are happening under the name of a constitutional democracy. But they have happened and they continue to happen. So the potential waste of money and time will then be determined by the court, which will either agree or disagree that some of the grounds of recusal are valid, such as the spousal relationship between Mr Mileham and Ms Mazzone, who is the author of the Mazzone motion. If anyone of those grounds is found to be sustainable, then everything I've done here, since the beginning up to now will have just been a waste of time, as I say, as we been warning and trying to plead for reason. But the rulings were made, the rulings were made. We will have to see what the courts have to say about that. So Chair, yes, I was talking about the abuse of advocates and attorneys throughout the country, particularly targeted at those who are involved in this matter now for obvious reasons. But other people who might be completely unaffected by what is happening here and who are just as I say, innocent South Africans trying to contribute to the cause of justice. And you have put their lives and the lives of their children in danger by allowing the abuses that happened, which only happened for the, as I say, because of… it was on top of the other abuse that you were committing, which was to run…. And, I do not know, I see you are smiling or laughing, Chairperson but it is a serious matter.

Chairperson: I want you to proceed and conclude and not just continue looking at…

Adv Mpofu: Yeah. Yeah. But I am continuing.

Chairperson: Stop. I am talking, Adv Mpofu. I did not disturb you.

Adv Mpofu: Yeah, I am talking too. It is not a smiling matter.

Chairperson: I am on the platform now. I want you to proceed and conclude, please.

Adv Mpofu: Yeah, I will do that. I just wanted to say it is not a laughing matter or a smiling matter. If it was your children who were threatened or who were getting all the negative publicity, which was deliberate.

Chairperson: Are you done, Adv Mpofu? Are you done?

Adv Mpofu: No, I am not done. I am not done.

Chairperson: Please complete therefore. Conclude.

Adv Mpofu: Yeah. The impact of what happened under your watch is that those people have been seriously violated in the most egregious manner that you can imagine. And if anything happens to them, it will be placed at your door, because it was even when the information was solicited… we know how it happened – it was a whole scheme. It started the day Mr Mileham said he wanted to know the names of the lawyers who benefitted and I think Hon Herron corrected him to say he should not use the word ‘benefited’ because those people worked for whatever money was paid to them. And that was the chain of events that have led to this national crisis that has been created of abuse. It was all well-orchestrated from that date. So what we are saying, Chairperson, is that allowing that situation to obtain, and even now, I can see you do not find it particularly troubling. That is something that we will deal with when we deal with the witness, Mr van der Merwe in more detail. What I am doing at this stage is simply to link that to the abuse of not our allowing legal representation. And I am saying, Chair, the… it is irreversible, quite frankly – the damage that has been done. Some of those people have had lawyers calling them and not wanting to do work with them because who want to do work with someone who's associated with looting the coffers of the state? And all that was done without any context. So advocate A maybe earned R2 million, we do not know, over five years, or how many matters they did, it might have been 100 matters. But no, we simply are given a globular figure and there is a specific focus only on black people, as usual, the perpetual victims of racism and violation in this country, even in this Parliament. In vain, for no reason; for no relevant reason to this Committee at all, except just to cause hurt and to violate people's rights – in your name, Chairperson. And so maybe you will be proud of having presided over such a violation, but that is a question for another day. So I am speaking for those victims now of black professionals who, unlike me, are not used to being abused by the racists, and their black apologists. So that is something that is unacceptable. And it is something that is not going to end here. And if I say that you are going to say I am threatening you. But it is what it is. It is not going to end here. There are people who are going to take it up in various legal fora, particularly those who are not involved in this matter. As I say, at least, I would have had a chance in my team, to address you now and we will also address it through Mr van der Merwe. But I am made to understand that other people are going to take it up either with the Parliament or with other structures. And that is not a threat, Chairperson. Last time, when I said we were going to do a recusal application, you went on television, so you must, at least… I am just telling you what was said by other people out there. So there, Chairperson, I am concluding on that sad note. And I say that if this Parliament is going to violate us, who will protect us. But we are here. We will continue to do our professional duties, and our duties to the Public Protector as our client. And we will do so with everything we have in our power: every ounce of blood; fearlessly, even in the face of racist abuse by racist, and their fellow travellers or security guards of racism. Thank you.

Chairperson: I am going to ask Thembinkosi Ngoma quickly to take Members through the correspondence he would have sent to Members, as we always do. Thereafter if Members have got any comment, I will allow them and I will make a summary and a ruling. I am going to allow you tomorrow, Adv Bawa. Your matter you want to place on record is related to tomorrow’s session.

Adv Mpofu: Thank you, Chair.

Correspondence
Mr Thembinkosi Ngoma: Thank you, Chairperson. Good afternoon, Members. Good afternoon to the PP, the legal team and everyone else that is watching and following this meeting. Yes we had two correspondences from the last meeting of the Committee. The first one, Chairperson, is the letter dated 4 November, which was from the Committee to Seanego Attorneys. That letter, Chairperson, sought to explain the reasons why the Committee took a decision to proceed with the proceedings and also the way forward. Which is why we are sitting here today. This letter was shared with the members of the Committee. The second letter I received yesterday from Seanego Attorneys. It was a response to the Committee letter of 4 November. Adv Mpofu has spoken extensively on the contents of the letter when he was addressing this Committee now. That letter was shared with the Members as well, last night, which is why I am not going through the contents of the letters. Members have both letters. That is the only correspondence, Chairperson, that I have received from the 4th and yesterday. Thank you very much, Chair.

Comments and questions by Members
Chairperson: Thank you, Committee Secretary, Mr Ngoma. Any Member who wants a clarity question or wants to make a brief comment? I will allow that now. Thank you. Hon Nkosi?

Mr B Nkosi (ANC): Thank you, Chair. I just want clarity to check with you what are we commenting on? On what Adv Mpofu said or are we commenting on the process today?

Chairperson: I am just saying if you have any questions or clarity you want to seek on what has been put on record. You can do that. If none, then we are proceeding because I want to make a ruling or a summary of the meeting.

Mr Nkosi: Okay, Chair. My points are two. One, is that you made a ruling on proceeding with this process and this Committee agreed with that ruling. We still stand by that ruling. There is nothing that has changed since then. Secondly, that I do confirm that I did say the actions on that day were planned and staged. If I recall well, I said it was a planned and staged walk-out, and I stand by those words. There is nothing that has been said that demonstrates otherwise. Thank you, Chairperson.

Chairperson: Thank you, Hon Nkosi. Hon Sukers?

Ms M Sukers (ACDP): Thank you, Chair. Chair, I think it should be noted that a couple of questions was asked to the Public Protector on the day that a legal team walked out of the venue and walked out of the proceedings. Those questions have not been answered. What is being presented to us now here by Mr Mpofu seems to be a rewriting of history. Because when we started Mr Mpofu indicated or hinted. I even asked the question if Mr Mpofu is hinting that the Public Protector is going to withdraw from the process and Mr Mpofu then denied it. But when he did get up and finally walked out, Mr Mpofu said, ‘See you again or not’ or something to that effect. I think Adv Bawa still read it into the record. Everything that was said by Mr Mpofu… I think I want to put it on record that I feel that Parliament is being disrespected. I feel Parliament is being disrespected and the processes of parliament are being undermined. It is the Public Protector that is accountable to Parliament and not the other way around. It is also not the legal team of the Public Protector who sets the terms for this process. The Public Protector is accountable to this House and not the other way around. As the Chairperson has indicated all the proceedings are on YouTube, certainly those two days. We are glad Mr Mpofu clearly now has made it clear that he certainly listened in to the proceedings. The legal team of the Public Protector, it should also be stated and noted has let the Public Protector down. They have left her without legal representation for those two days. It is not Parliament that has withdrawn the legal representation. It is not Parliament that has refused for the legal team to be here. It was the legal team that walked out and Parliament has asked the questions, under what circumstances did they leave. Lastly the Public Protector owed to us certainly as part of her duty to give us the answers that we were looking for on that day. But they have clearly jeopardised the Public Protector. In fact, Mr Mpofu who has spoken very well about the risks that have been put on the advocates and the details that were made public. So has his client's reputation been hurt by what Mr Mpofu has done in public. As Parliament we cannot allow this institution to be further undermined. Thank you.

Chairperson: Thank you, Hon Sukers. Hon Zungula?

Mr V Zungula (ATM): Thank you, Chairperson. I have got a clarity point to Adv Mpofu. Clearly there is a clear conflict… Yeah, there is a clear conflict between the legal representatives of the Public Protector, the Committee and the Chairperson of the Committee regarding various issues of which now the courts have been approached. Now the clarity I am seeking here from Adv Mpofu, is what are the implications of the Committee proceeding with its programme before the courts have made a determination on the conflict that is clearly causing a major rift and is threatening this Inquiry, which is very important as it sets a precedent for any future inquiry in our country? What are the implications on the proceedings before the courts have made a determination and resolved the disputes? Thank you.

Chairperson: Thank you, Hon Zungula. Hon Mileham?

Mr K Mileham (DA): Thank you, Chairperson. Chairperson, let me start by addressing leaving of the chamber by Adv Mpofu and the other members of the Public Protector’s legal team on the 27th. First of all, Chair, we had not concluded deliberations for the day; we had not adjourned; we had not suspended the hearing or anything like that for a tea break or a lunch break or anything like that, and Mr Mpofu stood up and walked out and his colleagues got up and followed him. Now not only is that completely disrespectful to the Committee… He was not excused. He had not been asked to leave or anything like that. He just got up and walked out. And so to describe it as a withdrawal or a walk-out, I think is a perfectly reasonable way of describing what happened that day. What followed was, frankly, confusion. We did not know what was going on. All the Members from various parties questioned what is happening here; why is this happening. We were unclear as to exactly what the status was of Mr Mpofu and the other members of the legal team. That clarity was not provided adequately when the Public Protector addressed us on the 28th. Nor was it provided by Mr Seanego when he was addressed on the following Monday or Tuesday, I cannot remember exactly which day it was. The issue that I have is that this was not something that the Committee was prepared for. It was not something that we understood. Frankly, we still do not understand the full reasons for what went on there. I would like to now address what Mr Mpofu spoke about with regard to the breach of attorney client privilege. First of all, questions were asked of Adv Mkhwebane and she answered those questions. And the Committee were not satisfied. And those questions related to essentially is Mr Mpofu coming back – can we expect him to come back? It had nothing to do with the merits of the hearing. It was limited to essentially, where is your legal representation and what is going on here? So I think to say that we have breached attorney client privilege is a stretch.

Mr Nkosi: Chair, on a point of order?

Chairperson: Yes, Hon Nkosi?

Mr Nkosi: May I ask, Chair, are we rehashing the issues we discussed in the…

Chairperson: We're not. We're not, Hon Nkosi.

Mr Nkosi: Otherwise, we must all start from that point.

Chairperson: Thank you, Hon Nkosi. Hon Mileham, if you can just shoot straight forward without whatever clarities and not get into discussions.

Mr Mileham: I will leave that point. I will move on. Yes, Chair. My last point is this – it relates to the notice that was provided to Mr Mpofu and the other members of the Public Protector’s team – in your correspondence of 19 October in reply to his correspondence. You said, and I quote at paragraph 13.3 “In the event that the Committee determines that it will proceed notwithstanding the application, the hearing will resume with either Ms Thejane or Mr van der Merwe, as the case may be. You are hereby given notice that you should be in a position to deal with either witness on 27 October. It goes on at paragraph 14 to say, “Accordingly, please treat this correspondence as notice, as per your request that the Committee will resume its hearings on Thursday 27 October 2022, unless the Committee having considered the adjournment application determines otherwise, and you are given notice to be prepared to deal with either or both upstanding witnesses on that day and the following day, Friday 28 October 2022.” So already on the 19th Mr Mpofu had been notified of this Committee's intention to proceed with the hearings, and I think it is completely misleading to then say that there was no intention on the part of the Committee, that notice has not been provided. This was a full week in advance that notice had been provided. I will leave it there. Thank you, Chair.

Chairperson: Thank you. Hon Xola Nqola?

Mr X Nqola (ANC): Thank you very much, Chair. I think, Chair, the reason why one of the Members says no need for a further discussion is because we have comprehensively discussed these matters. Chair, I will just add some few pointers. One, listening to the submission of Adv Mpofu, where he says there was no termination of services between them, Seanego and the Public Protector. And that they did not receive any instruction to the leave the chamber and to leave the Public Protector, whilst the Inquiry is underway. So it definitely means that the Committee has clearly defined what happened at the march-out, which I think that was the correct conviction from the Committee, listening to all of the submissions. There is an issue, Chair, of concern because there are even sentiments that we may have been part of a denial of legal representation of the Public Protector. I would say, Chair, that it is equally not true, on the basis the Committee had to adjourn for the Public Protector to sort out her own issues with her legal team. At least from where I am seated as part of this Committee, we have allowed ample time for the Public Protector to deal with issues in respect of her legal team. In relation to the reasonable time at which the Public Protector should lead evidence, I think, Chair, we have always said… we adopted the programme with some few minor changes in the last Committee meeting. But we have always said our programme is flexible. Where a need arises for Adv Mpofu and the Public Protector for extra time to prepare for the things that Adv Mpofu mentioned here, that can always be allowed between the Chair and the Evidence Leaders, in what we call the backroom. So I think, Chair, we have already adopted the programme and we are continuing with the programme. But it does not change the fact that our programme is indeed flexible for any change, any day when a need arises. There was an issue, Chair, of accounts that are said to have been displayed for the public. Chair, I wish to reiterate my point in saying there is nothing private, Chair, about public funds. Actually, it has long been a government practice, for accountability purposes to know, for the public to know, how much has government spent in buying a book? Who was appointed to buy that book? It relates to the public funds. It would have been a different case, in my view, of course, Chair, had the Evidence Leaders or the Committee publicised the accounts of the law firms which have rendered services with the Office of the Public Protector. But the issue was solely on the services that were rendered, where law firm A, then law firm B got this much. It is still, now, that kind of practice. You can go to Eskom. You can go to an SOE. You can go to municipalities, provincial departments that is the practice. When a service is rendered for accountability purposes, it is declared to the public that this service is going to cost the public purse this much and this is the person who is going to do this service on behalf of the people of that particular area or jurisdiction. The last issue, Chair, which I take as a serious concern. Since I joined Parliament, Chair, I have been part of a complement of a Committee that has always championed for equitable briefing patterns, particularly by government departments. And, you know, Chair, fortunately you are part of that meeting. So I take a serious knock against me and my consciousness if I am part of a team that is accused of being racist and all that and all that. It is my view, Chair, that the Committee is not racist. But if Adv Mpofu feels that there are racist elements within the Committee, he is free to indicate that to the Committee so that we are able to attend to it properly as the Committee. The last issue, Chair, relates to the review application. I submit to the Committee the blessing that was received from Adv Mpofu was that there is part A dealing with the interdicting of the proceedings of the Committee. And there is Part B dealing with the review application. I want to submit, Chair, to the Committee that until such time that part A is adjudicated by a court of law and we are interdicted to halt proceedings until Part B is decided. Until such time, I wish to submit that the proceedings proceed as planned. Thank you very much, Chair.

Chairperson: Thank you, Hon Nqola? Hon Gondwe and Hon Maneli.

Dr M Gondwe (DA): Thank you very much, Chair. I also do not want to rehash this discussion – we had it the last time and we agreed to forge ahead as a Committee. We have a constitutional obligation to ensure that this Inquiry goes ahead and we discharge the obligation that we have been charged with by Parliament. So I would please implore Hon Members to keep their eyes on the ball. Let us forge ahead. We have already talked about the walk-out. It was a walk-out. It was staged. I am not going to take my words back on that one. There has been a concerted and a repeated effort to actually stall the proceedings of this Inquiry. We have had three recusal applications and one adjournment application. And I am not going to take my words back on that. I hope Adv Mpofu is listening. Chair, I would say let us forge ahead. We have two more days to go. We are already late as it is and we too have families that we need too. So please let us wrap up today's discussion. Let us not rehash what happened. We have discussed it and I maintain that it was her legal team that denied her the right to legal representation. It was not us. We never chased anyone out. We were told that we do not even know when we are going to see you, when Adv Mpofu walked out. So from my side, we have done nothing wrong and we have been very accommodating. I am worried that, you know, we might not have time to discharge this obligation that we have as a Committee. We have been mandated by Parliament. Chair, please ensure that going forward we move with full speed and we finalise what we need to do. Thank you very much.

Chairperson: Thank you, Hon Gondwe. Hon Maneli, the last one.

Mr B Maneli (ANC): Thank you, Hon Chair. Greetings to Members, the Public Protector and the legal team. Chair, maybe just to emphasise two or three points. I agree that we are proceeding on the basis of a decision taken, which at this point, is still informed by a court decision – the Constitutional Court. And that has not been contested yet. Irrespective of anything else, we need to deal with this with speed. I just wanted to emphasise that point. The second point is that I also welcome, Chair, a confirmation again that the walk-out was not a withdrawal. So I welcome that. That there is clarity that there has not been withdrawal. With that in mind, may we then be clarified, Chair, so that when you make your ruling, South Africans out there can also be helped to understand the meaning of no withdrawal. Just as the Public Protector was explaining the absence of the legal representatives. In this case, we take it to be those lawyers of record. I am sure, Chair, if I count properly, it probably would not have exceeded five minutes. Unless there is an imposter who then says ‘we represent Seanego Attorneys’. So we will at least forgive that if it was an imposter. The reason I am raising this is that on that day there was a message on the chat, which gave an indication to the Chair that 'we are here'. The Chairperson followed it immediately and placed it on record so that there is also no misrepresentation to South Africans that they were absent – that they are here. Unfortunately, Chair, we were using another gadget and that gadget got to be identified. We therefore proceeded on the basis, like we are proceeding today, that physically, both the Public Protector and the legal representatives are on that platform. And on that day, the legal representatives were on that platform. Should we disregard that presence on the basis that, as the letter says, there was totally no representation? It will help you as you make the ruling, Chair, so that South Africans can be taken into confidence whether the contents of the letter are the true reflection of whether that representation was indeed mandated or we probably had an intruder in the meeting who played an imposter role of being attorneys, when they cannot represent those. I submit, Chair. Thank you.

Chairperson: Thank you, Hon Maneli. I now quickly want to do the quick summary and the ruling but I see the hand of Adv Mpofu. I will briefly allow you and then I make the summary. Thank you.

Adv Mpofu: Thank you, Chair. I promise I will not deal with everything that was said.

Chairperson: Just before you proceed, Adv Mpofu. Hon Nodada, can I recognise you before, Adv Mpofu? There might be issues you might want to raise as clarities.

Mr B Nodada (DA): Thank you so much, Chair. I thought maybe you were managing me indirectly. But I just wanted to say that, Chair, I am covered by Hon Mileham, Gondwe and Maneli, now, in this instance. I do not want to rehash what they have said. But I do think, Chair, we all have eyes, we all have ears and I do not think it is fair for us to be taken for fools or the South African public, to be taken for fools, for what they have witnessed themselves. It is important to understand that we are here doing work that we are elected to do as legislators. It is not by mistake that we proceed within the rules, the Constitution of this land and ultimately, what we have been discharged with by Parliament. I am not going to go to the merits and demerits of what has been presented. We have discussed this issue, Chair. We have put our views on the table, as the Committee. We have resolved on the issues. If it were to me, I would just say whatever has been prevented by Adv Mpofu, noted, and then we move on with our things because we have discussed them at length and there is no need for us to be going into detail on them now. We just note what has been said to us, and then we move on with the process and people participate as instigated by the rules. Thanks.

Chairperson: Thank you, Hon Nodada. Adv Mpofu? Adv Mpofu?

Adv Mpofu: Hi, Chair.

Chairperson: Yes, go ahead.

Comments by Adv Mpofu
Adv Mpofu: Yes, Chair. Sorry, Chair, I did not realise that I was muted. I know it is late, so I am going to try and be brief but there are one or two things, Chair, that either need further clarity or just comment. Before I respond to the specific question of clarity from Hon Zungula. I think, Hon Maneli has maybe dealt with the issue but I do not know if he understands what I have been saying. There is a difference between what happened on the 27 and 28 October and everyone one seems to be missing this. I explained what happened on the 28th – the Public Protector came back at the request of the Chair. There is no issue about that. And the situation she clarified, and that is it. But what everyone is missing is to distinguish between what happened on 1 and 2 November, which is where the violation of human rights and constitutional rights happened. If you do not remember on 1 November in the morning, the Public Protector came and told you that her legal representatives were indisposed. They had not withdrawn, they were simply indisposed because they were preparing for the Constitutional Court papers. As I said, the Chairperson accepted that, to the extent that, otherwise, he could have just said, ‘Well, I am just going to lead the witnesses and they will never be cross-examined’. He did not do that. He allowed us to cross-examine them today and tomorrow, so he accepted the explanation given by the Public Protector. So far, so good. The issue is that then at that point… In the same breath, the Chairperson said the proceedings must continue in the absence of the legal representatives of the Public Protector. There is another point that Mr Maneli is missing. Firstly, he is wrong, there is no Constitutional Court order that says you must proceed with speed. There is an order. It is a different thing. Whatever is in the judgement and the order, are two different things. There is an order that orders you to afford legal representation – full legal representation, okay? So those two things cannot be equated. Here is the mistake, it is very simple: the original rule, Mr Maneli that we took to the Constitutional Court, said what you are saying. It said “The Public Protector may appear in the Committee in the presence of a legal representative who will not participate in the proceedings.” Okay, that is what the rule said. We took that to the High Court, we won. You appealed and took it the Constitutional Court, you lost… that was wrong. Your lawyers, your advocates, Adv Breytenbach, who was representing you, said that the mere fact that the lawyer is there is enough cover and the fact that the Public Protector is legally trained, is also sufficient cover. Those arguments were rejected by the High Court and the Constitutional Court. Until anyone understands that point, then we are going to be going on about Mr Seanego and all that. No, there was no imposter, Mr Maneli. Mr Seanego was there but his presence does not amount to legal representation, according to the Constitutional Court, okay? Yeah, so… Number one. Number two, the Constitutional Court said full legal representation. Not just full representation, full representation by legal practitioners of her choice. She explained that to you on the 2nd. Legal representation of her choice, in this case, is me and the other counsel, instructed by Mr Seanego. Even if I was there, to make you feel even better, under the old dispensation, which was rejected by the Constitutional Court, but not participating, that would not be legal participation. I cannot explain that further. Maybe you can get advice on that. So let us not misrepresent what legal representation means. It does not mean presence – that is what the court said. The next issue is Hon Nqola. I will not speak of most of the things he said. The only issue is the issue of the attack on advocates. If you are saying that nothing about public funds is private, then this Committee must give out all the legal fees that have been paid in the matter against the House, which started in 2020, to all the advocates, including the ones I have mentioned, tomorrow. Hon Omphile, since July, asked this Chairperson, to give us the figures of the cost of this exercise, because the Chairperson said what Hon Hendricks was saying about R1 million a day was wrong. We are now in November. That has not been furnished by you, by this Committee. And those are public funds. Nobody displayed them as to how much is being spent on this, despite it being asked for. And also the transparency you are talking about does not only affect black people. If they wanted to put all the fees of lawyers, they should put the fees of the white lawyers as well, particularly Parliament because it only uses them. So the… It is the height of disingenuous to equate this to so-called transparency and public funds. Then we need all the public funds of whoever is being paid what, including all the counsel, even the ones that are going to represent you next week in the Constitutional Court. So that would be transparency, so that the thugs who go to rob the black people, whose names you put there, must also visit your own people. If you do not understand that point… So Hon Mileham, I do not think I need to respond to what he is saying. Except to say that, it is not true what he is saying. He says no, the questions were just about superficial things. No, the questions were, ‘did you give instructions to your attorneys’. That is the heartland of client-attorney privilege… as to whether you gave instructions on this or that or the other. The record will speak for itself, so I do not need to debate something like that. And yes, if the Committee did give us notice in their correspondence, but it is not their sole privilege. This is not a dictatorship or Nazi Germany. It is not the sole privilege of the Committee to give us notice. I told you that we also give notice of what we are going to do. So why is our notice to be discarded, but only that of the Committee? So at best, there was a dispute of notices. But the point I was making was that we made our intentions clear. It was not a secret. It was not a matter of speculation ‘Did they walk-out? Did they withdraw? Did they do that?’ We told you a thousand times before… 18, 24, 27 – twice on the 27th – what was happening. So if there was still confusion after that, we were not answerable for that confusion. We cannot help it. Okay? Yeah, I do not care how Hon Mileham wants to describe it, whether it was disrespectful or whatever. The point is that I am telling you that our mandate ended. Either you accept it or you do not. And we could not participate further than our mandate. That is it. We are not our own… It happens many times that if you are… Anyone who understands what a mandate is, once it is terminated, it is terminated at a particular point. And once it expires on the terms that have been explained ad nauseam on the document. Then it is fine, we could have, if you wanted us to sit there, we could have sat there. But I am telling you now, if it was a walk-out we would not have told you goodbye, or we would see you – we would have just walked out. But I am not interested in explaining the mechanics of a walk-out. Hon Sukers, I think, what she is saying really amounts to, you know, about human rights about what we call, you know, let them eat cake, is what was said in France. You are telling us about YouTube? Now we are supposed to legally represent the Public Protector via YouTube? The Constitutional Courts knew that there's something called YouTube when it gave the right of legal representation, otherwise it would have ordered that: ‘No, the legal representation must be on YouTube.’ So we cannot be told that we followed something on YouTube and therefore that amounts to legal representation.

Ms Sukers: Chair, is…?

Adv Mpofu: And as for the slur – we have no time for… If you want to tell us that, after the Public Protector explained herself on 1 November and the proceedings proceeded. It was the fault of the very same legal representatives that she had explained were indisposed. That she was unrepresented for those two days. Well, that is your privilege, ma’am, but it does not elevate it to something that is true. So we did not leave her without legal representation. She came there. And you are right, we are not answerable to you. We do not account to you. She accounts to you and that is why she was there. We account to her, alright? And we have no business to be in your presence when we it is not necessary, or it is not called for. So… But she does, unfortunately. She had no choice. That is why she was held hostage there for two days without legal representation. Not even allowed to go and watch it on Zoom or participate on Zoom. But that is her. She chose to be the Public Protector so she suffering for that. Yeah. But we do not have to suffer that kind of indignity if we do not have to. Alright. Okay, let me talk to Hon Zungula’s question. Hon Zungula, there is nothing much that I want to add as to what will happen. The legal position is exactly what I had explained, that there are two risks that the Committee faces, but we assume it has calculated those risks and it is prepared to take them on behalf of the South African public. It is that all the million rand a day or whatever the true amount is, that will be spent… that has been spent from 11 July, up to the time of the hearing of the court case, if it is found that one of those grounds is sustainable, will have been wasted. By then it will probably be R100 million or more because the proceedings will have to be started afresh. That is the first thing. The second thing is that, as from the date, which I think was 17 October, where the recusal application was refused up to that court ruling, then there would have been potentially contempt of court. Hon Mileham was correct, the last time when we were kicked out of the chamber, that the Members have a privilege against being imprisoned for that contempt. But that does not change the nature of the contempt of court. The mere fact that you have defied a court proceeding has legal consequences, even though they may be less than for ordinary people like me if I defied a court order. So those are the two risks. One is the risk of nullity and defying the Constitution, when you have been told there is going to be a recusal application – I gave you the cases that say that. Somebody, who calls themselves a professor, says it is not part of our law that could amount to contempt of court. Well, I would invite them to read the case of Pikoli v President of South Africa. But anyway… It is not a real professor. It is these kind of people who masquerade, who have never seen the door of a courtroom in their lives. But it is that risk. But the biggest risk, I think if I was a citizen of South Africa watching this would be that why is my money being spent on something that might just be a waste of time and breath, and people moving up and down to the tune of whatever millions are being spent here, which is in any event illegal, and amounts to according to our courts, contempt of court, or disregard, or is an insult to the court. So those are the implications if you continue with your programme. But you heard Mr Nkosi, and all the others… It is the same. The two parties that have the majority. It is all about numbers. So if the people who have numbers say that ‘it is Saturday today’, it does not mean that it is Saturday, it just means that those people – they are wrong – but it just means that they are many. So being many does not mean you are correct. The law does not work like that. You can vote that today is Christmas Day, and it will carry as a resolution but it does not mean it is correct, objectively speaking. So that is what happened. So the people who have voted that the Inquiry can continue, will get their way on that basis but the legal position will be defined by the court and not by voting because you know, voting is meaningless, in terms of… The law is an objective subject that applies. It is either it is like this or it is not like that. It is not that we say we are more than you, and we say it is 1925 not 2022. A court will never find like that. It is an absurdity. But that is where we are now because we are still subjected to the whims of the majority; but in court we will be subjected to the whims of logic, which are two different things. Now in the… Sorry, last point, Chair. Mr, I think it was Maneli, who talks about Part A… Oh, it was Mr Nqola. I do not know where he got that. I never uttered the words Part A or Part B, but in any event, it is an opportunity to explain. We in our wisdom decided because this is what we were trying to get you to do, to try and save the money of the state by having Part A or Part B and all that. So when you refused to do that, we then decided to do it this way, that we will simply have review proceedings: that is it. There is no Part A or Part B. Because if we have Part A and Part B, this will take years and years firstly to be resolved. But secondly, it will just be a waste of money. The law is like this, again, logic versus the majority. The majority of this Committee keeps on saying, as someone said, today, I think it was Mr Nkosi or Maneli – as I say, I confuse the two – that we will continue until there is a interdict because of the, I think the same type of stuff. We will continue until there is an interdict. Now it does not work like that. You can say that, of course. I mean, nobody can stop you, it is a free country. But you do not need an interdict to do the right thing. So if I say, I am not going to Durban, I cannot say ‘I will go to Durban until there is an interdict that says I cannot go there’, even if I have no reason to go there. So it does not work like that but that has been the logic here, to say ‘No, unless there is an interdict, it means we must continue.’ No. I can say to the Chairperson or to Mr Maneli, or anybody ‘Mr Maneli do not go to this place because there is a danger. Do not go back to the Vaal, where you came from, because there is some danger there.’ He cannot say ‘No, I am going to go there, even if there is danger, because there is no interdict.’ That would be something else. But, as I say, the majority, you know, if they vote they vote, what can you do? But let us not elevate that to the same level as logical decisions that are based on rationality. The only arbiter for rationality and logic in South Africa are the courts, not mob psychology or the fact that, you know, 20 of us say it is Sunday and six say it is Wednesday. Even if the six are right, the court will…

Chairperson: Thank you, I think you have covered the points. Thank you.

Adv Mpofu: Sorry, I just wanted to clarify the Part A / Part B thing. Thank you, Chair. Sorry. That is all from our side.

Summary by Chairperson
Chairperson: Thank you, Adv Mpofu. Colleagues, just to make a quick summary and way forward… ruling in this matter, having listened to all of you. Mr Ngoma has flighted the latest letter which was sent to you; the one on 8 November, which we received yesterday 15:40. As I always do, on behalf of this Committee, I will respond to that letter fully, in due course, in line with the decisions of this Committee. Hon Nkosi is correct. What has been placed on record does not change the decision we took as a Committee, which decision says we resume today, tomorrow and Friday, to conclude the two remaining witnesses, and now after today the one remaining witness. That tomorrow is Mr Cornelius van der Merwe and Friday. As part of that decision and programme we will pause and resume from 28 November – and I know that Hon Gondwe had a grief about that. I hope you are over that grief because that programme as far as 2022 is concerned, takes us to 9 December. In December, that is when the National Assembly arises. We rise in December. We do work. The letter proposes 6 December, in other words, take three days away from the 9th. The backroom of the Evidence Leaders and the Public Protector legal team, I am told they had a brief session yesterday – they will meet again. But if the preference is 6 December, that preference must not take anything away from what we planned until 9 December. You are going to have to ensure that all of what we have identified will be done by 6 December, even if it includes working longer hours, that is what is going to happen. We are not extending it to 2023. So as they meet, if the agreement is that, we are happy to settle on the 6th. I repeat, it does not take anything away from what was planned to be concluded on 9 December because that programme takes us, which we account to as the Committee, to March as the endpoint. We want to follow all of that. We are mindful that we operate in an environment that is not our choosing. But we have a plan that was put in place and we are going to follow that plan diligently. It is a living programme, if there are things that come our way, we will look into those. But that is the planned endpoint that we have agreed as part of that decision. Secondly, I think it is important to make this point – the point is made by Hon Sukers, which was also made last week – to emphasise this is an exercise in accountability of the Chapter 9 head of an institution to the National Assembly. In that process, we are all subject to a parliamentary process and its rules. There is no court determination in that process. Any institutions have their own rules. If you go to courts you are going to have norms and standards and all sorts of things that people operate under. You will negotiate your way within that. In the legislative sector, we have rules. You are going to negotiate a way within the rules that are set and the kind of programmes that are set. Whoever comes as part of our Committee oversight, they are subject to these – there is going to be no exception because this is an Inquiry. I think it is important to emphasise that so that the point is not lost. In relation to the programme, we continue tomorrow. We will hear what Adv Bawa wants to put on record. Thereafter, we will immediately start cross-examination of Mr Cornelius van der Merwe tomorrow and Friday, as planned. I think it must also be said… without getting into the merits and discussion of it, we note, Adv Mpofu, your placing on record denying the walk-out, denying any withdrawal – we note that. I think more importantly and strongly, it is important that we place on record that we deny and reject the following assertions that have been placed on the record: the accusation of rights violations of the Public Protector; the insinuation about the jungle and the kangaroo court; the illegality of the Section 194 Committee – all of those are rejected. I think it is important that we stay on course, we stay focused on what we want to do. Matters that you have a recourse to take to court, we welcome that – we have always made that point. In fact, the review, we would have expected it on 31 October, as promised to us, because it is on that Thursday that we took a decision to reject the application for adjournment. Now that matters have been taken to court, that is to be welcomed. But it is important to emphasis Hon Nqola’s point, that nothing stops us in the programme that we have place. There is no legal impediment. There is no interdict. We want to emphasise that point; we are going to proceed. Even as we straddle; even as we multitask what needs to happen in court, whether it is the Constitutional Court on 24 November or the 12/13 December or any other date in the review application, our work must continue. Thank you very much, colleagues. I want to say that our meeting is adjourned and we will meet tomorrow at 10:00 to resume the cross-examination. Thank you very much.

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