PP Inquiry day 40: Cornelius van der Merwe

Meeting report

Chairperson: Colleagues, welcome to the resumption of our Enquiry today, 10 November 2022. Now we know that we are connected, just want to welcome all the Honourable Members of the Section 194 Committee, here at M46 and on the virtual platform. And recognise the Public Protector here in Cape Town at M46; together with her legal team led by Adv Mpofu, that you are here in Cape Town physically, and not here virtually. Thank you, you’re welcome. Acknowledge Evidence Leader, Adv Bawa. We have an apology for Adv Mayosi who is not with us today. But, also acknowledge the members of the public who are joining us on their various platforms – Parliamentary YouTube and 408. Members of the media; our entire support team that has been with us in this process. I also want to acknowledge the presence of Mr Cornelius van der Merwe who’s our witness today. Mr van der Merwe please switch on your video and indicate if you can hear us.

Mr Cornelius van der Merwe: Good morning, Chair and Members, Public Protector team. Yes, Chair I can hear you. Am I audible?

Chairperson: Thank you. And Hon Herron, can you hear us?

Mr B Herron (DA): I can Chair, thank you.

Chairperson: Thank you colleagues. I had indicated yesterday, that today and tomorrow Adv Mpofu will be doing the cross examination of Mr Cornelius van der Merwe. I got a request… I see there’s a mic on when I have not recognised anybody. So I got a request from Adv Bawa yesterday, which I deferred, about wanting to put certain matters on record. Therefore we’ll start with that. Adv Mpofu, you want to talk to me before I go to her, I recognise you.

Adv Dali Mpofu, SC: Thank you very much Chair. No, I just wanted to say I also have a request, but I think Adv Bawa came yesterday, so she must take precedence, but I can talk after her.

Chairperson: Okay. Thank you Adv Mpofu for that understanding. Adv Bawa, I recognise you and hand over to you.

Adv Bawa: Good morning, Chair. Good morning, everybody. We had... and the reason why I have asked for this is to place context to the evidence that was led last week that created quite a bit of consternation. And the second leg of that is to correct errors that we made in the result of that. So let me let me start off by dealing with the question of a context. During the course of the hearings we had two requests emanating from the Committee. One was the number of reports reviewed and set aside, and before Adv Mpofu leads his cross examination with Adv van der Merwe, I’m going to ask the Chair for a few minutes at the start, because there was an aspect of the evidence that I had neglected to lead in respect of that, and I need to indicate that. We had produced a table of a summary of judgments for the entire period, which reflected the case, the outcome, the internal and external legal representatives. And what emanated during the Public Protector's term, and which had been left over from her predecessor. We’d also during the course of the evidence reflected the timelines of the cases, the number of court appearances, the appeals in the cases dealing with in the motion. It was in the context of these cases and the mandate that we put evidence before the Committee of the cost of the cases relevant to the motion. And what we did was, after having had a conversation with the PP’s team, we had put up a globular figure of the cost of the ABSA matter, the litigation with the Speaker. And I think there was one other that I’ve forgotten now, and I indicated that I would provide further information relating to the rest of those cases when Adv van der Merwe gave evidence which was then contemplated to be within days. Adv Mpofu had then raised concerns of privacy with us. And I, in providing the figure, had not sought to make any reference to the legal representatives, who had rendered those services. He had objected to this evidence on the basis of relevance and we had pointed out to him that in the context of paragraph 11 of the motion, that stated “Adv Mkhwebane has committed misconduct by and/or demonstrated 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” and two: “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs.” That was the context in which the evidence was being put before the Committee. The Committee then saw from us a breakdown of these costs, as to who rendered the services, the attorney and the advocates. And there was a debate in the Committee about how this request was worded. One of the Members had used the word “benefit”, and another had said it should be those who provided the service and not benefitted. We understood that what was sought was how over the period from the start of the PP’s tenure, were the funds spent. And in the conduct of this exercise for the 2017 to 2022 period, I then asked the Committee, can we report on legal costs from R2 million upwards, aware that if we were to do this for every invoice over the six-year period, that this would be a mammoth task, and they would not be able to meet what at the time was days within which that evidence was going to be led. At the time Adv Mpofu’s objection was not sustained on the basis of the same principle articulated yesterday, that the expenditure of public funds is not private. I too have been the recipient of fees being put in the public domain, and so have a number of other advocates. But at the time this request arose we had already put up the evidence, indicating that of the expenditure the amount of R147 million did not all relate to reviews of reports issued by the Public Protector; it included labour matters that did not relate to review of reports. When Mr Tyelela gave evidence, the Committee had that information provided. We indicated that there were matters that commenced with the previous Public Protector that showed the outcome in those matters were pending and were either not opposed or withdrawn and there was some legal costs emanating in relation to those. We had pointed out that some of the R147 million, including fees from two of the law firms, being fees reflected in the over R2 million category, related to cases that emanated from the period of the previous PP. We also reflected that there were costs arising from other civil cases. So it was in this context, last week, that the Evidence Leaders sought to meet the request of the Committee by putting up some of the legal figures as requested, spent over the six-year period of the current PP. And we started the evidence by showing what the audited figures reflected over that period globular were. Let me be clear, there was no suggestion on the part of the Evidence Leaders that they had been looting or thieving by any of the advocates in the evidence put up in relation to the figures. It is regrettable and unfortunate that it was couched in that way when it went out into the public domain. And it would be incorrect, based on the evidence led before this Committee, for such conclusions to be drawn. We had not in providing the numbers, conducted audits of case files, or work done, and it is unfortunate that it is in the context of how this evidence is going to be led, that it is suggested that the Evidence Leaders have been off on a frolic of their own when they were doing what the Committee suggested, or that they sought to cause embarrassment to either the Public Protector's legal team or to any other legal professionals whose fees were flighted. I reiterate, that what was provided was a request to account and reflect transparently on how the R147 million had been expended; and of this, we showed the expenditure of R133 million. There was no targeting of the counsel involved. The same counsel that were briefed in some of the matters and received funds for those matters appeared in the hearing is as a consequence of how the figures came out of that exercise. There was nothing contrived about it. For further clarification, we sought to do this work by converting the work we had done on globular figures by indicating the following categories: the above R2 million category, and where there were fees marked by advocates and consultants on cases directly in the motion. In doing So we were mindful of the allegations made by Adv Mpofu in his recusal application to the following effect, where he stated... and I am going to put it in context “In spite of the above and despite valid objections based on privacy and relevance having been raised, the Chairperson has and continues to allow the wanton display of earnings by professionals who rendered legal and related services to PPSA.” By that stage, this was an objection when we had referred to specific invoices, reflecting the employment of Mr Ngobeni, we presumed, because there had been no other invoices before the Committee up until that point. He went on to say “That the intention seems to embarrass members of the present legal team representing the Public Protector. In pursuit thereof inaccurate and misleading figures have been allowed to be bandied about in the public domain. For example, the total figure of R48 million spent over a period of 5 to 6 years is portrayed as current expenditure. The Evidence Leaders have also stated that Seanego Attorneys was paid R49 million which is false. The correct figure is below R40 million, of which only about R10 million (less VAT) over a period of 5 years was earned by Seanego Attorneys and the balance was paid out to a number of senior and junior advocates handling the relevant briefs and depending on the size and duration thereof.” As a consequence, and given the instruction, we sought to put up the earnings by the law firms in the R2 million category and 17 advocates and a consultant that rendered services, and in so doing, ascertaining the veracity of their foregoing. It was not for the purpose of the evidence to dig into the earnings per person, but rather to reflect in the context of the evidence that had been led to date, and to confirm to the Committee what the situation was. When the schedule had been prepared and was flighted, it was made bigger for the Committee to be able to read the numbers and data fell off the virtual screen. As we do not go through the list of each person, it appears that what was not seen were the names of the bottom of the list provided, to including the names... and I’m going to mention it, because of certain connotations due to the absence on the list that had been flighted, being the names of the late Adv Kennedy, having been specifically liaised with us as a name we were accused of deliberately having omitted, given that he had worked on matters material to the motion; and the counsel that acted in the Tshidi matter, Adv Smith, but this was not So as their names were on the list. I had raised this because of the accusations of some sort of racism and the inference that the Evidence Leaders sought to shield white advocates. It does bear noting that for the period January 2017 to 22, from the invoices provided to us, there was only one white advocate who had earned more than R2 million and his name was on the list. Whilst the screen is an aide to facilitate the evidence in a hybrid environment, the evidence is the document itself. So let us be clear that based on the document prepared by the Evidence Leaders, there was no omission on the basis of race in the list, nor did we do this at our own bias. What we did and we take full responsibility for that, is that some of the figures provided were not correct, despite our extensive endeavours to provide an easy-to-understand way of how funds were spent and to lead that through Adv van der Merwe. We were not aware that we had made this error up until Saturday, when we were alerted that there were some errors in the figures that had been provided, and that some practitioners were aggrieved that the figures had not been incorrect in the schedule that had been prepared. And two of those advocates are here today, Adv Ngalwana and Adv Sikhakhane. Bearing in mind that we only provided the high-level amounts and not the schedules of each law firm, to do so in oral evidence would have taken us hours, in the one day that we had to provide those evidence. We then revisited these figures, and it confirmed that the version flighted was not correct. We checked all of them again, and Adv van der Merwe, together with myself over the weekend did this for purposes of correcting the errors based on the invoices provided. I then indicated to Adv Mpofu that we would place on record the errors that we had found in the version flighted and to provide the Committee with the reasons for that. Firstly, our mistake was that certain changes had not made their way into the main document, and we had found that in sharing the document in Dropbox, it did not sync the changes made. We have endeavoured to do that and deal with it, and we think we’ve now sorted out the distortion. But apart from that, and we take responsibility for this, we did find that certain errors had arisen in capturing the data from the invoices to the columns in which the different advocates names were listed. In doing So we had attributed fees to the wrong practitioner. By way of example, because they’re both sitting here, is that an amount earned by Adv Mpofu was wrongly attributed to Adv Ngalwana for a payment that had been made by Seanego Attorneys. That’s one of a few that we had picked up. There were not many, and what we’ve done is to take the document that had been flighted and highlighted in yellow the changes that we made, so that the Committee can see the differences between what was there and what we now have. We had also overlooked one of the law firms that had rendered services in the ABSA matter at the inception of the brief, being Sefanyetso Attorneys, and hence the earnings from that firm was not provided for. It was not a huge amount but it was overlooked. We did leave out some advocates who had rendered services in 2017/2018 in the matter of ABSA or Vrede. And particularly given the racism accusations and for the sake of completeness, we added them to this list marked in yellow. There are eight who at some point in 2017/2018 rendered legal services in either the ABSA or Vrede matter. Of the eight, seven are black practitioners. To the extent that Adv Mpofu, yesterday, accused us of targeting black practitioners in the way that evidence was led, I make it clear that of the eight, seven were black practitioners. The inclusion does not reflect much, given that the total doesn’t make much significant difference to the R147 million expenditure because they are accounted for in largely figures that are to be deducted as well. We have not been involved in an orchestration to come out with any sort of nefarious motive. We endeavoured to account to the Committee pursuant to an instruction. We do owe an apology. And because we have flighted it publicly, we make this apology publicly, to Adv Ngalwana, Adv Sikhakhane and the others whose fees we had indicated incorrectly. I do acknowledge that Adv Ngalwana was instrumental in bringing this to our attention. I must also point out that we still have figures... and Adv Ngalwana and I had an exchange, yesterday. My figures as provided on the invoices from PPSA still do not accord with the invoices which Adv Ngalwana has said, and there are numerous reasons why that is So not based on any nefarious reasons. Sometimes it is just an arithmetic calculation based on the fees as reflected in the attorney's invoice. Given that the errors were reflected on the screen, it appears that the only way to remedy this is to flight the revised figures on the screen. Chair, those are what I wish to place on record. In dealing with those highlighted errors, I would need to do that with Mr van der Merwe.

Adv Mpofu: Chairperson?

Chairperson: You have to, you are here, you can raise your hand Adv Mpofu.

Adv Mpofu: Oh yes, yes, thank you Chair.

Chairperson: Because you’ve already switched on your mic before you were even recognised. Let me pause Adv Bawa. Adv Mpofu?

Adv Mpofu: Thank you, sorry Chair, I’m used to raising my hand on the computer. Chair, I wanted to raise an objection, for what it’s worth. That this issue which is quite serious, should not be treated in this kind of fashion. And as I indicated earlier, my colleagues Adv Sikhakhane and Adv Ngalwana are here as Adv Bawa has said, to deal... or rather to request from you Chairperson, to be given an opportunity to deal with this

Chairperson: I’m going to ask you to do that proper.

Adv Mpofu: Yes, no, no, I will.

Chairperson: Whatever you have indicated earlier would not have been on this platform. You would have either whispered to me, so if you have to indicate something, you’re going to do it...

Adv Mpofu: No, Chair. I will, actually, you don’t need to say that. That is the something that I had said earlier, I was going to raise. I’m now...

Chairperson: That was my expectation, yes.

Adv Mpofu: Now I’m raising it in a different context now, in the context of the objection that I’m making. I’m saying that the Advocates Sikhakhane and Ngalwana, SC, are here to address this very issue. And I would request you, Chair, that before Adv Bawa does what she’s now proposing, which is to actually repeat the offence that she has apologised for, that we deal with it at the level of... giving us, or me, or them the opportunity to deal with it. And then at that stage, Chair, you can then rule whether it should be done. Because to do it again now, if it turns out that it was wrong the first time, then it means you’re going to do it for the second time, and maybe find that it was wrong, that would just be aggravation, unnecessary aggravation. So it's an objection from that point of view. From a practical point of view, Chair, if you rule after you’ve heard all of us on this issue, at least the victims of the offence, then we’ll abide by your rule, but we cannot allow it to be done beforehand, before that matter is addressed. Thank you, Chair.

Chairperson: Yes?

Adv Bawa: Sorry, Chair. The reason I posed the question, Chair, with your leave as a clarification, I’m not averse to what Adv Mpofu is suggesting. My last indication was we had been responsible for putting the incorrect figure up on the screen, which had gone out in the public domain. The only way I can see for us to correct that, is to put the correct figure in the public domain. If those for whom we had posed an incorrect figure, do not want to put that out in the public domain, then they must address the Committee on that. What is important for us as Evidence Leaders to do is to put the correct figures before the Committee.

Chairperson: Okay, now thank you Adv Bawa. I’ve heard both of you. I think that I’ll hold you back on that. Let me do this... Adv Mpofu, today is and tomorrow is scheduled as cross-examination by the PP legal team. That is the 'us' I know, there is no other 'us', because I see you speaking about 'us' and then you point towards the two legal eagles that I’ve seen here. I don’t know through which window they came through, but they are here. I was hoping that you would, and I’m going back to you... that you’re going to have to do this properly. Is there a request you’re wanting to make, or you are saying they are here to support and listen to your cross-examination? So I would not have introduced them and it was deliberate not to do that.

Adv Mpofu: No, Chair. I appreciate...

Chairperson: Because the other one... just for record. We happen to be in the same space, in another institution, so we greeted each other in that way, it will be mentioned later. Adv Mpofu?

Adv Mpofu: Yes Chair, no, we don’t want to know where you met, another place...

Chairperson: No, it’s not going to, it’s not a request on you, I will do it.

Adv Mpofu: Thank you. No, Chair. I must say I appreciate what you have done. I knew when you did not acknowledge them that you were doing it properly, because there had not been any formal issue. That's why I raised the hand earlier. I didn’t anticipate that there’s going to be an objection, which would be warranted. And maybe, Chair, if you allow me, before I do the right thing as you say. I just want to point out, I mean... as the saying don’t look a gift horse in the mouth. You’ve already made a ruling in my favour, So I don’t have to motivate after that, but...

Chairperson: I’m not sure if I’ve done that yet, but proceed.

Adv Mpofu: Well at least for now, you’ve held it back. No, I’m saying, Chair, that the... once you’ve made a ruling, I don’t need to address it, but just allow me to point out for the benefit of Adv Bawa, in particular. That the... yes, she’s right about the issue of accuracy and so on. But as it would be clear, at least from me, now. I’m speaking for myself, and my team. The serious objections we have on this, and it will also become clear when we do the cross-examination, are not only based on accuracy. Accuracy... if it’s inaccurate, that makes it even worse, but it’s about the idea of putting up people’s names in vain, without them having been consulted. So that’s why we’re objecting. We know we don’t... we appreciate the issue of accuracy which she’s trying to resolve but unfortunately that’s not the only issue. Actually, it’s a minor issue compared to the real issues here. So that’s the issue about the objection, I was just putting it in perspective. Chairperson, and again, you’re quite correct that we were talking informally before, so we need to do things on the record. As has been noted by Adv Bawa, we have in our presence members of the legal profession, members of the public, whichever way you want to look at it. South African citizens who have visited their Parliament today, Adv Muzi Sikhakhane SC, and Adv Vuyani Ngalwana SC. They are members of the Pan African Bar Association of South Africa, PABASA, and well-known advocates in South Africa, some of... the group that’s called Eminent counsel. They have asked us to request you, Chairperson, because we’re the ones that have the platform to talk. To request you for them to voice their objection, formal objection, to the Committee, via you Chairperson and to the Parliament, about the events of last week. I will, as I said, I will address them in...

Chairperson: It’s not me who’s disturbing you.

Adv Mpofu: No, it's not you Chairperson. It’s...

Adv Mpofu: They will address... I was saying, I will address the matter in my capacity as legal representative of the Public Protector through cross-examination. I addressed it yesterday, partly, so I don’t have to address you, safe to say that we... in my personal capacity, at least, I will take whatever steps might be necessary, and so will the Public Protector. But the two colleagues... and we simply want to request you. Chairperson, to be given the platform, with respect, to voice those objections, because they are senior members of the profession. There are junior counsel and attorneys that have been affected by this, quite adversely. But they are, as I’ve mentioned yesterday... but they, because of their position in the profession, they would not be able to speak for themselves, and if they did, there would be some repercussions, either on their careers, worse than what has already happened. But these two are worn-out veterans so nothing more can harm them, than as I’ve indicated yesterday, some of us are just, you know, by now, have a battered syndrome on this kind of overt and covert racism. But, Chairperson, so that is the request, really. It’s for the colleagues to speak for the people they speak for. And for us in a way, in a sense, outside of our professional engagement in this Committee, just in our capacity as the… some of the people whose names were flighted there in vain. Thank you, Chairperson.

Chairperson: Thank you...

Adv Mpofu: Sorry Chair... My understanding is that they have a statement, which they want to deliver to you formally. And then, if there’s any engagement, it can follow. Thank you. Sorry, Chair.

Chairperson: Thank you, Adv Mpofu, for that impromptu request you’re making. I think the first thing that I must do, you having said what you’ve said, is for me as the Chair on behalf of this Committee. First, to welcome Senior Counsel, Muzi Sikhakhane, and Senior Counsel, Vuyani Ngalwana, for being present here. And having introduced them, I deliberately did not do that, because I didn’t know. I was later, if they were here in support, was going to acknowledge them as such. As you have been supported even by ombudsman from Kenya and Zambia and so on. I am hearing your request, and I'll try to insulate the two Senior Counsels from this, because I don’t think that from listening to you, it is clear in which vehicle they came here, that you’d have been the driver of that vehicle, to bring them here. To start with...

Adv Mpofu: No, I was not.

Chairperson: I’m not asking you to respond, Adv Mpofu.

Adv Mpofu: My apologies, Chair.

Chairperson: So that’s the first thing, because you make an important point that we are running an Enquiry. I would have indicated to you yesterday the importance of respecting the time of the witness, which we did yesterday. I do want to remain consistent in that, but also to indicate that, as the Committee, we would have no problems in listening and hearing any concerns that people will raise with us, especially if it pertains to the work that we’re doing, that we have been charged to do. What, where we will... I will have to come back to you, because you should have known this better, and I know you know it, that in this Committee, this is day number 33 or so of witnesses. There would have been quite a number of names that would have been raised here, as part of this Enquiry. Some would be aggrieved by the fact that their names were raised here, and it is our responsibility that we don’t close our ears and eyes. We must be able to hear them, and we must be able to see them in the issues that they raise, whether it’s a discomfort they have. And in fact, it is our intention that, and let me make one practical example, when we dealt with the issue of the recusal of the Evidence Leader, Adv Bawa, we would have received a formal correspondence from Barnabas Xulu Attorneys, who wrote to us - and that is a proper thing to do, who wrote to us to say “in your Committee, these issues were raised”, “I register as BXI” - I’m just shortening that. “I register our concern and discomfort and we want clarity...” and we have responded to Barnabas Xulu Attorneys, correctly, in that way. And we would even be open, if at some point, he makes a request that “I want to address you as a Committee”. There is no way that this Committee of the National Assembly, this Tribune of the people, would refuse to hear such. I’m making that point and I’m sharing that example, Adv Mpofu, to say that’s what I would expect. As I sit here, I do not have that registered with the Committee, to say “we’ve got this difficulty, we have a heavy heart about what comes out of your Committee, and we’d want to raise this”. So I think it’s important that I put that upfront, because we have to do things sustainably. I can’t be having rules that apply to this and not apply to the others – that if many that would have their names raised might not have the opportunity that the two legal eagles that I respect had, that would come through that door, through you, but they would also want to raise certain things. So with that, I want to indicate the following, Adv Mpofu, in dealing with this, that... and the Committee can put me around the neck on this, that I would still request that both senior counsel put their concerns fully in writing, because the concerns they have, we would be interested as the Committee, even when we deliberate on the evidence that has been placed here, to consider those issues. I would urge that they do that formally, they put that in writing. And if there is a further request on their side, to say, “we’re not only putting in writing, we want to make the following points to you”, I would encourage them to do that. Now that we find them in the room... I don’t know whether you want to stop me Adv Mpofu?

Adv Mpofu: No, no...

Chairperson: Please switch it off.

Adv Mpofu: Sorry, Chair. It’s a mistake.

Chairperson: Thank you. Now that we find them in the room...as the Chair of the Committee... you know, as the Chair I’m being hijacked, but I don’t see myself in danger by the hijacking. You’re being… this Committee is being hijacked. It might be something that will help the Committee but it is a kind of hijacking. And Adv Mpofu, you are responsible for that...I’m going to repeat this point.

Adv Mpofu: Chair, I don’t want to interrupt. How do you know that?

Chairperson: Don’t interrupt, please. You’ve just introduced them... Thank you, so don’t deny that. Just put it on record, that you introduced them...

Adv Mpofu: Chair, you’re being unfair, but I’ll respond later. I don’t want to interrupt you.

Chairperson: There’s no need for a response for that, Adv Mpofu. I’m going to ask that that be done because I respect the time of the witness. There is no way that we would allow an unplanned situation like that, and open that door that I would not be able to close for any other who might have been aggrieved and have concerns about that. And I’m saying the Committee can beat me on this, but as a Chair, I want as courtesy to ask both the Senior Counsel Sikhakhane, and Senior Counsel Ngalwana... Adv Mpofu, please switch off the mic.

Adv Mpofu: Oh, okay Chair, but you’ve noted me.

Chairperson: I do not appreciate now that... I’ve asked you several times.

Adv Mpofu: I promise you, Chair, the... I didn’t see it was on. It’s the same as Adv Bawa, told you the same thing, and you appreciated it then.

Chairperson: Adv Mpofu, I don’t think you need to go there.

Adv Mpofu: No, you're the one who’s going there. I'm telling you; I pressed the thing by mistake.

Chairperson: Several times you just pressed the mic for no reason.

Adv Mpofu: Yeah, but I pressed it by mistake. Have you ever not done a mistake in your life?

Chairperson: The mistake is accepted.

Adv Mpofu: Thank you.

Chairperson: Please switch it off. Thank you. I was indicating, colleagues, that I think for courtesy I’m going to ask both Adv Sikhakhane and Adv Ngalwana – and I would have indicated that I want to insulate them from the points that I’m making – that having asked them, even after this, to formally put things in record, and in detail. That now that they are here, unless you have a problem with that, I do want to ask them, in few minutes, collectively ten minutes maximum, to only register the point. With the hope that you will follow, as I have indicated, up in writing your concerns, so that Members of this Committee have that. I wouldn’t want, even though I find you here, to just say please leave the room. I think it would be fair that I ask you to register the point on record, and then you would follow that up. And we would be amenable as the Committee to further listen to that. Members of the Committee would you have a difficulty with that? Hon Mulder?

Dr C Mulder (FF+): Thank you, Hon Chairperson. I think that it’s a fair ruling, but I want to ask that you strictly adhere to the time that you have given. We don’t want our platform to be hijacked, or attempted to be hijacked, we’ve got a different programme for today. Thank you.

Chairperson: Thank you, Hon Mulder. Hon Zungula?

Mr V Zungula (ATM): Chairperson, I think it’s a good proposal. Let them register whatever they need to register. Thank you, Chairperson.

Chairperson: Thank you, Hon Zungula. Hon Gondwe, and Maneli. Then I go to...

Dr Gondwe (DA): Chair, my only concern is that we’re setting a precedent, that tomorrow someone else can show up here and say “my name has been bandied around in this Enquiry”. I don’t want us to open a door, that tomorrow, we’re going to find difficult to shut. I just wanted to put it out there that let’s be careful about the precedent that we’re setting. Tomorrow we could have... and this is an example, Mr Ngobeni, Paul Ngobeni, coming in and saying he also wants to register his concerns about what’s been said about him here. I don’t want us to open the floodgates, if I may put it that way. So I'll just question that. Thank you very much.

Chairperson: Thank you, Hon Gondwe. I will respond to that because I have addressed it in my comments. Hon Maneli?

Mr B Maneli (ANC): Thank you Chair. I think we agree, also with the ruling you’ve made that for the future, this is what would then happen. I think for me, it’s like Hon Gondwe was reading my mind, about precedent. I think the precedent will be the ruling you’ve made, that for the future, this is what would happen. But you’ve also recognised that this is a people’s Parliament, and it would be wrong to just act as though people were not here. So I agree with that ruling. Thank you.

Chairperson: Thank you, Hon Maneli. As I go to my two Senior Counsel. Just to make the point, that even in Committees of Parliament, we have a particular approach we apply. There would be early warnings for requests and all of that. But I have indicated that in anything else, we’re going to say the two are insulated, and I repeat that point. That when they speak... and it goes to this issue of the precedent, Hon Gondwe, because I would have attended that it’s important that, as a Chair, we allow and hear the Senior Counsel out. Thank you very much Hon Members for that. With that, I will respectfully recognise, I don’t know who, which one wants to start...

Adv Mpofu: Chair, if you can allow me to speak first? Just on some point before they speak.

Chairperson: I will allow you after, Adv Mpofu. I don’t want any responses to what had been said. Thank you, Adv Mpofu. Senior Counsel, Muzi Sikhakhane, I recognise you and the platform is yours.

Objection to evidence led on 2 November 2022
Adv Muzi Sikhakhane, SC: Chair, thank you very much. We would like to thank the Committee. We know how important your work is and we apologise for coming this way. We did so because of the gravity of what Ms Bawa did, and maybe members of the Committee do not understand the gravity of what she did. We thank you for allowing us to do it this way. And we apologise that it looks like a hijack. We had no other way of doing this, because the gravity to black professionals who are junior, who are women, is great. That’s why they are not here. Chairperson, our appearance is indeed an extra ordinary occurrence, and we will give you a written statement that we have. And for that, as I said, we thank each and every member of this Committee in Parliament. We know you're tasked with a very important matter and to the extent that you will be required to make your decision, we are here to correct a distortion that occurred here last week. We appear before you today in order to assure you that we support the call for accountability, because it’s public funds we’re dealing with. But we reject the notion of perpetuating a stereotype against black people, because this Parliament was established to vanquish those stereotypes. Ms Bawa is at the heart of doing this as a colleague. And she’s not doing it for the first time, by the way, if I can tell the Committee, not here, elsewhere. We are here therefore to alert you that people like Ms Bawa, our colleague, can abuse a good process like this, for purposes that this Parliament was not created for. This very unfortunate event, which happened last week, the manner and content of the supposed evidence of the PP Office expenditure on legal fees point to a clear pattern. Chair, we chose today because Mr van der Merwe who's the witness, is a man with whom both of us consulted recently. And not once did he alert us that this would happen to us. Chair, consistent with the most common mischief and racist perpetuation of a stereotype against black professionals, Ms Bawa knowingly and purposely in our view brandished our names and without any context to the public, read out alarming figures of monies we're supposed to have made. Almost giving the impression we were looting the system. She knows that counsel, in our referral profession submit the fee notes to the instructing attorney for payment for legal fees, for legal services actually rendered. counsel is not given money by the client. So why did she try to create a direct correlation between the person of the PP and the fees paid out by instructing attorneys to specifically selected counsel. Of what discernible value is it to this Committee to know that a black advocate was paid R1 million for legal services in 2019, under Adv Mkhwebane, if a white advocate was paid the same amount or more in 2015 under Madonsela? We want to state categorically that we really reject Ms Bawa’s intended theory to portray black professionals as corrupt. We reject as unprofessional conduct to use her position in front of this very important place called Parliament. To project that the figures that were put up were simply funnelled to us by Adv Mkhwebane. We want to state that we work under very testing conditions and our juniors who are not here, because they fear for their lives, because they’ve been told that they are corrupt by their family members. We are here to correct not the figures – but the fact that accountability for public funds could have been done without flighting our names. Without telling the public that money was funnelled to us. A person we regard as a colleague did what she did last Wednesday, as I said. Knowing full well that the public and indeed some of you, may not be aware that some of her figures are wrong. She has acknowledged that and that she omitted the important context of the period over which these figures were accrued. Even if they are accurate, in focusing on the figures, she omitted to explore the precise nature, the complexity, the importance of the value of the legal services actually rendered. Whilst perpetuating a stereotype that our services as black professionals are of no value. She’s never going to tell you how much she has made sitting here, and how much she made in the Mokgoro matter, because we must be projected to the public, our people, in a particular way. Ms Bawa hung us out to dry, in an attempt to perpetuate the stereotype. A far more useful comparison for purposes of this process, I venture, would have been the legal fees, if we really want openness, paid to each of the white advocates and white law firms that render services to all Public Protectors, regardless of who they are. To simply say the budget for legal fees was lower than, is no answer. What fees were actually paid to those white advocates and firms, and what was the nature, value, performance and complexity of the work they did. This character assassination in our view, even if it was not her intention, that was what we’ve been subjected to, since her statements. Since this was published, what large sums of money has she herself sitting here? And she’s not doing it for the first time. In the case of Barnabus Xulu, in the High Court, she did the same. So the apology is not accepted for that reason because it’s contrived. Like all stereotypes, Ms Bawa tried to impute to nature the difference between black and white, by selecting us in a poisoned context and theory of abuse of state funds, that she sought to sell to you. She throws the names of selected black advocates in order to ride on the old racist stereotype that black is corrupt, which we reject. Whether she intended it or not is irrelevant. She did this with the full knowledge that she had outside in the media space, fertile ground in the Daily Maverick that now characterises our fees. Not as having been earned for legal services rendered, but as moves... as money having been funnelled to us through Adv Mkhwebane, which is not true. Her theory seeks to use this important process, our process, the Parliament of our people. She uses it to perpetuate an old racist stereotypes against Africans. She knew full well that this would be the outcome. She knew full well. She’s aware of the... the terrible conditions of our own African advocates, men and women who have to fight and vanquish old stereotypes. Ms Bawa’s presentation of her evidence of the Public Protector’s legal fees spend could have been done differently, without putting us under this. Chair, there’s so much we can say about this. I’m here representing myself and the four silks, all of us, and the juniors who can’t come here, because they have been presented out there, yet again, as people whose services are of no value, and they were picked, because they are supposed to be black and corrupt. From our vantage point, it is hard not to conclude that this is what she intended. Her cruelty and hatred of us as her colleagues should not find space in this august House. Our own fighters, colleagues, should not come here. Chair, as I’ve said, eventually, because the media space is fertile, is always fertile to perpetuate anti-black narratives. Our names were hardly off the screen and we were splashed in the Daily Maverick as “RET tricksters” and foes of the Constitution. Again this is an inevitable result of the reckless handling of potentially ruinous evidence by Ms Bawa. Chair, because I will give you the entire statement that we have. I want to end by saying this. This apparent ineptitude in her handling of evidence last Wednesday or Thursday, such as lack of experience, maybe, but I wouldn’t go there. I think it suggests disrespect for this House. And we want to say to you, although she has corrected this, for the future, we think our names were used in vain. She has caused great pain. We do not expect this Parliament of our people to be used to perpetuate pains we’ve gone through for generations. And we ask that this Committee notes this. The whole statement in a written form, Chair, is here, and I will send it to you. But lastly, Chair, I want to raise this again to the Members, we’re very sorry that we came this way. We’re very sorry Chair, that I know you for a long time personally and I respect you. It was because of the gravity of the situation. And we did not know if we approached you outside this process, whether we would not compromise you. It’s only for that reason. It was not a hijack. Thank you, Chair.

Chairperson: Thank you, Adv, Senior Counsel, Sikhakhane. You’ve exhausted that 10 minutes in the... in what you’ve just made... Yes?

Adv Sikhakhane: I just wanted to say Adv Masuku SC would have been here with us as well. She's one of the four silks that had thought they should come here, because they could handle this, for our black juniors, who can’t. Thank you.

Chairperson: Okay. Thank you, Senior Counsel Sikhakhane. I suspect therefore, Senior Counsel Ngalwana, he also spoke on your behalf. Unless you want to just say something?

Adv Vuyani Ngalwana SC: Thank you, Chair. Nothing to add.

Chairperson: Thank you, Senior Counsel Ngalwana. I have directed that the matter be registered, it will not be for discussion. We take note of what you’ve presented. We're going to wait, as I've indicated, the formal written concerns being placed, including that statement. I need to immediately say that, having listened to you, in accepting this and we certainly as a Committee, as we approach the deliberations are going to get into all of this. Members are still going to be asking questions, after the cross-examination. And so you’re registering the point is not going to get lost. There will be that opportunity. There will also be the opportunity for the deliberations into this. But I do want to say, as a Chair, so that it’s important that that point is registered. It’s registered not to take away anything in terms of the content you have placed in front of this Committee. That this Committee designated, as a pioneering process, what we call a hybrid process of Members of the Committee leading the charge, but with the external expertise in the form of Evidence Leaders. And for that the work they do is not to be confined to Adv Mayosi and Adv Bawa. If they do work on behalf of the Committee, I would fail in my duty, therefore, not to make that point and properly defend Adv Bawa. That this is not Adv Bawa’s issue. Adv Bawa is placing on record, as she would have done from day one of witnesses' evidence she thinks that the Committee must know and deliberate on. And it is this Committee that is going to determine whether the kind of evidence put in front of it is going to assist it. Assist it in terms of the two possible outcomes that we have. The two possible outcomes, the first outcome is that this Committee will conclude and say Adv Mkhwebane is fit to hold office and that she would have come and exonerated herself, that’s the first possible outcome. The second one is that this Committee might make findings for her not being fit to hold office. There's no middle. This is process is not going to end in the middle, with neither of these. And we’ve been very mindful about that, that this is what we need to do. So I do want to make the point, and I can see Adv Sikhakhane, the issues come a long way. We do not become collateral damage as the Enquiry, in terms of historical issues that in a very short space you wanted to place. Hopefully when we give you that proper opportunity, things will be kind of ventilated further. I really wanted to make that point. I can sense how you feel, but I think it’s proper that as the Committee, we place that on record. That there would be no issues, as a Chair. Yes, I’m a Chair of this Committee. There are no Adv Bawa issues, in leading evidence, together with Adv Mayosi. So those are the matters that we’re going to deal with. That's the first point I wanted to make. And thanking you for presenting your points. I would insist that we respect and are open. And there are going to be more coming because in the nature of the report we're going to do, it’s going to be such a transparent process. We’re going to do a report and ask everybody else to say what they think about this report including the Public Protector, so we will remain that transparent. But as you would also know that there are limitations in everything that we do, as enshrined in the Constitution. So thank you very much for what you have presented. We will certainly take note and engage with it ourselves as Members of this Committee. And as I asked Members, we are not going to engage with that presentation, so that I do not keep you any longer, having registered the point. Thembinkosi Ngoma is the Committee Secretary – because what you have done now is not complete, there’s a follow-up that needs to be made so that things are properly on record. I want to thank you. Thank you very much.

Adv Sikhakhane: Thank you, Chair. May we be excused? I've been accused of walking out before, so I want to just check. Thank you.

Chairperson: Well Adv Sikhakhane we saw you walking out, yes, as we saw Adv Mpofu walking out. So you’re excused.

Adv Mpofu: Chair, don’t start.

[Laughing]

Chairperson: Oh, sorry. Adv Bawa? Sorry, just before you...

Adv Bawa: I didn’t want to say this after they’ve left so can I just have an opportunity to say this... I don’t want to delay the process by having a tit for tat in responding. But I will reserve my rights...

Chairperson: It’s only fair... that I hear that.

Adv Mpofu: Chair? I’m not stopping you, but you said you’re going to recognise me, but that’s fine.

Chairperson: But that has not changed.

Adv Mpofu: Okay, thank you, Chair. Adv Bawa?

Adv Bawa: Sorry, sorry, Chair. I don’t want to delay the process for Committee reasons today, but I do reserve my rights in respect of what had been said today.

Chairperson: Thank you, Adv Bawa. Adv Sikhakhane and Adv Ngalwana, you are excused. Thank you. Adv Mpofu?

Adv Mpofu: No, thank you, Chair. I also don’t want to delay you further. I just wanted to point something out. Firstly, thank you, Chair, for making that indulgence. As I say, I’m not speaking in my capacity as one of the people on behalf of whom they were speaking. But back to my current hat, I just wanted to say that if you allow me, Chair, to explain the... because there’s some issue here, about not setting a precedent and all that. And to say why I made the request in the form that I made. I’ll do, I won’t motivate. I’m just going to read Section 59 of the Constitution, which says the National Assembly must “facilitate public involvement in the legislative and other processes of the Assembly and its committees” including this one, and “conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken - to regulate public access, including access of the media, to the Assembly and its committees; and to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person”. Two, “The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.” That’s all I want to say, thank you.

Chairperson: Thank you, Adv Mpofu. What you’ve just pointed out is very correct. That's also our understanding, but that section of the Constitution would not deal with the procedures of how that is made possible. Because you then need to have procedures and arrangements to enable...

Adv Mpofu: Yeah, the Constitution is supreme to those so-called procedures.

Chairperson: Yeah, so there would be rules and regulations to allow for... to effect that spirit. Thank you for that. Just before I go back to you Adv Mpofu for the cross-examination. I just want to indicate to Mr Cornelius van der Merwe that you... please unmute.

Mr van der Merwe: Yes, sir?

Chairperson: That you remain under oath. And I will quickly ask Adv Bawa, as requested, to complete placing that matter on record with you. Adv Bawa?

Adv Bawa: Chair, I am now in your hands, because for me to correct the errors that we had made on the numbers, requires me to deal... can I just check with Adv Mpofu? Are you going to legal fees today? Maybe you and I can have a chat over the lunch adjournment?

Adv Mpofu: No, actually that’s a good question. No, I’m going to leave that area... well, not the numbers. I’m going to deal with it properly.

Adv Bawa: Okay. If we not dealing with the numbers today, can we agree that we defer this until we have a conversation?

Adv Mpofu: A discussion? Okay.

Adv Bawa: Okay. Chair, then there’s only one aspect that I need to deal with Adv van der Merwe, on the understanding that I may need to come back to the corrected numbers, with Adv Mpofu’s consent. This goes to the document that we’ve put up. It’s the extended NVM 14, the revised reporting data. If you could just put that on the screen. Adv van der Merwe, if you recall, we had taken you through the schedule reflecting the amount of new cases, total cases, et cetera, and the number of reports that the Public Protector had completed for the period in question, do you recall that?

Mr van der Merwe: That’s correct, Chair.

Adv Bawa: Right, there was a second table on the page, that again because of us making the numbers bigger for purposes of sight, didn't show up and I completely forgot to take you to that table... Just give me a second...

Chairperson: Okay.

Adv Bawa: Adv van der Merwe, before we put it on the screen, can you explain when we talk about formal reports, what the difference is between that, and the actual number of complaints lodged?

Mr van der Merwe: Yes, formal reports are reports that are issued in terms of section 182(1)(a), (b) and (c). It's reported with a finding and a remedial action. It includes what we call “closing reports” that are signed off by the Public Protector as final reports. These days, it also includes what we call advisory reports that Adv Mkhwebane has also started in her tenure. So it’s all the reports signed off by the Public Protector.

Adv Bawa: Right, and you’ve previously testified that this doesn’t include provincial reports that are issued, that are not signed off by the Public Protector, correct?

Mr van der Merwe: Provisional reports?

Adv Bawa: Provincial, provincial.

Mr van der Merwe: Provincial, yes, closing reports are signed off at executive management and management level, yes.

Adv Bawa: And it is the reports that form the subject matter of court applications?

Mr van der Merwe: Yes, the majority of... sometimes it would be like...about jurisdiction. But most of the review applications is for the additional review of formal reports, yes.

Adv Bawa: Right. Maybe if you can make the second table bigger. Can you explain this to the Committee, Adv van der Merwe?

Mr van der Merwe: Yes, thank you, Chair. These are... if you just go to the dates first, on the left-hand side. These are the number of what we call formal reports that have been issued by the Public Protector, Adv Mkhwebane. And you’ll see that 2016/17, we’ve got a total of 17 actually on the total right hand corner, because seven were still issued in the tenure of Adv Madonsela.

Chairperson: Mr van der Merwe... Mr van der Merwe?

Mr van der Merwe: Yes, Sir?

Chairperson: We’re going to have a long day. I’m going to ask you, that your reposition yourself so that we can properly hear you. You’re fading and your voice is very low, so we’re not able to catch everything you say.

Mr van der Merwe: Apologies for that. I’ll be closer to the mic, as close as possible.

Chairperson: That’s much better.

Mr van der Merwe: Yes, I apologise in advance for being so close to the screen. If we can go back to the screen. I'll also try and speak up. These represents the total number of formal reports issued by the Public Protector for the last six years. The first batch is split between Adv Mkhwebane and Adv Madonsela.

Adv Bawa: Sorry, Adv van der Merwe, can I just interrupt you there? Just for clarity. That's because it’s midway through the process that Adv Mkhwebane comes into office, correct?

Mr van der Merwe: That’s correct in October 2016. And these reports reflect the reports released in financial years. So from the first of April until the 31st of March, so there will be an overlapping period of approximately six months. The reports reflecting for 2016/17: 10 formal reports were issued by Adv Mkhwebane; 2017/18: 34; 2018/19: 46; 2019/20: 137; 2020/21: 73; 2021/22: 112. And we do not have figures yet for this year, as we are in the midst of the year. Of those formal reports then, on the right, next column “C” is the number of closing reports of the total number of reports. It’s not additional, it’s how many of those reports were closing reports. It’s two for 2017/18; 2018/19: six; 2019/20: 21; 2020/21: 24; and 2021/22: 23. Then column D is the number of reports from those years that have been set, reviewed and set aside on judicial review. It's three for the 2016/17 year. Five for 2017/18. Eight for 2018/19. Twelve for 2019/20. Three for 2020/21. Three for 2021/22. And two so far for 2022/23. And then one closing report has been set aside, but that’s also the subject of the rescission application in 2021/22. Then column F is the number of pending reviews that were opposed at the times, some of them have been reconsidered, but in total it is 24. then we also have 23 unopposed judicial reviews, of the reports released in those years, where the subject or are the subject of those reviews. It is dealt with in more detail in the column in the schedule dealing with judgments and judicial reviews. Thank you, Chair.

Adv Bawa: This was the position at the time we had prepared this table. And although the position with reviews pending and opposed and unopposed have changed since then, we will if the Committee requests, provide an update, if that’s required. But I just want to put into context, that this was the schedule at the time we prepared this in this financial year. All the data up until March 2022 would remain unchanged. There may very well have been more reports reviewed and set aside since we had looked at this data. Is that correct, Adv van der Merwe?

Mr van der Merwe: Yes, that’s correct, Chair.

Adv Bawa: Okay. Thank you, Chair. And thank you to both Adv Mpofu and yourself for the indulgence. I’d forgotten to do this last week.

Chairperson: Thank you Adv Bawa, for placing those matters in the manner you did. Colleagues, just to make sure we manage the processes properly. I’m going to ask that we take and early tea, for 15 minutes. So we don’t interrupt the cross-examination; that it is able to flow from that point to lunch time. We’ll take a 15 minutes break, and be back at twenty-five to twelve. And we resume the cross-examination. Thank you, Colleagues, it's the tea break.

[Break]

Chairperson: Welcome back. Mr Cornelius van der Merwe, are you there?

Mr van der Merwe: I'm here, Chair. I increased the volume of the input to my microphone. I just want to make sure that it’s not disturbing because it exceeds the maximum level.

Chairperson: I’ve been advised that it’s better. Thank you. Thank you, Mr van der Merwe. We now will resume the cross-examination, and I hand over to Adv Mpofu.

Cross-examination of Witness: Mr van der Merwe

Adv Mpofu: Thank you, Chairperson. Good morning, advocate.

Mr van der Merwe: Good morning, counsel.

Adv Mpofu: Yes. Can you just start by giving me your qualifications. What are your qualifications?

Mr van der Merwe: Chair, it’s B Juris, Dip.Legum and LLB.

Adv Mpofu: Okay, and are you an admitted advocate?

Mr van der Merwe: Yes, I was admitted in 1994, Chair.

Adv Mpofu: Okay, but you’ve never practiced?

Mr van der Merwe: Not civil practice, I was a prosecutor for three years, Chair.

Adv Mpofu: Pardon?

Mr van der Merwe: I was a prosecutor for three years, but not civil practice.

Adv Mpofu: Okay, when were you prosecutor? What year?

Mr van der Merwe: 1987 until 1989, Chair.

Adv Mpofu: 1987...Okay. And since then, you’ve been mainly in the public service, generally?

Mr van der Merwe: Yes, Chair. I started on 1 January 1985 in the Department of Justice. I was moved to… the NPA was still part of the department in 1987. I continued in the Department of Justice head office after completing my national service, until I was seconded to the Public Protector on 1 January 1997.

Adv Mpofu: By national service, you mean serving in the South African Defence Force?

Mr van der Merwe: Police service.

Adv Mpofu: In the police service. Okay, I see. Were you conscripted?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: I see... I don’t know these things. You had... how did it work? I don’t know how it worked in the apartheid era. Did you have a choice to either go to the police or to the army?

Mr van der Merwe: No, we were conscripted to the army and then the police would recruit us, and I was recruited to the legal services of the SAPS.

Adv Mpofu: I see. If you put it in my language, you get conscripted into the defence force and then you’re kind of seconded or moved to the... but it’s still the so-called national service.

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: Okay, which division of the police were you?

Mr van der Merwe: Legal services, head office.

Adv Mpofu: In Pretoria?

Mr van der Merwe: That’s correct.

Adv Mpofu: Alright, under which Minister? Vlok?

Mr van der Merwe: I can’t say that I recall, Chair.

Adv Mpofu: It’s 1987, it must have been Vlok. I know, he detained us. Alright, and... now, let’s now move to... you’ve said that, just to situate this. I'm going to do a few contractual issues. So that’s fine with your qualifications and experience. Now, you’ve also testified that you had no issues with the Public Protector, you get along with her?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: And she has been described here by other employees as hard-working and results driven. Would you agree with those?

Mr van der Merwe: Yes.

Adv Mpofu: And the witness yesterday described her as soft-spoken, although she insists on her deadlines, would you agree with that as well?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: She’s not a rude person?

Mr van der Merwe: I have seen her lose her cool on a few occasions, but generally not a rude person, yes.

Adv Mpofu: Yes. No, Fine. Yeah, no, no, I understand that. You’ve seen her losing her cool like all of us, but she’s not rude?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: And you have said... I’ll come back to this. As I said, I'm just flagging the issues now. You have also said that she made a, what one may call an unprecedented dent on the backlog, which is a longstanding issue, correct?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: You have served under how many Public Protectors, all of them?

Mr van der Merwe: Four. Yes, Chair.

Adv Mpofu: That would be Adv Baqwa, Adv Mushwana...

Mr van der Merwe: Adv Mushwana, Madonsela and Mkhwebane.

Adv Mpofu: Adv Mkhwebane. Okay.

Mr van der Merwe: Adv Mkhwebane.

Adv Mpofu: Yes, yes. And, again, I’m not putting up the figures and all that, at this stage. But your experience is that until she was out of the office, the backlog was at its lowest ever, correct?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: And Ill deal with this, it’s not fair to ask you now, I think it’s better when the figures are up. You don’t have to comment if you can't, without the figures up. But on my extrapolation of the drastic... what you’ve called the drastic reduction in the backlog. I think it was at some stage in her tenure standing at something like 1.9 or something with 2.9. but my extrapolation was that the next figures it could have even been at zero or even lower, in the hundreds, let’s put it that way. Would that be fair or would you rather do that when we deal with the figures?

Mr van der Merwe: Yes, it would be difficult to speculate. I’ll address it or I can speak to the figures, Chair.

Adv Mpofu: Yes, but what you can confirm, it was on a serious downward trend?

Mr van der Merwe: Yes, Chair. As reported in the annual reports as well.

Adv Mpofu: Thank you. You also made quite an important observation regarding the factors, then let’s call them the negative factors that affect output. And I think you mentioned the obvious issue of the lack of budget, or sufficient budget, correct?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: And then, of course, the issue of staff turnover, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Issue of training as an impediment. And of course, there’s the issue of poor performance.

Mr van der Merwe: I have a different opinion. I have to qualify that as just a blanket statement of poor performance. Chair, as I tried to explain in my affidavit, it’s my opinion. If you want me to venture into that, I can explain how I perceived it.

Adv Mpofu: Yes, but okay. Why do you want to explain that one and not the others? The reason I’m starting with it is exactly because you made a remark, which I don’t know where you got it from, that I suppose it was directed at the questions that we have put, where you were saying that we bandied about the theory that everything was about poor performance. I just wanted to disabuse you of that. Because since we’ve started here, we’ve acknowledged that there were several factors. And that poor performance was just one of them. But anyway, so do you accept that, at least from me, that our standpoint is not that everything must be piled on poor performance. But that it's simply one of the factors, like in any other organisation.

Mr van der Merwe: Yes, I would acknowledge that performance issues we also contributory factors.

Adv Mpofu: Thank you very much. Okay, then at least you and I have cleared that, because I thought you were accusing us incorrectly. It's... I think one of the analyses made by one of the COOs actually listed about four or five factors. So you do confirm that there were other factors? And maybe let me assist you, the reason why, maybe we looked like we were focusing on poor performance is because that’s... as Ms Thejane confirmed yesterday, that’s one of the areas that is within the control of the Public Protector, unlike for example the budget. Do you understand that distinction?

Mr van der Merwe: Yes, I call it the variables that were... could have been attended to, yes, like you said within the control of the leadership.

Adv Mpofu: Alright, so between you and me at least we have cleared that, that we not accusing every trouble that happens at the Public Protector's Office to poor performance. Neither are we saying that people are all poor performers. We’re simply saying it’s one of the factors. So are you and I on the same page on that?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: Thank you. You've never been intimidated by the Public Protector?

Mr van der Merwe: Sorry, the word “intimidation”? But no, I’ve never experienced a negative incident with the Public Protector myself.

Adv Mpofu: Okay. You've never been victimised by her? Or harassed?

Mr van der Merwe: Again, I wouldn’t know how to contribute to the definition of “victimisation” and “harassed”, but as I’ve said, I haven't been the subject of any conduct that would be aligned to those kinds of descriptions.

Adv Mpofu: Those kinds of connotations, they are broadly speaking. I'm not asking for technical definitions, correct?

Mr van der Merwe: That’s correct, sir.

Adv Mpofu: Thank you. You never... the Public Protector never asked you to call her Madam?

Mr van der Merwe: No, Chair.

Adv Mpofu: Okay, those were some of the things we’ve heard here in this Enquiry. Alright. Now, in fact, from… and again I’m not getting into that issue now, but I’m asking it in a different context. From the exchange you had around the... recommendation or unfinished document… you remember the document regarding the Reserve Bank matter, let’s call it that. My question is, you remember that document?

Mr van der Merwe: That’s correct.

Adv Mpofu: Now my question is from the exchange you were, for example, cautioning against using a document whose origins are from a political party and so on. And the Public Protector’s response was that she had noted your concern. It looks like you were able to communicate at that level, you know, without expecting to be fired, just because you have a different view. Correct?

Mr van der Merwe: Yes, that’s correct, Chair.

Adv Mpofu: And would that have been an exception, or generally how you experienced that? Obviously, she had some strong views, but it didn’t mean you couldn’t offer a different view, correct?

Mr van der Merwe: Yes, Chair. There would be difference of opinion on some levels, but my job is to advise and assist the Public Protector and I try to stay true to that objective, and I didn’t find any impediments to that.

Adv Mpofu: You’ve never found any impediments, or being forced to agree with something that, for example, you may not agree with, correct?

Mr van der Merwe: There has been instances where the Public Protector has been very insistent on how she wanted things done in respect of investigations. But we’ve always tried to put our views as objectively as possible. I can refer to one example. But it’s not the subject of the Enquiry, so...

Adv Mpofu: Okay, Adv van der Merwe. I understand that, don’t get me wrong. I’m not, I’m not... believe me, I’ve been a CEO before myself. So I’m not questioning the fact that she might have overruled you and that’s what people in leadership do and might feel that you are still right and so on. I understand that, or that she might insist on something and do it her way and so on. All I’m saying is, you yourself never felt that you couldn’t express that different view, whether it would be carried through or rejected, that’s a different matter. Do you understand where I’m coming from?

Mr van der Merwe: Yes, Chair, and I agree.

Adv Mpofu: Thank you. Now can we just go back to your career at the Public Protector’s Office, the most recent part. You said that... okay, when was your first association with the legal department, and can you just describe it for the Committee?

Mr van der Merwe: What do you mean by association, Chair?

Adv Mpofu: I mean, okay, I’m assuming that you came from all sorts of other different backgrounds, or were you always in the legal department?

Mr van der Merwe: In the Public...

Adv Mpofu: Let me put it like this, Mr van der Merwe, just to make it easy. Just tell us briefly, without getting into detail, your career path up until now in the PP’s office.

Mr van der Merwe: Yes, Chair. I was appointed as a senior investigator in January 1997. I became the manager of knowledge management and research in 2010. I was appointed to the position of Senior Manager: Legal Services on 1 August 2022.

Adv Mpofu: Okay, a few months. About two, three months ago?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: Alright. And... are you registered with the Legal Practice Council?

Mr van der Merwe: No, Chair.

Adv Mpofu: Do you intend to?

Mr van der Merwe: Well, I’m learning fast and I’m enjoying what I do. We will obviously explore that because currently it is an obstruction for us opposing matters internally, which is part of the objective of having internal legal services. So if I will find the time, we will engage them I guess on that. It’s not something that I’ve thought about extensively. I did say to one of the colleagues that we want to try and enrol in Legal Practice School.

Adv Mpofu: Okay, yes. No, I think that’s a good idea. And I’m relating it to one of the issues raised in evidence, that... which I think is a very good idea, by the way. That you had intended that some of the, I should assume, some of the smaller matters can be handled in-house by yourselves, as the internal legal people, correct?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: It was in that context that Mr Sithole used to appear, to save cost on matters where he did not necessarily need external expertise, correct?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Until somewhere in the Northern Cape, it was pointed out that he would have needed to be properly registered, I suppose with LPC, like all other people who appear in court and have right of appearance, correct?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: But from what you’re saying, you haven't abandoned the idea of doing some of the work internally as part of the cost saving intentions that Mr Sithole indicated, which are also reflected in the legal strategy, correct?

Mr van der Merwe: Well, I haven’t pitched it back to leadership yet. At the moment we are just restructuring to deal with those matters that have been dealt with internally. And in the months to come, we will look at how we will diversify and restructure our legal services optimally.

Adv Mpofu: But even if you’re not registered with the Legal Practice Council, I assume that you’re aware of the requirement for legal practitioners, the professional and ethical requirements, correct?

Mr van der Merwe: That’s correct, Chair.

Adv Mpofu: And to the extent that you can, you observe those, even though you might not be formally registered, correct?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Particularly in your field, and as you’ve correctly pointed out, sometimes there might be clashes of ideas. But it’s important as a lawyer, that you stick to your professional integrity. In other words, as I said earlier, whether it’s accepted or not, that’s a different matter. But at least you express your honest and professional view on any matter, correct?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: As I indicated to Adv Bawa, the issue of the figures and all that, the legal accounts, I’m going to deal with it tomorrow. I just want to separate it out. When I touched on it now, it’s in a different context and a broader context. I’m not going to put up the figures yet. Would it be fair to say that... I just did an unscientific analysis, so you can correct me. Would it be fair to say that more than three-quarters, or let's say more than half of your evidence was devoted to the issue of the legal accounts, particularly to do with Mr Ngobeni?

Mr van der Merwe: I didn’t do a scientific measurement, like you counsel, but, Chair, yes, a significant proportion of that was devoted to that.

Adv Mpofu: Yes, a significant portion, thanks. Alright, so then as I said I’ll try and deal more with the remainder. And that issue we will park for now, for towards the end. So you listened to what happened here this morning about aggrieved... people who are aggrieved about your evidence?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: And do you accept any part of the blame of what happened, in so far as that evidence was being led by you, or through you?

Mr van der Merwe: Can you qualify what do you mean by blame, Chair?

Adv Mpofu: Okay. To the extent that there are people who are aggrieved, including those who took the extraordinary step of coming to address this Committee this morning. Do you think that there’s anything wrong that you did yourself or you participated in?

Mr van der Merwe: No, sir. I can understand the concerns. Like Adv Bawa explained as well, that the issue of the legal fees, we were putting up the figures in accordance with what we understand the directive and the requirements of the Committee was. The criteria of legal professionals, both in terms of attorneys and advocates, were put up and it was not selective. I do not sound like I want to defend any of the decisions, but I also want to put it in perspective that it was not with the intention of showing just the figures of selective counsel, in terms of race. In terms of the actual evidence that was submitted to the Committee, not necessarily what was displayed in the small window, we presented an objective fact of the services provided to the Public Protector.

Adv Mpofu: Did you participate in the compilation of those schedules with people's names?

Mr van der Merwe: That’s correct. Yes, Chair.

Adv Mpofu: And what was your intention in doing so? It was to do what? What were you asked for?

Mr van der Merwe: We were analysing, dissecting and assessing the invoices, we got all the invoices from our finance section. Some of the statements were retrieved from the Mimecast system. We are responding to the directive from the Committee, in providing an overview of all firms and attorneys. Firms who earned more than R2 million. And also counsel who earned more than R2 million as well as those who are involved in matters that were the subject of the Enquiry. And that is the information that we presented back to the Committee.

Adv Mpofu: Yes. So then why did your tables include counsel... and I don’t want to repeat their names for obvious reasons; some of whom, who had earned R260 000, some of the black counsel whose names were flighted here? If your brief was to do only those who were above R2 million.

Mr van der Merwe: It was not only black counsel, Chair. You can see from the list of 18 names that we originally flighted, that has now been extended to 26, that there were non-black counsel, whose names were flighted for R448 000... and I don’t want to repeat the names R652 000, R4 million – also a non-black counsel. The counsel whose names were flighted were in respect of matters that were the subject of this Committee. That is how we understood the brief, Chair.

Adv Mpofu: Okay, sorry...

Chairperson: Just a pause Adv Mpofu. Adv Bawa?

Adv Bawa: I understood the question to be why did you flight a name of somebody with R60 000?

Adv Mpofu: R260...

Chairperson: R260... Thank you, Adv Mpofu?

Adv Mpofu: Thank you. Thank you, Adv Bawa. Sorry, yes. I was just, oh, sorry, it was my mistake, it’s actually R210 000. Some of the people whose names were flighted here, I’ll just call them: advocate one was R1.3; advocate two was R1.6; advocate three R210; advocate four R1.1. So all of those are under R2 million, so how did they get onto your list?

Mr van der Merwe: They were briefed by the firms of attorneys, on the left-hand side, who earned more than R2 million and they were briefed in relation to matters before this Committee, Chair.

Adv Mpofu: I see. So those people are seen as they might have been briefed by attorneys who earned more than R2 million in other work, nothing to do with them, correct?

Mr van der Merwe: No, the fees displayed here are in relation to matters that relate to the Public Protector, Chair.

Adv Mpofu: No, that goes without saying. I’m assuming all the matters relate to the Public Protector. I’m saying your explanation is that the reason people who might have been paid amounts of R200 000 or so that their names were flighted, is only because they might have been briefed by an attorney who earned more than R2 million, is that the explanation? I’m just testing, I’m not saying it is or not. I’m just testing whether my understanding is correct.

Mr van de Merwe: That’s part of the criteria and the other criteria is matters that are before this Committee.

Adv Mpofu: Matters, what, before the Committee? Oh yeah, I heard that. What, what is that? What does it matter, if a matter is before the Committee or not?

Mr van der Merwe: The Vrede matter, the CIEX matter or the CR17 matter. Matters that were directly related to the charges.

Adv Mpofu: No, there’s no such charge about spend, regarding matters that are before this Committee. Is that what you understood you were to give figures to do with legal spend, simply because a matter is mentioned in the charge sheet?

Mr van der Merwe: No, Chair. The directive we had was that we would give the figures of the firms of attorneys that earned more than R2 million, counsel that earned more than R2 million, as well as counsel who were briefed by those firms and the counsel in the matters that were before the Committee. It was not about the total expenditure.

Adv Mpofu: Excuse me, no, but that’s the point I’m making. Okay, let me tell you where I’m going with this. I want to see whether the – I think just call it consternation and the grief and all that this has caused – was even necessary. You understand where I’m going with this?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Okay. Now, let’s go back to the question. I’m saying then why, in your estimation... have you read the Independent Panel report including the motion of Ms Mazzone?

Mr van der Merwe: The motion? yes. The Independent Panel report? Not recently.

Adv Mpofu: Okay, but the Mazzone motion you’re read?

Mr van der Merwe: Right, as a legally trained person, what would have been the relevance of showing earnings of people simply because a matter is mentioned in the charge sheet?

Adv Bawa: Chair?

Chairperson: Just a pause Adv Mpofu. Adv Bawa?

Adv Bawa: On a point of order, Chair. We approached the witnesses to provide the evidence. I’ve placed on record what the criteria was that we did. It's not for the witnesses to come and tell the Committee how this evidence should be assessed and what role it plays in the motion. I think the question is inappropriate to be asking a witness.

Chairperson: Adv Mpofu?

Adv Mpofu: No, Chair. My response is that that is completely out of order, that objection. The evidence is the evidence of the witness, ultimately. And he has confirmed, that’s why I started, Chair, by establishing, because what Adv Bawa might have been correct or somebody might have, or rather, she might have put up a table coming from somewhere else for the witness just to comment. But this witness actually confirmed that he actually participated in the compilation of those documents. He’s in a completely different category, number one. Number two, he is legally trained and qualified to comment on what, how he understood the brief – and I’m using that word loosely, the task that he was asked to perform, before he performed it. Because he performed it, not Adv Bawa. So I’m totally entitled to cross-examine him on that, because he put up the evidence and the task of cross-examination is to test the evidence that he put up. The fact that he put it up, because the Evidence Leaders asked him to do an assignment is irrelevant. For the purposes of the Enquiry, it’s his evidence, actually even more than Adv Bawa’s. I think that’s another point that was lost in what was happening earlier, but I don’t want to get into those issues. That these issues about whether the information is accurate and so on, and whether it’s relevant, can be asked from the witness. A separate issue about the professional conduct and propriety of doing so might not be in the province of the witness.

Adv Bawa: Chair, the issue I was raising was the question of asking the witness to the extent to which the evidence which was sought from him falls within the mandate. That's the issue. That's not for a witness to be answering.

Adv Mpofu: Chair, I’m sorry, before you rule, just a quick matter. I think this makes it easier, because fortunately we heard Ms Thejane yesterday. It’s in that mode that I’m asking. In other words, you remember Ms Thejane said that her evidence or her entire evidence was premised on charge four, for example, and then she was questioned around that issue. Similarly, this witness evidence, in my estimation, is premised on one of the charges, the one that was read out this morning and yesterday, to do with, I can't remember if it was 11.3 or not, but to do with wasteful expenditure in the legal sphere and so on. It’s the same kind of questioning that we did with Ms Thejane, but it’s just a different charge.

Chairperson: Let’s see how this goes...

Adv Mpofu: Thanks, Chair. And yes, I’m not going to overdo it. Adv van der Merwe, do you want me to repeat the question?

Mr van der Merwe: Yes, just to make sure. Thank you, Chair.

Adv Mpofu: Yes, you know, after that exchange. I was saying that, okay, let me take one step back. You do understand that...sorry, just give me a second. Annexure A. I don’t want to waste the time of the Committee, I'll get to the specific charge now. You remember the charge that has to do with wasteful expenditure and legal spending? I’m just paraphrasing.

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Yes, was that the charge you were addressing?

Mr van der Merwe: I’m careful in my evidence not to respond. There's no burden, that as far as I’m concerned, to respond to a specific charge. We wanted to put the evidence we were asked to contribute to all the relevant evidence. In my mind, I do not have a specific charge that I wanted to put up evidence to support or to deny the charge. I want it to be as objective as possible, to deal with the issues that came out and that are currently falling within my sphere of responsibilities, Chair. So I'm not relating it to a specific charge.

Adv Mpofu: Okay, no. Mr van der Merwe, I think you’re misunderstanding what I’m saying and it’s probably my fault with the example that I made of Ms Thejane. I do understand that unlike Ms Thejane, you’re not here to support a particular charge. She said look, she’s here to do charge four and so on, that’s how her affidavit starts. Yours doesn’t go like that, so I accept that. You, on the one hand you were just doing a task, without interrogating the ins and outs of the task, you were asked to do a particular task. But on the other hand, you are a legally trained person who had looked at the charges, and as you’ve just said, you were asked about relevant charges. So I’m just testing if you if that second part doesn’t concern you, you’ll say so. I’m simply saying, in your estimation, what would have been the relevance of giving out names and earnings of advocates, simply because the matter they were involved in, whether its CIEX or Vrede or whatever, happened to be part of this Enquiry? Where the Public Protector, even in respect of those matters is, not being charged with overspending or spending at all. She's charged with removing politicians or whatever. So what would have been the relevance of putting an advocate who participated in the matter, in which the Public Protector allegedly removed the names of politicians?

Mr van der Merwe: If I can take one step back, Chair. The evidence was first presented to the Committee of the overall spending, legal spending, of the legal fees. Then there was evidence presented or a breakdown of how that money was spent. The context was provided, both in respect of cases as well as the service providers. Then my understanding is that there was an issue about, first of all, sorry Chair, I hear a voice, I’m not sure if I can proceed?

Chairperson: Yes, Yes, you can proceed. It’s just Adv Mpofu closer to his mic but he’s going to keep it quiet. Go ahead.

Mr van der Merwe: Then there was a need to, because first of all, the overall figures when it was just allocated to attorneys, was said that is incorrect because it doesn’t reflect the breakdown. I can remember the specific issue raised in respect of an amount that that was not the attorneys who were earning that. There were fees that are broken down per counsel and disbursements and costs. And then we went into the breakdown of that amount. We have broken down all the attorney fees spent for counsel disbursement and costs for the whole... but the Committee then decided to put a limit on it of R2 million. So this is emanating from the breakdown of the attorneys fees to show that it was not just attorneys fees, but it was also for counsel. My understanding is that that’s the category and the names which we came up, because in detailing the breakdown of the counsel invoices, we necessarily then we have to reflect on who received what, and that was in accordance with Hon Nqola’s observation, first, to say that the witness spoke about legal services being rendered in a way that they don’t understand; that the PP chopped and changed attorney and counsel; and go to the particular evidence, so that we are able to confirm. We understood that the breakdown of which firms, of attorneys and advocates were paid up to a limit of R2 million. So counsel were not randomly selected, this comes from the breakdown of the fees that were reflected in and allocated to the firms of attorneys, and then an upper limit was placed on those attorneys. But we still had to look at the counsel that were particularly briefed to break it down. Otherwise, we would have said counsel X and it wouldn’t for cross checking purposes, for our purposes, you’ll see that that specific schedule then goes to the firm of attorneys. It calculates the invoices paid by the Public Protector in respect of each of the attorneys, then each of the matters briefed, who are on brief in respect of counsel, who were briefed, what was the cost and that is how we broke it down. So this is an accurate and complete reflection of the amounts paid, as the criteria that we understood, Chair. I have to add, we didn’t start off...

Chairperson: For this period of cross-examination, yes, your mic must stay on, Adv Mpofu. I was just saying that he was hearing your voice on the mic, because you are in charge of this process.

Adv Mpofu: Chair, okay. I didn’t want you to accuse me again of keeping the mic deliberately on. Thanks, I’ll use the permission you’ve given me now. Before you continue, I just didn’t want to interrupt you, but I don’t think you understand my question. So I’m just going to, I’ll ask it because I have to just confer with the Public Protector. Let me put my questions so that you can think about it in that period. This is what I’m saying, you have given two criteria for flighting people’s names and amounts. One is the R2 million criterion, and you have shown that it doesn’t apply to some people, right? Remember that?

Mr van der Merwe: Yes.

Adv Mpofu: And therefore, the only criterion that would qualify, quote unquote, “those people whose amounts were less than R2 million”, would be a second criterion, namely that they were involved in matters to do with this Enquiry, correct?

Mr van der Merwe: No, that’s not correct, Chair.

Adv Mpofu: Okay, well then on what basis would somebody’s name appear there, if they neither (a) earned more than R2 million or (b) were not part of the matters that are before this Enquiry? On what possible basis would such an advocate's name be bandied about in the public domain?

Mr van der Merwe: So we broke down the spending or the earnings in relation to the instructing firm of attorneys, and those counsel who might have earned more or less than R2 million, were briefed by those specific attorneys, we had to break down to show the Committee that VZLR Attorneys, if I may use the term, itself did not earn R14 429 000, but that it had counsel as well and we reflected that counsel, all of them. And some of them might have earned R2 million and more, some of them might have earned less than R2 million, but they were all counsel, and it was all part of the R14 million paid for in respect of that attorney’s fees. So we didn’t distinguish between the counsel and say we have to eliminate because that would have given a distorted view of the R14 million. We did a complete breakdown of every payment, every sequence of event, and it was placed in context, both of the matters as well as the counsel briefed by the attorneys. So it’s in order to reflect an objective and transparent view of the earnings stemming from each attorney, and then we wanted to be comprehensive and reflect all counsel affected by the payments.

Adv Mpofu: Alright.

Adv Bawa: Chair? May I raise just a point of clarification?

Chairperson: Okay, go ahead.

Adv Bawa: I’m hoping that I’m being helpful here to my colleague. Mr Mpofu was asking the question in respect of the first page that was flighted. I understand, because I know this and I don’t know if Mr Mpofu has looked, but Adv van der Merwe is answering the question with reference to all the pages in the document. And maybe...

Adv Mpofu: That’s true, that is correct. I’m only doing it in respect of the material that either the Evidence Leaders or the witness chose should be flighted.

Adv Bawa: But with respect, Adv Mpofu, that’s also not correct, because we didn’t only flight that page, we then flighted, by way of example, the page relating to Seanego Attorneys, and said that we did that for other attorneys as well. So in the document, you have the attorneys who were in the above R2 million mark pages, who are there, with respect to all the advocates. And then the summary only relates to the above R2 million category, and those who had been briefed in matters before the Committee. And that’s where the answers are differing.

Adv Mpofu: Okay, Chair. I don’t want to get engaged in this dialogue. Can I, I’ll do it like this...

Chairperson: The purpose was clarity so...

Adv Mpofu: Yes, fair enough. I’m not objecting, I’m simply saying that I don’t want to have that exchange. My answer is that Adv Bawa is quite correct, that my focus is on those that were flighted, because that’s what I’m cross-examining about right now, and why those were selected to be flighted, and not the others that were not flighted. From that answer, looks like there was something, but it was an example. If that’s the answer, that’s the answer, but I’m entitled to put the question. Alright now, thank you, Chair. Now I’m saying and... just to adjust that, I’ll talk about the... I’ll do it from the point of view of the full schedule. My question, Sir. I don’t want to be distracted from my question. My question was this, and either you’re able to answer it or you’re not, that’s fine, then we’ll move on to something else. In your understanding, did this relate to the charge 11.2 which is “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”. That is what the Public Protector is accused of. Did you understand this whole exercise that you’ve described?

[Lost connectivity]

Mr X Nqola (ANC): It looks like we have lost the chamber...

Mr van der Merwe: Okay, I saw them froze. I thought it was me.

Mr Nqola: No, we can see you and hear you. I think we’ve lost the chamber because the chamber just got frozen.

Chairperson: We lost connection with you so I’m just going to ask Adv Mpofu to repeat his question, because he asked you a question and then there was no response. We then realised that you were frozen. Thank you for coming back. Adv Mpofu, back to you.

Adv Mpofu: Thank you, Chair. Adv van der Merwe, what I was saying was.. Chair, if you allow me, I’ll go a little bit, a step back, just so that we are on the same page, advocate. I'm trying to understand why, what, what you are doing here. So I need, as I’ve said one of the witnesses, or some of them assisted us by saying, look, I’m here for this charge or that charge or whatever. I can’t place exactly what, what, how you’re supposed to be assisting the Committee. So I’m just, you understand what I’m getting at?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Yeah, all right. So it is in that context that I’m asking you these questions. And, because I want to know, you see, I’m here to represent the Public Protector, in relation to the motion of Ms Mazzone. Not all sorts of other things that have been said in this commission, which, more than half of which have nothing to do with the charges. So for example, if the Public Protector ended a meeting later or whatever, that doesn’t feature in the charges. I need to understand, so that, I don’t, otherwise... you were here for more than a day. I don’t want to go through irrelevant cross-examining over some of the stuff that’s irrelevant, which is not going to advance the motion one way or the other. I want to focus on those issues where you’ve testified, which is to assist the Committee. Because I don’t want to believe that you were called here just to embarrass people without any benefit to the Committee. Okay. Now, I’m saying, in your understanding, were you called here to deal with the charge that relates to “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”, or were you called upon to deal with something else? And if it is something else, what in your understanding is that something else?

Mr van der Merwe: Chair, yes... partly, the charge that you are reading out now, but I didn’t come to the Committee with a preconceived idea, that, like one would do in a criminal case to come and address elements of a specific charge by virtue of evidence. My role is twofold in terms of addressing that, putting evidence before the Committee that is relevant to the motion. That relevance has been determined in terms of, the, my experience, how, how we consulted what evidence we provided to the Committee. And then secondly to clarify issues that may have arisen from other witnesses, like the CIEX matter, in terms of what was put to Mr Kekana. The legal fees issue might have arisen from Mr Sithole’s evidence or whatever is relevant to that. And that is how my evidence has been couched, and what its relevance is there. To the extent of deciding in the end, if my evidence is useful, or if it was addressing or helping the Committee, that is for the Committee to decide. I’m putting everything that is within my competence to the Committee. As I said, clarifying issues that may arise from other witness testimony, that I’m pointed to and that’s relevant to my experience, like the CIEX matter, Chair.

Adv Mpofu: Okay, thanks. That’s fair enough. So let me be fair to you. I accept that there’s some tangential issues that you deal with, regarding the CIEX matter and Complaints and Stakeholder Management (CSM). Those kinds of issues that you deal with, in a few paragraphs in your statement. Do you understand that?

Mr van der Merwe: Yes, Chair

Adv Mpofu: Yes, so I accept that. Where I’m coming from now is where you and I have agreed that a significant portion of your evidence had to do with this issue of legal fees and so on. So I’m focusing on that. I’m not neglecting the other peripheral issues. I’m saying I want to understand what in your understanding you’re here to assist with? You’ve said, partly, it was this charge 11.2. Fair enough. I want to know is there anything else, apart from what you’ve mentioned? CIEX and all that. Particularly on the issue of legal fees, is there anything else that you came here to assist the Committee with, apart from charge 11.2? I know this is a long question, but let me, I want to break it down. Because I want to understand whether your evidence has caused a lot of harm. But as I said yesterday harm sometimes has to come, it’s part of the package. So I want to know whether that harm is worth the benefit, or what is the benefit? Because if it just causes harm, then it’s just gratuitous and malicious harm.

Mr van der Merwe: Sorry Chair?

Adv Mpofu: Do you understand where I’m coming from?

Mr van der Merwe: Yes, I would just ask if you can repeat. I was disconnected for a second.

Adv Mpofu: Yes, oh, sorry. Okay, fine. I won’t give you that long background. My question was in relation to the fees issue, is there anything else that you understand the evidence to be relevant to, apart from charge 11.2 that I read out earlier?

Chairperson: Looks like a repeat of the frozen.

Adv Mpofu: Frozen again?

Chairperson: Are you back? Mr van der Merwe, are you back?

Adv Mpofu: Did you get the full question at least? I think you were frozen when you tried to answer.

Mr van der Merwe: Yes. First of all, I didn’t come with the intention to cause harm or to benefit or to advance any kind of proposition. My brief was that the issue of legal fees, and illegal expenditure is the subject matter of the motion and the Committee. And that there was a request for clarity and clarification, to understand exactly how the legal fees were disbursed by the Public Protector, particularly as well, because there was an issue on the allocation and the selection and there was evidence before the Committee that there was, we have a panel of attorneys and that there was a fair distribution. And there was an issue whether or not this is supported by the evidence. My endeavour is to place all that evidence before the Committee, of how exactly the legal fees and the legal expenditure of the Public Protector over the last number of years have been expended and have been broken down. As I said, it’s not in isolation, it is brought in context of the various matters. And it’s also addressed in my affidavit, to say that if you look at how it was expended towards certain matters and certain targets, then I do have an opinion on the fact that there would have been other matters that could have benefited from legal services as well. So it’s in that context, and I’m presenting the evidence, not with the view to harm or advance any agenda.

Adv Mpofu: Okay. No, fair enough Mr van der Merwe. For the purposes of this cross-examination, I will accept that qualification. I might not accept it in another forum. So let us say that I accept that you did not intend to cause any harm. Let us accept, or rather assume that I accept that you did not come yourself as part of any agenda of yours. So let’s put that aside. What I’m trying to get at is the following, I want to know what, when you’re done here, what must the Committee… in relation to the motion of Ms Mazzone, not in relation to gossip and all sorts of harm, intended or not intended, that might have been caused. That’s what my job is, is to demonstrate that evidence is either completely malicious or not relevant, or partly malicious and partly relevant, or whatever the proportions are. Again, forgive me, when I give this background, it’s leading up to the question and trying to save time. Let me tell you, again, where I’m coming from with this. Mr Sithole was here and gave us evidence regarding what happens in the legal department. You’ll accept that Mr Sithole has been involved with these matters that you’re talking about, more than you, correct?

Mr van der Merwe: That’s correct.

Adv Mpofu: You’d accept that Mr Sithole had interactions with the persons, and I think in fairness to you, you make that clear at beginning of your statement. You have no personal interaction with some of these matters, you just, I think you called yourself a custodian of the documents, correct?

Mr van der Merwe: That’s correct.

Adv Mpofu: You’ve been such a custodian of the documents only since August this year, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yeah, this is the point. So I want to know what possible value can you add on the issues that Mr Sithole has, who is familiar with them, has not testified on? And whether the only reason you were called here was just for you to be a conduit for the malicious harm that was caused, which you may not have intended. So that’s where I’m coming from. Now, here’s the question. The documents that you have testified to, including the contentious ones, where not put to Mr Sithole. Do you accept that?

Mr van der Merwe: No, Chair. Mr Sithole – I was part of the consultation where the Evidence Leaders were in fact looking for documents and specific invoices, which Mr Sithole could not find at the time.

Adv Mpofu: Okay, fair enough. My question was too broad for that purpose, yes. I accept, again, for your purposes, I accept that some of the documents that were put to you, were also to put to Mr Sithole. So you can take that for granted, understood?

Mr van der Merwe: Yes.

Adv Mpofu: Now all I’m saying is that the contentious documents, including the list of counsel that you and I have been discussing, which was the subject matter of the controversy this morning, those documents were not put to Mr Sithole, correct?

Mr van der Merwe: That’s correct.

Adv Mpofu: So I’m confining my question to that, to the exception. I accept that there is some overlap. Now, what I'm saying to you, okay, let me take another step back with the permission of the Chair. The origin of this whole thing, of so-called people who’ve benefited from the legal spend, was Hon Mileham, who made that remark in this chamber. Are you aware of that?

Mr van der Merwe: I’ve heard reference to it in the past two days that I’ve been on the platform. I didn’t see the evidence first-hand.

Adv Mpofu: Okay. Okay, then take it from me, that that’s what happened. Now, so that’s why I’m saying the malicious intent might not be yours, it might be, you might just be an instrument in the hands of others. And I’m prepared to accept that for now. Assuming that the intentions of the originator of this whole idea, just from the words that he used, were improper. He was even corrected by one of the Members here, and I think the Chair stayed that objection about people who, quote unquote, “benefited”. But that’s the origin of the whole exercise. Now, you are called as a witness, to peddle... sorry, to, to advance that agenda, whether wittingly or unwittingly. Now, that’s why I’m asking you this question. Where you, apart from coming to clarify things like that, why do you think that these questions were not put to Mr Sithole, but to you, who has more experience with all these things than you? You’ve only been there for two months.

Mr van der Merwe: As far as I’m aware, and I wasn’t part of all the consultations, there was an endeavour from... Mr Sithole and I was supposed to testify about these matters together, for that very same reason. And for some reason, the Evidence Leaders could not get either the necessary cooperation or... they were unable to lead this evidence during Mr Sithole’s evidence. I know that some of the issues came after, when clarity was sought. But for me, the crux of the matter is public resources, how it was spent in the course of litigation. And I had access to the records and the invoices that reflected that. And we were also looking at that as part of the handover, takeover of the units in looking at the expenditure, because I’m now responsible for that budget, and it is an issue that was relevant to me. Thank you, Chair.

Adv Mpofu: Thank you. And you did follow the evidence of Mr Sithole, for that reason because as you say, you are kind of supposed to be joined witnesses, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And you’re aware that Mr Sithole... all the 16 or 17 witnesses, is the only one that the Evidence Leaders seemed to have problems with, to the extent that they cross-examined him?

Mr van der Merwe: I wouldn't say, Chair. I saw that there was towards the end, I noted the exchange for that purpose, yes, Chair.

Adv Mpofu: No, no I’m not asking you about exchange. I’m asking you about what Mr Sithole himself said, that he was cross-examined. Are you aware that he was the only witness who felt cross examined? Rightly or wrongly.

Mr van der Merwe: I know he stated that, yes, Chair.

Adv Mpofu: So you are then... what I want to understand is whether you are handpicked to be a conduit for this, because you might be sympathetic to it or whether you’re just an innocent victim. Do you, do you yourself... let me ask you specific questions. Whatever it is that you think was the purpose of those schedules, do you think it could have been achieved without putting people’s names up?

Mr van der Merwe: I’m thinking about that question, Chair. In my understanding...

Adv Mpofu: Yes, no take your time... Okay, while you are thinking. Okay, no, think and then I’ll ask you the next question.

Mr van der Merwe: As I said, the fact is, we are dealing with real transactions here. So it is invoices and expenditures in respect of, of names. Once you have that breakdown. And you start to put out, instead of a certain counsel, say Mr X or Mr Y, it becomes very difficult to account properly. In terms of the process that we followed, how we’ve broken it down, this was the natural sequence of events, to say these are the counsel, this was how the money was expended, how the resources of the Public Protector was utilised, this is the instructing attorney, this is the counsel, this is... now my impression is that was what the Committee required us to do. It was not to be a conduit of any agenda. But that was, because this information, these are records. The Committee asked for access to our records. It’s the Committee that asked this, and this is a fair representation of the records of the Public Protector, and it’s a transparent presentation of the records. I can’t say that I foresaw or that I wanted to think that this would cause any harm. It might have been naive, but whatever it is, it’s an attempt to put whatever records the Public Protector has, and we are accountable for that, because it’s public money. To give the Committee access to all the evidence that they requested. And that is how I saw it.

Adv Mpofu: Okay, Mr van der Merwe, please. I’m really trying to restrain myself here, because I want to work with you. I’m saying this is a very serious matter. And that’s why I don’t want you and I to be in an accusatory mode. I accept you did not mean any harm. I accept you did not intend any harm, and so on. Again forgive me every time I’m asking you a question for giving you the background. I’m just trying to speed this up. I’ve told you that the origin of this came from Mr Mileham, in the context of they wanted to know the persons who benefited, the persons not the figures, the persons who quote unquote, “benefited”. So it came from a political standpoint, which was targeted at certain people. That’s not your problem, we’ll deal with that when we do the argument before the Committee. That’s part of the background. I’m also saying, as Adv Bawa just explained this morning, we, I not we, have objected to this many times in private and in this mode, and some of those objections were overruled by the Chair, to prevent this from happening, so that’s the background. But it has happened now, so it’s water under the bridge. So the only issue I’m really trying to say to you, and you did not answer my question in your last exchange. I’m saying, you saw what I did now, when I asked you the question, I said, advocate 1 got R1.1 million, advocate 2 got R600 000, advocate 3 got this. So I achieved the purpose of my question to you without mentioning anybody’s name. So I’m saying, do you think that for the exercise that you did, it was necessary to mention people’s names? You could not have said advocate X received so much, advocate Y received so much, advocate Z received so much, and still achieved the purpose? Was it necessary to invade people’s privacy?

Mr van der Merwe: First of all, I would, because you link it every time to how that question originated, I’m not a conduit for anybody's agenda. And secondly, no, because to do an audit, to break down fees, without reflecting the actual expenditures, so to use aliases, because that would have been a unique option, would have made any verification of this process very difficult. For us to go through the process of breaking it down, because remember these are public resources that have been expended. What we wanted to reflect is the real time accurate breakdown of every invoice, and those invoices were not rendered in the name of aliases of persons. It is the real payments that were made by the Public Protector. Whether or not, it was, would have been... there were options to present it in the public domain – is another question, but we were presenting what we were submitting to the Committee. If there was – because this is not restricted to Committee proceedings – there is evidence when you deal with a court case, that they would present in chambers, I was not aware of any such provision that would safeguard confidentiality of any evidence or witnesses we were presenting to the Committee. If that option was there, I would have certainly made use of that option to provide the information in a confidential manner. But for us, it was transparency and to do the actual sums, you can’t use advocate 123 and get to advocate 56, and then still do reconciliation of the actual account. We did it with a number of role players in our Office... it would have been difficult to achieve the result.

Adv Mpofu: Okay, so...

Chairperson: Adv Mpofu, can we pause there...

Adv Mpofu: For lunch?

Chairperson: For lunch.

Adv Mpofu: Okay, Chair. If you allow me, let me please put just one question, so that he can ponder over lunch. Advocate, I hear what you’re saying. I differ sharply with it, and we’ll deal with it after lunch. The point I’m making to you, and again, I unfortunately need to give an explanation, is this... I don’t know why it would be difficult for you to give this breakdown even. I’m not even saying you should put a globular amount, I’m saying you put it broken down, but without using people’s names. Like you did with many accounts that you put up here, where the email address or whatever was redacted, for the purposes of protecting people’s privacy. So the information was still there, but without invading people’s privacy. You must explain after lunch to me, what, why it would have made a difference in your exercise of transparency, if you did not put the names of Adv Sikhakhane and Ngalwana, I’m just using them because they were here, or any other person, but to just put advocate 1 and just put the amount. Do you understand the question? I want you to think about it over the weekend – I’m optimistic. I thought the Chair was going to give us...

Chairperson: Very optimistic. Thank you Adv Mpofu. It's the lunch break, Mr van der Merwe. Thank you, we’ll come back at 2:00. We’ll pause for lunch break.

[Break]

Chairperson: We’re back from lunch and we’re about to resume the session. Over to you Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. Mr van der Merwe?

Mr van der Merwe: Yes, Sir?

Adv Mpofu: Yes. Alright. I hope you’ve had time to think about my question. So I’ll just paraphrase it, to say that whatever the objectives were of your exercise, I still don’t understand them, but, do you accept that they could have been achieved by putting up the itemised figures without putting people’s names against them?

Mr van der Merwe: Thank you, Chair. Yes, I’ve got a chance to consider because I’m not oblivious to the consequences and the information that came to the fore. Obviously, with hindsight, factors that include the fact that the screen was partially displaying, with only a portion of the names. In the context we had a complete breakdown of the matters, the invoices, the timelines, I did not foresee that it would be perceived in a racially derogatory manner, because the information that we wanted to display, that we wanted to submit, included a range of service providers of all races, not exclusively one race, and it was certainly not the intention. We are well aware that counsel is briefed by attorneys; it’s not as if they volunteer their services. So the short answer is I did not think at the time that I had a choice. That is, in my view, the restrictions on the publication of personal details was raised with the Committee and it was overruled. And that is how I presented the information. In hindsight, knowing what I know now, I would have certainly explored other options of presenting the gist of the information to the Committee, that is, how the public resources were expended in relation to legal services in the Public Protector's Office.

Adv Mpofu: Okay, you’re not answering my question. I don’t know how many times I must say this. I’m not accusing you of anything to do with your intentions and what have you. I don’t know why you’re going back to that, I’ve said it four times. Alright. I’m asking you a simple question. Do you accept or do you not accept that whatever the objective is of giving the information breakdown, could have been equally achieved without putting people’s names against those figures, but putting all the figures there in the breakdown? Or was there something special to do with people’s names? Was it necessary to invade their privacy in the process?

Mr van der Merwe: Again, Chair. I can explain how I’ve answered it...

Adv Bawa: Chair?

Chairperson: Okay, just a pause, Adv Mpofu. Adv Bawa?

Adv Bawa: Yes, I was going to say, Mr van der Merwe said it. The question was asked before the lunch adjournment, about the ABCs. Mr van der Merwe gave an extensive explanation as to why in his view, he didn’t think it could be done. And we had considered it at the time.

Chairperson: Adv Mpofu?

Adv Mpofu: Chairperson, no, I don’t want my cross-examination to be interrupted unnecessarily. I know that. I’m asking the witness a completely different question. He used the words, Mr van der Merwe used the words “the benefit of hindsight”, so that’s where I am. I accept what you did, why you did it, your intentions, lack of them or whatever. I’m asking you a different question now, today, having heard the people who were speaking here, having listened to what has happened, with the benefit of hindsight, as you put it. Do you accept or do not accept that the same objective, whatever it is, could have been achieved without putting people’s names, but putting the actual information, yes or no? if you don’t accept it, you don’t accept it.

Chairperson: Mr van der Merwe?

Mr van der Merwe: I understand, Chair.

Chairperson: Come again?

Mr van der Merwe: I understand. The short answer would be no.

Chairperson: Okay.

Adv Mpofu: Okay, alright. Thank you. That’s fine, alright. So you feel that the information would have been insufficient without the names. Okay, that’s fine. Now...

Mr van der Merwe: No, Chair. That's not what I was saying. The question was whether I accepted that the achievement, the goal, the objective could be achieved without names, and my answer is no.

Adv Mpofu: Okay, that’s fine. All right. Do you accept that to the extent that you’ve agreed that one of your reasons for being here was the charge 11.2 “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”, that putting people's names in that context would achieve among other things, what it has now achieved, which is to associate them with so-called looting, as it has been reported?

Mr van der Merwe: No, Chair.

Adv Mpofu: Okay. Do you accept that that schedule is completely irrelevant to the charges before this Committee?

Mr van der Merwe: No, Chair.

Adv Mpofu: Okay, do you… the relevance of that schedule you accept has to do with paying legal fees that were paid? Correct?

Mr van der Merwe: Correct.

Adv Mpofu: And the charge, unless it has been changed, of Ms Mazzone has something to do with legal costs. Do you know the difference between fees and costs?

Mr van der Merwe: I would benefit from your explanation, Chair.

Adv Mpofu: Okay, I’ll assist you. Legal costs mean the cost that gets awarded at the end of a case. In this… you know the story about for example, there were personnel costs, punitive costs and what have you, which were awarded against the Public Protector. And that is what this charge is about, legal costs, or so-called expenditure associated with that. Legal fees is the, is what you have done, which is whatever you pay yourself, as it were. And I'm saying that the schedule you put up there, with people’s names, has got absolutely nothing to do with the question of legal costs, I’m putting that to you.

Adv Bawa: Chair?

Chairperson: Okay, just hold Adv van der Merwe, before you respond. Adv Bawa?

Adv Bawa: Chair, the entire sentence reads “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”, those are the costs incurred by the Public Protector's Office. With respect, Adv Mpofu, costs that emanate, that is ordered by a court, in which you incur cost is done per court order.

Chairperson: Okay. Mr van der Merwe, your response? Thank you, Adv Bawa.

Adv Mpofu: She has just answered for him.

Adv Bawa: No, with respect... misrepresented the sentence.

Chairperson: Just pause, Mr van der Merwe, just pause. Adv Bawa?

Adv Mpofu: No, Chairperson, sorry, sorry.

Chairperson: Adv Bawa?

Adv Mpofu: If you’re finished, sorry. I would want to respond to that. Okay, thank you, Chair. Yeah, I don’t take kindly to being accused of misrepresenting...

Adv Bawa: I withdraw, I withdraw it.

Adv Mpofu: Okay, thank you. That’s fine. I’m not misrepresenting anything, if by not reading the full sentence, Adv Bawa feels that I’ve misrepresented, then I’ll apologise. I’ll read it again. Mr van der Merwe, I’m saying, the charge says and I’ll read it in full, 11.2 “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”. That’s what’s the important thing, it’s not the length of the sentence. And I’m saying, that is to be distinguished from, this is the Mazzone motion, which we’re all here about. I’m saying that motion doesn’t talk about legal fees, which is what your hurtful schedule was dealing with. So it’s completely irrelevant in any event – apart from being malicious – to the charges. That’s the proposition I’m putting to you. That’s why I asked you because I wanted to be fair to you. Do you understand the difference between costs and fees. You asked me to explain it to you, and I explained it to you. So I don’t know what it is that I’m misrepresenting. Thank you. Please answer the question, if you understand the difference? If you don’t, you don’t, then we move to something else.

Mr van der Merwe: I do, as I explained previously, and I’m not going to answer in a specific way, because that is how the question is phrased. I explained that my evidence is intended to address issues that have risen from the evidence of other people before the Committee. This issue of the legal expenditure has been and is before the Committee through other witnesses. The expenditure in itself, whether it’s restricted or not relevant, or how it’s relevant, that’s for the Committee to decide. My evidence is requested and required to show how and that comes from Hon Nqola’s request, and other request is... the evidence, the witnesses spoke about issues of legal services, particular evidence, we understood the breakdown of how firms and advocates were paid. That is the remit within which I am operating, that is required of me to present evidence to the Committee. I’m not there to decide whether or not this is relevant to a specific charge, or this is excluded from a specific charge. I have no intention. You call it malicious and damaging. I have no intention to come to this Committee and serve any agenda, apart from producing what I think is required of me and that is relevant to my portfolio.

Adv Mpofu: Yeah, okay, good. I like those last three words, you’ve mentioned, relevance. This is exactly the point I’m trying to make to you. And really, I’m trying for the last time now. I’m saying Mr van der Merwe, accepting you had no such intention, accepting that the origin of this was from the agenda of Mr Mileham’s intervention, and all the background I gave you before lunch. I’m now asking you a simple question, whether in your view, as a person, as a legally trained person, the evidence that you came to bring to this Committee is irrelevant to anything that is contained in the Mazzone motion or not? Because if it is not, sir, and this is where all this is going, I’m going to argue at the end of this Enquiry that your entire evidence must be disregarded, because it has nothing to do with the purpose of this Enquiry. But I have to give you, I can’t argue that, without giving you an opportunity under cross-examination to refute it, or to prove me wrong. If you fail to do that, then I will be entitled at the end to say that you coming here was only for malicious purposes, to pursue an agenda, yours or somebody else's, but at no benefit, just for the cost of defaming people and putting their lives in danger. It is a very serious matter. It’s fair, it’s only fair that I don’t, I won’t argue in your absence when I didn’t put it to you, I’m not allowed to do that professionally. Okay. So please work with me here. Is there anything that in your considered view that you cover in your evidence, put aside the CIEX and all those what I call peripheral issues, on the subject we’re discussing, that is relevant to the charge that I’ve just read out to you about legal costs, particularly those schedules of people’s names? If there is, please tell the Chair what it is.

Mr van der Merwe: Yes, Chair. Can I take you to my affidavit.

Adv Mpofu: Which one, the supplementary or the original?

Mr van der Merwe: I’m just checking. From paragraph 48.

Chairperson: Come again, paragraph?

Mr van der Merwe: From paragraph 48.

Adv Mpofu: That would be your original affidavit?

Mr van der Merwe: Yes.

Adv Mpofu: 4084? Chairperson? Is that the page, sir?

Mr van der Merwe: I’m not sure about the number...

Adv Mpofu; Okay, fine.

Mr van der Merwe: This is exactly, as I said, whether counsel accepts my relevance of it and argues, that’s for the Committee to decide. I am presenting the evidence as is required of me, without any intention. The relevance of the Public Protector's expenditure is that all of this, and I’ve given a breakdown of the complete budgets over the last... and I know, Chair, I don’t have a short answer. It’s going to be long unfortunately. R146 million is spent on legal fees over the last number of years. If you look at the expenditure, you would see that many of it comes from the 2019 year. The evidence is there, this is money. I made the point in my affidavit, that if you go and look at the cases, and counsel went to length with Mr Sithole about the value add in terms of the expenditure, whether it was in defence or promotional principles. I’m refraining from giving an opinion on it. I’m stating the facts, that R146 million is spent on legal fees, exactly like Adv Mpofu is arguing. That is one of the only variables in the Office, and I don’t want to continue using the variables. The others are fixed costs, costs to employees, and this is part of the operational costs of the Public Protector that impacted on the delivery of, first of all, its constitutional mandate. And secondly, the operations of the Office. This is extremely relevant, how the money was spent under which cases. It is very unfortunate about the fact that personal details had to be expended in a way, that’s not the purpose of the exercise. The purpose of the exercise is to show how these cases were selectively pursued, to the compromise of the constitutional mandate of the Office, to the compromise of other cases, to the compromise of service delivery. I can speak with passion about the fact that we are expected to make a difference in the lives of people. If you look at the number of cases that we’ve been dealing with, to deal with 7000 cases, serving a population of 52 million with over 1 000 organs of state, requires extensive and careful planning of resources. Now I’m giving an opinion, but I’m forced to go there to show the relevance of my evidence. It cannot be argued that what the Public Protector has expended on a number of cases – some cases to the extent of R15 million, R10 million for selective cases – is irrelevant. That is my answer, Chair.

Adv Mpofu: All right. So okay, so you’re saying that’s relevant to “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”, what you’ve just… the story you’ve just given is relevant to that?

Mr van der Merwe: I don’t know, Chair. I’ve already answered that I do not intend to try and prove a specific charge.

Adv Mpofu: No, thank you, Mr van der Merwe. I think you and I are on the same page. Your answer is that you don’t know the relevance of why...

Mr van der Merwe: No, Chair. That is not what I’m saying. It is...

Adv Mpofu: Okay, Mr van der Merwe. Sorry, I don’t want to argue with you. I’m going to do this. I was letting you give those long answers, because I wanted to be fair to you. But we don’t have that much time. So from now on, I’m going to ask you short leading questions.

Mr van der Merwe: Chair, I’m not comfortable with paraphrasing my answers...

Chairperson: Just a pause, Mr van der Merwe, so that Adv Mpofu can conclude. We’ll come back to you.

Adv Mpofu: No, I’m done, Chair.

Chairperson: Sir, Mr van der Merwe. You’re on the platform now, you wanted to respond?

Mr van der Merwe: I’m not comfortable with the conclusions that Adv Mpofu is drawing from my answers saying that I don’t know. I’m saying it with qualification, that’s for the Committee to decide. It’s not for me to decide, it’s in that context, Chair.

Adv Mpofu: Am I putting words in your mouth? You didn’t say “I don’t know” when I asked you the previous question?

Mr van der Merwe: With a qualification, Chair.

Adv Mpofu: Mr van der Merwe, you took us to paragraph 48. And that section is the correct section, it runs from paragraph 48 up to 74, section E. I’m glad that you’ve taken us there, because that is indeed the section under which your schedules, that I’m cross examining you on fall under. You refer to them, paragraph 66, you say the following schedules have been prepared, and so on and so on. So the schedules fall under that section. Thank you for taking us there. Now, I’m going to ask you a series of very short questions. Hopefully, yes or no. You accept that the heading of that section reads "Review of reports and legal fees”, yes?

Mr van der Merwe: Yes.

Adv Mpofu: You accept that the issue of fees is not covered in the legal costs charge that I’ve just read out to you? If you accept the difference that I’ve tried to draw earlier.

Mr van der Merwe: I’ve already answered that question, Chair.

Adv Mpofu: Please answer it again.

Mr van der Merwe: No.

Adv Mpofu: Okay, good. So you don’t think there is a difference between legal fees and legal costs?

Mr van der Merwe: That’s not what I was asked, Chair. I was asked if I think it’s relevant to that charge. And I am saying yes it is.

Adv Mpofu: You’re saying yes it is? Okay, good. Alright .Do you accept that there’s a difference between legal fees and legal costs?

Mr van der Merwe: Yes.

Adv Mpofu: And which one of the two is referred to in the charge?

Mr van der Merwe: Expenditure in relation to costs.

Adv Mpofu: Right...

Mr van der Merwe: I must ask, Chair, if I can be referred to this specific charge just to verify the wording for myself.

Adv Mpofu: Sorry, I didn’t get that?

Mr van der Merwe: Can I be referred to the charge? Because I heard different versions.

Adv Mpofu: Yes, can you please put it up... Okay, okay, sir. Yeah, that’s a fair question, or rather fair request. You’ll find it in the Mazzone motion 11.2... can you see it? Just go to the governing clause... yeah. It says, "Adv Mkhwebane" – that’s the Mazzone motion – “has committed misconduct by and/or demonstrated incompetence in the performance of her duties by...” and let’s go to 11.2 “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”, can you see it now?

Mr van der Merwe: Yes.

Adv Mpofu: Yeah. Now, let’s go back to my short questions. Having accepted there is a difference between legal costs, which is in the charge, and legal fees? Do you accept that your heading E, relates to legal fees?

Mr van der Merwe: Chair, I didn’t draw up this charge. I don’t know what the intention was of...

Adv Mpofu: Please answer the question, Mr van der Merwe. No, no, I’m sorry, Chair, I’m sorry, sir, I’ve tried to be patient. I’m sorry to interrupt you. I don’t, I didn’t ask you who drew the charge. I’m asking you a simple question. Do you accept that your section E deals with legal fees as opposed to costs? Now that we agree that there’s a difference, yes or no? The heading of your section E, relates to legal fees...

Mr van der Merwe: The heading, yes, but the whole section deals with costs as well. A part of the section deals with costs as well. If I can qualify it, Chair, I’m also referring to the fact that there were cost orders against the Public Protector that have not been recovered. So in terms of the definition that counsel is putting forward, it deals with both.

Adv Mpofu: Okay, to the extent that you say that, is it in the context of the charge which I just showed you which is “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure...” in what you say is also contained. That's the first question.

Mr van der Merwe: I’ve already answered. I’ve already answered that question, Chair, today that my evidence is not in the context of a specific charge. It's in the context of the evidence delivered before the Committee.

Adv Mpofu: Alright, my last question on this then, is this, do you accept that your schedules that have people’s names, that has caused all this consternation, is completely unrelated to the charge?

Mr van der Merwe: No.

Adv Mpofu: Thank you. We’re going to argue, I don’t have to argue it with you, but I think... okay, I know you’ve never practiced, but do you know the difference between, for example, disbursements and the fees that get charged by the attorney.

Mr van der Merwe: Yes.

Adv Mpofu: The difference between... okay, you said you already know the difference between fees and costs. That the disbursements do not, unless they are attorney and client costs, they don’t get included in normal costs.

Mr van der Merwe: Can you repeat the question, Chair?

Adv Mpofu: Sorry. I’m sorry, it’s vague, yeah. You know the difference between party and party costs, and attorney and client costs?

Mr van der Merwe: Yes.

Adv Mpofu: What is it?

Mr van der Merwe: Attorney and client cost is the cost that is incurred if we appoint a service provider and that’s the fees that we pay. Party and party cost is ordered by a court of law.

Adv Mpofu: No, that’s not... that’s wrong. Okay, you don’t know the difference. Is that the only difference that you know, the one you’ve just described? Or you don’t know?

Mr van der Merwe: No, that’s in my understanding. In what context, Chair?

Adv Mpofu: No, in any context, Mr van der Merwe. When a court says now we’re ordering party and party costs, and another court next door says we’re ordering attorney and client costs. There's no context; it has nothing to do with context.

Mr van der Merwe: Party to party costs is what, my understanding, is that the cost on one party’s bill will then be taxed and covered by the other party. But I can revert on that, I’ll have to make sure.

Adv Mpofu: That means you don’t know now standing, sitting there.

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Okay, no, then I apologise. I can’t expect you to know the difference between fees and costs and disbursements and so on, if you don’t know the basic difference between attorney and client costs, and party and party costs. Okay, fine. Let's move. Well, from now on it’s just to assist the Committee. I don’t think you’re going to add any value to this Enquiry. Let me, maybe through you if you don’t mind, Mr van der Merwe, it’s really through you. I don’t know whether I’m addressing you or the Chair. Where I’m coming from with this, and again, I want to... I’m putting these things to you in this full fashion, because you are the last witness and some of the issues that we’re going to argue at the end. Unfortunately, it’s not your choice, you happen to be the last witness. But we have to put them to you particularly on this aspect. There’s... one of the fallacies in this process, is that this process is about oversight. It’s been bandied about here. And we have explained that this is an Enquiry, a specific Enquiry. Oversight will happen in the Portfolio Committee or whatever. This is a specific Committee with a specific function. And its function is not to go and say “Oh, give us a list of what you’ve spent on paint and pens” and what have you, that can happen in the Portfolio Committee. Here we are about the charges. I know you’re not a parliamentarian, but do you accept that as a general statement? This process is about the charges, not about broad general accountability, which happens in the Portfolio Committee. Do you accept that?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Okay. No, thank you very much. Okay, fine. I won’t bore you with the further details on that since you agree with me. Let me again, in fairness to you, and please don’t tell me that it was not your intention, because I accept it. It is not your evidence, is it, that the people whose names were listed there did not render genuine services, but were involved in anything to do with grossly negligent, fruitless and wasteful and unauthorised expenditure? That’s not what you came here to say about those ladies and gentleman, correct?

Mr van der Merwe: Can you rephrase the question, Chair, because fruitless and wasteful expenditure is something different than the genuine services that they were delivering.

Adv Mpofu: No, it is. Fruitless and wasteful expenditure is defined in the PFMA, you know that, correct?

Mr van der Merwe: Yes, that’s correct.

Adv Mpofu: Unauthorised expenditure and wasteful expenditure, those are defined in the PFMA, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Now, I’m saying to you, is it or is it not your evidence, that the people whose names and whose earnings were listed, have anything to do with fruitless and wasteful and/or unauthorised public expenditure? It either it is, or it's not. Is that your evidence?

Mr van der Merwe: Sorry, Chair. I’m thinking, because I’m still having difficulties in separating the two.

Adv Mpofu: No, take your time. Take your time, It’s very important.

Mr van der Merwe: Fruitful and wasteful expenditure would be the consequence on the authorising authority side. Whether or not the expenditure is fruitless and wasteful is not within the control of the persons that performed the service. So in that context, no, they wouldn’t have anything to do with the eventual decision.

Adv Mpofu: No, thank you. Thank you, very much. Mr van der Merwe. That’s... I should let you go home now, but unfortunately, I’m going to ask you a few more things, just for control and just to put other things in perspective, but me and you are finished now, we’re done. Alright. Now, let’s go to one of the issues which are indeed relevant to what I’ve called the peripheral issues. We’ve already mentioned the CIEX matter, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. Now you were involved in the CIEX matter to a certain extent, correct?

Mr van der Merwe: Yes, as explained in my affidavit, Chair.

Adv Mpofu: And your involvement predated the issuing of the report, correct?

Mr van der Merwe: Yes, on two occasions.

Adv Mpofu: Okay. But you were part of the mini think-tank on CIEX, correct?

Mr van der Merwe: That’s one of the occasions, yes.

Adv Mpofu: Well that’s not an occasion. A mini think-tank must have sat on more than one occasion, correct?

Mr van der Merwe: Sorry, I should have asked for clarification on what do you mean with involvement.

Adv Mpofu: No, Mr van der Merwe, please. Try and listen to my questions. I'm not trying to trick you. It's a simple issue. You were a member of the mini think-tank on CIEX, yes?

Mr van der Merwe: Correct.

Adv Mpofu: How many times or on how many occasions did that forum convene?

Mr van der Merwe: Once, and it didn’t convene, because we were not available. There was a request from the Public Protector that Adv Fourie, myself, Adv Matlawe and Mr Kekana join the mini-think tank, but I was injured, Adv Fourie was not available. So the think-tank did not sit, I provided written inputs to the draft that was provided to me at the time.

Adv Mpofu: Yes, and there’s an email which tenders your apology, because you were in hospital, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. That was round about March/ April 2017, correct?

Mr van der Merwe: Yes.

Adv Mpofu: I won’t hold you to, I’m just saying that it was the first part of the year. Let's be broad, as broad as that, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right, and that report we know it was issued in June, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right, and you had also attended the meeting at ABSA, correct?

Mr van der Merwe: One of the meetings, yes. We were sent to scrutinise some documents that were in Afrikaans, and my role was to translate it.

Adv Mpofu: Correct, to translate, yes. Then you were asked by the CEO to compile that... let’s call it research paper, correct?

Mr van der Merwe: No, the CEO’s request was for a submission to the Constitutional Review Committee. The research paper came later on when I made the observations on the submission, and the PP said I must then come up with ideas on how to establish a central bank, and that led to the research paper.

Adv Mpofu: Yes, and the document you do, ultimately, proposed that Public Protector South Africa should support the review of the Section 223 and 225 of the Constitution, correct?

Mr van der Merwe: It wasn’t complete. There were observations made, and in those observations, yes, there was support for a review.

Adv Mpofu: Yes, that’s fine. I know, I accept for now that you, you still, the paper was not complete. But, insofar as you had observations, at least one of the recommendations would have been the review of the Constitution and the Act, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And you also supported the amendment of the Constitution and the Act, correct?

Mr van der Merwe: We haven’t reached the point of saying whether the Constitution should be amended. We were just collating information that shows that it should be reviewed. And there were a number of options. In general, I would accept that it was suggesting a review of the Constitution. But to the extent of saying, yes, the Constitution, the amendments were… to what extent the amendments were going to respond to the issues that are raised, we haven’t concluded that.

Adv Mpofu: Yes, but Mr van der Merwe, let’s just be serious now. You were not suggesting a review for the fun of it. The idea was that the Constitution should be reviewed and revised to cater for those changes, correct?

Mr van der Merwe: I know how the process works, Chair. We submit proposals for a review whether that would be accepted is outside our control. If it’s accepted, yes, then it would lead to an amendment of the Constitution.

Adv Mpofu: Yes, okay. Thank you. That helps me. But I’m saying you were proposing both a revision and a... or rather review and a revision of the Constitution, correct?

Mr van der Merwe: That’s correct.

Adv Mpofu: Yes, so that’s, I don’t know then why you were differing with me when I’m saying… those words mean the same thing. I’m saying you wanted it to be relooked and amended, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. In fact, the reason I’m asking you this is because in your evidence you were so emphatic – you only wanted a review, but you never wanted an amendment. At least now that’s clarified. The amendment that you supported, you motivated for it, correct? In your paper.

Mr van der Merwe: I didn’t have a specific amendment in mind. I had a review in mind and I supported that.

Adv Mpofu: Alright, now we have to go back there. Mr van der Merwe, we’ve already passed that stage. You've accepted that you supported both reviewal and an amendment, correct?

Mr van der Merwe: Chair, it’s simple. There were principles that we supported, and we felt that should be accommodated – whether it could be accommodated in legislation emanating from the Constitution or the Constitution itself. The review was for the constitutional principles. I can’t commit to say, yes, we supported an amendment of the Constitution with the view of having specific wording or specific amendments in mind. I don’t know how to explain that.

Adv Mpofu: But who said that? Did anyone say that? I didn’t say anything about specific words in mind. I said in principle you supported the reviewal and amendment of the Constitution, yes or no?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. And I’m saying that in your paper, you not only supported the reviewal and amendment of the Constitution, you motivated that to be something that would benefit the greater number of South Africans, especially the poor, correct?

Mr van der Merwe: Can you just refer me to the portion of my paper?

Adv Mpofu: You don’t know your paper?

Mr van der Merwe: I do, sir.

Adv Mpofu: No, I’m asking you at a broad level, I’ll refer you to the specific paper. Suddenly, you know, what your views are or what your conclusions were. I’m saying, part of the support for the amendment that you advocated, was based on the fact that it would give a greater benefit to a greater number of South Africans, including the poor, correct?

Mr van der Merwe: Yes, that’s correct.

Adv Mpofu: Thank you. You also supported the amendment on the basis that the independence of the Reserve Bank would be enhanced by its reporting to Parliament, rather than to a Minister, correct?

Mr van der Merwe: In the context. It’s difficult to just say yes or no to that, because, yes, there were proposals for the enhancement of the independence through governance structures and reporting, but it must be said within the context of the paper. I’m not comfortable with saying yes or no, on a high level assumption basis.

Adv Mpofu: No, you can say whatever you want to say. Sorry, Mr van der Merwe, I’m not, I’m not boxing you in to say whatever.

Mr van der Merwe: I’ll prefer to speak to specific references in the paper, Chair, because to put it out of context and to say that I supported this on a high level or I supported that. My paper is very clear on what we were trying to achieve. We have not yet come to a... it wasn’t even a final product, to say I’m supporting. That is what the evidence, the research pointed to at the time. I didn’t complete the process and I didn’t submit it as a formal document to the Public Protector.

Adv Mpofu: Okay, Mr van der Merwe, I’m going to assist you. I will refer you to the paper. So that we don’t have to go back to this thing about it was not complete, which I’ve told you, I accept. So I’ll leave it only at the level of leaning. I’ll say that your paper was leaning towards more independence for the Reserve Bank, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And it was also leaning towards benefiting the greater number of South Africans, including the poor, correct?

Mr van der Merwe: Definitely.

Adv Mpofu: In motivating for those things, you pointed out among other things, that South Africa was only one of seven countries that have a Reserve Bank that is not owned by the state, correct?

Mr van der Merwe: Correct.

Adv Mpofu: In your paper, at paragraph 2.4. Sorry, if you can put it up – it's bundle H, item 3. Let’s just go to… you pointed out that you actually had a table... yes, at 2.4. Your table there shows that 77% of countries have fully owned...where the Reserve Bank is fully owned by the state or public sector, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And it shows that of the remaining 23%, 11% still have a majority or are half owned by the state or public sector, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And only 4% in the world have majority owned by the private sector, correct?

Mr van der Merwe: Yes.

Adv Mpofu: So that was on the issue of control. So the amendment amongst other things would address that problem, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And then on the issue of what you called... can you go to 3.5...the concept that you called “accountable independence”.

Mr van der Merwe: Yes.

Adv Mpofu: And when you came to that, then the amendment that you propose would deal with the the issue that I mentioned to you earlier of where the Reserve Bank accounts either to the Executive or to Parliament, correct? And you were leaning for the model where such an amendment would make it accountable to Parliament, for obvious reasons. Because Parliament is the forum of the people, supposedly, correct?

Adv Bawa: Chair?

Chairperson: Pause, Adv Mpofu. Adv Bawa?

Adv Bawa: I’m having difficulty in seeing in the paper where an amendment is being proposed. On a point of clarification, could Adv Mpofu please point us to that?

Chairperson: Okay, that’s in order. Thank you.

Adv Mpofu: Alright, okay. I’ll point it, well, the witness has said that he supported an amendment, and I’m putting it... pardon?

Adv Bawa: The question has been put to the witness that he supported an amendment and proposed one in the paper. Now I am asking Adv Mpofu to show us where in the paper he is referring to.

Adv Mpofu: Oh, I see. No, no, then you're completely out of it here. No, that’s, I’ve never said that. I actually said the opposite. I’m saying to him that I’m not suggesting that he had any wording for an amendment, but that he supported the amendment as a goal. And now I’m busy dealing with why he... or rather the motivations he gave for such an amendment. I’m not saying that he actually crafted the... in fact, I said the exact opposite. The witness also had your problem, but him and I resolved it about six questions ago.

Adv Bawa: Sorry, Adv Mpofu. I don’t want to interrupt you. I’m not sure you have resolved it. I thought initially when you asked and he answered you at cross purposes, but I didn’t want to interfere with you. But leading on from your follow-up questions, I’m not sure you’re on the same page, which is why I asked when you say he motivated for the amendment in the paper, I thought you’d agree that there was possibly a leaning but not a motivation. That’s why I’m now asking is it suggested that the paper motivates for an amendment?

Adv Mpofu: Yes, and the witness has agreed many times to that.

Adv Bawa: I don’t understand him to say that. The witness said that he was in favour of an amendment. I’m not sure that the witness said that the paper supported an amendment. That’s why I asked you to clarify that.

Adv Mpofu: Okay, thank you. I’ll clarify it. Mr van der Merwe, I know you’ve clarified this, but apparently Adv Bawa didn’t hear you. Did your paper support the idea that there should be both a reviewal and a revision, or an amendment of the Constitution, and the Reserve Bank Act?

Mr van der Merwe: Yes, just looking at the wording of paragraph 3.9, section...

Chairperson: Which paragraph?

Adv Mpofu: Sorry, Chair. Just please, before you do that, just answer the question. Answer the question first, yes or no, and then you can motivate. Did it do so?

Mr van der Merwe: Sorry, repeat the question.

Adv Mpofu: Did your paper, was it in favour of, or supported the idea or the call for the Constitution and the Reserve Bank Act to be reviewed and amended?

Mr van der Merwe: The word “leaning” you were using. I’m more comfortable with using the words “leaning to” a review and possible amendment.

Chairperson: You want to use the words “leaning to”?

Mr van der Merwe: Yes.

Adv Mpofu: Why, why are you scared of... why don’t you just use the words as they are? That you submitted the thing to be reviewed and revised or amended.

Mr van der Merwe: No, I thought we agreed, Chair, that we would use the word “lean”, because “support” is a conclusion and we haven’t reached that point yet. We were still exploring the principles that against which the Constitution should be reviewed.

Adv Mpofu: Yes. No, I was doing that just for the sake of progress, but Adv Bawa now wants us to be more specific. I’m putting it to you boldly now, that I’m using the word “support”, forget about “leaning”. That you wanted the Public Protector to support that call for the amendment and reviewal of the Constitution and the Reserve Bank Act. I’m putting it that strongly.

Mr van der Merwe: Chair, the purpose of the research paper was to put it for consideration of the Public Protector. I was exercising or performing a brief, to provide the Public Protector with the considerations for her to decide. And these were the considerations, that in terms of the brief that I was given by the Public Protector specifically, to look at reasons for the provision of a central bank. Is, these are the reasons that I proposed for her to consider. To jump to a conclusion and say I want the Public Protector to support something, which is a bit premature at the time when this research paper was still being drafted.

Adv Mpofu: I see. That remark is aimed at me, I’m jumping at a conclusion, at the wrong conclusion, correct?

Mr van der Merwe: Yes, it was a process.

Adv Mpofu: Okay. Now, okay, let me do it differently. I put it to you that your paper did not have the qualifications that you seek to introduce now, it was specific that the Public Protector must support the call for the revision and review of the Constitution. What do you say to that?

Mr van der Merwe: I disagree. The paper was not completed. This was not even the final product, I was not complete with my research. I could have changed it halfway, because I’m trying to be objective in the matter. This was at the time, the information that I have. Whether the final paper would have had the same contingents, is not something I can say. This was a draft at the time, in order to try and achieve what the Public Protector sought, or asked me to do.

Adv Mpofu: Yes, thank you Mr van der Merwe. We’ve all accepted that, you still had some work to do on the draft, but even a draft... in fact, that reminds me that I have draft heads that I have to finish. Even a draft contains certain parts that are, that are, that can make the direction of the document to be clear. I’m sure you know that, you’ve drafted many documents. I’m saying to you, your draft, okay, unequivocally supported the call for the amendment of the Constitution.

Mr van der Merwe: I can’t put it more clearly, that it being a working document, it cannot be set to unequivocally supporting something if it’s not done, sir. It was a direction as you’ve said, and that was the direction that my research took me. It was not complete as I’ve said, because I explained in my affidavit as well, that I’m not an economist, I’m doing this in terms of the brief that was given. In background, keeping in background with what I said, what led to this task is a consitutional submission. This is not a submission to the Constitutional Review Committee. This was a draft research paper for the Public Protector to consider, and it was in draft, there was no conclusion.

Adv Mpofu: No, Ill assist you. Okay, thank you Mr van der Merwe. I have sympathies with you, I’m also an economics dropout, I think I dropped out in economics 3 or something like that. So like you, I’m more of a lawyer than an economist. But, I’m saying to you, go to paragraph 1.2 that we can stop this torture. 1.2 I say... can you read it out? 1.2

Mr van der Merwe: “The Public Protector’s experience and observations on the current governance arrangements relating to the Reserve Bank confirm that it is necessary to reflect on the constitutional principles applicable to a fully-fledged central bank within the economic context of our country and the needs of our democratic society. The Public Protector therefore supports the call that the Constitution and the Reserve Bank Act should be reviewed and revised within the precincts of sound, rational and appropriate institutional arrangements around fiscal policy, and fiscal policy management and Central Banking, for purposes of aligning the act with the Constitution in order that Parliament may exercie oversight over it”

Adv Mpofu: Right. So the part which says the “Public Protector therefore supports”, you said “support” is a strong word, but there it is. “The Public Protector therefore supports the call that the Constitution and the Reserve Bank Act should be reviewed and revised...” and you and I agreed “revised” and “amendment” is the same thing; “within the precincts of sound...” and so on, all the other stuff. But, you accept that the governing part of that is that it supports the call for the amendment of the Constitution? I think you, in fairness to you, you’ve already answered that. But do you now see where I got it?

Mr van der Merwe: I see. All I’m saying, Chair, is that this was an interpretation of the Public Protectors brief. I was given specific instruction. This is how I interpret the Public Protector would in the end, if this is supported, what we are saying in the report, we propose it to the Constitutional Review Committee or whatever avenue was going to be proposed at the end of this research paper. So this was a proposed paragraph draft, it was not a conclusion. This is how I wanted the Public Protector to consider whether this is a correct interpretation of her personal, because it’s on behalf of the Public Protector. So I have to interpret, and I had minimum directives in terms of what exactly the Public Protector’s stance on this is, apart from the responses. So I had to interpret it, research, and then against that think how does it relate to our mandate, and what would the Public Protector’s response be in interpreting her brief to me.

Adv Mpofu: Okay, I don’t claim to understand that long answer. All I’m saying is that accpeting all the qualifications about the document was not yet finished. But, I’m saying at this stage, it was clearly proposing the amendment and reviewal of the Constitution. And I think you and I have agreed on that before Adv Bawa’s intervention, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Thanks. Alright, now that that is cleared. I’m saying that the... and again, in your favour, I accept that this view that you expressed here, let me say, was your preferred view to the original brief, which was almost like just to support the so-called Ubuntu clause, correct?

Mr van der Merwe: Is that an interpretation of the original brief, Chair?

Adv Mpofu: Sorry, no. Maybe it’s not clear, the question that I’m asking. I’m saying...remember the evolution of all this? You were given the brief with what was said to be a draft from Hon Ambrosini.

Mr van der Merwe: Yes, Chair.

Adv Mpofu: And it turned out from your research, that this was a manifesto of the Ubuntu Party, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And it also turned out that this whole affair was associated with Mr Goodson, correct?

Mr van der Merwe: That’s right.

Adv Mpofu: And you had concerns about both aspects. Both the fact that it came from a political party and it also came from let’s say a controversial economist, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Now, I’m saying, as a result of that you said you then preferred to take this route, the one that you and I have now just discussed, correct?

Mr van der Merwe: I was exploring this route as an alternative to the original brief, yes.

Adv Mpofu: Yeah, whatever you call it. But this was the... what I’m saying is this was the alternative route, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Thank you. So therefore this idea that the Public Protector... basically, what has been peddled in this Committee is that the Public Protector woke up one day, went to State Security Agency, met up a gentleman called Mr Moodley who wrote some amendment for her, and she plugged it into the CIEX report. That’s obviously nonsense, correct?

Mr van der Merwe: I can’t say to what extent this would have informed the decisions around the CIEX report, because I explained the sequence, the timeline, that this was only made available after the CIEX report had already been published.

Adv Mpofu: No, okay. Thank you, that’s fine. But I’m saying that your views on this subject were known. Even at the time that you expressed the reservations that you did, you suggested this alternative route a few months before the report was produced, correct?

Mr van der Merwe: No, Chair. I have never even responded to the PP’s directives. I’ve only expressed my reservations on the Goodson Ubuntu process. Nobody even knew how far I was or what my views would have been on the revision of the Constitution, at the time when the CIEX report was completed. I hadn’t communicated that to anybody. The first time I communicated it was to Mr Kekana, after the CIEX report was released. My views were not known.

Adv Mpofu: Okay, that's fine. I’m not talking about your communications to Mr Kekana in June, that I accept, Mr van der Merwe. I’m talking about your communication to Mr Nemasisi, when you were interacting on this matter. You remember? That's a different communication a few months before the report, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Now I’m saying in that communication you already expressed, yes, I accept you expressed the reservations about Goodson and I can understand where you were coming from. You express the reservations about basically just taking some political party’s manifesto, and I agree with you again on that. But the point I’m making is that already at that stage you had a view of what the alternative route should be, correct?

Mr van der Merwe: My view was contained in the draft submission to the Constitutional Review Committee, if you can refer to that, that is my view that I had at the time. The reservations and then the option, that was to the extent in the context of saying the Public Protector wanted to...that is how we put it. Again, it was not my view, it was in support or in execution of a task that I was given. The Public Protector wanted to make a submission to the Constitutional Review Committee. I didn’t agree with the submission of the legislation as a Private Member’s Bill. I was proposing that if that is what the Public Protector wanted to do, I was proposing an alternative and that’s contained in the draft one- or two-page letter that was prepared and also not finalised or accepted.

Adv Mpofu: Okay, Mr van der Merwe, again I think you’re really just making my life difficult for no reason. I’m trying to... make some progress with you, by reference to your correspondence, but I think you want me to take you to it. Go to page 4016 or NVM3, NWM stands for your initials, Neels van der Merwe, correct?

Mr van der Merve: Correct.

Adv Mpofu: Okay, so this is your Annexure NVM3. 4106, are we on the same page here? Okay. This is an email from you dated 30 May 2017, 10.43am correct?

Mr van der Merwe: Correct.

Adv Mpofu: This is before the CIEX report is released, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes, that’s the gist of my question that your views were made known before that. So that we don’t have to go back to it again, I accept your evidence, Mr van der Merwe, that you were asked to do this task, not specifically for the CIEX report. You were asked to do it for the Constitutional Review and what have you, please accept that I understand that. But, I’m not talking about that. I’m talking about your views, having been communicated to other persons. Do you understand the distinction?

Mr van der Merwe: I do.

Adv Mpofu: Good. Now I’m saying in the material that you were given, and I’m agreeing with you, you correctly raise concerns. First is that the document actually did not come from Hon Oriani Ambrosini MP, but it was included in Mr Goodson’s book and was part of a manifesto and what have you, we’ve gone through that. And you’ve raised those issues correctly, okay?

Mr van der Merwe: Yes.

Adv Mpofu: So I’m not disputing that, but here, this is where, what the gist of what I’m saying, this is what you say, and you say it again with the necessary respect as it were, because it’s about your boss as it were, or your senior... okay, at 4108, paragraph 4, you say, “It might not be my place but I feel that I would not be doing my duty to the Public Protector and this institution if I do not raise the fact that in the circumstances, I am concerned that the endorsement of the proposed draft legislation prepared by the UBUNTU Party and Mr Goodson, might pose a high risk for the Public Protector, particularly in view of the fact that she is under close scrutiny by all parties”. And then 5, which is the one that I’m going for now “In an effort to present a proper narrative for the PP’s call on the review of the Constitutional provisions on the Reserve Bank, I followed an alternative line of argument based on the need for oversight by Parliament in terms of sections 55 of the Constitution and the EFF Constitutional Court judgement. I am however hesitant to even suggest any reference to the UBUNTU proposed legislation...” which again I agree with “as per paragragh 4.8 of the PP’s Draft Submission”. Okay, so what you are saying here, if I’m paraphrasing it, is that having given those concerns, you are now proposing the alternative argument, and that argument, the content will be the same but it must not make reference to the Ubuntu proposed legislation, correct?

Mr van der Merwe: I won’t say the content would be the same. If you read it, it says “In an effort to present a proper narrative for the PP’s call”, the directive to make a submission to the Constitutional Review Committee came from the Public Protector, obviously it had to be motivated. The CEO was adamant that we should go ahead. It's not as if the Public Protector would abandon a submission to the Constitutional Review Committee. I was looking for another base to make that... to give effect to the PP’s call for review, in order to present a balanced need and think of what motivation the Public Protector, within her remit, can offer to the Constitutional Review Committee. So it’s in that context that...

Adv Mpofu: Yes, I accept that... sorry, finish. I’m sorry to interrupt you.

Mr van der Merwe: But it was just a proposal. I said I followed an alternative line of argument. This was in execution, as I’ve said, of a directive, that the CEO made it clear that we were to make a submission to the Constitutional Review Committee, that was the PP’s instruction, and this is how I sought to execute that instruction.

Adv Mpofu: Okay, okay, now I think you’re changing your evidence, but I understand where you’re coming from. And again, I'll give you the benefit of the doubt. I’m not disputing that the original instruction to do this work came from the Public Protector, do you understand that?

Mr van der Merwe: Yes.

Adv Mpofu: I’m also not disputing that there was a draft submission, do you accept that?

Mr van der Merwe: Yes.

Adv Mpofu: Yeah. All I’m saying, Mr van der Merwe, so that we just move on, is that having... in the spirit of what you said, you were, you said in the morning that you had the freedom, if you have a different view in your professional judgement, you could have told them that this whole thing is just a lot of rubbish and you don’t think that it has any merit. But I’m saying you carefully made the qualifications correctly about the political connotations... made the qualifications about the controversial person involved in this, but having dealt with those things, then expressed a view about an alternative way to pursue this in an alternative way. That's all I’m saying. I’m not accusing you of anything. It's here in black and white. Do you accept that?

Mr van der Merwe: Yes, but again I have to qualify it. This means that what we know at the time, because I’m taking it back to the question you asked me about the reference, that this was known at the time that the CIEX report was drafted. What is known from this is that the Public Protector wanted to make a submission to the Constitutional Review Committee, and I was exploring the options for her to make that. So that’s the objective fact that is there prior to the CIEX report.

Adv Mpofu: Yes, Mr van der Merwe, I’m not even prepared to accept that, for the sake of progress. Let’s assume there were two exercises. One was the Constitutional Review Committee, the other one was the CIEX report that the Public Protector was busy with. And at some stage, the two converged. I’m saying the reason for that is that both the CIEX report, ultimately, and your exercise, were dealing with sections 223 to 225 of the Constitution, which deals with the mandate of the Reserve Bank. Are you at least happy to accept that? The two things might have started separately, but they were dealing with the same subject?

Mr van der Merwe: That’s correct.

Adv Mpofu: Thank you very much. Okay. So to the extent that your views from that separate exercise might have found their way into the CIEX report, it’s not, I’m not accusing you of having written something for the CIEX report. I’m simply saying that whatever you were dealing with, happened to be the same subject matter. Okay. Now the next question is in what context, and again so as to help you, I accept that when you sent the document to Mr Kekana, it was the day after the release of the CIEX report, correct?

Mr van der Merwe: Correct.

Adv Mpofu: So let’s put that aside. Now in what context was this exchange between you and Mr Kekana who was busy with the CIEX report, and you giving him the paper? Let’s call it that.

Mr van der Merwe: I tried to see from my records what preceded this exchange, and I can’t recall whether he called me or I called him, because in my email to him, I refer to a discussion. And I was not sure, in relation to a later request that I should help with the media enquiries, or just the fact that I had been doing some research, and that either I mentioned it to him or he asked me about it, the progress. So in honesty, I can’t recall what was the exact sequence of the context of that discussion. I only know that I gave it to him at that point in time for the first time.

Adv Mpofu: Yes, but it’s clear from that email exchange, that there was a discussion between you and Mr Kekana, because actually you refer to the discussion, you say... “in relation to our discussion”, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And in the next email you say to him, anyway please show me the report, I’ve not seen the final version, correct?

Mr van der Merwe: Yes.

Adv Mpofu: In other words, you had seen earlier versions but not the latest version, correct?

Mr van der Merwe: The only version I saw was the mini think-tank version, which has an executive summary, which did not even have a revision of the Constitution at that point in time in mind.

Adv Mpofu: Yes, I’ll accept that, Mr van der Merwe. You know, the problem is you anticipate what I’m asking. I’m asking you a simple thing. If you say I’ve not seen the latest version, that means you’ve seen at least one earlier version, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. And after the email you and I had discussed on 2 June you did a follow-up to the CEO, that you’ll find at 4111...

Chairperson: Almost there, okay. There you go Adv Mpofu.

Adv Mpofu: Thank you, okay. This is you writing to the PPSA CEO, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And you CC’d Mr Nemasisi and Mr Joseph Lephogole. You said this is confidential, then you say “I am sorry to bother you, but I was wondering if you had the chance to look at the issues raised in the emails below, or to consider the draft submission to the Constitutional Review Committee (excluding the potentially controversial draft legislation proposed by the Ubuntu Party and included in Mr Goodson’s book)?”. That’s still in line with what we discussed earlier, that you wanted the alternative proposal without reference to those gentlemen, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And in line with what we have said earlier, what you’ve testified earlier, that the PP was not averse to different views. Go to 4110. This is an email on 7 June, again, before the release of the report, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And the Public Protector says in response “Dear CEO, I am aware of Neel’s concerns...” in other words, all the issues that you’ve raised, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Okay, she doesn’t differ with them, she acknowledges them that she’s aware. Okay?

Mr van der Merwe: Yes.

Adv Mpofu: Okay. Then she says “Can he...” that is Neels now, “...propose how we can amend the Constitution to have state bank and Parliament to oversee the state bank?”. That was sent to you on 7 June, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And you received it, correct?

Mr van der Merwe: Yes.

Adv Mpofu: So from that one, there’s no ambiguity. Just either it’s a mere review, and even an amendment or whatever, or whether the review is synonymous to amendment. It’s specific, can you draft / propose how the amendment of the Constitution to have the state bank and Parliament oversee the state bank, correct?

Mr van der Merwe: Not can I draft the amendment, can I propose how, that’s exactly what I was exploring. If and how.

Adv Mpofu: That’s fine. Can you propose how you can, we can amend the Constitution to have state bank and Parliament to oversee the state bank. That was the instruction, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And in the... what, what did you do for this?

Mr van der Merwe: When I saw this is when I started with the research document. That is how I then did the first paragraph, and this was in execution of not only how, but if and how.

Adv Mpofu: No, you can’t amend... no, you want to change the instruction. Okay, but even if you change it, your paper is very clear, it then talks about what you and I have discussed earlier. You then embark on the task of the review or amendment of the Constitution in your paper, correct?

Mr van der Merwe: No, my methodology is clear. You said it yourself, the PP values my input. So while I was executing the task, I was also mindful of the fact that, just like, because we had a similar exercise in terms of the Expropriation Bill. My job is to, just like I did with the execution of the first task, not only blindly follow and say, yes, this would be the amendment. I was exploring that if we were going to ask for amendments, these are other considerations we want to put forward for the review. That was not concluded. I was not even there at the point where I would say how we would be amending the Constitution. I was just looking for the motivation. What were the principles that we could review in such an exercise. That’s my methodology, and that’s how I work.

Adv Mpofu: Yes. No, no...

Chairperson: Maybe on his methodology, we’ll pause.

Adv Mpofu: We pause on methodology:

Chairperson: We take a tea break and be back at quarter to. Thank you.

Adv Mpofu: Thank you, Chairperson.

[Break]

Chairperson: Mr Cornelius van der Merwe. Are you with us?

Mr van der Merwe: Yes.

Chairperson: Thank you. Thank you very much. Welcome back, we resume. Over to you.

Adv Mpofu: Thanks Chairperson. Mr van der Merwe... sorry. Yeah. No, I was saying that the reason I’m taking you through all this, is to debunk one of the key narratives in the Mazzone motion, and the theories that were put across here. What actually happened here is that the Public Protector, as was said in the EFF judgment, touched the untouchables, the powerfuls of South Africa and dared to suggest that there should be an amendment, which is in the interest of the poor masses of our people. Then they climbed on her like a ton of bricks until she’s here today. And the basis of that is that this was just some frolic of a mad black woman, who just woke up one day and decided that the Reserve Bank should be nationalised, and all sorts of horror stories. So that’s why we have to take it through bit by bit where this actually came from. Right, now I was saying, since we’re on that topic, you are aware that the Public Protector was... shall we say harassed or targeted by the Democratic Alliance from day one, from the day even before she went into the Office, before she knew the Office address. There was that hype and hullabaloo. You’re aware of that?

Mr van der Merwe: Yes, I mentioned it, that she was under close scrutiny.

Adv Mpofu: Mr... we just heard “yes”. The rest you’re cutting, and looks like you’re freezing. Are you back?

Mr van der Merwe: I hope so. Can you hear me, Chair?

Adv Mpofu: You started, yes, and then you said something. Sorry, the, what was the rest of it?

Mr van der Merwe: Yes, I can’t attest to the exact sentence apart from the fact that I know the PP was under close scrutiny from political parties.

Adv Mpofu: Yes. No, fine. Something like that, as I say, even before she set foot in the Office, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. So we’re going to demonstrate fully when the Public Protector testifies that that is really what all this waste of money and time is about. It is in pursuit of those two things. Her harassment by the Democratic Alliance before she even started, which led to the Mazzone motion, eventually. And her work where she touched the untouchables, the economic untouchables and the political untouchables in relation to other reports such as CR17. Now you know that the Democratic Alliance called her a spy, correct?

Mr van der Merwe: I know about the media reports, and I know about the defamation. I don’t recall, I can’t remember where it came from, but from the documents I saw, there was an allegation – that it was made in July or so 2016.

Adv Mpofu: Right. And you’ve already answered my next question, which was the labelling her as a spy by the DA, led to litigation which went to various courts, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And that from as far back as probably 2017, after the initial scrutiny, that’s what you call it, there were calls for her removal by the DA, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. Unfortunately, they did not have... the rules were not in place. In fact, that was pointed out in the letter that was written by Mr Ngobeni, that the DA’s ambitions could not be fufilled without there being rules, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. Then round about 2019, the process, yeah, that was around the time that the Chairperson here called her incompetent. There were debates in the parliamentary structures about the compilation of those rules, and the need for rules, firstly fashioned as removal of the Public Protector and subsequently fashioned as removal of Chapter 9 institutions. Correct? Or rather heads of Chapter 9 institutions. Remember that?

Mr van der Merwe: Insofar as it’s in the public domain, yes, I can’t confirm the detail.

Adv Mpofu: Yes, I accept that. Ultimately, at that time, it was Mr John Steenhuisen, who was the Chief Whip and he proposed a motion for her removal and then it was withdrawn once they realised that you needed rules, correct?

Mr van der Merwe: Again I can only assume that it was in the public domain. I don’t have details to confirm that. I haven’t looked at any records to say who was it, but as far as my recollection is, that is a fair narrative.

Adv Mpofu: Okay. Fair enough. I’m not saying you have intimate knowledge, but whatever the source whether it’s the public domain or whatever domain, you are aware of that history, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. Then this ultimately led to on 3 December, okay, if you don’t know the date, obviously you don’t have to comment, but sometime in December 2019, the National Assembly finally passed the rules, correct?

Mr van der Merwe: With that qualification I don’t know the date, yes.

Adv Mpofu: Yes, you can take it from me, it was 3 December. That’s fine. And then, within literally 72 hours thereof, there was the motion of Natasha Mazzone on the removal of the Public Protector. Again, you don’t have to have counted the hours, but if you know, broadly, that shortly, within a day or two after the passing of the rules, there was the first Mazzone motion. You’re aware of that?

Mr van der Merwe: Yes.

Adv Mpofu: Then we, and this part you may not know, we wrote a letter, or rather, the Speaker of Parliament announced in the media that there was going to be the motion to remove the Public Protector without even telling her. She just saw it, she was on her way to Mpumalanga, I think. And she saw that she was now going to be impeached. Then the attorneys, and us, the team here, wrote to the Speaker, to indicate various things about the defects in that motion, including the fact that it related to all these court cases, and it could not be applied retrospectively. In other words, a motion for the impeachment of the Public Protector should deal with things that happened after 3 December 2019. Otherwise, those rules would be applied retrospectively. Again, you don’t have to have read the letter, but do you understand the point I’m making about that objection.

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Thank you. Yes. Ah, out of the blue, a Mr Samuel came up with an affidavit, I think on 10 February, making allegations about this and that and the other about the Public Protector. A week later or so Ms Mazzone withdrew her motion and included Mr Samuel’s affidavit, and the retrospectivity problem was resolved. So that motion was resubmitted on 21 February 2020. Again you don’t have to know the date, but thereabouts, let’s say just before the Covid outbreak, okay?

Mr van der Merwe: Yes.

Adv Mpofu: Right. And then the second Mazzone motion, which had reported to cure the issues we pointed out, then was the subject of litigation and that’s where I’m coming to now, to the topic that you and I are going to get into in more detail tomorrow. You know, that then culminated in litigation, which is in a way still ongoing, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. Now one of the reasons, or one of the theories battled in this Enquiry, and why some of us have been defamed and linked with looting and all sorts of things is because that litigation, which then started as a result of what I’ve just told you, as I say, has been going on almost nonstop until today. Or at least until 24 November, which I suspect might not be the end of it. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And it is that litigation that is probably the highest of the expenditures on fees that’s on your schedules, correct?

Mr van der Merwe: I think it’s one of the highest. I’ll have to check if it’s the highest.

Adv Mpofu: Yes. Well, it probably might even be the highest. Oh well, insofar as it is, it’s still ongoing. If there’s any rival to it, it would be the Gordhan related litigation, but we’ll talk about that separately. I just want to talk about the... so those two are the, let’s call it the number one and number two in the so-called expenditure schedule, correct?

Mr van der Merwe: Yes.

[Load shedding interrupted proceedings]

Adv Mpofu: Right... okay we should have bought coal instead.

Chairperson: I hope the change will come soon.

Adv Mpofu: We can still hear you or rather we can still see you, but...

Chairperson: Mr van der Merwe are you there?

Mr van der Merwe: I am here, Chair. I see that you are in the dark.

Chairperson: That’s fine, we’ll just pause for a minute or two.

[Meeting resumed after one hour]

Chairperson: Okay, thank you for holding on. We have lost a very precious hour and I will try and get it back so that we don’t run out of time. My apologies to Adv Mpofu for the disruption, which might disturb the flow of cross-examination, and to yourself Mr van der Merwe and everybody else, colleagues. I don’t know why it should take so long, more than an hour, such a disruption. We’ve lost that hour indeed. Mr van der Merwe, are you ready? I’ll now hand over to Adv Mpofu to interact with you.

Mr van der Merwe: Thank you, Chair.

Adv Mpofu: Yes, thank you Mr van der Merwe. I was still in the process of narrating the history of how we got here. I was specifically zooming into your area of testimony, which we’ll deal with again, in more detail tomorrow. I was saying that, and I think you agreed, you can confirm it, that often, cases that you listed in the total spend of the past five or six years, the highest spend would have been in the matter to do with this Committee, which started in February 2020, and is still continuing in some form or another. I’m just calibrating where we stopped. Do you agree with that?

Mr van der Merwe: Yes, that’s correct. Yes.

Adv Mpofu: Thank you. Now when the Public Protector testifies, she’s going to indicate, and again, you may or may not be aware of this. If you are you’ll confirm with me or if not then we’ll move to the next point. The spend on that case, which, if you ask me is probably now... if you take the total spend, in other words, the cost to the taxpayer on the Public Protector, the Speaker, the Chair of this Committee, the President. I wouldn’t be surprised if the spend on that case is almost approaching R100 million. Anything between R60 million and R100 million, and still going. But I suppose you can’t speak for the others, but on your side, it is quite astronomical, correct?

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

Adv Mpofu: Not to mention the amount of money that you are spending on this process, which you might still have to spend for the next number of months. Which will add to that bill. How many millions, maybe more than ten, correct?

Mr van der Merwe: Yes, the estimate is difficult, but yes, it will be a significant amount, Chair.

Adv Mpofu: Yes. The point I’m making is that all that could have been avoided. The Public Protector will explain that had her... and please, for reasonableness, and this is the part that I’m saying you may or may not be able to confirm, but are you aware that in January / February 2020, the Public Protector repeatedly pleaded with the Speaker of Parliament, that the matter should be resolved amicably. Even the litigation managed in such a way that it could have been resolved. The litigation could have been finished in 2020.

Mr van der Merwe: Yes, I can’t comment on that.

Adv Mpofu: You not aware?

Mr van der Merwe: No.

Adv Mpofu: All right. Okay. Alright. And, well, when the Public Protector testifies, she will indicate that. It’s not even something that is denied by the other side. But assuming for now that that is true, assume that the Public Protector tried unsuccessfully to ensure that the litigation would have been finished around 2020, one way or the other. Let’s assume that litigation would have led to an Enquiry like this one. If it had all happened in 2020, by now this would have long been finished and we all would never had to spend that money. Do you agree?

Mr van der Merwe: Just contextualising it, Chair. Yes, if the litigation was avoided, obviously, it would have saved a lot of costs.

Adv Mpofu: On all sides. As I say, it doesn’t matter now for the purposes of this question, whether we’re talking about the spend of the Public Protector, or the Chairperson of this Committee, or the Speaker, or the President, it all comes from the taxpayer, correct?

Mr van der Merwe: That’s correct.

Adv Mpofu: Right. And the attitude that says, look, don't try to tell us – either start the process or agree on this. And the other – we will not move until there is an interdict from a court for us to do something. It would mean all the steps had to be followed: Part A, Part B, Appeal; then Part A, Part B, appeal. I don’t know how many times over and over, getting us to where we are now, correct?

Mr van der Merwe: I’m not sure what is the question. I agree with the narrative that there has been these steps. As far as I’m aware, I can’t vouch for details, but I’m aware of that.

Adv Mpofu: Okay, let me ask it differently. Let me ask this differently. This amount of money, which I’ve estimated is made up of Part A of the 2020 case, Part B of the 2020 case, and the Constitutional Court hearing of that case. And then Part A of the recent case this year, Part B of that case, and now the Constitutional Court litigation on that case. Both of which cases in the Constitutional Court, the President or the National Assembly lost the case, and appealed all the way up until the Constitutional Court. That’s a fair summary of your understanding? In other words, they were the appellants at the Constitutional Court.

Mr van der Merwe: In the latest matter, yes. I will have to check exactly who are the parties. But it’s a fair summary.

Adv Mpofu: Thank you. You can take it from me, they were the appellants and we were the respondents in the first case as well. This is the case which eventually came up with the decision that the Public Protector should be legally represented. That’s why I’m here, so you can believe that that is what happened. Accept that?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. So that’s what, okay, that’s fine, I think that then covers that – at least those are the major six steps, or five, the sixth one is coming in two weeks – which form the large bulk of that amount of money that the taxpayer has had to expend? Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. That’s fine. As I say, we don’t know the end of it, because this process is still continuing. So is that litigation in the Constitutional Court as we speak, at least as of today, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. This then relates to the issue of... Okay, no. Let me do it like this. The letter that I’m talking about where the Public Protector was pleading that this matter could be resolved, which could have avoided all these tens of millions of rands, was actually ironically written by Seanego Attorneys. As I say the attitude of the Speaker was that 'you’ll have to go to court'. But, my question to you is that at that point, neither the Public Protector nor Seanego Attorneys would have known that the response would be negative and lead to all the tens of millions of rands being spent, correct?

Chairperson: Just a pause Adv Mpofu. Adv Bawa?

Adv Bawa: Chair, I fully appreciate that Adv Mpofu is steeped in that litigation, but as Evidence Leaders we’ve not really been involved. We don’t know what letter he has been referring to at all. Can we possibly get a copy of the letter? I know the Chair might have it or the Committee might have it, and Adv Mpofu has probably got it right there.

Adv Mpofu: Thank you, Chair. That’s a fair request. Yes, the Chair has it, but in wearing another cap. And the Parliament has it also, well the Speaker has all that correspondence. Chair, we will oblige and we will get it from the records, specifically for this process. And that’s why Chair, I was asking in general terms. I was aware of that, but I think it’s a fair request.

Chairperson: That’s fine.

Adv Mpofu: Okay, assuming again, I’m not making it up, that such correspondence exists. And I accept that you haven't seen it, Mr van der Merwe. The simple point I’m making is that neither the Public Protector's Office, and I mean someone in your position, I know at that stage you were not in the legal department, but neither you as the client nor your attorneys would have known that the evolution of the matter will end up to what I’ve described, into a R100 million spend matter, when the brief or the instruction was given to Seanego, correct?

Mr van der Merwe: Again, I’m just trying to contextualise it. It would be highly speculative to say what was expected at the time. Looking at it now I can assume that that was the thinking – that it would not have been expected to escalate to this matter.

Adv Mpofu: Thank you. No, I’m happy with that. The point I want to make, which I’m driving at, which I’m going to argue at the end, Adv van der Merwe, is this. When we are told that Seanego got the lion’s share of the work, in reality the cases that I’ve described to you, six of them, which all – well two going to the Constitutional Court, those are aftermaths of the same instruction. In other words, there was an instruction in 2020, nobody would have known that sitting here in 2022 we’re going to be on case number 10, I’m not even counting the other tentacle cases. Of that very same instruction, it is one case. It's not 10 cases, but that case has resulted into 10 cases and R100 million, and I’m not putting my head on the block for the amount – a lot of money. You get where I’m going?

Mr van der Merwe: Yes, Chair. In this instance, as the head of legal I’ve put some facts in writing to Mr Seanego, I would have to qualify that. Though it is rising from the one matter, I had an issue with the way whether every mandate in instruction was properly in terms of governance process. But I think you’re not referring to the internal governance procedures, you're referring to the matter as arising from generally the same cause of action.

Adv Mpofu: Yes. Okay, fine. I don’t even want to go into that. But I want to explain to the Committee, remember the Committee Members, public representatives, they just see a big figure. I’m trying to put that into perspective. That actually it’s one case. And let me end it like this, maybe. Would you agree that in your experience now, the extent of which I don’t know. But would you agree that if a complex case like that, let’s assume tomorrow someone were to say, no, Seanego Attorneys must move from that matter. That entire institutional memory of the same attorney who had been handling it, the new one would probably cost millions, just before you even start, because they would have to familiarise themselves with the case from February 2020 up to now. Is that a fair assessment in your general experience?

Mr van der Merwe: Yes, as a general proposition on a complex case. That’s correct.

Adv Mpofu: Yes. Just as, I know there was a false accusation about withdrawal a few weeks ago. But just let’s assume there was such a withdrawal. If a new team were to come in now, into this Enquiry, and they have to go through 20 000 pages of paper that has been generated. That would cost, as I say, probably millions and millions of rands before they even write one letter, just familiarising themselves, assume attorneys, one senior counsel, one junior or two juniors. Would you agree?

Mr van der Merwe: Yes. Unfortunately, as a general proposition, yes. Unfortunately, I’m wearing two hats, as the person who would have to foot the bill or manage the expenditure as well. So I would have to.

Adv Mpofu: Okay. No, I understand that. I’m just saying, any lawyer should be able to answer that. And in respect of any matter, quite frankly. The point I’m simply making is that, the fact that it’s a complex matter just makes it worse. The general proposition I’m making is that if you have an attorney and a team of counsel who are familiar with a particular matter, and you change those teams somewhere halfway or at any stage, that entails a cost, an extra cost, because the new team obviously has to familiarise themselves first, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. So you can multiply that, if it’s a complex matter, that has already cost you R20 million, it might cost you more. But even if it’s a small matter,that costs R100, that principle applies, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Thanks. Now that we’ve got that in perspective, and I don’t want to go through the same painful blow by blow experience. The second matter of the same magnitude where the instruction went to Seanego was the, let’s call it the Gordhan matters, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And in respect of those matters, what I’ve just described actually is chicken feet. Because those matters went to the High Court...SCA, application for leave to appeal, ConCourt, application for leave to appeal. I’m not counting the small matters in between. But let’s just say both of them at least, the so-called Pillay matter and the Rogue Unit matter ended up in the Constitutional Court. One of them, the last judgement was handed down today. Correct?

Mr van der Merwe: Yes, that’s correct.

Adv Mpofu: Yes. And again, it’s a series of, it’s the same instruction which started in 2019. Was the last election in 2019? Which started in 2019. And as I say, it culminated today in a lot of money spent for... I remember in one of those matters, I was leading one team, and there were four teams, I think, against me. One was representing Mr Pillay, one was representing Mr Gordhan, the other was representing Mr Magashule, and I don’t know who the other one was representing, but maybe there were three. But each of those teams had senior counsel, attorneys and all sorts of people. From 2019 up to now you can just imagine the astronomical cost on all sides would also come close to the R100 million figure. Correct?

Mr van der Merwe: Well, I can speak about our expenditure.

Adv Mpofu: Fair enough. Okay, let’s assume we were, and when I say we, I mean you and I are now on the same side. Let’s assume that we were one of those four teams. Would my estimate be not reasonable?

Mr van der Merwe: Yes, I can’t say hundreds of millions, but yes. If you look at our expenditure and think this is from four sides, then I think it can come close to I think R80 to R100 million.

Adv Mpofu: Yes.

Mr van der Merwe: Again the only point I want to make, now looking at our point of view as the Public Protector's team, so to speak, is that instruction was also, if you like, a single instruction. Okay, I know it was two, because the cases were interrelated. But two interrelated instructions, basically dealing with the same parties on both sides. Correct?

Mr van der Merwe: Yes, correct.

Adv Mpofu: And what is more about that one, is that, unlike the first one, which I’ve demonstrated, was instituted, reluctantly, by the Public Protector, after being rejected by the Speaker with overtures of Cooperative Governance. In the case of the second big case where that much money was spent, actually, this was a case brought against the Public Protector, not by her. Correct?

Mr van der Merwe: Yes, I’ve been thinking about this, because in my evidence, I was referring to the fact that Mr Gordhan was the subject of a lot of investigations against the PP. So a simple answer is, is difficult, because I can’t, I have to speculate who initiated but I haven’t drilled down in the case that was brought against or by the Public Protector. From my perspective, because I wasn’t involved in the litigation itself. I just have an overview of the parties and the costs that were incurred.

Adv Mpofu: Yes. Fair enough. And actually, my question is too broad, and to some extent inaccurate, because of its broadness. So I’ll break it down. You don’t have to speculate. Insofar as it is a review, it should follow as a matter of logic that the Public Protector was not reviewing her own report. So it must've been somebody else who did the review, correct?

Mr van der Merwe: Yes, she would have been the respondent.

Adv Mpofu: Yes, so there’s no doubt about who initiated that. To the extent that my question was inaccurate, let me correct it like this. The qualification is that, of course, once the first set of litigation happened, it would have been the Public Protector appeals and takes the matter further. So I was just talking about the initiation of the matter, but it’s subject to that qualification. Do you accept that?

Mr van der Merwe: Yes, I just have to check the facts in terms of the original application related to that, the one with Mr Ndou and the PPSA, but I don’t have enough facts to say who initiated. But as far as the review is concerned, yes.

Adv Mpofu: Yes. Thank you. Okay. Now okay, I was going to clarify. Okay, that qualification, I’m happy with it, because it saves me from having to testify. Okay, fine. Now alright, so let’s then pack all those, because that is the perspective of all this. Instead of just putting big figures around, but seeing them in perspective. I’m not married to this because I’ve not done the exercise but would you agree that whole lump sum of I think it’s R147 million, whatever, over the years, that we’re discussing, a big chunk thereof, and I’ll give you the percentage tomorrow, would come from those two cases that we just discussed?

Mr van der Merwe: Yes, according to the figures at my disposal, it’s R16 and R19 million, so it’s about R35 million. Give or take.

Adv Mpofu: Yes, fair enough. Let’s just say there’s no other combination of two cases, that would come up to R35 million. All the other amounts would be split into smaller chunks, correct?

Mr van der Merwe: Yes, closest to that is the ABSA/CIEX matter.

Adv Mpofu: Yes, correct. You’re right, the third, yeah. In that series, if you were to say which are the three big matters in that spend, yes, I agree with you. It would be National Assembly, the Gordhan matters, and Absa matter, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. Which then brings us back to the ABSA matter, where you gave the advice. And part of the recommendation for what ultimately caused the furore, which was the proposed amendment of the Constitution. In the manner that I explained, in the indirect manner that we explained earlier.

Mr van der Merwe: Chair, I have to qualify that, because I know that’s the narrative that Chair wants to present, but as I said, I’ve put it in perspective, exactly how it came about. To in the end say that I gave that advice – because the only narrative that would have been close to any information that the PP would have had in mind was the fact that she wanted to amend or review the mandate of the Reserve Bank. And I was working... the only sentence, and I’ve looked at it, where I made any suggestion before the ABSA report was, I followed an alternative line of argument based on the need for oversight by Parliament, in terms of section 55 of the Constitution. Now I am however hesitant to suggest even any reference. To suggest that I gave the advice that led to that, I can’t say what informed the Public Protector’s. All I’m saying is that one sentence is unlikely to have constituted the advice. If that is the proposition, I am not agreeing with that.

Adv Mpofu: Right. It is the proposition. Okay. Then that means we’ll have to do it the hard way now. Alright, your involvement... let’s, can we, will you be comfortable if I say you played a significant role towards the proposal for the amendment of the Constitution? I don’t put it higher than that. I’m not saying it was your sole baby, but that you played a significant role. Happy?

Mr van der Merwe: No, I can’t say that, because that research was not even in the frame in the terms of reference, when that recommendation or remedial action was taken on the amendment of the Constitution.

Adv Mpofu: Mr van der Merwe, please, we spent a lot of time on this.

Mr van der Merwe: Yes, and we don’t agree.

Adv Mpofu: I accept, okay... in case you’ve forgotten. I accept. A, C, C, E, P, T. I accept that your document was only given to Mr Kekana a day after the CIEX report. Do you, can you believe that? Do you accept that yourself?

Mr van der Merwe: That’s not in dispute.

Adv Mpofu: Okay, good. So let’s not go there. I have demonstrated to you that, in spite of that, your views on this have been made known, at least two, two to three months before the release of the CIEX report. Let’s forget the Kekana thing. Do you dispute that now?

Mr van der Merwe: Yes. No views, a single view, that if the PP wanted to pursue the amendment of the Constitution, we have to follow an alternative route. It’s not a view, it was a proposition of the route we needed to follow. It was not on the merits of a review or the merits of any of the matters. It was just an avenue.

Adv Mpofu: Yes, let’s call it an avenue, a proposition, whatever word you like. That avenue and proposition, would you agree that it contributed to the ultimate decision to make a recommendation.

Mr van der Merwe: No, it can’t. No, it can’t. Because, we were, it can’t, because we were proposing to write to the Constitutional Review Committee with a broad research paper, based on our findings, to propose a review. What the CIEX report was, to come up with wording and not to make the proposal for a review, but actually to direct the recommended amendment of the Constitution. There's a vast difference between what I was doing and the CIEX... I can’t see and I cannot change it in any other way, but I can’t see how the single line in that email could have informed the remedial action in the ABSA matter. And I’m not lounging on this, I cannot see that that informed the Public Protector’s decision. It’s impossible.

Adv Mpofu: Alright. Alright, okay. Apart from that single line, did you also draft the letter to Parliament?

Mr van der Merwe: Yes.

Adv Mpofu: And that was not a single, it was four pages correct.

Mr van der Merwe: I’m verifying the letter, yeah, it’s a little bit more than four pages.

Adv Mpofu: Okay, my version is four pages. And that detail will be found at page 24117, can we put it up now? And while we’re putting it up, you and I have accepted that when you were talking about the review of the Constitution, that obviously was not just for fun, it was linked to the review, and it’s changing to fit with whatever the Public Protector wanted to achieve, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. Now if we understand... and then your letter, let’s look at your letter. This is, the Public Protector asked you to draft this letter, because of the work you had been doing on this matter, correct?

Mr van der Merwe: No, I draft this letter as an alternative. Like I said in paragraph five, because I could not execute the directive of the Public Protector to endorse the Ubuntu...

Adv Mpofu: Yes, yes. Fair enough. So even better. So you drafted this of your own accord, correct?

Mr van der Merwe: No, sir. I drafted it as a response to the Public Protector’s directive.

Adv Mpofu: Yes, I understand that Mr...

Mr van der Merwe: I had an alternative to the directive that I was given to come up with something else that the Public Protector could consider, as opposed to the risky one. But whether the Public Protector would consider it, I can’t say.

Adv Mpofu: Yes, yes, Mr van der Merwe, I’m with you 100%. The only issue I’m saying is you drafted this of your own volition, as part of that proposal for alternatives. That’s all I’m saying. I’m not saying it was your original idea or whatever. But you Mr van der Merwe woke up one day and decided to draft this letter of your own volition. That’s all I’m saying.

Mr van der Merwe: “Own volition” doesn’t apply to this, because it would imply that I drafted it just as an own initiative. I think the word “volition” means that it came from me. But it... can you still hear me Chair?

Chairperson: Yes, proceed we can hear you.

Mr van der Merwe: Yes, so to put the word volition in this, this is not my own volition. I was executing a task. This task was to come up with an interpretation of the Public Protector’s directive. This was not my directive. It was to say to the Public Protector if you were to do it, this is the way. It was not me putting words and advice in the Public Protector’s ear about how she can do it. This was about interpreting her directive, and say, as opposed to the directive of just endorsing a letter, this was an alternative way. We don’t even know what value, I don’t even have an idea, so I can’t comment to say that this was exactly the advice that the Public Protector informed the ABSA. Because, first of all it’s far removed from the conclusion that was reached there. These were just pre-emptive ideas of saying this is the alternative. So to draw any conclusion on the weight thereof, for me, it would be highly unfair on me.

Adv Mpofu: Okay, okay, let’s try again. I don’t know how many times I’m going to say this today, but Mr van der Merwe, I accept that this was the original idea, it been communicated to you by the Public Protector. If you don’t believe me, well, I don’t know. So when I say you did this of your own volition, I’m not suggesting as you’re saying that this was an own initiative, not at all. But what I’m saying to you, which you cannot sustainably deny, unless you want to mislead the Committee is that in the process of suggesting the alternatives, which you did, one of the things that you did on your own was to, in the execution of that alternative route, was to write this letter. Nobody said to you write a letter, or don’t write a letter. You made a decision to write this letter, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Alright, now in your letter that you wrote, under the terms that we have just described, you said, this is the... I can’t remember the words you used, the proposition or the avenue that you propose. Let’s go to paragraph one. The letter is written to Hon Lewis Nzimande, MP, and Mr Vincent Smith, co-chairpersons of the Joint Committee on Constitutional Review, Parliament. Republic of South Africa, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Yes. And the subject is “Submission to the Joint Committee on Constitutional Review in terms of section 45(1)(c) of the Constitution of the Republic of South Africa, 1996 – Recommended Review of section 223 to 225”. And you and I have agreed the context in which the word “review” is used, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. So the review / amendment which would lead to an amendment, you then say “With reference to sections 223 to 225 of the Constitution and your call for submissions... the Public Protector welcomes the opportunity to make submissions to the Committee on certain sections of the Constitution that we believe require revision” We now know that revision means amendment, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And then you say “Accordingly, the Public Protector recommends that section 223 to 225 of the Constitution, dealing with the establishment and powers of the South African Reserve Bank be reviewed for the reasons discussed hereunder”. Okay, so those two paragraphs clearly propose the review / amendment of section 223 to 225 of the Constitution, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Then, okay, I won’t read the whole thing. But 4.1 says it’s not the purpose or intention to provide the comprehensive legal analysis and so on, but rather to draw attention to key concerns in relation to the effect thereof on accountability and parliamentary oversight as required in terms of sections 55 and 69. You and I have gone through this. This is what you call, I can’t remember the term now “accountability... independence” or something, remember? In your paper.

Mr van der Merwe: Yes, that’s correct.

Adv Mpofu: Yes, called “accountable independence”. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: Yeah. Then, to the perspective which, and again, when I say it’s your own initiative, I don’t mean you have, it was your original idea. But you managed to situate this exercise in a Constitutional Court judgement, as follows at paragraph 4.5, you say, “In the matter of the Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others the Constitutional Court highlighted the following important aspect of the mandate of the National Assembly relating to oversight emanating from the Constitution”. And then you quote from that case “Similarly, the National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all our people. It is the voice of all South Africans especially the poor, the voiceless and the least-remembered. It is the watchdog of State resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people. It also bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed.” That’s you laying the basis for the proposed amendment, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. It's not the Public Protector who gave you this quotation from the Constitutional Court, as the basis for the amendment, correct?

Mr van der Merwe: No.

Adv Mpofu: Good. Then you go to 4.6 and you say that, I’m jumping the first part “...sections 223 to 225 of the Constitution are not sufficiently aligned to the Constitutional requirement for mechanisms on oversight in, inter alia, sections 42 and 55, as well as relevant constitutional provisions that refer directly and indirectly to oversight and accountability, to enable the National Assembly to effectively maintain oversight over the South African Reserve Bank as well as the relevant responsibilities of the Minister of Finance.” That’s you, it’s not the Public Protector that said you must put those words, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And then you say “It is proposed that the Constitution and the Reserve Bank Act should be reviewed and revised” in other words amended “within the precincts of sound, rational and appropriate institutional arrangements around fiscal policy, and fiscal policy management and Central Banking, for purposes of aligning the act with the Constitution in order that Parliament may exercise oversight over it.” Those are your words, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And those words, word for word, this you do in May of 2017, correct?

Mr van der Merwe: June, in the research paper

Adv Mpofu: No, no. The letter?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. The words that I’ve just read to you, word for word, come from that sentence that you and I discussed, in your paper that you gave to Mr Kekana. That qualification, “within the precincts of sound, rational and appropriate institutional arrangements around fiscal policy, and fiscal policy management and Central Banking, for purposes of aligning the act with the Constitution in order that Parliament may exercise oversight over it.” save maybe for a comma here or a word here, but that’s a reproduction of the same phrase, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Yeah. So the fact that you gave this thing to Mr Kekana a day after the CIEX report is completely irrelevant, because it was already contained in your ideas which you had submitted before, correct?

Mr van der Merwe: Yes, again, I must qualify this extremely clearly. This was a letter, I don’t even, and from what I read when I read the Public Protector’s email to say "how" because if you say I proposed how the Constitution should be amended, it was clear that the PP did not read this letter, because she asked me after this letter that I must make a submission as to "how the Constitution should be amended". So to say this was in fact even read by the Public Protector is highly speculative, I don’t know. To say that this informed and then construed the ABSA recommendations or remedial action is again speculative, I don’t know. All you can deduct from this is there was an engagement between the Public Protector, myself, Mr Nemasisi, and the CEO on her intended submission to the Constitutional Review Committee. Whether the Public Protector then decided to change course and change the wording of the Constitution, how this would then relate to that and lead to that, for me, is highly speculative. There's for me no direct correlation. I can’t say what was happening in the PP’s mind, to say that this informed her decision. Again, just looking at the probabilities and looking at the wording that came up, and the report that came to us in the think-tank shortly before that, didn’t even have this, to link the whole exercise, to say make a submission to the Constitutional Review Committee, but at the same time saying I’m going to use this in the CIEX report to actually come up with wording to change the Constitution. It's something I did for a completely different exercise. Whether it’s subjectively or consciously affected the Public Protector’s thinking, I cannot say. But to say that this directly led to the CIEX, to me is highly speculative.

Adv Mpofu: Okay. So is your argument then you want this Committee to believe that all this that we’ve referred to was completely unrelated to the recommendation to amend section, the very same sections 223 to 225, which ultimately found itself in CIEX. Is that what you want the Committee to believe?

Mr van der Merwe: Yes, and again, I say in the context because what we are dealing with is two, as I said the avenue is different. The Public Protector could not have derived from my suggestion to review the Constitution to come to a point where she actually made amendments. There is an interrupting sequence of events that has been presented to the Committee, that explains that part. To disregard that and say that this report of mine or this is the actual source of that remedial action in the CIEX report, for me is opportunistic and speculative.

Adv Mpofu: And the opportunist in that sentence is me or the Public Protector?

Mr van der Merwe: Or the Public Protector. I can’t say from my reading of the engagement we had, there was no concrete substance that could have even led to a remedial action in the CIEX report, based on what I was presenting.

Adv Mpofu: Right, and would your answer be different if in the CIEX report, the Public Protector had used your words and said that she recommends that the Constitution be reviewed and amended, as discussed hereunder.

Mr van der Merwe: Yes, because then there is a direct correlation between the substance of what I was dealing with, and the end result in the CIEX report. Currently, there’s no direct correlation

Adv Mpofu: So the difference is that you used the words “the Constitution must be revised” and she might have used the word “amended”, which you and I agreed are synonymous in this context. And you call that a difference?

Mr van der Merwe: Yes, I do, because we were not sure even if we were going to at the end say the Constitution must be amended. Obviously, if you make a submission to the Constitutional Review Committee, it’s not just in the air, like you say. But it’s not the directive. It’s something to give a thought, food for thought, for them to say that when you are reviewing... because they were reviewing, and obviously they were not reviewing in the air, it was to see if amendments were required, or necessary. And we wanted to contribute to that process.

Adv Mpofu: Mr van der Merwe, let me assist you. Again, sorry, I said it's the last time but it wasn’t. I accept that in the CIEX report, this matter was put stronger, or more directly. Okay, so put that aside. But the point I’m making is that to say that it was unrelated is fanciful, because, yes, it might’ve been put differently or stronger, but it was a stronger version of your recommendation of a new proposal, whatever you call it. Because it relates to the same sections of the Constitution 223 to 225. It can’t be completely estranged from the other exercise. I thought you had admitted that two hours ago.

Mr van der Merwe: No, sir. You are putting again words in my mouth.

Adv Mpofu: Are you saying there’s no relationship between the two?

Mr van der Merwe: Yes, let me explain as you always say, Chair. If the Public Protector wanted to use my expertise and evidence, they would have called me to contribute to the legal framework. A report consists of evidence, then a legal framework that motivates. None of the other people involved in the report had the background information that I had. None of them could have on the basis of a letter alone came to any conclusion of what I was trying to achieve. I know how we operate. I know what was the purpose of the mini think-tank that I contributed to. If there was any hint that I was to contribute through research, or through the proposals I’d been making to the Constitutional Review Committee to the CIEX matter, they would have involved me to come and explain, and to put that narrative in the report because that is the motivation. The lack of any reference, any wording of any of this in the CIEX report is prima facie indication that it was not part of the thinking process in the CIEX report. If it were, again, it was not reflected in the report

Adv Mpofu: Okay. Now again, I’m putting it at the level you want the Committee to believe, which I find incredible. You know that after the release of the report, the first shall we call it sign of trouble came from a media enquiry about the so-called market reaction to the Public Protector’s proposal. Sorry, I’m just looking for the... and when that happened, the Public Protector sent the message that it must be sent to you to respond, correct?

Mr van der Merwe: Correct, yes.

Adv Mpofu: Why do you think she would do that? If there’s no connection between the two exercises. After the release of the CIEX report, there’s a whole hullabaloo blowing out there. There’s a specific media inquiry... so you can imagine. The Public Protector’s reaction to this, is please send this to Neels to give the response. And you still want the Committee to believe that there was no connection between the work you were doing and the CIEX report? Correct?

Mr van der Merwe: Precisely, precisely. Why was I only then consulted after the fact, because I could provide ex post facto support for whatever was said in the report. It was not contained in the report, this was an ex post facto request, saying that I might have information that could relate to assist with the media. That’s all it is. Whatever the Public Protector’s intention was, it was ex post facto.

Adv Mpofu: Yes, sir. No, I understand that. You must understand where I’m coming from Mr van der Merwe. If I don’t put these things to you, and then the Public Protector comes here and says them, I will be correctly criticised of what you’ve accused me of, opportunism. So I have to put to you what her version is going to be. If you want, you can simply deny it, and the facts speak for themselves, and the probabilities speak for themselves. You and I don’t have to debate the probabilities. But do you understand that?

Mr van der Merwe: Yes, if that’s so simple then I would deny it.

Adv Mpofu: No, don’t deny. I’ve not even asked you anything yet. But I’ll take your denial in mind, your pre-emptive denial. But the fact that you’re denying it, makes it even worse, because it means you’re denying the obvious, because I’ve never even said it here. But I’m saying to you sir, the Public Protector will testify to this Committee, that the only reason that when this thing blew out, her reaction was send it to Neel’s to give the response, was because there was an obvious connection between the work you were doing on section 223, and the issue of the amendment of 223, which is the same issue you are working on. I accept, for the record, that it was now in the form of a recommendation or remedial action and what have you. But I’m not talking about that. I’m talking about the content. I’m saying she’s going to testify that the only reason she referred it to you is because this was the same content you had been working on. Will she be lying if she says that?

Mr van der Merwe: As I said the, the purpose... when a media enquiry like that is received. One would try and reason it on the basis of the report. My big concern is the fact that whatever I was supposed to contribute to the media report, could have been then in as far as my general expertise on the subject matter is concerned. To assist with clarifying whatever queries the media had, and to put matters in perspective, or whatever. That is my expertise that I was building up on the subject matter, but that expertise, the reasoning doesn’t flow from the report. That would have been just referring a matter to me, as a subject matter expert, saying I can contribute to the media enquiry. Which I do on a number of occasions.

Adv Mpofu: Yes, no, fine. I think we’ll, you and I, even if I explain this for the next five days, it will be on the same page. So that’s fine, let’s leave that to the Committee and the summary. At least I’ve done my duty, which is to put to you what the version of the Public Protector will be. Did you make any contributions to the CIEX report?

Mr van der Merwe: Yes, on the draft report I raised a number of issues. I can take the Committee or you to that.

Adv Mpofu: Okay, I’ll take you... you’ll find that at 4185.2, is that all? That’s it... and it’s still your evidence that there was no connection between the two exercises, correct? The compilation of the CIEX report and this other work you were doing, correct?

Adv Bawa: Adv Mpofu, can you just repeat that page reference?

Adv Mpofu: It was 4185.1, that’s the beginning of the document. Please answer the question, Mr van der Merwe.

Mr van der Merwe: That’s correct.

Adv Mpofu: Okay, yeah. Well, I put it to you that you are deliberately misleading the Committee. But let’s try and demonstrate.

Mr van der Merwe: Give me an opportunity to respond to that, Chair? I deny. If you look at the inputs I made, and the work, the inputs to the report. I explained in detail how it came about. So to say that I’m deliberately misleading the Committee is not true.

Adv Mpofu: Yeah, okay. That's fine, then let’s go to your comments... So Mr van der Merwe, is it then correct that your involvement in the CIEX report was more than that meeting that you missed when you were in hospital, of the mini think tank? You actually contributed to the document?

Mr van der Merwe: I testified that when I was in hospital and I couldn’t attend the mini think-tank, I submitted these contributions in writing, as part of that process.

Adv Mpofu: Sorry, sorry. I missed that.

Mr van der Merwe: As I said, this was the report that was given for the purpose of the mini think-tank which I missed. Because I wasn’t there, I made written contributions to the report, instead of sitting around in a room. So these are my inputs for the mini think-tank.

Adv Mpofu: Okay. Why did you not tell the Committee that. When I asked you about your involvement, you said except for one meeting which you missed, because you were in hospital.

Mr van der Merwe: No, I did. You can check the records, Chair.

Adv Bawa: Chair? Point to correct, Chair.

Chairperson: Just finish up, Mr van der Merwe, then I go to Adv Bawa.

Mr van der Merwe: No, I was referring to exactly this in my evidence on two occasions. In my cross-examination and in my evidence-in-chief, that because I wasn’t there I made submissions in writing to Mr Kekana. It's not true that I didn’t refer to this.

Adv Mpofu: Alright, okay. That’s fine, the record would speak for itself. If that’s not correct then I apologise to you.

Chairperson: Just before that, Adv Mpofu. Adv Bawa?

Adv Bawa: Just to point out, it’s at paragraph 34.8 of his affidavit as well.

Chairperson: Okay, thank you. Proceed.

Adv Mpofu: Okay, the point I want to make there is that you made, let’s call it some significant contributions to the CIEX document, correct?

Mr van der Merwe: Let me put it this way, I highlighted... No, I’m not going to, I’m not comfortable in just saying yes or no.

Adv Mpofu: Pardon?

Mr van der Merwe: I’m not comfortable in just answering yes or no. This was an executive summary...

Adv Mpofu: Nobody said you must answer yes or no, Mr van der Merwe. You can carry on as you’ve done all day, answer long answers as much as you want.

Mr van der Merwe: Thank you so much.

Chairperson: Conclude what you were saying Mr van der Merwe.

Mr van der Merwe: This was an executive summary of the report. First of all, it was not the report. So to say I made a significant contribution to the report… what was given to us was a summary and introduction. It didn’t even have remedial action at the time. And the focus of my inputs here – I would implore the Members to read it carefully – was on how the issues were identified. And whether we were, I was actually cautioning going into the lifeboat transaction itself. I was saying that for the purpose of jurisdiction and our involvement here, we need to focus on the issue at hand that’s within jurisdiction. Knowing full well that section 6(9) was an issue, going to anything prior to 1995, and even two years earlier. So read my inputs carefully here, in terms of how I was directing. And there is no indication, again, I made substantive observations, none of these observations were even taken into account or found their way into the narrative of the final report. So I’m not even sure if this was read by any of the Members. But the risks that I point out, and the way in which I described it here, to say that we don’t need to make a finding because it’s already been this, it was not adhered to in the final report. None of the things that I said here, found its way, again, into the final report.

Adv Mpofu: Okay. You accept, don’t you, that one of the recommended actions in that draft to us related to changes in the regulatory framework or the policy framework?

Mr van der Merwe: Checking...

Adv Mpofu: No, you don’t have to look at it. I’m just asking you in your memory if there was an issue to do with that?

Mr van der Merwe: No, the remedial action here was just directed at the Reserve Bank to ensure that systems are in place. It was not anticipating changes to the regulatory framework.

Adv Mpofu: Okay, so when you say “to ensure by means of introduction of internal policies and regulations that similar circumstances are avoided in the future” that had nothing to do with regulatory framework?

Mr van der Merwe: In the context of what you… the preceding questions. This was a remedial action directed at the Reserve Bank, not the overall regulatory framework.

Adv Mpofu: Yes, but it... Okay, so your recommendation was also directed at the Reserve Bank Act, wasn’t it?

Mr van der Merwe: Not necessarily. We hadn’t even touched the Reserve Bank Act at the time.

Adv Mpofu: What do you mean you didn’t touch... didn’t your recommendation say “Public Protector therefore supports the call that the Constitution and the Reserve Bank Act should be reviewed and amended”. Is that not touching it?

Mr van der Merwe: Yes, but in the context of this remedial action, we… as I said this didn’t even find its way into the report.

Adv Mpofu: Okay. Anyway, let’s go back to your letter. Okay, yes, I read to you the quotation from the EFF case. Then the fact that you’re saying, what I call the crux of the matter, referring to the accountability mechanisms and so on. Yes, but because of the time, I’m sure the Chair is going to release us soon. The culmination of your letter is this, “we trust that our submission will be of assistance in guiding the Committee’s deliberations on reviewing.” as explained before “the Constitution aimed at strengthening our constitutional democracy”. In other words that was the punch line of your recommendation, that there should be this constitutional amendment to strengthen our constitutional democracy, correct?

Mr van der Merwe: No, sir. This was not a recommendation; it was a draft. I did not sign it. I did not put it as a recommendation to say that this was the final recommendation. This was a discussion document.

Adv Mpofu: This is not the discussion document. I’m reading from the letter now. I’m sorry if I confused you.

Mr van der Merwe: The word here is 'proposed', it was not even discussed whether it will be accepted or not accepted. And now to say this was in fact my recommendation to the Public Protector, while this was just 'proposed'. We didn’t even deliberate on this – whether it was in line with the Public Protector’s thinking.

Adv Mpofu: No. No, Mr van der Merwe. Please, please just listen, please. I’m saying to you, I’m not saying what you’re saying. I didn’t say about any recommendation to the Public Protector. I’m talking about Mr Nzimande and Smith, to whom the letter was addressed, okay? I’m saying to those people who were the co-chairpersons of the Joint Committee on Constitutional Review, the punch line of your letter was that “we trust...” when you say “we” you mean Public Protector South Africa, not Adv Mkhwebane, the institution, correct?

Mr van der Merwe: No, the signature was going to be the Public Protector.

Adv Mpofu: Yes, but not as Adv Mkhwebane from... I forgot the name of that place, Kwaggafontein. Yes, but she was going to be signing on behalf of Public Protector South Africa, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And every time in your evidence-in-chief, and even now when you say the Public Protector will do this revision, this and that, you don’t mean her as Busisiwe Mkhwebane from Kwaggafontein. You mean as the Public Protector of South Africa, correct? Yes, okay. So that’s the context in which you used the word “we”: “We trust that our submission will be of assistance in guiding the Committee’s deliberations on reviewing the Constitution aimed at strengthening our constitutional democracy”. You and I earlier agreed that the notion of reviewing the Constitution encompasses the amendment that you proposed, correct?

Mr van der Merwe: I didn’t propose an amendment. The word 'proposed' means that this was accepted and endorsed. As I said, this was just an avenue. The way in which you are trying to attach to these documents as having informed decisions while they were draft deliberative documents, I can’t attest to that.

Adv Mpofu: Okay, this is my last attempt, before the Chair does what I can see he is eager to do. You are saying that these three preceding pages where you give the motivation, you give the Constitutional Court quotations, you give the relationship with the poor, and so on. All that had nothing to do with that last sentence: “We trust that our submission...” in other words all this stuff in the previous paragraph “will be of assistance in guiding the Committee’s deliberations on reviewing the Constitution aimed at strengthening our constitutional democracy”. Can those two things be divorced?

Mr van der Merwe: No, and that’s not what I’m contesting.

Adv Mpofu: Okay, therefore you agree with me if the two things cannot be divorced from each other, you agree with me that the punch line, and I’m just using that word loosely, of the letter that you drafted, was that whatever has been said here, will guide, let’s not put it higher than that, the amendment of the Constitution.

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Okay. I’ve been standing in the way of the Chairperson. I think Chair on that topic... my next issue is quite a long and complicated one. So I think we should start on that one in our next session.

Chairperson: We’ll thank you Adv Mpofu, I would not have stopped you, so you have called for timeout, and I oblige.

Adv Mpofu: No. Chair. I’m ready to proceed, Chair. You know me. I can go on until midnight.

Chairperson: And I did, I did reclaim my precious hour and more for the day. So there would not have been time kind of lost in that regard. So with that Colleagues, we will pause there for today, continue tomorrow and finish tomorrow.

Adv Mpofu: Chair? Sorry, sorry, I don’t want to cut you. I don’t know if the discussion that Ms Bawa and I had around starting time has been communicated, or whether you’re going there?

Chairperson: No, there’s no starting time communicated to me. I have 10 o’clock.

Adv Mpofu: We’re proposing an earlier start. Maybe even 9:30?

Chairperson: Adv Bawa?

Adv Bawa: Chair, we have no difficulty if you want to start at 9:00 or 9:30. It's Friday tomorrow and Members might want us to start earlier. I don’t know if that’s an endeavour to finish earlier or an endeavour to have more time.

Adv Mpofu: It’s an endeavour to have more time.

Chairperson: We’ll, I’ve already... the issue around time is I’m in control of that. So it’s not in the backroom, let me just indicate that. The programme indicated today and tomorrow and it was agreed 10:00 with Members. I don’t think there’s a problem in asking that we be here 9:30 or do you want to stay at ten? But we continue tomorrow and continue tomorrow with our work. You're fine with 9:30, colleagues? Thank you. The meeting is adjourned we'll resume tomorrow, 9:30.

Adv Mpofu: Thank you very much, Chair.

Chairperson: Obliged, as I always do. Thank you.

Adv Bawa: Chair, there was an issue of corrections that I had left in abeyance, which I had endeavoured to speak to Adv Mpofu today. He has yet to revert to me. We need to sort that out before we commence tomorrow morning, so that I can communicate with Adv van der Merwe tonight.

Chairperson: I leave that to both of you. Thank you. Thank you to everybody. The meeting is adjourned. Thank you, Mr van der Merwe.