PP Inquiry day 41: Cornelius van der Merwe

Committee on Section 194 Enquiry

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


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

In this hybrid meeting, the Committee on Section 194 Enquiry continued its hearings into suspended Public Protector (PP) Adv Busisiwe Mkhwebane's fitness to hold office.

The evidence leaders rectified certain errors in the schedule of legal fees paid by Public Protector South Africa (PPSA) with the witness, Mr Cornelius (Neels) van der Merwe, Senior Manager: Legal Services, on which he had given testimony on 2 November 2022. Following the PP legal team’s request, the evidence leaders agreed that a redacted version of the schedule would be displayed without the names of legal practitioners if the Committee agreed. However, the Chairperson dismissed the PP’s request for a redacted version of the schedule to be shown in the hearing. The evidence leaders presented the corrected fees. The errors related to the tallies of amounts paid to legal practitioners, as well as amounts being displayed in the incorrect columns. It was also noted that the fees included VAT and reflected the amount before that tax was paid by the practitioners.

The PP legal team then continued with the cross-examination of Mr van der Merwe. Regarding Mr Paul Ngobeni, the PP legal team highlighted that Adv Mkhwebane was told that he is a brilliant advocate who then rendered services in an amount of R210 000, paid by the PPSA to Seanego Attorneys. The PP legal team asserted that the only issue was that Mr Ngobeni was paid through the PPSA legal department and not the communications department. The witness however said that it was not the only issue, as the manner in which Mr Ngobeni was appointed and whether it complied with procurement requirements was also problematic. The PP legal team contended that Adv Mkhwebane had no impeachable duty to check Mr Ngobeni’s qualifications, which was someone else’s job.

On the Public Protector report on the CIEX/South African Reserve Bank (SARB), the PP legal team put it to the witness that he was the source of the PP’s unlawful remedial action which ordered Parliament to amend the Constitution to change SARB’s mandate. The witness stated that there was nothing in his research report that would have informed Adv Mkhwebane's decision to order that the constitutional mandate of the SARB should be amended. The witness confirmed that he recommended a possible review of the Constitution on the SARB mandate, but denied that he recommended that the mandate of the bank must be amended. The witness further stated that he did research on behalf of the PP at her request. The PP legal team however accused the witness of employing a “Nuremberg defence” and adopting the stance of apartheid apologists by claiming they just followed orders. This was rejected by the witness.

The PP legal team hinted at Adv Mkhwebane’s possible testimony relating to the deficiencies of those she relied upon to do various jobs and that both the benefits and deficiencies of a clean audit should be shared. It was also revealed that former PP, Adv Thuli Madonsela would be called as witness, as well as former DA Chief Whip, Ms Natasha Mazzone, who initiated the inquiry.

Members of the Committee proceeded to ask the witness questions, followed by clarifications sought by the evidence leaders.

The hearings will continue on 28 November 2022 when the Public Protector is scheduled to call her first witness.

Meeting report

[PMG draft report]

The Chairperson welcomed everyone. As technical difficulties were being experienced the Committee would start later to allow IT to attend thereto. He said that the Committee had this problem the previous day where they thought that it was load shedding. There was no load shedding today, so it was clear that the problem was not load shedding. There seemed to be a systems problem. The first point to make was two things. He told the Committee Secretary that he was going to need to get a report of what the problem was, which was not load shedding. Quite clearly, the Committee had lost valuable time. The Committee had agreed to meet at 9:30. The Committee was present, except a few Members on the platform could not start at 9:30. The second thing was that he though, going forward, it might be important that the Committee Secretary and IT team test the platform before the Committee started. With that, and having done all the preliminaries because everybody could hear the Committee, he went straight into the session. There would have been a request for Adv Nazreen Bawa, Senior Counsel (SC), to put corrections on record. He made the point that whatever she was going to do; she would be eating on the time of the PP. So if she took 10 to 15 minutes, he was going to have to give it back to them. He asked Adv Bawa to come in and thereafter the Committee would revert to Adv Dali Mpofu, SC, to continue with the cross-examination until they finished this afternoon with Mr van der Merwe.

Evidence Leaders’ Correction – Witness: Mr Cornelius van der Merwe
Not redacted – Corrected Revisions of NM17 – marked in yellow highlights with old figures
Adv Bawa: Chair, before I go to the questions, and I know this is going to eat into my minutes, yesterday in an endeavour to proceed matters along and not have a to and fro on the question of legal fees I suggested that this stands over so that Adv Mpofu and I have a conversation. Last night he indicated to me that they would be satisfied if I made the corrections without reflecting the names of the persons in respect of whom the corrections were to be made. I’m in the Committee's hands in respect of that. Whatever the Committee says, if they are okay with it, we do it that way. If the Committee is not okay with it, we don't do it that way. But at the end of the day, this was ultimately done at the behest of the Committee.

Chairperson: Thank you for that. And thank you for your conversation, the two of you. I’m going to ask that you proceed and interact with Mr van der Merwe and place those corrections with the names as we did before. You're not going to just put corrections. That matter would have been canvassed with the witness by the PP team. They have a difficulty with that. We don't have a difficulty with that. Please proceed.

Adv Mpofu: Well, we want to, once again, place an objection to what you are doing, which is, again, violating people's rights for no apparent reason except for reasons of malice, and violating their human rights as it was explained to you yesterday by Adv Muzi Sikhakhane, SC, and Adv Vuyani Ngalwana, SC. This is a very serious matter and I don't want to waste your time unnecessarily.

Chairperson: Especially when I've made a ruling.

Adv Mpofu: No, but I have a right to object to it. Okay?

Chairperson: I want to note your objections when I proceed. Please continue.

Adv Mpofu: So why are you interrupting me?

Chairperson: I'm asking you to proceed Adv Mpofu.

Adv Mpofu: I don't need you to ask me. I'm going to proceed anyway. Okay? So you don’t have to do that Chairperson.

Chairperson: Do what?

Adv Mpofu: To interrupt me unnecessarily and to be rude.

Chairperson: You want to go back to a discussion. I've given you a platform to place your objection.

Adv Mpofu: Okay. Chairperson. The point I'm making is that I'm making a fresh objection – and I'm allowed to do that, okay. Because you've just been told that there's an arrangement or an agreement between the PP team and the evidence leaders. Okay? So that's a new situation. So you don't have to be impatient. I’m now addressing that new reality that has just been reported to you. And as far as that reality is concerned, you haven't heard anything from us. So you can’t make a ruling, just from hearing from the evidence leaders. The evidence leaders have told you what we agreed.

Chairperson: Can you continue and say what you want to say Adv Mpofu, in addition to what she has said?

Adv Mpofu: Yeah, that's what I'm doing. But I'm explaining why I'm doing that. You know, Chairperson, if you start like that with me, you know what's going to happen.

Chairperson: Adv Mpofu, I want you to proceed and place your objection on record otherwise I am to proceed. Please do that.

Adv Mpofu: Do not shout at me Mr Dyantyi.

Chairperson: Don’t create a dialogue Adv Mpofu. I'm chairing this session, and I'm now speaking. Okay? I want you to proceed and place your objection on record. I want you to continue to do that.

Ms O Maotwe (EFF): Chair, why are you so heated so early in the morning? What's your problem?

Chairperson: Please go ahead Adv Mpofu.

Adv Mpofu: What's your problem, sir? So that maybe we can resolve your problems. Because it obviously has nothing to do with me.

Chairperson: Place your objection on record.

Adv Mpofu: Can I talk without being interrupted?

Chairperson: Go ahead.

Adv Mpofu: Thank you. Okay. Chairperson, the situation that now pertains, as I say, is completely different. The history of this matter is that we had objected and you overruled that objection some months ago, I can't remember when, about the use of people's names. That objection had come when the root of this problem is a malicious intent to jeopardise certain people or to settle scores with me and other people become collateral damage. I've explained to you how this whole thing started. It started when Mr K Mileham (DA) said he wanted names of people who “benefited” from the figures that were put up by the evidence leaders, and Mr B Herron (GOOD) immediately corrected him to say we cannot say that people have benefited as if they have not done the work. That's how this whole thing started. As a result of that, then there was this so-called request for people above R2 million, or whatever the story was. Okay? We objected at that time, in support of Mr Herron’s objection for the use of those words. We objected again; you overruled both of those objections. Now to try and circumvent the problem, and that caused a national furore which included the people presenting here yesterday. In order to prevent that problem, what happened is that Adv Bawa wanted to do the correction yesterday and I objected, and then she suggested that we should rather do it in the backroom, which we have done now, to try and find a way around the explosion of consternation around this issue and the hurt that it has caused so many people. We have now found a way that we think would not prevent the Committee from getting the information, still in the itemised fashion, and that it would still get it but without attaching names to that information.

Chairperson: Okay.

Adv Mpofu: No, please let me finish.

The Chairperson I want you to wrap up please, Adv Mpofu. You don't have unlimited time. I've even given her 10 minutes to do whatever correction she is going to do. I don't want you to prolong this matter. You've canvassed the point and the point is registered.

Adv Mpofu: Yes. The second issue is that you know that our position which we have communicated to the witness is that, in any event, this information is completely irrelevant to the work of this Committee. But we don't want to address that issue. That's why we reached this compromise, because we could have just said, “No, we don't want any information to be put because it's irrelevant, anyway, to the motion, to the question of legal costs.” But we don't want to go there. We'll deal with those things when we do legal argument at the end. That's why we reached this compromise to say, "Present the thing. We don't accept that it has anything to do with the Commission, but for the sake of progress present it, but do not in the process use people's names – particularly those unlike me, who are not here to speak for themselves or to defend their privacy.” So I'm saying Chair, that I’m proposing two things. One is that we revert to the agreed mode that has been agreed between us and the evidence leaders. Alternatively, then you make a ruling on the basis of what I've just told you. If you still feel that it makes no difference or whatever, that I'm just talking, and it makes no impact on you, that's fine. I think the third alternative is that we take a five-minute break so that you can cool down and then try and reflect on these issues.

Chairperson: Thank you, Adv Mpofu. I've listened to both of you. I am certainly taking no five-minute break. I want to indicate that the ruling, Adv Bawa, having listened to both of you, is that you continue placing those corrections in terms of the accuracy of the figures and everything else reflecting those names. I'm giving you the 10-15 minutes to do that. I want you to proceed. Thank you.

Adv Bawa: Thank you, Chair. I had indicated Adv Mpofu last night is a proposal he's made and I'm going to leave this into the hands of the Committee to decide how we're going to run this you.

Chairperson: You can leave that now.

Adv Bawa: So let me just tell. There are two alternative versions behind me and I just want to make sure of that.

Adv Mpofu: Chairperson, while Adv Bawa is doing that, I don't know if you’ve heard her correctly. She said she indicated to me that she would leave the matter in the hands of the Committee, not you.

Chairperson: Let me stop you there.

Adv Mpofu: No, don't stop me. Let me finish first.

Chairperson: Let me stop you there Adv Mpofu. Please don't delay my time. Just switch off your mic.

Adv Mpofu: Why are you interrupting me?

Chairperson: I didn’t even recognise you. I want you to switch off your mic. Thank you. Adv Bawa, I've made the ruling as the Chairperson of this Committee and I want you to proceed.

Adv Bawa: The only reason I'm not proceeding is I'm waiting for Ms Tshepo Morie to put something on the screen, but let me start.

Ms Maotwe: Chair, on a point of order.

Chairperson: Yes, what's the point of order?

Ms Maotwe: No, but Chair, can you ask Adv Bawa to repeat what she said so you can hear her properly? Because the SC says, Adv Bawa said, we leave the matter into the hands of the Committee, not you. So you made a ruling without consulting the Committee, Chair.

Chairperson: Thank you Ms Maotwe. That's not a point of order.

Ms Maotwe: No, it’s a point of order. Clarify us Chair. Adv Bawa must clarify what she meant by she's going to leave it in the hands of the Committee.

Chairperson: That’s not a point of order. Thank you, Ms Maotwe.

Ms Maotwe: Chair, you can’t do this to us. Don't do that Chairperson. You come here; you are emotional, screaming like a child. Don't do that to us. We are not your children.

Chairperson: Ms Maotwe, I want you to stop. That’s not a point of order. Adv Bawa, I hope you're ready now.

Adv Bawa: I’m in the hands of the operator behind us.

Ms Maotwe: Chair, you can’t continue like this – you can’t continue doing this to us. You can’t.

Chairperson: Proceed, Adv Bawa.

Adv Bawa: Good morning, Mr van der Merwe.

Mr van der Merwe: Good morning, Chair.

Adv Bawa: Just to put this into context, could we just go right to the bottom, which reflects the pages of the documents so that we can understand this contextually? The one that will show us the different folders. Mr van der Merwe, just so that we can put this into context, we're going to click on the on the folder page that says ‘Seanego payments’, because we explained that that was the starting point. And that reflected, as you had testified, a reflection of all the invoices and the payments that had been made by the Office of the PPSA, correct?

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

Adv Bawa: Right. So if we go back to the folder marked ‘firm fees’, that was what is reflected in the top of column C. Correct?

Mr van der Merwe: That's right. Yes, Chair.

Adv Bawa: And if we move across to column H, let's just do it in this way. The figure in line three is a corrected figure for the legal fees and disbursements of Seanego Attorneys. Correct?

Mr van der Merwe: Correct. Yes, Chair.

Adv Bawa: Right. The balance of the amount is what got paid out to advocates, juniors, and consultants?

Mr van der Merwe: That's correct.

Adv Bawa: Alright. So if we go back to our corrections, we need to go back to the folder which says ‘Seanego fees'. And if I take you to the line eight, there had been an amount. And the corrections, just for those who are indicating this, and I'm not going to go through all of it given my time constraints, but I'm going to do it on one of the pages because the principle applies for the other attorneys firms as well. The block in line eight under J, which is a yellow blank block, if you move, that was an amount that was incorrectly attributed to Adv Sikhakhane. Correct?

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

Adv Bawa: Right. And in this folder, it's then moved to the correct advocate’s folder?

Mr van der Merwe: Yes.

Adv Bawa: Right. And that means that total attributed to that advocate changed?

Mr van der Merwe: Yes.

Adv Bawa: And if we take it to line 38 and 39, right, you'll see that there is blank yellows that had been attributed to the DA / CASAC case, and that's moved up to the President of South Africa CR17 case, because that had been wrongly attributed to that case. Correct?

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

Adv Bawa: Now let me take you to the line item at number 38. Right. We had incorrectly reflected the full amount as being attributed to Adv Sikhakhane. That was the error that had initially been made?

Mr van der Merwe: Yes, Chair.

Mr Herron: We can't see the column that Adv Bawa is talking about. Can they remove the zoom bar?

Chairperson: Yes, and it's always been like that. Thank you for that, and I don't know if the system will do that.

Mr Herron: If they just minimise, there's a minimise button there on the far left – just so we can see column J.

Chairperson: And we can only just see Mr van der Merwe and remove everything else. Can you do that, please IT?

Adv Bawa: We don't have to see Mr van der Merwe.

Chairperson: Is there anything there? Mr Herron is saying let us see the whole thing, the whole page, so that nobody says we didn't. Is that better now? Thank you. Proceed.

Adv Bawa: So we’re at line 38, and what we had done was we had attributed the full amount to Adv Sikhakhane, when in fact it had to be split, and there was a difficulty with that invoice. Correct, Mr van der Merwe?

Mr van der Merwe: Yes.

Adv Bawa: Now just to demonstrate why our figures didn't mesh, can I just ask to put that up? So what we see on this invoice is an amount attributed to one counsel for R320 850 and another to a senior counsel for R717 800. And we had attributed the full amount of R1 194 217 to both counsel, right? Mr van der Merwe; we're going to start off by taking you to page five. That was the total on the advocate’s invoice, correct?

Mr van der Merwe: That's correct. Yes.

Adv Bawa: Okay. And both advocate’s invoices were VAT inclusive invoices. Correct?

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

Adv Bawa: Now go up to the attorney’s invoice. Can you explain to us where the difficulty lies in how the invoice didn't correlate with the data we had?

Mr van der Merwe: Yes. That was again included in the attorney’s invoice. When we calculated the amounts, we added the amounts on the right-hand corner under the disbursements and that led to effectively to the situation where the VAT was already included in the R320 850. We added R48 127 incorrectly because that's how the invoice was reflecting. So it's a question of how the charge was then presented and that amounted to as a result it came out then incorrectly to R1 194 217. 50 because that is how it was reflected on the invoice. We had a problem because we effectively dealt with about 500 transactions, payments, and went through all the invoices as best as we can. So some of these things were not evident from the onset, that this is how the charge was reflected. And this is how it happened in this case, Chair.

Adv Bawa: So that was the nature of one of the errors that we seek to explain to the Committee and put on record. Right. The second one on that list resulted in the fact that we had attributed to the wrong case, again, because the wrong case reference had been provided in the documents we had. Correct?

Mr van der Merwe: Correct. Yes.

Adv Bawa: Right. As a consequence, if you look at column H. It increased the subtotal that was attributed to the President CR17 case up to R5.9 million from what we had presented last week.

Mr van der Merwe: Yes, because it was incorrectly allocated to the CASAC case.

Adv Bawa: Right. So if you go down to the CASAC case, a different kind of error that came in on that was that, in this case, what we had previously attributed at line-item number 49, was we had attributed the full amount to the attorney, whereas there was an advocate’s fee involved. Correct?

Mr van der Merwe: That's correct. Yes.

Adv Bawa: Right. And because we had taken out those invoices, the amount attributed to the fees payments made in relation to the DA / CASAC matter for this attorney’s firm reduced. Correct?

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

Adv Bawa: Right. So if we just go down to line 100. This was the error that I had taken responsibility for in relation to Adv Ngalwana yesterday is that we had attributed the amount of R869 400 incorrectly to Adv Ngalwana whereas it should have been in the column of Adv Mpofu.

Mr van der Merwe: That's correct Chair.

Adv Bawa: And you had double checked from the actual invoices that that was so?

Mr van der Merwe: Yes, we checked it with Finance and ourselves.

Adv Bawa: So if we go back to the main table. I think I've got three minutes left, so let me just try and do that. This describes the nature of some of the errors that we had related to that. And apart from the fact that I have had difficulties, which I explained yesterday, in respect of the table on Excel. But Mr van der Merwe, if we look at the column that was generated yesterday, in respect of the first 80 names. Was that on the schedule that was presented last week?

Mr van der Merwe: Yes. It was all 18 of them. It cut off a bit earlier, but all 18 counsel were reflected.

Adv Bawa: Right. Then the ones that are highlighted on the schedules are the ones which we have amended pursuant to the kinds of errors which you have just described in relation to Seanego. Correct?

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

Adv Bawa: And from there we obtained the information that we then put into the subfolders, and we transferred into this document. What was the source document?

Mr van der Merwe: The invoices.

Adv Bawa: And where did theses invoices come from?

Mr van der Merwe: Our Finance Department. We had hard copies before the LGRN system, otherwise it was also from Finance but from the LGRN payment system.

Adv Bawa: Right. And so the names of the counsel from 19 to 26 were not on last week's list. Correct?

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

Adv Bawa: And so we've added them. Are there any other advocates that you came across that should have been added that wasn't there?

Mr van der Merwe: Not as far as we can establish. These are all the briefs.

Adv Bawa: And if there are any other advocates, then you would go back and check if there’s any others that have been missed along the line?

Mr van der Merwe: Yes, we will go in and look on specific invoices if we are directed to do that. But we've carefully went through all the invoices, and these are all the names we could find.

Adv Bawa: And then, if you go back up to the top, there was one attorney's firm that was in the under R2 million category but had rendered services in respect of the ABSA matter. If you go to column S. The one right at the end, Sefanyatso. If you go down the column, those were the advocates at the bottom that we had not largely provided for. Correct?

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

Adv Bawa: Right. And had elected to show you in column T was the number of matters that we had attributed to the attorneys’ firms.

Mr van der Merwe: It was not just a single brief or a single matter. It's broken down as to how many mandates basically in respect of how many matters were allocated to the attorneys.

Adv Bawa: And if you go back, just by way of example, you go to the Seanego Fees folder again, and you go down the column. You see in the left-hand column, the number of mandates that you've attributed to each one.

Mr van der Merwe: Column A. Yes, that reflects the various matters basically.

Adv Bawa: And if just for the sake of completeness, on the other support sheets that accompany this that show the firm fees changes on the first page, we have endeavoured to highlight what those changes were. Correct?

Mr van der Merwe: Yes.

Adv Bawa: But if we took another firm’s column, we've done that largely because of either a human error in allocating it to the wrong column or to the wrong service provider? Or there's a discrepancy in the fees and the totals we used?

Mr van der Merwe: Yes.

Adv Bawa: Okay. In general terms, that gives you an overview of the nature of what had resulted in the change in figures that had been provided.

Chairperson: Thank you, Adv Bawa. You have taken 16 minutes of the PP’s time, which I will give back. Thank you for that. I now recognise Adv Mpofu to continue with the cross-examination.

Cross-Examination – Witness: Mr Cornelius van der Merwe
TNS Redacted
Bundle F – Additional documents
PPSA Media Statement – 8 November 2022
Covering email – Analysis of Gems judgment
Analysis of Gems judgment

Adv Mpofu: Looks like it's come to be one of those days. But Mr van der Merwe?

Mr van der Merwe: Yes Chair.

Adv Mpofu: Okay, let me just, before we come to this disgraceful conduct that just took place, I'll just situate again, just for context, where I am with your cross-examination. Okay?

Mr van der Merwe: Yes Chair.

Dr C Mulder (FF+): Thank you, Chairperson. I'm rising on a point of order. I'm not sure what Adv Mpofu was referring to when he says, “This disgraceful conduct we just witnessed”. Is that a reflection on parliament? Is that reflection on the Committee? Is that reflection on yourself? I think we need clarity on that. And I think Adv Mpofu should try to behave.

Chairperson: Adv Mpofu, “disgraceful conduct”, what are you referring to?

Adv Mpofu: Well, I said “before I deal with the disgraceful conduct”. So you must just wait. When I deal with it, he'll tell know what it is. I'm now dealing with something else. Because I said before I do that, so I can't be forced to deal with something that I don't want to deal with now.

Chairperson: So you're saying you are still going to talk about disgraceful conduct?

Adv Mpofu: Yes. When you say “before”, the word ‘before’ means it's still going to happen. You see?

Chairperson: No, no, no. I think Dr Mulder, thank you for raising that. I accept the explanation. We will wait for that. Thank you.

Adv Mpofu: Thank you Chairperson. Now I was saying Mr van der Merwe, before we deal with that topic, I'm just going to give you broad context to situate the cross-examination. Yesterday, we dealt broadly with, let's say, three, broad topics. The first topic I dealt with you was about your experience of the PP as an employee, as a person who has worked with her, her demeanour, and her tolerance for different views and all that. Do you remember that whole discussion we had at the beginning?

Mr van der Merwe: Yes Chair.

Adv Mpofu: Right. Then we had a discussion, which is related to what I've described now as the disgraceful conduct, which dealt with the distinction between costs and fees. Do you remember that whole discussion?

Mr van der Merwe: Yes.

Adv Mpofu: And the purpose of that was to say to you that any evidence that deals with legal fees is actually irrelevant to the motion, because the motion refers to legal costs. Do you remember us having that discussion?

Mr van der Merwe: Yes, I remember the discussion.

Adv Mpofu: Okay. Then we spoke about the area where I had conceded that your evidence was important, if not crucial, and that was the area of CIEX. And the purpose of that was to demonstrate, whether I did that or not is another question, but to demonstrate that you had played a substantial role or instrumental role in the development of the idea of the independence of the Reserve Bank and/or its nationalisation. Remember that discussion?

Mr van der Merwe: Yes Chair.

Adv Mpofu: Okay. So, today, I'm going to go back to this question of the CIEX issue from where we left it. But today, as I indicated to you yesterday, I mainly wanted to deal with this question of legal costs or legal costs basically. So now you've just started with what has just happened now, but before we deal with it, and I hope Dr Mulder will just give me one more moment, just again to put this whole discussion into context. Again, in fairness to you Mr van der Merwe, I have to tell you what I'm going to argue at the end, in relation to this question. The first thing is going to be that, as I've just said, both you and the leaders are, quite frankly, barking up the wrong tree, because the Mazzone motion is very clear that it deals with the question of wasteful and unauthorised expenditure in relation to legal costs. It does not refer to legal fees, which is a different thing. Do understand that? You don’t have to agree with it but do you understand that distinction?

Mr van der Merwe: Yes.

Adv Mpofu: Right. So that anything that I'm going to ask you to do to legal fees must be understood in that context. Actually, I shouldn't ask you anything because, as I say, if the motion that brings us here deals with apples, and you and the evidence leaders give us evidence about oranges, I should not even bother to deal with it because it's not what the business of this Committee is about. But for the sake of completion I will do so simply to put certain things in perspective. That's what I meant when I said yesterday to you, as far as you and I are concerned on this question, we are finished and that's the end of it, but however, I still have to clarify a few things. Do you understand that?

Mr van der Merwe: Yes Chair.

Adv Mpofu: Now fortunately, that issue, and that's another reason why I have to ask you these questions in case I'm wrong. But whether I am right or I'm wrong, fortunately, will be clarified because at the beginning of this week we gave the Chairperson a revised list of witnesses, because it becomes clearer who the evidence leaders are calling or not calling as they come towards the end. And one of the persons who is in that list of witnesses is Ms Natasha Mazzone, who is the author of the Mazzone motion. So, one day, she will tell us here, what she meant by the issue of wasteful expenditure in relation to legal costs. Do you understand that?

Mr van der Merwe: Yes Chair.

Adv Mpofu: And when Ms Mazzone comes here to testify, she will then explain, she'll say, “Well, yes Adv Mpofu, you're right, I don't know what you people have been going on about for all these months. When I said legal costs in my motion, I meant legal costs.” But you went, as I say, to bark up the wrong tree, and made all sorts of analysis about who benefited and legal fees and all the tables that have been put up here. In other words, all these people whose names are bandied about here would have been bandied about in vain for no benefit, because it's irrelevant to the motion. Do you understand that?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Alright. Okay, so that issue then, as I say, after Ms Mazzone’s evidence we will now know, because there are two sources of this issue. One is Ms Mazzone. The other one is Mr Mileham. And both of them, Mr Mileham I can’t call as a witness, but we know already that he is the source of this whole thing because he wanted to know who “benefited” from the legal spend. So between Mr Mileham and Ms Mazzone it will be clear once the one has testified in front of the other one, what the real motion was about. So we'll then have to pack that debate until it's clarified by the person, the only person who can clarify it – that's the author of the motion. So that's the first problem with what has just happened, is that it's premised on the assumption by the Chairperson, among others, that all these tables has got anything to do with this Committee. And as I say that impression might be correct, it might be incorrect. It will be cleared once Ms Mazzone has testified. The second problem with what has just happened, and I'm now coming closer to Dr Mulder’s issue, but before I do that, again Chair, the second problem Mr van der Merwe is that you actually, yourself as a witness now, you have said that all these things are not in your personal knowledge. Correct?

Mr van der Merwe: Which things, Chair?

Adv Mpofu: The issues that you have, this information about invoices and emails and all that.

Mr van der Merwe: The invoices, I've checked. I can because the information in the invoices, as reflected here, are transactions, payments, and entries in the invoices that I've personally viewed and checked with our Finance, the evidence leaders. So to that extent it is my personal knowledge. The actual sources, the matters that were the subject of the fees, are not in my personal knowledge.

Adv Mpofu: Yes, no.

Adv Bawa: On a point of correction, Adv Mpofu is quoting from the second affidavit or the supplementary affidavit of Mr van der Merwe that he says the invoices. He is quoting that the invoices and the documents don't fall within his personal knowledge. These fees emanate from the first affidavit. Sorry Adv Mpofu because you use the phraseology that appears in the supplementary affidavit.

Adv Mpofu: Chairperson, please protect me.

Chairperson: I'm trying to.

Adv Mpofu: If the witness is now being recognised by the person who called that witness, then what are we doing here? The witness knows what affidavit they did when. You don't have to pre-warn him that I'm reading from what. That goes to the third issue of the disgraceful conduct.

Adv Bawa: Point of order. The proposition put to the witness, in the context of both affidavits was not correct, in that the witness doesn't say that he has no personal knowledge in respect of his first affidavit and that is what I was correcting.

Adv Mpofu: Okay, we'll leave that because I think that I'll just be wasting my time. Adv Bawa had answered for you. Alright. Now the third issue. Anyway, let me just ask you like this. Do you agree that because you only got employed in the Legal Department about two months ago, that you have no personal knowledge of the underlying issues that relate to the amounts and names of people that have just been listed?

Mr van der Merwe: Again, underlying issues, meaning the actual litigation. If that is correct, yes Chair.

Adv Mpofu: Thank you. That's all I was trying to say. I don't know what Adv Bawa is going on about, but be that as it may. So that's the second issue then, that all this consternation and all that and the lists that have just been put up relates to things about which you as a witness have no personal knowledge. So that's the second defect.

Mr van der Merwe: Sorry, Chair. You've restated it now in a different manner than what I answered.

Adv Mpofu: Okay. Let's leave it at the first formulation then, which is that the events and legal activities underlying all the payments that were listed, and the names against those are things that are not in your personal knowledge? Are you happy with that?

Mr van der Merwe: Yes, thank you Chair.

Adv Mpofu: Thank you. Okay, so that's the second problem. The third problem is the more serious one, and that then goes to Dr Mulder’s question. And it is that I know that you are not a registered professional advocate with the LPC. Correct?

Mr van der Merwe: That's correct Chair.

Adv Mpofu: But you did say that you subscribe to and are generally familiar, and I don't mean word for word, generally familiar with the professional ethics of the advocate's profession. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And therefore you should know that one of the things, and you were here when Adv Sikhakhane and Adv Ngalwana did a presentation about matters that they're going to raise formally with the Committee. Correct?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: And before those matters are dealt with and before their document has been formally received, a ruling has now been made that that which they were objecting to must be done again this morning. You saw that, correct?

Mr van der Merwe: Yes Chair.

Adv Mpofu: Right. Now which means really just a deaf ear was tending to what they were saying. You don't have to agree or disagree with that, I don’t want to put you into trouble otherwise you might be muted. So when we get to that area, then I'm going to read something which you’ll tell me if you agree with it, or you know it or you don't know it, but it is as formulated in Lawsa. You are familiar with the Law of South Africa (Lawsa)?

Mr van der Merwe: Yes.

Adv Mpofu: Volume 14 Part Two says that an advocate is not allowed to abuse other advocates and there may not be open or clandestine derision of the adversary in their case. It is of vital importance that when an advocate seeks and assurance from his or her adversary that certain facts exist, he or she will be able to rely implicitly on any assurance that may be given. It is imperative for the proper administration of justice that members of the profession be scrupulous to the truth, their dealings with each other. And then it also says that advocates should deal with their colleagues with integrity, fairness, and respect and without unfair discrimination and to avoid any behaviour which is insulting or demeaning. It has been said that it is not one that can be enforced by court itself. It is enforced by simple fact that anyone who is a member of the profession should observe those standards. Well, firstly, and again I'm not saying word for word, generally, are you aware of those requirements of professional conduct and ethics?

Mr van der Merwe: In general terms, yes.

Adv Bawa: Sorry Adv Mpofu, can you just give us the full reference?

Adv Mpofu: Yes. It’s Lawsa. The first one is in Lawsa Volume 14 Part Two, being page 139. The next one is in, I don't have the reference directly here, but there's the one that I did not read, it’s on Lawsa Volume Part Two.

Adv Bawa: Can you indicate the editions? Because there’s different editions.

Adv Mpofu: Yes. It's the second edition.

Adv Bawa: Thank you.

Chairperson: Mr van der Merwe; you got that first question?

Mr van der Merwe: Yes. As I said insofar as the principles are concerned, being the exact wording, I'm not acquainted with that wording. I don't know it. But in terms of principles, yes.

Adv Mpofu: Yeah. Thank you. So those are the principles that Adv Sikhakhane and his colleagues were trying to impress on this Committee. And to the extent that those principles may or may not have been observed, there was an apology that was given but the same conduct has just been repeated now. Are you aware of that?

Mr van der Merwe: If you’re referring to the ruling and subsequent evidence, yes.

Adv Mpofu: Thank you. And the emphasis of one of the issues that were raised by Adv Sikhakhane was the issue of unfair discrimination. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And also the damage to their professional standing, the potential dangers to themselves, physical danger to them and their families and the lives of those people. Those were some of their complaints, correct?

Mr van der Merwe: I have not personally seen their affidavit.

Adv Mpofu: It was not an affidavit; it was actually a statement. I’m just saying from their articulations.

Mr van der Merwe: The statement that they submitted, yes, it sounds that that is what they were saying Chair.

Adv Mpofu: Yes. Thank you. And lastly, they were saying that they had expected this parliament of the people to protect them rather than to be party to those threats, perceived threats, and professional prejudice that they are suffering. Correct?

Mr van der Merwe: I recollect their statement, yes Chair.

Adv Mpofu: Thank you. Now let's come to you specifically. You are aware that part of the serious or at least one of the serious consequences of this… Rather let me put it this way, when I gave you the opportunity yesterday, I think you did not take it. But to the extent that those people feel that way about your conduct, the conduct of Adv Bawa and the conduct of the Chairperson, are you prepared or not prepared to take your share of any blame of how they might feel, or to apologise insofar as they might be in such a position?

Adv Bawa: Chair, it's an unfair question to be asking the witness in the context of this motion and in the question that was put to him that he answered. And I object to the question being asked, and the witnesses being expected to answer that question.

Chairperson: Are you invoking irrelevance?

Adv Bawa: Chair, it is relevance. It's untoward to seek to lay blame at the witness’s door for this and for him to now have to under oath, accept or reject blame for what the Committee has sought and asked of him to do.

Chairperson: Okay, thank you Adv Bawa. I'm going back to Adv Mpofu, and I will be watching the response of the witness on those.

Adv Mpofu: I’m just addressing the objection Chair. No, the objection is misplaced. This witness, as I explained yesterday, is the source. It might be that Adv Bawa is the driver, or Mr Mileham, Ms Mazzone, or whoever the real driver is. But as far as this part is concerned it's the witness who is before you Chair and the schedules that have been put up there ostensibly are the witnesses. In fact, he confirmed yesterday that he participated in their drafting and compilation. So that's the first thing. The second thing is that the PP has objected to this numerously. I don't want to go through the history again of when it started with Mr Mileham, Mr Herron and so on. I've said all those things, up to where it is now. The PP has been making this objection. But now more importantly Chair, the evidence leaders with whatever qualifications they made, made an apology yesterday when Adv Sikhakhane was here, to the extent that they apologised even though they have now come to do the very same thing. Except for the issue of accuracy, which it was made clear by Adv Sikhakhane, and me by the way, that that was not the issue of just the accuracy, it was the idea of flighting people's names. So if Adv Bawa is good enough to apologise, I don't know why the witness is not good enough to apologise because even though he's not a registered practitioner, he says he subscribes to the standards that would be expected from an advocate. And all I was asking Chairperson, and I framed the question very carefully and I linked the two apologies by saying that to the extent that there was any apology made to the colleagues who were here, is he prepared to apologise for his part, not for anyone else, of the hurt that this is causing to so many people, including the junior counsel that Adv Sikhakhane was talking about. So it's in that context Chair. It's the same line that I've been following on this. So I would like you to please overrule that objection.

Adv Bawa: Chair, I was very specific about what I apologised for yesterday. I apologised for the errors we had made into the schedule. And I indicated that as a consequence of that it was regrettable. To the extent that it is now being conceived that my apology was wider than that, I'm just being very clear about what I apologised for.

Adv Mpofu: Thanks Chair. That’s helpful. So Mr van der Merwe are you prepared to apologise for the errors that were apologised for by Adv Bawa, to the extent that they negatively affect the people in respect of whom those errors have caused the consternation?

Mr van der Merwe: First of all, I apologise just for the errors, the fact that we made errors. You are attributing certain consequences and implications to my evidence by means of statements, which I may or may not have foreseen or may or may not arrived there from. I take responsibility for my evidence to the extent of having complied with what was required and requested of me to this Committee, to assist the Committee. As far as the effect of my evidence is on anybody, what we produce or try and do here is to present the truth and accurate information to the Committee. I cannot apologise for that. To the extent that if it affects people negatively, or if it's hurtful, obviously that is not consequences that we would want to endorse, but I'm complying with a brief from the Committee to present evidence in the way that I was asked to, that was instructed and directed. For me personally now, because an apology has implications, it could mean I think that the evidence is not relevant, or that it is untrue. The consequences of my evidence, unintended or intended, I have to take responsibility for everything that flows from my evidence. And that's what I'm prepared to do.

Adv Mpofu: Thank you very much. Okay. I promise you I'm not going to cross this much further, but just for my own clarity. I understand what you're saying that if you apologise, it might look like you are saying that the evidence is untrue or it might even look like you are saying that you intended the hurt that it has caused. No, I'm very clear that those two… So if you make those qualifications then, that the evidence is not untrue and that you did not intend to cause the hurt. Are you prepared to apologise or to stand with Adv Bawa that you will only apologise for the inaccuracies but not for the hurt that may be caused?

Mr van der Merwe: You are asking the same question in a different manner and I already explained why I cannot apologise.

Adv Mpofu: No, it's not the same question. You didn't hear the qualifications that I put?

Mr van der Merwe: Yes, but in the end you said,“For the hurt.” Again, I explained that I cannot apologise.

Adv Mpofu: Thank you Mr van der Merwe. I think it's clear. So basically, you are not prepared to apologise for anything?

Mr van der Merwe: You are restating my answer in a different way. That's not what I said and I would request the Chair from refraining from that. I was very clear on the fact that I said I cannot apologise for the consequences of my or the interpretation or the results from my evidence. I can only take responsibility for my evidence.

Adv Mpofu: Alright. Now let's give up on that one. Now I was saying then, you are aware of one of the consequences of this is that it relates to you personally, in that Adv Sikhakhane has had to withdraw because of this from his matter that you and him were consulting about recently. That is the matter of the corruption involving Mr Oscar Mabuyane. Are you aware of that?

Mr van der Merwe: Chair, are you asking me to divulge attorney client privileged information?

Adv Mpofu: No, you’ve already done that sufficiently, divulging privileged information. I'm asking about whether you are aware that, as a result of your actions, Adv Sikhakhane has had to withdraw. There's no privilege, the privilege does not belong. If it belongs to Adv Sikhakhane, he has waived it by telling me that. Are you aware that the Office of the PP is going to have to waste money to hire new counsel on a matter that has been advanced, because the SC has withdrawn due to your conduct and everything that has happened here? That's relevant to the work of the Committee because it's going to involve wastage of a lot of money. Please. Are you aware or are you not aware of that?

Mr van der Merwe: I'm not prepared to answer that question in the way it's asked. In any event, the privilege belongs to the client, not to the service provider and this is a matter that's still ongoing. Therefore, I would ask the Committee to respect the client legal privilege on the information. I'm not going to divulge here what the consequences were. The Office is responding to that as the client; I'm not the client. And Office is liaising with Adv Sikhakhane as we speak. So I'm not prepared to divulge any further information on that.

Adv Mpofu: No, thank you Mr van der Merwe. So as you've just said, you are not the client, right?

Mr van der Merwe: The PP is the client.

Adv Mpofu: No, just answer my question. As you have said, you are not the client, right?

Mr van der Merwe: Yes.

Adv Mpofu: Okay. So therefore, as you said, the legal privilege belongs to the client, right?

Mr van der Merwe: I’m here in my capacity as the Legal Services Manager of the PP.

Adv Mpofu: No, sir. I'm asking you as a witness now. I'm saying, are you aware? You may be aware or not aware. Are you aware or not aware? Even from your answer, when you say the Office is dealing with that matter, it means you are aware. So just for the record, whether you are aware or not aware that there has been that development which is going to cost the PP’s Office and the taxpayer a lot of money due to the conduct that has taken place, which may or may not be in breach of the professional standards that I have put out, in which case it would be disgraceful.

Mr van der Merwe: That's a statement. It's not a question. What is the question please Chair?

Adv Mpofu: No, Mr van der Merwe. When someone says, “are you aware of something”, that is called a question. At the end of that there's a question mark. So that is the question, but think about that.

Adv Bawa: Just as a point Chair, we had asked for a waiver for the employees of the Office of the PP to come and give evidence before this inquiry with the caveat that it does not relate to pending matters. We did that so that if the PP is involved in matters of whatever nature, that they retain their privilege on that basis.

Chairperson: Thank you. Mr van der Merwe; you got that last question?

Mr van der Merwe: Yes, I have Chair. And as I said, I stand by the fact that I am not prepared to discuss that matter.

Adv Mpofu: Okay, Chairperson let me deal with both advocates. The first one is that the indemnity of the employees has got absolutely nothing with what we are discussing now. All these witnesses, at least those that are in the Legal Department, Mr Muntu Sithole, who had anything to do with it, Mr Futana Simon Tebele, and even the others who are not directly, and this one in particular, have commented on…

Mr van der Merwe: Chair, can I ask not to be referred to as “this one”?

Chairperson: Mr van der Merwe I didn’t get that.

Mr van der Merwe: I didn't like the fact that I'm referred to as “this one”, Chair.

Chairperson: Okay. That's a request Adv Mpofu that this is Mr van der Merwe. As you said, you are referring to the two advocates, so he’s asking that that language of “this one”…

Adv Mpofu: No, Chairperson. No.

Chairperson: What is the “no” now?

Adv Mpofu: No, I started exactly by saying that I'm referring to the two advocates. Then I say to you, several witnesses, including Mr Sithole and other witnesses, including this one. I'm not saying Mr van der Merwe is “this one” in that sense. I'm saying several witnesses, including the one on the stand now. Okay?

Chairperson: That’s a better context. Thank you. Proceed.

Adv Mpofu: Are you happy now Mr van der Merwe?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Okay. I’m wrong. Alright, don’t worry, we’re going to be together. So, Chair, I'm saying that several witnesses, including Mr van der Merwe, have testified on ongoing cases, past cases and so on, including the one that was concluded yesterday. And I'm not asking him to comment on the merits of any case. I'm not. I'm simply asking him, whether he is aware or not aware that as a result of the hurt, perceived or real or alleged or whatever, that was expressed here as a result of the flighting of the irrelevant information, that the PP’s Office is going to suffer a lot of financial damage. Before I ask that question Chair, if you please bear with me because I don't want us to waste time on this, Mr van der Merwe are you aware of the following rule or Code of Conduct of the Legal Practice Council, which is the one Adv Sikhakhane was invoking in relation to what I'm talking about. It says at 28.7, “If, after counsel has accepted a brief in any matter, any circumstance arises that imperils the proper discharge of counsel’s duty of diligence, counsel shall, once such eventuality is apparent, especially in respect of trial briefs, report such circumstances to the instructing attorney to facilitate timeous steps to inhibit prejudice to the client and facilitate a successor to be briefed in time to take over the brief.” In other words, when a situation arises where counsel feels that they are prejudiced with the brief, then their duty is to tell the attorney and to arrange for a successor to the brief – that means to withdraw from the brief. Are you aware of that rule?

Mr van der Merwe: No, I hear it now.

Adv Mpofu: Okay. But I'm sure, again, I won't hold you to the wording of the brief, but in your experience, you've had situations where counsel would withdraw under those kinds of circumstances if they were uncomfortable with one thing or another. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And in this case, the reason I'm asking you sir, is because Adv Sikhakhane was not prepared to have you, Mr van der Merwe, with whom he consulted a couple of weeks ago, coming here and being party to banding up his name, as he explained yesterday, and then next week he is also supposed to come back to you and have another consultation. That would never work. And so he basically has withdrawn because of you and Adv Bawa and everything else that has happened that he explained himself. I don't want to put words in his mouth. Do you see why I'm asking you the question. I'm not asking you some general question about the merits of the case. I'm asking about you and your conduct or alleged misconduct.

Mr van der Merwe: Is it alleged misconduct?

Adv Mpofu: Yeah. Well, okay, maybe I'm putting it too strongly. Your alleged conduct that has caused that consequence?

Mr van der Merwe: There's a lot of loaded information in that question Chair, First of all, as I said, it's an ongoing matter. It's a current pending litigation matter which the Office as a client is dealing with. For Adv Mpofu to go and lead testimony now, on behalf of Adv Sikhakhane, about what has happened in any communication between us or whatever, is first of all improper because it's privileged information which I have not been mandated or waived to divulge. Secondly, the Office is the client in this case. As Adv Mpofu has succinctly pointed out, the Office as the client is dealing with the relationship between it and any service provider. If my evidence here affects that relationship, which it might or might not, it is for the Office to deal with that. If any service provider has a problem with me personally, it's again the Office that has to deal with that. I cannot respond to an allegation that I am the result or the consequence of certain actions Chair.

Adv Mpofu: Okay, thank you. Alright, that's fine. I'll move Chair. So basically, you're prepared to put up people's names and their earnings and all that, and attorney’s accounts and even emails between counsel and client about legal strategy – the real privileged stuff – but you're not prepared to talk about administrative issues such as the withdrawal of counsel, which has an impact on the fees that you're supposed to be talking about and expenditure in the PP’s Office. That's fine. Thank you.

Mr van der Merwe: No Chair. That is a statement. Again, I've explained in the context of which I put up the information in a directive and the instruction. The personal liability here of making me personally liable for the choices, again, I reject. I'm complying with a directive from this Committee. Secondly, I would advise counsel and anybody else to go and specifically look at the issue of legal privilege and what is privilege, before just blanketing, say that we disclosed privileged information. There are court cases on this item. I don't want it to divulge in this because the information that I’ve put up, as I said, was at the request and the directive of the Committee. To try and make me personally liable for the compliance with that directive is unfair.

Adv Mpofu: Okay, no. That's fine. Let's move on. You're wrong about the privilege. Thanks for the advice for me to go and read up on it. But the last time I read up on it, it (A) belonged to the client, and (B) was not absolute, and (C) could be waived, and (D) was subject to the public interest. But that's fine. That's a story for another day. Let's now then go back to what you have been testifying about. For the record, because there's also some notion that maybe, especially those of us who are here, whose names have been put up there, that maybe we want to hide the hard-earned money that we have received as a result of the work we have done. No. In my case, can I tell you, for example, that the money that's been put there is not enough. There's other money that I've earned from other attorneys, from the PP’s Office. Are you able to confirm that? I'm waving my privilege.

Mr van der Merwe: Yes.

Adv Mpofu: Yes. Okay. So what is put up there, as far as the amount of money that I made, is peanuts. So let's get that clear that there is no self-preservation here. But I'm worried about the junior members and junior women and men out there who cannot protect themselves and that you have abused and continue to abuse and refuse to apologise about, but that's fine. Now, can we also be clear on one thing that, as Mr Herron once said here, those people who have made those endings have worked for them. It's not your evidence that they have done anything untoward. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: Thank you. And in my case, I can tell you, if I charge for everything I have done, it would have been double. But that's another story. But the most important thing Chairperson and Mr van der Merwe is that we are here on the occasion of the possible removal of the PP. Right?

Mr van der Merwe: That's correct. Yes.

Adv Mpofu” And you can confirm I'm sure to the Committee, that the PP is the executive authority?

Mr van der Merwe: Yes.

Adv Mpofu: She not the accounting officer; there's a CEO there, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And you can confirm to the committee that the Public Protector has got absolutely nothing to do with the payment of advocates or attorneys or what have you. Correct?

Mr van der Merwe: The authorisation of the payment, yes.

Adv Mpofu: Thank you. So even if all these things, again, it just demonstrates that all the hurt – alleged, perceived, real, or not real – is for the purposes of achieving absolutely nothing for this Committee. Because the person that this Committee, whose conduct it is scrutinising for now, when it sits a portfolio committee it can scrutinise everyone, including you and everyone, but now it's enquiring into the conduct of the PP, Adv Busisiwe Mkhwebane. Correct?

Mr van der Merwe: That's correct.

Adv Mpofu: Alright. But despite all those four defects that I have identified, I will just indulge and ask you a few questions about this waste of time accompanied by disgraceful conduct. As I said, just in case Ms Mazzone will determine that I'm wrong or that there's a distinction between legal fees and legal costs, or that Mr Mileham is right, that people have benefited, or both.

Dr Mulder: I think we can conclude then that Adv Mpofu is now done with his interpretation of disgraceful conduct. And I still want to have clarity. Do I understand it then correctly that he is of the view that the conduct of the witness is disgraceful conduct? Or of the Chairperson? Or of this Committee? I think I need clarity on that. I think he said he wanted to explain it to us and I think he should just formalise. Thank you

Adv Mpofu: Yes. No, I’m unable to count the number of people involved in the disgraceful conduct. So those to whom the shoe fits, apart from the ones that I have specified in my discussion. But I can come back, I can give him the list later Chairperson Thank you.

Dr Mulder: No, I just want to have clarity. So it's clear Adv Mpofu is not prepared to say to whom he contributes this alleged disgraceful conduct. He says people who the shoe fits should take it for themselves. So that might include him as well.

Chairperson: Okay, thank you. Let's hold it there in terms of what you just summarised and I'll ask Adv Mpofu to proceed.

Ms Maotwe: Chair, before Adv Mpofu proceeds. I want you to rule that Dr Mulder is out of order. That what he’s raised is not a point of order, he must sit down and allow Adv Mpofu to continue. I want you to make that ruling Chair, it will be very good

Chairperson: Please proceed Adv Mpofu, as indicated.

Adv Mpofu: Thank you Chairperson. Mr van der Merwe, yesterday we went through the discussion about, we had just chosen one of the matters as a as an example, that there was an instruction to Mr Seanego about, at that stage, the possibility of this process, which has now evolved into all sorts of things and costs and continues to cost the PP’s Office a lot of money. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And that instruction was sent on the 28th of June 2018, when I think there was a first motion, well it was defective, but which had been put up by a Mr John Steenhuisen (DA).Are you aware of that?

Mr van der Merwe: I can't confirm the date. I will have to revert to my records.

Adv Mpofu: Alright. I'll give you that reference. It's in the bundle. You are aware that then in terms of the number of instructions, the office of Seanego Attorneys has not necessarily received the so-called lion's share, although they may have received it in terms of the of the expenditure? Do you understand the question? In terms of the number of instructions?

Mr van der Merwe: I can confirm that Seanego Attorneys received approximately 24 different matters’ instructions and that it is the most of all the firms.

Adv Mpofu: Yes. Okay. You have just made the mistake that I'm trying to avoid now, about instructions and matters. Are you talking about matters?

Mr van der Merwe: Matters, yes.

Adv Mpofu: Right. Now, you are also aware that they have not received any new instruction since, I think, January 2021?

Mr van der Merwe: I am not sure about any new instructions. I can check and verify what the last dates were. Well, I can verify, as far as instructions are concerned, that we proceeded with the mandate as the funding authority for the Part B as well as this Section 194 Committee. So if that is included in the matters, then I would say no the Office is. But it's a technical issue because we've had no arrangement as to how the instructions would be issued and how and which the Office would fund. So I'm not sure if you want me to go into those details.

Adv Mpofu: No, I don't. I think, unfortunately, there is some detail that we need to go into, which I think would be of assistance to the Committee because I get the sense that you're making the same mistake over and over again. When I say that, there's been no new instructions, there's a difference between instructions. You can have 10 instructions in the same matter, the same case. And that's what I think you are doing. So if there's an instruction, let's say to appeal, that's still the same case, the same matter. And then there's another instruction to do an application for leave to appeal, that's still the same matter. Then there's another instruction to go to the Constitutional Court, and so on and so on. So, when you say that's what you mean when you say 24 instructions?

Mr van der Merwe: No Chair. I can list the matters if you want to. It's different. I do understand the difference between instructions in matters.

Adv Mpofu: Now that's fine then you’ve covered it.

Mr van der Merwe: I can list their various matters. All 24 of them.

Adv Mpofu: I just want the quantity for now. If you want to do that, we can ask for it.

Mr van der Merwe: It is in the schedule, Chair.

Adv Mpofu: Okay. Now you are aware that before Adv Mkhwebane arrived, the bulk of the work or let's say the so-called lions share went to the big white firms. Correct?

Mr van der Merwe: I cannot confirm that if it's big white firms.

Adv Mpofu: If you don’t know what that means, it's a term that’s used in the profession.

Mr van der Merwe: I know what it means.

Adv Mpofu: Have you heard of it?

Mr van der Merwe: Yes. Well, again, the firms, I cannot vouch for their composition or if they're associated with a certain race. I can just confirm that I've seen the names of some of the firms that predates Adv Mkhwebane’s term. Whether they are associated or likened to being white firms, I cannot confirm that.

Adv Mpofu: Okay, no, I can understand your sensitivity about whiteness. I didn't mean it that way. It’s a term that’s used in the profession. I don’t mean it in terms of race as such, it's a term. Okay, let's not use that, let's say the big colourless firms.

Mr van der Merwe: Thank you, Chair. That last remark is snide, being sensitive about whiteness, and I would like Adv Mpofu to withdraw that.

Chairperson: You're objecting to the whiteness remark?

Mr van der Merwe: That’s correct. Race has got nothing to do with me.

Chairperson: Okay.

Adv Mpofu: I just explained that I don't mean it in a derogatory way. I mean it in the same way as Seanego Incorporated is a black firm. That's the truth.

Mr van der Merwe: It was about the sensitivity Chair, saying I'm sensitive. It was the word that counsel used Chair, about me being sensitive about certain issues. I'm just addressing the facts.

Adv Mpofu: Okay. Then you are insensitive? Okay, that's fine. The real issue I wanted to ask is before Adv Mkhwebane arrived, the work used to go to big  firms like Bowmans and Adams & Adams. Correct?

Mr van der Merwe: As far as I can recall, yes.

Adv Mpofu: And that's one of the issues, at least confirmed by whatever the problems, I'm trying to choose my words now, with the list that you put up. It confirms one thing and one thing only, that under Adv Mkhwebane more black practitioners were being used by that Office. In fact, it's the only office in the entire country that does that so diligently. Not a single government department or State-owned entity has that great track record. So congratulations, Mr van der Merwe. Would you agree that that has since changed?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Sorry, just one thing. You accept and remember we had that debate about whether you have personal knowledge on not or whatever. But for the purposes of the Committee, you accept that when you give us evidence about at least the matters and invoices about which you have no personal information, then the evidence of Mr Sithole, who does have such personal information should be preferred. Correct?

Mr van der Merwe: No, I cannot confirm that. Mr Sithole didn't testify about the payments and the invoices that I have. Mr Sithole can testify about the litigation strategy in matters that he had personal knowledge of. I am testifying the matters that are within my portfolio currently. And if there's inconsistencies or there's a difference of facts, and as far as those facts relate to his personal knowledge, obviously he would testify about that, and my testimony stands on the issues that I'm presenting to the Committee.

Adv Mpofu: No, that's fine. No, that's what I meant. We can’t prefer his evidence about things about which he did not testify. That's fine. That should be obvious. Then the last on that series of questions is, you have testified, or rather one of the things that was put up here was a figure of R55 million that was paid to Seanego Attorneys. Remember that?

Mr van der Merwe: Yes.

Adv Mpofu: And I'm going to say this, in relation to that figure and the other figures of Adv Sikhakhane, Adv Ngalwana, me and the others, that's now the fifth problem with your evidence, is that that evidence, deliberately or otherwise, fails to break down those figures into their constituent parts. Would you agree with that criticism?

Mr van der Merwe: No, we’ve presented the figures in relation to both the matters, broken down the service providers involved, in fact, in respect of every invoice, and we've made a note of the fact that there were certain invoices that were rendered that have not been paid. So we've made a clear breakdown to put it in a proper context Chair.

Adv Mpofu: Yes. No, it’s not the proper context. That's what I'm saying. It's misleading and it involves double counting, which if it's not explained to the Members will leave the incorrect impression. Can I try and explain that?

Mr van der Merwe: Yes.

Adv Mpofu: So for example, you will have Seanego received R55 million, right. And then on another slide, it's going to say Adv Mpofu received R20 million, or whatever you wish, which I worked for. But what doesn't come out of your slides will be that the R55 million of Seanego includes the 20 million to Adv Mpofu. Do you understand that?

Mr van der Merwe: No, it's not how we are reflecting it. We are showing the R55 million and then showing of that R55 million, we were requested to provide a breakdown of that R55 million, R17 million would go for attorney’s fees, so much would go for counsel fees, and so much for disbursements, and it's broken down. It's not in addition to the R55 million.

Adv Mpofu: Yes. Thank you, Mr van der Merwe. Maybe I'm asking the question wrongly. Maybe that was not your intention. I'm just saying that it's possible for someone who, unlike you and me, might be familiar with those figures to look at them separately, but you are confirming that the globular figure includes the broken-down figures. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: So that, for example in that case of the so-called R55 million, about R40 million of that would be disbursements on the part of Mr Seanego’s firm to counsel. Correct?

Mr van der Merwe: No, sir.

Adv Mpofu: You don’t have to know the figure, let's just say a large amount of it.

Mr van der Merwe: A portion, yes.

Adv Mpofu: Alright. And the other thing that is incomplete is that then you don't say that which is why Adv Sikhakhane was talking about physical danger, someone's going to think that he's walking around carrying R5 million. So you don't make it clear that that amount is over a period of five years, for example, or six years or whatever the period is. You don’t have to be defensive, but can you just confirm that indeed the money is in respect of, and I’m using Adv Sikhakhane, unfortunately, as an example, because he was here. I don't want to use other people as examples. At least he volunteered himself. You get what I'm saying that it's over a period of time? Thank you.

Mr van der Merwe: Yeah, no, the schedules do show that, for instance, in respect of an advocate it would be briefs over a period of between 2019 and 2021, for six matters, four opinions, three firms and information like that. It's not for one single matter. That information is contained in the schedules.

Adv Mpofu: Okay, so if for example a particular advocate started working for you, I don’t mean you personally, in 2018 – that would be over a period of five years?

Mr van der Merwe: That's correct.

Adv Mpofu: So again, if we take that to the Seanego example, that whole thing might end up at an average of R2 million or even less per year for the actual firm itself. Correct?

Mr van der Merwe: Yes, depending on when the firm was appointed.

Adv Mpofu: Yes, of course. I accept that. If a firm has been there for two years, you say divide by two, if it's five years divided by five, whatever. I accept that.

Mr van der Merwe: That’s correct.

Adv Mpofu: Thanks. Yeah. The next problem that your figures fail to show is that of that, and again I'm using the figure indicatively, let's say R1 million. If it works out at R1 million per year, you don't reflect that of that R1 million, 15%, R150 000, is VAT. In other words, it now goes down to R850 000. Correct?

Mr van der Merwe: Yes, I think we reflect the figures inclusive of VAT. So anybody would know that it would include VAT, yes.

Adv Mpofu: No, but that's the problem, Mr van der Merwe. You and I might know it because we've dealt with lawyer’s bills in our lives. But some of the Members may never have seen a lawyer's account. They are not lawyers; they have other professions or other skills. So I'm saying that it's important to break these things down. You don't think it's important to say that, if they say, “Adv Mpofu got R1 million”, you might want to mention that 15% of that went to South African Revenue Service (SARS)? You don't think that's important? In other words mentioned specifically, I take your point that everyone should know that it's inclusive, but do you confirm that actually those amounts should be reduced to that extent?

Mr van der Merwe: Yes.

Adv Mpofu: Right. So let's say now, the so-called earnings are R850 000 and at least you can speak for some of them, present company included. Then those people would have to pay income tax to the tune of 45% averagely. Correct?

Mr van der Merwe: I would imagine that they do pay tax. I don't know the percentage Chair.

Adv Mpofu: I take that point. Well speaking for myself, I can tell you I do. But on a serious note, you then accept that that's almost half that amount. Correct?

Mr van der Merwe: Again, I would speculate, but it would have it. I can't say much of the amount. But yes, it would. Are we now talking about take home and earnings? If one is breaking down the invoice into that, obviously.

Adv Mpofu: We’re talking about income here that's why it's called income tax.

Mr van der Merwe: Yes, I can't say what the amounts would be. But I can confirm that these persons would be subject to income tax. I can't say what the tax arrangements of the firms are.

Adv Mpofu: No, of course. No, you can't. I don't expect you to do that or to know what the deductions and all those things are. I'm just talking. That's why I said average. Let's just say a significant portion, more than a third, would go to income tax. Would that be fair?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. So that's the point I'm trying to make. I hope I can stop there. I don't even want to go to office expenses, payment of salaries and all sorts of things that will take us far. The point I'm making, I hope it is made now, is that it's one thing to put up a slide there and say advocate so and so got R2 million and put up a slide there for social media purposes. But if you don't then unpack it in its proper context so that it's clear that advocate so and so might actually be having the same earnings as an administrative person working for Parliament or whatever, or even a Member of Parliament, that it can be misleading. I won't put it higher than that if you just plonk a figure without making all those qualifications. Understood?

Mr van der Merwe: Yes. Again, as I said, our context was to put it from the perspective of the expenditure side, what was expended by the PP, and not to reflect on the individuals per se.

Adv Mpofu: Yes. Thank you very much, Mr van der Merwe. So that's really the issue. The concern of this Committee, as you correctly point out, should be what was spent by the PP and not the individuals because that may lead to the misleading information that you and I have just agreed could be misleading. I agree with you that the focus is on the spend of the PP, but I'm just saying that from the other side of the coin, by putting people's names there, then it may be susceptible to these distortions that you and I have just discussed. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Alright. Now let's move to… It's fine. Okay, I won’t ask you to apologise. But if then those distortions have occurred in respect of people and they are hurt by them, tough luck. Correct?

Mr van der Merwe: No, sir. Every payment, if you put up somebody's earnings and people have to go and deduct from that, and from there, there would be office expenditures, the putting up of the earning in itself is not a distortion. So by saying that the expenditure, putting up the amount that was paid by the PP is a distortion, is not correct. As I said, that is the amount that was expended. Whether or not it is a true reflection of the amount that the person in the end has in his or her pocket, that was not the intention because all those factors are not reflected. We are not privy to every person's and every professional’s tax arrangements and things like that. So to call it a distortion would not be correct. The only inference is that might not be the amount that the person would be in the end. But that is for the public to know because that type of information, every time when someone's earnings is displayed there, there are inherent consequences now and there are inherent figures. So to call the expenditure in itself a distortion is not correct.

Adv Mpofu: Yes. I accept that. I just wanted to say to you, or rather to test this idea with you, you can agree or disagree. What you are saying is true. But the reality, which everyone knows, including those who put up those names on the screen, is that when it is reported nobody says, “Oh, look what Mr van der Merwe’s office has spent.” It is, "Look what Adv Sikhakhane has received or looted.” Right? That's known before the thing is put up there, that that's what's going to happen. That's the first thing. The second thing is that anybody who thinks that when Mr Mileham started the spiral of disgraceful conduct to what it is now, his interest was not, as he puts it, those who “ benefited”, but his interest was just how much the PP spent. That person needs their head to be examined. So the point I'm saying is, it's known that the sensational stuff is not what you are saying. And I take your point that when you give out the figures you give them from the point of view of what the Office has spent. But the impact that is already known, the prepaid insult on others, is what actually happens in practice. Correct?

Mr van der Merwe: Yes. I can't confirm to say that it's an insult. I would confirm that there are consequences. Perceptions out there would differ.

Adv Mpofu: Yeah. Okay. That's fine. I'm happy with that. Thank you. Now let's get to this issue of Mr Paul Ngobeni. Again, you have no personal knowledge of this matter. Mr Muntu Sithole is the one who had more interaction with this issue. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. And he has already given evidence, but I'll just deal with your take on it and I'll try and do it in summaries because it's, as I say, for you, it's not something that's necessarily in your personal knowledge. Let me start by saying you have previously participated in the drafting of speeches for the PP. Correct?

Mr van der Merwe: That's correct.

Adv Mpofu: And in doing that, you collaborated with Mr Oupa Segalwe. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And so that kind of hybrid, and mark that word there, the kind of hybrid effort would then involve you with your legal expertise or research expertise and Mr Segalwe with his communication expertise. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: And you'd come and produce a single product, which the Public Protector will hopefully read out at some university or another. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Right. So, I want to get to the bottom of this because, again, there's a lot of sensationalism that gets peddled about by all sorts of ignoramus out there on social media, some of them posing as journalists. It's very clear, and I want you to confirm or not confirm. By the way, on that, can you confirm there was some other report yesterday about the number of reports that were overturned? And I think like Adv Bawa I made an incorrect number – 14 instead of 17. Can you confirm that as at February of this year, there were 17 reports that had been overturned?

Mr van der Merwe: Over which period Chair?

Adv Mpofu: To date. To that date, up to the 17. Remember, there is that famous pie chart that your office gives, that of the figures R50 000 have been given and so on and so on. And then, in that pie chart there are 17 reports that had been overturned as at that point. You remember that? Otherwise, you can confirm it. If you've got it on hand, you can just confirm it for the Committee.

Adv Bawa: Chair, I did get some leeway to take Mr van der Merwe to that yesterday. And I did it with reference to the figures on annexure NVM14, if that's helpful for you Adv Mpofu.

Adv Mpofu: No, I'm talking about a different… I don't think it's part of our bundle. I'm talking about the report as at the end of February 2022.

Mr van der Merwe: I've got a different figure from what we presented.

Adv Mpofu: Not the one on the, I know what Adv Bawa is talking about, I think that's what actually caused the confusion. I'm saying as at February. If you don't have the figure with you now, you can give it to us later. But I'm telling you, as a matter of fact, that as at end of February the figure was 17 reports that had been converted. And either you or us will supply that to the Chair in due course. Let's not waste time on it. Okay?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Okay, I've got the pie chart, but it's not going to help the Chair because I've got it here. So I think it will be posted Chair. Let me just summarise it. It's PP in numbers. October 2016 to February 2022, if you've ever seen such a thing. The total caseload, 60 962. Total finalised, 58964. Total public education activities, 2372. Total investigation reports, 412. Back-to-back clean audits, two at that stage, since three now. Reports successfully defended, 9, and reports reviewed and set aside.

Chairperson: Let's take your first recommendation because you're leaving us out of that.

Adv Mpofu: I'm going to ask him. I promise you Chair, I’ll send it. There's only one more. Reports reviewed and set aside by the court, 17. That's the one I'm talking about. Have you ever seen such a thing? If you haven't, then we'll send it to the Chair. Either way, we'll send it to the Chair. But the question is have you ever seen it?

Mr van der Merwe: The chart? Yes, I did.

Adv Mpofu: Thank you. Okay, that's fine, then it makes everybody's life easier, but we'll still send it Chair. So I was saying that those statistics, okay, the point I was making is that, and I just want to reconcile what I was saying with Adv Bawa’s attempt to correct me. That does not detract from the statistics that were shown by Adv Bawa insofar as they maybe the latest figures, maybe as of yesterday or whenever it is. You understand the distinction between where I'm seeing as at February 2022 and as of maybe yesterday, or whenever?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. So, once again, because this must cut both ways, just as the PP doesn't want to claim responsibility for everything, she also doesn't want to claim the benefit for everything. So, again, the issues of clean audit, for example, that is the effort of everyone, including people like you. Correct?

Mr van der Merwe: That's correct.

Adv Mpofu: Right. Now you are aware or you are not that one of the, and I’m linking this to the Mazzone motion to the extent that it is relevant to what you say. You're aware that, indeed, one of the things that the current PP inherited or found there was irregular expenditure in respect of the Legal Department?

Mr van der Merwe: I'm not aware of, I can't confirm that Chair. If it was so, I haven’t checked it.

Adv Mpofu: Okay. Fair enough. You were not in the in the Legal Department then. But would you be surprised that there was a really irregular expenditure in the Legal Department previously, which, obviously, Adv Mkhwebane has now eradicated, hence, the three clean audits? Okay, put it this way. You would accept that if there were no clean audits before, those would have been spread around in different departments. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. So the question I'm asking you is that are you aware that one of those departments was the Legal Department? If you are aware, you are, if you're not you're not, we'll present it when the PP testifies. Are you aware?

Mr van der Merwe: No, I'm not aware Chair.

Adv Mpofu: Okay. Good. Alright. So anyway, we'll present it when she testifies. So on the contrary, we will show that what she has done in respect of legal expenditure is to clean up the irregular expenditure that she found there while others wanted her to be impeached for it. But that's fine. If you are not aware we'll deal with it at that stage. Mr G Hendricks (Al Jama-ah) I think, when we started here on day one, said something very profound, which was, yes, we know the PP was the captain of the ship but why are we not told about the deficiencies of those upon whom she put trust to do the various jobs, whether they are investigators or executives or whatever. So I'm sure you'll accept, as she does, that just as the benefits of the clean audits and all the achievements must be shared, similarly the deficiencies should also be shared, particularly by those who are responsible for them. Correct?

Mr van der Merwe: Are we talking about the audit still Chair?

Adv Mpofu: No, we're just talking about any weaknesses that might be pointed in her direction, which, in actual fact, are other people's responsibilities – including the audits, everything that might be negative. Let's assume there was a qualified audit, instead of a clean audit. I'm saying if that was the case, that would also have to be shared around by those responsible thereof. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes.

Mr van der Merwe: Chair, you were still referring to the audit in that context. Can you repeat the original question?

Adv Mpofu: Okay. I was saying, Mr van der Merwe, you mustn't say yes to things that you haven't heard properly. That's a good idea. No, I was saying, just as the PP says that the glory must be shared, where there are weaknesses, it should also be shared by those who are responsible for those weaknesses. It's just a general statement. Agreed?

Mr van der Merwe: Yes, well, with a qualification to extent that there are different levels of responsibility in an organisation like us, and just like I am responsible for my unit and the performance of the unit and output of the unit if I make mistakes, and we are already accountable in terms of the structure. So, in terms of how deep that level of accountability, and to what extent the PP as the executive authority would have to take account, and what level people would have to take account, obviously there is difference between contributions. And I know what you, at the start of these proceedings, distinguish between responsibility and accountability. And the people are responsible for the outputs in their different levels, and then there is accountability by virtue of positions. So, I can just confirm that people would, in terms of their responsibilities and their functions, be responsible, and then in terms of positions, the various office bearers of the office will be accountable for the performance of the functions of their offices.

Adv Mpofu: Yes, no, that's fair enough. And, for example, in the area that we are dealing with now, you and I have agreed that the accountability for the payment and authorisation of legal fees is with the accounting officer. Correct?

Mr van der Merwe: Again, I have to qualify that because, in terms of the practice, the appointment process, I'm talking there just about authorisation of the payment, it's clear from my affidavit and from the observations in terms of the evidence that I've had a look at that, and in terms of the legal strategy. And you pointed it out in Mr Sithole’s evidence as well that the directive in terms of the strategy and decision as to what kind of response there would be to the strategy, to any kind of litigation, and mostly who to appoint. So there are different levels in terms of the appointment process and litigation process, that was within the purview of the PP. The actual payment, authorisation of the payment, that was at the level of the accounting officer.

Adv Mpofu: Yes, that's all I was asking you. So it’s a yes. So, and this is a perennial South African problem, ministers, executive authorities, get blamed for all sorts of things, including procurement decisions, and they are always at pains to point out that they are the executive authority, and the Director-General in those cases is the accounting officer. But that's fine. I'm sure that's one area we can be sure that the Members are familiar with. So I don't want to belabour that, we'll deal with it when we are in argument. Now I was saying that it's clear, I'm putting it as a statement, you can confirm or not confirm, it's clear that the services that were offered by Mr Ngobeni straddled between communication and legal. Would you agree with that as a general statement?

Mr van der Merwe: If I look at what was invoiced for, yes, it covers both areas in terms of litigation-related and media-related.

Adv Mpofu: Correct. Yes, thank you. And that entails on the communication side of it, it would be articles that were published and all sorts of things and strategy to counteract the negative narratives out there – all the things that were referred to. And then on the legal side, that would be those opinions that are part of the bundle. Correct?

Mr van der Merwe: That is what is reflected in the invoices and the communications. Yes.

Adv Mpofu: Yes. And to that extent, in fact, I think one of the letters that symbolises this, it says, “Dear Theo and Oupa.”And it's one of the letters that was put up, that you confirmed. But that symbolises what you and I are talking about, that hybridity between the communications and the legal services. Correct?

Mr van der Merwe: In that context, yes, I have to look at the rest of the context. But if it's addressed to both then it means it's in relation to either a litigation or legal matter, and then Oupa obviously as a Communications Manager.

Adv Mpofu: Yes. And it's not your case, at least, neither was it Mr Sithole's who was closer to the action, that Mr Ngobeni did not provide those services. Correct?

Mr van der Merwe: In terms of delivery, yes, there were outputs.

Adv Mpofu: Yes. So the only gripe, and I'm using that word broadly, is that the, let's call it ‘cost centre’, I'm now going to my experience as a CEO, the cost centre from which this hybrid service was paid was not the Communications Department but the Legal Department. That seems to be the issue. And I'm not saying it's a non-issue, but I just want to zero into the issue. So that's the issue. The issue is not that some guy was given money when he didn't render services. It's this issue of to the extent that it was built as part of legal. Correct?

Mr van der Merwe: I wouldn't say that’s it, because the cost centre in our terms would relate to the budget – who was taking responsibility for the budget. My impression is that that is not the only issue. But the two issues, the manner of appointment because our legal strategy had certain legal service providers in mind, then secondly, implication because in terms of the PP Act 23 of 1994 (the PP Act) we as the officials are appointed to assist the PP subject to the Constitution, the PP Act, and the Code of Conduct. So, in a professional relationship where service providers are appointed, they are also subject to the rules and the codes that you've referred to earlier Chair. In terms of then other people that are in client service providers are subcontracted. The problem is that that kind of assistance is not rendered in a regularised manner where the contact, the information, that would be covered. So the risks are different. So it's the question of not only the cost centre, but also the implied risks, and then the manner of appointment, whether or not it complied with procurement requirements, whether directly or indirectly. So it's a bit more than just the cost centre.

Adv Mpofu: No. That means you are not listening to me. I think we are saying the same thing. I'm not just saying the cost centre. I'm saying the problems, whatever they are, as you describe them, that you have around this issue is, as you have just now explained, whether there were compliance issues insofar as rendering those accounts was done through legal, not so much the services were not performed, but that the manner in which they were paid for might have been non-compliant. That's why I think that you and I are saying the same thing. Do you agree?

Mr van der Merwe: I think there’s one thing, because I'm just saying it's not the only issue. Because any commitment of that nature would have to be budgeted for and would be reasonable expenditure. So, it's more than just where the expenditure originates from. So the services were rendered, that's not in dispute. I'm saying it's more than just the cost centre implication that that has. That's for me a concern.

Adv Mpofu: Alright. Okay. Now, if the services have been rendered, the only relevance to this Committee at least, and again, I don't know about other committees, but only relevance to this Committee would be insofar as those rendered services were paid for via Seanego Attorneys. Correct?

Mr van der Merwe: Sorry, just repeat the question again Chair.

Adv Mpofu: It's the same. It's a variation of the same question I asked you. I'm saying the only relevance to this Committee, put aside the issues about fees and costs and what have you, let's assume there was some relevance, would be the extent to which those rendered services, which you say were rendered, were charged in Mr Seanego’s account. Correct?

Mr van der Merwe: No, I wouldn't restrict the relevance to this. And again, it's not for me to determine the relevance. I think the role of the PP in the instructions, how it came about, what the purpose of the services were, the evidence is there. It's for the Committee to decide what is relevant. But as far as from where I'm sitting, it's not only about the fact that these were paid through Seanego in Mr Seanego’s invoices.

Adv Mpofu: Okay, good. So, okay, if that's not an issue, then let's then go to what you call the PP’s involvement. Sorry, I thought I was wrong. I thought the issue was the rendering of the account. I was obviously wrong. Now the PP’s involvement in this can be summed up as follows. That she was informed that there is a brilliant advocate, as it was presented then, and I think on the first part we all concur if you have read his documents. And that person was introduced to her and rendered services. And, indeed, Mr Seanego, I think, to the tune of R210 000, which is what this whole hullabaloo seems to be about, paid for the services that you and I have just described. But the PP had been introduced to this service provider, was impressed thereby, and that person rendered the services. That happened. At least that will be the evidence of the PP. Do you have any comment about that?

Mr van der Merwe: I don't know how.

Adv Mpofu: I'm sorry Mr van der Merwe. I'm not saying you were there or part of the introduction or whatever. I'm just saying, do you have any comment? You may not have any comment.

Mr van der Merwe: As to how the PP came to know about Mr Ngobeni’s services, I don't know how that happened. I can only refer to the facts about the engagements. I can't in general comment on the services that were rendered or not rendered. I can just refer to what I noted in the email communications and the invoices and products that we delivered.

Adv Mpofu: No, fair enough. Okay. And again, I'm just doing this for completion, not necessarily because I think you have any personal knowledge. The evidence of the PP will be that the Mr Ngobeni was introduced to her as an advocate, like other advocates were introduced to her that she did not know about by Mr Sibusiso Nyembe. Do you have any comment?

Mr van der Merwe: No, I don't have comment on that.

Adv Mpofu: Yes, and I think it’s probably not in your bundle, but maybe Adv Bawa will help me. There was an email much earlier, I think maybe it must have been in Mr Sithole's repertoire, where Mr Nyembe had referred to Mr Ngobeni as this brilliant advocate. But be that as it may, from the correspondence that you do have, you know that there was a view or rather there were people who also, I don't know whether they also had spoken to Mr Nyembe, but who also referred to Mr Ngobeni as an advocate – on one occasion even Adv Ngobeni, SC. If you go to page 3267. You can answer, this is just for the Committee.

Chairperson: Of which document?

Adv Mpofu: 3267 of the new bundle that relates to Mr van der Merwe. Adv Bawa kindly compiled a separate bundle just for this. Sorry, what was your answer?

Mr van der Merwe: I saw that. I'm not sure when the PP became aware of the fact that Mr Ngobeni was not admitted, as I said. There was a request that we try and trace the minister’s later related to his exemption for that purpose, it's just that I couldn't trace the exact email to put it in a timeline. But I know that might have been the case up to a certain point, that the PP might have been aware or not aware.

Adv Mpofu: No, good. That's enough for my present purposes. And, in fact, I think, in fairness to Mr Seanego as well, there's a point at which where he had referred to Mr Ngobeni as Adv Ngobeni, and then at a particular point, if you follow all his invoices, he is referred to as he is actually distinguished. I think there's one which says, “We'll have a meeting with counsel and Mr Ngobeni.”Let me put it this way; I'm trying to put it broadly Mr van der Merwe, and I think you've answered some of it. For a particular period, and I don't expect you to know what that period is, all the persons were interacting or contacting with Mr Ngobeni were of the view that he was an advocate. Correct?

Mr van der Merwe: Again, I can't confirm the subjective. I can confirm there were references to him as an advocate.

Adv Mpofu: Okay. Yes, no, fair enough. Maybe they were lying, but from their communication, outward communication, that's how they referred to him. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. And one of those was Mr Alfred Mhlongo. I think this email I was talking about actually came from him. Correct?

Mr van der Merwe: I will have to look at it.

Adv Mpofu: Yeah, I think she's found it. There you are. 3267.

Mr van der Merwe: Yes. I see that.

Adv Mpofu: It’s from Mr Alfred Mhlongo to Mr Seanego. We will accordingly have Adv Thabani Masuku SC assisted by Adv Hangwi Matlhape with Adv Paul Ngobeni SC providing support in the background.” I think everyone has seen it here. And then if you can quickly go to 3444. I'll be quick on this, Chair. Okay, the background is that there was a team of advocates, and I think one of them was going to be acting as a judge and so on. So there had to be replacements. So if you go to that one, it says, this is now from Mr Sithole, “Our preferred counsel”, for that particular brief, “is Adv Tom Bokaba SC (Thulamela Chambers). In the event that he’s not available you may brief Adv Tshepo Sibeko SC (Pitje Chambers).” Okay, then move it up towards 3443. Then it says, "Dear Mr Nyembe”, there's another email in that series. “Kindly note, the email below from the attorneys, confirming that neither of the suggested counsel are available.” In other words, neither Adv Bokaba nor Adv Sibeko is available. “Kindly provide us with alternative names of the counsels.” Then you have an email from the PP if you just move it down, where it says, “COS” that’s Chief of Staff Mr Nyembe, “please contact Ngobeni SC to check his availability.” So all I'm saying is that from those two emails, separate times, both Adv Mhlongo and the PP seem to work on the wrong assumption that it's Adv Ngobeni SC. Can you confirm that?

Mr van der Merwe: Yes.

Adv Mpofu: And the PP will then confirm that the services… Okay, let me take one step back as well, again drawing back from my old experience. You would agree, for example, that there's nothing wrong? Well, obviously you'd agree. There's nothing wrong with procuring legal services from someone who's an advocate or that you believe is an advocate. Correct?

Mr van der Merwe: Legal practitioner? Yes.

Adv Mpofu: Yes. From a legal practitioner. And also there's no impeachable duty on the PP to check the admission certificate of Adv Bright Tshabalala and others, if she's told that they are advocates. Correct?

Mr van der Merwe: Yes. If she thinks that they are legal practitioners.

Adv Mpofu: Yes, and that applies to you as well. You assume if somebody is presented to you or Mr Sithole, and they are given work. Okay, let me put it this way. You don't go around asking for people's admission certificates, or silk letters? If you did, then I would be in trouble because I don't know where mine is.

Mr van der Merwe: No.

Adv Mpofu: Thank you. Alright. So the issue really that I'm getting at, okay, the other side of the coin, there's also nothing wrong, to your knowledge Mr van der Merwe, from any executive authority, whether it's a minister or MEC or whatever, the Chair would know about that one, procuring communication services. We see in our newspapers, smiling MECs and all sorts of people who put adverts. So they procure communication services. Correct?

Mr van der Merwe: Now the word procure is a bit wide.

Adv Mpofu: Sorry. You’re right. Using external communication services. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: And, again, the issue in this particular instance seems to then have been the fact that the hybrid or combined services were then charged in the one area and not the other. In other words, the combined services could have been charged in Oupa’s department, which is Communication, or could have been charged in the Legal Department, which is why it went through Mr Seanego. And that is part of the issue. Let's not say it's the only issue. It's part of the issue why we are discussing this now today. Correct?

Mr van der Merwe: With a qualification, yes. Because, as I said, it's not in the end about just…

Adv Mpofu: I'm sorry, Mr van der Merwe, sorry to interrupt you. Maybe to make it clearer. If it was, and again you just have to postulate this, if it was the other way around, if the combined services had been charged via Mr Oupa Segalwe’s department, it wouldn't be part of this discussion. Correct?

Mr van der Merwe: Yeah, provided that it would have been in terms of a valid agreement that would then be a procurement of the service, a valid procurement process, because it's a consultancy service, so that is through a service before that expenditure would then be validly incurred. As I said, that's the link between the expenditure and where the budget would come from. So it's not just about the end result who would pay, but who will be liable for the payment. So if Oupa’s section had procured the service properly, then it would have been through them as the expenditure would have been through them.

Adv Mpofu: Yes, no, I think we are talking past each other, sorry Mr van der Merwe. I'm not saying anything about validity or invalidity. Assume it was an invalid agreement. All I'm saying is that if that invalid agreement had been processed via Mr Segalwe’s department, then it would not be part of your evidence here today. You understand? There might be 100 Invalid things that are happening, but we are in a particular inquiry about a particular charge sheet and the particular complaint here. So I’m saying, had that invalid, let's call it invalid, agreement occurred totally in Mr Segalwe’s sphere, then you at least, Mr van der Merwe, would not be coming to this Committee to talk about it. Correct?

Mr van der Merwe: Sorry, I’m contextualising. Yes, I think it would still. Well, if the issues that came up, because it was the content and it was in relation to court cases and so on, if it was not in respect of litigation, or litigation issues, or judges or so, if it was purely just for communication for the purposes of the PP’s credibility and reputation, then I agree.

Adv Mpofu: Alright, I think I'll just move on. I don't think you understand my question. But it’s fine. I’ll leave with that agreement, it's better than nothing. Just to round off this issue. Can you go to Bundle H of the correspondence folder, item six, just to round off. I suspect the chair wants to. It is 1302, item six, Chair, Bundle H. It's a media statement. Okay, it deals with the eviction of Adv Mkhwebane, which we are not discussing yet. It's the one that talks about Auditor-General. Again, it deals with something that I say is what I’ve called the wrong topic of legal fees, but for what it's worth, and it emanates from some of these things that have been said here. This is what the Acting PP, Adv Kholeka Gcaleka, has said about this last week, and you may or may not have been part of the input to it, but I'll just read it out. “Regarding the calls for an investigation or audit into the expenditures incurred by the institution in respect of legal fees over the last number of years…” Apparently there are those calls, probably from Mr Mileham and people like him, or Ms Mazzone. “… There is a process currently underway in Parliament, "this process, I'm sure, “which amongst other issues is tasked with ventilating this matter.”Well, that's wrong but there you are. She's not alone in that.“Whilst awaiting the outcomes of this process, which may give direction on further action to be taken by PPSA, the institution has already reported the matter to the Auditor-General and confirmation was received that the matter will be an area on which they will focus on, within the scope of the next audit.” And then it says, “In the interim, the PPSA is in the process of reviewing its systems, which include those relating to procurement of Legal Services.” and so on. Can you confirm that that is the current position of the PP? And by the way, whenever you talk about the PP, I'm assuming that you are either talking about the PP Adv Mkhwebane or the Acting PP or the institution. Can we just get that right? Because sometimes there's a confusion between the two, particularly here – just between the two of the PP and the PP as a constitutional institution. Sorry, I've asked you two questions. Let me break them down. The first one is, are you aware of these developments in the media statement?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. Okay. Thank you. And so apparently then in the next audit, which may not be clean, the issues of so-called legal fees and expenditure in respect of which people's names have been bandied about, are going to be investigated by the Auditor-General. Correct?

Mr van der Merwe: Investigated, meaning that it will be subject to the audit or within the scope of the audit, that is the impression we have, yes.

Adv Mpofu: Okay, fair enough. Yes, we can't pre-empt the outcome. Yes. No, fair enough. But it will be one of the issues that will be focused on in the next audit. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: Chair, I just wanted to round off that issue. Thank you, Chair.

The Committee took a break for lunch.

Adv Mpofu: I promised you that I’ll later come back to the CIEX matter. So I'm just going to quickly deal with some quick topics, then we'll finalise this issue of legal fees, and then we'll go back to CIEX. So I'm going to start with what I call a few misrepresentations that we have identified in your evidence, just to give you an opportunity to comment on those. The first one relates to your evidence that the PP effectively breached Sections 7(9) by announcing the contents thereof in relation to Mr Pravin Gordhan, who's another potential witness. Remember that?

Mr van der Merwe: Can you refer me to the relevant part?

Adv Mpofu: It’s a discussion. Sorry, no, I am not referring you to any specific part of your affidavit. It was in your evidence in chief, or rather when you were being led by the evidence leaders. Surely you must remember? It was reference to an allegation that in respect of Mr Gordhan, the PP had issued a Section 7(9) statement and you said that was against the law or whatever.

Mr van der Merwe: If I recollect, I said we have confidentiality provisions around Section 7(9), and it was in relation to an opinion about the fact that there were several people criticising the PP for that. And I just confirmed that as a rule, Section 7(9) notices are confidential.

Adv Mpofu: Yes, that's what I'm saying. So by saying that, were you suggesting that the criticism of the PP was justified?

Mr van der Merwe: I really don't have an opinion on that, because that was the subject of Mr Ngobeni's advice to the PP. And I know what the motivation was and how it was done. I haven't looked at the matter in such detail to know exactly what were the facts and the circumstances around that. Generally, it was something that I would not support. But I'm not expressing an opinion to say the PP was wrong or was correct.

Adv Mpofu: Okay, that's fine. Let me put you out of your misery. The point is that it did not happen. So I'm not expecting you, I'm not asking you about the rights and wrongs of it as such if it had happened. I'm saying that that whole criticism was based on wrong facts. Let me assist you because it might help us. Remember we are now on time, so it might take away my next few questions. The PP will testify that that criticism was completely unjustified because it was based on the incorrect notion that she had publicised a Section 7(9) notice when all she had done was to announce, because there was a public furore. And she announced at one of her briefings as such that such a Section 7(9) notice had been issued. That's all. She never publicised a Section 7(9) notice. She never spoke about its content. She just confirmed because there was a leak or a rumour or whatever that it had been issued. So that was really the sum total of it. And in fairness to you, you've said that you're not commenting on the rights and wrongs of it. But I got the impression in your evidence in chief that you were and you had posted a video of that engagement by the PP, but if you are not subscribing to the incorrect view that she had publicised a Section 7(9) notice then obviously we will not waste the time of the Committee.

Mr van der Merwe: Yeah. If it was a status update in a status report, we do that all the time. So that was not what I was commenting on. If it's construed that way, I was just confirming the provisions of the Act. And if you're saying that was not the case, and that the PP provided the status update, then that's the context in which I accept it or which my comments must be seen.

Adv Mpofu: Thank you. Alright. And you accept that if factually what I'm telling you is what happened, there was nothing wrong with it?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Okay, fine, then we won't play the video, except to say then just around that that, and I'm sorry I'm using you because you are now here as a witness, that one of the other witnesses that we intend to call, Adv Thuli Madonsela, said in one of the publications about that. It’s in 3167. One of the documents that was led that is one of the opinions of the court documents prepared by Mr Ngobeni, 3167 Chair. This is what was quoted in Times Media. At the beginning of the italics, this was a direct quote from Times Media where former PP, Adv Thuli Madonsela, claimed that “Mkhwebane took the unprecedented step of releasing confidential aspects of probes to the public. Madonsela said Mkhwebane should not have used her predecessor to justify her actions, adding that her office never announced such.“When the media asked my office if anyone was implicated, we’d say it's confidential. It maybe that an implicated person provides us with evidence that exonerates him or her.”Should that happen, we would not want their reputation to be unfairly besmirched through us identifying them as implicated.” And, again, I don't want you to enter into the battle of PPs. All I'm saying is that that evidence, when Adv Madonsela is called here as a witness, we will then deal with that issue and the video and all that. But I was simply saying to you, and I think you've just confirmed it, that you were raising it in the context of the document prepared by Mr Ngobeni rather than the merits of what happened or did not happen. Am I hearing you correctly?

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

Adv Mpofu: Okay. That's fine. Okay, then that one is cleared. Then the other issue is that you, well despite your claims of privilege, some of the documents that you were led through, and some of the emails, contained communication between client and their legal representatives. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: And would you agree that that is not a fair thing to do, particularly to legal practitioners who wrote those messages to their clients, not expecting them to be broadcast in a forum like this?

Mr van der Merwe: As Adv Bawa explained, the PP waived the legal privilege in respect of certain matters, that all the evidence were made available to the Committee and these were the issues identified that require the attention of the Committee. The information that we displayed in terms of the privilege was for the specific. The information, for instance, relevant to Mr Ngobeni would not be covered by that legal privilege.

Adv Mpofu: No, I’m not talking about that.

Mr van der Merwe: And in any event, as I said, it's a different question whether or not the privilege would still apply or whether it is fair. Fairness again comes to the point that I've been trying to raise yesterday, that my instructions, my directive, is to present all the relevant evidence to the Committee and this evidence was not limited as such. So in that context, I'm presenting it.

Adv Mpofu: I'm sorry if I sound like I'm rushing, I’m just trying to cover some time here. So your answer is that you're assuming that the communications I'm talking about are relevant. Is that your answer?

Mr van der Merwe: Yes.

Adv Mpofu: Alright. And if they are relevant, you think that is a good enough reason to disclose. Let me give you an example. You may or may not know that practicing lawyers talk about judges, maybe after the judgment. We can make remarks to colleagues or to the client. But those remarks are not necessarily meant to be publicly disseminated. I don't know if maybe, when you were a prosecutor, you would know about that. You might say something to other prosecutors about a particular magistrate, but not necessarily for public consumption. You know about that phenomenon?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. So that's where I talk about fairness. So do you think it's fair if Advocate X says, “Oh, but this judge was…”, and uses a term that might not be very charitable about whatever judge they are talking about, that that kind of communication should be disseminated publicly? Do you think that's fair? If it was you, let's say you had said to me, “I think this judge is…”, and I don’t even want to make examples as to what you might say to me privately, but which you may not want to be repeated in public, but you know what I mean.

Mr van der Merwe: Yeah. It's a difficult question. I think the fact that this was part of a, what was called Project PP, and this was a concerted effort in. The Public Protector was not, it was not just remarks in passing between private persons. This was an official advice and comments that was given to the PP, and was going to disseminated in public, and to which the PP associated and subscribed while there are certain duties and expectations in terms of the Constitution on her and the conflict in itself. I think that was the relevance – not the fact that this might have been seen as private communications, because it was not private communications. It is official records that were disclosed to the Committee.

Adv Mpofu: I see. So you're saying that if Advocate Masuku or somebody makes a comment about a particular judgment, that is just fair game, just because it's sent to someone in the PP’s office. Is that your version?

Mr van der Merwe: No, I think it's a bit more complex than that Chair. The PP, as I see it, has a duty to uphold the Constitution, to be fair, impartial. And also in terms of Section 7 of…

Adv Mpofu: No. Sorry to cut you. I can see where you're going. I'm not talking about the PP as a person. I'm saying, let's say that was sent to Mr Mhlongo or Mr Muntu Sithole or whatever, forget about the PP as a person now. I’m talking about communications, let's say between Mr Sithole and Advocate X or Y.

Mr van der Merwe: Yes. When we are asked to analyse a judgment, we give fair comment on what we think is wrong with the judgment and once I won’t say we go personal remarks on the judge, but yes, that type of communication does occur.

Adv Mpofu: Okay, no, it's fine. I think it's fine. Maybe you have not been exposed to this kind of thing that I'm talking about. Alright. So the issue of comments, you've also made comments that were critical, to put it mildly, about certain of the judgments or you disagreed strongly with them. Correct?

Mr van der Merwe: Would you refer me to a specific? I know which judgments I've analysed and presented.

Adv Mpofu: Which ones?

Mr van der Merwe: Gems, the NEF judgment, Bosasa to an extent. I have the comments and even the analysis here. And I would say words like “the court respectfully erred here.” And then I would put the fact that I think where the court erred in respect of the Gems judgement, for instance, when the court were saying that the PP should not have entered the fray when the person had alternative remedies. I gave a different opinion and say where, and I again substantiated with facts, where I think the court might have been restricted in their interpretation. So I've got those comments. I won't say it’s criticism of a judge but it's an analysis of the judgment. And I have them if I need to present them to the committee.

Adv Mpofu: Okay, so when you say that the judge or judgment was confused, is that an analysis or a criticism?

Mr van der Merwe: No, it's an analysis. The judge is confusing issues.

Adv Mpofu: Oh. And when you say a judge is biased, is that a criticism or analysis?

Mr van der Merwe: It's an analysis. What I do is analyse what my perception is from the judgment of how the judge… Can I be put in context because, for me, I will have to answer that in the context. If you can read or refer me to the document then I can tell you exactly.

Adv Mpofu: Okay, there are many but I'll just give you one example.

Adv Bawa: If there is many then we were entitled to receive the many to which is being referred. I don’t want it to be left hanging that there is many out there and only one is being referred to. Either Adv Mpofu hands us over the many at some point, or he specifies how many there are and provide them.

Adv Mpofu: That's fine. We'll do that. But let me then say Chair, there's more than one. But I'm going to give one example. Otherwise, I can give both examples or three or four or five, but I don't have time. But yeah, we’ll give it to Adv Bawa. It's Bundle H item 27.3 and it refers to one of the many judgements that you’ve listed which you analysed. The first one actually that you mentioned, Gems. And I'll start from the second sentence just to save time. “In my view, the SCA erred on a number of issues, including severely curtailing the powers of the PP through a restrictive approach.” That's fine, nothing wrong with that. Then the next one, “The court did make observations about the manner in which investigators approached the matter, but in my view again, respectfully, some of the observations showed a measure of bias as the court did not show much respect for the status and powers of the PP.” I'm saying that last part of accusing the court of bias; you’re also saying that’s analysis?

Mr van der Merwe: That's correct. If you read the subsequent analysis that I did, it will show exactly how I'm motivated and draw the conclusions and how I showed this to the PP. It was discussed at the Think Tank dashboard and it was even distributed.

Adv Mpofu: No, it doesn't actually. Your analysis that's attached there, the one that talks about the judge as being confused but he doesn't find out why you're saying that they're biased. And you can put that up if you want. You can tell us where it says what you're saying. It will be the same Bundle H, 27.2.

Adv Bawa: 27.2 is the video.

Mr van der Merwe: What is the question Chair?

Adv Mpofu: The video? I’ll ask the question just now.

Chairperson: The question is coming. Just a minute.

Adv Mpofu: No, 27.1 is the video according to us, unless if we're mixing them up. 27.1 is the video that I said I'm not going to play. 27.2 is the attachment that the witness is referring to. And 27.3 is the letter.

Adv Bawa: The analysis is 27.1.

Adv Mpofu: Okay, fine, then we've got it wrong. Alright, sorry. [4:44:10 – 4:44:36 other language] So you've got the issue, then you have the findings, and then you put your comments. So that's the important part. This would be you going on about, anyway, I think the quick way to do this is if you can show the Committee where it is that you justify your conclusion that the judges were biased.

Mr van der Merwe: I have to go through this.

Adv Mpofu: Take your time, not a lot.

Mr van der Merwe: Can I just see the time frame of the email? Timeline of the email.

Adv Mpofu: Timeframe of the email, that would be the previous one. That's 8 October 2020.

Mr van der Merwe: Okay. And this is the next day, 9 October, that I presented this.

Adv Mpofu: Well, you refer to it sir. I don't know when you presented.

Mr van der Merwe: Yes, the 9th, the next day. So those were my provisional observations, and then I went into an in-depth analysis of the case.

Adv Mpofu: I know Mr van der Merwe. Please, we don't have time. Sorry sir?

Mr van der Merwe: I'm saying that was my provisional analysis of and observations of the case.

Adv Mpofu: So there's nowhere where you can point out, justify, what you said to the Committee now, that that conclusion of bias on the parts of judges was contained in your more expanded analysis. Correct?

Mr van der Merwe: No, what I'm saying is that that was my provisional observations, on analysis of reading the judgment at the time. I then went into, I'm not going to say in the analysis the judges are bias, I don't have to say that. I have to show what is the lesson learned CEO. It was a fair comment on the fact that I was referring to the risks, because at the time we were identifying the fact that there are risks that the courts are beginning to view as in a certain way. And this is one of the cases that are evident to that effect. And that's not within our control. I then proceeded to do an in-depth analysis of the case where I showed the lessons that weakened it and also to motivate why I think the court erred,

Adv Mpofu: Yes, earring, there's nothing wrong with that. I put it to you that you are misleading the Committee now deliberately. I said to you, I'm not talking about what you are talking about. I said to you, you accused the judges of bias. Your response to me was suggesting I was being unfair, because I'm just taking that statement from an email in respect of the fact that you had a more detailed analysis. So then I said, “Okay, let's go to that analysis, because I'm now being unfair on you where you justify this finding about the judge is being biased.” And you can’t find it now. That's why you're just talking for the sake of talking. Correct?

Mr van der Merwe: No, that's not correct. That was an honest observation at the time. It's not an accusation. You yourself and colleagues would present that as arguments before court of law. And I said respectfully, that was not an accusation and it was not meant as disrespect. It was an honest observation, prima facie observation. And there is nothing to say that I would then have to go and show and prove bias in the analysis. That analysis is for a different reason presented to the PP.

Adv Mpofu: Okay, I'm going move on simply because I don’t have time. But I want to register that you are misleading the Committee.

Mr van der Merwe: I disagree.

Adv Mpofu: I'm not the one who introduced the issue of the analysis sir. You did when I asked you the question about bias. If the analysis has nothing to do with it. Now you're lecturing me that the analysis has nothing to do with it. But you're the one who introduced it as your explanation for the accusation of bias. I never said anything about analysis.

Mr van der Merwe: Can I answer, Chair? I answered because I was presenting the timeline; that this was a preliminary and I then went into. You are the one Chair, that said to me I must show where in the analysis I refer to bias.

Adv Mpofu: Yes. You said you’ll have to go through it.

Mr van der Merwe: Can I answer please Chair? I was presenting the timeline.

Adv Mpofu: Leave it Mr van der Merwe. I think it's obvious to everyone. I don't have to recount what just happened here. The record will speak for itself. Okay. Now the other issue which I just want to get out of the way so that we then go back to it, is when you were presenting the fees and the charges, why did you not indicate that the legal team of the PP is charging you discounted rates for this Committee for example?

Mr van der Merwe: Sorry, can you repeat the question sir?

Adv Mpofu: I'm saying in the light of what we discussed about giving false impressions to the public in particular, you know the discussion we've had at nauseam here. Why did you not indicate either to the Committee or to the evidence leaders if you didn't? I would assume that if you did, they would have mentioned it, that the legal team of the PP is charging discounted rates. Other words, not their normal rates.

Mr van der Merwe: Can you reflect that in the invoices?

Adv Mpofu: Okay, maybe let me ask it differently. Sorry. I really don't have time now. Can you confirm that as a fact?

Mr van der Merwe: That they're charging discounted rates?

Adv Mpofu: Yes. Firstly, that they’re charging discounted rates. And secondly, that not their ordinary rates that they would normally. You've seen what they previously charged and what they're charging now and the fact that it was a discounted rate. Do you know about that? Or don't you know about it? Can you confirm it?

Mr van der Merwe: No, I can't confirm it.

Adv Mpofu: You can’t. Okay, so you've never seen their previous rates for the past five years or four years as compared to.

Mr van der Merwe: I did see the rates sir.

Adv Mpofu: And did you see the letter from Mr Seanego, saying that they would be charging her at a discounted rate?

Mr van der Merwe: I saw the letter. I'm still checking the invoices as to the rates because I had a problem and I don't want to raise it here because this is not the actual issue, about the very fact that the rates that we agreed on and the rates that they are charging and the verification thereof. So I can't confirm that the rates were indeed discounted, or how the rates were even charged.

Adv Mpofu: Okay, Mr van der Merwe, let me assist you. Unless if you are saying that Mr Seanego was lying, all I'm asking you about is, let me break it down into short questions. Do you confirm that in Mr Seanego’s letter to you he indicated that counsel for this exercise would be charging discounted rates? Even if he was lying, do you confirm that?

Mr van der Merwe: Yes.

Adv Mpofu: Yeah. And do you have access to the rates that the same counsel had been charging historically before this Committee?

Mr van der Merwe: Yes.

Adv Mpofu: Do you have access to the rates that they are charging for this Committee?

Mr van der Merwe: For this Committee, we've only had one invoice so far.

Adv Mpofu: Yes. It doesn’t matter if its 100 or one invoice. I'm talking about the rate, not a fee. I’m saying, do you confirm that there's a difference between that rate and the previous one?

Mr van der Merwe: I haven't checked whether there was a difference. We just looked at the totals and amounts charged in the invoice. I didn't check.

Adv Mpofu: Mr van der Merwe, forget about the total. Do you know what the rate? A rate is a daily rate or an hourly rate. I'm not talking about totals, okay? A rate is per, like this pair this per this, kilometre per hour, X amount per day. That's the rate. I'm saying if you have access to the rate that these people were charging, let's say last year, and the rate they charged in that one invoice that you have seen, are they the same? Or are they different?

Mr van der Merwe: I will have to check Chair and come back to you on that issue.

Adv Mpofu: That's fine. Alright. Well, I can tell you for free that the rate is different. In other words, unless if you think they were going to be sitting and doing no other work, every day they are here they are losing the discounted amount. But that's fine.

Adv Bawa: I don't see the letter having been uploaded. Could we just ask that the letter also be uploaded, please?

Adv Mpofu: No, we're not going to upload the letter with people's confidential information. That's why I'm talking about the rate rather than, and I'm not even saying what that rate is.

Adv Bawa: Chair, redact that the issue came is it was put to the witness there was a letter in which a discounted. Redact the personal information but provide the letter on which you relied.

Adv Mpofu: No, I'm talking about the letter, which was sent to their department, not to you or to anyone else, between the attorneys.

Adv Bawa: Yes, you put the letter to the witness. We don't have the letter.

Adv Mpofu: Okay, you’re not going to have it, alright. Ever.

Chairperson: Wait Adv Mpofu.

Adv Mpofu: No Chair, we've been abused enough by these people. I'm telling you that the reason why I asked the question in this particular way is to actually undo the damage that they've done to us. And I'm explaining the reason I'm asking this question without mentioning anybody's name and any figures is deliberate. I can't be drawn into this again. I'm sick and tired of it.

Chairperson: Thank you. The request that is being made, if I understand it properly, it's consistent with saying that anything that is ventilated here, we should all have access to.

Adv Mpofu: Yeah, well, this one you’re not going to have access, not from me at least.

Chairperson: So who has it, where we can have access to it?

Adv Mpofu: Sorry, but I'm not giving it to you.

Chairperson: Why?

Adv Mpofu: Because it's confidential. I've just told you.

Chairperson: No, we have access to everything, including those that are confidential.

Adv Mpofu: Well, then get it the way you normally get it. You’re not going to get it from me.

Chairperson: But the challenge that we have now, as a Chair it is going to be difficult for me to allow a discussion on something that I have no sight off. I don't know about the witness. And this is how we have been operating here throughout this process.

Adv Mpofu: Fair enough, Chair. Let me assist you Chair. There's no problem here. This problem is manufactured. The witness, I’ve asked him about a communication that referred to discounted rates. I even said let's assume it's a lie. He confirms that there is such communication, he has seen it. So I don't know what the problem is. I then say to him, I'm not saying Mr Tshabalala is charging R2 or R3 or whatever. I'm deliberately saying does he confirm the mere fact that there is a discounted rate which he confirms? Or claimed discounted rate, let's say. And all I'm saying now is, has he seen the two? Has he compared it with whatever they were charging for the past four or five years? Now the mere fact that I'm referring to that doesn't mean I must now bring all those four- or five-years documents to this Committee. And it's ridiculous to even suggest such a thing. And that's why I'm asking the question in a particular fashion Chair. And I don't want my time to be wasted on this.

Adv Bawa: I don't know what the context is in the letter to which discounted rate has been made reference to. So if it comes to cross-examination of the PP, I won't know what to do. But let's shelve it for now. Because we have time issues, and I want Adv Mpofu to go on. But at some point, we need to resolve it.

Adv Mpofu: Thank you, Chairperson. Can you confirm that the same people are actually doing the Constitutional Court litigation that we've been talking about here for free without charging the Office?

Mr van der Merwe: As far as I know, we were still clarifying the issue of the rates or the compensation with that service provider. There were certain requests for funding for certain litigation that we received that we did respond to, and we confirmed what we would be paying for the Section 194, for the Part A and Part B. And we have not been informed that we will not be required to fund the Constitutional Court part of the matter now. So I can't confirm that.

Adv Mpofu: Okay. And the Section 18 litigation that has just happened? Can you confirm that your office did not pay for it?

Mr van der Merwe: That's correct.

Adv Mpofu: And that involves both appearances in the Section 18 litigation of the past two months. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: And also, the Constitutional Court litigation?

Mr van der Merwe: As I said, we have not been formed that we would not be required to fund that.

Adv Mpofu: Okay, have you been informed that you will be required to fund the Constitutional Court litigation?

Mr van der Merwe: No.

Adv Mpofu: No. Okay. So the Constitutional Court litigation, the appeal of part A and Section 18 application, both appearances are performed by this good people for free without charging your office. Correct?

Mr van der Merwe: Correct. We requested, we received the requests for funding for the appeal and Part A, which we said we could not do in terms of the budget. That was dealt with. We haven't received any communication around the issue of the funding for the Constitutional Court. So I don't know what the arrangement would be.

Adv Mpofu: Yes, you will not receive such a request because you are not willing to assist the PP in those matters.

Mr van der Merwe: Chair, can I respond to that? Because it’s again a statement.

Adv Mpofu: Can I finish talking first? Is it possible for you to allow me to finish talking?

Chairperson: Please go ahead Adv Mpofu.

Adv Mpofu: I'm saying Mr van der Merwe that in respect of the first two that you mentioned, you’re quite right, you received a request, you turned it down, but after you turned it down, do you know if that Section 18 litigation in any event was conducted? And even a second part of it?

Mr van der Merwe: Yes. It was conducted.

Adv Mpofu: Okay. You’re quite right again, that as far as the Constitutional Court litigation is concerned, you have not received a request because as Einstein said, “madness is doing the same thing and expecting a different result.”

Mr van der Merwe: Can I respond to that?

Adv Mpofu: So it’s true that you have not received those requests because the lawyer’s simply assisting the PP basically because she needs justice, not whatever your attitude may or may not be. Correct?

Mr van der Merwe: No. We had an agreement with the PP on 4 July on what the Office was willing to fund and not willing to fund or how. And it's not even a question of willing to assist the PP. The Office made a commitment to the PP, how they would support it. That is dependent on the responsibilities of the accounting officer and the budget. We explained with motivation and reason. So your assertion that the PP’s Office is simply not willing to assist the PP to get justice is out of context. And I can flight responses if the Committee wants it because this is a distortion of the communications between us and the PP and the legal team on this issue of funding.

Adv Mpofu: Who's distorting? Me?

Mr van der Merwe: Yes.

Adv Mpofu: Are you accusing me of distorting Mr van der Merwe?

Mr van der Merwe: I'm saying that the whole sentence of saying that “you don't need to be an Einstein to know what we were going to say”, is not a reflection of the commitment that the PP’s Office made towards supporting and assisting the PP. The impression that you are giving this Committee now is in fact a misrepresentation. Because the PP’s Office made it clear what within terms and within reason, we were going to fund to support the PP. We prefer that that be canvassed properly before just ad hoc statements are made just willy-nilly about what we are willing to.

Adv Mpofu: Mr van der Merwe let me assist you.

Mr van der Merwe: No. Can I finish? I'm not finished Chair.

Adv Mpofu: I'm still talking now. Just keep quiet.

Mr van der Merwe: You interrupted me Chair.

Adv Mpofu: Yeah, but let me let me assist you because I need to save time. I'm in charge of this cross-examination, alright.

Mr van der Merwe: But then let me finish my answer. You can’t ask me a question then interrupt me and say, “Let me help you.”

Adv Mpofu: That's fine, Mr van der Merwe. Let's spare you the reaction to that kind of attitude, which will never work with me. But I'm saying Mr van der Merwe, let me try and assist you to save time. Let's just forget the editorial. Let me give you just the dry facts. Okay? You've said the PP's Office paid that team for Part A, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And for part B of the litigation, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And they refuse to pay for the appeal to part A, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And they refuse to pay for the Section 18 application, correct?

Mr van der Merwe: Correct.

Adv Mpofu: They refused to pay for the application for leave to appeal in the Section 18 application, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And they have not paid, not refused this time, because as you correctly say they have not been requested. They are not paying for the Constitutional Court litigation, correct?

Mr van der Merwe: I can only respond and say that we have not been requested to fund that. Correct.

Adv Mpofu: Yes. As a result of the fact that you have not been requested, you're not paying for that. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: Thank you. Alright. So those are the issues that I wanted to deal with. So the next then, if we just go back quickly just to round off some of the issues you and I were dealing with, before we go back to CIEX. Okay, sorry, there's another small matter that we can get rid of quickly. In your statement you said something; I don't know whether it was a denial or not a denial. You remember in respect of the Vrede matter, there was an issue about certain parts of the investigation which were not done for financial constraints. You remember that whole discussion?

Mr van der Merwe: Would you refer me?

Adv Mpofu: In your main statement sir.

Mr van der Merwe: Yes.

Adv Mpofu: I think it's the last paragraph. While I'm looking for this, just to round off the previous point. Are you aware or not aware that despite these issues that we’ve just discussed, the President's letter of suspension says that the PP will receive these same benefits as if she was still in Office, except for not being there physically? Have you seen that letter of suspension or not?

Mr van der Merwe: Yes.

Adv Mpofu: Okay. Thank you. Alright. I was referring you to 4099. That's paragraph 98, the very last paragraph of your statement.

Mr van der Merwe: Yes.

Adv Mpofu: You say you are not aware of any directive of the PPSA Office at the time that an investigation should not be conducted because of financial constraints. I just wanted you to clarify that when you say you're not aware of something, does that mean you're saying it did not happen? Firstly, specific to this. But generally, whether you are not aware that financial constraints were, at least now and again, an impediment, I think according to the witness Ms Nelisiwe Thejane at least, just in the running of the whole organisation, let alone just around investigations? So you can ask the specific question on Vrede first and then the general one. I'm sorry, Mr van der Merwe, I think let me break it down. It’s a long question. When you say you're not aware of any directive around Vrede, that there should be no investigation because of financial constraints. Are you saying it did not happen?

Mr van der Merwe: No, I'm saying the issue arose if it happened. I just noted that an issue arose of financial constraints in the context of an investigation in that respect, and I'm not confirming or saying that financial and capacity constraints did not have an impact on investigations generally. I'm just saying, as far as I'm concerned, I'm not aware of a directive. That means something in the PP Office, that investigation should be not conducted or discontinued. So I'm just talking about a directive in that context.

Adv Mpofu: Yes. Okay, fair enough. But surely, what do you want the Committee to make of this? Because surely, you're not coming to this Committee to just tell it a long list of all the things you are not aware of in the world. There must be some purpose for you. Did you write this statement yourself or was it written by the evidence leaders?

Mr van der Merwe: No, it was me. In conjunction.

Adv Mpofu: What did you want to convey in that paragraph then?

Mr van der Merwe: If the impression was created in the Vrede matter that there is a directive in the PP Office that an investigation or investigations should be discontinued or not conducted, I'm not aware of such a directive. And I wanted to say in the context, such directives should come to me at least as the Knowledge Manager at the time, to disseminate to other colleagues. So nothing was disseminated to me. So I'm not aware of any such directive or instruction in the Office, to the extent that it would have affected my portfolio.

Adv Mpofu: Okay, well, firstly, then that sentence, that whole thing in your statement, should just be removed. Nobody said anything about a directive, firstly. But secondly, even if it was a directive, I'm sure there are many circulars and directives and all sorts of things that go around in the organisation that pass through your hands, surely.

Mr van der Merwe: It does refer to a directive and there are not many things. I'm the repository in Office. So the expectation is, at least, that those things would be shared with us.

Adv Mpofu: Alright. So you’re saying every directive in every province or on every investigation must go through your hands?

Mr van der Merwe: Not through my hands Chair. I was explaining that we are the repository of information, just like the PP’s directives or matters before court of law, and the PP’s directives in respect of protected disclosure matters would be disseminated because we are the ones who are assisting in supporting investigations. So if there are any such directives, then it would, as a course, be shared with us. And nothing to this nature was shared with us. I'm not saying it doesn't exist. I'm just saying it was not shared with us.

Adv Mpofu: Alright. Okay. I don’t even know what that means. But that's fine. Let's move on. The other matter that I just wanted to round off before I use the rest of the time to go back to CIEX is the issue of you remember the issue I raised with you before lunchtime, of the hybrid nature between the Communication and Legal Services of Mr Ngobeni?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. I wanted to just confirm with you, again I'm trying to avoid I can put up some documents and so on, but if you and I agree then we'll move on. Are you aware or not aware of the fact that the relationship with Ms Kim Heller and Prof Sipho Seepe’s communications outfit was with Mr Ngobeni? In other words, they did the communication side. Obviously, he did the legal opinions on his own. But when it came to the communication side, they worked with him. In other words, there was a relationship between him and them.

Mr van der Merwe: Yes. I did reflect on that and I noted that was said. I also noted that there were communications between Ms Heller and Mr Seanego and there were invoices referring to meetings with all the parties. So I would assume that while the relationship was primarily with them, there were other parties involved in the execution of that task.

Adv Mpofu: Okay, no, that's fine. I can live with that. The point I was simply making, which is the document that I'll put up or not put up, which you may or may not be aware of, is that actually there was an agreement, I think drafted by Mr Seanego, to regulate the relationship between Mr Ngobeni and the communications outfit, simply because he wanted there to be a protection of confidentiality of his client, which is yourselves. And I'm saying that that demonstrates the arm's length relationship that was between him and the communications outfit. If you are aware of that agreement, you are. If you're not, then I will lead it some other time. Are you aware of that?

Mr van der Merwe: I haven't seen the agreement.

Adv Mpofu: Okay. No, in fairness we only uploaded it to the evidence leaders I think this morning. So I won’t lead you through it. We'll deal with it some other time, maybe with the PP. Okay, that's fine. There is one more in relation to the portrayal of these illegal people as vultures, despite what I have demonstrated where they have actually made so many sacrifices. Do you accept that Mr Seanego, and I know this because he even sought my advice on it. There was a discussion between you and him. And again, there's a document, but if it's not necessary to put it up, I won’t put it up. But recently in relation to this inquiry, you, and I don't know whether it's your personally or your Office, were insisting that they should charge the Office. You were rigidly sticking to the prescripts, I suppose. But that they should charge the Office per page, as opposed to by using time in reading the material. You remember that discussion?

Mr van der Merwe: Yes. On the tariff of fees.

Adv Mpofu: Yes. Sorry. That's what I was looking for. On the tariff of fees, yes. And that Mr Seanego, as I say, after discussing with us, wrote to you to say that they would rather deviate from that. Because if they're going to charge you per page, it would amount to something like R800 000 for the 11000 pages of this particular matter, and it would just cost the PP’s Office a lot of money, and therefore were seeking to get, for lack of a better word, that deviation. Can you confirm that?

Mr van der Merwe: Yes. We are still attending to that. But the request and the communication was directed to us, yes.

Adv Mpofu: Thank you very much. Alright. Now let's just, sorry, I just want to make sure I'm not going to go to anything else before we do the last topic. Now, since you've been in charge, you said you got in charge when in August? You got into the seat roundabout August?

Mr van der Merwe: I was appointed Senior Manager in August, yes.

Adv Mpofu: August. Yes. Now you testified before lunch that your office is going to subject the issue of legal fees to the Auditor-General, correct?

Mr van der Merwe: Correct. Well, we reported it to the Auditor-General, yes.

Adv Mpofu: Yes. And that will come at an extra cost, correct?

Mr van der Merwe: The audit fees? I'm not sure what it would be. But yes, I would suspect that it would, in terms of time, translate to additional audit fees.

Adv Mpofu: Yes. No. I also don't know what it would be that’s why I’m saying some cost. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. And will that include, were you involved in the decision to seek to intervene in the PP’s matter that you did not pay for?

Mr van der Merwe: Yes.

Adv Mpofu: And the court rejected that on that occasion and twice over. Correct?

Mr van der Merwe: I'm not aware of twice over. It was that and the second occasion in the Section 18, yes.

Adv Bawa: Chair, we have now for considerable amount of time dealt with current litigation and matters pertaining to currently. I haven't sought to intervene but I'm failing to see where this goes on the motion. It’s Adv Mpofu’s time, he can y do it. But Mr van der Merwe is not the decision maker in respect of litigation.

Adv Mpofu: Please answer the question Mr van der Merwe. I'm asking if the two cases or the attempts at intervention which were futile and fruitless expenditure will be part of the audit. That's the only thing that has something to do with the motion. Everything else you've been led on doesn't have.

Mr van der Merwe: Sorry, you are already referring to it as a fruitless expenditure. So it is an expenditure incurred in respect of litigation and all our litigation, all our fees, would be subjected to the Auditor-General.

Adv Mpofu: Yes, that’s all I’m saying. Well, let me put it this way. I'm sure you've been involved in other litigation, which I don't know about. But since you've been in charge, I know about two, the PP knows about those two, where you were kicked out of court twice for intervening incorrectly or even being there for no reason and hiring SC and four or five attorneys, on both occasions being found to not have been justified to be there. All I'm saying is does that form part of audit, that kind of expenditure? I'm not an expert enough to say if it's wasteful. Let's just use the neutral word, that that expenditure will be subjected to that scrutiny. That's all I'm asking.

Mr van der Merwe: Are we now comparing success stories of litigation? Because I would love to go there, Chair. Of the other litigation the PP has been involved in over the last number of years, if that is the criteria, that it would be fruitless and wasteful or they’re unsuccessful? I'm seeking clarity. Is that the criteria that all the unsuccessful litigation is fruitless and wasteful? I would love to hear that answer.

Adv Mpofu: Are you hard of hearing, sir? Didn’t I just say to you I’m using the word expenditure in a neutral way because I'm not an expert? Are you either not listening or are you arrogant?

Mr van der Merwe: Can you repeat the question then? Because there were a lot of statements in-between. I just want to know what actually to respond to.

Adv Mpofu: Yes, I’ll repeat the question sir because I don't have time, and you don't ask me questions. Okay? You don't do that. You are a witness here, that's what you are, whatever you might think of yourself or of me. You're the witness. I'm the counsel. I'm asking you questions, whether you like it or not. Alright, so the question, I'll repeat it sir. I was saying, will the anticipated referral of the expenditure of the people whose names you were a party to bandy about here include or not include the expenditure that was incurred in the matters which you were involved in, probably since you started in that office, in which the PP was also involved and where on both occasions at least the court found that there was unnecessary presence of the PP's Office? Not that they won or lost. They were just not supposed to be there at all. Will it include that?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Alright. That's fine. It helps. Imagine if you had answered the question the first time instead of trying to be clever by her half. Now we then go to the CIEX matter. Okay? And by the way, the matters that you have referred to, the list that you gave us earlier, I think it’s four or five matters where you say you gave comments, including the one where you thought the judges were biased. Are those the matters in which the PP had become unsuccessful?

Mr van der Merwe: They were not in respect of litigation. So I can't say that it was that. It was ex post facto. It was after the fact. So that attempt is also unsuccessful.

Adv Mpofu: Sorry, I interrupted you. Let's just use the example of the Gems matter where you said the judges were biased. Was that an unsuccessful matter?

Mr van der Merwe: I gave an analysis after the fact. I was not part of the litigation, the strategy that resulted.

Adv Mpofu: Mr van der Merwe, please sir answer the question. It’s a simple question. Was the Gems matter, in respect of which you accuse the judges of being biased, the matter in which the PP had become unsuccessful? Yes, or no?

Mr van der Merwe: No, the PP had not become unsuccessful sir. I'm saying that was an analysis of the judgment after the fact. It was an unsuccessful judgment. The way in which you phrase the question seems to be that the analysis preceded the outcome and that was not the fact. This was an after the fact.

Adv Mpofu: How could an analysis of a judgment precede the judgment? What kind of logic is that?

Mr van der Merwe: I didn’t say, sir. I said that the judgment preceded the analysis. It was after judgment has been given. It has nothing to do with the success of the outcome of the case. So I'm not sure what the question is even.

Adv Mpofu: Yes, that’s what I’m saying. No, you are sure what the question is. You're just dodging it. I'm saying, was your analysis in which you accuse the judges of being biased in the Gems matter In relation to an analysis of a judgement in which the PP or PPSA had been unsuccessful? Or was it one where she had been or it, the Office, had been successful? I mean, what's so difficult about that?

Mr van der Merwe: You were saying it differently. You were asking the question differently. Now I understand it, and the answer is yes.

Adv Mpofu: The answer is yes. It's like extracting teeth to get a yes from you now. This is the second one, so I'll try and refrain from it. Okay. And so therefore, one can then extrapolate from what you were saying earlier, that, to the extent that you are saying that the PP had been unsuccessful, sometimes it was because, according to you, the judges were biased?

Mr van der Merwe: Yes, that was my observation in respect of that matter.

Adv Mpofu: Okay. Thank you. A yes will do. That's fine. Thank you. So, well, I was going to ask you what can be done about that, but I think we can have another discussion some other time. Alright. Let's go to CIEX. Now, again, I'm hoping that we are going to be quicker. I think you are tired now. By summary of your evidence yesterday is that, and again, you'll tell me if it's fair or not, is that you were doing everything in your power to distance yourself from the reality that it was you or you played a very significant role in the evolution of the issue of the amendment of the Constitution for which the PP has been charged here and disparaged in the media ad nauseam by all the chattering classes.

Mr van der Merwe: That's correct.

Adv Mpofu: Good. And the evidence, unfortunately, the hard evidence suggests otherwise, that you actually were the source of the recommendation or on the issue of the independence of the Reserve Bank and even its possible nationalisation. Comment?

Mr van der Merwe: No, let me explain it this way. The PP came up with the idea of saying, “How can we amend the Constitution?”That was the PP’s idea. I then obliged, putting options on the table. Then to come later on and say it was my idea to change the Constitution in a certain way is not a true reflection, because the PP had an idea already at the time but just did not know how and what you wanted. The evidence before this Committee is that there is a direct input to that recommendation. You’re trying to find a link between preceding research that was not at their disposal, that was not reflected in the report. The line of thinking, everything, and I had filed a reports in terms of the motivation that I was still looking for. If there was any inclination that those reports would have supported the recommendation, it would have found its way into the report. As far as I know, it was not part of any of the discovery of the Rule 53, or any of the preceding. It's now raised for the first time in this Committee, that I'm actually the author or the originator of that recommendation. It's never been even raised as an issue in the preceding litigation. So I'm reiterating that the fact that it's now ex post facto because it was raised in this Committee, an opportunistic opportunity to pin it on me that I was the originator of that idea. It was the PP’s idea. How she got inputs from whoever is before this Committee. If my one sentence in the end resulted in that recommendation, I can't dispute the subjective reasoning of the PP. I pointed out the probabilities and I'm telling you for a fact that the probability is that if we deal with matters as assistance to the PP, those contributions are reflected in the report. It's not just a fact that can originate somewhere outside the report. We are reflecting the motivation, it's an effort, it's an investment that we put into the report.

Adv Mpofu: I’m sorry sir. Really.

Mr van der Merwe: No, I have my opinion. We can put it to rest, all of that.

Adv Mpofu: Okay, I’ll do it differently. Mr van der Merwe, please. Chairperson, can I?

Chairperson: As a person cross-examining, I expect you to intervene when you feel.

Adv Mpofu: Yes, and I’m trying to do it as little as possible with as much restraint as possible. This witness is just…Okay. Why are you smiling?

Mr van der Merwe: Sorry?

Adv Mpofu: No, it's fine. Listen, I'm going to ask you this question. I’ll ask you short questions and leading questions to try and save time because if you're going to answer like that then we're definitely not going to finish. You were approached by the PP to, okay, firstly, just to put you out of your misery again, because it looks like we're going to go through the same exercise as yesterday. I'm not accusing you of being the originator of the idea. Get that straight. I've said that 100 times. Okay? But you're still repeating it now in this long thing you've just said. Nobody's saying you’re the originator, you woke up one day and said, "Let's nationalise the Reserve Bank.” I'm not accusing you of that. Do you understand that?

Mr van der Merwe: Yes.

Adv Mpofu: Right. I'm not even saying you were the originator of the idea to make a proposal in relation to the control of the Reserve Bank. Do you understand that?

Mr van der Merwe: Yes.

Adv Mpofu: Okay. All I'm saying is what actually happened in real life, which is that you were asked to do some research in respect of the proposal on the amendment of the Constitution to include the amendment of Section 25 to all access and so on, and the issue of full control of the Reserve Bank, and the independence thereof. I'm putting it broadly. It was somebody else's idea and you were asked to deal with it and to make a contribution, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. In that process you criticised the package, let me put it that way, that you were given because it included 1) the political manifesto of a party and 2) the views of somebody that you regarded as having controversial views. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: But what you did do was to propose an alternative avenue to achieve the desired outcome. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: And that proposed alternative avenue included, among other things, the topic of ensuring the independence of the Reserve Bank. And, let me put it this way, to promote balanced and sustainable economic growth in the Republic, while ensuring that the socioeconomic wellbeing of citizens is protected. It's included, that notion, you don't have to agree with it word for word, but you know what I'm talking about. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: It also included the other notion that the Reserve Bank should pursue its objectives and must function independently without fear, favour or prejudice while ensuring that there must be regular consultation, correct?

Mr van der Merwe: Are you reading from the letter or the paper?

Adv Mpofu: No, don't worry. I'm not reading. Just answer the question.

Mr van der Merwe: I need to know the context.

Adv Mpofu: Did it involve the notion of independence and consultation between the bank and parliament?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. Alright. And to make sure that, as you say, the marginalised and the poor, to ensure that there’s socioeconomic transformation which will benefit all our people, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Yes. Now those ideas of yours were, among others, encapsulated in the letter which was dated 29th of May, as a draft submission to the relevant committee of Parliament, correct?

Mr van der Merwe: Yes.

Adv Mpofu: And that letter further motivated at your instance by relying on the EFF case about the, again, benefits to our people, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And that proposal you sent to Mr Ntsumbenzeni Nemasisi?

Mr van der Merwe: Yes.

Adv Mpofu: On the 7th of June 2017. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: And that proposal preceded the release of the CIEX report by about two or three weeks, correct?

Mr van der Merwe: Correct.

Adv Mpofu: Right. And the proposal was, because of your reservations, excluded any reference to the ubuntu manifesto and Goodson document, correct?

Mr van der Merwe: Correct.

Adv Mpofu: And that proposal which had these, was advancing the cause of amending the Constitution. Correct?

Mr van der Merwe: The review of the Constitution, yes. Well, in a context, yes. Correct.

Adv Mpofu: Okay, I'll repeat the question, because I think this is where you start to want to run away. That proposal included the idea of the review and amendment of the Constitution. Correct?

Mr van der Merwe: Correct.

Adv Mpofu: So let's park that. So you've now agreed that you advanced the amendment of the Constitution before the release of the CIEX report? I'll come to the second part.

Mr van der Merwe: No, I have to qualify that. It’s the PP that wanted to amend the Constitution. I'm providing the vehicle and the resource. I'm not saying that that was my idea to review and amend the Constitution. I'm providing this report for the PP to take a decision on this.

Adv Mpofu: Okay Mr van der Merwe.

Mr van der Merwe: Because it was not final. I’ve said this over and over again.

Adv Mpofu: We don’t have time. No, we’ll come to that. I promise you sir, I'll give you a chance to give all the qualifications. That’s why I'm giving you leading questions here. I'm aware that if you say yes or no to something, you might want to qualify it. So I'll give you that opportunity. All I'm saying is that your document at 411, NVM4, the four-page letter. We won't go through it; we went through it yesterday. But just to remind you, was advancing the cause of reviewing and amending or revising the Constitution. That's all I'm asking. It’s a simple thing.

Mr van der Merwe: The PP’s cause, yes.

Adv Mpofu: No, but the PP did not write this letter. I'm saying you wrote that letter and gave it to Mr Nemasisi. Correct?

Mr van der Merwe: The PP said she wanted to review and make a submission on the amendment. That was what I was doing in my capacity as support to the PP. It wasn't me that was writing to the Constitutional Review Committee and say I personally supported the idea of that. This was for the consideration of the PP.

Adv Mpofu: Okay sir. Between you and the PP, who did the research to support this submission?

Mr van der Merwe: I was executing an instruction and yes, that was me.

Adv Mpofu: Yeah, I know. It's called the Nuremberg defence. That's what all the people who killed people for Hitler said, “I was following orders.”

Mr van der Merwe: Chair, I strongly object to that remark.

Adv Mpofu: No. It is the Nuremberg defence. I’m asking you something different.

Mr van der Merwe: But saying that that is the excuse people use in defence, that’s uncalled for.

Adv Mpofu: That’s what all the apartheid apparatchiks always said as well, “I was following orders.” I'm not asking you that.

Chairperson: Pause Adv Mpofu. There’s an objection to the language and the tone you’re using.

Adv Mpofu: From who?

Chairperson: From Mr van der Merwe.

Adv Mpofu: What is his problem?

Mr van der Merwe: Not his problem. I'm saying that to associate me with people who defends themselves by, and you were referring to it twice now, apartheid people and Nuremberg people for having killed people, and that is my defence, and that is insulting.

Adv Mpofu: Okay, sorry, thank you Chair. No. Maybe you've never heard of it here. When we talk about the Nuremberg defence, we talk about somebody who, every time you say, “Why did you torture people or do this and apartheid?”“No, I was following orders.”“Why did you put people in the gas chamber from Hitler?”“No, I was following orders.”“Why did you write this document about your research about the amendment of the Constitution?”“No, I was following orders.”

Adv Bawa: Chair, can I get a question of clarification? Is it disputed that Mr van der Merwe was executing an instruction from the PP to do this research?

Adv Mpofu: Instruction? Yes, it's disputed. He was, as always, being asked to do research and to make recommendations which may or may not be accepted. There was no gun over his head, number one. Number two, he confirmed the very first five minutes of his evidence here. I asked him whether, whenever, in his interactions with the PP, he was always free to differ if he differed. He agreed to that. Thirdly, that is also demonstrated by the documents where he said, “I will do this, but I'm not going to include Goodson, I'm not going to include the Ubuntu party or what have you.”So you can call it whatever you call it, but it was not a gun on his head to have a certain idea about amending the Constitution. And I'll say it for the 101st time, sir, I accept that you were given an instruction, as you call it, or a proposal or I don't know what, whatever you want to call it, you can elevate it to the Law of Newton. Okay? I've said that to you. But I'm saying nobody forced you to then research and then come with a particular, I think yesterday we called it leaning, towards what you say in your letter and you proposed. In fact, it was the other way around. You are the one proposing that the PP must send this letter to Parliament, isn't it?

Mr van der Merwe: No. I was asked to make a submission. It was always anticipated that we would write a letter to the Constitutional Review Committee. The instruction was different. I should have endorsed the Ubuntu party and controversial legislation. So I was not the one who proposed that we write to the Constitutional Review Committee. This was along the lines of which I, and I accept the fact that those were my thoughts and my motivation, as I always do, to put the PP in a position to take a proper decision.

Adv Mpofu: No, that's fine. Because of time I'll leave with that, deficient as it is. And as you say, if you had an instruction to include the Ubuntu party manifesto, you defied that instruction. You did not carry it out. Correct?

Mr van der Merwe: Defied is a strong word.

Adv Mpofu: Okay, you did not carry it out.

Mr van der Merwe: That's correct.

Adv Mpofu: And the other instruction to use Goodson’s views, you did not carry it out?

Mr van der Merwe: No.

Adv Mpofu: Yes. But the other instruction “to refer to the amendment of the constitution”, you carried it out, correct?

Mr van der Merwe: PP, the wording is “how can we amend the Constitution?”How, not if, how.

Adv Mpofu: Sir, why are you not answering the third question? You answered nicely about the Ubuntu party and Goodson. Now I'm asking you about the third one about the amendment of the Constitution. Did you also not carry that out or did you carry it out?

Mr van der Merwe: I qualified that I told you, Chair, how that instruction was if I'm confirming, first of all, if that is the instruction referred to, the one that says how, and then confirming that that was what I carried out.

Adv Mpofu: Okay, let me jump towards the end so that if I run out of time. I will come back to this extraction of teeth. Do you accept that the views that you expressed in your draft submission, which you have confirmed, found themselves into the CIEX report? Not because you put them there, but that those were the same views that were espoused in that report?

Mr van der Merwe: No, I'm sitting with the report in front of me and it’s actually astonishing if you think of how much information and research would have required those words too. And there's no reference, not even aligning a sentence, in the manner that I put it there. So I'm saying no.

Adv Mpofu: Yeah, I know you're saying no, but let me tell you a secret. When you were asking me what I am reading from, and you agreed that those were your views, I was reading from the CIEX report. So let's go to it.

Adv Bawa: Adv Mpofu, can you give me the reference to the page?

Adv Mpofu: Sorry, it's Bundle A, page 11. It’s the remedial action. Have you got it, Mr van der Merwe? 7.2.1 of the report, its page 55, typed page. Are you with us still Mr van der Merwe?

Mr van der Merwe: Yes. can you refer me to the paragraph again Chair?

Adv Mpofu: Okay, it's on page 55 of the report. 7.2.1. This is what it says about the stuff that you agreed was coming from you, “Section 224 of the Constitution should read”, and this is what I read out to you, “the primary objective of the SARB is to promote balanced and sustainable economic growth in the Republic, while ensuring that the socioeconomic wellbeing of the citizens is protected.” You confirm that that is in line with your sentiments, correct?

Mr van der Merwe: I’m reading sir, and I’m contextualizing.

Adv Mpofu: Take your time.

Mr van der Merwe: Yes, that was the PP’s reasoning from the start.

Adv Mpofu: No, that's not the question. The question is the same as the one you answered a few minutes ago, whether that is in line with your sentiments in the document.

Mr van der Merwe: Yes, sir. I'm reading, “to promote balanced and sustainable economic growth.” That's it. That's a general statement. Yes.

Adv Mpofu: Yes. And the second One, which I read to you, which you confirmed before without any problem that we're having now, was that “The Reserve Bank in pursuit of its primary object must perform its functions independently and without fear, favour, or prejudice, while ensuring that there must be regular consultation between the bank and Parliament to achieve meaningful socioeconomic transformation.” Do you still confirm that that's in line with your document?

Mr van der Merwe: Not in line with my document. This is in line with the paraphrasing that you referred to earlier.

Adv Mpofu: So that’s a different answer now?

Mr van der Merwe: Yeah. What I'm saying is this is such a general statement, and a general objective. And we know that was what the PP was aiming for, from the onset. I'm saying, and that is the rationale sir, and you can argue it until doomsday, that preceding the motivation there is nothing in this report that shows that I informed those decisions. For all I'm worth is that could have been arrived independently. The PP acknowledged the fact that she was informed and advised by economist Mr Goodson. All the people shared the same notion. So why must I be the one that takes credit for this notion?

Adv Mpofu: Okay, whatever that long answer is, the last time I asked you this question you just said yes. So, which one is it? Is it the last question answered or this long one with no head or tail?

Mr van der Merwe: I asked you specifically where you were reading from, and you were saying no, nothing. That means that you were misleading there. I’m answering the question now.

Adv Mpofu: No. That’s why I even when I paraphrased it, Mr van der Merwe.

Mr van der Merwe: The paraphrasing could be generalised.

Adv Mpofu: I'm not the witness. So really, you're just wasting your time now. You are the witness who has sworn to tell the truth to this Committee. I'm saying are you changing? Again, forget about the word for word. Let's say the sentiment expressed in what I've just said to you, which you have owned, are you disowning it now?

Mr van der Merwe: It's not my sentiment. I’m disowning nothing. That was the line of the reasoning in that. It is not an exclusive sentiment. So the fact that other people might have shared the sentiment, who actively advise the PP, it cannot be pinned on me and say that's my sentiment. It was a general sentiment.

Adv Mpofu: Yeah, that's true. And let's not forget you were following instructions, correct?

Mr van der Merwe: That's correct.

Adv Mpofu: And there is a direct relationship between your proposal for the amendment of the Constitution… Rather, there's a relationship between the document that you gave to Mr Tebogo Kekana and the proposed letter that you wanted the PP to sign. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: I think we established that yesterday. Sorry, what’s the answer.

Mr van der Merwe: Yes.

Adv Mpofu: Yeah. So therefore, your entire theory to this Committee was misleading before the cross-examination, because it was something like this, "I gave the document to Mr Kekana on the 20th of June 2017. The report had been released on the 19th of June. Therefore, there can be no link between the report and my sentiments in the document.” That was the notion you wanted to peddle to this Committee until now under cross-examination. Am I unfair to you about the document?

Mr van der Merwe: Yes, because I was…

Adv Mpofu: Sorry, it's my fault. I asked a double question. That is the notion that you wanted to peddle to this Committee. Am I correct?

Mr van der Merwe: The word ‘peddle’, I don’t peddle anything.

Adv Mpofu: But you wanted to advance. Sorry, maybe it's too loaded. That was the notion you wanted to advance to the Committee. Correct?

Mr van der Merwe: And still do.

Adv Mpofu: And you still do, yes. But the evidence has exposed you on that because it's actually irrelevant that you gave the document to Mr Kekana on the 20th because those sentiments were in any event contained in the letter you sent on the 29th of May, which was in the draft letter. So in other words, even if you can give another document now to somebody else, it's not going to change the fact that on the 29th of May you had already espoused those ideas. Do you understand that at least before you?

Mr van der Merwe: In a very limited form, perhaps, but I maintain that the research was incomplete. There was no way in which the rest of that document, I have not even had feedback on the draft letter, I don't even know if it was received or read. From what I read and from what I understood after the PP’s commenced there, is that she did not support or even think about that letter. So that letter was not even on my mind at the time when I made the statement. That letter was not part of the research proposal that I was putting forth. So when I was making that submission, it was not even keeping the letter in mind.

Adv Mpofu: No, Mr van der Merwe. That's now completely false what you are saying. You know that the PP not only had received this document but she even commented on it, and said, “I've noted Neels’ concerns.” You don’t know that?

Mr van der Merwe: The concerns were raised in the emails. They didn't refer to the letter.

Adv Mpofu: Yes, but the email came together with the draft submissions. You forgot that?

Mr van der Merwe: Then the PP asked how, which was addressed in the letter.

Adv Mpofu: I'm sorry, go to page 4110. You’re tying yourself into big knots here. 4110. Okay, I'll read it out to save time. At the bottom there, Mr van der Merwe, it says that “I need PP's approval that we make the submission as proposed by Neels.” Do you see that?

Mr van der Merwe: Yes.

Adv Mpofu: So that's the proposal contained in your letter. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: At least at that stage, that's the only proposal you had made here because the other document was unfinished. Correct? Was incomplete, the other research document?

Mr van der Merwe: Yes.

Adv Mpofu: Now it says “The attachments [to the Constitution] are for PP to note, but also acknowledge the envisaged risk if we opt to support a manifesto of a party which was included in Mr Goodson’s book… Therefore, we are in a better position with the submission without relying on Mr Goodson’s book.” So the PP, according to this, was given your submission and your what you call it.

Mr van der Merwe: Can I see where the confirmation is of that as there wasn’t an attachment? Was there an attachment to this?

Adv Mpofu: Pardon?

Mr van der Merwe: Can I see if there was an attachment to this?

Adv Mpofu: Okay, sorry. Let's go to 4106. Okay, bottom. This is from Neels van der Merwe. That would be you, correct?

Mr van der Merwe: Yes.

Adv Mpofu: “Dear Mr Nemasisi. I am sorry that this draft is so late, but I had a lot of additional research and picked up some serious issues with the instructions provided, which I needed to clarify.” That was the draft submission, correct?

Mr van der Merwe: Yes. It's simple Chair. I want to find out if the letter also accompanied the email to the PP because sometimes one would reply.

Adv Mpofu: No, we’ll find it out from you. When you say, "I am sorry that this draft is so late, I had a lot of research to do”, what were you referring to?

Mr van der Merwe: It was submitted to Mr Nemasisi. I want to confirm if the letter also reached the PP or just the contents of the email. The reason why I'm asking it is simple because if the PP read the letter, I was amazed by the fact that you would say, “then Neels must come up with a way of how to amend.” If it was addressed in the letter, it would have been clear. Why was further research then required? Because then it must stop there.

Adv Mpofu: Yes, no. I understand sir. I'll assist you. Let's do it step by step. At least you admit that in the letter that had all the concerns about Goodson and the Ubuntu party and all that, there was attached the draft, which was your research. Correct?

Mr van der Merwe: Chair, it wasn't my research. It was an initial motivation for the research in the sense of a comparison with the other document, no.

Adv Mpofu: It was not research?

Mr van der Merwe: You were talking to my research. We were talking to research in the form of the document, or research in the form of information presented to the PP as a result of research.

Adv Mpofu: Yes. Okay. Forget about that. I'm saying when you were saying you’re sending the draft because you have to do additional research, what were you referring to?

Mr van der Merwe: To come up with the proposals or the contents of the letter.

Adv Mpofu: Yes. And the draft was the draft submission, correct?

Mr van der Merwe: That's correct.

Adv Mpofu: Yes. Now I'm saying that is symbiotically linked in your letter, "I'm sorry, this draft is so late.” That's number one. Number two, on the issue of the Reserve Bank, then you go on about the Ubuntu thing. Number 2.2, you put those things. 3, you deal with the Ubuntu party, and then 4, you deal with the Ubuntu party. 5, you then give the proposal of the alternative avenue. Same letter, same package, same document, same concerns, same draft submission. Agreed?

Mr van der Merwe: Yes.

Adv Mpofu: Yes. Now how on earth are you suggesting the PP when she says at page 4110, “I'm aware of Neels’ concern.”She's just been told, "I need the approval we make submissions as proposed by Neels”, which means it has been given to her. And she says, "I'm aware about Neels’ concerns.” So are you suggesting to this Committee that she was just aware of paragraph two and three, which are the concerns, and four, but not paragraph one, which says that here's a draft, but it's late? Is that what you want the Committee to believe?

Mr van der Merwe: I'm saying that if that is the case, that the PP read it, why was the no comments because we get directives. The PP did not address the issue of the submission in her response. She went further and said, “Can he propose how to amend the Constitution”, while that was exactly done in that letter. I'm saying if the PP endorsed or even read that later, I'm amazed that you she would ask this question of saying “Can he propose.” It seems like the PP only read the email, “I note the concerns”, because the email addresses the concerns – the whole of the email. And then it’s said, “Can he propose”. That was exactly what was intended.

Adv Mpofu: I'm sorry, Mr van der Merwe. I'm going to propose, again, that you are misleading the Committee deliberately. You, yesterday, differentiated between the word ‘how’, and I suppose ‘whether’. Those are two different and I agree with you. The first step in this journey is whether the Constitution should be amended. That you had dealt with. Now the PP says, “I want to propose how we can amend.” In other words, and you know this distinction because you made it yesterday, you said, “No, I never actually crafted the amendment.” And I considered that. That's the how. But at this stage, you had made a proposal on the question ‘whether’ because you can't have word 'how’. First is whether there should be an amendment, whether there should be nationalisation, whether it should report to parliament, and so on, then we go to the how. That's how life works and you know it because you said it yesterday. Now you're fudging deliberately to escape the inevitable. Do you accept or do you not accept that if the PP says, "I'm aware of Neels’ concerns”, she cannot possibly have been aware of them from anywhere else except for that letter of yours, which contained the submission?

Mr van der Merwe: No, I don't accept it. Because the concerns were raised in the covering email, not in the letter. The word is ‘concern’.

Adv Mpofu: I'm saying to you, the concerns were not raised in the letter, they were raised in the emails. You're confusing yourself now. The concerns were raised in the emails at paragraph two, three, and four. Alright? Are we together?

Mr van der Merwe: Yes.

Adv Mpofu: Yeah. Now I'm saying are you suggesting to the Committee that the PP was somehow aware of what is in paragraph two, three and four, but not aware of what is in paragraph one, which says, “Here is a draft. I'm sorry it's late. I had to do a lot of research.” So she just jumped her eyes to paragraph two, three and four, and did not put any store in what you have said in paragraph one. Are you seriously suggesting that these Members of Parliament must believe that?

Mr van der Merwe: You are drawing that conclusion Chair. I'm saying that that concern was that refers to the email, whether its paragraph one, two, three, four, five. I'm not saying that she didn't read the email. I'm saying that it's doubtful whether she would have asked the question if she read that attachment. I wasn't referring to paragraph one, two, three, four, five. I was saying if she read the attachment, she would’ve seen that.

Adv Mpofu: Okay. Yeah, I understand. So we are going back to that issue now. So you're saying that the question whether to amend the Constitution or to nationalise is the same as the question how to do it? Is that your new version of today, as opposed to yesterday?

Mr van der Merwe: No.

Adv Mpofu: Okay, so you accept then that the question how to do the amendment or the nationalisation is separate from the question whether it should be done or not. You accept that?

Mr van der Merwe: The whole wording was to achieve a certain goal. I didn't interpret it as coming up with wording to it.

Adv Mpofu: Okay, Mr van der Merwe.

Mr van der Merwe: No, don’t interrupt me please. The motivation is part of the how. As I said, I didn't at the time think. And remember these things happened a while ago, and we are interpreting it ex post facto now. I'm saying that email, I went on to say the motivation for it. Otherwise, I would have just focused on wording. So my interpretation was to come up with motivation. The how in terms of what was the circumstances, the principles that were motivating, if you read the drafts, and I cannot impress enough that it was draft form, it hasn't even been canvassed at any forum within the institution.

Adv Mpofu: Now you've convinced me. Okay. Now the other issues that I just want to raise Chair, just for your reference, yesterday I spoke about and I couldn't find the reference then about the message from the PP for Mr van der Merwe to respond to the media queries. Can you go to 4120 quickly? While we are going there Mr van der Merwe, let me just cover some of the ground by putting to you that you are an invasive witness and you are running away from the most obvious objective evidence of your own making. You sir are the person who should be harangued like the PP is being harangue for suggesting the nationalisation of the Reserve Bank, and even worse, according to the chattering classes, that it should be accountable to Parliament. I don't know what's wrong with that myself but apparently it's a sin. But I'm saying insofar as it's a sin, you are part of it. What do you have to say for yourself? The fact that you are following instructions.

Mr van der Merwe: I deny it strongly. Those sentiments, as you call them, were conveyed to the PP and it’s not in dispute by economists, people that she surrounded herself with, to give her advice. If my advice in terms of the incomplete draft coincided with that, now to pin it on me. And again, the facts, speak from themselves. Go to the report, and then see where any of my research informed the legal framework, and that is the evidence. It was not reflected in any of the records. So, I again, I want to conclude by this saying that it’s speculative, and to be honest it's quite false.

Adv Mpofu: Alright. Okay. Well, what is not false? And this is what the PP I will testify about, again, unless if you want to say it's false, is that indeed, when she said she has noticed your concern, she had seen all your concerns and had read your entire letter, or rather email, including the attached submission to it. Is she lying? Will she be lying if she said that?

Mr van der Merwe: My expectation would have been if the PP noted any of those, I would have been consulted and asked to assist the team to put that very same notice and the rest of my research in the report, and I was not consulted on that. Whatever the PP read and purported to put in the report…

Adv Mpofu: I'm sorry to cut you, you’re answering the wrong question. I'm not talking about the CIEX report now. I'm simply saying that on the date when the PP said, “I've noted Neels’ concerns”, that is June 7. There was no report at that stage. I'm saying her evidence will be that, indeed, she had noted your concerns, together with what they came within that email, which was the letter attached thereto. That's all I'm saying. If she says that, will that be false?

Mr van der Merwe: I'm saying if that is correct then the PP took a decision not to endorse that because that provided for her review to the submission to the Constitutional Review Committee. I'm saying that it's highly unlikely. No, let me finish. You asked me a question Chair. You said would the PP be incorrect. I’m saying that it's highly unlikely because she took a totally different direction of putting wording in the CIEX report. Wording for which I'm not responsible. I've not come up with the words that she asked for if that is what you were enquiring. Sorry, I'm still answering Chair. Sorry if it is the long answer.

Adv Mpofu: Okay, go for it.

Mr van der Merwe: The submission to the Constitutional Review Committee was the angle that we were following. With the CIEX report that was something totally different, not only in terms of the how, but also in terms of directing. And it cannot be seen in isolation to say that is my, and you talk about the whole consternation of everything. I didn't say that the PP must come up with specific wording when contemplating a submission to the Constitutional Review Committee for the review and possible amendment of the Constitution. What the PP did was certainly not on my advice.

Adv Mpofu: Okay. Thanks. I'm going to insist that the Chair gives me an extra minute when the time comes. Okay, do you know what question you're answering now? What was the question?

Mr van der Merwe: If the PP says she read my email and the submission, whether I would agree with that, and I'm saying no.

Adv Mpofu: Oh, that easy? Okay. So why did you just say no? Why do we have to go through that torture? So you are saying that the PP, well I already put this differently, let me try and rephrase it. You are saying that when she said she was aware of your concerns, it was because she had read the letter without paragraph one and the attachment? I'm sorry, she had read the email which contained those concerns without paragraph one that referred to the letter. Effectively, that's what you're saying. And if she says she read the whole email, you are saying she's lying?

Adv Mpofu: No, I'm saying no Chair, you're putting words in my mouth that is not true. She could have read the whole email one to five. I'm saying that I don't have any confirmation from her and ‘m deducting it. I don't know what the PP read. I'm saying now we're dealing with…

Adv Mpofu: I'm telling you what she's going to say. So I know. You can assume that I know because I consulted with her. Okay, so it's almost like she's now talking to you. I'm just a conduit pipe. Right? So when I say she's going to say something, when she testifies, you can take it for granted. I’m professionally bound, I can't make it up. Assume that I received it from her. I'm saying to you, that the PP when she testifies will say that, like all of us, she read the entire email and its attachment and that's what she was referring to when she said, “I'm aware of Neels’ concern.” And that's what I'm saying she's going to say. I’m giving you an opportunity to say whether if she says that she will be incorrect. And you are saying yes.

Mr van der Merwe: I'm saying yes, that's what I'm saying. No, what I'm saying is if the PP in terms…

Adv Mpofu: No, or yes? Which one now? The record will be very difficult to read.

Mr van der Merwe: Can I answer?

Adv Mpofu: Sorry Neels. I'm not being funny. If you say yes, no, then when we read the record months later, we won’t know the answer.

Mr van der Merwe: I apologise. I meant to say that what I'm finding the difficulty with if that is the PP’s version and she said that informed the CIEX information.

Adv Mpofu: No, I didn't say that.

Mr van der Merwe: No, you did say that earlier.

Adv Mpofu: Now you're putting words in my mouth. I didn't say anything about what informed anything. I've said to you forget about the CIEX report, forget about whether it informed her, forget about everything. What she’s saying is that when she said on 7 June 2017, “I am aware of Neels’ concern”, she meant the entire package of your concern as expressed in the email and its attachment. That's all I'm saying. Whether after that she might have thrown it in the dustbin or whatever, let's not go there. Just that limited thing of whether she read the whole email and attachment, that will be her evidence. Do you have anything to refute that evidence?

Mr van der Merwe: No.

Adv Mpofu: Thank you. Alright. Now the last point on this is. Okay, no I was I was saying that the…

Mr van der Merwe: Media inquiry.

Adv Mpofu: Pardon?

Mr van der Merwe: You were referring to the media enquiry.

Adv Mpofu: Media enquiries. Oh yes, for the Chair. Okay, before I go to the last point here, the media enquiry is just at 4120. Okay, we won't spend much time on that. That's just a reference for the Chair. 4120. Okay, this is where when, as I say, the manufactured clamour of the powerful forces started, or the as they say in the language everything blew into the furore that has brought us here. There’s an email from Ferial Haffajee which says that remedial action and recommendations – at least she was fair to call it recommendations unlike you, we’ll come to that just now. “Taken on review by both ABSA and SARB". The Reserve Bank says that the PP is to alert it if its findings contained market sensitive information. This was not done. Can you share with us why this was not given?”There is remedial action being given to the markets. Who are the markets?

Mr van der Merwe: Can I respond to this issue Chair?

Adv Mpofu: No, I'm just saying have you ever heard of remedial action that gets given to the markets whoever are they?

Mr van der Merwe: When we dealt with the executive summary, and I gave inputs, we alerted the PP to the fact that the two commissions, the Davis Commission and the new Judge Heath, were referring to this but had concerns about the markets, the impact thereof on the markets. So I did alert the PP to those concerns.

Adv Mpofu: Yes, but those concerns had to do with this hullabaloo, the thing about nationalisation and so on and amendment?

Mr van der Merwe: No, it was about the lifeboat transaction.

Adv Mpofu: Alright. Okay. Well, if I had time that would get you into so much trouble because then it contradicts what you said. You couldn't have alerted her if the two things were not linked, but that's fine. I'll deal with that in argument. The point I want to make for now is it says the Reserve Bank's mandate, which is the real issue, is to protect the value and the currency and so on. Okay. It's some neoliberal claptrap. Okay. So after that, the point that I wanted to put to you is that the response of the PP, which is at the top of 4120, says “Tebogo remember their request was specific to market concerns? Ask Neels to assist in crafting the response.” I just wanted to give the Chairperson that reference from yesterday. I won’t cross-examine you. I've already asked you questions on it. You remember that?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Okay. And at least you know what I'm going to argue in relation to that. The last point then is the real gist of your evidence on this point, which is very unfortunate. I think you said twice in response to Adv Bawa and in response to me at least once that the difference between your approach and the PP’s was that you were saying something like she directed that the amendment should be implemented. Something like that. In other words yours was a mere recommendation but hers was a dictate. Did I understand you correctly? I don't want to misrepresent you.

Mr van der Merwe: It didn't even reach the state of recommendations. These were just arguments. So to say that it was a recommendation and that it was offered.

Adv Mpofu: Okay. I know it was an instruction and all the things you've said here. But whatever it is, but as compared to the one of the PP, according to you, hers was, I don't know what, a fiat to the Parliament.

Mr van der Merwe: That's not the only difference. The difference is the PP had specific wording. And I can’t claim to have exclusive rights to the sentiments that that wording. I'm sitting from the situation where any, none of the rationality, to link that, because we are working in terms of a specific process in a report. I'm concluding and I'm again drafting. It cannot be something that's in the mind of the PP, and then all of a sudden find its way in the end result. We have to show the link. And nothing here shows the link that the PP even took my advice above economists that she was consulting, above people like Mr Ngobeni, above people like Mr Goodson who purported to be expert, and then decided my version or my sentiments, which might even have coincided with anything that they were saying, I'm now exclusively the architect of that remedial action. And that is what I have a problem with.

Adv Mpofu: What was the question? I think you’re just talking now. I'm saying, sir, it's quite simple. Maybe let me put it as a statement, and then you can comment. The idea that the PP could conceivably dictate to Parliament to do an amendment is absurd in a constitutional democracy. Do you accept that nobody, not even the President, can dictate to Parliament to do a constitutional amendment? All they can do is to say here's an amendment, and then it will be subjected to the normal processes. If it gets two thirds, it gets to two thirds. If it doesn't, it doesn’t. No one can actually, at least not in a democracy. I don't know about apartheid times.

Mr van der Merwe: That's not how the courts viewed it.

Adv Mpofu: Yes, no, you are not the court sir. I'm talking to you. I'm saying do you accept that that view would be an absurdity. If I said, for example, the President or Mr van der Merwe, or the Chairperson here, were to dictate to Parliament to change the Constitution, I would just be moving my lips. It's not something that is humanly possible, correct?

Mr van der Merwe: Yes.

Adv Mpofu: Good. So again, the manufactured outrage then that followed this, which is partly why we are here, was really much ado about nothing, because let's assume the remedial action of the PP, which was that the Chairperson of the Portfolio Committee on Justice should initiate, not more than that, that process, which as I say may or may not have resulted in a two thirds majority. If that then happened and the thing failed, that's the end of it. Isn’t it? Or if it happened, and it succeeded, that's also the end of it?

Mr van der Merwe: Yes.

Adv Mpofu: Thank you. Chair, I'm just checking if there's something otherwise I'm done. Thanks. Okay, just let me maybe do it as a question. I'm going to ask the Chairperson for permission that today I withdraw my discount from my rate. I think it’s over time here thanks to you Mr van der Merwe. But on a more serious note, are you aware of the spate of withdrawals of cases that has happened since the suspension of the PP which will have serious financial implications as well? Will that be part of the Auditor-General's exercise?

Mr van der Merwe: Yes, I would imagine that they would look at all the controls, as well as the reasons for that. Yes.

Adv Mpofu: Yes. And some of those cases involve cases, for example, like the Nkwinti case where the PP had been successful with punitive costs I’m told. Correct?

Mr van der Merwe: I can't recall the exact.

Adv Mpofu: Specifics, yeah. No, fair enough. And the other case that was withdrawn was the case in respect of Ms Baloyi, that also will have serious cost implications, correct?

Mr van der Merwe: It might have cost implications. Yes.

Adv Mpofu: Well, it will. If you withdraw a case, particularly where you were partially successful, that will certainly have cost implications. Correct? Because even that case of Baloyi, well that one I know because I was involved in it. We had been successful in the High Court, and it was referred back there. But it will no longer go back there because you withdrew it. Correct?

Mr van der Merwe: I would prefer to address the process that we went through to decide.

Adv Mpofu: Yes. Okay, fair enough. Let’s not talk about the merits. I’m just saying that, okay, as a general statement, Mr van der Merwe. Sorry, I agree with you. Let's not talk about the merits. If you withdraw a court case, that has been advanced and had even gone to the Constitutional Court, some leg of it, in which you had been partially successful, whether it's the Baloyi or Nkwinti or any other case, that would automatically have cost implications because by withdrawing you have to tender at the cost of the other side, for example. Forget about the costs associated with the merits of the case. Correct?

Mr van der Merwe: Mention the process, yes. And we went through this process at the start of Adv Mkhwebane’s tenure as well.

Adv Mpofu: No. You see, you want to drive a wedge between me and the Chair because I promised him that this was my last question. Now you're opening a new can of worms.

Chairperson: You have the last four minutes.

Adv Mpofu: Yes. Thank you, Chairperson. I'm saying, sir, I'm not disputing that the PP or any other previous PP for that matter would have what you call a legal strategy or make decisions about which matter must go to court, which one must not go to court and so on. That's half of the course. But I'm saying I'm talking about specific decisions that have been taken now, including in your tenure, and I might be unfair, maybe some of them were before August. But I'm simply asking you whether you're aware that those withdrawal of those cases, particularly, and I don't know, there might be hundreds of other cases that were withdrawn. I’m talking about the ones where you as PPSA had been successful or partially successful, that their withdrawal automatically, as a matter of fact, by definition, will have cost implications. Yes?

Mr van der Merwe: Would you refer to the specific case? The Baloyi case?

Adv Mpofu: I used the two examples. There might be other examples, but it doesn't matter. I just want to drive a principle. I referred to Nkwinti and I referred to Baloyi. And I know that there are differences between those two cases. But it's the principle that I'm after sir, not the merits. I thought you were correctly saying let's run away from the merits and just talk about the principle of withdrawal.

Mr van der Merwe: I'm just trying to understand the context of the principle. What I can confirm is that a whole team in the PP’s Office did an assessment of the prospective and current financial implications. And yes, there might be an expenditure that has already been incurred that would be reviewed by the Auditor-General, and there might also be costs saved in other matters. But yes, in general, that’s an expenditure that would have been incurred and this matter would then be for the account of the PP for the matters.

Adv Mpofu: Yes. Okay. Let me assist you. As a matter of law, I think it's Rule 41. Do you accept that if you withdraw a High Court matter, you must tender the costs of the other side at least? Let's leave it at that minimum level.

Mr van der Merwe: In there, yes.

Adv Mpofu: Thank you. Alright, Mr van der Merwe. I put it to you then that you, firstly, you came here to testify about a whole irrelevant topic called legal fees, which is not relevant to the motion. But to the extent that you also testified about the relevant issue of CIEX I think you have assisted the Committee to identify who the person is who had done the underlying research that led to all the hullabaloos. For that we thank you. Thank you very much.

The Committee took a 10-minute break.

Committee Questions – Witness: Mr Cornelius van der Merwe

Ms T Mgweba (ANC): Thank you very much and good afternoon honourable Members and colleagues and Mr van der Merwe. Chair, I've got two questions for Mr van der Merwe. The first one Mr van der Merwe. Section 182 of the Constitution outlines the functions of the PP and in paragraph 11 of your affidavit you we have indicated that you were requested to prepare submissions to the Constitutional Review Committee. Was it common to make inputs on legislation to amend the Constitution and on what basis what this request made? Thank you Chair.

Chairperson: Have you got those questions?

Mr van der Merwe: Yes, I’ve got it. Must I answer now or?

Chairperson: I want you to answer every Member who’s going to ask a question so that nothing leaks, nothing gets forgotten.

Mr van der Merwe: Yes. Ms Mgweba is quite right. Section 182 describes the investigative powers of the PP and to investigate, report and take remedial action. The PP does have a proactive role in contributing to improvement of administration. So in general terms, we do make contributions. We get invited by submissions of legislation that has an effect on the administration. On the amendment of the Constitution, I've only been asked twice to make submissions. And I can't say if it was in line with the PP’s mandate. That is on this issue of the central bank and then the issue of the land expropriation, which we didn't make both cases we did not make in the end. It's not common to make submissions on the Constitution unless it as an effect on our mandate and agreement. Thank you Chair.

Ms Mgweba: The second question, that will be my last question Chair. Mr van der Merwe, with regards to the CIEX report and the recommendations that the constitutional amendment should be effected, do you believe that the PP leaned towards the policymaking space? And the second question again, do you think that it was appropriate for the PP to interfere in the mandate of the South African Reserve Bank? And the last question, do you think the PP as a legal trained person should have reasonably foreseen the consequences of acting beyond the mandate of the Office? Thank you, Chair.

Mr van der Merwe: The boundary between taking remedial action and policy issues is a difficult one. Because the PP, as I said, wants to be proactive in terms of there's a whole lot of principles in terms of remedial action. And to a limited extent, if we identify a gap in policy, we would try and seek improvements. It's not common though to do it by means of a directive. We would mostly in terms of a remedial action say that they must review or they must consider amending a policy or reviewing a policy that may be the root cause of maladministration or the root cause of improper conduct. In this case, it would be difficult for me to say that the PP, I can only say because what the courts found was that it was improper and unlawful. And I can't really add to that expressing an opinion apart from saying that, when we were preparing the research, we were very careful in coming over not to dictate or enforce a specific view but to prompt a consideration and say exactly for this reason of us being objective and impartial. So we, from my side, personally, I was taking a more careful approach as to not to encroach on the legislative powers but to put proposals that might be considered in the process to the Constitutional Review Committee.

Mr Maneli: Thank you, Chair. Greetings to the PP and legal team and greetings to the witness Mr van der Merwe. Chair, I just want to ask a few questions to clarify my notes. In particular, we'll be looking at paragraph 14, which is page 4067. So my questions would relate to that. With regard to the realisation that the submission was extracted from a manifesto of a political party, do you think that the PP acted diligently in protecting the image of the Office, particularly as it relates to the need for that institution to be independent? So that will be the first question Chair on that point.

Mr van der Merwe: Yeah, that was exactly the concern why we felt that we needed to point out the risk that it would be perceived to be not in line with our independence and our duty to act without fear, favour, and prejudice. So yes, that was a concern and that's why we raised it, that it would not be seen to be in line with the constitutional duties of the PP.

Mr Maneli: Thank you, Chair, through you. Just to go back to that point. Looking at one of the emails that were flighted, there was something in relation to litigation strategy where a meeting needed to be held to with a political party’s legal counsel. The EFF in particular, according to the email. Was it the way of looking at things? Was there no fear again, on this part? Like, you would have looked at the first question I asked, that you were getting to some sense of politicisation of the Office itself. So as you answer this question, of course, at the back of my mind, I'm sure you may want to attempt to also speak to that, that contrary, in the Vrede matter, for one matter, you decided to have two separate senior counsel handling the same matter. But on this one, you were ready to come together and strategize the same way for a common goal so to say. So I'm just saying it's piggybacking on that first question, so that I put to the conclusion that one could draw. Thank you Chair.

Mr van der Merwe: Thank you Chair. Yes, as I said in my evidence, I think that posed the risk, again, to our independence and impartiality if it was known that we were aligning ourselves, because the very same political party might tomorrow be a complainant in another matter. And if we are seen to be either pursuing the same interest or aligning ourselves, that might have certain reputational risk or even risks for the perceptions of the independence of the Office. So from a legal strategy point of view, now, if it was a decision now, we would possibly first consider those risks before we would align ourselves. Unfortunately, I cannot express a view on the decision to employ more than one counsel on the Vrede matter. We have seen that attorney’s firms were at least changing in one of the matters, I'm not sure if it's Vrede, which might also have the same implication that Adv Mpofu was referring to of having In extra expenses, but I don't know what the motivation therefore was. I know we changed from VZLR to Seanego Attorneys. But I don't know the circumstances of that. Thank you, Chair.

Mr Maneli: Thank you Chair. As I then get to my last points on this matter. I think in the engagement there was a sense as it relates to the research and the CIEX matter, where you use strong words like ‘opportunistic’ of the PP to put this. I just want, as I said Chair, for my own notes, just to understand how you understood the instruction. Whether this was in relation to completion of a report, the CIEX report, or this was ordinarily one of those that you would do as you want to propose to the Constitutional Review Committee? And I'm making this distinction Chair, because I read the email that it had a heading 'Constitutional Review Committee Submission’. So I just want to check on that so that one knows that that word ‘opportunistic’, is it in relation to the fact that you had nothing to do with CIEX report and that you were doing your research without any instruction that said this research will help form the basis for such a report, so that one can put that word into proper context? I think I will submit Chair, from me.

Mr van der Merwe: Yes, thank you Chair. Yeah, I could have used a better word than opportunistic. I just felt that exactly like Mr Maneli is saying that the research was coming from, and as a person who wanted to understand the PP’s reasoning for what she wanted to advance, that is what we wanted to achieve through the submission to the Constitutional Review Committee. But more than that, respecting the process, and this would be inputs from various sources. And we wanted to put a view and considerations there that would ensure that we, as the PP, might be worried about vulnerable people and communities and we wanted to ensure that whatever they are doing, at least there is a voice for those people because that's primarily the duty of the PP – to be a voice. And in this case, a voice probably for the people who don't have input to legislation like the Constitution, or do not have the opportunity. So it was in that context I wanted to or we wanted to voice what we think would be the issues affecting the community in relation to the Sections 223 to 225 what is it that we want the people who are reviewing the Constitution to consider. And I didn't even have CIEX in mind or think that it would be relevant, because at the time when I saw the draft report there was no reference to the Constitution. So as Mr Maneli is saying, I didn't have the CIEX report in mind. Thank you, Chair.

Mr Maneli: Thank you, Chair. Then what makes me to get lost is now responding the way he responds. Maybe it would be correct to then ask the question, whether at the time of getting the instruction, just to be sure of what is to do, whether he asked this question? Because in the questions it was like, “It's not my view, it’s not my idea.” Whether there's been any question asked that maybe I may not be comfortable with this? Where are the origins of this change in the Constitution? So that it's not like a discovery in the research that it is linked to a particular political party and so on. But at least just to know, was this ever entertained Chair? I think that will then be my last submission. Thanks.

Mr van der Merwe: I'm not sure if I understand the question correctly. I'm sorry to do this. Can I just ask Mr Maneli just to rephrase, and I didn't get part of it. I got the part to say I wanted to find out if I support it.

Chairperson: That's fine. I’m going to ask Mr Maneli to repeat, to be brief.

Mr Maneli: Okay, I'll be brief Chair. I think the point I'm making is that he gets this instruction; he said it's not his original idea. My point is besides discovering it in the process of research, that this is linked to a political party and so, just from a point of clarifying the understanding of that instruction before you propose an alternative way of implementing it, whether there's been a test in terms of where the origins of this amendment, which I would take it he would have taken as something unusual to look at it in that way? So that's the question. I hope Mr van der Merwe heard this question well.

Mr van der Merwe: I understand. Yes. No, from the original instruction I understood that the PP had some considerations or discussions about vulnerable people and communities and from a socioeconomic point of view had certain issues that were important to have. It was the land tenure, the land appropriation, issues of land, and then also this issue of the central bank. I didn't interrogate the motivation or the reasoning for the instruction. I understood it from a social economic point of view. That's why we also approached it from that, to say that, and when I did research, I saw that this is indeed an issue that has been... it's not as if it's totally foreign to her. That's why I was saying that the sentiments expressed there has been raised on a number of forums by researchers, some controversial, some general, and the committee in 2008, as well. So I didn't see it as uncommon and I understood the desire and the bona fide or good faith attempt to improve the lives of people. It's just the way in which it panned out that I had a problem with. Not with putting the research there and the honest and bona fide effort to find out how we can contribute from a socioeconomic point of view. I'm not sure if I've answered the question.

Mr Maneli: Thank you Chair.

Mr Herron: Thank you, Chair. And thank you, Mr van der Merwe. Mr van der Merwe, I want to try and understand the evidentiary value of the evidence you gave around the legal fees, the accumulation of these professional fees, and the presentation of these large sums of money in terms of the charge sheet. So I'm going to focus on that and I want to ask, firstly, is the PP’s Office or PPSA subject to the Public Finance Management Act 1 of 1999(PFMA)?

Mr van der Merwe: Yes, Mr Herron. It is subject to the PFMA.

Mr Herron: And then in the PFMA, fruitless and wasteful and unauthorised expenditure, those are defined in the PFMA aren’t they?

Mr van der Merwe: Yes.

Mr Herron: When we talk about fruitless or wasteful in the ordinary course of discussion, say if we lose a case a court case and we say, “Well that was a waste of time or waste of money”, that doesn't necessarily mean it was wasteful or fruitless, or unauthorised. Am I correct?

Mr van der Merwe: That's correct Mr Herron.

Mr Herron: So when you presented all that legal, those legal fees, were any of those legal fees fruitless and wasteful in terms of the PFMA?

Mr van der Merwe: The short answer would be no because it was not flagged or detected as that, not in contravention of the PFMA. Well, we'll see what the Auditor-General says because I must distinguish between the fees charged and the expenditure, and then whether or not it was in accordance with the controls, whether it was properly checked, authorised, and that is another question. And I think that is where our focus would be in terms of when we talk about fruitless and wasteful expenditure, was the expenditures that were not in line with either our policy structures or in general. That would then be determined by an audit or the kind of audit that we envisage. And then generally, the expenditure in terms of litigation as such, which is properly authorised and mandated would not be fruitless and wasteful. But for this expenditure, we would drill in deeper in terms of controls as well, which was raised and flagged in the course of that Committee.

Mr Herron: Thank you. We know that there were three clean audits and I looked at the PP’s record. Prior to that there were three financially unqualified audits. So can we assume that in those six audit periods, there was no fruitless and wasteful expenditure or unauthorised expenditure that was material in terms of the Auditor General's findings?

Mr van der Merwe: That's correct.

Mr Herron: Then, Mr van der Merwe, Mr Sithole, and I think you also referenced it, indicated that there is, Mr Sithole called it the PPSA rates, and you talked about a tariff or fees, but what I assume we’re talking about here is that the PPSA has a tariff or legal fees which practitioners who tender or submit proposals to do some work for the PPSA agreed to subscribe to. Is that correct?

Mr van der Merwe: Yes Chair. It's tariffs for attorneys. We do not have tariff for counsel – we are looking at that. These are the rates and the fees that we, in terms of our appointment agreement with attorneys, expect them to render their invoices in accordance with these tariffs.

Mr Herron: So when you accumulated these fees and presented them to us were any of those in excess of the agreed or approved rate?

Mr van der Merwe: I, personally, when I took over have had concerns now and I think Mr Sithole has in his evidence also confirmed that there were instances when we did not check. I have flagged some of the invoices that we will be checking with the Auditor-General. My concern was whether or not all the invoices were rendered in terms of the tariffs. So I cannot at this stage pronounce. We will have to come back possibly. If we've conducted an audit or unless the Auditor-General's findings come out. If they do include it in their scope, all I can say is there are areas of concern in terms of the controls that I would want to look at in terms of the tariffs that have been charged.

Mr Herron: Mr van der Merwe, the legal profession, like other professions, are subject to guidelines around fees. Are you aware of that?

Mr van der Merwe: Yes.

Mr Herron: Are these fees or tariffs in line with the guidelines that are published for legal practitioners or below or higher?

Mr van der Merwe: No, they are on par. I think there is a revision in July that we are now, the High Court fees and the court fees, that we are now reviewing the tariff of fees against that. But it's generally aligned to the prescribed fees for legal practitioners.

Mr Herron: So then when we publish those legal fees, and presented them to South Africa, and South Africa went into a flat spin because they thought they were large amounts of money, it would be true to say that those fees are probably not excessive? They are in line with the tariffs? And if the PPSA tariffs are in line with the guidelines by the legal profession?

Mr van der Merwe: Yes, that's correct. As I said, I think the nature was more influenced by the number of cases and the number of litigation actions. We will still come back on the issue of potential overreach, but that might be isolated. In general, yes, it would be aligned to the tariff of fees that the PP is prescribed.

Mr Herron: Thank you. I just want to move briefly to another part of your evidence, which is possibly not really relevant, but I do need to understand why you gave this evidence. In the course of your evidence, you refer to an employee of the PP, I think it was the PP’s protector, as not having suffered from any poisoning, but having had too much KFC. Why did you give that evidence?

Mr van der Merwe: It was in relation to a letter that was flighted about threats that the PP was experiencing as a result of one of the reports and the evidence leaders asked me whether I had any knowledge of the threats and I just confirmed the one incident that I was aware of. And I must use, with your permission, just use the opportunity to actually put that in context of the police report without divulging too much detail with the Chair’s permission. Because I just wanted to clarify that unless that's not the question Mr Herron.

Mr Herron: But my question is, I think you answered why you gave the evidence, but where did you get that evidence from? I mean, who diagnosed that this protector was overindulged in KFC?

Mr van der Merwe: Yes. It was part of the threat assessment. The incident was recorded, and it was investigated by the protection unit and they interviewed the protector concerned who, and I'll rather read just to avoid the connotation that it was in fact the KFC issue. The protector attended the Good Friday function and he had some chicken beforehand and then he later on ate supper at his house again. He had stomach cramps. He went to hospital. He was examined, and it was found that there were harmful contents but not including a toxicology report or testing food poisoning, and the certificate from the doctor indicated no identifiable poisonous substance. And the conclusion of the police report was that the allegation of poison was highly speculative so I went back to check on this specific incident, and that’s what was reported in the threat assessment report.

Mr Herron: I'm gonna wrap it up now but I'm still disturbed by the evidence because yesterday Adv Sikhakhane gave an impactful statement about stereotyping. And what you've just told us now doesn't confirm that there was an overindulgence in KFC. I mean, why could you not have just said perhaps it was food poisoning?

Mr van der Merwe: I didn't have the police report in front of me and that is the last impression I had and I do apologise for that. Because it was not meant to stereotype. It was contained in the police report that there were three occasions when the person... and the impression was created that it was an overindulgence and there was a KFC. And as I said it was not meant as a stereotyping of any sorts. I wasn't even thinking. I was trying to recollect a police report, which in hindsight, I shouldn’t have done without referring to the actual content.

Mr Herron: Thank you Chair.

Dr Gondwe (DA): Thank you very much. My first question to you is around Project Promise, which concerned the development of an electronic case management system for the Office of the PP by the State Security Agency (SSA). You stated in your evidence in chief that in 2017, you met a team from the SSA in relation to the development of this system. However, the process around the development was later abandoned after the Portfolio Committee on Justice raised concerns around the involvement of the SSA. You further stated that last year, you embarked on an in-house development process, which involved the secondment of a developer from South African Social Security Agency (SASSA) to assist the Office of the PP to develop the system. Please confirm if the Office of the PP was quoted a fee by SASSA for the development of this electronic case management system?

Mr van der Merwe: Thank you Chair. No, we had a secondment. We entered into a secondment agreement with SASSA where in terms of the secondment normally the secondee or the institution to which the employee is seconded would assume the responsibility for the remuneration for that period. And our agreement was that either SASSA would pay the employee and recover the money from the PP or that we would pay the remuneration. But in the end, it was for a period of two months. SASSA didn't even recover the monies from us. So the PP incurred no expenditure for the development of the system.

Dr Gondwe: So do you not find it strange or peculiar that in 2017 the SSA quoted the Office of the PP and amount of approximately R30 million for the development of this system. Yet SASSA was able to assist the Office of the PP to develop this system in January this year, at no cost to the Office of the PP? And in your response, please confirm the identity of the officials from SASSA that were leading the engagements with the Office of the PP in relation to the development of the system.

Mr van der Merwe: Sorry Chair. The identity of the officials of SASSA?

Dr Gondwe: Of the SSA.

Mr van der Merwe: Oh, of the SSA.

Dr Gondwe: Yes. You recall that you said that there was a team that you engaged with around the development of this electronic case management system. So I wanted you to identify who is leading the engagements from the SASSA side with the Office of the PP. And if you did not find it peculiar or strange that the SSA quoted you an amount of approximately R30 million for the development of the system yet SASSA was able to assist you in developing the system at no cost.

Mr van der Merwe: Yes, the first approach between the two processes was different because how the SSA was going to assist was through an engagement with Microsoft and the service providers. So they described a role specifically around security and Project Promise had a lot of components to it. The only measure we had to test the amount was the fact that we tried to, when we went out on tender, we got tenders for it was not close to that amount, I think R12 to R13 million for an independent service provider to develop the system. What that entails is they would then do the business process analysis, the specifications, the development, the implementation, which had a lot of components. So the cost for us is different, but it was much higher than expected. It was indeed, if you want to use the word peculiar, because we expected that they would be assisting us, because of the fact that we didn't have the finance for that. On another basis, we didn't expect to have to pay that much for a system. So yes, that was out of the ordinary. And then in terms of the identity, I would have to revert back. I can do it and if it's allowed, I will have to confirm the identity of the officials, if I may refer to the Committee in writing on that. I don't have the identity of the officials in mind. Then to come back to the internal development. We as PPSA then developed the specifications for the system, the business process, and then we cooperated with the developer to put those specifications into a software architecture. So that’s where we also saved money, so that in the end it was just for the development. So it's through the intervention of the CEO, who came from SSA, as well as, as I confirmed, that the fact that developer we had on board brilliantly understood and was able to translate our specifications. So that also affected the cost to reduce it. Sorry for that long answer Dr Gondwe.

Mr van der Merwe: No problem. I think you meant to say that your CEO is from SASSA, not the SSA.

Mr van der Merwe: SASSA. Apologies Chair, he would not be happy with me.

Dr Gondwe: My next question to you, Mr van der Merwe, is that during the course of this inquiry, we've heard evidence that under Adv Mkhwebane there was an increased involvement of the SSA in the business of the Office of the PP. And as a case in point, we were given an example of the fact that Mr Vusi Menzelwa was seconded from the SSA to act as CFO in the Office of the Public Protector, and an official from the SSA sat on the panel that appointed Mr Baldwin Neshunzhi. Would you agree with this evidence and whether you found that under Adv Mkhwebane’s tenure there was increased involvement of the SSA in the business and the operations of the Office of the PP? And if you also found this to be unusual?

Mr van der Merwe: I don't have personal knowledge of the involvement of and the two incidents of the SSA. I can just confirm that my personal knowledge with the development of the case management system, yes, that was a huge concern. Because we were worried about the fact that from our side, the business side, not the management side, that it would expose the PPSA to risk because it would mean access to all our data and our cases and things like that. So we were not sure. I know there was an explanation as to how we came about in approaching the SSA at the time, but we've also tried through other institutions like State Information Technology Agency (SITA) who's properly mandated to assist in that. And that, for me, would have been the option. And also because we had an option at the time that we wanted to present, with the minimum of cost, that was going to be an open-source option, which had security risks but the security assessment, we would have been able to address the concerns because it was only about the hosting of the system. So in face of the fact that we were having this option of having the Samoan system visa vie the SSA involvement, yes, that was a source of concern. But I can't confirm the general involvement or the general impression of the SSA in us. It was only this one incident where I can speak off of my experience.

Dr Gondwe: Thank you Mr van der Merwe. You mentioned in your evidence in chief that the Office of the PP has its own Communications Department or unit, which is staffed by, you said, four or five people whom I assume are communication specialists and are responsible for dealing with the public image of the Office of the PP and media enquiries. Why then do you think that the PP opted to not make use of the Communications Unit or Department of the Office of the PP to provide the so-called strategic communication services that were provided by Ms Heller, Prof Seepe and Mr Ngobeni? And why do you think normal procurement channels were not followed to engage the services of these three individuals? And they were engaged and paid via Seanego Attorneys. And why do you think this was not divulged or disclosed to the Manco of the Office of the PP?

Mr van der Merwe: Yes. First of all, I think it was because, and I have to speculate to some extent, I can only look at the correspondence, is that they approached the PP in the first place. And the initial reaction from the PP was quite correct to say, “COO, look at how we can accommodate and make use of the service.” Then another, the developments were around the Project PP, which was then aimed at addressing specific threats that were identified, not to the Office in general, but to the person of the PP. And I think the idea was that these services would be procured from or secured from external service providers. Firstly, because they were in that space. And secondly, because, and I have to speculate because the approach was not in terms of a general communication strategy or a general requirement of the Office. The communications team was addressing the perspective and the image of the Office in as an institution. And the only reason I can think is that these issues were more personal to the PP and she felt that she wanted to have more control and say on the exact nature of the responses, whereas if the official channels and processes were used, it would have been limited more and more directed at the general interest of the Office as opposed to addressing her specific concerns, which was more of a personal nature. I don't know. The only reason I can think of why procurement processes were also not followed was because they were saying the legal entity, we work on a database of service providers, and a legal entity had not yet been established. So I'm not sure if they would have been able to procure the tender if it was put out on a public procurement process.

Dr Gondwe: Thank you. Surely this arrangement that you've just described, where Mr Ngobeni, who we've now established is not registered to practice law in South Africa, and is reportedly a fugitive from United States Justice, and engagement of Prof Seepe and Ms Heller being gauged and paid by the Office of the PP via Seanego Attorneys is in contravention of procurement regulations, and one would say is almost tantamount to fraud or misrepresentation. Would you agree?

Mr van der Merwe: Yes, sorry, my first reaction is always to start with yes, and that's not meant to say it's fraud. I do have a concern about the way – and that's exactly why we raised it in the evidence – about the way in which it was procured because as consultancy services, that is not in line with our legal strategy because we pay for legal practitioners through our legal engagements. And it had its risk that those services were not covered by the confidentiality requirements. So it was certainly not in line with our policies and our legal strategy on the procurement of legal services. Whether it would be tantamount to a contravention of the PFMA, I think the most is the accounting officer would notify or identify that as a potential, and it would have to be properly audited. I think on the basis of the invoices and information we have, there are some concerns. I can't say whether it would constitute so far as to constitute fraud, but there were certainly circumventions of some of the procurement processes and requirements.

Chairperson: Last question.

Dr Gondwe: Lastly Chair, yes. Mr van der Merwe, I'm also concerned that despite this arrangement, the Office of the PP was able to obtain multiple clean audits. How do you think the Office of the PP was able to obtain multiple clean audits, not one but three, in the face of this arrangement? Because I find it remarkable that the Office of the PP was able to obtain these multiple clean audits, despite this arrangement. And I'm not sure if the Office of the Auditor-General can conduct what you call a retrospective audit, because I think it would be warranted in these circumstances.

Mr van der Merwe: I've reflected on that. An audit is basically an opinion. A clean audit principally indicates that your financial statements don't contain any significant misstatements and that they are reasonably accurate. So I think on the level on which the audit was done, this reflected what the auditors found. It doesn't reveal whether there were internal controls, or it didn't look at the internal controls that would have proceeded because it would have found, without any of the supporting evidence and documents we had, it would have looked at the invoices and found that they were properly checked and signed off. The scope of the audit wouldn't have been to check if there were consultancy fees included in the invoices necessarily and have the background to this. So the only thing I can think of is that it didn't rule to the extent of checking these controls that we think might have been at risk. So I don't think that the Auditor-General’s audit was in any way irregular. From our engagements with the Auditor-General's Office now afterwards, the explanation was they dealt with matters that were within scope. And we can only assume that that is where these issues were not uncovered or discovered. Either they were not in scope or they were not drilled down to the extent that we've done here before the Committee.

Ms Maotwe: Thank you very much Chair. Good afternoon to you and everybody who’s there with you and on the platform. Now Chair, it is not only a waste of taxpayers’ money really, and our own time as the Committee, but we are now using people's parliament to create a fertile ground for racist propaganda that black lawyers are corrupt and are making a killing on milking the State a lot of money in the name of Section 194 inquiry. It is very disappointing Chair, that instead of being objective and address the matter in a manner in which both evidence leader and the PP legal team have agreed on a practical way forward. You were agitated, screaming, and refused to listen. It’s like you want to prove that the PP legal team was correct for asking for your recusal. But we will deal with that some other time Chair, let's face Mr van der Merwe for now. Mr van der Merwe does not appreciate the harm caused after he, as the source of the information, painted black lawyers as corrupt. Listen to Adv Sikhakhane SC explaining how racist what he did is. Adv Sikhakhane was clear, historical, and coherent. Now Chair, this leaves me with a few questions. But I'm going to start with this one and I want a direct response from Mr van der Merwe. Sir, are you a racist?

Mr van der Merwe: Unequivocally no, Ms Maotwe.

Ms Maotwe: Okay, we take that. Now the second one is Chair, if the PP or any citizen responds to an invitation to comment issued by Parliament, can it amount to encroaching into the space of the same parliament, Mr van der Merwe?

Mr van der Merwe: Sorry, can you repeat the question Ms Maotwe?

Ms Maotwe: Okay. If the PP or any citizen in this country responds to an invitation to a comment issued by Parliament, can that amount to encroaching into the space of the same parliament that issued the comment?

Mr van der Merwe: I'm not sure I understand the question. If the response amounted to an encroaching of the same parliament?

Chairperson: Ms Maotwe, you're also missing me there. Please repeat your question and try and be more precise.

Ms Maotwe: I'm very precise. I'm asking Mr van der Merwe if the PP or anyone, including yourself, Chair, or myself, we respond to an invitation to a comment issued by Parliament, can it amount to encroaching into the same space of the same parliament?

Chairperson: You got that Mr van der Merwe?

Mr van der Merwe: Yes, I think I understand and the answer is no. Because if it's a response to a request, and encroaching means that it’s seen to be unwarranted or unjustified, then if my understanding is correct then the answer is no.

Ms Maotwe: Okay, I'll move to my third question. Now Mr van der Merwe. You spoke earlier about Adv Mkhwebane being the one to have initiated the process for constitutional amendment. Is there anything wrong with initiating a process for constitutional amendment which may or may not be successful, according to you?

Mr van der Merwe: No, as it is explained, we are in the sphere of proactively and reactively improving administration. And if in the process we found that there are policy gaps, we do from time to time recommend the review of such. So the short answer is no.

Ms Maotwe: Okay, we'll pass that one. On the nationalisation of the Reserve Bank, did I hear you correctly when you say you proposed that ahead of the ANC? Because remember, the ANC only started to speak about nationalisation of the Reserve Bank in December 2017. But if I heard you correctly, you said you proposed it to them ahead of that time. Is that correct?

Mr van der Merwe: No, our proposal never went to a political party. We were still contemplating the necessary vehicle. So we've never made any submissions eventually to the constitutional committee or to any political party.

Ms Maotwe: Were you surprised when it surfaced at the 2017 conference or the ANC, and adopted?

Mr van der Merwe: Yes, I saw it. But I also saw it as something that then prompted the PP to think about it. Before that time, it wasn't in our space, I didn't think about it but when it subsequently came to us. So I don't have any opinion on it at the time because it was, for me, it was then outside our sphere of thinking. I took note of it, but I didn't have an opinion on it.

Ms Maotwe: Now that it surfaced and it was adopted in 2017. It's now 2023, still not implemented. And we now see the senior citizens of this country even stuffing money under the mattress, therefore their own Reserve Banks in the mattress. What's your view on that?

Mr van der Merwe: Yes, I would have loved to complete the research and make a proper submission to the Constitutional Review Committee on if we can contribute to any of the plight and the socioeconomic risks of the vulnerable people, including in this context. So, even in the bigger scheme of things, as that Chapter 9 institutions supporting constitutional democracy, we would want to see a better life for all. And in that context, we have been working with the Federal Investigative Services Division (FISD). I fully endorse the principle and the idea of improved socioeconomic circumstances for people.

Adv Mpofu: Isn’t the slogan of a political party 'A better life for all'? On a lighter note.

Ms Maotwe: Yeah, I want to proceed to CIEX report. Did I hear correctly Mr van der Merwe? Are you distancing yourself from that report? Or did I hear you differently? Can you clarify that for me?

Mr van der Merwe: I'm distancing myself from the notion that my research or my document informed the wording of the remedial action that the PP eventually adopted. As I said, there is no indication of how my contribution would have been different if I was asked to vote for it in terms of the rationale and reasoning. So I'm distancing myself only from the idea that that remedial action stems from the work that I was doing.

Ms Maotwe: Okay, so that's fine. My last question Chair. You spoke about a better life for all and you prompted my instinct immediately because my slogan is ‘economic freedom in our lifetime’. What's your comment on that? Because that one of 'better life for all' is the slogan of the Chair, Mr Dyantyi. Mine is economic freedom in our lifetime. So what's your comment on that? Do you believe in that Mr van der Merwe?

Mr van der Merwe: Yes, it's interesting Ms Maotwe that you raise it because we've been focusing on the FISD and my contributions there on the issue of inequality in the country, and we are the most unequal country in the world. And there's a lot of factors that contribute to that inequality. And I can understand the role of economic freedom and economic empowerment in that sense of addressing inequality. I can’t now endorse or subscribe to your specific views, but I'm just saying that it is something that we've, as an Office, tried to contribute as part of the strengthening of constitutional democracy in the various forums that I have had the privilege of assisting and representing the Office.

Ms Maotwe: Chair, that will be all from my side. Thank you.

Ms M Sukers (ACDP): Good afternoon, Chair. Thank you. Mr van der Merwe, thank you for coming before this Committee and to give evidence to it.

Chairperson: Just a pause Ms Sukers. I normally wouldn't do this but in the era of walk outs I have to do it so that there's no accusation on the PP. She has to catch a flight and would have agreed that at some point she will leave. When she walks out, she is indeed walking out to her flight. Thank you.

Adv Mpofu: Thank you Chair. Chair, you'll notice that we are sitting down, we are staying in.

Ms Sukers: Yeah, thank you Chair. I just have a few questions and then just to end off I will make a comment. Mr van der Merwe, at paragraph 76 you mentioned that in the time of Adv Madonsela it was resolved to invest in a competent process engineering capability. Did that ever happen?

Mr van der Merwe: Yes. She appointed a business process engineer who then went through our business processes and mapping. That then resulted in a specifications document with which we tried to procure, firstly, the case management system.

Ms Sukers: And based on that, has that become part of your current operation? Do you currently have the capacity? Have you improved on those?

Mr van der Merwe: No, I think the business process engineer, the process, the first aim was to develop specifications for the case management system. She did make recommendations for the review of the business processes and we did subsequently review our business processes, also aligned to the court cases. But I don't think, as a general exercise, we've gone into that reengineering of our business processes. The focus was more on how we could improve for the purpose of the case management system. So many of the things were not really institutionalised subsequent to that, partly because her tenure then ended and there was no follow through on the original business process report.

Ms Sukers: Okay. We have heard that the PPSA has faced budgetary constraints, yet after October 2016 a decision was taken to abandon projects supported by donor funding. Why was this done? If you are aware.

Mr van der Merwe: I can just recall the discussions. There were concerns about perceive that it might influence the independence or impartiality of the Office. I can't recall the exact, and I don't know how it was captured in the responses to the donor funding project. I just know that the project we had with this business process engineer and development of the case management system was affected because we were using the donor funding for service providers that helped us with the development of the specifications, and it was going to go on investing in the case management system. And that didn't happen, that's why we had to revert to our internal budget which was not sufficient. That was my impression that it was because of risks of our independence and impartiality.

Ms Sukers: I understand. In 2017, when you became aware of the open-source case management system, SSA raised concerns about security. Did the PPSA get any second opinions on this analysis at the time?

Mr van der Merwe: No the directive was for the system to be vetted by SSA. And that was the authoritative assessment of the system. So we didn't venture into any second opinions.

Ms Sukers: Can you offer your view if the SSA concerns were justified? And how serious they were? Because it took another five years to develop a case management system.

Mr van der Merwe: No, they agreed even at the time that those concerns could be addressed. First of all, we were then going to visit the pro bono developer, which was one of their concerns. And we were not going to host the system remotely but locally, which would have also addressed the concerns. The five years after that was because of when the project didn't go through with the customisation of the hub, we first tried, after the SSA, we tried a procurement process and we didn't have the budget for that. And then only we reverted back to the open-source system. It was 80% developed and then the developer fell ill. And then the fourth option basically came into an internal development of the system through the secondment of the capacity to the Office. So that explained the five-year period.

Ms Sukers: Can you explain to the Committee how legal practitioners are appointed on a matter? Who chooses them? Is there a procurement committee that advises on these appointments, especially when the costs are?

Mr van der Merwe: In terms of how we now, and I think that was in general the process, is when we receive a notice of motion or indication of litigation against the Office or identifying a need for litigation, we first get in principle approval from the PP or the executive authority, what is our strategy, and are we going to oppose, are we going to abide or file a notice to abide, or how are we going to respond. Once we have the in principle that's on the prospects as well. Once we have an in principle decision, then we go to our tariff, our panel of attorneys. We look at issues like vicinity, in which centre the case is, and from my side I look at who hasn't been and try and do an even spread, then we approach the firm of attorneys for a cost estimate because in terms of the PFMA we have to ensure that the implication is reasonable and budgeted for. Once we have a cost estimate we approach the, and the engagement with the PP would have also indicated in the principle decision whether or not she wants counsel to be appointed and if she has a preference for counsel. Adv Mpofu explained the last time how counsel are chosen. That's broadly the process that we are following. Either the PP or the attorney or counsel, a junior might recommend senior, or the attorney might recommend the counsel or someone externally. The choice of counsel is eventually the PP’s, but I interrupted myself. Once we have a cost estimate, we verify how it's supposed to happen with Finance. We make a submission to the accounting officer for the actual offer of appointment to go out to the firm of attorneys. That goes through Finance to confirm the availability of funds. Once the accounting officer has signed the offer of appointment, that letter is sent to the attorneys and they must then acknowledge or accept the offer, and then they are mandated to continue within the confines of the appointment letter for the matter concerned.

Ms Sukers: So, the follow on, on that, is, is there any form of review mechanism in place to ensure an equitable share of work among all the lawyers on your panel?

Mr van der Merwe: No, the review process is one we are adopting now. There is no process. What we are trying to do as part of the improved controls is to have a complete overview and assessment. This exercise with the Committee actually helped us to look at how the appointments are spread and then we've also had subsequently about two to three attorneys who have been raising concerns about the fact that they have not been appointed. So we will try and improve on the governance but there is no process as such, no external person who checked whether or not they are, or internal process to check if they are appointed in terms of the panel.

Ms Sukers: Can you describe the culture of the Office under Adv Madonsela? Did staff feel that they had a significant degree of independence? Could they freely criticise? Were there any mechanisms to ensure and encourage independence?

Mr van der Merwe: Sorry, I'm just thinking. It's difficult to give an objective view. To compare, there was a measure of independence in the sense that Adv Madonsela’s style was a bit different. She focused on issues of developing the PP’s powers and how it has evolved and her performance culture was also different in the sense that she expected a bottom-up approach where people would come to escalate. That's the bottom-up approach where I said she still insisted on compliance but the compliance issues were not as rigid as it is now. I think it also had limitations because all the PPs, including Adv Madonsela and Adv Mkhwebane, have a strong view on the role of the PP as the driver and decision maker of the investigations. So the scope was, I think, more relaxed than it was now but it also had limitations. I’m being careful here to be too generalised, except to say it is two different leadership styles. But there were also limitations in Adv Madonsela’s time.

Ms Sukers: No, it's fairly answered.

Chairperson: That will be your last question.

Ms Sukers: Yes. You are a civil servant with a lot of experience and with the ability to maintain good relationships, it seems, with your superiors, while you perform your duty. Several employees have been described as disgruntled. Would you say that rather than being disgruntled, they perhaps were not as able to walk a fine line as you can? For instance, you having the years of experience, relating to a female leader. Would you say that that is the difference between the experience of people? That it is your experience that allows you to be tactful and diplomatic and not have such a difficult time as somebody else would with less experience? That they could not perhaps walk that fine line?

Mr van der Merwe: I think it is a contributing factor, but it's also that the outputs and the pressures are different. My role is more supportive or was more supportive to people who had specific targets and outputs, and that creates a different environment, because when, in the top-down approach, when those outputs were not met then it had to have consequences. And it's the consequences… As I tried to explain in my affidavit, the variable is only that people had to work harder. There were systems in place to improve performance and the appointment of the COO contributed to that. It's difficult to say if they could have avoided being subjected to what they experienced or described, which led them to be perceived as disgruntled as tensions affecting the relationship. I think it's a mixture of experience, but then what they experienced is totally different from what I experience. So I wouldn't be able to say whether experience alone on how to handle it could have had a different result. The consequences were perhaps dire for them and I can understand that.

Ms Sukers: May I add my comment lastly, Chair?

Chairperson: Quick please.

Ms Sukers: Chair, I want to just say that I strongly want to raise the concern around the brandishing about of racism against women that are serving this Committee. The treatment, especially of women, like Adv Bawa and Adv Ncumisa Mayosi, who against many odds are sitting here as professionals in their craft. They certainly have faced much racism. They are here in support of this Committee, and their backgrounds alone should give us caution to just use racism as a ‘weerlig afleier, I can’t say it in English, when we are disagreeing. The facts are for the Committee to consider and it's for them to present it to us and for us to discern what is relevant. Thank you Chair.

Mr B Holomisa (UDM): Thank you, Chairperson. Thank you to all who are on the platform. Mr van der Merwe, thank you for confirming that the mandate of the PP, among others, is to look at the socioeconomic conditions of South Africans. Question. Was there anything wrong with the PP asking Parliament to review the mandate of the Reserve Bank? Indeed, would you say the PP overstepped her mandate in asking you and other members of the PP to do some research on this matter? Second question. In Nkandla and the State Capture cases there was open cooperation between counsel for the PP and the EFF, DA, UDM, etc. Otherwise, there would have been no Zondo commission. Adv Madonsela even thanked the parties. So what I'm trying to say is, is there anything wrong for political parties to engage the Office of the PP when her Office has been approached by us. And lastly, you will recall that the former PP, Adv Madonsela, was called names, ‘counterrevolutionary’, ‘spy’, ‘CIA agent’ but this party stood up and defended her in the same manner as we are doing today. Because the same PP Office is under siege, being attacked from the highest office in this country. Thank you.

Mr van der Merwe: Thank you Chair. On the first issue Mr Holomisa, yes, it is my view that the PP from the concept of the Constitution, strengthening constitutional democracy, needs to ensure that people also believe in constitutional mechanisms and democracy. And that's where the socioeconomic issue comes in. I think the problem I have, because our research was also leaning as Adv Mpofu was saying towards a review along those lines, so I wouldn’t have a problem with the review of the Constitution. I think what the courts have found gone wrong is the fact that we came up with specific wording, which had such an impact that it had an effect. And I think it's the manner in which that remedial action was couched rather than the sentiments that gave rise to the uproar. On the second issue on the cooperation between political parties, and also the political parties coming to the PP, I think there's a difference between dealing with political parties in the scope of our work and then aligning litigation strategies with political parties, which, as I said, had a risk in terms of the perception of independence because those same political parties might be the subject of a complaint or even a complainant in that matter. And if we are pursuing an interest in one matter before court, and in another matter, we are bound to be objective and independent, as I said, it's the perceptions of conflicts and interest and impairment on the impartiality, independence of the Office that would create for me a risk in working, cooperating on a litigation strategy. Then lastly, I can only take note. I note Mr Holomisa’s statement about the fact that the party supported Adv Madonsela and is not supporting the current PP. Thank you Chair.

Ms J Mananiso (ANC): Thank you, Chairperson. Let me start by welcoming and greeting as well – the evidence leaders and Mr van der Merwe. My first question to you is I just want to check with you if your testimony is going to assist this particular Committee to execute its ultimate task. Yes or no?

Mr van der Merwe: Yes, I believe so.

Ms Mananiso: Okay, and then my second question Mr van der Merwe is with regards to strategic communication services. I heard some Members actually touched on this issue, but I just want you to take us in confidence in terms of what is the uniqueness of the PPSA services and this one that were procured according to you. Is there anything unique or for you, you don't see any difference why we had this particular services?

Mr van der Merwe: As I said, my impression was that this services was more personal around the position and the person of the PP and not focusing on the general strategy of the institution, which as a role will also look at the PP, but I think the needs that the PP has and responding to direct threats might not have been served or wasn't the objective of communication services that we had at the time. There was a specific proposal and it was clear, and also, I think the boundaries of what we could achieve through our formal communications structures and the accessing and networking and ways in which they proposed to look at the strategic communication is different.

Ms Mananiso: Okay, thank you sir. I think some of the Members have touched on the issue of procurement and the PFMA. I want to ask you in terms of how is the database of the PPSA established and if you have the database in the institution?

Mr van der Merwe: Yes, we do have a database of service providers. Obviously, any service provider can register, can approach our supply chain management (SCM) to register and then we would also invite tenders for procurements for specific services and then a prerequisite would be that they would register first and sometimes they register on the Treasury database with which we also subscribe. I am talking in general terms. I can come back with the most specifics of how the database is established. I just know that when we are in a BSC or BAC committee, we are verifying that against our database of service providers. That's the extent of my knowledge, Ms Mananiso.

Ms Mananiso: Or you can just use the name Jane because I know Mananiso will give you a tough time.

Mr van der Merwe: I apologise.

Ms Mananiso: Okay, thank you, Mr van der Merwe. When you were testifying, and during the cross-examination of Adv Bawa, we were taken through the images and the conversations within the institution. So I just want to check with you, is it how you operate as PPSA in terms of including service providers in your internal communication? Is it the culture of the institution to do so?

Mr van der Merwe: No, unless it is instructions or projects, like now when we're doing the work study project we are including, not in internal, if it's meant for them and it's meant to manage the project, then obviously they would be included. If it's internal communications just between us, there is no need for their inclusion.

Ms Mananiso: Okay, I just want to take you to your affidavit, paragraph two. You did speak about you crafting speaking notes for some engagement. So I just want to check with you, did you have specific engagements that you were requested to actually do those speaking notes? Or what I want to check, did you have a specific scope in terms of this is how far you can go in terms of doing those particular engagement speaking notes?

Mr van der Merwe: It would be on an ad hoc basis depending on the invitation. It covers a wide range of subjects from corruption to the role of the PP in women empowerment, to the role of the PP in good governance in the National Director of Public Prosecutors (NDPP). So it would depend on the invitation of the PP and we generally have an approach and a structure where we address the topic. We try to be realistic in terms of the actual position on the ground, and then we always relate it to the role of the PP. So it will always be what contribution the PP can make to the topic and the issue in the conference or in the space that the PP was engaged in. I'm not sure if I understand or answered the question.

Ms Mananiso: Yes, you actually understood the question. In terms of your affidavit, paragraph three. What was the task of the full bench? Can you just take us through some synopsis in terms of the task of the full bench?

Mr van der Merwe: The full bench is a structure that was established last year. I think it came about as it's a peer review mechanism for reports. It's the final structure. When reports, I have to take about one step, a report is drafted at branch or unit level then it's subjected to what we call the unit or branch dashboard as the peer review. Then it goes to quality assurance or the COO Office to check it as the second tier – first quality assurance then the COO Office. And now we have a quality assurance committee, and once they are satisfied with the report it goes to full bench. That is where the PP and the Deputy PP now sit with the managers, the executive managers, and then collectively look at the report in terms of its contents and conformity with internal requirements and so on. So it's a peer review mechanism just before the PP signs off on the report.

Ms Mananiso: Okay, on paragraph 41 to 46, Mr van der Merwe, you have a good story to tell in terms of how Adv Mkhwebane made you work in terms of ensuring that you deal with backlog. So I just want you to define the leadership style of Adv Mkhwebane. On a lighter note, what would you say if you were given a responsibility or a task to say define her leadership? Because there's at least results in terms of what you said, and you even applaud the achievement by the department.

Mr van der Merwe: Yes. I confirmed in my cross-examination that Adv Mkhwebane is a hard worker, that she expects results, and her leadership style is more a top-down approach where, instead of the performance scenario where we had people having to report when they encounter problems, it's more results-driven in terms of the deadlines are set and people are expected to meet those deadlines. I offered some opinion on where I think those deadlines, the problems that resulted in them initially, was not necessarily performance related. But she is, as I said, a top-down approach. There are definitely consequences to not complying with deadlines and directives. I'm not sure if that is clear enough from that.

Ms Mananiso: It's clear enough because that's how you see her. Lastly Chair, my question, it's on paragraph 47. There's an indication that the staff was working extensive hours. So I just want to check with you sir, if this particular extensive hours negatively impacted the staff? And from a perspective of a public servant, we know that we are not limited to the working hours. Don't you think that this thing of saying that people from the PPSA are working extensively hours, it's like you are complaining as if there's some unfair processes that are happening in the institution? Because for me, I think as we are public servants, we are called on duty anytime when there’s a need. So I just want to check with you, don't you think that perhaps all of you are too harsh in terms of indicating that you were working extensively hours? Thank you, Chairperson. That's my conclusion.

Mr van der Merwe: Thank you Chair. I think the problem is not the extensive working hours per se, but the continuous and the duration thereof, and also the number of hours and the pressures. People were working until very late in the evenings to meet deadlines, because the deadline would not be shifted easily. If there was a commitment and people had a number of tasks, then they were expected to meet that even if they had to work basically through the night. And it was not something that was just the exception – at some point it was the norm to work extensive hours for continuous periods. So it's in that context that I was mentioning it Chair. Thank you.

Mr B Nkosi (ANC): Chair, thank you very much. My questions have been taken up throughout the session. Thank you.

Evidence Leaders’ Clarification – Witness: Mr Cornelius van der Merwe

Chairperson: I will now proceed and check in terms of 6.16 and 6.17 if Adv Bawa has got any questions she wants to interact with Mr van der Merwe.

Adv Bawa: I do Chair, and just maybe as a point of clarification to start off, Ms Maotwe said that. What I indicated this morning is that as evidence leaders we asked the PP’s team for their view on the way forward on the legal fees related to the Committee and we got a ruling. So I just want us to be clear as to whether there had been an agreement or not. I simply performed the task of being an intermediary in this. Mr van der Merwe, it would be correct that it was put to you that it would be correct that Parliament decides how much money the PP’s Office gets, and to that extent it's out of the control of the PP. Correct?

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

Adv Bawa: But how that money is spent, that falls within her control in the sense that it's the choice to litigate, the choice to incur litigation costs, as opposed to spending the money on other matters within the PP’s Office. Your comment on that?

Mr van der Merwe: Yes, the strategic utilisation of the resources is within the purview of the executive authority, that strategic director, and that includes litigation Chair.

Adv Bawa: Now this distinction between fees and costs, I'm going to ask to take us to page 5088, paragraph 58 of your report. But in the meantime, can I ask you this, when you pay counsel as the PP’s Office, is it a fee to you or is it a cost to you?

Mr van der Merwe: Fee. We are paying counsel fees.

Adv Bawa: No, it's a fee in the hands of counsel, but what is it in the hands of the PP’s Office?

Mr van der Merwe: It's an expenditure, meaning that yes, it's the cost of litigation. That's how we see or how we work because when we are engaging Treasury, it's on cost containment measures and one of the drivers of expenditures and costs in the Office of the PP is litigation. So in that context, we do refer to it as cost drivers in the PP.

Adv Bawa: It was also put to you that the PP is the executive authority and not the CEO, and has nothing to do with authorisation of payment. But who gives the instruction to commence the litigation?

Adv Mpofu: No, Chair. I just wanted to object to the previous question because it's misleading, maybe not deliberately or out of ignorance. There's a difference between fees, costs, and expenses. Legal costs is a particular thing. So that should be put to the witness about expenses if you are talking accounting, if you are talking law, legal costs is something else.

Adv Bawa: Sorry, Adv Mpofu. I actually wanted to put it on the screen. Let me just put it up and we'll see where I was going with us. I should have waited for it to go up before I did that. I accept that the question was misleading.

Adv Mpofu: Okay.

Adv Bawa: Okay. This is this is your affidavit under the heading of where Adv Mpofu took your review of reports and legal fees. And in paragraph 58 you deal with legal costs incurred. What legal costs incurred are you referring to?

Mr van der Merwe: It’s the amount that would be expended by the PP. So it's the expenditure.

Adv Mpofu: Chair, I promise is the last intervention. Alright, my objection to this question is that it's not even misleading, it's irrelevant. The question is what the meaning of legal costs was by the person who drew up the motion, Ms Mazzone, not by some witness or me or anyone else. Thanks.

Adv Bawa: Mr van der Merwe can't talk about what Ms Mazzone or the DAs motion said. I’m clarifying because he's not going to come back as to what he meant in his affidavit, Adv Mpofu. Okay? So it was put to you that the PP is the executive authority and not the CEO and has nothing to do with the authorisation of payments. But would those legal costs be incurred if she didn't give an instruction?

Mr van der Merwe: No.

Adv Bawa: So in the ordinary course, when you have a minister and the director, would the minister be authorising the litigation or the director-general if it's against the department?

Mr van der Merwe: I would have to speculate. I don't know what the arrangement is. Again the executive authority might be directing the litigation; the actual authorisation of the expenditure comes from the accounting officer. But honestly, I can't say what the arrangement is in public, in government. I can only say in terms of our setup that the directive on litigation is the domain of the PP.

Adv Bawa: You explained the process of how attorneys are appointed from the panel, and you gave us an explanation of the process that's followed. Now in the relevant period for which we have put the fees up before this Committee, one of the steps you indicated was that there must be an estimation of fees, there must be approval from the CEO for that. Were those steps followed?

Mr van der Merwe: That is what we are going to look at, that's part of the control processes. I would be not transparent if I say that's exactly some of the correspondence we've had with the attorneys was around that – whether every matter and every instruction in respect of a specific matter was costed and budgeted for. So I personally have a concern about that and my experience is that there might have been instances where it was not followed.

Adv Bawa: And that wasn't picked up during the audit process?

Mr van der Merwe: No, Supply Chain did raise it with some of the invoices I saw and they were responded to by Legal Services by referring to the original letter of appointment. But the Auditor General did not, as I said, it doesn't appear to have been to that extent in the scope of the audit.

Adv Bawa: The Nkwinti report was drawn to your attention and it seems as you drew a blank, so let me just clarify that for the sake of the Members. In the summary of judgments the Nkwinti case had been one of those where we had evidence that Ms Basani Baloyi had done the quality check on the report. The report had withstood review up until the SCA, and the legal proceeding that has been pending is a petition that had been filed at the SCA on 9 June. That opposition, from the information that had been provided and on the summary of judgment, is that opposition had been withdrawn and that Mr Nkwinti is no longer opposing. The remedial action is academic because he's no longer the minister.

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

Adv Bawa: It was put to you that the PP’s reports are taken on review and that as a consequence of that litigation costs are incurred in opposing the review. But there are other litigation costs incurred as well, for example, the opposing of an interim interdict pending review or the decision to take on appeal orders of court that set aside reports. Would you agree with that?

Mr van der Merwe: Yes, there are instances. As I said, it is not always. The PP is not always a respondent in these matters and there are interlocutory issues as well that the PP would initiate.

Adv Bawa: Now one of the things you had given evidence on indirect and you confirmed it on cross was that the PP had been instrumental and had done well in bringing the backlog down. But one of the things that I want to ask you is how relevant or how material is the number of new complaints coming in material to that and are there other factors that are also relevant?

Mr van der Merwe: Again, it's difficult to give a short answer to this. What I from my perspective would see is that there are a number of variables and one of the variables that contributed to this is the number of complaints. The workload is less – the least that we had in, I think, since 1999. And the other variables that are in control are the time spent and the amount of resources and people had to put in more. And then also the structures because some of the issues are invariable or outside our control – that’s the complexity of matters, how the departments would respond. So these factors, the workload, the processes, the fact that people had to work harder, those contributed to a reduction in the fact that more time could be spent. Because obviously, if the number of complaints are less, I think we came up to about 4000 investigations. If we just stop at the top level, compare that to previous years, then obviously the resources would have to be divided into that and there should be a reduction by way of the fact that the workload is less and more resources are available.

Adv Bawa: Right. I just want to see if I can put what you said on CIEX in a simple way. Firstly, it's not uncommon for you to prepare documents, and I mean letters or speeches or reports, that the PP puts out into the public domain in her name. Would that be fair?

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

Adv Bawa: Are you only consulted in respect of media queries on matters you’re involved in? Or are you consulted when there's a need for you to be consulted?

Mr van der Merwe: As I said, there are various matters where I have a workable knowledge or expertise, and whenever the knowledge either from an institutional point of view where expertise is needed, I would be asked to assist with a response, even now recently. So I would be requested to give inputs where it relates to legal principles that I can contribute to.

Adv Bawa: Right. And as I understood the debate, it was not disputed that the PP had given you an instruction to draft the proposal to have full control of the central bank for a Constitutional Review Committee and the implication that can only be done by way of a constitutional amendment. And what Adv Mpofu put to you is you put meat to that proposal in this letter. For a moment set aside whether she had the letter or not. Right? But did I understand your submission to say that you wrote this letter reflecting on how you understood what your mandate was, your instruction, whether we call it an instruction or a mandate?

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

Adv Bawa: So the next step of the issue was it was put to you that she did have regard to your letter, and you were placing it in dispute that she had regard of your letter because you didn't know how she had regard to your letter. Was that how I understood your evidence to be?

Mr van der Merwe: Yes, because my expectation would have been if she had regard to my letter, her next sentence her response would have been in response to that letter by saying, "I've noted you do this. Can you come up with ways of how we can propose the amendment of the Constitution?” And that's why my research went into the principles.

Adv Bawa: Now Mr van der Merwe, this all gets put to bed because you don't know if Mr Nemasisi sent the letter in the email on to the PP, or if he simply mentioned to her that Neels had concerns. And when the PP comes and testifies, provides the Committee with the email she received, then that, of course, would be the end of your concerns?

Adv Mpofu: Chair, I wanted to object. Is this cross-examination now, because the witness said the PP will be lying if she says she read the letter?

Adv Bawa: He didn’t say that I’m sorry.

Adv Mpofu: It's been put to him that he doesn't know. That's a different answer now. Is he being cross-examined?

Adv Bawa: That's not what I said. He didn't say that. He said he didn't know and he had those concerns. And he indicated what his concerns were about, and we had gone around in circles on those concerns. And I simply said that if the email to the PP from Mr Nemasisi is provided when the PP comes and gives evidence, then whatever concerns or speculation Mr van der Merwe might have based on what followed on that, of course, he would have to be satisfied that that was the case. Do I understand that those were your concerns?

Mr van der Merwe: Yes, the fact that the PP or that it was accepted by both the CEO and the PP that we would not proceed along the original instruction addressed my concerns. And therefore we proceeded to a separate phase which I didn't have clear indication of how the PP was viewing the submission. Therefore, I proceeded with independent research. Well, not independent research, but follow up research on how I perceived the PP’s instruction to be on saying how we should amend the Constitution.

Adv Bawa: Right. Now you at the time were not aware that the SSA proposal, which eventually found its way into the report, was provided to the PP. I think the date was either 6 or 7 June. It coincides almost the same time as that. Were you aware of that?

Adv Mpofu: What is the SSA proposal? I've never heard of such a thing. It’s the first time at least. I don't know if it's for clarity for this witness, then it comes from elsewhere not from him.

Adv Bawa: Chair, on a shortcut let me take you, it's on page 2583 of Mr Kekana’s affidavit.

Adv Mpofu: No, I’m asking in relation to this witness. About this Rule 16, whatever it is, it's about clarity of the witness, not of Mr Kekana but of Mr van der Merwe.

Adv Bawa: He asked me the question as to what was the SSA proposal. The SSA proposal emanated from Mr Kekana’s affidavit. That was the clarification Adv Mpofu sought.

Adv Mpofu: No Chair.

Adv Bawa: Let me finish Adv Mpofu.

Adv Mpofu: Sorry.

Adv Bawa: The opposition put to Mr van der Merwe was that, effectively, what he had relayed to the PP in the letter is what found its way into the report. What had also been relayed to the PP in that same week, was the proposal which Mr Maiendra Moodley had provided to the PP, which contained the constitutional amendment recommendation. If we're not calling it the SSA proposal, let’s call it what it was. Which we had already heard evidence that but for one amendment is exactly the phraseology that finds its way into the report. And so what I want to clear up with Mr van der Merwe, did he know about that at the time?

Mr van der Merwe: No, Chair.

Adv Mpofu: That’s fine Chair.

Adv Bawa: You also testified that you attended the consultation with counsel after the court application landed. Correct?

Mr van der Merwe: Yes.

Adv Bawa: Was the PP present at that consultation?

Mr van der Merwe: Yes.

Adv Bawa: And was the version that was put to the Committee today indicated to counsel in that consultation?

Mr van der Merwe: No.

Adv Bawa: Yesterday the Constitutional Court handed down judgment in the – unless there’s a rescission – I'm going to call it the final appeal to put to bed the SARS Unit matter. Correct?

Mr van der Merwe: Yes.

Adv Mpofu: Chairperson, I thought Adv Bawa said we're not dealing with current matters?

Chairperson: Let's just allow her to finish and then you.

Adv Mpofu: It’s late in the day. It’s fine Chair.

Adv Bawa: It's a matter that falls within the mandate of the Committee. We had extensive conversations about this. The alleged Rogue Unit matter, which is the last judgement that was pending, was handed down yesterday with a cost order against the PP’s Office. It's the Gordhan-related matters relating to the R15 million, which was discussed earlier on today. This was the last matter of that. That brings to the end of the Gordhan-related litigation in the PP’s Office. Would that be so?

Adv Mpofu: If you're asking me, no, because I'll know. I don't think the witness knows.

Adv Bawa: The point I want to make, other than an interlocutory application relating to strike out, the public PP’s Office had been unsuccessful in all the litigations in that matter. Would that be correct?

Mr van der Merwe: Yes, Chair.

Adv Mpofu: Chair, well, this is now for your edification, that is completely incorrect. Out of that litigation involved cases or counter applications against Mr Gordhan, which she lost with attorney and client costs.

Adv Bawa: That's the application to strike out, Adv Mpofu. That's why I said except that one.

Adv Mpofu: No, well the other applications. That’s fine. I’m sorry Chair.

Closing Remarks
The Chairperson said that the Committee had now reached the end point of the interaction with Mr van der Merwe as a witness to this Committee. Firstly, he wanted to know if there were any remarks or anything Mr van der Merwe wanted to say.

Mr van der Merwe thanked the Committee, Members and all the teams for the opportunity to contribute to this process.

The Chairperson said that, on behalf of the Committee, he would also then thank Mr van der Merwe for availing himself and making a contribution in the area that he did, for consideration by this Committee. Hopefully that would be helpful when they got into deliberations as a Committee. He further thanked Mr van der Merwe and for availing himself also before and during these few days, interacting with the evidence leaders, Adv Mpofu, and Members. They appreciated his time and officially excused him. This was where the Committee would pause until they met on 28 November 2022.

The meeting was adjourned.


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