PP Inquiry day 42: Application for removal of Evidence Leaders

Committee on Section 194 Enquiry

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


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

The Committee reconvened after a two-week break for the second phase of the Inquiry where the Public Protector will present her witnesses. However, the Public Protector legal team had in the meantime brought an application for the removal of the Evidence Leaders from the Inquiry. Adv Mpofu was given an hour to orally present the written application. He stated the conduct of the Evidence Leaders has disqualified them from discharging the duties imposed on the Committee, in terms of National Assembly Rule 129 which states that the Committee should ensure that the Inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable timeframe. The application was based on two complaints:

• During the testimony of Mr Neels van der Merwe the Evidence Leaders had made public the names and fees of various black counsel as well as attorneys, who have done work for Public Protector South Africa (PPSA). By doing so, the Evidence Leaders failed to give prior warning to the advocates and attorneys concerned; give context to the figures in terms of the period for which the fees were earned; highlight the number of matters that each advocate was briefed on and the volume of work done. As advocates, the Evidence Leaders were aware that their conduct was prejudicial to the privacy and dignity of their colleagues and the legal profession as a whole. They knew very well that publically displaying such amounts without proper context would mislead the Committee and create the wrong impression amongst the general public.

• The Evidence Leader, Adv Nazreen Bawa, SC questioning of Mr Thembinkosi Muntu Sithole, which Adv Mpofu described as amounting to a cross-examination. This was procedurally incorrect, because, unlike the Public Protector, they have no version to assert or test by the way of cross-examination. Neither did they have a right to discredit a witness. That could only be done by a person or a party which has a version and a desired outcome which is in conflict with the evidence of that particular witness.

The Chairperson explained that the Committee would have to have an early adjournment as the response by the Evidence Leaders to the removal application had erroneously not been forwarded to the PP legal team yesterday but only to Members. As such, Adv Mpofu and his team would be allowed the afternoon to read the response document, and also prepare their first witness for the following day.

Earlier in the meeting, Adv Mpofu asked for the assistance of the Committee to ensure witnesses appear before the Committee and to subpoena witnesses, as five had already either indicated an unwillingness to present themselves or even to respond to requests to appear as a witness before the Inquiry. Assistance was required to ensure Minister Pravin Gordhan, Adv Thuli Madonsela and Ms Natasha Mazzone appeared before the Committee as witnesses. Although Minister Gordhan, through an attorney’s letter, said that he will indicate his availability sometime this week. The first witness was also unable to appear today as inadequate arrangements had been made.

Meeting report

Chairperson: I want to welcome Members who are here at M46 and on the virtual platform. To also welcome the Public Protector and her legal team. Welcome to the Evidence Leaders. Welcome to members of the media and members of the public on their various platforms. Just to indicate that we are now starting the last set of witnesses of the Inquiry, having concluded the first phase. During this phase we will have an opportunity to interact with the Public Protector but before that, we will be interacting with witnesses that she would have chosen and shared with us. You already have received the few that will start the proceedings. We have set the time and the dates from 28 November to 5 December and then resume again in January – so we have a very full week. We are meeting every day this week until 5 December, which does make sense. We have had good breaks or preparations and other important tasks that would have allowed the space for… So with that, colleagues, again welcome back to the Section 194 Inquiry. Maybe before I proceed just to check if Members on the platform are able to hear us. Hon Mahlaule, can you hear us?

Mr M Mahlaule (ANC): Yes, Chairperson. I can hear you.

Chairperson: Thank you very much. That means we are connected. We would have immediately started today with the first witness of those identified. As you would have seen from the correspondence sent to you, we received a request from the Public Protector applying for the removal of the Evidence Leaders. In response we indicated that would give space for that. Just before we get on to our witness today we will start with that. I indicated in that correspondence, that we will allow the PP legal team to take an hour to speak to that written submission sent to all Members and to give them an opportunity to clarify salient points. Probably thereafter we will, if there are any clarities, Members will seek those and have the Committee converge for a few minutes to discuss that, and thereafter, make whatever ruling or decision depending and either way… And so this is where we are now. With that, I am going to recognise the Public Protector and her legal team to start. Thank you. Adv Mpofu, I now hand over to you.

Adv Dali Mpofu: Thank you, Chairperson. Good morning. Good Morning Hon Members, Evidence Leaders and everybody involved. Chair, let me start by indicating that the application is probably going to take more than the hour. We indicated that to you because that was the timeframe determined before we even lodged the application. So we were hoping that maybe once you have seen the application, you might consider our indication. But anyway, we will cross that bridge when we get to it. Before we get into that, Chair…

Chairperson: Can you just pause there, before you proceed? You are given an hour to make the presentation – I would want to respect that time given. I do not want to take from your minutes, but just to clarify that we do have a standard time in Parliament and the Public Protector will be the best person to know that. Anytime one comes in front of a Committee of Parliament, whether it is an annual report running into 200 pages, there is a standard time given for presentation on the basis that somebody would have sent the written submission well ahead. We never go beyond 45 minutes. We added 15 minutes in addition to that. So I am indicating that the hour is given to you for the presentation.

Adv Mpofu: Yeah… Okay, Chairperson. You know, I do not want to start on a wrong footing with you but what you have just said does not make any sense whatsoever. This is not the first time we are doing an application here and you have never given us 45 minutes before so we cannot start now. We have done applications before. I think for the first one we were given two hours; the other one we were given slightly more. But also, if you say you have standards, one of the standards that govern your conduct here is called fairness. An important part of fairness is consistency. So that is the standard we are invoking. I am saying to you that at minimum you must be consistent. You will remember that when we did the recusal application, you wrote us a letter and you said the application must be on such and such a day… rather, that the written application must be submitted on such and such a day. Thereafter, once you have looked at the application, you will then determine the duration of the presentation, and you did that. And it was the correct thing to do, Chairperson. But this time around you changed your own rules and that is the epitome of inconsistency, in that you gave us a time before you received the application. And we even discussed that at the meeting we had with Evidence Leaders to say, "This is now strange, because how do you know the application might be two pages or 2000 pages or raise two issues or 2000 issues?” You are not a clairvoyant. You cannot see… You cannot determine a time before you even know what… I have never heard of that before. In any process the person – decision maker – will get the papers and then say ‘okay, this will take this long and this will take that long’ and you failed to do that. So one of the things we are going to raise here, in terms of inconsistency is exactly the fact that it looks like now that it is our turn to get into the into the leading of evidence, the rules are being changed. And that is wrong; it is just wrong. You can, of course, insist unreasonably so to sticking to your timeframe. There is nothing we can do. But our duty is to show you that it is unreasonable and unfair and inconsistent and illogical. So that is the point I was making. So there is no point in telling me that is all I have. I heard you the first time. I was just telling you that it is unreasonable. Anyway, before we do that, I was saying that there are issues that I wanted to raise before we deal with the application. And one of them is about… Oh, the first one, I think maybe you made a mistake or you forgot or whatever, or you were not informed that we are not sitting on Friday because of an engagement that we have already discussed. I think you said we are sitting the whole week, but I think that was a slip of the tongue.

Chairperson: That is correct. Thank you for the correction.

Adv Mpofu: Okay. Thank you, Chair. Right. The second issue, Chair – you also made a remark about the witness – we have a serious problem and we firstly need to inform you, but also hopefully get your intervention on it. Again it goes to this issue of consistency. We have the feeling that now that the Evidence Leaders have finished their witnesses, the attitude regarding the witnesses of the Public Protector, has suddenly changed. And it goes to the issues that were raised here from day one – about the handicaps that go with the fact that the Public Protector is attending this process under the spell of an illegal, improper and probably criminal suspension. And therefore, that contrary to what some people here were saying, this is unrelated: it is very related, because it affects how she is able to defend herself in this process. You will remember, Chair, that we had an issue about emails and all that at the beginning, which was thankfully sorted out at a later stage… or access to her emails. Now we are facing different problems in relation to witnesses. As we speak, Chairperson, we have been interacting with you and the Office of the Public Protector for the whole of last week, to ensure that the witness will attend today, excuse me, and at least on our communication with you, be in a position to give evidence at the latest by tomorrow, for the reasons that we would have put in the in the correspondence. To say that that effort has been frustrated would be an understatement. Firstly, we raised it in the backroom meeting with the Evidence Leaders, then we were told that it would be the Office of the Public Protector that has to ensure that the witness is here or the witnesses for that matter. Based on the normal rules that the entity that comes here normally foots the bill, which I know even from my own experience. When we tried to get that, to cut a long story short, the Office of the Public Protector by Thursday informed us that they were not going to assist. We came back to the Secretariat of this Committee. And after some other runaround, we were told I think by Friday late that they would assist or at least attempt to make an intervention presumably with you or whoever makes those decisions. That has not happened. Yesterday when we landed here, the first thing we did was to communicate with Thembinkosi to find out what is happening and only then, I think it was 19:30 we got a message that said… okay, I will paraphrase it. Let me just find it, Chair. , "Dear Nafisa,” that is one of our attorneys, "please advise” so and so – the witness –, "to remain prepared to travel to Cape Town in the morning” meaning today., "I only received confirmation late on Friday and could not get assistance of a travel agent over the weekend. We will attend to it first thing in the morning, regards from Thembinkosi.” This is almost 20:00 last night. I have just spoken to the witness, before coming here, at about 08:30 and he has not heard from Thembinkosi or anybody. He is just sitting in limbo, not knowing what to do. And these are people who are trying to assist this Committee, you know. They are not sitting there with nothing to do. So that is where we are with that matter and it is really regrettable, to put it mildly. And if that is the attitude that is going to prevail, to frustrate the Public Protector from presenting her case, then we are going to have a serious problem going forward. We have observed before witnesses were brought here, accommodated and kept in hotels and travel arrangements made for them to come back – no problems. And now suddenly, there is an inexplicable hitch. Yeah, so that is the problem that we face, Chairperson. The truth then is that as we sit here – I do not know, Thembinkosi is not here, I was told that he is available on the virtual platform – we literally do not know, maybe he knows or you know, what is going on with that issue. So that is the first thing about witnesses, Chairperson. The second thing is that we have as you know, from the list, we have made that request from the witness list to be assisted with some of the witnesses who might not be willing voluntarily to testify. Again, we have seen that happening before without any problems, in fact, probably without any application, at least not that we have seen. But our first experience with the Committee was its refusal to call an obviously relevant witness or who has made remarks about the Public Protector which are relevant to the motion, but that matter is in court, thankfully. So it will be dealt with at a particular level, not directly. As we indicated in the list, we gave you sent letters of voluntary participation to the following witnesses: Mr Pravin Gordhan, Adv Thuli Madonsela and Ms Natasha Mazzone, all of whom, especially the last one, are crucial witnesses particularly to situate the entire charge sheet, so to speak, and some of the controversial issues raised therein, so that we know exactly what we are here for. One witness, Mr Gordhan, has sent us an attorney’s letter, which I think we sent to you, Chair, but the long and short of it is that he is going to indicate, probably this week, about what his attitude is. And the others have not even bothered to respond. The deadline I think was the 21 November, which was last Monday. So we assume that they do not want to cooperate. In which case, if… So, that would then be three witnesses plus the one, Mr Ramaphosa, that I referred to earlier, in respect of whom we had asked the Committee to reconsider its decision, you know, to try and avoid unnecessary litigation. We have also sent a letter to the Acting Public Protector, Ms Gcaleka, who was identified in fact as long ago as the first day or second day of this Committee. One of the Members had actually indicated that people like her should be here – I think it was Hon Hendricks – so that one can understand the chain of command and where the responsibilities lies in respect of some of the issues that have been raised here. She also has written indicating her, let us call it, unwillingness. So those are five witnesses in respect of which we would need assistance of the committee. In your letter, Chair, which you wrote to us, you had said that those processes must be done by 6 December. Which made sense in the sense that presumably the reason why you put that date was so that the December / January break would be used to facilitate the subpoenas without wasting much time. So that is the update we wanted to give.

Chairperson: Alright.

Adv Mpofu: Then lastly, Chairperson. One of your directions was the process of requesting subpoenas, presumably once we received responses from witnesses which obviously according to you should be processed by the 6th which is next Tuesday. And so I am giving you that heads up that we will request… we will make that request in the next few days in line with that. Then there is another set, the last group of witnesses, from which we needed your assistance. And that also features, by the way, although in a different contex, of the recusal application. It is the witnesses who did not finish their evidence. That is van Loggerenberg, Pillay and Baloyi. The last two clearly did not even finish their cross-examination but the Members questions will be interposed. So that is a different set of witnesses, where we are going to need your assistance. Hopefully when… we are raising this now upfront, Chair, for a specific reason, so that we do not have to waste time on this when we resume – all this will result in between now and the break and the resumption. Now coming back to the issue of the application.

Chairperson: Just as you get into the application. Just to indicate as the Chair, we welcome the matters you have placed on record and they will be responded to, but for now I am going to ask you to proceed to the application.

Adv Mpofu: Yes. Well, that is what I was doing, Chair.

Chairperson: I wanted to make sure.

Adv Mpofu: That we respond?

Chairperson: Yes.

Adv Mpofu: Fair enough. Thanks, Chair. Now coming back…

Chairperson: Just before you proceed, pause. Hon Mulder?

Dr C Mulder (FF+): Yes. Thank you, Chairperson. I am just unsure about the time. I heard you say you gave Mr Mpofu an hour – 60 minutes – but Mr Mpofu referred to 45 minutes. I am not sure if there is a misunderstanding. I think we should have clarity on what you are talking about exactly.

Chairperson: No, it is fine. Thank you, Hon Mulder. I am clear about the time. So I mentioned 45 minutes and added 15 minutes. So thank you for that. I will give you that minute back. Proceed, Adv Mpofu.

Adv Mpofu: No, Chair. Sorry, I have not started. I am saying, thank you for that clarification that the 45 minutes actually came from you and not from me. But the point is that the relationship between that issue of the one hour / 45 minutes or whatever it is, and what I have just said is twofold. One is the fact that I have explained to you that it is arbitrary and unfair and unreasonable. Whatever the 45 minute rule may or may not be, which has never… which we are hearing about it for the first time here. But secondly, and more importantly, insofar as that one hour was meant to facilitate the… because you linked it to the issue of calling the witness. So I was showing you that it is also unreasonable in that sense, because there is no point in you rushing us to do an application in one hour because there is no witness, for the reasons that I have just explained. And so if you rush us, you are rushing us just for the sake of rushing us.

Chairperson: Adv Mpofu, I have given you an hour presentation for the application. I am not going to entertain other issues that you are raising.

Adv Mpofu: What does that mean, Chair? When you say you are not going to entertain me, you mean I am just speaking for the sake of speaking?

Chairperson: I have given you an hour to make the presentation.

Adv Mpofu: So I am not allowed to motivate?

Chairperson: You can raise that but I am saying I have given you an hour and that stands. Thank you.

Adv Mpofu: Chairperson, I know. I was here. No, do not thank me yet.

Chairperson: I am saying please proceed.

Adv Mpofu: No, no, you have to listen. You have a duty at least to listen, Chairperson. You might disagree but you cannot refuse to listen, okay?

Chairperson: I am listening and asking you to proceed.

Mr B Holomisa (UDM): Where are the witnesses?

Adv Mpofu: Yes. We just received a message from a witness who says, "Good morning advocate. Just got a call advising a flight at 2pm and pick up at 12pm.” That was from Thembinkosi. That just emphasises the point I was making, which means not only are we prejudiced in not being able to have the witness here because we wanted him to be here so that we could prepare him. But now he will be here, whenever, 16:00 or 17:00 – if we are lucky… if he does get picked up. It is a crucial matter, Chair, even if you do not want to listen. I think it would serve you well to understand that is the crisis of the problem that we find ourselves in, and that has a bearing. It must have a bearing on what will happen before but it looks like you are determined to irrespective of whether it is raining or not raining to stick to your guns, unreasonably so. That is fine. Now if we come to the application. Chairperson, I need to situate this properly, so that when you have your deliberations you understand where we are coming from, and I will try and pre-empt, because I think by now one can expect some types of questions. So I will try and pre-empt them so that we do not have to waste time on irrelevancies about what the application is and what it is not about. But anyone who has read the application, firstly, in your letter, you said it was an application for recusal and we corrected you in that the correct terminology is it is an application for removal and the replacement of the evidence leaders. We say that is a very serious matter, Chairperson, not a disruption as you always refer to issues that are raised legitimately by the Public Protector. And it is important to place it to this proper perspective. At the risk of repeating ourselves, Chair, this Committee is governed by several prescripts, which are not optional, and those are the directives that you have adopted; the terms of reference that you have adopted; and more importantly the Constitution of South Africa that you have adopted as well – maybe not you, directly. And all of those relate to the most important standards – you have just mentioned standards. And the most important standard that binds you – again, it is not optional or a favour that you are doing to anybody – is articulated in the Rule 129(a)(d)(2), which says that, "the Committee must”, when the word must is used, it means it is an obligation, not a discretion or a favour, "ensure that the Inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable timeframe.” So, even timeframes, as I have just indicated a few minutes ago, must be fixed reasonable, not just at the whim of, "well, it is one hour or bust”. It has to be reasonable. In other words, logical and linked to something. But more importantly, the process must be procedurally fair. And what that means again at the risk of repeating ourselves, what that means you have to… If you can go to paragraph 13, we will just come back later. Procedural fairness is not something that is known and defined. It means two things: hear the other side and the other one is nemo iudex in causa sua, which means the so-called rule against bias – and that is the one we are invoking today… the second one. The issue of fairness, Chair, is again, just to emphasise that it is a right to which we are entitled and not something that we have to be constantly begging for is also contained in Section 34 of the Constitution. That is where actually this whole thing comes from. And Section 34 of the Constitution is a short one, so I will just read it out., "Everyone has the right to have any dispute that can be resolved by application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum”. Now we all know this is not a court, but it is another independent and supposed to be impartial tribunal or forum. So whenever there is an issue that can be determined by such a forum, the standard of fairness applies as a matter of constitutional imperative, not as an optional extra. And there was a debate recently, well not so recently, I would say about 10 years ago, as to whether this applies to tribunals such as this, which are not in themselves, adversarial per se. And I was involved in that case. It had to do with the Marikana Commission. It is a case called Magidwana v Legal Aid South Africa. It went from the High Court in Gauteng to Bloemfontein and eventually to the Constitutional Court. And in that case, it was decided, Chairperson, that Section 34 does indeed apply to these types of tribunals. We were asserting that, as a matter of fact, and the other side, the State, were fighting tooth and nail to say, "It is only confined to courts or so-called quasi-judicial proceedings.” So it is settled law now in South Africa that the standard of fairness and procedural fairness should apply here. And that should make sense. That is one of the reasons why the Parliament saw it fit to impose upon you Rule 129(a)(d)(2). So that should really not even be a matter for debate, by the way. But in our experience, it is important to lay that foundation. Now what then has that got to do with the Evidence Leaders? And this is very important, Chair, hopefully, again, to cut out unnecessary debate. We are going to demonstrate to you that the Evidence Leaders or at least the conduct of the Evidence Leaders that is exhibited itself, here or that has been observed by others, including members of the public, is such that if they continue to play that role, then it will be impossible for the standard set out in Rule 129(a)(d) and Section 34 of the Constitution to have been met. Let me try and say that again. We are going to show not that they… We will refer you to the complaints made of professional misconduct and what have you. But we do not want anyone to tell us that this is not the LPC (Legal Practice Council) or Bar counsel or whatever: we know that. So when we refer to these matters, we are not referring for those matters for you to resolve one way or the other the veracity per se of those allegations. We only want you to deal with that which has happened in front of your own eyes firstly, but secondly, the issue of the perceptions firstly of the Public Protector and the perceptions of the public. And that is important, Chairperson, because that is how you test fairness. And unfortunately, again, this is a point which I think has been lost here before. Fairness is not tested in respect of the subjective conduct of the person who is complained against. It is tested against the objective apprehension of the victim, to put it colloquially. In other words, the question is a simple one, would a reasonable person sitting in the position of the Public Protector, who has been subjected to what we are going to discuss now, reasonably feel that she is going to get fairness from a process that is, you know, that is led or administered by the person complained against. So it matters not in that context, whether that person is the Chairperson or a Member, or an Evidence Leader or whatever… or someone at the door who holds the Public Protector from entering the door. But the point is whether that conduct amounts or does not amount to a fair process and whether it is reasonable, and procedurally fair. So I think that is important to dispel any notion that we when we raise these issues, we are raising them for the merits of the complaints. Right. Now and I want to say it upfront, Chair, that the backbone of this application is that, well, not just a person in the position of the Public Protector, the Public Protector herself, is of the reasonable opinion and view and has reasonably apprehended, that if the Evidence Leaders remain in place, it is impossible for her to receive the promised fairness that is promised in the Rule and in the Constitution. And yours is, also as a Committee now, to live up to the obligation and the injunction that the Committee must ensure the Inquiry is conducted in a reasonable and procedurally fair manner within a reasonable timeframe. So the obligation lies not in some other people, but in the Committee itself. It is the Committee that must ensure and we are saying one of the ways in which you must ensure that the Inquiry is conducted in a reasonable and procedural fair manner, is by granting the application for the removal and or replacement of the Evidence Leaders. So that is the context in which this thing is brought here. Apart from the fact of course, that in any event, we have a duty to exhaust internal remedies and make sure that it is raised here, so that the Committee either discharges its legal obligation or fails to do so. But it must be given an opportunity to do one of those two, either to discharge its obligation or to fail to do so. The other issue, Chairperson, which I want to raise also, before I get into the specific examples of the conduct is something that also has seemed to be lost here, which is the issue of public participation. The issue that I raised earlier about the shabby treatment, which has been given to witnesses, and by extension to the Public Protector in respect of her witnesses, is a serious matter because it goes to the issue of public participation. These witnesses are not here for fun, just like all other witnesses, they are here as members of the public in their own right, to assist this process. It looks like this Parliament is of the view that public participation just means placing some advert in the newspaper, and ticking that box and then you are done with public participation. No, it is not like that. It is something that must be at every step of the way, there must be an effort… a deliberate effort to ensure that the public participates. This is not your process. It is a process of the public. This is not your Parliament, it is a Parliament of the public. And you are just given certain tasks, but actually, it does not belong to you. And that alone, Chairperson, is… So, you cannot ignore – well you can because it would not be for the first time. But, you should not ignore the views of the public, including the members of the public who came here in the form of Adv Sikhakhane, Adv Ngalwana and all the other public bodies that have commented on this matter, including, but not limited to the Johannesburg Society of Advocates, the Pan African Bar Association of South Africa. Those are civil society organisations representing the public, and you will ignore them at your peril because the public is watching, whether you really mean it when they say this process is characterised by public participation. And indeed, even the Public Protector in her individual capacity as a member of the public, she herself expects this Parliament to follow the Constitution. She herself expects this Parliament to follow its own rules, its own terms of reference, its own directives. And she is entitled to demand that, by the way, not to ask for favours. And therefore, I am referring you… I have referred you to Section 34 of the Constitution. I am now referring you to Section 59 of the same Constitution, which I have read to you before, but I will do it again. It says, "The National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its committees” including this one, "and conduct its business in an open manner and hold it sittings and those of its committees and public but reasonable measures must be taken to regulate public access, including access of the media, to the Assembly and these committees, and to provide for the searching of any person” and so on. Paragraph two says, "The National Assembly may not exclude the public, including the media from a setting of a committee unless it is reasonable and justifiable to do so and in an open and democratic society". What that means in simple English is that every activity of this National Assembly and its committees must involve an element of public participation. And that is one of the issues we raised here when we refer to the public comments that have been made in respect of the issues that were raised. So if you can then please go to page five. Right. So we then now go to the heart of the application, Chair, which is the conduct that is complained. And we start with what we call the main ground, which to use the terminology we have employed before in a different context, was the proverbial last straw because there were other issues that we raised with you many times before. We are aware that there were issues that were raised by other political parties. And before, there was an application last month or a month before, for the recusal of the Evidence Leaders, brought by others. And we made it clear in our letter to you because, again, unfairly, you were saying to us, there was a recusal application and you, meaning the Public Protector, you did nothing or we said nothing. Well, we want to tell you, we did say nothing. And that was deliberate. We stayed away out of the fray of that particular application, which was brought by the UDM, I think primarily, and also the EFF, because whatever gripes those parties may have had, in our estimation, at the time, were issues that they were uncomfortable with, which they were entitled to raise as Members of the Committee. But there was no direct reference to the Public Protector. Obviously, there will always be an indirect reference to her in anything that is happening in this Committee. But we deliberately – I just want to put that on record; it was not a mistake – deliberately stayed out of that entire… You would have noticed that in fact, by the way, you never even invited us to comment, which is another story. We were watching it like other people, and the Evidence Leaders were given an opportunity to comment on it. And we were not given an opportunity to comment. Which, Chairperson that brings me to another issue, which I would like to raise with you, and maybe you can respond for the benefit of those who are watching, or those who may not be aware of the interactions we have had. When you wrote to us on Monday, last week, I think it was the 21st in response to our notification of this application, you gave us in typical fashion an extremely unreasonable deadline of having to file the written application by 17:00 on 23 November, well knowing that we were preparing to go to the Constitutional Court on the 24th, which we reported here. But you gave us that timeframe of less than 48 hours, so to speak. And because we did not want to be set up for saying that we did not meet your deadlines, however unreasonable, we might think they are, we met that deadline and we sent you the application at that time, or before that hour. One of the reasons you had given us for giving that deadline was that it would then enable the Evidence Leaders to respond by Saturday 26th, so that if fairness were to be observed, we also have the benefit of their response and prepare accordingly. As I speak to you, we have not received that response which was promised to us for the 26th. So I do not think you give them deadlines, but if you gave them any indication that they should do so it means that that deadline has not been met, or it has not been sent to us. I do not want to accuse anyone. Maybe they met the deadline but it was not sent to us – which would also be meaningless. And yet you imposed deadlines on us in the manner that you just did this morning. No explanation. You do not say to us ‘the Committee was supposed to give you a response on Saturday. You do not have it for this and that reason, and therefore, whatever…’ No, we are just, you know, not human enough to deserve those kinds of explanations. So we do this application, as you forced us to do now, without even the benefit of that. And when it is given to us, I am quite sure, either you will give us two minutes to read it, or you will tell us whatever you want to tell us. But that is the kind of treatment that we have come to expect in these quarters. Anyway, coming back to the conduct, Chairperson that we are complaining about. We say at paragraph 21, and I will try and read out some of this, just to save time, "On 2 November, during the evidence of Mr Neels van der Merwe’s testimony, the Evidence Leaders caused the names and fees of various black counsel and attorneys who do work for the Office of the Public Protector to be displayed during the Inquiry, while knowing very well that the proceedings are aired on YouTube”, you can add to that television, sometimes on live television, certainly on channel 408, which is totally all watched by millions of people., "The Evidence Leaders failed to give any prior warning to the advocates and the attorneys concerned. They also failed to give context to the figures in terms of the period for which the fees were earned; the number of matters that each advocate was briefed on; the volume of work to be done; complexity of the matter; and the applicable tax deductions and other associated expenses. And we say, "Furthermore, the witness, through whom the evidence was led testified that he only assumed the position of Senior Manager Legal Services on 1 August 2022. He testified that Mr Thembinkosi Muntu Sithole is the person who had been in charge of the legal department. Despite the fact that Mr Sithole was one of the witnesses who gave testimony, the Evidence Leaders decided to lead the evidence in question from someone who clearly did not have personal knowledge of such evidence. This was bound to be problematic. There is no suggestion that Mr Sithole was unwilling or unavailable to deal with the evidence. After all, it was during Mr Sithole’s evidence that Mr Kevin Mileham made the initial statement which led to the leading of the said evidence. That is the famous list of ‘those who benefited’. And we say that, "The Evidence Leaders are themselves advocates, and they knew that their conduct was prejudicial to the privacy and dignity of their colleagues and prejudicial to the legal profession at large. They knew that their conduct would cause professional harm to the advocates and attorneys in question. Furthermore, Evidence Leaders knew very well, that flighting such globular amounts without proper context would be misleading to the Committee, the public and to anyone who watched the proceedings and paint the incorrect picture, which was originally sought by Mr Mileham, who had referred to the practitioners who had ‘benefited’ from the legal fees paid by the Office of the Public Protector.” In other words, the Evidence Leaders then advanced the cause of Mr Mileham, wittingly or unwittingly, whatever he wanted to communicate by that terminology., "In some instances, the amounts flighted were not correct, because the Evidence Leaders did not take time, at least to consult the advocates and attorneys concerned.” Let me just pause there, Chairperson. This is a very serious matter. We know that it is now common cause that the figures were inaccurate in many instances – that has been admitted by the Evidence Leaders. It is also relevant to the so-called apology, which was given by the Evidence Leaders because their apology, which you will remember, was not accepted by the people to whom it was directed because they did not think that it was genuine. But the following day – it was made on the 10th and on the 11th it was qualified and restricted – the Evidence Leaders said, no, they did not apologise, they only apologised about the inaccuracies. In other words, they did not apologise for the hurt and all the things that were said here. And that alone should at least be worrying to a reasonable committee. But the crucial thing about that, Chairperson, is that those inaccuracies to an inquiring mind should go a long way because they say two things. One, what other inaccuracies have been bandied about here, where there were no people who are protesting about them, for them to be corrected? That is the first thing. But the second and most important thing is that and you do not have to take my word for this because I did read out extracts that shows the duties of advocates at least to each other – this is the issue that was raised sharply by the persons who addressed you here – that the Evidence Leaders as practising advocates, because that is why they were chosen. Otherwise, you could have done this yourself as a Committee and led the evidence yourselves. But the reason you wanted to have advocates is because you wanted people who readily and automatically understand the rules, and the distance and the arm's length and all that, because that is the training. It was not because Parliament just wanted to waste money and pay advocates. It wanted to get that particular professional distance, if you like. Otherwise, you could have just chosen one of the Members to be the Evidence Leader. Now we have demonstrated to you that one of the duties of advocates is to be collegial. And that simply means that the Evidence Leaders should have called their colleagues and say, ‘Colleague, we have a client here called the Committee. You know, the rules. We do not call the shots. If the client asked you for an unreasonable thing it is the fault of the client, so to speak.’ Anyone who has ever practiced law will know that happens. But that can never remove the duty of me as a practitioner, to say to the colleague ‘Look, tomorrow, I am going to be in court. There is some witness who says they saw you in some place where you should not have been and I going to have to put that to the witness.’ It happens all the time. Why is that important for your purpose, Chairperson? It is important, because had that happened, the inaccuracies would have been corrected: you can be sure of that. That if the Evidence leaders had called Adv Sikhakhane or Adv Ngalwana, and said ‘I am going to do this’ they would have had some kind of discussion but in the end, they might have said, ‘Oh, well, you have to do what you have to do. But let me just tell you, those figures are wrong in this way and that way and that way’, and that would have been disposed of at that level. So it is the failure… This thing about the correctness of the figures is exaggerated. It is a complete irrelevancy, from any other point of view because it does not matter what the figure is, the imputation of looting remains the same, number one. But number two, this issue that I am raising, the failure to communicate with the persons also remains the same. So that is a major transgression which is done in your name as the Committee. And we say, at 26, "Had they done so, it is reasonable to assume that such inaccuracies would have been avoided. The Evidence Leaders' conduct sparked confusion and mayhem in the country and in the legal fraternity. A screenshot containing the fees and names of concerned advocates and attorneys predictably went viral on social media, to the detriment of the family members of the concerned attorneys and advocates. The persons involved were also exposed to criminality and other forms of harassment and insults.” Now, again, this might be a laughing matter for those who are not exposed to these things but anyone who lives in this country knows that if you portray somebody as having some largesse, whether that person is an advocate or an attorney, or a farmer – we hear all sorts of things about how farmers are exposed to criminality, because of the belief that they are sitting there with some, you know deserved or undeserved loot. But these are realities of our society. And those who are concerned about things like that should not only be concerned when they affect White farmers. But the exposure of anybody to those kinds of dangers should be of concern to any self-respecting South African. And this is what happened, Chairperson… Put aside the fact that all this, by the way, was completely irrelevant or at least we will know when Ms Mazzone comes here, what she meant, whether in any event, she wanted to deal with anything to do with legal fees, or whether, as it says in her affidavit, rather, in her charge sheet, she was dealing with legal costs. So all this could be really for absolutely no value whatsoever to this Committee, because it deals with a topic, in any event, that is not in the charges. But that is a matter for another day. We say at 29, "The Evidence Leaders failed to recognise or acknowledge once it was pointed out that evidence was irrelevant in that it deals with legal fees, while the motion of Ms Mazzone refers to legal costs, which is a different thing, as correctly conceded by Mr van der Merwe.” We say, "They failed to recognise or acknowledge that the evidence was irrelevant and had nothing to do with the so-called wasteful and unauthorised expenditure”, which is the sting of that charge. That is why advocates were accused of looting. And, "to inform the Members that even if the display of the evidence was necessary, which is denied, there was absolutely no reason to include the names of the practitioners.” We have already gone through this and Adv Sikhakhane and others also explained it, that this was not an attempt to hide evidence or to make sure that it is not… if the Committee thought it was relevant, rightly or wrongly, it could have been done without attaching the names of the innocent people. And again, the witness, Mr van der Merwe conceded here that there was nothing untoward in respect of each of the persons whose names were brandished here. And we say, "they also failed to apologise even when the hardship associated with their conduct was explained. They elected to limit their apology to the issue of inaccuracies”. I have already addressed that. It is a very serious matter. Now one of the most important things is what we said at 29.5 because that involves both you and the Evidence Leaders at the same time. It was, for me, at least the most remarkable thing to witness. I must say that because you, Chairperson, said to the advocates who addressed the Committee here, that you had received their document, and you would respond to them in due course. But the following day you reversed that and you were hostile and shouting at us for no reason when we were simply reminding you that you had made an undertaking to those advocates to consider the submissions. So you could not very well reasonably repeat exactly that which you had said. You say to people, ‘okay, wait, we will consider your, your grievances.’ And then the following day, you do exactly that which you said, you are going to consider. What if, when you consider it, you find that this was the most diabolical violation, but you have just repeated willingly and unprovoked? And that goes to the Evidence Leaders themselves, because at least once they had listened to their colleagues, and their pleas, they should never have participated in the repetition of that conduct, even if, in this case, the client was insisting on it because there is a limit to which you can exercise your own professional judgement. And that for me indicated, firstly, that such apology as there might have been was, as the other colleague suspected, definitely not genuine and certainly not backed up by the repetition. I mean, you know, even as parents, I am sure, that would be clear, because if you said to your child or somebody else or anyone, whether they are a child or not, that this should not happen. And then you say, ‘Okay, we will consider that’, and then the following day, you do exactly that, which is still under consideration. It then means you do not take the person seriously, who has taken the trouble to lodge the grievance to you. And we say, "Chairperson acted outside the scope of his duties in shouting down objections by the Public Protector and unilaterally taking decision to allow the repetition of the exercise on the 11th, while he, the Chairperson, had requested for written representations on the issue.” And we raised that in context but the focus of the application is on the role of the Evidence Leaders, which I have just explained now. Now Chairperson, if you allow me to just refer you to some of the…can you please go to RA1. This is the document which you had asked for, and which as I say you breached even before you had received it. And these are the words that were used by members of the public and some of them we used here in this room, but certainly used out there about the conduct of Evidence Leaders. And these are people who are clearly neutral about this, unlike the Public Protector who might be accused by you to be saying… feeling this way because she is the affected party. In other words, you must understand that if other people out there could feel like this, then how much more for the Public Protector who was the direct victim of this. If you go to paragraph three, they say, and I quote, "But we are also here to alert you that people like Ms Bawa, a supposed colleague, can abuse such an important process to prejudice their colleagues and to fight battles that have nothing to do with your constitutional mandate about which you are here concerned.” And at paragraph four, they say, "Ms Bawa knowingly and purposely brandished our names without any context, read out alarming figures she submitted was the money we have been ‘given’ by the Public Protector. She knows that counsel in our referral profession submits their fee notes to the instructing attendants for payment for legal services rendered.” Number six, "Ms Bawa’s intended theory to portray black professionals as corrupt simply because she does not like them. We reject as unprofessional her conduct to use her position in front of this august structure to further a stereotype that should be vanquished. We reject her cruelty to condemn what us, particularly black juniors with whom we work, to be perceived as corrupt when we do our work just as she and her white friends do in the profession.” Then at paragraph seven – I am just jumping for time – says, "A person who we regard as a colleague did what she did last Wednesday knowing full well that the public and indeed some of you may not have been aware that some of her figures are wrong and she omitted to the important context of the period over which the figures were accrued, even if they were accurate.” Number eight, "Ms Bawa hung us out to dry in her attempt to perpetuate stereotypes that black professionals are looters and that their knowledge is of no value that should be paid for. A far more useful comparison for the purposes of this process, I venture, would have been the legal fees paid to each of the white advocates and white law firms that rendered legal services to Madonsela.” And then, number 10, and this is important because nobody who lives in this country really can say, ‘Oh, we were shocked that this thing was on social media and so on.’ We were not that naive. It says, "Predictably, she did find fertile ground in the Daily Maverick that now characterises our fees not as having been entered for legal services rendered but as monies having been ‘funnelled through Adv Mkhwebane.’ Her theory seeks to use this important process to perpetuate an old racist stereotype that Africans are forever children who require policing by other races, otherwise, they will be up to no good. Her theory is indeed dangerous and constitutes an antithesis of the democratic mandate of this Parliament. And then I jump to 13. "From our vantage point, it is hard not to conclude that this was what Ms Bawa intended.” And then it quotes the newspaper articles that bandied… spoke of these people as ‘RET-tricksters’ and ‘foes of the Constitution’. At 19, it says, "If you cared to check their fees, you will be surprised by the double standards of these people that have bestowed upon themselves the duty to police black people, they regard as inferior, irrational and childlike beings that require supervision of the superior races, and those who have been elected to be an appendage to whiteness.” And then at 22 it said, "As for Mr van der Merwe,” and this is an issue we raised with you, Chairperson, "his conduct is astounding. On 16 August, I as Muzi Sikhakhane, SC consulted with him in respect of a huge matter I was doing in the Office of the PP. I have since withdrawn from this matter, which is being heard as we speak in the Bhisho High Court. Not once did he indicate to me that during his testimony, he would be flighting my name and my supposed income in the full glare of the media and the public. He also consulted with Ngalwana, SC, and omitted to alert him…” and so on. You will remember this is a matter which I also brought to your attention. And there is a letter from the Acting Public Protector, which confirms that Adv Sikhakhane was forced to withdraw from the matter in terms of the rules, which I quoted to you. Lastly, paragraph 23, they say, "Chairperson, both Ngalwana, SC and I here to set the record straight and to assure the public and yourselves as a representative of our citizens that despite Ms Bawa’s cruel and deliberate display of our names, we have done nothing wrong. She carefully selected those of us who she seems to have for some reason, sought to discredit. She must pursue her own stereotypes outside of this forum. Her conduct supports the justification of the structure of domination through racist myths and prejudicial innuendo against black colleagues.” And there we pick out the issue that, "she must pursue her own stereotypes outside of this forum.” And that is, as it were, the gist of our application. Then, Chairperson, if those people again, maybe like the Public Protector might be accused of, what do you call it, protesting too much because their own names were brandished. Well, then here is RA2, which is letter from the Johannesburg Society of Advocates. That is the largest Bar in South Africa and certainly cannot be accused of having any particular interest or bias in this matter, or inherent bias or self-preservation or whatever else can be said about the other people. They say… Can we go to a fourth paragraph? This was a public statement which they made and released. They say, "During the course of his testimony, Mr van der Merwe, testified in respect of a spreadsheet setting out the professional legal fees of certain advocates. These professional legal fees were said to have been incurred by the Office of the Public Protector between financial year 2016 and 2022. The JSA notes the purported reason for the evidence having been led "to provide the Committee with an indication, in broad terms, as to what the Public Protector was paying in relation to legal fees”, there we go again... In other words, the irrelevancy, "and which matters were regarded as priority on which limited funds were to be spent.” Then if you jump to the next paragraph – this is the important one. Its concerns… Okay, no. Let me read the other one. It says, "In seeking to achieve this purported objective, evidence in respect of a selected few advocates was led. In doing so the names and fees of the selected few advocates were disclosed, singling out of the selected advocates concerns the JSA.” And here is the gist, "It concerns the JSA because it was because no worthy justification was provided for having singled out selected few advocates”, very important. "No worthy justification”… And that means they had listened to all of the justifications that were made here, but none of them held any water. It says, "The nature and extent of the professional services rendered by the selected few advocates was not disclosed”, which we now all know, "nor the time period within which those services were rendered.” This is crucial. So it is one thing if you say somebody ‘benefited to the tune of R2 million’, that is a big wow. But if you explain that was over a period of six years, and they did 200 matters at R10 each, or whatever the correct difference is… I mean the multiplication is, then you are clearly misleading, deliberately so. Now here's the important crux of what the JSA was saying, Chairperson. "This seemingly malicious disclosure of evidence presented as it was, is regrettable.” Now, that is not something that advocates of this calibre and this… such a big Bar, can make likely. An allegation of malice – malice is the worst form of cruelty that you can mete out against a fellow human being. And that was the view that this was a malicious act. And then, if you jump two paragraphs, "The JSA believes that it was inappropriate to disclose and discuss the names of fees of selected few advocates in the manner the Inquiry permitted”. In other words, the Committee permitted something that was inappropriate. "Such conduct is highly prejudicial to legal professionals and to the repute of the profession.” Another very serious statement. Bringing the profession into disrepute is not something that must be made light of. So it was not just the advocates concerned but the profession itself, which was brought into disrepute. "Such conduct is highly prejudicial…” sorry. "It also negatively affects the rights of advocates to practice their profession as guaranteed by Section 22 of the Constitution of the Republic of South Africa. "So that is a third section – I have referred you to Section 34, Section 59 and there is also Section 32. Then they make the obvious point that, "It is disconcerting, especially in public proceedings followed by the nation and beyond the South African borders and widely reported by the media”, that is the point I made earlier. The gist, for your purposes, Chair, is the last paragraph. "The singling out of these few selected advocates having executed their professional application is improper, and unfair”, right?, "Improper and unfair”. When you see ‘unfair’ your sensibilities of justice should be provoked at least… I mean, you know. And they say, "The National Assembly should not tolerate such conduct in its proceedings.” That is really what we are talking about. The National Assembly, here represented by you, as a Committee should not tolerate such conduct. So if you tolerate it, that is fine, which we suspect you will. But the public feels that you should not tolerate such malicious conduct. And no amount of voting to say that the thing was not malicious and so on will change it from what it is or what it is perceived as. I have made that point before. If you vote or abuse majority numbers to vote that "we are currently sitting in Spain" does not mean that that is true. It does not mean you are correct, it means you are many; it does not mean you are correct, it means you are many in your incorrectness. Then the next is a statement by PABASA, again a reputable structure of the profession. It is a newly-formed progressive Bar. So you have heard from what we call the traditional Bar. Now this is what PABASA says, "The first part of the spreadsheet in the screenshot does not indicate a time period during which those fees were paid, nor does it indicate what cases these amounts are for, how many cases were involved” and so on. And then the last sentence, "Presenting the information in this way, in public hearings, which are live screened, inevitably allows this information to be presented in the public domain out of context with all the consequences that flow from this.” ‘Inevitably’, the other one said ‘predictably’ so it is obvious. And then the last sentence says, "In fact, on social media the screenshot was circulated with the title ‘Mkhwebane and her friends were looting the office’ – all that was inevitable and predictable. Then the next paragraph is the one that starts with ‘while we accept’. It says, "This has a direct and adverse impact on the public perception”, which should concern you, "of the professional integrity of the counsel listed on the spreadsheet and ignores the commercial reality that counsel provide service in return for a reasonable fee which is reflective of their expertise, experience, knowledge and skill. It plays into the unfounded narrative of black counsel ‘fleecing the state’ which is reflective of the stereotyping that we continue to see in the media and in the profession. This must stop now.” How does it stop? By this Committee taking action and not ignoring its obligation in Rule 129(a)(d). The last one from PABASA says, "The Section 194 proceedings are public and all evidence presented by Evidence Leaders is livestreamed. It was thus inevitable that extracts from evidence will be shared widely on social media. Greater care needed to be taken by the Evidence Leaders and Parliamentary Committee to avoid the negative and unfair consequences of the screenshot. For example, it is not clear why the names of the advocates who were paid the amounts each was apparently paid, is relevant to the Section 194 Inquiry.” This is crucial. So relevance in the secondary sense, even assuming the Mazzone motion, was what it was not. And it says, "A simple globular amount of counsel’s fees for each matter could have achieved the same purpose without sensationalising the names of particular counsel, who were simply doing the job we are all paid to do for our clients.” And that is signed by the Chairperson and Deputy Chairperson of that body. Now the last annexure, Chair, is the letter from the CEO of Public Protector South Africa to Adv Sikhakhane, regarding his withdrawal from the matter of Oscar Mabuyane. And there basically is some kind of mea culpa. They say, "Evidence presented at the Section 194 Committee is not at the insistence or within the control of the PPSA leadership”, in other words, it is at the insistence and the control of the Evidence Leaders. Paragraph seven, which is more important, because it goes to the conduct of the Chairperson as well, "while the PPSA fully appreciates the concerns as encapsulated in your letter, it is noted that the matter was raised directly with the Committee on the 10th. Chairperson, Mr Dyantyi, indicated that Members of the Committee will not engage on the concerns raised by you and Adv Ngalwana on the set date and will await formal communication on this matter.” As I have indicated, while that was happening, you simply just repeated or allowed the conduct to be repeated. So that is the gist, Chairperson, of the conduct, which clearly has caused a public outcry, rightly so, but is associated with things this Committee should not be associated with: racism, malice, improper conduct, unprofessional conduct, the perpetuating of stereotypes, the predictable prejudicing of people’s rights, breach of Section 22 of the Constitution, you name it. I am sure this Committee would not be proud to be associated with that, or at least to be seen to turn a blind eye to that litany of complaints from members of the public. So that is, I mean, it would be… even a child would understand that the that kind of conduct goes not just to bias as such, but goes to conduct which should not be associated with any democratic Parliament anywhere in the world. But we then go to B2, Chairperson, which is the issue of the cross-examination of witnesses because as I said, that was the last straw of the issue I have just dealt with. But even before that, there had been conduct which was…which should concern any right-thinking person. And the first one is that, "the Evidence Leaders violated the Directives by cross-examining Mr Thembinkosi Muntu Sithole, a witness who was called and prepared by the Evidence Leaders to the extent that the witness felt unprotected by the Chairperson, until he cautioned the Chairperson to be more in control of how witnesses are questioned. This occurred despite an objection from the legal representatives or the Public Protector, who brought it to the attention of the Chairperson, that Adv Bawa was, in fact cross-examining the witness. Now in fairness to Adv Bawa, she never denied that she was cross-examining the witness, it was only the Chair who tried to do that. But I think what her assertion was that she was entitled to do so. Well, she was wrong about that. But at least the actual conduct, no one who is trained in law would mistake what cross-examination is, as symbolised by expressions like ‘I put it to you’ and so on. But let me put it this way. It is not just a statement like ‘I put it to you’ that indicates that this is cross-examination. But the most important thing is actually Evidence Leaders have nothing to 'put it to you'. Evidence Leaders are not prosecutors, and therefore they do not have a version to put to any witness, you know. The ‘I put it to you’ statement is meant for a practitioner who puts a version of their own side to the witness, so that that witness must be seen to have been given a fair opportunity before that side, as it were, puts its case. It is very simple basics: Law 101. So the mere fact that an evidence leader puts it to you… that it means we're already there, you know, down the slippery slope. Now Chairperson, as you know I said to you, it is not just the Constitution and the directives, the terms of reference… any commission, by the way, this is a democratic Republic, so nobody just does something out of the blue, you do things within the confines of that which has been circumscribed by whoever delegated the power to you. Your Terms of Reference, say, at paragraph five, thereof, "The Inquiry is inquisitorial in nature, and the Evidence Leader does not act as a prosecutor. "Now that is fundamental, Chairperson. It is so fundamental, I do not even know how to emphasise it to this Committee. But let try and break it down. Prosecutors – and I do not have the time to give you the entire law of prosecutors – but prosecutors have a duty, even prosecutors, let me put it that way, have a duty to ensure that a tribunal is given fair information, that the fair trial rights of the person are preserved, and that they place in front of the criminal court, even evidence that might be helpful to the accused. That is… A prosecutor in the first day of training gets told that is what you do. If you are found to have not put any evidence simply because it is going to help the accused then you are not discharging the duties of a public prosecutor because you are now no longer representing the state, you are representing yourself. Now if that is the case for even prosecutors, remember, Evidence Leaders are not prosecutors. Now when they do not even meet the standard of a prosecutor, then what have we got left. Chair, as I said we do not have time to do all the cases but I can just read out to you some of the extracts. There is a case called S v (?). It says there that the court insisted that the prosecutorial role was different from that of counsel or an attorney representing a client. Let me pause there. So the difference between the Evidence Leaders and us is that we are representing a client, they are not representing a client. So the standards by which they are supposed to operate are even different from us, let alone from prosecutors. It says, "The prosecutor stood in a special relationship to the court since their primary duty was not to procure a conviction at all costs, but to assist the court in ascertaining the truth.” Another crucial difference. So even a prosecutor, their duty is not to secure a conviction. But the conduct of these Evidence Leaders has been that their duty is to secure a finding of guilt against the Public Protector. So they have not even met the… even if they were being charged by the standard of prosecutors they would have failed, let alone even the highest standard of evidence leaders. They say that, "such practice was said to the court to be wrong where prosecutors act contrary; wrongly supposes an obligation on the part of the accused person to explain the motive of false accusations by their accusers.” But in another case, Chairperson, called Porritt and Another v National Director of Public Prosecutions, the following was said, "The standard used there is different from that which is used for judges and magistrates”, which is obvious. And Tshiqi JA writing for the unanimous full bench noted that, "In our adversarial system, the role of the prosecutor makes it inevitable that he or she would be perceived as biased.” I will say something about this, and I will say it now. What the Supreme Court of Appeal was explaining there was that although there are these standards, and the prosecutor is not really representing the state or the people as they say in America: the people versus so and so. It is inevitable, because that system is adversarial, it is inevitable that the prosecutor is seen to be representing a particular side, even if that side is the people. But here, there is no such leeway when you are dealing with the Evidence Leaders. They cannot even be seen to be anywhere between being biased. It says, "It was noted that prosecutors are required to present the case for the state fairly and dispassionately, even prosecutors. However, the fact that prosecutorial functions are carried out vigorously and zealously, that a prosecutor is partisan and might not hold a very strong view that the accused is guilty cannot provide grounds for recusal. It follows that the SARFU test is not appropriate, that is what I was telling you about, the one of judges and magistrates. And it says, "however, recusal of a prosecutor on the grounds of bias or apprehension of bias arises where the bias of the prosecutor affects the accused’s right to a fair trial.” That is the gist. That is what the Supreme Court of Appeal said. In other words, all this may or may not be perceived or whatever but the minute it affects the procedural fairness rights of the person, then the prosecutor must be removed. It says Tshiqi referred to a case in Zimbabwe of Smyth v woKunze, where removal of the prosecutor was necessary, because the accused fair trial right was placed in jeopardy by the vindictive manner of the prosecutor and his dishonesty in deliberately misleading the court. So conduct unbecoming as it were. The judge said, "sufficient structural guarantees in South Africa to ensure that an accused’s right to a fair trial is protected irrespective of whether the prosecutor concerned is an employee of the NPA, or an outside counsel funded by SARS or any other entity.” So even if it is outside counsel, like in your case, the standards apply. So Chair, this is the most crucial submission, which is that your terms of reference, your directives say that the Evidence Leaders, by the way that states the obvious, should not act as prosecutors. In other words, you yourself as Parliament have decided the standard. You say they must not act as prosecutors. But what we are busy showing you is that the standard of Evidence Leaders is even higher than that. But if they cannot even jump this hurdle, which is lower of prosecutors, then it is impossible that they could have jumped the higher hurdle of Evidence Leaders – I mean that is just a matter of logic. If anyone who has ever watched high jump at school will understand if you cannot jump one metre, then you surely cannot jump two metres. So if you fail to jump even the lower bar, then as a matter of logic, you cannot be seen to have jumped the higher bar. So that it was happened there, Chairperson. The issue of that cross-examination, which is not allowed by any standards. There is a reason: this is the reason, what I have just explained, why your directives say at 6.8… if we can go to 5.1. I say, Chairperson, "There is a very good reason why the applicable Directive clearly differentiate between the right of the Public Protector to cross-examine and the right of the Evidence Leaders to put questions". So that terminology was deliberate in your directive, which you adopted here in July. It says 'we have a right to'; it makes the point I was making that we should even be judged by a different standard. "The Evidence Leaders have no right to cross-examine simply because, unlike the Public Protector, they have no version to assert or test by way of cross-examination. Neither do they have a right to “discredit” any witnesses. That can only be done by a person or party which has a version and a desired outcome which is in conflict with the evidence of that particular witness. That is the sole purpose of cross-examination. For that reason, and to clearly illustrate this important point". So unless if you have an objective and outcome that you want, you cannot put a contrary, so-called contrary version, to the one that you think is helpful to the other side. And we say Clause 6.8 of the directive there makes that clear. It says, "After the Evidence Leaders have presented the evidence of a witness, the Public Protector may cross-examine the witness.” But look what it says when it comes to the Evidence Leaders at 6.16, " After members have posed questions the Evidence Leaders may ask any questions arising or seek clarity from the witness in relation to questions posed to such witness, whereafter the Chairperson shall excuse the witness” That is it. Once the witness is excused, there is nothing more that you can do. So the Evidence Leaders have a right to do two things. One, pose questions arising or seek clarity – that is after the Members and… sorry, I will find the other – there is another reference that is missing here, in paragraph six, and that is the one where the Evidence Leaders also put questions. But anyway, I think everyone, here now, knows that there is nowhere in the…

Chairperson: Thank you, Adv Mpofu.

Adv Mpofu: No, Chair. I am still left with…

Chairperson: I am not asking for that. I am now saying thank you, Adv Mpofu. You must listen to me, as a chair.

Adv Mpofu: Okay. No, I am saying, Chair….

Chairperson: No, no, wait Adv Mpofu.

Adv Mpofu: I know you want to have tea. I am saying, can I just finish this?

Chairperson: No, no. Do not anticipate what I am going to say. This is what is going to happen now. The time is 11:31. We are now going to take a break for fifteen minutes, when we come back, the following will happen. Firstly, we started at 9:30. And as a Chair, I made remarks until 09:37. I handed over to Adv Mpofu at 09:38, and used that time to place matters on record, including changing the time. At 10:00 we had an audio problem. We resumed at 10:06. At 10:14, Adv Mpofu started with the application, and I have given him that hour. At 10:14, that would have been the end of that hour: I added fifteen minutes, until 11:31. I am making that point to say we're taking a break now. That is the time I have given to Adv Mpofu – I am not giving any additional time. When we come back, I am going to ask Members to seek clarities, if there are clarities that they need, and thereafter have a brief session of the Committee to discuss as a Committee. We take the break, thank you.

Adv Mpofu: Chairperson, before you take the break, I want to indicate that I am not finished with my presentation or making my application as I indicated. So whatever you do, henceforth, must be on the understanding that I have not finished and I have some very important submissions still to make on this important application. And in fairness, you should allow it, if I were you I would allow it, at least to be finished, even if we know what the outcome is going to be.

Chairperson: Thank you, Adv Mpofu. The point I am going to make is that we have received your written submission, we have read it. Giving you an hour to make that. I am giving no more time on your oral presentation. Thank you.


Chairperson: For all of you Honourable Members, I would have outlined what would happen immediately after tea break. I also had to attend to a very important matter, that was raised quite sharply as a matter placed on record by Adv Mpofu. There is an issue raised that the response of Evidence Leaders, and I have seen that Members have received that. There seems to be a gap, and it is quite a serious one, that the Public Protector team has not received that response. It is important that we close that gap, so that their response is complete, or their presentation is complete. So this is what I want to suggest, Members, and I will hear from you. It is important that when we deliberate as Members in our own time as a Committee, you have everything – there is nothing missing out of that. The Committee Secretary had an oversight on this issue for not sending, at the same time he was sending this to Members, to send to Public Protector team the response of Evidence Leaders, which on its own is also quite a comprehensive response. The Committee Secretary is not here today as he was taken ill this morning, though has remained on the virtual platform. I am not happy about that. I am not happy that that important aspect was not ticked-off. There is no other way to explain it. But we do need to have a remedy for it. That remedy, therefore, colleagues, suggests the following: the Committee Secretary will immediately send, you can argue that the documents that are sent to Members are public document, but it has to be formally sent to the Public Protector. So that immediately must be sent to the Public Protector for them to peruse. I indicated that Adv Mpofu was also going to do the opening arguments today. I think it is only fair that they are given time to look into the response sent. Therefore it would not be fair for us to continue as a Committee to deliberate with that gap. It suggests that there will be no need for us to proceed and do that. I am asking that the Public Protector team have this afternoon to apply their minds to the sent response of the Evidence Leaders. Then overnight or early in the morning 8:00 submit their written response to what they received. Hence I cannot take any more time from them for Adv Mpofu to make opening arguments, so we resume tomorrow. In the same way you received the written submission of the Evidence Leaders, you will receive their written submission and any other issues they want to put into that. When the Committee meets, it has all of that to look into and deliberate on. So I am putting that to you, Hon Members, and let me hear what you think both here and on the virtual platform. Hon Mulder?

Dr Mulder: Chairperson. Yes, I would support that. It was unfortunate that the Public Protector’s team did not receive the response by the evidence leaders. Members received that late yesterday afternoon. It is comprehensive. I worked through that last night. I think, unfortunately, if the Public Protector’s team did have that we may not have had necessarily to listen to what we have heard this morning. But be that as it may, I suggest that what you have proposed is in order. Thank you.

Chairperson: Thank you, Hon Mulder. Any other Member? Hon Maneli?

Mr B Maneli (ANC): Thanks, Hon Chair. I also agree to giving time. I want you, Chair, to tighten up the other point that was raised during the presentation. It is important to close that gap that it was indicated there's been an issue with the witnesses. Just to be sure that when we get back, that those issues do not arise, and at least everything is in line. So when we say we are proceeding, we proceed in the true sense. Thank you.

Chairperson: Thank you, Hon Maneli. As I promised Adv Mpofu, we have noted that and we will respond. First thing tomorrow morning, we will put that on record and further work will have to be done between now and then. Any other Members before I note you, Adv Mpofu? There being no other Member wanting to comment, let me recognise Adv Mpofu.

Adv Mpofu: Yes. Thank you, Chairperson. Just two quick things. One is, sorry, I did not catch, Chair, whether the thing has been sent or you are saying it will be sent?

Chairperson: I want to make sure, so I am saying it will be sent immediately. I do not want the assumption that it is there this time, so I need to be very sure about that.

Adv Mpofu: Yes. Thank you, Chair. I just want to make two quick points. One is that, well we can… I do not want to do that which I was accusing you of doing, Chair, of pre-empting something I have not seen yet. But the chances are that if it is as comprehensive as Hon Mulder says it is, in content as well, then it will obviously be something that we may, and I cannot put it higher than that, we may need to address again tomorrow, but we will indicate that tomorrow. I just want you when you are doing your planning maybe to factor that in, that there is a possibility, I am just making this in the dark because I have not seen the document. But we will certainly endeavour to give you a written response. We think the time is unreasonable, again. But, you know, as usual, we will try and comply with it even if we think it is unreasonable. The other point, Chair, which I also just want, again, so that we do not have other procedural hiccups tomorrow, is that I have been informed that Adv Ngalwana has submitted a complaint related to what we were discussing here, to the Legal Practice Council. If I manage to get a copy thereof, we will post it in the usual way and if it raises any new relevant issues, we will also deal with it in whatever period you might give us. The last point is that yeah… Well, I have already made the last point, we will have already made the last point which is that in any event even before that, and we appreciate the opportunity to have a look at the document. But even before that we had not finished our presentation and do not appreciate the idea of being stopped in the middle of a sentence, literally. And but we were only left with one section, as you know, from the document, which was the third ground. Yeah, I just wanted to say those things, Chair. Just hold on one second, please Chair. Thank you, Chair. I have also been asked to raise for what it is worth apropos the discussion, we had about the 45 minutes, whatever. This is a point I have made here before but it looks like I have to make it again. That this is not an oversight exercise, or when the Public Protector presents whatever she presents in Parliament. This is an Inquiry that has its own life, so to speak, an ad hoc committee. And therefore it is in that context that we were talking about issues of consistency within this. It may be that she gets given an hour, an hour and a half or whatever, when she presents in Parliament but if that time is not reasonable in relation to whatever has been done here, we want to make it clear. It is obvious that point has always been missed here. That even with the type of evidence that gets led here, this is not an oversight committee of Parliament in the normal fashion, where you can ask anything you like. These are… There are issues here which are confined to the actual charges that are being faced here. I will just leave it at that, Chair. It is a matter that is of concern as to maybe going forward hopefully, we will not have to make that point again. Thank you.

Chairperson: Thank you. Thank you, Adv Mpofu. Maybe before I summarise and close, Hon Gondwe and Hon Mulder?

Dr M Gondwe (DA): Thank you very much, Chairperson. Chairperson, I just wanted clarity on what is going to happen tomorrow because we were supposed to hear from the first witness being led by Adv Mpofu. I just wanted to clarity on the impact of this now.

Chairperson: That is fine, I will clarify that.

Adv Mpofu: Thank you, Chair. I also forget to say something.

Chairperson: Hon Mulder?

Dr Mulder: It is on the same point, Chairperson. I wanted to ask seeing that the Public Protector has got her full legal team present. I understand the first witness will be on his way today and the time be used to prepare the witness, so that we can proceed with that as well. Thank you.

Chairperson: Thank you, Hon Mulder. Well, my understanding is that the witness would have been long prepared, but Adv Mpofu.

Adv Mpofu: No, your understanding is completely inaccurate. I do not even know where it is gained from. But the issue again, it goes to what we have been at pains to say here, I think from day one. You know, there seems to be some, I do not know, zeal to just, you know, go through the motions here and get it over with, you know, chop the head and let us all go back to normal. It does not work like that. We need to be given a fair opportunity to present our case and that includes preparation time. That includes not what is happening here now, where we are told that there is some comprehensive document which we do not even know how comprehensive it is. And we must deal with it in writing tomorrow morning, prepare our responses to it and prepare a witness. I mean, this is… where have we ever heard such a thing? You know, it looks like even people who have a predetermined outcome must try to hold themselves back to pretend that there is fairness here. We are not robots who are just going to be told by Hon Mulder that the team is big or small or whatever. We know how our team operates. And we will tell you… I told you last week, we were given the most unreasonable deadline on a Monday to say put your application in writing on Wednesday, knowing that we had a mammoth case in the Constitutional Court. We did that. We burnt the midnight oil. We did not sleep because we knew that if we do not do it, we are going to be told stories about, no, we want to stall this thing or Stalingrad, and all sorts of things, all the insults that have been hurled at us. We did that. Now we raised a legitimate issue here. When we raised it, the chairperson should have immediately at that time said, "No, let us stop there, right there. And let us make sure we give the opportunity’. No. We are allowed to continue and continue with that handicap. And only after another 30 or 40 minutes, we are told that we are being given an opportunity. And now these Members want to insist that we must do, I do not know what miracle, and deal with that document, and also prepare a witness. It is fine, we will try to do that because we have been abused enough on this, what more can be done now? What worse can be done? But we just want to record that well, we are human too. And no amount of eagerness to do any other predetermined outcome – that must be resisted as much as possible and at least give a semblance that, you know, we are listening and we are not just waiting to hand down the guillotine. We know what is going to happen to all these things. But it is just unfair to treat us like this. You should treat us in the same way that you treated other witnesses, the evidence that was led before, where reasonable opportunities were given for people to prepare, where they were not prepared or to deal with unforeseen circumstances, which inevitably arise in a process of this nature, which involves witnesses outside people who are not, like all of us here, only committed to this process. It is just unfair, Chairperson.

Chairperson: Thank you.

Adv Mpofu: Oh, yes. Sorry, Chair. I promise I will be half a second. Yes, just to confirm what the Chair said, our latest information is that the witness is indeed… will arrive sometime in the evening. He says he does not know where he is going to be booked to stay. But hopefully we will try and interact with Thembinkosi, so that we can locate him and prepare him. Thank you.

Chairperson: Thank you, Adv Mpofu. I did see your hand. I am sure you can allow me to do the summary without interacting again back. Colleagues, this is what is going to happen. We will adjourn now. Okay? Which is an early adjournment, which allows for yourself as Members to do other work and everybody else to do other things with the afternoon that was not budgeted for and planned. It is that Christmas time that you are getting: Christmas afternoon to be able to catch up on other things. We will start tomorrow at 9:30 as indicated in the programme. And we will start with the Committee deliberations. Having received the written submission of the Public Protector. After that Committee deliberations and with its outcome, either way being presented. Thereafter, we are going to allow the Public Protector team to make the leading arguments. The plan is for us tomorrow afternoon to have the witness on the stand. To start with the witness. I take note… I see you before I conclude. You do now want me to conclude. You want to say something before I conclude?

Adv Mpofu: Sorry, Chair. Yes, if possible.

Chairperson: Let me give you that so that I conclude properly.

Adv Mpofu: Yes, Chair. No I just want to make two quick points. I just received instructions to make a request to you that seeing that we are adjourning and we may not even have – well we certainly do not have the witness here – and we may or may not even have the document which I am sure will be with us in a short space of time, that you allow us to conclude our presentation, because otherwise it will just be wasted time. So that at least that part is done. If there is any other request to say anything, it should be only in relation to the stuff we do not have, not the stuff that we do have. So that is the first issue request, Chair, just to round off the points, as I say, where we were stopped mid-sentence; just to finish that off, so that we can make value of today's expenditure on the Inquiry. The second one is this issue that you have just addressed. And I am not going to repeat the issues that I have said about how unfair it is, in terms of duration of time that goes without saying. But Chairperson, I want to register here that your remarks and the remarks of the Members who are saying that the witness must come in tomorrow, at such and such a time and so on, is the clearest indication that you have already decided this matter. How do you know what will be the outcome of the application? That is why I am saying people must pretend not to have made up their minds because once we start talking about the witness is going to do this or that, then it means that we already know, well, we do know what the outcomes of the application will be. But let us pretend for the sake of the public that we do not know. Right? So that we at least say, ‘Well, if the application goes this way, this is what will happen. If it goes this way, this is what will happen.’ We cannot… I mean, it is a joke to waste the taxpayers’ money on something this important, and then just pretend that as if the Public Protector has said nothing when she has made very serious submissions here. People, as I say, must just try not to display to the public… let us at least think about the public that is watching this. And not, you know…

Chairperson: Thank you, Adv Mpofu. Adv Mpofu, I want you to conclude, please.

Adv Mpofu: Yes. Okay. Well, on a positive note, the note that… Oh, it is not as positive as I thought. "Advocate, please note that no written travel confirmation received yet and still waiting for transport. It is now 12:02. That is from the witness who was told that he was going to be picked up at 12:00 but I have made the earlier point.

Chairperson: Thank you. Here it is, colleagues, let me conclude my summary and a way forward. Let me start with the point you have raised and continue to raise. We have your written submission. We have allowed you to give oral presentation and gave your time and extra time: it is done. I am not giving any other time on that. We have that on record, and we have gone through it. In relation to…

Adv Mpofu: Chair, members of the public might want to know what we have to say, if you are not interested.

Chairperson: Thank you. Do not disrupt me, Adv Mpofu.

Adv Mpofu: No, I just wanted to record, Chair, that you are being so unfair. Why would you want to stop when there is nothing that is going to be done now? Why can you not give us 20 minutes to complete our presentation?

Chairperson: Thank you. Switch off your mic, Adv Mpofu. We work according to time, in everything that we do.

Adv Mpofu: No. Time for what?

Chairperson: Switch off your mic, Adv Mpofu. I am on the chair. I did not disturb when you were speaking. Please switch off that mic.

Adv Mpofu: No, but Chair. I am registering a protest. Do not shout at me.

Chairperson: Please switch off that mic, Adv Mpofu.

Adv Mpofu: No, I am not going to switch it off if you are shouting at me.

Chairperson: Please switch off that mic, Adv Mpofu. I am speaking now, and you cannot continue disrupting me.

Adv Mpofu: No, I am not disrupting you, Chairperson.

Chairperson: Then stop.

Adv Mpofu: Okay. Well, then recognise me.

Chairperson: I am not recognising you. Let me conclude. Here what is going to happen, colleagues, there is no extra time that is going to begin for oral reply. The fact that you did not finish it having been given time cannot be the problem of this Committee, and myself as a Chair because everything we do in every institution, in church, there is a time given. The church starts at this time, finishes at that time. Everywhere else, even kindergarten, they are given time to play and collect then their toys and do this. Every institution has that. We have got rules here of the National Assembly. We have got directives. And the Chair always must be able to direct those including issues of time. I am not going back to that issue. I have explained to you what the standard is. Second point that I want to… So I do continue to say we are going to start tomorrow, in the manner that I have indicated at 9:30 with Committee deliberations having received all the written submissions. And we would allow for Adv Mpofu… when we come back from that, the committee will then indicate what the decision is either way. And I have made that point we will allow him to make these leading arguments. Between now and end of the day, everything is going to be done for the witness to be on board. In fact, out of the 16 witnesses we had in the first part of the Inquiry, there could only be about three or four that were here physically.

Adv Mpofu: It is four.

Chairperson: Nothing stops us continuing with a witness virtually. I want to make that point. Okay? So they were there. You had Ebrahim there. You had Samuel there. You had…

Adv Mpofu: Ndou.

Chairperson: Ndou. And the other one, I cannot remember. It is four out of the 16. It does not mean that there has been no Inquiry. So with that, colleagues, I think the time now is 12:15. I am asking that the Public Protector team… We have adjourned in order to give them time, to go and look at the submission of the Evidence Leaders. Do that written submission. We come back tomorrow. We continue with our meeting. I thank you, Members. The meeting is adjourned.

Adv Mpofu: Chairperson, you said you were going to recognise me?

Chairperson: I said I was not going to recognise you. The meeting is adjourned. Thank you.


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