In the hybrid meeting of the Committee for Section 194 Enquiry into suspended Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, the Committee considered the PP’s application for the removal of the current evidence leaders after which the PP legal team led the evidence of their first witness for the Public Protector.
Parliament's Constitutional and Legal Services Office (CLSO) addressed the Committee on the important factors Members had to consider when deciding on whether to accept or reject the PP’s application for the removal of the evidence leaders. This included a reminder that the Committee was performing a constitutional function and had to ensure the process was procedurally fair.
The Committee then deliberated on the PP’s application, and considered the evidence leaders’ written response and the PP legal team’s written reply to that response. The Committee resolved to decline the PP’s application for the removal of evidence leaders on the basis that the application was not relevant and should be dismissed – which followed the advice of CLSO. Members also felt that the evidence leaders’ conduct did not warrant their removal and that the application was merely another delaying tactic. The Chairperson also addressed the continued attacks on legal support staff by some Members and stressed the importance of their role in assisting the Committee. Whilst the majority of Members rejected the application, the EFF and UDM supported the PP's application.
Thereafter the PP legal team led its first witness, Mr Freddie Nyathela, President of the South African Roadies Association (SARA). Mr Nyathela testified about a complaint SARA laid with Public Protector South Africa (PPSA) which remained unresolved under former Public Protectors Mushwana and Madonsela, and was resolved only 11 years later under Adv Mkhwebane.
The Committee had expected Adv Mkhwebane to be the first witness to provide testimony and requested that she be the first witness when the Committee resumed in 2023. Her legal team however said that they would choose the sequence of witnesses and would not be dictated to by the Committee. It was also noted that her legal team would call for a secret ballot when the National Assembly votes on the inquiry outcome.
The Committee is to continue with the hearing of Mr Nyathela’s evidence on 30 November.
The Chairperson said that the Committee was meeting to deliberate on the application for the removal of the evidence leaders. The evidence leaders, the Public Protector, and the PP legal team who were not part of this session but would join once the Committee had completed its deliberations. The previous day the Committee cut its day short at midday due to an oversight it felt was important to attend to, even though this was not a court process, to allow the PP and her team to peruse the response of the evidence leaders. The Committee had agreed that the PP team would be given time to go through that response and make their written submission in reply to it. He had just been informed that up until he had opened this meeting, the Committee had not received that written submission but that was not a train smash. What it meant was that Committee deliberations would continue. The Committee gave an opportunity for the PP team to do that. They had not done a written reply but it did not stop the Committee from proceeding.
In deliberating on the recusal application, Members would have received a written response from the evidence leaders that he hoped they had gone through. The Committee had taken a decision that the response of the evidence leaders was not going to be done orally because the focus here was not to have evidence leaders being on the stand, on trial, and have an inquiry within an inquiry. That was a decision the Committee took. To start the Committee deliberations, he invited CLSO led by Ms Fatima Ebrahim, to take the Committee through it and sketch the context, but also to place matters on the table here before Members deliberated. Thereafter he would invite Members to engage and the Committee would take a decision which they would communicate to the PP and evidence leaders after that.
Ms O Maotwe (EFF) asked for clarity as she heard the Chairperson speaking about the recusal application. What she had thought the Committee was dealing with the previous day was the application for the removal of the evidence leader, not the recusal.
The Chairperson thanked Ms Maotwe. The Public Protector was applying for the removal or replacement of evidence leaders. He stood to be corrected by her, indeed, that was what they had applied for.
Removal Application for Evidence Leaders:Parliamentary Legal Advisor briefing
Ms Fatima Ebrahim said that this Committee’s task was imposed by the Constitution which was to make findings on whether Adv Mkhwebane is incompetent or misconducted herself as was being alleged in the motion so that the Assembly could make that decision on whether or not she should be removed from office. Adv Mkhwebane herself was therefore the subject matter of this inquiry. As previously advised, the Committee was undertaking an unprecedented and novel process notwithstanding that Parliament is empowered to conduct this process in terms of Section 194 of the Constitution and the Assembly Rules. Parliament had done so, unfortunately, without the luxury of jurisprudence, which they could transplant directly to this scenario to provide unequivocal guidance. That was not to say, however, that the Committee could not be guided by what it believed in good faith and on rational grounds to be fair and just even if this may give rise to a legal challenge. She had therefore advised consistently that the decisions taken by the Committee must be circumscribed by the requirements of procedural fairness and substantive rationality. Members would have heard from Adv Dali Mpofu, SC, the previous day that procedural fairness encompassed the rules of natural justice which entails that there must be no bias and that the PP must be provided with the right to be heard.
In addition, the Committee's decisions must be rational. In other words, the Committee’s decisions must be supported by proper reasons and made in accordance with proper processes. They must also, importantly, be guided by the constitutional context in which the Committee finds itself – being the duties imposed by the Constitution on this Committee, which duties unless performed and completed before the PP’s term of office comes to an end, cannot be said to have been properly fulfilled. In addition, the application of the standard of procedural fairness cannot be divorced from or considered without regard to the unique environment in which Parliament operated, and the circumstances created by Section 194 of the Constitution. Parliament, as was known, is a separate arm of government whose Members are elected by and accountable to the people. It is constitutionally empowered to determine its own internal proceedings. In addition, the standard of fairness must be considered in the context that the Assembly plays a constitutional function in this matter, which it must do diligently and without delay. In other words, the principles of natural justice were, as pointed out by South African courts, flexible in that they held variable content, and what may be fair or reasonable in one setting may not be so in another.
In determining how to deal with the removal application, this Committee therefore must have regard to the sui generis nature of these proceedings and the constitutional duty that the Committee was here to discharge. As the Chairperson had indicated, the application was styled as a removal and/or replacement application, but it had many of the elements of a recusal application – but that was neither here nor there. The application referred to procedural fairness, which she had explained previously in detail and which Adv Mpofu would have also touched on the previous day, being the rule against bias and the right to be heard. It then also dealt with fairness more generally and in a seemingly wider manner than the notion of procedural fairness and it referred to the duty of fairness of all role players in this process. In respect of that duty of fairness being owed to all persons in the process, she leant her agreement with that. However, the parameters of what such fairness would entail in respect of each of those role players, being the PP, the Members, the witnesses, the evidence leaders, and the PP legal team, and the public importantly, could only be measured against the unique role that each played in the process. There was a strong element of public interest in this matter, and the Committee was not to lose sight of that.
In respect of the grounds raised in the removal and replacement application, the application relied on broadly three things. First, misconduct due to dissemination of information of the names and fees of various black counsel and attorneys who had performed work for the PPSA. Second, the misconduct in respect of the alleged cross-examination of Mr Muntu Sithole by the evidence leaders. Lastly, misconduct in respect of the preparation of witness statements as alleged. She did not intend to share any views on the merits of that removal application. Rather, she wanted to share some general legal principles and practical implications related to it in an attempt to guide the Committee. It was the role of Members themselves to consider that substance. On the legal principles, she was going to start, firstly, with matters related to the substantive portion of the allegations, the first being the dissemination of information on legal fees. In the first instance, she reminded the Committee that the displaying of names as regards the fees was a direction by the Committeeand then on the second occasion, by the Chairperson when the evidence leaders wished to make corrections to the fees that were flighted. As such it could not be said to be a decision taken by the evidence leaders who had acted under instruction.
In any event, one of the hallmarks of an open and democratic society was transparency. For this reason, Section 32 of the Constitution guaranteed the right of access to information held by the state. Further Section 217 on public expenditure and procurement requires that when an organ of state contracts for goods and services, it must do so in a manner that is transparent. South African courts have therefore rejected the argument that tender processes, for example, are not administrative action, and that such parties in a public tender process must be distinguished from parties to a private contractual agreement which would enjoy the benefit of private law prescripts. In addition, Parliament played an oversight role over the Executive, other organs of state and all institutions supporting democracy. This oversight role extended to the expenditure of public funds by these entities, and was in fact one of the issues that was mentioned in the motion. The PPSA was subject to the Public Finance Management (PFMA) and it reported to Parliament in any event annually on its financial and performance information, so as to allow Parliament to conduct its oversight and determine whether the entity has delivered on its objectives and in accordance with the applicable financial prescripts.
The transparency provisions read with the prescripts that Section 59 of the Constitution imposed on Parliament – the duty to facilitate public involvement in its legislative and other processes – meant that the PPSA expenditure was for public consumption. It was an issue on which there must be transparency and accountability. Whilst a constitutional right of access to information was not unfettered, and certain information would be protected in terms of the Promotion of Access to Information Act or the Protection of Personal Information Act (POPIA), it was her view that the information displayed was not protected. In any event, this had not been raised as the basis of the objection to the displaying of the fees. Rather, it appeared that the two main issues were that the sharing of the information in the first instance contributed to racial insinuation. Secondly, that it was not relevant to the motion. On the issue of racism, she noted that the evidence leaders were accused of being racist towards black attorneys and counsel, but not towards the PP herself. This was extended, however, if she understood Adv Mpofu correctly the previous day, by the argument that this conduct was not fair and therefore the PP could not reasonably be expected to believe that, because of that, the process itself was fair.
The recipients of any unfair treatment occasioned by the directive of the Committee to provide details on the names of counsel and attorneys would appear in her view to be those very counsel and attorneys who had represented the PPSA and who felt aggrieved and prejudiced in their professional spheres. In respect of fairness to them, the issues she had raised on transparency of this type of information was important. The question for the Committee, however, is whether they agreed that a reasonable person in the position of the PP would, because of the fees incident, believe that the evidence leaders, who as she said were requested by the Committee to perform the task, were biased for having carried out that instruction and that this in turn resulted in an unfairness to the PP. The Committee had to evaluate the PP’s claims against the context in which that evidence was actually presented in this forum. If that evidence was distorted or represented by third parties, namely the media as it had been cited, or through social media, or used for any other nefarious purposes outside of this Committee and outside of the motion, the question was if that must be attributed to the evidence leaders or not. In other words, who is to blame for the stigma?
On legal costs versus legal fees of which much had been made, and if this was relevant to the proceedings, Members would recall that charge four of the motion included allegations that the PP had failed intentionally or in a grossly negligent manner to manage the internal capacity and resources of management staff, investigatorsand outreach officers in the PPSA effectively and efficiently, and that she had further failed intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs. The debate seemed to turn on what the meaning of legal costs was, and that legal costs do not include legal fees. The Law Inside a Legal Dictionary defined legal costs of any person as “all reasonable costs and expenses that such person incurs in any legal proceedings or other matter for which such person would be entitled to be reimbursed for its legal costs, including reasonable attorney’s fees, court costs and expenses.” The Legal Practice Act 28 of 2014 also did not define fees or costs, but in the context of fees related to charges for services by practitioners, costs there included fees. The question, however, was a matter that the Committee would unpack further, but she was satisfied herself that legal costs in the motion must logically include legal fees.
Importantly as well, the PP’s audi rights were not affected in any way by this information. The PP had the opportunity to extensively cross-examine Mr Cornelius van der Merwe, which opportunity was taken to do that, and the PP was going to have the opportunity to present further evidence to refute any information as regards legal costs or fees and to explain to this Committee, as many other entities did here in Parliament on a daily basis, why that expenditure was reasonable and necessary. This may satisfy and address the concerns of the affected parties. In addition, the PP could deal again with this in closing. In fact, the Committee had previously been told that it would be the PP’s evidence that she had introduced austerity measures for legal costs. At that time, the Committee could interact more closely if that expenditure complied with the relevant financial prescripts or not. In any event, she found it somewhat concerning and difficult to accept the notion that the displaying of a name automatically associated the name with something corrupt or otherwise sinister, even if it was raised around allegations of fruitless and wasteful expenditure.
A department may, by way of example, irregularly spend money or incur expenses it should not have, but for which a named service provider could not automatically be attributed blame. This was in fact a common occurrence in Parliament, where they often heard the names of service providers. If this were the case then Parliament would never be able to permit the names of those service providers to be mentioned during their oversight processes. However, as she said, Parliament saw it all the time. One only need to attend a meeting of the Standing Committee on Public Accounts (SCOPA) to see how these issues were engaged on.
On the second issue, she was going to join the second and third issue which was the cross-examination and the drafting of the affidavits. Here, she wanted to remind the Committee of the role that the evidence leaders played. Everyone was in agreement that they were not prosecutors, and they therefore had no case to put before this Committee as a prosecutor did. They were here simply to assist the Committee to execute its function by collecting, organising and presenting evidence. They did this subject at all times to the Committee's direction. The Committee could at any time ask the evidence leaders to look for or search for information different to what had been put forward.
The evidence leaders had also been appointed because they were senior and experienced legal practitioners who were trained and obliged to be scrupulously honest. They held no mandate in respect of assisting this Committee to reach a particular finding. In fact, no Member here held a mandate in respect of the Committee reaching a particular finding, but rather they sought to ensure that the Committee was seized with evidence that was relevant and related to the motion. In addition, and very importantly, they were not decision-makers in this process. The previous day, Adv Mpofu referred to the Supreme Court of Appeal (SCA) judgment of Porritt v National Director of Public Prosecutions (NDPP). That judgment noted that whilst “The judiciary is held to the highest standards of independence and impartiality because they are the decision-makers in an adversarial judicial system. Prosecutors neither make the final decision on whether to acquit or convict, nor on whether evidence is admissible or not. Their function is to place before a court what the prosecution considered to be credible evidence relevant to what is alleged to be a crime. Their role excludes any notion of winning or losing. It is to be efficiently performed with an ingrained sense of dignity, the seriousness, and the justness of judicial proceedings.”
These principles in her view helped the Committee to understand, at least at a general level, the position of the evidence leaders with the added nuance that unlike prosecutors who acted independently from the judiciary, the evidence leaders here were accountable and answerable to the Committee, and they took their instructions and direction from it. Furthermore, unlike the NDPP, the evidence leaders played no part in the formulation of the motion. In other words, if there was anything in the conduct of the evidence leaders that the Committee felt gave rise to a biased claim or conduct which had not been performed efficiently with a sense of dignity, seriousness, and justice, which would be expected from the evidence leaders, that then may result in an unfairness. This was what the Committee would need to consider. One of the roles of the evidence leaders was to put any questions to witnesses to assist the Committee. This was a function they performed in terms of the Terms of Reference and the Directives. The Committee remained always at liberty to put a stop to questioning, or when considering the evidence to determine what weight or reliance it would place on that evidence.
This was not a court process, as she had said from the beginning. The rules of court on the examination of witnesses could not apply without qualification. Similarly, there was nothing untoward in and of itself in the evidence leaders preparing draft affidavits and assisting witnesses with statements. That was a core part of their function in assisting the Committee and it was a standard legal practice. In fact, Members may recall that the Committee’s call for public participation indicated in the advertisement itself that such assistance would be offered and it would be offered regardless if the evidence that somebody wished to tender was in support of or refuted the motion. Furthermore, the witnesses were required to provide their evidence on oath, precisely so that they could take ownership thereof. In the Nugent Commission, which the Committee would recall was referred to during the testimony of Mr Johann van Loggerenberg, issues there were raised by Mr Tom Moyane about the role of evidence leaders and counsel in that process. She thought it would be useful for her to quote this for the Committee and she would also ensure that the Secretariat sent Members a copy of this particular ruling.
In a judgment handed down by Judge Nugent, he stated, “I think it is important also to say something of the role of counsel appointed to assist the Commission, who also came in for insult in the course of the submissions. While often called ‘evidence leaders’ that is a misnomer. The process of a commission of inquiry is inquisitorial, unlike that of a court. This means it must make its own inquiries, seek out evidence itself, and interrogate the veracity of evidence where that is required. Counsel appointed by a commission facilitates the performance of all those functions under the direction of the commission. When oral evidence is to be heard it will be presented to the commission by its counsel. Where counsel has no reason to suspect the veracity of the testimony, counsel play their part by guiding the witness through the testimony, so as to ensure that relevant testimony is extracted. Where there is easily reason to suspect testimony might not be true, they play their part by examining the witness, vigorously, if that is required, to test its veracity. Indeed, it might be that a witness is called solely for vigorous examination, so as to extract information that the commission requires. And if a witness has given testimony when there has been no reason to suspect it might be false, and it turns out later that that might not be the case, then the witness is liable to be recalled and examined more thoroughly. In short, the approach counsel will take to oral evidence will be dictated by the exigencies of the case. Some cases will require the witness to be guided. Other cases will require the witness to be interrogated. And some cases may require both.”
There could be no confusion that the role of evidence leaders was to ensure the veracity of the information that was placed before the Committee. They were not here to assert any particular version. In addition, this matter was distinct from any commission of inquiry, insofar as the PP would be allowed the opportunity to rebut all evidence. That was not always the case in the manner in which other commissions of inquiry were run.
She moved on to some general legal questions and principles that may be helpful for the Committee in determining this application. The first was the question if the application was premature. The application, as was known, was interlocutory in nature. Whilst there was no question that the PP was within her rights to bring any application or make any request to the Committee, there was a question of the ripeness of such requests. The application was premised on unfairness based on the conduct of the evidence leaders and solely in relation to the manner in which they had put evidence before this Committee. The Committee was however yet to deliberate on that evidence or reach any conclusions. It had not reached the stage where it had accepted the evidence of any witness as the undisputed truth.
It may be that the very evidence being referred to, that of Mr Sphelo Samuel, Ms Nelisiwe Thejane, and the questions then put to Mr Sithole, may not be used to make an adverse finding against the PP and may even be used in favour of the PP. The Committee was not in a position to know that as yet. The weighing of evidence would rightly happen in the context of the vigorous cross-examination, which the Committee had already seen, and with regard to the additional evidence that the PP must still put forward. Furthermore, while some of the complaints against the evidence leaders were canvassed by the PP’s team as early as during Mr Samuel’s evidence where their drafting the statement was initially raised, this application was inexplicably only brought now. Thus, in addition to it being premature as it could be dealt with in the courts, there was the question of why this request did not come earlier. She had noted the previous day that Adv Mpofu had seemed to suggest that the PP legal team was not invited to make submissions on the recusal application brought by the UDM. This was incorrect. They were in fact provided with the submission and a letter was addressed to them inviting them to make representations but they did not avail that opportunity.
In any event, she seemed to recall that Adv Mpofu may have said that that recusal application was not related to matters internal to the proceedings. Similarly, legal fees was also raised some time before this application, but the Committee could decide itself if there was any significance to the timing – as it should with every single application and/or challenge during this process. She wanted to say that the piecemeal approach had a knock-on effect on the work of the Committee. It resulted in delays in a process that, as she had said, could not unfortunately be stretched beyond the term of the PP. This was the reality of the situation and it was not a deadline that she was imposing. It was a deadline that the Committee was unfortunately faced with. Again, whilst the PP had the right to raise her complaints, the Committee had to take cognisance of the constitutional context in which it operated and it must ask if these smaller applications were appropriate vis-à-vis a review process that could be brought at the end. The rights of the PP, in short, had to be balanced against the constitutional obligations of the Committee and the issue of public interest.
The next question was if there were any other remedies for the PP. Tied to this question was if there was prejudice to the PP and if so, what her remedies would be. As she had indicated, it was not clear what the prejudice was in the absence of the Committee making any findings as yet and the House making an ultimate decision on the matter. If at that stage where the Committee accepted the evidence, which then was in the view of the PP tainted by the evidence leaders, and this resulted in an adverse finding and removal by the National Assembly (NA), the PP would not be deprived of her right to review the process. However, this would then be in relation to the decisions of the Committee and the Committee had already been told that there were numerous instances that had arisen during these proceedings that the PP may well take on a review. The time, therefore, in her view, was not now.
On the matter of public interest and public participation, this was a constitutional process and the NA was accountable to the public. It must therefore have regard to the fact it represented the South African public in the process, who had a legitimate interest in seeing this process to conclusion. As such, the decision required some balancing of these rights when assessing the risks of accepting or rejecting the application. Public interest entailed that even political decisions must serve the public interest. Public participation, however, differed in that it related to the manner in which public involvement in a process was facilitated. In this Section 194 process, public participation related to the subject matter of the inquiry, the charges in the motion, and the fact that the public must be kept in the loop as it were. Public participation must also be reasonable. This was the benchmark. In some cases, it would suffice that the public is allowed to access proceedings by watching it without actively participating in decision making. An example of this would be when a Committee was deciding on its programme. In other cases, it was necessary to call for and invite submissions the way they did when considering draft legislation. Hence, in this process, they had invited the public to provide the Committee with information related to the charges, irrespective if that information, as she had said, supported or refuted the charges.
Whilst the Committee allowed the public to attend its hearings, it did not allow them rightly so to participate in the debates and decisions – that would be a never ending process. Whilst there was both a public interest and a public participation element on the issue of removal, she was of the view that the latter was limited to accessing the proceedings rather than participation in the proceedings. In other words, Parliament must ensure that the public has access to observing the decision making that the Committee was going to embark on. If it were the case that the public should be involved in submitting input on how the decision was to be taken, then they should call for public submissions on this interlocutory application and all that had happened so far.
She, however, had no qualms with the Committee considering the context and nature of legal services espoused in the letters and submissions received from external counsel and attorneys when it elaborated on legal costs. This was in fact important information that the Committee must consider. However, to suggest that the evidence leaders should be removed because of an external third party feeling aggrieved was somewhat problematic, and it did not speak to administrative fairness as it related to the PP.
These matters on a consideration of reasonable and relevance could not be said to be relevant to the decision, nor did it dilute the fairness requirement. That being said, of course, as she had said, the Committee's recommendation at the end of this process, and its consideration of allegations related to costs, may full well be influenced by these submissions. The question for today, however, was if and how the legal fees information was unfair to the PP and was an assault on her right to administrative fairness – and not what others may feel about it.
On the practical effect of the application, the evidence leaders were appointed by the Committee to assist it in discharging its functions. Therefore, any consideration to remove them must be a decision that is taken by the Committee as a whole. In taking that decision, the Committee had to consider the impact of their removal on the Committee proceedings, and the justification if any for their removal, as the removal wouldaffect the business of the Committee going forward.
If the Committee decided to remove the evidence leaders – which it was entitled to do and there could be no doubt on that – it would mean that the hearings in all likelihood must start de novo unless agreement could be reached between the PP’s team and the Committee on the admissibility of all the evidence heard so far. This is because every stitch of work done then by the evidence leaders may become tainted in some way or the other by these allegations, notwithstanding that there were only specific scenarios mentioned in this application. At the very least, all of the institutional knowledge that the evidence leaders had built up over months of work would be lost to the Committee. This application also came at a critical time. The evidence leaders had presented the evidence of witnesses identified by them and it was now for the PP to lead her evidence. In addition, the allegations on the airing of the legal fees on which much of the application was based appeared to be misplaced. But the Committee could further consider the explanations on the cross-examination and the preparation of witness statements.
Removing the evidence leaders at this juncture would no doubt have a severe impact on the budget and the timeline of the Committee. It was almost certain that the Committee would not be able then to complete its task before October 2023. This, as she had said many times before, was a constitutional function which must be performed diligently and without delay. The risk for the Committee was that if it did not remove the evidence leaders and proceeded, these matters may form part of a later review depending on how the matter unfolded or may even be subject to a review prior to concluding the hearings – as the Committee had seen with the recusal application of the Chairperson, which was currently before the Western Cape High Court. This matter had been litigious from inception, and therefore there was always the risk that the outcome would be challenged by review.
The Committee, however, could not be expected to act in fear. Rather it had to ensure that any decisions made were rational decisions, and the Committee must satisfy itself that the right to procedural fairness had not been impaired. The risk of not proceeding was that the Committee would not finish its task and would not do what it was mandated by the Constitution to do. This may give rise to a completely separate set of legal challenges from other interested parties. It thus appeared that both scenarios, accepting or rejecting the application, would have legal consequences. The Committee was to weigh and consider these and if in its view the conduct of the evidence leaders had affected the people's right to natural justice, then it must be satisfied on those grounds that the process had been unfair. It could then take that decision to remove. In that case, Legal Services would advise further on practical steps that the Committee may wish to follow. However, she would leave it in the Committee’s hands.
Committee Deliberations on Removal Application
The Chairperson said that the Committee Secretary had just sent him the submission that the Committee had waited for. The Committee Secretary had received a WhatsApp message from Seanego Attorneys well beyond the 09h30 start of this meeting. Their message read, “We are doing the best we can do. We do not have a secretary so we are typing the response and we had to consult with Mr Nyathela last night till late. Please accept our apologies. We will send it hopefully by 10h30. Sincere apologies from the team.” He thought he should give the Committee that. He had indicated at the beginning that he considered the fact that there had been no submission not a train smash and that the Committee would proceed with deliberations. He was adding that message to that point. He invited Members to engage.
Mr K Mileham (DA) asked if the message from Seanego Attorneys was about their response to the submission of the evidence leaders. Is that correct?
The Chairperson reminded everyone that the Committee had asked Seanego Attorneys to prepare a written submission and given them the entire afternoon. That submission had not been received when he started the meeting. Even now, it was their message to say that they would endeavour, hopefully by 10h30, to send that.
Mr Mileham pointed out that for the Committee to deliberate without having that response in their hands was a little bit problematic. Members needed to see that response before they actually started engaging with the two submissions.
The Chairperson said that that was one view. He asked the other Members as it meant they must wait for another 20 minutes to receive that and go through it. The Committee directive was very clear the previous day. There was enough time to prepare and deliberate on that. What the Committee was not going to allow was to have the Committee's work defocused and side-tracked for those kinds of issues. He invited Members to deliberate on the matters. If that was an issue, they could raise that but he was now at the point of asking them to deliberate on these matters.
Ms Maotwe was in support of the proposal by Mr Herron.
The Chairperson said that Mr Herron had not spoken.
Ms Maotwe insisted that he did. He had asked that the Committee wait until they received the response from the PP legal team. She was on that point.
The Chairperson said that it was not Mr Herron, it was Mr Mileham.
Ms Maotwe said okay. In all fairness the Committee should wait for the submission otherwise they were going to have to come back to it. The Committee was going to engage now. Of course, the Committee had listened to Parliament’sLegal Services, which acted as if they were the opposition of the PP legal team. In all their submissions they had always been on the opposite side. It looked like it was the Evidence Leaders and Parliament’s Legal Servicesthat was opposed to the PP legal team. She thought, in all fairness, the Committee should wait for it. It was only 10h15 now; it was 15 minutes to go. The Committee should wait for it. It would not do any harm so when the Committee engaged, they engaged on everything. She did not know what happened to the Chairperson’s promise he made for the opportunity to the Members to ask clarity seeking questions to the PP legal team. She did not know where the Committee stood with that. However, she thought her submission was that the Committee should get the response from the PP legal team, who would explain why they were only sending it this late. They needed to put it on record why they were only submitting it to the Committee now, way after the deadline. Then the Committee could engage on their response and move like that.
Mr Herron said that there were now two proposals that the Committee wait. He asked if he should wait to hear what other Members said, because if the Committee was going to receive the response and then engage, then he should hold back on his input.
The Chairperson said that Mr Herron was saying he was ready to go as he wanted to deliberate on the issues and did not want to mix the issues, basically. He asked if he could be allowed to clear this, maybe just to get those Members who just wanted to speak on the proposal he had put on the table. He had read the WhatsApp message on record. The Committee had not received the submission. Even now there was no indication that said the Committee had received that. The Committee would have indicated the previous day that they were starting at 09h30, and they would need this either the previous night or first thing this morning. The Committee did not have that; it had not been sent to them. In fact, the WhatsApp message was a response to an inquiry from the Committee’s side. It took the Committee Secretary to ask when the submission was coming. It was only then that the Committee got a response that said, “hopefully by 10h30.” It was not an initiative of the PP legal team to say that they were delaying; they would send this to the Committee later. It could not work like that. The Committee had to prevail on all of these, what he called, incidentals and focus on the main issues that they were here for. Therefore, he would correctly put Mr Herron on hold for now so that he did not waste his time. If there was any other Member who could just respond on that issue, he was putting it on the table that the Committee start its deliberations just to get to that so that they cleared that.
Ms M Sukers (ACDP) wanted to ask if Members were to respond to the decision or to the Chairperson’s comment on deliberations. She thought the Committee needed to be mindful of what their primary mandate was here as a Committee. In light of that, it was important for them to focus on what it was their main job to do. She supported that the Committee do the deliberations.
Dr M Gondwe (DA) agreed with Ms Sukers and the Chairperson. She thought the strength of what the PP legal team wanted to say was contained in the original application. The Committee had given them enough time. At this point, her assumption was that they should have long consulted with Mr Nyathela. What they should have been doing now was touch ups and not prepping him from start. She thought the Committee had given them enough time and the Committee could go ahead and deliberate on the application.
The Chairperson said that if there were no other comments, he wanted to go back to Mr Herron.
Mr X Nqola (ANC) said that it was his conviction that when the Chairperson said the Committee must receive it not later than 08h00, it was because the Chairperson wanted to give Members approximately an hour for Members to go through the submission and the response. So even if it arrived at 10h30, Members would not know the contents of the submission and it would not assist them to deliberate properly. Even if it arrived at 10h30, Members would still be incapacitated to deliberate in accordance with what had been submitted because there would literally be no time for them to go through that submission. He wanted to support that the Committee proceed.
The Chairperson thanked Mr Nqola for supporting the Committee proceeding. Having noted all Members’ hands, he asked to go back to Mr Herron.
Ms Maotwe wanted to find out if the Committee was aware that the evidence leaders’ submissions were also late. They were supposed to submit on Saturday; they only submitted on Sunday. There was a ripple effect. When the Committee discussed the lateness of the PP legal team to submit to the Committee, they also had to talk about the lateness of the evidence leaders’ submissions, because that caused the ripple effect. Even worse, the submissions were not even sent to the PP legal team. She thought that the Committee should also be mindful of all that and not paint the picture as if it was only the PP legal team that was at fault here. It started with the evidence leaders – they must equally be condemned. She was saying, humbly, that it was 10h20. Can the Committee allow the PP legal team? The Committee could break for tea now and come back for the submission from the PP legal team. She did not think it would hurt anyone. She humbly requested the Chairperson to consider that.
The Chairperson noted Ms Maotwe’s reflections. He proceeded to Mr Herron.
Mr Herron wanted to raise some concerns around the role of the Committee. He had indicated before that the Committee was conducting itself almost as a passive receiver of information, whereas the Terms of Reference said that the Committee shall call witnesses that it identified. He did not remember the Committee ever having a discussion to identify which witnesses would be called and what evidence they needed to be placed before them. He did not know where the Committee's role in actively identifying witnesses and evidence that they needed to hear and see had come into the evidence as led before them. That led him to the issue before the Committee now, and that was around relevance. He did not want to get too far into the merits of the matter and the evidence, but the charges ‘fruitless and wasteful and unauthorised expenditure’, which all Members understood as parliamentarians, had specific meanings in terms of the PFMA. The evidence that was presented to the Committee was not presented in any way to further that charge. There was no evidence of fruitless, wasteful, unauthorised expenditure as presented.
If one read out the evidence leaders’ response to this application, they converted it into excessive legal costs – and that was a different charge altogether. The charge that was in the charge sheet was fruitless, wasteful, or unauthorised. He thought there was something mischievous in conflating ‘excessive’ with ‘fruitless and wasteful and unauthorised’. The evidence leaders said in their papers that it was up to the Committee to decide. He did not think that this Committee could decide fruitless and wasteful or unauthorised expenditure. That was an audit process, and the Committee did not have the capacity to audit. He was also concerned around, and he thought there was an element of truth in the PP’s suggestion that there was a pursuit of sensationalism, because that evidence was sensational and the Committee had to ask if it was necessary. He wanted to go back to the evidence that was led by the evidence leaders from Mr van der Merwe, where he gave evidence about the PP’s bodyguard eating too much KFC. What was the purpose of presenting that evidence to this Committee? It had no relevance to the charges. It seemed only to be for the purpose of media sensationalism, because when he had questioned him, Mr van der Merwe had apologised for the comments and conceded that the evidence came from a police report. The police were not medical doctors. It did not say that there was an overeating of KFC.
So there was an element here of sensationalism seeking, which he thought the Committee must be very cautious about as a Committee. This was a very serious matter that the Committee was dealing with and he was uncomfortable with the idea that they appeared to be courting public outrage through evidence that was not relevant. Ms Ebrahim also indicated that there was a debate around legal costs versus legal fees. He thought that that may be splitting hairs. The charges were quite clear, there needed to be evidence of fruitless and wasteful or unauthorised expenditure. He went back to his first point that the Committee needed to be more active in managing the evidence that had been led, the relevance of the evidence, and what Members wanted to get as a Committee in order to make a decision. In his view, based on the papers, he could not find that the evidence leaders needed to be removed. That would be his proposition, that he did not think a case had been made out that the evidence leaders needed to be removed. However, he did want to ask that as the Chairperson and the Committee, they manage more actively what evidence was presented to them and the manner in which it was presented and for what its purpose was.
In that vein, and the Committee could deal with this question later, in terms of the Terms of Reference, the Committee would identify witnesses that it would call and it needed to hear. There had been one witness that he had been waiting to hear evidence from. It related to the first charge, which was the Vrede Dairy charge. Adv Erika Cilliers’ name had come up over and over and over again, as the PP staff member in the Free State who had started the Vrede Dairy investigation. Why have we not had that evidence? Who has decided not to call Adv Cilliers? Is she not available? He thought the Committee needed some explanation, or it needed to resolve that her evidence was necessary in order for the Committee to make a finding on charge one.
The Chairperson said that Mr Herron’s points were well noted. As there is a thin line between the two, he would ask that the Committee did not even slightly venture into that. Quite clearly he was excited that with this long process Members had been so in touch with every witness and issues raised.Mr Herron made that very specific point that what had been presented did not give him a sense that there was a case for this and so on. He would like the Committee to stay a little bit away from getting into that point. It was a fine line so but he did not want the Members starting into the merits before they got into the deliberations themselves where they declared, in terms of those four charges, this was what they thought.
Mr Herron said that he did say it up front that he did not want to get into the merits because he understood that the Committee would deliberate. However, he was really trying to make the point that as a Committee they needed to manage the evidence.
The Chairperson said that he completely got that and thanked him for that.
Ms Sukers said that her position on the application was it was clear in all the committees that she served on, especially the Portfolio Committee on Health, that those providing services to the state must understand the payments they received could be reviewed in committees and with the public through the work of the committee. An example of that would be that in the Portfolio Committee on Social Development had now twice received reports on the information and communications technology (ICT) spend of the Department on Social Development. That Committee had asked who those providers were and what was in the amounts allocated in those cases. PPSA employees that came before the Committee were, under cross-examination, questioned about their earnings, salaries of R 1 million and the value they offered for that reward. Pay As You Earn (PAYE) and personal expenses were not asked.
Those who wished to be state employees or contractors, as was their right, who did not want these matters to be disclosed, should place their talents exclusively at the disposal of the private sector, which as its name implied it was private. However, when doing business with the state it was inevitable that that became a matter of public interest and also that as part of oversight that would be revealed or made known. It was important for the Committee to note the context in terms of the efforts that had been made to delay and stop the proceedings. If the Committee judged the application, they should also look at the impact of what had previously been before the Committee - the treatment of witnesses with harsh, intimidating, threatening questioning of witnesses, and threats made to their livelihoods. This came before this Committee. She thought the Committee had, as far as was possible, ensured that the processes and procedures were fair to the PP.
It was Mr Herron in the beginning who said what was at stake and why it was so important for the Committee to be fair and without bias, and the Committee had stayed within that. However, the Committee could not be consistently delayed in what was their work. It was not the evidence leaders that were before the Committee. It was the public of South Africa and this Committee, herself as a Member, that needed to hear the Public Protectorto answer to this Committee – not the evidence leaders. She strongly felt that the Committee needed to pursue its mandate, because they would fail if they did not complete this process and it was their public duty to do so. The Committee could not be hamstrung by this. It did not serve the ultimate goal of the Committee for them to consistently be derailed in the manner that it did. As Mr Herron had said, relevanceas to the work that it did certainly had to be its main consideration. Therefore the Committee needed to proceed and the evidence leaders were here to serve and assist the Committee. It was for the Committee to deliberate and look at the evidence that was put before it.
Ms B Van Minnen (DA) agreed very much with what Ms Sukers said. It was also important at the outset to note that all parties to this Committee had agency. Seanego Attorneys had known about the timeline, they knew that the witness was due to start the previous day, they knew about these applications. Seanago informing the Committee, only upon query, that they were going to be submitting documents after 10h30 was most unfortunate and unilateral. It certainly did not assist the Committee in this process. However, this was a Chapter 9 institution and it was directly accountable to Parliament. She sat on SCOPA and they went through balance sheets, finances and audits. She thought it was very important that this Committee had sight of spend. It was a very vital part of what they were engaged with and, as such, she thought that this application needed to be rejected. Going forward the Committee needed to do its job and do it properly and they could not say that there were certain aspects of the inquiry they were not going to enter into when it very much fell into their mandate and it also fell to the duty of the PP to report to Parliament – and that was squarely within this ambit.
Dr Gondwe said that it concerned her that time and again, as a Committee, they were being requested by Adv Mkhwebane and her legal team to shift or divide their focus from the mandate and business of this Committee to applications that really, in her opinion, had no bearing or relevance to the mandate of this Committee. These applications were in essence repeated and concerted efforts to stall and delay the Committee from concluding its work before October 2023. The Committee had to tell it like it was. This application, much like preceding applications, was another veiled attempt to stall the Committee from reaching its conclusion and holding Adv Mkhwebane accountable. The Committee must not allow this application and any subsequent application to be brought, because she had a feeling this was not the first time and it was not the last time. In fact, all Members knew this was not the first time but it was definitely not the last time. It brought it to a total of six applications. If the Committee included the walkout, that in her opinion was staged and the Committee still had no explanation what had happened that day, it brought it to six attempts since the commencement of this inquiry to stall the work of this Committee. It was really concerning andthe Committee should not divert its attention and focus from its mandate.
These applications were being brought in a piecemeal fashion and they were repeated and, as Ms Sukers had indicated, they were consistent. They applications were all simply aimed at stalling the Committee’s work. The Committee had to hold Adv Mkhwebane accountable and nothing and no one must stop them from doing that. Until such time the Committee had a court order or interdict preventing them from doing their work, the Committee was to carry on doing their work. Members of this Committee were intelligent and competent people, and that was why they had been deployed to this Committee. If the Committee had a problem with the evidence leaders, if they had noted any form of misconduct on the evidence leaders’ part, they would have stopped the proceedings and requested that the evidence leaders be removed and replaced. However, in her opinion, the evidence leaders had done nothing that could suggest misconduct in any way. If anybody had been misconducting himself in this Committee, it was Adv Mpofu. She asked if the Committee could get feedback on its requests that Adv Mpofu be investigated for the utterances that he had made at the meeting where he threatened the Chairperson. The previous day the Committee also witnessed a form of misconduct on his part, where he was defying the Chairperson’s instruction to keep quiet and allow the Chairperson to take control of this meeting.
Mr Mileham aligned himself with previous speakers who indicated that the process being followed by the PP legal team was one of stalling tactics attempting to derail the proceedings of this Committee, and it was simply a matter for argument in court at a later stage. However, Members could not, as a Committee, allow this to prevent them from doing their work. One of the issues that he had was the complete disrespect for parliamentary process that had arisen in this hearing – in particular the fact that Members of Parliament were entitled to ask questions of witnesses, were entitled to seek clarity, and were entitled in terms of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act to basically ask or say anything without reprimand from people who appeared before the Committee. The only person who could actually say that was the Chairperson. The Chairperson had control of the meeting and he could call Members to order. However, people appearing before the Committee certainly could not do so.
The application that the Committee was considering today was yet another frivolous application. It was one that was designed to waste time. As for the evidence leaders, the way they had conducted themselves had been beyond reproach. They had conducted themselves in a manner that was fair and impartial, they had not sought to influence the thinking of the Committee, and they put forward the evidence required or requested. He agreed with Mr Herron that there was additional evidence that could be brought before the Committee, and additional witnesses that could have been brought. However, he did not think that the evidence leaders could be accused of being biased or racist or in any way misconducting themselves in the process of this hearing.This application should be dismissed.
Mr B Nkosi (ANC) said that the previous day the Committee allowed the PP legal team ample time to consider the response of the evidence leaders. He did not think that the Committee would have done that had they not recognised the glitch or the mistake on the Committee’s side, and therefore the Committee needed to provide the PP team with space to deal with that response. He did not think it was unreasonable to proceed, and he agreed that they should proceed.
He raised three preliminary issues before he came to the application. 1) The Committee must reassert the fact that the Section 194 process was an oversight committee of Parliament, determined in terms of the Rules of Parliament and what the Constitution invited the Committee to do. To think of it otherwise would take it out of the remit of this being an oversight process. In essence what the Committee was doing was to ensure that there was accountability on the side of the PPSA, in particular its incumbent. It was nothing other than that; therefore, the Rules of Parliament were applicable to this process –including the unique rules that applied to it per se. 2)
Throughout this process, the Committee had adhered to due process and ensured procedural fairness – in particular towards the PP – because the Committee recognised that she was appearing before an institution that was well resourced and had the means to conduct a process such as this. However, the Committee had bent over backwards at times he considered to be unreasonable. But in the interest of ensuring fairness and justice, this Committee could demonstrate that it had provided procedural fairness to the PP. 3) He wanted to reassert that this was not a Mazzone motion as it was frequently being referred to and now it was even reduced to writing. This was not a Mazzone motion. He would not have participated in a Mazzone motion if it was that. The nature of this process was a parliamentary process that had come through a motion tabled in the NA and agreed to by the NA, and therefore sanctioned by the entire NA. It lost the name of its originator; it assumed the name of a decision of the NA and nothing else.
On the application itself, his observation was that the application was brought prematurely. This was an application that the PP in any way could bring to review the decisions of the Committee, and it was not appropriate to have brought it currently. However, in line with all the other applications, it was clear that it was meant to add cumulatively to the Committee delaying the entire process of coming to a decision. His otherobservation was that listening carefully to what was presented by the evidence leaders, there was no intention to defame anybody or to label anybody as being racist. If there was such an intention, it was not clear to him at the time. If it were, the Chairperson would have immediately made the Committee aware that this was now going beyond what was reasonable, and therefore it was irrelevant. He did not hear the Chairperson, at the time, rule on the relevance of what was presented on the fees or on the PP expenditure on legal fees, because that was the focus of what the Committee wanted to check.
He respected the evidence leaders; they had impeccable credentials, particularly as black female advocates in the profession. He did not think that they would have done this, that they would have attacked their peers and fellow professional people deliberately. It was the duty of this Committee to protect the evidence leaders first in their legal professions as outstanding advocates, but secondly, for the fact that they themselves came from the ranks of the disadvantaged. He thought that it was in the public interest to ensure accountability and that the process should be completed within reasonable time with due regard to procedural fairness. Therefore this request or motion from the PP should not be acceded to. As he usually said, the Committee was not without legal recourse itself. The Committee could go to court to compel the PP to participate directly in this process and have it finished. If the Committee went to the Constitutional Court directly and raised this as a matter of public interest, the Constitutional Court would give the Committee, at least, the space to raise that this process was being hurdled unnecessarily by the PP. His view was that the Committee should proceed and reject the motion.
Mr B Nodada (DA) said that the Committee must never assume that procedural fairness was one-sided. Procedural fairness applied to all stakeholders involved in this particular inquiry. Therefore, when the Committee was subjected to motions of this nature which had an element of toxic masculinity written all over them by people doing a service for the state in the interest of the public - which by the way the Committee can interrogate anybody who took taxpayers’ money from the state if the Committee needed to do so if helpful to the inquiry in determining the alleged charges. It became abusive when the Committee constantly, as legislators responsible for public interest and ensuring that fairness was not only to the PP but to the people of South Africa who they represented, got applications of this nature which sought to delay this process without the Committee even making a determination on what had been presented to them.
The Committee must condemn completely this toxic masculinity that had been imposed in this Committee in the past couple of days, with people making frivolous and ridiculous allegations. The Committee had now become a committee for discussing purported racism from whatever eye
that people had seen it from, who seemingly lived in their own bubble. This was a public process. The Committee was a people's parliament; they were legislators representing the public, including stakeholders that participated in this process. The Committee had to ensure that they were being fair. For the Committee to be dealing with things like this as if they were incompetent to determine if the evidence leaders were assistive to them or were prejudicial to the stakeholders involved here was actually undermining, ridiculous and abusive. Whatever response that the PP team was going to send to the Committee in writing, the Committee would simply just note that and had to reject this application, continue with the inquiry as intended, and ensure that they were being procedurally fair to all those in this process, including the public who the Committee represented.
He agreed with Mr Herron that the Committee had to deal with a lot of sensationalism, including this particular application, which had to be condemned. He hoped that Members could all agree that they condemned any form of sensationalism and not just nit-pick what those sensationalist items were. The Committee had a particular reasonable timeframe that they needed to participate and be involved in this process. That reasonable timeframe could not be continuously derailed by things, honestly and genuinely speaking, that were irrelevant to this Committee – more so anything that found no reasonable facts. The Committee was now subjected to listen here for hours to something they could have read in an email and made a determination, like they always did when it came to the long reports. Then they came here to this Committee and made a determination and moved on. Being subjected to long hours of oral presentation on things they could have read was really ridiculous. He wanted the Committee to be able to reject this particular application, and continue as a Committee and ensure that the PP accounted to the public of South Africa through this procedural fairness, not only to her but to the people who elected the legislators.
Ms V Siwela (ANC) agreed that this motion was not Mazzone’s motion. The Committee needed to emphasise that. If the Committee left it like that, it was really misleading and she felt the Committee was being undermined. The Committee had been deployed or mandated by the Speaker according to the Rules of the House to participate here and the motion had been adopted by the House.The Committee needed to emphasise this point, because this name was continuing and they were not happy about that. Members felt that they were being undermined. They were here as responsible representatives to represent their constituents. They needed to be given space to execute their duty without any fear or favour. She agreed with the speakers who had indicated that the Committee had not observed any misbehaviour from their evidence leaders. Hence, they were really seriously rejecting that application. The application on its own, according to other speakers, was disturbing the Committee moving forward. With due respect, can the Committee be business-like and stick to its business? This was not a court. She indicated several times that the Committee was not judging anyone.
She asked that the Committee allow this process to proceed and allow the PP to come and account because she was accountable to Parliament. Those other issues were just a way of derailing this process. Hence, she supported those who were saying the Committee needed to continue without any fear or favour. She was rejecting that particular application, joining other Members. The Committee should be focused and allowed to proceed. They had a programme and they needed to stick to the timeframe because this was a waste of state money and time.
Ms Maotwe said that from the onset she wanted the Committee to be clear that the EFF supported the removal of the evidence leader. Secondly, this motion was sponsored by Ms Natasha Mazzone of the DA. It was there in Parliament. It did not fall from the air. There was not a group called Members of Parliament sponsoring a motion. The motion was the motion sponsored by Ms Mazzone and people had to come to that realisation that it was the truth. It was there in Parliament for the public to know and to see. This motion went to Parliament and it was voted for by the DA and the ANC. The EFF had rejected this motion. Members could not come here and sugar-coat things and say it was not a Mazzone motion. It was. It remained a Mazzone motion and it was recorded in the books of Parliament of this country. Now she had to say that despite consistent warnings, the Chairperson had successfully turned this process into some palace politics.
She doubted the public was aware of who in the Committee were politicians, administrative staff or evidence leaders, and what the role of each of them was. It just looked like everyone was an elected politician from the way this meeting was being run. Whether Adv Nazreen Bawa or Ms Ebrahim or her colleagues, it seemed people came here with preconceived conclusions and this was meant to be some rubber-stamping process as long as the ANC and the DA were in agreement to crucify a black woman. The less said about Ms Ebrahim’s conduct and remarks, the better. The Committee had come to accept that the administration of Parliament at times struggled to separate this role between being members of structures of the ANC and their legislative mandate to serve Parliament made up of NA and National Council of Provinces members. The Committee had warned against this, and they were doing it once again. It was the parliamentary legal office that appeared to struggle the most and the Committee saw this even with the other committee to amend Section 25 to allow for land expropriation without compensation. If it was not incompetent legal advice, it was entering the political arena through the backdoor. If the administrative staff wanted to be elected as politicians they must say so. They must not come here masquerading as parliamentary legal officers when they were actually politicians.
It appeared that Ms Ebrahim’s only concern was that the Committee finish this inquiry before the PP’s term of office ended and if they did not, they would not be able to get her after that. It was what she stuck with every time she opened her mouth; she was thinking about the October date and pushing towards it. It did not matter if this process to her was fair or not. This seemed to be her only priority regardless of whether this process was unfair, prejudicial, or discriminatory. It was wrong for Ms Ebrahim to do that. From where she was sitting, it did not even look like there was a concern over the credibility of the outcome of this inquiry. To ask Ms Ebrahim questions, she would just be wasting her time.
If the Chairperson remembered, at the beginning of the process, he kept reminding the Committee that the evidence leader was here to help the Committee to hear all sides and hear all evidence. However, thus far she had done the complete opposite, not only in a shocking way but with a lot of racist insinuations and display of disregard of the dignity of her own colleagues.
The Committee did not know how much Parliament had paid Adv Bawa to date despite endless commitments by the Chairperson that he would display that information. Now it looked like it was a dirty secret how much Adv Bawa was being paid. The EFF was asking, again, how much Adv Bawa was being paid per day by Parliament. How much has she earned since the beginning of this process? She was asking this possibly for the fourth time. The EFF had also written a letter that had not been responded to. Can the public be taken into confidence on how much is Adv Bawa getting so they were all clear what they were dealing with?
On the merits of the PP submission, it started with the Chairperson, whose conduct from day one had been biased and at times bordering on being unparliamentary, because the ANC thought that as long as the DA agreed with them, they had the majority and they were correct. In the process, the Chairperson undermined basic tenets of fairness. It did not matter if she was alone, but the truth remained the truth and the Chairperson had to listen to it and rule on the truth, not on the numbers. The EFF had been saying that every time they took this platform.
What the Committee was even doing now was plainly wrong. The Chairperson wanted to paint the picture that the PP’s lawyers were failing to submit documents on time but he did not tell the public that the evidence leader herself was late to submit her document and that was the consequences of her lateness of submission. The evidence leader was trying to spin a despicable conduct here. The PP removal application was on the display of legal fees. However, the reality was that Adv Bawa’s conduct had always been problematic. The Chairperson could hide it, he could sugar-coat it, he could try to run away from it, but it was the truth. The EFF had written twice to the Speaker of Parliament to demand the removal of Adv Bawa. Adv Bawa had started with colluding with Ms Ebrahim and together they were busy writing affidavits that witnesses themselves came here and told the Committee that they did not understand. The EFF had complained about this and submitted ample evidence to this effect. The argument that the figures were displayed to deal with the subject of irregular expenditure – Members were all conveniently forgetting that this was the very PP who got a clean audit. The PP did not do her own audit. It was the Auditor-General that did her audit.
Why did the Committee call Mr van der Merwe, who did not hesitate to further the stereotype of corrupt black lawyers, instead of the Auditor-General? The idea that the Committee simply put names of people with amounts next to them, this was ingenuous. The EFF submitted questions all the time to Parliament and the Chairperson knew that himself. They submitted written questions for written reply, and when it came to names, because of sensitivity, the question appeared withoutthe names submitted, meaning the name was submitted directly to the Minister. They did not easily put names of people with figures because they knew what this could do to the public. There was no reason and the Chairperson was convinced that Adv Bawa had played the racist stereotype and EFF did not believe she was naive to that reality. All Members could collude to keep Adv Bawa here as evidence leader, but they would have to deal with the outcome of a discredited process. This was not the first time the EFF was warning the Chairperson – they had dealt with this even with Nkandla. It was shocking, actually, that Adv Bawa was not voluntarily stepping down, but the Committee should remove her and proceed with its work. Adv Bawa had entangled herself in a mess. There was no need for the Committee to keep Adv Bawa here. She proposed that the Committee remove Adv Bawa and continue with this process. The EFF therefore submitted that Adv Bawa must be removed as the evidence leader from this process.
The Chairperson assured Ms Maotwe that she was not alone. She was with 23 other Members, both in the M46 venue and on the virtual platform, so she was not alone in the meeting.
Mr B Holomisa (UDM) [in his vernacular language 1:53:40-1:54:11].
Mr Nqola raised a point of order [vernacular 1:55:45-51]. At no stage had they brought witnesses during midnight here. That point was misleading and it was out of order.
Ms Maotwe said that Mr Nqola was out of order. Why was Mr Nqola doing this? She asked the Chairperson to rule Mr Nqola out of order.
The Chairperson said that he had not recognised Ms Maotwe and that he was on the platform. He had listened to the points Mr Nqola was raising. As Chairperson, he would attend to those issues.
Ms Maotwe said that Mr Nqola wanted to overrule the Chairperson and that he must be dealt with.
Mr Holomisa [vernacular 1:56:52 - 1:58:55].
The Chairperson hoped that as [vernacular 1:59:03-10].
Mr Holomisa [vernacular 1:59:14-34].
Dr C Mulder (FF+) said that his colleagues would recall that on the first day of these hearings, he had said that he hoped that the intent was not to delay these proceedings and to keep her busy for whatever time may be left. The Committee gave Adv Mpofu the benefit of the doubt to proceed with the proceedings and Members all went along with that process. Now this application was basically the sixth attempt to side-track the proceedings of the Committee. This specific application was a written application by Adv Mpofu on behalf of the PP. It was 33 pages. He had worked through that. The evidence leaders had responded to that in a comprehensive reply of more than 60 pages. He had also worked through that. In the reply of the evidence leaders they dealt with the allegations in the application. His concern was that the structure or the attempt to have a public outrage or outcry, to a very large extent based on the whole racial issue, was that it was not based on the actual facts before this Committee. It was based on a half-truth. The evidence leaders made it very clear that they put the full facts on the table and that there was no racial intent or bias as a matter of fact.
All the facts were put in front of this Committee, dealing with not only people from one specific group in South Africa, but all the advocates involved. Even the letter from the Johannesburg Bar presented to the Committee the previous day was based thereon. That was why, looking carefully at the letter or in statement, they said “seemingly malicious”. Seemingly, because if it had the full facts, they would know that there was no malice in that whole process. There was an artificially created outcry which was not there if one checked what had happened there. There was an artificial bias and the whole process the Committee saw playing out the previous day when the Committee gave Adv Mpofu more than an hour to talk. Nothing in the oral evidence of the previous day was not already in the written application that the Committee had to deal with.
Dr Mulder said that he had been involved in many processes in Parliament. He had served in all the Nkandla investigations and in numerous others such as Section 25. He could assure the Chairperson that this was the fairest process that had been in Parliament since 1994 and rightly so. Why do I say that? In dealing with an issue right there to create a very fair, absolutely balanced process, it was the most fair that he had seen.
That did not mean that the PP Office could not go through what they see as unfair. That was expected – that the PP could not wait to get into the evidence chair and to convince the Committee of the other side of the story. This was now their opportunity. The Committee had been waiting for this for quite some time. He found it rather strange that the PP legal team were not grasping that opportunity immediately. For example, the witness that the Committee had been trying to get in front of them on the PP’s behalf, being the PP’s first witness. He was astounded the previous day -as it was amazing to hear that witness was not prepared. Surely that was the number one witness they had and they had ample time, months, to present in front of this committee? He hoped that that could still be done today. Surely, they have now prepared that witness? In conclusion, he thought the next removal application would be against either the caterers or the sound division. The Committee had seen this playing out one after the other and he guessed that the caterers would be next in line. He really wanted the Committee to move on. He thought the PP’s team, Adv Mpofu and friends, had had sufficient time to bring what they wanted to do. They had not supplied the Committee this morning with a response. He did not think the Committee had received it yet. He also supported the dismissal of this application, and that the Committee proceed immediately and continue their work. When the next application came - against the caterers - the Committee would deal with that as well.
The Chairperson said that Dr Mulder had just raised the caterers and this took the Committee to tea. He indicated that the Committee had received the application. He was getting it from the Committee Secretary and to be sent to Members immediately. Quite clearly the submission was received at 11h08 – that was38 minutes later thanthe 10h30committed to in the WhatsApp this morning, let alone the fact that the Committee expected it the previous night or first thing this morning. It had been sent to Members. He asked that the Committee take a 20-minute break. In the 20 minutes if Members picked up anything in the 13 pages of supplementary - because this was supplementary as the main application was made the previous day - Members would be able to do so. It was now on record.
Legal Services response
The Chairperson asked Ms Ebrahim if there were any quick responses she wanted to make. If Members had picked up anything they wanted to put on record from the supplementary response that arrived at 11h08. If none, he was going to ask Ms Ebrahim to make a response.
Ms Ebrahim replied about Mr Herron’s comments. She did not know if Members would recall because it seemed a lifetime ago, but when the Committee started this process,the initial advice Legal Services had was not to have evidence leaders precisely because they felt it was important that Members do the work and were seen to do the work themselves. But of course, following the Constitutional Court judgment which provided that the PP or any Chapter 9 head could have their legal representative actively participate in the Committee, a decision was then taken that the Committee would use evidence leaders. Indeed, the Committee was at liberty at any stage to direct those evidence leaders. As far as she recalled, the witness list was provided quite early on to all Members. Unlike a criminal trial, there was no case, as she had said, that the evidence leaders put forward or that they closed. If anytime Members felt that they wished to hear from a particular witness, that could certainly be raised and Legal Services could go and look at that.
There was a question if the Committee could take steps through the courts to ensure that the process continued. She was not entirely sure on what Legal Services would be asking the court to compel the PP or her team to do but nonetheless, the courts and the Constitution was clear that the Committee should control its own internal proceedings and that Parliament could do that. She thought where necessary the Committee must be firm and needed to do what it needed to do. There were ways and means and other legal avenues available to the Committee already in terms of the Powers and Privileges Act and in terms of the Constitution if the Committee wished to exercise certain of its rights. Thus Legal Services would not want to approach courts unnecessarily and get the courts involved in what should be a parliamentary process. But of course, if there was a specific issue that needed to be raised, they could always look at that at the appropriate stage.
Decision Summary by Chairperson
The Chairperson said he had listened to all Members very carefully to make a summary which was the decision of this Committee. Members had all expressed themselves on the application itself, but they had also raised quite a number of issues that the Committee needed to take in account process-wise. Starting with Mr Herron on suggesting witnesses such as Adv Cilliers there was nothing wrong if he and the team looked into that matter, because that was a person mentioned who would have been central to a particular issue on whetherto do or not do this or that. He was comfortable that the Committee could take up that issue. However, it had always been his understanding that when the Committee issued a witness list, they would expect Members to indicate either way. Mr Herron’s comments were well received in that regard, even as the Committee continued with the rest of the witnesses, because at least up to this point there had never been a stage where the Committee would have refused the calling of a witness. He remembered there was also Mr Ntsumbedzeni Nemasisi mentioned especially by Members. He did not think that would be a problem but the Committee would take that as homework, so that perhaps before they concluded they were able to check the relevance of that. From where he was sitting, he did find relevance in Adv Cilliers on the Vrede Dairy matter.
Two, he thought he had properly recorded the strong views of the EFF through Ms Maotwe. In recording its support for the removal of the evidence leaders, that was clearly noted. On the next issue she had raised, he had said this before and he again asked that Members refrainfrom this and Ms Maotwe continued to repeat this. He found the continued attack on the professional team, the staff members, on the work they did under the direction and insistence of this Committee, very unfair and unwarranted. He had made this point before that when Members did not like what Legal Services presented, they should not attack the messenger but deal with the message.
If it was the advice being given to the Committee, and Members did not like that advice, they should respond to that advice appropriately without attacking the person and even going further and reducing the professional team that worked with the Committee and labelling them ‘politicians’. He found that greatly unwarranted; he had said it before. He wanted to firmly make this point – not only to Ms Maotwe but any other Member – that the Committee might need to take different steps on this because it was not helpful to continue doing that. Members engaged robustly amongst themselves. He was not going to ask Members to pull their punches on him. Members could give those punches and he would absorb them. It was part of the Committee’s terrain, as Members of Parliament, in the way that they engaged. He was not going to take it personally. However, he would want to protect members of staff, of the Committee’s professional team, as Mr Nkosi had indicated, the evidence leaders, who in the responses had coined it appropriately that they were the arm of the Committee. It was part of the Committee’s designation that they were part of this and the Committee would protect them. Mr Nkosi made a very important point that the Committee was very conscious in appointing these two black women. It got to be so unfair and unacceptable the kind of attacks that were levelled against them purely for doing their work – that was the point.
The next point, he thought he had heard Mr Holomisa giving advice and guidance to the PP legal team. Mr Holomisa was within his own rights and the Committee could not take an issue with that, advising them that they needed to take this matter further in different platforms and forums, including the Office of the Speaker. He thought Mr Holomisa made that point very firmly. He had not heard him saying that he supported the removal. However, he had heard Mr Holomisa giving that advice and he was noting that advice as a chairperson. Besides Ms Maotwe and advice given by Mr Holomisa, all the Members that would have spoken, basically 10 of them out of that 12, there was unanimity on the issue of this application of the PP not meeting any threshold, bearing no relevance to the work that the Committee was doing, that there was no way that they could accede to it, and therefore that this application had to be dismissed and rejected. While Members would have motivated a lot around how they felt what the purpose of these applications were, he noted that if Members felt that this was more of a stalling process, delaying tactics, and that was taking the Committee away from its mandate. He would refer to that as being distracted by these incidentals so the Committee had to come back and focus on the work that they needed to do.
As he had introduced the previous morning, this last phase the Committee was getting into was a set of last witnesses. Key amongst those witnesses, central that Ms Sukers had said, the public had a public interest and the public wanted to hear from the PP. The Committee was looking forward to hearing from the PP to give them reasons why she must be exonerated and the Committee delay that any longer. He thought, on that point, he wanted to indicate that a timeline had been set in concluding in December. The Committee was concluding on Monday the set of witnesses that they had lined up and agreed, and he would not want to disturbs that but he did want to place this on the table in response to that, that as a Committee they do so and that he would lead that as a chairperson together with the team in terms of the January program. He asked that the Committee have dated sessions and have the PP to lead and be the first witness in January in terms of the Committee’s work programme. It could not be that when a person was in a DC process that the person who must go to a DC must tell you when he will come or she will come. If anybody else amongst the Members had a grief with that kind of homework, the must say so because the Committee would want to ensure that it did not delay hearing from the PP any longer.
There might be witnesses even after she would have come forward that the Committee could listen to but they needed to get to that point. He wanted to make that. Effectively, there was no case or evidence of the evidence leaders to be removed. He thought on matters of misconduct perhaps there was an advice that the Committee could give. If there was misconduct alleged on the part of the evidence leaders, the Legal Practice Council (LPC) was an address that the Committee could give them. One could go to the LPC and complain about misconduct, not in the inquiry. The Committee could share that address for the LPC on issues of misconduct. It did not belong to the Committee. They were not that professional body to attend to those matters. He thought it was going to be important that the Committee did that. Otherwise, the Committee had also asked that the evidence leaders and team of the PP join them around 12h00. The Committee would take a few minutes break as they waited for them and then relay the decision immediately, but also allow Adv Mpofu to start leading arguments as they would have planned so that in the afternoon, as was indicated the previous day, the Committee is able to swear in the witness. If anybody had a grief on that summary he asked that they speak now.
Ms Maotwe said that she had a grief. It did not matter what the Chairperson said, it really did not move the EFF an inch. If the parliamentary legal office came here and behaved like politicians, the EFF was going to say that. They were not going to sit here and be told on what direction they must take as politicians when it was blatantly clear that these people had an agenda. The EFF was not moved by anything that the Chairperson said or anyone for that matter. The EFF would state here in this Committee what they felt about the parliamentary legal office, and they had demonstrated to the Chairperson that even in the Nkandla case it was the same thing, even during the Expropriation of Land without Compensation motion it was the same thing. They were continuously repeating the same thing that they had been doing, so the EFF was going to call it out. The EFF was not scared of anything or anyone for that matter.
The Chairperson noted Ms Maotwe’s grief.
The Chairperson welcomed back the PP and her legal team as well as the evidence leaders. The Committee would have pushed further than what they had anticipated as the time when they were going to call them in. for the inconvenience the Committee caused there, he apologised but the Committee had to attend their business in the manner that they did. He wanted to quickly therefore take this opportunity, with the Committee having concluded its deliberations on the removal application, to briefly summarise on record in everybody's presence, as to the decision the Committee had taken. After deliberations by Members, they took their time, they listened to the application, they read it, they listened to the oral presentation. They interacted with the written submission of the evidence leaders. They waited without success to receive the supplementary from the PP’s team either the previous night or first thing this morning. Members had been given 20 minutes once they had received it to peruse and reflect on it – which Members were able to do. The Committee therefore came to the following conclusions:
Firstly, there had been one clearly articulated and strong view which had been in a minority that supported the removal of the evidence leaders, firmly put on the agenda by Ms Maotwe of the EFF. There would have been a further advice, call it free advice, offered by the UDM leader to the PP to take some of these issues further on different platforms, including that of the Speaker. The Committee had noted that but beyond these two he mentioned, the Committee was unanimous in its consideration of the application that it had not made any case for the removal of the evidence leaders and that they were not in a position to accede to that application. The Committee declined and rejected it.There would have been other matters but this was the gist. The Committee would forward a formal written response about its decision to the PP in due course. However, as things stood, the Committee decision was that it had not acceded to the removal application by the PP and therefore it wanted to proceed with its work. The Committee would allow Adv Mpofu to make his leading arguments and thereafter go to their witness that was joining them today.
Opening Address by Public Protector legal team
Adv Mpofu said that he did not know what the leading argument was, but it was the opening address. Before he went onto the opening address, he would just indicate firstly, the Chairperson had just made a remark about the lateness of the document that the PP legal team was supposed to send the Committee this morning. He hoped the Committee received their apologies. As they had indicated in the message sent to the Committee, it was really matters beyond their control. The PP legal team had tried everything, including probably sleeping for two hours only just to get it done. But as they indicated in the message, and as the Committee may know, they did not have secretarial services here. That was why they did their documents in Gauteng. Eventually, they were able to make contact with Mr Nyathela only after 21h00 because of the delays. The time that the PP legal team had indicated to the Committee about his travel turned out to be a false start, and eventually he travelled at 17h00 or something like that, and only arrived in Cape Town at 19h30 or just after 19h00. That just compounded the issues which, anyway, they had raised with the Committee that the time was insufficient and inadequate and blatantly unfair.
The whole thing was really precipitated by the failure of someone, he did not know who, to send the PP legal team the evidence leaders response document on Saturday, as they were promised by the Chairperson. But they noted that the document was firstly a day late in its production, and a day late in being furnished to them - and all that was fine. The PP legal team had heard that their document was 38 minutes late but a document that was a day or two days late, there was no problem with that. There was also the difficult position they were placed in through no fault of their own, without anybody apologising. It was really sad how the PP was abused in this process. But as they had said from day one, they would soldier on and they would continue to participate even in the face of all that. The other thing that he wanted to point out was that they therefore found it very objectionable, to say the least, that the alleged deliberations could take place without them having been given a proper opportunity to respond to the 66 pageresponse document that was presented. Without this time, as they had said, now it was quite clear that everyone was intent on rushing to the stage of chopping offher head because now it looked like the rules had even changed. There was no longer the opportunity forMembers to seek clarity from the PP legal teamwhich was also miraculously withdrawn or forgotten or whatever.
It was the first time that there was an application where the PP legal team had not had an opportunity to clarify certain things to Members, most of whom were not legally trained and may have wanted to understand the issues raised by both the evidence leaders and PP legal team. Some of the issues, for example, raised by the Chairperson about the LPC and all that, which they had made clear was not a forum to lay a complaint. The Chairperson should understand that both thePP legal team and their client knew that, being lawyers themselves. However, it looked like they were just talking to deaf ears on all those issues. He wanted to make a specific objection about the submission made by the parliamentary legal office, which basically was just a repetition of the submission made by the evidence leaders. It was blatantly unfair to allow a situation where somebody was going to be giving opposing arguments on the PP legal team’s submissions in their absence, misrepresenting those submissions, and even questioning their integrity and intentions, and accusing them of being involved in delaying tactics and all sorts of things like that. The Chairperson had the temerity to say that Members should not attack the legal staff, because they must not attack the messenger if they don't like the message, but the PP legal team got attacked here, left, right and centre in the Chairperson’s presence.
The PP legal team had complained to the Chairperson that they had been insulted on Twitter and all sorts of places, in this room, everywhere, and they had appealed to the Chairperson to protect them. But the Chairperson had just told them now, this morning, that his duty was to protect the parliamentary staff and the evidence leaders. Who will protect us and who will protect the PP in your Committee if your duty only goes to that extent? Must we be insulted or are you the Chairperson only for the evidence leaders and the parliamentary staff? That was another issue, if they could be given an opportunity to respond to the submission made by Ms Ebrahim which was completely out of line and, as he had said, just mimicked the evidence leaders’ 66 page document almost identically. That issue was raised with the Chairperson and he did not pay any heed to it. The last point he wanted to make was what the Chairperson had said where he called the PP legal team’s application “incidental”. They had to deal with the incidentals and put it away as the Chairperson also said that they must focus on the work which they needed to do.
The PP legal team were at pains to explain to the Chairperson the previous day that the work that the Committee had to do included all the obligations placed upon them by the Constitution and by the directives and the Terms of Reference. One of them was that the Chairperson must ensure that this process runs fairly. It was not a favour that the PP legal team was asking from him – it was a must. The Chairperson must ensure that the Committee process is run fairly and reasonably. If anything that had happened in the last two days was anything to go by, then fairness and reasonableness was the last thing in the Chairperson’s mind. It looked like he agreed with Ms Ebrahim that all that needed to be focused on was the end of the term date of the PP. In other words, if the process was fair or not fair or reasonable or not reasonable, or in line with Section 34 of the Constitution or not, the Chairperson did not see that as part of his business. The PP legal team had made it clear, again, contrary to what Ms Ebrahim had said to this Committee, Section 34 of the Constitution, which bound the Committee made no distinction between a court of law or this Committee.
Section 34 says you are equally entitled to fairness in a court of law, and in any other forum such as this one. To keep on telling the PP legal team that this was not court of law, was the same as saying, “well, this place is now exempt from the Constitution”, which was an absurdity. Nobody, at least those who practiced in courts of law, could ever mistake this for a court of law. But they were saying that the Constitution applied equally, and somebody in the position of Ms Ebrahim should know that instinctively, instead of regurgitating that senseless suggestion that simply because this was not a court of law, then the rules of fairness must be suspended and not applied. That was the issue. Ms Ebrahim was also wrong that public participation did not involve taking heed of the voices of organs of civil society and members of the public. The PP legal team did not make the accusations that they were accused of making against the evidence leaders. All they did was to bring to the Committee’s attention to what was out there, what had been said, what had been sparked by their conduct, and what was the perception of the PP as a result of that.
So again people were going off a tangent here as if the PP legal team were the ones who had made the statements that were made by the Johannesburg Society of Advocates, for example, which represented more than 1000 advocates. When it said, “conduct is seemingly malicious”, that was something that had to be taken into account by this Parliament [3:10:35 vernacular]. He could not remember the term they used, 'external forces' or something like that. There were no external forces. Those were people who were a part of the Members’ constituency. South Africans voted them into power to be sitting on this Committee, and they had a right to participate in whatever way they wanted in this Parliament because it was their Parliament, not the Chairperson’s. Those were just some of the issues that should be disturbing to any right-thinking South African. If this Parliament could degenerate to levels, even below those of a kangaroo court, of actually not giving the PP legal team a chance, firstly, to finish their submission. They had asked the Chairperson for 10-20 minutes the previous day to finish their submissions. The Chairperson had denied it unreasonably without any reason, because there was no reason for the PP legal team to have to adjourn at 12h05 as opposed to 12h20.
He said that the Chairperson had practically made them work overnight, the whole night and the morning, compiling documents, which the Chairperson was just going to ignore so easily and not wait for, even when they pleaded with him. That was the worst form of abuse – abuse of power, abuse of position and an assault on their dignity. However, as the PP legal team had said before, the Chairperson had the power now but it should not be abused in this fashion. Even an apology for not giving them a document they deserved to be given on Saturday. It was late; it was not given on Sunday. It was late; it was not given until the PP legal team had raised it here on 28 November. When they reacted to that affront done to them, they were treatedas if they were in a kindergarten – as the Chairperson had said the previous day. If anything was going to be learned from this process, it must be what not to do, how not to behave, and how not to treat people. Even if that would be the small contribution the PP legal team made to the development of the Constitution, that would be quite something. Anybody involved in this facade should be ashamed of themselves of any part that they played in degrading and insulting the Constitution.
The PP legal team now wanted to refer the Chairperson to clause four of the directive, which gave them the right to make a second opening address. It will be remembered that he had made a promise and he would try to keep the promise made to the Chairperson on the first day, namely that the PP legal team would not re-traverse the other opening address because this one was supposed to serve a different purpose. Where there was some overlap, he would indicate. There were one or two areas where there was an inevitable overlap with the issues raised earlier. But as he had said he would not belabour them, he promised, just so that they could make progress. There was no point in repeating what was already on the record from the previous address. The purpose – and perhaps he would start right there to distinguish the two. The PP legal team in their engagements with the evidence leaders in fashioning the directives, they made this proposal for a second opening address. They were grateful that it was adopted. The reason was it really talked to what they had all said here repeatedly, namely, that this was a novel process, unchartered waters, and virgin territory – all sorts of metaphors had been used.
In the first opening address, the PP legal team took the opportunity tosituate this whole process in the larger scheme of things. It was a more broad-based opening address. Without wasting the Committee’s time when the time came for them to call witnesses, they would then have this opening address which zoomed more into the nuts and bolts, as it were, of the evidence itself, the witnesses that they were about to call, and what issues might still be remaining. The purpose was really to assist; it was not to waste the Committee’s time. On the contrary, it was probably to save the Committee’s time because once the PP legal team had mapped where they were going with the evidence, then everyone would know that this witness slotted here, this one talks to that, this one talks to that, without every time there is a witness the PP legal team having to situate that particular witness. They hoped that it would be seen in that positive spirit that it was intended for, which was to assist the Committee to navigate this, what the Chairperson had called, phase of the process.
The PP legal team had focused in the first address, it will be remembered that they started by, and again he was not going to be long on this, so that he did not have to reargue it, but he was just reminding everyone. Their opening salvo the last time was that they were here under protest because of the countless constitutional violationsthat they had identified at that stage. Again, he would not go through them. They had also pointed out and on that he had to say that given the experience of what had happened in the past four months, if there was such a thing as double or triple or quadruple or quintuple protest, then they were now under that protest. This was because, really, it had been quite an ordeal to say the least. But be that as it may, they were still here and they would be here and they were going to see this through. Contrary to the gratuitous insults of the likes of Dr Mulder and others, they were more than ready and keen to see the finality of this and also to see the PP, as they had indicated on the first day, giving her side of the story. There was nothing that they would like more than that. But that must never be mistaken as saying that they were so keen to do that, that they were just going to subject themselves to a kangaroo court and not raise objections as they were entitled to constitutionally.
There was no legal process that he had ever heard of where people were not allowed to raise objections at any point about anything they perceived to be unfair. He was sure that when Members watched movies they heard people objecting to this, that, and the other. All of that was in the aid of achieving fairness. It was not just a game that the PP legal team played of objecting. It was what they were here for. That was what they were trained to do. It was what they were hired to do, to protect justice and fairness. Otherwise, they should not even be here. That was why the Constitutional Court ruled that they must be here. It was not just to fill up these chairs. It was to ensure that there was justice and fairness in this process. Anyway, so that was the issue that they had raised. The other issue that they had raised was, and he was raising this for a specific purpose, even then he had raised it and said to the Chairperson, “I know this one issue doesn't belong to you but I'm raising it for broader context”, and it was that when this process went to the NA, the PP legal team would ask at that stage for a secret ballot to be the method by which the matter was going to be determined.
As he had said, he did not need the Chairperson to make any decision on that; he knew that it was not in his province for now. However, he was raising it in the context of this particular Committee and the experience the PP legal team had now had when he said that on 11 July. Little did he know that four months later, they would be in a situation where it was clear that they would need that protection from the voting cattle syndrome of just instinctive crowd behaviour? It was going to be a very crucial aspect of making sure that people indeed voted with their conscience. He did not have to motivate that, one could just read the case of the UDM v The Speaker, where they won the right for a secret ballot vote in respect of a motion of no confidence as opposed to an impeachment in that particular case. They had won that right in the Constitutional Court to avoid exactly this idea of people, as he had said, if one said today was Sunday, everyone could vote that it was Sunday but that did not mean it was really Sunday.
The third issue the PP legal team had raised was that, and he had already touched on it, the value of the legal representation afforded to the PP by the Constitutional Court must be looked at in its true perspective. He would not repeat what he had just said earlier, but one of the perspectives from which it must be looked was the fact that this Parliament, literally, and it had now been demonstrated why, fought tooth and nail, to put it mildly, until the highest court in the land, to ensure that the PP should come here without legal representation, or without legal representation of an anybody who was really participating in the process. Tooth and nail. Now the PP legal team could see why. By now, he thought Adv Mkhwebane would have been burnt at thestake in the first five minutes had she not had the protection afforded to her by the Constitutional Court. The PP legal team had to really appreciate that because even with legal representation the guards of the guillotine were boiling already. However, he could assure the Chairperson, they would do everything in their power to protect the PP’s rights and the Constitution if nothing else.
It did not matter who said what, it did not matter what insults were yelled at the PP legal team on a daily basis in this place. They were equal to the task and if they had to bring an application now, in the next five minutes, they would bring it. If they felt that there was an injustice that was meted out against the PP, they would voice it. If they had to go to court, they would go to court. The Committee had to make no mistake about that; they would not shirk from those responsibilities. Nobody was to think that they could be easily intimidated by repetitive statements about this was the fourth or the fifth or the sixth or the hundredth application, and lectures about how they should prepare witnesses from people who had never prepared witnesses in their entire life, where they would not know witness preparation from their elbow. The PP legal team had to make that very clear. He just wanted to underline that; otherwise they should not even be here. Then they would really be wasting citizens' money. Those weresome of the issues the PP legal team had raised before.
In today's address the PP legal team would focus on, or one of the issues that he had to touch on just because it was topical now, which was discussed on both sides by the way, was the role of the evidence leaders. They had raised that at the beginning. The evidence leaders had raised it themselves. He was surprised now today that the evidence leader told them that they were saying that the evidence leaders were prosecutors but they themselves in their opening address said that they were not prosecutors. The PP legal team had said the same thing. The evidence leaders were not prosecutors; they were not supposed to be prosecutors. The reference to prosecutors was exactly a contrasting one. It was a standard that was set by the Committee in its Terms of Reference, not by the PP legal team, at paragraph five. It said that the inquiry was inquisitorial in nature and the evidence leader does not act as a prosecutor. Whoever drafted the Terms of Reference was not saying that the evidence leaders were prosecutors; they were saying the exact opposite – that the evidence leaders should guard against behaving as prosecutors. What the PP legal team had said the previous day was that if the evidence leaders conduct did not even meet the standard of the prosecutor, then clearly it could not meet the standard of evidence leader. That point seemed to be lost in translation.
That was the issue. The PP legal team could not be told here, unless they were dreaming, everybody was here when Mr Samuel said that these court judgments he put in his statement, he had never read them. Members were all here when he was referring to paragraph 117 of Ms Ponatshego Mogaladi’s affidavit and he asked her, “Have you ever read that affidavit?” She said, “No, I've never seen it in my entire life.” How did she know what was in paragraph 117 or 118 or 119? Now everyone had amnesia and the PP legal team was told that it had never happened that the evidence leaders spoon-fed evidence for witnesses. But that was fine. The record would speak for itself. That is as far as looking back is concerned.
He asked to say one thing and apologised as he should have said it in his earlier remarks before he started with this address. The Chairperson had said something, which he did not know if it was serious or if it was actually going to happen or not, but he was sure they would get some communication. But the Chairperson said that when the Committee comes back in January, the first witness that the PP legal team must call is the PP.
Well, news for the Chairperson, the PP legal team was going to, unless otherwise ordered by somebody else, call the witnesses in the sequence that they chose to call them and as they were entitled to. Not even in a kangaroo court – by the way he was once part of a kangaroo court it was called the people's courts in the 1980s. He used to represent people, by the way, so they used to slash them before he came so that he did not represent them. But not even there in a kangaroo court do they ever do what the Chairperson was now purporting to do which was to prescribe to a party or to a person who was facing the jeopardy of such a serious matter as an impeachment. What was next? Is the Chairperson going to tell the PP legal team what questions to ask or what they must wear when they come here? He hoped that idea would end where it started. Otherwise, the Chairperson had to prepare himself for quite a serious resistance on that front. As Adv Mpofu had said, he did not know where it would end.
Now for the record, the PP legal team just wants to situate the next discussion. The evidence leaders, as might be known by now, had called 18 witnesses up to where the Committee was now. The inquiry had now sat, he thought this was probably day 40. The evidence led by evidence leaders was spread over a period of exactly four months, having started on 11 July until 11 November 2022. Of the 18 witnesses called by the evidence leaders, 15 were current or past employees in the PP’s Office. One was a so-called expert who said he was not an expert and one was an alleged member of the “Rogue Unit”. The other was Mr Visvanathan Pillay, the one who allegedly retired at midnight and was rehired one minute later. Those two witnesses related to the so-called Gordhan cases. Those were the three exceptions but for the rest, 15 of the 18 witnesses were employees or past employees of PP’s Office. It was in that context that the PP legal team made the remark that they had made that this inquiry, well, firstly, some of those employees, in fairness, dealt with specific reports that featured in the charges, for example, Vrede, CIEX and so on – he thought about one or two each.
However, for the rest, this was like a Human Resources (HR) or the Commission for Conciliation, Mediation, and Arbitration (CCMA) process with an array of disgruntled employees or those who had a particular view about chasing deadlines and ensuring clean audits and serving the public. As the PP legal team sat here now, they had given the Committee a list of witnesses. Some of them, and he would come to that, would talk to some of that evidence almost directly but others will cover new terrain that was not covered. Of course, the PP, whenever the PP legal team called her, if it was as the first witness, or the second, or the sixteenth or whatever, they would then deal with the relevant evidence that was directed at her. This was where he was apologising to the Chairperson that there would be some overlapping issues. One of those was an issue he wanted to raise sharply without elaborating because it had been exhausted here. It was the scope of the inquiry. Very important, fundamental key issue. He was not raising it, in case the Chairperson might fear that he was, for the Chairperson to make any decision or anything if the Committee had made its decision about it and the PP legal team had said their piece about it.
He was raising it purely in the context of navigating the way forward and at times the PP legal team would tell the Chairperson when that issue reared its ugly head, which would be probably in respect of every witness. The reason why that issue was crucial was because, contrary to this hype about delaying tactics and the PP legal team not wanting to get to the end of this and all that, there was no single issue that delayed this Committee unnecessarily than the fact that the PP legal team had to cover ground which was completely irrelevant to this process. Even this hullabaloo about legal fees or legal costs and people's names being bandied about was actually much ado about nothing in relation to the motion at all. Firstly, the PP legal team had explained that even if one took the Mazzone motion at face value, it referred to legal fees, which any first-year student would tell you was a completely different thing. It referred to legal costs, which would tell you that was different from legal fees. That was the first thing that the Committee should assume, for the purpose of that, that the motion was looked at face value.
However, what was worse was that if one looked at the independent panel report, that issue, if it was legal fees or legal costs or legal whatever, that was not one of the charges that the independent panel said there was prima facie evidence about. So completely it was just a waste of breath to have to deal with that. That was the one thing that was under what the PP legal team called the narrow approach. On the wide approach, then the issue of the interpretation of what was meant by Ms Mazzone when she raised this issue, including what was meant by Mr Mileham when he raised it as well, in the context of benefiting lawyers. That now had to be clarified on the so-called wide approach, but he was saying that clarity would actually be unnecessary because the issue was not an issue which had passed the threshold of prima facie evidence. The Committee could not be examining issues where there was not even prima facie evidence about. By the way, while he was at it, the PP legal team had received a message that the only person who could assist them in that respect was Ms Mazzone who was the author of that, and she would know if she meant legal fees or legal costs or whatever. She had now sent a letter, given the letter he had referred to the previous day, that she was not willing to come and assist the Committee.
The Committee was set up as a result of Ms Mazzone’s misguided endeavours and the charges that might need to be interpreted or explained, she was not willing to do that. That was another issue that the Chairperson would unfortunately have to deal with. If history was anything to go by, the Committee may never know if it was legal costs or legal fees because that was how everyone was here. The more relevant evidence was, the less likely the witness would be subpoenaed. The less relevant, then the Committee would have an array of 15 people saying things or coming to give evidence about documents they had never seen in their lives. But that was where the Committee was. He was saying that that issue of the narrow or the wider approach would be resolved whenever it got resolved. But his prediction was that it would turn out to have been the biggest cause of any delay, particularly if it was proven, which should be common sense, that the independent panel was not just a waste of time - it was a filtering mechanism to ensure that only evidence that passed a particular threshold should see the light of day here.
The process of the Speaker as well, when the motion was initiated, one of her jobs was to ensure that the motion was “in order”, which meant that it complied and it had prima facie evidence. But as he had said, that would be the burden of the Committee. It decided that it will not. He wanted to just round off that point by referring to the minutes of the NA proceedings of 16March 2021 when the motion was adopted by predominantly the ANC and the DA and others. It said, “Consideration of recommendations of the independent panel established in terms of Rule 129U to conduct a preliminary assessment.” The question put was that the independent panel report, which recommended that the NA proceeds to conduct an inquiry into the PP on the specified grounds be agreed to. In other words, on the grounds that if one read the independent panel report, it was called Annexure A. The independent panel tried to make it easy for the NA by putting an Annexure A where they summarised which grounds had passed the test. Then that was what happened. That motion was agreed to, and the report accordingly adopted. In other words, the report with all its qualifications was adopted. But he supposed that would be a debate for another day and another place.
All he was saying was that the Committee might be at least wasting half of everybody's time by calling witnesses on issues that did not pass the test. He had spoken about the witnesses already called. He was going to now speak about the PP legal team’s witness list. They had indicated, and he was not sure if it was formally here or if it was in writing, that they might have one or two witnesses who were not on the witness list. But they undertook that whenever there were those amendments, if it was taking someone out or putting someone in, they would make sure that there is proper and timeous communication and submission of statements on time. As he had said, contrary to popular belief, nobody wanted this thing to move as quickly as possible than the PP. The Committee would get their full cooperation in that regard.
Then the next topic that he was going to talk to just before, he was just going to round off something, and he would then zoom into the real purpose of this address, which was to talk about the specific charges and how the PP legal team was going to approach them.
The issue that he had said he wanted to nip in the bud quickly was the fact that some of the witnesses that were called by the evidence leader, some of those 18 witnesses, did not finish their testimony. For example, somebody like Mr Pillay, who was somewhere in Holland or whatever, had indicated at that stage that he was available only for that particular day. But now, it looked like the interpretation of that was that he was available for that day for the rest of his life and irrespective of whenever it was, the PP legal team must just live with the fact that he cannot be asked to come and finish his evidence. This was somebody who had volunteered to assist the Committee, presumably in response to the advertisement on public participation. But now when the PP legal team was saying that he must just simply finish his evidence, they were given all sorts of stories and obstacles. If Mr Pillay was here to assist the Committee, then it had to be that he was going to assist everyone in the Committee, including the PP legal team who might need his assistance. It could not be that Mr Pillay got blocked at the point at which they wanted his assistance in the form of cross-examination. But again, that was where they were,
Same thing with Ms Basani Baloyi. She came, and the record spoke for itself. She was not even answering questions, going off on some unnecessary tangents and making up stories about people calling other people ‘madam’ which was quickly proven to be false. When the PP legal team wanted to finish her cross examination, again, she was nowhere to be found and no assistance from the Chairperson or anyone to ensure that she just did the honourable thing of finishing her evidence. The former employees were Mr Vussy Mahlangu who finished his evidence andhalf of Ms Baloyi. For the sake of completion, if anybody was interested, he read out the names of the 18 witnesses that were called. They fall into the categories that he had already explained and they gave what was called a mixed bag of evidence on various topics, including: management of deadlines and backlogs and related meetings, which the PP legal team would deal with in their evidence as well; system of issuing so-called audi letters and other HR issues, which they would deal with in their evidence; allegations of harassment, victimisation, and intimidation which nobody really sustained, but which they would deal with; witnesses impressions of the PP as a leader, which they would deal with.
Further topics included the underlying and endemic issues bedevilling the institution, including budgetary issues. Then the evidence leaders dealt with o-called legal fees, which, as the PP legal team had indicated, was not even covered in the Terms of Reference other than the charges. The PP legal team said in their view, broadly speaking, the following issues needed to be addressed or kept at the back of the mind as they moved forward. The role of evidence leaders. He would not say much more, but a lot had been said the previous day, and today. The role of the PP’s legal representatives. He had also said enough about that this morning. The role of the Chairperson. This had been traversed and was in front of the courts now. The composition of the Committee and its alleged bias. That was also in front of the court. Then the confusion, which he hoped would be cleared, and he would say something about this, over some of the legal concepts such as cross-examination, relevance, attorney and client privilege, full legal representation, and the like, which, as he had pointed out before, some of these terms did not mean what they meant in normal English and it was important to unpack them.
Perhaps he would interpose by saying that one of the witnesses that the PP legal team would be advising the Committee about - maybe when they got back they would deal with some of those aspects - as an expert, just to explain some of the things that seemed to be dodging the attention of the Committee even this morning, as he had said. This was what the duty to fairness really meant and particularly the Chairperson’s role to ensure that there is fairness in the process. Is it one that should be skewed for one set of people or should it encompass everyone? What does it really mean? Then there was the bedevilling issue of the status of the court judgments that also fell under that category. Hopefully, whoever had to deal with that would also unpack it, as well as if they were binding, as Dr Mulder seemed to believe, or if the PP was entitled to bring evidence to refute whatever prima facie evidence might be contained in them, issues of the law of evidence and maybe the separation of powers. The PP legal team would lead evidence on that because it seemed that it was quite necessary.
Adv Mpofu continued saying he just wondered if the Chairperson would allow him to go back to the issue that he had raised about the necessity of the evidence of one of the witnesses that the PP legal team intended to call – Ms Mazzone. When he had reported to the Committee about the letter the PP legal team had received from her, that was from indirect accounts from behind him here, He had now had an opportunity to look at the letter itself thanks to the lunch break. He just wanted to say that basically the letter, he would not read it in full, but it basically said that she noted that the PP legal team had asked her to testify for two reasons, firstly, to explain the intention of certain aspects of the motion and, secondly, to deal with the motivation behind the motion and if it was improper and so on. Then she said her evidence was irrelevant and therefore she declined to give evidence voluntarily. He just wanted to confirm that it was the voluntarily that he wanted to emphasise, which meant now the Committee was in the land of subpoena. It was now, as Nelson Mandela once said, now in the Chairperson’s hands.
So that was where the PP legal team stood with that matter. As he said, it was obviously a strange one and it was the first time in his life he heard a complainant who says, “Somebody stole my car”, and then when asked to come give evidence in court they say “No, I'm not coming there.” But he supposed there were complainants and there were complainants. Now, where he was, he was getting to the matter which he pre-empted earlier. His heading here said, ‘The sequencing of witnesses.’ He had jumped the gun because he was worried about the Chairperson’s remarks this morning. Here, what the PP legal team said under the sequencing of witnesses was that the way they had structured the sequencing was firstly in broad categories. But already it was not working like that. They had always said that witness handling was one of the most difficult things of their job because they had lives of their own. They preferred those cases where one just went and argued their papers and not have to deal with witnesses. Ideally the PP legal team would have wanted to structure it like this, allow it to be called blocks. The first block would have been the expert witnesses, one or two. One to do broadly with the role of the PP and that kind of thing. Then maybe the expert that he was talking about on evidential issues.
The PP legal team also had a slight possible problem, which he would raise with the Chairperson perhaps the following morning. One of their witnesses who was based in another country may no longer be able to testify because she may have been appointed to some high office that might make it difficult. But they were still talking. In fact, what the PP legal team would ask her was if she would not in any event, even if she could not testify, hand in a statement – in which case, they would then hand it in at that time. But he was just giving the Chairperson an early warning about that. It seemed to be then those types of witnesses, the general expert witnesses. Then the PP legal team would deal with the issue of incompetence, the allegation of incompetence, broadly and narrowly. By that he meant that there were people who would be talking about their own perception but there would also be those who spoke specifically to specific charges of incompetence. Then the PP legal team would do the same thing about misconduct charges, as was known, particularly the Vrede and the CIEX matter kind of straddled both topics here. They would deal with those.
Then the HR issues. Again, it was just a tag that he was giving, Members knew what he meant. It was the internal PP employee issues and so on. That was how the PP legal team had grouped the witnesses. One would have a witness like Mr Pravin Gordhan – just to take randomly – who would be dealing with the misconduct aspects that dealt with his reports. Again, he was using the words loosely. When he said the Gordhan reports, Members knew what he was talking about – the so-called ‘’Rogue Unit” and Pillay retirement and so on. Then there was a catchall group that would deal with specific issues. Ms Mazzone, when the PP legal team eventually got to her, would then assist them on a broad perspective of that because she was the cause and the reason why they were here. What drove her to get the Committee to be here? It was heard that this process in total was probably now run into almost R100 million in its different guises. It would be important to situate it. But as he had said, for each witness he undertook that it would be clear, as they started with the witness, which of those subcategories they wanted to address and if there were overlaps they would point them out.
Now in terms of the broad approach, the PP legal team understood, as they should, that the process was inquisitorial. But ultimately, the Committee was still expected to make findings of fact and this could only be done in their respectful submission on a balance of probabilities after weighing up the evidence in relation to each charge. But he did not need to dwell on that because when the PP legal team did the closing address, obviously, they would define what they thought was the test and so on. He thought, it was an idea that just came to his head now, they might even be able to, between themselves and the evidence leaders at that stage, agree on some of the basics of how the evidence should be approached. They would take a two-pronged approach. Obviously, some of the issues, and he did not want to commit to the Chairperson or commit to anything at this stage because it was too early, but the PP legal team would take the position that if no evidence was led on an issue, if they dealt with it they would deal with it just for the sake of completion, but he was not going to waste the Committee’s time on those kinds of issues. But again, they would be in touch with evidence leaders so that they were not leaving out something because they thought it was not being pursued meanwhile it turns out that it is being pursued.
He then zoomed into some of the specific issues that dealt particularly with specific reports. The evidence that the PP legal team was going to call first, as they had indicated, was Mr Nyathela, who was going to be followed by the other witness he was talking about. But they thought that they would be able to call Mr Muloa Lamula as their second witness because of these developments. They were trying to make sure that Mr Lamula was basically not on standby – fortunately, he did not work far from here. When they came back, they would kind of finalise those types of general or expert witnesses by calling the one outstanding witness in that category. Then they would go according to the blocks that he had defined.
Now he would pick out some of the important aspects of the charges or of the motion. He wanted to round off and was jumping back to some thought that had just come to his head which he would lose if he continued. He was tying this up to the point he was making earlier about Ms Mazzone. He referred the Committee to 1.5 of the directives, which defines what was meant by motion. He thought this was done deliberately because there was already a contention between the PP legal team and the evidence leaders around this issue of the so-called broad or narrow approach.
What the directive then defined, it said, “motion means the motion of Ms NWA Mazzone, MP, dated 21 February 2020, to initiate an enquiry in terms of Section 194(1) of the Constitution for the removal of Adv Busisiwe Mkhwebane from the Office of the PPSA on grounds of misconduct and/or incompetence.” That was the official legal definition of the word ‘motion’. That was why when one called it the Mazzone motion, it was placing reliance on this clause. He was sure this was going to be debated if and when Ms Mazzone continued with the attitude of not wanting to assist the Committee. Back to where he was, he was saying that he was just going to talk about CIEX. Again, he was not going to dwell on it, but just to give the Committee a kind of guidance of where the PP legal team would go when they dealt with that particular report which straddled both the misconduct and incompetence charges. Their position would be, which they would argue at the end and hopefully the witnesses would assist them in sustaining that argument, that it should be clear by now, after the witnesses that had been called that the CIEX-related charges had been totally misconstrued both in their formulation and how they had been presented, and maybe even how they had been characterised in some of the court judgments.
The gist of those charges was that the PP came up with some outlandish idea about the Reserve Bank and its place in the South African economy and so on, and kind of just woke up one day and put those in her report in some effort to put the markets in a tailspin or whatever. Then there was this other State Security Agency (SSA) bogey because the originators of this motion were of the idea that Adv Mkhwebane was a “spy”. Everything that had to do with SSA then had to be viewed with suspicion. The PP legal team had in this category, the fact that she had asked a Mr Moodley, who used to work at the Reserve Bank, when she was formulating the wording of what turned out to have been clearly her own idea for a long time and one discussed with economists and all sorts of people and research by Mr Cornelius van der Merwe. But the PP legal team would show that there was no substance to the charges and that she was acting totally within her remit, which allowed her to, quite frankly, make proposals and suggestions to any organ of state including Parliament or anybody.
The PP legal team would deal with that in that way, and would rely heavily on Mr van der Merwe’s evidence, who had really given the Committee the genesis and evolution of that idea. Then they would also deal with if the recommendation for the constitutional amendment which formed part of the remedial action, fell outside the mandate of the PP, which he had already said. Bottom line, as with all the other charges, was that whatever conduct the PP was involved in was not an impeachable offence by any stretch of the imagination. Thus the bottom-line would be that there was not even a semblance of anything approximating an impeachable offence, at least not as defined in the rules of this Committee. Here, he could indicate that the evidence of the PP herself would be key in dealing with all these aspects. For obvious reasons, she was the one who was interacting with all these people, if it was Mr van der Merwe or the SSA people or the Presidency. In the charge there was even a suggestion that the amendment was done on the advice of the Presidency, which was quite something.
Then if one went to Vrede, and in a similar vein, again he was doing a broad brush, there was going to be a lot of detailed evidence on this. Here, one of the things Adv Mkhwebane was accused of was that she narrowed the scope of the evidence. He thought that had already been shown to be false. That she excluded certain politicians including the then Premier of the Free State, which had also already been shown to be groundless by the witnesses called by the evidence leaders. That she avoided dealing with the so-called Gupta Leaks, that had also been shown to be false. In fact, the opposite was shown that she was insisting on using the Gupta Leaks. That takes the Committee, if he could digress a little bit, to the question raised by Mr Herron this morning about the evidence of Adv Cilliers, which he agreed with Mr Herron and the Chairperson, that it was something that would at least ostensibly be relevant to the proceedings of this Committee. He just wanted, perhaps in support of Mr Herron’s proposal in general, that this whole idea of witnesses that the Committee might want to call, and he obviously did not need to prescribe to the Chairperson, needed to be dealt with as soon as possible so that the PP legal team knew where and how it fit within this. But specifically to do with Adv Cilliers, he could warn the Committee that they were going to need a lot of persuasion. The PP legal team had definitely tried to get her to come in and he knew that the evidence leaders had also tried.
Adv Bawa noted that while Adv Mpofu was on the subject, it was not just a question of trying. It was a question of, and perhaps in context, Adv Cilliers was retired from the PP’s Office. Adv Cilliers was living in a rural area on the outskirts of the Free State and she was busy with carrier or racing pigeons. But the fundamental difficulty with the evidence was that after a long period of time, Adv Cilliers had no memory recollection of events, after several attempts to talk to her. The evidence leaders had sent several batches of documents down. They had tried numerous ways to ascertain and they hit a brick wall. They came to the conclusion that they were not going to get anything meaningful for the Committee. And in conversation with Adv Mpofu, he – in having those difficulties – reached the same conclusion.
Adv Mpofu said that was true. Adv Cilliers had made it very clear that she was a farmer now and she was not interested and all that. But he thought the point he was making was that the general idea of identifying these kinds of witnesses was something that the PP legal team supported.
Adv Bawa interrupted.
The Chairperson said that he did not recognise Adv Bawa. She was baiting this point of digression. Where the matter had been put here, the Committee heard what was being said. It would not stop the Committee pursuing. He wanted Adv Mpofu not to go any further on the matter.
Adv Mpofu said that the Chairperson was quite right, and in any event, it was a digression. But for him, the big point was that the Committee should respectfully apply its mind to what witnesses it might want to call. Obviously, the Committee would know which witnesses were called by the evidence leaders, but once they had sight of the PP legal team’s witness list, that was when they might be able to do that exercise.
He was still talking about Vrede, and it was also alleged that Adv Mkhwebane had failed to investigate certain aspects for ulterior or improper reasons. In other words, for example, where if she said something was not done because of financial constraints, that was found to be false. Again, the main witness around Vrede issues would be the PP and one or two of the other employees who might have been involved in it. The PP legal team’s approach, again, and that was probably for legal argument at the end, was going to be that they relied obviously on what their witnesses had to say. Obviously, they would also rely on what concessions were made by the witnesses called by the evidence leaders on the key issues. He did not mean all the concessions that might have been made when the PP legal team was testing credibility and so on, but on the concrete issues that formed part of the charge.
Then there was the Financial Services Board (FSB) case. There was not much really that turned on that case. He thought it was only mentioned in passing by Ms Mogaladi. The PP legal team was assuming that it would just be an issue of analysing the report itself and looking at the objective facts and determining if they matched the charge. An example was that there was something in that charge about the Rule 53 record compilation. He thought all the witnesses made it clear, the PP had nothing to do with compiling these. The PP legal team would not spend half a day on that. They would deal with it just for the sake of completeness. But they were not going to waste the Committee’s time on issues like that. The PP had just reminded him that FSB thing, subject to what he had already said, also had relevance to disciplinary action taken against Ms Mogaladi, Mr Abongile Madiba, and those people who were in her unit. That was correct. So again, the PP legal team would deal with it in that context. It will be remembered that was when he was cross-examining her about the so-called self-imposed deadlines and so on. They would deal with it in that context as well.
The next one was the CR17 report which was mentioned in the chargesheet. This was the then hotly contested issue of whether the PP acted beyond her jurisdiction in investigating under the Executive Members’ Ethics Code, the fundraising activities of the then Deputy President of the country to achieve political office, which was done. The court found that this was a private activity. Unlike the current one of Phala Phala, which was supposed to be a public activity but was a private activity. But that was just a digress. The PP legal team would deal with that issue and test that conclusion on jurisdiction. Again, when they did that, this must be clear, because it went back to this thing about the binding nature of legal judgments. They did not want to address this at that level. What the PP legal team would convince the Chairperson and his Committee was that the PP at least did not act in the manner specified in the Rules of intentionally or grossly negligently or recklessly or whatever making these decisions. Even if one were to assume it was true that the CR17 fundraising was a private matter, which he did not believe himself but he was not the one who was being impeached, the point was not if he or the Chairperson believed it. The point was if the PP subjectively, at the time that she acted, believed it – genuinely or not. As he had said, he did not to dwell on that. When the PP legal team did the legal argument at the end, they would go to town about what the test really required. He did not want to traverse that. The issue would be if the finding the President benefited personally and also in a public sense of the word, and if the Committee and the public would believe it after hearing the PP, that she was doing that out of some personal vendetta or she was just doing her job. Further if she was which was even worse and what Mr Cyril Ramaphosa actually had said, driven by political motives. This would be a serious charge if it were true, but it was false. The PP legal team would also demonstrate the falsity of that charge. He used the word ‘charge’ in a more general sense here. And if in doubting the bona fides of the President, in respect to his version, that this money was raised without his knowledge or at arm's length and without his involvement, held any water – that anybody could have R1 billion or whatever the true amount was raised on their behalf, and when they go around addressing those fundraising dinners, but not knowing the money was to benefit them.
The PP legal team would deal with that against the backdrop of whatever the outcome was of the effort to get Mr Ramaphosa to testify and justify his utterances which had led to these charges. If they succeeded in getting him here, Mr Ramaphosa would say it himself. If not, then the PP would give her version which would probably be uncontested around the CR17/Bosasa issues. That would involve the PP having to share with the Committee and the public what it was that made her come to those conclusions. As he had said, he was hoping Mr Ramaphosa, if he knew what was good for him, the PP legal team would then contest those if he wanted to. The PP legal team had tried to give Mr Ramaphosa opportunity, but if Mr Ramaphosa did not then the PP evidence had to then be accepted as uncontested.
Then there were what he called the Gordhan cases. He had already touched on this as the so-called “Rogue Unit” and the Pillay retirement case. An issue that was central to that, of course, was what the Committee might remember. At some early stage the PP legal team had grappled with the issue of the Inspector-General of Intelligence (IGI) report and its place in this whole saga, again as the so-called SSA bogeyman. The minute there was anything to do with intelligence, then it was said, “There we go. We told you she's a spy.”
So the PP legal team would deal with that, and this was one of the areas if he may say so that was one of their key grievances about their recent application that the PP had mounted against the evidence leaders in that they would demonstrate that the aspects of that particular judgment or relevant judgment that made it clear that the charges around the IGI report were completely unfounded, which the PP legal team would have expected the evidence leaders to highlight or to at least concede once they were pointed out. This was just so that they could save time and not have to lead evidence around that but that was a debate for another day.
Then there was an issue which rang through almost all the reports. He articulated it like this because it was also going to be an issue of argument. There was almost in every court report where the PP had been criticised, ironically it had been around the issues of procedural fairness, which the PP legal team thought this Committee had no respect for. But that issue almost invariably manifested itself like this. Say Ms X was implicated in the particular report and Ms X was not given her right to audi in the sense that they did not get a Section 7(9) notice, and Ms X in terms of the law deserved to get a Section 7(9) notice, and therefore the PP acted unlawfully in breach of the procedural fairness standard, which was all fine up to that point.
It was the next step that the PP legal team was going to contest. They were not going to say if Ms X was not given a Section 7(9), they were not going to say that she was given - because she was not given. But what the PP legal team would contest before the Chairperson, which might be a different thing to what was done in court, would be if you take the next step, which said that person did not get an audi and therefore the PP was motivated by bias or bad faith or political motives or whatever was ascribed to that particular failure. The PP legal team would be very careful to explain again, even through the witnesses, what it was they were disputing. For example, they had dealt with this with Mr van Loggerenberg. If Mr van Loggerenberg did not get the Section 7(9), and he did not get it, they were not going to say he got it. But they had said that (a) the PP took all reasonable steps to reach him, send people, and they went to the wrong address if they went to the wrong address, but that was not driven by bias or malice or political motives or whatever. That's why Mr van Loggerenberg did not get his is notice. So the PP legal team would try and simplify that issue.
Again Mr Gordhan was quite central in the Gordhan cases and that was why they were called the Gordhan cases. Just for the Committee’s information, if he was allowed to digress again, the PP legal team got a letter the previous day from Mr Gordhan’s legal team who had informed them that they would give them the total response on the 5 December if he was coming voluntarily or not. That was just an update here. Mr Gordhan may or may not be in the Ms Mazzone league.
Then there was what he called the other issues such asthe allegation raised by Mr Samuel of sweeping an investigation under the carpet. Those things would be explained sufficiently hopefully. There was Mr Mosebenzi Zwane attending Adv Mkhwebane’s birthday party and that kind of thing. Those things would be dealt with. There were alleged attacks on Judge Sulet Potterill, a matter that was at some stage referred to the LPC. That would be dealt with. It was those kinds of charges that one found in between the main charges.
Then the last category or basket of charges that the PP legal team would lead evidence on, mainly through the PP and employee witnesses, would deal with so-called harassment, victimisation, and intimidation.
This led directly to the discussion on incompetence and/or misconduct. The PP legal team’s version, which was that actually far from being incompetent or misconducting herself, the PP was a shining example of what a leader in the public sector should be, which was to care for the people and which was to be hardworking as even her worst enemies had described her as that. It was to make sure that when she left the Office, she left it in a much better state than how she found it in relation to all things like work ethic, the backlogs, governance issues, the clean audits, and the like. Those were the key categories.
There was just one quick thingthat the PP legal team had debated with the witness Ms Thejane, about the accusation of so-called victimisation which was broken into two. There was the main charge and alternative. The alternative was the one that had the list of names. One of the important things about the alternative was that the real allegation was not so much that the PP victimised those people, but it was that she effectively sent the CEO to victimise them on her behalf or at her behest – he could not remember the exact wording, but something like that.
Those people had been listed. Some of them, again the PP legal team would check on this with the evidence leaders. Just to give an example, there had been no suggestion whatsoever that Mr Isaac Matlawe was one of those seven people. He did not even think anyone had mentioned him. He thought Mr Tebogo Kekana had mentioned him in a different context, because he was part of the quality assurance or whatever. But there had been no suggestion that Mr Matlawe was victimised either by the PP or the CEO. The PP legal team could not now go and call evidence about that. Unless, if in their discussions with the evidence leaders they say the PPlegal team must still call Mr Matlawe or whatever. He could go through the list. Mr Samuel, obviously they would not call because he was here. He was one of the seven. The late Mr Madiba could not be called. Again, Mr Lamula would say something about him. Mr Matlawe, he had just mentioned. Ms Mogaladi spoke for herself. Mr Kekana spoke for himself. Ms Baloyi spoke for herself. But the PP legal team would be able to refute that charge in both its incarnations, both in the main charge and so-called alternative charge.
He was done with the alternative charges and thought he had already addressed the cost versus fees when he was talking about something else. He had also discussed the SSA. The one issue that the PP legal team wanted to round off was that in terms of the main cases, one of the common themes as well was the issue of personal costs. They would address this both during evidence, which in their view was maybe what Ms Mazzone had in mind. They might be wrong, but they would address it anyway because it was also relevant insofar some of those costs awarded because of allegations of bias, political motive or whatever. The personal costs and the punitive costs would have been tied to those aspects. To put it simplistically, if the PP legal team succeeded to convince the Committee that in a particular case the non-furnishing of audi was not improper, logically it would mean that for that reason, the PP convinces the Committee that she had genuine or valid reasons not to do so, it would follow that the personal costs were undeserved. That did not mean that the Committee must now go and overrule the judgment. It simply meant that the Committee would itself be satisfied that it was not an impeachable offence.
Now what the PP legal team had done, just to go back to this thing about the narrow approach and the wide approach. How they had approached it was they had literally just for their own purposes, and he was sharing this just so that the Committee knew where they were with this, obviously because of the finding of the Committee, they had to work on the basis of that, but they had divided the charges literally into Annexure A which was the non-controversial part as that was the recommendation of the panel anyway. Everyone agreed that those charges were before the Committee. But the PP legal team had created their own Annexure B, which was the charges that did not meet the test and should not be before the Committee. But they were before the Committee so the PP legal team was going to address them. However, they would always be addressing them from the point of view that they should never have been before the Committee. This was the so-called alternative list of so-called victimised people. One of his learned juniors was pointing out that one of the issues, which they had put to Mr Samuel, Mr Kekana, Mr Reginald Ndou, and Ms Mogaladi. Not all those seven people testified or were available but those who did, none of them had ever suggested to this Committee that they were faced so-called trumped-up charges, which was what that sub charge said. All of them without fail, including Mr Kekana. The master or the king of that category was Mr Samuel because he was charged for actually assaulting a member of the public. That could hardly be a trumped-up charge. In fact, Adv Mpofu thought he's still facing that.
The Chairperson asked if Adv Mpofu would share the work that the PP legal team had done in how they split the charges.
Adv Mpofu confirmed that the PP legal team would certainly do that, and even maybe with a one page write-up. It was an exercise they had done. They had simply read the report and Annexure A and then isolated the difference. They would definitely share it with the Committee. He thanked the Committee for their indulgence. He knew this was beyond what was discussed as the duration of this address. That was the landscape. It was, as the Chairperson always said, working a living document or a living framework, because one could never control these things. But when there were any major changes to this framework, the PP legal team would certainly share that. The idea was really to try and do this as efficiently as possible and they would address some of these issues in great detail when they did the closing argument.
By the way, while he was thinking about it, this was something the Chairperson might want to address with the Secretariat. In the latest programme the Committee had sent to the PP legal team, it did not cater for the oral arguments unlike all previous programmes. Someone must just attend to that. He did not think there was any intention to muzzle the PP legal team not to do their closing address. He thought it was just an oversight. Those were their opening remarks.
The Chairperson said the Committee was going to proceed to the first witness of this phase.
Ms Ebrahim swore in the witness.
Witness: Mr Freddie Nyathela
Chairperson: Welcome, Mr Nyathela. I am excited about your energy. We've always struggled with not hearing the witness. We can clearly hear you.On behalf of the Committee, welcome and please relax and participate. We appreciate that you availed yourself to be a witness. I'm now going to hand you over to Adv Mpofu to start the evidence.
Adv Mpofu: Thank you very much Chair. All right. Now, good afternoon, Mr Nyathela.
Mr Nyathela: Good afternoon SC.
Adv Mpofu: Chairperson, if I may just indicate before we proceed that despite your compliments about energy, Mr Nyathela almost had no sleep because we were preparing him as we indicated. But he kindly indicated that he’ll be able to proceed. If that situation changes, I'll indicate. Thank you Chair.
Chairperson: That's in order. Thank you.
Adv Mpofu: Thank you Chairperson. Mr Nyathela, I want to start. I'm sorry, before I come to you, I just want to address the Chair. Chair, we’ve also just a few minutes ago received indication from the evidence leaders of which paragraphs they're not going to take much issue with. That's the practice we've had so that we don't dwell too much on those issues. But we'll cover them, nevertheless. Thank you. How are you Mr Nyathela.
Mr Nyathela: Fine and yourself SC?
Adv Mpofu: On top of the world, in spite of the difficulties. I'm going to take you through your statement but I'm going to start almost at the end, because I want you to situate your evidence and put it in perspective in relation to this that I don't know if you've been following. We've been talking a lot about public participation and that kind of thing. If I may say so, the category which you broadly fallsinto is in English there’s a person called Joe Citizen, so we're calling you as that person, one of the people that we found in the street. You know what I mean?
Mr Nyathela: Yeah.
Adv Mpofu: Thank you. Now, Mr Nyathela, firstly what is your own view about the importance of public participation in a process like this, which involves two public institutions really, Parliament and the Office of the Public Protector? Do you agree that the public should play a role in that? And if so, how would you describe it?
Mr Nyathela: Yes, I do believe that the public should play a role in that because what is being addressed here also affects us as the public.
Adv Mpofu: Good. As it happens, you seem to be, well, I can tell you a secret now that the reason you got the short end of the stick and got chosen from the group of people. We had asked the PP to give us names of people who have been given service by PPSA and you were chosen because you have yourself been, if you like, a crusader for public participation. Can you share with the Committee what other, not just this issue, but what other interactions you have had with Parliament, public officials, ministers and those kinds of people in general?
Mr Nyathela: In general, SC, I can say it's been a tough one. Not only getting no assistance or no support from this very same august House. I can start from the top, from the Office of the Speaker to the chair of the chairs, to the chair of the portfolio committee, going down to ministers, to directors-general, you name it. We been abused, in short, I can say that. We've been abused for more than two decades.
Adv Mpofu: Yes. Okay. Thank you. We'll get to some of those issues. But for now, anyway, I think you've answered my question indirectly in that what I was getting out is the fact that you have had various interactions over what you call two decades at those different levels. Correct?
Mr Nyathela: Absolutely.
Adv Mpofu: Thanks. All right. And if I may also just, as part of the warmup questions so to speak, ask you somewhere in your statement, in one of the undisputed paragraphs, I think you have indicated that you have followed these proceedings. Obviously, you didn't listen to every witness and every word, but you've been aware that there is this process. Correct?
Mr Nyathela: Yes. Correct.
Adv Mpofu: While we're on the subject of public participation, this Committee sometime in May or June issued an advert for people who wanted to participate. I don't think there was anything much more that was done to ensure public participation. Did you incidentally ever get to know about that public participation invitation?
Mr Nyathela: No.
Adv Mpofu: You never heard about it?
Mr Nyathela: No.
Adv Mpofu: Yes, and you say that in your statement. Sorry, I just want to see if it's contested or not so that I know if I can lead you. Okay, well, let's see how it goes. You say somewhere in paragraph 67, “But I know that I cannot be the only one feeling this way. Public Protector cannot and should not be confined to token invitations to comment but must also involve public participation in the actual proceedings of the committee.” I'll do some errata, Chair, just now. You see that at the bottom of paragraph 67?
Mr Nyathela: Yes.
Adv Mpofu: Yes. Now, I think you've answered half of this question why you feel passionately that public participation should be much more than just placing an advert in a newspaper. Can you comment on that?
Mr Nyathela: Yes, it's important the public be involved and participate in matters that affects us as the public.
Adv Mpofu: Thank you. Chair, if I may note a few typos. In paragraph 67 it says, “Public Protector” but should say “Public participation.” In paragraph 9, “The majority of the people who get accredited at the end of any movie [not ‘none’] or television production are roadies.” Thank you Chair. Right. Now tell us then. We've already heard that you are a person of energy and a person who has been up and down these Houses. Who is Mr Nyathela? What do you do?
Mr Nyathela: I'm a roadie by profession. Roadies are people who work behind the scenes. The term “roadie” comes from an industry jargon that denotes people who are always on the road with musicians, setting up stages, lights, sound, etc. So, I started as a roadie in the early 80s with a top South African band called Harare and also working with Sipho ‘Hotstix’ Mabuse in his solo career. I was fortunate to be working with Harare. Harare was the first black group to own their technical equipment. I had access to the technical equipment and then I had the privilege to travel around the country, including the SADC region, doing tours and concerts with Harare and Sipho ‘Hotstix’ Mabuse.
Adv Mpofu: Thank you. Now I'm going to talk about roadies as an industry. You are, and this is not disputed, the President of SARA?
Mr Nyathela: Yes, I'm the president and founder of SARA, and non-profit making organisation dedicated to the training of young people to acquire technical and production skills and opportunities.
Adv Mpofu: Thank you. And it's not disputed that SARA was an idea conceived by you in 1992, for giving young people career prospects in entertainment,technology and business and equipping them with the necessary qualifications. You say in paragraph 6, this arose from your observation of the skills gap and racially skewed nature of the availability of relevant skills, as well as training and development opportunities in the sector. Can you just expand on that? In other words, what really, what was the fire that drove you to form this organisation?
Mr Nyathela: SC, the whole idea came about before 1990. It started coming to me around 1984/1985. What really struck me, it was the imbalances in the sector, that we, as black people, we were deprived of acquiring technical and production skills. We were only relegated to be equipment porters. That's why I saidthat I was fortunate. I was one of the few fortunate people to work with Harare and it having its own technical equipment. The imbalances didn't stop there. But they also went as far as the venues. You go to formerly white venues, you walk into a hall, you look at the stage, it’s got a backdrop, it's got two or three lighting bars, it’s got a permanent PA system, a mixing console for stage lighting. But you go to our communities in our halls, you look at the stage, it's empty, not even a backdrop, not even one light. So as black people, you mustn’t see that sector or be exposed to that industry. You cannot dream to even get involved or try to participate. That really struck me. Then the other thing that I won't forget, it was in early 1985 I was setting up a Durban city hall. When I was ready now to lift the speakers on top of the stage, a white gentleman said, “No, no, no, no, you don't have to do that. Just put it next to the stage.” Then they just press the button and it just raised it. I was like, “Yoh.” After the soundcheck, I was sitting there thinking “Yoh.” I thought about where I come from. The hall in my township, Orlando West, Uncle Tom’s hall, right. It's empty. No sound, no lighting desk. I said, “Yoh, no, this system, it's so deep, something must be done.” But I could not start it then because if I dare start it, I would have ‘disappeared’. I had to wait for 1992 after the release of the political prisoners, and then started the journey in 1992.
Adv Mpofu: Thank you very much. Yeah, feel free to just express yourself as you wish. Right, so now the organisation is formed. And we know, I think you've expressed passionately, what drove you to form it. And you’ve also explained my next question, which was why was it particularly formed after 1990? I think you've covered that. Now, you form the organisation. And we're now going to the stage and building up to where you would interact with the Office of the PP. But can you share with the Committee then your, shall we call it, struggles and endeavours which led to the formation of ties with international associations? Again, this is the undisputed part of your evidence. I'm kind of covering many things in one long question. And maybe I can prompt you by reading paragraphs 7 and 8, where you say, “Up until 2004 the Association just had a single room, and it was only with the support of the National Lottery and French Embassy that”, this is now 12 years later in 2004, “a building with enough space for several classrooms, administration offices and a storage area could be purchased in the Newtown area of Johannesburg especially in Henry Nxumalo Street, a stone’s throw from the famous Market Theatre.” We'll come to that. That's the next stage. I want to now address what is at paragraph 8 which is, “When they complete their training, many of the graduates”, from your outfit, “work all over the world. Currently, some of them… can be found in places like Dubai, USA and all over South Africa in broadcasting, music, and the film industry to mention a few.” Now, these products of yours, which is what we call graduates, the people who come from the Institute, according to your statement came as a result of, shall we call it, knocking on doors and forging international networks. Can you take the Committee through that?
Mr Nyathela: Yes. The starting point is that we started to request assistance here at home. Unfortunately, doors were shut in our faces, even from our own African black people, doors were shut in our face and then we started looking outside the country. And then the first people that we engaged were the Irish, because of their history, especially how they built their music industry. And fortunately, they welcomed our proposal. And then in 1996 they sent one of their industry experts on a fact-finding mission to find out about SARA and its status in the South African entertainment industry. After this visit of Mr Kid Donald, he wrote a report with some recommendations and one of their recommendations was that there was no training in this field in South Africa and a trainer must be found in Ireland to come down to South Africa and deliver a three-month intensive course in live sound stage production. That happened in 1997, and the following year the Irish sent a trainer who stayed with us for five years, training and also delivering the trainer aspects. And 1997, hooked up with Ministry of Education, Culture and Science of the Netherlands after meeting itsadvisor to the Director-General of the Ministry in Grahamstown there was a conference around August 1997. Its theme was the economic benefits of arts and culture. I met with this advisor to the Director-General of the Ministry of Netherlands and then I asked him if he could hook us up with one of their biggest promotion companies called Mojo Concerts. He was surprised that I knew about Mojo Concerts. And then he said, “No, when I go back, I'll try something.” Same year, around October, received a fax that the Ministry is willing to support and they've roped in Mojo Concerts. Mojo Concerts, they are the owners of North Sea Jazz Festival and other big festivals in Holland like the Lowlands Festival. Then got this fax around October saying, “So now tell us in which areas would you like us to assist”, and then we said production because we knew that the Dutch were good in production and the Irish were already assisting us with sound. And that's how it started. 1998, three Dutch production professionals were sent to South Africa to deliver a one-month production course, helicopter view. Then followed by the French through the French Embassy and the French Institute and we requested them to assist in lighting because we knew that the French were good in lighting, and they obliged. And every year they were sending a trainer, both the Dutch and French, to South Africa to train our young people in production and lighting and then also training our students in Holland to participate at the North Sea Jazz Festival, hands-on training at the Lowlands Festival. And then the French in some of their events and also venues. Then came the British through the British Council. They send their technicians to train our young people to be backline technicians. Backline, we talking about those instruments that you will see on stage. That’s how we managed to build this international network. Then also in 1998, I was invited to the UK by one of the industry associations called PSA Production Services overseas. During all this time not a single cent was coming from home - even for students trips or my personal trips to these countries were paid by these foreign countries. In 1998, I attended one of the industry trade fairs called Plaza Show. It's an annual event held in the UK where the latest technology equipment is showcased and then there are also educational seminars there. There I met with the technical manager of one of largest music and art festivals called the Roskilde Festival, which is in Denmark. They made a commitment since 1999 sending four students to Roskilde. That happened for more than 12 years. Every year, around June, we would send four of our students to participate at Roskilde. That's why the only existing qualification titled Live Event Technical Production was championed by SARA.
Adv Mpofu: Thank you very much Mr Nyathela. That’s quite a journey around the world, which we've taken in a few minutes. You also mentioned at paragraph 13 that you had similar contacts as part of your network in Norway. Is that correct?
Mr Nyathela: Yes.
Adv Mpofu: And would those also have been part of this, shall we call it, network building where you wanted to benefit particularly young black talent in this field?
Mr Nyathela: Absolutely, SC. The other thing is that in our country our young people were deprived the opportunities even government-sponsored events, like your National Day events and all of that, because most of the suppliers / technical companies that were getting these tenders to provide these services are white-owned companies. It's only recently that black-owned companies are coming. So most of those white-owned companies were very, very hostile towards education and training and then supported by our own people. That's unfortunate.
Adv Mpofu: Thank you very much. All in all, before COVID - I know that at some stage you say COVID kind of disturbed the flow - but let's say just before COVID, about 2019/2020, how far was this network and how many young people were you able to send on average to various parts of the world?
Mr Nyathela: I can say to date hundreds of black kids who are involved in this industry are SARAgraduates. You find them everywhere, like I've said in most of these companies, in broadcasting, even internationally. Some are working in Dubai, some currently are in Qatar, six since they left in February, they are touring the US for 10 months with UniverSoul Circus, the only African-American circus. That relationship with the circus started in 2002 and it's still continuing.
Adv Mpofu: Thank you. Okay, before I ask the Chair to appoint you as the Minister of Arts and Culture, can you just tell us specifically about the relationship with the US company UniverSoul Africa, because that's what leads us to your first complaint to the PP?
Chairperson: After his response we will take a break for tea for 15 minutes. But please respond.
Mr Nyathela: Okay. I have to start it where it started.
Adv Mpofu: Chair, maybe we should take a break now. I can tell you now…
Chairperson: Well, I'm guided by you. Thank you Adv Mpofu.
Chairperson: Welcome back. We continue with leading of evidence by Adv Mpofu. I therefore hand over to Adv Mpofu to proceed and continue.
Adv Mpofu: Thank you Chair. Yes. Mr Nyathela, I stopped you when you were about to answer the question I had asked about the first encounter and relationship with UniverSoul Circus, which you described as the only black-led American circus. How did you get to meet them and what is the nature of the relationship? If you can just take us through those steps?
Mr Nyathela: Okay, UniverSoul Circus came to perform in South Africa in 2001. They were performing at Gold Reef City. They had a space there because the circus performs in a big tent. They had a space there. And then one day I was listening to the radio, Kaya FM, and I heard the interview of the founder and president of the circus, Mr Cedric Walker. As I was listening to his interview, I could hear, “Hey, this gentleman is talking our language.” So I called Gold Reef to ask for their contact, and they said, “No, just call back in 10 minutes, and we'll give you his number.” I did that I got the vice president of the circus, Paula. I told her about SARA and its activities and our wish to meet with Mr Walker.
Then they promised to come back to us and a week before the circus show ended, I got a call thatMr Walker agreed to meet with me. I went there, we met and briefed him about SARA and then he was surprised that there was an association of roadies, also that a black roadies association was even running training programmes. Then he said, “I'll make one commitment now on the spot. Every year, when we tour the States, Freddie, I'll take some of your kids to come and tour with us.” October 2021, got a fax saying, “No, we'd like to have 22 of your kids to come over to the States.”
Adv Mpofu: Sorry to cut you. That year, was you said 2021?
Mr Nyathela: 2001. Sorry for that.
Adv Mpofu: Okay.
Mr Nyathela: And then 2002, they took 22 of our kids to go and tour with them for. They were running two tours. That's 11 per shows. Then for 10 months they were getting everything paid by the circus. And when they came back, some of them even bought houses for their families, some bought equipment to start servicing their communities, weddings, etc. That continued 2002/2003. At the end of the tour of 2004, they requested that if we can raise funds for the return air tickets for our students, they’ll still cover all the expenses, including the visas and wages on the States side. Late that year we submitted a proposal to the National Department of Arts and Culture for payment of 16 return tickets, and the Department made a verbal and written commitment to fund the 16 return air tickets. We were not asking the Department to give us the funds as it could even pay the travel agent directly for the 16 return air tickets. Unfortunately…
Adv Mpofu: Okay, before we get to the unfortunate part, can we take the Committee to Annexure FN1. Was this the letter addressed to you dated 28 October 2004? Is that the UniverSoul logo?
Mr Nyathela: Yes.
Adv Mpofu: The letter’s first paragraph said, “We actually hire and train young people from around the world and members of SARA have consistently outperformed many of them. The initiative, enthusiasm, and professionalism they possess is unparalleled. You are to be commended for the training and leadership you have provided the members of your organisation.” And then, “We would like to extend the opportunity to place approximately 30 of your students next year, at salaries of $350 to $650 per week. In addition to the normal training areas, they will have an opportunity next year to be exposed to film and video production. UniverSoul Circus will provide training and salary, transportation, and lodging State side. We will need you to provide air travel from South Africa to Atlanta.” Is that offer what you just told the Committee about - provided you provide the air travel, which then brought you to the Department?
Mr Nyathela: Yes, SC, absolutely.
Adv Mpofu: Now you were at the point where you were saying that you approached the Department. They made verbal and written undertakings. And unfortunately?
Mr Nyathela: Yes, unfortunately, what transpired was I got a call five hours before departure. 16 young people were already there at SARA House with their bags, ready to travel. Then I got a call around 14h10 in the afternoon and that departure was 20h00. Then the junior official started by saying, “Eish. But Freddie, I don't know where to start but I was informed that I must tell you that the Department can no longer fund this project.” I could not believe it. It really, really struck me. It was just unbelievable. Fortunately, the following morning, the travel agent, which was a white woman, Ms Marlise van Rensburg, said, “Freddie, this cannot happen. I will release the tickets. The young people must go and then we'll make some arrangement how you will pay back the money.” That's how that project and the young people managed to travel. It was very, very, very sad.
Adv Mpofu: And you were saying with your troubles with the Department of Arts and Culture, you then approached the Office of the PP at some stage. Am I correct?
Mr Nyathela: Yes, correct.
Adv Mpofu: And who was the PP at that time?
Mr Nyathela: It was Adv Lawrence Mushwana.
Adv Mpofu: Right. Okay. Can you then tell the Committee about your experiences of the PP’s Office under the leadership of Adv Mushwana as far as you are concerned?
Mr Nyathela: Yes. What happened, it was the investigator who was doing her best, not taking sides, doing her job perfectly. But the problem started when Ms Mogaladi came into the picture. What happened is that we ended up having an ADR meeting and it was chaired by Ms Mogaladi.
Chairperson: What is the ADR meeting?
Mr Nyathela: ADR.
Adv Mpofu: Alternative Dispute Resolutions (ADR). Yes. Thank you. I was going to explain that. In other words, under the aegis of the PP’s Office. Yes. That's one of the solutions. I think one of the witnesses explained the different methods here. Thank you Chair.
Adv Bawa: Sorry Adv Mpofu, am I correct, we’re dealing with paragraph 27 onwards? There isn't a written application attached to the papers, am I correct? There’s a reference to submitting an application. I'm just checking that I haven't missed something. There isn't?
Adv Mpofu: Yeah. No there isn’t. Submitting a complaint, I think that's what I meant. We haven’t attached anything.
Adv Bawa: I’m referring to the reference to an application for funding to the Department.
Adv Mpofu: Oh I see.
Adv Bawa: I’m just checking if there was a written application in the papers or not.
Adv Mpofu: No, no, absolutely not. Thanks. Oh, yes. Yeah, we were at paragraph 27 now. Mr Nyathela, in this section I'm not going to lead you as much as I did before on the admitted parts. Soyou have to give us evidence. I'll try and lead you and I'll be stopped if I’m overdoing it. The application that you refer to there, when and where did you submit it? To whom?
Mr Nyathela: It was submitted to the Department of Arts and Culture on their own template, as we were engaging. And that's it.
Adv Mpofu: Okay. No, that's good enough. Thank you. The Chair and I interrupted you when you were saying that the process was then taken to ADR. And then what happened?
Mr Nyathela: Yes, chaired by Ms Mogaladi from the PP’s Office.After that a report was issued. But I had issues in that meeting with… that's where it started between me and Ms Mogaladi up until today, whereby I was questioning Ms Mogaladi about her bias in terms of handling the meeting, and then I even said to her, “It's as if now you have turned into a spokeswoman of that department.” Then I could see that she didn't take that lightly. When the report came out, it stated that there was no written commitment from the Department’s side whilst there was some written exchange of communication between us, SARA and the Department. The report exonerated the Department in not funding the 16 return air tickets. But there were also recommendations that the Department must make sure that we get assistance in terms of our international projects, and also some funding support for admin and operations, including assistance for the renovation of our building.
Adv Mpofu: Good. Thank you. Okay, then we'll come back to that report. But if you can tell the Members about this building that you wanted to be renovated. Where was it? What was it for? What was wrong with it?
Mr Nyathela: Yes. When we started, we operated from a one room office with only one line, using it as a fax and telephone. Then around 2003 another gentleman by the name of Mr Zikwe Msimang introduced me to the owner of the building, which is near the Market Theatre. It’s got huge space, enough space for training in classrooms and an admin section. The owner was selling it for around R5 million. But when he heard what we are doing, he said, “For you, I can give it for R1 million.” We made an agreement and signed a purchase agreement and all that, and a lease for one year with an option to buy it. We signed the document and submitted an application to Lotto. It was rejected. We resubmitted it and they finally called me for a presentation and then it was approved, R1.4 million.And the French through the French Embassy contributed around R600 000. Even though Lottohad approved, they still didn't want to release the funds. They were sending their people to go behind our backs because they already had the owner’s contacts. They sent people to the owner to say, “Hey, we can give you R5 million now. These people are delaying you with only R1 million.” The owner came to me to say, “I have been approached by people saying this and that that. No, Lotto is not going to give you the money.” I showed the confirmation letter from Lotto. The owner said to me “I'm not in a hurry, I'll wait until Lotto gives you the money”. We had to do a sit-in at Lotto for Lotto to release the funds. That's how the funds were finally released, and we paid and we moved into the building in January 2004.
Adv Mpofu: Right. Then going back to what you said in the PP’s Office, I can take it that the building was not in a good condition and you then wanted government assistance for its renovation, as you previously testified. Correct?
Mr Nyathela: Absolutely. We even submitted a proposal to the National Department of Arts and Culture for assistance for the renovations.
Adv Mpofu: Right. Okay, those are your side of the proposals in the ADR. And what was agreed?
Mr Nyathela: Yeah, it was agreed that we will meet with the Department . Then because the Department said they don't have funds to give us for the renovation but they will liaise with the relevant stakeholders who are funding infrastructure and renovation, and help us get that support, and then they will provide support for our admin and operation and also fund for student international trips.
Adv Mpofu: Right. Okay, so those were - shall we call it - the milestones of the Mushwana era.
Mr Nyathela: Yeah.
Adv Mpofu: You said you had negative experiences with the report, the attitude of Ms Mogaladi, but at least there was this agreement regarding renovations.
Mr Nyathela: Yes.
Adv Mpofu: Was the agreement honoured?
Mr Nyathela: No, it was not honoured. Then when the new PP came in, meaning Adv Thuli Madonsela, we approached her and then she delegated our complaint to her deputy, Adv Kevin Malunga, who handled the matter. However, our complaint was still under Ms Mogaladi as the executive manager in the Office. We finally reached a settlement that was signed by the Department, SARA and the PP. Yes, that was in 2014.
Adv Mpofu: Yes. Can you go to FN2. Is that the PP’s report that you were referring to?
Mr Nyathela: Yes.
Adv Mpofu: It says, “Report on a complaint by Mr Nyathela and allegations that the Department of Arts and Culture reneged on an alleged undertaking to provide funding for the SARA.”
Mr Nyathela: Yes.
Adv Mpofu: It's got the heading and report number and so on. If you go to the last page, it's dated 25 July 2006. Is that the report and it’s signed by Mushwana as the PP, as you've testified?
Mr Nyathela: Yes.
Adv Mpofu: Okay. Now FN3 is headed, “Settlement agreement in terms of Section 6(4)(d) of the PP Act of 1994 involving a dispute between SARA and the National Department of Arts and Culture.” The date is, “Final settlement agreement 1 April 2014.” Is that the date you referred to?
Mr Nyathela: Yes.
Adv Mpofu: Okay. What happened next?
Mr Nyathela: What happened next is the Department failed to implement its commitments regarding this settlement agreement. To the extent that Department officials even came to Parliament and wilfully presented dishonest statements to the portfolio committee on implementation of its commitments to this settlement agreement. I don't know, SC, if I can continue with that, because that also led us to file the first complaint to Parliament regarding the officials of the Department wilfully presenting dishonest statements to the portfolio committee.
Adv Mpofu: Good. All right. After that then what were your other experiences, let's say in the Adv Madonsela era of the PP’s Office?
Mr Nyathela: No, it took long because we even requested, I requested for her intervention. And unfortunately, the Department was treated with kid gloves at our expense, and this matter dragged on and on and on without any closure and until Adv Madonsela left. Because the other thing that I can mention is that I've never met with Adv Madonsela, but I once spoke to her on the phone because she called me after I'd been trying to reach her to say, “Hey, there is no movement from your Office in terms of helping us to make sure that the Department does comply with its commitments.”
Adv Mpofu: Yes. And have you ever met with the other previous PP, Adv Mushwana? Have you also not met with him?
Mr Nyathela: No, I never met with him.
Adv Mpofu: Never met him. Right. And so am I to understand, therefore, that this matter started from what we call the Adv Mushwana era and, as you call it, dragged on through the entire period of Adv Madonsela’s seven-year term.
Mr Nyathela: Yes, this matter dragged on for almost 11 years. It was testing, it was frustrating. There was no movement. I could not believe it. Especially our people, as black people, why would we be against the empowerment of the child and those not yet born? Why? Why do you play the man instead of playing the ball? Because this is not about me. This is what I've been saying from day one. This is about the child. This is not about me. But it kept carrying on and on and on. That's why it has to take 11 years for this to be resolved.
Adv Mpofu: Sjoe. Thank you. So alright, well, we've heard about backlogs in this inquiry, but I didn't know that it could go as far as 11 years and three PPs at least. And if the complainants here have their way, it will even get into the fourth one once they apply the chop. Anyway, so the, let's call it the Madonsela era, you then explained that literally it went through the entire seven-year period and more. We will, I think, start with the next segment in that evolution in the next session, so I just want to round off some of the issues that you have covered now. Am I correct, and excuse me if I make you repeat something that you've already covered, that in the Adv Madonsela era, your file, for lack of a better word, was still being handled by Ms Mogaladi?
Mr Nyathela: Yes. She was the head of the investigators. They were reporting to her. And then in most cases, she'll be part of those meetings and she'll be the one who will be chairing those meetings until when the PP, Adv Madonsela, said, “No, let the PP deal with this matter.” That's how it was moved to Adv Malunga because there was no movement from the side of the investigators and any decisive intervention or assistance from Ms Mogaladi.
Adv Mpofu: Right. And well, you have said that you are unhappy, obviously, with the services of Ms Mogaladi. Correct?
Mr Nyathela: Yes.
Adv Mpofu: And one can say, having listened, I put to her the complaints and you raised several complaints about the lack of progress. Correct?
Mr Nyathela: Yes.
Adv Mpofu: I put to her your complaints as an example of some of the, shall we call it, lethargy that would have been associated with some of the work she was doing in that relevant period.
Adv Bawa: Chair, I'm going to object to the way the question is formulated, because effectively what was put to Ms Mogaladi in one line was a reference to Mr Nyathela, and there was an answer. Then Adv Mpofu went onto another complaint which wasn't related to Mr Nyathela. What wasn't put to Ms Mogaladi was what Adv Mpofu is now presenting to the witness as put. I'm happy to go to the transcript if we need to do that. But I’m objecting to the way the question has been formulated.
Adv Mpofu: Thank you Chair. No, I think that's an easy objection to deal with because it's pre-emptive. I've not said anything about what Ms Mogaladi said. I simply said that I was questioning her generally about complaints. That part is true. And it was in that context that the name of Mr Nyathela arose. Adv Bawa is quite correct that I cited it as just one of the examples. We didn't have a long discussion about the ins and outs, but the topic I was busy with her about was complaints in general. And she said no. I think she first said there have never been complaints against her. Then I gave her one or two names and she conceded. That’s as I remember it, but I stand corrected.
Adv Bawa: Chair, I am going to say that it was Adv Mpofu who offered the name of Mr Nyathela and not Ms Mogaladi.
Adv Mpofu: Yes, but that’s what I’ve just said.
Adv Bawa: I just want to make sure that you and I are not on the wrong page.
Adv Mpofu: Okay, thank you. Chair, sorry, I also don't know when to be on the wrong page with Adv Bawa. Let me summarise again, how I remember it. I was questioning Ms Mogaladi about complaints against her. And she said there were no complaints against her. Maybe I'm putting it too strongly. I then said, “What about…”, I can't even remember whatever the other example is. And then I also made an example of Mr Nyathela. And that's what I'm getting into. I'm not putting it any higher than that. Are you happy with that?
Adv Mpofu: Thanks. Whatever the question was, and I'll agree with Adv Bawa’s version of it, but the answer that I received was something to the effect that Mr Nyathela likes to complain. Okay, maybe let's do it like this, I'll do it like this. Let me not put the question. Let me ask you the question. Did you watch the evidence of Ms Mogaladi?
Mr Nyathela: That's where I wanted to go to SC. Because when I heard that Ms Mogaladi will be testifying I made it a point that I'm going to listen to this, meaning I can recall exactly you were asking her about the complaints and that's when you said, “No, we'll bring a witness here and you know Mr Nyathela.” And then her response was, “Yeah, no, I know, Mr Nyathela. Mr Nyathela likes to complain.” And where I was sitting I said, “Hey, there comes this woman.”
Chairperson: You mean Ms Mogaladi. Here comes Ms Mogaladi.
Mr Nyathela: Ms Mogaladi. Exactly.
Chairperson: Maybe just take away the woman thing.
Mr Nyathela: Sorry Chair.
Adv Mpofu: It’s not an insult. She's a woman.
Chairperson: Not in that way Adv Mpofu. Thank you. Continue.
Adv Mpofu: I was going to say, if she was a man it would be a demotion.
Mr Nyathela: No, apologies. Yes, that's how it came out.
Adv Bawa: That Adv Mpofu and I are on the same page, this is the exact wording from the transcript. Adv Mpofu said, “Do you know Mr Nyathela, who used to complain about you a lot?” Ms Mogaladi said, “Correct. Mr Nyathela complains a lot. Mr Nyathela complains about almost everyone who handles his case in this organisation and everybody, yes.” Just so that the record is clear what was said.
Adv Mpofu: Thank you. I think that's accurate. But you were saying, anyway, what she said, you complain about everything or whatever had just been said, you were taken aback. I think that's where you went.
Mr Nyathela: Exactly. And then I could not understand it. That the whole executive manager at the PP’s Office is saying that Mr Nyathela likes… is there anybody who likes to complain? No. We go to the PP to file a complaint because we've got evidence. We understand evidence. Our work is development. We are not in the business of smear campaigns or lying about people. When we complain, we present evidence. That's it. We are in the business of youth empowerment. We don't have time to just wake up and just complain, complain. No. And then that Office, it’s for us because some of us we don't have the deep pockets to go to court and litigate. That's our last hope. That's why we go there to that Office, and then we not going to that Office to ask for some special favours or some special treatment because we were not brought up like that and SARA was not built on favours or special treatment. It was built through sweat, hard work. Thank you.
Adv Mpofu: Chair, let it get hotter than that, it might burn the building again. If we can, as I indicated earlier that Mr Nyathela had, shall we call it, an early morning and I had informally indicated that I would prefer to cut it at this point because the next session is going to be about, let's call it, the Mkhwebane era and his experiences at that point. So Chair, it would it be an appropriate time if you're pleased to break it at this point.
Chairperson: Okay. Thank you, Adv Mpofu. There would have been a request about not pushing it to 17h00 with the witness. You wanted to end it at that passion point. Okay, no, that's fine. Thank you Adv Mpofu. Thank you, colleagues and everybody in the meeting. That's where we're going to pause for the day and resume tomorrow to continue with the next section of what has been mentioned. The plan is not to mix Adv Madonsela’s era and Adv Mkhwebane’s era. Mr Nyathela, we'll pause there and see you tomorrow morning as we'll continue. Thank you very much for the day and thanks to all of you colleagues. That's where we'll end it. See you tomorrow at 10h00. That's what is in the programme.
The meeting was adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Herron, Mr BN
Holomisa, Dr BH
Joemat-Pettersson, Ms TM
Luzipo, Mr S
Mahlaule, Mr MG
Malema, Mr J
Mananiso, Ms JS
Maotwe, Ms OMC
Mgweba, Ms T
Mileham, Mr K
Msimang, Prof CT
Mulder, Dr CP
Nkosi, Mr BS
Nodada, Mr BB
Nqola, Mr X
Seabi, Mr M A
Siwela, Ms VS
Sukers, Ms ME
Tlhape, Ms ME
Tshabalala, Ms J
Van Minnen, Ms BM
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