PP Inquiry day 44: Freddie Nyathela

Committee on Section 194 Enquiry

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


Video (Afternoon)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

In a hybrid meeting, the Section 194 Committee engaged with the Public Protector’s first witness, Mr Freddie Nyathela, for a second day. The Public Protector’s legal team continued to lead the evidence of Mr Nyathela, establishing the credentials of the South African Roadies Association established by Mr Nyathela with the aim of training and supporting young Black South Africans to gain formal and practical training and experience in live event technical and production skills, an opportunity denied to them under apartheid. The point was repeatedly and passionately made that all Mr Nyathela’s complaints stemmed from his desire to offer those opportunities to young people. The core issue was a complaint against the Department of Arts and Culture and, although a settlement agreement had been reached, the matter dragged on for 11 years without payment being made. He wrote to the then newly appointed Public Protector, Adv Mkhwebane, who arranged a meeting within four weeks of his making contact with her. He testified that when he had briefed her, she changed his life with the words: I’ve got you, Mr Nyathela. This is not about you; this is about our children and grandchildren. She understood that he needed someone to hear him and to understand how the settlement would change the lives of Black youth. He testified that within six months, the funds were made available for renovations to the South African Roadies Association (SARA) House and the Public Protector had arranged for a development agency to undertake the work.

The legal team took Mr Nyathela through the 11 years he had striven to obtain a resolution to his complaint, with whom he had engaged and why no one had been able to assist him in the way that Adv Mkhwebane had. In the course of those 11 years, several complaints had been laid, both about the funding for SARA House and various other issues, such as a funding proposal implemented by the National Arts Council that he alleged was a front for corruption. Seeking justice and failing to get the responses and assistance he needed, he laid complaints against the Minister of Arts and Culture, the Auditor-General, the Minister of Finance, the Speaker of the National Assembly in Parliament, the Portfolio Committee for Sports, Arts and Culture and various officials. His testimony was that the Office of the Public Protector had not assisted him prior to the appointment of Adv Mkhwebane and she, in her capacity as Public Protector, was the only one to respond effectively and efficiently to the matter.

In her cross-questioning, the evidence leader attempted to locate where Mr Nyathela’s evidence would fit into the motion before the Committee. She established that he could vouch for the competence of Adv Mkhwebane in carrying out the function of a Public Protector as she listened to the people on the ground, was prepared to personally meet with such people and was able to rapidly resolve his long-standing complaint. His evidence did not relate to the other charges on the charge sheet. In going through the detail of Mr Nyathela's evidence, the evidence leader established that he had been assisted by the Office of the Public Protector over the years, including the reaching of settlements and engagement in alternate dispute resolution. In his zealousness, Mr Nyathela’s oral testimony tended to focus on the big picture and his passion to assist youngsters to get a foothold in the backstage industry. Some of his disputes had been settled but the main dispute was not resolved because the Department of Arts and Culture was extremely recalcitrant and had reneged on the settlement until Adv Mkhwebane had the settlement made an order of the court. He explained the delay between his application for funding and when renovations were finally undertaken had seen an escalation of costs for the work from R2 million to R27 million.

Committee members were impressed by Mr Nyathela’s passion for the work he was doing at SARA House and also by his passionate belief in justice. Questions by Members adopted two distinct approaches. One line of questioning was to ask the witness to confirm his belief in the Public Protector’s competency and that he had no other motive behind his testimony. The second line of questioning attempted to establish why Mr Nyathela did not credit anyone other than Adv Mkhwebane with providing assistance or resolving his issues as well as to connect his evidence to the charges relating to misconduct and incompetence.

The Public Protector’s legal team closed off his testimony with reference to Mr Nyathela’s affidavit which presented a very strong legal argument for providing testimony in favour of Adv Mkhwebane.

Meeting report

Opening Remarks
The Chairperson informed the meeting that the day’s proceedings would be a continuation of the testimony of Mr Freddie Nyathela who had commenced his testimony the previous day.

Inquiry: Witness Mr Freddie Nyathela
Adv Ebrahim: May I remind Mr Freddie Nyathela that he is still under oath?

Chairperson: You can switch on your microphone and, indeed, you are still under oath, Mr Nyathela. Over to you, Adv Mpofu.

Adv Mpofu: Now, yesterday, I did some introductory topics for the Committee to get to know you and your organisation, its activities and how it came about you lodged the very first complaint with the Public Protector. Remember that?

Mr Nyathela: Yes

Adv Mpofu: Now, I am just going to put some other very few propositions of what we dealt with yesterday. You can just say yes or no, then we'll get to today's evidence. So we heard about you and your personal journey since the 1980s with the band, Harari, and how you got to realise the racially skewed discrepancies in the sector that you operate in, correct?

Mr Nyathela: Yes.

Adv Mpofu: We heard how you had an idea to do something about it, but you felt that you could be in danger during the apartheid regime in doing so. Correct?

Mr Nyathela: Correct.

Adv Mpofu: And after the unbanning of organisations and the return of political prisoners in the 1990s, you then started SARA, correct?

Mr Nyathela: Correct.

Adv Mpofu: In that process, you forged many international relationships, where you were able to send mainly black youth for training in the sector and at this stage, you say that runs into several hundreds of people, correct?

Mr Nyathela: Correct.

Adv Mpofu: And the last of those who have a contract with is an American outfit called Universal Circus, who took 22 youths to the US and then along the line the in the relationship, they offered to take more people but asked you to raise money for their tickets. And you were promised by the Department of Arts and Culture (DAC) that such funding would be provided, until the day of the trip, and you were disappointed and the dispute arose. You approached the Public Protector who at that stage was Adv Lawrence Mushwana.

Mr Nyathela: Correct.

Adv Mpofu: And you then were disappointed with the outcome and you said that the whole thing took about 11 years to come to a resolution, and that included the entire term of Adv Madonsela during which time your grievance was not adequately attended to. Correct?

Mr Nyathela: Correct.

Adv Mpofu: All right. Thank you. So that is the ground that we covered yesterday. Now, just a few things that I wanted to sweep up very quickly regarding the background before we move forward. You mentioned that your training in your sector is now accredited by SAQA (South African Qualifications Authority).

Mr Nyathela: Yes, it is accredited by SAQA on NQF Level 4, which is equivalent to a matric certificate.

Adv Mpofu: Good. That is a good achievement. And you have also said that some of your products or graduates are now working all over the country and some all over the world. Correct?

Mr Nyathela: Correct.

Adv Mpofu: Your organisation played a role in the 2010 World Cup as well, correct?

Mr Nyathela: Absolutely, because we provided 140 crew. This organisation played a very crucial role in the opening and closing ceremonies of the Confederation Cup, including the World Cup, because this organisation provided 140 technical and production personnel for both the Confederation and World Cup, opening and closing ceremonies.

Adv Mpofu: All right. So now let us then go back to what you've described as the epic journey of 11 years of trying to get this matter resolved. I will put it as a leading question, and if it is disputed, Ms Bawa will stop me, but I am just trying to save time. I think we did cover this yesterday. Can you just explain how it came about that there was this settlement agreement between you and the National Department of Arts and Culture?

Mr Nyathela: No, the settlement came about when the former Public Protector delegated the then Deputy Public Protector Adv Malunga to deal with our matter which was dragging for too long. And then finally, the settlement was drafted and signed between the Department, SARA and the Office of the Public Protector.

Adv Mpofu: And at that stage, you must have been happy thinking finally, it is over.

Mr Nyathela: Absolutely.

Adv Mpofu: And was it over?

Mr Nyathela: No. It was a continuation of the suffering and abuse.

Adv Mpofu: So anyway, to cut that long story short, this happened until October 2016 which is the end of the Madonsela era. And after that suffering, thinking that the matter will never be resolved, what then what steps did you take?

Mr Nyathela: Then on January 2017, I then wrote to the new Public Protector, Adv Mkhwebane, requesting a meeting and then I was surprised that the meeting was confirmed for mid-February, meaning within four weeks. We got that meeting date, the first week of February 2017. I was surprised at it being so quick.

Adv Mpofu: Yes. And then finally, you are given a chance to meet face-to-face with the Public Protector.

Mr Nyathela: Yes.

Adv Mpofu: And you met with the Public Protector then in February 2017 which was less than four months after her appointment. Correct?

Mr Nyathela: Correct.

Adv Mpofu: Before that, had you ever met a Public Protector?

Mr Nyathela: No. Never.

Adv Mpofu: At the meeting, presumably you gave the whole history that you have given to the Committee of what you call “the long-suffering”?

Mr Nyathela: Yes, that meeting, I will never forget it; it will stay with me for the rest of my life. In that meeting I was given a chance to brief the Public Protector about SARA and its activities and our challenges. And then, as I was briefing the PP, what struck me was the Public Protector’s words: I’ve got you, Mr Nyathela. This is not about you; this is about our children and grandchildren.” That struck me as I have never heard those words coming from our senior public servants. And then especially because in most instances, people did not see beyond Nyathela. This was not a Nyathela issue. People could not see the world through the eyes of a child and that this is not about Nyathela; this is about the children, and those not yet born, being empowered with apartheid-neglected skills, especially for the black child. So that struck me and tears came out of my eyes, because, as I have said, it was for the first time. When I travel overseas, they understand that, because wherever I travel, I do not talk about myself. It has been like that from day one. So to hear it coming from a senior public servant in our country, really struck me.

Adv Mpofu: Yes. And you describe that moment in your statement, where you say, "When she said those words, tears rolled down my eyes.” And you would have been happy even if the matter had ended at that point. That is how satisfied you were.

Mr Nyathela: Yes. It gave me hope and more courage.

Adv Mpofu: Thank you. Now, you have also said that there were three things ( paragraph 44) that became the turning point for you: one was the meeting already mentioned the fact that you got a meeting so quickly. And then the words that you have just described, but coming now to the practical side, you said the third thing was that she appointed someone who was regarded as one of the best senior investigators. Who was that?

Mr Nyathela: Mr Vusi Dlamini.

Adv Mpofu: And did he live up to that reputation of being one of the best investigators?

Mr Nyathela: Absolutely.

Adv Mpofu: You can briefly just explain the journey and the difference because now we are in positive territory. You have said all the words, told us of the time of misery before, now what was new about the approach of Mr Dlamini? You have told us what was new about the approach of the Public Protector but tell us about Mr Dlamini.

Mr Nyathela: Mr Dlamini focused on his work, and he did not take sides. He just did his work without fear, favour or prejudice, which is what we have been asking the Office of the Public Protector for more than 11 years to do and, unfortunately, it did not happen that way. With Mr Dlamini, it took less than six months for him to complete the report. It was just unbelievable - the matter that took 11 years.

Adv Mpofu: Okay. Now, again, there was an issue with implementation. Correct?

Mr Nyathela: Yes.

Adv Mpofu: So, what happened next, once the report was out? FN4, 7/184 is the Report on an Investigation into an Alleged Failure or Undue Delay by the Department of Arts and Culture to implement the settlement agreement signed in terms of Section 64(A and B) of the Republic of South Africa. Go to 91/184 at the end of FN4. This is the report that would have been then released almost four months after you met with the Public Protector and it is signed as a contract by Adv Mkhwebane, assisted, as it was the custom to put the name of the investigator involved, by Mr Vusi Dlamini.
Line 9 on the previous page. Again, I will not go through the body of the report, because it will be clear that the report was in your favour as per the remedial action. So the finding, that they had failed to implement what had been agreed, was sustained in your favour, correct?

Mr Nyathela: Correct.

Adv Mpofu: So, for the first time, you were then vindicated?

Mr Nyathela: Yes.

Adv Mpofu: And we will see that the Department should provide–number 7.2. 1 - Funding for the renovation of SARA house in the amount of R15 million as per the Settlement Agreement, and all the other remedial actions, which I will not read because it is quite long. And there was also remedial action to do with unfair discrimination. What was the unfair discrimination that you complained about?

Mr Nyathela: The unfair discrimination was about the operation and admin cost because what was happening was that other individuals, including orchestras owned by individuals, were given funds for operations and admin costs, but we were deprived, even when we were the only organisation doing what we do - meaning, SARA is the only organisation that empowers young people with live event technical and production skills, not only in South Africa but the whole continent. That is why SARA is embraced all over the world. But it is unfortunate that here, our own people, meaning even leaders, even parliamentarians, have been choking and blocking, to make sure that an African child is not empowered with these skills of the future, skills that can give one work anywhere in the world and even create their own employment and create employment for others.

Adv Mpofu: But then, our understanding is that after this, the Department challenged it.

Mr Nyathela: Yes, after this, the Department and the Minister decided to take the Public Protector’s report on judicial review. And then, fortunately, the Public Protector challenged that and the Department backed off and agreed to implement the remedial action, which was finally made an order of the court.

Adv Mpofu: Thank you. So again, if the Public Protector had not intervened in that legal action by opposing the review, what do you think would have happened?

Mr Nyathela: It would have been a big challenge because we do not have, like I said yesterday, the financial muscle to pay legal fees and to litigate and all of that. And so the Public Protector came to our rescue.

Adv Mpofu: And that court process which the Public Protector had, fortunately, opposed ended up with a settlement - FN5 page 93. It is case number 63756 in the Gauteng High Court, and the Minister of Arts and Culture and the Department of Arts and Culture are the applicants and the respondents are the Public Protector, Office of the Public Protector and SARA and DBSA. Page 94 - That settlement order is dated 15 June 20188. It says here that the agreement was concluded on the 15th day of June 2018.

Mr Nyathela: Yes.

Mr Nyathela: In other words, the legal challenge by the Department delayed the matter from June 2017 when the remedial action was issued until a year later when there was this resolution.

Mr Nyathela: This order of the court.

Adv Mpofu: Thank you. Right again. So that was the next decisive intervention by Adv Mkhwebane?

Mr Nyathela: Yes.

Adv Mpofu: And what happened next?

Mr Nyathela: There was a little bit of joy, but the Department continued to drag its feet even when they appeared before the Portfolio Committee of Arts and Culture in Parliament. The officials presented false and dishonest statements regarding the implementation of the remedial action. Then we filed a complaint to the Portfolio Committee but nothing was done. We wrote to the Chair of the Chairs, Mr Frolick, but nothing was done. And we wrote to the Speaker but still, nothing was done. It was only after the intervention of General Bantu Holomisa that there was some movement and the Portfolio Committee requested us to present in detail the dishonest statements that were presented by the officials of the Department. We did that and still, nothing has happened till today. Those officials of the Department were not held accountable for wilfully presenting false and dishonest statements to this Parliament.

Adv Mpofu: And in relation then to the remedial action, which now was back and forth following the Settlement Agreement, did the Department then give you the R15 million for the renovation of the building?

Mr Nyathela: Yes. The Department wanted to give the R15 million to SARA but the Settlement Agreement stated that the relevant bodies that deal with renovations are the ones that must be given the funds. The Department was insisting on giving us the funds to implement the innovation and we told them that we did not need the funds to come to us for renovations; the funds that must be provided to us are those for our operations, and admin. And then, finally, through the intervention of the Public Protector Adv Mkhwebane who appointed the Development Bank of South Africa (DBSA) to implement the renovation part, it was resolved and the funds for the renovation were transferred to DBSA.

Adv Mpofu: The DBSA, through the intervention of Adv Mkhwebane, was appointed as the implementing agent. That is the word you use in a statement, correct?

Mr Nyathela: Yes. And the sad part of this is that when we first requested support for the renovation in 2005, it cost around R2 million and then when this was implemented, it was already around R27 million.

Adv Mpofu: So those delays that you have told us about, can we say, if you do not allow for inflation and all that, cost the taxpayer about R25 million?

Mr Nyathela: Yes.

Adv Mpofu: All right now. In your statement, you have described the intervention of the Public Protector as a game changer. What did you mean by that?

Mr Nyathela: No, it changed the game for us. Up until today, the intervention of the Public Protector meant that for the first time since the formation of this organisation, it was provided with funds for admin and operation that made sure that SARA House was properly renovated. So, it has changed the game for our young people, and now they can be trained in a safe and secure environment.

Adv Mpofu: And after the renovations … before we do that, let us just take the Committee to…no, that is fine. After the renovations and all that, the building was finally launched recently. When was it launched?

Mr Nyathela: There was a handover between the Department and DBSA. It was in February, late February this year.

Adv Mpofu: And who attended it?

Mr Nyathela: It was the DBSA officials and the Minister, Mr Nathi Mthethwa, and the officials including the Director-General.

Adv Mpofu: And nice pictures were taken. I am sure.

Mr Nyathela: Yes, they were all over, even on social media.

Adv Mpofu: Did you make a speech there and indicate the tortured journey that you have described?

Mr Nyathela: Yes. I did. And it was unfortunate that we did not have the presence of the PP Adv Mkhwebane. That was just a setback because we wished that she could not be present. Unfortunately, she was not.

Adv Mpofu: Yes. And did she give you an apology and explain that she was attending to matters related to this process?

Mr Nyathela: Yes, no, we did receive that. And then officials from her office, from the communication side, did attend on her behalf.

Adv Mpofu: Right. Well, I know you are saying it was a pity. But what about the fact that the person who had made it happen, in your estimation, was now busy being involved in this impeachment proceeding to the extent that she could not even be part of her own successes?

Mr Nyathela: No, it was not a good feeling because we wished that she had been present because without her, truly speaking, this renovation would have never happened, if it were not for the PP, I am telling you. Even this Parliament made sure that it protected the dishonesty that was presented, even when everything was put to them, they went to the extent of protecting the dishonesty at the expense of the African child to make sure that this did not happen. There was also an agenda that also involved the City of Johannesburg officials. The aim was for this organisation (SARA) to lose that building because it is in a strategic position right in the heart of Newtown, just near the Market Theatre. And then the sad part of this is that we were black people and they were having a problem with black people owning land in Newtown, meaning this started immediately when we acquired that building. They threw everything at us; we never had peace. They tried every means, even the Department officials writing to the Office of the Speaker regarding the implementation of the same settlement agreement. They said they were offering Mr Nyathela an opportunity to move because they do not see SARA, they only see Mr Nyathela. It is all about distracting our people so that our people do not see the bigger picture. They say it is this Nyathela causing havoc, causing problems, and they do not see the child. So even in the report of the Department, they were offering us R10 million. “Take R10 million and go and look for another place because this place cannot be renovated. It is old; it must be demolished.” And then I told them straight in their faces that they should not come with some apartheid laws and all of that. You think because we are black people, we must not be here in Newtown but must find someplace there in the township. No, we were not supposed to be here!

Adv Mpofu: Thank you. Let’s stop there. I think we can get the picture. Then, let us just pause then with the DAC complaint at that point, where the building has now been renovated at a much bigger expense. In your statement, you also refer to the dispute that you took to the Public Protector Adv Mkhwebane, regarding the National Arts Council (NAC). Can you tell us about that one; we will come back to the SARA House story.

Mr Nyathela: You know, what happened is that in 2014, we submitted an application to the National Council. After engaging with them and they advised us to submit an application and the amount must not exceed R1 million because what we were requesting was funds for the purchase of lighting and staging equipment for training purposes. It was in July when we submitted the application. There was no acknowledgement, not even an acknowledgement letter received from the NAC. We made a follow-up and, finally, we received a letter declining our application, stating that we did not submit the relevant supporting documents, like tax clearances, company registration, etc. And then we challenged that. It was false. From when was SARA not compliant? We had been working with the National Lottery Commission and all these other organisations, and we knew that we were right. So when they rejected it, we challenged it and we even wrote to the Minister. There was no joy. And then to our surprise, in February 2015 - I was attending an industry indaba on the matter regarding the revision of the White Paper on Arts, Culture and Heritage. It was at the Market Theatre. So after that event, we were standing outside and there came one of the officials, the staff of the National Arts Council. He came to me and said, “Hey, Baba, Hey, I have seen that you will be getting something.” I said, “What are you talking about?”`“Some R350 000.” I said, “What R350 000?” He said, “You do not know?” I went to the office, opened the envelope and these people had created an application using SARA's name without our consent, changing the title and putting different amounts from what was requested. And then we challenged that. And then they produced a policy: “Expired Projects and Surplus Policy,” saying that the policy allows them to do an application without informing us. When we read this policy, we said: “No, no, no, no! This policy is illegal!” We requested the assistance and intervention of the Minister, but no intervention. And then, before we even went to the PP, we even requested the intervention of the Portfolio Committee. No assistance – we were just shifted aside. Then finally, we went to the Public Protector’s Office and filed that complaint.

Adv Mpofu: That particular complaint was then attended to and let us just look at the cover page of the report: FN6 page 95. Okay, so this one is called: A Report on an Investigation into Alleged Maladministration, Corruption, Nepotism, and Abuse of Power by the National Arts Council. That was a result of the complaint that you have just described to us.

Mr Nyathela: Yes.

Adv Mpofu: And page 155, please. While we are getting there, just tell us again about your experience with the Public Protector concerning this complaint.

Mr Nyathela: Also, with this complaint, it took some time, because even the investigators under Ms Mogaladi were also playing those games of trying again to protect the officials of the National Arts Council. And then we ended up requesting the intervention of the Public Protector. She intervened, and then that is when the investigation started to have some movement. And then finally, the report was issued, because even at the Office of the Public Protector, things were not so easy for us. We had to, most of the time, request the intervention of the PP.

Adv Mpofu: And that is important. Is that then the report signed by Adv Mkhwebane, dated 15th, June 2020? That is the one then related to the matter of the National Arts Council. And again, the findings vindicated your complaint, particularly about the application that you have described, which was given under your name, under the name of SARA, without your knowledge. That was found to be improper,

Mr Nyathela: Improper, yes.

Adv Mpofu: And then the remedial action, which is longish, so I will not go through it in detail. But on page 153, we see there was remedial action relating to the Minister of Sports, Arts and Culture, and then to the chairperson of the NAC board, for them to do several things to vindicate the rights that you have just described, correct?

Mr Nyathela: Yes, correct.

Adv Mpofu: Can you just tell the Committee about the second complaint? There were two major complaints here, one was not being informed, and then the second one, as you say, was about the lawfulness of this so-called Expired Projects and Surplus policy. What did you find wrong with that policy, to the extent that you had to complain to the Public Protector?

Mr Nyathela: No, that policy, we could not understand it because it was giving the NAC officials the right to submit applications to the same NAC. And also, they can make an application on your behalf without you knowing and submit an application with your name and then it is normal but then we saw it as unconstitutional. There is no way that anybody can be allowed to do that – to make an application on SARA's behalf, on my behalf, without me knowing. That's fraud. That is a misrepresentation.

Adv Mpofu: What happened to that policy after your intervention and that of the Public Protector?

Mr Nyathela: No, there was that remedial action but up to today, of those remedial actions, only one was implemented, the one of an apology letter. And then, on the 27th of May, this year, the senior officials of the NAC, including its new chairperson and the Minister came to present to the Portfolio Committee on the implementation of the remedial action of the Public Protector, including this unlawful policy. Verbally, and in their written presentation, they lied, meaning they lied. They said, “We have implemented all the remedial actions of the Public Protector.” Everyone was listening, wondering about the presentation on Zoom and YouTube. These people were again, present wilfully presenting these dishonest statements to the Portfolio Committee. Immediately after the meeting, I wrote to the Portfolio Committee on the 27th of May 2022. I wrote to the Portfolio Committee Chairperson, Ms B. Dlulane, copying the other Members of the Portfolio Committee, making them aware that, hey, these people have just wilfully presented dishonest statements regarding the implementation of the remedial action of the Public Protector and the unlawful Expired Project and Surplus policy – but no response they went underground. Underground! We made follow-ups and follow-ups. All quiet.

Adv Mpofu: What happened?

Mr Nyathela: We wrote to the Speaker, Ms Nosiviwe Mapisa-Nqakula, and then we received a response on 1 September.

Adv Mpofu: Go to 7(b). Right is that the response that you are referring to that came from the speaker.

Mr Nyathela: Yes. Right.

Adv Mpofu: Just to save time, I will just go through some of what she says to you. She refers to this submission, which you say was made after the misrepresentations. And she has established that the National Arts Council did respond to your concerns and that their response was transmitted to you through the Committee. And she says notwithstanding the above, she has sent your submission to the Committee with the directive that it communicates with you on the matter, and it is signed by the Speaker of the National Assembly dated first September 2022. Then what happened?

Mr Nyathela: Then we responded to the Speaker’s letter.

Adv Mpofu: When did you respond?

Mr Nyathela: The day after.

Adv Mpofu: From this, it looks like the response was on the following day.

Mr Nyathela: Yes.

Adv Mpofu: That was that response letter, signed by you and dated second September 2022. Again, just for the sake of progress, I will read the relevant parts and you can confirm them, Mr Nyathela. It reads: Dear Honourable Speaker. Thank you for the letter dated 1 September. As a matter of fact, SARA has received no response from the NAC, either directly from the NAC or through the Committee. Whatever assurances the Speaker of the National Assembly was given were established without sound information. The NAC did respond to the Committee where false assurances were given without such evidence, meaning that the Speaker of the National Assembly was given false and untrue information. Was that the gist of your response to the Speaker?

Mr Nyathela: Yes.

Adv Mpofu: But this then also led to the matter being placed in the public domain. Yes, this matter was in the public domain, effectively summarising what you have already told us. I see some of the headings there saying that Parliament was misled and then there is another subheading that says Mangope launches bid to set aside to Public Protector Adv Mkhwebane’s report.

Mr Nyathela: Yes.

Adv Mpofu: Okay, I won’t read that because the Members would have read it, hopefully: 'Mangope launches bid to set aside Mkhwebane report'. What was that?

Mr Nyathela: No, because after the National Arts Council withdrew its application to review and set aside the report of the Public Protector, the former CEO filed papers separately to also try to review and set aside the Public Protector's report. Exactly what happened is that the NEC and Ms Mangope withdrew their application because our submission, our affidavit, was damning, because what they put in their court papers, when they tried to review and set aside the Public Protector’s report was just dishonest. There was perjury, they were lying all over the show. When we submitted our affidavit, they backtracked because they saw that they were causing trouble for themselves.

Adv Mpofu: Thank you. So once again, the entity against which you had successfully obtained remedial action wanted to resist the matter by taking it to court to set it aside. And once again, if that litigation had not been resisted, it would have nullified the outcome of your so-called victory.

Mr Nyathela: Yes.

Adv Mpofu: We have been told here that the Public Protector’s litigation to defend her reports is called reckless litigation. But that is fine. That is an issue that we will deal with at another stage. But in your case, in both cases, the undue reviews of her remedial action were successfully resisted, correct?

Mr Nyathela: Yes, correct.

Adv Mpofu: You have referred to a breach of section 17(2)(d), otherwise known as The Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act, otherwise known as The Powers and Privileges Act, where you say that it was a criminal offence to present false and dishonest statements to Parliament and its Committees. How far did that complaint of yours about the criminal activities that are taking place in this Parliament get?

Mr Nyathela: It is a sad story.

Chairperson: We are going to go on a break soon. I can see sometimes it is hard. Keep on the way you are doing it.

Mr Nyathela: What happened is that after that communication with the Office of the Speaker, finally, I got a call from the Secretary of the Portfolio Committee, behaving as if now it is a new thing, a new complaint, requesting some information. And then what led to that call was now that the matter was now in the public domain. Immediately after that article in the City Press, two days after that, I got a call from the Secretary of the Portfolio Committee. (The witness spoke in a hesitant woman’s voice) “Mr Nyathela, er, er, er let us help each other. These people say they have implemented the remedial action and sent you the apology letter.” I said that the remedial actions are not about only the apology letter, there are six and then only one has been implemented. “Okay. Er, er, er Mr Nyathela.” I said, “No, put in writing what you are requesting from us.” And then she sent an email: “Can you er, er, er please put in detail which dishonest statements were presented by the officials of the NAC.” We did that. That was requested on the fifth of October and then we submitted it on the 12th of October. Up to now, nothing has happened. What we have seen happening is that- especially the Chairperson of the Portfolio Committee, because I have also put it in writing to her - the Chairperson of the Portfolio Committee of Sport, Arts and Culture and the Minister, are not showing integrity. They have been protecting, especially the policy, which we refer to as a looting scheme. We have said it. That is why also immediately after the Public Protector released the report, we opened a case with the Hawks about this looting scheme that is being operated inside the NAC at the expense of the child and the centre is being protected at all costs. That is why we find they went to the Hawks and opened the case. And then this has been going on. That is why even today, this Portfolio Committee, including the Office of the Speaker, have been trying, by all means, to frustrate our complaint and protect this looting scheme. And this has been happening for years. That is not the first time that we have filed a complaint regarding Section 17. As I have said before, it was protected and then we ended up filing a complaint to the Public Protector against the former Speaker, Ms Thandi Modise, but that report is not available because of the very same thing. That was why we were watching these proceedings and could not understand the hypocrisy that was going on, especially in that wrongdoings are being protected at all costs, even when we were requested to submit evidence and then we did that but they continued to protect them and to frustrate us, thinking that this will just go away. Not only that, the minute a Portfolio Committee and its Chairperson, including the Minister, allows, even as we are speaking now, the National Council and its chairperson to abuse the public purse and the court processes to persecute me and SARA, using the public purse trying to muzzle me so that this corruption and fraud that is running deep at the National Arts Council continues at the expense of our young people, the arts and the creative industry. And then this Parliament, including the Minister and the Presidency have done nothing to stop that, even though we have submitted a request for intervention and submitted evidence. That is why we ended up filing complaints we have.
Now, as we stand, I can even supply the case numbers. We have three cases running with the Hawks regarding the same corruption and fraud that is being run at the National Arts Council and then when the National Arts Council come to this House, especially to the Portfolio Committee of Sport, Art and Culture, they are being protected by the majority party in that setup, using their numbers to continue to protect this corruption at the expense of the African child and those not yet born. The evidence is there.

Adv Mpofu: Thank you. Thank you, Mr Nyathela, I am sorry that you had to go through all that pain.

Mr K Mileham (DA): I apologise, Adv Mpofu; I apologise, Mr Nyathela.

Chairperson: Is it a point of order?

Mr Mileham: A point of privilege. Could I ask Mr Nyathela just to lower his voice a little bit?

Chairperson: No, no, no, no, no! Just wait colleagues. Let him finish. That is right. Colleagues. Don’t respond to Adv Mpofu. I remain the chairperson here. Thank you. Please, I do not want people to take the time to take over the work that I am doing on the platform.

Mr Mileham: Thank you, Chairperson. My request was quite simple. It was just that Mr Taylor just lowers his voice a little bit because the volume with the speakers is very loud. And when he raises his voice, it becomes even louder. And it is uncomfortable. Thank you.

Chairperson: Thank you, honourable Mileham. If that was a point of order, or whatever it was, it is not sustained. I am sitting here in the Chair; I am able to intervene when there is a problem. So far, there is no problem. So I want to tell you that that is not sustained. And I want Mr Nyathela and Adv Mpofu to continue.

Adv Mpofu: Thank you. Thank you very much. Yes, no, we understand the emotion of where you are coming from, but I think it might be noise to other people. But from the pain that you have just explained now. How does it relate to the words that you say you will never forget where the Public Protector said, “I get you Mr Nyathela "because it looks like that needs to be spread around.

Mr Nyathela: I try by all means to be composed, but to be sitting here and presenting what I am presenting, it is very emotional and very trying. That is why I will say that I do not wish even my worst enemy to go through what I went through, because my only sin was only to see to it that an African child, a black child, is empowered with these critical apartheid-neglected technical and production skills. And then people have been taking advantage of the fact that the majority of black people do not understand this industry. It was done purposely with the apartheid system: “You black people, you must just be dancers, actors, and the technical and production side, which commands the power, must remain a whites-only affair.” And now, we have seen it - our own people, black people, being the champions now as we speak, it is black people who are busy choking and blocking, to make sure that the black child doesn’t acquire these skills and that they are relegated to be car washers and car guards. Critical and transferable skills, skills that can make one work anywhere in the world, even here, in Parliament for this presentation, even in cruising ships where you have entertainment. We have young people working from Holland to Portugal in those cruising ships, doing sound and lighting in theatres. These are the skills that really get you to work internationally. This has been a white male-dominated industry but now this is in the interest not only of South Africa but the whole continent.
This is why this organisation is one of a kind in the world. That is why it is appreciated when you go to Asia. When you go to the Americas, Europe or the UK, it is well received and well appreciated. If it was not for the support of our international partners, which we created on our own. Bilateral agreements have been signed, left, right and centre. The same bilateral agreements do not benefit our young people. Because let us get it: it is about the child. We have been young before, we had dreams, we had ambitions, but because of the system of apartheid we were like lost so now with a new government of our own people, black people, being the same ones who are plotting the empowerment of the child, because their children are okay, or because they do not understand this industry. They are driven by jealousy, arrogance and ignorance. If an initiative does not come from them, or their cliques or cabals, then it must be choked and we must pay the price and then no one gives us a hearing or support. I am not here because I want to look smart. The fact of the matter is that I am here to say if it was not for this Public Protector who changed the game, not for me but for the child and those not yet born.

Adv Mpofu: Can we have the tea break now?

Chairperson: Adv Mpofu, please proceed. I will indicate when we get to the teatime. The agenda says we just have five minutes left, please

Adv Mpofu: Okay, we will do the five minutes. I need the break more than Mr Nyathela. And now, let us link the two projects which is what I wanted to do after the break. You indicated that on both these that we are discussing, the one of the National Arts Council, as well as the first one regarding SARA House, and the interventions there. Why do you say that both of those could not have been successful if it was not for the intervention of Adv Mkhwebane?

Mr Nyathela: As I have said from day one, we tried at all doors. You name it: the presidency, the Parliament Speaker, the Chair of Chairs. Even the current Deputy Speaker, Mr Lechesa Tsenoli, who was once the Chairperson of the Portfolio Committee of Arts and Culture, knows about this. But what has been happening is that people compromise and sacrifice the child. That is why our young people are in this mess. I cannot understand what kind of people do not care about our young people. Even animals do take care of their young ones. That is why our people are in this mess. I just don’t understand it. And then it is only rhetoric during June which is youth month. We hear youth this, youth that. We need skills, tools, and development and not talk about it. We need somebody implementing, doing it, and yet the people who are doing it, are not being given the support. It depends on who I am; who I am connected to and all of that, and only then can you get support. That is why I say we had to finally look for assistance outside our country. Doors were shut in our faces by our own people. So it is like that. And it will not change. And then no one is going to tell me that this thing is white when this thing is red. If something is white, it is white and not red. And we will tell it like it is in any forum. The truth will always be the truth and the truth will prevail.

Chairperson: Mr Nyathela, thank you. At that point of the truth, we will pause there for 15 minutes and take a 15-minute break. We have a witness physically sitting there and we do not appreciate the consistent movement up and down, especially from that side. I remain focused on the witness and I get disturbed by the in and out.

Chairperson: We resume and proceed with the leading of evidence. Just to indicate we will resume until lunchtime, so that gets to be the point of conclusion of leading of evidence on your part. I hand back over to you.

Adv Mpofu: Thank you. I shall do my best. Right now, I wanted us, before we go back to the Department of Arts and Culture issues, to round off this issue of the National Arts Council. And as I said, the report is a bit long, so although the Members would have read it on their own, I just wanted to go through some of the highlights to paint a picture for people at home who may not have read the report you have already indicated. And again, I will try to do it by leading questions, unless there's an objection, just to save time. You indicated that the two complaints concerned the lack of knowledge of this application as well as the policy that you've described. Now, if we go to the report, which is FN6 on page 99, at the bottom. It is the report of Adv Mkhwebane which says: “The allegation, that the CEO of the NAC submitted an application to Exco for partnership funding using the complainant’s name without his knowledge and consent, is substantiated.” So that is what you were referring to where there was a finding in your favour.

Mr Nyathela: Yes.

Adv Mpofu: And then it looks like the reason, or excuse, given by the NAC will be found at page 100 point (ee): “Notwithstanding the policy contested, I find the reason provided to justify not informing the complainant who is the subject of the proposal under the annual partnership, such as they did not want to raises hopes when such proposals are presented to Exco in their names, to be unacceptable. “How did you find such an explanation that the reason they submitted your application without your knowledge as they did not want to raise your hopes?

Mr Nyathela It is another story; I don't know how to describe it. It is like taking us for a ride, taking us for fools. They continue to abuse us and continue with their dishonesty at the expense of the child and those not yet born.

Adv Mpofu: Okay. And then, of course, on the second aspect, just for reference, when Mr Nyathela was referring to the six remedial actions, again we are not controlling them. Page 102(A and B). You'll see that the Chairperson of the NAC was going to take the following action. Then there's 1, 2, 3, 4, 5 and 6. And number five is the one that talks about the letter of apology, the one that you refer to or what you are interacting with the Speaker about as that that was the only remedial action that had been honoured. The rest had not been honoured.

Mr Nyathela: Yes, yes. Point 5 is only the letter of apology. Because even now, it says, “Including the formal letter on the outcome of his 2014 application and his reason for its rejection. Up to now, so far, they have given us three reasons so we do not know which one is the right one, and they do not even respond to our letter, because they sent us a letter putting a different reason. And then we responded to that letter but up to now, they have failed to respond to our letter of last year till today. It is one of our submissions to the Portfolio Committee in Parliament.

Adv Mpofu: So, in short, would it be correct to summarise then the situation as follows: the Public Protector sustained your complaints, the NAC tried to resist it in court, but after your answering affidavit, they withdrew. And then they came to report to Parliament, where, if we want to be kind, we will say at least one of the Public Protector’s remedial actions, number five, was implemented. I know you are saying even that was only partially implemented, at least if we give them that one, the other five are still not implemented today.

Mr Nyathela: Okay. But the other thing regarding that which is so sad, is why is Parliament allowing that when they requested evidence and I was to put it in detail? The dishonest statements that were presented have been laid out in detail and up to now, the Portfolio Committee is playing a hide-and-seek game. You know, when I was sworn in here and told that you must know section 17(2) what will happen when you wilfully present false and dishonest statements, but it is the very same Parliament and its Portfolio Committees that are failing to address that complaint about section 17(2), not once but twice, and why? Because they are protecting dishonesty and corruption at the expense of the child.

Adv Mpofu: Good, yes. But you must be careful that it does not apply to you although some have told lies here, and nothing has happened to them.

Mr Nyathela: Absolutely.

Adv Mpofu: Thank you. All right. So then that is fine. Let us go back to the SARA House matter. We were at the stage where the DBSA gets involved. According to your statement, by the time the renovations were done, they now cost R27 million and not the original R2 million, due to the delays of the former Public Protectors and other people.

Mr Nyathela: Yes, yes.

Adv Mpofu: Now, through the intervention of Adv Mkhwebane, the renovations were started. I just want, for illustration, to go to FN9. So this was the state of the building where you were supposed to be doing all this valuable, sterling work. Those are some of the pictures of what it used to look like. Can I do the pictures and then you can describe for yourself what it used to look like? The pictures speak for themselves, but, in your own words, can you just describe this building where you were expected to be carrying out this important work?

Mr Nyathela: It was in a terrible state. Also when it was raining, we would have to put out some buckets so that water did not flow all over the building. And then when it comes to winter, it would be terribly cold. It was not a healthy situation. It was an unhealthy environment where our young people were being trained and I do not know how to describe it. It was sad, very sad.

Adv Mpofu: And we went there and you showed us around proudly, a week or two ago, but we will deal with that later. I just want to deal with the before photographs.

Mr Nyathela: Right Okay, now

Adv Mpofu: Now if we go to that particular part which I call the DAC matter - that is just my wording to differentiate it from the NAC matter. I'll do the same thing of just going through it scantily, to give a picture to those who might be listening without the context or haven't read the reports. Let's go to page 49: the executive summary. It says: “In the main, the complaint was that the DAC failed or unduly delayed to implement the settlement agreement signed between the DAC and SARA in terms of section 7(4)(a) & (b) of the Public Protector Act on the first of April 2014. If you ignore the legalese, was that the essence of your complaint?

Mr Nyathela: Yes.

Adv Mpofu: And then, page 50 – letter C. One of the issues that you raised was whether the Department unduly funded the operational and administrative costs of the three orchestras, namely Cape Town Philharmonic Orchestra, Cape Town Jazz Orchestra, and KwaZulu Natal Philharmonic Orchestra and unfairly discriminated against SARA. One of your complaints had to do with the fact that, contrary to the claim that they did not find operational and administrative costs, you were able to identify other recipients. Correct?

Mr Nyathela: Absolutely. Because the Department tried, by all means, to deprive SARA, the only organisation of its kind. What we were requesting from our government was just a boost. Yes. That is why, through the intervention of the Public Protector, Adv Mkhwebane, it was for the first time that we received funding for our operations and admin. All these years, we've been running this organization with our backs against the wall, not earning a cent all these years, not getting a salary and all of that. We had to soldier on for the sake of the child. Yes. So sad when individuals were given R10 million and all of that. And then the sad part of it was when you read the Annual Reports and Financial Reports of the Department, every year since its inception, there have been millions, like R 40 million, unspent, let alone the other millions of Rand of wasteful expenditure. No, that is why I say the reason was that they just wanted to see this organisation dead and buried. That was the aim. But our international friends kept us going, especially the support that we are receiving from our international friends which were mainly for training and giving our young people international exposure and all of that. So through Adv Mkhwebane’s intervention, we finally got our first funding for operations and administration.

Adv Mpofu: You also testified that also through that intervention, the building was now finally renovated.

Mr Nyathela: Yes.

Adv Mpofu: Okay. Then we can go to page 52 - letter A. Again, I am just going through the report, paging through the highlights just to give a picture. The allegation that the Department improperly failed to, or unduly delayed, implement the Settlement Agreement was substantiated.

Mr Nyathela: Right.

Adv Mpofu: Go to page 53. Just for balance, they said the allegation that the Department improperly failed to render its support to SARA in the international interactions was not substantiated. So that was because they had demonstrated some support for that. Correct?

Mr Nyathela: Yes.

 Adv Mpofu: Then, on page 55, letter A again, the allegation that the Department improperly funded operational and administrative costs of three orchestras, while on the other side denying SARA similar funding is substantiated. And then we have already gone through the remedial action, which is R15 million and the DBSA as implementing agency.

Mr Nyathela: Okay.

Adv Mpofu: Now, even this picture that you have painted of the decisive intervention in your journey of misery by Adv Mkhwebane, what was your impression and how did you feel when you heard that there are people in this Parliament who wanted the PP to be removed?

Mr Nyathela: Now, first of all, when this proceeding started, I started to watch and then thinking about the treatment that we had been receiving for years from this august House - Parliament, its Committees, and including, the Office of the Speaker, it was like hypocrisy at its best. Here is the person who has made sure that our youth got trained in a safe and conducive environment by the only organization of its kind in the continent, which empowers our youth, with apartheid-neglected technical and production skills, she is being persecuted. But the officials, including Ministers, including parliamentarians, who have been protecting this dishonesty, and also presenting this dishonesty, in this august House, have been let off scot-free and are not called to order and are not being called to account, till today. Then for us, that is where we see dishonesty at its best. That's from our side, from where we are sitting. But if all people were treated equally, those who come to this House and present this dishonesty, to choke and stop the empowerment of the youth, perpetuating a pre-1994 agenda at the expense of our youth, no, for them, it is businesses as usual. They are being protected. Dishonesty is protected and corruption is protected, even when there is the evidence that they have requested us to submit, and which we have submitted, but then you know how these roadie schools are dismissed. Who is this Nyathela? They do not focus on the merits of your case. It becomes personal and even people who even do not know you, already have an agenda and attitude. Nyathela, ai! We know this because this is the line that they have been pushing. And on the same line, Mogaladi likes to complain. That is what we have been subjected to for more than two decades. It is a fact!

Adv Mpofu: And did you know Adv Mkhwebane? Did she know you? I know you say you were surprised at the promptness of her response but was there anything special about you that made her the game changer that you have described?

Mr Nyathela: No, I did not know the Public Protector before. I did not even know her cell number. I did not know anyone in her Office before because we are not in your spaces or in their spaces. Personally, I am the person of backstage, not in the front, we do not belong there. It is the circumstances that have pushed us, even for me to be here, but this is not our space. Like I said yesterday, our space is with young people, creating opportunities. That is my passion for young people. So I did not know Adv Mkhwebane before. That is why I said I was shocked and surprised. I requested a meeting in January and got a meeting in early February. That never ever happened with any official or Minister or Chairperson of a Portfolio Committee. We had to chase them, keep on writing, be relentless, and make them a bit uncomfortable because we stayed on it. We are relentless about the future of our young people; we do not give up. Because it is in us, we live it, we dream it, we walk it, we eat it. That is it, it's about the child. So, that is why I say that it struck me, that opportunity of the meeting, and those words that she got me. Again, I remember them even today. This is not about me; this is about our children and grandchildren. And then I knew that she got it. She got it. Because all these years, all these people, be they parliamentarians or government officials, what they see is this - they cannot see beyond their law; they cannot see the child. They cannot see or they refuse to see the world through the eyes of a child. That is why young people are in this mess.

Adv Mpofu: Right. And you say that even as you are sitting there, this is not your space. And then I indicated to you yesterday that, unfortunately, you got here because we requested the Public Protector just to give us the names or recipients of the services at the Public Protector’s Office. But when we heard your story, you became the representative of that group. How did you get here and how did you get requested to be here?

Mr Nyathela: No, I did not have the cell number of the PP. So I received an SMS and wondered what this number is. And then I checked the message. And it was short and direct. “ Hi, Mr Nyathela. This is PP Adv Mkhwebane. I was just checking if you could testify about your experiences with the office.” And then it was in the afternoon and I thought I’d sleep over it. But it was like going through my head that I have to do it. If I do not do this, it will not sit well with me. That is why the following morning, I responded and I said I will do it. That is how it happened.

Adv Mpofu: And why did it take you such a short space of time to make that decision?

Mr Nyathela: No, it is because - how can I put it? The truth is that, as I have said, the intervention was a game changer. Not for me personally, but for the child, like I have said, Now, because the other thing I see is, I've got a team that I'm working with, it's not a one-man show that is just the leader. So all these years, even for people that were at working with me and assisting me, it was a challenge to even give them transport money, let alone wages. And all of that is why we were requesting this assistance, just to give us a boost. But now for the first time since PP’s intervention, they are able to get something at the end of the month. We are able to pay for the services, our water, our electricity, for the building. That was denied to us for more than two decades. That is why I was saying we have been running this with our backs against the wall. I will repeat it again. If it weren’t for the decisive intervention of this Public Protector Adv Mkhwebane, we would still be in the same situation, and that building would have been in the same situation.
And then that is not the only intervention. We had a complaint that we had a challenge with the city of Johannesburg billing us abnormally. In one month there was a bill of R500 000 for water for only one month. The way these people threw out everything at us for us to lose that building! I went through three executive mayors - this matter dragged on for years and years. It was only this year in February that the Public Protector issued a report in our favour again as I have said. We do not just complain. When we complain, we push evidence because we understand the evidence. Like I said yesterday, we're not in the business of smear campaigns or the use of lies. No, we have put development first, we employ young people. That is it. In our country, our own people, I have to say this, black people are afraid of black power. They have an issue with black excellence. They will try by all means to suppress it with smear campaigns and so on. That is why I appreciate it. This is black people having a problem with a black-managed black-owned organisation. That is why they also had an issue when people owned property in a white area, right in a Newtown. They throw out everything to make sure that we lose. We must focus on these petty fights so that we get distracted from our core work of youth empowerment and creating opportunities for our young people.

Adv Mpofu: Thank you for explaining how it is that you responded promptly to the request. And as I was saying, you can blame us as we are the ones who pushed the PP to give us those names. But you have also said that you are not in the space of what you call the front line. And let us just quickly give perspective again to where you fit in the scheme of what we call the general public and South African society. Where do you live?

Mr Nyathela: I live in Orlando West in Soweto. That is where I grew up. I still live there, even today.

Adv Mpofu: Do you own a house?

Mr Nyathela: No, I inherited a house from my parents and I am the only child of my parents who have both passed away.

Adv Mpofu: Do you have a car?

Mr Nyathela: No car.

Adv Mpofu: So how does a person like that reject when you are being offered R10 million or R15 million and all sorts of incentives to give up your dream?

Mr Nyathela: See, it is not about money. It is not about me; it is not about material things. Like I have said from day one, what struck me were the imbalances that were created by apartheid. I come from 1976. I was involved, I was an activist. When I grew up, I came from a very politicized area, Orlando West. Also being a roadie. Roadies were part of the struggle. What strikes me is the educational part because you can deprive me of all the material things, but when you deprive me of knowledge, then you are a devil because that is exactly what apartheid did to our people, including my generation. It deprived us of a good education, gave us an inferior education, depriving us of technical skills and opportunities. So, for me, it has never been about material things. It is about the child. From the start, what you see is what you get, just like that.

Adv Mpofu: Thank you. Now, you have described the situation of the Public Protectors before Adv Mkhwebane. You have described the situation that she introduced when she got there. And we know that since then, through the efforts of the President, she has been taken out of the picture, again, so that she can face this, what you can call her persecution. Have you had any interactions with the Office of the Public Protector since the removal of the permanent protection from her office?

Mr Nyathela: Yes, we have.

Adv Mpofu: And then what you have also experienced?

Mr Nyathela: For us, it is going back to square one, the treatment that we currently are receiving. Also with the Acting Public Protector, I can give the example of our recent complaint that has been running in the Public Protector’s Office against the Auditor General of South Africa.

Adv Mpofu: That complaint, when did you launch it?

Mr Nyathela: When was it? I can’t remember the year.

Adv Mpofu: Yes, it is sometimes it's towards the end of 2019. I don’t have the reference.

Adv Bawa: This complaint is not referred to in the affidavit.

Adv Mpofu: No. It is not; it was subsequently loaded.

Adv Bawa: Yes. It is a complaint that was lodged on the 27th of September 2019 and the closing report that was submitted by…

Adv Mpofu: That is correct.

Adv Bawa: That is a closing report that was issued by the Acting Public Protector on the 30th of September 2022.

Adv Mpofu: Thank you. Item number 1.1 point 16. It is called “The report on the investigation into allegations of improper conduct by the Attorney General relating to the alleged failure to audit the expired and surplus policy of the National Arts Council.” This is the same policy that you had been complaining about to the Speaker, to this one and that one, which allowed officials to submit applications on your behalf without your knowledge, correct?

Mr Nyathela: Right.

Adv Mpofu: So we will see this then as a continuation of that. But it is clear from this that you then filed a separate report. Go to the last page of this document. It is signed by Acting Public Protector Kholeka Gcaleka, dated September 2022, and assisted by Ms Ponatshego Mogaladi about whom you have spoken.

Mr Nyathela: Yes.

Chairperson: I see both of you smiling. Go ahead.

Mr Nyathela: Let me give a brief background regarding this complaint against the Auditor General of South Africa. It is that the Auditor General's Office officials have been giving clean audits to the National Arts Council when this unlawful policy has been operating, this Expired Project and Surplus Policy. And then what? It transpired that this matter ended up in the media, whereby I had some serious exchanges with the late Auditor-General Kimi Makwetu and then I also requested the intervention. I wrote to the Standing Committee on Auditor-General, and myself and the late Auditor-General were called to the Standing Committee. So it was in 2019, late 2019, around October 2019, that we came to the Standing Committee for the Auditor General and that meeting concluded that we should wait for the report of the Public Protector regarding this investigation of the National Arts Council and then if the Public Protector found this policy unlawful, then the AG had to go back and explain why the officials had missed it. So it was great. And then we waited and the Public Protector issued the report in 2020. Immediately after the report was issued, I sent it to the Standing Committee Chairperson, Mr Somyo and Secretary Mr Mbele. Yes, yes. Right. You know, up to today, they went underground! Now they are running away from addressing that! That is why we also filed a complaint with the Public Protector against the AG for giving a clean audit to the NAC whilst this policy is unlawful. Even I as a layman saw it from the start. And then the Public Protector found that it is breaking all the laws: the Constitution, the PFMA, Public Service Administration and all the laws, but it is allowed, even today! That is why the Parliament and its Portfolio Committee are deliberately failing to hold the NAC accountable for this policy, even when they, the NAC officials, including the Minister for that matter, come into the Portfolio Committee and lie about the full implementation, or the remedial action of the Public Protector and nothing happens and it is business as usual! That is why I'm saying that it is worse now as they're using the public purse for litigation to try and silence me with court orders and all of that, as we speak, now! The Chairperson of the Portfolio Committee and the Minister are silent, taking no action, allowing the new NAC chairperson, Celenhle Dlamini, to continue to abuse because the NAC is not using its own money. They are using our money, the public purse, which must be dispersed for the public good. The NAC is owned by a cabal to do that, and this is what I even told the Hawks. The Department of Arts and Culture is a playground. Other departments of law enforcement are working, but Arts and Culture, ha! They are doing this at the expense of the child. That is why our young people are roaming the streets, waking up and walking around every day. They are in a corner. It was even better during apartheid in terms of the Arts, where we had places to go and to play but now there is nothing! Even that Portfolio Committee, I've been telling them but they only focus on department entities and not what is happening on the ground. And then nothing for artists. The NAC is led by a woman, Celenhle Dlamini. Artists staged a 16 days sit-in at the National Arts Council offices but what did the Portfolio Committee do? No intervention! What did the presidency do? No intervention because that is the Arts. It must continue and that is why all that Department does now is events.

Adv Mpofu: Thank you. So number four of the list of remedial actions - I am just running through because you're saying there are so many laws that were flouted. 102 of FN6. I will just read it out again to save time. If you can confirm when you say so many laws, you are referring to this - the Public Protector says to the chairperson in respect of that policy to align the internal policy toolkit with the relevant legislative framework in section 33(1) and section 217 of the Constitution, section 51(1)(b) of the PFMA, section 31 of PAJA, regulation 16(a) of the National Treasury regulations, as well as regulation 13(c) of the Public Service regulations. That is something like six laws that you are saying were breached by this so-called policy. Correct?

Mr Nyathela: Correct. That is why I will repeat it: for us, this policy is a looting scheme. That is why it's also a challenge for the Portfolio Committee, including the NAC, the Minister and the Department to make sure that this policy, this looting scheme, is stopped. It must be nipped in the bud for the sake of our children and our youth, the arts and the creative industry in general. You know, in 2016, when we filed a complaint to the Minister, we wrote to the Minister, and the Minister appointed a forensic company called Peak. That forensic investigation also confirmed that this policy is unlawful and it's against the PFMA! Finding the policy unlawful did not start with the Public Protector but it continued after that report. As the complainant, we requested a copy of the report by Peak, but no, the Department and the Minister did a report on top of a report, but still the Minister stated that this policy must be abolished/repealed but it continued! That is why we ended up taking the matter to the Public Protector! It continued till today and then you ask why this looting scheme is continuing and at whose expense. Who is benefiting from this looting scheme to the extent that people can use litigation to try and silence me and muzzle me and SARA because we are raising these activities? Then you get Parliament and its Portfolio Committee, including the Office of the Speaker, being quiet, silent and allowing this to continue till today. As I am sitting here, I am being persecuted, me and SARA. And then, funnily enough, they are not litigating against SARA but SARA and Nyathela. SARA and Nyathela. They've got big pockets, they come in with top law firms and all of that while we scramble, and then they also abuse the court processes with a SLAPP suit. But nobody cares, as has been the case for more than two decades!

Adv Mpofu: And do you believe, with that kind of intervention from the Public Protector that you have described, that you are the exception, or would there have been other South Africans who benefited from her approach?

Mr Nyathela: Oh yes, I mean, sure, because others cannot keep on pushing because there has been a tendency to just ignore one. Unganaki, unganaki! (Ignore, ignore). They play a man instead of playing the ball. Many people are going through what we went through, but they are not resilient, they cannot be relentless and stay on it as we did, especially in the arts. I've told the Members of the Portfolio Committee, including the Chairperson, to ask for the letter that the Chairperson of the Portfolio Committee, Ms Dlulane, wrote to a Member of the Portfolio Committee, Mr T Mhlongo, saying that I've insulted her. Mr Mhlongo forwarded that letter to me, and then I responded to the Chairperson and I said, “Please can you provide evidence of those insults." Right up to today it has been like that, the use of lies to choke and block the empowerment of an African child with technical and production skills. We have seen it all. Evidence is there in black and white. It is not a story, not hearsay, we have seen it. That is why we submit evidence, and then they don't come back because there is the abuse of power, abuse of position, abuse of titles, and then you find the very same people who are supposed to be serving us becoming public bosses and ganging up together to protect lies and dishonesty at the expense of the child. That is why I'm saying that again. That is why our young people are in this mess. It is because of such conduct.

Adv Mpofu: Thank you. And what does a person, who has had so much experience with the Office of the Public Protector and who has gone through the worst and the best, think the impact on the public, that is supposed to be protected, will be when the Public Protector is sitting for months and months, instead of doing what you have just described?

Mr Nyathela: Yes, it has an impact on us, ordinary people. I've made an example of what happened with this AGSA report. It was closed. Can you believe that twice we were never given an opportunity to be interviewed? The complainant was never interviewed, twice. First, whilst I was there, we responded to the discretionary notice and requested a meeting. We were given that opportunity, but now they tried to close our complaint against the former Speaker for not addressing our complaint about the dishonest statements presented by officials of the Department when reporting on the implementation of the settlement agreement. Up to now, we as the complainant have not been interviewed, but there is a discretionary notice. “Can you give us clarity?” “Oh no, we need more information.” But when Mr Vusimani Dlamini conducted his investigation and he needed more information or clarity, he would call or contact us or send us an email that he needs some more input, and then we would provide the information. They are wasting our time and energy because it's done deliberately so that we lose focus on doing the best we can for the sake of our young people. It is deliberate, including this silly litigation. It is just to distract us. And no one is intervening - not Parliament, the Minister or the Portfolio Committee.

Adv Mpofu: The report of Adv Kholeka Gcaleka, the one that we have just referred to now, is what is known as the closing report, which means that they are no longer going to continue with their complaint against the AG.

Mr Nyathela: Correct.

Adv Mpofu: That means it is closed. And we just need to clarify this. It was mentioned earlier but give me some detail so that it's quite clear what you're complaining about. You are saying that after alleging this complaint at some stage, there was an attempt to close it without talking to you?

Mr Nyathela: Yes.

Adv Mpofu: And how was that attempt overcome?

Mr Nyathela: It was overcome because we responded to the discretionary notice. And when we responded, at the same time, we requested a meeting with the Public Protector, Adv Mkhwebane. And then she granted that meeting, and then she called a virtual meeting, but unfortunately, the same investigator was not present in that meeting. And then the Public Protector advised that there must be further investigation. Now that the Public Protector, Adv Mkhwebane, is no longer in the Office, it is the same thing again: no interview, no request for clarity or more documentation or evidence, just the discretionary report. Now we do it all again.

Adv Mpofu: Now, according to the affidavits filed on behalf of this Committee and the President and others, it makes no difference whether Adv Mkhwebane is suspended or not. She is sitting here because, according to them, it makes no difference. The good services she was rendering are continuing. Do you believe that?

Mr Nyathela: We do not believe that because for us things are getting worse and like I have said, it is not only that complaint of the Auditor-General, but we also complained against the former Speaker of this august House and it was the same thing - they sent us a discretionary letter. We responded that we could see that they just wanted to drain us and waste our time. So we said they can carry on and close the case. But again, you note that we were not given an opportunity to be interviewed, nor was there a request for additional information. But they are stuck now and have not issued a closing report, although it is close to two months now, or more than two months.

Adv Mpofu: And on this one, let us assume for a minute, regarding this report that was issued on the 30th of September 2022, two months ago, even though I know you will not agree with me, let's assume that they did not find sufficient evidence to assist you. But I understand your gripe is not so much the content but the fact that it was done without your involvement. What do you say about the fact that your complaint was closed without reference to you?

Mr Nyathela: It is a sad story and it is not the first time. The same thing was done with another complaint: the complaint against CATHSSETA and the Department of Higher Education and Training. Then we got a closing set up and, because we finally got the funding for operations, we took that closing report on review. Not long ago, the Public Protector’s Office withdrew and paid the costs because the evidence is there. I shall say it again: we don’t file a complaint without evidence. We understand evidence; we are not in the business of lies or smear campaigns.

Chairperson: We are still here; you do not have to whisper to Adv Mpofu. I do not want your evidence to be disrupted but I do want you to stop that. You have done very well so far. Just stay on the microphone. Go ahead.

Mr Nyathela: Like that example of the complaint against CATHSSETA and DHET, that is another thing that I want this Committee to check, especially in terms of Ms Mogaladi. When you go there, ask for the transcript of the meeting that was held between the former Chairperson of CATHSSETA and Ms Mogaladi. Reading that transcript and hearing what Ms Mogaladi is saying about me will confirm that it is personal.

Chairperson: Thank you, just pause.

Adv Bawa: Adv Mpofu, do you have a copy of what the witness is referring to?

Adv Mpofu: No, maybe I missed something. I thought the witness was just making a general statement.

Adv Bawa: The witness is referring to a transcript that is foreshadowed in his affidavit, which we had asked for, or the Secretariat had asked, and I did not follow up on it again. And I wondered if … because there are several transcripts of various interviews, and I am not sure which one the witnesses is actually…

Adv Mpofu: And the short answer is no. But I understand this to be a reference to the Rule 53 record in one of the litigations he referred to.

Adv Bawa: Chairperson, this was not put to Ms Mogaladi in her evidence. I think Adv Mpofu was probably not aware of it at the time.

Adv Mpofu: No, I was not. But so what?

Adv Bawa: I am going to see if Ms Mogaladi wants an opportunity to respond to it.

Adv Mpofu: But nobody is representing Ms Mogaladi. The witness is informing the Committee of his experiences. If Ms Mogaladi wants to have lawyers to represent her, that is fine but it should not be paid for by Parliament.

Adv Bawa: I am not entering into a dialogue with Adv Mpofu but we have had witnesses here and if you are going to have statements that impugn the credibility of witnesses, or you make statements where you infer that they have acted in any way improperly, then either those allegations should have been put to them - we have a provision in our rules that deals with credibility - or they should be afforded a fair opportunity to have their version put before the Committee.

Adv Mpofu: Chairperson, we have been preached to endlessly that this is not a court of law. And now we are being told that a witness, a layperson, or a member of the public cannot tell his story because of some controls. If they want to recall Mogaladi to refute the rule 53 record, they're free to do so. But we cannot stop Mr Nyathela from giving his primary evidence. He read this document. I accept that he does not have it here and neither do I - that I concede to - but he's testifying from his personal experience. I don't know what the problem is. Why would an evidence leader not want Parliament to get information to help the Committee?

Chairperson: Okay, it is fine. I think you have made the point. I don't want to stay on this. It has been suggested that you deal with the issue later.

Adv Bawa: The comment was, “Why would the evidence leaders not want Parliament to have any information?” That is not the point. The point is: I am quite happy for the witness to say whatever he wants to say, but I have neither the document - it's not been provided by Adv Mpofu and it potentially may follow on to evidence which Adv Mpofu also solicited from Ms Mogaladi. That is the reason I'm saying, I’m going to find out from Ms Mogaladi in respect of what it's about.

Chairperson: Let us then proceed.

Mr Nyathela: Can I say something?

Chairperson: Yes.

Mr Nyathela: So I was just giving some background, as an example, and you, as the Committee, can request that transcript. That transcript is of the matter that involved SARA against CATHSSETA, and the Department of Higher Education and Training. What happened is that when they issued their closing report, we challenged that, and then we were provided with the Rule 53 documents, and then we went through the transcript. So that is why I was specific that if the Committee can get a copy of the transcript of the meeting that was held between Ms Mogaladi and the former chairperson of the SETA, and you will read that, and then that will also substantiate our complaint regarding the actions of Ms Mogaladi.

Adv Mpofu: Can I just comment on this as well, although I am not fighting with Adv Bawa? I think the witness maybe has said what I was alluding to. Of course, as he was saying, there is a gap in the evidence because I do not have the transcript, neither does she, and more importantly, neither do the Members. But the point I wanted to make is exactly that. All of us, the evidence leaders and ourselves, must make whatever effort is necessary to mine that information, wherever it is, and make sure that it is presented to the Members of the Committee. But I understand now. I thought that maybe Ms Bawa was saying we should not put the question but she seems to be commenting on the gap that we all have noticed and I accept that. I will liaise with the evidence leaders to make sure that the Members have access to the documents. They probably have a better chance with the Public Protectors Office than we have to get that information. If you can give me an indulgence of half an hour after lunch, then we can take lunch now and then I'll use that time to squeeze in the rest of my questions. But at the same time, just allow me to ask one question to round off this topic.

Chairperson: Go ahead.

Adv Mpofu: Thank you so much. Right. Okay. We got sidetracked, and correctly so, by this issue of finding that transcript. And you were saying this transcript relates to a meeting between Ms Mogaladi and the chair of the CATHSSETA. Who was the chair of the SETA?

Mr Nyathela: The chair of the CATHSSETA was Adv Brenda Madumise.

Adv Mpofu: Adv Brenda Madumise. I know her. If we cannot get it, maybe she recorded the meeting. But just to round off the issue of this closing report. I just want to ask you, and again we will deal with this when we come back. In fairness, because we have to be fair to people who are not here, Adv Gcaleka did the closing report and she may or may not testify here. We have written her a letter and she might have a different view. But I wanted to put something to you, which emanates from the report. And I am putting it also because my colleagues got this document late. So I will put it even though it might be a point against you so to speak.
On 6.1.23 of the report, it says that the reason this report was issued without your participation is that you did not comply with the deadline for the response. And I just want you to enlighten the Committee about that matter before we break for lunch, and I will read it out. 6.1.23 says: "A formal request for an extension was escalated to the Acting Public Protector on 21 September 2022 who granted the extension until 28th September 2022 as requested. A further request for an extension to respond on 29 September 2022 was received from the complainant - that would be you, SARA - on 28 September 2022, which the Acting Public Protector granted. By the close of business on 29 September, the complainant had not responded to the Rule 4211 notice.” We now know that this was written on the 30th of September, the day after you were supposed to give the response. And so did you or did you not give the response?

Mr Nyathela: We requested an extension and then we were supposed to provide the response on the 28th. Unfortunately, we had some load shedding and technical glitches, so we immediately sent an email to request that we submit it the following day. Even that email had to be sent from my phone and we did submit it on the 29th, around three or six minutes past four.

Adv Mpofu: Right. OK. The information in this report says by close of business and I am assuming close of business is five o’clock or whatever. We will find out that it had been received. But it may not have been received because you cannot talk for the recipient, but, from your side, you had sent it?

Mr Nyathela: Yes, yes.

Adv Mpofu: Okay. And in any event, let us assume the close of business is two o'clock and it was an hour late and so on. Do you think there is anything that would compel a report to be closed simply because your response was received an hour or so late? Was there anything magical about the 30th of September that the report had to be closed on that date?

Mr Nyathela: I do not think so. We should have been given an opportunity because there is a paper trail that we requested an extension. And the other thing is that I thought that we were being dealt with as if we were a big organisation with some serious financial muscle that can hire lawyers and all that expertise to get things as quickly as possible. That is why we requested the extension. And then it was acknowledged that we were given the extensionto submit it on the 29th. And then the only difference was that we submitted it around three minutes, six minutes past four.

Chairperson: It is possible now to take a lunch break.

Adv Mpofu: Thank you and we will round up a few issues when you come back.

The Chairperson: Colleagues, we will now resume and, as indicated, I will give Adv Mpofu 30 minutes to conclude the leading of evidence.

Adv Mpofu: Thank you so much. If possible, I will not use it all.

The Chairperson: Before you proceed, that cable is going to be a problem. I do not want to see people falling here. Thank you. Over to you.

Adv Mpofu: I just wanted to round off. Remember, before we broke, we were having a discussion about advocating your complaints about closing that report without speaking to you.

Mr Nyathela: Yes.

Adv Mpofu: Now, given your specific experiences with the previous intervention of Adv Mkhwebane when something like this was about to happen previously, do you believe that if she were there in the office now, this closing report would have been issued in this manner that you are unhappy about?

Mr Nyathela: Not in this manner. We would have been given an opportunity. As I said, we submitted it around three minutes, six minutes past four. And then our response was not even incorporated in that closing report.

Adv Mpofu: Yes. Well, the public processor will confirm this when she gives evidence, but I managed to establish over the lunch break that the official closing time of the Public Protector’s Office is half past four. The Public Protector did not know because she does not have such a thing as business hours. She just works, so we had to establish from the office. So, in any event, if that is correct, and we will verify it, then it would mean that in any event, your response was still filed in time. Correct?

Mr Nyathela: Yes.

Adv Mpofu: Now, I am rounding off on some of the topics that we have covered. It is your opportunity to brag about the international connections that you have you say you have forged with your own bare hands. Am I correct that some of the people that you interact with in the space of sound technology internationally even include the people who do shows for Beyonce? The Chairperson does not know who that is, but I think other people will know.

Mr Nyathela: Yes, a lot of the people that we interact with include top production managers of well-known artists, including Beyonce, Linkin Park, Rolling Stones, you name them. Not only that, but I am also sometimes invited to speak at top industry conference conferences, like your International Production Conference, which is held annually in London, including the Pro Light and Sound Trade Fair, which is held in Frankfurt in Germany. We also get invitations from as far as the US, China, and Australia. I have been all around the world, invited by leading industry players, and equipment manufacturing companies have paid for my travel and accommodation. As I have said, SARA's work is respected all over the world. It is just unfortunate that the treatment we have been receiving here at home is so bad, and especially coming from our own people. It is so sad.

Adv Mpofu: Thank you, and has your model been copied, for lack of a better word, by other people who were learning from what you had started?

Mr Nyathela: Absolutely! You can see it around the world. We are regarded as one of the leading organisations, especially when it comes to training in live events, technical and production. There was no such training around the world, specifically, around live events and technical production: there had been training around sound engineering and all of that, but not the bigger, broader picture. People could only see it through a narrow lens of sound engineering, while it is broad and then there are enormous opportunities for our young people. As I have described before, those skills cut across, even here in Parliament these skills are being utilised with audio-visual equipment. In short, behind every piece of new technology, there has to be someone to make it work. That is why even in developed countries, like the UK, it was not long before they set up backstage academies. They realised that without technical and production skills, there is no way that the industry could grow its performance, events, venues or conference centres. These skills are now needed in churches and anywhere there is sound equipment or audio-visual equipment, people are needed to operate and maintain it. For instance, you can take guys from rural areas, train them, give them skills and then support them give them a budget to get two or four speakers and they will be able to serve their communities with imbizos, weddings and all of that and be able to put bread on the table. That is why I said these skills do not only make you a job seeker, you can create your own employment and also create employment for others.

Adv Mpofu: Thank you for that. Before we go back to the issue of the building, with these achievements that you have had you told us about and some of your graduates operating on cruise ships and in all sorts of places, can you tell us about those who represent SARA throughout the world? In other words, those who did not even come back from the exchange programmes that you organised.

Mr Nyathela: There are a couple of them based in the States. There is one person all the way from Limpopo, Thabo Makgatho, who is doing great work. Also, when you look at the credits of the famous movie called “Fast and Furious "you will find that name, Thabo Makgatho. He is based in Atlanta and is doing great. And a number of them, including the recent one from Soshanguve who is now based in Maryland in the USA and doing great.

Adv Mpofu: Right. FN10. When you say so you are referring to Siso Sithole. I will read out his message to you: “Greetings, Mr Nyathela. I am Siso Sithole from Soshanguve currently residing in Maryland, USA. I joined SARA at the end of 2012 and have been a member of the association ever since. I was part of the crew of three that represented SARA in the USA at the Universal Circus for skills enhancement and development in 2017. I currently work at Washington Metropolitan Area Transport Authority since October 2021 in mechanical communications. We service audio surveillance cameras, emergency call centres, elevators and platforms information and display systems and access controls and filing systems on the rail network. Every day is a learning experience. I want to thank SARA for the knowledge and opportunities created for me to advance myself in life. Words cannot express my gratitude. Through SARA, I have established international and domestic relationships and networks. Thank you, Mr Nyathela, for believing in me and for the life lessons that you keep passing on. You are an inspiration to me and others.” I should assume that this is the kind of message that you get now and again and, from what you have described, that is all you want to achieve.

Mr Nyathela: Absolutely. This is what keeps me going. This is what makes me sleep good at night. It humbles me, and it gives me more courage and more energy to keep on doing this work.

Adv Mpofu: And about the premises that you say would not have been there were it not for the Public Protector, can you describe for those who have not been there, what kind of set-up you have? Having that building renovated and brought to the state that it is in now, through the intervention of the Public Protector, how will it help the young people of South Africa?

Mr Nyathela: It will help, let alone in terms of the health and safety environment, but it has managed to create more space, more classrooms, more training spaces, space for the admin section and it has made things better for young people.

Adv Mpofu: Right, and what type of equipment have you got there?

Mr Nyathela: We've got LED screens, digital sound systems, a PA system, record mechanisms, microphones, trussing and staging equipment, power equipment etc.

Adv Mpofu: Let us go to some of the better pictures than those that you showed us earlier. Page 178 to 184, just before FN10. You earlier said that you saw a lot of hypocrisy around this process that we are involved in here. Can you explain what you mean by that?

Mr Nyathela: What I mean about that is that the same Parliament, the same presidency and all the relevant people who have failed us, especially the young people, are now working on impeaching a person who has played a very crucial and important part in unlocking the desired support for our young people. She made sure that this, the only training organisation of its kind on the continent, receives support for the interest of our young people, whilst all these bodies that I've mentioned, Parliament, the presidency, you name them, they have failed us, meaning they've failed our young people. That is why our young people are in this mess. They are protecting each other at the expense of the African child, and those not yet born. And the results are there for everyone to see. You can see our young people, some of them sleeping while standing, some of them being ravaged by nyaope (drugs), but nothing is done, even in this august House to make laws that will protect our young people. Nothing has been done. And then there is the Public Protector who changed the game, not only for the current young people who are training, but even for those not yet born, because now the doors of learning and culture, which is in the Freedom Charter, and which we have been trying to open because those doors were blocked from left, right and centre, not only by the Department of Art and Culture but also by the SETA and the Department of Higher Education and Training. That is why we had to even complain about the DHET.
By now, we should be having satellites in all the provinces; by now the country should have a purpose-built backstage training centre, even servicing the SADC region, let alone the sub-Saharan region. We would be bringing in foreign currency which is of national importance. It is not about Freddy Nyathela. We are just laying that ground for our future generations, but the problem has been “Who is this Nyathela? Who does he think he is to produce this?” That is the attitude. That is why it pains me when I am overseas and I am asked about it. They say, “But, Freddy, it is your people who are in charge now! It is your own people. Can’t they see this?” and that gets me. My own people are turning a blind eye and personalising this, making it a Freddy Nyathela story.
In everything, even political parties, somebody has to start and bring in other people and then build the organisation. As is stated in that letter from the South African Qualification Authorities, especially the first paragraph of that letter. SAQA knows that if it were not for this organisation, SARA, the qualification that exists now for NQL Level 4 Live Event Technical Production, would never have existed. And then we ask for support so that we can upgrade the qualification in this field in South Africa from NQF Level 4 to even take it to PhD level. That is the level where it is being run in the UK and the EU. This kind of training is just blocked and choked here.

Adv Mpofu: I am sorry to stop you but because you are speaking loudly, we will have another point of privilege, correctly labelled as a point of privilege. I want to play two clips, Chairperson. The first one is 1.1.14. And that with the microphone sound engineer for Beyonce: “Freddie, this is amazing. This is like such a turn of events. Like, wow, man, congrats, brother. You did it. You fucking fought all these systems, all these heartless people and your love and your heart trial. And that is exactly what I thought would happen. Amazing, amazing. I love you, friend.”

Adv Mpofu: Thank you. What was this amazing achievement?

Mr Nyathela: This was especially about the renovation of the building. Because he knows what the state of the building was before it was renovated because he has been here a couple of times. The first time he came to South Africa, he came with Mary J. Blige. Maybe in 2012 when we connected and the last time he was here was in 2019 because SARA initiated Africa's first live, Live Events, Technical and Production Conference that started in 2015 and we hosted international speakers from America, Australia, Germany, UK and African countries, including Nigeria, Kenya and Ghana.

Adv Mpofu: Thank you. And then finally, the building that you are referring to. No 31.1.15. Just for the Members to get a taste of what it looks like now. We have seen all the horrible pictures, so I think that it is better to end on a positive note. Can you confirm that SARA owns that building?

Mr Nyathela: Yes, it is fully owned by SARA. It was registered in SARA's name, not Nyathela’s name. It is a legacy for our young people and grandchildren. It is a place where they can go and learn these technical and production skills in a safe and secure environment.

Adv Mpofu: And would any of that which we have just seen, have been possible without the intervention of Adv Mkhwebane?

Mr Nyathela: No, that is why I have said that if it were not for the Public Protector, this would never have happened.

The Chairperson: And that concludes the leading of evidence. I will now turn to Adv Bawa to start the cross-examination.

Adv Mpofu: Chairperson, maybe that was a slip of the tongue. Evidence leaders are not entitled to cross-examine.

Chairperson: That is fine. Thank you

Adv Mpofu: I do not know when you say thank you whether you agree with me or not.

The Chairperson: Your correction is noted.

Adv Bawa: Good afternoon, Mr Nyathela.

Mr Nyathela: Good afternoon, Adv.

Adv Bawa: Do you by any chance have a copy of the motion that has been brought before the Committee?

Mr Nyathela: Motion that?

Adv Bawa: The motion that has been brought to the National Assembly and which is before this Committee. Do you know what I am referring to?

Mr Nyathela: No, the motion that is brought…

Adv Bawa: That is before this Committee. That is okay. Can I maybe hand it up and you can see if you have seen it?

Mr Nyathela: I have not seen it.

Adv Bawa: I may take you through a few parts of it. As I understand it - and I must thank you for making yourself available to the Committee today. I always find that with this job, one learns new things all the time and the story of your life as a roadie was extremely interesting. I thank you for sharing that with us. As I understand your evidence is what is contained in your statement and what you have told the Committee today.

Mr Nyathela: Yes.

Adv Bawa: And so, I am going to ask you a few questions on this motion that is before this Committee, and then we are going to go to your statement. Okay.

The Chairperson: Yes, just pause. Just so that you are comfortable and consistent, Mr Nyathela. She is Adv Bawa, Senior Counsel. So, you can say SC, or you can refer to me as the Chairperson and speak through the Chair. So, you are all good then? All right, thank you.

Adv Bawa: I do not mind if you want to refer to me as SC in the same way you did to Adv Mpofu if it is more comfortable.

Mr Nyathela: No, it is comfortable.

Adv Bawa: And maybe I must explain to you, my colleague, Adv Mayosi, and I are practicing advocates and we have been appointed to put evidence before the Committee of Parliament before which you appear today. And we have to put evidence before this Committee, which is both related to me just in general terms related to the motion. And that is the motion that I have provided you with. And that is a subject matter which we have engaged for the purposes of preparing for this inquiry. And so, I just want to raise and check with you where your evidence would fit into the motion so that we can locate it so that the Members of the Committee understand. Now, in more general terms, are you familiar with any other cases that the Public Protector has been involved in?

Mr Nyathela: Not really but through reading the newspapers and all of that.

Adv Bawa: But you do not have any personal involvement, or knowledge, sorry.

Mr Nyathela: Not personal.

Adv Bawa: So, if we were to go a lot quicker. This is Annexure A. On top of the document, it is headed “Charge,” but it is not a charge in the context of a criminal charge - I did not select the language. So, the first charge relates to the South African Reserve Bank matter. And do you have any knowledge of the South African Reserve Bank matter?

Mr Nyathela: Yes, I have read about it in the newspapers.

Adv Bawa: Any personal knowledge of the South African Reserve Bank matter? No?

Mr Nyathela: No. As I have said, I am not in the space of those issues of reserve banks and all of that. And my being here was to present our experience with the work of the Public Protector, Adv Mkhwebane, and what she did for us and our people. So, in terms of these other issues of the Reserve Bank, and all of that, as I have said, I do not know those other issues. My being here was to put our side of the story, our experience with the Office of the Public Protector, and what work Adv Mkhwebane did for us and our young people.

Adv Bawa: Now, I understand that Mr Nyathela but just for purposes of the record, and let us be clear, let me take you through a few of the charges, because it may well be that it does fit in at one level on one of the charges. And I want to be sure that you understand and that we can fit it into it because one of the charges relates to competence and so I want to check with you whether that fits in there. If you just give me a few minutes to run it through it because I do understand. The second charge which deals with misconduct relates to the Vrede Dairy and you do not have any personal knowledge in respect of that matter?

Mr Nyathela: Like I have said already, only through the newspapers and TV and all of that.

Adv Bawa: Now, the third charge is the one I want to refer you to specifically. The heading is incompetence. Right? And that paragraph seven, sorry, it is page five. The first sentence reads: ”Adv Mkhwebane is guilty of incompetence in that she has a demonstrated and sustained lack of knowledge to carry out and ability or scale to perform her duties effectively and efficiently. And you would, if I understood your evidence, dispute that based on your own experience.

Mr Nyathela: based on our own experience, and what really transpired after going through 11 years of no intervention, no assistance, and then she comes in October 2016 and then within six months what took that office 11 years, and without any fear or favour or prejudice. So, I definitely dispute that. It might be different for other people, but from our experience as people on the ground and what we were subjected to, I will dispute that.

Adv Bawa: But if they are complaining about incompetence, and I am going to try and simplify the language and advocate Mpofu can interrupt me if I am misrepresenting this. If the complaint on this document relates to the initial matter of the ABSA CIEX report and the Vrede Dairy report, you would not be able to comment in respect of that.

Mr Nyathela: Absolutely not.

Adv Bawa: So then, that takes us through paragraph seven, then in paragraph eight, they refer to 8.1, the evidence in support of charges one to two, which we have already covered. 8.2: The Public Protectors Report No 46 of 2018 and 2019. You would not have knowledge of that report?

Mr Nyathela: No.

Adv Bawa: The notice of motion and the affidavits in the Financial Sector Conduct Authority. I have to get an answer from you. I do think I shake my head but for the transcriber, we must just articulate the answer.

Mr Nyathela: No, I do not. Sorry about that.

Adv Bawa: No, no, no need to apologise. 8.3: the notice of motion and affidavits in the FSCA case. You would not have personal knowledge in respect of that?

Mr Nyathela: No.

Adv Bawa: Now we come to charge 4.

Mr Nyathela: Where is that?

Adv Bawa: Page nine, paragraph 10. Okay. It says: Adv Mkhwebane is guilty of misconduct in that Adv Mkhwebane has intimidated, harassed and victimized staff. You would not have any knowledge or let me ask you: Do you have any knowledge of any intimidation, harassment and victimization of staff?

Mr Nyathela: No.

Adv Bawa: There's a second component to that: “that she had failed to protect staff in the Office of the Public Protector from intimidation, harassment and victimization, by the erstwhile CEO of the Office of the Public Protector, Mr Vussy Mahlangu. Do you have any knowledge of Mr Mahlangu?

Mr Nyathela: No.

Adv Bawa: And then there is a list of items but if you do not have any personal knowledge of Mr Mahlangu, we can continue from there. And then paragraph 11. The complaint is that Adv Mkhwebane has committed misconduct by and demonstrated incompetence in the performance of her duties by. .. and if we turn to page, 11.1: failing intentionally or in a grossly negligent manner to manage the internal capacity and resources of management staff, investigators and outreach officers in the Office of the Public Protector effectively and efficiently. Do you have any personal knowledge of that?

Mr Nyathela: No.

Adv Bawa: Paragraph 11.2: failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and /or unauthorized public expenditure and legal costs.

Mr Nyathela: No knowledge of that.

Adv Bawa: Failing intentionally or in a grossly negligent manner to conduct investigations and/ or make decisions in a manner that ensures the independent and impartial conduct of investigations or investigators. Any knowledge of that?

Mr Nyathela: From our side, we never experienced that. I do not know about that.

Adv Bawa: And/ or by deliberately seeking to avoid making findings against, or directing remedial action in respect of, certain public officials, while deliberately seeking to reach conclusions of unlawful conduct and impose far-reaching disciplinary measures and remedial action in respect of other officials, even where such conclusions and measures and/or remedial action, manifestly had no basis in law or fact.

Mr Nyathela: Do not know about that.

Adv Bawa: And then there is certain evidence in paragraph 12 which refers to certain court cases. Do you have any personal knowledge of those? Let me take you through it. The first relates to the evidence in support of charges one, two, and three, which we have already covered. The affidavit of Mr Sphelo Samuel. Have you had any dealings with Mr Sphelo Samuel?

Mr Nyathela: No.

Adv Bawa: The Notice of Motion and Affidavits in the matter of Louisa Basani Baloyi v Public Protector. Do you have any knowledge of that case?

Mr Nyathela: I do not have any knowledge about that case, but I know I have met Ms Baloyi.

Adv Bawa: The court papers in the matter of the President of the Republic of South Africa versus the Public Protector?

Mr Nyathela: No.

Adv Bawa: And then the court papers in the Public Protector versus Gordhan and the Economic Freedom Fighters versus Gordhan?

Mr Nyathela: I have read about that and also seen it on TV.

Adv Bawa: You are right about that. The country has been regaled by that at different times. Thank you, Mister Nyathela, I want to just clarify a few things from your affidavit while we are at it. If we go to your affidavit and we go to …

Adv Mpofu: Chairperson, I did not want to interrupt my learned friend, but I just wanted to check if it is an oversight or whether she is going through the narrow wide scope of charges because she does not mention CR17, the Bosasa matter and all the other charges.

Adv Bawa: Adv Mpofu, you are entirely correct because I only printed the first 11 pages. If we could just print out …

Adv Mpofu: Maybe we agree that we go not on the Mazzone motion but the independent panel.

Adv Bawa: Let us go for the complete list. Put up the motion again and go to page …

Chairperson: A pause please, Adv Bawa, for Ms Maotwe.

Ms O Maotwe (EFF): Yes, thank you, Chair. I just wanted to register my apology. I need to go to the House as we have business in the House but I do not want to be accused of walking out or anything like that to disrespect this Committee. So please excuse us for the remainder of the day. We are going to the House sitting.

Chairperson: Yes, it would certainly be possible to be seen to be walking out as you are going to walk out now. Thank you, Adv Bawa.

Adv Bawa: Sorry, Mr Nyathela, I did not print it, I looked at it. If we go down in this letter, go down to paragraph 5.1. We will see that …

The Chairperson: This up and down - I have addressed that before, and I am hoping that it is not going to continue. The witness is being disturbed.

Adv Bawa: We've already covered, Mr Nyathela, that you did not have any knowledge of the matter of the CIEX report. Sorry, sometimes I have a problem with names and I lose them in my head. So, you do not have any personal knowledge of the CIEX matter and you do not have any personal knowledge of the Vrede Dairy matter. If we go to paragraph five of this letter, we see that there is further reference to the judgment of the President of South Africa versus the Public Protector, which is commonly referred to as the CR17 matter. Do you have any personal knowledge of that matter?

Mr Nyathela: I have read about it and saw it on television.

Adv Bawa: In paragraph 5.2, we have the judgment order of the High Court in the matter of the Commissioner of the South African Revenue Service versus the Public Protector. Do you have any knowledge of that?

Mr Nyathela: Read about it.

Adv Bawa: Okay. Paragraphs four and five, 5.4 and 5.5, is about the judgment and order of the Supreme Court of Appeal in the Government Employees Medical Scheme versus the Public Protector. Do you have any personal knowledge of the judgment and order of the Supreme Court of Appeal in the Government Employees Medical Scheme and other versus the Public Protector judgment by the Supreme Court of Appeal?

Mr Nyathela: Read about it.

Adv Bawa: And then if you look at 5.6, I think it is the next judgment and the evidence in the Financial Sector matter. Let us go down what we have done with the Louise Baloyi matter. We have dealt with the Gordhan matter. Thank you. Adv Mpofu, have I dealt with them all?

Adv Mpofu: Yes, we are going to ask Ms Mazzone when she comes.

Adv Bawa: So, if I turn to your affidavit, we could go to Annexure FN2, which is on page 24. And I understand most of what was talked about and it is going to come up now. Most of what you talked about were the difficulties you encountered was the Department of Arts and Culture or the National Arts Council.

Mr Nyathela: National Department of Sports, Arts and Culture and the National Arts Council, its entity.

Adv Bawa: So, the first complaint that you lodged at the Public Protectors Office, is the report that is FN6 of your affidavit, correct?

Mr Nyathela: Yes in 2006.

Adv Bawa: And this is the complaint where you had sought money to take children on a trip to Atlanta. You had lodged the application for funding and maybe I must take you to paragraph 26 of the executive summary. Right. Page 26. Sorry, I am out of practice. I am thinking Adv Mpofu is going to have to be doing this. Right. It is alleged that SARA had lodged an application for funding. An official of the DAC assured the complainant telephonically that his application would be successful, but he subsequently received a letter from the DAC informing him that his application for funding was unsuccessful. The complainant alleged further that SARA confirmed the travelling arrangements on the basis of verbal promises and guarantees by the official and requested compensation for the expenses incurred. They denied giving any assurances to fund the trip. Is that it, in a nutshell?

Mr Nyathela: It is the complaint. But there was some communication that was excluded from that report because it only states that it was telephonically only. But there was a letter that came from that Department asking us whether the project was continuing and all of that. And that letter, also, was omitted in this report. That is where we had an issue with Ms Mogaladi because this letter was deliberately omitted. And the other thing also, that was omitted, was the communication between the Department and the travel agent. That was also excluded in this report.

Adv Bawa: So, what this report says is that there was a mediation that the Public Protector facilitates, right?

Mr Nyathela: Yes.

Adv Bawa: Right. And in that mediation that then gets facilitated, if one goes on in the report to paragraph five on page eight of the report. That is record 31. You covered a lot of the detail in direct, so I just want to take you to certain parts of the report. If we see at 5.31. It deals with compensation to SARA by DAC for the Atlanta trip on January 25. I am trying to point out to you these are the issues that were the subject matter of the mediation.

Mr Nyathela: Yes, just a factor, but that was it.

Adv Bawa: And then the second item, which is on the next page, page 32, is the lack of acknowledgement and responses by DAC to the correspondence received from SARA.

Mr Nyathela: Yes.

Adv Bawa: And they acknowledged that that was a problem.

Mr Nyathela: Yes.

Adv Bawa: Right. Then on the next page, page 33, there was assistance to SARA by the DAC to strengthen international relations. That was a request that you had made. And funding by DAC for international trips to US affiliates in 5.3.4. And then 5.5 funding for operational and administrative costs.

Mr Nyathela: Right.

Adv Bawa: And those were the three issues that form the subject of the mediation. Then at 5.3.6 on the three items listed in paragraphs 5.3.3 to 5.3.5, it was agreed that the DAC would facilitate a meeting between itself and SARA to discuss and reach an agreement on how they would deal with these issues.

Mr Nyathela: Correct.

Adv Bawa: Then on the next page is the issue of the request for assistance to renovate the SARA House. That was the house that you had bought for R1 million.

Mr Nyathela: Yes.

Adv Bawa: And those were the pictures we saw of it renovated R27 million later.

Mr Nyathela: Yes. Yes.

Adv Bawa: Okay. Fine. And then, here is the detail that you had made an application for funding to DAC for assistance to renovate the house, and they had indicated that they did not have a budget to assist SARA with funding, infrastructure and renovation to the premises, but would facilitate this request through an appropriate funding agency.

Mr Nyathela: Yes. Right.

Adv Bawa: Correct. And then it was agreed at the meeting that the involvement of the Public Protector was concluded. And the Public Protector would issue a report incorporating the decisions taken at the meeting.
Mr Nyathela: Yes, that is correct.

Adv Bawa: Then, if we go to your next document, FN3 and we go to page 37, 1. 3.5. FN3 was a settlement agreement you concluded on the first of April 2014. Correct?

Mr Nyathela: What was that?

Adv Bawa: If we go back to page 35. This is a settlement agreement that you concluded with DAC on 1 April 2014.

Mr Nyathela: Yes.

Adv Bawa: Now let us go to page 37. It followed a previous Settlement Agreement, 1.3.5. It talks about the previous Settlement Agreement, which is an agreement signed on 17 February 2012 between the Department and SARA and PPSA, a mediation Settlement Agreement pursuant to section 4D of the Act, which was facilitated by the PPSA.

Mr Nyathela: Yes.

Adv Bawa: So, you had an agreement in 2012. As I understand it, the Department needed to meet all the conditions.

Mr Nyathela: The DAC did not implement all that was agreed upon.

Adv Bawa: So, then you went back to the Public Protectors Office and they then facilitated the second agreement, which is the April agreement of 2014 and the terms of this previous settlement agreement were on page 40. 2.2 talks about what the previous Settlement Agreement involved. 2.2 says that in the previous Settlement Agreement, the following was included: Items R850 000 - that you had to submit the proposal for funding for the renovations; that you would submit the report and audited financial statements. Does this ring a bell, Mr Nyathela?

Mr Nyathela: Yes.

Adv Bawa: Right if we go down, it sets out all the conditions of the agreements and then you go to 2.23 and it says as a result of the PPSA’s response to the complaint submitted by SARA to the PPSA, DAC and SARA subsequently exchanged communications during the period from November 2012 through to July 2013. At which time the parties met at the office of the PPSA under the chairpersonship of the DPP and reviewed the matters arising in respect of the complaint lodged by SARA. In respect of the previous Settlement Agreement, the meeting was recorded. Did you recall having that meeting?

Mr Nyathela: Yes.

Adv Bawa: From that, as I understand it, this new agreement came about ]and then we look at what was recorded in the new agreement. And if we go to page 43, we see that in paragraph 3, the objectives of the agreement were to put the complaint lodged by SARA to rest and amicably resolve all issues related to it. “Implemented DAC commitments to SARA made variously” was the first objective. Correct?

Mr Nyathela: Yes.

Adv Bawa: For the DPP to have oversight in respect of monitoring the progress of the objectives and outcomes of the agreement and to put in place an appropriate monitoring mechanism. Correct?

Mr Nyathela: Correct.

Adv Bawa: Then, the DAC operating principles should be in accordance with the Batho Pele principles and that five, they commit to SARA’s proposals within 30 days of receipt. And then on the next page comes the agreement.

Mr Nyathela: Yes.

Adv Bawa: Right. And it contemplates that you will submit a request for funding for projects in the form of a proposal document.

Mr Nyathela: Yes

Adv Bawa: … which DAC would then consider. And in the next paragraph, they would agree to keep with the existing agreement that the Industrial Development Trust would facilitate the process of evaluating the needs of SARA concerning structural renovations of SARA House.

Mr Nyathela: Yes.

Adv Bawa: And then in 4.13, consistent with clause 4.19, immediately consider intervening to remedy the health and safety and security risks uncovered at the SARA House.

Mr Nyathela: Yes.

Adv Bawa: Right. Now that was what they had agreed to do in 2012 in the initial agreement, correct?

Mr Nyathela: Correct.

Adv Bawa: And that is what amounted to R15 million. Would that be correct?

Mr Nyathela: Yes.

Adv Bawa: Anyway, DAC had agreed to do that in 2014, but not complied with that agreement at that stage. Correct?

Mr Nyathela: Agreed. Agreed, yes.

Adv Bawa: I am just making sure I understand this because I want to make sure that the Committee understands the flow.

Mr Nyathela: Okay. Okay.
Adv Bawa: That is why I am putting it to you like this. To do that. Okay?

Mr Nyathela: All right.

Adv Bawa: So, if we go to 4.19: ”The DAC shall submit to the PPSA digitally a project implementation plan in regard to the intervention of the IDT and other bodies and its proposals regarding assisting with the removal of the health safety, security risks uncovered at SARA House by close of business on Tuesday 15th April”. Okay, so that is the agreement, as you see below, which is signed by yourself, the then DG of DAC, and the Deputy Public Protector, Mr Malunga. Right?

Mr Nyathela: Yes.

Adv Bawa: So, we have had the 2012 agreement, the 2014 agreement, and now we come to the next one. You then lodged a complaint in 2014. I am trying to do this chronologically so that we can just see where it goes. You lodged a complaint in 2014 against the Department of Sports, Arts, Culture and Recreation for allegations of non-assistance by the MEC or no response on a dispute that the complainant had with the Department.

Mr Nyathela: Which one?

Adv Bawa: On 3 April 2014. Did you lodge a complaint about DAC again, in respect of non-compliance?

Mr Nyathela: Yes.

Adv Bawa: That was shortly after the previous agreement was concluded in April 2014.

Mr Nyathela: Yes, we lodged a complaint about the Department.

Adv Bawa: And the MEC for not assisting.

Mr Nyathela: The MEC? Which one are you referring to?

Adv Bawa: Provincial Arts, Culture and Sport.

Mr Nyathela: Where is that?

Adv Bawa: Not linked to the earlier one. It was a separate complaint? Do not recall it?

Mr Nyathela: I do not recall it.

Adv Bawa: Let me move on to May 2016.

Mr Nyathela: No, that one you were referring to was the provincial government. No, it was a separate one. But on that one, it was on the Office of the Public Protector Gauteng office. No, I remember that. It was on a different matter. We were vindicated also on that one.

Adv Bawa: And that was lodged before Adv Mkhwebane came into office.

Mr Nyathela: Yes, if I remember correctly, yes.

Adv Bawa: Then you lodged a complaint in May 2016, before Adv Mkhwebane came into office. When Adv Mkhwebane then came into office, she issued a closing report. Do you recall?

Mr Nyathela: Which one?

Adv Bawa: She issued the closing report that you then took on the review.

Mr Nyathela: It was CATHSSETA and the Department of Higher Education and Training. That is correct. Yes.

Adv Bawa: So, you took that report on review?

Mr Nyathela: Yes, we did.

Adv Bawa: Adv Mkhwebane issued a closing report and it went to court. And that was then set aside, the report.

Mr Nyathela: Yes because the Office of the Public Protector withdrew the matter with the costs.

Adv Bawa: We then come to number six now, if I counted correctly. It is the report that is issued in 2017, which is attached to your affidavit on page 47. This is the one in which you said Mr Dlamini was the investigator.

Mr Nyathela: Oh, yes. Regarding the Department of Sports, Arts and Culture.

Adv Bawa: This one went to court and the opposition. The application was then withdrawn. And the report stood.

Mr Nyathela: Yes, the one that was finally made an order of the court.

Adv Bawa: That is correct. Let me take you to FN4 page 49. Right. And we go to (iv). It says: On an analysis of the complaint the following issues were identified and investigated.” Do you see that?

Mr Nyathela: Yes.

Adv Bawa: Tell me if I go too fast. We sometimes do not appreciate it when we are asking questions and go fast. These are the issues: 1. Whether the Department improperly failed or unduly delayed in implementing the settlement agreement that had been signed before.

Mr Nyathela: Yes. That was the first issue.

Adv Bawa: The second issue was: whether the Department improperly failed to fund or render financial assistance to SARA on the following issues, and then they list a few issues. One is to strengthen international relations; another is to fund operational administrative costs. And then the third one is funding operational and administrative costs in respect of three orchestras and discriminated against SARA. That was not included in your previous complaints. Correct? The issue of the orchestras.

Mr Nyathela: No, the issue of the orchestras came because the Department was saying it does not fund operations and administration costs. And then we brought the evidence that the Department was saying that it did not fund operations and administrative costs but we showed that were orchestras that were being supported. That was why those orchestras were mentioned and put there.

The Chairperson: Mr Nyathela, please do not kiss the microphone like yesterday. I would like you to continue as you have been doing today.

Mr Nyathela: So yes, these orchestras are being funded for operations and I mean, that is why those orchestras were mentioned and put in that report. When Mr Dlamini made his investigation, he found out that it is true what SARA had submitted that the three orchestras had been given funding for operations and admin.

Adv Bawa: So, this was the first time it came before the Public Protector - the issue of the orchestra specifically. So then, if we go on to D, the fourth complaint was whether the Department improperly failed to acknowledge receipt and respond to correspondence from SARA. I think in that one, the Public Protector found that the Department had, in fact, been corresponding and responding to your correspondence.

Mr Nyathela: Yes, but when you check the report of 2006, the Department acknowledged that they were not responding to our communication. They were like ignoring our communication. It was later, now it had reached the stage that they were trying to be seen to be responding to our communication.

Adv Bawa: So, by the time you had lodged your fourth complaint with the Public Protector and this one got investigated, they concluded that - it is at 6.3.2 on page 88 - they were more responsive than they had previously been.

Mr Nyathela: Yes. Yes.

Mr Nyathela: Right. Then, the fourth item, was whether the Department had improperly failed to acknowledge receipt and respond to correspondence from SARA. And then the fifth item was whether the complainant was prejudiced by the Department’s conduct towards SARA. So, in four out of the five issues, the Public Protector found in your favour?

Mr Nyathela: Yes.

Adv Bawa: Okay. And at the same time, you launched this complaint on the 23rd of January 2017. Do you recall that?

Mr Nyathela: Which complaint?

Adv Bawa: The one that Mr Dlamini investigated.

Mr Nyathela: Yes.

Adv Bawa: You launched it on the 23rd of January and you got your report on the 19th of June.

Mr Nyathela: Yes. In January, we wrote to the Public Protector informing her that the Department was failing to implement, but it was not like the main complaint. They were failing to implement the settlement agreement that was signed on 1 April 2014.

Adv Bawa: Okay, then, on the same day as you lodged this complaint, you also lodged the complaint in respect of the National Arts Council. Correct?

Mr Nyathela: Same year. Yes, yes. Correct. Yes.

Adv Bawa: So, there were two complaints. The one you got six months later and the other one you only got three years later.

Mr Nyathela: Three years later.

Adv Bawa: And that is the one you got on the 15th of June 2020.

Mr Nyathela: Yes.

Adv Bawa: Right. And that is the report which is attached as FN6 of page 95 of your affidavit. Now, this report was also challenged. Correct. They also put an application to have this report set aside.

Mr Nyathela: Set aside, yes, by the National Arts Council.

Adv Bawa: So, the National Arts Council sought to have it set aside and then withdrew the notice.

Mr Nyathela: Yes.

Adv Bawa: But the CEO - what is her name? Mangope?

Mr Nyathela: Yes.

Adv Bawa: She also brought a separate application to have it set aside.

Mr Nyathela: Yes.

Adv Bawa: Yes. And just for the Members’ information at the moment, if I take you to the summary of judgements and orders pending, this is a summary that the evidence leaders provided when we laid out the evidence of Mr Sithole, just so that you can contextualise it. Item 78 on page 70 - so Mr Sithole, Mr Nyathela, assisted us in providing a schedule of all the court cases in which the Public Protector is involved, and in December of 2021 – it is spelt incorrectly, I realise, as it is Mangope, not Mohali. She also brought an application to have this report set aside.

Mr Nyathela: Yes, she did.

Adv Bawa: And as I understand it, you filed answering papers in that matter,

Mr Nyathela: Yes, we did with the one that was filed by the National Arts Council.

Adv Bawa: The National Arts Council's was withdrawn, but this one has not yet been resolved. Is that correct?

Mr Nyathela: No, no, no. Ms Mangope has also withdrawn because she had no choice but to withdraw as we were putting them in a very, very tight corner. Because in their papers, they committed perjury. So, we made them aware that they were relying on this Expired Project and Surplus policy. What transpired is that policy, by that time when they made the application in SARA’s name without SARA's consent, did not exist. The policy only came into effect on 22 May 2015. And then this application was submitted to Exco on 9 March 2015. So, they were being dishonest. And then we put it in our papers, and then they saw that there was big trouble and she had to backtrack.

Adv Bawa: I am sorry, Mr Nyathela. I think the information we have been provided with might not be complete. Mr Sithole informed us that the Public Protector did not get involved in this litigation as they did not file an affidavit.

Mr Nyathela: The PPSA did nothing; it was us, SARA, which filed the papers.

Adv Bawa: So, then it does not matter. The matter does not exist anymore. All right, the next one is the one you referred to the Gauteng Provincial Office in respect of the irregular billing of the City of Johannesburg and that was resolved in your favour. And I think Mr Baloyi was the investigator.

Mr Nyathela: Yes.

Adv Bawa: You indicated to us that a closing report was filed by the Acting Public Protector concerning the allegations on the policy.

Mr Nyathela: On their policies. Yes.

Adv Bawa: That was one advocate Mpofu asked you about earlier.

Mr Nyathela: It is.

Adv Bawa: Now, as I understand it, prior to this closing report Adv Mkhwebane had addressed correspondence to you indicating her intention to issue a closing report. Do you recall that?

Mr Nyathela: Yes. I do.

Adv Bawa: And I just want to put that up on the screen. It is a discretionary notice on an investigation into allegations of the failure by the Office of the Auditor General to investigate the complaint. She sends you this notice and she tells you in paragraph one, she is in the process of finalising this investigation that you have brought and she is going to provide you with a report. She tells you that you lodged this complaint in September 2019 and the nature of the complaint is then set out. Correct?

Mr Nyathela: Yes.

Adv Bawa: If you disagree with me at any stage, say so. The investigation was carried out in terms of the Constitution and she then sets out the investigation process. She says in paragraph 7.1.3: “I am about to conclude my investigation and based on the information and evidence obtained during the course thereof, I am now in a position to make findings.” She then sets out what they are. Issues under dispute - she sets out what the Auditor-General's response had been. At the conclusion, she set out what information she had. And then she says: “Based on the above, it appears that, save for the allegations relating to the NAC abusing funds for the use of the Expired Projects and Surplus Policy to redeploy undeclared surplus funds, the further allegations raised by you differ from the allegations that you raised with AGSA. The AGSA denies that you raised the allegations with them. And then she says: Drawing from the response that we received from the AGSA, the issues, you raised with them were addressed and the AGSA also shared the audit outcomes with you. And she then says: “I am not convinced that your complaint is substantiated and you are requested to provide me with further evidence that you may have, should you disagree with those conclusions.” And you are then given ten working days within which to provide that information.

Mr Nyathela: Yes, yes, correct.

Adv Bawa: This notice that she sent you is confidential and this was sent to you on 1 January 2021. So, you lodged the complaint in September 2019. In January 2021, the Public Protector indicated to you that she was going to conclude, she was closing, and you had to provide her with further information.

Mr Nyathela: Yes.

Adv Bawa: And you then provided that further information she requested.

Mr Nyathela: I did respond to that discretionary notice and requested a meeting. And then the meeting was offered virtually and, unfortunately, the investigator was not present in that meeting. And from what we presented led to the Public Protector instructing that there must be further investigations.

Adv Bawa: And so, there was a further investigation. And that then resulted in the closing report that was now issued by the Acting Public Protector.

Mr Nyathela: All right. With this closing report, we were again not offered an opening. We were not interviewed. We were not asked for more information and we requested extra time to submit our response and then we submitted our response three minutes to six minutes past four and the following day before 10 o'clock we received the closing report. That means we wasted our time responding and all that and then I am sure that if Adv Mkhwebane was there, this thing would never have happened. She would have given us an opportunity to clarify our matter as she did before, but with this one, nothing of the sort has happened. And then here we are; we have been prejudiced by using time.

Adv Bawa: Mr Nyathela.

Chairperson: On that note - 15 minutes break, but one last question before we take the break.

Adv Bawa: Do you know if the Office of the Public Protector received your submission?

Mr Nyathela: They did receive it. I know because the email did not bounce back. And we have been dealing with that office for a long time. If they did not receive it, they would have informed us. And then the other thing, funnily enough with this complaint, or if you read our response to this discretionary letter, you will see why they could not respond because we laid down what was happening. We also state that they are closing up this report but it contradicts the report that was issued against the National Arts Council regarding the Expired Project and Surplus Policy. And the other thing in this matter of the Auditor General, it is a fact that the Auditor-General's Office gave the National Arts Council clean audits while that unlawful policy existed. That is why it was agreed in a meeting with the Standing Committee on the Auditor-General that was held here in Parliament in 2019 to wait for the report of the Public Protector and if the report found that the policy was unlawful, then the Auditor-General would have to come back and explain why AGSA missed the unlawful policy. And immediately when that report was issued, I submitted it to the Secretary of the Standing Committee of the Auditor-General and copied it to the Chairperson, Mr Somyo, and they never responded till today because the main thing is to cover up this looting scheme entitled Expired Project and Surplus Policy which is unlawful and we do not understand why this policy is protected.

The Chairperson: We will break for 15 minutes.

Chairperson: Welcome back colleagues. We will resume our work with the evidence leader.

Adv Bawa: Mr Nyathela, your next complaint was lodged on the 13th of January 2021 and was in respect of a Director-General, Mr Mkhize.

Mr Nyathela: Yes, yes.

Adv Bawa: And in respect of that there was a closing report issued on the 30th of March 2022.

Mr Nyathela: Yes.

Adv Bawa: That was signed by Ms Nkabinde. And you also had lodged a complaint on the 11th of March 2020. That is the complaint you referred to against the previous Speaker of the National Assembly, which you told Adv Mpofu about.

Mr Nyathela: Yes.

Adv Bawa: Now, have I missed any complaints? Have I covered them all?

Mr Nyathela: No, you have covered them all. But I want to comment.

Adv Bawa: I thought we covered it with Adv Mpofu - that it is still pending and that they have not yet answered you.

Mr Nyathela: Yes, that is the one that is pending, that of the Speaker, but I wanted to comment on that with the closing report. It was reversed and then we had an AD (alternative dispute resolution) meeting with Ms Nkabinde and the issues that we complained about were resolved. And finally, the Department implemented, what we complained about.

Adv Bawa: So, if I understood from your evidence in direct, you lodged complaints with the Office of the Public Protector, you had lodged complaints with the Hawks, the Portfolio Committee, the Speaker's office and you have also lodged complaints with the Minister of Finance.

Mr Nyathela: No, yes, we did complain to the Minister of Finance regarding the Expired Project and Surplus Policy. Unfortunately, even at the Treasury, we never even got a response.

Adv Bawa: Was there anywhere else that you complained that I have missed?

Mr Nyathela: Presidency.

Adv Bawa: National Treasury?

Mr Nyathela: Is National Treasure not also the Finance Minister? It was Minister Tito Mboweni.

Adv Bawa: And when you deal with the Office of the Public Protector, you are fairly diligent in following up with the investigators on the status of your reports?

Mr Nyathela: Absolutely.

Adv Bawa: And so, every couple of weeks you asked for an update on the report?

Mr Nyathela: Yes, because their policy is that we must be issued with a report within six weeks. So, we definitely call because two months or three months will pass without us even getting an update, like this issue of the closing reports for the complaint about the Auditor-General. We had to keep on writing to get an update and then we would get one line, not even a detail from the investigator.

Adv Bawa: And it is indicated that in that matter you lodged a complaint about Adv Nkabinde and there was an investigation done but when Adv Mkhwebane gives evidence, I will deal with that. Now, in respect of Ms Mogaladi, you had referred to a transcript of the evidence which had occurred at a meeting.

Mr Nyathela: Yes.

Adv Bawa: What was the nature of what Ms Mogaladi had said that you had found to be offensive?

Mr Nyathela: Like, for instance, there is another line, where she says: “No, Mr Nyathela, he will be here every Monday, at the office, to ask for an update.” That is an example. How can I be at the Public Protectors Office every Monday? Huh? And then you can see it is in the transcript.

Adv Bawa: So, we managed to get all of the transcripts, so we will put them up.

Adv Mpofu: I just wanted to indicate that I am seeing this for the first time, but Adv Bawa did indicate after lunch that she had found it. I have not had the opportunity to see it as such but, unless there is something contentious, I am not going to object.

Adv Bawa: Just to put on record that I have not looked at it either but I do not want the witness to come back again. I do not want to mislead anyone: I glanced at some of the pages. If I take you to paragraph 62 of your affidavit. I am going to read it to you. I do not know if you have a copy of your affidavit. No? Okay, we will put it up to make it a bit easier for you.

Mr Nyathela: OK paragraph 62.

Adv Bawa: You say in paragraph 62: “Finally, during my oral evidence I'm going to place on record, the bad treatment I've received from various officials and at number one is Ms Mogaladi’s name.” Then we go to paragraph 63:“I also intend to place before the inquiry the record where Ponatshego Mogaladi was making demeaning remarks about me. I have been watching the proceedings of this Committee in pain for the past few months.” Were you referring to the demeaning remarks that occurred in the exchange between her and Adv Mpofu?

Mr Nyathela: Not only that, but also … you have the transcript?

Adv Bawa: So, were you referring to the transcript?

Mr Nyathela: Including the transcript and including what also confirmed was the closing report of the Auditor General's complaint. Ms Mogaladi was not the investigator of that complaint. Ms Mogaladi was on suspension when this complaint was investigated. Ms Mogaladi came late. That is why the investigator in that closing report is not mentioned. Veronika Pillay becomes Ms Mogaladi. And then we knew immediately when Ms Mogaladi got involved, that you had a travel ticket! And then I will take you back because you say you have read the transcript.

Adv Bawa: No, I said I have the transcript.

Mr Nyathela: I can read you one line, number 20, of that transcript just to give you a heads-up in terms of another misconduct of Ms Mogaladi. Can I read it?

Chairperson: No. Adv Bawa is trying to lead so you follow her.

Adv Bawa: Sorry, Mr Nyathela, but let me let us take this slowly so that we are all on the same page. And let me also place on record that, as I said, to Adv Mpofu, this was not put to Ms Mogaladi and we do not know what her view or opinion is of this. And in fairness, I have put it on record that what you say, we are going to put to her so that she has an opportunity to put her part, if she so wishes, to the inquiry, as a matter of fairness. Because I understood that you were going to refer to documentation from your affidavit, I asked the Secretariat to request such from the Adv and I did not get a response although, admittedly, I did not follow up with the secretariat. So, I assume that if there was something we would have been given it.

Adv Mpofu: Just for clarity and because maybe I owe this explanation. It is true that the reference that Adv Bawa referred to was included by our witness because it was referred to in our consultation, but what I am saying is that we never got to have it. We were told about it, as the Committee has been told. But if we had had it, we would have attached it. Because we did not have it physically, that is why I am saying I am seeing it for the first time. But it is what was being referred to and that is how I was able to know who Ms Mogaladi was talking to. That was explained to us.

Adv Bawa: Sorry, it is 46 pages long but although I have not read it, Adv Mayosi read it during the lunch break and she identified certain portions. But maybe you should take us to what you find to have been problematic in the transcript. So, we are going to start at page 18 of the record where Ms Mogaladi introduces herself and we are going to scroll it slowly. Just tell us to stop at any stage Mr Nyathela if you want to draw something to our attention.

Chairperson: Okay you said something about 20, is that the 20?

Adv Mpofu: I am sorry if I am coming to that. Every page has a line 20. Maybe Ms Mayosi can help us if she knows where the reference is about every Monday.

Adv Mayosi: We did not find it.

Mr Mileham: Chairperson, at the top of each page of the transcript is a page number. Perhaps Mr Nyathela can tell us on what page line 20 is to be found.

Mr Nyathela: Page 31.

Adv Bawa: Is this the only comment in the transcript?

Mr Nyathela: No, it is not the only one. There are other transcripts. We did take out some snippets and some of the bias of Ms Mogaladi. This is not the only point. But there were two to three transcripts of different meetings where SARA was not present. It was during the meetings between the Public Protector and CATHSSETA and the Department of Higher Education and Training. Most of those meetings were chaired by Ms Mogaladi. That is when we picked it up, after we took this matter on review. That is when we were able to access this transcript and then, as we were going through, we came across the words that were attributed to Ms Mogaladi. Let us focus on this one. Would any person be at the Public Protectors Office every Monday? What is that? What do you call that? She says: “Yes, we must. I was telling you that we need to finish it off. Mr Nyathela will be here on Monday. Every Monday morning he comes here. Every Monday now.” Would I go from Johannesburg to Pretoria every Monday? What is that? These are not only the challenges that we had with Ms Mogaladi. That is why when I heard that Ms Mogaladi was on the stand, I said that we would be doing nothing that day but listening to her. I do not want to repeat what I said about that woman -yes, this person. I said let me now listen because I knew that this one will be up to something. Ms Mogaladi has had an axe to grind with me and SARA from the time I met her in the ADR meeting that led to the report of 2016 when I challenged her for taking sides.

Adv Bawa: Sorry, Mr Nyathela, can you understand that Ms Mogaladi is not the subject matter of this inquiry? I want to move on to just clarify a few more things with you. And if you were described as a ‘persistent complainant,’ what would your comment be?

Mr Nyathela: No, no, we are not persistent complainants. Where must we go? That Office of the Public Protector is our office, it is for the public! Let me tell you Ms Bawa and the honourable Members, if we had financial muscle, we would have long stopped this. We would have taken this Department straight to court and won. We would have taken them to the highest court because this is not only an abuse of power, this has been also trampling on our constitutional rights and the Bill of Rights, not only the Department of Sports, Arts and Culture, but including the Department of Higher Education and Training, this Parliament all these government offices where they do not even have the decency to respond to us, or even to acknowledge our response. Huh?

Chairperson: Let us leave it there.

Adv Bawa: I am trying to get to some conclusion. As I understand it, the Public Protector’s Office needs to respond to you on a complaint every six weeks or so. And so, I just want to make sure that Members can understand. I have just taken one caption from the exchange of emails that occurs between SARA and the Public Protector and it starts from the bottom going up through the emails. This has got to do with your CATHSSETA application and it says:“Dear Mr Nyathela, please find the attached CATHSSETA advertisement calling for applications.” Who is training, Mr Nyathela? I see the reference to training.

Mr Nyathela: It was Bernard Sebothoma from our organization.

Adv Bawa: Right. There are emails prior to this, some of the emails go back before December 2019. But I just took a point in time to make a point. Just to demonstrate it. You met with the Public Protector on 9 December 2019. Correct?

Mr Nyathela: Yes.

Adv Bawa: Regarding the complaint. It was forwarded to Ms Mogaladi. You are aware that Ms Mogaladi was suspended in October 2019 and came back in March 2021. So, she was not in office during this period.
Were you aware of that?

Mr Nyathela: Yes.

Adv Bawa: Okay. Right. You then ask them if there is more information and you send this off in December 2019. Ms Sephaka was the investigator in this matter.

Mr Nyathela: Yes.

Adv Bawa: On 6 January, you provide them with an attachment and you ask for an update as per the meeting held or the PP on the ninth of December. That is about a month later. On 30 January, you say you request an update regarding this unfortunate matter.

Mr Nyathela: Correct.

Adv Bawa: Ms Sephaka then responds on the same day and she says: “We've written to both CATHSSETA and DHET regarding further allegations and we have requested their records.” So, she responds to you on the same day. On the 24 February you ask for an update, correct?

Mr Nyathela: Yes.

Adv Bawa: She responds on the same day and tells you what is going on in the matter and she says she will provide further feedback in due course, right? On the 19th of May, you say SARA would highly appreciate an update and she responds. On the 20th, she gives you an update that there is still outstanding information and not all staff have returned to the workforce as yet. We are now in May 2020 and I think that is just on the cusp of the end of the first lockdown. And on 29 June, she says that she had requested outstanding records from the Department and there have been delays and the DPP has asked for a briefing. In August, she says, “We refer to the above matter. There have been unacceptable delays in the Department in providing us with records. We will revert with a further update.” So, she gives you an update. You respond to her on the 11th of August. Correct? Do you see that?

Mr Nyathela: Yes. Correct.

Adv Bawa: I am not getting a yes. I know it is getting late and you are probably getting tired so I will try to wrap it up soon. You respond to her on the 13th of August and you ask her for a further update. You provide her with a link for further information on the 24th of August. On 26 August she responds and acknowledges with thanks. Correct?

Mr Nyathela: Correct.

Adv Bawa: And then we go to 1 October and you ask her for a further update. On the second of October, she tells you they have received further submissions and are busy with that. On the sixth of November, you ask for a further update, correct?

Mr Nyathela: Correct.

Adv Bawa: She then tells you on the 10th of November the report was concluded and it has been undergoing a process of quality checks. Correct?

Mr Nyathela: Correct, it is right.

Adv Bawa: And then you inquire from her on the 10th of November to advise if this will be the final report or if they will be issuing a section 79 notice. Correct?

Mr Nyathela: Correct.

Adv Bawa: And she then tells you discussions are going on regarding this investigation. They are still working on the matter on the 19th of November, correct?

Mr Nyathela: Correct.

Adv Bawa: Right. And she then asked you for further documentation concerning earlier communications between yourself and CATHSSETA in September. Correct?

Mr Nyathela: Correct.

Adv Bawa: You provide it to her a few days later or the same day. I missed the date. She acknowledges receipt. And you then inquire on the 22nd of December. And I think the report came out on the 21st of December. That was the closing report that the Public Protector issued.

Mr Nyathela: Yes, correct.

Adv Bawa: Mr Nyathela, different complaints had different levels of communication. So, some investigators would respond more regularly than others.

Mr Nyathela: Yes.

Adv Bawa: And you would generally communicate with the investigator who was dealing with the report itself and you would include the senior investigator or the EM and sometimes you would include Ms Nkabinde in the Public Protector’s office as well. That would be the pattern for each complaint - you would inquire every few weeks. Would that be a fair assessment of yours - I do not want to put words in your mouth so I am asking you if I am correct.

Mr Nyathela: Yes, you are correct.

Adv Bawa: Okay. What date was the opening of the building?

Mr Nyathela: It was in February - I do not remember the exact date

Adv Bawa: Would it be the 24th?

Mr Nyathela: I do not remember. I do not want to…

Adv Bawa: 17th?

Mr Nyathela: Let me check. No, I cannot find it.

Adv Bawa: Okay, but it was February 2022. And you said that the Public Protector could not come to the opening because of this inquiry.

Mr Nyathela: Maybe she was preparing for it and I do not know exactly why she was able to come.

Adv Bawa: I do not know the ins and outs but I thought you had said, under direct, it was because she was busy with the inquiry.

Mr Nyathela: Maybe she was busy preparing for this because there were lots of things going around.

Adv Bawa: So, you just surmised it was about the inquiry, Mr Nyathela.

Mr Nyathela: The process was starting to take place, wasn't it?

Adv Bawa: No, Mr Nyathela, it had not begun yet. I was not appointed at that time. So, I cannot tell you offhand. But I just wanted to know, what informed your view that it was linked to this process that she did not come to the opening of the building? Must I repeat the question, Mr Nyathela?

Mr Nyathela: Yes.

Adv Bawa: I asked what informed your view that it was because of this process that she had not come to the opening of the building.

Mr Nyathela: Because I thought this was during this time when these issues were in the media and all of the impeachment and all of that. So, I thought she was busy engaging in those matters. That includes this process.

Adv Bawa: So, you just assumed it was that?

Mr Nyathela: A combination of things, including not only this, because by that time there were a lot of things happening concerning her.

Adv Bawa: Like what else Mr Nyathela?

Mr Nyathela: It was all over the newspapers regarding some of the things that you were reading to me on that document. Every day, those issues were in the media regarding other reports and all of that, court cases, etc.

Adv Bawa: So, here is a memorandum that was prepared by the Acting Chief Operations Officer to the Public Protector concerning your invitation, to be correct, to the ceremonial opening of the newly renovated and upgraded SARA House.

Mr Nyathela: Yes.

Adv Mpofu: Thank you. I did not intervene earlier because I did not want to be answering for the witness, but I just wanted to place on record what is common cause: that on the fourth of February, the judgement of the Constitutional Court came out and then your Committee sat on the 22nd for the first time thereafter “to resume the process”. Some part of that is a controversy in court, but that is just what was happening in February around this process.

Adv Bawa: Adv Mpofu, I do not take issue with it. Obviously, Adv Mkhwebane could not be in Johannesburg and Kimberley on the same day. We accept that.

Adv Mpofu: No, that is not the point. I am making the point that what the witness is saying is that a lot was happening around the impeachment.

Adv Bawa: I do not think that was the issue. That was his assumption that she had all these things going on, but the reality was she could not be in two places at the same time. Thank you, Mr Nyathela. I have no further questions. Can I thank you for your assistance to this Committee and the process?

Chairperson: I am now going to proceed to take Members who wish to come with whatever questions you want to pose to Mr Nyathela. I start with Ms Thlape.

Ms M Thlape (ANC): Let me thank you for the substantive evidence that you have put before this Committee since yesterday, Mr Nyathela. I just have two questions to put to you. Now, this Committee has the responsibility of determining the misconduct, or incompetence, of the PP as alluded to in the motion, and the determination of this is done on a cumulative basis. As you have seen, so many people have come to give evidence, cumulatively, and the same can also be said about being competent. It is a matter of pulling up evidence. I just want to find out the cumulative substance of the submission that you made that the Public Protector is competent. Do I proceed to the second question?

Chairperson: Maybe let us deal with the first one. Did you get that, Mr Nyathela?

Mr Nyathela: Can you repeat that?

Chairperson: Just be more precise in your question, Ms Thlape.

Ms Thlape: Mr Nyathela, we have had so many people coming here to give evidence previously and as a Committee we are looking at our mandate on the accumulative evidence that we are being given in terms of whether the PPE is competent or incompetent, whether the PP has a misconduct issue to respond to or not. I am asking, out of everything that you have given us since yesterday, what would be your submission on the competency of the Public Protector? I am asking this because you only spoke about Ms Mogaladi and about issues around her inability to assist you in time and everything. But I want to say cumulatively, can you just highlight issues for this Committee that would say to us: Public Protector Adv Mkhwebane is competent?

Mr Nyathela: There are a number of them that I have also already mentioned. The fact of the matter is that since her arrival, things changed for the better for us. I can mention the issue of the renovation, the report of the problem we had with the City of Johannesburg, including with executive mayors, and also the issue of the report of the National Arts Council of South Africa. For example, in terms of the reports that were issued in favour of SARA since Adv Mkhwebane came in, things started to move positively for us, especially for young people, when she arrived.

Ms Thlape: Thanks for that response. In essence, your evidence indicates that it was only through Adv Mkhwebane’s intervention that your matter was resolved, and I note that you went through two of her predecessors. I want to hear from you because we have also indicated a challenge that she is not in the office. What is it, in your opinion, that the Office of the Public Protector should do to ensure institutional efficiency, so that whoever approaches it for assistance, receives that assistance, regardless of who leads the office? What would be the key things to ensure that there's institutional efficiency in that office?

Mr Nyathela: It is for the investigators to investigate without fear, favour or prejudice and make sure that the complainants are updated according to the Public Protector’s mandate of providing the complainant with updates within six weeks, and then also the Office of the Public Protector, especially when dealing with ordinary people on the ground must also take note when they issue the Discretionary Notice that not all of us have the financial muscle or even the capacity to respond to the Discretionary Notice in 14 or 10 days.

Ms D Dlakude (ANC): Let me take this opportunity to appreciate Mr Nyathela’s passion for his work, and also the love of uplifting young people of this country and for making sure that some of them realise their dreams through his own dream. And also I appreciate his resilience throughout the years. So, if we had thousands of Mr Nyathela’s, I think some of the challenges that we face as a country would not be there. You said in your evidence earlier that the Auditor General's Office issued clean audits to the National Arts Council. So, is it your evidence that the Office of the Auditor General can issue a clean audit to an entity, even though there are some financial discrepancies?

Mr Nyathela: From our side, we believe the Auditor General should not have issued clean audits to the National Arts Council and that is why, up until today, we have never had a clear response from the Office of the Auditor General. That is why we ended up taking this complaint to the Public Protector. Because before we took this complaint to the Public Protector, we took it to the Auditor General. We had a meeting with them and one of the officials told us that it was a mistake. It was one of their officials in the Office of the Auditor General in Johannesburg and that official was no longer there. And then we took the very same complaint to the Director-General of Treasury, Mr Dondo Mogajane, but there was no response. We escalated it to the Minister of Finance, Mr Tito Mboweni but there was no response. We brought it to the Portfolio Committee for Sports, Arts and Culture but we got no assistance. The Standing Committee on Auditor General said they would wait for the Public Protector’s report and gave no further assistance. That is why we say that it is heartening to receive the treatment we have received from Adv Mkhwebane. That is why we cannot count on the Speaker and two previous Public Protectors that have not shown the treatment that we received from this Public Protector. We have never heard from any official or department, including this Parliament.

Ms Dlakude: When giving you evidence, you said some officials within the Office of the Public Protector were protecting the Department and the National Arts Council. Can you please expand on that?

Mr Nyathela: It took the intervention of the Public Protector for this complaint about the National Arts Council to show some movement. Even before that, there were delays and then we had to write straight to the Public Protector through her PA, Ms Nkabinde, to request the Public Protector to intervene and get our complaint attended to. That is why we are saying that the Public Protector did not only intervene in this complaint of the renovations and for SARA to get the admin funds, but she also intervened in the complaint against the Auditor-General when the first discretionary notice was issued. And then when we requested a meeting or intervention, this Public Protector responded positively and gave us a hearing or at least delegated or instructed an official to give us a meeting. Beforehand, that never happened.

Ms Dlakude: You said earlier in your evidence that criminal activities took place in this Parliament. So I wanted you to take us in confidence concerning that which Adv Mpofu said related to section 17.

Mr Nyathela: Yes, in terms of this Parliament, and its Committees failing to address our legitimate complaint regarding officials of departments coming here to Parliament and presenting false and dishonest statements. And then after filing the complaint, we were asked to submit, in detail, evidence of the dishonest statements which we did, like the recent one we were asked for on the fifth of October. We submitted, in detail, those dishonest statements that were presented as evidence on the 12th of October and up until now, nothing has happened. There is no movement. It is quiet. What we need from Parliament and its Portfolio Committee is to respond to us as the public and not to ignore us and play hide-and-seek because this is a Parliament of the People. It says that in its slogan. So, what is this? It is very disappointing to get people who should be looking after our interests, people who should be protecting us as citizens, but they are the ones who are now abusing us and suppressing us. That is the issue. As I have said, this is not the first time that SARA has filed this complaint. So why does Parliament or even the Office of the Speaker not have the decency to respond to us, even if only to say they cannot address this complaint? If they tell us to put it in writing, formally, and to report it to the police, then we would go immediately and file this complaint with the police. That is why I am saying this Parliament is also heavy-handed, protecting maladministration and corruption.

Ms Dlakude: Lastly, Mr Nyathela, the Office of the Public Protector is one of the institutions established in terms of Chapter Nine of the Constitution. So, it was not wrong for you to go to that office to seek assistance. So, you were at the right place. How long did it take the Public Protector to assist after a long struggle concerning your issue with the building? And would you say, when you respond to that - I am already anticipating your response - that the Public Protector is competent in her work?

Mr Nyathela: Absolutely. Especially when it comes to people on the ground. The issue, for me, is about people on the ground. We are suffering because of this and, without this Public Protector, SARA would not be where it is today. We would not have what the orchestras and others were getting and all of that. SARA was compliant, meeting the criteria, but we were deprived of the funding and support that we deserved. The other thing is that the public purse must be dispensed for the public good, not for cronies and cabals and all of that while our young people are in this mess. No, this is our money and we will stand up for it so that it can be used for the empowerment of our young people. We are not requesting this money for it to go into our pockets and all of that.

Ms J Mananiso (ANC): Let me acknowledge Mr Nyathela’s energy and passion for Arts and Culture and the support you give to our young people who are so talented. As explained, this is a process for determining if there is misconduct and incompetence of the Public Protector. I want you to tell us if you think that this process is unnecessary and that it is a witch hunt, according to you.

Mr Nyathela: According to me? If I had the powers I would make it stop. [Speaks in his vernacular language] Why, why? [vernacular] What about the people on the ground?

Ms Mananiso: [vernacular] on the agenda about this particular process.

Mr Nyathela: From day one when I was looking and listening to this Committee, it took me aback because like I have said, this Parliament needs officials, including other government institutions mentioned – AGSA, Treasury, the Presidency - you name it. They have spoiled it for our young people in terms of our experience in our sector, the arts and creative industry, and then the person who is changing that situation for us, people on the ground, [vernacular] Parliament protect dishonesty at the expense of the child and those not yet born. So how must we look at it? Some of us are not only looking as it is referred in the charge sheet [vernacular] We appreciate [vernacular] and then get the results.

Chairperson: Just keep your distance from the microphone.

Ms Mananiso: You spoke about black excellence [speaks in her vernacular language] so I want to check with you – do you think this process is challenging that black excellence?

Mr Nyathela: That is happening in our country. There is a lot of it there [speaks in his vernacular language] It is as if we hate each other, we are quick to criticise each other; to pull-him-down syndrome in media and social media [vernacular]. Your child is my child. We will protect each other [vernacular] specially some of us when we see black excellence being trampled down, it is heartbreaking [vernacular].

Ms Mananiso: Do you think the PPSA is dysfunctional without the Public Protector?

Mr Nyathela: Not really dysfunctional but blocking, from my experience in dealing with that office from 2004 till today [vernacular] moving fast, results [vernacular] ordinary person like myself hearing from the PP [vernacular]. The Public Protector will respond, and she will acknowledge. It is rare to get a response from officials; they just ignore you; no letter of acknowledgement [vernacular] not to bully as [vernacular] It is a fact, because of this, what our young people [vernacular] facing now instead of focusing on empowering our young people [vernacular] petty fights, [vernacular] on the ground.

Mr G Skosana (ANC): Thank you and congratulations, Mr Nyathela on the good work that you have done and that you are doing for the youth of South Africa. The fact that you did not get assistance or support from our government, particularly the Department of Sports, Art and Culture and also from our Parliament, particularly the Portfolio Committee of Sports, Art and Culture, and also from the PPSA during the tenure of Adv Mushwana and Adv Madonsela, do you think that happened was due to general poor service in those particular offices? Or did it happen because you were specifically targeted?

Mr Nyathela: It was a combination of different things: jealousy, arrogance, abuse of power, ignorance and, spreading the use of lies which is continuing up to today. Personalisation of issues of national interest is another one. So it is a combination of different things. Because here at home, we do not look at what is on the table. [Speaks in the vernacular] but when you go overseas [vernacular] drive a Mercedes Benz [vernacular] it is what you can put on the table that will benefit the country. Create benefits for others. Change lives for others. But here [vernacular] and all of that. So those are some of the things that creates the problem. We like to play a man instead of playing the ball.

Mr Skosana: When the current Speaker of the National Assembly, Ms Nosiviwe Mapisa-Nqakula, responded to you on the first of September 2022, she said, just to quote in one paragraph, she says: “We have established that the National Arts Council did respond to your concerns and that their response was transmitted to you, through the Committee” referring to the Portfolio Committee of Sports, Arts and Culture. Do you not think she was responding based on the information that was given to her?

Mr Nyathela: From our side, we knew immediately that the honourable Speaker was misled. And that is not the first time; even the former Speaker was misled similarly. And then the other thing, and that is why I also mentioned the name of the Chairperson of the Portfolio Committee of Sports, Arts and Culture, Ms Dlulane was ganging up with the Minister to protect the corruption that is running in the NAC. They are protecting it at all costs. How could the Minister and the Portfolio Committee and its Chairperson allow the abuse of the public purse to harass me, let alone this unique training organisation? [vernacular] We must raise the alarm regarding this rampant corruption. That is why as I have said, we have no choice but to go and also visit law enforcement agencies. They are still dragging their feet in terms of addressing our complaint whilst evidence is there. The Hawks closed our complaint. I had to do representation to the National Director of Public Prosecutions, Adv Shamila Batohi. And after that submission, the case was reopened because the evidence was there. People want do not want to face it but I will tell it like it is.

Mr Skosana: I just want to address that point of corruption of the Minister of Sports, Arts and Culture and the Chairperson of the Portfolio Committee of Sports, Arts and Culture. You were saying that they are protecting the corruption. In fact, earlier you said they are protecting the looting scheme that is taking place at the National Arts Council. In my view, those are serious allegations. So my question is, do you really think that they are deliberately protecting a looting scheme at the National Arts Council or are they just not hands-on in their responsibility?

Mr Nyathela: There is no what-what about hands-on. The evidence is there. The Minister said in the report to us on 13 October 2016 that this thing is looting; it must be abolished. It is still continuing and the Minister is turning a blind eye, including the Chairperson. These people are abusing the public purse to persecute an NPO that is unique, dynamic, and empowering young people. They have wanted to kill it for a long time but we have survived. This is what I am saying. It is not a new thing. Why are the Minister and the Chairperson allowing this to happen? This is the Chairperson of the NAC, and the Cabal, abusing the public purse and our money to persecute us for standing for the truth. Why is the Portfolio Committee, after receiving what they have requested from us in terms of the evidence regarding the dishonest statements made and about the implementation of remedial actions of the Public Protector? They have got it and then why are they quiet? Why is there no movement regarding that? These are non-issues because they affect the people on the ground but this one is bigger. Because it affects the big ones – CR and CX what-what. What do I care; what do I see; what do I know? Quick, fast, commission. This one is clear. Why is there no Committee or ad hoc Committee set up to address these dishonest statements? We come from the ground; we are nothing!

Mr Skosana: With regards to Ms Mogaladi’s actions or behaviour, did you report her conduct to her senior?

Mr Nyathela: I did report her, not only did I report in writing, but in her presence to the Public Protector who is here and can verify it. In front of her face, I said: “You, you stop this please.”Because like I have said, we are not in the business of lies or smear campaigns and if there is something I have a problem with, I tell you straight to your face, not behind your back. And that is the thing that they hate about me. White is white, not red. I am not in the business of lying about people. It is about the empowerment of the child. That is what we are interested in. That is why I am here. It is because I had to be here. I do not want to be in these spaces. This is not my space.

Mr S Luzipo (ANC): I appreciate that you still have that passion. I have worked in the industry and I just want to share just one small thing that we share and that is educating young people. My fear is when young people are left out of this exercise, something is wrong. For example, I am a Member of Parliament but what you are saying is new to me. It is completely new. Now, I am not sure whether we have the same understanding of the definition of Parliament and I am not sure whether we have the same understanding of a Committee of Parliament and how it is constituted. The National Assembly is constituted in such a way that the risk is very high that when the allegations are made in testimony and evidence, they might be taken as a fact. Mr Nyathela, Parliament is constituted by different political parties two Houses, the National Assembly and the National Council of Provinces. We represent, as a Portfolio Committee, the National Assembly in which there are different parties. Committees of Parliamentary constituted mostly of 11 Members. Those 11 Members are categorized according to the proportion of parties. Now, I want to check with you that the allegation that you are making against Parliament, is it against the leadership of Parliament or is it against the Members of Parliament. For example, concerning the Portfolio Committee on Sports, Arts and Culture, do you want to share with this Committee that all 11 Members of that Portfolio Committee are affected by the view that you have? Can you tell me if your allegation is made against all 11 Members of that Portfolio Committee?

Mr Nyathela: Let me answer this way. My experience is that it is the Members of the ruling party that have been conducting themselves in this way, especially in that Portfolio Committee. And it is only in this new administration that things are starting to show some movement. There are robust debates regarding our concern, and the people who are championing that are Members of the DA and EFF, which means Mr Sindile Madlingozi, Mr Tsepo Mhlongo and another DA Member, Ms Veronica Van Dyk. If it were not for those three, our issues would never have been raised, as happened in the previous Portfolio Committees. We have dealt with this Portfolio Committee since its inception. We are not new to this setup. We know the engagement. We are part of this; we are proudly South African.

Mr Luzipo: Okay, what would your attitude be if the action were taken against the National Director of Public Prosecutions, Shamila Batohi? What would your attitude be? You said when you went to Shamila Batohi, she was the one who helped you to open the case. I am asking this question so that we have an understanding of whether your argument is a subjective one because you were helped by that person. That is how you make detachment.

Mr Nyathela: No, no. That is not the case. There are a lot of people I appreciate. Even today, I still appreciate people who did not even help me but gave me a hearing, or even gave me a chance to meet, but to be treated like a third-class citizen, that is what gets me, coming from the history we come from, and then to get this kind of treatment now in 2022, no, no, no, no, no! It is a no-go area. Lastly, like I said yesterday, we are not asking for favours or special treatment. We are not interested in that. What we are asking for is that people do the job for which they are paid. That is it. We do not want to do a lot of things. No, no, no, no, no. And then we are not biting people but if people are there to come and choke us, and especially the empowerment of young people with skills that were deprived by the apartheid system, and worse, you are a black person, and you want to perpetuate that? Take it somewhere and keep it in your kitchen. Do not bring it here. Because once you bring it here, we are going to have a problem.

Mr Luzipo: I am not sure that Mr Nyathela got my question. My question was simple. If somebody stands up and says your testimony is a subjective one, based on what that person has done for you, what would you say? What would you say if I were to put it the other way around and ask if there was something against Ms Dlulane, the Chairperson of the Portfolio Committee on Arts and Culture, what would be your testimony? If an exercise of this nature were done to Ms Dlulane, what would be your testimony?

Mr Nyathela: No, I would put down my experience regarding her conduct towards us, meaning our young people in SARA. I would not create a story about her or lie about her. I will not do that. I will just tell the truth of what is what. That is it.

Mr B Maneli (ANC): Let me also appreciate the work you have outlined in empowering our people, Mr Nyathela, and I am sure as part of the oversight work we need to also learn from these processes and what could still be improved, without accepting or denying any of the points you have made about knocking at different doors. Mr Nyathela, I want you to confirm that indeed, you are communicating to the Committee that in terms of the challenges faced by the Public Protector that are before this Committee, you would have not had sight of them, even at the time of being prepared as a witness, and therefore, as Adv Bawa have presented them, you were able to confirm that you had no knowledge of them, even from your preparation?

Mr Nyathela: Yes.

Mr Maneli: My second question is that what you are communicating to the Committee is that you have come as a member of the public or an organisation in civil society that has had the experience of interacting with the Public Protector at different levels, but in particular, in terms of your positive experience, as you interacted with Adv Mkhwebane, the current Public Protector. That is the question so that we do not blame, or not blame, you for matters that you may not have knowledge of.

Mr Nyathela: Yes, you are absolutely right.

Mr Maneli: This point is about Ms Mogaladi. I think for me, the importance of it is that she came before the Committee, so I need to ask the question. This is not about a personal problem you may have with her, right? I heard you say she has an axe to grind with you, but I am just saying this is not something that is personal with her, it is just coincidental that she has handled matters where you have been present, and the outcomes have not been favourable in the way you perceive your matter. Secondly, taking that matter forward, you are also communicating to the Committee that whenever you complain, it has never been about whether it is Ms Mogaladi or the Public Protector. It would have been about a request or complaint because you wanted justice. I want to give some examples. You were helped with regards to the Arts and Culture issue, but when there was a report that was not in your favour, as in the case of the Department of Higher Education and Training, you were ready to review that which then forced an alternative dispute resolution, and you were vindicated. So it does not matter that it was the current Public Protector, but wherever you are not satisfied, you will raise matters to get justice. It is important so that we know whether we are chasing personal matters or whether it does not matter even if it was the Public Protector, I will challenge the report if it is not right.

Mr Nyathela: Okay. From our side, it is not personal. We understand there are personalities involved but we are not interested in that. We are interested in the job. But this issue with Ms Mogaladi started in 2006. I did not know Ms Mogaladi when we had the first ADR meeting. We as SARA were in the meeting with officials of the department. She was chairing the meeting but she started being the spokesperson of the department and I had an issue with that. I said: “You are the chairperson, just be neutral.” And then I questioned her and that is when it all started. I did not take it seriously, but from there on, because she is a senior manager, whenever, our complaints fell under her, the investigators investigating our complaints, reported to her and it was a problem. Whenever she was involved in our cases, we knew that we had a problem. So we have that experience with Ms Mogaladi. But I do not have any personal issues because we are not interested in that. I have said it here. What we are interested in is that public servants do their work, for what they are paid. We are not here because we want some favours. No, no, no, no, we are not interested in that; people must do that for which they are paid and without fear, favour or prejudice when they investigate. As I have said, we do not just wake up and file a complaint and all of that. No, no, no, no. When we file a complaint, we understand evidence and that we must have documentation, evidence, and a paper trail. We understand that we cannot go out and about things. We are not in that space; we are in the space of empowerment and that said, all these officials bring these things just to distract us so that we cannot continue doing what we love, which is empowering our young people and creating opportunities. That is the problem that we have been having in our country. That is why we just get peace of mind when we are out of this country where we are relaxed and we are welcome. Immediately when we land back in the country, we know that there will be unnecessary fighting with our own people who are really supposed to be supporting this. And that is why I have said that, by now, we should be having satellites in all the provinces for the benefit of our young people. As a country, we should have a purpose-built backstage academy training centre. That is what we are interested in.

Mr Maneli: My last question is really on a matter of principle because I think you raised this with passion: the wastage of resources and that people do something else instead of helping where the money and resources are needed, and you were referring to the goings on at the National Arts Council. Do I understand you correctly that, as a matter of principle, it does not matter whether you get help from the NAC, if they were to squander the resources and not use them as they are supposed to be used, you would still raise this point. Even if it were the Public Protector who helped you or did not help you, if there's evidence to show that the money was not going where it is supposed to go, you would have the same principles.

Mr Nyathela: Absolutely. I hate corruption with a passion because corruption is one of the things that led to the suffering of our young people and our people. I hate corruption with a passion. I do not want it! I do not want to see it, no matter who it is. I will hate it.

Chairperson: Thank you, Mr Nyathela. I think you have answered the question.

Mr Herron: I think Mr Nyathela has probably answered my question as he responded to Mr Maneli. But I want to get some clarity, if you would allow me, from Adv Mpofu. I do not want to be disrespectful of Mr Nyathela's evidence, which I think is very compelling in many respects, and I mean, both the apartheid-era hardships and the tentacles of apartheid that went all the way into the performing arts are quite painful to hear and then the disappointments in the post-apartheid era are also painful to hear. But if I understand it correctly, Mr Nyathela has come to tell us that he is satisfied and encouraged by the work of the Public Protector. So my question is really to Adv Mpofu if you will allow it, about the relevance of the evidence, given the charges. Because if I remember the figures there 20 000, 30 000 maybe 40000 cases that have been closed by the Public Protector. I would imagine that many of those people are satisfied with the outcome of her work. Even I could give evidence about the complaints that I have lodged with the Public Protector and have been handled well. So I am concerned that we could have a stream of witnesses coming to say how the Public Protector helped them. I am wondering how this deals with the charges that we need to deal with as a Committee.

Chairperson: Thank you, Mr Herron. Adv Mpofu, just take note of that because the questions now are to Mr Nyathela.

Adv Mpofu: I understand. I was going to answer but this is the question time for Mr Nyathela.

Chairperson: Yes. I am parking that question for you to respond to at the end. Mr Mileham.

Mr Mileham: Mr Nyathela, thank you very much for appearing here today. Just a very quick thing. First of all, congratulations on the work you are doing to empower young people and the skills that you are giving them. Could you tell us how many people have you trained through your program over the years?

Mr Nyathela: Close to 2 000 from 1997.

Mr Mileham: Wow, that is amazing. So you said in your testimony that you were being persecuted and muzzled. Those were the words that you used, and then it is only this Public Protector who has heard your complaints. Did I understand you correctly? You said that there were no interventions and you received no assistance for 11 years, correct?

Mr Nyathela: Yes.

Mr Mileham: So how then do you explain, Adv Mushwana’s report, the first settlement agreement, the second settlement agreement that was signed by the Deputy Public Protector? It appears that there were several people who heard your complaints and acted on them.

Mr Nyathela: What I am saying is that our complaint at the Public Protector took 11 years. There was no decisive action from 2006 until the tenure of Adv Mkhwebane in terms of holding these officials and the department to account. But immediately after Adv Mkhwebane came in, it took less than six months. The report was there, the Department tried to challenge it, she intervened and then there was a court order. And then the Department wanted to renegade and give the funds to us, she made sure that DBSA was appointed as the implementing agent. So that is why I said we had never had this kind of intervention before.

Mr Mileham: Thank you. I have your answer. Adv Mpofu will correct me if I am wrong, but I believe the Nkandla judgement was in March 2016 and prior to that the Public Protector's remedial actions were not binding on the people in the report. In other words, they could not be forced to implement the remedial actions prior to March 2016. Were you aware of that?

Mr Mahlaule: Yes.

Mr Mileham: Okay. So you are saying that all of those reports are from those other Public Protectors prior to Adv Mkhwebane, which were not binding because the Nkandla judgment was only in March 2016, you are saying that it is only Adv Mkhwebane who is relevant?

Mr Nyathela: Not only that, the interaction and giving us a hearing, giving us the opportunity.

Mr Mileham: But all those others also did that. Adv Mushwana gave you a hearing and issued a report, Adv Mhlongo gave you a hearing, they heard you, and they set up Alternative Dispute Resolutions, did they not? Did they not listen to you? Did they not try and sort out your problem for you?

Mr Nyathela: The difference is that meeting with the officials of the Public Protectors Office is a different matter, but engaging with, being given the opportunity by the Public Protector herself is a different matter. And then when requesting the intervention of the Public Protector herself or himself, she intervenes as requested. The previous Public Protectors did not give us that opportunity, did not act decisively and win. The Public Protectors did not have that effect. And then coming to the issue of the remedial action, whether binding or not binding, that is a different story, even with recommendations and all of that, there was no effort taken to make sure that even those recommendations were implemented. We had to chase it up and be ignored, and all of that, but now it is worse, now with the remedial actions being binding and all of that, it is more crucial.

Mr Mileham: I have your answer. If you could just keep your answers short, because we have limited time. Did you only take one report of Adv Mkhwebane on review?

Mr Nyathela: Only one.

Mr Mileham: And when was that?

Mr Nyathela: When was it issued? Last year.

Mr Mileham: It sounds very much like you are saying that because Adv Mkhwebane intervened on your behalf and got you the money that you were looking for, because of that, the charges that Adv Bawa has laid out should be eradicated. The Public Protector is therefore not guilty of those charges. Am I understanding you correctly?

Mr Nyathela: No. This is not about money.

Mr Mileham: It is not about the money. I am saying that because she intervened on your behalf…

Mr Nyathela: But you just said it now: “got us money.” What does mean that mean? “Got us money.”

Mr Mileham: Because she intervened on your behalf. And you got the outcome that you were looking for …

The Chairperson intervened in a dialogue where the two speakers were interrupting each other.

Chairperson: Just pause there. Mr Nyathela, just fix your microphone. And okay, let me say this, speak to the Chairperson. Speak to the Chairperson. Continue to make your response.

Mr Mileham: May I re-state my question? My question was this: it seems like you are suggesting that because Adv Mkhwebane intervened on your behalf and you got the outcome that you were desiring, all the charges that Adv Bawa took you through, should therefore be dismissed. Is that correct?

Mr Nyathela: Please, I am not saying the charges must be dismissed. And all that we say is that Adv Mkhwebane changed the game, especially for our young people. She opened the doors of learning and culture for our young people in this space, which is white male-dominated, and which has been blocked for ages with apartheid and our people and then she was the only person that changed the setup. It is not about me liking her or what, the main thing is about her being the key to the betterment of our young people. That is it.

Chairperson: Okay, this is our last Member and then I go to Adv Mpofu.

Dr Gondwe (DA): I also want to start by commending you for the work that you are doing with the youth. Just from yesterday and today, I have realized the importance of the work that roadies do in terms of being part of the whole production setup, etc. So, do you know what this inquiry is about? It centres around the charges that are preferred against Adv Mkhwebane. So the subject matter of the inquiry is essentially Adv Mkhwebane, not the National Arts Council or the Minister or even any Parliamentary Committee. The subject matter of the inquiry is Adv Mkhwebane. So then my question, and I know that you have confirmed to this Committee already, you have just seen the motion today, and the charges preferred against Adv Mkhwebane in the motion today. So I think my question is a question of clarity. I want to understand the relevance of the evidence that you presented before this Committee yesterday and today. I know you have just seen the charges today, but I am trying to connect your evidence to the charges because those charges relate to misconduct and incompetence. I want to understand the relevance of your evidence in this whole inquiry [vernacular].

Mr Nyathela: [replies in the vernacular] Adv Mkhwebane [vernacular] around the issue incompetency and all of that. [Speaks in the vernacular] our experience of any incompetence, [vernacular] the interest of our young people.

Dr Gondwe: Okay, so the evidence you are giving evidence before this Committee that, not about the charges preferred in the motion against Adv Mkhwebane. But you are giving evidence that supports the fact that she helped you, in terms of the issues that you had with the National Arts Council and other role players. Am I correct in saying that?

Mr Nyathela: Our government and all that had not provided the necessary support, and then she came to the rescue of our young people and our organisation as people on the ground.

Dr Gondwe: Okay, so I am going to repeat that. So, you are not here to give evidence about the charges preferred in the motion?

Mr Nyathela: No, I am not.

Chairperson: Thank you. I now want to turn in ask Edward impossible. Besides the matter of relevance raised by Mr Herron, is there any other thing you wanted to raise? I now give you that opportunity.

Adv Mpofu: Mr Nyathela, I will just ask you one thing. You said that the words that brought you here were uttered by the Public Protector to you in February 2017, were: “ Mr Nyathela, I’ve got you”. But it looks like she is in the minority. So, for those who do not get you, can you just explain? From what you have described, from your experience over all these years, from 2006 up to today, including your experience with the other Public Protector, Adv Mushwana and Adv Madonsela and now, after this Public Protector, the Acting Public Protector -you are probably the only person who would have that continuous experience with all those persons - can you associate the person that you interacted with, i.e. Adv Mkhwebane, with anything other than competence? Would you say that of those other people? For those who do not get what you are trying to say, would such a person be described as incompetent, as a Public Protector, because this impeachment process is about competence or otherwise as a Public Protector, not for dancing?

Mr Nyathela: I know from our experience and my personal experience; I support that she is the right Public Protector. She did really protect us from the abuse of the officials of relevant government departments. And from our experience, we regard her as a most competent Public Protector and will always appreciate her work as the Public Protector.

Adv Mpofu: From the point of view of the sector that you represent, and when I say represent, I do not mean elected you to be here, but from where you come from, from the ground, do you think that her removal would be a gain for the public or a loss?

Mr Nyathela: From our experience, I think it would be a loss.

Chairperson: Thank you. And let me then kill two birds with one stone. I only have one or two questions, but I will use that also to answer Mr Herron. This is the statement you make and you have been asked by two Members of the DA, the party that brought the motion here, whether your evidence is relevant. In other words, almost suggesting that it is not particularly relevant to that last question. But there is nothing we can do so let us go to paragraph 66 of your statement.

Chairperson: I am agreeing to a request for a short comfort break so we will pause there.

Chairperson: Welcome back, we are in your hands, Adv Mpofu.

Adv Mpofu: If you bear with me, the last few questions that I'm going to ask are going to be based on what I'm going to read out now. It looks like there is a failure to read what it is that we're here about, or something. So let me first, before I refer to the Mazzone motion, which you have been asked about, I’ll refer you to the report of the independent panel and the rules of this Committee. The rules of this Committee refer to the issue of incompetence and this is what the independent panel had to say about it on page 10428 of the independent panel's report, paragraph 87. Okay, just to save time, I am going to read it. it says: The term incompetence is defined as follows in the National Assembly rules: “Complete incompetence in relation to the holder for public office - that's a person like the Public Protector- includes a demonstrated and sustained lack of a) knowledge to carry out or an ability or skill to perform his or her duties effectively and efficiently” Did you experience any of that with Adv Mkhwebane, a lack of knowledge to carry out or ability or skill to perform his or her duty effectively and efficiently?

Mr Nyathela: None of that.

Adv Mpofu: On the other hand, did you experience effectiveness and efficiency?

Mr Nyathela: Oh, absolutely! Especially with this matter of renovations which took 11 years…

Adv Mpofu: Thank you. Just work with me. As I say, we have to school the relevance of evidence. We'll deal with it in legal argument, but I just wanted to do it now. This is then what the independent panel described: “The word demonstrated in the above context means that incompetence must be established on a balance of probabilities.” Okay, I know you're not a lawyer. But what that means in simple English is that we have to look at all the evidence and say: “Is this person probably incompetent or probably competent?” And then take a balance. Understand?

Mr Nyathela: Yes.

Adv Mpofu: Okay. And then it says the word sustained is more difficult to interpret in the present context as it means more than one instance of incompetence is required. It also seems to suggest that instances of incompetence must stretch over a period of time, right? Over the period of time that you are testifying, did you experience incompetence from Adv Mkhwebane?

Mr Nyathela: No.

Adv Mpofu: Okay. And then says: “Finally, the phrase ‘knowledge to carry out the ability or skill to perform his or her duties effectively and efficiently,’ the word and in this context does not mean incompetence can be demonstrated. Don’t worry about that, it is too legalistic. Then it says incompetence may consist of either a lack of knowledge or a lack of ability or skill to perform. So the question would then be whether you experienced any one of those things.

Mr Nyathela: No, I didn't experience that.

Adv Mpofu: And in your testimony, you said that, because you don't know Adv Mkhwebane and she doesn't know you, your expectation would be that other people would too, that you are not the only one, you are not some exception in South Africa who experienced her in that efficient and effective way

Mr Nyathela: Yes.

Adv Mpofu: Now, the relevance of your evidence, which seems to elude some - they say there is none so blind as those who will not see. In paragraph 66 of your statement, you say the following: the gist of what you say is in the last two paragraphs; it's under the heading conclusions. And just so that some people might read it, maybe overnight: “Like other beneficiaries of Adv Mkhwebane's leadership, I hope that my story will touch the hearts of those tasked with judging Adv Mkhwebane. (Well, you can’t touch them all) One must ask oneself whether they could have matched up with their high standards of competency and delivery.” I think you've made this point several times that even Parliament itself, in your view, as you've said: are those people themselves competent, to use the same word, to be even charging her, from your experience?

Mr Nyathela: That's the problem that I had had from the start when these processes began because that's the question that I was asking myself. Are the very same people who are treating us like this, now the ones who want to judge the Public Protector? These are the things that were running through my head. Something was not right. This is hypocrisy.

Adv Mpofu: Then again, we must try and lower it down because it looks like your evidence went over their heads. You then said: “When it comes to replacing Adv Mkhwebane when her term comes to an end in October 2023, we should only hope that she will be replaced by somebody equally or more dedicated to the advancement of the economic fortunes of ordinary people in South Africa.” So what is your hope? Unfortunately, she cannot serve beyond a seven-year period. But, as a person who has been through the history that you've told us, what is your hope about the Public Protector who will start on the 17th of October 2023 when Adv Mkhwebane's term ends?

Mr Nyathela: Our hope is that we find a similar Public Protector who is also interested in focusing on the people on the ground at a grassroots level and not one that will only look at only the high-profile cases of complaints.

Adv Mpofu: And then you say: “Somehow, I have my doubts about what will be achieved. But I hope it will.” And you say: “For the sake of our children and grandchildren, to quote Adv Mkhwebane herself.” you've already explained the magic words that she said to you. Then this is the part that is missed - you say: “Any suggestion that she is incompetent to be the Public Protector is not only incorrect but flies in the face of strong evidence to the contrary, including the real experiences of ordinary people like me. No person is more competent for that job.” Isn’t that the essence of your evidence?

Mr Nyathela: That’s the essence of my evidence.

Adv Mpofu: I’ll explain, in argument, how evidence actually works, and how you extrapolate from something, and so on, and so on. I think it's too much for today. In fact, we're going to call an expert to explain to the Members these things about the law of evidence. The other point is that yesterday, I gave a one-and-a-half-hour explanation of what I call the categories of the witnesses that we're going to call. And I said we will start with witnesses on cross-cutting general topics, such as competence, such as evidence and other experts who deal with the constitutional framework and so on, to lay the basis before we get to the specific witnesses that will deal with specific charges. I tried to do that so when those witnesses come, such as Mr Ebrahim, for example, it would be foolhardy to ask him whether he has read the charge sheet because they are dealing with what you call the helicopter view, but that's a story for another day. And then you say at 67, which is a point you made yesterday but was obviously also missed: “I make the statement in the strong belief that it is not possible for the Committee to discharge this duty, without having heard even one voice representing the public which the Public Protector was appointed to protect.” It's a pity that we even have to explain that in this place, but then you say: “The Committee has had an excessive number of those who are employed to assist the Public Protector, most of whom have failed to do so or appreciate the task of an institution like the Public Protector. No effort was made to balance the picture by also hearing how, as members of the public, we have experienced the Office and the incumbent. I do not pretend to speak on behalf of the public in a mandated position, I speak only for myself, but I know that I cannot be the only one feeling this way. Public participation cannot and should not be confined to token invitations to comment but must also involve public participation in the actual proceedings of the Committee.” Do you want to do anything more than what you have expressed in paragraphs 66 and 67? Although, as I say, clearly made no impact on the readers or at least those who have read it. Let's hope they didn't read it. Do you have an agenda of coming here rather than dealing with the issue of incompetence, and fulfilling your duty as a citizen through public participation?

Mr Nyathela: No, no other agenda. It's what I've already stated regarding public participation and our experience with the Office and the Public Protector.

Adv Mpofu: Well, those are my questions, but we have just received a message from somebody who said: Can he please come back tomorrow? So by public demand, although we're done with our questions, maybe by public demand you can invite Mr Nyathela to come again tomorrow.

Chairperson: Thank you for that anonymous message. I go back to you now, Mr Nyathela, and ask if there's anything that you want to say to the Committee as your final remarks.

Mr Nyathela: I think I've said a lot. But my only request to the Committee Members, because I also know that they belong to different Committees and all of that, is that please, man, can you take matters that affect our young people, seriously? And make sure that complaints that come from the citizen, as it says it is the Parliament of the people, genuinely and decisively address, especially this serious matter of our complaint, that is been running for too long in this house of section 72 because we don't understand why Parliament and its Committees would allow senior officials of the department to come to this august House where they come and wilfully present dishonest statements and are not being held to account even when evidence has been requested and evidence has been submitted to Parliament. That's what I can say.

Chairperson: On behalf of this section 194 Inquiry Committee, I want to thank you for availing yourself during these last two days to come and place your own evidence that will hopefully assist in the conclusion and decisions we're going to make as we do this work.
Members, you are asked to read the affidavit of Ms Sokoni. Is that your understanding, Adv Mpofu?

Adv Mpofu: Chairperson, that was the last information we gave you. But we're having some logistical issues and so the members should read the statement of Mr Lamula as we are juggling with the issue that I raised with you. I'll send a message to the evidence leader and the Secretariat, but it's 80% likely to be Mr Lamula.

Adv Bawa: We were given an unsigned copy of Ms Sokoni’s affidavit last night only. I have indicated to Adv Mpofu, that if he did want to lead it tomorrow, then the cross would have to stand over for Monday.

Adv Mpofu: It seems that the sitting on Monday is going ahead and I would also prefer to have Ms Sokoni on Monday and interpose Mr Lamula as his affidavit is very short and I’m hoping he'll finish tomorrow so that nobody has to stand over for cross.

Chairperson: Members, I'm just going to urge you to just refresh yourselves on both affidavits.

The meeting was adjourned.


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