PP Inquiry day 47: Correspondence before the Committee; Housekeeping matters
Committee on Section 194 Enquiry
24 January 2023
Chairperson: Mr R Dyantyi (ANC)
Motion initiating the Enquiry together with supporting evidence
Public Protector’s response to the Motion
Report from the Independent Panel furnished to the NA
The Committee for the Section 194 Impeachment Enquiry met on a virtual platform, and was briefed by the Committee Secretariat and Parliamentary Legal Advisor on the correspondence it had received.
The Parliamentary Legal Advisor noted that in the directives, there was a mechanism for the Public Protector to seek assistance from the Committee where persons did not want to appear voluntarily as witnesses. That request was not to be considered by the Committee in terms of the Constitution and the procedures set out in the Powers Act. However, there was no automatic guarantee or right that the Public Protector had to have a witness summonsed. Instead, it was meant to facilitate the presences of witnesses from whom the Committee would require oral evidence to establish the veracity of the charges. The role of the Committee was to determine whether the request was vague or otherwise irrelevant, or alternatively, if the Public Protector had provided sufficient information to satisfy the Committee.
The Legal Advisor noted that the power to summons was an important information-gathering tool and facilitated the execution of Parliament's oversight function. However, it was not an unfettered power, and should not be abused. In light of the principle of legality, Parliament may summons persons only for the purpose of performing its constitutional and statutory obligations. Each individual Committee was restricted in terms of being able to summons only those persons who were able to answer questions or provide information related to the specific mandate of the Committee.
The Chairperson invited Members to express their views on the request to summons witnesses on behalf of the Public Protector. A Member recommended that the Committee looks at the actual merits and substantive arguments as to why these witnesses should be summonsed. A DA Member pointed out that none of the witnesses on the list would provide specific information or be relevant in assisting the Committee in making a final decision. A UDM Member stated that it would not be wise for the Committee to decide that certain witnesses should not be summonsed, as it had not been consulted as to who would be a relevant witness. The evidence leaders had chosen witnesses. Those who had refused to come forward would be forced to appear before the Committee, using legal recourse.
Members of the ANC supported the summonsing of the former Public Protector, Prof Thuli Madonsela, to appear before the Committee. She had been involved in certain investigations and had left before those investigations were finalised. It was also noted that the Committee needed to come to a final decision on the witnesses selected. The process could not drag on. The issue of the witnesses needed to be finalised. A Member of the ACDP stated that the Committee should not summons witnesses that had already given oral evidence. It was not necessary for the Committee to hear those witnesses again. It was also important for the Committee to recognise that the abysmal treatment of witnesses had had an impact, not only on them, but on the work of the Committee.
The Members agreed that Prof Madonsela and Ms Bianca Mvuyana, investigator in the Office of the Public Protector, would be subpoenaed to appear before the Committee. The Committee also resolved that Mr Rodney Mataboge, investigator in the Office of the Public Protector, and former Deputy Public Protector, Adv Kevin Malunga, be invited to provide oral evidence. The Committee declined the rest of the list of witnesses that the Public Protector had requested.
The Chairperson said the Section 194 Enquiry would resume according to the Committee's programme on 30 January. Today they were meeting as a Committee to do some housekeeping and prepare for the resumption of that important enquiry. They had done much work in 2022, and were now left with a set of witnesses that was taking them closer to the conclusion of their work on this enquiry. There would be a lot of witness interactions in February, and by March, they would be speaking of writing the draft report. By April, according to the plan, the National Assembly should have made a particular decision on this matter.
From next week, the Committee was planning to engage with a set of critical witnesses. The Public Protector had requested it to assist with the witnesses that they had identified, and to issue the subpoenas, because it was the mandate and the decision of the Committee to do so once all the necessary processes and rigorous criteria were met. It would get into the correspondence that dealt with the requests for those that had to be subpoenaed and have its own deliberations on the matter.
The Committee also wanted to make sure that it cleared any minutes or other in-house matters that were still outstanding.
Mr Thembinkosi Ngoma, Committee Secretary, read out apologies from Mr K Mileham (DA), Mr M Nyhontso (PAC), Mr B Herron (GOOD), Ms B van Minnen (DA) and Dr M Gondwe (DA), who might join the meeting late. The apologies were accepted
Briefing by Committee Secretariat on correspondence before the Committee
Mr Ngoma said the first correspondence received had been a letter from Seanego Attorneys on 6 December. They had requested an extension for the submission of letters of summons. Prior to this, the Committee had given them a date, but they had written to indicate that they would not be in a position to meet that date and therefore requested an extension to 13 December, which was granted.
On 13 December, a number of letters were received from Seanego. The first requested the summoning of Ms Bianca Mvuyana (Public Protector investigator) to appear before the Committee as a witness. The letter, which had been shared with the Members, contained two annexures -- a letter from Seanego to Ms Mvuyana, and a screenshot of her response to Seanego declining the request.
The next letter was from Ms Natasha Mazzone (DA). Seanego had requested the summoning of Ms Mazzone to appear before this Committee. That letter also contained two annexes -- the letter that Seanego wrote to Ms Mazzone, and the response, which had been shared with the Members as well.
The next letter was to Adv Kholeka Gcaleka, the current Acting Public Protector, who Seanego requested to appear before the Committee. The letter that the Committee received from Seanego also contains a copy of that letter, and also declining her request.
The next one was that of Prof Thuli Madonsela [former Public Protector], who Seanego also requested to appear before the Committee as a witness. The Committee had a copy of the letter that Seanego sent to the former Public Protector, which was shared with the Members. Unfortunately, that letter did not contain a response from Prof Madonsela.
Lastly, there was the letter also requesting the summoning of Minister Pravin Gordhan to appear before this Committee as a witness. That letter also contained two annexures -- the letter that was written to Mr Gordhan and two response letters from Mr Gordhan’s lawyers.
These letters were shared with the Members, and he tabled them to the Committee.
Ms Fatima Ebrahim, Parliamentary Legal Adviser, said that as indicated by Mr Ngoma, the Committee had received these five requests from the Public Protector (PP) to summons various persons to appear before the enquiry. The applications were received in December, just before the recess and followed the granting of several extensions to these requests.
She had previously advised about the request to summon President Ramaphosa. The legal principles that were captured in her written opinion there would equally apply here, save for the specific concern that she had raised during that discussion that the President played an executive function in this matter insofar as he was the person who would decide on whether to suspend the PP or not. Section 56(a) of the Constitution, read together with the Powers Act, provides that the NA or any of its Committees may summon any person to appear before it or to produce documents. This was reiterated in the terms of reference (ToR) that the Committee adopted.
Members would recall that when the directives were issued, the Chairperson had regard to the fact that the PP may encounter difficulty in securing the appearance of witnesses. The Committee had provided a procedure in the directives for the PP to seek its assistance where people did not want to appear voluntarily at her request. That request must be considered now by the Committee, in terms of the procedure set out in the Powers Act. However, there was no automatic guarantee or right that the PP had to have a witness summonsed. Rather, it was meant to facilitate the presence of witnesses that the Committee would require to provide oral evidence in order to establish the veracity of the charges.
In this regard, directive 3.2, therefore, specifically stated that only evidence relevant to determining the veracity of the grounds of incompetence and/or misconduct set out in a motion should be put before the Committee, and if any evidence that was not relevant that may be placed before the Committee would be disregarded. This was to afford the Committee the discretion during its deliberations to disregard any evidence not relevant to the motion, assist in the smooth running of the enquiry, and avoid the need to make a determination while a witness was giving evidence. This did not mean that witnesses should be called whose evidence would either not further the work of the Committee, or where the evidence was already before the Committee in the form of affidavits or other materials that may have been served before the courts.
The directives set out a process that the PP would have to comply with, and that process said that the application must be made in writing. This had duly been done -- they had five separate applications. The applications also had to be preceded by a written request to those persons whose presence the PP sought, as well as proof that they were refusing to cooperate, and to indicate what steps had been taken to secure their voluntary participation, and that too had been done. In addition, the directives stated that the application must indicate the subject matter on which the witness was to be questioned, and all the documentation that the PP wanted the witness to provide, and give reasons as to why the testimony or evidence of that witness was necessary for the proper performance of this Committee's functions. It was the role of the Committee to determine whether the request was vague or otherwise irrelevant, or alternatively, if they had provided sufficient information to satisfy the Committee in that regard.
As she had advised previously, the power to summons was an important information-gathering tool and facilitated the execution of the oversight function of Parliament, especially where persons were reluctant or refused to appear before a Committee to provide evidence or information that the Committee required to fulfil its oversight function. However, it was not an unfettered power, and was not a power that should be abused. In light of the principle of legality, Parliament may summon persons only to perform its constitutional and statutory obligations, including holding them to account or maintaining oversight related to the public functions that those persons performed. However, each individual committee would also be restricted in terms of being able to summons only those persons who were able to answer questions or provide information related to the specific mandate of the Committee. In other words, this Committee would not call for purposes of oversight, persons in the health sector, for example. That would have nothing to do with this Committee's work. She had previously advised that it was an extraordinary power, especially because the Committee was not a court. Therefore it must exercise it only where objectively necessary, because it could intrude on the fundamental freedoms and individual rights of persons. It may also have the adverse effect of discouraging the public from providing information to Parliament if there was a risk that people were going to be called unnecessarily to give evidence and to be subjected to what went with giving evidence in a public domain and -- in this particular matter -- of being cross-examined.
Ms Ebrahim said she had previously spoken about the Government Employee Medical Scheme (GEMS) case versus the Public Protector, where the courts had explained that subpoena powers were extraordinary -- that they were coercive powers. This was why they were generally reserved for courts, and why they had to interpret these powers restrictively. Similarly, regarding Parliament, the PP, in her capacity as Public Protector, also had the power to summon persons, but that power could not be used for the enquiry. In short, the constitutional power meant that they must provide information necessary only to determine the veracity of the charges, not simply because it was nice to have people appear before them. The Committee was therefore going to have to satisfy itself that the proposed witnesses had personal knowledge of the subject matter of the enquiry, and that personal knowledge must be relevant for purposes of testing the veracity of the charges. This would include, for example, the person involved in the actual investigation, or the drafting or issuing of a report that formed the subject matter of the charges in the motion. It would also have to consider whether there were any less intrusive means of securing the information, such as affidavits or sworn statements that were already before the Committee or in the public domain. In this case, the Committee had a wealth of court pleadings containing sworn affidavits before it.
The Committee also had to consider that its role was not to conduct oversight over any other person except the PP, so while the actions of some third parties may be subjected to oversight by Parliament, the mandate of this particular Committee was generally narrow and focused. Therefore, it was important that it did not allow itself to be side-tracked and enter into sub-enquiries. If necessary, these could be referred to other Portfolio Committees or relevant bodies for further investigation at the end of this process. It was not this Committee’s task to reinvestigate any of the matters investigated by the PP or to pronounce on the merits of investigations or court judgments. Rather, it had to confine itself to the charges which were very specific concerning certain cases, and deal with what was reflected in the reports issued by the PP.
Underscoring this was a consideration of the methodology of the investigations that had been undertaken. Ms Ebrahim said her role, of course, was not to decide for the Committee, and she did not seek to do so. However, she was just trying to assist and to give this input in terms of the general principles, and she trusted that Members would have considered the written applications that they saw.
Ms Ebrahim said she had drawn attention to the criteria in the directives, but nevertheless, she would give a very brief snapshot of what the requests were. It is also important for the public participation process and to provide some context.
Ms Bianca Mvuyana
The first point involved Ms Bianca Mvuyana, who was currently an investigator at the PPSA. From the evidence already presented, it was known that she was involved in the investigation into the so-called ‘rogue unit’, which formed the subject matter of the PP’s 2019 report. Members would recall that that was the report into allegations of violations of the Executive Ethics Code by Minister Gordhan, as well as allegations of maladministration and corruption and improper conduct by the South African Revenue Service (SARS). The Committee also heard evidence in relation hereto from Mr Van Loggerenberg and Mr Pillay. It was part of the subject matter under consideration in this enquiry, and it was put to the witnesses during cross-examination that the investigators, who we understood to be Ms Mvuyana and Mr Mataboge, would provide evidence concerning the summonsing of Mr van Loggerenberg. Members would recall that Mr Van Loggerenberg had complained that he had not received a summons and that steps had not been taken to try and find him. The Committee was not in possession of any direct evidence at this point from Ms Mvuyana. Ms Mvuyana reported to Mr Mataboge, who did appear on the PP’s witness list as a willing witness, but to date, they had not received a statement from him. The evidence leaders had indicated that should the PP not call him, their intention was to request the Committee to do so. It may well be that if he was a willing witness that could testify on the same issues as Ms Mvuyana, then her presence may not be necessary, but it raised the question of why he was not being called, instead of summoning her.
Ms Natasha Mazzone
The second person was Ms Mazzone, who had been cited in her capacity as what the PP called the ‘complainant in the matter and the author of the motion which formed the subject matter of enquiry.’ According to the application, her presence was sought to clarify certain alleged ambiguities in the motion and other clarity-seeking questions. The application referred specifically to clarity being sought on the meaning of ‘legal costs,’ as used in the motion. Members would recall at the end of last year, there was some debate whether legal costs included legal fees, because, in the motion the term ‘legal cost’ was used. Clarity was needed on why her initial motion was withdrawn and then resubmitted. When it was submitted, it included a copy of an affidavit at the time from Mr Samuel, who was the Committee's second witness. The request letter to Ms Mazzone also referred to clarity required on the genesis of the motion, the previous defective motion that was submitted and then withdrawn, and allegations that the PP was a spy. On that point, Ms Ebrahim commented that that was not even a subject matter in this enquiry. There was also the basis for some of the allegations contained in the motion.
Ms Mazzone did respond to the request, but declined to appear, saying that her subjective intentions or motivations were unhelpful and irrelevant. Ms Ebrahim pointed out that she was on record as previously advising that this was a motion of the National Assembly (NA), and it became such on adoption. So the motion stood as such and should be interpreted concerning its content and not the subjective intention of the person who submitted the motion. From a legal perspective, the question of interpretation of the motion was one on which, in her view, the Committee must make a determination. The Speaker ruled the motion in order, and it was adopted by the NA, so Ms Mazzone’s subjective input would be unhelpful. It would be immaterial. This was not a criminal trial, where Ms Mazzone could be compared to a victim, for example. The interested party in this matter was the general public, and Members act on behalf of the public. It was this Committee, or the NA through this Committee and its representatives, who must make findings on whether those charges in the motion should stand or fall, so at this stage Ms Mazzone, even if she were to come, would not be in a position to amend that motion in any way. Even if Members were to disagree with what she had to say, she did not have the power to amend or even withdraw her motion at this time.
Adv Kholeka Gcaleka
The next person was Adv Kholeka Gcaleka, the current Deputy PP (DPP) and Acting PP. The PP sought to secure her presence in that capacity. She has been in this post of DPP since 1 February 2020, having taken over from Adv Kevin Malunga, who served in that position from 2012 -- firstly, under Adv Madonsela and then later under the current PP, until his term of office ended in 2019. He would therefore have been the Deputy PP who was in office when all of these investigations, which formed the subject matter of the enquiry, happened, so the current DPP was being requested by the PP to answer questions relating to evidence presented by Ms Thejane and Mr Van der Merwe, including recent decisions by the Office in respect of litigation and governance issues which had been referred to the Auditor-General (AG). Last year, when the Committee heard evidence concerning the fees and litigation costs, the PP’s Office issued a press statement saying that they had referred some of that information. The PP had further stated that she wished to question the DPP on cases that had been withdrawn since her suspension, and lessons learned from this current process.
Ms Ebrahim assumed this meant the process before this Committee now. She said the decisions by the current DPP were not under investigation by this Committee, nor did they form part of the mandate of the Committee. She had been asked to testify on what was called ‘the practical realities and constraints associated with holding the Office of the PP.’ Her acting tenure was not under scrutiny, and her experience had occurred in a different time period. What was now taking place at the PP’s Office did not fall within the remit of this Committee.
One would think that those issues were certainly important to Parliament, but that the correct forum to deal with them would be via the Portfolio Committee (PC) on Justice, which had oversight over the PPSA. In response to the request, the DPP had sent a letter saying that the chief executive officer (CEO) of the PPSA, rather than herself, had referred the issue of the legal costs to the AG. The evidence presented at the enquiry about legal fees would not have been at the insistence or within the control of the PPSA. The request to the Committee did not indicate why, in those circumstances, she should be testifying or what precisely was being sought from her in relation hereto. There was also no evidence, and no indication of the relevance of the DPP’s evidence, especially as she did not occupy the post during the investigations, which formed part of the motion, and the subsequent decisions on litigation were not the subject of what was being considered now. If anything, such information should be discussed by the PC on Justice.
Ms Ebrahim commented that it was not clear why, for example, the testimony of the former DPP, Adv Malunga, was not being sought to assist instead. In this regard, the evidence leaders did, in fact, meet with him and he had refused to willingly assist. However, should the Committee wish, they could of course, consider subpoenaing him as well.
Prof Thuli Madonsela
Next was Prof Thuli Madonsela, the former PP. The PP sought to call her to provide evidence on a long list of things. These included backlogs within the PPSA from the time she took over the reins as the incumbent PP until the time she left the institution; the relationship between the institution and the State Security Agency (SSA), especially on issues relating to classified documents; the vetting of staff members of the PPSA, donor funding to augment the budgetary constraints of the PPSA; outsourcing of investigations to various law firms; consequence management at the PPSA during her tenure; and the impact that the Nkandla judgment had on litigation costs at the PPSA (that would be because that was the judgement that definitively said that the remedial action of the PP would be binding); the reasons for the seemingly inordinate delays in finalising key investigations, such as Vrede and CX, and the scope and ambit of such investigations, and whether Adv Mkhwebane had unduly widened or narrowed them. That would include some of the investigations which had started under Prof Madonsela and were not concluded by the time she left office.
Ms Ebrahim said she understood from the application that no response was received from Prof Madonsela, but the Secretariat had been asked to confirm with her office that they had indeed received the correspondence from Seanego Attorneys, which they had confirmed and indicated that they were preparing a response. However, they had not received the same from Seanego.
Not every aspect of the list she had just read out strictly spoke in the motion. Moreover, it must be borne in mind that Adv Madonsela, and how she conducted herself as PP and what decisions were taken when she was in office, were not before this Committee and scrutiny therefore did not fall within the mandate of this Committee. The motion was not a comparative exercise.
Minister Pravin Gordhan
Lastly, there had been a request to subpoena Minister Gordhan, who was sought concerning the charge of incompetence which laid against the PP as it related to the Pillay pension matter and the so-called SARS ‘rogue unit.’ He was sought to clarify and test some of the testimony given by Mr Van Loggerenberg and Mr Pillay. In his correspondence responding to the request to appear voluntarily, Minister Gordhan listed a number of questions on which his evidence was sought. The letter to him had listed a number of questions, including whether he had established the ‘rogue unit’, whether he had requested that that unit be housed within the SSA, and if he had requested funding from the former Finance Minister Trevor Manuel for funding of that unit. The correspondence also raised questions about whether he had approved the pension pay-out to Mr Pillay.
Mr Gordhan had responded to the request and declined to appear on the basis that the information sought from him was not necessary to determine the veracity of the charges against the PP or for the proper performance of this Committee's functions. He had noted that he was not involved in the investigation, drafting or issuing of the reports in question, and that that information could be obtained via less restrictive means in the form of the numerous affidavits he had already submitted during court processes. He also noted that he had not made any submission to this Committee calling for the removal of the PP. His affidavits were extensive and there were sworn statements relating to this matter. They were already before the Committee.
The Committee was therefore advised to consider the principles that she had started with as regards relevance to the motion, whether the witness had personal information or knowledge, whether there were less restrictive means to obtaining the information, and whether the information was, in fact, necessary for the Committee to determine the question of whether the PP had misconducted herself or was otherwise incompetent as alleged. The Committee had to note that even if it decided to summon a particular person, it would still be necessary, once that person appeared, to manage the ambit of the evidence. Therefore, while the Committee may feel that some of that evidence was relevant, it may be that other evidence and other questions may not be relevant to the work before it, and that was something that would have to be managed in the case that the Committee did decide to summons any of these persons.
Ms Ebrahim said she had raised here concerns about the Committee not getting into sub-enquiries, because this could have the consequence, even inadvertently, that it may lose focus. Any decision to summons would still require it to follow the process as set out in the Powers Act, so it would need concurrence from the Speaker. It would need to direct the Secretary to Parliament and issue the summons. This, of course, would take time, so one would need to allow for that. However, through the Chair, she had addressed correspondence to the PP indicating that notwithstanding that this request was going to be made, she should be ready to proceed with her confirmed witnesses when the Committee resumed next week. The witness list provided had eight confirmed witnesses, of which two had already appeared.
Two other matters were not completely on point, but were related, and she did not want them to get lost. One was whether Members wished to call Ms Erika Cilliers -- the initial investigator in the Vrede dairy matter in the office of the Free State, where she was based. She had been approached by both the evidence leaders and the PP’s team, and had declined to testify. At the end of last year, it was Mr Herron who had raised a question on whether they were going to call her, and there was a discussion ensued in the Committee between Adv Bawa and Adv Mpofu. They had indicated that they did not intend to take steps to secure her presence before the Committee, so there was no request as regards her. However, in light of Mr Herron’s request, she just wanted clarification on whether the Committee sought to hear from her or not, in which case it would require a summons. For recordkeeping, it was important to have a decision on that.
On a separate note, there was the ongoing issue regarding the recall of Mr Van Loggerenberg, Mr Pillay and Ms Baloyi, which had been raised a number of times after those persons had appeared before the Committee. There also seemed to be an ongoing request that the Committee reconsider its decision to summons President Ramaphosa. These matters in fact formed part of the current review process before the Western Cape High Court, and were due to be heard on the 7 and 8 February. However, nothing would prevent the Committee from deciding to recall any of those witnesses if the Committee was so inclined to do so. Given that they had declined to come voluntarily, and attempts had been made after the request from Adv Mpofu to secure their further attendance, it would also be necessary to issue summons concerning those persons. Members would recall that the letter had been tabled that was sent from the attorneys of Mr Van Loggerenberg and Mr Pillay, which had indicated that their clients were extensively cross-examined and that they were also subjected to intimidation, bullying, harassment and embarrassment, and that their characters had been impugned. Therefore, they were not willing to return. They also said that the questioning was repetitive, argumentative and irrelevant. Nonetheless, Mr Van Loggerenberg had agreed to answer any questions if there were any additional questions in writing, but he was not prepared to come and give further evidence orally. Mr Pillay had indicated that he had undertaken to come for only one day. Ms Ebrahim asked for some direction on that, because if the Committee did intend to recall any of those people, it would require a summons, and she would prefer to get all of that done in one application to the Speaker in the interest of time.
The Chairperson thanked Ms Ebrahim for her comprehensive input and advice to the Committee, adding that it had benefited greatly from the support the legal team had given. It was important that this was considered before it got into any deliberations.
Prof A Lotriet (DA) agreed that Adv Ebrahim had given them a very thorough rundown and explanation, and also direction in terms of the different applications to summons witnesses. She suggested that the Committee should not now infer any kind of subjective motive on the side of the Public Protector, but should look closely at the actual merits and substantive part of why these witnesses had to be summonsed. She agreed with Adv Ebrahim that he could not really find specific relevance or additional information that would be of assistance to this Committee in coming to a final decision. She therefore supported her interpretation and analysis of the different applications to summons witnesses.
Dr B Holomisa (UDM) said it would be a wise decision on the Committee's part to be seen to be supporting a view which stated that certain witnesses must not come and must not be summoned. For the record, they had not been consulted as this Committee as to who would be a relevant witness, chosen by evidence leaders, so he would advise the Committee to stay away from that and rather to allow every witness who had been summoned. For those refusing to come forward, the law must take its course. There were procedures to force them to come forward. For the Committee to be seen to be selective, or to say it did not want witness X, after not having given time to the Public Protector to explain to the Committee why she wanted witness X, involved entering a dangerous zone. The Committee had to tread carefully on this.
Mr B Maneli (ANC) agreed that the information shared with us by Ms Ebrahim had been helpful in understanding each of the applications made. While he agreed with most of them, he wanted to address two issues that had been put forward. They had been given a warning initially when there was a flood of letters that had come before the Committee, and that they may need to work on those from the back-off perspective. There was a need to come to a determination as to whether there were matters that required the Committee to make a decision or not, especially from the point of relevance, so they may want to come back to this issue. He also felt more consideration should be given to the issue of the witnesses who had been called.
In this case, the second point involved the part of the former PP, Prof Madonsela. He understood it should not be an issue of comparison, but they did know that some of the key reports they were dealing with were part of the handover process. There had always been a disjuncture in terms of what had been there before, and whether, indeed, one had started a new investigation that had led to gaps that might have been there. He thought there was also an appreciation of the fact that from what had been shared thus far before the Committee, there had not been a proper handover. He was also concerned that people may be summoned who would not know what they were being called for.
Otherwise, he agreed that the Committee had enough information before it.
Ms D Dlakude (ANC) said that when it came to Ms Mazzone's appearance as a witness, she really did not think that it added value to this Committee, because what she had done was to collect evidence, details of court cases and court judgments, and put together this motion on behalf of her party, she did not think she was really involved in all of these matters. As for Prof Madonsela, because she left with some of the investigations not being finalised, the Committee could consider her appearing before this enquiry so that it got a gist of where she had left off. It might also have some other questions it might want to ask her. The issue of the President appearing before this Committee had been dealt with many times, and they had exhausted it, So they should just leave it where it was. Concerning Minister Gordhan and Mr Pillay, they had submitted affidavits to the court which made a judgment on these cases. This was a parliamentary enquiry, and they could not allow a situation where they would come back and reopen the court litigation, so they were not going to do that. Concerning the Deputy PP, Kholeka Gcaleka, she wanted to agree with the legal adviser that the issues involved the former Deputy Public Protector, and it would add value if maybe they called the former DPP called before this Committee.
She also wanted to agree with Mr Maneli that behind the scenes, with the evidence leaders and the Parliamentary Legal Services, the Chairperson could assist this Committee because they no longer wanted to drag out proceedings or waste time concerning witnesses. It could not be open ended -- one way or another, they needed to take a decision to say that now they were closing on these witnesses. Otherwise, this enquiry would go on and on, so they needed to come to a conclusion not to allow any more witnesses, and that this was the cut-off number.
Ms M Sukers (ACDP) said she wanted to support some views that had been highlighted, such as what Mr Dlakude now had expressed, which was the set timeline for the Committee to conclude its work and the commitment that they had to ensure that they fulfilled their mandate and that everything they did should be within that framework. The role of the legal advisor was really valuable to Members in making decisions. When it came to the witnesses that the Committee had been asked to assist with, she shared the view of Mr Maneli regarding Prof Madonsela’s appearance adding to the value of the work, and re-evaluating, especially in light of charge 11.1 and the resource planning within the Office of the Public Protector, in addition to what had now been mentioned by Ms Dlakude.
Regarding the rest of the witnesses, they should acknowledge that both Mr Pillay and Mr Van Loggerenberg had been before this Committee. In fact, Mr Van Loggerenberg had been before the Committee for two days, and Mr Pillay’s initial time had been extended and he had made himself available beyond that, even though he was out of the country. He therefore fully agreed with what her colleagues had said here. The Committee had heard that evidence and there was no need for them to repeat witnesses or to hear those witnesses again. It needed to be within the ambit of relevance and how it supported us to fulfil what they needed to do within the specific timeframe.
She added that what had been said by Adv Ebrahim was important, as many times during 'the gymnastics' of last year, it got lost that actually the Committee represented the public, which was their primary focus -- to do the work for which they had been put in Parliament. They were now seeing witnesses replying as they did because the chickens had come home to roost in terms of how witnesses had been treated, which had been highlighted in their correspondence. She was bringing that forward because it was important for them to recognise that the treatment of witnesses had had an impact -- not only on them, but on the work of the Committee and the way that the public viewed the Committee. Going forward, what that should be paramount for was to ensure that witnesses were not abused, their rights were not trampled upon and that further gymnastics did not impede the work of the Committee.
The Chairperson said he wanted to be very specific and detailed on how they summarised this discussion. He did not want to be general and have an abstract outcome, and would ask for Members' input one by one. He started by saying his proper understanding and recollection after listening to the presentation and advisor of the legal team, having read the correspondence that had been sent to us and having participated in the enquiry up to so far as Members, they were of the view that the former Public Protector, Prof Madonsela, must be interacted with by the Committee. Was there agreement that she could greatly assist this Committee in terms of its work?
Ms Dlakude agreed, and was seconded by Ms Sukers.
The Chairperson said it was also his understanding that they were of the view that Ms Bianca Mvuyana should be asked to come to the Committee?
Mr Maneli agreed, and was seconded by Ms J Tshabalala (ANC).
The Chairperson said there had been a suggestion from one Member that Ms Mvuyana’s testimony might be linked in terms of how they worked together with that of Mr Rodney Mataboge, and that there was a request that Mr Mataboge also be asked to come before the Committee to connect the dots between what Ms Mvuyana and what he would say. Was he reading that situation correctly?
Mr Maneli said this was on the basis of the presentation made by Ms Ebrahim. Initially, there was a suggestion that Mataboge to be called as voluntary, even though nothing as yet had been presented, so he was just looking at it from that point, and one could then correlate that. That was how that came up. However, Ms Mvuyana would still be important to the Committee.
Before asking again for any support for bringing in Mr Mataboge, the Chairperson explained that he was not one of those requested for a subpoena. He thought that what the legal adviser was saying was that even before Mr Maneli spoke, initially Mr Mataboge would have been on the list of the Public Protector's witnesses, but it did not seem to be listed anymore, and therefore that was before Mr Maneli had drawn a linkage between the two.
Ms Ebrahim said she had forgotten that Ms Mvuyana’s name was also on their list of confirmed witnesses. One would see from the letter that they had included an SMS or WhatsApp communication from Ms Mvuyana where she had said that if Mr Mataboge was not going to come, she would not come, so there obviously seemed to be something between the two of them, and they worked on the same investigations.
The Chairperson commented that that confirmed the linkage.
Ms Dlakude said that because of the link between those two witnesses, she would support that they are called to appear before the Committee.
The Chairperson said there had been a suggestion made that it might be important to consider interacting with the former Deputy Public Protector, Adv Kevin Malunga. He asked if there was support for this view.
Ms G Tseke (ANC) agreed to this proposal.
The Chairperson said a point was raised by the legal adviser on the issue of Ms Erika Cilliers, who had declined to appear. However, both the Public Protector's legal team and the evidence leaders had not requested that she should appear, and this issue was raised only because, towards the end of last year, Mr Herron had suggested it might be of help to interact with her.
Mr Maneli said this response was made by both the evidence leaders and the Public Protector’s legal team. After that request was made, it would have been difficult to get such a witness, given the time and the possible witnesses would be. More important was that because of the information that had been placed before the Committee, and to whom Ms Cilliers would have been reporting, they had material before them to work from. However, they also needed to be certain about the number of witnesses they called for the Committee to conclude its work at some point, as expected.
The Chairperson commented that Mr Maneli was suggesting that not calling Ms Cilliers would not harm the work of this Committee, in that they would have the relevant information if she did not come.
Ms Dlakude said she fully agreed with Mr Maneli. They had all the material information concerning the issue that she should have been called to appear before the Committee and testify, so they did not need to call her.
Ms V Siwela (ANC) seconded her view.
The Chairperson said Members would have been part of interacting with Mr Pillay, Mr Van Loggerenberg and Basani. They would have read their responses after a request to recall them, and also have read some of their written responses. What was the Member's take on these three concerning them being recalled or subpoenaed?
Ms Sukers said she felt strongly that these witnesses had appeared before them and had done their civic duty to approach the Committee. They had been treated abysmally in the Committee when they were cross-examined, and she fully accepted their reply. The Committee had covered and had heard their testimony extensively.
Mr Maneli seconded Ms Sukers' view that they did not need to call them again, because it was not a matter of not cooperating. They had cooperated to a point where they had been given ample opportunity, but they could do that in writing if they had anything to submit.
Ms Siwela supported Mr Maneli.
The Chairperson said it was his understanding that there was a strong view that interaction or bringing in Ms Mazzone would be unhelpful, and that she did not really have the personal knowledge of the issues she raised in the motion, and that recalling or subpoenaing her would be immaterial?
Ms H Denner (FF+) said that as Parliament had considered a motion by Ms Mazzone, it was a motion put through by Parliament. Calling her to come and testify before the Committee would be unnecessary. Everything was covered in the mandate and all of the affidavits.
Mr B Nkosi (ANC) seconded Ms Denner.
The Chairperson took the Committee to the next witness of the current Deputy Public Protector, who was the Acting Public Protector. His understanding was that there was a strong view that many of the things in motion were not under investigation, and that they were also related to a different period. There was also an issue of relevance concerning her. What were Members' views?
Ms Tseke suggested that the Committee should not call her.
Ms Siwela seconded her.
The Chairperson asked if Members had agreed that they wanted former Deputy Public Protector Malunga to come.
Ms Dlakude said that was correct.
The Chairperson said the next witness that had been requested to be subpoenaed by the Committee from the Public Protector's team was that of Minister Gordhan.
Ms Siwela said it was not necessary to call him.
Mr Maneli said he was seconding the matters that had been raised in the courts, so there would be no need to call him.
The Chairperson said the next witness on that list that had also been requested was that of 'Mr' Cyril Ramaphosa. He had been called as a witness in that way, and not as the President. The Committee would have attended to this matter, and made its own decision when this request was made much earlier, on the basis of the information available to it. There were issues of relevance that Mr Cyril Ramaphosa would not be called or subpoenaed to come to the Committee. What they now had was a repeat of that request, with no additional information or new information about what was different now from then.
Ms Dlakude said the Committee had dealt with this matter several times, and had exhausted it, so they should leave it there. They had dealt with it as a Committee, and taken a decision. Mr Ramaphosa would not add value as per the charges before this Committee.
Dr Gondwe said she just wanted to agree with what Ms Dlakude had said. They had received a legal opinion on this matter, so it was an open and shut case and there was no need to call Mr Ramaphosa as a witness -- it would not add value to the work of the enquiry in any way.
The Chairperson asked if there were any other witnesses that Members thought they had missed that they thought should be called. So that, before I summarise this, you do not want to come back here.
Ms Ebrahim said she did not want to throw a spanner in the works, but unfortunately, it came with the territory of having to give legal advice. Mr Mataboge and Adv Kevin Malunga had not been requested by the PP, so they had not followed a formal process to try to secure their presence voluntarily. She, therefore, wanted to ask that when the resolution was taken, the resolution to summon them would be conditional upon them declining the Committee's request. They would indeed send a letter to them first asking for them to come voluntarily, and if they declined, they would move to the summons stage. However, they could not skip the important step of asking politely first.
The Chairperson said that, in summary, the Committee was saying:
- That Prof Thuli Madonsela, as well as Ms Bianca Mvuyana, would have to be interacted with, using the route of a subpoena process. Both would have been in the list requested by the Public Protector's team, and therefore the Committee agreed to those two, following that route. In addition, the Committee was of the view that the evidence leaders must do further work beyond these witnesses.
- That the Committee that Mr Mataboge's involvement would be very helpful, given the shared work he would have been doing with Ms Bianca Mvuyana.
- That Rodney Mataboge must be asked to appear before the Committee, and this was not a subpoena. He would not have been asked before, and that process must commence. The same process must therefore commence in relation to the former Deputy Public Protector, Adv Kevin Malunga.
- That the Committee declined the rest of the list requested by the Public Protector in terms of subpoenas.
- The Committee was of the view that it did not need to bring Ms Celliers in, because it had detailed information on what she would have been involved.
- The Committee was of the strong view that it needed to interact immediately with the relevant stakeholders through the Committee Chair, and that it must stick to its timelines.
Consideration and adoption of minutes
Ms Tshabalala moved the adoption of the minutes of 1 December 2022.
Ms T Legwase (ANC) seconded.
The minutes were adopted.
Ms Dlakude moved the adoption of the minutes of 5 December 2022.
Dr Gondwe seconded.
The minutes were adopted.
The Chairperson told Members they would meet in a hybrid resumption of the enquiry from Monday, 30 January, at 11h35.
The meeting was adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Holomisa, Dr BH
Joemat-Pettersson, Ms TM
Legwase, Ms TI
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Mananiso, Ms JS
Maneli, Mr BM
Nkosi, Mr BS
Siwela, Ms VS
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Tshabalala, Ms J
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