PP Inquiry day 51: Bianca Mvuyana: postponed; Non-payment of legal fees

Committee on Section 194 Enquiry

13 February 2023
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

The Committee dealing with the Section 194 Inquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office decided to postpone its hearing of Ms Bianca Mvuyana’s testimony from today to Wednesday, 15 February, due to the unavailability of the PP’s legal defence team.

Adv Mkhwebane, in her opening remarks, indicated that her legal team had written to the Public Protector of South Africa (PPSA) on 31 January to inquire about the payment of invoices submitted at the end of November for work done at the inquiry in August and September of last year. Ms Fatima Ebrahim, parliamentary legal advisor, said that in reply, the PPSA had stated that payments totalling approximately R8.2 million had been paid on three different dates -- 14 September, 22 October and 22 November -- of which approximately R2.8 million was in relation to costs incurred as part of this Inquiry, with the rest presumably relating to the entity's ongoing litigation processes. The letter also stated that the PPSA undertook to pay 33% of the outstanding fees, as per the invoices submitted on 13 December by the PP’s legal team, and that it would endeavour to pay this amount by 2 February. However, according to Adv Mkhwebane, this payment had not yet been made. As a result, her legal team refused to continue its work in the proceedings until such payment was made.

The Chairperson of the Committee, at the request of Adv Mkhwebane, said that the Committee would intervene and assist in resolving the issue between the two parties. Furthermore, he underlined that these events would not delay the Committee’s work any further, with proceedings expected to continue on Wednesday and Thursday of this week.

Meeting report

The Chairperson said that when the Committee resumed on 30 January, some concerns were brought to his attention. There had been allegations about some difficulties involving issues of payment for the Public Protector, and he had requested that they be put in writing. This had happened immediately, and when they last met on 1 February, those difficulties had been tabled. As Chairperson, he had sent an urgent and brief correspondence to the Public Protector of South Africa (PPSA) for clarity. Today, Mr Thembinkosi Ngoma, the Committee Secretary, and Ms Fatima Ebrahim, Parliamentary Legal Advisor,  would quickly take the Committee through and share that trail of correspondence so that they could start with that and get it out of the way. They had given the PPSA a deadline of 6 February to respond, and they were able to respond the following day.

Input by Parliament Legal Advisor

Ms Ebrahim said she would give a very high level overview of what had transpired in respect of the issue of the alleged non-payment to the PP’s legal team. Members would recall that when they were last updated on 31 January, they had received correspondence from the PP personally, indicating her unhappiness with the fact that her legal team had not been paid, and the challenges that she was experiencing in securing this payment from the PPSA.

In response to the Chairperson's letter, the PPSA had explained that the delays were due to discrepancies in some of the invoices, and that they were doing a verification process before they would be in a position to make payment. They had also indicated that payments totalling approximately R8.2 million were paid on three different dates -- 14 September, 22 October and 22 November 2022, and of this R8.2 million, approximately R2.8 million was concerning costs incurred as part of this inquiry, so presumably, the rest had to do with the ongoing litigation processes.

The letter then also stated that there was an undertaking that they would pay 33% of the outstanding fees as per invoices that were submitted on 13 December, and that they would try to pay this by 2 February. This meant that the invoices that were now in contention were the ones submitted in December for work done in August and September in respect of the juniors, and as she understood it, work for Adv Mpofu until 6 December. There appeared to have been a delay in submitting that invoice. Seanego (law firm) would have submitted those invoices to the PPSA.

Ms Ebrahim said that on 6 February, they had written a letter to the PP, attaching a copy of the correspondence that they had received from the chief executive officer (CEO), in which they had reiterated their position that the Chairperson and the Committee could not interfere in the internal procurement processes of the PPSA, but that they had urged the CEO to take every effort she could to ensure that the matter was resolved and that the team was paid for services duly rendered, subject of course to any of the financial prescripts. On the same day, they also sent a letter to Mr Seanego, informing him of the arrangements that needed to be made in respect of the last batch of witnesses, because they were at the tail end of the enquiry now. They could confirm the appearance of Ms Bianca Mvuyana, an investigator in the Office of the PPSA, for today.

The evidence leaders had requested a backroom meeting for Thursday, 9 February, because Members may or may not be aware, but they were in court on Tuesday and Wednesday last week for hearings on the review, so this request was for Thursday. A meeting was eventually held at 3:30pm. It was attended by myself on behalf of Parliament and the evidence leaders -- the Secretariat was engaged with the State of the Nation Address (SONA). During that meeting, Adv Mpofu indicated that he was attending as a courtesy, and that they had received no instructions because of the payment issue. There was some confusion, and they asked whether the mandate had been terminated. Adv Bawa had attempted to put the question to Ms Nafeesa Patel from Seanego, but Adv Mpofu had indicated that she would not have an answer. In any event, because they had now indicated that they had not been paid, Ms Ebramim had then excused herself from the meeting. She placed an urgent phone call to the CEO, who confirmed that 33% had indeed been paid that day, but that due to some issues with the financial systems, it had not been paid earlier. So it was paid on that day. Now that they were in this meeting, she could confirm that. She also indicated that a further amount and a second tranche would be paid the next day, which would be Friday, 10 February. That would bring it up to approximately 74% of the money owed.

At that meeting, they should obviously have discussed the programme and so on, but because the legal team had indicated that they did not have instructions, and that they were not able to prepare that entire week. However, her understanding from the meeting was that if the undisputed amounts were paid, then the team would be in a position to proceed. The team also indicated that they had difficulty getting hold of Ms Mvuyana, so she followed up with a text message indicating that the PP’s team would like to get hold of her. She had mentioned that she was ill, but she was then back in the office and she had shared her phone number with the team, and had shared Ms Patel’s number with Ms Mvuyana as well. Adv Mpofu responded to her message when she informed them that hopefully everything would work out, and a full report would be given.

She said they had taken it upon themselves to share with Ms Mvuyana the documents in the Committee's possession that may be relevant to her testimony, because Members would be aware that she had not submitted a statement. That was all done that same afternoon. During the meeting, they had been told that they could expect a letter from the PP, and indeed that letter came in shortly after that meeting was adjourned. It was a letter from the PP personally indicating that because her team had not been paid, she would not be in a position to give them instructions, and that she would appear alone today to explain the situation to the Committee. That letter was received after she had already confirmed with the PPSA that the 33% had been paid, and that a further balance was going to be paid the next day, which would amount to the 74% of the amount owing.

On Friday, 10 February, she had alerted the PP’s team that approximately R2.1 million had been paid the day before -- being the 33%  -- and that a further amount was being processed as they spoke, and that was in the morning. She also shared the draft programme, which noted that Ms Mvuyana was scheduled to appear today.

On the same day, they addressed a further letter to the PP, indicating that the first tranche had been paid and that the second tranche would be paid, which would amount to the 74% of the outstanding fees. They had also indicated in that letter that the team should be prepared to question Ms Mvuyana, as she had been summoned at the PP's request, and had appeared on her first witness list and then subsequently been on her confirmed witness list for some months already. They had indicated further that the non-consultation with Ms Mvuyana would not be an impediment, as there were clearly questions that the PP wished to put to her. Members would recall that in respect of Ms Mvuyana, there was a written application to summons her which set out the matters on which the PP wanted to question her.

Ms Ebrahim said it should be noted that at some point, Adv Mpofu had raised concerns that because the first witness list had been made public, and even though it was never marked confidential, there had been  a complaint that witnesses may be reluctant to appear. They had then offered their assistance in writing, and asked for proof of what had transpired -- which witnesses were now not wanting to appear voluntarily, and asking how we could assist -- but had never received any request in that regard to assist the PP.

They also indicated in the letter that the Chairperson had instructed Adv Bawa to iron out the logistics with Adv Mpofu for the coming week. Later that day, she received proof of payment from the PPSA of approximately R3.3 million, which was now the second tranche after the first tranche had been made the day before, and had sent that immediately to the team.

Also, in the course of the day, Mr Ngoma had also sent an email to Seanego, asking whether the mandate had been terminated. They responded that it had not been. He had also reminded them that Ms Mvuyana was due to appear today.

On Saturday, Adv Bawa had the opportunity to speak to Adv Mpofu, who had indicated that they were not in a position to proceed today, but in terms of the Committee process, they had not received any correspondence or application for a postponement or an adjournment or anything of the sort. This morning, after 09h00, they received a letter from the PP on the payment issue, and she understood the Chairperson would be giving the PP an opportunity to put her letter on record. However, before she did so, perhaps they could just ask Adv Bawa to confirm what had happened in her discussions with Adv Mpofu on Saturday, as that had not been a formal backroom meeting.

The Chairperson asked Adv Nazreen Bawa, the evidence leader, to respond.  

Adv Bawa said that without going into the details, Adv Mpofu was not in a position to tell her what the position of his team would be. She did not understand him to have difficulty. His team appeared to be having difficulty, while he was in Cape Town for personal reasons. He was going back to Johannesburg and he would liaise with his team. She had hoped to hear from him before then, but that had not materialised, so it was only this morning that she discovered they were not present.

The Chairperson said he had received a letter at nine this morning from the Public Protector, and thought that instead of him just explaining what the letter said, it was only fair to allow the Public Protector to quickly take them through that correspondence to complete the entire picture.

Adv Busisiwe Mkhwebane input

Adv Busisiwe Mkhwebane, the suspended Public Protector, started by thanking the Chairperson for his assistance in this matter. However, she wondered whether it was necessary for them to even write to him to intervene when people had the responsibility to play their part. She confirmed that they had written to him on 31 January after it had come to her attention that her legal team's invoices were not paid. Actually, what had happened was that invoices since the start of the inquiry in July had been paid only by the counsel. The counsel’s teams for July were paid in October 2022, and there were invoices for August and September which had been submitted either at the end of November or beginning of December which had not been paid. The issue was that her legal team had had to spend the December holidays without being paid. The schools were opening, and they had not been paid. They were investigating institutions failing to pay invoices within 30 days, but were doing that themselves.

After giving details of the delays and discrepancies she said the PPSA should have identified and rectified, she asked the Portfolio Committee why it had not taken action to ensure that her legal team had been paid. It did not help for the Committee to come back and say, "there were these mistakes which we have picked up." They were failing to pay an important legal team, which the Committee and Parliament knew should be paid for the work done. She did not know whether that had been done to punish her further, because one would find that other legal teams were being paid. Now they had come here and had been told about 74% -- was it fair? It was as if now paying 74% was doing people a favour – why not pay 100%? They had even refused to sit with the team to discuss all the 'nitty gritties' and resolve all those issues.

Coming to the issue of Ms Bianca Mvuyana, she was on our first list and all along, but being legally qualified or in any process, maybe in labour relations, one would not want to have somebody coming in and not know what they were going to be saying. One needed to sit with a person and understand what the issues were and what they knew about them, so that there would be no weakness coming in because one did not know what they were going to say. Unfortunately, although there had been communications with her, she had suddenly been unreachable, and indeed, there had been threats to some of the witnesses. She did not know what to say about providing proof. One could have a meeting, especially with the legal team, and the evidence leaders, and unpack all these issues. They would have to publicly speak about them, because there were comments made. There were witnesses who had been willing to come, but then when comments were made and there were threats, people would say, ‘I am going to lose my job’, or ‘I am losing my contract.’ Some institutions had pulled out their support from the legal team -- that was how bad the situation was.

She therefore thought that if the PPSA was able to be frank and open to the Chairperson, and also holding them to account as state institutions, the delay in payment should be frankly discussed, because one could not just come back after three days -- or in fact, after 30 days -- when they demand institutions, or service providers, to be paid within 30 days. It was a question of making sure that people do the work openly, they were paid, and were happy to come in and do the work, and it was frustrating that the very same people who were doing this every month, they were being paid. Contrary to even what the President had said, she was entitled to all the full benefits, after the Constitutional Court had pronounced on this matter.

The Chairperson asked Adv Mkhwebane to complete her presentation for the benefit of Members and everybody, as she had not indicated what she had explained in the letter, the difficulty she had today. He asked her to explain why she was alone here today, so that it was put on record. Could she also indicate if her attorney on record, Seanego, was also online? Thirdly, once a whisper had been shared with him, he immediately acted and said ‘let us formalise this.’ A lot of this was not happening in December or November, but it was never raised with the Committee then or himself. He wanted to be clear that there should be no blame game dragged into this. If by December, the submissions had been made to the PPSA, it looked like the December period had taken its toll and in January, she had been able to raise the issues with him as the Chairperson.

Adv Mkhwebane apologised for not going through the letter she sent this morning. She then also referred to his letter of 6 February, responding to her letter in which she had said: “Please be advised that soon after, you address the issue with the PPSA.” They then sent an email to my attorney, Seanego, attaching the spreadsheet they had promised my legal team, although that came only a week after the promised date. The spreadsheet raised some queries on the part of the attorneys' fees and also on the counsellors' fees. Like the PPSA letter, it had literally clarified the reasons for the PPSA's failure to honour the obligations of the legal team. “So I am informed by consulting that the PPSA only raised nine queries as far as their invoices are concerned. I am further advised that the very same queries had been raised and resolved in July 2022. Hence they paid the first invoice." At that point, Mr Van der Merwe informed my team that since he was still new to the position, he would like to liaise with Mr Sithole to get clarity. Mr Van der Merwe had indeed got clarity from Mr Sithole, and had then approved the invoices of the counsel team. However, he did not pay her attorney's fees, which really disturbed her because her attorney bore most of the disbursements such as printing bundles, accommodation, correspondence, fees, et cetera, which he paid from his own pocket.

It therefore raised suspicion that the same issues which were resolved in respect of counsel, after which their earlier invoices had been duly paid, were being reinvoked as excuses to justify the present delays. Her counsel team had conversed with the CEO and requested her to hold the amounts concerning the nine queries in abeyance, and pay the rest of the invoices. The issues raised did not even makeup 10% of the invoices. There was therefore no reason not to pay the undisputed 90% or more of the invoices in the meantime. Further, the  PPSA had promised that they would, in the meantime, pay merely 33% of the invoices by 2 February. They had informed my attorney that they would send him proof of payment on the same day that payment would be affected.

It was very regrettable that Mr Van der Merwe kept shifting the goalposts. As they spoke, the legal team had still not been paid. In fact, it was not paid immediately on the second, and she thought Ms Ebrahim had to intervene. This was another goal post which had been shifted. It seemed clear that either Mr Van der Merwe, or the CEO, did not understand the scope of the job of the lawyer considering some of the plainly absurd and non-queries they were raising, such as why did counsel charge preparation fees when the Committee was not sitting. So those were some of the issues which she had raised.

In the letter she sent this morning, she repeated that Ms Ebrahim had contacted the CEO and then PPSA had paid. “I was most pleased to hear from Ms Ebrahim that she had now received proof of payment for Seanego in the amount of R2 million which was paid, and was earlier informed that the amount of R3.3 million was currently being processed and that 74% would be paid. As such, I look forward to seeing you on Monday.” So I was saying I would be here today, but unfortunately, without being able to find the witness, and then finally finding the witness after the intervention of Ms Ebrahim. There was also the refusal by the PPSA to meet with the legal team, because if all these issues could be resolved, the legal team could focus on its preparations for this matter, instead of also looking for issues to be sorted out and the payments to be made.

She therefore felt that today the Committee was meeting to clarify issues online, and the issue of proceeding. She thought the best way was to get the Chairperson's guidance and urgently meet with maybe the mediator, or to delegate somebody to sit with the legal team and the secretariat. She did not know whether evidence leaders were necessary, as she did not think it impacted them. It impacted her legal team, and this had to be urgently resolved because there were still invoices outstanding for October to December. Otherwise, it would mean the same thing would be happening, so these issues should be resolved once and for all. She hoped the Chairperson found this in order.

The Chairperson thanked Adv Mkhwebane, and said that was certainly in order. She had not indicated if Seanego had joined her online today or not, and maybe they needed to check that. He would certainly give guidance towards the resolution of all of these issues, and would not confine the meeting to just himself as the Chairperson. Members had listened to Ms Ebrahim, as well as the explanations of the PP, so he asked if they wanted to have a quick interaction before he engaged with Ms Mvuyana and provided some guidance.


Mr X Nqola (ANC) said the Committee should welcome all these presentations. He wished that the case they were dealing with was a case of the PP's legal team operating under protest, and not with instructions having been withdrawn. He wanted to go on record, because, from what the evidence leaders and Ms Ebrahim were presenting, they were getting different signals. The second issue was concerning the remaining or outstanding amounts that had not been paid -- what then was the commitment? He expected that if the PPSA stated that they had approved the invoices and had paid this particular amount outstanding, therefore the remaining outstanding fee was going to be payable within this particular time. However, from what he was hearing, there had been no commitment in respect of that. He just wanted to get clarity because sometimes the Committee got different signals.

Mr G Hendricks (Al Jama-ah) said he was not only concerned about the outstanding payments, but also about future payments that may raise their head again and take up a lot of time of this Inquiry. He had been at a meeting of the Justice Portfolio Committee, where the Acting Public Protector had presented, and it was quite clear to Al Jama-ah that the costs of this hearing had bankrupted the Public Protector’s Office and they could not continue doing their work, and they may have to close down. There was therefore something wrong with the funding policy, especially where entities such as the PPSA could not anticipate such costs which they had not budgeted for. Going forward, it was quite clear that the PPSA did not have any money to pay, and would have to get financial assistance elsewhere.

Secondly, the Chairperson had also mentioned that this was a learning curve for all of them. It could not be that when an employer like the PPSA, in this case, had to pay the legal fees of one of its employees -- that the tap was unlimited -- and that it could result in what was happening now. Here was a clear example of the fact that one could not expect an employer to close down shop just to pay the legal costs of one of its employees, so there was something that they would have to learn from this case. He hoped there were not going to be future cases, but if they did arise, it would be a major problem. Obviously, in future, there must be a limit. In many hearings of this nature, one would find that employees had to pay their own costs, and they had been very generous in paying the costs of the employee in this particular case -- and it was an unlimited tap. The funding policy should indicate limitations on how much an employee could expect from the legal system.

Thirdly, as a Committee, they also had to be business-like. They had to look at the costs. Costs were very important, and maybe there could have been some settlement instead of pursuing this long route. They were a Committee that was looking at a particular mandate given by Parliament, but they were not there to hang anyone. One would find that in courts, in all matters of this nature, there was almost always an opportunity for some sort of settlement, plea bargain -- whatever one called it –  because eventually, one had to look at whether it was economically and financially viable to continue. It was known the Public Protector’s term of office came to an end, so all those opportunities seem to have been missed. It had been said that this was a learning curve, and he hoped they could learn lessons from these terrible mistakes.

The Chairperson asked if Ms Ebrahim to provide the clarifications that had been requested.

Ms Ebrahim said their understanding was that the 74% had been paid, and the balance was the disputed amount, and the PPSA was verifying those invoices. That was her understanding. She did not have a date when that would be paid, but had asked them to keep the Committee informed.

Adv Mkhwebane response

Adv Mkhwebane said she wanted to clarify to Mr Nqola that the amount for July had been paid in October, and all the issues or queries had been resolved. Now, another invoice has been submitted, and all these issues have been raised again. They were only paying now, and in her letter, she was saying 90% should be paid. Those issues, which were queries, involved only 10%, but they had been paid only 74%.

Adv Mkhwebane repeated her grievances over delays in payments, and meetings that never materialised. She also expressed concern that the Acting PP had sent three counsels to different court hearings when the PPSA was not a party, but they had paid them. Was it necessary for them to do that if they had concerns and issues with resources?

She asked whether the Chairperson wanted clarity on any matters from Adv Mpofu, who was in the meeting, although the Seanego attorneys were not on the platform. She stated emphatically that she had given them an instruction not to proceed until all the issues had been clarified.

The Chairperson said that as he was going to have to give guidance at the end, she should just continue to assist him on just one or two issues. Firstly, was it normal practice while she was at the PPSA for a July invoice to be paid in October? Was it because there was a practice that counsels got paid in 90 days? Was it because of that? Then, regarding the August and September invoices that were not paid in December, there had been a lot of concern -- was she perhaps aware when those invoice submissions had been made for payment to the PPSA?

He added that it would be important to get Seanego on the platform, because when one had a senior counsel (Adv Mpofu SC), the senior counsel was taken care of by the attorneys on record. So it was important that they deal with that quickly. Could she assist him on those very brief issues? In your understanding, was this a practice of the PPSA?

Adv Mkhwebane said no, it was wrong. It was against the PFMA and the prescripts. It was not 90 days. One should pay service providers within 30 working days, which was why the PPSA got the three clean audits. If one checked the comments of the Auditor-General (AG) in prior years, they failed to pay service providers within 30 days, so they had improved on that. The then CFO and the team had managed to ensure that that was done within 30 working days. So the payment of the July invoice, which was paid in October, still did not comply. There was also the to and fro, the ducking and diving, the ‘you didn't do this’, ‘you did not do that, ‘I am still new’, ‘I need to meet Sithole and everyone to clarify the issues.’

The Committee should have made sure by checking whether everything was on track -- calling a meeting, or sitting down with the Seanego team to clarify this issue. She had received a message now that Mr Seanego, unfortunately, was in another meeting, so he could not participate. But, as the SC had said to the team, he was willing to be here to clarify.

She told Ms Ebrahim the second tranche of money to which she was referring, had not been paid -- it had not reached Seanego’s account, and the SC could clarify that. So there were two portions of the money which were unpaid. Again, that could be clarified. The Committee should be holding the PPSA to account because that was why, when they were audited, they were audited based on that. That was why they even received complaints from service providers. If people were not paid within 30 days, then one was killing businesses like small, medium and micro enterprises (SMMEs).

The Chairperson said he was satisfied with Adv Mkhwebane's explanations. The further clarity he would have needed would have been from Seanego. At this stage, he would not bother her senior counsel.

Dr A Lotriet (DA) said that she was slightly concerned about the direction of this discussion. This was the Section 194 Committee. The holding of the PP to account fell under the Portfolio Committee of Justice, and Correctional Services, so she was not quite sure why this Committee was now being addressed in terms of considering people not receiving their pay, and the period in which payments were made, et cetera. Could they just clarify exactly what was within the ambit of this particular committee to intervene in the financial situation within the PPSA currently in terms of payments and the duration of when payments were made and so forth? This was really very concerning for her.

The Chairperson said it was a very fair question. To the extent that the payments would have affected the proceedings of this inquiry, as Chairperson, he had written a letter to seek clarity as the matter had been placed in the Committee, but the accountability of the PPSA was not to this Committee – it was the Justice Committee. Therefore, many of those issues would be flagged in that regard, and as Mr Hendricks would have indicated, last week, there had been a meeting with all of these entities, including the PPSA, by the Justice Committee. However, her concern was noted.

He asked Ms Ebrahim if the witness was here, because he would need to give guidance at the end, but he first needed to interact with the witness.

Ms Ebrahim said that before she did that, she wanted to put on record that they had just received a letter from the CEO of the PPSA, but she would ask the Committee Secretary to share that later with Members so that they did not engage further on this matter. However, he may want to look at it before determining the directions going forward. She had not read the contents herself yet.

Witness: Bianca Mvuyana

Ms Mvuyana was duly sworn in by Ms Ebrahim.

The Chairperson said Ms Mvuyana had been subpoenaed to appear before this Committee today, Wednesday and Thursday. Had she received that correspondence and programme?

Ms Mvuyana replied that she had, but had known about it only today. She did not know about Wednesday and Thursday, although it did say until such time as the witness concluded her testimony.

The Chairperson said their planning was that her testimony would be concluded on Thursday.

Ms Mvuyana said she had noted this.

The Chairperson said he wanted to get a few very brief clarities from her. They had made her take an oath so that whatever she said was on record and was done under oath. She would have been on the Public Protector’s initial list provided to this Committee on 24 August 2022, reflected in the confirmed witness list, and subsequently on 8 November 2022. When did she initially confirm to the PP that she would be prepared to give evidence?

Ms Mvuyana said it had been from the beginning stages, but she did not recall the exact date. There had been no official confirmation once the list was out. She had heard through hearsay that she was a part of the list, and that was it. She had spoken to the PP’s attorneys and confirmed that she would be available if necessary.

The Chairperson asked if she was aware that her assistance was required for purposes of consultation.

Ms Mvuyana questioned whether this meant by the PP’s team, or the evidence leaders, or both.

The Chairperson said it did.

Ms Mvuyana replied that she was aware.

Discussion with witness

The Chairperson: When did you indicate that you were no longer prepared to do so? If you did.

Ms Mvuyana: I believe it was last year, when I now decided that I had some reservations. Some other team members that took part in this particular investigation had indicated non-availability, so I had then confirmed with Seanego that I would not be willing to come voluntarily.

The Chairperson: So your coming was subject to the availability of other team members?

Ms Mvuyana: Yes.

The Chairperson: Okay, thank you. And when did you receive the letter that you were going to be subpoenaed? When did anybody from the PP’s team contact you for purposes of consulting with you?

Ms Mvuyana: The first letter that was sent to Parliament was sent to me by Seanego, requesting the Chair to subpoena me. That letter -- I do not recall the date -- was sometime in January. Mr Themba Ngoma also sent me the letter, and then I awaited the subpoena.

The Chairperson: When in the last week were you contacted for purposes of consultation, and when did you revert back to them?

Ms Mvuyana: I was contacted on Tuesday by the PP herself and Seanego. I did not answer the phone. I then called them back on Thursday, and informed them that I was now available to speak on Thursday, which was when I returned from work.

The Chairperson: Did you do that only after Ms Ebrahim had contacted you?

Ms Mvuyana: Yes.

The Chairperson: The Committee has also been informed by Adv Mpofu that witnesses had been withdrawn from giving evidence on behalf of the PP as a consequence of their names having appeared in court papers. Were you one of those witnesses?

Ms Mvuyana: Yes, I was.

The Chairperson: Given that the evidence you would give, having agreed to give evidence to the PP was going to be made public, could you explain on what the basis of your reasoning for withdrawing was, and why it was that the witness list on which your name appeared had any material relevance?

Ms Mvuyana: It was mostly a personal reason, based on just not being wanting to be exposed to any sort of victimisation ...just a general protection of the way I am viewed in the investigating profession, and that was mostly it. There was a thought process that Parliament should carry this mandate that it had been given by the President fairly on its own, and only when it was absolutely necessary could I then be engaged. I felt that my contribution would be minimal in relation to all the evidence that would be led.

The Chairperson: Just a slight assistance and correction for you. We are a Committee established by Parliament. We are not doing anything on behalf of the President. That is what is called the separation of powers. The President has his own role to do and this Committee is doing a constitutional duty – just so that you have that on the record.

Ms Mvuyana: Thank you.

The Chairperson said he would pause there with his interactions and clarities with Ms Mvuyana, and to give guidance going forward, he was going to make a ruling. Once he did that, he would share what Members were saying. Miss Mvuyana had been subpoenaed on behalf of the Public Protector, and had received it for today. He had clarified that in terms of the programme, she was expected to be with the Committee on Wednesday as well as Thursday, and she had no problem with that. It was very clear that they were not able to proceed today.

Adv Ebrahim said she just wanted to remind the Chairperson of the letter that had come in that they had not had a chance to look at. She did not think it would impact anything, but perhaps he might want to take a five or ten minute adjournment to just look at it.

The Chairperson said they would take a ten minute tea-break, after which he would be addressing the Committee and make a ruling and give guidance in terms of what would happen going forward, having listened to the PP as well as the clarities that had been put on the table. The meeting adjourned for a ten minute tea break.

On the Committee's return, the Chairperson asked if the PP wanted to say something before he proceeded.

Adv Mkhwebane said she did. Before he decided on the letter, she accepted his guidance, but she could not proceed without her legal team. However, as she had said, the legal team had requested Adv Mpofu to represent the process, and she had heard there were questions to Ms Mvuyana about Adv Mpofu, so it was just a question of allowing him to clarify those issues before he possibly reached a conclusion. However, the most important thing, was the need to pay the whole amount. She requested that he urgently intervene and call everyone to clarify the issues, so there were timeframes and they could proceed smoothly without any challenges.

The Chairperson replied that he was comfortable that whenever he needed to get her senior counsel to respond, he would do so. For now, everything that he needed was in place here.

He outlined how the Committee was going to proceed. Their programme for this week had the former Deputy Public Protector, Adv Kevin Malunga, coming to testify in front of the Committee on Friday, so he wanted to confirm this part of the ruling, that that day stood. Coming backwards, they had programmed today, Wednesday morning and Thursday morning to have Ms Mvuyana come to testify.

They did not have any session tomorrow, so they immediately closed this meeting, they were going to follow up on those commitments. The letter they had just received spoke about that commitment to follow those through in the next hour, to ensure that all of those matters were attended to. In that regard, the rest of the day, which was supposed to have been a day with Ms Mvuyana, and tomorrow, they would be asking the team of the Public Protector to prepare and interact with the witness. The Committee wanted to have the witness on Wednesday morning, and would allow the Public Protector's legal team to lead with its questions for the rest of that day. On Thursday, they would give an opportunity to the evidence leaders.

He warned the Members that they were going to be inconvenienced, because he suggested they could conclude on Thursday with their questions immediately after the reply by the President. Therefore, their programme for the week would not be disrupted. Was there any Member who disagreed with that?

Mr B Nkosi (ANC) asked if by then all these issues from the Public Protector that was before them would have been resolved, because if they were not resolved, he foresaw they would be returning to the situation they were in today.

The Chairperson replied that the commitment expressed in writing was that matters that were in dispute immediately after this meeting would be attended to. What was confirmed was that a substantial amount of payment had been made – up to that 74%. Part of the engagement was going to ensure everything was done, but it was done legally and within prescripts. They were not going to force the hand of the PPSA to do things outside of the prescripts -- they had no power and mandate to do that.

The PP had spoken about issues of mediation and negotiations, all of which would be seriously engaged in, but not in a way that overlooked certain prescripts that must be had to be done, because this was an inquiry that even looked into those issues. He also wanted to ensure a commitment to the timelines for sorting these issues out.

Dr M Gondwe (DA) requested that Members get a revised programme in light of some of the changes that had been highlighted so that they would know exactly what time they were starting and ending on each day.

Ms M Sukers (ACDP) said she hoped nothing interrupted this programme. The biggest commitment here was the commitment of this Committee’s timeline and the process they were involved in. She also wanted it on the record that in the context in which they had been talking about spending on legal fees, millions of South Africans could not afford that, and as a Committee they should be sensitive to that. Lastly, in terms of the witness protection, as was brought up by the Public Protector, she again wants to stress that it was not only for the witnesses that were coming now, but the witnesses that had been part of this process before had also suffered indignity. They also suffered character assassination in this process.

Adv Mkhwebane again appealed urgently to the Chairperson to intervene in the payment of the legal team. It would not consult with Ms Mvuyana until their money had been paid. It was not a protest, but they could not work if they were not paid. They should be paid before they could even consult with Ms Mvuyana.

The Chairperson, in his summary and conclusion, said they were going to do everything they could to ensure that there was a very clear process regarding what had been paid, following what prescripts. If there were reasons to be given about any outstanding amounts, that would have to be clearly defined, and they were going to assist in that regard. He agreed with the Public Protector that they were not, as the Committee, going to change the rules and prescription for payment procedures, but they would make sure that they reached out to ensure that this process was not affected by those issues.

The meeting was adjourned until Wednesday, 15 February.


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