PP Inquiry day 53: Rodney Mataboge

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

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 Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, resolved not to entertain the demands made in a letter by Adv Mkhwebane; it rather found the tone of her letter “objectionable”.

On 13 February, Adv Mkhwebane informed the Committee she could not give her legal team instructions because they had not been fully paid. The Committee could not hear any testimony on that day.

The Committee Chairperson subsequently wrote to Adv Mkhwebane, stating the delay about the legal fees "wastes not only precious time of all persons involved … but also the limited resources of both Parliament and Public Protector South Africa (PPSA) which will carry the costs of your legal representation and travel".

The Committee asked Adv Mkhwebane to raise her concerns in a letter of her own. In this letter, Adv Mkhwebane has indicated that she would want to make an oral representation on the initial letter by the Chairperson and also insisted that the letter be withdrawn and that the Chairperson apologises unconditionally and undertakes to refrain from similar conduct.

The Members of the Committee who participated in today’s proceedings had indicated their support with the manner in which the Chairperson had handled the matter in his correspondence.

Later in the day, Mr Rodney Mataboge, Chief Investigator in the Office of the PP, appeared before the Committee. He made it clear at the start of the proceedings that he was not a witness for either side, and that he was there to assist the Committee to the best of his ability. He also opted not to provide the Committee with a statement or affidavit prior to him appearing before it.

Today’s questions by evidence leader, Adv Nazreen Bawa, SC, mainly revolved around the investigations in which Mr Mataboge was involved. This includes the alleged breach of the Executive Ethics Code by Minister Pravin Gordhan, the Ivan Pillay/SARS pension matter, the Bosasa/CR17 investigation and the second Vrede Dairy report.

Mr Mataboge was not involved in the first Vrede report, which was reviewed and set aside, and forms part of the motion against Adv Mkhwebane. Mr Mataboge told the Committee that he has top secret security clearance, and he believes that is part of the reason he was given these investigations.

Meeting report

[Draft report]

Opening remarks

The Chairperson welcomed the Members in room M46 and on the virtual platform. He also welcomed the support staff, members of the media, and members of the public on the YouTube channel and channel 408. He said that this session was to have an ordinary Committee meeting until 13:00. The Committee will resume at 14:00 to start with the inquiry.

This session will address a few in-house matters. The Committee Secretary would take the Committee through the summary of correspondences that was shared with the Members. This relates to an issue that was raised last Thursday, 16 February, where the Chairperson had requested that the Public Protector (PP) and her legal team respond to the Chairperson’s letter in writing. Members will have an opportunity to comment on that, and the Committee will take a decision on the request from the PP’s team.

This session was also for the Committee to go through the revised draft programme and finalise any outstanding minutes.

Letter to Chairperson on legal fees
Mr Thembinkosi Ngoma, Committee Secretary, said that there was correspondence that had gone out to the Public Protector, and the Committee had awaited the response thereof. The Chairperson received the response on 17 February, and had accordingly responded to that letter on 18 February. Ms Fatima Ebrahim will talk about the details of the letter.

Input by Parliament Legal Advisor
Ms Fatima Ebrahim, Parliamentary Legal Advisor, said that when the Committee had met last week Thursday, it was understood that it would be business as usual, and that the Committee would proceed that day with the evidence of Ms Mvuyana. However, the Committee Secretary had spoken to the PP the day before, who had indicated over a telephone call that she would not be giving instructions to her team until such time as all the monies that were outstanding, in terms of invoiced amounts, were paid by the Public Protector South Africa (PPSA). Following that, the Chairperson then sent a letter to the PP on 15 February. When the hearings commenced the following day, on Thursday, issues around that letter were raised and the PP wanted an opportunity to speak to the content of that letter and for her team to raise certain objections. The Committee made the decision that the PP should respond in writing, so that the Committee can engage with her response. That response was duly submitted, Members have been provided a copy of the letter, dated 17 February. The letter is in the name of the PP, it does not come from her attorneys.

The letter raises various objections to the letter that the Chairperson had penned to the PP. In particular, it contains several demands. It is set out as a letter of demand. The first being that her team should be allowed an opportunity to present orally on the issues that they have taken with the letter that was written. That the offensive letter be unconditionally withdrawn. That an apology is issued by the Chairperson, and read into the record. That the Chairperson also undertakes to refrain from repeating the conduct in future. The letter was copied to the Speaker and the Commission for Gender Equality, and it indicated that it will be referred to these bodies for investigation.

What happened subsequently is that a letter of response was addressed from the Chairperson to the PP. The Chairperson indicated that in terms of the issue of an oral submission, the matter will be raised in this Committee, because it is Members of this Committee that asked that the PP put her response in writing, and it was the Committee that wanted to engage with that. An opportunity will be given to Committee Members this morning to engage. The Committee Members will decide whether they want to allow for an oral submission or if what is on paper is sufficient to deal with and dispense with the matter. The reply also indicated that the Chairperson would not issue an apology or withdraw the letter or make any undertakings in respect of future conduct.

The Committee are to engage with those two pieces of correspondence, which would be understood against the background of what had unfolded in the week earlier. The Committee will then determine if there are any steps it wishes to take in dealing with the matter.

The Chairperson thanked Ms Ebrahim for summarising the two letters. He said that the Members would have received and read it for themselves. He gave an opportunity to the Members to respond to the issues of the correspondence, in order to assist the Committee in terms of clarifying its own way of operating.

Mr K Mileham (DA) said that he fully supported the Chairperson’s position as laid out in his response to the PP’s letter. He felt that the Committee should follow the route as laid out in that letter.

The Chairperson noted Mr Mileham’s support of the direction as determined by the Chairperson, in response to the letter of the PP.

Dr M Gondwe (DA) supported the letter that the Chairperson had drafted in response to the letter of the PP. She said that this Committee has a job to do, and she would like to see the Chairperson carry out the mandate of this Committee. The Committee has an oversight role to play in this Inquiry. She was stunned that the PP’s letter contained demands, and she felt that this spoke to the level of distain and disrespect that Adv Mkhwebane’s team has displayed for the process that the Committee is undertaking. It is very concerning, and it is something that this Committee should take up.

She noted that she and Mr Nkosi had consistently said that the Committee should explore what legal recourse it has, because it cannot carry on like this. The Committee are clearly being prevented from doing its work. The letter had accused the Chairperson of throwing tantrums and insults. If the Committee has seen tantrums and insults thrown, then it has come from the PP’s legal team.

Ms J Mananiso (ANC) supported the letter that the Chairperson had written in response to the PP. She noted that the back-and-forth correspondence is negatively impeding the Section 194 process. She hoped that this issue would be dealt with so that the Committee can exercise its mandate.

She recalled that she had previously said that the backroom office had never really assisted this particular process, because the Committee are now dealing with Human Resources (HR) issues. The Committee are dealing with issues of payments, the Public Finance Management Act (PFMA), and things that are not in its scope. She was pleased with the Chairperson’s response and supported it.

Mr B Nkosi (ANC) agreed that the Chairperson’s response sufficed, and that it gave the Committee a clear indication of what it must do. He noted that the tone and language used in the Thursday, 16 February, meeting was transferred in the PP’s letter, which is something that he finds extremely objectionable. The letter was in the hand of the PP, and she understood what language is acceptable in this forum. He felt that the Committee should bring to her attention that using such language is really not acceptable.

He asked whether there was an agreement that the PPSA would cover the expenses of the legal representation of the PP. He generally understood that people usually pay for the legal representation themselves, and that the institution does not bear the costs. He sought clarity on this, because the Committee would need to understand that going forward. If this Committee faces a similar situation, then it would have to make an intervention. The Committee had intervened in a matter that does not belong to it.

The Chairperson referred to the PP’s request that her legal team be given the opportunity to present their objections to the Committee. He suggested that this could be allowed on the day that the PP comes before the Committee to give her testimony, as this would not affect the time of any other witness. He asked the Committee for their input.

Dr Gondwe asked if the PP and her legal team did not already air out all of their grievances during the Thursday, 16 February, meeting. She is not sure that the Committee would want to regurgitate everything that happened on that day. She thought that the PP and her legal team had already ventilated all the issues they had on that day, as well as in the written response. She agreed with Mr Nkosi’s observation that the same tone used during Thursday’s meeting is articulated in the letter. She respected whatever decision the Committee would take, but she did not want to relive the events of Thursday’s meeting.

The Chairperson noted Dr Gondwe’s response, that the PP and her legal team's objections are reflected in the letter and were verbally expressed during Thursday’s meeting.

Dr Gondwe said that she would agree that the PP and her legal team be given an opportunity if they had anything new to add. She would be guided by whatever decision the Committee takes.

Ms M Sukers (ACDP) agreed with Dr Gondwe’s sentiment, particularly due to the strict timeframes that the Committee are under and need to stick to due to all of the delays. She said that the purpose of this Committee is clear to everyone, including the legal team. She would respect what the Committee decides. She felt that there should be no further delay to the PP’s testimony, because it is very important for the Committee and the public to hear her voice in this matter.

Mr S Luzipo (ANC) said that he was worried that the PP’s letter had contained demands to the Chairperson. He said that this cannot be treated as separate to the application. He thought that there would have been a direct application to the Committee that states that when the main witness comes to testify, that the legal team would raise a “point of before”. After dispensing the “point of before”, the Committee would then proceed with the ruling.

He further expressed concern about the objection about the manner in which the Chairperson is doing his work. These objections have not only been brought to this Committee, but were referred to other structures. This makes it very difficult for this Committee to take decisions on that matter or to allow the request that had been made. He agreed with the suggestion that the Chairperson had made for the Committee to consider. However, he said that it should be clear that the request should be made as an application. He felt that the Committee would be obliged to listen to such an application.

Ms D Dlakude (ANC) fully agreed with her colleagues. She agreed that if the PP and her legal team make an application to request an opportunity to present their objections then the Committee should listen to them, but within a reasonable time. It should not take a whole day or three hours, because the Committee has work to do.

The Chairperson asked that Ms Ebrahim comment.

Input by Parliamentary Legal Advisor
Ms Ebrahim referred to Mr Nkosi’s question on legal cost. She replied that the rules do not speak to the point of who needs to pay for those costs; it simply says that the Chapter 9 head is entitled to an expert or other legal practitioner of his or her choice. So this arrangement in terms of the payment is an arrangement between the PPSA and the PP. Ms Ebrahim said that she does not know the specifics of the arrangement, but the Parliamentary Legal Services could get more information if the Committee is interested.

The Chairperson suggested that Ms Ebrahim could expand on her response and start explaining from the Constitutional Court judgement.

Ms Ebrahim explained that the rules originally said that a Chapter nine head is entitled to have a legal practitioner or other expert represent them. The rules then continued on to say that the person would not be allowed to actively participate, as it were, in the proceedings. In other words, the person could seek legal advice and have his or her legal advisor at the meeting, but that person would not participate in the proceedings of the meeting. The Constitutional Court struck out that part of the rule. There is nothing in the rule that deals with the payment of the legal fees. That is something that has been handled by the PPSA and the PP herself.

Ms Ebrahim referred to the discussion about the application. She said that this might be a matter of semantics. The PP’s letter is drafted in the form of a demand. The letter demands that the PP’s legal advisor be given an opportunity to present. She explained that the directives allow for application on any matter. The Committee had previously had such applications in respect of adjournments. It is for the Committee to decide whether it would be useful or necessary to listen to oral submissions on any particular issue.

Chairperson’s comments
The Chairperson said that he wanted to summarise the Member’s contributions on the issue of the correspondence. He observed that the Members were satisfied in the manner that the matter has been handled through the Chairperson’s response.

He noted that the Members have said that the tone of the letter from the PP is objectionable, and that this should be brought to the PP’s attention.

The Members are of the view that the PP and her legal team had ventilated their objections in Thursday’s meeting and in written form. However, the Members have also indicated that an opportunity should be considered if the PP had a further need to express new matters on record. The PP is not barred from requesting such an opportunity, but this would be confined to when she has to take the stand. From now until then, the Committee would want to focus on the dated and timed witnesses.

Overall, there is nothing untoward in how the Chairperson had responded up to this point.

Revised draft programme of the Committee
Mr Ngoma took the Committee through its revised draft programme. It detailed the dates of the remaining witnesses to appear before the Committee, as well as when the Public Protector would appear as a witness before the Committee, and when the closing arguments will be made by the Evidence Leaders and Public Protector.

Consideration and adoption of minutes
The Committee considered and adopted its minutes of 24, 30, 31 January, 1, 13 and 16 February 2023.

[Afternoon session]

Chairperson: Let me acknowledge and welcome the Honourable Members here at M46 and on the virtual platform; the Public Protector – if you could indicate if you’re there, and your team, we want to welcome you; the evidence leaders here at M46; our support staff with us; members of the media and as well as the members of the public at YouTube and 408. Welcome to the next inquiry, on this day the 21st of February 2023. We are starting a new witness today, who will be introduced later by Ms Ebrahim. Just to indicate that we are starting at this time, we'll start now at two up until five. I got an indication that the witness would not be able to proceed beyond five, and I will honour that. So as things would be, we’re going to have the evidence leaders starting between now and five, and then we pause at five and continue tomorrow. Tomorrow it’s half a day, from ten till one. And then we have all of Thursday and all of Friday, depending on how we go with the witness. So with that, it’s a warm welcome to all of you. I just need to get an indication from Mr Ngoma and Ms Morie, if we have the witness with us online. Do we have the witness online? Okay, I’m going to invite Ms Ebrahim to do the preliminaries with the witness, who will be introduced and would introduce himself. And then after that we start. Ms Ebrahim?

Ms Fatima Ebrahim (Parliamentary Legal Advisor): Thank you very much, Chair. Chair, the witness for this afternoon is Mr Rodney Mataboge, who the Committee will recall was a witness that the Committee asked us to invite to appear before it. Mr Mataboge can you hear me? Mr Mataboge your sound is muted.

Mr Rodney Mataboge (Witness): Good Afternoon, Chairperson. Good Afternoon, Fatima. And sorry about the struggle with my connection.

Ms Ebrahim: Good Afternoon, Mr Mataboge can I ask you to switch your camera on please?

Mr Mataboge: Yes, let me do that... I hope it’s on now.

Ms Ebrahim: Thank you, we can see you now. I’m going to administer your oath.

[Mr Mataboge was duly sworn in by Ms Ebrahim]

Chairperson: Thank you, Ms Ebrahim. Again, welcome Mr Mataboge, to this Section 194 inquiry. I'm now going to invite Adv Bawa to interact with you.

Adv Nazreen Bawa (Evidence Leader): Good Afternoon, Mr Mataboge.

Mr Mataboge: Good Afternoon, Adv Bawa.

Adv Bawa: Mr Mataboge, it was relayed to me that before you answered the questions that I would put to you, you would wish to say something to the Committee. Is that still what you would like to do

Mr Mataboge: Yes, it is still correct, Adv Bawa.

Adv Bawa: Okay, Chair. With your leave, the witness had made this request to do that.

Chairperson: Thank you, Adv Bawa. Mr Mataboge, you can go ahead and present what you want to present before Ms Bawa starts.

Mr Mataboge: Thank you very much, Chairperson, and good afternoon to you and Honourable Members, as well as the Public Protector and her legal team. I just wanted to ask Ms Ebrahim to make some opening remarks as a witness. First and foremost, I said to her I wouldn’t want to appear here as a witness for either side, for reasons that I had advanced to her. To say, due to the fact that when one appears either on the side of the evidence leaders or on the side of the PP legal team, there appears to be a perception that one is a witness for either side. And sometimes it comes with some adversarial attitude from either side when one is questioned. So I even asked that I not make a statement but come and appear here and answer questions that will be put by either side, which I'll answer to the best of my ability, without having made a statement. And further to that, I wanted to also impress upon the Chair and the House, that as an investigator I set... which I expressed to even the evidence leaders and Ms Ebrahim that as an investigator I feel very much vulnerable to come and appear here before the Committee on the matters that I know that are investigated, because you know, we have got a problem of whistleblowing - whistle-blowers that need protection in our society. But having to appear here as an investigator, it’s contrary in a way to section sixty-eight of the PP Act, which states I may be competent but not compellable to appear here. But I wanted to put this across to the Chair and the House, to say am I being exposed now to the outside world? Especially because now if really I have to assist the House, there’ll be matters that I’ll have to bring forth, which may even indicate my previous investigations under the former PP as well, because I’ve been an investigator for a very long long time. So I just wanted to put this forward. I even said to Ms Ebrahim, to say, would it be possible for me to talk not with a camera on my face, so that I can be able to answer questions. Because if I’m going to, you know, appearing here for the whole week, I mean my face will be shown to everyone for the whole week. And you know, it’s interesting that even colleagues that I met several years ago are already calling me to say we’ll be watching you on TV for the next few days or so. So this is my worry, but it doesn’t mean I disrespect the process, nor do I disrespect what needs to be achieved. But I just wanted to raise this, to say, are we not opening up ourselves as investigators that need to work for the public of South Africa, now we come and talk about that work and expose ourselves. As much as I need to assist, wouldn’t I have been able to assist better when I would have been made to make written responses to questions that would have been put to me? As against appearing here and being cross-questioned, and even being put to the public out there. I just wanted to put this, to say it’s not with any disrespect to the House, but I wanted to put this forward. To say, am I not now being part of the precedent that may be there now in the future for us as investigators, be it even in SUI or other institutions, to come and appear and be exposed like this. Because when we started this work, we didn’t start this work to become famous. One colleague of mine once said if she wanted to be famous, she would have been a journalist. We investigate as foot soldiers, we investigate in the background, we don’t want to appear and then appear to be the ones that run the gauntlet. So I just wanted to put this across, but with all due respect, Chairperson, if I’m here to help and I can help as much as possible, but it would mean that I’ll also have to reflect on previous investigations... that I was involved in, in the era of the former PP as well. So that’s all I wanted to say, but I’m here, Chairperson. Thank you very much.

Chairperson: Thank you, Mr Mataboge, for those important points you have placed in front of this Committee, in sharing what would have been your concern, and for the Committee to know. So we really appreciate that you’re putting that forward, and still be in a position to come and be of value to the Committee and assist the Committee. The Committee is a committee set up in terms of section 194 and in terms of the rules of the National Assembly. Its mandate is focused on the motion that we’re dealing with, and we try very hard to confine ourselves to those. We do not attend to any live cases or current issues. And so, from our side, we do want to say we endeavour to protect all witnesses in this regard. I don’t think you should feel too concerned about the fact that as an investigator you are now going to be known. It's actually even better that you do this, in this way, because even if we’re to do it under camera, after a rigorous and strict process, the possibility is that some of that would be on social media, and at that point you might not be in control of it. So I think the platform that you are in is a platform of Parliament, and it has got its own measures and processes. So let's welcome you. Thank you for those opening comments you’ve made, and for placing what would have occupied you before – which you would have raised and still proceeded to come and assist the Committee. I want on behalf of the Committee, to thank you for that. And at this point, I'm going to invite Adv Bawa.

Adv Bawa: Mr Mataboge, so that we’re not... so we can just be clear about it, you did raise this with Ms Ebrahim. And she indicated to you that if you had concerns, you needed to put those in writing to be able to put it before the Committee to make a decision, correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: And you didn’t do so. You instead opted to address the Committee today?

Mr Mataboge: That is correct.

Adv Bawa: I just wanted to be sure, so that there’s no misunderstanding that Ms Ebrahim did advise you accordingly, that’s why I’m raising it, Mr Mataboge. Can you maybe give us a little bit... because you haven't provided us with a statement, could you tell the Committee about when you started working at the Public Protector’s office, your qualifications and your employment history?

Mr Mataboge: Thank you, Adv Bawa. My employment history dates as far back as 1985. I'm a law graduate; I graduated in the University of North West, in the 1980s, late ‘80s. And I started working in the then former homeland Ombudsman, up until when in 1994, I think ‘95, we were incorporated into the Ombudsman, that was then Advocate-General in the South African offices. I was Senior Investigator from that period, up until when in 2018 I became the Chief Investigator. But I’ve been through the Public Protector space or institution throughout all the former PPs, including Adv Baqwa, including Adv Mushwana, Adv Madonsela, and currently Adv Mkhwebane. So I come from that era of working investigators in this institution. Chairperson and the Committee, and I thank you.

Adv Bawa: Can I start of by saying, Mr Mataboge, that you are not the subject matter of any investigation. And although there may be a perception of this PP’s legal team and evidence leaders' team, I'm not out to solicit anything other than the truth from you, in the questions that we’re going to be posing to you today.

Mr Mataboge: Yes, I hear that, Adv Bawa.

Adv Bawa: Right, now you said that you were appointed as a Chief Investigator, and that was somewhere in the middle of 2018. Would that be correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: And you were based in what is known as the Good Governance and Integrity Unit, at the head office of the Public Protector.

Mr Mataboge: Yes, correct.

Adv Bawa: Right, and we had previously consulted with you. I think it was roughly the 30th of June last year, via Zoom consultation. Correct?

Mr Mataboge: Yes.

Adv Bawa: And you had requested that Mr van der Merwe be present at that consultation. Correct?

Mr Mataboge: Yes, I remember. Yes.

Adv Bawa: And he was so, at your request, present at the consultation.

Mr Mataboge: Yes, he was present. Yes.

Adv Bawa: We didn’t subsequently to consult with you again. Correct?

Mr Mataboge: No, we didn’t consult again, subsequently. Yes.

Adv Bawa: We then sought certain information... in fact, subsequent to that consultation you were going to go and check for certain documents and information to provide to us. Do you recall that?

Mr Mataboge: Correct, Adv Bawa.

Adv Bawa: And I think it was a couple of weeks after that, I’m not sure of the exact date right now, we then submitted a written request to the Public Protector’s office. Was that provided to you?

Mr Mataboge: What written request Adv Bawa?

Adv Bawa: For information and documentation that arose from the consultation we had with you.

Mr Mataboge: Yes, I remember the CEO at the PPSA asked for some documents that we needed to send through to you. Yes, it is like that.

Adv Bawa: Were you involved in the compilation of responses and the provision of documents that was provided to us?

Mr Mataboge: Yes, I was involved even though Ms Mvuyana and the team were the ones who were compiling and sending them across through the CEO’s office.

Adv Bawa: Okay, so, let’s just talk about Ms Mvuyana and the team. Can we just understand the hierarchy in your division? You, as the Chief Investigator, who answers to you?

Mr Mataboge: It’s Senior Investigators, as well as Investigators and Training Investigators.

Adv Bawa: Okay, so how many people are there in your unit that responds to you?

Mr Mataboge: There are nine, I think, if I’m correct. Yeah, they’re nine.

Adv Bawa: And one of them is Ms... Well, she used to be, but she’s now moved to Bloemfontein I understand, one of them used to be Ms Mvuyana. Correct?

Mr Mataboge: That is correct.

Adv Bawa: She doesn’t answer to you any longer?

Mr Mataboge: She doesn’t answer to me any longer, yes.

Adv Bawa: Right, you then in turn report to a... in the ordinary course, you would report to an Executive Manager?

Mr Mataboge: Correct, Adv Bawa.

Adv Bawa: And if there is a COO in office, the EMs would then report to the COO, who would in turn report to the Public Protector?

Mr Mataboge: That is correct.

Adv Bawa: Right, and it would be fair to say that you are a very experienced Chief... although you may only be Chief Investigator since 2018, it would be fair to say, would you agree that you quite an experienced investigator? Would you accept that?

Mr Mataboge: Yes, I can accept that.

Adv Bawa: And there have been certain specific and special investigations that the Public Protector has specifically designated to you. Would you agree with that?

Mr Mataboge: I agree with that, but it didn’t start now, even then in the previous era that happened as well.

Adv Bawa: Yes, I... so let me say I don’t have knowledge of what happened during the previous Public Protector and I'm looking at what is in the scope of the motion before this Committee. So if you wish to add anything from what had happened previously, please do so. I just don’t have the knowledge and we haven't consulted at length about those things. So if I only ask you about the current PPSA, it’s for that reason. In the investigations that had been designated specifically to you, that would be the investigation in respect of the... relating to the alleged breach of the Executive Ethics Code by Minister Gordhan and what we shall refer to as the SARS unit, that would be one of those investigations, correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: Right, a second one of those investigations would be the one relating to Mr Ivan Pillay and the pension that had been afforded to him by SARS.

Mr Mataboge: That is correct.

Adv Bawa: The third one that I’m referring to would be what’s known as the Bosasa or the CR17 investigation.

Mr Mataboge: That is correct.

Adv Bawa: Right, the fourth one that I refer to would be the second Vrede report.

Mr Mataboge: That is correct. Yes, ma’am.

Adv Bawa: Right, now Mr Mataboge, as I have it, and correct me if I’m wrong, you were not involved in the first Vrede report that had been reviewed and set aside by the court, and which forms part of the motion before us. But you were the Chief Investigator in relation to the second Vrede report.

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: Right, now if I’m just to start off so that we get this clear... Can I ask to put the motion on the screen. And apart from your experience as a Chief Investigator, I seem to recall that you told us that you had top secret clearance, and you thought that that was one of the reasons why you had been given these investigations. Do you recall that?

Mr Mataboge: I recall that, Adv Bawa. Yes.

Adv Bawa: Okay.

Chairperson: Just a pause before you proceed. Mr Mataboge, just to ask you to reposition yourself a bit, so that we don’t want to think that you are sinking where you are, so that we can see your shoulders... yeah, now we see you. Thank you very much.

Mr Mataboge: It’s the chair I'm sitting in, Chair.

Chairperson: Thank you. Now go ahead Adv Bawa... Just try and lift it up again, so that we can at least see from the shoulders... yeah, so just like this Chairperson who is speaking.

Mr Mataboge: It’s the chair, that’s as far as it goes, Chair. That's where it ends.

Chairperson: Okay, we’ll see what you can do. Adv Bawa?

Adv Bawa: Alright, Mr Mataboge, just tell us that you are able to see the screen that comes up. I just want to be sure about that.

Mr Mataboge: Yes, I can see it, Adv Bawa.

Adv Bawa: Right, so, you would be aware that there is a motion before this Committee of Parliament. Have you had an opportunity to study the motion?

Mr Mataboge: No, I didn’t have a chance, Adv Bawa. I haven't studied it.

Adv Bawa: Okay. So let me take you through it in some detail, well generally. The charge one relates to the South African Reserve Bank case, which is commonly referred to as the CIEX and the ABSA matter. Did you have any involvement in any capacity in that investigation?

Mr Mataboge: No, not at all, Adv Bawa.

Adv Bawa: And you can answer whether this relates to the current PP or the previous PP, would the answer still be the same?

Mr Mataboge: I wouldn’t know when this one start did for me to tell. If it started or ended with Adv Mkhwebane, or if it started before. I wouldn’t know that.

Adv Bawa: Okay, so let’s go to charge two... sorry, you’re just going to have to scroll down. Charge two relates to the Vrede Dairy matter. And I already put the question to you, that you were not involved in respect of the compilation of the first report.

Mr Mataboge: Yes, that is correct. I was not involved.

Adv Bawa: Were you involved in the litigation which ensued consequent to the first report at all?

Mr Mataboge: Not at all, Adv Bawa.

Adv Bawa: So your involvement started... can you remember when it started?

Mr Mataboge: My involvement started when there was a request by Parliament for reinvestigation of the role of the politicians in the Vrede Dairy project, and then the matter was then given to my team to investigate afresh on the basis of the involvement of the politicians.

Adv Bawa: Right, so let’s go down. The second charge relates to misconduct. The third charge emanates in respect to incompetence arising from the first and second charge. So if you haven't been involved in either the ABSA or the Vrede Dairy matter, you wouldn’t have knowledge of any incompetence arising from those matters either, would you?

Mr Mataboge: I wouldn’t, Adv Bawa.

Adv Bawa: I'm going to come back when I talk to you about the second Vrede Dairy, about the first Vrede Dairy a bit. But we’ll deal with that later. Okay, so let’s go up to charge four. Mr Mataboge charge four is a question of... let me read it to you “Adv Mkhwebane is guilty of misconduct in that Adv Mkhwebane has intimidated, harassed and/or victimised staff”. So let me stop there. Have you ever been intimidated, harassed or victimised by Adv Mkhwebane?

Mr Mataboge: No, I’ve not been victimised, Adv Bawa, at all.

Adv Bawa: Can you maybe just answer the question, I put you three propositions, just so that the record has it complete. So the first proposition is have you ever been intimidated?

Mr Mataboge: No, I’ve not been intimidated, harassed or victimised by Adv Mkhwebane during my work.

Adv Bawa: So on the second component of the charge; it relates to alternatively she has failed to protect staff in the Office of the Public Protector, from intimidation, harassment and/or victimisation by the erstwhile CEO of the Office of the Public Protector, Mr Vussy Mahlangu. Have you in any way been intimidated, harassed or victimised by the erstwhile CEO of the Office of the Public Protector?

Mr Mataboge: No, Adv Bawa. I’ve not been intimidated or harassed or victimised by the erstwhile CEO of the PP, Mr Vussy Mahlangu.

Adv Bawa: If I take this a step further, do you have personal knowledge of any intimidation and harassment and/or victimisation of any other person, by either the Public Protector and/or the erstwhile CEO of the Office of the Public Protector, Mr Vussy Mahlangu?

Mr Mataboge: I wouldn’t say I know, because in the corridors there’ll be people who would be saying they’ve been given Audi letters or there were Audi letters coming their way from the former CEO. But I've never had any, you know, direct sight and knowledge of that, other than hearsay in the corridors.

Adv Bawa: Right, and from the Public Protector herself? Do you have any personal knowledge of that in respect of any other person?

Mr Mataboge: No, I wouldn’t have any.

Adv Bawa: So let's move on to charge four, number eleven. Okay, then it relates to she has committed misconduct by and/or demonstrated incompetence in the performance of her duties by... I’m going to give you an opportunity to comment on this, but Mr Mataboge, you are not part of management at the Public Protector’s office, are you?

Mr Mataboge: We’ve got what we call “Exco”. We also have got what we call senior management level, you know, where we meet as managers. So we have different levels. So I'm part of management, but not the executive authority management level of EMs, Executive Managers and CEOs, I’m not at that level.

Adv Bawa: Have you at any stage acted as an EM?

Mr Mataboge: No, not at all. Never.

Adv Bawa: Okay, so if you don’t want to answer any of these questions, feel free to do so. But, I'm going to put them to you, and then you can decide how to respond. So the first question... Says “Adv Mkhwebane has committed misconduct by and/or demonstrated incompetence in the performance of her duties by”, and the first one would be “failing intentionally or in a grossly negligent manner to manage the internal capacity and resources of management staff, investigators and outreach offices in the Office of the Public Protector effectively and efficiently”. Do you have any comment in respect of that?

Mr Mataboge: No, I don’t want to comment on that, because I'll be expressing an opinion that maybe ill-informed. I don’t have any comment.

Adv Bawa: Right, “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”.

Mr Mataboge: That as well, Adv Bawa. I don’t have a comment there.

Adv Bawa: “failing intentionally or in a grossly negligent manner to conduct her investigations and/or make her decisions in a manner that ensures the independent and impartial conduct of investigations”

Mr Mataboge: Here as well, I don’t have a comment.

Adv Bawa: Now we come to 11.4 “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/or measures and /or remedial action manifestly had no basis in law or in fact)”.

Mr Mataboge: I don’t want to make a comment, as I’ll be expressing an opinion that may not be well-founded perhaps.

Adv Bawa: Then there are certain documents or cases which are referred to in support of the four charges that I put to you. And if we go down when we look at the court case in the matter of the President of the Republic of South Africa v Public Protector, that would be the Bosasa related case. Correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: Right, we’ll come back to that, because you’ve been involved in that report. Let's go down. The court papers in Public Protector v Gordhan and Others Constitutional Court case, that would emanate or originate in the investigation – or both of them in the investigations relating to... can we call them the SARS unit case and the Pillay pension case? Do you agree with that?

Mr Mataboge: That’s correct, Adv Bawa. Yes, correct.

Adv Bawa: Okay, so if we then go further down to the next page, there’s an additional document that comes in for further information to the panel, that was put before the panel. So let me just do this, so that we can narrow down what we’re going to be talking about. Go down. There's certain orders that’s been given in the Vrede Dairy matter, but you were not involved in that you’ve told us. Stop for a moment... that’s the... in 5.2, there’s reference to the judgement and order of the High Court in the matter of the Commissioner of SARS v Public Protector. Mr Mataboge, that is the case in relation to dealing with the subpoena, where the Public Protector’s office sought to subpoena personal information relating to taxpayers from SARS. Did you have any involvement in that matter?

Mr Mataboge: Not at all, Adv Bawa.

Adv Bawa: I’m not going to hold you to it, but you might have had some involvement to the extent that it may very well have crossed over into the... into one of the cases or investigations you were involved in.

Mr Mataboge: No, this one, I even know who of the team members investigated it. It was not under my supervision, and there was no spill over or overlap into the other SARS matters at all, there was no overlap.

Adv Bawa: Okay, right, so on the litigation you would have had no involvement at all?

Mr Mataboge: Yes, not at all, Adv Bawa.

Adv Bawa: The next case relates to the GEMS matter, the Government Employees Medical Scheme.

Mr Mataboge: That as well, I was not involved at all.

Adv Bawa: Right, so that takes out five... four. 5.6 relates to the Financial Sector Conduct Authority (FSCA) matter.

Mr Mataboge: That one as well, I was not involved.

Adv Bawa: Okay, let’s go down. Then there is the matter in the Constitutional Court involving Basani Baloyi. Do you have any involvement in the matters relating to Basani Baloyi?

Mr Mataboge: Not at all, Adv Bawa.

Adv Bawa: Right, at some point you did answer to her when she was the COO. Correct?

Mr Mataboge: Yes.

Adv Bawa: 5.8, that is the litigation in respect of the SARS unit matter, the Gordhan v Public Protector matter, correct?

Mr Mataboge: Yes, correct. That one is was involved.

Adv Bawa: Right, the next one, also, there was an interlocutory application in the first instance, and then there was the full review application. Correct?

Mr Mataboge: That’s correct, yes.

Adv Bawa: Right, so, now we’ve gone through the stuff relevant to the motion. Where you are involved in investigations it relates... if we summarise it, to the Pillay pension case, the matters relating to the SARS unit, and the CR17 Bosasa investigation. Correct?

Mr Mataboge: That is correct.

Adv Bawa: So, we’ll deal with that as we go along. Now, if we start off with Minister Gordhan, I in talking to the people at the Public Protector’s office, there are a higher-than-average number of investigations embarked upon by the Public Protector’s office in respect of Minister Gordhan. Would you agree with that?

Mr Mataboge: Yes, I would. I can even substantiate if you need me.

Adv Bawa: Yes, you welcome to. Mr Mataboge, if at any stage you wish to expand on your answer, please feel free to do so. Don’t be restricted in any way.

Mr Mataboge: Yes, it’s correct, but the investigations come as a result of what we call EMEA complaints that come from the Executive Members' Ethics Act, which compels the Public Protector to investigate. She doesn’t have a choice not to investigate them.

Adv Bawa: We’ll Mr Mataboge, that’s not entirely correct, but let me talk to the ones you were involved in. So the SARS unit investigation had two components to it. One was the EMEA complaint, relating to whether he did or did not misrepresent an answer to Parliament...

Adv Dali Mpofu: Chairperson?

Chairperson: Just a pause, Adv Bawa. Adv Mpofu:

Adv Mpofu: No, I just want to understand what’s actually going on. Is Adv Bawa giving evidence, when she says... when she puts to the witness that what the witness is saying is not correct, or is she putting a version... on what basis does she contradict the witness’s evidence?

Chairperson: Thank you, Adv Mpofu. Adv Bawa?

Adv Bawa: Chair, if you would allow me to complete the question. I want to put to the witness what the investigations were in respect of Mister Gordhan, and then we can work out what was EMEA and what was not EMEA. Because the explanation given by the witness... I’ll take back, it’s not entirely correct. Because I don’t think it was the intent of the witness to... If that’s the part that Adv Mpofu, I take back the preface, and let me just say, let me take you through what I have as the investigations in respect of Minister Gordhan, and then we can go about from there.

Chairperson: Okay, then let’s just watch the space Adv Mpofu. I would allow you back later if you need to. Adv Bawa?

Adv Bawa: So do I need to repeat the question Mr Mataboge?

Mr Mataboge: I thought I answered the question Adv Bawa. When I said most... all of them are EMEA, that are compulsory for the PP to investigate. If I may even go further to say, even if there were some that were not EMEA, but the complaints came from a member of the executive, even though some elements thereof are not really on the evaluation of the ethics code, but they’re all in the one complaint. Thank you.

Adv Bawa: Can I check with you the following. There was a complaint that had been lodged by a Mr Lees in 2016, relating to South African Airways. Were you involved in that matter?

Mr Mataboge: No, I wasn’t involved in that matter.

Adv Bawa: Okay, so I don’t understand, let me take a step back. EMEA complaints can only be lodged by Members of Parliament. Correct?

Mr Mataboge: It is correct, Adv Bawa.

Adv Bawa: Right, so if the complainant is not a Member of Parliament then it is not an EMEA complaint.

Mr Mataboge: Yes, it’s not. Because some people make mistakes by citing the ethics code, but we advise them to say we’re investigating in terms of the PP Act, not in terms of the code, because they’re not allowed to lodge in terms of EMEA.

Adv Bawa: That’s correct. Okay. So in the investigation, in respect of what I put to you was the SARS unit investigation. The complaints received were twofold. One came from a Member of Parliament, and one came from an anonymous complainant. Correct?

Mr Mataboge: That is correct.

Adv Bawa: So a part of the complaint related to a breach of the Executive Ethics Code, and the other part of the complaint was numerous complaints, only some of which formed the subject matter of the SARS unit report. Would that be correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: The PP in the report indicated that there are a number of other complaints which would stand over as such for subsequent investigation.

Mr Mataboge: That is correct.

Adv Bawa: And can you tell us what happened in respect of that subsequent investigation?

Mr Mataboge: The subsequent investigation is still ongoing. It's currently about to be finalised but with the challenges that we have around section six-nine, we are taking advice on that as an institution. Because the challenges that related to the section seven-nine implications is also affecting that complaint as well.

Adv Bawa: So just so that we all on the same page, the challenges in respect of six-nine relates to the jurisdiction to investigate a complaint that is older than two-years, and the necessity to show special circumstances when such investigations are conducted. Are we on the same page, Mr Mataboge?

Mr Mataboge: That is correct.

Adv Bawa: There is one investigation that emanates from the report that was completed. Is that the one, and correct me if I’m wrong, as to whether it emanates from this report, it’s called the BBND investigation.

Mr Mataboge: Yes, it’s a different complaint that one, that came from a member of the public. It was not an EMEA that one.

Adv Bawa: No, it didn’t arise from any of the complaints listed in this report.

Mr Mataboge: No, it didn’t.

Adv Bawa: But it also involved, I think it involved Mr Pillay, did it involve Minister Gordhan as well?

Mr Mataboge: Yes, it did involve several former employees of SARS, because it dates back to I think 2015 or 2017, somewhere thereabout when that modernisation programme was procured.

Adv Bawa: Right, and were you involved in that investigation?

Mr Mataboge: Yes, I was involved.

Adv Bawa: Okay, so that wasn’t an EMEA complaint was it?

Mr Mataboge: It wasn’t, it wasn’t an EMEA.

Adv Bawa: Then there was a complaint lodged in 2019, which was done by a Member of Parliament relating to the irregular appointment of the Mango CEO, relating to SAA. Were you involved in that complaint?

Mr Mataboge: Yes, I was involved.

Adv Bawa: Is that investigation completed?

Mr Mataboge: Yeah, it’s completed quite some time back. I think two years old now.

Adv Bawa: Okay, and what was the outcome, can you tell us?

Mr Mataboge: The outcome, there was nothing that was found to be substantiated, and there was a closing report issued in that respect.

Adv Bawa: In the one I referred to you earlier on, that was submitted by a member of the public, relating to SAA. Were you involved in that investigation as well?

Mr Mataboge: The one that you mentioned I said I was not involved, Adv Bawa.

Adv Bawa: Sorry, I must ask Ms Mvuyana about that when she comes. Then there was a complaint lodged by a member of the public, in respect of a failure to investigate relating to Denel. Were you involved in that complaint?

Mr Mataboge: No, not at all.

Adv Bawa: Okay, then there was a complaint lodged by a member of the public, in respect of the breach of the code relating to Minister Gordhan’s alleged abuse of power to benefit a member of the judiciary. Are you involved in that?

Mr Mataboge: Yes, it was OCJ, it was related to the Office of Chief Justice unit. Are you referring to that one, Adv Bawa?

Adv Bawa: That’s the one, relating to Judge Dhaya Pillay.

Mr Mataboge: Yes, I was involved in it.

Adv Bawa: And what was the outcome of that?

Mr Mataboge: The outcome of it was not substantiated in terms of our language, and it was closed as not substantiated. The closing report was signed and issued to Minister Pravin Gordhan.

Adv Bawa: Right, so just that we all understand when you say not substantiated. In other words, you don’t find any unethical...

Adv Mpofu: Chairperson?

Chairperson: Just switch off, Adv Bawa. Adv Mpofu?

Adv Mpofu: Apologies, Chairperson. What has this got to do with the inquiry? Judges and Pillay, and what have you.

Chairperson: Adv Bawa?

Adv Bawa: Chair, it doesn’t matter whether it’s judge or Pillay. I was not going to the judge, but the witness couldn’t recall the name of the report.

Adv Mpofu: No, that report... sorry.

Adv Bawa: Adv Mpofu, we started off with the proposition when the witness said... when I put the witness the proposition that the Minister was subject matter of more investigations out of the Public Protector’s office. And the answer given was because it was the Executive Ethics Code. I'm now reflecting on what those investigations were. And we can then see how many of them was Executive Ethics Codes and how many were not.

Adv Mpofu: Yes, but thank you. What has that got to do with this inquiry?

Adv Bawa: Minister Gordhan is the subject matter of two of the three reports that do form the subject matter of this inquiry, that this investigator was involved in.

Adv Mpofu: Chairperson? Sorry, sorry Chairperson. Through you, Chair. I don’t want to have a dialogue. Can I talk through you, Chair?

Chairperson: Go ahead.

Adv Mpofu: Yes, thank you. Chairperson, well, I’d like you to rule that this issue is completely irrelevant. The witness has clearly said that whether whatever it was, the Public Protector had no choice but to do investigations, because there were complaints. So that answer covers whether it’s EMEA or non-EMEA. The Public Protector was responding to complaints, that’s the first thing that the witness said. So unless if that answer is being contested. Number two, I do appreciate that the Minister Gordhan is the main person in these investigations. But the Committee has ruled that Minister Gordhan’s evidence is irrelevant to these proceedings. So we can’t have it both ways. If we’re going to spend the whole afternoon on Minister Gordhan, when the Committee says it’s irrelevant, we obviously hold a different view. We think it's very relevant, because as Adv Bawa correctly points out, he is the subject matter of the investigations. But the stance of this inquiry is that he is not relevant. We can’t have it both ways. Either we don’t spend time on him, because he's irrelevant or we spend time on him, because he’s relevant. If he’s relevant, then he must be called as a witness as well. Thank you.

Chairperson: Thank you, Adv Mpofu. For placing those issues. Maybe from the Chair, I’m going to allow myself to just go with the flow and check where she’s going with this. And I would be in a position to make a ruling later on it.

Adv Mpofu: Thank you.

Chairperson: That’s fine. At this stage, I won’t get into the Gordhan matters. Adv Bawa?

Adv Mpofu: No, Chair. I'm sorry. I’m sorry, I have no problem with you going with the flow, as you say you’re going to. But, we are in the Gordhan matters. So I don’t want you to say we won’t get into the Gordhan matters. The issue is that we are in the Gordhan matters, I was just asking why. Is it because he is relevant or is it because he is irrelevant. If he's irrelevant, then let’s move on to something that’s relevant.

Chairperson: No, I was saying... I’m with you. I was saying as a Chair, at this stage I won’t comment on the relevance and irrelevance of Mr Gordhan. We've taken a decision on that. And the decision might be more than what you’ve just put in here. I don’t want to get into that point now. That's all I wanted to say.

Adv Mpofu: Okay, thank you. Thank you, Chair.

Chairperson: Adv Bawa:

Adv Bawa: Chair, I’ll shoot ahead, so that Adv Mpofu can be.... there are several investigations conducted by the PP’s office in respect of one individual. The point I'm trying to show through this witness is that the number of those investigations were actually closed. That the PP’s office found was not substantiated.

Adv Mpofu: And so... sorry, sorry, Chairperson. Chair, can I please speak through you?

Chairperson: Yes, please go ahead.

Adv Mpofu: Thank you. Yeah, well, so if a few or seven or a thousand of those investigations were closed, what is the relevance of that to this inquiry?

Adv Bawa: The relevance of this inquiry is that there were investigations that were investigated, and that was found to be a case and they went on, and there was a number of investigations that was closed. So if there’s a perception that's been created, that in every investigation that has been brought against Minister Pravin Gordhan by the PP’s office that went on and on and on, that’s not worn out by the cases, Adv Mpofu. Some of them are closed; the PP found there was no case against him.

Adv Mpofu: So what? The issue is what is the relevance of that? I know that happened. Let's say it happened a million times...

Mr X Nqola (ANC): Chairperson, please don’t allow this conversation.

Chairperson: Okay. Okay, Honourable Nqola. I will... let Adv Mpofu conclude.

Adv Mpofu: Yes, Chair. Sorry, Chair. I apologise, Chair. No, I... Chair, let me try and articulate this once and for all. I'm saying, I hear everything Adv Bawa is saying. And I'm saying assume that there were a hundred million investigations against Mr Gordhan that were found to be unsubstantiated or whatever or closed. I'm not questioning that. I'm asking about relevance. I'm saying, that relates to what as far as this inquiry is concerned? If the witness says yes there were a hundred million closed, it will show what in relation to this inquiry?

Chairperson: Thank you, Adv Mpofu. Honourable Herron, before we go to you, Adv Bawa.

Mr B Herron (GOOD): Thank you, Chair. I think, I mean, I'm also trying to understand how the evidence is being led in relation to the charges. And maybe Adv Bawa can make that clear.

Chairperson: Adv Bawa?

Adv Bawa: Chair, there’s 11.4 of the charges. And 11.4 of the charges says that “Adv Mkhwebane has committed misconduct by and/or demonstrated incompetence in the performance of her duties 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/or measures and /or remedial action manifestly had no basis in law or in fact)”. One of those relate to Minister Gordhan, in respect of the two cases. But there are other cases in relation to Minister Gordhan, that she didn’t do that. In other words, she closed it, because those cases had no merit.

Chairperson: Just mute your mic, Adv Mpofu.

Adv Mpofu: Apologies, Chair.

Chairperson: Okay. Adv Bawa, conclude.

Adv Bawa: Mr Mataboge?

Chairperson: Just maybe before you proceed to Mr Mataboge. Adv Mpofu, just for your own protection there and the team because you are in one space. So when they whisper to you, we can hear them.

Adv Mpofu: Oh, I see. No, thank you, Chair. It means there’s a lot of advice. It means there’s a lot of advice, that’s all.

Chairperson: Okay.

Adv Mpofu: Thank you, Chair.

Chairperson: We can’t stop them from whispering to you. So when we all hear that, then it just gives us another picture.

Adv Mpofu: No, sure. They're whispering thinking we are all muted here. No, we’ll mute, Chair. Thank you.

Chairperson: Thank you. Adv Bawa.

Adv Bawa: For the record, I didn’t hear anything, Adv Mpofu. Mr Mataboge, we were on the investigation of the breach of the ethics code in respect of the benefit of a judge. You indicated you were involved in that investigation, and it was closed as unsubstantiated. Correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: Then there was a further complaint, which I think comes from a member of the public. I'm trying to refrain mentioning people’s names, but the investigation related to what was termed by the complainant to be market influencers who drove the former President to remove the then finance Minister van Rooyen and replace him with Minister Gordhan. Were you involved in that investigation?

Mr Mataboge: No, I wasn’t involved in that one.

Adv Bawa: Do you know what the outcome was?

Mr Mataboge: No, I don’t remember, Adv Bawa.

Adv Bawa: Okay, then the other one I have is, also looks like it is a member of the public, where they alleged amongst others, corruption, irregular procurement processes, violation of the PFMA, nepotism and racial application of the disciplinary code since 2008. Would that be the BBND one?

Mr Mataboge: No, no, the BBND one related to the modernisation programme only.

Adv Bawa: Okay.

Mr Mataboge: It wouldn’t be that one, and I don’t know which one is that. I was not involved in it.

Adv Bawa: You were not involved. Do you know if that one was completed?

Mr Mataboge: No, I wouldn’t. I wouldn’t know.

Adv Bawa: And then, the other one I have is obviously the one relating to the Pillay pension’s case, where the investigation wasn’t directed at Minister Gordhan specifically. Am I correct?

Mr Mataboge: Yes, correct.

Adv Bawa: Right, are you aware of any other investigations?

Mr Mataboge: No, these are the only ones that I’m aware of that I follow through my purview.

Adv Bawa: Okay. Now, as the Chief Investigator you would also be aware that all the investigators and the Executive Managers are meant to have top security clearance. Correct?

Mr Mataboge: Correct, Adv Bawa.

Adv Bawa: You also, if I recall, you deal with quite a few of the important matters, and you mentioned to us that when you... since you’ve taken over as Chief Investigator dealing with some of the high-profile cases. The leaks in respect of these investigations had I think become something of the past. Would that be a correct...

Mr Mataboge: This is what I said, and that was the observation I made. Yes.

Adv Bawa: Do you wish to add anything to that?

Mr Mataboge: Yes, I would. Except to say that it was because of the... what the PP’s trying to deal with, the situation of leaks, by having us few people involved in the crucial and sensitive... and investigations that involve especially the executive authority. The lesser people you had, the more you could hold them to account. And maybe that helped in view, if I may express an opinion here, Adv Bawa, thank you.

Adv Bawa: But that also had the effect as Chief Investigator, Mr Mataboge, approximately how many files do you carry? That you have to oversee at the GGI.

Mr Mataboge: It became quite a number, I must admit.

Adv Bawa: Okay, and in some of those you would be part of the command chain to which you would account to the Executive Manager and the CEO. Correct?

Mr Mataboge: That is correct.

Adv Bawa: And then in others, as Chief Investigator, because of the PP’s measures you would be accounting directly to the Public Protector.

Mr Mataboge: That is correct that we do that. Like Bosasa was allocated to me to deal with particularly. Thank you.

Adv Bawa: So would that be Bosasa, would that be the SARS unit one as well?

Mr Mataboge: Yes, the SARS one as well, but that was first handled by other people before it came to me. Before I could be appointed the Chief Investigator it was handled by some other team members, yes.

Adv Bawa: And after it came to you, did you report to anyone else or did you report to the PP?

Mr Mataboge: The reporting channels were still the same. The PP would from time to time, sometimes want me to report directly or come directly to have a meeting with her. But the reporting channels were still there, even memo’s that were being submitted could go through the CEO – not the CEO, the COO as well as the Executive Manager, before they reach the Public Protector.

Adv Bawa: So if you submitted the section seven-nine or the report, would you have submitted it to the EM and the COO in the normal chain or would you submit it directly to the PP?

Mr Mataboge: No, it would go through the EM and the COO, and it will go to the PP.

Adv Bawa: By the way in any of the investigations that had been conducted that you had been involved in, in respect of Mister Gordhan, that had either been unsubstantiated or they’ve been reviewed and set aside by a court. Am I correct?

Mr Mataboge: Can you repeat the question, Adv Bawa.

Adv Bawa: In respect of any of the investigations that had been conducted, in respect of which you had been involved in, involving Minister Gordhan, they had either been unsubstantiated, or they had been reviewed and set aside by a court. Would that be correct?

Adv Dali Mpofu: Chairperson?

Mr Mataboge: Not all of them, I think.

Chairperson: Okay, Adv Mpofu.

Adv Mpofu: Yes, okay, well, I think the witness has...

Chairperson: Has responded.

Adv Mpofu: Because earlier she herself had elicited that answer that there’s an investigation that’s not even... that’s still in the pipeline. But anyways, I think the witness has resolved it. Thank you, Chair.

Chairperson: Thank you. Adv Bawa?

Adv Bawa: Chair, I don’t know what answer the witness is going to give, because I haven’t at length consulted with this witness. Mr Mataboge, I probably phrased the question wrong. I’m talking about the investigations that have been completed. Not the ones that are still in the pipeline. Of the ones that have been completed, right? They've either been unsubstantiated or they’ve been reviewed and set aside by the court. Are there any which have not been... that fall into any of those two categories?

Mr Mataboge: I’d have to check.

Adv Bawa: Sorry, we didn’t hear you, you were muted.

Mr Mataboge: I’m saying that I'll have to check on my records, because what you were saying there were specific ones that were set aside and those that were not substantiated versus those that went through or those that were successful. I'd have to check my records, if we may indulge on that one.

Adv Bawa: Not a problem. Mr Mataboge, I accept that we wouldn’t have consulted or prepared for the questions I’m asking. So if with leave of the Chair, we could maybe have a running list of stuff that you not able to answer, and when you do come back the next day we could maybe then just pick up those questions if you then have an opportunity to check on them. Would that work Mr Mataboge?

Mr Mataboge: Yes, I can check them, Adv Bawa.

Adv Bawa: Okay, just... now in the greater scheme of things investigators... and I thought you were saying this to us in your opening address. You are the foot soldiers of the PPSA. And that ultimately, the reports are signed off by the Public Protector. Is that a correct understanding?

Mr Mataboge? Yes, that is correct, Adv Bawa.

Adv Bawa: Right, and effectively the direction and the contents of the report are determined by the Public Protector.

Mr Mataboge: Not really, because as investigators we’ve got to direct the investigations, and the Public Protector to then advise us and guide the investigations to the conclusions. It doesn’t mean that all the directions are coming from her.

Adv Bawa: But would it be fair to say, and I think I saw it written somewhere that you’ve characterised it like that. That she is diligently involved in investigations of matters from the start to the end. Would that be correct?

Mr Mataboge: That is correct, because when we submit... for instance, where the Executive Members’ Ethics Act is involved, we have to submit the investigation plan to her. We have to submit documented letters through the normal channels, through to her. So in such instances, she will be involved up to the end of an investigation.

Adv Bawa: And she would provide continuous inputs to direct the course of the investigations throughout it?

Mr Mataboge: Yes, correct.

Adv Bawa: And she would assist you in providing case law or other conclusions, and debate issues with you, while you’re busy with the investigation?

Mr Mataboge: Very much so, Adv Bawa.

Adv Bawa: And do you find that you’re able to persuade her to a different viewpoint or a different conclusion to one she may be inclined to reach, or are you not able to?

Mr Mataboge: On more than one occasion we managed to do that. As a team, not even myself in particular, because when we submit to her, we submit with the interpretation and application of the law to the facts, and we motivate to her, and we sit and debate. And we were able to persuade her on a number of occasions, yes.

Adv Bawa: And you’re not the first one that says that to us, but others have also said that there are times when she's determined that that is the correct path to follow. She makes the decision, and that is the direction that the PPSA takes. Would that be correct as well?

Mr Mataboge: That would be correct, as well, because at the end of the day, she’s the one who appends the signature, if I may say. And the appendage of her signature would obviously be with her being satisfied with what she signs for.

Adv Bawa: Right, and there is nothing wrong with that Mr Mataboge. You correct in pointing off, she signs off on it and she must be satisfied with the contents of the report. Is that how I understand what you say?

Mr Mataboge: That is correct. And if I may substantiate that then I'm going to be going back to what I had put earlier on, to say, you know, where I'm coming even in the past era of the previous PP, you’’’ be told that the PP’s the one that... that the report is the PP’s report, it’s not your report. We accepted that as normal to say, at the end of the day the final weight comes from the PP as the signatory.

Adv Bawa: Okay, now I want to test... I mean you too are a lawyer, Mr Mataboge. Correct?

Mr Mataboge: Yes, correct.

Adv Bawa: And in fact, most of the investigators, if not all of the investigators at the Public Protector’s office are lawyers.

Mr Mataboge: Yes.

Adv Bawa: Some may have practiced, some may not. Correct?

Mr Mataboge: Yes.

Adv Bawa: Now, as a basic proposition of law, would you agree that the jurisdictional facts to bring a law into force must've been complied with before it has legal efficacy? In other words, if it’s legislation it must have been adopted by Parliament, and it must’ve been signed by the President before it has a force.

Mr Mataboge? Yes, it is correct.

Adv Bawa: And in a similar way, if it’s something that comes out of a local authority, it must have gone through the municipal council to fill the jurisdictional facts, before it's accepted as a legal instrument emanating and binding on the local authority. Would you agree with that?

Mr Mataboge: Yes, I do.

Adv Bawa: And regulations must be gazetted. They must be signed off by the relevant authority before they become force and effect as well.

Mr Mataboge: Correct, yes, Adv Bawa.

Adv Bawa: And you would also be aware, I think you referred to it as high-profile matters, and others you refer to it as political matters. They are matters of utmost importance to the country, would you agree?

Mr Mataboge: Yes, I agree. But not all of them, the political matters. High-profile for us as an institution would mean, even complex, we call them complex, relating to tender irregularities and so forth. Not necessarily political matters.

Adv Bawa: So there's a distinction between political matters and high-profile matters. Some may be both and some may not.

Mr Mataboge: Correct, Adv Bawa.

Adv Bawa: And some of the EMEA complaints involve members of the executive in the National Assembly. It would also involve members of the Parliament. Would you agree with that?

Mr Mataboge: Yes. Yes, I agree.

Adv Bawa: And in a number of these cases, if not all, they have very serious consequences for not only the subject matter of the investigation, but also to the country.

Mr Mataboge: Yes, I agree.

Adv Bawa: You would agree with that?

Mr Mataboge: Yes.

Adv Bawa: And so when very serious findings are made by the Public Protector’s office, it has an impact on public confidence in our elected officials in some way or another. Would you agree with that?

Mr Mataboge: Yes, I do.

Adv Bawa: And this is in some ways, makes the Public Protector’s office a very important cog in our democracy, because of the wide ambit of her powers and because her remedies have binding effect. Do you agree with that?

Mr Mataboge: Correct. I agree, Adv Bawa.

Adv Bawa: And that places a huge responsibility on the Public Protector, because those reports become very important once they’re issued. In other words, you would expect that the preceding process would have been meticulous, thorough, reflect a high-level of competence. Would you agree with that?

Adv Mpofu: Chairperson?

Chairperson: Just pause, Adv Bawa. Adv Mpofu?

Adv Mpofu: Yeah, I must object strongly to this. I don’t know, it looks like Adv Bawa is giving evidence now. She just expects the witness to say yes, yes, yes. So I don’t know who’s giving the evidence, and the witness is just being used as a prop to say yes to Adv Bawa’s evidence. Unless whatever she’s putting comes from some source, and she must enlighten us what that source is. If it doesn’t have a source, then the source is her, and that’s not allowed.

Chairperson: Thank you, Adv Mpofu. Adv Bawa?

Adv Bawa: Chair, at any stage, Mr Mataboge can say no, he can elaborate, he can disagree. I’m not using him as a prop to say yes. I’m sourcing an understanding what the importance is of the reports on which has been worked with. Now I am not for a moment giving evidence, and Mr Mataboge must be free to disagree with me. I said that to him upfront, he can elaborate on it in any way.

Adv Mpofu: Chairperson?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: Yes, that’s exactly the problem I'm complaining about. Mr Mataboge is not here to agree or disagree with Adv Bawa, when she says that he’s free to disagree with her. She has no role in this except to be an evidence leader. So Mr Mataboge or any other witness is not here to agree or disagree with her. She's nothing to this commission, she’s just a legal practitioner, like me. And when I put propositions to witnesses, it’s because, I'm putting them because my client has put them to me, but I'm equally irrelevant to these proceedings. Otherwise, so no witness is there to agree or disagree with Adv Bawa or me, because we have nothing to do with this. Thank you, Chair.

Chairperson: Thank you, Adv Mpofu. Let me note your objection, and then I will travel the journey with Adv Bawa and then I will see where I need to intervene.

Adv Mpofu: No, Chairperson. Can I just say something? I’m sorry, I don’t want to waste your time. I don’t understand your remarks. Whether I'm asking for a ruling on an issue, and you tell me you’re travelling a journey or going with the flow or those kinds of indistinct remarks. What does that mean, when you're travelling the journey? Does that mean she can continue asking the witness to agree or disagree with her or does it mean she cannot?

Chairperson: Thank you, Adv Mpofu. I said I have noted your objection, and I’m asking Adv Bawa to interact with the witness further. I will be watching if there’s anything untoward, in terms of what she’s doing.

Adv Mpofu: Okay, thank you.

Chairperson: Go ahead, Adv Bawa.

Adv Bawa: Chair, I'm not going to get into a debate with... Mr Mataboge, the proposition I would put to you or I had put to you, given the importance of the reports issued, of the nature we were discussing. It's not unreasonable that when these reports are published, that the preceding process is meticulous, that there's a high level of thoroughness and competence in those reports. Would you agree with that?

Mr Mataboge: Yes, I agree to that. I could even take it further to say that’s all that we do by all sincerity and the PP also does that with us. Maybe as it were in the eyes of the review judges, we fall short somewhere, but we do our best in the circumstances. Thank you.

Adv Bawa: That’s fair comment. Can we also say that underscoring what you do, you endeavour to be fair, and that fairness must extend to the complainant, to the witnesses and to those who are implicated in your reports? That underlies the work that you do. Correct?

Mr Mataboge: Yes, that’s exactly.

Adv Bawa: And so there must be no taint on the report that there’s been any predetermination of any outcome. You wouldn’t as a Chief Investigator want that perception to be created correctly or wrongly. Would you agree with that?

Mr Mataboge: Adv Bawa, I don’t know how to answer, but in all sincerity, we do our best. We work without fear or favour or prejudice. And I wouldn’t take it any other way, except to say that we do our best as PPSA. Notwithstanding comebacks, as I call them comebacks.

Adv Bawa: Right, Mr Mataboge, can I take you to the SARS report? I’m going to ask to put it on the screen. It's in file e, bundle e, item four, page 216. It's PG 1. Okay so we have 5.8.15, which one sees on. I'm going to talk before we get there, because you would be... 5.8.15, it is the statement that one finds in almost all of the reports that I’ve come across. Mr Mataboge, you’ll be very familiar with it. So whilst they’re finding the page, it’s the paragraph that says “the Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances. Although the Public Protector may act upon complaints that are made, he or she may also take the initiative to commence an inquiry, and on no more than information that has come to his or her knowledge of maladministration, malfeasance or impropriety in public life.” You familiar with that, Mr Mataboge? 

Mr Mataboge: Yes, I’m familiar. It comes from the Mail & Guardian judgement, I think.

Adv Bawa:, right?

Chairperson: Maybe let’s wait for it and see all of us.

Adv Bawa: And I want to paraphrase that into simple English, and you’ll tell me whether that is how it’s understood as well. It means that the Public Protector doesn’t only rely on information put before her, but she has to go out, be pro-active, and take the initiative in respect of complaints to commence an inquiry or to advance an investigation. Would you agree that that’s an appropriate capsulation?

Mr Mataboge: Yes.

Adv Bawa: And even in the last one, it says... Sorry, Mr Mataboge, let me give you an opportunity to answer

Mr Mataboge: It couldn’t have been said better, but as I was saying that is from the Mail & Guardian judgement, where in that case the PP was then criticised in one of the cases. But this is exactly what we do as investigators. We do much more as impacted by this phrase, this paragraph.

Adv Bawa: And so the point is even when there is information that has come to her of a narrow ambit, there’s nothing that precludes her as a matter of principle. Let's just talk about the principle and not the detail. That would allow her to broaden that investigation, in respect of matters that comes to her knowledge, relating to maladministration, malfeasance or impropriety in public life. That's the quote from the judgement. Correct?

Mr Mataboge: Correct, yes.

Adv Bawa: So I won’t take you into specifics, because you’re not involved in the CIEX matter, but one of the issues in that matter relates to the in principle widening of the ambit of an investigation. And this paragraph looks at precisely taking steps to widen an investigation, when matters are brought to you. Would you agree with that?

Mr Mataboge: Yes, I do.

Adv Bawa: Okay, now I want to take you to paragraphs, I think it’s just a page or two down. And that refers to the exact wording in the Mail & Guardian case. Right?

Mr Mataboge: Yes.

Adv Bawa: And the Supreme Court of Appeal has held that the Public Protector “should not be bound or limited to the issues raised for consideration and determination by the parties, but should investigate further and discover the truth and also inspire confidence that the truth has been discovered”. And that should underscore every investigation that takes place in the Public Protector’s office. Would you agree?

Mr Mataboge: Yes, I do.

Adv Bawa: And I am correct, I can’t say it as a general proposition, but you do endeavour to put these two paragraphs in just about every report that comes out of the Public Protector’s office. I may be wrong, that it might not be applicable to all. But I've seen it several times now.

Mr Mataboge: Yes, it is one of the paragraphs we include in our reports. And we try by all means to do by, you know, the principle, to provide and comply with the principle.

Adv Bawa: Right, now, can you tell me what investigation entails as a general proposition?

Mr Mataboge: Come again, Adv Bawa?

Adv Bawa: Well, what does investigation in respect of a matter entail? We can talk generally and then we can talk about it specifically in respect of the reports. Tell me as a layperson, what must I understand when an investigator embarks on an investigation? In respect of a complaint that has been laid at the Public Protector’s office.

Mr Mataboge: I’ll try, I’ll try my best, but the investigation will be based on allegations which affect what one needs to pursue. But in so doing, one needs to first be informed by the law that needs to be researched on what is alleged, and in order to verify the facts that one has been asked to look into. We also look for the evidence that talk to those facts, in order to make some conclusion on some finding, before you conclude. But now when you conclude, you have to work those facts and the evidence against the law that is applicable, that will then give an investigation its conclusion, its final report. You apply the law to the facts and the evidence.

Adv Bawa: Thank you.

Chairperson: Thank you, maybe on that general explanation, we can pause for 15 minutes, and take a tea break and be back at quarter to four, Adv Bawa. Thank you, just a tea break Mr Mataboge. We'll be back at quarter to.

Mr Mataboge: Thank you, Chair.

[Tea break]

Chairperson: We’re now back from tea, and we resume. Adv Bawa, over to you.

Adv Bawa: So Mr Mataboge, before the adjournment we were looking at what investigations in broad term entails. And you were endeavouring to explain that you look at, I suppose, I think you said the evidence, the complaints, the facts, the evidence, and you apply the law to the evidence. Would that be a fair summary of what you said?

Mr Mataboge: No, it wouldn’t be, Adv Bawa. I gave a bit of a background as to the allegations, the facts that come from the allegations. And the research on the legal applicable law, as well as the evidence. Then at the conclusion of the investigation, the law would be applied to the facts and the evidence before us.

Adv Bawa: Right, and so when we come and we look at this evidence. You would have to, let’s assume you have a complainant, and the complainant brings certain facts to you. You would have to do an assessment of those facts. And if your own investigation shows that there are contrary facts, you would reflect both in your report. Would that be correct?

Mr Mataboge: I don’t get the question.

Adv Bawa: Well, let’s assume the... let me take an example. If the plaintiff comes and the plaintiff says to you this report I’m relying on for purposes of the complaint that I'm providing to you, reflects that the evidence against the person I'm seeking for you to investigate says he is guilty of maladministration. And if your investigation, and during the course of your investigation you become aware that there are flaws in this report that has been brought to out. Then you would be obliged as part of your report, to raise those flaws in respect of that which the complainant puts before you. Would you agree?

Mr Mataboge: No, Adv Bawa. I wouldn’t agree, except to say that when we get a complaint, before we run and investigate it, we first consult with the complainant and we log the issues that he or she provides as allegations as facts. Then after we’ve lodged or confirmed the issues, we raise them with the respondent department and we get a response. Only when we then do what we call the notice that says the matter is not substantiated, we also show the allegations that are not substantiated, which will then come from the facts that were provided to us. But where the matter is substantiated, we also show where the facts confirm the allegation that has been brought before us, as been founded.

Adv Bawa: And if the facts that is before you, brought by somebody other than the complainant says something differently, then you would reach presumably a conclusion that the complaint is not substantiated. Am I understanding you correctly? Sorry, I don’t want to mislead what you’re saying. But I'm not sure if I got it right.

Mr Mataboge: I think I don’t understand the question either. Because we’re talking about the complainants, and now you’re talking about another person bringing the facts before us. That's why I get confused as well.

Adv Bawa: No, no, sorry. The complainant comes and the complainant puts facts before you. That's the first starting proposition. You then go to the... should we call it the implicated department, and you ask them to respond to the facts which the complainant puts before you. That would be your second step, right? And if what is put before you by the complainant contradicts... well, sorry, what is put to you by the responding department contradicts what the complainant says. Then you would take that into account in the formulation of your report.

Mr Mataboge: Yes, we do, Adv Bawa. That's why I say then we issue what we call a rule 41(1) notice to the complainant to say what we had alleged, we contacted the department, this is their response. And from the look of things, what you’ve alleged is not founded. If you’ve got further information that you may provide to substantiate on the allegations you made to us, please do so. That is how we then capture it.

Adv Bawa: And if your own investigation show that there are concerns, or that there should be concerns, or there are some form of doubt placed on what the complainant says. Other information which comes to your knowledge or your attention, other than from the responding department. Would you take that into account?

Mr Mataboge: Yes, that is why based on the Mail & Guardian, we do not just take what the department brings to us and regurgitate it or use it as effect and as proof. We also have to consider other facts as well.

Adv Bawa: Right, so if I understand that, you wouldn’t simply summarise the complaint, accept it as fact, and not do anything with any information that refutes that facts. You would conduct an investigation as the Mail & Guardian tells you to do. Am I correct?

Mr Mataboge: You correct, Adv Bawa.

Adv Bawa: Now, when you commence this investigation process, am I correct in understanding, it is referred... say it’s a GGI investigation; it is then referred to an investigator, who then reports to you. It would be allocated to a particular investigator. Would that be correct?

Mr Mataboge: Correct, Adv Bawa, yes.

Adv Bawa: So let's take the SARS unit report, that was allocated... let’s pick it up from where it was allocated to Ms Mvuyana. I somehow think she may not have been the first investigator on the matter, but she may have been. The matter lands on her desk as the investigator. And does she become the custodian of the investigative diary?

Mr Mataboge: Yes, she does.

Adv Bawa: Right, and for the ease of the Committee. Can you just explain what an investigative diary is?

Mr Mataboge: Come again, Adv Bawa?

Adv Bawa: Can you just explain to the Committee, what the investigative diary is?

Mr Mataboge: The investigating diary is... we call it the life or the life cycle of an investigation, where whatever activity that is occurring in the investigation or in the file is being recorded. Wherein if you had a meeting, you would record that you had a meeting with Adv Bawa. If you had a letter that you received from a department, you would report it. This is sort of a... that’s why I'm saying it’s a life cycle of activities that are in the file.

Adv Bawa: It comes in a hard cover, and it’s usually on the inside of the hard cover of the file. Is that physically where it’s located?

Mr Mataboge: Not always, because sometimes the hard cover of the file gets full, and we use the loose pages that we also have the same subheading on, and the same activities are written on. Because sometimes the investigations take longer to run. You may find that you even have four of such investigation diaries in one file.

Adv Bawa: Right, now in the SARS matter the... well, generally let’s take this, the investigative diary doesn’t form part of the rule 53 record. Would that be correct?

Mr Mataboge: Yes, it doesn’t form part of the rule 53. The Rule 53 record is the documents that are inside... whatever letters that we received, the reports and so forth.

Adv Bawa: Right, now when the investigator is to put the rule 53 record together. How does that impact on the investigative diary?

Mr Mataboge: If you have to put the rule 53 together, you have to go to the investigative diary to check the recorded activities of the file. So that if there are meetings, there are audio recordings that are there, you are able to know that on this day you had a meeting, so that you must then get a recording for purposes of rule 53, in preparing the rule 53. We then have an index and pagination separate for the rule 53 documents.

Adv Bawa: Right, now you are aware Mr Mataboge, because I've raised this with you before. The investigative diary in respect of the SARS unit is not intact. Have you had an opportunity to check on that?

Mr Mataboge: The investigative diary in respect of what, Adv Bawa? SARS matter...

Adv Bawa: The investigative diary in respect of the SARS unit that was provided to us by Ms Mvuyana is not intact.

Mr Mataboge: Yes, I’m aware.

Adv Bawa: When we had last spoken, you were going to check on it. Did you have an opportunity to check whether it was an administrative error or whether it was an error that’s... how it came about?

Mr Mataboge: I think it was an administrative error, because when colleagues or investigators continue the matters they instead of recording right there and then on days that there are activities, they put it – defer it to the next day. And as a result, there comes some gaps on the investigation diary, and that’s how it happens. And they then refer to whatever, if there are emails or recordings when they then have to do the final report, they then have to go to the diary and update it. And sometimes it’s always very late, like it happened with the SARS matter.

Adv Bawa: But it wouldn’t, it shouldn’t, Mr Mataboge, from what you tell me. The investigative diary is not part of the rule 53, there could only be attached documents that may be in the file. So how does the investigative diary, become missing in this process?

Mr Mataboge: It doesn’t mean per se, Adv Bawa. It's that it’s not completed on time, but because the information that needs to be on the investigative dairy should come from the records that are in the laptop or the desktop of the investigator. He or she needs to then continuously update on the investigation diary, because it’s not part... it’s not an internal document in the file.

Adv Bawa: I’m not sure I understand it. Let me take you to the investigative diary that was provided to me. Go item 71 of Bundle F and then to page 41 of that PDF. Yeah, it’s page 3180. Okay, maybe go to page 3183, if we look at it, what I think is... Do you see this, Mr Mataboge?

Mr Mataboge: Yes, Adv Bawa. I’m looking at it.

Adv Bawa: Right, and this is what seems to be the first page, which seems to be handed over to a different investigator that has come in. And it appears to be a takeover from the complaint, which was lodged by Mr Shivambu on the 8th November.

Mr Mataboge: Correct. Correct, Adv Bawa.

Adv Bawa: Can you explain the takeover?

Mr Mataboge: The takeover, this one resulted when Ms Mvuyana was on maternity leave and it had to be reallocated to somebody to run with in the meantime. That's how it happened.

Adv Bawa: But from the date of the 15th of the 9th 2021, this is a reconstruction that she does in 2021. Would you agree with that?

Mr Mataboge: This reconstruction is not reconstruction per se, it is the entry for the new investigator that’s written at the top there. And I don’t think this is the entry for Adv Mvuyana, because this is when the new investigator that is written there received the file. So they ought to be the same entry in respect of Adv Mvuyana’s activities in the matter, in the file, prior to this one.

Adv Bawa: So in other words, I haven’t gotten an investigative diary from Ms Mvuyana at all?

Mr Mataboge: Yeah, that’s what it means. What she gave you is when the file was ready to go to another investigator. And then she ought to be having her own diaries prior.

Adv Bawa: And this was the file that was provided in respect of what we asked for, the SARS matter that was uplifted from your office. If you recall, Mr Mataboge?

Mr Mataboge: Yes, I remember.

Adv Bawa: Right, are you in possession of any other investigative diary emanating from Ms Mvuyana in your office?

Mr Mataboge: No, because the file is with her. So I need to check with her so that she must provide with whatever she may have omitted sending through, that talks to the activities in the file.

Adv Bawa: Okay, and you haven’t checked with her since you’ve last conversed with us about this?

Mr Mataboge: No, I’ve not checked with her, because she’s in the Free State office, and she’s been sick for some time now, Adv Bawa.

Adv Bawa: And when did she relocate to the Free State, Mr Mataboge?

Mr Mataboge: I’ll have to check, I'm not sure whether it was the beginning or end of last year, but it’s not recent. It's quite some time, three or four months.

Adv Bawa: We had made this request at the end of June of last year. Was Ms Mvuyana still at the head office at that stage?

Mr Mataboge: Yes, I’ll have to check. I believe she was, Adv Bawa. I'll have to check.

Adv Bawa: So that’s the second item...

Mr Mataboge: Because I was, if I may say, you recall I was also...

Chairperson: Okay, I think he seems to be frozen, let’s take a pause. So that we allow him back through the system. We'll pause for a few minutes.

[Short break]

Chairperson: Thank you, welcome back. Adv Bawa?

Adv Bawa: If I can just ask for the page to be put back onto the screen, so that it would assist Mr Mataboge, and my understanding as well. So if I understand what you were saying to me, is that Adv Montwedi-Tshabalala takes over the file on the 15th of September 2021, and she details whatever is provided to her on that day as a new file. Would that be correct?

Mr Mataboge: That is correct, Adv Bawa.

Adv Bawa: And so if we just...

Mr Mataboge: Even the documents that she missed there, she gives them afresh and those documents ought to be in the file, in the old investigation diary compiled by Ms Mvuyana.

Adv Bawa: Okay, if we see just to be a bit helpful, and we go down, we will see on item number... no, no, if you look at pages 16 – 22, it says memorandum to the CFO, regarding to the request for Ms Mvuyana to act as the Senior Investigator, dated 13 November 2018. So she was appointed very shortly after the complaint came in. Correct?

Mr Mataboge: Where are you? I'm lost, Adv Bawa.

Adv Bawa: Maybe the second item from the top, if you can see. If you look at the page numbers, as it's identified. There you go, it’s been coloured in for you.

Mr Mataboge: Yes, but this one, this is an old memo that is for 2018. I wonder why it was here because the last... it was 2021 when this investigation diary was compiled by Ms Tshabalala Montwedi.

Adv Bawa: But if you look... Mr Mataboge, right at the top. She takes over this file, because there’s still components of this investigation pending. So in the first line, she says, she changes the reference number on top. And she says received new file with the following. She details it from the complaint that emanated from 8 November 2018, and she goes down. Do you see that?

Mr Mataboge: Yes.

Adv Bawa: So this would've been with the documents that were with Ms Mvuyana. I'm hoping you can confirm this, but I’ll ask Ms Mvuyana when she comes. That’s then taken over by the investigator. And then if you go to the second page, the one just after this... you see, there’s a whole lot of correspondence that we know is involved. She says on the 9th of September “in light of the PP’s directive, kindly receive the reallocated file from Ms Mvuyana, for further investigation during her maternity leave”.

Mr Mataboge: That is my recording, that is my notes there. It's my instruction to Ms Montwedi-Tshabalala.

Adv Bawa: And then if you look at the next entry you would see it says, “The matter is reallocated to you”, and number two says “liaise with Mr Mataboge and Nomfundo to give you other evidence/responses related to this matter”, “you must also follow-up on the information from SARS as per subpoena signed by the COO... Mr Kieswetter is yet to respond. Please make follow-ups". This is a subsequent investigation, I don’t want to go into detail; this is not the ones we’re talking about. Right, but this is the investigation that gets allocated. Now if we go one page further up to 3182. We see it’s the continuation of the listing of the documentation that she had received from Ms Mvuyana. Would that be... if you go down.

Mr Mataboge: Yeah, this is what seems to be the case of Ms Montwedi-Tshabalala, that’s jotting or recording all the documents that she found in the file.

Adv Bawa: Right, so if we... and if you go down to the handwritten notes. There's a file presented to Mr Dlamini. Mr Dlamini is probably doing file inspections. Would that be correct?

Mr Mataboge: That would be correct. I believe, Adv Bawa.

Adv Bawa: Right, so when somebody does a file inspection they would do a handwritten annotation. Right?

Mr Mataboge: Yes. Even the ones that were typed in, when we deal with them daily with handwritten notes. You don’t need to type them in particularly.

Adv Bawa: Now you would expect 110 pages in this investigative file. Pages 105 and 106 being the investigative plan dated 11 November 2018. That would be a fair assumption to make. Correct?

Mr Mataboge: I'm not sure about the numbering that Ms Montwedi-Tshabalala out here, where she gets it from, you know, because I'll have to check. Because is that the indexing that comes from her or is that the number of pages that were in the file, I'm not sure.

Adv Bawa: Okay, so if you go to the first page. It seems to be numbered from number one, and it goes to the bottom at number 51. I'm at 3183, so it doesn’t seem anything more than counting the pages of what there is, starting at number one. Whose initials would that be in the last column?

Mr Mataboge: Ms Montwedi-Tshabalala.

Adv Bawa: So she's confirming that that’s what she’s received.

Mr Mataboge: Yes.

Adv Bawa: And she goes down to the bottom 51. And then if we go back up to the other page, it starts at 52 – 29, and it comes down. The point I'm trying to make without belabouring this, is when this file is provided to me in 2022, despite it having been intact for Ms Montwedi-Tshabalala to have indexed it, by the time it comes to me in 2022, there are significant documents not provided. What would an explanation for that be? Because we’re now way past the Rule 53 record.

Mr Mataboge: This is the file that is, in my view, from which the volume two investigation was to come. This is not the one that was finalised. This is document that -  the file that would still need to be finalised, as I explained earlier.

Adv Bawa: The file is still to be finalised?

Mr Mataboge: Yes, it’s not finalised this one, Adv Bawa. Because remember there were issues that were deferred to volume two. The other ones were closed along with the EMEA that was reviewed, the EMEA investigation.

Adv Bawa: I'm aware of that. I think I phrased the question badly. Here's my point. On the 15th of September 2021, Ms Montwedi-Tshabalala takes over the file from Ms Mvuyana. She signs and she receives all this documentation that’s there, based on what is provided for on the page of the investigative diary. This file is then... we ask for the investigative diary. It is then removed from your office and the file that is provided to us is 45 pages, with a number of documentation removed, including most importantly the investigation plan dated 11 November 2018. Now how does one explain that? Because I'm putting to you that if we look at the date when Adv Montwedi-Tshabalala puts it together, we are way past rule 53 records in the SARS unit litigation, that that can’t explain why such a file would now be in tatters.

Mr Mataboge: When you mentioned the rule 53, that’s when you also confuse me. Because like I said, Adv Bawa, this is the current file. However, in trying to further clarify I wouldn’t know, because you said it was removed from my office, but it should have been removed from Ms Montwedi and Ms Mvuyana’s office. And with all those documents, I believe, intact and inside. Then I'll then say you need to find out from either of the two, or even Ms Mvuyana when she comes here next week. Because I thought all of those documents that are intact, it should have been sent in the file that was sent to you.

Adv Bawa: Yeah, it was not. But the point I'm trying to make is there would have been file inspections done on this file, surely as well. They fall under you division don’t they?

Mr Mataboge: They do. That is why if you look at the bottom, I was away on my wife’s sick leave for a long time – family responsibility. If you look at the bottom, it’s inspected by Mr Dlamini who was leading the team at the time.

Adv Bawa: If we look at the pages on 3180, you see that the file is internally transferred from Ms Motsoeneng, and on the 14th of March it’s then transferred from phase two to phase three, and the team is allocated, and the matter is now back with Ms Mvuyana.

Mr Mataboge: I’ll have to explain the phase two phase three process, because when in an attempt to deal with the backlog, this file was part of the backlog. Phases were formed in the PPSA to deal – phases would be a team under phase one that will assess the complaint; a team under phase two that will draft and check the evidence; a team under phase three... So the files were taken that were like this one, given to different phases, which comprise of team members. So that is how it was then reallocated to the phase three team.

Adv Bawa: Yes, okay, and then you see 15 May, it says team busy with drafting. Then it says 10 June. What does DN mean?

Mr Mataboge: Discretionary notice that is instituted in terms of section 41(1) of the rules of the PPSA.

Adv Bawa: Right, and it says send to CI and EM. CI would be?

Mr Mataboge: CI wouldn’t have been me, because I was on my wife’s sick leave. It would have been maybe Mr Dlamini. And EM would have been Ms Mogaladi, if she was the one who was the EM.

Adv Bawa: And then you see the entry, the next entry says 7 July 2022 “Discretionary notice returned by CI with comments and inputs to incorporate and send back”. Was there an acting CI whilst you were away or would you have taken some time to look at it nonetheless?

Mr Mataboge: No, there was an acting CI. That is why I was saying Mr Dlamini and the late Mr Maphosa was acting on my behalf at the time.

Adv Bawa: Okay, so when this is provided to me at the end of June, it is conceivable that because the discretionary notice was the CI – that's why it was in your office.

Mr Mataboge: It wouldn’t have been in my office Adv Bawa, because at the time I was not in the office. It would have been in the CI’s office or Ms Mvuyana’s office. Because from 7 June last year up until August, I was on family responsibility leave due to my wife’s health. I was not in the office.

Adv Bawa: Yeah, I was... I'm not going to give evidence. We'll deal with that when Ms Mvuyana comes to do that. So you have no idea what happened to the original investigative file, in respect of the SARS unit report.

Mr Mataboge: No, I should have. I would have, and the files would be here. It needs to be found. But I'm surprised that you said that the original file is not here.

Adv Bawa: Well...

Mr Mataboge: Because I even got the documents that were sent to Parliament, it came from the original file. That's what I thought. I was made to believe as well.

Adv Bawa: Well, I've showed you. And if we go up to the top of this folder which was provided to you, so I’m not going through. I mean this investigative file was one of the documentations which Ms Ebrahim provided you in advance of today. It's numbered 71 investigative file. Did you get documentation from Ms Ebrahim, Mr Mataboge?

Mr Mataboge: Yes, I got documents, yesterday and Sunday as well.

Adv Bawa: And this was one of the documents that you did receive?

Mr Mataboge: I don't remember, unless I didn’t open all of them. But I didn’t see this one. They were all other... there were emails, there were other correspondence, and section seven-nines, but I didn’t see this one. I'll have to go back to the documentation.

Adv Bawa: I’ll ask Ms Ebrahim to pass it on to you again. So that you can have a quick squiz at it. To make sure that I'm not misrepresenting that it isn't the SARS unit investigative file.

Mr Mataboge: She did send me things. So I'm not sure about this one. That's why I said I'll have to check it, Adv Bawa.

Adv Bawa: And I understand that. Right, when it comes to this investigative file, you would have expected the investigator to write into this file when subpoenas are issued. Would you?

Mr Mataboge: Yes, that’s why I say on days when the activities are occurring, you write into the investigation diaries. It's the life cycle of the investigation.

Adv Bawa: And would the Chief Investigator also write into the investigative file if something comes to his attention?

Mr Mataboge: Yes.

Adv Bawa: And so if a subpoena was not delivered to anybody, in respect of whom a subpoena that was issued, for example in the SARS unit case we know that the subpoena wasn’t issued to Mr van Loggerenberg. Would you expect that to be written on the investigative file?

Mr Mataboge: When you say a subpoena was not issued to Mr van Loggerenberg, I don’t agree with you on that.

Adv Bawa: Sorry, my apologies. I had misspoken. Let's start again. If the subpoena was issued in relation to Mr van Loggerenberg it would have been written on the investigative file. Would that be correct?

Mr Mataboge: Yes, but not only to him. Yes. Not only to him alone, because there are other people to who subpoenas were sent or were sent as well.

Adv Bawa: Let’s put this more generally, in respect of anybody, in respect of whom a subpoena is issued on a matter, that would be written on the investigative file.

Mr Mataboge: Yes.

Adv Bawa: If a subpoena comes back as not having been served on an individual. Would you expect that to be written on the investigative file?

Mr Mataboge: Yes, upon being received from the messenger, the person who delivered it. The moment we receive it, we then have to report.

Adv Bawa: You would have to record that on your investigative file, sorry?

Mr Mataboge; Yes, on a diary, yes.

Adv Bawa: Right, and what else do you write on an investigative diary? All the documentation you get, all the interviews you get, all the interviews you do, all the correspondence you receive, and what else do you put in there?

Mr Mataboge: Not necessarily everything, because if we were to put everything there we will have the... like I was saying hundreds and hundreds of investigative diary pages. Because when we – that's why I say we write the life cycle of an investigation. For instance, if you have received a report, you just note that you’ve received the report in the investigation diary. If it’s an accompanying letter from the department, you say letter along with the report received. You don’t detail on the content or any other, but we write into that, yes. But let’s say there are boxes and boxes that are accompanying the letter, that have got documents, tender documents, you cannot itemise and write them all in the investigative diary, they would be appearing along with the letter.

Adv Bawa: Right, and when an investigator is appointed to deal with the matter, you would expect that all the information in the possession of the PP would be provided to that investigator.

Mr Mataboge: Yes, because there should be a handover from whoever that dealt with the file, if the person is there.

Adv Bawa: Well, let’s assume it's a new investigation, and there’s information that comes in from the complainant, and there’s information that may be given directly to the PP. Would you expect the PP to provide the investigator with that information?

Mr Mataboge: Yes, the information should be there to be given to the investigators.

Adv Bawa: Now, in respect of the SARS unit report, the issue comes up and we will come to it in a little bit more detail, but let’s just deal with it. You were aware... were you aware that prior this investigation being opened, that Mr van Loggerenberg had communicated with the Public Protector’s office previously, and had provided it with numerous documentation?

Mr Mataboge: I was not aware at all, Adv Bawa.

Adv Bawa: Were you aware that there had been a closing report that had previously been done by Mr Madiba?

Mr Mataboge: Yes, that one I was aware.

Adv Bawa: Some of the issues Mr Madiba had considered in relation to the SARS unit, and had issued a closing report in October of 2017. Would that be so?

Mr Mataboge: Yes.

Adv Bawa: Sorry, you might now remember the date exactly. But you were aware in 2017 a closing report was issued.

Mr Mataboge: Yes, I was aware of that.

Adv Bawa: And for purposes of the investigation, in 2018 onwards, you had a look at this 2012 report. Correct?

Mr Mataboge: Which 2012 report, Adv Bawa?

Adv Bawa: The 2012 complaint. Mr Madiba had finalised the closing report in 2017 in respect of a complaint that had been lodged in 2012.

Mr Mataboge: I had no sight of the 2012 file, as well as the report as you allude to now. Because I was dealing... we were dealing with the new matter, a new complaint.

Adv Bawa: So you didn’t...

Mr Mataboge: So far we had no access, because it had been filed away and registered to archives.

Adv Bawa: So you didn’t have regard to the closing report?

Mr Mataboge: We didn’t have regard to the closing report, because the facts that would have been based in the subsequent complaint, in our view, were not related to the one that had been closed by Mr Madiba. But at the same time, as independent investigators, we did not want to get influenced by any such closing report if there was one. We wanted to deal with an independent investigation of the allegations that would have been brought out to us.

Adv Bawa: So you were not aware that that complaint also related to allegations about a surreptitious investigative branch known as the National Research Group, alleged to be carrying out clandestine specialised investigations?

Mr Mataboge: That’s why I said, Adv Bawa, I was not aware. I didn’t even look at the 2012 complaint and the closing report.

Adv Bawa: Okay, let me take you to this closing report, which one finds at item 127(1), and we go to page 2543, bundle f. So this would be the first time, Mr Mataboge, that you see this report?

Mr Mataboge: Yes, definitely.

Adv Bawa: Okay, so if I take you to paragraph 1.1.1 of the report.... We see that it’s a complaint lodged by Mr Keletso Manyike on 21 February 2012. And I put to you what the complaint was about earlier. And it furnished the Public Protector with nineteen names of alleged investigators, and thirteen names of unsuspected civilians, politicians and prominent businessmen, in which certain allegations was made. Do you see that?

Mr Mataboge: I see that, yes.

Adv Bawa: Right, in paragraph 1.1.1 of the closing report, it says “The NRG investigative branch is headed by Mr Johann van Loggerenberg, the SARS Manager responsible for Special Projects and operated under the stewardship of the Acting Commissioner, Mr Ivan Pillay”. Right, and the complainant’s contention was that “the appointment of investigators is irregular as there are no employment contracts concluded between them and SARS and neither are these appointments made in compliance with SARS recruitment processes nor are the investigators operating from SARS business premises but are home-based". Do you see that?

Mr Mataboge: Yes, I see.

Adv Bawa: Right, and if you go down in the report. This is not the same complainant as the SARS unit complaint, I accept that, it’s a different complainant. Correct?

Mr Mataboge: I believe so, Adv Bawa.

Adv Bawa: And if we go down, at paragraph 1.2, it says “The Public Protector elected not to investigate the allegations of illegal surveillance of politicians and business people as it was felt that the PPSA is not the appropriate institution nor has the required expertise to investigate illegal surveillance. As such her investigation is focused on the allegations of maladministration and irregular recruitment processes followed in the appointment of NRG officials”. Now in your report... in the PP’s report in respect of the SARS unit, there was an investigation into illegal surveillance. Correct?

Mr Mataboge: I’m not sure. I'm not sure if you talk about illegal surveillance... So I wouldn’t want to comment on that.

Adv Bawa: Okay, I’m going to take you to the report in a moment, and then we can deal with that. And if we go to the reasons for the closing report, which you see on page 2571... It would be page 29. Right, and it concludes... just to take you through the conclusions. It said that there was an “investigation as to whether there were any irregularities in the recruitment processes followed when SARS appointed employees of the National Research Group is part of the investigation into the Special projects Unit, NRG and High Risk Investigation Unit which were also investigated by Adv Sikhakhane”. Right, you in the conclusion of the SARS unit report, you had regard and relied on the report of Adv Sikhakhane. Correct?

Mr Mataboge: Adv Bawa, that is why I said to you, I did not have sight of this report, and I didn’t want it to influence any other thing that related to the new complaint. So I wouldn’t want to comment on that. Thank you.

Adv Bawa: I’m asking you a different... I'm asking you a different question. I'm saying when the PP, with your assistance and that of Adv Mvuyana compiled the SARS unit report, regard was had and reliance was placed on Adv Sikhakhane’s... what’s called the Sikhakhane report.

Adv Mpofu: Chairperson?

Chairperson: Just pause, Adv Bawa. Adv Mpofu?

Adv Mpofu: No, Chair. My objection is really that now Adv Bawa is now really doing what she knows she’s not allowed to do. These are some of the core issues to deal with the rogue unit, so-called rogue unit issue about the Sikhakhane report. So she can’t put leading questions on that. Unless if again she’s basing it on some version that we don’t know. When she says Mr Mataboge placed reliance on Sikhakhane, that’s a very pregnant statement. It's a matter that is disputed on the one side or the other, as to what extent were the other independent investigations relied on and so on. It's definitely a relevant issue, but the point I'm making is that it’s a disputed question. So she's not allowed to put leading questions, unless if she has a basis to it. Thank you.

Chairperson: Thank you, Adv Mpofu. Adv Bawa?

Adv Bawa: Chair, I can ask any questions, including leading questions. We must... every time Adv Mpofu has raised and sought to restrict the questions I've asked I’ve taken him back to the directive, which allows the evidence leaders to ask any question. But I don’t want to get into a spat with Adv Mpofu. I'm going to take the witness to the SARS unit report and pose the question again. And I didn’t say that they only relied on the Sikhakhane report. So if it provides Adv Mpofu with more comfort, let me phrase it this way. One of the reports to which you had regard, to which the Public Protector had regard in the compilation of the SARS unit report included the Sikhakhane report. Would that be correct, Mr Mataboge?

Mr Mataboge: Yes, that is correct, Adv Bawa.

Adv Bawa: Okay, so let me go back to the closing report if we’ve got that out of the way. Let's just close this out. So I accept Mr Mataboge, that you say your evidence here today is that you didn’t have regard to this closing report. But just for the sake of the Members, and while we’re on this report, let me just take them through what the closing report had found. Right, and I'd ask you for comment on anything, if you so wish to comment, after I've told them what the reasons for the closure were as for the report. So if we go to page 5.1.2, the closing report “Adv Sikhakhane, in his report recommended to SARS that the activities and functions of this unit must be specifically investigated by the Inspector General. SAPS has also been tasked to investigate the matter of which the National Prosecuting Authority, Head, Adv Shaun Abrahams when briefing the Parliamentary Portfolio Committee on Justice on Tuesday, 28 March 2017 stated that the investigation of the so-called Rogue Unit at the SARS is yet to be finalised”. And then comes to the conclusion that was reached in this report “We cannot pursue this matter any further as it is in the Office of the Inspector General of Intelligence and the NPA is in the process of finalising the matter”. In 5.2 it says “Whether there were irregularities in the process followed in the dismissal of Mr Pheega”. Do you know who Mr Pheega is, Mr Mike Pheega... Mr Mataboge?

Mr Mataboge: I got to know that he is one of the former employees of SARS, I believe.

Adv Bawa: Did you consult with him during the SARS unit report?

Mr Mataboge: No, I don’t remember.

Adv Bawa: Okay, and in the closing report it’s found that the “allegation as to whether there were irregularities in the process followed in the dismissal of Mr Mike Pheega is unsubstantiated as due processes as followed by SARS and a disciplinary hearing was conducted by SARS in respect of his dismissal”. Go down further, “Mr Pheega also accepted the decision of the disciplinary committee and subsequently after considering all arguments filed, the appeal chairperson, RJ Mabuza, found that the appeal to be without merits and dismissed it”. Are you aware of that, Mr Mataboge?

Mr Mataboge: I wouldn’t be aware, Adv Bawa. I said I didn’t have sight of the report nor the file itself.

Adv Bawa: I’m just talking about the finding of the appeal chairperson, not necessarily the conclusion in the report.

Mr Mataboge: I would not be aware of that.

Adv Bawa: And then it comes to whether there were any irregularities in the transfer of Mr Keletso Manyike from the SARS Head Office to Nelspruit. And the conclusion there is that the “allegation as to whether there were any irregularities in the transfer of Mr Keletso Manyike from SARS Head Office to Nelspruit is not substantiated as SARS merely followed Mr Manyike’s request to be transferred and thus approved his request”. Further “SARS, in fulfilling its obligations in terms of clause 4.6.4(b) of the FTSS Agreement, and in consultation and agreement with Mr Manyike, secured a suitable position for him in the Debt Management division in Mpumalanga”. And so in conclusion, Mr Madiba finds “having considered your matter, evidence submitted of record it is against this background and to this end that a conclusion with respect to your matter be reached, forthwith is a conclusion of same thereof”. And it then says “Kindly take notice that in view of the afore-mentioned reasons, this matter will not be pursued any further by this office and wherefore we are considering closing the investigation in question.“ And he is then given an opportunity to provide further information to respond to the closing report. And then it says that this notice is confidential and the contents must not be disclosed. And it’s signed by, go down... it’s signed by the Senior Investigator and the Chief Investigator in October of 2017. Right, now if I take you to the SARS unit report... Oh, Mr Mataboge, as a matter of procedure, if a report is closed by anybody other than the Public Protector, then the Public Protector is entitled to review such report. Would that be correct as a matter of procedure?

Mr Mataboge: Yes, that is correct.

Adv Bawa: And that happens at times when the complainant lodges an appeal for example, or provides further evidence and it comes up to the Public Protector. She may very well have a look at it, and come to a different conclusion. There's nothing untoward about that. Would you agree?

Mr Mataboge: Yeah, that is correct. That is correct.

Adv Bawa: So I want to spend, and I'm probably going to start and finish this with you tomorrow morning. I want to take you through some pertinent aspects of the SARS unit report. And I want to at the onset say this to you. I'm interested, and I'd like for you to share with the Committee the process that was followed, and not necessarily the outcomes. So the conclusions of findings of facts that are reached. For example, whether or not the SARS unit did or did not do illegal work... I'm not wanting to take you through the substance of the findings of the report. But to explore the process in the context of the motion. Do you understand what I'm saying Mr Mataboge?

Mr Mataboge: No, I don’t, Adv Bawa.

Adv Mpofu: Neither do I, Chairperson.

Adv Bawa: Yeah, okay. I knew that came out badly, Adv Mpofu. Let me try it again. I'm looking at the process that was followed in the compilation of the report. And so my questions are going to be geared towards the process that was followed as the report got compiled. Does that make better sense?

Adv Mpofu: Yes.

Adv Bawa: I’m not going to delve into...

Chairperson: No, before you... can Mr Mataboge respond as well and then you can add. Mr Mataboge the question is towards you.

Mr Mataboge: Chair, if I understand it correctly, it means the end product not the whole journey of the investigation. Am I right to understand it that way?

Adv Bawa: No, I'm talking about the process of investigation, and not necessarily...

Mr Mataboge: Which is the journey. The journey I'm referring to.

Adv Bawa: Yes, the journey of the investigation and not the findings of the investigation as such.

Mr Mataboge: Yes, if that's the case. I understand you, Adv Bawa.

Chairperson: Do you also agree to that journey, Adv Mpofu?

Adv Mpofu: Yes, I do understand, Chairperson. But it looks like we’ve also come to the end of the journey right now.

Chairperson: Thank you, Adv Bawa?

Adv Bawa: Let me use my nine minutes productively, but I do know that Mr Mataboge has constraints, and I won't keep him. Just to put this on record, it starts with an anonymous whistle-blower complaint in October of 2018. And then we have a complaint lodged, dated the 8th of November by Mr Shivambu, which is stamped the 9th of November. That's what starts off the inquiry. Would you agree?

Mr Mataboge: Yes, I do agree, Adv Bawa.

Adv Bawa: And I'm not interested in the identity of the anonymous whistleblower. So let me put that upfront with you, but I am interested in two things about the anonymous whistle-blower. Did you have a meeting with the anonymous whistle-blower?

Mr Mataboge: Yes, under normal circumstances we would, because as I said our process inducts us to log the issue and confirm the issue for investigation. So I'll have to check my records in that we’ll be discussing that tomorrow.

Adv Bawa: Okay, so we have an email on file which may assist you, where the anonymous whistle-blower says he’s not residing in South Africa, but he would be in South Africa in December, and an appointment would be scheduled. And I have a reference that this is an email dated the 22nd of October 2018, where he indicates that. And my next question, which you may want to check, is whether indeed such a meeting had taken place with the anonymous whistleblower. And please understand me, Mr Mataboge, I don’t want any information that would disclose the identity of the whistleblower. I'm mindful that there’s an obligation on your part to protect it. I just want to know whether such a meeting had taken place, and the second leg of that argument is whether documentation and information had been provided to you by the whistle-blower.

Mr Mataboge: That I understand, Adv Bawa. It is clear.

Adv Bawa: Chair, I know we have a few minutes, but this would be a convenient time for us to adjourn.

Chairperson: Well, if we get that bonus of minutes from you, which is five minutes, I will not object. We will pause here, colleagues, for today. And then we will resume tomorrow with Adv Bawa. The time, just to remind everybody, because we’re going to end at one o’clock tomorrow, so we’ll start at nine, and not at ten. You are dutifully reminded of that. We'll pause here. Thank you, Mr Mataboge for the start of the session with you.

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