PP Inquiry day 54: Rodney Mataboge (suspension of evidence to consider threat against witness)

Meeting report

The Chairperson: The time now is 09:06 am. We do now have a quorum – Hon Sukers has completed that quorum. Just to say good morning to Members, here at the M46 and on the Virtual Platform. Good morning and welcome to the Public Protector and her legal team, led by Adv Mpofu. And to acknowledge and welcome advocates Bawa and Mayosi as our Evidence Leaders; members of the media who have joined us; support staff; as well as the people who brought us here – members of the public on YouTube and 408, you are all welcome. This is the second day with our Witness, Mr Rodney Mataboge. We are now going to resume our proceedings as Hon Nqola walks in. But before that, there is something Ms Fatima Ebrahim and myself are handling. I just want to quickly bring you on the platform, before we go to Adv Bawa, to explain a small matter we must deal with quickly. Ms Ebrahim?

Ms Fatima Ebrahim (Parliamentary Legal Advisor): Thank you, Chairperson, and good morning to everyone on the platform and here today. Chairperson, I wish to raise the matter in a private, closed, meeting of the Committee in the absence of the Evidence leaders, the PP’s legal team, and the Witness as well. That would include asking all media to please leave while I raise the issue.

The Chairperson: Okay, that is the request, colleagues, hopefully, it will not be long. Can I ask the Evidence Leaders, members of the media, and the Public Protector legal team, just for a few minutes –  we will try not to delay – to excuse yourselves?

The proceedings were then closed to the public for an hour.

The Chairperson: Colleagues, the time is now 11:21 am. Let me firstly, as I welcome the Public Protector and her legal team, led by Adv Mpofu, our Evidence Leaders, advocates Bawa and Mayosi, members of the media, and members of the public. Let me start by firstly apologising for the inconvenience we would have placed on you when we asked that we needed to have an in-Committee meeting to attend to a meeting we will fully brief all of you on. So, our apologies for that inconvenience. It has taken longer than I thought. It became apparent in our discussion that we had to apply our mind as a Committee, so please receive our apologies for that. We are back now, and I will, as a Chair, try my level best to place you in that meeting in a way that will make you not lose anything in that in-Committee meeting because we are a transparent National Assembly. Yes, we work according to the rules and what the Constitution dictates. We asked that you excuse us because we wanted to entertain a matter that would have come to our attention as a Committee through the legal advisor, overnight, from the Witness. The Witness would have shared with our legal advisor a text message that would have been sent by an ordinary South African to our Witness, Mr Mataboge, last night already. We are going to take you through even that step and walk with you what that text says and walk with you what then happens thereafter in our discussion. And I will end by sharing with you what we have decided on as a cause going forward. I hope I will do proper justice in that regard. Maybe before I get into much more detail, I will ask that Ms Ebrahim firstly flights this message so that when we place to you what our discussion was it is on the basis of you also having interacted with the message because you also have to see if we worked in the manner that we should have. So, the first point, therefore, I am going to ask Ms Ebrahim to flight the message. We are doing this because we are in a transparent space. This is what would have been shared during the in-Committee meeting, and the Committee took a decision immediately that the first thing that must be done is to name the person and share the message for all to see and know. Hence I will start there.

Ms Ebrahim: Thank you, Chair. That is the message that is displayed, it is as it comes directly from Mr Rodney Mataboge to myself.

The Chairperson: It is sometimes nice when it is read for us to follow. Do you want to read (it)?

“Mr Rodney Mataboge I have been waiting patiently to listen to your testimony of section 194 in parliament. I am Mokgele Mojaki you were hellbent on producing an adverse report on me in Ngaka Modiri Molema. You failed to sustain your shenanigans in court, you are not an honest person. I hope you are exposed no wonder you have been called as a witness by the very person you have been misleading. You deliberately tried to frustrate me but at the end was vindicated. You will never practice outside that office because you are not worth to be an advocate. Now you are live the whole country is watching you. Karma is a bitch. I have been patiently to see you exposing your self. You are good in hiding evidence rule 53 records of all the cases lost by the public protectors office where you were involved. You should hang your head in shame.”

The Chairperson: Thank you very much. I take it that we have all read the message. So, colleagues and to everybody, this is what we wanted to discuss because we felt that the work of this Committee was being impeded by the sending of such a message to a witness, yesterday, that is here in the Committee. We allowed the Committee to discuss this after Ms Ebrahim presented and I will summarise – I will not raise things verbatim – the Committee’s discussion. Firstly, that the Committee was of the very firm view that you are aware that Mr Mataboge made remarks for about five minutes yesterday and the Chair would have allowed that. One of the things he would have raised was in relation to the protection of witnesses; our response was that we will endeavour to ensure that witnesses are protected to the best of our abilities. We have the firm view that it cannot be allowed for a witness here to receive a text message from whoever, to a point where our work will be impeded. The Committee was also of the firm view that everybody needs to know who this person is, as the person himself in that text mentioned who he is. We firstly need to follow that up. I would have asked as a Chair, before the start of this meeting, for the  Secretary of the Committee to phone this person before the meeting started, and ask this person, who is Mr Mojaki, to put whatever he has in writing, to this Committee, and for him to desist interacting with this Witness. The decision of the Committee was that this should be formalised in writing as of today, so we will attend to that matter. So, I will leave that first part. We then, as a Committee, discussed the dilemma that the Witness was sitting on. At some point, we would have called the Witness to hear him out alone. In summary, the Committee was of the view that we have to stay, firstly, in protecting our witnesses – we have to keep that. We have to be consistent in ensuring that this process is fair and rational and that we must also firstly attend to the nature of this message, whether this message contributed a threat, intimidation… or what does this message necessarily do. Members would have indicated that up to so far, with the few months that we have started a number of witnesses would have endured this kind of risk. We have made examples of written submissions that came to this Committee through the Secretary, either while the witness was on the stand or after people were writing to us to say that ‘this witness has mentioned my name’ or ‘this witness is not saying the correct things’ and so on. So, we shared those kinds of examples. I think the Committee was, therefore, of the firm view that we needed to hear from Mr Mataboge whether that, in his own view, the message constituted a threat. And that reading this message, if we have to invoke Rule 184 of the National Assembly Rules that the bar would be much higher for us to close the meeting and have his testimony in camera, that it does not meet that criteria to go that route if we were, under extreme circumstances (to) forego having a transparent testimony. There are about three or four options that the Committee explored. One, was whether we should continue having an in-Committee meeting with him or should we go ahead in the manner we started yesterday, or should we invoke Rule 6 in areas where it asks the Speaker to assist in a particular matter. But also what was placed in the Committee discussion was that, it looks like, especially also after Mr Mataboge was asked, the text message you see has nothing to do with the testimony that was started yesterday. It is a text that relates to previous work. That was also confirmed by Mr Mataboge, even though he thought it is so, but it is unfair. Therefore, it looks to us that there is an inherent risk in the job they are doing as investigators in the PPSA (Public Protector of South Africa). One of the decisions that we took was that immediately the PPSA is going to be interacted with, to do what it must do to protect Mr Mataboge, because as we speak he is in the office because it looks like these issues relate to other matters other than the one we are dealing with. After we listened to Mr Mataboge, who indicated that he was seeking legal advice, and that legal advice is in relation to him being subpoenaed by the Committee, because what he was offering is that he intends not to proceed under the circumstances, with his testimony. I specifically asked whether he is ready to proceed today – he indicated that he is not. We then put to him that he would have been scheduled to be in front of this Committee since yesterday, today, tomorrow (being Thursday), as well as Friday. And we would have indicated to him that we do not have the option as a Committee not to conclude his testimony – we want to do that. As a result, we have decided, therefore, we are going to subpoena Mr Mataboge. For all practical reasons, we are not able to do that for today, but he is going to be subpoenaed to appear before this Committee tomorrow, as well as on Friday. Those two days, being days that were scheduled with him, where he is available, were shared with this Committee, and the Committee is working towards that. Finally, that is what we agreed to; that is what we want to place in front of you. Ms Ebrahim, if there is anything you want to add in terms of some of the few steps we have taken, you can indicate so.

Ms Ebrahim: Thank you, Chair. Nothing to add except to say that the process from this point, since concurrence of the Speaker has already been obtained, is to instruct the Secretary to Parliament to issue the summons and then it will duly be served. Thank you.

The Chairperson: Thank you, Ms Ebrahim. Colleagues, that is the presentation of the in-Committee discussion we had as a Committee. Hon Members, I hope that I would have accurately reflected our discussion, but feel free to add to a point I have not already mentioned. That summary was done to the best of my ability and is now before the public. Anybody with grief about the summary, amongst the Members? Silence indicates that I have not summarised in a bad way. Thank you, Hon Members for that confidence. That is it, Hon Members, Colleagues, and everybody else. What this effectively means is that now being 10:40, we are not going to proceed any further with our Committee today. We were, in any case, going to end at 13:00, so we are losing the whole morning in terms of the testimony because I would have wanted Adv Bawa to start at 09:00 and finish at 13:00. Now, that messes up my programme, but I will deal with that tomorrow. Thank you very much. If there is no clarity or question, that is where we are going to end it. The meeting is adjourned. Thank you.

The meeting was adjourned.