PP Inquiry day 56: Bianca Mvuyana

Meeting report

[PMG draft report]

Chairperson: On this day, 27 February 2023, I welcome all Members here at the M46 and on the virtual platform. I welcome the Public Protector and her legal team led by Adv Mpofu here at M46. The Evidence Leaders, Adv Bawa and Mayosi, members of the media, our entire support staff, as well as the members of the public joining us for our continuing inquiry. Today, we welcome back the witness who would have taken an oath before, Ms Mvuyana, who is with us here physically. You are still under oath – we do not need to repeat that exercise. We have paused at the time we started with you regarding the issue of a statement that has subsequently been attended to. I recognise and invite Adv Mpofu to start the proceedings with you. Welcome back, again. Over to you, Adv Mpofu.

Adv Dali Mpofu (Leader of the Legal Defence Team): Thank you very much, Chairperson. Chairperson, I wanted to start by dealing with certain issues to do with witnesses, both the outstanding witnesses. And if you remember last week, there was also the issue of whether Mr Linda, the driver, could be called by Ms Bawa or myself. I am just mentioning that, Chair, because that is what I intended to do, but because of time Adv Bawa and I have not finalised those discussions. So in due course, maybe after tea, can I deal with those practical issues? Once we have some kind of understanding. Thank you. Good morning Ms Mvuyana.

Ms Bianca Mvuyana: Good morning.

Adv Mpofu: Alright. I am going to be asking you questions, probably for the day.

Chairperson: Yes, I forgot to indicate that. Thank you, Adv Mpofu. Adv Mpofu will have the day with you. We hope that he will spare us some time and finish by tea. But he has the day.

Adv Mpofu: Yes. No, I will finish my tea tomorrow, Chair. Thank you. Okay, ma’am. We will see how it goes. And so what I am going to do is, as I indicated, I think when we started last week, I had said that I was going to start by giving some introductory remarks – not for long – and then I will ask you specific questions. But I thought it might be appropriate because as they say, black people always start a speech with an apology. So, I thought we will start by apologising for the two false starts that we had in your case, and also to thank you for coming here physically. We know that is quite demanding. We also prefer to have the hearing remotely, but that just exposes us to all sorts of things, like being muted. So at least when we are here we are able to have a decent hearing. I wanted to… I am going to, hopefully, as I always say to the Chair, when I make this opening remarks, it is really to try and contextualise your evidence. Okay? And hopefully then it saves time. So we waste a bit of time at the beginning in order to save time, because otherwise we can be here for the whole week chasing something that is not pertinent to this inquiry. Well, as a legally trained person yourself, I am sure you have heard of the favourite statement of lawyers that context is everything, correct?

Ms Mvuyana: Correct.

Adv Mpofu: And so, these remarks will be punctuated by a few questions… are meant exactly to do that. Maybe I should just ascertain from Ms Bawa… I am assuming that normally, she would have given me an indication of which paragraphs in your statements are not in contention but I have done that exercise for her. So if she has not done it, she can confirm. I am assuming that paragraphs one to fifteen are not in contention, maybe with the possible exception of paragraph eight. You do not have to respond immediately, Adv Bawa. But when I start with the questions, you can just check if that is correct. But even though that is so I want to just confirm that you hold an LLB degree, correct, ma'am?

Ms Mvuyana: Correct.

Adv Mpofu: And you joined the Public Protector in 2013 as a trainee investigator at the so-called GGI (Good Governance and Integrity) unit?

Ms Mvuyana: Correct.

Adv Mpofu: Right. And broadly speaking – we will come to this – you are here… there are various reports which form part, and judgments, form part of this Committee; you did not take part in most of those, you only took part in the so-called rogue unit investigation, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Of course you took part in many other investigations, but as far as those relevant to this Committee, it is the so-called Rogue Unit or SARS Unit investigation, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Right. Okay. Now with that, then I will make my opening remarks, Chairperson. And some will be directed at you Ms Mvuyana. The most important thing for the sake of context is that and I want you to keep this in mind, this Committee is not seized with determining whether or not there was a Rogue Unit. It is either there was a Rogue Unit or there was not. The work of this Committee is different. If we were to establish the existence of the Rogue Unit, we would be here all week. Do you understand that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Okay. This Committee has been given certain judgments and in particular with Rogue Unit one, there is a judgment which was handed down by a court headed by Judge Baqwa, who is himself a former Public Protector. But putting that aside… So that is the judgment that is pertinent. And that judgment is judgment number 48521. It is 48521/19 of the Gauteng Division. You are familiar with that judgment, correct?

Ms Mvuyana: Yes, I am.

Adv Mpofu: Now, here is the most important thing which, unfortunately, has been missed in this Committee. Again, this Committee, unlike what the Evidence Leaders have said that the judgments are binding, and I think some of the Members, most of the Members, operate from that incorrect premise that the judgments are binding to the Committee, and therefore, they are what they purport to be. We hold a different view on that, but that is a matter that will be argued at the end. We hold the view that this is an Inquiry. And I think maybe people do not know what the meaning of an Inquiry is but you can also maybe assist us because you are an investigator, and in a way, you are also an inquirer. If indeed, would you agree, and this might be relevant to when you talk about the other investigations like KPMG, Sikhakhane, and so on. So if you were doing an investigation or an inquiry, but you consider yourself bound by some other inquiry or investigation, then would there be any point in doing that inquiry? Because, after all, you are bound. You get where I am going with this?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Yes. So the mere fact that we have something here called an inquiry into these judgments means that the Committee must do exactly that, inquire into the findings that are made, otherwise, we are wasting the taxpayers' time here because the judges have spoken. We should just spend one day to certify the adjustments and then we go home. Do you understand?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Do you agree with that approach?

Ms Mvuyana: Yes.

Adv Mpofu: And am I right, that you yourself, have said in your statement, for example, that despite there being several reports, which had made findings, adverse findings, on the so-called Rogue Unit, you did not regard yourself bound by them, you still conducted your own inquiry and came to your own conclusions, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Well, we hope then that the Committee will learn something from that approach. But let us put that aside about what an Inquiry means. Also, this Inquiry is not about… so much about the impeachment or non-impeachment of the Public Protector, although it is related to that, because that is the work of the National Assembly. This Committee is really seized with enquiring into something much simpler, which is the veracity of the allegations of misconduct and incompetence on the part of the Public Protector as made by one, Ms Natasha Mazzone MP, and subsequently adopted by the majority of Members in the National Assembly, mainly made up of the ANC (African National Congress) and the DA (Democratic Alliance). But Ms Mazzone being the sponsor or the complainant. Are you familiar with that history, generally?

Ms Mvuyana: Yes, I am.

Adv Mpofu: Okay. Now, let us take, for example, the issue of competence here. So, there are those who come here believing that because the judgments have already pronounced on the issues of incompetence, for example, therefore, it follows automatically that she must be incompetent. Now, if you approach the matter from that point of view, that there is a pronouncement of her incompetence and you are bound by that pronouncement – that would be tantamount to coming here with a predetermined outcome, would it not?

Ms Mvuyana: Yes, it would.

Adv Mpofu: And again, I want to refer it to your own experience. So if you came to the Rogue Unit, so-called Rogue Unit investigation, on the basis that ‘well, Mr Sikhakhane has already found that it was unlawful, and therefore, it must be unlawful’, you would also be approaching the matter with a predetermined outcome, correct?

Ms Mvuyana: Correct.

Adv Mpofu: And that would be disastrous, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Alright. Because, as you know, again, as a lawyer, surely you know that holding a predetermined outcome for a process that is supposed to be fair, whether it is this Committee or the Public Protector, is one of the most serious affronts you can have to our Constitution if that process is supposed to be fair, correct?

Ms Mvuyana: That is true. Correct.

Adv Mpofu: So we should not even waste the time of the taxpayers and this Committee, if indeed the Public Protector is a person who approaches – or you, as an investigator or Mr Mataboge or anybody in your team – approaches an investigation of this seriousness already with an outcome in mind, or one that you think that you are bound by, then you might as well not be called the Public Protector, correct?

Ms Mvuyana: Yes, correct.

Adv Mpofu: In fact, I can tell you, personally, I would be the first one, if it was true that the Public Protector just looks at your face and decides if you are guilty and then investigate, I would be the first citizen of South Africa to say she should be impeached. And I am sure you would too, correct?

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

Adv Nazreen Bawa: Chair, I did not want to interrupt Adv Mpofu because he said that he was making some preliminary remarks, but he is leading the witness and it is his witness. It is not ordinarily so that he is entitled to ask varying questions and solicit the correct answer indirectly. He is not cross-examining this witness.

Chairperson: Thank you, Adv Bawa. Please keep your mic switched on. Adv Mpofu?

Adv Mpofu: Chair, I am really… I mean these are… I have not even started asking the questions that I want to ask. I asked for your indulgence for me to make these opening remarks. And if you want me to make the opening remarks without reference to the witness’ own experience or statement, then I will do so. But I think it is better if I kill two birds with one stone as I am trying to do. In other words, making my remarks but also relating that to what she has said in her statement by the way that she did not regurgitate or cut and paste those other reports. So, Chair, if you allow me to continue like this, I will. But I will be mindful that when I come to the content issues, then I ask the questions in a different style.

Chairperson: Okay, let us proceed in that way, Adv Bawa. Proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Alright, maybe let me do it like this, ma'am. So that… Indeed, I am trying to save the time of the Committee, by whatever I am saying, I am not just saying it in the air, but situating it within the realities of this Committee. Let me do this, maybe to make it easier for Adv Bawa. You have indicated in your statement, and I think it is common cause, that the key charges that are relevant to your testimony or the other way round, to which your testimony and that of Mr Mataboge is irrelevant, are mainly charges 10 and 11. I am just getting a reference to the charge sheet, Chair. Okay, just for the sake of completion, you are not here to testify on anything to do with the CIEX investigation, correct?

Ms Mvuyana: Correct.

Adv Mpofu: You were not involved there?

Ms Mvuyana: No, I was not.

Adv Mpofu: Neither are you here to deal with the Vrede Investigation and by that I mean Vrede one. You were not involved in that either, correct?

Ms Mvuyana: Yes, I was not involved. That is correct.

Adv Mpofu: And therefore, you are really here for Charge Four. And Charge Four has got two broad elements.  The first one is what we call the HR (Human Resources) issues. We will deal with that later. That is the issue of victimisation and harassment and so on. You will assist the Committee insofar as you can simply because you are an employee there and if these things were happening, you either might have seen them or experienced them but we are not going to go too much into that. You understand that?

Ms Mvuyana:  Yes, I do.

Adv Mpofu: Yeah, so that in our language here is Charge 10. That is the one that deals with harassment, victimisation and intimidation. Mainly, you are here really for Charge 11. So it is 10 and 11. And 11, Chair, if I may read it. It is Bundle A, page one to eleven.

Chairperson: Ms Mvuyana, if you could just shift towards this end and use that mic, because you are going to spend the whole day looking that side. It is going to be better for you to do that.

Adv Mpofu: Yes. Thank you, Chair. Try to speak into the mic because your voice is a bit soft.

Ms Mvuyana: Noted.

Adv Mpofu: Thank you.

Chairperson: Just lift it.

Adv Mpofu: That is Charge Four [on the screen]. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Mpofu:  And it has two components, 10 and 11. Ten is the one that we just spoke about, harassment and what have you. So we will talk about that later in your evidence. And then 11, as I say, is the core charge that you are for.

Ms Mvuyana: Yes, I am.

Adv Mpofu: Okay. 11.1, you do not have to worry about that. And 11.2 is something to do with the legal costs, you do not have to worry about that. So the main charges that pertain to you are 11.3 and 11.4. Let me just read them out. It says that “Adv Mkhwebane committed misconduct by and/or demonstrated incompetence in the performance of her duties by failing intentionally, or in a grossly negligent manner to conduct her investigation and or to make a decision in a manner that ensures the independent, impartial conduct of investigations and or by” and these two things are connected, so that failure is 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 when such conclusions and/or measures and/or remedial action manifestly had no basis in law, or, in fact.” Again, as a legally trained person, I want you to… you understand what the gist of that allegation is?

Ms Mvuyana: Yes, I do.

Adv Mpofu: That it is not so much as I said earlier about whether some report is correct or not correct, or whether there is a Rogue Unit, or there is no Rogue Unit or whatever. It is about the Public Protector, deliberately and yourself, I suppose, and other people in your team, deliberately saying that there are certain public officials who must be targeted, against whom there must be a vendetta to find them guilty, no matter what the evidence says. No matter what the facts say, on the one hand. And then there are other public officials who, no matter what the evidence says, no matter if you have a picture of them taking money from the till, must not be found guilty. That is an impeachable offence, you and I would agree, correct?

Ms Mvuyana: Correct.

Adv Mpofu: If it was indeed that here there are two public officials, one is called Minister Herron and the other one is called Minister Gondwe. So that accusation is really this: Minister Herron, because he is the favourite, it does not matter, you can have a video of him stabbing somebody, but the Public Protector will not find him guilty. Meanwhile, Minister Gondwe, because she is not our favourite, could be as pure as snow but if anybody accuses her of something, she is going to be found guilty, just because it is her. That is really what the essence of this impeachment charge is, you understand that?

Ms Mvuyana: Yes, I understand.

Adv Mpofu: Right. Now, let me tell you then that in this particular inquiry the people who fall under the Minister Herron, the untouchables who will always be absolved, are according  to the evidence presented to this Committee, people like Mr Ace Magashule and Mr Mosebenzi Zwane. So it is said that the Public Protector had evidence against them but absolved them. You have been following the Inquiry, correct?

Ms Mvuyana: Yes, partially.

Adv Mpofu: Partially, yes. And then the other people who fall under the Minister Gondwe category, according to the evidence here, are Mr Gordhan, Mr Cyril Ramaphosa and to some extent, Mr Pillay. So those are the people that, according to what keeps us here for the past seven or eight months, those are the people against whom it does not matter if they have done nothing wrong; you and the Public Protector and Mr Mataboge and the people at the Public Protector will always find them guilty. You understand that?

Ms Mvuyana: Yes, I understand that.

Adv Mpofu: Right. So that is the essence of why you are here. It is not about whether there was a Rogue Unit or not. It is about whether that theory of the Evidence Leaders, or rather, I am sorry, of Ms Mazzone, is sustainable. In which case, as I say, if it is, then I will be the first one to agree with Ms Mazzone that there should be an impeachment. But let us inquire into that. Alright. Now, let me start by saying this, Chair, and I am now getting into the meat, would you agree, as a general proposition, that if there was indeed such a conspiracy to target, in the pursuance of a vendetta, people like Mr Ramaphosa or Mr Gordhan, or Mr Pillay, at least insofar as that pertains to the Rogue Unit, so-called Rogue Unit investigation, you would have to be part of that conspiracy, correct?

Ms Mvuyana: Yes, for it to work.

Adv Mpofu: To succeed, yes. In other words, remember, you are not facing impeachment proceedings. It is really the Public Protector who is facing impeachment proceedings. But for her to be guilty of this heinous offence envisaged in charges 11.3 and 11.4, it would be impossible to carry it out without enlisting the conspiratorial cooperation of people like yourself and Mr Mataboge, correct?

Ms Mvuyana: Please explain conspiratorial?

Adv Mpofu: Okay, let me simplify it. Let me ask you one question before. You, according to what I consider to be the non-contentious part of the statement, were the investigator in the so-called Rogue Unit investigation, correct?

Ms Mvuyana: Correct.

Chairperson: Just try and raise your voice as you respond, so that we clearly get it on record.

Ms Mvuyana: Noted.

Adv Mpofu: Yes, please because the majority of the Members are on online. I am sure if we are struggling being here, then I am sure they are struggling even more.

Ms Mvuyana: I will try my best.

Adv Mpofu: Good, thanks. In fact, that is good. Also be as close to the mic as possible. Alright. Let me… I am just going back to, instead of using those big words, to break it down, into… So you are the investigator, right?

Ms Mvuyana: Yes.

Adv Mpofu: Now, just explain to us as if we were coming from Mars how that works, because remember, us and the Members and the Members of the public, the things you might take for granted, because you work there, are not generally known out there, correct?

Ms Mvuyana: As far as I am aware, yes.

Adv Mpofu: Yeah, so please then assist us as members of the public and as Members of the Committee. So, I am correct that in a team of an investigation of this nature, you would have, let us call it on the ground-level, someone like you would be the foot-soldier on the ground – the investigator?

Ms Mvuyana: Yes.

Adv Mpofu: In a typical investigation, I know it did not apply to this one, the next level you would be reporting to is a senior investigator, correct?

Ms Mvuyana: Yes.

Adv Mpofu: That is number two. That person – the Senior Investigator – then reports to a Chief Investigator, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: The Chief Investigator reports to the Executive Manager, correct?

Ms Mvuyana: Yes, correct.

Adv Mpofu: The Executive Manager reports to the COO (Chief Operations Officer) or sometimes the Acting COO, depending, correct?

Ms Mvuyana: That is correct.

Adv Mpofu: And then the COO reports to the Public Protector and the DPP (Deputy Public Protector) – let us just say the Public Protector?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: So that is the point I am making. So therefore these five, sometimes four, sometimes three steps, are the people, including the Public Protector, who would have to be part of this conspiracy to condemn the target of the vendetta, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Yes. Now, I want you to say this very clearly to the Committee, because I think it is not understood. The person or the people who actually do the investigation work are the investigators in that chain that I explained – not even the EM (Executive Manager) really. Let us say it will be the investigator, the senior investigator and the chief investigator; those are the people who do the nuts and bolts investigation, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And therefore, I will put it as strongly as this,  would you agree … The Public Protector, when she testifies, will explain this as well in detail, but I just want to test this with you because I cannot call you after the Public Protector, so I have to take advantage of you being here now. She is going to tell the Committee that, and put it as strongly as this: it is impossible, literally impossible, for her to carry out this kind of conspiracy that she is being accused of, if she did not have a donor to bribe or recruit or get people like you and the senior investigator and the investigator to be part of that conspiracy. Will you agree with her?

Ms Mvuyana: It will practically be impossible without recruiting us to achieve the conspiracy?

Adv Mpofu: Yes, absolutely.

Ms Mvuyana: Yeah, that is correct.

Adv Mpofu: Thank you. Right. So in a way then you are, I am sorry to say this, in the dock as much as she is because for this thing to be sustained. You would have to be in on it somehow, or at the very least, maybe turn a blind eye, you know, wink wink, kind of arrangement, even if you were not a full-time member of the conspiracy, but certainly you would have to overlook certain evidence, correct?

Ms Mvuyana: Yes, and also be in agreement…

Adv Mpofu: With the conspiracy?

Ms Mvuyana: Yes.

Adv Mpofu: Yes. Right. And in this hierarchy that I have explained, I am not even counting other people like the quality control people and those kinds of people, I am just counting the management people. But obviously those people would also have to turn a blind eye to these glaring anomalies, correct?

Ms Mvuyana: Yes, but they would only see those anomalies when they received the draft report.

Adv Mpofu: Correct. Okay, fair enough.. So by then, obviously, maybe some of the concealment would have already happened – is that what you are saying? That they may not necessarily have to be members of the conspiracy because they may only encounter it at the time of the draft report?

Ms Mvuyana: Well, the draft report will detail the investigation process. They are not involved in the investigation process. So they would have to overlook… yeah, glaring anomalies.

Adv Mpofu: And deficiencies?

Ms Mvuyana: Yes.

Adv Mpofu: Yes, thank you. Well, alright. That is what the Public Protector is accused of. But in truth then the foundational stone of this conspiracy would have to be the investigator because you are the person who is unearthing things, requiring things, and asking questions or suggesting which questions should be asked, correct?

Ms Mvuyana: The person who would actually be, if I am understanding your question correctly, are you saying that the person who would actually have the conspiracy is the investigator? So I would have bias against…

Adv Mpofu: Yes, the person who would be… the implementer, let me put it that way, of the conspiracy, would have to be the investigator.

Ms Mvuyana: But then where did the conspiracy come from?

Adv Mpofu: No, it comes from the Public Protector. Let us say in this theory that the leader of the conspiracy is the Public Protector. But I am saying for her to execute it, the investigator, and I do not mean you as I mean any investigation, the investigator is the person who is involved with the actual spadework of that investigation, correct?

Ms Mvuyana: The investigator is involved in the spadework if they are in agreement with the Public Protector to have a conspiracy against a certain individual, then the investigator will carry out the spadework inclusive of anyone that is in the team – hypothetically speaking.

Adv Mpofu: Yeah. No, we are still there. Believe me, we think that this is all hogwash but I am just talking hypothetically, yeah, as you correctly point out. Okay. Now… Okay, so let us move away from the mechanics of what it is that the Public Protector is being accused of and let us now go to the so-called evidence that has been placed before this Committee. I have already explained to you that that ‘evidence’ is primarily in the form of court judgments. You understand that?

Ms Mvuyana: Yes.

Adv Mpofu: And I told you that there are two schools of thought as to whether those court judgments are cast in stone or whether they are susceptible of being inquired into. The Evidence Leaders and people like Hon Mulder and others believe that those judgments are cast in stone and are binding as such – at face value. Now, again, as a legally trained person, you would know that the judges did not just wake up one day and make those findings. Those are based on the evidence presented to them, correct?

Ms Mvuyana: Correct.

Adv Mpofu: So, the real source of the accusations, whether it is bias or dishonesty or conspiracy, what have you, the real source would be the people who brought that case to court, making those allegations against the Public Protector, correct?

Ms Mvuyana: Yes, the people who made the application. Yes.

Adv Mpofu: Yes. And in the case of the so-called Rogue Unit Report, I will show you later. Those allegations came primarily from Mr Gordhan. You are aware of that?

Ms Mvuyana: Yes, I am aware.

Adv Mpofu: And you are aware that Mr Gordhan was also the applicant in those cases that led to those judgments, correct?

Ms Mvuyana: Yes, the Rogue Unit judgments.

Adv Mpofu: Yes. That Mr Gordhan made various allegations, including accusing the Public Protector of being part of State Capture, corruption and what have you. In other words, the basis for that so-called conspiracy was political motives and all sorts of things. You are aware of that?

Ms Mvuyana: Yes, I do recall.

Adv Mpofu: Yes. And, in fact, you would be aware that Mr Gordhan made those allegations, in fairness to him, in response to your Section 7(9) Inquiries?

Ms Mvuyana: Yes, Section 7(9) Notice.

Adv Mpofu: Section 7(9) Notice, yes. And therefore, that is really the source of this conspiracy theory that has brought us here today, correct?

Ms Mvuyana: Allegedly.

Adv Mpofu: Yes. In other words…

Chairperson: I did not get that. You were saying?

Adv Mpofu: Allegedly.

Ms Mvuyana: No, I say allegedly because it is not the only charge, I believe.

Adv Mpofu: Yes.

Chairperson: Okay.

Adv Mpofu: Yes, yes. It is not. Maybe I did not ask the question properly. Confining it to the so-called Rogue Unit related charges, is there… Alright, as between the judgments and the statements made by the people who make the statements in the affidavit, such as Mr Gordhan, which of the two is the basic source of the allegations. Is it the judgments or is it the people who brought the cases to court?

Ms Mvuyana: It is the judgment because the people who brought it to court… There were two judgments. The first judgment was setting aside the remedial action or interdicting the remedial action. And then the second judgment then set aside the reports.

Adv Mpofu: Yes.

Ms Mvuyana: Obviously, the reason for those reports is because Mr Gordhan made an application to court alleging the allegations that you said that the PP was biased and that the investigation was not conducted properly.

Adv Mpofu: Okay. Okay. Then… Okay. Then your answer then is… Okay, it is twofold, and I need you to clarify it now. Which of the, between the judgments and Mr Gordhan, who is the original source of the allegations of conspiracy?

Ms Mvuyana: Mr Gordhan.

Adv Mpofu: Thank you. And therefore, if we are here to inquire into those allegations, which originated from M Gordhan, is it possible or conceivable or logical that Mr Gordhan can be said to be irrelevant to the Inquiry into his own allegations?

Ms Mvuyana: No, he made the allegations, so he should support his allegations.

Adv Mpofu: Right. Thank you. Anyway, that is unfortunately, the view of this Committee is that somebody like that who is the real origin of these charges is ‘irrelevant’ but that is a story for another day. It is the same with Mr Ramaphosa. Now, while we are there, you say that, correctly, that the three persons who were the primary focus of the so-called Rogue Unit investigation were Mr Gordhan, Mr Pillay and Mr Magashula – Mr Oupa Magashula. Do you confirm that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: And you then say “in that order”. So can you explain what you mean by that? Of those three, who was the most important focus of the investigation and source of the allegations of the charges?

Ms Mvuyana: If we had to say main, it would have been Mr Gordhan. The first allegation relating to the report was a violation, an allegation of the violation of the Executive Members Ethics Act (EMEA) that can only be investigated against the Minister, of course. I think we are all aware who the complainant was, so the Public Protector was then bound to investigate that complaint, so Mr Gordhan was the only person that allegation was made against there. The second portion of the investigation, so the other issues, related to Mr Gordhan in relation to the fact that he was the former accounting officer of SARS and that was how he became almost at centre. Yes. The second order which would have been Mr Pillay, Mr Pillay then became the commissioner after Mr Gordhan became the Minister of Finance, I believe. After Mr Pillay left, it was then Mr Magashula. So they were the accounting officers who were involved in the alleged maladministration and improper conduct.

Adv Mpofu: Okay. Thank you.

Chairperson: Just a pause, I just see a hand. Hon Nqola?

Mr X Nqola (ANC): Thanks, Chair. Can you hear me?

Chairperson: Yes, we can hear you.

Mr Nqola: Chair, I wanted to add that we use full names and not abbreviations, for the benefit of the public. I am sure that…

Chairperson: Just repeat that? I missed that. I did not hear you.

Mr Nqola: I wanted to add, Chair, that we use full names and not abbreviations, for the benefit of the public, because I think a lot of people would not know what EMEA is in its full content.

Chairperson: Thank you. Okay, Hon Nqola. Adv Mpofu, over to you

Adv Mpofu: Yes, thank you. Noted, thank you, Sir. I will do it once, and if I say EMEA afterwards… Thank you, Hon Nqola. But I just wanted to say… We will come back to the EMEA point – just to round up the point that you have just made. The judgment, I want to refer to the Judgment. It is Bundle A 4016, the so-called Rogue Unit Judgment. That is case number 48521.

Adv Bawa: Adv Mpofu, the full bench or the Potterill Judgment?

Adv Mpofu: The full bench judgment. Number 3, 118?

Adv Bawa: 18.

Adv Mpofu: 18? Thank you. Thank you. Anyway, Chair, again to save time, while they are looking for it I will read it out. Oh there you are. Okay, just go to paragraph 1.

Chairperson: You can switch off your mic, Adv Bawa. Switch on your mic, Ms Mvuyana.

Adv Mpofu: Thank you. I just want to say that it looks like at least the judgment…

Chairperson: Please switch it on: yours must stay on. Thank you.

Adv Mpofu: Yes. I just wanted to round it off. The judges seem to agree with you at least on what this whole case was all about. The very opening paragraph of that judgment says the following: “On 5 July 2019, the Public Protector released a report, ‘on an investigation into allegations of violations of the Executive Ethics code by Mr Pravin Gordhan, MP, as well as allegations of maladministration, corruption and improper conduct by the South African Revenue Services’, called the report.” Then it says “Apart from the adverse findings made against Minister Gordhan, the report also implicates Mr Visvanathan Pillay and Mr George Magashula, the latter both former employees of the South African Revenue Services in serious misconduct, maladministration and criminality.” So does that accord with your understanding of what this whole business was all about? That the report implicated Minister Gordhan, Mr Pillay and Mr Magashula? And as I say, they are also listed in the order that you have just described.

Ms Mvuyana: Yes, I do.

Adv Mpofu: Right. So according to this other theory it is possible that Mr Pillay can be relevant but Mr Gordhan, who is number one on the list cannot be relevant. But, as I say, that is a matter that we will discuss at another stage.

Ms Mvuyana: Sorry, relevant to?

Adv Mpofu: To the Inquiry.

Ms Mvuyana: Oh.

Adv Mpofu: Or to the issues that have brought you and all of us here. Now, you have also said that as far as the… Sorry, Chair. You have said that as far as what later we will call part one of what later we will call part one of the… or maybe let me do it like this. Is it correct as stated in your statement and I think it is common cause because it was also put to Mr Mataboge, that you received the complaint, or at least one of the complaints from a Mr Shivambu, who is a Member of Parliament, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And it is a requirement of the EMEA, sorry, for Mr Nqola’s benefit, the Executive Members Ethics Act. You agree that is what EMEA stands for?

Ms Mvuyana: Yes.

Adv Mpofu: It is just the abbreviation. And it is a requirement of that Act – the Executive Members Ethics Act – that the complaint must come from a Member of Parliament? It cannot come from me, or my attorney, or my learned colleagues.

Ms Mvuyana: Yes, that is true.

Adv Mpofu: Yes. And you have already said it must also be against a member of the Cabinet?

Ms Mvuyana: Yes, or a Member of Parliament.

Adv Mpofu: Or a Member of Parliament… Actually, no I think it is the…

Chairperson: A Member of Parliament, like me? Thank you. Please attend to that, Adv Mpofu.

Adv Mpofu: No, a Member of Parliament, like Mr Dyantyi, if he does not get to be a part of the reshuffle that is mooted, he would not be a target of EMEA, correct?

Ms Mvuyana: No.

Adv Mpofu: Well, we might be solved by the gong. But be that as it may…

Chairperson: The Committee has got important work to do, and it will continue and complete its business with the Chair.

Adv Mpofu: Well, then there might be an EMEA investigation. Alright. So, insofar as the investigation was split into two parts, the first part, which dealt with EMEA and other things, of these three people would be focusing specifically on Mr Gordhan – the EMEA part?

Ms Mvuyana: Yes, the EMEA part was specifically on Mr Gordhan.

Adv Mpofu: Yes. And therefore insofar as the allegations of a conspiracy relates to the EMEA part they will be originating specifically from Mr Gordhan again, correct?

Ms Mvuyana: The conspiracy to…

Adv Mpofu: The conspiracy allegations insofar as they are sought to explain the EMEA investigation. In other words, it is a sham investigation, it is a fake investigation, it is driven by political considerations and all those things, as far as that relates to the EMEA part of the investigation, those would emanate from Mr Gordhan?

Ms Mvuyana: Yes, they would.

Adv Mpofu: Right. Now… Okay, Chair, I have just misplaced a document but I will improvise. Okay, now, let us get into the judgment. We have spoken about the Section 7(9) Notice. And I am going to take you through that in much more detail but just for the benefit of the Members, could you briefly just explain what a Section 7(9) Notice is?

Ms Mvuyana: Okay. A Section 7(9) Notice is an interim report, as it used to be called, that is issued before a report is finalised. So, it offers whoever is implicated in the investigation or whoever has to implement remedial action, an opportunity to respond so either on the findings that are being made against them, or on the remedial action that they would have to implement. And that is basically it. It is an audi alteram partem process.

Adv Mpofu: Right.In other words, for those of us who are not as familiar with this as you are, can I simplify it like this? You do an investigation. You make adverse findings against me, based on your investigation, and then you will have to send me a Section 7(9) Notice, so that I have my audi alteram partem opportunity to refute your findings?

Ms Mvuyana: Yes, the possible findings that will be made if you do not provide other evidence.

Adv Mpofu: Fair enough. Fair enough. Yes, as you said, the provisional findings.

Ms Mvuyana: Yes.

Adv Mpofu: Now, those provisional findings, depending on my response, if I say to you ‘well, go and jump in the lake’, they might then translate into actual findings?

Ms Mvuyana: Yes.

Adv Mpofu: Scenario two, if I give you a complete explanation that ‘no, this is not what it looks like. It is because I know in your report, you say I had this bottle here next to me, therefore, it looks like I might have stolen it. But I have got a receipt where I bought it and what have you, and here is the receipt’, then you find that your provisional findings will then go away, correct?

Ms Mvuyana: Not 100%. It is not guaranteed, unless you do provide evidence that shows that you actually have the slip. But now, we still have to compare if the slip is actually yours, did you pay for it, and then we then make a determination based on that. We still have to analyse the evidence that you would have provided as well, before making any finding. It is not guaranteed that the finding will be…

Adv Mpofu: Very good. It is not guaranteed. Okay. But even after then I not only provide the slip, I even provide that, you know, video evidence of me buying the bottle, and it is clear that I have 100% explanation, then your findings would not be adverse, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: So that is scenario two. And then scenario three is I give you… I say, ‘Yeah, well, I know that it looks like that bottle, but all bottles look the same, and so on.’ So I do not give you something 100% concrete, but I give you some explanation, which you do not accept. Then, of course, the findings, your provisional findings, in that scenario, might also be confirmed, correct?

Ms Mvuyana: Yes, they might be confirmed.

Adv Mpofu: Right. Okay, fine, now we know what Section 7(9) is and what its purpose is. Okay. Now, before the thing I was looking for – sorry to jump back to that – I just wanted to tie that up. In that paragraph that I showed you in the judgment, is it correct that Mr van Loggerenberg is not mentioned?

Ms Mvuyana: Yes, in the paragraph he is not mentioned.

Adv Mpofu: And you have said in your statement that Mr van Loggerenberg was an implicated person is false.

Ms Mvuyana: Yes, it is.

Adv Mpofu: Yes. Why do you say that? What was the role of Mr van Loggerenberg in this, if he was not an implicated person?

Ms Mvuyana: In our investigation, we focused on the conduct of maladministration and improper conduct. So when the finding of maladministration and misconduct was made against the accounting officers or the former accounting officers, based on the fact that they are the decision makers and took the decisions that were taken in terms of the report. So Mr van Loggerenberg, yes, was a part of the alleged unit, the alleged SARS Rogue Unit, but did not take part in any decision making. So that would be in the establishment, in the recruitment of staff – which were mostly higher level – procurement of equipment, he would also have played no part, so he would not have approved memos, granting approval for SARS to actually go ahead with those purchases or implement certain decisions.

Adv Mpofu: Yes.

Ms Mvuyana: Yeah.

Adv Mpofu: Thank you, because I think there is some confusion about that. Thank you. And is it also correct, and again we will go to the actual Section 7(9) Notice, that Mr van Loggerenberg’s involvement was more located in what was to be known as part two? In other words, the deferred part of the investigation.

Ms Mvuyana: Yes, the allegations made against him directly, were referred to part two.

Adv Mpofu: Yes. And as far as the EMEA… Chairperson, for Mr Nqola’s…

Chairperson: No, I think you have firmly placed the understanding of EMEA fully, so you can continue using the shortened version.

Adv Mpofu: Using EMEA? Yes, I will Chair.

Chairperson: Unless there is a new one that you are thinking of.

Adv Mpofu: No, no. I was just saying, in case Hon Nqola forgets. It is in paragraph 16 of the statement. It is put there in full: Executive Members Ethics Act, and then in brackets ‘EMEA’. Then I agree with you, Chair. Then from now on I think I will feel free to just call it EMEA. Paragraph 16, that is the one on the screen there. Thank you.

Chairperson: The matter is closed.

Adv Mpofu: It is closed now, definitely. In writing. And there in that paragraph, since we have it, you, I am just reading it for completion because you have already made the point. You say “Mr Gordhan played a central role in the investigation due to the fact that as a Minister he was the only person who could be subjected to EMEA, as well as being the former accounting Officer of SARS. His conduct was therefore the primary focus of the investigation, especially part one, which was the subject matter of the relevant report and the judgment, which forms part of the charge or motion”. That confirms the evidence that we have just gone through, correct?

Ms Mvuyana: Yes, it does.

Adv Mpofu: Right. And just for the sake of completion, so that we do not go back to this, from that evidence, you are also saying, apart from being a minister, which he is now or he was then when you were doing the investigation, he was also primary because he had been the commissioner for SARS and therefore the accounting officer in terms of the PFMA, in that respect, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Now, you talk about maladministration. And again, I think it goes back to the point where we started this morning, that these things are not so much about whether there was a Rogue Unit, or even whether a rogue unit, so called rogue unit or investigation unit or whatever you call it, whether it is a good thing or a bad thing. Am I correct that yours was merely to find out if there had been breaches of, for example, the PFMA or any other law?

Ms Mvuyana: That is correct. Also, I think it was covered in the report that the intention of the Public Protector is not to stop anyone from doing anything if we were to specifically talk about the intelligence unit now. SARS can have a unit that is going to investigate taxpayers that are non-compliant, et cetera. Our main focus was whether or not legislation was adhered to, in the conducting of those operations, especially in the establishment of the operations. And that was based on a complaint that we received.

Adv Mpofu: Yes. Yeah, we will come to the complaint, but I think this is an important point to make. I am trying to think of an example. Let us assume then that this whole investigation was about the most important thing. Let us say they were securing ambulances for elderly people, okay? Which is a good thing. Yours was not to check whether the ambulances for old people is a good thing or a bad thing. Yours is to check that in the procurement of those ambulances, what were the prescripts followed, the PFMA, whatever the Ambulance Act, or whatever it is? And that is all really. You do not get involved in whether it is a good thing or a bad thing, correct?

Ms Mvuyana: Yes.

Adv Mpofu: Thank you. And when we get to the report, Chair, that point is very specifically made in the report itself. Alright. And while we are there, we might then as well for the Committee break down the various aspects of the unit that you are looking at. And maybe you can explain in your own words, the first one, if I read the documents, was the establishment of the Unit, correct?

Ms Mvuyana: Yes, the allegations.

Adv Mpofu: What does that mean?

Ms Mvuyana: The formation. So we were looking at the request that was then written to Mr Trevor Manuel, who was the Minister of Finance at the time. The operations, so the kind of responsibilities that the Unit had and how would they achieve those. That  would basically be the establishment. Now…

Adv Mpofu: What else did you look into, apart from the establishment?

Ms Mvuyana: What else…? Do you mean the other allegations?

Adv Mpofu: Yes.

Ms Mvuyana: So it was also the procurement, alleged procurement of equipment for that particular Unit.

Adv Mpofu: Okay, just a minute. So the second leg would be the procurement of equipment?

Ms Mvuyana: Yes.

Adv Mpofu: And in that what would you be looking at, broadly speaking?

Ms Mvuyana: Procurement processes that need to be adhered to in terms of the PFMA and National Treasury Regulations. Memos that were supposed to have been obtained; approval; what the equipment was for et cetera, that would have been contained in the memos. That was the kind of things that we usually look at in procurement matters.

Adv Mpofu: Yes. Good. What was the other leg that you looked into in this specific…?

Ms Mvuyana: Part one?

Adv Mpofu: Yes.

Ms Mvuyana: The recruitment processes.

Adv Mpofu: Okay, just a minute. Okay, under that leg, what kind things would you be looking at?

Ms Mvuyana: In that leg, the kind of evidence that we would request and look at as well are adverts for the positions, memos detailing the needs for the positions, what was the reason for the positions being created,  CVs (Curriculum Vitae), application forms, qualifications, memos as well indicating interview processes, who would be appointed and why they were appointed – so that would include your scoring sheet who would be in the interview panel and appointment letters.

Adv Mpofu: Alright. Thank you. And that would involve the applicable HR policies and so on?

Ms Mvuyana: Yes.

Adv Mpofu: Good. Any other leg?

Ms Mvuyana: The second to last leg of the operations of the alleged Unit was also looked into. In that instance, the evidence requested and obtained would have related to the operations of the Unit, so how they conducted the activities, who conducted those activities, and the reasons for conducting those activities. Yeah, basically…

Adv Mpofu: Thank you. I think that gives us the landscape here. Now, when it comes to… no, it is fine, I will take you through these four legs or so when we traverse the Section 7(9) in more detail.

Ms Mvuyana: Okay.

Adv Mpofu: Mr Gordhan, the allegations against him of these legs, which ones were more relevant to him?

Ms Mvuyana: Allegation one, EMEA, we have already established. Allegation two, the establishment.

Adv Mpofu: Establishment of the Unit?

Ms Mvuyana: Yes, of the Unit. Allegation three, of the procurement. Allegation four or D of the report, which is the recruitment processes.

Adv Mpofu: Recruitment? Okay, fine. Again, let us not get into detail but those were pertinent to him… or rather, he was relevant to those allegations?

Ms Mvuyana: Yes.

Adv Mpofu: Alright. You went into a lot of detail. I think you say in your statement that this investigation was done in a very thorough manner. Can you broadly just support that statement?

Ms Mvuyana: In my understanding and my explanation of ‘thorough’, the processes of the investigations of the Public Protector were followed. So at the beginning of an investigation is consultations, meetings, assessment of the complaint, trying to understand what the complainant is trying to say. In this instance, we even met with the complainant who had a very detailed complaint and very long complaint as well. We met and he explained and qualified all the allegations made. Thereafter we wrote to SARS in relation to the EMEA part of the investigation, we were required to write to the President to inform him that we had received a complaint from an MP against Mr Gordhan. We also wrote to Mr Gordhan informing him that we have received the complaint and these are the allegations made. We listed all the allegations. We received responses from both SARS and Mr Gordhan, except, of course, the President is not required to respond. Those documents received from both Mr Gordhan and SARS were analysed  thoroughly. So when I say thoroughly is that we actually sat down and looked at the document and not just skim through the documents but actually applied our minds because I remember that one of the allegations is that we did not take into consideration a particular 2014 or 2016 matter. So in that instance, once SARS notified us that there was an investigation previously done by the PPSA, we went and looked for the file; I personally went. We found the file and found the response of Mr Pillay at the time. I think it was a 2014 letter that was also considered relevant to our investigation. We began then issuing subpoenas or trying to get the main role players to provide answers in terms of what we had discovered and to provide more information et cetera. Subpoenas were then issued to Mr Magashula, Mr Pillay, Mr Gordhan and we tried to also subpoena a response from Mr van Loggerenberg, mainly for the operations part. Everyone responded, so everyone being Mr Pillay, Mr Gordhan, Mr Magashula, responded to the subpoenas that had been served on them. Once we had received all responses We went through them, and incorporated them into what evidence that we had already begun jotting down because we do not just sit with evidence, we have to actually put it on paper so that we can get a picture of what actually happened. Yeah. Once that was done we then discussed the matter at length with the relevant officials, that being the team. Once that was done, I think everyone has seen the emails to and fro. Once that was done, the Section 7(9) was issued to Mr Gordhan, Mr Pillay, Mr Magashula. We then awaited responses from them. Responses were received. The investigation was finalised.

Adv Mpofu: Thank you very much. Chair, if you can bear with me, and maybe take the break five minutes late. I just want before… because I am going to take you in detail through the Section 7(9) statement, which really, I think succinctly encapsulates what would be both your version and the version of the Public Protector. So again, it kills two birds with one stone, because when the Public Protector testifies, she will also use that as her blueprint of how you did this. But you have just summarised, broadly how you went about doing the call the terror investigation. But the reason why I am asking the Chair to give me the indulgence so we can do that when we come back from the break is because I just want to kill one issue, which arises from what you have just described. A lot of heavy weather has been made about the failure by the Public Protector to serve a subpoena on Mr van Loggerenberg. Again, I want to preface this by making it clear what exactly she has been accused of by Mr van Loggerenberg and others. Again, it is not so much that she did not serve the subpoena on Mr van Loggerenberg or her Office did not. That is common cause, right? What is being alleged is that non-service – and that is why we are here in an impeachment room – was deliberate. In other words, the Public Protector, or whoever, you or someone else, went specifically went out of their way to make sure that Mr van Loggerenberg does not get the subpoena in the pursuance of the grand conspiracy of making findings against Mr Gordhan because he is one of the people who must be condemned no matter. Do you understand that?

Ms Mvuyana: If I may ask, before you continue?

Adv Mpofu: Right.

Ms Mvuyana: What is the connection between Mr van Loggerenberg and Mr Gordhan?

Adv Mpofu: Yes, okay. In this theory of mine?

Ms Mvuyana: Yes.

Adv Mpofu: Yes, okay. No, it is this: in order to falsely condemn Mr Gordhan, one of the things you and the Public Protector had to do was to make sure that you do not get information from Mr van Loggerenberg because Mr van Loggerenberg was the head of the Unit, and if you had gotten the information from him, you would have realised that this whole thing is just nonsense. So you actively and deliberately wanted not to hear from him. Do you understand the theory?

Ms Mvuyana: Yes, I understand.

Adv Mpofu: Again, it is nonsense but you understand it. Yes. Okay. So that is the real issue. It is not so much about service or non-service. Now, firstly I am going to ask you who or rather, what steps did you take to ensure Mr van Loggerenberg is subpoenaed? Because you just counted him among the people… you say you did your thing. You spoke to the complainant. You looked at the document, you listed what I think you called role players or maybe you used another word, and he was one of those role players and therefore, you subpoenaed the role players, including him. What steps did you then take to ensure that you do not just serve the subpoenas on the other six role players but deliberately hold back on this one of Mr van Loggerenberg, as it is alleged? What steps did you take?

Ms Mvuyana: Okay, I will just start with… At any investigation I have conducted and I think most of my colleagues, Mr Gordhan, Mr Pillay and Mr Magashula, I will start with them first because they were the ones that actually received the subpoena. Mr Gordhan, we had his contact details. When you google Minister of Public Enterprises, you get the email address of the PA, you can call the PA – easy access. We even have the attorneys of record that usually respond on his behalf and there had been previous investigations. So another colleague would have easily given me his contact details. That same goes with Mr Pillay and Mr Magashula. The information was readily available within the institution of the PPSA. Now, Mr van Loggerenberg, as the investigator I had never met him. I do not know him. I just know that he was an employee of SARS. So once that was done, we then discussed with Mr Mataboge as the supervisor, ‘hey, we need to find this guy’ – this guy being Mr van Loggerenberg. We need to find out how we are going to serve him. We do not have an email address for him. We do not have a cell phone number or telephone number and he has resigned from SARS. Luckily, I will say luckily, we had just met or had already met with a whistleblower who was within SARS at the time when we were conducting the investigation – requested to remain anonymous. When we were then trying to figure out what to do, we then resolved that ‘no, let us call’... Should I continue, or wait?

Chairperson: Yes, continue. I am listening. Do not be disturbed by the body language.

Adv Mpofu: Sorry. I am sorry. No, I was just trying to attract the attention of Adv Bawa, but I am not succeeding. It is fine, I will talk to her during the break. Sorry about that.

Chairperson: Please proceed.

Ms Mvuyana: Alright. So we met with a whistleblower who was within SARS, employed at SARS, in the HR division. Yes.

Adv Mpofu: Do not reveal too much.

Ms Mvuyana: Yes, but I want to reveal that because they had easy access to getting that information. SARS is a big institution. Some people did not even know and still do not know Mr van Loggerenberg within SARS. So we contacted Mr Anonymous or Ms Anonymous and they then provided us with the address. The person who called Ms or Mr Anonymous was Mr Mataboge, due to protocol.

Adv Mpofu: Yes.

Ms Mvuyana: Yeah. So I was provided the address. I drafted the subpoena, provided the address and put the address on our letterhead, then submitted to the Public Protector for signature. So all four went together for signature and came back signed. It was then… The three were emailed to the relevant parties so Mr Pillay, Mr Gordhan and Mr Magashula were emailed. Because we do not have an email address for Mr van Loggerenberg when our whistleblower/Mr or Ms Anonymous came back, they just had that address and stated that there was nothing else on the personal file. So they did not have a telephone number or forwarding address that they had on record at SARS. So we then took the address. When we have to serve subpoenas physically, we use the services of Mr David Linda, at the time who was the driver/messenger. I requested Mr Linda to go and serve the subpoena. Mr Linda agreed and he went to serve the subpoena. He asked, because he usually asks if he is going to serve if he can have the cell phone number of the person, and we stated that ‘No, we do not have a cell phone number for this person. Just let us go try this address that we received.’ He then went and came back and said ‘no, he could not find Mr van Loggerenberg’. He said he will try again tomorrow. He went the next day. And then came back with the fact that Mr van Loggerenberg was not at that address and had either moved or never even… we are not sure what happened, but yeah. What he told me was that the caretaker told him that we will never find the guy even if we wanted to.

Adv Mpofu: Okay. Right. Now, okay. Thank you for that.

Chairperson: That is where our five minute ends. Let us take a break.

Adv Mpofu: Yes, that is fine. That is a good point, Chair. I will ask you one more aspect on this and then we will move to the 7(9).

Chairperson: Thank you. We will take a ten minute break and return at 11:50.

[Break]

Chairperson: We are back. Ms Mvuyana, please settle. We have to be patient and wait for you because there are about three or four of us in this room who do not have the luxury of walking around at any time. So we only need a break to do that. So we cannot start without you. I hope you are now ready to proceed?

Ms Mvuyana: Yes, I am. I apologise.

Chairperson: Okay. Continue sipping your tea, that is fine. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Thank you so much, Chair. I just wanted to round off the issue that we were discussing before the break. You had established the efforts that you had taken in order to trace Mr van Loggerenberg, starting from his previous employer and then following on that lead. Then Mr Linda going again the following day and so on. But I now want to ask you two-related aspects. One is, and that is really what is relevant to the Committee here, of the people in the team, and now I am talking about the team investigator, chief investigator, executive manager, Public Protector, you can even throw in the deputy Public Protector, if you like. Of those people, whose responsibility was it or is it usually to serve subpoenas or to make sure that they are served?

Ms Mvuyana: The investigation team.

Adv Mpofu: And that means who, and who, and who?

Ms Mvuyana: In this case?

Adv Mpofu: In this case.

Ms Mvuyana: In this case it would have been me, Mr Mataboge and Mr Linda – well Mr Linda did not form part of the team, he was just providing a service for the team.

Adv Mpofu: Yes. In other words, Mr Linda either at your request or Mr Mataboge.

Ms Mvuyana: Yes.

Adv Mpofu: Okay, let me put it this way without being condescending. I am not concerned about anyone who is below Mr Mataboge.

Ms Mvuyana: Okay.

Adv Mpofu: So, I am saying… Okay, above Mr Mataboge, is there anyone who would be responsible for the service of such subpoenas?

Ms Mvuyana: No, they would not. We would just brief them that we are having difficulty or challenges but they will not get involved in communicating with David, instructing David, et cetera – David being Mr Linda.

Adv Mpofu: Yes. And now let us stop beating about the bush. The accusation in this Inquiry is that the Public Protector, A. was involved in this tracing or tracking exercise and B. even worse, was also involved in the deliberate effort not to serve the subpoena. Is that even possible?

Ms Mvuyana: No, she is not responsible for tracing an individual that has been identified during an investigation that is done by the investigation team. We are the ones like if I am making an example from what I said previously, if we know that a certain investigator dealt with a Oupa Magashula issue or an allegation that related to him, I would approach or Mataboge would approach that investigator, ‘hey, do you have this guy's email address, et cetera’. So the Public Protector would not get involved in that. In relation to that, PP would have deliberately not served Mr van Loggerenberg, it is not possible for either of us to deliberately do that. What would the motive have been? Okay, PP is non-existent. But I take offence to that allegation actually.

Adv Mpofu: Yes, yes. I accept that. And I suppose that also, that is a variation of the same thing, because for that to happen, you would have had to be party to that deliberate non-service?

Ms Mvuyana: ‘Deliberate non-service’, yes.

Adv Mpofu: Yes. And can you tell this Committee, in no uncertain terms whether you or anyone that you know, was ever party to a deliberate non-service to Mr van Loggerenberg?

Ms Mvuyana: No, definitely not.

Adv Mpofu: Thank you. And just to make this abundantly clear. And please excuse me, for the example I am going to make. Let us assume you or Mr Linda or Mr Mataboge – the three people you have mentioned… maybe it is easier for Mr Linda. Let us assure that you gave Mr Linda the instruction and then Mr Linda, instead of taking  the subpoena, went to, and I hope he will excuse me as well, went to some shebeen or tavern and decided to throw the whole thing into the dustbin, and therefore Mr van Loggerenberg was not traced for that for that reason. Is there anything that the Public Protector would have done or could she even have known if Mr Linda had decided to do such a thing?

Ms Mvuyana: No, unless informed by Mr Linda’s manager, if they had discovered because now it would be reported to his superior that takes the decision, now it is a whole… no, sorry, HR issue. So PP, no. The evidence of that would have been where? Unless someone saw him putting it into the bin.

Adv Mpofu: No, it is fine. I am just asking that for emphasis. Maybe let me put it like this: once you or Mr Mataboge informed the Public Protector that you have done everything in your power to trace Mr van Loggerenberg and failed, was she entitled to take your word for it – that you had done whatever efforts that needed to be done?

Ms Mvuyana: Yes.

Adv Mpofu: Alright, thank you. Now, let us then go to… Yes, thank you. I just got a note. For the sake of completion so that we do not come back to this. It has been suggested… all sorts of things have been suggested. You know, hindsight, as they say, is an exact science. All of us sitting here will be clever now because we were not in that space. It has been suggested that you should have done tracing through Facebook or social media or the internet. Did you consult the internet?

Ms Mvuyana: Yes, Google.

Adv Mpofu: You googled, yourself?

Ms Mvuyana: Yes, myself, to try and, even before we approached the whistleblower from SARS, that was the first point to find out if he had more recent employment et cetera. So that was Google. Unfortunately we do not have access or did not have access. I do not believe we even still get it for Facebook and YouTube at the office. So the server does not allow those kind of searches.

Adv Mpofu: Applications?

Ms Mvuyana: Even LinkedIn, because LinkedIn is the more professional body of that, yes.

Adv Mpofu: Alright. And I think Mr Mataboge brought another insight into this, in the sense that it has also been suggested that he should have been traced via some letter that came from his attorney’s in June 2019. And Mr Mataboge’s evidence, if I am not misrepresenting it, was that the tracing efforts had been done in April already and you had already given up and decided to proceed with the investigation on the understanding that Mr van Loggerenberg could not be traced. So by the time there was this June letter that the horse had already bolted. Can you try and explain that in terms of, you know, the timeline of the investigation? Could it have been that he would have been traced in June and what would then that meant in terms of the sequencing?

Ms Mvuyana: I think the letter is the 5 June, if I am not mistaken. I would just like to state that I have never seen that letter.

Adv Mpofu: Yes.

Ms Mvuyana: It was not sent to me. I have no involvement in it. But at that point in June, the Section 7(9) had been issued. Besides the fact that the Section 7(9) had been issued, when we sat as a team to discuss what really Mr van Loggerenberg was required for or was required to answer on, which were the allegations, specifically of maladministration and improper conduct. Mr van Loggerenberg, if I can use that word roleplayer again, was not a decision maker in any of the allegations or the findings that we were going to make or potentially make. And he would not have been impacted as well on the remedial action that was going to be taken specifically by SARS, in relation to trying to resolve any issues or systematic things that we had identified during the investigation. So our viewpoint was that then, since Mr van Loggerenberg's allegations or allegations relating to him specifically, or directly, which were the allegations that he had received funds into his personal accounts were to be dealt with in issue two. And that is when we will now restart the process of vigorously trying to locate him. So at that point, at June, Section 7(9) is issued. No findings are being made against Mr van Loggerenberg. His letter, I am not sure what the letter said specifically, we were now in the process of collating all the information we have gathered. So I would not know what I would have done now if I had seen the letter at that time. But I cannot comment on something that did not happen.

Adv Mpofu: Thank you. So just to put the matter beyond any doubt: is there any basis for alleging that the Public Protector was responsible or anybody or yourself responsible for the deliberate non-service of Mr van Loggerenberg’s subpoena?

Ms Mvuyana: No, but everyone has a right to an opinion.

Adv Mpofu: Yes. Yeah, but we are interested in the facts, well we should be. I cannot vouch that we are. As a matter of fact, was there any deliberate non-service on Mr van Loggerneberg?

Ms Mvuyana: No.

Adv Mpofu: Thank you. Right, okay. Now, we can now go to where I wanted us to go for this session, which is page 6245, I think of the same bundle. It is the 7(9) Notice, Tshepo, if you can find it.

Chairperson: Yes, is that what you want? Page number, Adv Mpofu?

Adv Mpofu: 6245.

Chairperson: Tshepo is a bit slow today.

Adv Mpofu: Unlike her. No, sorry, I think I have misled you. Alright, can you help me?

Chairperson: Bundle, is that what you are asking?

Adv Mpofu: There cannot be too many 6245s.

Chairperson: Or just explain what it is and we will look for it.

Adv Mpofu: Yes, it is the section… no, wait, wait, wait. This is the Section 7(9) Notice for Mr Pillay. I am told that the same thing appears in Bundle A at 6472.

Chairperson: Check if that is the one, Adv Mpofu. Just check on the screen.

Adv Mpofu: What is the date of that? Yes, that is the document. Chair, okay, I will just use this for partial purposes. There is a similar one for Mr Gordhan, but they are more or less the same. This will be efficient to make the points I want to make. Okay, let us just use this. Can you confirm that you sent similarly worded Section 7(9) Notices to Mr Pillay and Mr Gordhan, as far as the background is concerned, correct?

Ms Mvuyana: Correct. Mr Pillay’s and Mr Magashula’s would not have had the EMEA issue.

Adv Mpofu: Yes, except for that. I will do the cross-referencing for the Committee. I apologise, Chair, but I just want to use the one that I have underlined here. Now, this is 5172. I am told that Mr Godrhan’s one is 5172, just for reference purposes, but I am going to use this one. Alright. Now, these documents – the 7(9)s – I must say this, by way of preface, for me, this is the biggest sign that this was a thorough investigation, because, quite frankly, I have never written or seen many 66 page or 71 Page letters. And this one to Mr. Pillay was 66 pages. What is the page number at the top, Tshepo? 6472? Okay, that is not my numbering. Then I will just read the paragraph numbers. That particular letter, Chair, for the record, is 66 pages and signed by the Public Protector. As I say, I have seen many letters but not one that is that long. So we will go through it. If we go through it bit by bit, we will be here all week. So I am just going to deal with the broad topics. So please go to paragraph three? Right. Okay, after identifying that there was a complaint by Mr Shivambu… Sorry, go back to paragraph 2. Trying to move along with speed, then it details the actual allegations in those complaints, correct?

Ms Mvuyana: Correct.

Adv Mpofu: And it talks about Mr Pillay having failed to follow proper recruitment procedures in the appointment of Mr Yolisa Phiki and Mr van Loggerenberg, right?

Ms Mvuyana: Correct.

Adv Mpofu: So again, there it is not Mr van Loggerenberg, as much, who is accused of anything. He is just the subject of the accusation because it is Mr Pillay that is being accused, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Then the next one, again, is “Mr van Loggerenberg unlawfully received cash deposits paid directly into his personal FNB account”, and so on. And, again, it is not like he paid anything, he received certain monies allegedly, correct?

Ms Mvuyana: Yes, correct.

Adv Mpofu: And the same allegations were made against Mr Makwakwa, that he also unlawfully received cash deposits into his personal account in the same way as Mr van Loggerenberg, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Allegedly, yeah. And the point you made earlier, Chair, which is that during the turn of former Commissioner of SARS, Mr Pravin Gordhan, Mr Gordhan established an intelligence unit in violation of the intelligence prescripts. And the intelligence unit was confirmed by SARS Investigative report compiled by Adv Sikhakhane. Was that your understanding that the SARS Investigation was actually commissioned by SARS?

Ms Mvuyana: No, this is the allegation. So the complainant will come and tell us that ‘I want to complain against this’ and we put it as it is. When we confine our own issues we then will either confirm or not confirm whether it was Adv Sikhakhane who commissioned it. But yes, that is the allegation that SARS commissioned an investigation that was compiled by Adv Sikhakhane, who then confirmed.

Adv Mpofu: Yes. Okay, then again, maybe just to assess the process, subject to any objection by Adv Bawa, I think it is common cause that the Sikhakhane investigation was indeed, commissioned by SARS, specifically by Mr Pillay. Is that what you subsequently found?

Ms Mvuyana: Yes.

Adv Mpofu: Okay. And then there was another investigation called the KPMG report, which we will also talk about, and I think it is also common cause that was also commissioned by SARS, but this time by Commissioner Moyane.

Ms Mvuyana: I will not recall because… I cannot recall exactly now, Adv Mpofu, because KPMG was in 2015, I believe. Yes, it was Mr Moyane.

Adv Mpofu: Yes, because I think he started in September 2014. And then, Chair, I will not go through all those allegations, they cover what the witness has already spoken about: the equipment issue, bugging of offices, recruitment and what have you. Then at paragraph eight, and this is an important issue. This is where the division of part one and part two is. This is by the Public Protector. She says “Due to public interest, I have decided to focus the first part of my investigation into the following issues: allegation that Mr Gordhan violated ethics code by deliberately misleading the National Assembly and failing to disclose that he had met with a member of the Gupta family since taking office; the allegation that during his tenure as SARS Commissioner, Mr Pravin Gordhan established an intelligence unit in violation of the South African intelligence scripts, and SARS failed to follow the correct procurement processes” and so on. So, that would be what became the so-called Rogue Unit Report part one, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then at paragraph 9.2… sorry, paragraph 9 “The following issues will be deferred to the second volume of the investigation”, so that is part two. And that is, firstly the investigation about Mr van Loggerenberg, as you earlier testified, correct?

Ms Mvuyana: Correct.

Adv Mpofu: 9.2 is also the investigation that Mr van Loggerenberg received money into his FNB Account, and that was also to be deferred, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Mr Makwakwa and all those things. IT (Information Technology) tenders’ of R8 billion and what have you. All that was deferred, correct?

Ms Mvuyana: I am not sure about the IT tender. Is it on the…

Adv Mpofu: Yeah, it is 9.6.

Ms Mvuyana: Okay.

Adv Mpofu: Just go to 9.6. It says “The allegation that SARS irregularly extended the SARS IT tender for 12 years, resulting in fruitless and wasteful expenditure that escalated to R8 billion to date.”

Ms Mvuyana: Yes, correct. It is correct. Part two.

Adv Mpofu: Yes, that was all part two. And then if you go to paragraph 10, it is a summary of what part one is; it is basically a repetition.

Ms Mvuyana: Yes.

Adv Mpofu: So those are the six points of what was going to be actually investigated in… if you can go to 10.1, please, Tshepo? 10.1 onwards, yeah. It is just a repetition of those issues that are in part one.

Ms Mvuyana: Yes, if I can, before you continue? The point that I was making the allegation in the list where the complaints are listed, you remember that allegation number two, which relates to the establishment at the end, the complainant says that this was confirmed by the Sikhakhane Report. In the allegation that we then convert into our issue, it is no longer there.

Adv Mpofu: Okay, fair enough. Thank you very much. I stand corrected. That is actually an important point, yeah. So you are saying that the complainant might frame it in such a way that they have already reached some conclusion. But when you have to frame it for yourselves, it must be as neutral as possible?

Ms Mvuyana: Correct.

Adv Mpofu: Good. So for that point one we would have to make a comparison between what is said in 3.4, which includes the Sikhakhane thing, and what is said in 10.2, which excludes it?

Ms Mvuyana: Yes.

Adv Mpofu: Yeah. Okay, good. Now,  number 12, is then as we explained earlier, I think to the Chair and the Committee, the nub of what a Section 7(9) is, and I will just read it out. It says, “I have evidence indicating wrongdoing on the part of SARS and Mr Pillay” and in the Gordhan letter it will say Mr Gordhan, obviously, “as a former employee of five regarding the allegations below, and should I not receive evidence to the contrary, I am likely to make adverse findings and take appropriate remedial action against SARS and yourself, for the wrongdoing under the circumstances. Be mindful that you and the erstwhile Commissioner, who may have been responsible at the time for the commission of the relevant wrongdoing, is no longer at SARS.” So that is the heart of this document, as we explained earlier, yeah?

Ms Mvuyana: Yes.

Adv Mpofu: If I do not get anything – remember my example about the bottle of water? – I am likely to make adverse findings against you. So this is your audi opportunity.

Ms Mvuyana: Yes, correct.

Adv Mpofu: Alright. And then we come to what we call the investigation process. Then you outline to the person… you cannot just say I just got into… I am unlikely to make adverse findings. You then have to explain to them how that came about.

Ms Mvuyana: Yes, you have to.

Adv Mpofu: Then the investigation, Chair, from 13.1, and again I will not read everything, it says “A preliminary investigation was conducted” and so on. Then 13.1.2 “a formal investigation was subsequently conducted”. And then number three, “I received information and documentation from different sources, including whistleblowers, and complainants. I also utilised documents previously submitted to me by SARS for file number 7.2 of 2012.” So you identify there that you got information, you did what is called a preliminary investigation – we will go back to what that means now – then you had a formal investigation, and that you received information from whistleblowers and various other sources, right?

Ms Mvuyana: Yes, that is what it says.

Adv Mpofu: Right. Now, if you can, let us pause there because this also covers another issues that also covers the so-called HR issues. What is the first thing you do when you have an investigation of this sort? Or maybe let me put it this way, what is involved in the preliminary investigation?

Ms Mvuyana: It would be meeting with the complainant, or complainants as well as doing the relevant research finding out if we have not investigated a similar matter before. Once we establish jurisdiction, of course… That is  mainly what a preliminary investigation would do. Once we then confirm that there is a possibility that the allegations have merit, or that they are possibly true, we then start with the relevant institution, to ask them to give us… to tell them that the allegations made against that institution. So in this case, we wrote to SARS. Mr Mark Kingon, who was the acting commissioner at the time, detailing all these allegations that are listed in this report, and requested documents to support or not to support but to just either refute the allegations – yes, sorry, English runs away sometimes – or either confirm. So we prefer institutions to submit a formal statement, so in the form of a letter – it does not have to be commissioned or anything – in the form of a letter detailing the allegations, whether they deny or agree with the allegations that have been made. And then in whatever they say, attach specific evidence. That is then the first stance. In this case, letters had to go out to the relevant parties, so that was Mr Gordhan, President Ramaphosa and then SARS. Those were sent. The documents were received. We go through the documents, identify who needs to be interviewed, if we have to have meetings with them. If we do not understand certain things, it is not clear from the documents we then call into meetings et cetera. And once all the information is collected, it is analysed, and put into paper. Now, no one knows what is going to be the end product until you finalise the analysis of the documents because they are the ones that are going to tell you if something happened or something went wrong in whatever process that is being investigated. And those, we then put in the application of the law; what should have happened or what actually happened. So the law will tell you what should have happened once you analyse that against the backdrop of the evidence that you have, or has been submitted that you obtain as well. You then make a conclusion. That is how we get to a product of either Section 7(9) or a discretionary notice depending on the outcome of what the process says. Is that process fine or do you want me to continue?

Adv Mpofu: No, it is fine. It is fine, thank you. Just an important issue. You said that one of the most important things you do is to consult or to interview the complainant?

Ms Mvuyana: Yes.

Adv Mpofu: Okay. Now, okay. That, again, I am asking you now as an experienced investigator. You are now a senior investigator, correct?

Ms Mvuyana: Yes, correct.

Adv Mpofu: Yes. Whether… And this is another thing that this Committee and us have been at loggerheads about, is if the complainant is available, let us assume the complaint is not a whistleblower or someone who wants to remain anonymous, why is it so important that the complainant must… or let me put it this way, is it possible to even proceed with your inquiry or investigation without involving the complainant? The person who actually brought us here?

Ms Mvuyana: Yes, it is possible if the complainant makes the complaint in his complaint form; the allegations are clear, straightforward (and) they even attach documents, supporting documents, evidence that is clear; you are not forced to meet with the complainant. It is your discretion as the investigator, whether or not you need further consultation. But consultation can also be done through the phone, through a telephone call and now we even have zoom et cetera. In this particular case, if we go back to the evidence that has been presented, like the Section 7(9) states, there was a complaint received in October 2018. And when you read that complaint, it is not very clear what the complainant is complaining about. So in that instance, you would want to meet the complainant.

Adv Mpofu: Good. Yes, carry on.

Ms Mvuyana: I will not go into detail thereafter because the question has not been asked.

Adv Mpofu: Yes. Okay, that is fine, but it has been answered in your last part. Let me put it this way, then. Yeah. Where there is, as you say, lack of clarity or ambiguity or some controversy about the complaint, who is the best person to clarify that?

Ms Mvuyana: If the complaint is not clear?

Adv Mpofu: Yes. Let us say there is some controversy or debate or lack of clarity about the complaint itself? The point is, is there anyone other than the complainant, who can assist you with that?

Ms Mvuyana: No.

Adv Mpofu: Thank you. Alright. Anyway, so you did then go to the complainant in this case, and when and how did you get to have a meeting with the complainant?

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

Adv Mpofu: Sorry, Chair.

Adv Bawa: Chair, there are two complainants. Can we clarify when Adv Mpofu asked the question which complainant he is referring to?

Adv Mpofu: Thank you. I thought I clarified it in the qualification to my question. I was saying that apart from putting aside any anonymous whistleblower or complainant who might not be identifiable or easily identifiable, but that is fine. But what Adv Bawa is asking: you have confirmed at the beginning of this letter and paragraph two that there were two complaints. One was anonymous, and the other one was from Mr Shivambu, correct?

Chairperson: Just put on. Sorry.

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: So when you say you met the complainant, which of the two were you referring to?

Ms Mvuyana: Mr Shivambu.

Adv Mpofu: Okay, thank you. And Mr… Alright, the other questions I have already asked you. So obviously you wanted clarity or more information or whatever it is. Can you just tell the Committee what happened in that meeting, or what was discussed?

Ms Mvuyana: The complaint that he had lodged was discussed. So he took us into detail about his allegations. Unfortunately, we do not have a full record, and I do not remember making notes, but I did make notes, it is just I cannot find them. But basically, his complaint, what his complaint was about specifically, what information he had in his possession that he could provide to us. He provided us with also names of people we can talk to, for further information. Basically, that was it. It was just a prelim. It is not like we are interrogating the complainant. We are just trying to get some more information. And he was also a willing participant who wanted to give information so it made our lives easier.

Adv Mpofu: Yes. Good for you. You must come and teach us in this Inquiry the importance of the complainant. But again, that is a story for another day. Anyway, so there is also… there was a suggestion at least made to Mr Mataboge, and I suppose that is what Adv Bawa is alluding to, that the other complainant, the anonymous complainant, I think wrote a letter to you or an email to say that he or she was coming to South Africa in December but the meeting with that person did not take place. Can you explain why that did not happen?

Ms Mvuyana: With the anonymous complainant? The anonymous complainant we received in October of 2018. So this was before Mr Shivambu arrives, even though we did not even know that he is coming. We received a complaint. His complaint, if you can go through it, is about three paragraphs. The first part, which was when we receive a complaint normally we will communicate with the complainant informing them that okay, the matter has been allocated to me for further investigation. In this instance, I required more information from the complainant. And I said to him, ‘We respect the fact that you would like to remain anonymous, but the kinds of allegations you have made, need more information. Specifically in relation to surveillance.’ The complainant was alleging surveillance of politicians, et cetera. And then the second allegation was that Mr van Loggerenberg had then received personal monies into his bank account, and he listed the monies. The third allegation, I believe, was about Mr Gordhan receiving monies in the United States or Canada, if I remember correctly. We then sent a complainant an email requesting that kind of interaction. He did not respond until we then received Mr. Shivambu's complaint. He responds. Okay, once we see that this complaint relates to SARS because what happens in the Public Protector is that if complaints come in almost a similar interval, then they relate to a similar institution. We will then identify with ‘okay these guys are these people who are complaining about a similar issue.’ So the allegation of van Loggerenberg receiving cash payments or cash into his personal bank account, was also contained in Mr Shivambu’s complaint. The complaint relating to surveillance or unlawful operations of the alleged unit was also in Mr Shivambu’s complaint. The decision was then taken ‘okay. Yes, we are beginning the investigation. After meeting with Mr Shivambu we will start the investigation because we have already had another complaint that is similar. So investigation proceeds, we write the letters, then we receive the email about the USA. The decision was taken, it was not necessary anymore. We had gotten clarity of where he wanted to go – (the) complainant.

Adv Mpofu: Okay, thank you. So, in other words, you are saying the complaints were similar, or at least  they might not have been identical but there was overlap?

Ms Mvuyana: Yeah.

Adv Mpofu: Okay, thank you. Alright. Now, then you have already explained this, what you call a formal investigation – that is when you require information from the roleplayers?

Ms Mvuyana: Yes.

Adv Mpofu: Right. Now, then we go to paragraph 14. Then you explain to the person the evidence obtained during your investigation. Remember, you said now we have done a preliminary investigation, we have done a formal investigation, we spoke to whistleblowers now. You then explain to them what information you received, right?

Ms Mvuyana: Correct.

Adv Mpofu: Now, then, you put the first allegation regarding whether during his tenure as SARS Commissioner, Mr Gordhan, established an intelligence unit in violation of the prescripts, whether such conduct constitutes maladministration, right? I will just go through that particular one, but not all the other allegations, just to show you your methodology, okay?

Ms Mvuyana: Yes.

Adv Mpofu: You start, I will just read it out, Chair, for the record. 14.1 you put “It is not in dispute that the allegations relating to the unlawful establishment of the SARS Intelligence Unit has been one of much contention within the public arena of South Africa. The matter has been investigated and discussed by various institutions and legal experts. Various reports have been submitted to me regarding such investigations. Where did those various reports come from?

Ms Mvuyana: SARS.

Adv Mpofu: Okay. And we have already covered some of this, that will be the Sikhakhane, Kanyane…

Ms Mvuyana: KPMG.

Adv Mpofu: KPMG, Kroen, and then the legal opinions of various advocates?

Ms Mvuyana: Yes.

Adv Mpofu: Okay, we will come to that. Now, while we are here, you have been accused, when I say you… okay, let me establish this so that there is no confusion. While this is a letter signed by the Public Protector, as it should, can you explain to the Committee what role you personally played in its formulation, construction, drafting, all 66 pages of it?

Ms Mvuyana: I was the drafter.

Adv Mpofu: Well, congratulations. When you drafted this 66 page letter or something of that sort, this would be now after you have done your investigation, and you are at the stage where you explained earlier where you have possible adverse findings against somebody?

Ms Mvuyana: Correct, yes.

Adv Mpofu: Right. Now, so when I say you, although we know that the letter is signed by the Public Protector, I am using that interchangeably. It is a plural ‘you’. You and the Public Protector as the drafters or architects of this letter. Alright. Now, one of the things that the Public Protector, including yourself in this context, have been accused of very sharply, is that you did not take into account the findings of the Nugent report –  Nugent Commission Report, otherwise known as the commission of inquiry into Tax Administration and Governance Report. Is that criticism valid?

Ms Mvuyana: No, it is not.

Adv Mpofu: And did you in fact take into account the Nugent report?

Ms Mvuyana: Yes, we did. We mention it a couple of times. And what the findings of the report were and the passing commentary that was made by the judge. So if we had not considered it we would not have even known what it says.

Adv Mpofu: Yes. And if you go to 14.1.4, I will read you some of what you said here and you can comment on whether the criticism that you ignored the Nugent report is valid. 14.1.4  says that, “In a response, dated 5 February 2019, SARS stated that the consideration of lawfulness of an intelligence unit within SARS had generated a vast amount of comment and opinion. SARS referred me”, that is the Public Protector or you “to the Commission of Inquiry into Tax Administration and Governance Panel Report, specifically under the heading the so-called rogue unit, in which it is stated.” Well, firstly, let us just start with that. Another criticism by Mr van Loggerenberg was that the Public Protector was the originator or was guilty of prejudging by simply referring to this thing as the so-called rogue unit. Have you ever had anyone accusing Judge Nugent of the same thing? Because his heading here is called the ‘so-called Rogue Unit’. Do you know where that term came from? Did it come from the Public Protector?

Ms Mvuyana: I know the Rogue Unit comes from media reports as far back as 2014, if I am not mistaken.

Adv Mpofu: Yes.

Ms Mvuyana: I think it was the Sunday Times that initially broke the story, if there is a story.

Adv Mpofu: Yes.

Ms Mvuyana: So-called I do not know where that comes from. I think it is a term because there has been so much denial of the fact that the unit was Rogue. People usually put ‘so-called’ in front of it. So no, it did not originate from the Public Protector. At the time the response was received in February… No, we had not had a meeting with the Public Protector yet where she would have been able to refer to the so-called Rogue Unit.

Adv Mpofu: No, it is fine. When the Public Protector testified she will explain that actually, when that term was constructed by the newspapers, she was minding her own business working in China, not even dreaming of becoming the Public Protector. But anyway, such is life. Anyway, so this is the point about the report that you allegedly ignored. If you go to the next page, please, Tshepo. There you quote extensively on the Nugent Report. You actually quote three paragraphs from the Nugent Report, is that not right?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: While we are on that point, Chair, can you – you will come back to this, Tshepo – just move over to 14.2.1. That is now page 26. That was page ten of the 66-page letter. Now, we are at page 26, 14.2.1. There, again, you say that “SARS referred me to an extract of the SARS Commission of Inquiry”, that is the Nugent report, “which stated specifically regarding the alleged purchase of equipment” and then you quote the Nugent report. Again, you and the Public Protector. Correct?

Ms Mvuyana: Correct.

Adv Mpofu: Now in the light of those and in any event, I think since we are here, Chairperson, we might as well go to… Yes, just for the sake of competition, sorry, Tshepo, can you go to the actual report which, I think is in Bundle A. It is 4257.

Chairperson: Are you winning, Tshepo? Do you need directions? I thought he gave you.

Adv Mpofu: Yeah, I did. It is page 4257 of Bundle A. It is the so-called Rogue Unit Report. Thank you, there you are. I am just jumping all the other references to the Nugent Report. I am now going to the report itself, to the so-called Rogue Unit Report. Can you go further down? The Public Protector says in her report “SARS referred me to the Commission of Inquiry into Tax Administration and Governance Final Report under the heading ‘the so-called Rogue Unit’ which stated”, then she quotes the Nugent Report. So is there any substance to the allegation that she ignored and did not take into account?

Ms Mvuyana: No, that is not correct. We obtained a copy of the report. As you can see that SARS is just referring us to paragraphs. And then I, let me say we, obtained a copy of the actual report to confirm what SARS is quoting here is correct. So that could not have been done without reading the report. Specifically on the issues that related to the rogue unit because there were a lot of things the Nugent report went into. So this is how then we considered it.

Adv Mpofu: Alright. Let us just pause there, to deal with something very central to this whole saga. And that is the point that you make in the report or rather that the Public Protector makes in the Section 7(9) Notice that you drafted, where you say “the matter has been one of much contention within the public arena in South Africa. The matter  has been investigated and discussed by various institutions, and legal experts. Various reports have been submitted to me regarding such investigations. Now, it is common cause that those reports include the Sikhakhane, the KPMG Report, the Jroen Report and so on and so on. The allegation that is made against the Public Protector, and this also comes out from the judgment, is that the Public Protector relied on these other reports, apart from this kind of remark, which she makes by way of background that there have been various other institutions and what have you. In other words, it is suggested that she literally almost transplanted information from those reports, regurgitated into her report, and ignored the fact that those reports had been ‘widely discredited.’ I do not know by whom. Is that a fact? Is that what you did, in actual fact?

Ms Mvuyana: No, that is not correct. Just as a background, in investigations when we write to, even if it was not SARS and another institution altogether. In some instances, you will find that they have already conducted a forensic report, a forensic investigation that is submitted to us. We do not then take that report and copy and paste and put it in our report. That is why we also request evidence. In instances we would even request the annexures that led to that particular forensic investigation company, coming to that conclusion. So it is false. It is not how we work. It is not how we draft our reports. Thank you.

Adv Mpofu: Thank you. And this theory goes further to say that not only did you regurgitate or blindly rely on these reports, you also ignored the fact that they had been discredited. Are you aware of any crediting of this report?

Ms Mvuyana: No, I am not. The only one that I am aware through media was the KPMG dilemma that they experienced? Yeah, but the fact that it is either credited or discredited, does not stop the report from existing.

Adv Mpofu: Right. Now, let us just test some of, again, what is said glibly out there about these reports. Maybe let me start with the Sikhakhane Report. Are you aware of any institution, court, that dealt with or reviewed the Sikhakhane Report frontally and found it to be invalid?

Ms Mvuyana: Not that I am aware of, no.

Adv Mpofu: Alright. And it is widely believed, at least it has been bandied about here that Justice Nugent, at least, was one of those sources of discrediting the report. Let me just take you to the actual fact. Let us go to the quotation… Let us go back to the letter, I think it is easier that way. Sorry, go to paragraph 14, where we were. This is all that Justice Nugent said – and it is called discrediting the report. He says about the Rogue Unit, alleged, “why such unit was considered to be unlawful is not clear to me”, so he says it is not clear to him. Okay? And then he says “while the National Strategy Intelligence Act prohibits the covert gathering of certain intelligence that applies to intelligence concerning threats to the safety of the state, which hardly applies” hardly “applies to the intelligence relevant to collecting tax.” Okay? And then here is the part where he is said to be discrediting the finding, but actually in my view, he confirms it. He says “that members of the unit might have at times have acted unlawfully, that SARS employment policies might have been breached, that members might unlawfully have acquired the use of equipment, all of which came later to be alleged, I see no reason why SARS was and is not entitled to establish and operate a unit to gather intelligence on the illicit trades even covertly within limits.” Okay, let us unpack what Justice Nugent is actually saying. So he says that, firstly, the last part, you have already agreed with earlier, there is no reason why SARS is not entitled to establish and operate a unit to gather intelligence on illicit trades even covertly within limits. We all agree on that, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Yes. But it is what he says before that which is important, which everyone ignores deliberately. And that would have been the focus of your investigation. It is not something you just brush aside. Let us assume that he is right that members of the Unit might have at times acted unlawfully. SARS employment policies might have been breached, members might unlawfully have acquired the use of equipment. Would that be sufficient for the Public Protector to find maladministration?

Ms Mvuyana: If we can… If evidence shows the might.

Adv Mpofu: If it was established.

Ms Mvuyana: Yes, the might is where we come in because…

Adv Mpofu: No, forget the might. I am saying that if it was established that at times the members acted unlawfully, SARS employment policies have been breached, and members acquired the use of equipment unlawfully. Would that be sufficient for the purposes of the Public Protector to make an adverse finding of maladministration?

Ms Mvuyana: Yes, supported by evidence.

Adv Mpofu: Now, and to your knowledge, did the Sikhakhane Report, the KPMG Report and all these other reports find that the establishment, let us confine it to that for now, of the Unit was lawful or unlawful?

Ms Mvuyana: They found that the establishment was unlawful.

Adv Mpofu: Yes. And in fairness to Justice Nugent, he then goes on to say, at paragraph 11, again this another statement whose impact is widely exaggerated. It says, “It was said to be unlawful by a panel chaired by Adv Sikhakhane but I find nothing in this report to persuade me why that was so.” So, again, he expresses his opinion. And then he says Adv Sikhakhane was asked if he could elaborate on his reply and took it no further than what was said in the report.” And then he comes to the Kroen report. Okay, no, no, before we do that… If Sikhakhane found that this thing is red and Judge Nugent found that it is blue, as the Public Protector, did you have the means to say that the Nugen report is superior to Sikhakhane or did you regard all of them in the same light?

Ms Mvuyana: They are all in the same light with respect to the Public Protector’s investigation.

Adv Mpofu: And of course, you take them into account but do you regard any one of them to be binding on your own outcome?

Ms Mvuyana: No, even on our investigation.

Adv Mpofu: Yes. Okay, well then… Sorry, Chair?

Chairperson: We will pause there. Unless you want three minutes to wrap up?

Adv Mpofu: Three minutes, Chair, just so that I introduce the next topic. Thank you, Chair. Okay, I will try and move on this one fast. The other one is the Kroon Report, before we go to KPMG – we will do KPMG when we come back. The Kroon report, it is common cause, was a panel, I think of seven members, and it also found the Unit to be unlawful. Now, this is what Justice Nugent says about that “The SARS advisory board chaired by Judge Kroen reported to the Minister and issued a media statement saying the Unit was unlawful. But in evidence, he told the Commission that the conclusion was reached independently by the board but had been adopted from the Sikhakhane Panel, and he came to realise it was wrong. Indeed, he supported the reestablishment of capacity to investigate illicit trades which we recommend.” So again, it is a, I do not want to say deliberate, conflation of the goodness or otherwise of establishing a unit from its activities. Apart from Judge Kroon himself expressing a view of the findings, are you aware of any other six members of that panel expressing a view that they had changed their minds?

Ms Mvuyana: No.

Adv Mpofu: Alright. Okay, then we will go to KPMG after lunch.

Chairperson: Maybe so that I do not break it for you, we will break at 12:15. So you can go to KPMG.

Adv Mpofu: Oh, thank you, Chair. Thank you very much. Yes, then after lunch we will start with the IGI report. Thank you. So very quickly… Okay, Chair, I am not misleading you but I have to go back to Sikhakhane. Can you go to Bundle A, page 4681, paragraph 188, just so that we do not have to come back to these reports.

Chairperson: What are you asking, Tshepo?

Adv Mpofu: Bundle A, page 4681, paragraph 188.

Chairperson: Did you get it, Tshepo?

Adv Mpofu: Alright. Chair, I am just making sure that I do not go back to these reports. These are the findings of Sikhakhane that we just discussed. I will read it quickly, Chair, for the sake of progress. At paragraph 188.1, they say – and by the way these were three independent advocates, Adv Sikhakane, Adv Budlender and Adv Romano – “The establishment of the Unit without having the requisite statutory authority was indeed unlawful.” And then at two, they say “there is prima facie evidence that the Unit may have abused its powers and resources by engaging in activities that reside in other agencies of government.” And then if you jump to 188.5, it says “there is prima facie evidence suggesting that the activities of the Special Projects Unit may have included rogue behaviour that had the potential to damage the reputation of SARS as an organ of state”, hence after that it was called the Rogue Unit not by the Public Protector, who was in China, but by those three advocates. You remember that?

Ms Mvuyana: Yes, I remember reading it.

Adv Mpofu: Yes, reading it. And then if you go to page 4617, Chair, on paragraph 56. This is another important finding of Adv Sikhakhane, now to do with Mr Gordhan. “It seems from the memorandum that Mr Gordhan had an undertaking from NIA (National Intelligence Agency) that it was willing to accommodate such a Unit. It follows even on SARS on version that unless NIA cooperated the establishment of such a unit would be an illegality.” Remember reading that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Yes. So, just to round that up. Your own findings were that Mr Gordhan must have been involved in the establishment, also based on the memorandum he wrote to Mr Trevor Manuel, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Alright. We will come to that after lunch. I do not want to jump to that now. Chair, this is the part I wanted to get to before lunch. These are now the findings of KPMG – no, no, I said that I would do KPMG after lunch. The…

Chairperson: We changed that, remember?

Adv Mpofu: Oh, okay. Fine, we can do it now, so that we can do IGI. Alright, then please go to page 5084, Tshepo? Bundle A, paragraph 12. Right, thank you. So these are the findings. Paragraph 12 states ‘executive findings and conclusions’, this is now KPMG. And it says “under the guidance of Pillay a covert and Rogue Intelligence Unit, in contravention of the rule of law, was established in SARS.” Remember that?

Ms Mvuyana: Yes.

Adv Mpofu: And then 12.1.3, it says “the unit was established by Pillay at the time when Gordhan was commissioner of SARS. We found no evidence that Gordhan was informed of the existence of the Unit. However, considering his position as accounting officer, it is reasonable to expect that he ought to have known of the existence of the Unit.” Remember that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Yes. Now, is it correct that your findings were similar to these? In other words, their findings were that given the letter to Mr Manuel, given the history and the evidence available, the idea that Mr Gordhan was oblivious of the establishment of this Unit was just unsustainable?

Ms Mvuyana: Yes, seeing that Mr Gordhan drafted the memo or the approver of the memo, as the Commissioner of SARS. The memo to Mr Manuel. It is impossible that he did not know the memo details that we would like to create a Unit, the Unit will undertake specific kinds of investigations and he then signs the memo. So how would he not have known that there is a Unit?

Adv Mpofu: Okay. I do not want to stretch the Chairperson’s patience, but I just want us to end that part on what that memo actually says. Chair, if you actually indulge me for two minutes. Alright. That memo is referred to in your letter but I was actually looking for the… Okay, let me paraphrase it this way. We will do it after lunch. Is it correct that in the memorandum drafted by Mr Gordhan, he himself says that when he writes to Mr Manuel please approve of the establishment of this Unit within NIA because the SARS does not have the legal power or mandate to establish such a Unit?

Ms Mvuyana: Yes, in summary.

Adv Mpofu: Can you go to Bundle A, page 4370. I promise, Chair, that is the last reference. 4370. Okay, let us try and read it together. This is a letter written by Mr Gordhan to Minister Manuel when he was the Commissioner for SARS. “The purpose is to seek approval to find a special capability within NIA to supply SARS and law enforcement with the necessary information to address the illicit economy. Two, collecting” this is the important part, “tactical intelligence invariably” – okay? – “means penetrating and intercepting organised criminal syndicates.” Do you see that?

Ms Mvuyana: Yes.

Adv Mpofu: And part of this whole controversy is whether or not there was a need to do interception. In which case it would be illegal, or there was no interception. In which case, it would just be some normal operation. Remember that?

Ms Mvuyana: Yes.

Adv Mpofu: So he makes it clear that what he is asking for is something that will “invariably means penetrating and intercepting organised crime syndicates.” And then he says, this is the punch line “this is an activity to which SARS does not presently have the capacity, including the legislative mandate to manage…”

Chairperson: Capability.

Adv Mpofu: Sorry?

Chairperson: The capability

Adv Mpofu: The capability? Yes, thank you, Chair. “have the capability, including the legislative mandate to manage clandestine activity.” And then he says “discussions are taking place with the National Intelligence Agency to supplement SARS intelligence capability”, and so on. And the point I am making is that by Mr Gordhan’s own hand, the Unit could not be legally established within SARS, correct?

Ms Mvuyana: Yes, correct. That is what the memo says.

Adv Mpofu: Yes. And yet, we know that… In fact, just go towards the end, to the approval part. Yes, it is signed by Mr Gordhan, Commissioner of SARS, 2007 the 9 February. So Minister Manuel approves and the Deputy Minister Jabu Moloketi also approves but he puts a rider. However this is a strange way of executing what I consider to be an economic mandate of NIA. If such is through whatever, it is an add on rather than part of NIA’s mandate. Okay, but he approves it subject to that. You see that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Yes. Now, when we come back from lunch, I will then take you through to show this Committee and everyone else that actually afterwards after what Mr Gordhan says NIA lost appetite of that joint venture that was envisaged there. They then sommer (just) decided to just have that very illegal activity and have that Unit now operating within SARS, which is what you and the Public Protector found. But can we deal with that when we come back? Thank you, Chair.

Chairperson: Okay. Thank you. We will pause for lunch for 45 minutes. Back at 14:10. Thank you.

The meeting took a 45 minute lunch break.

Chairperson: We are now going to resume with Adv Mpofu and Ms Mvuyana. Thank you very much. Over to you, Adv Mpofu. Is Mvuyana here first? Are you here?

Ms Mvuyana: Yes, I am here.

Chairperson: That is fine. Thank you.

Adv Mpofu: Thank you, Chair. Sorry, I have just lost my place. Now, we were still using the letter but digressing to some of the issues that are raised in the Section 7(9) letter. And I think we are now in the nub of the issue as to the findings regarding the existence or rather establishment of the so-called Rogue Unit. And just to recap, we had found that both the KPMG report and the Sikhakhane Report had referred to rogueness, if there is such a word, of the Unit. Otherwise, I think that just means the alleged unlawfulness of the Unit. Alright, can we go to Bundle A, 5189? Alright, just go to the beginning of that document. That document, starting at 5179, Bundle A, is the response of Mr Gordhan to his Section 7(9) letter. Remember that?

Ms Mvuyana: What is the date of that document?

Adv Mpofu: The date will be at the end, I suppose. It is the 17 May, 2019.

Ms Mvuyana: Yes, I remember the document.

Adv Mpofu: You remember the document? Thank you. Then let us go to 5189. Now, regarding the portion that we were debating or rather, we were discussing before lunch. We left it where we established that Minister Gordhan, well, not Minister, Mr Gordhan… Commissioner Gordhan, at the time, had made a request to Minister Manuel, which Minister Manuel approved with the concurrence of Deputy Minister Moloketi, on the basis that he wanted the establishment of a unit which would otherwise be illegal if it was established within SARS. Remember that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Right. Now, this is Mr Gordhan’s own version of the event, which makes it clear that they then went on to establish the illegal, rather, the Unit illegally within SARS. Let us just read out. Chair, it says here “It became apparent to SARS that it had to enhance his capacity to gather intelligence, that is in formation of/and to investigate organised crime with particular reference to tax related complications. SARS decided in about February 2007, to set up the unit to specifically investigate the activities of crime syndicates from a tax customs perspective, as part of its efforts to combat activities in the illicit economy. Both the Minister of Finance and Intelligence services, in principle approved the concept to establish an investigative unit to focus on organised crime as a direct consequence of the 2000 State of the Nation Address. The initial intention was to employ and train members of such investigative units on how to legally conduct tax and customs investigations, and then to transfer those officials to NIA, where they would continue to function as a unit dedicated to support SARS investigation into instances of non-compliance and in respect of tax and custom laws.” And here is the important part, “The NIA, however, did not pursue the matter further. As a consequence, SARS decided to retain the unit members within its enforcement division.” Now the importance here is that Minister Gordhan says that this Unit, which should otherwise be illegal, was now then established within SARS. The Unit has not changed its character. It has not suddenly become something. It is still the Unit that was being spoken about. Is that how you understood it?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Right, then carry on. Then Section 209 of the Constitution is quoted. Okay, carry on. Section 41(1)(a) of the Constitution is also quoted – that is the section that deals with cooperative governance. Carry on. Let us just pause there. I said to you that there were two features that would define this as an intelligence operation or not. And there were many other features, I suppose but whether it was a spying activity or not a spying activity. But the most important was surveillance of people and interception of communication, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And, Chair, we will refer you back to the letter, but there is a specific reference, not just to the NIA Act, but there is reference to another piece of legislation which deals with interception specifically. We will come to it when we are in the letter. Is it correct that in South Africa, in any event – forget about the NIA Act – if you want to intercept communication of any person, you must get the permission of a judge?

Ms Mvuyana: That is correct.

Adv Mpofu: And was there any evidence that when there was alleged interception that any permission was received from any judge?

Ms Mvuyana: No, not that was submitted to us.

Adv Mpofu: Yes. And what evidence did you have of interception activities by this Unit that Mr Gordhan established?

Ms Mvuyana: We had a recording of Mr van Rensberg and Mr Lombard. We also had a bit of information from the 2012 or 2016 complaint, but that could not be verified because it did not have any supporting documents. So mainly, it was the recording. If you notice in the letter, or in the report, that was the evidence that was put before the Public Protector. We listened to it. The two gentlemen confirmed that they had bugged offices.

Adv Mpofu: Yes, thank you. Chair, if I can just pause here. There is a typo, for a lack of a better word, or the mistaken identity. At paragraph 30 of your statement you refer to Mr Lombard and Mr van Rensberg, as you just said, and we established, I think it is common cause, that there was actually a Mr Lombard and a Mr de Waal. Is that the same gentlemen who participated in the alleged spying?

Ms Mvuyana: There were various names that were given, but I will just have to double-check what the recording says.

Adv Mpofu: That is fine. We will double-check – I will speak to my learned friend. But for now, let us use Mr de Waal because I think that is the common-cause person.  Anyway, you had evidence of Mr Lombard and this other person doing what?

Ms Mvuyana: They stated in the recording that they had been called and had went to the NPA (National Prosecuting Authority) offices, had a meeting with a certain individual there who requested them to bug offices of the NPA and formerly also DSO. They agreed, this is what they said, with the condition that they were going to still talk to their boss or supervisor, who they said was Mr Pillay at the time. Mr Pillay, apparently then agreed but there was nothing in writing. And they then proceeded to bug the offices and obtained a recording of something that happened there that was discussed, I would like not to say the names, everything is contained in the report.

Adv Mpofu: Yes. Okay. And if that evidence was indeed true would that be confirmation or not of the existence of a ‘spying unit’?

Ms Mvuyana: It would have been because the two gentlemen were a part of the Unit. So the recruitment record showed that they worked for the Unit. And it was possible that they then could have taken part in operations of the Unit, which they claim is now intercepting information or gathering information illegally.

Adv Mpofu: Yes. Now, again, as someone who is legally trained, you will know that the process of reasoning of legal reasoning at least, is to infer a certain conclusion, you must have some concrete facts?

Ms Mvuyana: Yes.

Adv Mpofu: So nobody will be able to enter into Mr Gordhan’s head and determine that he knew about the establishment of the unit, you can only infer that from the facts that are proven, correct?

Ms Mvuyana: Correct.

Adv Mpofu: And in this regard, then the letter that, there is usually as they say it in criminal law a smoking gun, and the smoking gun means you find the body that is dead, and the person with a smoking gun. And the reasonable inference is the person with the smoking gun is the one who shot. It might be. There might be all sorts of permutations, life is not that simple. But that is the kind of inference that you would draw from the smoking gun to the dead body without actually having seen the actual shooting. Do you get where I am going?

Ms Mvuyana: It is possible, yes.

Adv Mpofu: Yes. So let us then say that the letter to Mr Manuel was the smoking gun, which was written by Mr Gordhan, which says that the unit would be illegal, which asked for the permission, and when the permission is not given, then the Unit is still established. Was that more or less the kind of reasoning that you used?

Ms Mvuyana: Yes. As you are saying in his response to the Section 7(9), after NIA showed that they were no longer interested, they decided to retain the Unit within SARS. The Unit, in terms of the memo would collect tactical intelligence.

Adv Mpofu: Covert intelligence. Yes. But be that as it may, the judges of our country found that there was nothing to suggest that there was such a Unit or that it was unlawfully established, and we have to respect that. But that is not, as I explained, the point of this exercise. The point of this exercise is to try and discover whether you and the Public Protector in reaching your conclusions, were driven by some dishonest bias or driven by the evidence that is in front of you. Sitting there, as you are sitting now, with the evidence that you have you seen on this, is there anything that dissuades you from the honest belief that the Unit that was indeed established within SARS was unlawful?

Ms Mvuyana: No. From the evidence that was before us at the time, no. We still have not received any evidence to the other effect.

Adv Mpofu: To the contrary, yes. And if the Rogue Unit or the alleged Rogue Unit then existed unlawfully and to the knowledge of Mr Gordhan, would it then be fair or correct to then say you and the Public Protector reached that similar conclusion with all the other reports, not from the evidence, but from some nefarious vendetta against Mr Gordhan?

Ms Mvuyana: No, it would be incorrect. The reports, we saw (and) we considered them. We also had evidence, so supporting evidence submitted by SARS which will be your memos, et cetera. That was all taken into consideration to come to a conclusion.

Adv Mpofu: Then there is another body of evidence, because of time, we will not  be able to go through all of them. But just let us go to paragraph 37 of your statement. You refer there to some of the independent institutions that came to the same conclusion at some stage or another, put aside that some of them are alleged to have been discredited whether we have shown that that may not always be the case, but let us just go through the list. You say there “although I reiterate that each report was based on its own independent assessment of basically the same evidence, it is difficult to understand the singling out of our report as ’dishonest’ or ‘biased’ without giving the same labels, to the following independent institutions, which at some stage or another made adverse findings to similar effect as the Public Protector report, namely, that the unit had been unlawfully established and operated. Such independent institutions included”, and I am just going to read the list of the reports, which you may have seen or heard about or whatever, but which exist around this issue. The first one was something called the Kanyane Report, which was led by an attorney. You were aware of that?

Ms Mvuyana: I do not recall the Kanyane Panel. They did a lot of work for SARS, so I could have seen a lot of reports.

Adv Mpofu: Yes. Okay, you do not recall maybe reading it. But reference to it in the documentation?

Ms Mvuyana: Yes.

Adv Mpofu: Yes, we will refer to it. It is in the bundles here. But you know that Kanyane is an attorney?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Right, okay. And then the Sikhakhane Panel, we have already discussed that. That is three independent advocates. I mentioned their names. You have said you are aware of that. KPMG, is a so-called Big Five audit firm. And then there was a Brassy SC panel of advocates. Were you aware of that opinion?

Ms Mvuyana: Yes.

Adv Mpofu: Yes. And that related mostly to the recruitment issue that Mr van Loggerenberg needed to be charged or whatever – it is part of the bundle here. And then the Kroon panel, we have discussed that. You are aware of that?

Ms Mvuyana: Yes.

Adv Mpofu: Again, you may not have read it in detail. Okay. And then the Office of the Inspector General for Intelligence. We will  come to that one. But you are aware that there was such a report?

Ms Mvuyana: Yes.

Adv Mpofu: The National Prosecuting Authority, there is a document which we already showed here, and I think Hon Herron commented on it previously, when we had Mr van Loggerenberg. But the National Prosecuting Authority, in the hand of Adv Pretorius, SC, well you might not know about the advocate. But the NPA had found enough evidence to charge some of the roleplayers, correct?

Ms Mvuyana: Yes, I was aware of that.

Adv Mpofu: You are aware of that? Okay. And then, of course, the Sunday Times newspaper, which we say was the largest South African newspaper. Once again, it is alleged that they changed their story at some stage, they had also found that this was unlawful or suggested that, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Yeah. Now, before we go to the fundamentals, which are the allegations of dishonesty and bias, I want us to deal briefly with the OIGI (Office of the Inspector-General of Intelligence) Report. Okay?

Ms Mvuyana: Okay.

Adv Mpofu: This report… I think it is common cause now, and we have in our bundle, Chairperson, a declassified version of that report. I will come, just now, to the controversy about the process of its declassification. But insofar as it has now been declassified, are you aware that it also made adverse findings against Mr Gordhan, Mr van Loggerenberg, Mr Pillay and others?

Ms Mvuyana: Yes, I am aware now.

Adv Mpofu: And are you also aware that it suggested that they be criminally charged for this?

Ms Mvuyana: Yes, I am aware.

Adv Mpofu: And are you aware that some of them, including Mr van Loggerenberg and Mr Pillay, were indeed charged at some stage?

Ms Mvuyana: Yes, I am aware.

Adv Mpofu: Okay. Alright. Now, the most important thing that I want to establish, which will assist this Committee, is two things. Firstly it is alleged that the the reason why the Public Protector was called dishonest by the judges, which then leads us to this Committee, because, as I said to you, if indeed, the Public Protector is dishonest and biased and targeting people and so on, then, of course, she would not deserve to be a Public Protector. But in this particular report, the reason why it was suggested was because it was claimed or it was said – the judges said – that the Public Protector had said in her report that she had not seen the intelligence report and yet she refers to it. Do you get the accusation, at least?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Yeah. In other words, here is somebody who says I never saw this report and she says it in the report; in fact, they say she said it explicitly. And then the same person in the report says that this is what the report was suggesting, and so on. So that would obviously be… it could either be a big mistake, but most probably it would be a dishonest act, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Now, seeing that this is an inquiry and assuming that we do not have to just swallow everything just because it happens to be in a judgment and contrary to popular belief. Let us now then interrogate that theory. Let us first look at it in the judgment. Can you go to page 4053? The judgment that we had before. Again, going back to the issue of legal, while she is looking for it, reasoning you would accept, I am sure any right minded person would accept, that If there is a finding of dishonesty or anything, but the factual foundation of that finding is incorrect, then obviously, that finding cannot stand, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Now, both, well not both, the judges, the Evidence Leaders and Mr van Loggerenberg, have told the Committee that the Public Protector said that in her report that she never saw the report – the OIGI Report. And the Evidence Leaders, in particular, but that is something that we are going to argue later, have not even conceded the fact that this was an incorrect premise and the Evidence Leaders are not supposed to be taking sides but assisting the Committee. But that is an issue for another day. This is what it says at 112 of the judgment, Chair. 112 refers to the OIGI report in general, okay? But let us go to 113, in particular. The judges, including Judge Baqwa, who was a former Public Protector, says this ”The Public Protector relies on this report”, that is the OIGI Report, “despite explicitly stating that she has not seen that report.” Do you see that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Did the Public Protector that you have seen, ever say, whether explicitly or otherwise, that she had not seen the report?

Ms Mvuyana: No.

Adv Mpofu: “The Public Protector, knowing of OIGI, she rendered the Minister of State Security to implement within 90 days”, and so on – it is the same point. Do you accept that she never said she did not see the report?

Ms Mvuyana: Yes, she did not.

Adv Mpofu: Okay, let us go to 116. Then they say “It is difficult to understand on what basis these sections of the Constitution can notionally grant the Public Protector the power to rely on a report that she herself has not seen because this is what she says in the report.” We now know that that is not true, correct?

Ms Mvuyana: Yes, that is correct. If only they had mentioned where about in the report that is captured.

Adv Mpofu: Yeah. Well, they were not going to say that because it does not exist. But then let us go to 117. No, let us go to 118, we will come back to 117. “Most alarming, however, and despite the fact that the Public Protector stated in the report that she did not have sight of the OIGI report before coming to her findings”, and then it goes on. So that is just another example, correct?

Ms Mvuyana: Yes, that is an example.

Adv Mpofu: Yeah. And then the punchline of all this then comes to what brings us here to Cape Town today. 120, it says “this turn of events”, in other words, this allegedly false claims by the Public Protector, “is disturbing to say the least and it is difficult to label the Public Protector’s conduct in this regard as anything but dishonest.” So that is the real…

Ms Mvuyana: Sorry, Mr Mpofu, I do not see that.

Adv Mpofu: Oh, sorry. 120.

Ms Mvuyana: Okay.

Adv Mpofu: Okay, can I read it again? It is a short sentence. “This turn of events is disturbing, to say the least and it is difficult to label the Public Protector’s conduct in this regard as anything but dishonest.” That is what it says. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Yes. And then it goes on and on and then it finds that the Public Protector was therefore dishonest. Now, according to the peddlers of the theory that the judgments must be taken at face value, even on something like that, when we know that it is just completely false and untrue, the Committee’s hands are tied. They must just impeach her because it is typed in a judgment. But anyway… So let us now come back to reality and away from the world of fantasy. You were aware that… No, let me do it like this. Sorry, Chair. You are aware of correspondence between… Okay, let us take it step by step. You are aware that the report had been dropped anonymously at the offices of the Public Protector?

Ms Mvuyana: Yes,

Adv Mpofu: Yes. You were aware that there were efforts, and I will not get into much detail because the Committee has been played recordings and all that, to have the report declassified and subpoenaed from the Minister?

Ms Mvuyana: Yes, I was aware of those.

Adv Mpofu: You are aware that there was a specific meeting held sometime in January 2019 with the Inspector General, Dr Dintwe, to try and achieve that same result?

Ms Mvuyana: Yes, I was aware, although I might not be sure about the date. Yeah.

Adv Mpofu: And the reason I am using the word aware is because… Okay, let me put it as a question. Did you yourself have access or read the OIGI report?

Ms Mvuyana: No.

Adv Mpofu: Why was that, if you were the investigator on the ground?

Ms Mvuyana: I did not have top secret clearance – security clearance.

Adv Mpofu: Alright. But while you did not have top security clearance, you were aware that some of the people who had such clearance such as the Public Protector had access to that report, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Right. Now, it is also common cause, I think at some stage the report was even published in a magazine called Noseweek. Were you aware of that?

Ms Mvuyna: Yes, I was aware. I saw the article in that case.

Adv Mpofu: Yes. Now… So if the Public Protector then was… or rather, at least if it was known between the Public Protector, the Minister, the Inspector General that the Public Protector had a copy of the report could she have then turned around five months later in the report and say she has never seen the report?

Adv Bawa: Chair?

Chairperson: Just a pause, Adv Mpofu.

Adv Mpofu: Yes, yes.

Adv Bawa: I am not sure on what basis this witness would have knowledge of that. I mean…

Adv Mpofu: About what?

Adv Bawa: About who knew what and what the Public Protector could or could not have done?

Adv Mpofu: Okay. Alright, let me… I think the witness has said that she was aware that the Public Protector had seen that report and she was aware that there was some fight, sorry, let me not call it a fight. There were efforts to classify, declassify, including the recording that was played here in the first week or so, Chair. And all I am asking here, really, is that armed with that knowledge, maybe this is how I should phrase the question, of the activities that had happened, if the Public Protector five months later had said ‘I have never seen that report’, would you have accepted that as an honest statement?

Ms Mvuyana: No, it would not have been honest.

Adv Mpofu: Yes. And, let us go to 5803 of that same bundle, Bundle A. It is a letter from Dr Dintwe to the Public Protector.

Chairperson: Yeah, I think in the afternoon Tshepo is much quicker.

Adv Mpofu: I think it is still the morning. Okay, then it might be the wrong bundle.

Chairperson: Just repeat it again? I was impressed but it looks like…

Adv Mpofu: No, it is not her fault. It is probably my identification. It is the letter from Dr Dintwe. It might be Bundle H. Bundle F, Item 190 and 5803. So it is me, Chair. The afternoon is with me. Alright, I will deal with two letters to deal with two issues at the same time. Go to paragraph four of that letter. This is a letter, Chairperson, from… it is on a letterhead of the Department of Intelligence, addressed to Adv Mkhwebane and signed by Dr Dintwe. Paragraph says “I further confirm that the investigation was finalised on 31 October 2014 and the report was submitted to the former Minister, Mahlobo, as required by Section 77(f) of the Oversight Act.” So there it is confirmation by none other than the DG (Director-General) of intelligence, or rather, I am sorry, the Inspector-General of intelligence, that, indeed, such a report exists, and that the investigation was finalised as alleged, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Now, let us then go to 5810, quickly, which is just further on. This is where there… This one, Chair, is a letter from the Minister to the Public Protector. Let us look at the date first. It is the 20 February, 2019. This would be five months before the report?

Ms Mvuyana: Yes.

Adv Mpofu: “The Minister confirms that during the meeting the PPSA informed her that a copy of The Secret Report was purportedly delivered to their offices by unidentified persons, which is therefore patently unlawful. It must be emphasised that the PPSA had not brought the unlawful disclosure of the classified information to the attention of the relevant authorities” and so on. And then she complains about other things. And then, she refers, at paragraph five, to “accordingly, the leak of the report to the media and the publication thereof, on Newsweek on 1 February 2019 is prejudicial to the national security interest” and so on. So this would mean this was already after the Newsweek article as well, right?

Ms Mvuyana: Yes.

Adv Mpofu: And then let us just quickly run to paragraph 11. She says “It is advised that the PPSA employs the following security measures: the report must be handled in accordance with the standards prescribed in the MISS (could not find full abbreviation), the report as well as copies thereof must be surrendered to the Minister, and so on and so on. The identities of all persons who had access or sight of the report at the office must be furnished” and so on. Now, do not worry so much about the contents of all those and the complaints. The point I am making is was it ever suggested by the Public Protector as early as 20 February, 2019, that she did not have the copy or had not seen it or had not read it? If you just look at paragraph two of that letter, where it says that the Minister confirms that PPSA informed her that a copy of the report was delivered.

Ms Mvuyana: Yes… Oh, but you are saying I must not take notice of what is said underneath? Before 20 February…

Adv Mpofu: Yes. I am sorry, ma’am. I am just confining my question to the allegation that the Public Protector said she had never seen the report whether that can be supported by what I have just read out to you.

Ms Mvuyana: No, she informed them in the meeting, from what this letter is saying.

Adv Mpofu: Right. And yet the judges made a finding of dishonesty against their based on some allegation that she said in the report that she never saw it. I invited Mr van Loggerenberg here to show us where the Public Protector says that in the report, because he had also used the same way as the judges. He said “she had emphatically denied having seen the report.” And I do not think he ever conceded the point, but it became obvious that this was nowhere in the report. From your knowledge of the report, is there anything that says that the Public Protector claimed not to have seen the report? We should attract this finding of honesty?

Ms Mvuyana: No. After Mr van Loggerenberg stated that, we went back to check and we did not find any paragraph sentence stating that PP had never seen the report.

Adv Mpofu: Right. Now, that, Ms Mvuyana is the real purpose of this exercise, called an inquiry. It is to inquire into those things. And we either do that, or we just take it at face value. And in which case, we should not waste the time of the taxpayers. Anyway… Now, let us then go to – the issue of bias, you have already dealt with – the two issues, really, that the Public Protector is accused of in relation to the so-called Rogue Unit Report, is this dishonesty, which we have now established was baseless. And then the other one is the bias that we spoke about earlier in the morning, namely, that there was some vendetta against Mr Gordhan, and you were all dreaming up all these things about the establishment of the Unit and procurement of equipment. Let us deal very quickly with the question of equipment, There is a theory that, again, in the pursuit of your conspiracy and vendettas, you made up the existence of spying equipment, which is actually not existent, and, in fact, I think Mr van Loggerenberg said that you can buy that equipment from Makro, Game or something like that. Now, you were involved in this investigation, just tell the Committee about the story of the equipment; what the equipment was referred to; what kind of equipment it was; and where is it now?

Ms Mvuyana: Okay. I would have to also go back to the report to refresh my memory. It was a long list of equipment, so I will not remember the specifics. But there was a list… When we requested the information from SARS, we were provided with the information. We also looked into, like I stated before, the 2014 matter, which was finalised in 2017. The file did also have lists of equipment that had been purchased from the complainant in that case. We also had memorandums requesting deviations to procure or to appoint service providers that would then procure what was termed security equipment for the Unit. I will just pause to say that the Unit, some call it the Rogue Unit, changed names a couple of times during the years. So it might confuse the reader which Unit is being referred to. But we established that it is the same Unit that does the same thing, just that it changes names. So those service providers were appointed, the equipment was delivered and used by the operators or employees of the Unit. That would be… An example would be your night vision binoculars, which Mr van Loggerenberg I think claimed was used for border security or customs. There were also listening devices. Another document even specified and showed pictures of the equipment. It is in the report. But like I say, I cannot refer to the specific paragraphs now. So that was the evidence that we had before us. And the denial of the equipment, unfortunately, I cannot comment on because it is his word. But after the investigation was completed, we were then invited by SARS, to come and view the handover of the equipment. They were moving buildings so we needed to be there. It was an invite as well for us, that okay, the equipment is going to be moved, so Public Protector, you are invited to come and verify and also be a witness to such movement of the equipment. We then went there, I will not mention where there was equipment. We verified the list of the equipment that were in the report with some of the equipment that were present in that particular building. We ticked what we could find and noted what could not be located. Unfortunately, the officials that were there, we could not then restart the process of investigation and interview them of.. in terms of what it was for. But the labels of the covers of this particular equipment, you could see what they are for. And the verification list was sent to Mr Mataboge. So currently, I am not aware where it is, but it is in the possession of SARS.

Adv Mpofu: Okay. Let us do… so that we get out of this equipment story quickly. I am going to try and use two dimensions. Am I right that as far as equipment is concerned, there were two issues. One was whether it is spying equipment, but the other one was how it was procured, whatever, whether it is buying equipment or not, but it had to do with its procurement, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Right. Now, what was your finding on the procurement of the information? Assume for now, it was just, you know, equipment for playing, or pretending (to be) cops and robbers and there was nothing dangerous about it. What was your finding regarding its procurement?

Ms Mvuyana: Our finding was that procurement legislation had not been adhered to. So what we noticed there is that when there was a request to deviate from normal procurement processes, one of our reasons then for finding that procurement legislation was not adhered to is because the reasoning given for the deviation which in this case was allegedly, I might be mistaken, an emergency. So that is National Treasury Regulation 16 A 6.4, which they used in this instance. That was the basis of our finding then that there was no emergency in this instance and from the evidence that was submitted, it could not be proved that an emergency existed for the purchasing of that particular equipment.

Adv Mpofu: Right. Okay. So once again, we will come to the nature of the equipment and whether it was spying equipment or whatever. But your finding was that whatever it was it was irregularly procured?

Ms Mvuyana: Yes.

Adv Mpofu: Okay. And your adverse finding, in that regard, dealt with… Okay, if you go back to the 7(9), Tshepo, at paragraph 14.2.8. 

Chairperson: Are you asking, Tshepo?

Adv Mpofu: 14.2.8 of the letter that we were dealing with earlier. Paragraph 14.2.8? I think our pages were not aligned, that is why I am using paragraphs.

Chairperson: The long letter?

Adv Mpofu: Yes.

Chairperson: You had it before, so we know about it. Just go to your shelves. 14.2.8?

Adv Mpofu: Yes. I think it was bundle A 6472, or something, on your version. Please keep that because we are going to keep on coming back to it. Alright. I was just going to ask you about the estimated cost of the equipment that you are saying was irregularly procured. 14.2.8 refers to a figure of R14 million which was still within the contract amount and so on. Was that the value or the estimated value of the equipment?

Ms Mvuyana: This is what the memo stated.

Adv Mpofu: Sorry, the memo which was requisitioning the equipment?

Ms Mvuyana: Yes, so the contract amount was for the estimated value of R40 million.

Adv Mpofu: Right.

Ms Mvuyana: Yeah. I will not be able to comment on the equipment that I saw, if it is worth R40 million. But it also included a variety of services, besides only buying equipment.

Adv Mpofu: Yeah, okay. And go to 14.2.22. There is a list of equipment there. Well, I do not know these things, but I will just highlight those that look like spying equipment to me.

Chairperson: I am sure you know a detector. There is something called a detector there.

Adv Mpofu: I do. I do. Let us take a random, 1, 2, 3, 4, 5… It says ‘basic costs and electronic eavesdropping’. That is part of the manual, I suppose, that was part of the list, correct?

Ms Mvuyana: Yes, or they actually went through a course.

Adv Mpofu: Yes. And then there is a famous one on the next page: advanced course in electronic detection. Even the Chair knows that one, even though he is not James Bond 007. And basic costs in electronic eavesdropping. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Then let us just go further down. “TGVCALJ56 signal jammer”.

Ms Mvuyana: Yes, I have seen the list.

Adv Mpofu: Yes. No, no, we are doing it for the record. The other one “Signet Advanced Counter Surveillance RF Detector”. You see that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Go further down. “Cellular detector-surveillance” whatever that means. Anyway, were some of these, I have not read all of them obviously, the kinds of equipment that featured in the list that you later said you went to verify physically?

Ms Mvuyana: Yes, they were.

Adv Mpofu: And all this information, the R40 million (and) this list and all that, was then contained in your 66-page letter, which was similar to the one sent to Mr Gordhan, correct?

Ms Mvuyana: Yes, I believe so.

Adv Mpofu: In other words, you were now saying to them ‘this is what we have. This is what we have found in our investigation, please, this is your opportunity to refute it and otherwise these will be our final conclusions, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Then at 14.2.24, just go down, there you talk about… remember I said there are two dimensions. There is the rogueness in terms of the spying equipment but there is also the alleged PFMA non-compliance?

Ms Mvuyana: Yes.

Adv Mpofu: So you then spell out to them what Section 38, which we all know, of the PFMA provides. It says that “The accounting officer for a department”, in this case that would be Mr Gordhan, “trading entity or constitutional institution must ensure that the department trading entity/constitutional institutional has and maintains effective and efficient and transparent systems of financial and risk management, internal control and appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost effective.” Did you find that these things were procured by such a system?

Ms Mvuyana: No, we find that they were not.

Adv Mpofu: Yes. The highlighted parts include, if you go further on, Tshepo, “preventing unauthorised and irregular fruitless, wasteful expenditure and losses resulting from criminal conduct on discovery of any unauthorised irregular fruitless wasteful, must immediately report and take effective appropriate disciplinary steps” and so on. Were such steps taken regarding this irregular expenditure?

Ms Mvuyana: No. “Prevent unauthorised irregular and fruitless and wasteful expenditure and losses resulting from criminal conduct”. Is that the section?

Adv Mpofu: G is important, “on discovery of such, to report it in writing”.

Ms Mvuyana: Yes.

Adv Mpofu: Was it done?’

Ms Mvuyana: No evidence was submitted in regards to this. The 7(9) was also served on SARS, so they also did not respond.

Adv Mpofu: Okay, good. That is important information. So the 7(9) was served on SARS, Mr Gordhan and Mr Pillay?

Ms Mvuyana: Yes.

Adv Mpofu: So each one of them, if there was evidence to refute these allegations, they would have come back and given you such as authorisation or reporting in writing or whatever?

Ms Mvuyana: Yes.

Adv Mpofu: And was any of that given to you?

Ms Mvuyana: No.

Adv Mpofu: Right. Let us jump to 14.2.28, just so that we can wrap up the equipment issue. Can you confirm this is what the Public Protector and you as the drafter, said in relation to this issue, “SARS failed to provide me with documents relating to the procurement of equipment for the CBU, NRG and subsequently, SPU” – those are the various names of the Rogue Unit that were used from time to time – “such conduct is in violation of Section 181(4) of the Constitution”? And then 14.2.29 “it is extremely unlikely that a unit carrying out investigations on behalf of SARS would not procure equipment necessary for the fulfilment of these duties and functions.” 14.2.30 “It is unclear why SARS and or its former employees would keep procurement of equipment such a guarded secret. Without proper explanation, I can only infer the proper procurement processes were not adhered to.” And then the next one says “the existence of a Unit is an indisputable fact and therefore the buying of the equipment is an obvious aftereffect. I am of the view that the failure and blatant refusal of SARS and its former employees to provide me with records of the procurement and whereabouts of the said equipment, is unwarranted and undermines my ability to perform constitutional functions.” In the circumstances that you have described were those conclusions justified?

Ms Mvuyana: Yes, once the Section 7(9) was issued they could have come back and disputed these findings and provided the necessary evidence. However, they did not. So we proceeded to make adverse findings.

Adv Mpofu: Yes. In the absence of any countervailing evidence being supplied to you, did you have any choice but to make adverse findings?

Ms Mvuyana: No, the evidence is clear. We have already portrayed the evidence that we received and explained the evidence that we received. We explained the list. I see on this document, it had not been blacked out. That is good, because that means Mr Pillay knew what equipment we had, or had been made aware of. So there was no other way to not come to this kind of conclusion.

Adv Mpofu: Yes. Let us go to 14.3.43, please, Tshepo? Oh, I am sorry. Just so that I do not confuse the record. This, now, Chair, refers not so much to the equipment issue, but to the issue of recruitment of personnel. That is the heading at 14.3. And I will try and move on this one quickly. Is it correct… What were your findings? Can you just tell the Committee briefly what were your findings in respect of the regularity or otherwise of the recruitment of the members of the Unit?

Ms Mvuyana: If I recall correctly, there was no recruitment process in this instance; posts were not advertised. There was headhunting but the headhunting was not formalised. There wasn't even at least a policy on how employees would be appointed and what expertise. So the finding, then was therefore, that recruitment procedures had not been followed.

Adv Mpofu: Yes. And specifically if you go 14.3.4.2, Chair. No, I am sorry. Let us start at 14.3.4.1. There is a memorandum that is referred to there and I just want to highlight a section which deals with what you have just told us now. It says there “the aim of this submission”, this was made by Mr Sipho Mbongwa to Mrs Gene Ravele and Mr Pillay, “is to obtain approval for the appointment of personnel referred to below.” These are external candidates, okay? And then under process, the second paragraph, Chair, “while posts were not advertised in the conventional manner, individuals identified as having the necessary competencies for the unit to operate were asked to submit their CVs to a panel for interviewing. Such individuals are recruited from both SARS and the relevant security sectors and have the following range of skills: intelligence, legal, accountants and investigative skills.” So that is the type of person we are talking about, correct?

Ms Mvuyana: Yes.

Adv Mpofu: Okay. Now, let us go to 14.3.4.2. There is a list of some of the people who were employed by the Unit in this irregular fashion, okay? Maybe let me not call the people’s names, just to protect them. Chair, I will just read the qualifications and experience. Person 1, it says “intelligence officer and forensic investigator at Defence Intelligence”, right?

Ms Mvuyana: Yes.

Adv Mpofu: Person 2 “ formerly employed by the South African Secret Service”, okay? Person 3, “directing staff at school of intelligence, Defence Force.” Person 4, “experienced investigator, commercial field employed by SARS” And then the others have other skills like forensic investigator, senior auditor and forensic auditor, but the first four were clearly serious intelligence background, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Right. And then 14.3.4.3 – this is the relevance to Mr Gordhan. It says ”this memorandum” which dealt with all of these things, “was approved by Mr Gordhan on 11 November 2002, in which he noted that such approval was ’subject to a discussion with Ivan’, that would be Mr Pillay “et al, on role functioning and reporting.” So that was what you found, that Mr Gordhan actually approved the recruitment practices described above, correct?

Ms Mvuyana: Yes.

Adv Mpofu: Then can we quickly run to 14.4.31. Go back to 14.4.30. This time it is your fault, Tshepo. It is that afternoon. 30.

Chairperson: 30 and then go to 31?

Adv Mpofu: Yeah, the preamble. Now, let me just pause to explain where I am going with this with the Chair. Chair, there is what I am trying to condense this. One of the red herrings in this evidence is the issue that the National Security Intelligence Act does not know not apply to this whole situation because it is about national security and so on. And our theory, when we argue the case, will be that it is a deflection, because let us assume that Act does not apply. But certainly, if that Act does not apply, let us say this Committee decides to intercept my communication. The fact that I might say, ‘No, it is illegal and some Act, which does not apply’ is irrelevant. The point is that you are not allowed to intercept my interception under some law or another, or rather let me put it in reverse, there is no law authorising you to intercept my communications. So, sorry I just wanted to accept that… to expect that… to explain that. So in this case, you as the Public Protector, looking at the cluster of laws in South Africa had identified that one of the acts that would be breached by the so-called Rogue Unit would be, is the one referred to at 14.4.30. “The preamble of the interception of communications and provisions of communication related information act 70 of 2002, shortly called the interception of Communications Act, describes the purpose of the act as inter alia, to regulate the interception of certain communications, and the monitoring provisions of certain communications related information.”And then 14.4.31, “Section 1 of that Act defines intercept”, and again, it's too long, I will not read, I will just jump, “it means that the oral and other acquisition of the contents of any communication by any means including an interception device, so as to make some or all of the contents of communication available to a person other than the sender or recipient.” And then it lists things like monitoring of any such communication by means of a monitoring device. Remember from our list, we had such monitoring devices? Then ”Viewing the examination or inspection, the contents of any indirect communication”, and so on and so on. The long and short of it is that it was your view that the interception by the alleged Rogue Unit breached this Act, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And again, at the risk of sounding like a broken record, you were inviting them by this Section 7(9) to then refute those conclusions, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Right. And then 14.4.32, Chair, that is the highlight of this whole thing. It says “in terms of Section 3 of the Communications Act, that act provides that communication may only be intercepted by an authorised person in execution of an interception direction. An interception direction is an authorisation issued by a designated judge on application to an applicant.” We have already confirmed this earlier, that this Act is the one we might know its name, but it is the one that says you can only intercept if you have a judge's order, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then just for the sake of completion and on that name issue. At 14.4.33, and that is probably where the confusion on van Rensburg, De Waal and Lombard. But just to help you remind yourself on that, it says “The evidence before me indicates that during 2007 until November 2007, Mr Pillay and Mr van Rensberg irregularly recruited Mr Helgard Lombard and Mr de Waal and or authorised intercept communication within the offices of the DSO and those of the NPA without an interception direction issued by a designated judge in terms of the regulation of interception communication and provision of communication act.” Was that your finding?

Ms Mvuyana: Yes.

Adv Mpofu: Your provisional finding?

Ms Mvuyana: Conclusion, yes.

Adv Mpofu: And unless someone was to bring the direction by a judge, then that provisional finding would become a definite finding?

Ms Mvuyana: Yes.

Adv Mpofu: Did anyone ever produce evidence that there was such authorisation?

Ms Mvuyana: No, they did not. Mr Pillay specifically denied authorising Mr Lombard and De Waal.

Adv Mpofu: Right.

Chairperson: Okay. Can we pause there for ten minutes?

Adv Mpofu: Yes, Chair. Yes, yes.

Chairperson: We will just go for tea for ten minutes and be back at 15:46. Thank you.

The Committee adjourned once more for a ten minute tea break.

Chairperson: We are back colleagues. We resume with Adv Mpofu and Ms Mvuyana.

Adv Mpofu: Thank you, Chair. I just wanted to round off. There is another red herring issue bandied about by those who want to I think distract us from the real issues and this has to do with Mr Pillay, specifically. Unfortunately, Mr Pillay is also being shielded from coming to finish his cross-examination. Apparently since he was not available last year, he is not available for the rest of his life, even though he volunteered to make a public submission. But be that as it may, Mr Pillay, you will remember that one of the issues that I would have loved to question him on – which I will question him on if he ever comes back – is this issue of his qualifications, correct?

Ms Mvuyana: Yes.

Adv Mpofu: Now, this whole thing is just distracted into some nonsensical issue about a matric certificate and so on. But the point, really, if we go back to – are we still at the letter, Tshepo? The 7(9) letter, yes. Sorry, we are going backwards this time. At 3.10, the allegation from Mr Shivambu, or from the complainant, was that it had nothing to do with matric or anything at this stage. It says “Mr Pillay was appointed to the position of Deputy SARS Commissioner and subsequently as SARS Commissioner, whilst he did not possess the necessary qualifications for the position, right?

Ms Mvuyana: Yes.

Adv Mpofu: Positions, sorry. And you, at 8.6, and when I say you, I mean you and the Public Protector, then decided that one of the issues you were going to deal with in phase one is that issue and you phrase it like that. “The allegation that Mr Pillay  was appointed to the position of Deputy Commissioner and subsequently SARS Commissioner while he did not possess the necessary qualification for the position”, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Yeah. And then if you go to, sorry, Tshepo, 14.5.4. Bearing in mind that this letter is actually to Mr Pillay. So, again, he is being given the opportunity to refute that he did not have the necessary qualifications. And while we are going there, let me just say that Mr Pillay seems to be the elusive Mr Pillay who does not want to come back here. He seems to be a unique species in South Africa. Firstly, he got a retirement that was not a retirement and got paid from the taxpayers account. You were not involved in that particular investigation of the Pillay-pension scandal, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: But now here again, he hits another first. I think he must be the first person or the only person even in the future, to be a SARS Commissioner armed only with a matric, if that. But anyway, the point is that at 14.5.4, you say that SARS, in their response dated, did not dispute that Mr Pillay did not have a degree, and that he possessed a matric certificate. So even on the version you sent to him, you were assuming, for the purposes of argument, that he did not have a degree but possessed a matric certificate. Do you see that?

Ms Mvuyana: Yes.

Adv Mpofu: Now, somewhere in the report, and the Public Protector will deal with this when she gives evidence, but for now let us assume that it is some mistake, it is suggested that he does not have a matric certificate. Now everything else is now pinned on that mistake, to distract us from the fact that even if he had a matric he would not qualify for… To distract us from the fact that even if he had a matric, really, a matric certificate cannot be qualification to become the Commissioner of SARS, even the Deputy. And at 14.5.8… Sorry?

Adv Bawa: I do not want to interrupt you, but would it assist you if I told you were the reference was?

Adv Mpofu: Of the matric?

Adv Bawa: Matric.

Adv Mpofu: Yes, it would assist me. It is page 98.

Adv Bawa: It is paragraph 5.6.26.

Adv Mpofu: Yes, I have got that. Yes, thank you. What is the fuller reference?

Adv Bawa: I think it is 3.1.3.5.1.6.

Adv Mpofu: Yes, can you go there, Tshepo? Just for completion. Okay, while she is looking, I will use this to address the Chair on this. Chair, this reference, we did deal with this briefly with Mr Pillay, although we did not complete it. It is about this, the issue about whether or not Mr Pillay was being favoured by Mr Gordhan because of their history in the struggle and all that. And we will argue at the end that even the most heroic exploits in the struggle cannot give you qualifications to be the Commissioner of SARS, armed with matric. Otherwise there are many people who were involved in the struggle and they are working in places that they qualified. Are you finding it, Tshepo? Yeah, it is in the report we referred to earlier. Oh, you got it? 5.6.26. Yeah, thank you. Now, here, Chair, as I say for now, until the Public Protector comes we will put this into context. Let us assume that this was a misprint or mistake or whatever. But this is what now is being latched on. It says “SARS and Mr Gordhan conceded Mr Pillay did not possess a degree qualification, nor a matric certificate.” Now, we know that both Mr Gordhan and Mr Pillay did concede that he did not have a degree, correct?

Chairperson: Your mic is not on.

Ms Mvuyana: Sorry about that. It was switched off when Adv Bawa was speaking. No, I was just saying that it is correct that they did concede that he did not have a degree. I was just stating that SARS, in their response, stated that there was no formal qualification.

Adv Mpofu: Okay, good. And I think that… Okay, we will get to that. I did not know that you know that. That was the part I was saying was going to be explained by the Public Protector.

Ms Mvuyana: Sorry.

Adv Mpofu: But, no, it is okay. It is good if it is explained by the both of you. SARS conceded that he had no formal qualification, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And that will include a matric or anything?

Ms Mvuyana: From my assessment?

Adv Mpofu: Yes.

Ms Mvuyana: Yes.

Adv Mpofu: So the mistake in that sentence would be to ascribe that concession to Mr Gordhan because in fairness, Mr Gordhan only conceded that he did not have tertiary education – I think those are the words he used. Take it from me. Correct?

Ms Mvuyana: Okay, correct.

Adv Mpofu: Yeah. And Mr Pillay, himself, also could not be accused of making that second concession. He conceded that he did not have a degree but he claimed that he had a matric. At least he said that to the Public Protector:  that is now common cause.

Ms Mvuyana: Okay.

Adv Mpofu: Alright? Okay. So the point I want to make here is that instead of running with this matric thing, which I say is a red herring, all these people: SARS, Mr Gordhan, Mr Pillay, Mr x,y,z and everyone alive in South Africa accepts that Mr Pillay did not possess a degree, okay?

Ms Mvuyana: Correct.

Adv Mpofu: Yes. Now, when you asked SARS or anybody… Let me put it this way, have you ever seen Mr Pillay’s matric certificate?

Ms Mvuyana: No, I have not.

Adv Mpofu: Yes. And when he comes back here, if he ever dares to come back, we will ask him to bring that matric certificate. But until then we will assume that he does have that certificate, okay?

Ms Mvuyana: Okay, noted.

Adv Mpofu: Right. Now, so the point I simply want to make is that the whole matric thing was used as a distraction. The gist of what you were investigating, is what is stated, which I read to you at 3.10, and 8.6, namely that Mr Pillay was given those positions without a suitable qualification.

Ms Mvuyana: That is correct, yes.

Adv Mpofu: Yes. And if it is framed like that, and not use this red herring story of the matric, was that allegation substantiated?

Ms Mvuyana: Yes, from the evidence that we had before, it was substantiated.

Adv Mpofu: Yes. And we know that there was some mumbo jumbo that was given as the reasons for that. One of them was something called strategic feat or goodness of feat or whatever. Some method that makes you overlook people's lack of education.

Ms Mvuyana: Yes, goodness of fit.

Adv Mpofu: Yes. And then the other one was struggle credential credentials. Mr Gordhan said that Mr Pillay deserved that position without having any formal education – oh, I am sorry, any formal qualification according to SARS, or any tertiary education, according to Mr Gordhan, because he had made a good contribution to the struggle. Correct?

Ms Mvuyana: Yes, in not so many words. He also said he was a long serving member of the public service.

Adv Mpofu: Yes. Yes, yes. True. And contributed to the transformation of SARS and that kind of thing. Alright. So, the reality is that we had somebody who, at best for him, was qualified with a matric certificate from 1970, at some place which is distinct in Benoni, somewhere. Or we had someone who had no formal qualification, at least that could be proved by SARS, being the commissioner of SARS of South Africa.

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And the court found that the Public Protector was disingenuous because of that mistake… of that suggestion of conflating SARS with Mr Gordhan, that said that he did not have a matric certificate, correct?

Ms Mvuyana: I am shocked. Is that what the court said?

Adv Mpofu: I am shocked too. The court said… Chair, I will find it just now. I will come back to it, Chair, to the reference, yes. But yeah, I am just paraphrasing what the court said effectively that or rather it went on this issue of the matric certificate and the fact that Mr Pillay had told the Public Protector in the meeting that he had a matric certificate, so how could she put that sentence that she put up there and therefore she was disingenuous and so on and so on.

Ms Mvuyana: Okay, noted.

Adv Mpofu: It is just not this court, to be fair to the court of Judge Baqwa. It went up to the Supreme Court of Appeal and they rejected any attempt to appeal and it went to the Constitutional Court and they also found nothing wrong with the judgment or at least there were no prospects of success, according to those courts without any… So it was 19 and 20 judges who endorsed that view.  And, in fact, what was said is that you and the Public Protector and other people were deserving of censure, punitive costs and personal costs for even daring to suggest that Mr. Pillay among other things, could possibly not have been the right person with his credentials, or lack thereof, educational speaking, of heading our Revenue Services. Alright, then we go to… This letter of yours is too long. At least we are now on page 63, Chairperson, you will be happy to know of this 63 page letter. I think we have covered this issue – it is on 16.2 – regarding “whether SARS failed to follow correct procurement processes in the procurement of intelligence equipment which the intelligence units utilise for gathering intelligence, and if so, whether such conduct amounts to maladministration.” You found that that is established. We have already covered that, correct?

Ms Mvuyana: Yes, that is  correct.

Adv Mpofu: In 16.2.1, “the allegation that SARS failed to follow the proper procurement processes in the procurement of intelligence equipment with Intelligence Unit utilised for gathering intelligence is substantiated.” Okay, we have covered that. Then the next one is 16.3, regarding whether SARS failed to follow proper recruitment processes in the appointment of employees who worked for the Intelligence Unit. That was also substantiated, correct?

Ms Mvuyana: Yes, it was.

Adv Mpofu: But notably 16.3.5, which I would like to highlight for the Committee, it says “The apparent denial of Mr Gordhan of any involvement in participation in the recruitment process of one or more of the Unit’s employees is improbable. The Sikhakhane Report and the Gene Ravele Dossier confirmed that Mr Gordhan played a role in the recruitment of Mr van Loggerenberg.” Remember that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: And you presented this to them for, again, for refutation, correct?

Ms Mvuyana: Yes.

Adv Mpofu: And then 16.3.6, you say “I have also noted that Mr Magashula’s denial of the existence of the unit and the recruitment of employees thereof, is a misrepresentation. Mr Magashula, at the time, the members of the unit were transferred within SARS to form CBU and the appointment of external staff was the Chief Operations Officer Corporate Services. He approved the memorandum submitted by Mr Pillay relating to employees to the newly formed unit.” So you give the basis for disbelieving Mr Magashula, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then the punchline is 16.3.8, which I will read to the record. It says “The conduct or Mr Gordhan and Mr Pillay in approving the memo for the establishment and invariable recruitment of staff for the intelligence unit in the manner described as improper, thus amounted to improper conduct as envisioned in Section 182 (1) of the Constitution and maladministration, as envisaged in Section 64 (I) of the of the Public Protector Act.” That was the concrete finding, correct?

Ms Mvuyana: Yes.

Adv Mpofu: Then 16.4, “regarding whether the intelligence intelligence unit carried out irregular and unlawful intelligence operation, and if so, whether such conduct constitutes maladministration.” That is that whole debate about whether it amounts to interception and Mr de Waal and what have you. You found that was substantiated as well, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Then finally, at 16.5 “regarding whether Mr Pillay was appointed to the position of Deputy Commissioner and subsequently a SARS Commissioner whilst he did not possess the necessary qualifications for the position and if so, whether such conduct amounts to maladministration.” Again, there is no mention of matric here or anything, it is simply whether he did not possess the necessary qualifications for the positions, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then 16.5.1, you say that “the allegation that Mr Pillay was appointed in the position of Deputy Commissioner and subsequently SARS Commissione while he  did not possess the necessary qualifications, is substantiated, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: The part that you said you were shocked by and I said I shared your shock is to be found in the judgment at paragraph 227. Oh, sorry, Tshepo. It is page 4093 of that bundle of judgments. This is what our judges said…

Chairperson: Paragraph?

Adv Mpofu: It starts at 227 but I want to read 229. I think that is a special one. Okay, the judges say “Firstly, there is no requirement that only the holder of a degree can be appointed as deputy commissioner of SARS or hold an acting appointment of the commissioner. Secondly, there is no rational basis for the conclusion as Mr Pillay’s qualification for appointment as Deputy Commissioner were clearly taken into account and it was found that he was suitably qualified for the appointment. What the Public Protector presumably meant by her statement is the fact that Mr Pillay does not possess a degree was not taken into consideration but in as much as the possession of a degree is not a precondition for the appointment  asDeputy Commissioner, the Public Protector’s reasoning is fallacious.” 229. And then it says, at 223… No, sorry, let us start at 232 – this is the revolutionary consideration. It says “There are three difficulties. Firstly, it is doubtful that SARS would have stated that Mr Pillay did not matriculate, as that would have been a false statement”, says the judges, “as Mr Pillay matriculated in 1970 having completed his secondary school studies at Merebank High School.” Did you ever get such information, such proof of that?

Ms Mvuyana: No, we did not even have his CV because SARS could not find the CV.

Adv Mpofu: Yeah. And then the judges say “secondly, nowhere in Minister Gordhan's affidavit is it stated that Mr Pillay does not possess have a matric certificate”. That we concede. It was only SARS who said ‘no qualification’, correct?

Ms Mvuyana: Yes.

Adv Mpofu: And then what Minister Gordhan recorded was that quote “Mr Pillay, like many other South Africans, who dedicated their lives to the struggle against Apartheid does not have any tertiary qualification.” So this is what I was referring to when I was saying that one of the reasons given for employing him in such a sophisticated position was his dedication to the struggle, correct?

Ms Mvuyana: Yes, apparently.

Adv Mpofu: “Thirdly, the statement was contradictory to the evidence the Public Protector had in her possession at the time of the release of the report.” Did the Public Protector have such evidence contradictory to the lack of qualifications?

Ms Mvuyana: We did not have a matric certificate. We did not have his qualifications. So which evidence were they talking about?

Adv Mpofu: I do not know. Then at 233, it says, somewhere in the middle there, “for no apparent reason the Public Protector disregarded his evidence. In fact, she doubled down on this issue by finding that Mr Pillay possessed neither a tertiary qualification or a matric certificate.” And then this is what the Public Protector says, which is rejected by the judges in explanation, Chair, at paragraph 233. This is what she said in her affidavit “It is denied that the Public Protector made a malicious slur against Mr Pillay. The issue of the matric certificate could have simply been resolved by Mr Pillay providing that information to the Public Protector when he was asked to give information about his qualifications. He failed to do so as SARS fails to answer the questions on Mr Pillay’s qualifications. In any event, there is nothing in the report of the Public Protector to support the convention that she concluded that Mr Pillay had no matric.” And that is the passage that we read earlier, which attributed that to SARS and to Mr Gordhan, wrongly, in Mr Gordhan’s place but not to the Public Protector. “What the Public Protector said was that it was not denied by Gordhan or SARS that Mr Pillay did not possess a tertiary education, including matric”. So here it was being explained in simple English, that the Public Protector did not say in her report that Mr Pillay does not have a matric. She simply says Gordhan and SARS did not deny that he did not possess a tertiary education, including matric. Do you understand the difference between those two things?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Congratulations. Okay. Then, 234 it says “Counsel  for the Public Protector, in addition, submitted during admin that Mr Pillay ‘in his long and verbose affidavit dated 14 April 2019’, Mr Pillay does not discuss what his qualifications are, except that he has some experience which among others come to the fact that he was in the struggle for the liberation of South Africa.” And then here is the punchline which brings us here to this room today. “The contention in the answering affidavit and submissions made on behalf of the Public Protector that the Public Protector made no finding that Mr Pillay had no matric and that Mr Pillay did not provide information about his qualification when he was asked to do so, is disingenuous”, say the judges. Was that contention disingenuous, firstly that Mr Pillay had no matric? Compared to what I read to you earlier, do you accept that is not what she said?

Ms Mvuyana: No, I believe it might have been misinterpreted here. But the report states that there was no evidence, if I can summarise, of Mr Pillay having a formal qualification. So that includes a degree and in argument, a matric.

Adv Mpofu: Yes. And then the second one that is called disingenuous is that Mr Pillay did not provide the information about his qualification when he was asked to do so. Did he provide any evidence to support his claim of the matric?

Ms Mvuyana: No.

Adv Mpofu: And then this is the last part. It says “The conclusion that Mr Pillay had no degree and no matric was central to the Public Protector’s finding that Mr Pillay  was not qualified to be appointed Deputy Commissioner.” Is that true? Let us assume for a minute there had been a matric certificate, would you have concluded differently?  Would you have concluded that now that means he is qualified to be Commissioner for SARS?

Ms Mvuyana: No, because besides the qualification, the manner in which SARS went about in… Because in the report, we first started with the Deputy Commissioner position, and stated that it was a new position and it had to be properly created within the organogram, if I can use that word, and Mr Gordhan has not done that. So in not doing that, that means that the duties were not properly identified, competencies were not properly identified. When it then came to the appointment to Commissioner, SARS claimed to have used the goodness of fit model, which then they said only identified people based on their competencies in relation to leadership et cetera – qualifications was not really a big thing for them – and the experience within SARS, et cetera. So the finding made by the PP was based on that and not necessarily the matric. When we quoted the Constitution here, the fact that, yes, he might not have a degree or have enough experience at SARS, but when we looked at other adverts for the position of Commissioner, they require a degree now. So to not require a degree, it really did not sit well, and yeah, we could not have made another finding, I believe.

Adv Mpofu: Yes. Apart from it being disingenuous, based on all this, what I have just described, it says “Accordingly at the time of the report, the Public Protector well knew that Mr Pillay has a matric certificate.” Is that factually true?

Ms Mvuyana: I was not in the meeting the judges claim is where the PP learned of Mr Pillay’s matric status.

Adv Mpofu: Okay, that is fine. Assume that in that meeting he did claim to have a matric certificate. I am asking you about this statement: “Accordingly at the time of the report, the Public Protector well knew that Mr Pillay has a matric certificate”. In other  words, she either had seen it or she was convinced of that fact. Is that true, factually?

Ms Mvuyana: No, that is incorrect.

Adv Mpofu: And then it says “Her conclusion in the report that Mr Pillay does not hold even the basic qualification, notwithstanding the fact that on 25 March  she accepted that this was a matter of public record, and was within hand knowledge is astounding.” Well, apart from that adjective, what precedes it is that she accepted it, that he has a matric, to your knowledge, is that true?

Ms Mvuyana: No. On the 14 March?

Adv Mpofu: Yeah. Well, I accept that you do not know the date.

Ms Mvuyana: No, I did not.

Adv Mpofu: Then it says “We submit that this further demonstrates the Public Protector closed her mind and adopted a process of irrational reasoning”. I rest my case. So that is the kind of thing that this Committee is supposed to inquire into and make up its own mind and it will have to find… I suppose the Public Protector is going to testify whether A, she has ever such a matric certificate, B whether she ever accepted that it exists, and C, even if it existed whether that would be sufficient qualification to be Commissioner for SARS. Then it comes to the conclusion and, Chair, I know that this letter… we have now come to page 64 to 66. And then I want to just read the gist of it, and it will be the same. The one to SARS, Mr Gordhan will also be the same.”I hereby afford you, Mr Pillay, the opportunity to comment under oath to the above terms of this Notice”, the 65 pages. “You are requested to respond to the above within 10 working days as per 24(d). I also invite you to state under oath that you have declared or provided to my office all relevant information, documents, and any other evidence relevant to this complaint. You may engage with the Public Protector investigation team through the Chief Investigator of good governance” and so on. “Or forward all of the inquiries to Mr Nkabinde.” That was the Public Protector’s personal assistant, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Should you be in agreement with the intended findings, it will be necessary to issue a report that simply indicates SARS’ intention to remedy the maladministration and improper conduct referred to in the report. However, should you have evidence contradicting the evidence in my position relating to this matter, kindly forward the same to my office. Please take note that the appropriate remedial actions will only be taken once an investigation is completed, having taken into account your response, if any, to my preliminary findings herein. Should you fail to respond or contradict or rebut my preliminary findings, my investigation will be finalised and  remedial action taken in terms of 182 (1)(c) of the Constitution, and my report will therefore be published in terms of Section 1 of the Public Protector Act. Further take notice that in terms of Section 72,  the contents of this notice are confidential and no person may disclose them without my authorisation. In terms of Section 11, you are not entitled to access the records/documents in my position during the course of my investigation. In terms of Section 11 of the Public Protector Act, any person who contravenes the provisions of Section 72 is guilty of an offence which is punishable by fine not exceeding R40 000 or imprisonment for a period not exceeding 12 months, or both such fine. Kind regards, Adv Busisiswe Mkhwebane, Public Protector. 5 June 2019, page 66”. That was then the sum total of what was presented to – and I think the one to Mr Gordhan was 71 pages, so we are not going to go there, Chair, after this. But the point, really, of us going through this is to show the exact, as I say, I am not being funny about this, I have never seen a letter this long and with so much technical detail. So can you maybe take the Commission, the Inquiry into what is involved in the compilation of something like this with all this detail, and this act and that act, and this judge and that judge, and this list of equipment and what have you, list of names, in order to give the person an opportunity to defend themselves from someone like you because the letter originates from you? The Public Protector approves or disapproves changes here and there. We all know the story by now. But what does it take the kind of blood and sweat that it takes for you to put something like this together?

Ms Mvuyana: Firstly, the most important part before you start even drafting is to analyse the documents that you have received, that are before you, to see what they say, if they are relevant, you know how and when to put them in, and if they are irrelevant, you know where they go. So each issue then is separated as in the report. The allegation is separated, all the evidence relating to each allegation has to be in that allegation. And then you draft, you summarise what is on paper and put it to make it read well to whoever will be the reader. So that will include summarising your evidence, noting the important parts of the evidence which deserve to be in the report. Once you go through that, for each issue, your writing style will be different. Others prefer to first incorporate the evidence in all the issues and then only go into the legislation. My style is a bit different, because I like to first analyse the legislation for each issue, so that it will be easier to remember the evidence whilst applying it to the law, so that you can come to a conclusion. That will then happen for each and every issue until we get to the findings. You then make findings based on the law and the facts. And now we put in the remedial action, but at this point in time, we had not put in the remedial action in the Section 7(9)s. Once you are done with your draft, and you check and you check and double check again, you then submit it to your Chief Investigator. Your Chief Investigator will make inputs, make changes, if necessary, include information that he or she also remembers, send it back to you for incorporation. That can happen a couple of times, sometimes five, sometimes 10.

Adv Mpofu: No ways.

Ms Mvuyana: Depending on what is missing, if certain information is identified as missing, you would then go back to how do you obtain that information. So if it is necessary to go back to the department or a particular individual, you will then write to them again or request a meeting et cetera. Once that is done, it will go through the seven stages that you talked about, or five stages. And each person will then… The five stages will be your EMs, your COO until it finally reaches the PP. And before reaching the PP, it is back and forth with incorporating inputs of comments made, inputs made until the final draft is then approved that it is ready. Usually, in this case, it was the Chief Investigator. And then it was submitted to the PP. PP also reads it, goes through it and makes inputs, sends it back on things that she wants incorporated, or we will have a meeting to discuss the Section 7(9) and maybe if she does not understand something, why a certain conclusion was reached, et cetera. So in all these instances, everyone applies their mind until the final product is done, and it is signed and sent. Once it is sent, we await responses to the Section 7(9). Once we receive the responses, we go through the responses and really go through the responses to make sure that the arguments that we have made or put forward or the conclusions that we have come to or potentially might come to are addressed by the respondent. Once that is done, we then incorporate the responses in line with the particular allegation. So we will not just dump your response in an allegation that is not relevant to it. And in this instance, there were a lot of, like you were saying, the allegations of bias and accusations of non-application of the 7(9). So you find places to put that in and then you address it, if necessary. Responses that we would consider rude, maybe saying something not nice about the Public Protector, we will note because if it does not relate specifically to the allegations, we cannot be having a debate with you on the Section 7(9) or on the report. So once those are incorporated, and all of those are considered a final report is then produced. If your response negated our potential findings and then once we go through your evidence, we do make a finding, like for example, you stated that you then provided the slip for the water bottle, we cannot then make an adverse finding against you if you have provided us with evidence that shows that the allegation is unproved. It will be removed from the final report. If the evidence is not submitted, we proceed with the adverse findings. And then the final report will then go through let us just assume we are making the adverse findings with or without the actual removed allegation, if you have submitted the evidence. In that instance, the roller coaster of approval starts again, so it is still checked and rechecked and resent and checked again and resent until it reaches the Public Protector who does the same: makes inputs, discusses. And then once we are happy that okay, the product is ready, it is then issued.

Adv Mpofu: Yes.

Ms Mvuyana: That is the end of the investigation.

Adv Mpofu: Thank you. That sounds like a, I do not know what, a military operation. But, you know, we talk so much about all these mechanical things and I think we forget to be human. So let me ask you this, at a human level, how does it feel for you, having put yourself through all this, what you have described now in detail, having had a letter like this, going up and down, being corrected, re-corrected, and all sorts of things, at the pain of trying to be fair to the to the people who might have adverse findings, and then to get people who probably would not even be able to put a five- page letter off this kind of complexity? Let me maybe just say how does it feel when somebody like Ms Mazzone, MP, then reduces all of this to you were just going through the motions because you had a vendetta against Mr Gordhan? So all of this was just play play and pretend.

Ms Mvuyana: It is offensive, as I stated. Even the allegation that I was involved in a conspiracy or vendetta against a person I do not know personally, and really my integrity as an investigator for all these years. How many investigations have I conducted and what made him that special? So it is offensive and not appreciated. But like you said, they do not work at the Public Protector, so they will never know what it is.

Adv Mpofu: Yes. Thank you for sharing that. And just the… You know more than all of us sitting here how much the Public Protector, herself now, puts into something like this. You have described the drafts going to her, coming back going to her, coming back, having discussions and what have you. In your experience, would what you observed in this particular case and how much work was done, knowing that particularly EMEA investigations have to invariably have to be done under pressure… what do you say about the suggestion that she did not do any of this or she did not do genuinely, and she was just out to lynch an innocent Mr Gordhan, Mr Pillay, Mr Magashula?

Ms Mvuyana: I would say from my experience and what I was exposed to during the time I worked with her during this investigation, I never had any doubt that, there were media reports, of course, that came out at alleging Mr Gordhan would say that there is someone on a witch-hunt for him, et cetera. But I never experienced that kind of behaviour from her. She did not, at any point, try to influence us to say that we must make a finding against Mr Gordhan, and we must ignore certain evidence so that we can make a finding. Yeah, it is sad.

Adv Mpofu: It is very sad. Thank you. And on that sad note, then, Mr Gordhan, actually we said earlier he is the source of why we are here, although he is being shielded from coming to substantiate it here. But we have to defend ourselves against his non-appearance, or not having the conviction and the courage to come here and face the Committee to substantiate this. But among the things that he claimed, if you can go back, Tshepo, to Mr Gordhan’s response to the Section 7(9), which you will find at 5931, I think, of Bundle F, item 190. This is really what brings us here and obviously he then expanded on this in his court papers and then the judges found in his favour: hence we are. Go to the last page, 5952. After giving the explanation which is about 21 pages. At page 23, this is the conclusion that Mr Gordhan then reaches, which brings us here, as I say. “The Public Protector’s proposed findings against me substantiating complaints laid by my political opponents, are unfounded and are explicable only by bias or ulterior motive. I call on her to reconsider the true facts and the applicable law and find that I am innocent of any wrongdoing.” Let us put aside the fact that she he is not prepared to come here to do so. But what do you have to say that all the work that you had put in can be explicable only by bias or ulterior motive?

Ms Mvuyana: Like I previously said, Mr Mpofu, there were no elements of bias ulterior motive that I saw or received from the Public Protector. That is why I always question a statement like this. Okay, does he have proof that we had ulterior motives? An email saying that I wanted to persecute him for something?

Adv Mpofu: No.

Ms Mvuyana: No, I do not agree with the statement. My work was not biased or had any ulterior motives to Mr Gordhan.

Adv Mpofu: Yes. And paragraph 51 of the same document, going backwards, Tshepo. He says “The establishment of the unit was perfectly lawful.” You obviously have said that you do not agree with that, correct?

Ms Mvuyana: That is correct.

Adv Mpofu: And then here is the important part “the Public Protector’s proposed findings to the contrary, are wholly unjustified, erroneous, and intended to serve a political purpose or other ulterior motive.” What do you have to say about that? And that is really the gist of the charges 11.3 and 11.4, that for political purposes, she chose her favourites, Magashule and Zwane for being spared of any adverse finding and targeted her alleged opponents, Ramaphosa and Gordhan, to serve a political or ulterior purpose. Is there any basis for those charges or this accusation?

Ms Mvuyana: On our side, or on my side or the PP’s side of the court, if I would say so, they would not be any basis for this. Unfortunately, as the Public Protector South Africa, we do not choose who walks into our doors and complains. So I think he said the statement on the basis that Mr Shivambu belongs to the EFF and is a political opponent of the ANC. However, even with that knowledge, we cannot stop an investigation because the complainant is from an opposition party.

Adv Mpofu: Yes.

Ms Mvuyana: There was no political purpose. There was no political motive to discredit him. It was just about a truth-finding mission of complaints that we had received.

Adv Mpofu: Yes. Let us suppose for a minute that Mr Shivambu had a political motive. That is not the issue. The issue is whether you and the Public Protector and the people in your team, then as it were, embraced that political motive and did anything unprofessional, dishonest or biassed in order to pursue it.

Ms Mvuyana: No, none of those happened and we did not embrace any political issues.

Adv Mpofu: Yes, and in any event, if this is to be taken to its logical conclusion, it would mean we must repeal EMEA: we must not have such an act because the chances are that it says the complainant must always be a Member of Parliament. And at least with the current legal system or political system in South Africa, those people who are Members of Parliament are always members of political parties, is it not?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: and the parliament, in its wisdom,  knowing that all members of parliament are members of political parties allowed that the Public Protector must act in terms of an EMEA investigation only on the basis of a complaint by such a political person, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And we have established that all EMEA investigations, including the current Phala Phala one,  emanate from a member of a political party, correct?

Ms Mvuyana: As far as I am aware, yes. Unfortunately I am not involved in that investigation and never even seen the complaint form, so I am not sure if… But media statements have stated that.

Adv Mpofu: Yes. No, but even if you have never seen it, if I tell you that it is an EMEA investigation then automatically it means it would have emanated from a member of a political party. You might not know who that is, but it would have to be a member of a political party, correct?

Ms Mvuyana: Yes, that is true.

Adv Mpofu: And by the way, EMEA investigations, such as that Phala Phala one, would have to take about 30 days, correct? In terms of the law, I suppose it will take 30 days.

Ms Mvuyana: Yes, in terms of the Act.

Adv Mpofu: Yes, and we know that. I think evidence has been given here that it is usually difficult to achieve that, depending on the complexity of the matter. So it might take three months, four months, depending on the complexity of the issues, correct?

Ms Mvuyana: Yes, that is correct.

Addv Mpofu: But if the issues are straightforward, and seemingly, and I know that they might look straightforward to the naked eye, can it take longer? Can it take like nine months, 12 months, two years? Or do you… maybe let me ask it like this. Is it the culture within the Public Protector that such investigations, particularly ones that are important to the public like this one, would have to be prioritised? And even if you miss the days, that it should not be by too far, correct?

Ms Mvuyana: Yes, especially with EMEA investigations.

Adv Mpofu: Yes. Alright. Now, while we are on this document, Chair, sorry, just for the sake of completion, I found something that I had been looking for earlier – paragraph 26. Now this is Mr Gordhan under oath in his own words, the Mr Gordhan that we are told is irrelevant to this Committee, actually saying the following… Let us go to paragraph 22, sorry. “During my tenure as Commissioner of SARS, I authorised the establishment of an Investigation Unit in about 2007. The unit did not initially have a name, but it was later successively known as the Special Projects unit, the National Research Group, and high risk Investigation Unit. I shall call it the unit.” So on Mr Gordhan;s own version, he agrees that he established the unit, correct?

Ms Mvuyana: Yes.

Adv Mpofu: So the only issue then would be the issues that we have already discussed as to whether that was knowingly illegal, as indicated in the letter to Mr Manuel and all that. I will not go back to that. I just wanted to establish the fact that he says he, he established it himself, correct?

Ms Mvuyana: Yes, a unit.

Adv Mpofu: Yes… No, the Unit, with all the different names; special projects unit, the NRG and High-Risk Investigation Unit, which he says “I shall call it the unit”. Okay?

Ms Mvuyana: Yes.

Adv Mpofu: And then paragraph 26, he says, and this is the important part – this is the issue I was talking about. You know they say in law or at least in logic that a small word like ‘the’ or ‘a’ the difference between that can make a difference to all of these piles and piles of paper. This is what he says, and you must look at the sentence where he says “the Unit”. Listen carefully. Mr Gordhan says, under oath, “it became apparent to SARS”, this is after the Trevor Manuel…

Ms Mvuyana: Memo?

Adv Mpofu: Memo, yes. “It became apparent to SARS that to enhance its capacity to gather information or investigate organised crime”, right, “It”, that is SARS, “decided in order by February 2007, to set up the unit to penetrate and intercept the activities of tax and customs related crime syndicates.” So he admits that it was necessary to intercept among other things, which is what we discussed earlier, correct?

Ms Mvuyana: Correct.

Adv Mpofu: And which we know would require the approval of a judge in South Africa at least, correct?

Ms Mvuyana: Well we would need to check if the interception of communication Act was in effect in 2007.

Adv Mpofu: In existence at that… Yes, I think it was, in 2002. But assume for now that it was in existence. That would then require the permission of a judge, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Right. And then he says “its initial intention”, that is SARS, “was to employ and train the members of the unit, and then to transfer them to National Intelligence Agency, where they would continue to function as a unit dedicated to SARS.” So that is along the lines of his memorandum to Mr Manuel, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Which said that the reasons for him wanting to do that was that they did not have the legal power to do so, correct?

Ms Mvuyana: That is correct.

Adv Mpofu: Then he says “The NIA, however, lost appetite for the project”, which was understandable – so NIA was no longer playing ball, okay? Here is the important part “SARS accordingly decided to retain the Unit within its enforcement division”. So he is still talking about the same unit, which was illegal, which they were going to transfer to NIA, to make it legal and NIA lost appetite, and then SARS accordingly decided to retain the Unit within its enforcement decision. This is Mr Gordhan in his own words, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And this seems to accord with what you said earlier, that the Unit never changed its character. It was simply no longer going to be transferred to SARS, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then, here is another giveaway, he says that one of the reasons why they wanted approval from the Minister of Finance was because I suppose let us call it PFMA compliance, because the Unit would have involved the transfer of funds from SARS to NIA?

Ms Mvuyana: Yes.

Adv Mpofu: Yes, so he then explains that that transfer of funds was no longer going to happen. Hence, they no longer needed this approval, but he says nothing about the illegality; the fact that it was still illegal for a different purpose. Let us go to paragraph 32. It says “This plan required the approval of the Minister of Finance only because it would involve a transfer of funds from SARS to the NIA.” Now, you would remember, if you do not know this do not worry because we will canvas it with the PP, at some stage there was approval needed from the Minister of Finance on the hand and the Minister of Intelligence. Are you aware of that?

Ms Mvuyana: Yes.

Adv Mpofu: Yes. So let us accept what Mr Gordhan is saying here for a minute and say that the approval, as far as the transfer of funds, will be acquired from the Minister of Finance, but the approval to cure the illegality will be acquired from the Minister of Intelligence?

Ms Mvuyana: Yes, that is true.

Adv Mpofu: Yes. Now, he did not obtain, well he obtained the approval for the finance, but he did not obtain the approval from the Minister of Intelligence to cure the illegality, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Yes. And yet, this is what he says at paragraph 32 “As explained above, the NIA however lost appetite for the project”, so he never received the approval from NIA, “and decided not to proceed with it”, that is common cause. And then he says “SARS consequently decided to keep the Unit in SARS. This change of plan did not require fresh Ministerial concern because it no longer involved the transfer of funds from SARS to the NIA.” Now, that is what I call an exercise in obfuscation. So assume he is right that the financial transfers were no longer going to happen. But he is also conceding that the NIA approval to cure the illegality was never obtained, correct?

Ms Mvuyana: Yes, but he puts it now as a loss of interest.

Adv Mpofu: Yes. Well, whatever: loss of interest, immigration, whatever the reason was, but the point is that he did not get the approval to cure the illegality, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then he says, at 34 and this is the punch line, “I accordingly participated in the approval of the project for the establishment of the Unit. I was, however, not involved in the practicalities of the establishment of the Unit and never played any part in the conduct and management of its operations.” Again, let us be fair to Mr Gordhan, even if he does not want to come here and face the music, that he did not participate in the actual bugging of people and surveillance and so on. You never found him guilty of that, did you?

Ms Mvuyana: No.

Adv Mpofu: But what you did find him responsible for, is what he admits here, which he accordingly participated in the approval of the project for the establishment of the Unit.

Ms Mvuyana: Yes.

Adv Mpofu: Thank you. And then at 35, he says, “I believed that the Unit was lawfully established to perform very important functions for and on behalf of SARS. As far as I was aware, it lawfully performed its functions. If any of its members engaged in improper and unlawful activities, then they did so without my knowledge or consent.” Again, let us be fair to Mr Gordhan, even though he does not want to come here. Let us assume the unlawful activities happened without his knowledge. That is not what you are accusing him of. It was the establishment of the unit, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And in any event in our law, does it matter what he believed or did not believe? He says, ‘I believed that the Unit was lawfully established to perform very important functions for and on behalf of SARS.’ Is the test of whether there is a breach of Statute or the PFMA objective or subjective? In other words, if I breach the PFMA thinking that I did not breach it, does that make the breach any lesser?

Ms Mvuyana: No.

Adv Mpofu: And the  Public Protector agrees, and the KPMG answer, and Sikhakhane, and the Inspector General and Brassy and Trengrove and Kroen and anybody even with half a brain would agree – even if he is not a lawyer – that the test for breaches of PFMA or objective. In other words, if an official buys 20 buses when he is only entitled to buy 10 buses, whether he believed or he could not read properly, does not matter. Even if he genuinely believed he was entitled thereto, correct?

Ms Mvuyana: That is correct.

Adv Mpofu: So on this version of Mr Gordhan, by himself, under oath, signed in front of some Commissioner of Oaths, known as Mr Peter Jonathan Isaacs, or whatever, in Cape Town on the 20 June, 2019. On this version of his, would the findings of maladministration in respect of the establishment of the Unit have been established?

Ms Mvuyana: Yes. He is basically admitting…

Adv Mpofu: Sorry, there is interference from the Rogue Unit. Can you start again? You were saying that he is basically…?



Ms Mvuyana: Admitting that he was involved in the establishment of the Unit. If you can read it carefully, it says that he was involved in the establishment and he knew it would have been an Intelligence Unit because that was written in the memo of 2007.

Adv Mpofu: And the fact that Ms Mazzone and the rest of them say that is proof of you and the Public Protector’s vendetta against Mr Gordhan can stand any scrutiny in the light of what Mr Gordhan says now. Forget about what the Public Protector says, forget about what anyone else says, of what Mr Gordhan says in his own affidavit.

Ms Mvuyana: Can you please repeat the question?

Adv Mpofu: Is there, sorry, therefore based on what Mr Gordhan says in his own affidavit in response to your detailed Section 7(9) letter, would there have been any room for anyone to say that faced with this response, which really basically amounts to a confession, that you should have been changed your provisional findings, and now find all of a sudden that Mr Gordhan was no longer responsible for the unlawful establishment of the unit?

Ms Mvuyana: No, I do not believe so.

Adv Mpofu: Yes. In other words, what I am really asking you is we have gone through the journey of what a Section 7(9) is meant to do, the opportunity it gives a person. And by the way, is it correct that when you sent the Section 7(9) Mr Gordhan asked for an extension? I would too, by the way, faced with such a complex letter. But then he asked for more time for him to give a response, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Did the Public Protector grant him such an extension?

Ms Mvuyana: Yes, even in his first submission he was granted an extension. 

Adv Mpofu: Yes. And once he was satisfied that he had enough time to deal with all the accusations, what he gave you is what amounted to a confession of illegality, correct?

Ms Mvuyana: That is correct.

Adv Mpofu: Thank you. Chair, I am not by any means finished.

Chairperson: Fortunately your time is finished. And that is the difference in the way we operate.

Adv Mpofu: I know. I know, Chair.

Chairperson: I would like you to wrap up, please.

Adv Mpofu: I am asking for time, yes. Chair, well, okay. I am going to wrap up. Chair. I promise. I just have maybe three or four topics. I will do them as soon as possible. What I wanted to get an indication from you was whether… I think I need about an hour. Whether you want to give it to me now or tomorrow morning.

Chairperson: We will do it now.

Adv Mpofu: Okay, Chair. I will not use it all up, I promise. If I can? Thank you. Alright, let us go back to the famous judgment that brought us here. You will find at page 4118 of that bundle of judgments, Tshepo. I cannot remember what it is now. It is paragraph 290 of the judgment.

Adv Bawa: Adv Mpofu, which judgment are you wanting to go to?

Adv Mpofu: The one and only so-called Rogue Unit Judgment. Yes, I think it is Bundle C. It is Bundle C, 3, judgment 18, something like that – that is how Adv Bawa identified earlier. We just dealt with it now about the matric certificate.

Adv Bawa: Adv Mpofu, which paragraph?

Adv Mpofu: Oh, sorry, I did not see that it was up. Yeah, it is that paragraph: 290. Thank you, Chair. This paragraph really summarises why we are here and why the judges found it necessary to make the conclusion of bias and dishonesty. So they say, correctly, if you have findings of bias and dishonesty, assuming that those are justified, that this then justified an inference of bias. So they say in paragraph 290 “We have already alluded throughout the judgment why we say that the Public Protector has not only failed in the exercise of her duties but displayed bias towards Minister Gordhan and Mr Pillay. So we conclude that taking into account the following conclusion”, rather, “a conclusion of bias is warranted.” Then they list the things, some of which you and I have discussed and shown to have no foundation, either in fact or in law. The first one is something that you and I have not discussed and since we do not have time I will only spend five minutes on it. They say that “The investigation fell outside the jurisdiction of the Public Protector as it relates to events dating back to 2010. No exceptional circumstances have been presented by the Public Protector justifying the investigation after an extraordinary lapse of time. Also, despite that fact, the previous incumbent has already in 2014, received a complaint about alleged unlawful establishment of the Unit but elected not to investigate the complaint. The Public Protector proceeded with the investigation.” Firstly, is this factually true? Okay, no, let us not start with the facts. Let us start with the law. In your experience, and hopefully Adv Madonsela will assist us in this as well. In your experience, was there a blanket prohibition against doing investigations when the matter was more than three years old?

Ms Mvuyana: No.

Adv Mpofu: And whose decision was it, or how did it work that such a matter would be considered?

Ms Mvuyana: It is based… The determination of the jurisdiction is based on the Public Protector applying her discretion. At the time when this interview allocation started and in some instances that delegation or the discretion is delegated to the intake and assessment unit, who then makes a determination of whether the matter falls within or without the two year rule, as we call it. So if they determine that it is two years and older, then they will then take a decision of whether or not to proceed with the investigation. So, at the time, the decision to accept the complaint, because if the decision, the jurisdiction is applied strictly by intake and assessment, the complaint would not have been accepted. But now, it was accepted basically, on the basis that we have never not investigated two year old matters, unless it is a pre-1994 matter, well let me say 1995. But if the Public Protector or the unit that I mentioned is satisfied that there is merit to the complaint, the possibility of investigating finding the information still exists, the Public Protector will continue to investigate. So jurisdiction is not taken away because the matter is older than two years. From our understanding, though, when we started the investigation, the courts found otherwise, of course.

Adv Mpofu: Thank you. Yes, subsequently. In fact, to be fair to the courts, they said, I think in the Pillay judgment, at the beginning of that judgment, the court says that it is the first time that Section 6(9) of the Public Protector Act, which is the one that you have just paraphrased, was being considered by the courts. But obviously, this was, in fact, that is referred to in this judgment as well, because those two judgments came around the same time. Chair, I will find the reference. But anyway, I know, because I argued that point in both matters. But long and short of it is that yes, you are right. Until that point It had never been considered by the courts. It was considered in those two cases and then in the GEMS (Government Employees Medical Scheme) Case as well. Whether the two-year rule, as the Court interpreted it, rightly or wrongly, was like a prescription kind of thing, which says, two years, otherwise you cannot investigate. Or whether, which is what the Public Protector argued, it was, actually, because it is found in Section 6, which gives the wide powers of the Public Protector, it  was a permissive Section, which says if the Public Protector thinks that a matter is important enough, whether it is 200 years-old and the evidence is still there, and she feels that it is important, then in her discretion, it can be…

Ms Mvuyana: Investigated?

Adv Mpofu: Investigated, yes.

Ms Mvuyana: Yes, that is how…

Adv Mpofu: It had been approached until that point? Yeah. So if that is how it had been approached up to that point by all the Public Protectors before, could that then be an indication of bias?

Ms Mvuyana: I would not know about how the other Public Protectors applied or interpreted 6(9) but under the two I have worked under, no, it would not.

Adv Mpofu: Okay, who are those two?

Ms Mvuyana: Adv Busisiwe Mkhwebane, Adv Thuli Madonsela.

Adv Mpofu: Right. Thank you. And anyway, the proof of that fact is even in this paragraph, it says “In 2014, the former Public Protector, Madonsela'' because that was her time, “received a complaint and elected not to investigate the complaint about the unit but this Public Protector nonetheless proceeded with the investigation.” Firstly, was that factually true? Was the complaint, the earlier complaint about the establishment of the Unit, to your knowledge?

Ms Mvuyana: I believe it was one of the allegations, but I will have to go back and check the closing reports. But what is elected not to investigate. She might have elected not to investigate and stated from the report that I saw when I was watching Mr Mataboge,  that the reasoning for not investigating that portion of the investigation was due to the fact that the IGI and the NPA had already either begun their investigations or were busy with the investigations.

Adv Mpofu: Okay, yes. No, that is fine. Mr Mataboge or Adv Madonsela hopefully will clarify that. But the point is that even by 2014, the establishment of the unit was already more than two years old, correct?

Ms Mvuyana: Yes, that is true.

Adv Mpofu: Okay, the next one. Then they say that the manner in which the Public Protector interacted with Mr Gordhan during the investigation… Not only did the Public Protector elect not engage with Minister Gordhan’s attorneys on record. The Section 7(9) Notice was publicly posted on YouTube before giving any notice to him – his attorneys similarly. The report was presented to the media without any prior notice to Minister Gordhan or his legal representatives”,, all of which will be dealt with by the Public Protector in her evidence. But for your part, you have already answered this, that you, and the Public Protector, put blood and sweat in ensuring that the Section 7(9) was detailed as humanly possible and fair as possible, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: Actually, is this factually correct that the Public Protector publishes Section 7(9) Notice on YouTube or anywhere?

Ms Mvuyana: None that I know of. No, not that I know of.

Adv Mpofu: Remember when I read it out to you, the last paragraph says that even the person receiving the 7(9) is not allowed to share the contents thereof with any person, correct?

Ms Mvuyana: Yes, it is confidential.

Adv Mpofu: Let alone the Public protector, who then issues that warning and then she goes and puts it on YouTube. Anyway, and then on number 3 they say ”the reliance on the discredited  KPMG report despite having been disavowed and the SIkhakhane Report, despite it having been widely discredited.” Well we have gone through this. There is no substance in the Sikhakhane being widely discredited. And the KPMG report we did not go through it in detail but I will deal with it, maybe, with Mr Mataboge. You can take it from me that it was not totally disavowed but parts of it. KPMG basically said that they relied on counsel's advice without having verified that advice. But you do not have to worry about this. But the Sikhakhane Report being widely discredited. Do you have any knowledge of that?

Ms Mvuyana: No, I do not.

Adv Mpofu: And then it says “she also failed to engage with the findings made in the Nugent report.” Is that possibly true?

Ms Mvuyana: No, that is incorrect.

Adv Mpofu: We demonstrated earlier that the Public Protector quoted the Nugent Report in the letter to Mr Gordhan. She quoted it in the letter to Mr Pillay. And I am sure in the letter to SARS. And that she even quoted it in the final Rogue Unit Report, correct?

Ms Mvuyana: That is correct.

Adv Mpofu: And then number 4, it says “The blatant dishonesty of the Public Protector with regard to the OIGI report and her insistence on ordering the Minister of State Security to implement, in totality, a report that she has, according to the report never seen.” Well, we know that this one is an absurdity, because she never claimed in the report that you never saw the OIGI Report. We dealt with that before lunchtime, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And then number 5, it says “The Public Protector pandering of the Rogue unit narrative and her public reference to the unit as the ‘rogue unit’, and as a monster and her stated desire to defeat the monster displays profound bias towards Minister Gordhan and Mr Pilay.” Well, firstly, I think you and I have established that when the term so-called rogue unit was coined in the KPMG and Sikhakhane Reports, the Public Protector was busy working in China and not involved in any of these matters, correct?

Ms Mvuyana: Yes, the term was not created by her.

Adv Mpofu: Yes. And in any event, this is also factually not true. You can take it from me and my learned friend, Ms Bawa, will object if I am incorrect. In the article that was referred to or rather the speech, which was read here, during Mr van Loggerenberg’s evidence, actually, the Public Protector referred to this thing as the so-called Rogue Unit in that speech. And that term ‘so-called Rogue Unit’ was it also her invention?

Ms Mvuyana: No, not that I know of.

Adv Mpofu: Right. And her evidence will be that the monster that needs to be defeated was the monster of corruption, but you do not have to comment on that, she will deal with it herself. Then number six says “the Public Protector’s complete disregard of the Sunday Times apology and the Kroon apology.” We have gone through that. The so-called Kroon apology was for Judge Kroon himself, not the panel, correct?

Ms Mvuyana: Yes, that is correct.

Adv Mpofu: And the Sunday Times apology… well, what can I say? Alright. And the Public Protector was now  supposed to alter the part because the Sunday Times has decided to retract something. Is that how you work?

Ms Mvuyana: No, no.

Adv Mpofu: Yeah. And then it says “The Public Protector’s scurrilous allegations that Minister Gordhan deliberately mislead Parliament”, well, this is wrong dramatically, they probably wanted to say ‘misled’. But forget the grammar. You know about that allegation but we have not gone through it: that is the allegation about the meeting with the Guptas and so on.

Ms Mvuyana: Yes, I know about the allegation.

Adv Mpofu: And in your assessment, and I will not go into detail because of time, because that allegation is also substantiated that Mr Gordhan let us say, was not forthcoming about his meeting with the Gupta brothers?

Ms Mvuyana: Yes, it was substantiated.

Adv Mpofu: Okay. “The Public Protector’s unwarranted and slanderous attack on Potteril, J.” She will deal with that. This was the whole confusion about whether it was the 2000 code or the 2007 code. Do not worry about that. Then “The Public Protector’s relentless pandering of untruths of Mr Pillay’s qualification.” We have dealt with this one. Did the Public Protector pander untruths of Mr Pillay’s qualification, to your knowledge.

Ms Mvuyana: No, not to my knowledge.

Adv Mpofu: Right. So that is why we are here – because of these findings, none of which you have found to be congruent with the actual situation, to put it nicely, except for the one that I said you must not… Let us say 8 of the 9, in your experience, were not a correct basis of a finding of bias, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Then there was a whole thing, we do not have time to deal with it in detail. I might also deal with it with Mr Mataboge. There is a suggestion that the Public Protector or you or Mr Mataboge or your team ignored… Okay? I think that we are being intercepted.

Chairperson: Apologies, somebody was switching on. Please continue.

Adv Mpofu: Okay, Chairperson. Or those people properly employed by Parliament?

Chairperson: It is not officials. It was one of the Members, I think by mistake.

Adv Mpofu: Oh, I see. Okay. We are worried these days. Now…

Chairperson: The proper explanation is that there is someone who pressed that and was watching TV at the same time.

Adv Mpofu: Oh, then there was an echo. Thank you, Chair. It is better than what we saw last week on the screen. But this is what the court says at 293 “The Public Protector’s bias against Mr Gordhan and Mr Pillay is manifest, having regard to the manner in which the Public Protector simply dismissed out of hand, completely ignored and irrationally discarded hard facts and clear evidence. It is clear that she approached her investigation with a preconceived notion, determined to make an adverse finding against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative.” So, you see now here this is a mirror of charge number 11.3 and 11.4. So it means you Mr Mataboge, the Public Protector, discarded hard facts and clear evidence because you were chasing a preconceived and determined to make adverse findings against Mr Gordhan and Mr Pillay, thereby promoting the false Rogue Unit narrative.” That is what the judges said. Is there any substance to this?

Ms Mvuyana: No, which discarded hard evidence? I do not know. Did you remove the paragraph?

Adv Mpofu: Oh, sorry. It goes to the next page. Okay, I will read it again because it is quite a serious accusation. “It is clear that she” and you and others… Oh, no, let us start with the evidence. “Simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence.” I suppose to the contrary. Anything like that?

Ms Mvuyana: No.

Adv Mpofu: Anyway, and so it goes. Then I will move because of time, to another topic. But maybe before I do that, let me just quickly deal with… There is another quick accusation, for lack of a better word, that is bandied about against the Public Protector, but I will not spend time on that because I think even witnesses that were clearly hostile and biased against her, conceded the point but just for the sake of completion. The Public Protector has been accused of all these horrific things, among other things, because of information that may or may not have found itself in Rule 53 Records. You remember that?

Ms Mvuyana: I think so… That accusation?

Adv Mpofu: Yes.

Ms Mvuyana: Yes.

Adv Mpofu: Now, can you explain why that accusation is baseless?

Ms Mvuyana: Towards the Public Protector?

Adv Mpofu: Yes.

Ms Mvuyana: The Public Protector is not involved in putting together the Rule 53. All documents and evidence is mostly with us except certain recordings, which in this case, was the SSA (State Security Agency) meetings and the Minister meetings – those we had to request directly from Ephraim, the PA. But documents that were in our possession were all compiled into the Rule 53.

Adv Mpofu: Yes. I think again, okay, for the sake of time, I will just read out paragraph 44 of your statement, at page 462 of the statement, Chair. You say “I can confirm that the Public Protector had nothing whatsoever to do with the compilation of the Rule 53 Records. That task is not even performed at the level of the executive manager. It is performed by the investigator, " that would be someone like you, “as the person on the ground with the assistance of the legal department or the external attorneys. Is that how it works at PPSA?

Ms Mvuyana: Yes, the investigator leading the investigation is the one who compiles the Rule 53.

Adv Mpofu: Yes. So if a particular Rule 53 Record, because of either you or the attorneys or the internal legal department did not contain one document or another, could that be a basis of impeaching the Public Protector?

Ms Mvuyana: No, I mean, as we have said, there is human error in every situation. Even I was assisted with the amount of documents that were there. So if it did happen, that a document was missing, it would not fall on the Public Protector. The external attorneys as well would have had to request it, et cetera, through the legal department. But the PP, no.

Adv Mpofu: Okay, let us take it to absurd lengths and say that either the external attorneys or the internal attorneys or yourself or somebody in that process, not by human error, but deliberately, one of them decided to take out a particular document. Could that be ascribed to the Public Protector if she does not participate in that process?

Ms Mvuyana: No, she does not even see the Rule 53 or confirm that it has been sent to the legal department, or check the documents that are submitted, et cetera. So, she would not have had access to it.

Adv Mpofu: Thank you. Alright. Okay. Now, you then say, at paragraph 42 and 41, and I think it is important to read this, you have said it in different ways today but I just want to put it in your words – I am starting at 41 – and you say “The Public Protector plays no active role during the investigation, as I have demonstrated above even the assessment of the merit of the complaint. I myself, a person who investigated and produced the report had no relationship or sympathies with Mr Shivambu, the complainant. He was treated like any other complainant. The Public Protector did not interfere with the investigation neither did she try to influence the outcome of the investigation, including the findings as contained in the report.” Now, please explain this, very briefly, it is another grey area. We know, as you have said repeatedly and other witnesses, that documents go up to the Public Protector and others come down. Sometimes she issues instructions, ‘do this, do that’ and gives deadlines in dashboard meetings or whatever. But apart from that supervisor role, does the Public Protector actually play any role in the actual investigation? In other words in evidence gathering, phoning SARS, and this one and that one?

Ms Mvuyana: No, she does not.

Adv Mpofu: Okay. And then you also say in situations were, again I will deal with this with Mr Mataboge because of a lack of time, the Public Protector receives and I am sure all Public Protector’s receive information on a daily basis from citizens, all sorts of whistleblowers and so on. What does she normally do with that information?

Ms Mvuyana: In this case or in general?

Adv Mpofu: In general and in this case.

Ms Mvuyana: Okay, in this case, information was filtered through Mr Mataboge. In general, it is sent to Ephraim, who then ascertains who is responsible for that particular matter. Then the information is handed over to the relevant investigator of the matter.

Adv Mpofu: Yes, thank you. Well, there was even a suggestion made here last week that there was a document which was raised, I think it is at page 5978, where it is said that somebody wrote that Mr Gordhan must be stopped, with all sorts of political reasons that was so: white monopoly capital and what have you. And the Public Protector… Oh, yeah. Thank God I remembered the page: 5978. Okay, just go to the top. “Pravin Gordhan is a threat to democracy and must be stopped before he causes more harm under the disguise of cleaning up” and so on and so on. Now, the evidence of the Public Protector will be that that is something that was sent to her by a whistleblower or by whoever sent it, but someone who did not want to be identified. And as you say, then she would transmit it to the team. Is that usual procedure?

Ms Mvuyana: Yeah, it depends what the email was about, besides the threat to democracy. I think there are various matters that are being discussed in this complaint that were being investigated at the time. So the same procedure goes to the relevant Chief Investigator or through Ephraim and then either through the assistance of intake and assessment will find out which matters belong to which investigator. And then the information is disbursed. But I have never seen this email, so I will not necessarily know what happened to the information contained in it.

Adv Mpofu: Okay, let us go to the beginning of that email, Tshepo. The email is dated 8 November, 2018. It is to Rodney and it is from the Public Protector. And it says “some information for investigation BB&D”. What was BB&D?

Ms Mvuyana: It is an investigation against SARS relating to the alleged irregular appointment of a company called Budge, Barone and Dominick, so the abbreviation is BB&D.

Adv Mpofu: Well, it just starts in 2001. There is no greeting and there is no reference to any person. It just says “In 2001 the former Minister, Jeff Hadebe wrote a scathing letter to Coleman Andrews”, what have you. In your experience, is that how the Public Protector would write her emails without any preface?

Ms Mvuyana: No. She likes summarising and this is very detailed, when she is passing on information directly to you. This is like someone telling the story.

Adv Mpofu: Well, because we do not have time, I will not go through the details. It refers to something called the ‘Nugget Commission’. Yeah, there. “At the Nugget Commission.”

Ms Mvuyana: Nugent, I think.

Adv Mpofu: Well, it is Nugget according to this person. Did the Public Protector not know that the Commission was by Nugent and not Judge Nugget, whoever that is.

Ms Mvuyana: I believe she would have known.

Adv Mpofu: Anyway, it actually raves and raves. The difficulty with this, is that we actually have another email, Chair, with your permission, I will refer to in re-examination, which is similar. The only difference is that one person is identified. And in fact, the Public Protector’s evidence is going to be that in that one, she simply forgot to remove the person's name, because she… And so when we play it, we will…

 Chairperson: Is that any email we have seen already or received? Or you will only introduce it then?

Adv Mpofu: You have received it. No, no. It is in the package, Chair. I could display it now but then I will be disclosing the person's name. But in fact, it is my fault. What I had intended to do was to redact the name and so that it can be done here. But we did not do that. But it is in the package, Chair. Anyway, I think the point is made for now. If there is no objection, then we will play or rather, display that other email. But the point, really, is that if you look at this, and you have already commented about the style and the misspelling of Judge Nugent and all those things, in your knowledge of communications with the Public Protector is this something that would be coming from her in your experience?

Ms Mvuyana: No, this comes from a complainant. We receive a lot of these. Once the complainants find out that we are investigating certain matters because I see Bain & Co was also one of the allegations that were made. And then okay, SAA (South African Airways)I do not know anything about. Mango, no. But the way the email is detailed, it sounds like it comes from a complainant.

Adv Mpofu: Yes.

Ms Mvuyana: It is detailed and no offence, all over the place.

Adv Mpofu: Thank you. Yes, I think there was another embarrassing confusion, which I think you can help us with. There was a suggestion, well, I do not know if it was persisted with, but there was an email that referred to “ACE” and it was suggested that it might be Ace Magashule. At the Public Protector, ACE and ACOO, what do those abbreviations stand for?

Ms Mvuyana: ACOO is Acting Chief Operating Officers. ACE would be Acting Chief Executive,

Adv Mpofu: Thank you.

Ms Mvuyana: So either an executive manager, if they have that.

Adv Mpofu: Okay, thank you. I think that was made clear. It just shows you the kinds of things we get subjected to here. And then the last point, before I run out of time, is the… Sorry, I just want to read this out as well. You say, at paragraph 42, “I am also not aware of any decision taken by the Public Protector or the chief investigator, which was not based on an honest opinion, and unsupported by the facts.” Do you stand by that?

Ms Mvuyana: Yes, I stand by that.

Adv Mpofu: And then you also say “I never got any impression of any undue influence by the Public Protector, neither did I get an impression that she was forcing the team towards a particular outcome.” Do you stand by that?

Ms Mvuyana: Yes, I do.

Adv Mpofu: Now, I am jumping… oh, let me not jump it. At paragraph 45 you say “It is therefore my testimony that allegations contained in charges 11.3 and or 11.4 of the chargesheet have no factual or evidential basis insofar as they relate to the so-called rogue unit, investigation and report, which was conducted honestly and impartially irrespective of whether one agrees or disagrees with the findings and or remedial action. Neither the Public Protector nor any of her subordinates involved in the matter, including me, acted improperly or maliciously, or even negligently in carrying out our respective official duties. The allegations to the contrary made by Mr Gordhan and the others were therefore unfounded.” Then you say “It is therefore clear that the factual bases”, plural, “of the judicial criticism, which led to these charges cannot survive a proper and impartial inquiry.” Do you stand by that? In other words, what we have gone through, the factual basis and not the legal basis. The factual basis and the other paragraph deals with whether you had malicious intent. Do you stand by the denial of those?

Ms Mvuyana: Yes, I do. If the impartial inquiry takes into evidence what I have presented today.

Adv Mpofu: Impartial inquiry means without… Fair Inquiry. Maybe let us put it like that.

Ms Mvuyana: Yes. 

Adv Mpofu: Okay, thank you. Now, the last issue. I have seven minutes here so we are going to go through this very quickly. The last section deals with what I called charge number 10 – that is the issues to do with human resources transgressions. You remember the harassment, victimisation, intimidation and so on?

Ms Mvuyana: Yes.

Adv Mpofu:  Since you are here, and you are an employee, we would like you to assist the Committee insofar as you have any experience in the industry? Maybe I should just read your evidence to save time and then you can comment, okay?

Ms Mvuyana: Okay.

Adv Mpofu: At paragraph 47, you say “to the extent that the Public Protector, the CEO and COO and some of the executive managers all demanded extra effort and/or performance from investigators to achieve the good outcomes which were achieved. This was not done in any manner, which was calculated to be undignified or disrespectful of any person.” Do you stand by that or do you want to explain?

Ms Mvuyana: No, I stand by that. I do not need to explain. I think this was… Yeah, there is no explanation needed. PP treated me, specifically, with respect all the time. She listened to opinions and gave input. So, yeah. I have never seen her disrespect someone or hear her disrespect someone, as well. So I can stand by that.

Adv Mpofu: And Mr Mataboge’s evidence was that when there were differences of opinions and debates, sometimes she would give in to the opinion of yourselves and other persons. Have you seen that?

Ms Mvuyana: Yes, I have.

Adv Mpofu: Thank you. Okay. And then the next one at 48, it says “I also wish to confirm categorically that the vast majority of the deadlines, which were being monitored in meetings such as dashboard, which I also attended, were self-imposed by the persons being monitored. In respect of every investigation, the very first set of deadlines are contained in an investigation plan in which all the deadlines are populated by the author of the plan and not imposed from outside or above. Okay, this is quite important. Briefly, what is an investigation plan?

Ms Mvuyana: It is a plan on how your investigation will proceed. It will set out the basic details of the file number, date received, whether or not it is a STEM matter or an EMEA matter, the allegations, then the steps that you are going to do in the investigation. So communicate with your complainant, I will just summarise. It can be a long list or it can be a short one depending on the complexity of the investigation. It will include who you need to write to, who you need to have meetings with, who you have to interview. It will have your risk factors as well, which basically…

Adv Mpofu: Okay, that is fine. That is enough for now. If I actually had time I would display one, but we do not. But for the purposes of the present, the gist…

Chairperson: Do you mind displaying that one?

Adv Mpofu: Oh, thank you, Chair. It is going to take us about an hour to do so. I am joking, Chair. Thank you.

Adv Bawa: Chair, whilst Adv Mpofu is doing that?

Chairperson: You can go.

Adv Mpofu: Oh, I thought you were helping me to find it.

Adv Bawa: I am endeavouring to do that. Are we talking about the investigative plan for…

Adv Mpofu: Any, any.

Adv Bawa: No, no. I am specifically asking for the SARS Unit Report because the witness would be able to talk to the very issue before.

Adv Mpofu: Yes, if you have got one that would be a bonus. I was looking for any.

Adv Bawa: But the witness has not asked for it. But we have not received it. That is why I am asking.

Adv Mpofu: No, I am looking for any investigation plan. In other words, the grid, even if it is plain and unpopulated. But anyway, if we find it we find it. Thank you, Chair. Let me not waste any time on that. If we do not, we will deal with it, with Mr Mataboge. The point really is not so much the content of the investigation plan. The point I am driving at is the one that comes from your paragraph 48. Namely, that an investigation plan is something that you the investigator drafts. In other words, you say I will do this by such and such a date. I will do this by such and such a date. And then you go to dashboard or whatever, to present your own deadlines. And if you have not met your own deadlines, then there might be a debate, but the point I want to make is that the original deadlines are self imposed. Is that correct?

Chairperson: Can you switch it on again?

Ms Mvuyana: Yes, self-imposed in line with the service standards.

Adv Mpofu: Oh, yes. You do not just put whatever you like. So if it is an EMEA investigation, obviously you will have tighter deadlines and so and so on.

Ms Mvuyana: If it is a GGI, it will also have different deadlines. If it is a service delivery matter it has different deadlines.

Adv Mpofu:Fair enough. So subject to that qualification that those deadlines would obviously have to conform with the… what do you call those standards?

Ms Mvuyana: SOPs (Standard Operating Procedures).

Adv Mpofu: Standard operating procedures. But other than that they are self-imposed, correct?

Ms Mvuyana: Yes, after the basics are done. So that would be with your 30 days, five days. Those are standard. Once those are completed, then you can try to figure out your own timeline in terms of how your investigation will proceed.

Adv Mpofu: Yes.

Ms Mvuyana: Like any other plan, though, it does change depending on the circumstances of each matter.

Adv Mpofu: Fair enough. Okay, thanks. I think that point is made. If we find the prototype plan, we will display it quickly. But then at 49 you say “even when new deadlines are set, following the failure to meet the original ones, these are most invariably done after discussion with the affected investigators or official and never done in a rude or demeaning manner. The aim in all cases is to assist the public.” Do you stand by that?

Ms Mvuyana: Yes. Like I said, I can only talk about my experience with the PP. She has never been rude when I have not met a deadline when the reasoning is understandable. We talk about a new deadline, what were the challenges and what is the way moving forward. So I have never experienced such. I have never been in the presence of doing this to another person as well.

Adv Mpofu: Yes. Okay. And then you say that this has been your honest and personal experience at the institution. “I am certainly not aware of any culture of prevalence of intimidation, harassment or victimisation in the organisation.” Do you stand by that?

Ms Mvuyana: Yes. The charge was very detailed though, so yes. I will not go into detail because some of the things I was not a part of and other colleagues that may have suffered, did not share such information with me.So I would not know where, for example, Mr Mahlangu, et cetera – all of that. But I was never intimidated, harassed or victimised.

Adv Mpofu: Thank you. And you met with the evidence leaders in July or August, and shared your information on mainly some of the issues. We might have dealt with them in more detail,  but some of the issues that were raised with you, you gave information to the Evidence Leaders, correct?

Ms Mvuyana: Yes, information that was in my possession.

Adv Mpofu: Yes. And is there anything that is fundamentally different that you said to them? Let us say then you said ‘No, we were then forced to have a vendetta against Mr Gordhan’, which is materially different except for the fact that it might be more detailed now… different from what you have told the Committee?

Ms Mvuyana: No. It is a long time ago. I will not recall the detailed conversation that we had, but I do not recall stating those vendettas and having bias and being impartial.

Adv Mpofu: Yes, okay. We are just rushing for time now, but I am taking advantage of the Chair’s limited generosity. I know it is not a lot of it. So it is bundle H, Item 31.2.2, is that form, Chair.

Chairperson: You have a funny way of taking advantage of the Chairperson’s generosity because it may end.

Adv Mpofu: I know. It is Bundle H, item 31.2.2. There is a saying, Chair, that says you must not look a gift horse in the mouth, just take it as it comes. Alright. That is, again, do not worry about the details and what is filled in. It is just to assist the Committee to see because we hear all these terms and we do not know. At least it is better when you have an image of what it is. Is that what an investigation plan looks like?

Ms Mvuyana: Yes.

Adv Mpofu: Okay, just take us through, not in detail, how if you got this thing in blank and now you are the investigator, how would you go about populating it? Take us through that in two minutes.

Ms Mvuyana: Insert the file number, insert the complainants name. If the complainant wants to remain anonymous, we include their name, but this document is internal, so even if the name is there, we just put it in brackets that ‘anonymous’. For the institution; the institution that has been complained against, the name of the investigator, the date received as it is written there. That is how you fill it in.

Adv Mpofu: Can you roll it down, Tshepo? I am more interested in the timeframes. So then, obviously on the left hand side you have actions or things to be done. And the gist of what we were discussing would be on the right hand side? That would be the deadlines or let us call it timeframes.

Ms Mvuyana: Yes.

Adv Mpofu: So in this case if you said ‘action to be taken; decide how to deal with the complaint; provide complainants/investigators details; finalise and investigation plan 5-11 July, 2018”. And then the next page.

Ms Mvuyana: This is against SASSA, right? Timeframes will be different. Each point will get a different date. You can do it like that or you can actually put each task with its own date.

Adv Mpofu: Alright. Okay, we get the idea. Just roll it further on, Tshepo. Right. Then the real big deadline is the last one, of course. They say “duration of the investigation”, in other words, you have that deadline and then you work backwards. “It is estimated that the investigation will be completed within a period of 24 months from September 2018 to October 2020.” So that is your timeframe now, the large one, not the specific one. And then it gets signed by, let us say… Are you saying this gets filled by the investigator?

Ms Mvuyana: Yes, seniors report to the Chief Investigators. So it will be…

Adv Mpofu: So you, as the investigator, would it then be signed by your senior investigator and the chief investigator?

Ms Mvuyana: Currently because now investigators do report to senior investigators. Previously, when this investigation started specifically with another colleague that was in GGI, as well as an investigator, we reported  directly to the chief investigator. We have never reported to a senior.

Adv Mpofu: Yeah. No, in the normal course of events, or let us say as it happens now; if it was done by an investigator, would it have to go through the normal steps? To the senior investigator and the chief investigator?

Ms Mvuyana: You must remember now I am in the province, so we operate differently in the province. In the province it is the investigator and the senior investigator that side.

Adv Mpofu: Okay, fine. Anyway, let us just say that your reporting line would just sign it.

Ms Mvuyana: Yes, your reporting line will.

Adv Mpofu:The point really is that then this is the blueprint from now on. As far as this investigation is concerned, you will then be judged according to that framework?

Ms Mvuyana: Yes.

Adv Mpofu: Okay. Chair? Yes, thank you very much. I do not want to abuse the privilege that I have been given by the Chair. But I do want to say that I wish we had more time because I think your evidence has been most valuable and informative, educational, and hopefully, it will assist the Committee to resolve some of the allegations that have been made. Thank you very much. I might ask you one or two things at the end, but that will be on a limited basis, just for clarification. Thank you. Thank you, Chairperson.

Chairperson: Thank you, Adv Mpofu. I did realise that you have placed a lot of emphasis on this witness and the issues you have put, so the extra time corresponds with that. You had asked for an extra hour, and I have exactly given you that extra hour, just to indicate the fairness of the process.

Adv Mpofu: Do not push it.

Chairperson: Thank you very much. Colleagues, we will pause there for today. Thank you. We will meet tomorrow, at 10. Ms Mvuyana, please go and take a break and rest. That was a long day. We are getting there. Thank you. See you tomorrow. The meeting is adjourned.