PP Inquiry day 57: Bianca Mvuyana

Meeting report

Chairperson: Thank you, Hon Members. I was just welcoming everybody, as we normally do every day. I’ve welcomed the Public Protector, the evidence leaders, all Members, members of the media, members of the public and our support staff. And I indicated in the beginning that we start at eight minutes past ten. As I opened the meeting after registering at ten, we were here already, but we were short a few members for our quorum. But we were also missing the witness, who was not in yet. And I am aware that there’s been a slight problem which is beyond her control, that maybe I’ll just allow her to explain that. Just switch on your mic, and welcome back Ms Mvuyana.

Ms Bianca Mvuyana: Good morning, Chair. Good morning to the quorum, evidence leaders...

Chairperson: Maybe today you’re going to use the other mic?

Ms Mvuyana: Yeah, I think so.

Chairperson: Today, you will switch on that other mic, because today you will be speaking to the person on your right. You’re not speaking to a person on your on your left today. Yesterday it was a person on the right, and you know people from the right. So today you’re speaking to somebody on your left, it’s certainly going to be a good day. So I don't want you to have a sore neck, doing this and that.

Ms Mvuyana: Noted.

Chairperson: Thank you. Just explain what happened to you. Why did they delay you?

Ms Mvuyana: We went to the incorrect gate with my driver. We then had to go to the Visitors Centre for credentials to enter Parliament. So there was a very long queue there, and I had to wait like everyone else. But I’m sorted now and apologies for the late coming.

Chairperson: Thank you. Don’t switch it off, keep it on. We appreciate that, that will be the Visitors Centre. It applies to all of us. When I forget my access card, I start there. We just don’t know how the fire started, you know, when we have that kind of... With that, colleagues, I am now going to invite Adv Bawa to interact with the witness.

Cross-examination by evidence leaders
Adv Nazreen Bawa: Good morning.

Ms Mvuyana: Good morning, Adv Bawa.

Adv Bawa: How are you today?

Ms Mvuyana: I’m well and how are you?

Adv Bawa: I'm good, thank you.

Ms Mvuyana: Thank you.

Adv Bawa: Can we accept as a starting point that underlying the work and the reports of the Public Protector, amongst all kinds of other principles - but I’m just going to hone in on a few of them, must be openness, transparency, independence and impartiality.

Ms Mvuyana: That’s true.

Adv Bawa: And that, as a starting point, the SARS unit report has now been reviewed and set aside. The Constitutional Court has refused leave to appeal. So the report is no more.

Ms Mvuyana: It’s set aside. That’s correct.

Adv Bawa: We also know that the... shall we try and differentiate between the two reports; shall we call the one the IGI report and the other one the SARS unit report? The IGI report being the classified report.

Ms Mvuyana: Yes.

Adv Bawa: So we also know that that report has been reviewed and set aside.

Ms Mvuyana: If you say so, I don't know.

Adv Bawa: You don’t know that?

Ms Mvuyana: I’m not sure about that information. I can’t confirm.

Adv Bawa: We know that the section 7(9)s and the reports are signed by the Public Protector. Correct?

Ms Mvuyana: Yes, that’s correct.

Adv Bawa: So it's her reports?

Ms Mvuyana: it’s?

Adv Bawa: It’s the Public Protector’s reports?

Ms Mvuyana: Yes.

Adv Bawa: And there’s been no accusation made against you or against the Chief Investigator of collusion or corruption or taking any sort of bribes, as far as I’m aware in any of the court judgments that have come down.

Ms Mvuyana: No.

Adv Bawa: And there’s also no finding of you, or the Chief Investigator having acted with any form of vendetta.

Ms Mvuyana: Yes, in the judgment, that’s correct.

Adv Bawa: And so what made you testify in respect of that?

Ms Mvuyana: What was I?

Adv Bawa: What was it that informed your testimony? To raise the fact that there’s an issue of a vendetta or collusion or something, why do you feel it necessary to raise it to the Committee?

Ms Mvuyana: Besides the fact that I was asked the question, it’s been alluded to by a couple of newspaper articles and some of the witnesses that came here. That’s why I felt that it must be clear that from my own personal work ethic, there was no malfeasance on my side and bias, or yeah.

Adv Bawa: Can you tell me which witnesses/evidence you regard as having said that?

Ms Mvuyana: Not having said, I said alluded to that.

Adv Bawa: Alluded to that?

Ms Mvuyana: Yes.

Adv Bawa: Which of the witnesses?

Ms Mvuyana: Mr van Loggerenberg, Mr Pillay, a couple of our own staff members – if I can just mention a few that I know of. Newspaper articles, I can’t recall all of them, but I don’t have the specifics for that.

Adv Bawa: Can you in your own words, tell me what you understood them to be alluding to?

Ms Mvuyana: What you just alleged. So being either bias in conducting the investigation or being dishonest, ignoring evidence, et cetera.

Adv Bawa: As in attributing that to the investigators or as in attributing back to the Public Protector?

Ms Mvuyana: If the Public Protector is said to have ignored evidence, that means she doesn’t deal with the evidence, I deal with the evidence. So that’s where the illusion comes from.

Adv Bawa: But do you agree as a matter of first principles, whatever goes into the report, whatever gets taken out of any drafts is a decision which lies with the Public Protector?

Ms Mvuyana: That’s true.

Adv Bawa: Now, there is a period from when the complaint comes in to when the report is handed down in July. October you get the first complaint. July the 5th, I think, the report is finalised. What do you regard as the investigative period?

Ms Mvuyana: For part one of this report... starts from October to currently, basically, because this is part one. So part two has not been finalised.

Adv Bawa: No, so we’re talking about the investigation, which informs the report that comes out in July.

Ms Mvuyana: Okay, which is...

Adv Bawa: Are we saying that you investigate up to the point... if new evidence came to your attention on 4 July; would you change a conclusion that was in the report? Would you have regard to it and change what needs to be changed in the report?

Ms Mvuyana: That's a difficult question. If it came on the 4 July and the final report is now with the Public Protector and is being quality assured. It will have to be a discussion and the decision with the team, that is being made. I wouldn't take that decision, because these things are planned. So if there’s a media briefing tomorrow and the report is being finalised, a discussion will be had and will decide whether or not to incorporate such evidence. It can be incorporated though, if there is new evidence submitted on the 4th, we’ll just have to work all night.

Adv Bawa: You’re not suggesting if there’s evidence which implicates any of the peoples, the subject matter of the report egregiously or exonerates any people implicated in the report, on the bases of as a report being handed down tomorrow, that you won’t have regard to it or the Public Protector won’t have regard to it?

Ms Mvuyana: No, it will. We’ll have to regard it.

Adv Bawa: Now, if we look at your investigative diary, and we go into 190.57319. As I understood, and from Mr Mataboge’s evidence, you meant to keep track of what you’re doing in this investigation in your investigative diary. Is that correct?

Ms Mvuyana: Yes, that’s the intention of a diary.

Adv Bawa: And if we look at your investigative diary... 7319. And your investigative plan has not been provided to us.

Ms Mvuyana: Is it?

Adv Bawa: No.

Ms Mvuyana: Oh, okay.

Adv Bawa: Despite having asked it previously and asked it again. It’s not in the file; it doesn’t appear to have been included in the documentation provided to us. Is it the reason why it's not there or do you still have it?

Ms Mvuyana: I would not know what the reason is, because I’m no longer in possession of the file.

Adv Bawa: Alright, so this investigative diary commences on the 12 November 2018, when it’s referred to Ms Mogaladi for allocation. She was at that point the GGI Executive Manager. Correct?

Ms Mvuyana: Yes, correct.

Adv Bawa: And then the file is allocated to you on the 15th. And you acknowledged receipt of it.

Ms Mvuyana: Right.

Adv Bawa: Maybe you can just take us through your investigative diary... Tshepo, just go down. You asked to attend to this urgently, you note that the file is received. What do you do next?

Ms Mvuyana: Letter to President sent. So in between the 15th and the 19th, I’m drafting letters. On the 20th, letter to the complainant is sent and the meeting is held...

Adv Bawa: To be held?

Ms Mvuyana: The acknowledgment would have been before the 20th. So this was just to update, then the meeting was held I believe on the 20th. I’m not sure when the meeting was held, I think, but sometime in November.

Adv Bawa: Is this the meeting with Mr Shivambu?

Ms Mvuyana: Yes... Okay, that is clear... Okay, must I read it out?

Adv Bawa: Yeah, it’ll just go quicker, if we just go through...

Ms Mvuyana: Okay, discussed way forward with the team, that’s Mr Mataboge from the PP – as per directive from the PP, namely letter to SARS and Minister Gordhan.

Adv Bawa: Alright.

Ms Mvuyana: Okay, that’s letters inviting complete, sent. Meeting confirmed for the 4th. So this is also... happens before the 20th I believe. Oh, this is 30th. Oh yeah, it was held on the 4 December, this meeting – this is incorrect, mistake. Letter sent to SARS. Meeting held with complainant to log issues. Letter sent to Gordhan, listing allegations. And then we go to June 2019... This is June? Okay, request and extension.

Adv Bawa: I think that’s January.

Ms Mvuyana: Is it Jan? Oh, yeah, sorry. Yeah, extension granted. And then response received from Mr Gordhan; response received from SARS. Acknowledgement sent. Perusal of documents began; began drafting section 7(9); discussed with CI in between that time period. And then report issued. File certified closed on the 5 July 2019.

Adv Bawa: So would you accept that your investigative diary doesn't actually disclose any investigation?

Ms Mvuyana: We won't... Which part of the investigation does it not disclose?

Adv Bawa: Anything. Tell me which part of this is an investigation.

Ms Mvuyana: The start of the investigation... meeting with the complainant. Receiving documents from SARS is part of an investigation process. Analysing those documents is part of the investigation process. Drafting the section 7(9) is part of the investigation process. Discussion with the team is part of the investigation process. Drafting the report is part of the investigation process.

Adv Bawa: Okay, so what you don’t detail in here is any meetings you have with any other witnesses?

Ms Mvuyana: Yes, what is not detailed there?

Adv Bawa: And should it be detailed there?

Ms Mvuyana: Ideally, yes it should.

Adv Bawa: So why is it not there?

Ms Mvuyana: It was an oversight, unfortunately. A lot was happening, like I’m saying, sometimes you don't see to the file on a daily basis. So you will fill in the diary as and when you touch the file, and then remember to fill in such details. So there were a lot of documents that were submitted here, and most of the time was spent on analysing that evidence. So it might have been, it is an oversight on our part – my part especially, because I was the owner of the file here. But I do agree that there are things missing.

Adv Bawa: Right, and you were... when you talk about an investigative team, who is that team?

Ms Mvuyana: Me, Rodney and the PP, that’s the team.

Adv Bawa: Now, you had a consultation with Adv Mayosi and myself. I think it was end of June, end of July, somewhere around there.

Ms Mvuyana: Yes.

Adv Bawa: And you indicated to us that the investigation team, or you yourself had not had access to the IGI report. And you didn’t place any reliance on it.

Ms Mvuyana: I myself did not see the IGI report, yes.

Adv Bawa: And you placed no reliance on it, in drafting the report.

Ms Mvuyana: No, I couldn’t have. I had not seen it.

Adv Bawa: So, if there are inserts into the report that emanates from the IGI report, so as a consequence of it, then it doesn’t come from you?

Ms Mvuyana: No, it does not. And I can’t confirm who it came from.

Adv Bawa: Were you aware at the time that Mr Mataboge had access to the report?

Ms Mvuyana: Yes, I was aware.

Adv Bawa: And what security clearance did you have at the time?

Ms Mvuyana: Just confidentiality. Myself or Mr Mataboge?

Adv Bawa: You.

Ms Mvuyana: Confidentiality.

Adv Bawa: Okay. Now, on what basis did you conclude that you could only access a classified report if you had top secret security clearance?

Ms Mvuyana: How did I conclude? When did I conclude that?

Adv Bawa: You said that you didn’t get the classified report in your direct evidence, because you didn't have top secret security clearance.

Ms Mvuyana: Yes, that’s what I was told. So when the issue of the report being dropped off, et cetera, came to light, I then was told that I could not have access to it, because I don't have security clearance.

Adv Bawa: And who told you that?

Ms Mvuyana: It was Mr Mataboge, as well as the PP, and Ms Mogaladi also confirmed.

Adv Bawa: And did you check the law on this?

Ms Mvuyana: No.

Adv Bawa: Now, as I understood your direct evidence, you were saying that PP does not get involved in investigations. Did I understand that correct?

Ms Mvuyana: I think from my statement, I said certain portions, so that would be analysis of and receiving of documents... and certain parts of the investigation. But at some point, the section 7(9)s, the letters are signed by her. The section 7(9)s are signed by her, they are discussed, and she makes inputs. So the process, she would have to be a bit involved.

Adv Bawa: Mr Mataboge’s evidence was that she’s involved in the investigation of matters, from the start to the end - with continuous insightful inputs to direct the course thereof. Often with well-researched case law to assist the teams with legally sound conclusions, which also being open to persuasion, to a different viewpoint or conclusion. Do you disagree with that?

Ms Mvuyana: No, I don’t. That's what I was saying. That inputs are made, discussions are had. So she wouldn't be totally excluded from the investigation process. Updates are given to her as well.

Adv Bawa: So this... when did you find out about this anonymous person who dropped the report at the PP’s office?

Ms Mvuyana: I believe it was in January 2019, if not Feb. 2019.

Adv Bawa: Was it before after the meeting with the people from the IGI?

Ms Mvuyana: When was the first meeting?

Adv Bawa: 31 January.

Ms Mvuyana: I believe it was before.

Adv Bawa: So when you got the Noseweek article, you knew about the IGI report already?

Ms Mvuyana: I knew that the Public Protector had the IGI report.

Adv Bawa: Yes.

Ms Mvuyana: Yes, I knew of the existence of the IGI report. The complainant said there was a report as well. So it wasn’t just from it being dropped at the office.

Adv Bawa: Sorry, I’m asking the question badly. At the time in the Noseweek article came to your attention, when Mr Shivambu sends it to you on the 24 January. Let me ask a precursor question, was that the first time the Noseweek article was brought to your attention?

Ms Mvuyana: No, the Noseweek article was issued I think in Feb. So Mr Shivambu says that there is a report – this is in December when we meet him. He says that there is a report that supports his allegations, that is from the Office of the Inspector General of Intelligence (OIGI) et cetera. Then we still write to SARS and we continue with the investigation. Whilst then the OIGI story comes as well from Noseweek.

Adv Bawa: Okay, but Mr Shivambu sends you an email with a Noseweek article attached to it on the 24 January. Do you recall that?

Ms Mvuyana: No, I know that he sent it to Pona [Mogaladi]. I don’t know if...

Adv Bawa: Maybe, Tshepo, can you put up Bundle F, 189.15. We're distinguishing between the Noseweek article and the classified IGI report. So I'm talking about the Noseweek article.

Ms Mvuyana: Okay.

Adv Bawa: Yes, that’s my email address. Yes, I did receive.

Adv Bawa: You did receive that?

Ms Mvuyana: Yes, I did receive it, and I printed it.

Adv Bawa: And he tells you that the report of the IGI on intelligence is out already, in the email.

Ms Mvuyana: Of the IG is out, is already... is out already. Yes, he says that.

Adv Bawa: He says that. Okay, so when you get this, are you aware that the Public Protector is in possession of the report?

Ms Mvuyana: No.

Adv Bawa: If we go to paragraph 4.4...Tshepo, we’re going to the SARS report, it would be Bundle E 74216. Now, where in the SARS unit report does it say that the Public Protector has the classified IGI report?

Ms Mvuyana: I don’t know.

Adv Bawa: If you look at paragraph 4.4, which is the list of the documentation... Sorry, I had it and I've lost it, just... go up. This is the key sources of information that’s listed in the document. And let me save time, Ms Mvuyana. What is not there is any reference to the classified IGI report, any reference to the Nugent reports, and any reference to the affidavits from Mr Lebelo. Nor is there a reference to the emails that had been received which I'm going to take you to in a while, from other parties that are there. Nor is there any reference to the anonymous complaint that had come in or the communications with the anonymous complaints. If I'm wrong Adv Mpofu will tell me, but I'm going to let them scroll down and show you. And so I'm asking you why was there no reference, in particular to those documents in this report and in particular the classified IGI report?

Ms Mvuyana: I don’t think that... I agree with you that they’re not there. But there’s also a lot of other documents that are not there, I believe, that are submitted by SARS as well, memos, et cetera. So I won’t be able to answer that question. They’re just not there. They were not included, but they in the Rule 53.

Adv Bawa: The classified IGI report, the Nugent report, and the Lebelo affidavit are not in the Rule 53.

Ms Mvuyana: I think the IGI report, I wouldn’t know, because I never saw it. I wouldn’t know how it looked like in my compilation. The Nugent was, still is a public document; so we believe that anyone could have accessed it. What else was not there?

Adv Bawa: The affidavit that you got from Mr Luther Lebelo.

Ms Mvuyana: Oh, I don’t know about affidavit. I don’t know if...

Adv Dali Mpofu: Chair?

Chairperson: Okay, just a pause. Adv Mpofu?

Adv Mpofu: Yes, I just wanted to check if maybe Adv Bawa can identify that affidavit for us, because the only affidavit I'm aware of from Mr Lebelo was given to the Nugent Commission.

Chairperson: You’re not on your mic.

Adv Bawa: Where we requested certain documentation and information from the Office of the Public Protector.

Ms Mvuyana: Yes.

Adv Bawa: And that information was compiled. Were you involved in the compilation thereof?

Ms Mvuyana: Yes, I was.

Adv Bawa: Did you do it?

Ms Mvuyana: Not alone, I was assisting Mr Mataboge. The letter was sent from the CEO's office to Mr Mataboge. I assisted.

Adv Bawa: You assisted Mr Mataboge?

Ms Mvuyana: Yes.

Adv Bawa: And the contents of this letter, did you both agree to the contents of it, of the response?

Ms Mvuyana: May I, can I please see the letter?

Adv Bawa: It’s done in a table. So let's just see...

Ms Mvuyana: No, we didn’t do it in a table. The responses were not done in a table.

Adv Bawa: Okay, the responses were done... let’s go to 189.52. Did you provide a copy of the documentation and the file to the CEO's office?

Ms Mvuyana: Yes, we did. Both files.

Adv Bawa: Both files?

Ms Mvuyana: Hmm.

Adv Bawa: It’s 5071. Was that what you had compiled?

Ms Mvuyana: Yes.

Chairperson: Just a pause Adv Bawa and Ms Mvuyana. Hon Gondwe?

Dr M Gondwe (DA): Chair, through you. Just a request to Ms Mvuyana, sometimes she responds with “hmm”, to just say “yes”, so that we can capture it on Hansard.

Ms Mvuyana: Noted.

Chairperson: Thank you for that. Switch on your mic Adv Bawa.

Adv Bawa: So you provided it in that format. And if we go to 189.45, it’s on your... here we go, right. This is what was provided to us as a summary of the comments you made and the documentation provided into each request. Was this compiled not by you but by the office of the CEO probably?

Ms Mvuyana: Probably.

Adv Bawa: Right, so let me go to the end of the document. Additional information provided, there says “Notes on meeting with Mr Lebelo (SARS) dated 11 December 2018”.

Adv Mpofu: Chairperson?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: I object to this line of questioning. I spoke to my learned friend about it yesterday... Thank you, Chair.

Chairperson: Adv Bawa, I kind of missed that. That was too quick, but go ahead... Your mic is off.

Adv Bawa: Chair, Adv Mpofu asked me to direct them where. Now am I taking you to it or? Okay, so just, Chair, if you could bear with me... in the tea adjournment, because I just need to find it. It's attached to an email, which I know is there, because I looked at it yesterday. But it’s listed on the emails date.

Adv Mpofu: Chair, can I just say this. Can this line of questioning, can we deal with it after tea, after we’ve spoken? Yeah. Thanks, Chair.

Adv Bawa: So, Ms Mvuyana, it matters little whether a document is in the public domain or not. If you’ve... for purposes of compliance with Rule 53. Do you agree with that? Because your Sikhakhane report and other reports are all there, it’s only the Nugent one that is not.

Ms Mvuyana: Noted. I don’t get your question, sorry.

Adv Bawa: I asked you why the Nugent report was omitted from the Rule 53 record, and you said to me that it was in the public domain, but that’s not the criteria for Rule 53. You would know that everything that you have regard to for purposes of the report should form part of the Rule 53. Isn’t that so?

Ms Mvuyana: Sorry, I thought you were referring to the Nugent report not being in the report, listed in the Public Protector reports.

Adv Bawa: Sorry. I started off by saying it’s not in the report. And your response was there’s lots of stuff that was not in the report, but it was included in the Rule 53 record. I then pointed out to you, well, actually, it wasn't included in the Rule 53 record, to which your response to me was, well it's in the public domain - If anybody wanted it, they could get it.

Ms Mvuyana: Yes, that I did say.

Adv Bawa: I then put the proposition to you, but that’s not the Rule 53 purpose. That everything that you have regard to, everything that the Public Protector has had regard to, for purposes of the report, and that emanates in the compilation of the report must form part of the Rule 53. You do know that, don’t you?

Ms Mvuyana: Yes, I do, and you are correct.

Adv Bawa: Right, so the fact that the Nugent report is in the public domain, for purposes of Rule 53 is irrelevant.

Ms Mvuyana: That’s correct.

Adv Bawa: And so, for the outsider looking in, what is omitted from the Public Protector’s report and the Rule 53 record is essentially amongst other things which we may touch on, but three essential things, that the IGI report that was in the possession of the Public Protector, the Nugent reports, and this affidavit from Mr Lebelo.

Ms Mvuyana: I can’t comment on that question, Adv Bawa. I was within, so I can’t know from the outside what it would be perceived as.

Adv Bawa: But you would accept that there was an obligation on the Public Protector to disclose all documentation to which she had regard to, for purposes of the report.

Ms Mvuyana: That is true.

Adv Bawa: Now, if you look at the report... let’s go to 263 of the report, paragraph 5.2.26. And I’m going to ask you this, Ms Mvuyana, and put the proposition to you that there is nowhere in the SARS unit report, that it says the Public Protector was in possession of the IGI report. Do you disagree with that?

Ms Mvuyana: I’d have to check the report.

Adv Bawa: We’ll do that as we go along. As in paragraph 5.2.26, she says “Apparently the then Inspector-General...” well, let me go one paragraph up. I'm going to come back to this paragraph for a different reason in a while, right? Actually, let’s go up to 5.2.24, let’s do it while I'm here, right... just so that Ms Mvuyana can see the context. Go back up, in which section it is... go to the headings, so that she can see what the heading is... stop, right. The heading is under the Sikhakhane report, so go down. Right, so there are the findings of the Sikhakhane report. And then at 5.2.25 it says “The report recommended...” you are referring to the Sikhakhane report. Correct? The recommendation comes from the Sikhakhane report.

Ms Mvuyana: Yes.

Adv Bawa: “... that the activities and functions of the SPU be investigated by the Inspector General of Intelligence”. So Sikhakhane recommends that there be an investigation by the Inspector General. And then it says “In a meeting held with the Inspector-General of Intelligence, Dr Dintwe on 31 January, he confirmed that the Office of the Inspector General of Intelligence had indeed previously investigated allegations of an intelligence unit within SARS and confirmed the existence thereof”. Were you at the meeting on the 31 January?

Ms Mvuyana: No.

Adv Bawa: Did you draft that?

Ms Mvuyana: Draft the?

Adv Bawa: Draft the paragraph.

Ms Mvuyana: Yes, I did draft it, but obviously it is changed to confirm by the people that were actually there. But I was aware that there was also a letter, since all the documents came to me. So the letter was written and the meeting was held.

Adv Bawa: Yes, but you don’t know whether Dr Dintwe on 31 January actually gave the confirmation that he said in that report.

Ms Mvuyana: No, I just know through discussions. So it was confirmed, that was what I was told, that there is a report.

Adv Bawa: And you were told that by whom?

Ms Mvuyana: The people that were in the meeting. So that would be Mr Mataboge.

Adv Bawa: And the Public Protector?

Ms Mvuyana: Yes.

Adv Bawa: And the next line, it says, “Apparently the then Inspector-General, Adv Faith Radebe, conducted an investigation on the intelligence unit within SARS and issued a report on 31 October 2014, which I was reliably informed that it was in the custody of the former Minister of State Security, Ms Dipuo Letsatsi-Duba from whom I tried to get a declassified copy of the report without success”.

Ms Mvuyana: Yes.

Adv Bawa: You would agree what is apparent from that paragraph is she doesn’t say that she is in possession of this classified IGI report, which is in the custody of the former Minister of State Security.

Ms Mvuyana: Yes, that’s true. It doesn’t say that.

Adv Bawa: Right, and she then says she tries to get the classified report without success. Right, then you go to 5.2...

Adv Mpofu: Chairperson?

Chairperson: Thank you, Adv Mpofu?

Adv Mpofu: Yes, no, sorry, maybe it’s just for my own clarity. Up until now we have had the version of the evidence leaders, Mr van Loggerenberg and the judgment, being that the Public Protector explicitly stated in the report that she had not seen the IGI report. And now, there seems to be by some sleight of hand, a change in that version. And I just want to understand, is now the new version confronted with the truth, that she did not say, in the report that she had seen or that she did not deny having seen it. I just don't get what is being proposed. But it’s clearly a variation from the original theme. So I just want to know what has been put to the witness. Sorry, Chair. Just for my clarity.

Adv Bawa: Chair, will you allow me to continue my questions, and as we go through the paragraphs. Because the witness took responsibility for the report yesterday, without knowing certain information that emanates or had direct knowledge from her investigations in the report. And I will answer the question Adv Mpofu, but I just want to take the witness through where I’m going first.

Adv Mpofu: Why? I just want to know...

Chairperson: Sorry, I didn’t recognise you.

Adv Mpofu: Oh, sorry, Chair.

Chairperson: Please switch off your mic. Please switch off your mic.

Adv Mpofu: I’m sorry, Chair.

Chairperson: You done?

Adv Bawa: Because, I think... yes, I am.

Chairperson: Think?

Adv Bawa: Yeah, no, no. I'm done. I want to get back to my question

Chairperson: Okay, Adv Mpofu?

Adv Mpofu: Chair, I've just asked a question. I just need to be clarified. I don’t know why it must be postponed.

Adv Bawa: Chair, my clarification will emerge in my question.

Chairperson: I would grant her to do that, and you will intervene at any point when you think it’s not answering the question.

Adv Mpofu: Okay. That's fine, Chair. But also it's not correct to say the witness took responsibility for the report, but we will deal with it when I get in my response. Thanks.

Chairperson: Okay, thank you. Switch on your mic, Ms Mvuyana. It switches itself automatically, I know it’s not you. Proceed, Adv Bawa.

Adv Bawa: I want to go to page 264, paragraph 5.2.27. It’s under the heading of interviews conducted. And in 5.2.27 the PP says “In an attempt to determine the veracity of the allegations of the existence and activities of the intelligence unit, I sought more information from the IGI. This information was attributed to a report by the former IGI, Adv Faith Radebe”. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Bawa: She doesn’t say that I'm seeking to determine the veracity of the allegations as contained in a report which I already have in my possession. That's not in that paragraph. Do you see that?

Ms Mvuyana: Yes, I see.

Adv Bawa: Right, and then if you go to 5.2.29, “I had also subpoenaed the Minister... for submission of the report which led to a meeting with her on 15 February 2019. At the said meeting, the Minister undertook to request her Director-General to avail a declassified copy of the report to my office. I have yet to receive the report as promised”. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Bawa: She doesn’t say in this version that I told the Minister at that meeting, that I have in my possession a classified IGI report.

Ms Mvuyana: No, it’s not stated in the report.

Adv Bawa: Right, if you go to 5.2.30 “As per my letter dated 25 June 2019, I will be requesting the new Minister of State Security... to avail the declassified report to my office”. Right, so the Public Protector is looking to obtain a declassified copy of the report. Do you see that?

Ms Mvuyana: Yes, that’s what it says.

Adv Bawa: And do you know for what purpose she's seeking to obtain a declassified copy of the report?

Ms Mvuyana: No.

Adv Bawa: Okay, at 5.2.33, right, it says “In light of the abovementioned and in terms of the powers vested in me by section 181(2) and (3) of the Constitution. I have it on good authority that the findings of the OIGI report, inter alia, were that...” Do you know what good authority that is, that’s being referred to?

Ms Mvuyana: No, this portion...

Adv Bawa: Okay, so you were not responsible for putting this portion into the report either?

Ms Mvuyana: No.

Adv Bawa: Okay, so logic dictates that the only way you can actually work out what is in the IGI report is if somebody tells you or you have the report yourself. And we know she has the report, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Bawa: So that good authority is probably the report itself. Would you agree?

Ms Mvuyana: If you’ve seen the report, yes.

Adv Bawa: If you’ve seen the report, yes. Now the OIGI report recommended....and I want to take you through this carefully so that we follow my train of thought. The OIGI report recommended inter alia, so there's more recommendations, that 1. “Criminal charges be investigated against Messieurs Gordhan, Pillay, van Loggerenberg and Richer for the establishment and involvement in the covert intelligence unit in SARS”; and 2. “SARS produce a credible inventory of all operational equipment which was used over a period by the National Research Group (NRG) in the course of its covert activities”. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Bawa: Right, so we know that the OIGI report implicates those four people into some criminal acts, and it recommends criminal charges. What they are, you don’t know.

Ms Mvuyana: No.

Adv Bawa: Right, so now you come to page 335, which is paragraph 8.3.1. Who drafted the recommendations in the report?

Ms Mvuyana: Mr Mataboge usually drafts the remedial action in the reports.

Adv Bawa: Do you have input into it?

Ms Mvuyana: Yes, just as teamwork, making inputs, making amendments et cetera.

Adv Bawa: Right, so when you recommend that “Within 90 days of the issuing of this report, acting in line with Intelligence Services Amendment Act, implement, in totality the OIGI report, dated 31 October 2014”. In essence you are recommending that criminal charges be investigated against Messieurs Gordhan, Pillay, van Loggerenberg and Richter for the establishment and involvement in the covert intelligence unit in SARS. Isn't that so?

Ms Mvuyana: Yes, that’s what the report says.

Adv Bawa: So you do make a finding in this respect for the establishment and involvement in the covert intelligence unit against Messieurs Gordhan, Pillay, van Loggerenberg and Richter?

Ms Mvuyana: Is this not remedial action?

Adv Bawa: Well, the paragraph above, that I read you, you set out what the IGI report had indicated. And this is the remedial action.

Ms Mvuyana: Yes, but the remedial action is different from the finding.

Adv Bawa: Oh, so are you saying you are making a remedial action for criminal charges to be pursued without any finding of criminality against them?

Ms Mvuyana: I have never known the Public Protector to be able to make criminal findings.

Adv Bawa: But she can recommend that criminal charged be investigated. Sorry, I'm putting criminal findings probably badly. Let me... that there is a basis upon which people are implicated in crimes that warrant criminal charges and investigations for criminal charges against them. Would that probably be more accurate?

Ms Mvuyana: Please repeat.

Adv Bawa: I don’t blame you, that sounded bad even to me. Right, the recommendation is that criminal charges be investigated against Messieurs Gordhan, Pillay, van Loggerenberg and Richter for the establishment and involvement in the covert intelligence unit in SARS.

Ms Mvuyana: The recommendation of the OIGI.

Adv Bawa: Yes, and the recommendation of the Public Protector in her remedial action is that this report, including that recommendation must be implemented.

Ms Mvuyana: Yes, that’s what it says.

Adv Bawa: In other words, the Public Protector is of the view that criminal charges must be investigated for those four people's involvement in the establishment and involvement in the covert intelligence unit in SARS.

Ms Mvuyana: Yes, that’s what it says as a remedial action.

Adv Bawa: As a remedial action. What presupposes that remedial action must be a conclusion that those four people are involved in the establishment and involvement in what is regarded as an unlawful SARS unit?

Ms Mvuyana: Your questioning is confusing me a bit, because what you’re suggesting is that the findings are directly linked to the remedial action, if I understand you correctly.

Adv Bawa: Yes, because that's what your guidelines on remedial action say you should do. You should link your remedial action to your findings

Ms Mvuyana: Can I see the guidelines, please?

Adv Bawa: Let me just find it for you quickly. Give me a sec... Okay, let me take you to it, it’s detailed in the report. Go to page 239 of the report. 3.6, where you detail what the EFF judgment says. It deals with “Complaints are lodged with the Public Protector to cure incidents of impropriety, prejudice, unlawful enrichment or corruption in government circles”, and in 3.6.2 says “An appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced”. Now go down. Then it says “Taking appropriate remedial action is much more significant than making a mere endeavour to address complaints which was the most of the Public Protector could do in terms of the interim Constitution. However sensitive, embarrassing and far-reaching the implications of reports and findings, she is constitutionally empowered to take action that has that effect, if it is the best attempt at curing the root cause of the complaint”. “The legal effect of these remedial measures may simply be that those to whom they are directed are to consider them properly, with due regard to the nature, context and language, to determine what course to follow”. And then it says “Every complaint requires a practical or effective remedy that is in sync with its own peculiarities and merits. It is the nature of the issue under investigation, the findings made and the particular kind of remedial action taken, based on the demands of the time that would determine the legal effect it has on the person, body or institution it is addressed to”. And this is the part I was referring to “The Public Protector’s power to take appropriate remedial action is wide but certainly not unfettered. What remedial action to take in a particular case, will be informed by the subject matter of the investigation and the type of findings made”. And so, I’m saying that when you make or issue a remedial action that says criminal charges must be considered against these people, then based on this it must be informed by the findings made.

Adv Mpofu: Chairperson?

Chairperson: Adv Bawa... Adv Mpofu?

Adv Mpofu: Yeah, okay. I object this being put as a fact, in this form of a leading question. Maybe it should be elicited from the witness, because I can't see any basis for this, saying that if someone says you must implement a report of someone else, then it means it’s your findings that you’re implementing, it's that person's findings. And there’s nothing that Adv Bawa is saying that appears from the remedial action. It doesn’t say you must put criminal charges blah blah blah, it simply says you must implement the IGI report in totality. And that covers 20 or 30 things at least, that I saw, including legislative changes and what have you.

Chairperson: Adv Bawa?

Adv Bawa: Chair, I’m not taking this witness to any part of the IGI report that is not in the SARS report. I’m taking the witness to a part of the remedial... of a conclusion reached in the IGI report, that is transported into the SARS report. It's not by this witness, but by the PP. And I'm saying to this witness that the impact of having done that is a remedial action, informed by what is contained in the report for criminal charges to be investigated against four people.

Adv Mpofu: Chairperson?

Adv Bawa: Now if the witness understood it differently then she must tell us that.

Adv Mpofu: Chair?

Chairperson: Thank you, Adv Bawa. You coming back, Adv Mpofu?

Adv Mpofu: Yes, Chair. On a quick point. I think Adv Bawa has answered her own question. The unfairness of the question, Chair, is to... that question can be put to the Public Protector as the person, or Mr Mataboge if he had any hand in it. But to put it to a witness who has told this Inquiry that she never read the IGI report, and then you tell her but transporting this and that and whatever of something that she has testified that she never read. Talk to the people who read the document and did the transportation, if there's an allegation of transportation. She has explained her unique circumstances, Chair, under which she personally because of her lack of the correct status, had no access to that particular piece of information. So how can she be questioned about the contents of the very thing she says she did not see?

Chairperson: Are you on the contents of the report?

Adv Bawa: Chair, there is a context to the report. A report which the witness told us yesterday I was the investigator. If there’s ABC wrong in this report, then I take responsibility. Now the witness didn’t put certain things into the report, but she didn’t tell us that yesterday. And so now I’m checking whether having criminal charges investigated against four people in respect of at least one of those people, we know, has been complaining very loudly in this forum to this Committee that I wasn’t given a hearing - but you effectively in your remedy suggest that criminal charges must be investigated against me. And that’s where I'm heading with this. And I do want the witness to comment, because she was the investigator on the matter. And if her answer is this part of the report I had nothing to do with, then I know that this witness must say that.

Chairperson: Thank you. Over to you, Ms Mvuyana.

Ms Mvuyana: Okay, I might have lost you there a bit, but I understand where you’re coming from Adv Bawa. Like indicated, I did not see the reports. So the information contained as the remedial action says in totality, I wouldn’t have been able to actually put in the reports. And then just to correct on the taking responsibility, I indicated that as an investigator you draft the report. And then I also said that it goes through various lines, where inputs are made and it’s sent back to and fro, until the final draft is with the Public Protector. In between that any person, because it’s sent as a Word document, in that chain of command can insert paragraphs, that they or of some information that they know, or that you might have incorrectly put from what their understanding. So I can, for example, I can recall that a meeting was held with Dr Dintwe, but I will not know the specifics, and probably won’t be able to put it as clearly as the person who was actually there at the meeting and be able to word it the way they would want to communicate it.

Adv Bawa: I want to put the hypothetical to you. I’m not suggesting this at all, but if anything relating to the IGI report – is either put in or omitted from the SARS report – reflects some form of vendetta, collusion or bias, then you had no part in it?

Ms Mvuyana: If there’s inclusion of the OIGI report... repeat your hypothetical question.

Adv Bawa: So my hypothetical is like this, if anything that is put into the SARS report, which emanates in respect of the IGI report, or is not put into the SARS report - an omission or a commission relating to the IGI report is a reflection of bias - actual or real, collusion or some form of vendetta, then that could never be attributed to you, because you had nothing to do with putting it in or leaving it out.

Ms Mvuyana: Yes.

Adv Bawa: So the general proposition where you started off yesterday, about if you’re going to find a bias, vendetta or collusion emanating from this report – and I am equally responsible, doesn’t apply to every aspect of the report. Would you then agree?

Ms Mvuyana: I don’t remember saying anything about responsibility. I said that I take offense, not responsibility.

Adv Bawa: So if it... well, then let me rephrase that. If it relates to those aspects of the report that you didn’t put in, then there would be no basis upon which you could take offense.

Ms Mvuyana: Was it aspects of the report or aspects of the whole... well, I think Adv Mpofu was dealing with the alleged conspiracy against Mr Gordhan.

Adv Bawa: Yes, but if that alleged conspiracy finds itself, and I'm putting a hypothetical to you right now. If that alleged conspiracy, if the root of that conspiracy emanates from the IGI report, then you have nothing to do with it, because you had nothing to do with the putting in or taking out of parts of the IGI report.

Ms Mvuyana: I have nothing to do with any conspiracy, either from the OIGI report or from the investigation. I think I stated that yesterday.

Adv Bawa: Yes, but you wouldn’t... you see I understood and correct me if I'm wrong, you were saying if you going to find the conspiracy against the Public Protector arising from this report, then you would have to find that I had been part of this conspiracy, because I was the investigator in this report. Is that what I understood you to say yesterday?

Ms Mvuyana: Yes.

Adv Bawa: But if that conspiracies roots lie in what is put into this report, arising from the IGI report, then you have nothing to do with it?

Ms Mvuyana: Yes, specifically, because I did not see the report.

Adv Bawa: And the same thing would apply to anything else that’s put into the report that doesn't emanate from you.

Ms Mvuyana: Yes.

Adv Bawa: Right... Now, if you go to the second part of the IGI report, which relates to the issue of equipment, I want to take you to page 174 of the judgment. Actually, let me... yeah, okay let’s do that. 174 of the judgment, right. You will recall that the recommendation which we took you to, said that the intelligence equipment utilised by SARS had to be returned, retained, audited and placed in the custodianship of the SSA. I want to go to the judgment, which is C318, and it would be paragraph 174, and you might as well leave it open. Yes, and you see that on... it’s on page 678. Okay, maybe go to 173. So just as a matter of first principles, Ms Mvuyana, a court makes its judgments from the evidence that’s put before the court. We can agree to that, right?

Ms Mvuyana: Yes, we can.

Adv Bawa: And if documents are not put before the court, then the court obviously doesn’t have regard to it.

Ms Mvuyana: Yes, that’s correct.

Adv Bawa: Right, and if there are certain allegations that are put up by an applicant that is not disputed, or an alternative version is not put up by a respondent, then the court is entitled to accept the version of the applicant?

Ms Mvuyana: That’s correct.

Adv Bawa: Right, so if and as Mr van Loggerenberg testified his entire affidavit, which was put up before the court, remained unanswered by the Public Protector, then the court would have been entitled to accept Mr van Loggerenberg’s affidavit, correct?

Ms Mvuyana: Yes, as a matter of principle, if not responded to.

Adv Bawa: As a matter of principle if it’s not responded to?

Ms Mvuyana: Yes.

Adv Bawa: What was your involvement in the litigation process in respect of the preparation of answering affidavits beyond the filing of the Rule 53 record, if any?

Ms Mvuyana: I had none. I remember there was a meeting with the legal team, that was just about it, nothing else.

Adv Bawa: You were not as the author or as the first drafter of the report asked to comment on the allegations in the affidavits at all?

Ms Mvuyana: No.

Adv Bawa: Right, so you wouldn’t know whether... so you’re not familiar with the affidavits put up before the court at all?

Ms Mvuyana: No.

Adv Bawa: Have you seen Mr van Loggerenberg's affidavit at all?

Ms Mvuyana: No.

Adv Bawa: Did you read the judgment? You have read the judgment?

Ms Mvuyana: I have read the judgment, but that was in 2020.

Adv Bawa: Did you read the judgment in anticipation for giving evidence here?

Ms Mvuyana: I skimmed through it, yes.

Adv Bawa: So you can’t actually come to a conclusion as to whether the judgment is right or wrong, because you wouldn’t know what the underlying evidence was before the court?

Ms Mvuyana: Well, the judgment is put in paper and then you read it. The conclusions that are made by the sitting judges is all I can comment on.

Adv Bawa: That is so, right?

Ms Mvuyana: Yeah.

Adv Bawa: So if you if you look at paragraph 173. The judge says… the full bench says “The Public Protector briefly dealt with the equipment and employment issues and stated that she had sufficient evidence to come to the findings in the report”. This is what she says in her affidavit, “She stated that she has ample sources of information on the establishment of the unit, its activities and the capability, its resources and equipment”. And then go down... and she averred that “the Rule 53 record amply demonstrates the vastness of these sources, which included anonymous complainants and whistle-blowers". Did you include the anonymous complainants and whistle-blowers in the Rule 53 record?

Ms Mvuyana: Yes, specifically the scared whistle-blower, which was in my possession, was included, I believe so.

Adv Bawa: Right, were there any other whistle-blowers? I don’t want their identity; I just want you to tell me whether there were other whistle-blowers and how many there were.

Ms Mvuyana: There’s one that I know of, that we met, but they didn’t put their complaint into a document, so it was just told to us. There were various other emails that were dropped or not even dropped, emailed by... what do you call this, internet café email addresses, that would just pop into your email. And no, they would have not been included in the Rule 53, because some I don’t know if I mentioned before we’ve already covered in one complaint. So we don’t keep on putting in complaints or putting in information that we already have.

Adv Bawa: You wouldn't also be able to test the veracity of what's contained in those?

Ms Mvuyana: Yes, especially once you email them back then they don’t respond for meetings, et cetera.

Adv Bawa: Okay, and do you usually email them back to ask them to come in for a meeting?

Ms Mvuyana: That’s the standard, yes. But sometimes you make the decision not to, depending on the situation and the circumstances at the time. Like I said, the internet café complainants are easily identifiable, so you know those ones, it’s @info.com, so that belongs to a general crowd. You then don’t want to also compromise anyone.

Adv Bawa: Alright, now in 174, you will see that the judgment details, I should probably read “As far as the interception issue is concerned the Public Protector stated the following...“. It then says “When this interview was conducted with the Office of the OIG, I was aware from the preliminary investigations that there was an unlawfully established and rogue spying unit established within SARS. The OIGI as set out in its report had concluded that the SARS had established an illegal spying unit which was engaged in corrupt and illegal activities. There are recordings of people working in the spying unit detailing how the spying unit performed its activities which are part of the record in these proceedings. The content of these recordings demonstrates an abuse of the unit that should make anyone with a constitutional duty to promote, advance and uphold the Bill of Rights cringe. I was shocked to learn that SARS had established a spying unit to advance its statutory objectives. More importantly, the spying unit appears not to have operated lawfully but in a rogue manner”. Now, can I ask you about these recordings? Did you listen to these recordings?

Ms Mvuyana: So before I... this that you’ve just read. It's from?

Adv Bawa: The Public Protector’s affidavit.

Ms Mvuyana: Okay, so there’s recordings of the people that worked at the spying unit. Yes, I did listen to these recordings, De Waal and Lombard, I believe.

Adv Bawa: Right, and how did you ascertain the veracity of the recordings?

Ms Mvuyana: We did not ascertain the veracity of the recordings. You mean in terms of...it was provided to us in a memory stick, or to me in a memory stick already as a recording, so unfortunately, I don’t have resources to verify if a recording is not tampered with et cetera. A recording just is a recording.

Adv Bawa: And what steps did you take to get Mr Lombard and Mr De Waal to come in to meet with you?

Ms Mvuyana: None that I can recall. But I think we did try to... as Mr van Loggerenberg, obtain information from the former employer, or alleged former employer, which was SARS. That information wasn’t provided.

Adv Bawa: Sorry, I don’t understand the answer. I asked what steps did you take to get hold of Mr Lombard and Mr De Waal, so that they could come in for you to interview them.

Ms Mvuyana: We tried to obtain information from the former employer, who could not provide.

Adv Bawa: And who tried to do that?

Ms Mvuyana: Mr Mataboge is the one that was in communication with the SARS whistle-blower internally.

Adv Bawa: So you didn't actually ask SARS, you asked the whistle-blower to give you this stuff, and when he couldn’t give you or he gave you wrong stuff, you just left it?

Ms Mvuyana: Yes, this person was holding a high position within the HR division, so they had, what we believed, access to the information easily.

Adv Bawa: So, and Ms... And no formal letter was written to the Commissioner of SARS asking for it, no subpoena was issued, nothing?

Ms Mvuyana: No.

Adv Bawa: Alright, so what affidavits of any member of the alleged SARS unit did you have in your possession, under oath, indicating some form of evidence?

Ms Mvuyana: I’m not sure. Did we say that we have affidavits?

Adv Bawa: Well, I'm asking did you have any. Let me rephrase it. Did you have any affidavits from any member of the unit, in which you found that their members had been engaged in unlawful activity? Did you interview any of them and take an affidavit?

Ms Mvuyana: No.

Adv Mpofu: Chairperson?

Chairperson: Adv Mpofu?

Adv Mpofu: Thank you, Chair. No, I don’t know if this will assist from Adv Bawa. Just to remind her that the alleged interviews were actually with the commissioner of SARS; and if she wants us to obtain an affidavit from him, to say that he participated in those affidavits, then we will do so.

Adv Bawa: Chair, we’ve been told about Mail & Guardian, left right and centre. And Mail & Guardian says you must go do your own independent investigations. I’m sitting here not interested in the actual recordings. I'm interested in what was being done at the time this report was being compiled by the Public Protector as diligently for purposes of this report. So that’s what I'm asking.

Adv Mpofu: Chairperson? Okay, thank you, I understand that. If that is the case, then what on earth is the relevance of that to the issues in charge 11.3 and 11.4? Either we can spend the whole day here about how an investigation was done or could have been done better, or this or the other, but this is not what this Inquiry is for. This Inquiry is for the issues of alleged dishonesty and bias on the part of the Public Protector and not even this witness.

Adv Bawa: Chair, the manner in which this investigation was conducted, and the outcome is what informs the allegations in the court on bias and dishonesty. Now, you either did do something, because you were – and I'm not saying this, you’re asking me a question and so I'm not, haven’t come to that conclusion, so I don’t want you to say that I've reached it. You either have done something or you haven’t done something for purposes of being determined to come to a predetermined outcome; or you have done something or you have not done something, because it was impossible for you to do; or you have done something or you have not done something, because you just couldn’t be bothered to do it, because you were incompetent to do it. So there's a range of issues, and the Committee must eventually make a call on was it informed by some sort of predetermination to come to a set outcome or not. That what it seems to be very obvious steps to have been followed in an investigation was not guided by the Public Protector to the investigators to do.

Chairperson: Okay, I'm going to allow her to proceed, Adv Mpofu. Continue, Adv Bawa.

Adv Bawa: You see why I’m asking you this Ms Mvuyana, is because when you get those Noseweek article, even though the classified IGI report may... there may be some hesitation on wanting to rely on it or wanting to put it out there, because there are some concerns about security of whatever reason the Public Protector will come and tell us. What the Noseweek article tells you in terms is that Mr van Loggerenberg has reams and reams of information at his disposal. Do you agree with that?

Ms Mvuyana: You can put up the article?

Adv Bawa: Okay... The article is in Bundle F 4357. The Noseweek article 189.15, the Noseweek article just as a precursor refers to the 62 page classified report, and it then quotes Mr Adrian Lackay... and you’ve got to go down, because Mr Lackay then says... Is that the sign for tea? Okay, let me finish this... one moment.

Chairperson: Because I wanted you to... unless you want tea instead of...

Adv Bawa: No, no, let’s go down... there we go. "Mr van Loggerenberg", said Lackay “had presented 34 related instances to Inspector-General Radebe, and identified over 60 individuals he believed should be interviewed. He provided the IGI with multiple data and evidence, including a memory stick, containing whatever information and data was in his possession”. “Almost right. The IGI’s secret report, whose contents we now present, tartly observes that in the first of two interviews with him – where he was accompanied by an attorney and two advocates – van Loggerenberg attempted to direct the interview by proposing that he had 38 themes on which he would like to advise the IGI team”, and he provided names. So you would know that he has a memory stick containing whatever information or data was in his possession from this report. Correct?

Ms Mvuyana: Correct.

Adv Bawa: I actually, maybe rightly or wrongly thought that this might have informed your need to send him the subpoena in the first place. Was that not the case?

Ms Mvuyana: Partly, but not really.

Adv Bawa: Maybe you should explain the part.

Ms Mvuyana: Information is gathered from anyone who is willing to assist. So from this article Mr van Loggerenberg says, I believe, that he was a part of the so-called unit, and he has evidence. So when we checked the evidence, as well that was submitted by SARS. Besides the fact that there were also allegations directly linking him or alleging some improprieties on his part, he at some point was the head of the so-called unit. So that’s why I say partly.

Adv Bawa: Okay, so you knew that for several years, I think he testified that from 2007... But for some break in a period for almost a continuous period for seven years, he was the head of the SARS unit.

Ms Mvuyana: I won’t be sure of the number of years, but yes, I did.

Adv Bawa: You did know that he was the head of the unit?

Ms Mvuyana: Yes, at some point, after, I believe, either Mr Pillay or... yeah.

Chairperson: Okay, thank you. On that point, we’re going to take a 10-minute break and be back at quarter to. Thank you.

[Tea Break]

Adv Bawa: Can I take you to paragraph 35 of your statement? Page 458. What knowledge do you have of Mr van Loggerenberg’s participation in the Sikhakhane inquiry?

Ms Mvuyana: From what I can recall, the Sikhakhane report was commissioned after allegations were made against him by a certain girlfriend, if I'm not mistaken.

Adv Bawa: So now, the reason why I'm asking you this question is that you are aware that the matters relating to the SARS unit did not fall within the initial terms of reference of the Sikhakhane report.

Ms Mvuyana: I won’t recall the exact terms of reference.

Adv Bawa: If I’m wrong Adv Mpofu will jump in and say I'm wrong. Mr van Loggerenberg’s stance has been when I was interviewed by Adv Sikhakhane, that interview took place prior to any inquiry by Adv Sikhakhane into the existence or legality of the SARS unit, and hence I was never given a chance to address that issue with him. Are you aware of that?

Ms Mvuyana: No, where did he say that?

Adv Bawa: He said it in the affidavit in the High Court.

Ms Mvuyana: I didn’t see the affidavit of the High Court, so I'm not aware of that.

Adv Bawa: And what do you know about Mr van Loggerenberg’s participation in the KPMG report?

Ms Mvuyana: None.

Adv Bawa: And then the Nugent reports?

Ms Mvuyana: None.

Adv Bawa: And in the OIGI investigation?

Ms Mvuyana: Unless you consider what he said in the Noseweek article, that’s about all the information I have.

Adv Bawa: So when you say in paragraph 35 of your affidavit, as in the case of the Sikhakhane, KPMG and Nugent reports, Mr van Loggerenberg had apparently been given the opportunity to participate in the OIGI investigation. Where did you get that information from?

Ms Mvuyana: The Noseweek article, does it not state it?

Adv Bawa: No, but you didn’t know what his involvement was in the KPMG and Nugent reports, right? You draw the conclusion from that essentially van Loggerenberg participated in the Sikhakhane matter, the KPMG matter and the Nugent reports, and he had also been given the opportunity to participate in the OIGI investigation.

Ms Mvuyana: Like you’ve already stated, I think in the Sikhakhane, if I can recall, Adv Sikhakhane stated that he had interviewed Mr van Loggerenberg, in relation to the allegations made against him. KPMG, I won’t recall if they stated it. Nugent, I also don’t recall, I didn’t read that part. So it’s only the OIGI, where there Noseweek alleged that he had made some sort of statement to the OIGI.

Adv Bawa: So this doesn't actually fall within your personal knowledge?

Ms Mvuyana: Except for Sikhakhane and OIGI. Personal knowledge in terms of something I read or something I know that he told me?

Adv Bawa: Well, no. Just read the sentence that he “had been given the opportunity to participate in the...”

Ms Mvuyana: Had “apparently”.

Adv Bawa: Yeah, had “apparently, been given the opportunity to participate...”.

Ms Mvuyana: Yes, that’s why I put “apparently”.

Adv Bawa: Because it seems to be that an inference is drawn that even though he didn’t get 'audi' from the Public Protector, he got an 'audi' from all of these bodies, in relation to the issue of the SARS unit. But you don't have that kind of detail, do you?

Ms Mvuyana: No.

Adv Bawa: So I mustn't draw that conclusion from this sentence?

Ms Mvuyana: No, I don’t know if the “apparently” maybe is not put in the right place. But this is what was apparently the information that we had or I had, that some of the reports or especially Sikhakhane and the Noseweek article stated – that he had been given the opportunity. So from him directly I wouldn't have confirmation of that fact of course.

Adv Bawa: You then say in 36 “I am advised that the OIGI report...” Who advised you?

Ms Mvuyana: Mr Mataboge, and Mr... PP, sorry. “Seems to be the backbone...” okay.

Adv Bawa: “of the alleged dishonesty findings against the Public Protector". That's in the judgment.

Ms Mvuyana: Oh, yes. That is not Mr Mataboge, it was discussed with the legal team.

Adv Bawa: Which legal team?

Ms Mvuyana: PP’s legal team.

Adv Bawa: Okay, so they told you that that was the basis for the dishonestly findings?

Ms Mvuyana: Yes.

Adv Bawa: And you haven’t looked at the judgment in great detail?

Ms Mvuyana: Yes, mostly on the basis of the charges, so that’s alleged dishonesty and bias.

Adv Bawa: Right, so when you say “As explained below, this finding seems to be based on the demonstrably inaccurate premise that the Public Protector stated in her report that she had not seen the OIGI report which was anonymously dropped at our offices”. Was this also told to you by the legal team?

Ms Mvuyana: The inaccurate premise. The inaccurate, this is my assessment of the judgment in terms of when they speak about the fact that the Public Protector was dishonest in that she did not see the report. So it was put to me where in the report that is written, and I stated that it is not in the report.

Adv Bawa: Okay.

Ms Mvuyana: So that's where that comes from.

Adv Bawa: So let's accept that it’s not in the report, and you looked and you said that it’s not in the report. But you go a step further, and you say that the finding of dishonesty is premised on the demonstrably inaccurate premise.

Ms Mvuyana: It’s "it seems that the finding..."

Adv Bawa: Yeah, seems to be based, “As explained below this finding seems to be based on the demonstrably inaccurate premise...”. Is that your understanding?

Ms Mvuyana: That’s what it stated there.

Adv Bawa: Yeah, and you didn’t have regard to any of the affidavits she filed at court?

Ms Mvuyana: No, I did not.

Adv Bawa: Okay, go down... you say “However nowhere in the report does the PP ever say she did not see the OIGI report". We've also established that she also doesn’t tell them in the report – nowhere does she say that she does have the OIGI report. Do you agree with that?

Ms Mvuyana: Yes, as we’ve already discovered.

Adv Bawa: Right, and although you say it was “openly disclosed in correspondence with the Minister and other leadership of NIA”. Who’s the other leadership of NIA?

Ms Mvuyana: The Director-General, Dr Dintwe. It was the Minister, and other leadership, yes, Dr Dintwe, those I believe were the only correspondence referred to.

Adv Bawa: So...

Chairperson: Hon Gondwe?

Dr Gondwe: I just wanted to point out that Dr Dintwe isn’t part of the leadership of the NIA.

Chairperson: I can’t hear you.

Dr Gondwe: Dr Dintwe isn't part of the leadership of the NIA. He was the Inspector-General of Intelligence, so it's totally independent from...

Adv Mpofu: Chairperson?

Chairperson: You done? Okay, thank you. Adv Mpofu, sometimes you need to pull back from interfering before somebody concludes whatever they say.

Adv Mpofu: I apologise, Chair. Just drawing your attention.

Chairperson: Over to you.

Adv Mpofu: Chairperson, Dr Gondwe last week said that if the Public Protector wants to testify she must come and testify, and she said it speculating... playing a voice expert. Well I want to tell her if she wants to testify, she must just go and take the oath. It's not for anybody to say what information. The witness has been asked a simple question - what did you mean by the leadership of the NIA, she says she meant Dr Dintwe, that’s it. So if in fact Dr Dintwe works at Groote Schuur or whatever, that’s a matter for evidence not for a Member to come and testify about it. Thank you.

Chairperson: Okay, thank you. You will later get an opportunity for your questions, which you can point directly, but when you came in Adv Bawa was in the middle of responding to that, if we can allow her... because what I heard you doing, you were seeking clarity.

Dr Gondwe: I was seeking clarity, because she did acknowledge he was the Inspector-General of Intelligence, and now, you know, she’s saying that he’s part of the leadership of the NIA.

Chairperson: Put that as part of your questions. Thank you.

Dr Gondwe: Yeah, so I was seeking clarity on what exactly she was saying.

Chairperson: Note that for yourself.

Adv Mpofu: No, Chair. She was not seeking clarity; she was making a statement, giving evidence.

Dr Gondwe: I was seeking clarity; you can’t speak for me either.

Adv Mpofu: No, Chair. She was not seeking clarity.

Chairperson: Okay, okay... Adv Bawa?

Adv Bawa: Okay, I can maybe go back to my questions. You say in that sentence, before we come to the leadership of the NIA, you say in that sentence that “It was common knowledge that the report, or a version of it, had been anonymously dropped at the offices of the PPSA”. Common knowledge to whom?

Ms Mvuyana: To the Public Protector team.

Adv Bawa: To the Public Protector team?

Ms Mvuyana: Yes.

Adv Bawa: Because you don’t find that in the SARS report either, right?

Ms Mvuyana: Yes, as previously stated.

Adv Bawa: That’s not shared to do that. You haven’t seen the affidavits, because I've looked to see where that’s said in the affidavits. I'm not saying it’s not there, but I'm not sure that I could find it. What I do know from the judgment is that the counsel was attributed in argument to have put that forward to the court. So then we go...

Ms Mvuyana: Sorry, if I may. I'll just correct the NIA for Inspector-General of Intelligence. Thank you.

Adv Bawa: Did you ever listen to the recording of the meeting of the 31 January?

Ms Mvuyana: No.

Adv Bawa: You raise this issue about the declassified report was provided in November of 2019. Did you have a look at it afterwards?

Ms Mvuyana: No, the investigation was completed. There was no need for me to.

Adv Bawa: Now, one of the issues that came up yesterday, and I’m going to jump around simply, because... was a notice that had gone out on YouTube, and you were asked to confirm whether it was true that the section 7(9) notice to Mr Gordhan, which was issued on 3 June 2019 went out on YouTube prior to it being given to him. Do you know anything about that?

Ms Mvuyana: No.

Adv Bawa: If we take you to Bundle E... I’m not going to take you to it, it’s fine, you don’t know anything about it... You then were asked yesterday, as to the order of the subjects of the Public Protector Report and your answer was: Gordhan was the accounting officer, Pillay then followed Gordhan when he was appointed Finance Minister, and then Magashula followed Pillay. Did I understand you correctly?

Ms Mvuyana: Yes, but I may have gotten the dates wrong or who came before the other.

Adv Bawa: Yeah, because if I look at what they say in their affidavits, I don’t think it’s major, is that Magashula was immediately pointed as acting commissioner when Gordhan left to become Finance Minister, he was then appointed commissioner and he served as such, and Pillay became acting commissioner only years later when he resigned. So what you said yesterday wasn’t correct?

Ms Mvuyana: Yes, it wasn’t correct, in terms of who was the commissioner before the other.

Adv Bawa: Because I thought that was sort of an endeavour to say some order of importance or some scale of targets, primary as opposed to secondary... Is that what you sort to convey?

Ms Mvuyana: No, everyone who was an accounting officer, basically, is what I wanted to convey. The order wasn’t necessarily important.

Adv Bawa: Now, as a general proposition, if you investigate a government department and it comprises of ten people in this department, and they are all implicated in your investigation for some sort of maladministration. Would you interview them, or would you make findings against them individually, or do you only do that against the accounting officer of the department?

Ms Mvuyana: It would depend on the implication. If ten people within a certain department... the responsible person, so that is responsible for accountability of an institution is obviously the accounting authority or accounting officer. So in that ten the junior official that drafts the memo, for an example, would also be implicated as the drafter. So you would either make a decision to interview them or not, and then also make a decision whether the finding is against them or not. But our first point of accountability measure is accounting officer.

Adv Bawa: And let’s assume you have a department where there’s a DG, and you have three deputies - senior managements. And there’s thirty people working in the department and the three senior managers each control ten, and the entire division of ten is implicated... say, let’s call it division A, and you found that division A had acted unlawfully. Would you make a finding against the senior manager?

Ms Mvuyana: It would depend on the conduct that is being investigated. Not in all instances, but I’m saying it would depend on the conduct. Maybe you’d have to be more specific.

Adv Bawa: So when you make a finding, as in this case, that the SARS unit operated illegally and members of the SARS unit engaged in illegal activities, do you...

Ms Mvuyana: Sorry... it was Dr Gondwe, when I say “hmm”, looking at me.

Adv Bawa: Okay, so I was saying to you, you’ve now found in your investigation that the SARS unit and the members in the SARS unit have been engaged in illegal activities.

Ms Mvuyana: That’s the finding in the report.

Adv Bawa: That’s the finding in the report, right?

Ms Mvuyana: Okay.

Adv Bawa: Not only has it been unlawfully established, and for that you hold accountable the people who established it, but you’ve also made a finding that they’ve been involved in illegal activities.

Ms Mvuyana: Yes.

Adv Bawa: You would agree that you make that finding in the report?

Ms Mvuyana: Yes.

Adv Bawa: Now there are twenty-six members at any given time or not within this unit, but the finding is that this unit is engaged in unlawful activity. And as I understood your evidence early on, you didn't speak to any one person in this unit.

Ms Mvuyana: Yes, that’s true.

Adv Bawa: Right. Now, if you make a finding of a unit being engaged in unlawful activity, then the implication of that is, is that the people who are employed in that unit are engaged in unlawful activity.

Ms Mvuyana: It would depend, I don’t recall. Can you please go to the finding so we can read exactly how it was constructed?

Adv Bawa: Okay, right. Let me take you up to... there’s six things that you set out you’re investigating, and then I’ll tell you. Okay, go to 245 at 4.3, the following were issues considered and investigated, the first one is the Executive Members’ Ethics Act, the EMEA complaint.

Ms Mvuyana: Correct.

Adv Bawa: That EMEA complaint takes up very little of the report, would you agree? I think it’s four or five pages.

Ms Mvuyana: I’ll agree with you, I'm sure you wouldn’t mislead me on that.

Adv Bawa: All that you had regard to for purposes of the EMEA complaint is Mr Gordhan’s statement, the extract from the Parliamentary Hansard – which says what he said to Parliament, the extract of what he said to the Zondo Commission, and an analysis of a comparison of what Mr Gordhan said vis-à-vis that. I'm going to come to it in a bit, I'll take you there, I won’t mislead you. And then, whether Mr Gordhan had established an intelligence unit in violation of South African intelligence prescripts, and whether that constitutes maladministration. Right, and then in three, was the issue of the procurement procedures, right? For gathering intelligence and whether that amounts to maladministration. Four, is the recruitment of the people who worked in it, whether that constitutes maladministration. Now we come to five, whether the intelligence unit carried out irregular and unlawful operations, and whether this constituted maladministration. So in order to make a conclusion that the intelligence unit carried out irregular and unlawful operations, and it stands to reason that the persons who are in that intelligence unit carried out irregular and unlawful operations.

Ms Mvuyana: Do you want me to answer before we go to the finding?

Adv Bawa: Yeah.

Ms Mvuyana: I requested to go to the findings, so that we can see the actual drafting.

Adv Bawa: If you look at 4.3.5, if you read it, “Whether the intelligence unit carried out irregular and unlawful operations...” and whether that constituted maladministration.

Ms Mvuyana: Yes, the unit consisted of members, so employees. They would then be the ones that would have allegedly carried out irregular and unlawful operations, allegedly.

Adv Bawa: And then you come to paragraph 5 of the report. 5.1, you’ll see it will start at... Let me just see the numbering. Okay, yeah, it’s 250, you see it starts at 5.1, it’s 250, and if you go down, you apply the legal principles. You see the conclusion on 254, which is said to you four pages. On the issues... right, so that’s the first thing on the EMEA complaint. And the high-water mark of that finding, which the court then finds to be irrational is that it is the conclusion in 5.1.15, his response is misleading and does not seem like a bona fide mistake, and therefore the conclusion is made that he deliberately mislead Parliament. So that was based on three issues, and the court has reviewed and set that aside as irrational. But, I want to take you to the second investigation, is the establishment of the SARS intelligent unit... go down, at 5.2.1, okay. And if you look at, you first detail the SARS response in a few paragraphs. This is but a snapshot of the actual response you get, it’s much lengthier, correct?

Ms Mvuyana: This is the letter, and then there’s annexures attached.

Adv Bawa: Okay, so the report has annexures attached?

Ms Mvuyana: No, we don’t attach annexures in our reports.

Adv Bawa: So... sorry, I misunderstood your response. You talked about annexures.

Ms Mvuyana: When SARS responds to our allegations letter, which would detail the allegations and also request documents and any other information that they can provide. SARS then, or most institutions – we prefer them to do that actually, will then write a response to each allegation either saying that they deny or do not deny and accept the allegation. And then they will put supporting documents as annexures to that specific allegation. So it won't be here, usually that is now the evidence that will detail - that will be your memos, your invoices et cetera, depending on what you ask for.

Adv Bawa: So when you detail in 5.2.5 a reference to the Nugent commission, you are detailing what SARS referred the PP to, in respect of the Nugent commission, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Bawa: Right, okay, and then if you go to 2.57 at 5.26, you then refer to this memorandum requesting funding which Adv Mpofu took you to at length. And I want to come back to that in a moment, but let me take you to where I was initially going. You then see quite a bit... I want to take you to number 5... The findings against the unit would be 5.5, page 299, right at the bottom. So regarding whether the intelligence unit carried out irregular and unlawful operations, and whether this constituted maladministration, right? So we look at the common cause issues, just to refresh your memory... let’s go down. And then you refer to an interview, information regarding the recordings of Mr van Rensburg to Adv Brassey. Did you have Adv Brassey’s report?

Ms Mvuyana: I believe so.

Adv Bawa: Okay, I’m going to flight it and double check during the lunch adjournment, because I don’t think...

Ms Mvuyana: If it’s not listed as one of the reports in the SARS report, then no, I don’t think I had access to it.

Adv Bawa: Right, so effectively we know that you didn’t have any affidavit from Mr van Rensburg, and it's sort of a double hearsay.

Ms Mvuyana: Yes.

Adv Bawa: Right, go down...

Ms Mvuyana: Sorry, double hearsay?

Adv Bawa: He says it to Adv Brassey, and you get it from the recording.

Ms Mvuyana: Okay.

Adv Mpofu: Chair?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: I’m sorry. I’m trying to help, it's not an objection. I seem to recall that the Brassey opinion or report or whatever is listed as one of the documents. It might not be in the report, maybe one of the drafts, but if I find it. I’ll point it out to you. Thanks.

Chairperson: Thank you for that. Adv Bawa?

Adv Bawa: So Mr van Rensburg is the sole source up until you come to 5.5.9. Did you by any chance speak to Mr Gerrie Nel?

Ms Mvuyana: No.

Adv Bawa: And he would be readily available, if anybody wanted to speak to him about any of this. Would you agree? You would be able to find him.

Ms Mvuyana: I believe so...

Adv Bawa: You then look at information, and this is a recording which you get from SARS, from Mr Lombard and Mr De Waal, right? That they give Mr Moyane. And these were recordings that were quite dated by the time they came to you, they hadn’t been recorded recently, correct?

Ms Mvuyana: Yeah, not as recent as 2019.

Adv Bawa: Yes, right. And that was the sole source of information as recorded in the report apart from what... go down so that we can see what the next recording is. The next heading is at 5.5.19, we see Mr Gordhan denying it, we see Mr Pillay... go down and then you’ve got a heading that says, “Independent evidence obtained”. It says, “Other operations conducted by the CBCU included surveillance operations (of premises), following of vehicles, obtaining information from confidential sources”. Now do you recall where that information came from?

Ms Mvuyana: I believe from either the whistle-blowers or the... not the whistle-blower, the anonymous emails and I believe there were pictures as well.

Adv Bawa: These anonymous emails are not part of the Rule 53 record, are they?

Ms Mvuyana: I can’t recall. I can’t recall...I’m just saying maybe from the emails, and pictures as well. I can’t 100% recall where it came from.

Adv Bawa: You see, I scoured through the Rule 53 record and the supplementary Rule 53 record to ascertain where this came from. And the reason why I'm raising it is because the court also in its judgment raises some concerns about it, to do that.

Chairperson: Okay, just a pause. Adv Mpofu?

Adv Mpofu: Thank you, Chair. Yes, I found that reference, it’s in the draft report of the 1 July, page 6458, where item 4.4.2.12 is a copy of a legal opinion of Adv Brassey, dated 11 November 2014. I do accept that it didn’t find itself into the report; I just wanted to point that out. Thanks.

Chairperson: Thank you, Adv Mpofu. Back to you, Adv Bawa.

Adv Bawa: So with that interjection of Adv Mpofu, what must we make of that Ms Mvuyana? If the...

Adv Mpofu: No, Chairperson? You can ask me, what must we make of that...

Adv Bawa: Can I finish the question, please?

Adv Mpofu: Yeah, well, don’t put it to the witness.

Adv Bawa: I can put it to the witness in a different context. Let me finish with this.

Adv Mpofu: Okay.

Adv Bawa: Adv Mpofu says that the Brassey opinion appeared from the list of documents in a draft version of the report, but it doesn’t appear in the final version of the report. Now what must we make of that? That is was taken out?

Ms Mvuyana: I don’t know.

Adv Bawa: It’s clearly referred to in the SARS report, you agree? I just took you to a place where it’s referred to.

Ms Mvuyana: In van Rensburg?

Adv Bawa: Yeah.

Ms Mvuyana: Yes, you took me there. But we’d have to see the draft that Adv Mpofu is referring to, and so I can recall if or not it was removed. Is it still in the same place, then we go to the report to check if it’s there. And then I'd have to try and recall why we would have removed it, if we did.

Adv Bawa: Adv Mpofu says it was at 4.4.1.12... Am I right? 4.4.1.12. Yeah, it’s not there, it’s 4.4.1.12, are all the letters dealing with the OIGI.

Adv Mpofu: Chair, sorry. Just so that the record doesn’t show that I was misleading the Inquiry. I think Adv Bawa is mixing two different reports. What she’s correctly saying is that I identified 4.4.1.12, but not of the report, of the earlier draft. Thanks.

Adv Bawa: And I understood the witness to be saying if it’s not where it was in the next draft, then she needs to figure out why it was removed from that location. Is that?

Ms Mvuyana: The first draft might have had different numbering even from... so the final report, it will be – it might be paragraph 5. And in the first draft, it might have been paragraph 4. Final numbering check is done at the final stages, because when information is put in, deleted, the numbering changes, depending on the word or the laptop or machine that you’re using to draft.

Adv Bawa: Sorry, we were... Can we go back to the page we were at? 250 something, there we go. Right, so your independent evidence obtained relates to one line in the report, and then you refer to submissions of a Mr Manyike, and that was provided to the Public Protector during the investigation that had been undertaken by Mr Madiba previously. Would that be so?

Ms Mvuyana: Correct. The closing report was signed by Mr Madiba; he did not conduct the investigation.

Adv Bawa: Right, he was in charge of...

Ms Mvuyana: The team.

Adv Bawa: The person who conducted the investigation reported to him in the first instances

Ms Mvuyana: Right.

Adv Bawa: And he concludes in the closing report that the PP didn’t have the requisite capacity to undertake this investigation. Do you recall that from the closing report?

Ms Mvuyana: Yes, I do.

Adv Bawa: Right. And what capacity did you have or Mr Madiba didn’t have or thought he didn’t have to undertake the investigation this time around?

Ms Mvuyana: I can’t answer that question, because I don't know what Mr Madiba was referring to when he said capacity. I know when I spoke to the investigator who was in charge; we did mention that there were backlogs, not enough investigators. He also took some time to actually attend to the matter, so that could have also been categorised as a capability - a person to actually investigate or to sit down and actually attend to the file is also, could have also been a problem. So I won’t know what Mr Madiba or the investigator said, or why they said that.

Adv Bawa: And so you relied on this on the documentation that had been provided by Mr Manyike. Did you interview Mr Manyike?

Ms Mvuyana: No, we could not get a hold of him.

Adv Bawa: And this information that he provided the Public Protectors office was not an affidavit, correct?

Ms Mvuyana: No, it was almost like a submission of some sort he drafted. It wasn't an affidavit.

Adv Bawa: And what did you do to ascertain or check the veracity of the contents thereof?

Ms Mvuyana: Please explain.

Adv Bawa: The authenticity, the legitimacy of the contents of the submission. Check whether what is sent by him is true and correct.

Ms Mvuyana: We just put the information as in when a complainant provides us with information we capture it in the report as well. Then from that, you then combine that information with the information that would have been submitted, as well as evidence submitted by the respondent department and then come to your conclusion.

Adv Bawa: So you didn’t do any independent investigations?

Ms Mvuyana: Like what? Maybe let’s go through what he’s saying.

Adv Bawa: Okay. He makes certain submissions, that’s his submission. You've transported it into the report. Let's go down... right, okay. Go down... You then applied the legal principles. You didn’t have any other information, besides what the denial on the part of the SARS Gordhan, Pillay, and what you were provided for essentially by Mr Manyike.

Ms Mvuyana: Yes.

Adv Bawa: And you took what Mr Manyike said at face value?

Ms Mvuyana: Yes, we took it and put it as he stated. I think there is a sentence where we state that this was also corroborated by the information that we had from Mr Lombard. So, yes, I guess, if that answers your question.

Adv Bawa: Right, so on the one hand you have Mr Pillay and Mr Gordhan on affidavit, and on the other hand you have Mr Manyike in his submission, and Mr Lombard on a recording, neither of which is verified. Would that be true?

Ms Mvuyana: I wouldn’t know about verification, but that’s the information that we had.

Adv Bawa: You the investigator, did you check whether any of the recording or the submission could be corroborated independently in any other way?

Ms Mvuyana: No.

Adv Bawa: Did the PP in the Mail & Guardian in a fashion say to you, you have to go and independently investigate this to check the veracity of the allegations contained therein

Ms Mvuyana: No, I do not recall, no.

Adv Bawa: See, I wanted to take you to what the judgment has to say, at paragraph 182. Which you’ll see at page 681.

Chairperson: Just repeat the paragraph.

Adv Bawa: 182, right? “By dismissing Mr Pillay and his evidence out of hand...”. Because that's essentially what occurred, isn’t that so? The version that was put up by Mr Pillay and SARS was rejected in favour of the version that was put up by Mr Manyike.

Ms Mvuyana: Are they referring to the reports or the affidavits?

Adv Bawa: They referring to the affidavits put up my Mr Pillay, before the report.

Ms Mvuyana: In response...

Adv Bawa: No, before you, this is not, they’re not referring to Mr Pillay in the court proceedings. They referring to Mr Pillay in respect of what was submitted to the Public Protector.

Ms Mvuyana: Okay, and can you please repeat the question.

Adv Bawa: Sorry, let me not, I don’t want to put you in... Go up to 180... That’s the context in it, and the complaint is the failure to deal with Mr Pillay’s evidence. He responded “in considerable detail, to the complaints enumerated by the Public Protector in his first affidavit...” and then she set out her considerable findings, that’s in the provisional notice. And then they deal with that, that the sole reference in the notice to the content of his first affidavit was a terse recordal of a few submissions made in his affidavit. So he had very little space in the 66 pages. And regarding the allegations that the unit was unlawfully established, and a redacted and inaccurate recordal of what Mr Pillay stated in his affidavit regarding the allegation that SARS had “irregularly procured costly intelligence equipment which the intelligence unit used for gathering”. “a dismissive response to the contention in Mr Pillay’s affidavit dated 23 April 2019 that the Public Protector had previously investigated and satisfactorily resolved complaints relating to the recruitment...” go down a bit, I want to switch past that... And then Mr Pillay puts in another affidavit setting out his detailed factual responses. And then the court says that his evidence was dismissed out of hand, and that what was dismissed was the only evidence that served before her on oath, and “uncritically adopted, under the guise of conducting her own investigation, the unattributed and anonymous complaint that was delivered to the office of the Public Protector by Mr Manyike on 21 February 2012”. That was the one that was declined... and then, go down, because I want to come to the CBCU thing. In the report the Public Protector describes the complaint as “submissions of Mr Keletso Manyike” and states that he was “employed as a specialist agent with the CBCU”, right? It is common cause that he is not a specialist agent, and Mr Pillay and Mr van Loggerenberg disputed that the complaint originated from Mr Manyike, and that it had actually been lodged by someone named Dottie Modiane, right? The Public Protector in the report continued “attributing certain allegations concerning the operations of the unit to Mr Manyike as if he had testified before her to this effect. She did not investigate the origin of the complaint or the veracity of the allegations made in the complaint”. That is correct right? There was no investigation of the origin of the complaint or the veracity of the allegations made there.

Ms Mvuyana: The 2012 complaint is, because in the report, I think it's 2014. So are they the same investigation? Yes, I know Mr Manyike has complained, but as far as I can recall it’s a 2014 complaint.

Adv Bawa: Yes...

Ms Mvuyana: I don’t know anything about a 2012 complaint.

Adv Bawa: I think it was initially opened in 2012, and then additional information was provided in 2018... 2014, sorry. And the complaint was finalised by Mr Madiba only in 2017. I’ll show you the reference, I’ll find it for you during the lunch adjournment, but let’s just go down... Go to paragraph 200. All right, “there are also numerous placed in the record which are demonstrative of the fact that the Public Protector had, prior to the writing of the report, documents in her possession which plainly showed that the unit never procured or used any unlawful, clandestine spying equipment. In the report the Public Protector made certain findings that attributed the listed equipment directly to the unit in question, that is SPU/NRG and HRIU specifically. She did not attribute it to ACAS, or Customs, or to the CBCU, but to the ‘unit’ “. Do you know what ACAS was, do you recall?

Ms Mvuyana: No, I do not recall.

Adv Bawa: It was the anti-corruption and security unit, which was a standalone division reporting to the General-Manager, risk and enforcement, related to the SARS commissioner. That was an entirely different unit to the SARS unit that was under investigation. And one sees that from footnote 43 of the judgment that describes what the unit is about. And then, the Public Protector found that the procurement of intelligence equipment utilised for the unit was improper and amounted to maladministration. Then the court says the “listed equipment in the report and Rule 53 record are used to seemingly support this as evidence...on closer inspection, this is not so. There is no evidence whatsoever, that demonstrates any of the impugned equipment to have been procured by SARS for the unit, used by the unit or that the unit even knew of such equipment. All procurement files in the Rule 53 record, dated from 2009 onwards, until after Mr Moyane took over at SARS, points to ACAS. The files include motivations, quotes, and approvals by ACAS, and signatures by ACAS staff. None of it can, however, be described as ‘wiretapping’ or ‘interception’ equipment”. And then it goes on, it says “In the report, the Public Protector sets out in detail how ACAS procured equipment for ACAS in 2009. At paragraph 5.3.18 on page 64, the unit is simply ‘slipped in’. At page 65 of the report the Public Protector dealt with the so-called ‘Mahlobo list”. Again, all these items can directly be found under the ACAS procurement records in the Rule 53 record. The same goes for the items dealt with on page 66: it is all part of the ‘ACAS list’ and/or the ‘Moyane list’. (Pillay’s affidavit annexes a newspaper article, complete with photos and the description of these items, donated by the US Customs, taken by SARS in June 2017, long after Pillay had left SARS and long after the unit had closed down). Nowhere is the unit referenced, listed or reflected in any of the procurement or payment documents”. Go down... and this is the part I want to take you to “After listing the ‘evidence’ the Public Protector then found that ‘although SARS failed to provide me with documents relating to the procurement of equipment for the CBCU, NRG and subsequently the SPU, evidence at my disposal confirm the existence of such equipment as well as the acquisition thereof’ - This is untrue”. Do you see that?

Ms Mvuyana: Yes.

Adv Bawa: Right, I'm not going into a debate with you as to whether the judgment is right or wrong, the judgment is what the judgment is. The reason I’m putting that to you, is because you had said earlier on that the underlying dishonesty attributed to the Public Protector was to be found in the IGI report. And what I’m pointing out to you is that the court also says that the finding isn’t true, in paragraph 202 of the judgment. The court then goes on “There was no evidence available to support the findings made by the Public Protector. As stated, all the documents in the Rule 53 record had nothing to do with the unit and all related to ACAS. It even included photos taken by the SSA at SARS office B3, Riverwalk offices, which was the storage for ACAS. There was no evidence that demonstrated any procurement of any equipment by the SPU, NRG or HRIU from 2007 to 2014, except for the list supplied by Mr Pillay in his second affidavit in reply to the notice and subsequently confirmed Mr van Loggerenberg in his affidavit. Moreover, the Public... just hold on Adv Mpofu, just let me finish. “Moreover, the Public Protector could easily, by invoking her powers of subpoena, have obtained further documents and viva voce evidence from various persons, who would have assisted her in avoiding arriving at an illogical and unsupportable conclusion about the equipment”. And the conclusion found in the report, and that the court finds to be illogical and unsupportable, is in paragraph 203 of the judgment where he quotes from the report. And this is a verbatim quote from the report, but let’s just read it from here. The Public Protector finds in the report “It is extremely impossible that a unit carrying out investigations on behalf of SARS would not have procured equipment for the fulfilment of its duty and functions, as admitted to in so many instances and at so many levels. The only contention by SARS being that it was not conducting illegal operations”. - “This is a peculiar statement to make. How does no evidence become evidence?” The Public Protector then proceeds to make the following finding “if its operations were lawful, it is unclear why SARS and/or its former employees would keep the procurement of equipment such a guarded secret”. And I understand, Ms Mvuyana, the guarded secret to come about, because the information wasn’t provided to the Public Protector. And because it wasn’t provided to the Public Protector, the conclusion that she comes to is “I can only come to the conclusion that proper procurement processes were not adhered to, and that such conduct amounted to the violation of the PFMA and thus constituted improper conduct...” under those provisions, it then says “I am of the firm view that the failure and blatant refusal of SARS and its former employees to provide me with records of the procurement to confirm the purchasing of the said equipment and the whereabouts thereof is suspicious...” go down, “and unwarranted and is aimed at perpetuating the narrative that there was no such intelligence unit at SARS”. And then the court then says “The reasoning adopted by the Public Protector in coming to these findings, in light of the evidence available to her at the time of the report, is illogical and clearly fallacious. For the Public Protector to conclude that the unit was in possession of equipment capable of being used to conduct clandestine activities in the absence of SARS providing the office of the Public Protector with such a list of ‘spying equipment’ is astonishing”. Go down... and then they say you come to the conclusion by adopting a “flawed finding of the Sikhakhane panel” and effectively it says that not even Sikhakhane found equipment for wiretapping and interception. Instead, Sikhakhane found as a general rule “it was accepted that the unit did not have the required equipment to carry out such electronic surveillance or interceptions”. So, Ms Mvuyana, if I look at the court judgment, and having looked at the documents in the Rule 53 record, it doesn’t appear that on any of the information that was before the Public Protector, as found by the court, could those conclusions be borne out by what was put into the - what served before the Public Protector for purposes of the report.

Ms Mvuyana: I cannot comment on that, since you don’t feel that the evidence or the double hearsay evidence is evidence. So do I say then? Because you’ve made the conclusion.

Adv Bawa: No, no, I haven't made the conclusion. I've said to you, I've asked you have you done any independent investigation.

Ms Mvuyana: Yes.

Adv Bawa: And you indicated to me that you hadn’t done any independent investigation. You relied on Manyike, Lombard et cetera. So I'm asking, I asked the question, on the one hand you had this unverified information, you have powers of subpoena, you have powers to obtain – very wide powers, and on the other hand you have affidavits from Gordhan, Pillay, and Magashula. You don’t exercise the powers as the Public Protector, and you accept this uncorroborated evidence to make findings against him. And I mean uncorroborated in a sense that if you put evidence forward, you must either have interviewed the person under affidavit, as you do when you summon Mr Pillay and Mr Gordhan to the offices, or at the very least you have affidavits done under oath. But the Public Protector had none, would you agree?

Ms Mvuyana: From van Rensburg, De Waal and Lombard?

Adv Bawa: Yes.

Ms Mvuyana: I agree.

Adv Bawa: So when you balance it, on the one hand you have evidence, and on the other hand you have documentation and information that’s been put up without any verification. And so the story, let me not say the story... but it is then said, and again, it’s not coming from me, I’m trying to show you where it comes from. That this was such an imbalance in what was before her, to have come to the conclusion she did. She must have been informed by bias, if I’m taking it to the conclusion of which is reached.

Ms Mvuyana: You will have to be more clear. So you're saying that what is said in the judgment and what is contained in the report is where the allegation of bias comes from?

Adv Bawa: Yeah, in 178, Mr Pillay contends that the Public Protector relied on fundamentally flawed and discredited reports of others, applied a process of irrational reasoning and flawed logic showing a clear pattern of bias, in doing so – that’s the wording of the judgment, not mine.

Ms Mvuyana: Okay.

Adv Bawa: I’m wanting to engage with you on it, without it being attributed to me, in any way.

Ms Mvuyana: Noted.

Adv Bawa: And I’m not for a moment doing that. And that is what informed on the affidavits before the court, the findings at the court comes to about bias in respect of the part of the Public Protector.

Ms Mvuyana: Okay, yeah. I guess I agree if you say that the judgment... yeah, okay.

Adv Bawa: Right, and it stems from a closing of a mind to the evidence that was put before her. And that’s why it might seem on the face of it, that this issue about whether Mr van Loggerenberg was found or not, becomes far more relevant in the greater scheme of the question of bias. You understand what I'm saying to you?

Ms Mvuyana: Yes, I understand what you’re saying.

Adv Bawa: Now, if we shift off that for a moment, right? You did this exercise of showing us between an Investigator, Senior Investigator, Chief Investigator, Executive Manager, COO and Public Protector. Now if I take you to 185.45 of the documents that came from the CEO's office. Oh, 189, right? We had investigators tell us, as a general proposition you have structures within the Public Protectors office that is aimed at improving on the quality of work that emanates from it. So when you do reports and when you do section 7(9)s, you present to a think tank or you present to task force or you present to... I can't keep them straight chronologically as to how, but let’s call it some sort of a structure which is aimed at improving the final product, would that be a fair assessment to say?

Ms Mvuyana: Yes, correct.

Adv Bawa: Okay. I have not come across one document in everything that has been provided to me by Mr Mataboge, in the documents that has been forwarded to me, that shows that an EM or a COO had had input or made comments or improved on the section 7(9) notice or the report in respect of the SARS unit. And I'd like your comment on that, because what I do find is, I see it goes from you to Mr Mataboge, straight to the PP.

Ms Mvuyana: Yes, that is true. At some stage I believe there was no acting COO, or the one that had just arrived was fairly new, but ultimately that was a decision of the Public Protector.

Adv Bawa: So during this period, and we had evidence to this effect. One of the answers given to us was that it was Ms Mogaladi, but that she had been suspended. Do you recall that?

Ms Mvuyana: Yes, I do recall, but I think I gave you that answer actually. If not, but I did check. Ms Mogaladi was only suspended in October so she would have still been the EM for GGI, during the time of the investigation.

Adv Bawa: In fact, she was appointed on the 1 November 2018. And the last involvement I see her as having is in the correspondence on the 20 February, that goes out to the Minister of State Security.

Ms Mvuyana: That’s possible.

Adv Bawa: Did you present your report in any forum which included the Chief Investigator or the EM in any way?

Ms Mvuyana: In a forum?

Adv Bawa: Yeah, like you know, these structures.

Ms Mvuyana: Thank tank?

Adv Bawa: Yeah.

Ms Mvuyana: No.

Adv Bawa: And there was also no involvement of the COO who was appointed on the 1 February 2019, Ms Basani Baloyi, who was there for six months.

Ms Mvuyana: Okay, we've established there was no think tank. I don’t even, I’m not even sure if think tank was actually functioning at that time, at all, with all reports, I’m not sure. To Ms Baloyi, to actually go to her and present or if she saw the document?

Adv Bawa: You see, and it’s not a trick question. You have a system in the Public Protector’s office that reports get circulated, and comments is made on reports, that then comes back to the investigator who then incorporates all the comments that’s made, and it goes up and when everybody’s happy then the draft goes to the Public Protector, or it’s given to Mr Kabinde to pass on. That seems to be the ordinary course, would you agree with that?

Ms Mvuyana: Yes.

Adv Bawa: That does not occur in the SARS unit report.

Ms Mvuyana: Yes, I sent Mr Mataboge. So I don’t know who he could have shared with, but I never received comments from Ms Mogaladi or Ms Baloyi on those documents.

Adv Bawa: So the only changes that could have been made to the report were either made by Mr Mataboge or the Public Protector?

Ms Mvuyana: Correct... Oh, there’s also quality assurance, sorry. There’s that structure that’s in the COO’s office.

Adv Bawa: You see even on quality assurance, I think sometimes even on the Bosasa matter for example, there was a very similar reporting line. Mr Sithole comes in to look at the report, but I don’t even find anything. I'm not saying, and I can’t say to you unequivocally that it didn’t happen, I'm asking you. I have not seen any input into the SARS unit report from Mr Sithole or any other person on quality assurance. And I'm asking you whether you had received any feedback from anybody?

Ms Mvuyana: I’ll have to check, because like I'm saying from Mr Mataboge, it would have had to go to legal services or quality assurance. Quality assurance, I recall that there were some emails sent between myself and the investigator responsible for that unit. The document, I'm not sure why it would have not been attached to the email or if the inputs were made verbally, that’s also possible.

Chairperson: You want to throw your last questions, so then we go to lunch.

Adv Bawa: I just need to take you, so that I don’t misrepresent something. I just want to check a reference, it’s 189.16, and its 4365. I may have found a bit of quality assurance, I’m just not sure if it’s Bosasa or SARS unit. Let's just check it. 4365, item 189.16. Go down... I think this is a hint that we should just adjourn for lunch. We can just... I'll check it, and if it’s applicable, I'll put it up. Go down... go down... go down...

Chairperson: Is that what you’re looking for Adv Bawa?

Adv Bawa: So if you go to the bottom, right to the bottom of the document, right? The Pillay matter, is the Pillay pensions matter, you were not involved in the Pillay pensions matter, correct?

Ms Mvuyana: Correct.

Adv Bawa: So, so, right? And then Mr Sithole says... and the date is also wrong, because your report would have only been available at the end of June, beginning of July, it’s not May, am I correct?

Ms Mvuyana: Yes.

Adv Bawa: Right, so, this is a... okay, this could be the 7(9) notices that’s being referred to.

Ms Mvuyana: It’s possible; it’s just there’s no subject matter.

Adv Bawa: It says “PG” on the top if you look.

Ms Mvuyana: PG is...

Adv Bawa: But you wouldn’t be quality assuring a report at this stage. I think it’s the Pillay matter, Ms Mvuyana. If you go up...

Ms Mvuyana: We wouldn’t have remedial action at this stage.

Adv Bawa: Yeah, the Pillay matter comes out I think around mid-May or that part of end of May. Okay, so that’s the only quality assurance during this period that I've come across to do that.

Ms Mvuyana: Okay, but yes, so Rodney, me, Mr Raubenheimer, Mr Sithole. I guess you don’t have the email with the other QAs, but it’s fine, the QA at some point did touch or read the report and made inputs. I don’t know how you did not get that information.

Adv Bawa: Well if you... Chair, just one minute, because it’ll be good to just finish this. If you look at the 189.45 documentation that is provided in the response received, and maybe we don't even need to go there because you have it. In the response received, you yourself don’t provide us with anything. We asked for the name of the EM or supervised investigations of quality assurance in respect of the Bosasa matter and the answer was no. And in respect of the other matter, we have no information of any involvement of anybody in respect of the SARS unit matter.

Ms Mvuyana: Can we go down... thank you.

Adv Bawa: Chair, shall we give Ms Mvuyana a break?

Chairperson: I’ve long wanted to do that, we were waiting for you. We will have a lunch break colleagues, and be back at ten to two. Thank you, for the next 45 minutes.

[Break]

Chairperson: Welcome back... we resume with our work, Adv Bawa and Ms Mvuyana. Over to you, Adv Bawa.

Adv Bawa: We were told that we can just pick it up, on the last subject about the EM/COO involvement. Mr Mataboge suggested to the Committee that the reason for the smaller investigation team was to avoid leaks. Were you involved in reports where the EM or the COO of the unit was said to be leaking documents of any kind?

Ms Mvuyana: No.

Adv Bawa: The effect of the system of reporting from the investigator upwards, by knocking out a few of the rings of stages – the consequence of that is that the only place you then get guidance on how the investigation should go is then your immediate Senior Investigator, your Chief Investigator and the Public Protector?

Ms Mvuyana: Yes, if that was done.

Adv Bawa: Then were you involved in the preparation of the 7(9) in the Bosasa investigation?

Ms Mvuyana: No.

Adv Bawa: Is that Mr Njabulo?

Ms Mvuyana: Njabulo is a quality assurer; I don’t believe he was involved in the investigation.

Adv Bawa: Okay, so it seems... so we’ve gone through the issue of the equipment that I showed you, and it seems as if you going to be looking at a determination on the lawfulness of the unit. I want to put the proposition to you. And I was thinking about it, you would have to look at what those unit’s operations would be in the period in which it operated, what activities occurred during those operations and its outcomes, and which unit members participated in those activities, and what laws or powers had been contravened when those operations took place. I wanted to put the proposition to you that if you don’t do that, you can‘t come to a conclusion as to whether the operations are lawful or not.

Ms Mvuyana: Yes, correct.

Adv Bawa: Right. Then I want to take it... and Adv Mpofu the reference was 192, page 6072, for the affidavit of Mr Lebelo. Can you go there please, 190.2, 6072. You get an email from the Public Protector that just says “Find attached” with a document and with no further details. You see that?

Ms Mvuyana: Yes, I see it. I don’t see my name.

Adv Bawa: Ignore the date above, that’s just a printing date. The date that you get this email is the 7 December.

Chairperson: She says she doesn't see her name on the email.

Adv Bawa: Oh, sorry. Sorry, yes. It goes to Mogaladi and Mr Mataboge. Let me go down... what’s attached to the email is a supplementary affidavit. Go down... it was submitted to Judge Nugent, are you provided with a copy of it?

Ms Mvuyana: Sorry, I don’t recall this affidavit. Yeah, I'll just stop there, because there’s other issues.

Adv Bawa: Let’s stop there, but you didn’t get this affidavit.

Ms Mvuyana: Yeah, as far as I can recall.

Adv Bawa: We know from the information provided to the Evidence Leaders, there was a meeting on the 11 December with Mr Lebelo. Were you in attendance on that meeting?

Ms Mvuyana: Yes.

Adv Bawa: Okay, thank you. I want to take you to 5979, it’s 190.1, sorry. 5979, right. You'll recall that Adv Mpofu asked you about this email, with the last... go up to the top of the email. This is sent on the 8 November, this is also not sent to you.

Ms Mvuyana: Yes.

Adv Bawa: Is this given to you?

Ms Mvuyana: It could have been – we were printing a lot at this time. So Mr Mataboge would have printed it. If it relates to any investigation that I was conducting… so I'm not involved in this – the 2001 investigation, if there is an investigation that was conducted.

Adv Bawa: Right, Mr Mataboge’s evidence was he got it from the Public Protector for purposes of noting. You suggested yesterday that it came from a complainant. How do you know that?

Ms Mvuyana: No, I was asked to comment on the style, I believe. And is this the style of the Public Protector... because I cannot confirm that it came from a complainant. There’s no... It says from Adv Mkhwebane.

Adv Bawa: And it was put to you that there was no name on the top of the email addressed to anybody.

Ms Mvuyana: Yes, at the beginning of the email. Dear Public Protector, or dear Bianca, or dear Rodney.

Adv Bawa: But that's not uncommon for the Public Protector, because I’ve seen several emails where she gives a range of instructions and it’s not just anybody in particular.

Ms Mvuyana: To the team?

Adv Bawa: Yeah, even to Rodney. I mean the previous email which we’ve just looked at, she just forwards it, there’s nothing, there’s no “dear” or whatever on it.

Ms Mvuyana: Okay.

Adv Bawa: But you have no personal knowledge about this?

Ms Mvuyana: I don’t recall this email. Like I say, it probably would have been shared, if it contains any investigation that I was involved in.

Adv Bawa: Yes, but the previous email had an affidavit that wasn’t shared in respect of an investigation that you were involved with.

Ms Mvuyana: Yes.

Adv Bawa: Okay, let’s go to this anonymous complainant that comes in, scared whistle-blower. Either all the documentation and emails wasn’t discovered, but I got lost somewhere along the line. If you go to your... you get this complaint in, your write to him and you say you want a meeting in order to do that, right? He then sends you an email back, and he says to you, I can come in December and we can have a meeting. And I think that email is at 593, I don’t think you... do you recall the exchange?

Ms Mvuyana: Yes, can you please screen it though? Because I want to see the dates.

Adv Bawa: Okay. It’s 5930, right? He tells you on 22 October – I’m in South Africa in December, can we schedule an appointment then. This is even before Floyd Shivambu’s complaint lands in November.

Ms Mvuyana: Yes.

Adv Bawa: And before it's allocated to you. You’ve already got this one allocated.

Ms Mvuyana: That’s correct.

Adv Bawa: I don’t see you responding to this email.

Ms Mvuyana: I did not.

Adv Bawa: So you didn’t set up a meeting with the complainant for December?

Ms Mvuyana: No, unfortunately. I remember this time, on the 25th I was on leave. I was even on leave I believe from Monday, on this Monday, and did not come back into the office. I was on leave for about two weeks. So when I arrived there, I have an allocated file, then from Mr Shivambu. So no, the meeting was not set up.

Adv Bawa: So the next email I find related to this, so the scared whistle-blower continues to communicate with you, and he sends you odd emails, because I see he sends you stuff periodically on...

Ms Mvuyana: I remember from the evidence I was sent to by Ms Fatima, that I think he communicated in April 2019, yeah.

Adv Bawa: So if we go to 5930, this is when Mr Gordhan says to you that – says to the Public Protector that he wants to interview the complainants. And the PP then responds at 5930, you’re not included in this email but I just... and this is where I get lost a little bit. The PP then responds “I see they request interviewing witnesses and want section 6(9) reasons”, just to make a point, can you see? This email is also not addressed to anybody.

Ms Mvuyana: Oh yes, noted.

Adv Bawa: “Prepare a response whilst finalising the report. We cannot reveal identity of US based anonymous because we do not know...” How did you know it was US based?

Ms Mvuyana: Does he not say in his email?

Adv Bawa: No.

Ms Mvuyana: Can we go back to the email?

Adv Bawa: Sure.

Ms Mvuyana: He does not reside in SA. I'm not sure then how the PP would know that... Let’s just double check if it doesn’t say he’s in the States. Okay, then I'm not sure. Either it’s possible that the PP could have heard it from us, I’m not sure.

Adv Bawa: If you go down to the original message, if you go to the original complaint, there’s no mention on the original complaint that he’s based in the US either.

Ms Mvuyana: Either, yeah, no, I agree. It's not mentioned. Well, we can go back to PP.

Adv Bawa: So I just raise that with you, if you go down... you’re not included in this so let me not waste your time. There is a number of other information, like the Gene Ravele information, that is also referred to in the report. Do you recall that? It relates to the evidence of illegal surveillance that was provided to you. If we see from the judgment, which is probably the quickest way to pick it up. Okay, then let me move on, I can’t find the reference quickly, it wasn’t... Mr Shivambu then tells you, if you see at 190.2, it’s 6070. Right? He says that... at 6070, 190.2, right? He sends you an email and he tells you that he has evidence that you need in relation to the complaint, and he can refer the Public Protector to other people who will verify the information. Do you ever follow up with these other people?

Ms Mvuyana: Can I see the email please?

Adv Bawa: Okay... go down, he sends, go up, up... there’s it, “I will be able to bring about the evidence that will be needed in relation to the complaint and will also be able to refer the Public Protector to other people who will verify all the information we have. May we humbly request that the complaint be expeditiously managed because we believe there continues to be existence of unlawful intelligence services, which we complained about”, at 6071. Did you interview any people following up on this? Did he provide you with that information?

Ms Mvuyana: I believe so; we’d have to go to the notes of the meeting. Do you have them? I know I lost my notebook, but I think Mr Mataboge would have provided you with his notes.

Adv Bawa: You want the notes of the meeting with Mr Shivambu?

Ms Mvuyana: Yes, I'm just trying to recall which names he provided. But as we’ve already established, no one was interviewed, except for the whistle-blower, which we kind of exposed now.

Adv Bawa: Yeah, right. I'm not sure I've got Rodney’s notes at 189.46. You’re talking about the meeting with Mr Shivambu himself?

Ms Mvuyana: Yes. Who does that email come from, is it not Mr Shivambu?

Adv Bawa: Yeah, it does. So the meeting notes I've got is... this is the meeting at which he tells you about the 2014 secret report.

Ms Mvuyana: I believe so.

Adv Bawa: Yeah, if you go down, it’s 4986. I'm not sure what you... My question was whether you followed up with any witnesses. Oh no, don’t go down, 4988. In fact, there is one name on here. Actually yes, let’s go down, 4988, go down... So he provides you with Mr Lebelo’s details. Do you see that?

Ms Mvuyana: Yes.

Adv Bawa: Right, and that seems to be the only name that he gives you.

Ms Mvuyana: It seems so.

Adv Bawa: Right. Actually if you go 4989, he also gives you other names. On the next page, just go further on... Was it pursuant to this that, did you contact Mr Lebelo or did he contact you?

Ms Mvuyana: I believe he contacted us or requested the meeting.

Adv Bawa: Okay. Right, now if we go on from there, we come to the subpoena’s that were issued. You drafted the subpoenas, and you supplied it to Mr Mataboge. If you go page 190.5 at 7358, right? You do a memo, correct?

Ms Mvuyana: Yes.

Adv Bawa: 190.5 at 7358, and in this memo you ask the PP to approve and sign off on the subpoenas, correct?

Ms Mvuyana: Correct.

Adv Bawa: Right, by the time the PP gets the memo, she would have known it’s coming, because she would have expected you to do these subpoenas. You're doing it on her instructions, aren't you?

Ms Mvuyana: Sorry?

Adv Bawa: Do you do this on her instructions, or is it your doing that you’re asking for these subpoenas to be issued?

Ms Mvuyana: In this investigation or in general?

Adv Bawa: In this investigation.

Ms Mvuyana: No, I wouldn’t say an instruction per se. Once the documents and evidence were analysed, we obviously identify who we needed to get more information from. So those people were identified, and we then drafted the subpoenas. Obviously with the approval of the PP, in terms of when you provide an update to say where you are in the investigation, you then say we just need to subpoena and then she says okay subpoena it. It's not really an instruction.

Adv Bawa: You see the reason why I asked you the question about whether this was just for formality, and she basically told you to do it, is an absence of any reasons in the memo as to why you required a subpoena. If you go down... this goes through the COO and to the PP in April. You set out the background of the complaints, and then on the next page, approve and sign the subpoena. I would have expected the subpoena is a drastic remedy that you would have had to motivate, as to why a subpoena would have had to be issued.

Ms Mvuyana: Okay.

Adv Bawa: And the absence of a motivation, makes one think that she knew what was going on. She was waiting for it to come, and it was going to happen. You didn’t need to much more than dot the i's and cross the t’s.

Ms Mvuyana: I don’t know if you want me to agree or disagree with you.

Adv Bawa: No, if I'm completely wrong, then you tell me. If you can’t remember, tell me. If you not sure, tell me. I don’t want you... I'm not asking you to fashion a response by agreeing with me or...

Ms Mvuyana: No, I won’t comment on your assumption, but like I said, we give updates to the PP either in a meeting or if she calls Rodney to ask how far are we with this investigation. Rodney will then give an update, then it will be discussed. Either Rodney will tell her the next step or she can also suggest the next step. And then the next step is then done, and the memo is prepared. I don’t know. It’s not, I’d say, written in stone that we must provide a reason in the memo. It's the writing style of the particular person or if there’s an update already given. Yes, she may have known that the subpoenas were coming though.

Adv Bawa: Yeah.

Ms Mvuyana: Yeah.

Adv Bawa: It’s just that in ordinary parlance, if you were taken on review for the issuing of your subpoena and this was the supporting documentation, and there was no basis for the subpoena being issued, it would look very strange. Do you agree? That no reason is furnished for the issuing of the subpoena in the guiding memorandum that recommends that you approve. Where is the reason for the recommendation?

Ms Mvuyana: The reason for?

Adv Bawa: The recommendation that she approves and signs the subpoena.

Ms Mvuyana: The investigation is the reason.

Adv Bawa: But you in office that applies the three-strike rule.

Ms Mvuyana: Yes, in most instances.

Adv Bawa: Yes, and so you would have to show that I've hit my third strike before I can get the subpoena.

Ms Mvuyana: Yes, specifically maybe for Mr Pillay and van Loggerenberg. But we would have already started communication with Mr Gordhan, and there was a lot of to’ing and fro’ing with him. A decision was then taken – okay, let’s just subpoena an affidavit not to appear.

Adv Bawa: Not to appear?

Ms Mvuyana: I don’t believe it was to appear before the Public Protector.

Adv Bawa: Oh, and this is signed in April of 2019. So you're saying the to’ing and fro’ing with Minister Gordhan occurred before this?

Ms Mvuyana: Yes, I remember we had written to him in December. Not to’ing and fro’ing in a bad way, it’s just a lot of... okay, an extension, and then there were issues raised in between that legal services would have dealt with, and the PP directly. So that is what was happening at this stage.

Adv Bawa: And what you are referring to is Mr Gordhan saying these allegations have happened more than ten years ago, under section 7(9) this falls outside of your jurisdiction – if you’re going to be investigating this, provide me with special circumstances.

Ms Mvuyana: Not only that, but it includes that, yes.

Adv Bawa: It includes that?

Ms Mvuyana: Yes.

Adv Bawa: Right, now if we come to this vexing, Mr van Loggerenberg’s subpoena. The report says his last known address. On what basis was it ascertained that that was his last known address?

Ms Mvuyana: The response I gave yesterday, which is the truth. Is that we contacted our whistle-blower, who had offered to provide us with information. He checked the records at his former employer, which was SARS, and provided that address. There was no cell phone number/email address for Mr van Loggerenberg in his personnel file, allegedly, as I was not the one who spoke to the source. We then drafted and put the address on the subpoena, and attempted to serve it.

Adv Bawa: Just stop there for a moment. You say you didn’t speak to him, and Mr Mataboge says he didn’t speak to him.

Ms Mvuyana: Maybe he doesn’t recall, because I couldn’t call due to protocol reasons. I was not told to call the line.

Adv Bawa: If you look at the... sorry, I interrupted you. Speak.

Ms Mvuyana: No, due to protocol reasons. Yeah, it was tasked – he was tasked with that.

Adv Bawa: In 185.45 in the documentation that you and he provided to us the explanation there provided was either the supervisor or the PP called.

Ms Mvuyana: Yes.

Adv Bawa: Did you write that?

Ms Mvuyana: Yes, Adv Bawa, this happened in 2020. It's now 2023, the response that you talking about was done in 2022. I can’t recall things that happened two years ago. I don’t know a call of two years ago. So it was either one of the two, because I did not.

Adv Bawa: I'm happy, Ms Mvuyana. I can’t remember what happened last week, so...

Ms Mvuyana: Thank you.

Adv Bawa: So that isn’t the issue. The only reason is, the only reason I'm raising it, is because there’s one thing written and there’s another thing said in oral evidence. So I'm trying to work out where it lies. If you’re not entirely sure which one of the two it is, then that’s what it is. I'm not doing that. Now, after Mr Linda came back with the story after... Mr Linda’s story was I went to this house, I found a man. I don’t know if you’ve read his affidavit Ms Mvuyana.

Ms Mvuyana: I’ve read the affidavit, yes.

Adv Bawa: I don’t necessarily want to go there, because I think he came back and he wasn’t able to serve it. And he came back in the belief that he’s not going to find this person, and he was able to ascertain that the person was appearing before court. And he indicated that he relayed that to Mr Mataboge. He did not indicate to us that he relayed this to you; he said he reported this to Mr Mataboge.

Ms Mvuyana: Okay.

Adv Bawa: But you were aware that they were appearing in court.

Ms Mvuyana: Yes, Mr Linda did also tell me, because our offices were very close to each other, so...

Adv Bawa: So maybe he didn't remember that...

Ms Mvuyana: Yeah.

Adv Bawa: So you knew where Mr Loggerenberg could be found. He could be found on his court appearances.

Ms Mvuyana: Whatever date he was appearing, yes.

Adv Bawa: Yes. And you could have called the National Prosecuting Authority to see whether the person they were prosecuting, they could locate him.

Ms Mvuyana: Yes, we could have.

Adv Bawa: There’s lots of things you could have done.

Ms Mvuyana: Yes, there’s a lot of things we could have done.

Adv Bawa: With hindsight, none of them were done.

Ms Mvuyana: Yes, with hindsight, none of them were done.

Adv Bawa: And the point is, the Public Protector didn’t tell you to do anything?

Ms Mvuyana: She also suggested serving during a court appearance, but when we spoke about it with Mr Mataboge and knowing that we usually only serve at a person's address, we’ve never served a person on the street or in court while they’re appearing for another matter.

Adv Bawa: And you say you went to Google... now, in your statement, you offer up this information about how his name is spelt. You say it subsequently came to your attention that Mr van Loggerenberg sometimes deliberately misspelled his surname.

Ms Mvuyana: Yes, I think he even states it in the Sikhakhane report, if I'm not mistaken or KPMG when they discussing the allegations about the alleged girlfriend.

Adv Bawa: Right, but you didn’t misspell his name?

Ms Mvuyana: I spelt it the way I know how to spell it. Then from the documents that we had received it changes. Sometimes another person would put the “g” or the “r” before the “e” or something like that. So I spelt it and he did pop up as an author, so obviously I spelt it right.

Adv Bawa: Yes, but if I... I don’t know why the conclusion gets made – this too might have made efforts to find him more difficult than usual, because it doesn’t seem as if there were any efforts made. In your affidavit that's what you say.

Adv Mpofu: Chair?

Chairperson: Adv Mpofu?

Adv Mpofu: Sorry, Chair. Maybe it’s me, maybe it’s the afternoon, I thought the witness just said she did exactly that and his name popped up as an author of books or whatever. So I don’t know now how it can be put that she didn’t do it.

Chairperson: Yes, she did. Go ahead, Adv Bawa.

Adv Bawa: Yeah, sorry I missed that. My apologies Ms Mvuyana, you said you punched his name into the Google and his name popped up as an author.

Ms Mvuyana: Yes, that has recently written a book at the time or had written a book some time ago. And then there was another story, there was a lot of stories.

Adv Bawa: There were a lot of stories?

Ms Mvuyana: Yeah.

Adv Bawa: And you know that if you... we’ve just done the exercise during the lunch adjournment, that if you put in the wrong spelling of the name “Johann van Loggenberg”, Google actually self-corrects it for you to “van Loggerenberg”.

Ms Mvuyana: When you do it when, today?

Adv Bawa: Tshepo has just done it.

Ms Mvuyana: Yes, that’s today. In 2019 was Tshepo there?

Chairperson: So it couldn’t happen in 2019?

Ms Mvuyana: You never know.

Adv Mpofu: Chair, Google improves every year.

Adv Bawa: But the point is you didn’t make that mistake.

Ms Mvuyana: No, I did not.

Adv Bawa: So how do you reach the conclusion that the wrong spelling would have made efforts to find him more difficult than usual?

Ms Mvuyana: It might have if I had, I mean, there’s other search engines that could be used. But that was not done, that was explained as well.

Adv Bawa: Okay, so the “might have” is actually irrelevant?

Ms Mvuyana: Sorry?

Adv Bawa: It's actually irrelevant? I’m trying to work out what’s the value of the sentence.

Ms Mvuyana: That Mr van Loggerenberg was difficult to find?

Adv Bawa: No, the “this too...”, the misspelling of his name, “this too might have made some efforts to find him more difficult than usual”.

Ms Mvuyana: Yes, and as a passing remark from his evidence as well, or evidence that were in other reports. Not... okay, let me just stop there.

Adv Bawa: Sorry, don’t let me... I know it was suggested by Adv Mpofu to him, when he gave evidence. Adv Mpofu had made the same proposition to him. I was just trying to work out on what basis you reached that conclusion in your affidavit, but I take the point that what we did in 2023 may have been different in 2019.

Ms Mvuyana: Possibly.

Adv Bawa: You also then said that the Public Protector played no part in the tracing of witnesses or serving of documents. The actual physical part of it she doesn’t do.

Ms Mvuyana: No.

Adv Bawa: But she does guide it? She does guide the signing of the subpoena, and she can give the instructions that any one of the mechanisms of being able to find him could be pursued.

Ms Mvuyana: Yes, the mechanisms that are within the powers of the PP?

Adv Bawa: Yes.

Ms Mvuyana: Yes, she can give instructions. She can even provide telephone numbers, if she knows the person.

Adv Bawa: And once she had received the letter from Webber Wentzel she would have known who his attorneys were.

Ms Mvuyana: Yes, of course. She received it, she knew who they were representing if she read the letter.

Adv Bawa: Okay, and if you look at page 590.1, page 5910. It's the same... 590.1, 5910, right? This is the 10 June.

Ms Mvuyana: Yes.

Adv Bawa: And this is an email, again, forwarded this time to both you and Mr Mataboge, which deals with the buying of illegal spying equipment by Pravin and Pillay. And it tells you all about the spying equipment, and at the end of this email is a person’s name, which I don’t necessarily want to go to... go up, right? And there’s a whole lot of equipment detailed.

Adv Mpofu: Oh okay, sorry, I might have missed something. You said you’re not going to show the... Okay, thank you. Thanks Chair, sorry.

Adv Bawa: Okay, go up to the top. This is information about all kinds of equipment that’s provided. Did you verify the contents of this email at all? Did it impact on the investigation?

Ms Mvuyana: Some did and some did not. Some we did not follow up with, some didn’t relate to our investigation.

Adv Bawa: So at the 10th June 2019, you were still busy with your investigation?

Ms Mvuyana: We were still receiving information from different complainants, different people.

Adv Bawa: Okay, and the letter from Webber Wentzel comes on the 14th , four days after this. So if you had known who Mr van Loggerenberg’s attorneys were on the 14 June...

Ms Mvuyana: Is it not the... I was told it was the 4 July.

Adv Bawa: No, sorry the... the letter. The letter comes... let me just be exact. The letter is at 5911, just check there? 15 June, there we go. The letter has provided the demand. If you go further down. On Saturday, it’s sent by the PA. I think the actual letter could be dated the 14th , when Webber Wentzel sends it on the Friday.

Ms Mvuyana: Noted.

Adv Bawa: This is communication that comes up on the Saturday. The only point I’m trying to point out to you is that it was possible to obtain the details of Mr van Loggerenberg, whilst the investigation was still ongoing.

Ms Mvuyana: Yes, if he sent the email on the 15 June, then it was possible. But now the 7(9) had already been issued here.

Adv Bawa: Yes.

Ms Mvuyana: I believe we even received some responses to the section 7(9)s, if I remember correctly. But yes, you’re correct, it could have been.

Adv Bawa: No, because if you’re getting in all kinds of other evidence that you’re having regard to, even after the 7(9)s went out.

Ms Mvuyana: Information? Yes.

Adv Bawa: Information, yes. Then nothing stops you from having regard to other information as well.

Ms Mvuyana: Yes, we definitely. Even the email, we went through it. And I don’t know if you can confirm if any of the information in the email above, from the supposed other person, was now included in the final report, because this would have been received after the section 7(9).

Adv Bawa: You see Ms Mvuyana, it doesn’t have to be included in the final report. The only point I'm trying to make is you had regard to the information. You may have accepted it, you may have rejected it, you may have found that whatever evidence or information came from Mr van Loggerenberg was absolutely useless to your report.

Ms Mvuyana: Yes, but the reason why I'm saying that is because if this information would have been in the final report and not in the section 7(9) or it would... we would have to issue a supplementary section 7(9), because the people who received the initial 7(9) would not have had this information.

Adv Bawa: But that’s form of a substance, isn’t it? It's a procedure that you would have to do.

Ms Mvuyana: Yes.

Adv Bawa: You would make sure that they get proper audi, by giving them proper audi of all the relevant material.

Ms Mvuyana: Yes.

Adv Bawa: There can never be an impediment to the process.

Ms Mvuyana: No, it can be done, depending on the severity of the information. But like I’m saying, we’d have to compare the two, to see if there was a break in procedure.

Adv Bawa: Yeah, I haven’t done the exercise to be honest, whether the contents of this email find its way into the final report. I'll certainly have a look at it and maybe ask the PP when she comes and gives evidence about it.

Ms Mvuyana: Okay.

Adv Bawa: Now, on the... we have gone through some of the reports, and I don’t want to belabour the point. I think the point was made this morning, that there was no independent investigation conducted of the contents of the report, and how you had gone through it in conducting the investigation, with reference to one of the headings. In fact, we’ve dealt with two of the six complaints in that regard. And I put the proposition to you, in respect of one other. Now, if it is so that, if the proposition I put to you this morning, that the remedy that was imposed into the report does amount to implicating Mr van Loggerenberg in respect of the findings, then there would have been no doubt that he would have had to receive a section 7(9). Do you agree?

Ms Mvuyana: I did not respond to that question. You didn’t put it like that.

Adv Bawa: No, I’m putting it to you now. I didn’t ask you the question this morning. I showed you where the findings were and where the remedy was. And I put it to you, if the findings implicated Mr van Loggerenberg, and you were going to have an issue – a remedy that impacted upon him. He would have been entitled to a section 7(9) notice.

Ms Mvuyana: Ideally so, yes. But I believe that’s not how you put the question initially. And Adv Mpofu clarified that... or you also even clarified that the allegation of the conspiracy in relation to the OIGI is totally out of my purview. So are you trying to get it back into my purview?

Adv Bawa: No, not at all. I’m putting a general proposition, if you’re implicated, you must get a section 7(9).

Ms Mvuyana: If you’re implicated in the findings?

Adv Bawa: If you’re implicated in the findings of the report, you must get a section 7(9).

Ms Mvuyana: You will take action, so the implementer of the remedial action. You'll get the section 7(9). That's why it’s directed to the Minister of State Security, I believe, on that question. So the implementer of the remedial action, and the person who the findings are made against gets a section 7(9). That of course has changed now, at that time.

Adv Bawa: So let's look at this, you refer to the... opinion, and you would agree that this opinion is not binding on the Public Protector?

Ms Mvuyana: Correct.

Adv Bawa: You refer to the Sikhakhane report, and similarly it’s also not binding on the PP.

Ms Mvuyana: When you say binding, what do you mean?

Adv Bawa: Well, I mean what you meant when you said in 185.45, that the Nugent report was not binding on the PP. I was trying to work out if you meant she wasn’t obliged to follow what was contained in the Nugent report.

Ms Mvuyana: The findings, to stick to the findings.

Adv Bawa: Let’s look at 145.85... 189.45, sorry... go down. Here we go, 3.10, “Information why Nugent report not considered or dealt with – No information. Verbal discussion with PP and investigation team. Reason was that the findings of the Nugent report were not binding and could not be relied on”. My question is, none of the other reports or opinions was any different to the Nugent one?

Ms Mvuyana: Yes.

Adv Bawa: So why have a discussion specifically about the Nugent report?

Ms Mvuyana: We had a discussion about most of the reports that were submitted to us, in the report. You mean a verbal discussion?

Adv Bawa: To leave it out. In understood that that was the answer. The question is, provide us with information why the Nugent report was not considered or dealt with. And the answer is we have no information, it was a verbal discussion with the PP and the investigation team.

Ms Mvuyana: I think the no information comes from our understanding of the question, which would be that you wanted notes. So we don’t have notes of that meeting.

Adv Bawa: Okay, and you can’t recall what was the reason for leaving it out or can you?

Ms Mvuyana: For leaving the findings or the Nugent commission?

Adv Bawa: Well, you or the PP summarises in the final report a summary of Sikhakhane and of KPMG. The Nugent report is the one that the implicated parties specifically referred to the PP. The reference in that report is a reference to them and I think there’s one other reference. It’s not summarised or dealt with. By the way, did you have one report or two reports?

Ms Mvuyana: Where?

Adv Bawa: For the Nugent reports.

Ms Mvuyana: We had the interim and the final.

Adv Bawa: Right.

Adv Mpofu: Chair?

Chairperson: Adv Mpofu?

Adv Mpofu: No, I just want to say what’s been put to the witness now is factually incorrect, because not only is the Nugent report referred to in the report, I think it’s the only one that’s quoted verbatim. So to say it was not referred to in the report is not true.

Chairperson: Adv Bawa:

Adv Bawa: Adv Mpofu, I went to the quoting of it verbatim. It comes out of what SARS had told the Public Protector section. When I talk about this, I'm referring to where you go heading / heading / heading of the report, and there isn’t one for the Nugent report. And I understand the witness understands my question, or let me be clear, not to assume she understands.

Adv Mpofu: No, sorry Chair. Well the witness might understand your question, but she’s not the only one who’s going to read the record from now on. And I agree, for the record I agree with what you’re saying that the other reports there are headings... but what you cannot say, that it is not referred to when it is referred to and quoted.

Adv Bawa: Right, Ms Mvuyana, the issue is you don’t specifically deal with the Nugent report in the same manner you deal with the other reports? Let me put the question fairly.

Ms Mvuyana: No, the terms of reference for the Nugent report were different from all other reports. Nugent dealt with the rogue unit issue in passing. And that’s why we also just kept it and only confirmed that what SARS had sent us was the actual quotation of the report, and that was it.

Adv Bawa: Okay, and the Sikhakhane report was also not initially mandated to look at the rogue unit. They were mandated to look at allegations in respect of Mr van Loggerenberg.

Ms Mvuyana: That’s true.

Adv Bawa: And then midway through, dealt with this in a different manner. And the KPMG report, you were aware at the time that KPMG had essentially indicated that they were retracting the report, and in fact, I think they went as far as saying publically that they were going to pay SARS back.

Ms Mvuyana: When did they retract?

Adv Bawa: They retracted this report in 110 of the judgment. And you see that 16 September 2017. Long before the report was delivered, KPMG had disavowed its own report and its conclusions regarding the lawfulness of the unit. They tendered an apology for its governance lapse.

Ms Mvuyana: Yeah, I believe so. I think so.

Adv Mpofu: Chair?

Chairperson: Yes, Adv Mpofu

Adv Mpofu: I think it’s not fair to put a question like that, because yesterday I indicated that the KPMG so-called retraction was exaggerated. So it might be, maybe appropriate then to put it up to the witness, the actual terms of the retraction, because our version was that it was not a holus-bolus retraction of the entire report.

Chairperson: Over to you, Adv Bawa... Switch on your mic.

Adv Bawa: We’ll get to the actual terms of the retraction. Were you aware that there was a retraction by KPMG?

Ms Mvuyana: Not necessarily a retraction at the beginning stages of the investigation, of course we did find out during the investigation that it had been. But yeah, it was all over the news.

Adv Bawa: And there’s no mention in the SARS report in respect thereof?

Ms Mvuyana: I can’t be sure about that.

Adv Bawa: Okay, we’ve already discussed the OIGI report. And then in respect of the statement in relation to the SARS advisory report, chaired by Judge Kroon, he issued a media statement in which he said that they had not done any independent investigation, and that they had relied on the Sikhakhane report. Do you recall that?

Ms Mvuyana: Yes, I do.

Adv Bawa: Right, did you find any member of that SARS advisory board coming out publicly and saying that Judge Kroon doesn’t speak on behalf of the whole board?

Ms Mvuyana: No.

Adv Bawa: Now, I few go to page 6408 which is 190.2, if you go down to 27th June. No, no, go up, sorry. We now on the 4 July... you’re not included in this email, but would it have been given to you?

Ms Mvuyana: Yes.

Adv Bawa: Okay, so go down and look at on the 4 July, Adv Mkhwebane is instructing you to put certain evidence into the report.

Ms Mvuyana: Sorry, can I just check if it’s an instruction? Sorry, can you please point out to where... she’s making corrections and saying please intensify on the equipment and it must be premised on the Brassey investigation. I guess that’s where the instruction comes in, must...

Adv Bawa: “For ease of reference, check the affidavit under equipments, it outlines them very well and more importantly they were discovered by Brassey and were part of the DC charges”.

Ms Mvuyana: Okay.

Adv Bawa: “You’ll also see in the affidavit where Pillay instructed his office...” Which affidavit is she referring to?

Ms Mvuyana: Can you point me to the line, “You’ll also see...”

Adv Bawa: It’s referred to in the fifth line, it’s referred to in the... “You’ll see in the affidavit...”.

Ms Mvuyana: I’m not sure which affidavit this is.

Adv Bawa: Go down... I just want to see if that’s the end of the email. Okay it is, go up. Sorry... And then, he asks for a bit more time to clean up, and she tells you we're issuing tomorrow.

Ms Mvuyana: Sorry... okay, I see.

Adv Bawa: And he then says he’s going to come and collect. Sometimes does she give you changes in hard-copy? Corrections.

Ms Mvuyana: Yes.

Adv Bawa: Okay, right. If we go to the 17 May, 5899, I want to take you to the drafts of the 7(9)s. 5899 would be... yes. Right, this is on the 17 May. And you come to the Public Protector’s office in the boardroom and you must bring the records and the report. Do you see that?

Ms Mvuyana: “Mvuyana with all the records and Njabulo with report”, so maybe, the English... either Njabulo had the report or I had the records.

Adv Bawa: Go down...

Ms Mvuyana: Okay.

Adv Bawa: If you go to 5900.

Ms Mvuyana: Sorry, if we can just go to the one that refers to Njabulo, because I see the subject matters are different - sometimes it’s Shivambu complaint, and sometimes its draft report Minister Gordhan. Njabulo was dealing with the Mr Pillay/pension fund issue, so I’m not sure. And then when he was investigator with investigations, and then at some point he became a Senior Investigator within quality assurance. So...

Adv Bawa: It could be the Pillay matter, and you came in with the records.

Ms Mvuyana: It could be, unless if we can just check when the Pillay report was issued, so that we can obviously disqualify it from being spoken about in these emails.

Adv Bawa: Give me a sec... 24th May.

Ms Mvuyana: So it is possible.

Adv Bawa: It’s possible, right. So if you go to the 5900, which is the next day, go down... there’s a letter received in May, from Mr Gordhan’s lawyer after Muntu sent him a letter. You are included in receiving the letter, and then the instruction from the attorney after. “We are proceeding with the 7(9) as planned as the affidavit as expected is a denial which we can deal with in the narrative as issues in dispute”. So you receive his 7(9), his response on the affidavit that you’ve requested him to provide. And Mr Mataboge says “We are proceeding with the 7(9) as planned as the affidavit as expected is a denial which we can deal with in the narrative...” Were you expecting Minister Gordhan to just deny everything?

Ms Mvuyana: Of course, not. I'm not sure what discussions would have been had pursuant to this email, but no we were not expecting anything. We expect responses, maybe Mr Mataboge could have from experience, since he was also involved in other matters of Mr Gordhan would have known that he would deny these allegations or whichever allegations are being spoken about here.

Adv Bawa: And the PP responds to him – you're not included, “Make sure we rebut all what he says and the dates and lies. Muntu to assist, also check the file number we have opened about anonymous complaint who informed PP to investigate this coordinated response”, that is a completely different matter.

Ms Mvuyana: Yeah, that is totally...

Adv Bawa: A different dispute, you’re not involved with that, so we’re not going there. Take a sigh of relief... right. Now the section 7(9) notice that went to Minister Gordhan, you will see it at Bundle F 189.7, 3996. Okay, so there’s a draft 7(9) in the process of being worked and generally when it comes back from the PP then it’s got yellow text, is that? Or when you send to her, you highlight, it doesn’t matter what colour is.

Ms Mvuyana: No, the highlight is Rodney. Rodney usually does the highlight. PP, I think refers to the paragraphs, if I'm not mistaken, maybe also highlights. But I know Mr Mataboge is the founder of highlighting in yellow text.

Adv Bawa: Okay. So just go down... I want to go to paragraph 13.2.3, so you can go far down, I'm sorry, I think it’s, I'm not sure what the page number is. Oh, it’s not there, okay, do down...189.7, go to 14.2.25. You see Ms Mvuyana, in your very early section 7(9) report... go up, 14.2.25, stop, right. This was where it gets inserted, into the draft you make.

Ms Mvuyana: Yes, the email says the text in yellow is the inserted part.

Adv Bawa: In the preceding draft, which I can’t lay my hands on, but I will for Adv Mpofu’s purposes. It's 13.2.23 and 13.2.24. It is pointed out that the IGI report could not be utilised, it was still waiting for the Minister of Safety and Security to declassify the said report. And that then gets changed in this version... there’s a duplicate in numbers, but that’s not here. Right, and if you go to 3996, which would be 14.2.26, “I am however, unable to utlise the report or any part thereof as I am still awaiting the Minister of State Security to declassify the said report”, and that you’ve since requested the President’s assistance to avail the declassified report. Do you see that?

Ms Mvuyana: Yes, I do.

Adv Bawa: Right, and we know that essentially in the correspondence, the PP had said that she was seeking to verify the allegations. Now in the report... let me jump to special circumstances for a moment, take me to 25869 while we’re there. Yeah... could be 190.1. if you go down, there’s a letter that comes from Minister Gordhan, in which he asks for... go down... it get's brought to the PP’s attention, which is his initial response to the 7(9)… or the 7(4), I think it’s the 7(9) that’s issued. And then go up, so that we can see the context... they issue a media statement, and the COS is the Chief of Staff, correct?

Ms Mvuyana: Yeah, Chief of Staff.

Adv Bawa: “COS add the paragraphs on what was expected in the subpoena, to come in person to ask for extension, that had not been done, they decided to send as email, violating the provisions of the subpoena”. Is it common, you issue a subpoena for somebody to provide an affidavit, and then if you want an extension on the subpoena you must come and appear in person to get an extension on the subpoena?

Ms Mvuyana: I know on... yes. Even with... besides an affidavit, if you’ve subpoenaed. I know even in cases where we’ve subpoenaed a department to submit documents, or when we subpoena documents and they are unable to provide those documents, they have to come and request the permission.

Adv Bawa: So the suggestion that he was being singled out was not correct?

Ms Mvuyana: No, it has been done.

Adv Bawa: In this, April, the PP then gives instructions...

Ms Mvuyana: Sorry, here... Minister Gordhan is the one who’s requesting an extension. Okay, he is the one who requested an extension. Okay.

Adv Bawa: Yeah... If you look here the special circumstances is provided by the PP. The special circumstances in this matter is the “allegation that those surveillance equipment are still being used to this day to illegally tap people’s phones, and install cameras in key strategic places, and that security companies in key government institutions are using such equipment”. Were you aware of this information?

Ms Mvuyana: No, is this not for the response to a letter though? Because I'm not in the email. And especially if they were responding to either a media statement or a letter of attorneys, then I was not involved in this.

Adv Bawa: You were not involved in the email correspondence, but the trail follows... Adv Gordhan is seeking the special circumstances for purposes of investigating, and the PP is giving an instruction as to what those special circumstances are.

Chairperson: Adv Gordhan? There's no Adv Gordhan.

Adv Bawa: Sorry, I'm giving him a promotion.

Chairperson: Okay, I see. But he’s not there yet.

Adv Mpofu: It’s the process of promoting him, Chair. It's not easy to be an advocate.

Adv Bawa: And it’s not cadre employment... You see, now I've lost my train of thought. Okay, let’s go down. Let's go down and let’s see if I can figure out what I was... go down to 5870, right. There is a statement issued by the office of the Public Protector. And then there is a responding statement... okay.

Ms Mvuyana: Sorry, is this email now after the first email?

Adv Bawa: No, no, no, go right down, go to 572. Go up... that's probably the starting point. There is a media statement issued on behalf of Minister Pravin Gordhan, where they place on record interactions with the Office of the Public Protector, right? And that has got to do with this whole collusion issue, which I don’t want to get into. So let's go down on this media statement. Stop... the last paragraph “We are yet to officially receive a response to the substantive matters raised in our letter of 16 April 2019 which are primary and germane to the request for an extension as well as the follow up letter of 22 April 2019. Apart from the media statement the Public Protector issued today, no correspondence has been received by us from her office”. Okay, now the substantive matters raised in the letter of 16 April and the follow up letter of 22 April – tell us what the special circumstances are inter alia with the other stuff, as to why you conducting this investigation. So now if you go up...

Ms Mvuyana: Sorry, before you go up. Please repeat what you’ve just stated? In between 16 April and 22 April?

Adv Bawa: Right.

Ms Mvuyana: This is a media statement issued by Mr Gordhan?

Adv Bawa: That’s correct, in response to a media statement issued by the Public Protectors office.

Ms Mvuyana: Okay, saying that they’ve not received correspondence.

Adv Bawa: Right, go back up, I want to take you back to the email I was at. Go to 5868, where we were earlier. Go to the top of this, just stop at the one before the bottom of 5869. They bring this to the attention, to the PP for her comments and approval, right? And then you go up... And then the PP gives her comments, and in her comments she tells them what is the special circumstances in this matter. Alright, you see that?

Ms Mvuyana: Yes, I do.

Adv Bawa: Right, now we go down to the letter. Go...next page. She does a final draft of the letter and the PP says “remove the yellow highlights”, “I have signed it". Let's go down, it should be dispatched, “I have included the new suggested texts... as per PP and COS (Chief of Staff) inputs”. Go further, and so there’s the letter, right? Now let’s get to the paragraph, stop, first paragraph “Reference is hereby made to the letters dated 16, 22 and 23 April” received from Mr Gordhan’s attorneys, right? So let's go down... number two is just the details of the complaint. So move on, number two. Number three, is the letters raised in the correspondence, relating to two years and older. Right, number four “With regard to paragraphs 2.1 and 2.2 of your letter, please be informed that the reasons for my acceptance and investigation of matters which arose more than two years from the occurrence of the incident due to ‘special circumstances’ in terms of section 6(9) of the Act, please be informed that this is based on the available information from reliable sources that the surveillance equipment illegally acquired at astronomical costs is still being utilised to intercept communications between people by the unit which was not completely disbanded. So this is a matter of special interest as public funds are still being used for illegal purposes”.

Ms Mvuyana: I see.

Adv Bawa: Were you aware of this?

Ms Mvuyana: Like I said, the yellow is Mataboge. I don’t, and I would never send this to the PP. I don’t send things to her directly.

Adv Bawa: I understand that the yellow is Mr Mataboge, but the substance of what is in the yellow “is still being utilised to intercept communications”. Did that emerge from your investigation?

Ms Mvuyana: Not from the evidence that we had. It might have been information that was passed by a source to the PP, but I never saw information or documents that show that it was still being used. The astronomical cost, yes, but from a reliable source so...

Adv Bawa: Okay, go down, you see because if you look at the report and the explanation in the report for special circumstances, one of the criticisms that the court had, because it’s only dealt with in paragraph 3.5 of the report, is that the generic reasons for special circumstances is cited, and not any specific reason is given. Do you need me to take you there or do you recall that?

Ms Mvuyana: Yes, I recall that.

Adv Bawa: Okay. So we can skip through that one. Now, we come to Mr Pillay’s matric certificate. Isn’t there a regulatory body that you can check whether people have matric certificates?

Ms Mvuyana: There is.

Adv Bawa: Did you check?

Ms Mvuyana: No.

Adv Bawa: When Mr Pillay was interviewed, was he asked for a copy of his matric certificate?

Ms Mvuyana: Which interview?

Adv Bawa: He was interviewed by the Public Protector, I think in the Pillay/Pension matter or in the... yeah, in the Pillay/Pension matter. You wouldn’t know?

Ms Mvuyana: No.

Adv Bawa: Are you aware of the Public Protector ever directly asking Mr Pillay for a copy of his matric certificate?

Ms Mvuyana: No.

Adv Bawa: And it was suggested that the reference in the report was simply an error.

Ms Mvuyana: Yes.

Adv Bawa: Okay. When was this error discovered?

Ms Mvuyana: After the report was issued - from when I discovered it, after checking the response of Mr Gordhan, double checking and checking the response of SARS. The reason why I would say it is an error is because maybe of a misrepresentation of the response received from SARS, it stated that Mr Pillay didn’t have any formal qualification. So formal qualification could also include matric certificate.

Adv Bawa: But you were not part of the meeting which Mr Pillay has with the Public Protector, where they actually discuss him receiving a matric certificate, which high school he went to et cetera.

Ms Mvuyana: Yes, I was not a part of that meeting.

Adv Bawa: And in fact, you were not part of the exchange where Mr Mataboge – and I’m going to take him through it when he does come back, I'll put this to him. Where he actually points out during the compilation of the report that audio of the meeting with Mr Gordhan does not address the matric certificate, either directly or indirectly.

Ms Mvuyana: At the meeting?

Adv Bawa: Yeah, Mr Gordhan doesn’t deal with the issue of the matric certificate.

Ms Mvuyana: So when did Mr Mataboge state that? Or was he informing me that the...

Adv Bawa: No, no, it didn’t relate to you. Did he never tell you that the Gordhan recording he had gone to check indicated that it never raised the matric certificate?

Ms Mvuyana: I don’t recall.

Adv Bawa: He says this to Mr Mhlongo on the 28 August 2019. Now, we getting there... if we go to - I just want to take you through the drafts and the remedies, if you go to 189.53, and I think we’re almost done. Just need to check a couple of things on your statement. It's 189.53, yeah. It's an earlier draft of the report, right? Which you send to Mr Mataboge. And I want to go to 5131, paragraph 5. It has a different recommendation in respect of the IGI. You see that it says the report recommended – it's very similar to what was there before. And then go to 5200, page 5200. Right, and you see the remedial action. Go down to the Minister of State Security... it basically says here “commission an investigation by the Inspector-General of Intelligence on the current status of the unit for any continued breached of the Act by individuals or organisations and take the necessary appropriate action as provided for by the enabling legislation”. And then in respect of the Inspector-General “conduct an investigation into the existence of the unit and verify its continued existence through audit". So you see that the remedy in this version of the report differs from the remedy – the remedial action that comes into the final report, correct?

Ms Mvuyana: Yes, correct.

Adv Bawa: Now if you go to... there is then a meeting that you have with her, and we have your meeting notes dealing with remedy. And if we go to those meeting notes... I had it for Mr Mataboge the other day, and he then said to me it’s not his handwriting. Let me just see if I can... give me a second. Okay, I think it’s 4939, 189.43. Is that your handwriting?

Ms Mvuyana: Yes, sometimes. It changes.

Chairperson: Oh, I just wanted to understand... it changes?

Ms Mvuyana: It changes, depending on the day.

Chairperson: The mood?

Ms Mvuyana: Yes.

Adv Bawa: On that day it was yours?

Ms Mvuyana: Yes.

Adv Bawa: Right, so it’s head “Discussion of draft with PP”, right? And...

Ms Mvuyana: It doesn’t have a date?

Adv Bawa: No, I have it pegged to an email, which I'll take you to in a while, which says it's roughly the 3rd of July. Let me take you through your notes, and then we’ll go to the email, and you can confirm with me whether I'm correct in that. If I go down... if I'm correct, she tells you on which paragraphs which changes to make?

Ms Mvuyana: Yes, in this meeting.

Adv Bawa: This meeting? So you write down your notes and then you go back to the report and you clean it up?

Ms Mvuyana: Yes, it’s shorthand. So I'd have to summarise.

Adv Bawa: Right, so if we go down... you’ll see on page 10, she talks about the National Intelligence Agency, now SSA. And then she tells you what to say there, go further down... And she tells you to remove Gene Ravele Dossier, even in the narrative.

Ms Mvuyana: Yes.

Adv Bawa: Right, so you had the Dossier, but you removed it?

Ms Mvuyana: Yes.

Adv Bawa: Do you know why?

Ms Mvuyana: Is it not in the notes down there?

Adv Bawa: Go down...

Ms Mvuyana: No, I don’t think it is. I can’t recall why. I can’t recall from my archives.

Adv Bawa: Okay, go further down... stop quickly, go back up. She tells you that the finding of the OIGI report is that SARS has no mandate, and to do that at 2.3.3. Go further down... it says “Magashula - analyse the response, irrespective of the different name, CBCU”. Were you treating the CBCU and the SARS investigative unit as one unit?

Ms Mvuyana: I’d have to go to Magashula’s response to... yeah, the shorthand “irrespective of the different name, CBCU”. Possibly, but I can't recall, because it also speaks of texts from Njabulo.

Adv Bawa: Okay, go down... He may very well have been doing some quality assurance.

Ms Mvuyana: Yeah, probably, maybe.

Adv Bawa: And then we go down...

Ms Mvuyana: On this... there’s a lot of possibilities.

Adv Bawa: Lots of possibilities? Go down, you come to the remedial action.

Ms Mvuyana: Notes, yes.

Adv Bawa: And it’s here where you’re told that the Minister of SSA “must implement the OIGI report within 90 days and ensure equipment is returned to SSA”.

Ms Mvuyana: Yes, that’s what the notes say.

Adv Bawa: So that’s the instruction that you get from the PP?

Ms Mvuyana: It looks like, seems like, correct, because it was amendments we were doing with her. It would have been a discussion and this is what her suggestion would have been.

Adv Bawa: Right, and if you go up, and I was going to take you to 190. We might as well just finish the note for... Just there on top, “take not of charged – will be following the proceedings with interest based on the findings". So the charges were going on, go down... then there’s the “response to section 7(9) bashing the PP”. Go down, and then it says “JM - in CPT”, “Info received, SARS bugged the house in CPT”. “Jornu called to take photos of alcohol – issues articles”, “include the drive”. What was that referring to?

Ms Mvuyana: I don’t recall even who JM is. Oh, JM stands for... okay, I recall, it's the story that I don’t recall. But yeah, there’s information. I don’t know. Do you want me to interpret the shorthand?

Adv Bawa: If you possibly... if you don’t know, maybe it’s best you don’t then we don’t put a version that might not be correct.

Ms Mvuyana: Okay, there was information received in Cape Town. Allegedly SARS bugged the house in Cape Town, I’m not sure which house now. "Journo” is journalist – "called to take photos of alcohol – issues articles talking about... include the drive" so this must have been information on a drive provided, but this was not in the report. So unless this was the information that was being referred to in... I can’t, no, this is July now. No, I don’t recall, but that’s the story that is shorthanded. But I don’t recall it in the report, so I don’t think so. It must’ve been a passing comment or we decided not to include it.

Adv Bawa: So just to put your note into context I must take you to 190. 26409.

Ms Mvuyana: Okay.

Adv Bawa: Okay, we’ll get to the essence of it. We have tried to cover, but sometimes it comes through. Right, go down... She tells you to come and get it, to clean it up... “Come get more comments to clean the document tomorrow morning”. See that at the bottom?

Ms Mvuyana: Yes, I see that.

Adv Bawa: And the email is dated the 3rd of July. I'm not putting it up on the screen, because it’s got Adv Mkhwebane’s private email address on it.

Ms Mvuyana: Oh, okay. Alright.

Adv Bawa: But we can confirm the date of the email.

Ms Mvuyana: Okay.

Adv Bawa: Okay, and that’s how we’ve placed where your notes fit in to the chronology... there’s the date. Alright.

Ms Mataboge: Also from PP?

Adv Bawa: Yeah, and I had assumed it was Mr Mataboge’s notes, because the email went to him. But it could be that you had gone instead of him.

Ms Mvuyana: No, we would have gone together.

Adv Bawa: You would have gone together?

Ms Mvuyana: I don’t meet the PP... at that time I didn’t meet the PP alone without my supervisor, and I still don’t.

Adv Bawa: Okay, then I’ve just got one or two things that I just want to clear up with you and then I’m done. Right, if we go to your statement, let’s take it from the top. I just want to clear some things up with you in your statement. Okay... we’ve already established that. You say in your affidavit “I am of the firm view that some of their evidence has grossly misrepresented...” paragraph 8 of page 452, you refer to the evidence of some of the witness, and I'm not sure if you’ve only read media reports on Pillay and van Loggerenberg, or you’re referring to the evidence. In paragraph 8 you say “I am of the firm view that some of their evidence has grossly misrepresented true situation...” And I’m wanting to ask if you could provide some more specificity as to precisely which evidence you thought was a gross misrepresentation.

Ms Mvuyana: The true situation that happened during the investigation. I think let’s also complete the sentence so that we have context. The fact that it is alleged that the investigation was started off as a vendetta or bias towards certain individuals. That we did not try to locate Mr van Loggerenberg is a misrepresentation. That none of Mr Pillay’s evidence was taken into consideration, including the 2014 response that he provided to our office, as well as the 2019 responses. So basically that’s where that was coming from.

Adv Bawa: But you come to this view even though you didn’t hear all the evidence.

Ms Mvuyana: Responses to the Office of the Public Protector.

Adv Bawa: Yeah.

Ms Mvuyana: Yeah.

Adv Bawa: Sorry, I’ve lost you. I’m trying to figure out... let’s take a step back. You didn’t hear all the oral evidence, that’s what you say in paragraph...

Ms Mvuyana: From all the witnesses?

Adv Bawa: From all the witnesses.

Ms Mvuyana: No, all the witnesses in the inquiry?

Adv Bawa: No, did you hear the oral evidence of Mr Pillay and Mr van Loggerenberg?

Ms Mvuyana: Yes. Mr Pillay, portionally. Mr van Loggerenberg, I heard the whole thing.

Adv Bawa: Okay, so when you come to that conclusion, it’s based on what was said in the inquiry?

Ms Mvuyana: Yes.

Adv Bawa: You had not previously had Mr van Loggerenberg’s evidence?

Ms Mvuyana: No.

Adv Bawa: When you come to the conclusion that you disagree with the material findings of the High Court and of the factual foundation of that, you also indicated in your evidence – although you come to that conclusion, you had not had insight as to the evidence before the High Court.

Ms Mvuyana: No, I have never had, but in the judgment they mentioned that evidence was submitted by Mr van Loggerenberg to the Office of the Public Protector containing reams and reams, so that portion of the judgment is the one that I feel was misrepresented, because when we were doing the investigation we did not receive those documents that Mr van Loggerenberg allegedly submitted previously to the office.

Adv Bawa: Okay, so here’s the position, if Mr van Loggerenberg puts up an affidavit before the High Court, in which he says – I submitted that information in 2016 to the Public Protector’s office. And the Public Protector does not refute that allegation. What is the court meant to do?

Ms Mvuyana: It obviously found that Mr van Loggerenberg was telling the truth, due to the non-response to the allegation to the PP.

Adv Bawa: And if Mr van Loggerenberg attached evidence to his affidavit, which reflects that he had submitted the information to the Public Protector’s office, then conceivably the information could by lying somewhere at the Public Protector’s office, and just has not been found.

Ms Mvuyana: Possibly.

Adv Bawa: Then if we go to paragraph... In your affidavit, you deal with this issue of... in paragraph 9, “It is common cause that the term ‘rogue unit’ was first used in the public domain in 2014...”, right? You then say, “It was not invented, introduced, or exclusively used by the Public Protector and her team”. I don’t think the evidence was that the term was invented, introduced or exclusively used by the Public Protector or her team. Did you understand that the evidence before the inquiry was of that nature?

Ms Mvuyana: The evidence that was given suggested that the Public Protector purported to push the narrative of the rogue unit. Unfortunately, I’m not sure if I’m quoting it well. So in this statement it’s just to say that the name “rogue unit” didn’t come from the Public Protector or the team. It was a name that was already being used in South Africa for the alleged units that was in SARS. That was basically what I'm trying to say here.

Adv Bawa: In fact, in his affidavit before the High Court and for Adv Mpofu’s benefit, it’s Bundle B item 22.3 at paragraph 44. He says that the term isn’t used in any of the reports – Sikhakhane report or the Nugent report et cetera. That it initially arose in the Sunday Times, in 2014. And there had then subsequently been certain retractions by the Sunday Times, but that it's almost exclusively used by the Public Protector and the media, to do that. And wasn’t the concern in the evidence, that the Public Protector at a meeting with the IGI, had referred to the unit as a “rogue unit” and as a monster, and she expressed the view that she was going to defeat the monster. I seem to recall that that was the evidence. Was that what you were responding to?

Ms Mvuyana: No.

Adv Bawa: No?

Ms Mvuyana: No, and I can’t comment on the meeting and the “monster” comment.

Adv Bawa: Okay, right. You then in paragraph 10 say “Apart from the Public Protector, various other independent reports found that the establishment and/or operations of the unit were unlawful, because of the alleged nature of its activities. These allegations have been denied by Mr van Loggerenberg but have never been disproved”. What do you mean by that?

Ms Mvuyana: They’ve never been disproved. There’s never been any court case, except what you’ve just told me now of the OIGI being set aside. And previously all the reports, Sikhakhane, had not been set aside to say that there was non-unlawfulness in the formation of the unit. So...

Adv Bawa: Do you accept that Adv Sikhakhane rendered a legal opinion?

Ms Mvuyana: Sorry?

Adv Bawa: Adv Sikhakhane’s report was an opinion provided by three advocates.

Ms Mvuyana: Yes.

Adv Bawa: It’s not ordinarily so that you would review and set aside a report of counsel. You accept that?

Ms Mvuyana: A review and set aside?

Adv Bawa: A report given by the advocates.

Ms Mvuyana: Yes, but it can be disproved.

Adv Bawa: Well, SARS has gone out and said that they no longer... that they’re not placing any reliance on it, and they’ve effectively apologised to the people as a consequence of that report.

Ms Mvuyana: I heard.

Adv Bawa: And the Kroon media statement is also not something that you would review and set aside. Do you agree with that?

Ms Mvuyana: The advisory, or which statement?

Adv Bawa: The media statement that they issued.

Ms Mvuyana: That they issued about the unlawfulness, the establishment being unlawful.

Adv Bawa: Yes.

Ms Mvuyana: No, but it could also be disproved.

Adv Bawa: But they retracted.

Ms Mvuyana: Who?

Adv Bawa: Kroon.

Ms Mvuyana: Only Judge Kroon retracted?

Adv Bawa: No, I asked you... Judge Kroon went out and he publicly retracted the statement that was issued by the advisory board. And I asked you did anybody else who sat on that board contradict Judge Kroon and say that he didn’t speak on behalf of the advisory board.

Ms Mvuyana: No, I’m not understanding the question.

Adv Mpofu: No, Chair. Chairperson?

Adv Bawa: I think he issued the media statement, I almost stand correct, but I can’t recall... I’d have to check whether he issued it on his personal capacity or on behalf of the board.

Adv Mpofu: Chair?

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

Adv Mpofu: I object to that, that’s clearly a misleading question. The witness has said repeatedly, and actually I’ve put it to Mr van Loggerenberg, I think I put it to Mr Pillay, and I put it even to this witness, that distinction. So Adv Bawa has no right to say “they”, when she puts the question to the witness, when it’s clear that whatever apology or whatever you call it was an individual act of Judge Kroon. I read up that statement yesterday when he says he, “he” many times there, even Judge Nugent uses that word. So I take the point that no one else came out to contradict him, but also no one else came out to support him.

Chairperson: Okay, over to you Adv Bawa.

Adv Bawa: What we do have is Judge Kroon saying – We didn’t do an investigation, we relied on the Sikhakhane report in respect of coming to that conclusion. Would you recall that?

Ms Mvuyana: I remember you stated it, yes.

Adv Bawa: Yeah, right. So essentially, we have KPMG who says we didn’t do an investigation, what was done there we took from the Sikhakhane report, and the Sikhakhane report SARS is not relying on. So what's left...?

Adv Mpofu: No, no, it’s another misrepresentation. Sorry, Chair. That's not what KPMG said, it’s Kroon who said he relied on Sikhakhane.

Adv Bawa: Sorry.

Adv Mpofu: KPMG said that they relied on counsel’s advice.

Adv Bawa: KPMG says they withdrew their findings, the recommendations and legal opinions in 2018, which was widely published. In 2016 they also widely published limitations, included them being precluded from engaging those defected. Right, the finding that the unit was illegal or unlawfully established was withdrawn in 2018.

Adv Bawa: Yes, that finding or particular finding, but the statement you’re prescribing to KPMG... Sorry, Chair... was for Judge Kroon.

Adv Bawa: I withdraw that, you’re right. But as we established from the Public Protector’s point of view, you didn’t engage with any of the evidence that served before these inquiries or reports or opinions.

Ms Mvuyana: No, they were not provided.

Adv Bawa: So you none the wise as to whether they correct or whether they’re incorrect?

Ms Mvuyana: No, ours was not to find them correct or incorrect, we were just stating that there were investigations conducted and this was what the investigations either recommended or found. And then we used the evidence thereafter.

Adv Bawa: And that’s why you say in your affidavit “Whether they are true or false I cannot say”.

Ms Mvuyana: Yes.

Adv Bawa: So whether they’re true has not been proven and whether they are false have not been proven, that’s what you’re trying to say?

Ms Mvuyana: No.

Adv Bawa: Okay.

Ms Mvuyana: I’m saying what you said before the statement you just stated.

Adv Bawa: Yeah.

Ms Mvuyana: Whether or not they are true, I cannot say.

Adv Bawa: Okay. Right, then if we go...

Chairperson: Just an indication, you’re standing between us and tea. You said you were about to finish, so I just...

Adv Bawa: Well actually let’s have tea, and then I'll just... it might be quicker, Chair.

Chairperson: Okay, we’ll take a ten minute break for tea and be back at four. Thank you.

[Break]

Chairperson: Thank you, welcome back colleagues. Adv Bawa, back to you.

Adv Bawa: I’ve just got two questions that arose from that. You were referred to an NPA report by an Adv Pretorius, SC. Did that relate to the establishment of the unit at all?

Ms Mvuyana: No, if I recall correctly, it related to the charges. So it emanated from the charges that were... or the charges emanated from that report.

Adv Bawa: From which report?

Ms Mvuyana: The opinion of Adv Pretorius, if I have his name correct.

Adv Bawa: So it didn’t have anything to do with the... it didn’t relate to the establishment of the unit at all?

Ms Mvuyana: As far as I can recall, it was the charges of the allegations of the bugging. If I can put it like that.

Adv Bawa: And then, you did in your affidavit... I don’t need to deal with it with you, but I just... you received a letter from Mr Mark Kingon and the former acting commissioner of SARS, as part of your investigation, correct?

Ms Mvuyana: Correct.

Adv Bawa: And those are my questions, Chair.

Chairperson: Thank you, Adv Bawa. That concludes your interaction with the witness.

Questions by Members
Chairperson: We are now going to invite Members, if they have any questions to put to the witness, that's where we are now. So I will recognise if there are Members who wants to do that, both on the virtual as well as here at M46. If you don’t have anything that’s also fine, but let me note the Members in their order. We’ll start with Hon Sukers, to be followed... I don't have anybody there... Oh, Hon Siwela. Hon Siwela will follow Hon Sukers. Any Member on the virtual platform? Any other Member on the virtual platform? I am aware that you're multitasking but we have to do our work. None so far... anybody here at M46? Hon Dlakude, thank you. Those are the Members who will start. Hon Sukers, the time now is 16:06, over to you Hon Sukers.

Ms M Sukers (ACDP): Good afternoon, Chair. Good afternoon to the Committee. Afternoon Ms Mvuyana, thank you for coming before the Committee. I have a few simple questions and I'll kick off with, what is your attitude towards the South African judiciary? Do you have a respect for the learning and integrity of our judges, especially those that sit in the Constitutional Court?

Chairperson: Thank you, Hon Sukers. Ms Mvuyana, so we’ll take them one by one. You can switch on your mic.

Ms Mvuyana: Good Afternoon, is it Adv Sukers?

Chairperson: It’s Hon Sukers.

Ms Mvuyana: Hon Sukers. My attitude towards the South African judiciary is a good attitude. I respect the judiciary; I respect the decisions. And of course, the Constitutional Court as the last resort court, or the highest court in the land, also has my respect. So I don’t doubt our courts at this stage. I don’t know if that answers your question.

Ms Sukers: Yes, it does. My second question, is you would concede that the judges are more knowledgeable than you or I? And I heard you say advocate, and it seems like we get promotions today. But certainly more than the both of us, more so myself, I think, you have a legal background. So you would concede that they are more knowledgeable than both of us, certainly?

Ms Mvuyana: Yes, they are more knowledgeable in the judgments that they make. But I don’t believe they are knowledgeable in investigations.

Ms Sukers: So am I then to take that you’re saying the judgments, with them not having knowledge of investigations as you’ve put in now, that based on that, you would question the judgments that they make?

Ms Mvuyana: No, unfortunately I can’t question judgments. If a High Court judgment is made, only the Supreme Court or Constitutional Court can set it aside. My opinion I'd like to keep to myself.

Ms Sukers: Okay, Adv Zulu-Sokoni, the Zambian Public Protector has described an adverse judgment as an opportunity for self-cleansing. Let me rather say analysis, reflection and implementing change to improve outcomes. You personally worked on reports that were set aside and heavily criticised by the judiciary. Did you participate in any sessions organised by the Public Protector or management, to reflect on these findings and improve the processes within the Public Protector South Africa? And could you please describe those sessions.

Ms Mvuyana: Yes, I have participated in sessions where those judgments are discussed, or specifically certain portions that relates to the procedures of the Public Protector, or procedures that were not adhered to in full by the Public Protector team. Some of those we would go through them, even though I would not recall the exact days of the trainings or what they were called. But an example would be the section 6(9) issue, which has been much contention in the courts as well. So as investigators we then went through the judgment, and we were made to understand what is expected going forward on how to deal with investigations that are two years and older. So yes, I have participated. The judgments are very appreciated as well, because it makes the Public Protector as much better institution.

Chairperson: Hon Sukers are you still there? She’s cut off... Okay, we will come back to her to conclude whatever she has to ask. At this point, I will recognise Hon Siwela.

Ms V Siwela (ANC): Thank you, Chairperson. Just to show that it’s me, I'll close my...

Chairperson: Thank you, we can see it’s you. Thank you.

Ms Siwela: Thank you, Chairperson. Good afternoon, or Good evening, Ms Bianca. I have got a few questions to ask you in relation with an intelligence report. Do you know it is unlawful for any person to possess any intelligence report that is classified? That is my question.

Ms Mvuyana: Sorry, can you please repeat, Hon Siwela?

Ms Siwela: My question is in relation with an intelligence report. I am asking do you know that it is unlawful for any person to possess an intelligence report that is classified.

Ms Mvuyana: Any person besides?

Ms Siwela: Any person.

Ms Mvuyana: A normal South African, yes. But I mean if I work at State Security or I actually drafted the report, or I’m the Minister of State Security, then I would be able to have possession of the report. Me personally, I can’t. So that’s my answer on that question.

Ms Siwela: Yeah.

Chairperson: Before we proceed, I'm going to ask Adv Mpofu to whisper quietly whatever he whispers.

Adv Mpofu: No, Chairperson, somebody’s snoring.

Chairperson: No, before that. I hear that, the snoring, but...

Adv Mpofu: Apologies.

Chairperson: Go ahead, Hon Siwela.

Ms Siwela: I’m asking this in relation with the information we got.... Chair, I'm asking this in relation with what has been presented, that it was established that the PP had a report in her possession. That's why I'm asking her that, is it lawful or unlawful? But she has answered what she has answered. Thank you, Chair.

Chairperson: Thank you, Hon Siwela. I’m going to take the next speaker. Hon Sukers, you'll indicate when you’re back. I know note Hon Dlakude.

Ms D Dlakude (ANC): Thank you, very much, Hon Chairperson. Good afternoon, Adv Mkhwebane and your team; Evidence Leader, Adv Bawa; and Ms Mvuyana. During Adv Bawa’s questions, you mentioned that the intelligence report was dropped in the PP’s office, by an anonymous person. Then you go on to say that Mr Manyike submitted documents detailing operations and functioning of the intelligence report. Can you please take me... make me understand if the anonymous person is really not Mr Manyike, because an anonymous person dropped this intelligence report, then Mr Manyike submitted a document detailing the activities of the intelligence unit. Are we talking about one and the same person who dropped the report? Because in my own analysis, I think he’s the one who dropped the report.

Ms Mvuyana: Mr Manyike is a 2014 complainant. The documents that... where you say we state he submitted documents detailing the functions of the intelligence - it wasn't of the intelligence report, it was of the intelligence unit. So he was a 2014 complainant, and his matter was closed in 2017. Whether or not he knows about that I don’t know, but Manyike would not have known of the intelligence report, I think, because it was done in 2015, if I'm not mistaken. And the drop-off by the anonymous individual occurred between late 2018 to 2019. I cannot confirm, because like I said, I was also not the one that received it from that anonymous. So I won’t know if it was, it could have been Mr Manyike, but anonymous is anonymous.

Ms Dlakude: Thanks for your response. You also indicate that on the 24 January 2019, Mr Shivambu sent you an email; it was that report of the office of the intelligence – of the Inspector-General of Intelligence, is out. I'm just curious about this person who dropped this report, the classified report of the...

Ms Mvuyana: OIGI.

Ms Dlakude: Of the Inspector-General. So given that Mr Shivambu indicated to you through an email that the report is out. Can maybe implicate him in this mix of dropping the intelligence report, is it him or is not him? But I’m linking him to this, because he sent you an email that the OIGI report is out, and after that a report is found on the doorsteps of the PPSA.

Ms Mvuyana: Okay.

Ms Dlakude: And we just want to understand as a Committee...

Ms Mvuyana: Like I said before, Hon Dlakude, I don’t know the anonymous person. Yes, Mr Shivambu did send an email on the 24th saying that the IGI report is out, and then in that email he attaches the Noseweek article. So the Noseweek article then details the report or.... I'm not sure if they had a copy, but they detail what the recommendations and the findings were et cetera. And then all of a sudden, I’m informed that the report is at the Public Protector. So I'm not the one who went to go and pick it up. And I cannot guarantee or even say that it was Mr Shivambu that dropped it off.

Ms Dlakude: I’m still suspicious, I'm still not satisfied, because I just want to understand why he would send you that report – that message of saying the report is out. Maybe, we were you part of investigating this rogue unit, even before the report was out.

Ms Mvuyana: No, Mr Shivambu laid a complaint in November. We had a meeting with him in December. He stated to us that there is a report by the OIGI, or the OIGI is conducting the investigation. So in the 24th, I won’t go into his thought process at the time, but that’s what he said, and he sent me the Noseweek article attached. If he wanted to give me the report, he would have attached the report in the email. And if he wanted for me to have the report, he would have indicated that the report is attached. So I cannot confirm, unfortunately, if it was him or if it wasn’t.

Ms Dlakude: Ms Mvuyana, you've indicated under direct evidence that you didn’t use any of the information; you didn’t rely on the OIGI report when you made your findings and remedial action. Then in your remedial action, you also said that the recommendation or the report of the OIGI must be implemented. I think there is something that is not right there. You didn’t use it to reach your findings and remedial action, but you on the other hand in your remedial action you said it must be implemented. Can you please clarify for me how we come about implementing, while you didn’t rely on it in your findings?

Ms Mvuyana: Okay, I don’t remember my own answers, but the OIGI report I did not see. I did not have access to it, due to my security clearance. The people who did have top secret, and I'm aware about, knew about it had seen it - I don’t know if they read it, was the Public Protector and Mr Mataboge, and there was a trail of emails of the people that are listed to have seen the report. When I was drafting the report, I don’t know. When Adv Bawa showed the yellow text being included in the reports or even in the drafts, that shows that the reports were interchanged between me and the people that had access or awareness of the report. So that’s how I believe that that happened, so the remedial action being implemented et cetera. I think even from the notes, Adv Bawa pointed out that the notes say that this must be implemented during the meeting with the Public Protector.

Ms Dlakude: Thank you, Ms Mvuyana, for your response. When did you start working for the PPSA?

Ms Mvuyana: In 2013.

Ms Dlakude: 2013, okay. In your understanding, since you arrived in that office, is it common practice for the PP’s office to obtain an intelligence classified report?

Ms Mvuyana: I wouldn’t know, because I've never been involved in a matter or investigated a matter that had any issues with State Security – this was my first investigation in relation to that. So if the Public... another investigator would know, I don’t know. I've never had an investigation of that kind.

Ms Dlakude: Okay. You have indicated... my last question, Chair. You have indicated under direct evidence, that the report of Sikhakhane, KPMG and the publications made by Sunday Times on the operations were not binding, when you conducted your own investigation, nonetheless you used some of these reports to make certain findings, to finalise your report. Are you aware that KPMG withdrew its report, Sunday Times apologised for the false publication, and the SARS advisory board headed by Judge Kroon apologised for adopting the findings of the Sikhakhane report, are you aware of that?

Ms Mvuyana: Oh, sorry. I thought Adv Mpofu was coming in.

Chairperson: No, it was the Chair here.

Ms Mvuyana: Oh, okay, sorry Chair. I think it’s already been answered. The reports were used as evidence to state that basically they have been received; these are the reports that we received from and requested from SARS, we actually just requested information. And they supplied the reports, we included the reports in our report to say that, yes, these reports were investigated this is what they found. We then used other evidence that was obtained from SARS as well, which included internal documents from SARS. Not only did we use the reports to come to the findings. Soon the second portion of the question, of whether or not I'm aware, I'd like not to comment on that, because they’ve deliberated. But Sikhakhane - I'm not aware of it being retracted or disproved. I'm also aware of the KPMG apology and Judge Kroon’s apology.

Ms Dlakude: You were aware of the two, but still, some of the information of their reports was used in your findings and remedial actions. Okay, I’m done, Chair.

Ms Mvuyana: Oh, that doesn’t need an answer, it’s a comment?

Ms Dlakude: You can respond.

Ms Mvuyana: I’m not sure which portions of the findings were exactly as in their reports, the ones you’ve mentioned. But like I said, the reports were used as evidence, as well as other evidence that was submitted to make the conclusions. So it wasn’t just relying on the reports or copying and pasting them.

Chairperson: Okay.

Ms Dlakude: In your evidence you said that the evidence of Mr Pillay under oath was ignored. Why was that?

Ms Mvuyana: Sorry, was?

Ms Dlakude: The evidence of Mr Pillay who was under oath was ignored by the PP or the PPSA office, all of you. Why was that? Instead, they used of information that was given by someone like Mr Manyike who was not under oath – was used that information, but the one from the person who was under oath wasn’t, it was disregarded. Why is that?

Ms Mvuyana: I don’t know which information of Mr Pillay’s was disregarded, because his first response is detailed there, where we do put Mr Gordhan’s response, Mr Pillay’s affidavit. And we state that Mr Gordhan denied, Mr Pillay also denied. And then in the final report we also state that on this date affidavits were taken in et cetera. So I'm not sure which evidence was ignored.

Ms Dlakude: Okay...

Chairperson: Thank you, Hon Dlakude. I’ll now go to Hon Mileham, and then back to Sukers.

Mr K Mileham (DA): Good afternoon, Chair. Good afternoon, Members. And thank you very much, Ms Mvuyana, for availing yourself today. Ms Mvuyana, you said earlier that judges aren’t good at investigations. Can you tell me what the difference is between a judge and an investigator, please?

Ms Mvuyana: No, I cannot.

Mr Mileham: Okay. You also said yesterday in your evidence that you stood by your report, in terms of the so-called rogue unit. Do you stand by that right now?

Ms Mvuyana: Sorry?

Mr Mileham: So yesterday in your evidence, you said that you stood by your report and your findings in terms of the so-called rogue unit. Do you still stand by that report?

Ms Mvuyana: Did I say the findings or the investigation conducted?

Mr Mileham: Well the report itself.

Ms Mvuyana: I don’t recall saying the report.

Mr Mileham: So you don’t stand by the report then?

Ms Mvuyana: I said the investigation.

Mr Mileham: Okay, let me ask you...

Ms Mvuyana: The report has been set aside.

Mr Mileham: I’m aware of that, that’s why I was asking. Let me ask you this, in terms of the investigation, would you agree that the investigation into the so-called rogue unit was a shoddy investigation? In that it did not take into account all the evidence, it did not talk to all the implicated people; it did not seek all the evidence from various witnesses, and instead relied on selected evidence.

Ms Mvuyana: It relied on evidence that was before us, that we had received. So that is what I can say about that.

Mr Mileham: I’m going to repeat my question. Would you agree that it was a shoddy investigation?

Ms Mvuyana: No, I will not agree to the word “shoddy”.

Mr Mileham: Even though you did not take all the evidence into account?

Ms Mvuyana: What’s the meaning of “shoddy”?

Mr Mileham: Well exactly what I've just said. That you did not take all the evidence into account, you did not interview all the witnesses. We've heard earlier from Adv Bawa that you did not make every effort to even contact some of the witnesses. That to me is shoddy, and I'm asking if you would agree with that?

Ms Mvuyana: No, I still maintain not agreeing with “shoddy”. Maybe if you used another word?

Mr Mileham: Okay, let me rephrase it. Do you think that the investigation into the so-called rogue unit was a quality investigation... a high-quality investigation?

Ms Mvuyana: No, there were certain things that were overlooked. So it could have been improved and done correctly, I agree with that.

Mr Mileham: Okay, let’s put that to one side and let’s look at the... in fact, let me leave it there, Chair. Let me end on that note, thank you.

Chairperson: Okay, thank you, Hon Mileham. I now go back to Hon Sukers.

Ms Sukers: Thank you, Chair, with your permission I will keep my video off so that the connection is more stable.

Chairperson: That's okay. Thank you.

Ms Sukers: Ms Mvuyana, I just want to take off from where we got cut off. I heard you say that there was reflection on portions of judgments and there were attention paid to judgments that were critical of reports. Did I hear you correctly in entirety? Because I got cut off.

Ms Mvuyana: Yes, but I don’t believe all the judgments, or I was not part of all the judgments. But I have sat in focus groups, yes.

Ms Sukers: Okay...my next question to you is what changes or improvement, processes, new processes, new ways of doing things were introduced following such sessions? And if you can, please expand on this specific judgment... this investigation that you were a part of, and that was found wanting by the courts. What were the improvements and the new processes in the way you do things, in your investigations? What were those made by yourself or your unit in regard to that? So I asked you the broad question, and then I've just narrowed it down to say in terms of your investigation, specifically, that you were heavily involved with and where there were adverse judgments. Out of those sessions, what processes were improved on or changes made in how you work?

Ms Mvuyana: In relation to the focus groups, like I've stated before, the focus group that I went to is the section 6(9), which relates to considering the two-year rule. So a decision was taken by the Public Protector team as a whole - being top management - that the rule applied strictly. So that is currently happening. We really go into detail when identifying special circumstances, and also communicating those special circumstances at the beginning of an investigation. And if the special circumstances are not provided by the complainant in the complaint, they are now asked to provide reasons why they failed to report the matter within two years. Besides the focus groups, in relation to the investigations or the conducting thereof, improvements would be... one thing I know for sure is my diary has improved a lot. That's about it. I don’t know if there’s anything more that you require.

Ms Sukers: No, I think as a Committee, what we would like to know is that as you said earlier, I think you said you listened to parts of the testimonies of Mr van Loggerenberg and Mr Pillay. And there were portions of it that spoke of personal pain, spoke of the impact that it had on people, in terms of the investigation and not just the investigation but the findings. And so the question then is, what would you do differently as an investigator? You have now had learning, and certainly it has been gruelling learning. And you are sitting before a Committee now that is doing oversight over the Public Protector. What is being done differently within the organisation, and specifically yourself? I hear focus groups, but I'm asking what are you doing differently now as an investigator? Has there been had a conversation with you? In terms of improving performance / investigations, has the organisation introduced training that now results in improving the quality of the investigations, and implementing the criticism certainly that came out of the judgments?

Ms Mvuyana: I think I answered; maybe it wasn't satisfactory to you. But yes, there have been improvements.

Ms Sukers: What are those improvements?

Ms Mvuyana: Well, with the... I can’t comment on the emotional pain suffered, because that is now in the past, I guess. So in terms of going forward, is that what you’re asking?

Ms Sukers: No, I’m asking once you’ve had those judgments... Chair, it’s going into my time, and I think it's an important point for us as a Committee to know what was done after those judgments. I asked you specifically what is your attitude towards the judiciary. Now I'm going to come back to the issue of processes, it maybe gives you more time. What is the attitude of the Public Protector to the judiciary?

Ms Mvuyana: The Public Protector, the institution?

Ms Sukers: The Public Protector, Adv Mkhwebane.

Ms Mvuyana: I don’t know the attitude of Adv Mkhwebane towards the judiciary.

Ms Sukers: Is there anything in the reflection of the leadership of the organisation that shows that there is a respect? Like you said a respect for the judiciary, a respect translates into taking cognisance of what the court has said. And for that then to be like the Public Protector of Zambia said, for it to be a self-cleansing exercise almost. Is there that attitude being reflected? Either by your direct line, and now I'm broadening it – or by the Public Protector. After all of the criticism the office suffered, after all of the negativity that the office had a burden under. Has anything been done to change the way it operates?

Ms Mvuyana: Yes, Adv Sukers, thank you for clarifying. Yes, the attitude has changed. There are systems in place to ensure that investigations are conducted in terms of the SOPs and that there’s proper analysis, there’s proper collection of evidence, ensuring that all evidence is incorporated if necessary or relevant. I know right now we have regular full-bench meetings, whereby any report or section 7(9) that would be issued is thoroughly set down by management as a whole, that includes the APP, the CEO, your legal services, you quality assurance, the EMs, the COO, the PRs, the investigators that are relevant to that particular matter are also present. Every day when they do sit, rules change to be in line with whatever the achievement is of the report, so it must be concise, it must be proper. So those are the systems in place now, to try and curb that, and to show that we actually understood what the judges are saying, and to implement correct procedures and to follow them to the t, when doing our investigations. So definitely, there is that in the institution.

Ms Sukers: So was that done under the leadership of Adv Mkhwebane or was it done under the leadership of the current acting Public Protector?

Ms Mvuyana: I won’t be sure, but if I recall properly, the full bench idea, was suggested by the current APP, that time Adv Mkhwebane was on leave. And then when Adv Mkhwebane arrived back on leave, it was continued until she was suspended. Yeah, they have different management styles, so I won’t comment much on that. But they were in place, because the in-depth sitting down of everyone – all management, I don’t recall it happening during PP’s or Adv Mkhwebane’s era, but she did have a team of managers, I believe, that said to look at reports, so that would be your think tank, legal services, it would include her of course, legal services, and QA...quality assurance.

Ms Sukers: Yeah, I think... I’m sorry I interrupted you. Did you want to add something?

Ms Mvuyana: No, no, you can continue.

Ms Sukers: So if I understand you correctly that the changes were introduced by the acting PP Public Protector, and when Adv Mkhwebane returned from leave it was still continued, but it was under the leadership of the APP.

Ms Mvuyana: No, when Adv Mkhwebane returned it was under the leadership of Mkhwebane, until her suspension. So yeah.

Ms Sukers: Okay, so now you have to clarify for me. The changes, the improvements, the new way of working, that... was that, and you mentioned one, which was the full bench. That was done by the APP, that you’ve said to me a few minutes ago. And that when Adv Mkhwebane came back it continued, it wasn’t stopped, right?

Ms Mvuyana: Yes.

Ms Sukers: Okay, so now my question is... directly initiated by Adv Mkhwebane, to change or improve. I'm not talking about under whose auspices it was, when the person came back, because the initiation as you said was done by the APP, right? Now I'm asking which changes and improvements were directly, you can directly attribute to Adv Mkhwebane following the harsh and critical judgments - adverse judgments that were made against the Public Protector. What can you attribute to Adv Mkhwebane?

Ms Mvuyana: I'd have to recall the reports that were issued in between each person’s time, and I don’t.

Ms Sukers: Okay.

Ms Mvuyana: Yeah, but... yeah, no. I can’t recall any reports now, because I don’t work on all of the reports.

Ms Sukers: And you can’t recall any specific action that takes your organisation 180 degrees away from where it previously was as a consequence of the organisation suffering very negative rulings in public by the judiciary?

Ms Mvuyana: No, I can’t be specific in terms of when exactly the changes that now would put us in the spotlight again, or good spotlight, started. So some cases were won, some cases were not won. Yeah.

Ms Sukers: Okay, can you just lastly, tell the Committee...

Chairperson: Yes, that’s to be your last question, yes.

Ms Sukers: It is, yes. It is, Chair. Thank you, Chair. What is the attitude of the Public Protector South Africa, and I'm now talking about the office, does it see itself as right and the judges as wrong? Or does the organisation see the judgments as opportunities for self-criticism and improvement and self-correction?

Ms Mvuyana: From my own view and what I've seen, the judgments are appreciated and are seen as methods that can be used to improve the processes of the Public Protector, and how the Public Protector South Africa conducts investigations.

Ms Sukers: Thank you, Chair. Thank you, Ms Mvuyana, I appreciate your time.

Ms Mvuyana: Thank you.

Chairperson: Thank you. Hon Gondwe?

Dr Gondwe: Thank you very much, Chair. Good afternoon, Ms Mvuyana. How are you?

Ms Mvuyana: I’m good. How are you?

Dr Gondwe: I’m fine. I have a couple of questions for you. The first one is a follow-up on the question that Hon Dlakude asked you, her question related specifically to the Nugent commission report and the Kroon report, and the reporting by the Sunday Times. And in response to the question she asked, you said these reports were used as evidence. Then my question to you becomes, if they were used as evidence, why was some of these not reflected in the Rule 53 record and in the entries in the investigation diary related to the investigation into the so-called SARS unit report – the rogue unit?

Ms Mvuyana: If I recall correctly, Adv Bawa pointed out the Nugent report as not being a part of the Rule 53.

Dr Gondwe: Yes, she indicated. So my question to you is why were some of these not reflected? Even in the investigation diary she pointed out that there was no reference made to those reports, and in the Rule 53 record, to some of the interviews that were conducted.

Ms Mvuyana: Specifically in the diary, the reports would have been received from SARS. So when we received documents from SARS, the bundle of reports is there, except the Nugent report. I've already explained why the Nugent report was not in there, Rule 53. So in the diary it just says...

Dr Gondwe: Sorry, the Nugent report. What was your explanation? That it was already in the public domain?

Ms Mvuyana: Yes.

Dr Gondwe: Okay.

Ms Mvuyana: And so in the diary it just says response received from SARS. In the diary we don’t detail the specific documents that are submitted.

Dr Gondwe: And the Rule 53 record?

Ms Mvuyana: In the Rule 53 you would put them. Were they not there?

Dr Gondwe: According to Adv Bawa, and I think you conceded to the fact that, you know, they were not. Some of the reports were not reflected in the Rule 53 record.

Adv Mpofu: Sorry, Chair?

Ms Mvuyana: I don’t recall. I can confirm the Nugent, based on Adv Bawa, but from my records the KPMG and Sikhakhane reports are in the Rule 53.

Chairperson: Your mic is not on...

Dr Gondwe: That’s why I used the word “some” and not all. So it was only the Nugent report that was not reflected in the Rule 53, is that what you’re saying?

Ms Mvuyana: That’s what I’m saying, yes.

Dr Gondwe: Okay, just to follow-up on a question that Hon Mileham asked you. He asked you whether you thought the investigation into this so-called rogue-unit by the Office of the Public Protector was a quality investigation. And you responded to say no it wasn’t, because there were certain things that were overlooked in the course of the investigation. Please confirm to this Committee, which things were overlooked during the course of the investigation, and who’s to blame for overlooking those things.

Ms Mvuyana: I can’t comment on that. I won’t recall line by line what was missing.

Dr Gondwe: Okay, can you name one or two, because you mentioned that certain things were overlooked. So I'm trying to figure out...

Ms Mvuyana: From his pushing that there were certain people not interviewed. So he also gave the example that he made was that evidence was pushed aside or evidence was not considered.

Dr Gondwe: So are you conceding to the fact that...

Ms Mvuyana: The interviewing of certain people, yes.

Dr Gondwe: Okay, so certain people would include not interviewing a single person, you know, that supposedly belonged to that unit – that was a member of that unit. So not a single person, so things like that constitutes overlooking certain things in terms of the investigation?

Ms Mvuyana: Yes, things that could have been done properly.

Dr Gondwe: And impacted the quality of the investigation?

Ms Mvuyana: Probably.

Dr Gondwe: Okay, but you indicated that it wasn’t a high-quality investigation.

Ms Mvuyana: I agreed with your colleague.

Dr Gondwe: Okay, so if you agreed it doesn't mean you concede into the fact that it wasn’t a great investigation that could have been done better?

Ms Mvuyana: I just said that I don’t agree with the name of “shoddy”.

Dr Gondwe: And he came back and he used “quality”.

Ms Mvuyana: Yeah.

Dr Gondwe: And then you conceded that it wasn’t a quality investigation.

Ms Mvuyana: Due to some of the evidence, and not interviewing, yes.

Dr Gondwe: Yes, so you feel that impacted the quality of the investigation?

Ms Mvuyana: Yes.

Dr Gondwe: Okay. I have another question regarding this investigation. In the course of your evidence you indicated that there was some equipment that was, you know, that you determined belonged to the so-called rogue unit. Do you know where this equipment... I mean is it still in existence, do you know where it is?

Ms Mvuyana: No.

Dr Gondwe: And do you have evidence, and I’m talking about direct evidence, linking the procurement of that equipment to this so-called rogue-unit?

Ms Mvuyana: I don’t know if you want me to answer from the time, because I don’t have evidence.

Dr Gondwe: Yes, from the time of the investigation. So there was no evidence?

Ms Mvuyana: No, I don’t have... I thought you meant at the time.

Dr Gondwe: Yes.

Ms Mvuyana: That linked the equipment to the rogue unit?

Dr Gondwe: The procurement of that equipment to the rogue unit.

Ms Mvuyana: Yes, at the time we believe so.

Dr Gondwe: So it was evidence, direct evidence, in other words evidence showing that that unit procured that equipment?

Ms Mvuyana: It was, the unit... I’d have to argue the reports now, if I answer that question.

Dr Gondwe: Okay. Alright, so what do you recall about the equipment and the procurement of that equipment?

Ms Mvuyana: I recall that there was an allegation that was made, that the unit had certain equipment that was used for covert operations. So that unit was then procured through a particular memo, the memo was approved, and the equipment was then used.

Dr Gondwe: So I'm not entirely sure with the direct link. Just explain a bit.

Ms Mvuyana: Come again, sorry?

Dr Gondwe: The direct link in terms of the procurement.

Ms Mvuyana: We received a list et cetera, so those were the links.

Dr Gondwe: Okay. Alright, you stated in the course of your evidence that you were not privy to the report by the Inspector-General of Intelligence on the so called rogue-unit, but the report was in the Office of the Public Protector, am I correct? And you were not privy to it, because you did not have top secret security clearance.

Ms Mvuyana: Correct.

Dr Gondwe: And you then later revealed that you only had confidential clearance. May I ask why you had confidential and not top secret clearance? Because we heard evidence earlier in this Inquiry that a top secret security clearance was almost a requirement for all investigators.

Ms Mvuyana: Well when I arrived at the Office of the Public Protector I was a Trainee Investigator, that’s when the application to State Security was made, and at that time we could only know confidential information. Then when I became an Investigator, an application was made but we’ve never received any feedback from State Security.

Dr Gondwe: Yes, I’m asking this, because we’ve also had evidence that Adv Mkhwebane kept the former Deputy Public Protector Kevin Malunga outside, you know, outside of investigations, because he did not have a top secret security clearance. So my question then becomes to you, the fact that you had confidential security clearance, has that in any way hampered your ability to do investigations? Were you prevented from doing certain investigations because of that?

Ms Mvuyana: I would not know, because I'm not the allocator. I don't allocate to myself.

Dr Gondwe: So that has never been an issue. To your knowledge has that been an issue?

Ms Mvuyana: I wouldn't know, because it’s a discussion that has...

Dr Gondwe: No, I mean has anyone come to you and said the fact that you don’t have top secret security clearance...

Ms Mvuyana: No one has ever said that to me.

Dr Gondwe: Alright. Thank you very much, Chair.

Chairperson: Thank you, Hon Gondwe. Hon Mileham is that an old hand?

Mr Mileham: Chair, I wanted to ask one question that I neglected to ask, if I may.

Chairperson: Okay, go ahead.

Mr Mileham: Thank you, Chairperson. Ms Mvuyana, you said in your evidence that in the quality assurance process things get changed in the reports. So you said that once it leaves your hands it goes up the line to the Public Protector, and things get changed. Are you ever consulted on those changes? Do you ever have an opportunity to say - I'm sorry, but that’s not what I said, that’s not what I found, that’s not what my investigation showed?

Ms Mvuyana: Yes, the inputs are returned to me, so the document with the inputs. In some instances, it will be discussed. They explain their viewpoint and why it was inserted. Then we’ll either concede to it or I'll then make the final decision as the lead. In this case I was working with the team, so I won’t say I properly lead, because there was information that was included that I could not argue with.

Mr Mileham: Thank you. Thank you very much, thank you.

Chairperson: Thank you, Hon Mileham... Come again? We don’t do that, we’ll give you a special dispensation, because Hon Mileham would have cut short his time - it’s the reason I have him, but you’ll be the last one, and then I go to Adv Mpofu.

Ms Dlakude: Thank you very much, Hon Chairperson. Ms Mvuyana, I'm sorry to do this to you but the Chairperson at least gave me the opportunity. So during your evidence you said that, I mean... let me leave that. In the PP’s office, there is a system of circulating a report to managers, COO, CEOs, the legal services and also the quality assurers, before the report is released. So with regard to the SARS report, why would a different approach be used to deal with this? Not the normal way of doing things when it comes to reports. Thanks, Chair.

Ms Mvuyana: In this report, I wouldn’t know the exact reason of the break, because my line didn’t break. So my direct line to Mr Mataboge was not broken.

Chairperson: Okay, thank you Hon Dlakude. We now come back to Adv Mpofu, if he has any pickup questions. He had indicated about that email, so I'm reminding him, it’s one of the things he wanted to say so...

Clarification by PP legal team
Adv Mpofu: Yes, thank you very much, Chair. I appreciate that. Yes, thank you. Chair, can I not do that, I’ll explain why.

Chairperson: That’s fine.

Adv Mpofu: Let me just explain quickly why. That email was actually indeed displayed by Adv Bawa, without displaying the name. So we'll leave it there. We will post that document, and then when we deal with the PP, because it was really addressed to her, then we’ll deal with it then. But I think that issue of the email about Gordhan must be stopped, and so on. It's now been clarified, at least at this stage. But we’ll revisit it one day, when the Public Protector comes. Thanks, Chair. Now, okay, you’ve been asked some questions, and some questions. Isn’t it obvious or isn't it true that because of your security clearance status you were indeed hampered, in the sense that unlike the other members of the team you were not, you did not have access to the report?

Ms Mvuyana: Correct.

Adv Bawa: Anyway, I'll come back to some of these. Let's just start I think with the issue of the balance, that Adv Bawa was suggesting to you. And I just want to be clear on this, becauseyou’ve been accused of all sorts of things including favouring evidence that is not verified, versus that which was under oath and all that jazz. Now yesterday, you’ll remember that we established that the affidavit, sworn statement of Mr Gordhan, did not refute his role in the establishment of the unit.

Ms Mvuyana: Correct.

Adv Mpofu: In fact, he confirmed his role in the establishment of the unit, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: We also established that the... let’s call it, Trevor Manuel memorandum made it clear that the establishment of that unit would be illegal in the hands of SARS at least.

Ms Mvuyana: Yes, within SARS.

Adv Mpofu: Yes, and that indeed that unit was established within SARS, despite the knowledge of that illegality.

Ms Mvuyana: That’s correct.

Adv Mpofu: Okay, so when you’re doing this so-called balance that you’re supposed to do, the statement of Mr Gordhan which is the... which I called it yesterday, loosely, I must confess – an agreement or a confession of that wrongdoing. So you have your provisional findings, right? Then you have confirmation of the provisional findings under oath to the extent that I've just described by Mr Gordhan, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Yes, and... But you’re told that you have nothing under oath, but as you had a statement of Mr Gordhan which confirmed your provisional findings. Isn’t that a bit twisting the logic... Maybe I'm putting it strongly. Let me put it in a way that is not what I'll argue at the end. If there’s a statement that confirms your provisional findings and you have to do a balance, which side of that scale do you put it, do you put it on the things that are good for your provisional findings, or those that are against it?

Ms Mvuyana: In this case, based on the statement under oath confirming that he was responsible, or had a hand, or approved, or requested the establishment of the unit. The allegation as well as the memo stating that there would be a unit created et cetera. Yes, that would lead us to make a finding that he was involved in the establishment of the unit.

Adv Mpofu: Thank you, because we know, Chairperson, that the purpose of a response to your section 7(9) is to do two things. Either to refute your allegation or to strengthen it... or I suppose three things, to do nothing and leave it undisturbed.

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Yeah, okay, thank you. Then let’s go to this issue again, which I think was not, obviously not clearly understood of the alleged conspiracy vendetta, whatever you call it. And correct me if I'm wrong, my understanding is that what you and I had established yesterday, which has not been disputed, is that if there was a conspiracy vendetta, what have you, against Mr Gordhan and anyone else by the Public Protector in respect of this particular investigation. Then that vendetta campaign, whatever you call it, could not be executed without the participation of you and or Mr Mataboge.

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Right, so have you ever been accused or charged or disciplined at PPSA for being a member of that conspiracy?

Ms Mvuyana: No.

Adv Mpofu: Has Mr Mataboge ever been charged or condemned or accused or given an audi letter or anything for being a member of that conspiracy?

Ms Mvuyana: No, none that I know of.

Adv Mpofu: Yes, so the only person, the only member of that conspiracy who’s facing removal from their job - I'm saying “member”, quote on quote, of that conspiracy, would be the Public Protector, Adv Mkhwebane, correct? If it existed.

Ms Mvuyana: Correct.

Adv Mpofu: Do you know what a signal jammer is?

Ms Mvuyana: No, I've heard about the word in movies but I won’t know exactly what it is.

Adv Mpofu: Yes, I've also heard about it in movies, and also in this Parliament, I think it was used once. But to you knowledge, and I know you’re not an expert on this, neither am I. But is a signal jammer generally known as spying equipment or intelligence equipment? Maybe spying is too strong.

Ms Mvuyana: Yes, generally.

Adv Mpofu: Alright, now while we are on this issue of equipment. You remember yesterday we established that there were two issues about equipment. Firstly, it was its nature, like whether it’s a signal jammer and what have you, whether it’s spying equipment. But the second issue was also assuming it was not spying equipment was the fact that it was allegedly irregularly procured.

Ms Mvuyana: Correct.

Adv Mpofu: To the tune of about R40 million, give or take. I know that was not your figure, but that was the figure that was bandied about.

Ms Mvuyana: Yes, that was the figure in the report.

Adv Mpofu: Now if, let’s assume everything else, there was no rogue unit, there was no... All the equipment was nice equipment and so on. If you only established that there was irregular procurement of R40 million worth of equipment. Would that have attracted a negative report from the Public Protector?

Ms Mvuyana: It would depend on the process that was followed to procure the equipment. The amount...

Adv Mpofu: Yes, no, I’m saying... Sorry, finish.

Ms Mvuyana: The amount would not necessarily just lead us to making an automatic adverse finding.

Adv Mpofu: No, I'm saying, well... Okay, I’m saying that, that’s why I used the word “irregular” expenditure. If you had found that there had been irregular expenditure in respect of equipment worth R40 million, would that amount to the breach of the PFMA?

Ms Mvuyana: Yes, it would, irregular expenditure.

Adv Mpofu: Okay, alright. And on top of that, in this case, we have the issue of whether it was spying equipment or not. And then of course we have the issue of whether it was lawfully established or not, which we have already covered, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Alright, so then on all of those, let’s just take those three aspects. Based on the evidence that was before you, whether it’s the signal jammers or the absence of the procurement paper trail, or the evidence of Mr Gordhan. Would you come to any different findings on whether those three, just those three aspects were substantiated today?

Ms Mvuyana: With the evidence, the same evidence, yes.

Adv Mpofu: You would come to a different conclusion?

Ms Mvuyana: No, I'm saying I would come to the same conclusion.

Adv Mpofu: To the same conclusion? Thank you, alright. Now, Adv Bawa said the following in regard to the courts, I'm quoting her verbatim, she said if there are certain allegations put by an applicant then the court is entitled to accept that evidence. You would agree with that?

Ms Mvuyana: Yes.

Adv Mpofu: So in the case of the rogue unit judgment, who was the applicant who made those allegations of bias, dishonesty, which were then accepted by the court?

Ms Mvuyana: I believe it was Mr Gordhan.

Adv Mpofu: Thank you. Now just this one topic, which I think we have to put to bed once and for all, because it looks like despite all human effort to explain this, there’s still either deliberate or inadvertent as the word goes, failure to understand it. Let's just put it plainly, in the judgment you have referred to the section, I think it starts at 112, although in your statement it says 113. Can you put up the judgment, please... While it’s being put up, let me ask you. Is there any truth to the proposition that the Public Protector in the report said she had never seen the OIGI report?

Ms Mvuyana: No, there is none.

Adv Mpofu: There’s no truth. Now based on that incorrect statement, that incorrect statement, factually incorrect, should be plain to even a three-year old child, that it’s factually incorrect, is now repeated here at paragraph 113 of the judgment, okay? It says “The Public Protector relies on this report despite explicitly stating that she had not seen the report". That's part of that incorrect statement, correct?

Ms Mvuyana: That’s correct. In the report there is no...

Adv Mpofu: There’s no such thing?

Ms Mvuyana: Yeah... or explicitly stating.

Adv Mpofu: Yes, and then that same incorrect... go to paragraph 115, it says “Despite the fact that the Public Protector, according to the report, has never seen nor verified the contents and findings of the OIGI report, she ordered Minister...” what have you, that’s based on the incorrect statement that the Public Protector said she hasn’t seen the report in her report, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: That’s number two. Paragraph 116, the court says “It is difficult to understand on what basis these sections of the Constitution can nationally 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”. It's false that statement, it is not true. Correct?

Ms Mvuyana: That’s correct.

Adv Mpofu: Number four, go to paragraph 118, the judges say “Most alarmingly, 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...” That is factually incorrect. Right?

Ms Mvuyana: That’s correct, it’s incorrect, yes. That's correct what you’re saying.

Adv Mpofu: Thank you, alright. And then after those four factually incorrect statements demonstrably agreed, should be agreed by anyone who has eyes, okay? Then the punch line is then at paragraph 120, which says “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 else but dishonest”. Right?

Ms Mvuyana: Yes, I see that.

Adv Mpofu: Now if that dishonesty finding, which is what brings us here, is based on an untruth, can it withstand any logical sane scrutiny?

Ms Mvuyana: I won’t use “sane” or...

Adv Mpofu: Yeah, “logical”, maybe.

Ms Mvuyana: But basically...

Adv Mpofu: Alright, let’s put it this way, once you scrutinise it, if you look at those four things and come to the conclusion. And then on the one hand, on the other hand you establish that this actually has never happened. In other words you say the Public Protector stabbed somebody at the offices and you say it four times, and therefore she’s a stabber. But then you discover that actually she’s never stabbed anyone, but can the appellation that she’s a stabber of people survive if it can now be shown that the factual basis thereof is false?

Ms Mvuyana: No, you’re correct; it can’t, because of the report saying that she... yeah.

Adv Mpofu: And in fact, let me demonstrate to you that actually not only is it false that she ever said this, but actually if you read the report properly, you’ll see that there is more evidence that shows that she had seen the report. I'll show it to you now. Go to the report itself... Okay, let’s do it like this, maybe just to kill two birds with one stone about why certain documents were not listed and so on, something that was raised. Let's start at 4.4 of the report... okay let me use the paragraph because I think we’re using different sources. 4.4, yeah. Alright, that list, you were told why is this here, why is this not there. Is that... okay. What is the heading of that list, 4.4?

Ms Mvuyana: The key sources of information.

Adv Mpofu: Yes. When it says the key sources of information, does it mean that all the information that was ever used will be listed there?

Ms Mvuyana: No.

Adv Mpofu: Okay, that would be what would be regarded key, by whoever is compiling the report, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Thank you. Alright, let’s put that aside. So this kind of document doesn’t purport to be like a Rule 53, which lists every piece of information and in fact, the law says every scrap piece of paper.

Ms Mvuyana: Yes, no.

Adv Mpofu: Yes, alright. Okay, fine. Now that we’ve put that aside, let’s then go to the, what I call the proof that the Public Protector actually was not concealing that she had seen the report. If anything, she was revealing, maybe not in so many words. Look at the letter at 4.1.6, is a letter from OIGI from the Public Protector, dated 14 January 2019, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: 4.4.1.6, just where we were, on the same page we were just now. Okay, so a letter from the OIGI from the Public Protector, dated 14 January 2019. And 4.4.1.7, letter from OIGI from Public Protector; subpoena of the Minister of State Security; letter of the OIGI to Public Protector. 4.4.1.10, letter from acting DG of SSA; 4.4.1.11, letter to the Minister of South African Security Agency. All that would be... rather, the letters regarding the attempts to declassify the report, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Yeah. And more importantly 4.4.1.12, letter of the Minister of SSA dated 20 February 2019, now let’s go to that letter. You'll find it at page 5810, Bundle F, item 190. It's page 5810. Yes, that’s the letter, yeah. You can go to paragraph 2, okay. So in that letter, which is listed by the Public Protector in her report. If anyone had that letter, and go to it, this is what they will find, it says – and this information is freely available for anyone and even to this Committee. This is what it says “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 person(s), which is therefore patently unlawful”. As I said to you yesterday, forget about the legal conclusion of the Minister, but doesn’t this letter confirm that the report was dropped at PPSA.

Ms Mvuyana: That’s correct, it confirms it.

Adv Mpofu: Right, so that’s the first evidence of the Public Protector actually revealing a document which shows that she has seen the report, not the opposite that is said four times incorrectly in the judgment. Then if you go to paragraph 4.4.12. Okay, we were at 4.2.12 of the report, now just move a few pages. The letter is done, the report, the key documents, yeah... Yeah, thank you, 5.2.34. Then the Public Protector says there “The OIGI report recommended, inter alia, that...” one, “Criminal charges be investigated...” and so on, b “SARS produce a credible inventory of all operational equipment...” and so on. Could someone who has not seen the report write a paragraph like that?

Ms Mvuyana: No.

Adv Mpofu: And could someone who is concealing the fact that she has seen the report write a paragraph like that?

Ms Mvuyana: No.

Adv Mpofu: Okay. Now you were then asked about – by Hon Sukers and someone else, about learnings. You've confirmed that you were part of focus groups that dealt among other things, with judgments. Correct?

Ms Mvuyana: Correct, but I said I only recall one.

Adv Mpofu: Yes, and that was, the intention of such a focus group would have been to see what one could learn from the judgments in order to improve, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Yes, now, you’ve also, you made an example of changes that were effected as a result of the judgments that had to do with section 6(9), that’s the jurisdiction section, correct?

Ms Mvuyana: Correct.

Adv Mpofu: Yes. And are you also aware - and I'm asking this because I was involved in some of this litigation. Are you also aware that before, at least the Bosasa judgment and I think this judgment that we’ve just looked at and the Pillay judgment, there were two views about whether there should be a second audi after the section 7(9); and then when you get the remedial action whether you should get another audi. Are you aware of that?

Ms Mvuyana: Not so much. I just know that now the remedial action is within the section 7(9), yeah.

Adv Mpofu: Okay, good. That's exactly what I'm saying. Before then, well, I think it was... I can't remember which one, I think it was Mr Kekana who confirmed this, and there’s a memorandum from Mr Nemasisi and all that, don’t worry about that. But it’s sufficient for you to confirm what you’ve confirmed. Anyway, before the judgments, I can tell as a matter of fact, the PPSA took the view that section 7(9) was confined to the findings, not the remedial action stage.

Ms Mvuyana: Yes.

Adv Mpofu: Then the judgments came, including these ones that I had argued, and the Bosasa one, which said the opposite. After that, did the institution as you’ve just confirmed now, change to including the remedial action in section 7(9) as a result of learning from the judgments?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Thank you. And the... now you’re told that there’s a... you’re told that in terms of the quality of the report, there could be room for improvement. Have you ever written a report yourself as a lawyer or as a person – have you ever written a report or done an investigation, in respect of which a year later, if you looked at it there would be no room for improvement? In other words, it was like 100%. Or is that a natural consequence that if you were to do it again, you would change certain things?

Ms Mvuyana: Yes, that’s correct. I have. You always check your work and try to improve it.

Adv Mpofu: Yeah, right, now, tell me this, if... I’m going to ask you this in relation to two things. I don’t have time now to go to the judgment, but it’s been put up here. There's a judgment by the Constitutional Court, which says that some of the so-called scathing criticism by judges on the Public Protector is unfair, and which says that the judges made it fashionable to visit the Public Protector with personal and punitive costs in circumstances where it is unwarranted - just take that as a fact, okay?

Ms Mvuyana: Okay.

Adv Mpofu: Now I’m giving you that scenario. Let's assume then that, I don’t know... shall we say five, I’m just making it up, I think it was four, yeah... Say that on five times judges visit the Public Protector unfairly and in an unwarranted fashion with personal and punitive costs, okay?

Ms Mvuyana: Okay.

Adv Mpofu: Now in that scenario what is it that the Public Protector can learn? Who should improve, is it the Public Protector or the judges?

Ms Mvuyana: If on the five occasions...

Adv Mpofu: They wrongly and in an unwarranted fashion put punitive costs on her; she’s done nothing to deserve it. What must she improve? Who must improve, is it the judges or the Public Protector?

Ms Mvuyana: That's a difficult question, because the courts, unfortunately, are above the Public Protector.

Adv Mpofu: No, okay, fine, let me put it this way, there... let me assist you. The judge who said this, Judge Madlanga, said that this tendency should stop because it undermines the Office of the Public Protector. His words were you undermine that office; you undermine our democracy – his words in that judgment. So that warning, you think was it towards the Public Protector or towards those who had been doing the act of unfairly visiting her with personal costs?

Ms Mvuyana: I believe it was directed at the judges who made the scathing remarks and personal cost orders.

Adv Mpofu: Thank you. Now in the same vein, I read to you four pronouncements within the space of about five paragraphs or six paragraphs, where the incorrect assertion is made that the Public Protector said she had not seen the report. You remember that?

Ms Mvuyana: Yes, I remember.

Adv Mpofu: Now when you have your focus group or whatever you call it, and the Public Protector now has that judgment, which says something that does not exist, what can she learn from that? What learnings / improvement, all the things that Hon Sukers was telling us about – what learnings can she make? That she must not do what next time? Because it’s not true that she said in the report that she didn’t see the report. Who must improve here, is it the Public Protector or the people who wrote four times something that does not exist?

Ms Mvuyana: Hmmm...

Adv Mpofu: It’s fine, you don’t have to answer. It's fine, I think the answer is obvious, but I don’t want to put you on the spot. We'll deal with it in more detail. But you know, this is the kind of country we’re living in now. Where we’re told that we must have learnings and improvement. Improve on what when you’re the one who is the victim of being subjected to untruths and unfair personal costs? Improve on what? Anyway, alright. Now... the last one, Chair. Oh, sorry, it might not be the last one, Chair, let me look at this... Alright, just two quick ones, Chair, before I come to my last question. Alright, we know for better or for worse that you were not able to successfully subpoena Mr van Loggerenberg, and get any information from him, correct?

Ms Mvuyana: Correct.

Adv Mpofu: So having not been able to find him, and I say whether you are to blame or not to blame for that, that’s not where I am now. Would it have been then possible for you in the report, in the Public Protector, to include information from him?

Ms Mvuyana: Received, how?

Adv Mpofu: Well, whatever it is that you wanted to subpoena him for. If you had failed to get that information, would you... could you be blamed for it not being used in that report?

Ms Mvuyana: The information was not there though.

Adv Mpofu: Yes, thank you. And the information from... so the affidavit that is now bandied about of Mr van Loggerenberg is an affidavit that came in the litigation, correct? Long after the report was out.

Ms Mvuyana: Yes, that was my understanding from Adv Bawa.

Adv Mpofu: And then Mr Pillay, all these things that he says in his affidavit about the unit and all that, were those things put in his response to the section 7(9), to your memory?

Ms Mvuyana: Yes, to my memory they were. His response to the 7(9) in the final report.

Adv Mpofu: Right, and to the extent that they were put in the section 7(9), were they considered by you and the Public Protector in fashioning the final report?

Ms Mvuyana: Yes.

Adv Mpofu: Okay, yes, and then you’re told... again, I'm going back to that balancing exercise but for a different purpose, Chair. You were told... it was selectively said that you only relied on Mr Manyike without verifying him, Mr De Waal and the recording, without authenticating it and so on. Isn't it a fact that you’ve told this Committee yesterday that you also relied largely on information supplied to you by SARS?

Ms Mvuyana: Yes.

Adv Mpofu: As a result of the subpoena.

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: And did you have any reason to doubt the authenticity of that information?

Ms Mvuyana: No, there was no reason to doubt.

Adv Mpofu: Thank you. Now... oh, now I don’t know what my last question was. Alright, it’s a small one. Adv Bawa put to you that Mr Mataboge said that the Public Protector is involved from start to finish in an investigation. Now you tried, I think it was yesterday and today as well, to qualify that by saying that she gets involved at a high level, not with the... what you call it, assessment of evidence and the nuts and bolts of any investigation. Remember that?

Ms Mvuyana: Yes, that’s correct. I remember.

Adv Mpofu: Now let’s assume now the Public Protector was like this busybody who wanted to get involved in every investigation literally, as it is being suggested. My information is that at any given time, as fortunately we are now in the provinces, countrywide there would be more than 200, up to 300 investigations going on at a time, correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: So would it be humanly possible, even if she was a busybody, would it be humanly possible for her to get involved from start to finish, in a literal sense, in all these 300 investigations going on around the country?

Ms Mvuyana: No.

Adv Mpofu: Lastly, and is an investigation diary... and I accept, I don’t want to take away from your concession made to Adv Bawa that there could have been more items listed in the investigation diary. But the question I want to ask, is an investigation diary like that list, meant to record literally everything that happens... every phone call or is it also about key milestones in the investigation?

Ms Mvuyana: It’s key milestones.

Adv Mpofu: 6073, sorry, Chair, sorry, I misled you; this one is really the final. The affidavit... and again, you may not...it might be an unfair question, because the affidavit of Mr Lebelo, which was made to... before the commissioner retired, judge Nugent. 6072 of Bundle F, item 190. I take the point, Chair, that the... and Adv Bawa, I think assisted us in this. That you were not one of the recipients of this. It was sent to Mr Rodney Mataboge and Ponatshego Mogaladi, the EM. But while looking for it, I just want to say to you, Chair, and maybe the Members. If anyone is interested in understanding this whole rogue unit issue, that 66-page document I read yesterday, and this affidavit which is 135 pages, contains almost everything that you’ll ever need to understand. But the point is that this document, although it was not sent to you, it’s obvious that it was being sent for the attention of the team. Let's just go to the next page, sorry, 673, just so that you can see it. Alright, and just maybe to try and refresh your memory, it starts with... Go to the next page, it starts with observation. It deals with the media reports; it deals with the so-called Kanyane Panel. Go to 6086... It deals with the Sikhakhane outcome and the appointment of Mr Moyane. Yes, go to 6087. It deals with what it calls “clarity on the different investigations and their roles”. Adv Sikhakhane panel... next one, Adv Brassey. Next paragraph... KPMG. Next paragraph, investigation findings of Brassey. Next paragraph, next section, sorry, about 51. Yeah, Ivan Pillay, and then it discussed in particular at paragraph... If I may just... at paragraph 54, it then goes in detail and I'll read it out “On point 2.1 of the memo, Mr Pillay and/or Mr Gordhan asks the then Minister for funding of R48.9 million over 3 years to establish a unit within NIA for ‘Collecting of tactical intelligence’, possibly intended for penetrating and intercepting organised criminal syndicates”. “On the same point 2.1, Mr Pillay and Mr Gordhan state that ‘This is an activity for which SARS does not presently have the capability (including the legislative mandate to manage clandestine activity)”. And then 56, “In other words, and as Adv Sikhakhane correctly pointed out, it was through Mr Pillay and Mr Gordhan’s admission (no one else – not even me) that SARS does not have the legislative mandate to manage clandestine activity – that is ‘to collect tactical intelligence, penetrating and intercepting organised criminal syndicates’”. And then it goes on to misrepresentations by Pillay. It goes on to covert spying by current employees, engagement of informers, projects... and so on, allegations that van Loggerenberg disclosed information to the media, and so on, and so on. So that document, the evidence of the Public Protector will be that it was received, indeed as it says in December 2018 and forwarded to the team. And obviously then used either by them or by you. Do you... are you familiar with that document or at least of its existence if not its contents?

Ms Mvuyana: The existence, I believe so, because there was a discussion held with Mr Mataboge saying that they did... he did receive a document after, I think before, after the meeting. Oh, yeah, the meeting was to take the team through this document, if I recall.

Adv Mpofu: Yes.

Ms Mvuyana: Yeah.

Adv Mpofu: Okay. No, thank you, we’ll deal with it when the Public Protector testifies. But I'm just... so this, at least, you may not have been involved with this document to as much extent as other people, including Public Protector. But this was part of the material available to the team, broadly speaking, in six months before the report was released. Correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Thank you, Chair. I just want to say, Chair, that we’ve... and I'm not doing this, we should, I was just... I was trying to object when Hon Dlakude was posing her questions, in the same vein that I did this morning. I think it’s our responsibility, Chair, and yours, and all of us, to try and protect whistle-blowers. You know, there’s a problem in South Africa, whistle-blowers we just don’t care for them and that’s why they get killed, left right and centre. So let's please not have questioning that says – well somebody dropped a document anonymously or as a whistle-blower, and could it have been Mr Shabalala, could it have been Adv Mahlape, could it have been this one or that one. Please, because what if the witness says – yeah, well, yes, I do think it was Adv Shabalala. Then if he was a whistle-blower then we all know who that is. So I'm just... I know it was not intended in that fashion, but it’s just something we should just be weary of. Just one second...

Chairperson: Thank you.

Adv Mpofu: Sorry, Chair, I'm getting these notes, left right and centre. Alright, so I think we covered this yesterday, but Adv Shabalala obviously wants to be the leader of the team, as the Chair’s been trying to elevate him. But sorry, on a serious note... The... Okay, is it a fact that the responses of both Mr Pillay and Mr Gordhan were taken into account when you did the final report, and even referred to in your final report?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Yes. And in fact, and also to be fair, the responses of SARS were also taken into account?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: In fact, it is in that connection that the Nugent report was quoted in the final report. It was not because you just went around looking for the Nugent report per se. It's because in this section 7(9) responses, it was cited to you.

Ms Mvuyana: Yes, it was cited in the...

Adv Mpofu: Well, it was cited by you obviously in the section 7(9)s, but also in the responses you were referred to it by SARS and others.

Ms Mvuyana: Yes, correct.

Adv Mpofu: Yes, thank you. And the... just to be clear on this, Mr van Loggerenberg, although he was mentioned, was not himself a target of negative findings in the sense that he would have deserved to receive a section 7(9) notice?

Ms Mvuyana: Yes.

Adv Mpofu: He was... yes, we know that he was mentioned, and they said he’s a recipient. And I think I made... he was in the same league as Mr Makwakwa for example, who was also accused of having received personal money in his account.

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Yes, and nobody has ever suggested that you should have given Mr Makwakwa a section 7(9) or regard him as an implicated person. Correct?

Ms Mvuyana: Yes, that’s correct.

Adv Mpofu: Thank you, Chairperson. Thank you, Ms Mvuyana.

Chairperson: Thank you. Ms Mvuyana, we’ve now reached the end of our interaction with you. Is there anything you want to say to the Committee as your last comments?

Ms Mvuyana: No, no, there’s no comments.

Chairperson: As a remark to the Committee?

Ms Mvuyana: No.

Chairperson: Should we take a break and we’ll come back?

Ms Mvuyana: No, I'm perfectly fine with leaving. All I can say is good luck to everyone.

Chairperson: Okay, thank you Ms Sinqobile Bianca Mvuyana, for availing yourself before and during the last two days to come and present to the best of your ability what you know, in relation to the issues that were identified for your testimony. On behalf of the Committee, I want to thank you for your time, your contributions. We do hope that whatever you place in front of this Committee would be useful to our deliberations, and to the kind of work that we’ve been mandated to do by the National Assembly. And on that note, you’re now officially excused. Thank you very much.

Ms Mvuyana: Thank you.

Chairperson: And then colleagues...

Adv Mpofu: Chair? Oh...

Chairperson: Hon Members, we are going to proceed with our Committee meeting, just to indicate that we have received a correspondence from the PP. And I had directed that that correspondence be sent to all Members, which it was. And had indicated that immediately after we conclude with Ms Mvuyana, we are going to have a Committee session to attend to all of those issues. So it will be a Committee session that is open to the public in all of its platforms. But we will excuse the Evidence Leaders as well as the Public Protector and her team. They can both join if they so wish, in whatever platforms as they normally do, so that today they Sollow the deliberations of the Committee. So for us, we’ll take a quick break, 10 minutes break and then we come back and then we will resume the Committee session. Thank you very much, colleagues.

Adv Mpofu: Thank you, Chair.

Chairperson: See you tomorrow. Thank you.

[Break]

Letter from Public Protector
The Chairperson said that this session was for the Committee to attend to one particular and urgent matter. This meeting was called in response to the correspondence that was received after tea, from the Public Protector. After receiving the correspondence, he had immediately instructed that it be shared with the Members. The letter raises about six issues, and the Committee would attend to it and make a resolution on each of the issues.

Ms Fatima Ebrahim, Parliamentary Legal Advisor, said that the Committee had received a letter today from Seanego Attorneys, at approximately 11:30am this morning. The letter raises various issues, but as the Chairperson had instructed, the Committee will deal with each one (see letter for detail).

A. Evidence of Prof Madonsela
The letter states that “The deadline for the submission of Prof Madonsela’s affidavit was 22 February 2023. We communicated this fact to her when she insisted on preparing her own statement either with the evidence leaders or “independently” but not with the legal team of the Public Protector. The Chairperson unilaterally and without any consultation with us granted an extension until Friday, 24 February 2023. That deadline too was not met in that the statement was only delivered on Saturday, 25 February 2023 when members of our team were busy preparing to travel to Cape Town and with preparations for the evidence of Ms Mvuyana which had been interposed for 27 and 28 February 2023. Upon proper reflection and after consideration of the statement which is not only late but also unintelligible in parts, it has become clear that we would be doing our client a huge disservice if we were to proceed with dealing with the evidence of Prof Madonsela on schedule (March 2023 in spite of the above)”. “Accordingly, we have firm instructions to reschedule the evidence of Prof Madonsela to a later mutually convenient day and without breaching the seven-day rule”.

Ms Ebrahim said that she would provide the Committee with a background. She recalled that there was an application received from the PP on 13 December, but it was only dealt with in this year. In the application she requested that various persons be summoned, which included Prof Madonsela. Prof Madonsela’s name also appeared on the witness list of 8 November. On 24 January, the Committee then considered the request to subpoena various persons, and the Committee agreed that it would subpoena Prof Madonsela.

At that stage when the decision was made, the Committee did not have regard to any response from Prof Madonsela to the request or invite from the PP, because Prof Madonsela had not responded to that letter. In fact, she had only responded to them later the same day and the issue was then reconsidered by the Committee on 1 February. In her response, Prof Madonsela’s stated that she declined the invitation, because she did not see her evidence as being relevant on the one hand, and on the other hand she indicated that the information could be found via other sources at the PPSA. After consideration, the Committee then decided that it will still want her to appear before the Committee, specifically on the Vrede and CIEX matters. This was then confirmed to her in a letter from the Chairperson.

On 7 February, Prof Madonsela responded in writing, she said that it was still her view that her answers would not be relevant and that it can be obtained by other means, but that she would avail herself to the Committee on 1 March. Prof Madonsela also asked for independent legal advice to draft the statement and that such independent services be procured by the PPSA. The Chairperson sent a letter of response to Prof Madonsela, which reiterated that her evidence is limited to the Vrede and CIEX matters. The Chairperson also indicated that if Prof Madonsela needed assistance, that the Evidence Leaders would be availed for that purpose, but that her request would also be referred to the PPSA and ask that they respond to her directly.

Ms Ebrahim explained that there was some to’ing and fo’ing in between. Ms Ebrahim said that she had placed a telephone call to Prof Madonsela to explain that she appeared as a witness on the PP’s witness list, that she was requested to appear at the behest of the PP. There was concern from the Evidence Leaders that there should not be a perception of bias. Prof Madonsela expressed concern that she did not want to appear before the Committee as a witness for either the Evidence Leaders or for the Public Protector, rather she wanted to come to the Committee to assist the Committee independently. Prof Madonsela then indicated that she would do her own statement. The Committee gave her an extension until 23 February, instead of 22 February which was the initial due date for the statement. On the same day she received a letter from Seanego Attorneys, in which they raised various issues and further questions that they wished to pose to her.

Ms Ebrahim received an email from Prof Madonsela on 22 February, where she copied in the PP’s legal team. Prof Madonsela said that she was unable to submit her statement within the stipulated timeline for several reasons, she explained “I have no idea what I’m required to depose to, due to the fact that I now have three letters with disparate contents that purport to request me to avail myself as a witness, and which indicate the crux of evidence required from me”. Ms Ebrahim explained that there had been letters sent from Seanego Attorneys on behalf of the PP, indicating that they want Prof Madonsela to answer questions in relation to things beyond the Vrede and CIEX matters. However, there was communication from the Committee to Prof Madonsela, which requested her to testify only on the Vrede and CIEX matters. The Chairperson then wrote to Prof Madonsela indicating and confirming what her evidence is sought on, but she had also received a letter from Seanego Attorneys indicating that they will not accept any deviations from the seven-day rule and that they cannot commit to how much time they would need to deal with the statement once it is received. This was sent to Prof Madonsela on 24 February, and also informs what has been raised in the letter that was sent to the Committee today.

Ms Ebrahim said that the directives are silent on the issue of the seven-day rule for a witness like Prof Madonsela; particularly that she would be submitting a statement on her own accord. If the Committee is of the view that the seven-day rule should still apply, then the Committee can do so. When making a decision, the Committee could have regard to the length of the statement; whether there has been sufficient time for the PP’s team to consider the statement; and that the PP’s team had indicated that they wish to put questions to the former PP, and their recent letters have all indicated what that line of questioning would be. The Committee would have to consider the issue of fairness, which is paramount in the process when making its decision on how to deal with this.

Discussion
The Chairperson asked Members for their inputs on the evidence of Prof Madonsela.

Mr B Nkosi (ANC) asked whether Prof Madonsela would be available tomorrow.

The Chairperson replied that Prof Madonsela would be available for tomorrow and Thursday, as scheduled and according to the programme.

Mr Nkosi agreed that the decision should be fair in considering Prof Madonsela’s decision that she does not want to appear as a witness for either the Evidence Leaders or for the Public Protector. He proposed that the Committee should proceed to allow her to appear before it tomorrow to give evidence. He said that the Committee had already confined her evidence to what is sought on. He felt that it was adequate for the Committee to proceed with her evidence tomorrow and Thursday.

He expressed concern about the interference of the programme, that it would be overrun unnecessarily. He said that the Members of the Committee also have other responsibilities in other committees.

Mr B Maneli (ANC) felt that the seven-day rule should not be applicable in this regard, particularly because Prof Madonsela had already submitted her statement and is prepared to appear before the Committee tomorrow and on Thursday. He said that he did not get a sense that there was a challenge of not being prepared to proceed on either side. He appreciated Prof Madonsela’s willingness to appear before the Committee, especially after expressing her reluctance on the basis that the information would be available through other sources.

Ms V Siwela (ANC) said that she was concerned about the delays that the Committee was experiencing, because the Members of the Committee also belonged to other committees. She noted that Prof Madonsela would stand as an independent witness. She did not think the seven-day rule was necessary if Prof Madonsela had already submitted a statement that would assist the Committee.

Dr Gondwe agreed that the Committee should proceed with Prof Madonsela as scheduled. She said that the programme for the rest of the week should not be changed, because time was of the essence. She reiterated the concern that the Members of this Committee have halted their participation in other committees, and this process has also prevented some Members from concentrating on their constituencies.

She referred to directive 1.3 and said that the Chairperson has the power to condone the seven-day rule, provided that there is good cause to show that and if it is in the interest of fairness.

Ms Dlakude agreed that Prof Madonsela should proceed to appear before the Committee tomorrow, especially since she was available. If the Committee decides to change the date, then it might create a problem. She reiterated that this was not the only Committee that the Members served on; therefore she agreed that the Committee should stick to its programme as a living document, unless advised otherwise by the legal services.

Ms M Tlhape (ANC) said that the Committee should welcome Prof Madonsela’s availability to the Committee. She concurred that the Committee should proceed with Prof Madonsela’s evidence tomorrow, because the Committee might struggle to reconvene another date.

The Chairperson noted that there has been a level of unanimity in the Members’ inputs. He asked Ms Ebrahim to proceed with addressing the rest of the issues contained in the letter.

B. Evidence of Mr Mataboge
Ms Ebrahim said that there was a suggestion from the PP’s team that Mr Mataboge appear tomorrow and the next day, instead of Prof Madonsela. Mr Mataboge was only scheduled to appear on Friday, 3 March, this is after the PP’s team had invoked the directives to give them additional time to consider the evidence that he presented, because he did not submit a statement.

She noted that the Committee expressed the view that Prof Madonsela should continue for tomorrow and the next day as per the schedule. This would mean that the suggestion of the PP’s team on the evidence of Mr Mataboge also falls away. She said that the Committee would have to indicate whether the schedule for Friday would be maintained.

C. Calling of further witnesses
The letter indicated the necessity to call Mr Maimane, Adv Sello Maema and Mr David Linda as further witnesses.

Ms Ebrahim said that she was not sure whether this was an application or a request for the Committee to now agree to call these witnesses. The directives do provide for the Committee to call additional witnesses; it makes provision that the PP may make an application to the Committee to summons any person that she feels needs to appear before the Committee.

D. Appeal for reconsideration of non-calling of various witnesses
The letter requested the Committee to revisit its decision not to summon Mr Cyril Ramaphosa, Mr Pravin Gordhan and Ms Natasha Mazzone as witnesses. It further stated that the failure to call these witnesses must be accompanied by reasons.

Ms Ebrahim explained that the Committee has dealt with this matter a number of times. It forms part of the subject matter of the review proceedings currently before the High Court. The latest correspondence on this matter indicates that the Committee considers this matter closed, but if it were that the Western Cape High Court reaches a different conclusion, then the Committee would then reconsider its position.

E. Refusal to recall various witnesses
The letter similarly requested the recall of Mr Pillay, Mr van Loggerenberg and Ms Baloyi.

This matter has been raised a number of times and forms part of the current review process. The letter also states that failure to recall these witnesses must be accompanied by reasons. Ms Ebrahim reiterated that the Committee’s last correspondence on this was that it considered this matter closed, and that it will only reopen it if the High Court rules differently.

F. Repeated muting of legal representatives
The letter expressed an objection to the Chairperson muting the legal representative(s) from the electronic platform, more recently on 23 February. The letter demanded reasons as to why the Chairperson had muted the legal representatives of the PP, it also demanded an unconditional apology from the Chairperson.

Ms Ebrahim said that in terms of the rule, a chairperson is meant to preside over meetings. That is the role of a chairperson in any parliamentary committee. Implicit in that is that a chairperson must maintain order. By way of comparison, she referred to rule 80, which is applicable to the Speaker - it specifically allows the Speaker to mute the microphone in the House. She further pointed out that rule 183 says that any person’s appearing before the Committee, including legal counsel, must conform to the procedures and directions of the chair.

Further discussion
The Chairperson requested the Members to comment on the various other issues raised in the letter.

Mr Mileham said that if the PP’s legal team wish to call additional witnesses, then it is within their power to do so. If those witnesses refuse to attend, then they can request that those witnesses be subpoenaed. The Committee has not been requested to subpoena those witnesses. He does not think that the Committee should entertain this, until such time that it is asked to subpoena those witnesses.

The Committee has dealt with the request to recall witnesses on several occasions. He noted that Ms Ebrahim had been clear that the Committee agreed that it would wait on the outcome of the High Court.

He said that he did not want to address the issue of the witnesses that the Committee chose not to subpoena.

He referred to the issue of muting. He felt that it was long past time that the Chairperson exercised his authority to mute Adv Mpofu. He has repeatedly interrupted Adv Bawa, the Chairperson and Members of the Committee. He said that the Chairperson was polite in asking Adv Mpofu not to interrupt, and only instructed for him to be muted after he had continued to interrupt. He felt that the Chairperson was perfectly in his rights.

Ms Dlakude noted that the Committee agreed that it would proceed with Prof Madonsela’s evidence tomorrow and Thursday, and that the Committee would deal with the evidence of Mr Mataboge on Friday.

She said that the witness list cannot be open-ended. Ms Ebrahim was correct to say that the matter was closed by the Committee.

She referred to the issue of muting the legal representatives. She reminded the Members that the rules of virtual and hybrid meetings are applied the same. People should indicate when they want to speak, but when a Member or a person keep on disrupting the proceedings then the rules apply, those individuals will be muted.

Dr Gondwe said that the issue of Mr Mataboge’s evidence falls away, because the Committee already agreed that Prof Madonsela should appear before the Committee as scheduled.

She agreed with Ms Dlakude, that the Committee cannot have an open-ended list of witnesses. She said that if the Committee calls further witnesses, then it runs the risk of overrunning the programme – as Mr Nkosi had pointed out.

The Committee should stick to its decision and stand by its reasons on the non-calling of various witnesses, as well as the decision to not recall witnesses.

On the repeated muting of the PP’s legal representatives, she explained that this Committee is an extension of Parliament. Parliament has rules that pertain to hybrid and physical sittings. The Chairperson has certain powers, to maintain the decorum of the House. She said that the PP’s legal representatives are no exception to the rules of Parliament. The Chairperson did not owe Adv Mpofu and apology, because he was interjecting and interrupting. It is upon the Chairperson to ensure that the decorum is maintained.

Ms Sukers agreed with Dr Gondwe and Mr Mileham’s comments on the muting of the PP’s legal representatives. She said that it is time that Adv Mpofu realises that this is Parliament; it is no one's playpen. It was prudent to enforce the rules and it was high time. The behaviour of the legal team in many instances does have a material impact on the flow of the hearings, and the Committee cannot ignore that. It is important that the rules of Parliament be adhered to and implemented in this hearing. The whole of South Africa is listening. This hearing is holding the Public Protector to account. It is the body of Parliament operating its constitutional mandate.

On the request for additional witnesses and the recall of witnesses, she said that the Committee cannot have an open-ended process that further balloons the cost to the South African taxpayer, and further impedes the Committee from fulfilling its mandate timeously.

The people of South Africa need to hear the Public Protector of South Africa speak to this Committee, and she needs to fulfil her constitutional mandate to the people of South Africa through this Parliament.

Mr Nkosi referred to the issue of the muting of legal representatives. He explained that the Chairperson has the right to call Adv Mpofu to order when he violates the decorum of the Committee, as the Chairperson does to all Members. In all committees in the legislature, the Members are called to order.

On the refusal to recall witnesses, he agreed with the comments made by Ms Ebrahim. He said that the request should come in the form of an application, which provides the questions and the reasons that the Committee should recall those witnesses.

On the request to call further witnesses, he said that the PP should demonstrate the relevance of the evidence that would be given by those witnesses.

Chairperson’s comments
The Chairperson said that he would attempt to summarise the Members input on each issue raised. He said that the Committee seemed to confirm that its programme that has been scheduled until Friday stands.

The Committee received the statement of Prof Madonsela on Saturday, 25 February. He noted the confusion created in the correspondence, particularly by the legal team of the Public Protector that had written to Prof Madonsela requesting that she make a statement in relation to things beyond Vrede and CIEX. This Committee has been very clear that it would confine Prof Madonsela’s evidence to the Vrede and CIEX matters.

He expressed concern about the timing of the letter that the Committee had received today. He noted that the PP’s legal team had received the four-page statement of Prof Madonsela on 25 February. It cannot be that they only raise their concerns a day before the witness is to appear before the Committee.

In summary, the Members agreed that the Committee should proceed with Prof Madonsela’s evidence as scheduled. Therefore, the Public Protector is directed to attend with her legal team as scheduled for tomorrow and Thursday.

The Committee’s programme scheduled until Friday 3 March remains the same. So the Committee would expect Mr Mataboge to appear on Friday.

On the request to call for further witnesses, overall, he noted that the Members have expressed that this is not an open-ended process. The PP should demonstrate the relevance of such evidence, because there is also an option to request written statements or affidavits in relation to that. The Committee would have to be convinced why it would be necessary to call further witnesses.

The Committee are long past the point of dealing with the issue of the non-calling of various witnesses. The Committee’s decision remains unless the PP’s legal team provides new evidence to demonstrate why the Committee should reconsider its decision.

On the request to recall Mr Pillay, Mr van Loggerenberg and Ms Baloyi, those are three witnesses that were concluded on. Evidence was led, there was cross-examination, Members had asked questions and the matters were concluded. The Chairperson reiterated that there should be new evidence as to why the Committee should reconsider its decision.

On the issue of the muting of legal representatives, the Committee had expressed that this is a rules-based institution. The rules and directives of this Committee empower the Chairperson to mute a person that disregards the authority of the Chair. The Chairperson said that instead of directing a response to the PP’s legal team, that the response should be directed to the PP. The PP’s legal team represents the PP. The PP would need to explain, on record, whether she condones the kind of conduct and behaviour of her legal team.

The Chairperson asked the Members if he had summarised the Members views correctly.

Ms Dlakude agreed with the summary. Mr Nkosi seconded.

The Chairperson said that the Committee will resume tomorrow at 10am. He would ask Ms Ebrahim to communicate the Committee’s decision for this week's programme.

Meeting adjourned.