PP Inquiry day 59: Rodney Mataboge

Committee on Section 194 Enquiry

02 March 2023
Chairperson: Mr Q Dyantyi (ANC)
Share this page:

Meeting Summary


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

The Public Protector (PP) legal team continued with the cross-examination of Mr Rodney Mataboge, Chief Investigator at Public Protector South Africa (PPSA). Thereafter Mr Mataboge responded to questions posed by Members and later Adv Bawa, during her re-examination.

During his cross-examination, Mr Mataboge informed the Committee that the PP did not conceal the fact that she had possessed the classified Inspector-General of Intelligence (IGI) Report. At the time, he believed that it was not unlawful for the PP to be in possession of the report, because both she and he had top secret security clearance. However, in the questions put to him by Committee members, Mr Mataboge conceded that his top secret security clearance did not mean that he had access to all classified documents.

The rest of Mr Mataboge’s cross-examination focused on the PP’s investigations into the establishment of the alleged South African Revenue Service (SARS) "Rogue Unit"; the Pillay pension matter; and CR17 campaign/Bosasa matter. In his testimony, Mr Mataboge confirmed that he was the lead investigator in each of these investigations. All three of these investigative reports were set aside by the courts.

In his closing remarks, Mr Mataboge highlighted his concerns with the current state of power that has been afforded to the Public Protector by the legal prescripts. Having one individual with such power had a negative impact on the efficient functioning of the Office. As such, he proposed that the legislation be reviewed by Parliament. Doing so would also bring PPSA mandate and scope in line with ombudsmen in other countries.

The Section 194 Committee indicated that it would hear the evidence of Prof Thuli Madonsela on 6 and 7 March 2023. This follows correspondence between the Committee Chairperson and the Public Protector (PP) legal team the night before.

On 1 March the PP legal team had noted that it did not intend to lead the evidence of Prof Madonsela as she was not their witness and neither had they consulted with her. In response, the Evidence Leader, Adv Nazreen Bawa, SC, explained that as the PP legal team had requested the Committee to subpoena Prof Madonsela to appear before the Inquiry, she was therefore their witness. Towards the end of the proceedings, the Chairperson noted that the PP legal team had accepted the offer to lead Prof Madonsela’s evidence during her testimony.

Meeting report

Chairperson: Welcome to the meeting, both here and on the virtual platform, the Public Protector, her legal team led by Adv Mpofu, Evidence Leaders Bawa and Mayosi, members of the media, support staff and the members of the public. It is now 09:15. Apologies for the late start. We are not going to waste any time. I am going to ask Adv Mpofu to continue. I think he will not need this time, but we are hoping he will take us up until 15:00. I am sure he will give us time in-between that but if he needs it, that is the time he has for today. Over to you, Adv Mpofu.

Adv Dali Mpofu: Thank you, Chairperson. Yes, I hope I will not need all that time. But, Chair, there are some issues, which I wanted to raise. But I want to make a proposal that, just so that we do not mess up the record, we continue with the witness, and maybe at the end, or I will indicate around lunchtime, but I will need about 20 minutes or so. That includes the correspondence that we have received overnight and some of the issues we did not deal with yesterday. Thank you, Chair. Is Mataboge with us? Good morning, Mr Mataboge.

Mr Rodney Mataboge: Morning, Adv Mpofu. I am here. Good morning, Chairperson, the Committee and PP.

Adv Mpofu: Okay. Thank you very much, Sir. Alright. I am going to try not to keep you for long today. We covered quite extensively, the Bosasa Report yesterday, and the judgment. And I just want to end that on a note that the minority judgment that we covered extensively, basically, largely, supports your report and indicates that the key persons, such as the President and his CR17 Team, had effectively lied under oath, and that the emails that you had found disproved their version. So I just want to leave it at that as a summary of what I will argue comes out of that minority judgment. Bearing in mind, of course, that there was a majority judgment and it found otherwise, except that it also did not find that there was any need for personnel or punitive costs. Do you agree with that summary?

Mr Mataboge: I do agree, Adv Mpofu.

Adv Mpofu: Thanks. So today I want us to move on to… You would have had last time that I was complaining that Adv Bawa had not covered Bosasa, and Pillay and the other reports, and had concentrated on what I call the cleansing of Mr Gordhan in relation to the Rogue Unit. So that is why I started with those reports because otherwise, if we lose you on those, then we will get the benefit of your evidence. So in that vein, I am now going to start or rather, not necessarily start, but I will concentrate today on the Pillay Report, which was also not covered that you are involved in. And then as far as the so-called Rogue Unit, I will just cover some aspects because we dealt with it quite extensively with Ms Mvuyana. And then the Vrede II report I will also touch on it probably very minimally because in my view is not relevant for this Committee. Can we proceed on that basis?

Mr Mataboge: Yes, Adv Mpofu. But as a comment from me. I wished that, just like Ms Mvuyana dealt with the Unit, the investigator who had dealt with her appointment would have also been here, as he was the one who did the groundwork. I was more of the supervisor. But now that I am here I can talk to what relates to supervision and the processing up to the end of it. But it would have been ideal, just as Ms Mvuyana took us through this, step by step, if there would be questions relating to that.

Adv Mpofu: Yes, thanks. I think that is a fair comment. So you are saying that the ideal situation would have been in the Pillay Report to also have you as the supervisor, but also the person on the ground, as we did with the so-called Rogue Unit?

Ms Mataboge: Yes, advocate, especially when one considers my testimony yesterday on Bosasa, where I knew what to say and what I did, what was my role and what process unfolded. I believe the investigator here would also similarly, like Ms Mvuyana, would know most of the salient and final questions that would be asked, if they are asked. Thank you.

Adv Mpofu: Yeah. No, thank you very much. I think actually, that is a fair comment. I think we all overlooked that because ideally we should have you and the investigator, except of course with Bosasa, because there you played both investigator and Chief Investigator as it were, correct?

Mr Mataboge: Correct, Adv Mpofu.

Adv Mpofu: Alright. Well, we will see if the… By the way, who was the investigator in Pillay?

Mr Mataboge: It is Mr Njabulo Mathabela.

Adv Mpofu: Oh, yes. Well, we will see. If after dealing with it with you, and we think that there are gaps, then we will approach the Committee to call him but hopefully that will not be necessary, if what you are going… In fact, the approach I am going to take is to concentrate more on the judgment, Chairperson, to try and circumvent that, rather than the report because normally I use both the report and the judgment. You did read the Pillay Judgment, correct?

Mr Mataboge: Yes, I did, Adv Mpofu.

Adv Mpofu: Alright. We will see how we go. Maybe if we use the judgment as the springboard as opposed to the report, per se. Of course, you have also read the report, but the point you are making is that you are not the person who did the groundwork?

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

Adv Mpofu: No, fine. Now, maybe let us start with what I call just the sweep up on the Rogue Unit, so that I can use the remainder of the time and hopefully give some of the time back to the Chair. I will use the remainder of the time for Pillay and I will see how we go. Alright. Now… No, I think as I sweep up, let me start with Vrede II so that we get that out of the way, because it is just one or two questions. Is my understanding correct that the so-called Vrede II Report is the report that was initiated as a result of Parliament having instructed, I do not know if that is the correct word, that Vrede I we know that there was a hullabaloo about politicians not being mentioned and all that. And then Parliament then had interactions with the Public Protector’s Office, and…

Chairperson: Specifically the Justice Committee, then, as it is an extension of Parliament.

Adv Mpofu: Correct. No, fair enough, Chair. The Justice Committee then had interactions with the Public Protector’s Office and felt that a second investigation focused on this issue. In fact, I think there were two issues raised, to be fair; it was this issue of the politicians and then the issue of beneficiaries. So that is what we… That whole story, I have just given, is what gave birth to so-called Vrede II, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Alright. And one of the things you did – well, obviously then there was a specific focus on politicians because that was the main complaint. But one of the other things that you then did was to consult beneficiaries, specifically and have a meeting with them and so on, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And were you aware that in relation to Vrede I, and I think we know that you were not involved in Vrede 1, but as a matter of historical perspective, did you know that in Vrede I that had been a promise, for lack of a better word, made by Mr Maimane to assist the Public Protector by obtaining statements from beneficiaries, which promise was just never fulfilled for whatever good or bad reason?

Mr Mataboge: No, I was not aware of that.

Adv Mpofu: Okay, that is fine. We will cover that with the PP. But in relation to the, specifically… No, it is fine. I think we will leave that for Adv Madonsela. But in any event, that report was then finalised and it is not really relevant for the purposes of this Committee. But it was duly finalised and presented and everyone was happy in the end, correct?

Mr Mataboge: That is correct, Adv Mpofu. Even the Premier issued an implementation plan on what the PP had directed on what should happen with the project itself, for the benefit of the beneficiaries.

Adv Mpofu: Yes, okay. Thank you. Alright, let us move on to the so-called Rogue Unit. Alright, again, the charges were read out to you, and the so-called Rogue Unit, Pillay, Bosasa and all those still fall under the same cluster of charges that were read to you last week and that I referred to you yesterday – 11.3 and 11.4. Once again, as I emphasised with Ms Mvuyana, the focus of the Committee is not necessarily to establish whether there was a Rogue Unit or there was no Rogue Unit or whatever. Or that whether it was a good thing or a bad thing to have an investigative unit, but simply whether in its establishment operations, recruitment, equipment issues, the correct prescripts of South African law regulatory framework was followed, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And that regulatory framework, that is just a term that we use, rarely to cover the whole the whole distance. It could mean internal HR (Human Resources) policies, the PFMA (Public Finance Management Act), applicable…

Mr Mataboge: SCM (Supply-Chain Management) policy and so on.

Adv Mpofu: Yes, SCM policy, procurement policy, applicable legislation right up to the Constitution of the Republic. That constitutes the framework whose breach, or otherwise, it is your duty to investigate, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Right. Now just something that I did not raise squarely with Ms Mvuyana in that connection. In fairness to her, she did take us through the other legs of what I call the regulatory framework. She remarked about the document policies or SCM policies, about the HR policies, and even about the two pieces of legislation that you, well, three pieces if you include the PFMA, that you had gauged the alleged conduct against. But just for the sake of completion, I would like to just refer you to… or rather, maybe let me put it as a question. It is correct that on top of all those prescripts, you also had to take into account the applicable constitutional provisions, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And specifically Section 209 of the Constitution, which I will read out for the record, Chair. It is quoted in the report. 209 (1) says that “Any intelligence service, other than any intelligence division of the Defence Force, or Police Service, may be established only by the President, as the head of the National Executive and only in terms of national legislation.” And you found that that prescript had not been followed? In fact, I think it was common cause. Let me put it this way, nobody claimed that there was any permission, or establishment of this unit by the President of South Africa, correct?

Mr Mataboge: That is correct.

Adv Mpofu: So the only debate, if any, would have been around whether this particular Unit was hit by this section, but otherwise, on the factual stuff, there was no debate, correct?

Mr Mataboge: Correct.

Adv Mpofu: Okay. And we know, at the very least, that according to Commissioner Gordhan, at the time, in his memorandum to Minister Trevor Manuel, he acknowledged that what in the Constitution is called the applicable national legislation would have been breached, if they had simply established this within SARS without the involvement of the Intelligence Ministry, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yes. Alright. I will not take you through that long journey of the manual document because we dealt with it with Ms Mvuyana. Alright, but maybe just for the sake of completion… Sorry, Chair. Alright, I am sure the record will come to the correct name of that Act; I just do not have it off the top of my head. But the other Act or part of national legislation that you had looked at was what I am abbreviating as the Interception Act? It has a longish name, but I think we said it earlier. Is that correct?

Mr Mataboge: That is correct.

Adv Mpofu: And that is the Act that defines what interception is, but more importantly, it says that for you to be able to intercept communication of another person, you must obtain the permission of a judge – I am just paraphrasing – correct?

Mr Mataboge: That is correct.

Adv Mpofu: Right. So it would be then fair to say your findings covered the full distance; the Constitution, the two pieces… well, the one piece of intelligence legislation, the one piece of interception legislation, and then the one piece of governance legislation – that is the PFMA – as well as the domestic policies within SARS, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Okay. Again, I will not get deep into all of those. We went in great detail with Ms Mvuyana through the Section 7(9) letter and all those issues are extensively detailed there. By the way, did you have time to listen to some of all or all of Ms Mvuyana’s evidence?

Mr Mataboge: No, I did not, Adv Mpofu.

Adv Mpofu: Okay. Alright, that takes away my next question. But then you just have to take my word for it, that we covered extensively the issues regarding the Rogue Unit. These issues that I am skimming over with you, we went into much more depth. We literally travelled almost through the 66-page letter, Section 7(9) letter to Mr Pillay, so I am not going to deal with those. The only issue that I think, with the permission of the Chair, we need to deal with you almost separately, for obvious reasons, because Ms Mvuyana did not have complete insight into it, is the IGI (Inspector-General of Intelligence) Report issue, but even that, I am just going to skim through. And that is because you, unlike her, had security clearance, correct?

Mr Mataboge: That is correct, Adv Mpofu.

Adv Mpofu: Right. This is another area and there is a hullabaloo about this. And I think, again, I will not go into the issue of whether or not the Public Protector claimed to not have seen the OIGI (Office of the Inspector-General of Intelligence) Report. I will not go much into that. I think it has been now well established that was just an incorrect piece of information. But maybe just for the sake of completion, can you explain to the Committee whether in your estimation, or in your assessment of what was going on for the six months leading up to the report, the Public Protector ever concealed or hid from anyone, the fact that there had been an anonymous report dropped at the offices? I am sorry, the report anonymously dropped at the offices.

Mr Mataboge: Not to my knowledge, Adv Mpofu. The PP did not conceal to anybody. I remember we had met with the IGI and Dr Dintwe and a legal representative from the IGI Office. There was no indication that the PP was concealing or hiding that the report had been dropped.

Adv Mpofu: Yes.

Mr Mataboge: I am even trying to remember when we met them if this dropping of the report had occurred or not. I am trying to remember, but I am not sure.

Adv Mpofu: Which came first? Yes.

Mr Mataboge: Yes.

Adv Mpofu: Yeah. I can just assure you that the undisputed evidence here at least, is that and this comes from a letter sent by the Minister, I think on the 20th of February 2019. The undisputed evidence is that the Public Protector confirmed, at least to that Minister, that the report had at that stage already been dropped. And that is not disputed. Alright. Yes, and Dr Dintwe, in a separate letter, also intimated or at least confirmed even the date, the date of the report to the Public Protector. And I think we had a recording that was played here much earlier in this Committee, where the discussion also does not support any theory of concealment. Alright, anyway. I think this leads us to something that, as I say, concerns you specifically and not so much Ms Mvuyana. You have testified that you had this policy, which I suppose is a matter of style, it is not a written policy, of shielding yourself from information which might poison your findings; I think that is what you said when you were being questioned by Ms Bawa.

Mr Mataboge: It is more of a practice than a policy, Adv Mpofu.

Adv Mpofu: Yes. Okay, fine. I think that it is a better… It is your own practice, or what I call style of… I suppose investigators might, like lawyers, have different styles of approaching their work. Am I right?

Mr Mataboge: That is correct.

Adv Mpofu: Sorry?

Chairperson: Go ahead, Adv Mpofu.

Adv Mpofu: Okay, thank you. And you testified that you applied that practice/style, or in relation to the 2014, sometimes called the 2012 Report, but it is the earlier report, let us call it that, which happened during Ms Madonsela’s time, regarding issues to do with the so-called Rogue Unit, correct?

Mr Mataboge: That is correct, Adv Mpofu.

Adv Mpofu: Yes, but either because of her position or because of a different style, Ms Mvuyana told us that she, on the other hand, used that report and actually used some of the information coming from it. And you knew that she was using it, correct?

Mr Mataboge: Yes, correct. And not only her. I had also, in the Vrede II, had adopted the same style of practice with regard to the Vrede I Report. And the investigator then, also seemed to have gone into the Vrede I Report, but not myself because they are the ones who draft and put in information.

Adv Mpofu: Okay. No, fair enough. Thank you. I think that puts that issue to bed because I wanted to clarify that. That the fact that you as the chief investigator adopted that practice did not mean that you were forbidding the people who reported to you from doing it. You just wanted to insulate yourself from being ‘poisoned’ by the earlier report, correct?

Mr Mataboge: Poisoned is not the correct word, if I may. Maybe influenced, you know?

Adv Mpofu: Yes. Well, influenced. I can live with that. You then testified that you adopted the same posture in relation to the IGI Report. Although you had access to it, you elected not to be influenced by it, correct?

Mr Mataboge: That is correct.

Adv Mpofu: So now, okay, this part I cannot ask you in a leading session, because that is the part that I need to get from you regarding your evidence. There was an issue about access. Maybe let me put it this way. Sorry, Chair? Yes, if you go to, I think it is Bundle F, Item 190. I just want to show that there were two separate issues about access to the report and seeing it or reading it, as two distinct acts. Would you agree with that?

Mr Mataboge: Yes, Adv Mpofu.

Adv Mpofu: Alright. Now, I think it is common cause that…

Chairperson: She is asking for the page number.

Adv Mpofu: Oh, yes. I am sorry. 5814. It starts at 5810. I just want to say this because I think that distinction was not made clear. At the risk of stating the obvious, there is no debate that you had because of your security status, access to the port, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Just as you had access to the Vrede I Report but you elected not to look at it, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Right. Now, if you go to 11 point… Can you just go to 5810? Let us just see what we are talking about. Just have a look at that. That is a letterhead of the Minister of State Security, and it is a letter addressed to Adv Mkhwebane. And just for the sake of, since it is here, although that is not what I am questioning you about. Paragraph two is the one I was talking to you about earlier, where the Minister confirms that “During the meeting the PPSA informed her that a copy of The Secret Report was purportedly delivered to their offices by unidentified persons, which is therefore patently unlawful.” That is what I was talking about earlier. But I am not taking it to that letter for that purpose. Now, can we go to 11.4? That is at 5814. Okay, here the Minister is basically prescribing how the report should be handled, on the assumption that you, and when I say you, I mean all those who are legally entitled to have it. But the interesting one is 11.4. You see that she says she wants to know the identities of all the persons who had access to/or sight of the report? So she distinguishes between access to it, and the sight thereof, or the reading thereof. “The Office of PPSA must be furnished'' and so on. Now, what I want to ask you, really, is therefore, bearing that in mind, if you go to page 5808… Right. You said that you had forgotten or it was something that became clear when this was pointed out to you. But you say there, and this is a reference to that report, “subsequent to it being given to me by Mr Nkabinde, a few days after the meeting, I put it in the safe.” Now what I want to know, do you know in what form it was given to you? Was it open access? Or was it in an envelope? Or was it in whatever? In what form was it given to you by Mr Nkabinde, if you can remember? I know that it is a long time ago.

Mr Mataboge: Yeah, I am trying to remember. That is why I grappled with this question the last time when Adv Bawa was asking me about the report because as a Chief Investigator, I have had so many commissioned reports and all, pass through my hands. So I would not remember exactly whether it was in an envelope or whether it was in a lever arch file. Honestly, I do not remember.

Adv Mpofu: Okay, good. And then you put it in the safe, but before you put it in the safe did you read it?

Mr Mataboge: No, I did not read it.

Adv Mpofu: Okay. And why did you not read it?

Mr Mataboge: For the same reasons I advanced, Adv Mpofu, to say that when I quality assured the work of the team, I would want to have an open mind as to what they would have sourced as evidence and utilised. So that I must not be apace with them at the level at which they were writing, when I am now supposed to be quality assuring. I must have a sort of stand aside posture to what they have written. That is why, in other reports, that is what I said. I said let me not be influenced, if I may use the word influenced, at the same level and time as them, when we consider evidence.

Adv Mpofu: Okay. But you accept that using the distinction of the Minister, and if that answer you are saying is correct, then you still had access but did not read the report? Is that what you are saying?

Mr Mataboge: I still maintain that, yes.

Adv Mpofu: Now, if you go to the email just below that, please. Then there are two significant issues there, Chairperson. Maybe I will just read them out and then ask you to comment. They now blame… I am interested in the four paragraphs and the last one. The fourth paragraph says “All officials who had access”, so this time there is no reference to reading or whatever, “to the report have top security clearance.” The names that are put there are “Rodney…” I am sure that is you?

Mr Mataboge: That is me, yes.

Adv Mpofu: “COS” (Chief Staff). We struggle with some of these acronyms. COS is Chief of Staff. Am I correct?

Mr Mataboge: That is correct, Adv Mpofu.

Adv Mpofu: Okay, that is for Hon Nqola. PA is Personal Assistant, right?

Mr Mataboge: That is correct.

Adv Mpofu: Actually, for the sake of the Members, identify those people by name. The Chief of Staff would have been Mr Nyembe?

Mr Mataboge: Yes, that is correct.

Adv Mpofu: PA, Mr Nkabinde?

Mr Mataboge: That is correct.

Adv Mpofu: And ‘myself’ is the Public Protector?

Mr Mataboge: That is correct as well.

Adv Mpofu. Yes. And then she inquires from Ms Mogaladi “Pona, do you have top security clearance", right? And then she mentions Section 5(3) of the Public Protector Act; that is the section that says you may not be criminally held liable for good-faith work that you are doing as part of the Public Protector’s Office, I am paraphrasing, correct?

Mr Mataboge: That is correct. Yes, Adv Mpofu.

Adv Mpofu: And then I think the important one, the last sentence, regarding the earlier issue of concealment or non-concealment, the Public Protector says “I disclosed that we have the report instead of only informing that Noseweek published the report.” There is a bit of an echo? Did you get that, Mr Mataboge?

Mr Mataboge: Yes, I got all of it.

Adv Mpofu: Yes. So now if as she says she disclosed that she had the report? In other words, she could have just said, ‘Oh, well, I just saw it on Noseweek’. But she disclosed that she had the report. Does that strike you as the actions of someone who was concealing that she had seen the report?

Mr Mataboge: No, not at all. Not at all.

Adv Mpofu: And this communication is the 20th. February 2019, some five months before the report was released, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Okay, thanks. As I said, the other IGI stuff we dealt with Ms Mvuyana. I just wanted to deal with the issues that pertain to you. And of course, maybe for the sake of competition, we know that in the report itself, the Public Protector went as far as to state what the findings or recommendations of the report are, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Could she have done that by some magical, I do not know what, process, if she had not seen the report?

Mr Mataboge: No she would not have.

Adv Mpofu: Okay, thank you. Alright, now… Or maybe let me put it this way. If she was concealing the fact that she had seen the report could she then in the same breath, have stated what it says?

Mr Mataboge: Come again, Adv Mpofu? I am not getting the question.

Adv Mpofu: I am saying that if she was hiding the fact that she had seen the report, could she in the same breath, the same report, then state in detail what it recommends?

Mr Mataboge: No, she would not have done that.

Adv Mpofu: Alright, thank you. We are now moving away from the IGI Report. There was another suggestion that, well, it was just a transparent attempt to introduce a Mr Ngobeni into the picture, but I just want to demonstrate that is obviously unsustainable. You know that there was this controversy about the IGI Report and the legalities around it and so on. And that there was therefore the procurement of the services of a senior counsel, correct?

Mr Mataboge: I do not recall that.

Adv Mpofu: You were referred to – okay, let me refer you to 5820. You testified that there was, or rather… Alright, you know that the letters “SC”, in relation to lawyers, refer to senior counsel.

Mr Mataboge: Yes, now I know.

Adv Mpofu: Okay. It was fortunately spelled out at 5820 at the bottom. Mr Nemasisi, who is the legal person – I am sure he knows – says… Are we on the same page? Oh, that means I have the wrong page. Chair, this is unusual.

Adv Nazreen Bawa: Can I assist you, Adv Mpofu?

Adv Mpofu: Yes, please.

Adv Bawa: There are sometimes multiples of the same emails, and they are in a train. So you might have the same one but not done differently. If you know what I am saying?

Adv Mpofu: Yeah, yeah.

Adv Bawa: So it could be the same thing but it is just so I know in the documents the same email may appear ten times and I may have referred to it or you may be using a different version of it than before.

Adv Mpofu: Alright, fine. Okay, let us do it like this then, because this is for the benefit of the Members, so that they can find it when they are looking for it, not me. So we will use the one on the screen. So that email trail, basically, this is an email from the PP that says “Legal services can you get a legal opinion from SC about this matter? They now blame PPSA for not reporting receipt of the report and violating the Protection of Information Act.” That is from the PP, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Alright. Now, on my configuration that is…

Adv Bawa: Sorry, Chair, through you? Adv Mpofu, you are wanting to go to the SC reference that I took the witness to. That is not this email.

Adv Mpofu: No, I will go there. I wanted to start here. I know where that one is. We will go to it. Alright. I am just wanting to show the reference to SC in this thing ‘legal services can you get a legal opinion from SC’. And then can you roll it up a little bit? Mine is 5818 but let us use yours as 5820. Roll it up to the other email on top, from Mr Nyembe. It starts with ‘Good day, Adv Sikhakhane’. I do not know what is happening now. 5818? Well, then we are on the same page, literally. Thank you. Alright, you said that you did not know at that time, but you were copied on the earlier, the one that says ‘can you get a legal opinion from SC’. This was at 16:30. And then this one is about an hour later. It says ‘Good day, Adv Sikhakhane’ and so on. I know that you are not copied there but was there any other SC involved in this matter other than Adv Sikhakhane, to your knowledge?

Adv Nazreen Bawa (Evidence Leader): Chair, he has not said that they had knowledge of Mr Sikhakhane not being involved in the matter.

Adv Mpofu: Alright.

Chairperson: You were quick. I have not recognised you but you were having a direct interaction with Adv Mpofu.

Adv Mpofu: That is fine. I understand. She is right.

Chairperson: Thank you.

Adv Mpofu: Alright, maybe let me put it this way. From the two emails that I have shown you, the one which says “legal opinion from SC” and then the one an hour later referring to Adv Sikhakhane, the Public Protector will when she testifies, confirm that the only person that had been briefed on this was Adv Sikhakhane, as it seems obvious. Did you have knowledge of any other SC involved, including Adv Sikhakhane?

Mr Mataboge: No, I would not have known because at this stage, that is where our legal services people interact and deal with the…

Adv Mpofu: Alright. No, no. Now, I think I get it. So what you are saying is that in the earlier email where you are copied and where Mr Nemasisi is copied – that is the head of legal – and then he is addressed directly “legal services, can you get a legal opinion from SC about this matter’. That was not being addressed to you, specifically? And you did not know who that SC is? Maybe Mr Nemasisi did know. Am I right? Mr Mataboge, have we lost you?

Chairperson: He is not there? Mr Mataboge is not there. Just a few minutes, Adv Mpofu. We will get someone to call him so that he reconnects. Just a two minute pause, Adv Mpofu. I do not know who put it there, but it is an investment.

Adv Mpofu: Well, it is obvious, Chairperson. It was put by none other than Adv Mkhwebane. That will be the first question I put when she comes to the stand: ‘who put the generator that works so well?’ Thank you, Chair. Right, I was saying, Mr Mataboge, when we were disturbed, I wanted for you to confirm if my understanding is correct. The email that we looked at earlier says ‘legal services, can you get a legal opinion from SC about this matter?’ And I was checking whether from your answers, even though you were copied in that letter, and this particular instruction was directed at Legal Services, you did not know who they were talking about?

Mr Mataboge: Yes, correct.

Adv Mpofu: Obviously, between the sender, that is the Public Protector and legal services, they knew who they were talking about, correct?

Mr Mataboge: I believe so, Adv Mpofu.

Adv Mpofu: Yes. And maybe just for completion… No, that is fine. I understand. Then Ms Bawa’s correction of me was correct. The… If you go to 5816, at the bottom. The middle sentence says “we are now in the process of checking the availability of the senior counsel.” Again, that is not identified and you are copied. Again, you just knew that there must be some senior counsel but you did not know the identity. Am I correct in my understanding?

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

Adv Mpofu: Just roll it up. Again, this is ten or fifteen minutes later or thirty minutes later, let us be generous. There is another email which says “Thanks Mr Nemasisi. Adv Muzi Sikhakhane is available to meet at 11:30 tomorrow.” So you are saying you did not make that connection?

Mr Mataboge: No, if I was copied then I would have started to make the connection because I am copied here.

Adv Mpofu: Yes. In fact, you are copied in both. No, that is fine. I think that it is obvious now. Now, let us go to the one that Ms Bawa did refer you to. And that was the exact point. She did not refer you to that one that makes it obvious who the SC is. But she referred you to a different one that makes it look like it is debatable. Okay, if we go to 6548. Then this is the one you were referred to. Yeah, it is sent to you and you are not just copied, by the Public Protector. And she says “Actually, we can discuss PG (Pravin Gordhan) today. You can indicate the time in the afternoon and the Bosasa. Thursday I get a draft to share with SC, before finalising it if necessary." And then you said “I am also in agreement with PP of sharing the Bosasa draft with SC before we finalise it. Perhaps even the Rogue Unit one, Madam.” And I think your evidence was that it, again, was a question of sharing it. You knew that SC meant Senior Counsel. Was there any reason to believe that now SC suddenly meant somebody else?

Mr Mataboge: No, there would not have been any reason, Adv Mpofu.

Adv Mpofu: Okay. Alright, thanks. Let us leave it there. The PP will explain all of this. Alright, I should try and save time. Do you remember the exchange; I think it is at 5897. There was an exchange about where you were overwhelmed. This side, the PP wanted a report and a draft Section 7(9) and the other side Ms Baloyi wanted you to go to some meeting, and you indicated that you were caught between a rock and a hard place – I think that was the heading of your email. Do you remember that?

Mr Mataboge: I do, Adv Mpofu.

Adv Mpofu: Right. Now, I want to just say something about that, because the Public Protector has been portrayed as some monster and dictator and all sorts of things. My understanding of that conversation, and you will correct me if I am wrong – which you find at 5897. It starts at 5896 and I will paraphrase it, to try and save time. Basically, you are invited to a meeting by Ms Basani Baloyi, and you say that ‘may I be excused’ because the PP had deadlines, two section 7(9)s, the Rogue Unit, the Pillay appointment and all of that. And then Ms Baloyi basically tells you where to get off. To say you must attend her meeting. I think she says ‘Unfortunately you have to attend the meeting, as this is your matter. Your apology is not accepted.’ Something like that. Remember that?

Mr Mataboge: I do, Adv Mpofu.

Adv Mpofu: And then you write to the COO (Chief Operations Officer), and this is the rock and a hard place email, to say that you are now caught between instructions from different, I suppose, all of whom are senior to you, correct?

Mr Mataboge: That is correct.

Adv Mpofu: The Public Protector resolves the issue by saying “Rodney, attend the COO meeting. I will get the three tasks as soon as you are done. Send me the drafts of the Pillay report, you Section 7(9)”. In other words, she almost gives in to say well go to their meeting. I know you are now caught between a rock and a hard place but you should rather prioritise them as it were. And my question is, really, is that the sign of a leader who is a dictator?

Mr Mataboge: No, it is not. With how I felt at that time, I thought that she would protect me in that instance.

Adv Mpofu: Yes, thanks. So you expected her to protect you or to say ‘No, come to my meeting. I am the Public Protector here’?

Mr Mataboge: Something like that. Especially because, if I may explain a bit, you know, since the team I lead, you know, had to hold these complex cases and report directly to the PP, sometimes, you know, we were being perceived as, I would not call it a blue-eyed boys or the blue-eyed team – the special team. That did not sit well with some people in the office. And that is why now I say protection was somehow needed to direct me going forward, as well as my team.

Adv Mpofu: Yes. And to be fair, you were handling very sensitive, or what we may call special reports: Bosasa, Rogue Unit and Pillay were some of the more complex matters, correct?

Mr Mataboge: That is correct.

Adv Mpofu: So sorry. I am sure she will apologise for disappointing you. But that is why you thought she would come to your rescue and tell these other people where to get off

Mr Mataboge: Yes, because I knew their motive. They were just trying to say to me ‘You are under us, so come here’.

Adv Mpofu: Yes. Alright, thank you. Alright, let me do this then so that we then get out of the Rogue Unit matter before tea time. I am going to propose some shortcut of how we deal with this; otherwise we have to go through the painful exercise like we did with Ms Mvuyana. Can I refer you to – I will refer you to two pieces of evidence, if I get to that. If I do not, before tea, I will refer you to one. If you go to 6072. Yes, this is an affidavit… Okay, this was sent to you and Me Mogaladi by the Public Protector on the 7th of December 2018, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And it incorporates an affidavit which is too long – 135 page affidavit of Mr Luther Lubelo, submitted before the retired Judge Nugent. Do you remember that?

Mr Mataboge: Yes, I do.

Adv Mpofu: And I proposed to the Members that if anyone wants to understand, blow by blow, the whole Rogue Unit saga, apart from reading that 66-page document, that they should read this affidavit. Would you agree?

Mr Mataboge: I would rather not comment on that.

Adv Mpofu: Okay, let me put it this way. In your assessment of that affidavit, was it giving…

Adv Bawa: Chair, can we ascertain… Sorry, Adv Mpofu.

Adv Mpofu: Sorry.

Chairperson: Yes, Adv Bawa. Pause, Adv Mpofu.

Adv Bawa: I do not know that the witness testified that he read it.

Adv Mpofu: Oh, okay. Fair enough. This long affidavit, which was sent to you by the Public Protector, you read? Did you read it?

Mr Mataboge: No, I gave it to Ms Mvuyana.

Adv Mpofu: Alright, that is fine. She testified that she read it.

Adv Bawa: Sorry, Adv Mpofu. That is not correct. She said that she was not given it. That was her evidence.

Adv Mpofu: Well, the record will say whatever it says. But let me then take you through it now; no, not all 135 pages of it, I can assure you. I will just read out the topics and then ask you the questions afterwards. That affidavit, the Public Protector definitely received it and she read it, so it is going to come in, but that is in the future. For what it is worth now, I will just take you through it. If we can walk through it fast.Effectively paragraph six, he says “On 27 and 28 September, I appeared before the above Commission”, that will be the Nugent Commission, “wherein I presented oral evidence. Subsequent thereto I sought and obtained legal advice and I was advised to submit further evidence by way of a sworn statement, which I did on 21 October 2018 when I appeared before the Commission. In addition to such sworn statement, on 21 October 2018, I also presented oral evidence.” And then he says “I note with serious concern that the affidavits, presentations, and any form of evidence presented by persons who appeared before the Commission have been uploaded on the website of the Commission and for whatever reason that the Commission deemed it fit, my affidavit submitted on 21 October 2018 is still not uploaded” and so on. Okay? He then goes onto the details, which you would be familiar with. It talks about the terms of reference of that Commission, I suppose. Then go to page 6086, paragraph 31. I will not go into detail, but here he deals with the Sikhakhane Panel outcome and appointment of Mr Moyane. You are familiar with the Sikhakhane Panel, Mr Mataboge? It was relevant to the Rogue Unit report, correct?

Mr Mataboge: Yes, correct.

Adv Mpofu: And then next one, he says “clarity on different investigations and their roles”. Sorry, that is at paragraph 35. Then he deals with the Sikhakhane Panel Report at paragraph 36. He then deals with Martin Brassy Investigation. 39, KPMG Investigation. 42, findings of Brassy and so on. Those are some of the documents referred to in the so-called Rogue Unit Report, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Then go to paragraph 52. It deals, in detail, with Mr Pillay and the unlawful and illegal establishment of the Unit also known as "Rogue Unit", right? Then he goes to the Trevor Manuel memorandum. Just carry on, I am just skimming through. Just notably at paragraph 69, he says here “the Unit’s management, i.e. Mr Pillay, Mr Loggerenberg, Mr Richer, Mr Andries Janse van Rensburg and Mr Johan de Waal, have all worked in NIA (National Intelligence Agency) before joining, equally without any tax experience”. You see that?

Mr Mataboge: I see it, yes.

Adv Mpofu: In other words… No, we will leave that to the Public Protector. And then he goes onto the PFMA, the covert spying of current and former SARS employees, engagements of informers, and project Sunday evening. Am I moving too fast for you? I am not at 6111. It deals with the facade disbandment of the Unit. Then after that the next heading ’maladministration regarding the unlawful or irregular contract of Mr Pillay.’ Next one. ‘Purchase of unlawful and illegal covert spying equipment.’ Illegal and unlawful acquisition of or covert operations. Equipment from the American Embassy. Acquisition or purchasing or an attempt to purchase DNA tracker data processing equipment. Pillay resignation and his 19-month stint.’ ‘Mr Johan van Loggerenberg’ is the next heading. And then it talks about the existence of a prima facie case against Mr Johan van Loggerenberg. And then “allegation that the relationship between Mr van Loggerenberg and Ms Walter’, the alleged girlfriend, ‘created a conflict of interest.’ Next one ‘Allegations pertaining to the unlawful disclosure of SARS confidential information.’ Next one ‘Interference with Ms Walters’ tax affairs by Mr van Loggerenberg’. Next one, this is a so-called charity organisation formed by Mr van Loggerenberg, called Wachizungu Sawa Sawa. It says, I think at 150, “In other words, it would seem the companies and individuals that Mr van Loggerenberg was investigating and even prosecuting, donated to his charity organisation which is outright conflictual, if not illegal. In this regard, the employer and the Brassy panel had a view that by accepting the donations Loggerenberg placed himself in a position in which he may appear to be influenced and compromised. The SARS and the Brassey Panel is in possession of a list of the donors.” I think that was the allegation. Next one is “The allegations that Loggerenberg had disclosed information to the media on SARS affairs and shared SARS confidential information without authorisation.” And so it goes. I think it is too long – it is 135 pages. But I think from the headings that I have read to you, would you agree that this deals in-depth with some of the issues that you had to deal with regarding the so-called Rogue Unit?

Mr Mataboge: That is correct.

Adv Mpofu: Alright. That is fine. We will leave it at that. Then the last point is at 5825. Let us go to 5825. Okay you were not copied on this so maybe you were not aware of it. But I will raise it, anyway, with you. It is from Mr Nemasisi, so it is a legal thing. And then he says “Kindly confirm you have a letter and legal opinion from the Counsel? Please also advise Senior Counsel that Mr Shivambu attached the report in question in the equality Court. This means that the report in question is now a public document.” Okay, so this is a… Right, I was saying that this is a reference to an Equality Court matter. The Equality Court is just in the High Court – this particular one was in the High Court. It can also be in the magistrate court. This was a case before Judge Sutherland. You may not know those kinds of details. But were you aware that the report had been discussed in the public domain as having been disclosed in some court papers?

Mr Mataboge: No, I was not aware, Adv Mpofu.

Adv Mpofu: Alright, then I will just refer to it for the sake of the Members. And then we will deal with it when the Public Protector.

Adv Bawa: Chair, the witness has said he is not aware of it and now Adv Mpofu is going to take him through it again. A judgment is a judgment.

Adv Mpofu: Yeah, so what? You read judgments for hours and hours here.

Adv Bawa: As you did too.

Chairperson: Okay.

Adv Mpofu: Yeah, so? In that case it is fine.

Adv Bawa: The point is the witness does not know the judgment?

Adv Mpofu: Pardon?

Adv Bawa: The witness has testified that he was not aware of it.

Adv Mpofu: So?

Adv Bawa: Is there going to be a question emanating from it? On a judgment that he does not know about?

Adv Mpofu: Yes. I am saying I am going to refer to it for the Members, so that when we come to it with the Public Protector, I… What is the problem? You do not want the truth to come out?

Ms O Maotwe (EFF): No, Chair. Adv Bawa is out of order. Why are you allowing her to do this? She is out of order.

Adv Bawa: No, I am looking at time, Adv Mpofu.

Adv Mpofu: No, do not worry about that.

Ms Maotwe: Chair, Adv Bawa is out of order. What is this?

Chairperson: Thank you, Adv Mpofu. You have not been recognised.

Ms Maotwe: Can you please recognise me, Chair?

Chairperson: You have not been recognised. You are going to raise your hand and then you will be recognised. You have not been recognised and you are not going to do that.

Ms Maotwe: Chair, please recognise me?

Chairperson: You are going to raise your hand then you are going to be recognised.

Ms Maotwe: Chair, please recognise me? My hand is up.

Chairperson: Now, your hand is up, I can recognise you. What is the point of order?

Ms Maotwe: You must relax, Chair. You know you will have palpitations for nothing. Chair, I am saying Adv Bawa is extremely out of order.

Chairperson: What is the point of order? What palpitations are you talking about?

Ms Maotwe: You must learn to listen, Chairperson. Listen, I am saying to you that Adv Bawa is extremely out of order, and I do not understand why you are allowing her to do this to Adv Mpofu. When she was leading the evidence, no one interjected her. No one complained about her long speeches and everything else. She must allow for Adv Mpofu to go through this, uninterrupted. Chair, why are you allowing it? Please.

Chairperson: Thank you. Thank you, Hon Maotwe. Your point of order is not sustained. I am here as the Chair, and I was in the middle of this issue. Perhaps we can welcome you back to the Inquiry. But your point of order is not sustained.

Ms Maotwe: My apologies, Chair. I could not attend on Tuesday because… Sorry, Chair.

Chairperson: Let me attend to this. You are done now. What are you doing?

Ms Maotwe: No, I was saying I apologise for not attending on Tuesday because we had a media launch of our Tenth Anniversary of the EFF, that will take place at the end of July. So I apologised for not informing you.

Chairperson: No, I was not speaking about Tuesday. Let us not go there, please, Hon Maotwe? I was just welcoming you back to the Inquiry. Thank you. For Adv Mpofu’s protection, I did indicate earlier that she needs to speak after being recognised but the two of you then got into this and I decided to step back.

Adv Mpofu: Thank you, Chair. You are right.

Chairperson: And you seem to have managed yourselves, the both of you.

Adv Bawa: I apologise, Adv Mpofu..

Adv Mpofu: No, it is fine. We were all out of order. That is fine. Thanks, Chair but it has resolved itself.

Chairperson: Please go ahead, Adv Mpofu.

Adv Mpofu: And, Chair, to make it clear, I was just referencing this for, as I say the witness has answered as he wants, late reference. But I think we have clarified that. Okay, let us not waste more time on this. Bundle H – I do not know what page, Item 31, number 31.5.1.

Adv Bawa: It is page 465. I will help you.

Adv Mpofu: Page 465? Thank you. Alright. That is the judgment. This was a matter between Pravin Jamnadas Gordhan v Julius Sello Malema and Freedom of Expression Institute. It had to do with some alleged defamation of Mr Gordhan. Well, I will not repeat what was said there, in case I am accused of the same defamation. The point here is that the relevant thing for this commission is the reference to the IGI Report, which was… Let us start at paragraph 24. Right. It says there “This stance” that is the stance about whether the report – by the way, interestingly what was being suggested was that anyone who has attached the report or read it, threatened against the Public protector, thereby was committing an offence. And I think one of the Members said something to that effect. Which would have meant that anybody who had read those court papers, including the judge, should have been taken to jail. But anyway, it says “This stance provoked an application to strike out these inclusions on principally the grounds that they were irrelevant. The three inclusions were the report of the IGI of 31 October 2014”, the IGI Report, so that is our report, “and the report on the commission on the cabal, 14 March 1990”, that is a report for OR (Oliver Reginald) Tambo about the UDF (United Democratic Front) cabal. And then “the Sikhakhane Report. Of these reports, the IGI Report stood in a distinctive category in that it was a document admittedly classified secret that had been allegedly improperly leaked into the public domain.” And then, okay, let us jump to paragraph 29. And then the judge concludes as follows “A reading of the report and the Minister's rationale for excluding it from the public domain revealed that the rationale is wholly unfounded. The burden of the Minister's perspective is that agents of the security agencies may be compromised.” Which is interesting, because if this is not an intelligence thing, then I do not know why agents may be compromised. But anyway, that is me. It says “No agents’ identities are disclosed. The person's described are not secret operatives in the list. Moreover, at the time, the document was attached to Shivambu’s affidavit, the document was already in the public domain and had been the subject of media reports and confidentiality claimed for the document is futile.” And I am just saying that whether you were aware or not of the particular judgments, this was the most unsecret secret document, because it is out there and the judge ruled as I explained this. But that will be dealt with by the Public Protector. But do you understand the thrust of what I am saying?

Mr Mataboge: Yes, I do Adv Mpofu. I do.

Adv Mpofu: Thank you. Alright. Now, I tell you I am going to be as guilty as Ms. Bawa of staying on this Rogue Unit, even when I am trying to get out of it. Let me do it like this to, again, save time. If you go to the report, I had intended to take you to the report itself and take you to the parts that Ms Mvuyana had not confirmed. But I will just do it in the broadest possible way. And I was just going to focus on one thing because we spoke to Ms Mvuyana about the establishment, the operations, the intelligence, the jammers and all of that. So I was just going to take you to the specific issues of the HR, or let us call it the recruitment issue, just so that we do not cover the same ground. So can we go very quickly to 6498? And I am just referring you to one of your drafts, I think, the reasons for which will be clear. Now, I know that you were the principal drafter, but these drafts would have gone through your hands at some point or another, correct?

Mr Mataboge: Correct, Adv Mpofu.

Adv Mpofu: Alright. Now, I am really just going to do this very quickly because I want to move to Pillay now. As I have said here, the findings were many but even one of them would have been enough. Let us quickly go to 6498. Alright. If you remember this, this has to do with the issue regarding whether SARS failed to follow proper recruitment processes in appointing employees who worked for the intelligence unit, and if so whether such conduct constitutes maladministration. I am just going to try and demonstrate cryptically some of the information I would have gone through with you in detail., please. Are you aware of the memorandum sent to Pillay and Ravele in August 2002, regarding the recruitment of personnel for the so-called Unit?

Mr Mataboge: Yes, I am aware.

Adv Mpofu: Right. And I think Ms Mvuyana went through this. Go to “whilst posts were not advertised”. I read this out for her but I will paraphrase. So essentially, there was an admission that the normal, what they call the conventional procedures for recruitment in SARS were not followed. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: Then go to that table of names. Again, I will not go into detail but some of those people there were clearly people with intelligence backgrounds, from the Defence Force or Secret Service and all that, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And then at 5.4.3 it is made clear that Mr Gordhan had given the approval for the appointment of these people, subject to the discussion with Ivan and so on. But he gave the approval, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Right. Okay, I am just skimming through, if you work with me. Then this is the part I want to go to. Go to 5.4.9. These were some of the people that had been hired in a method that did not comply with those transcripts, which amounted to maladministration in your findings, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yeah. Again, I will not go through the details, Chair, for the sake of time, but I just want to show you the kinds of monies that we are talking about. So the salary of and I am assuming that these are monthly salaries, but we will establish that. The salaries of these people range from R950 000, R630 000, R600 000 and then the lowest is R285 000. Oh yeah, sorry. Do not show the names, please.

Adv Bawa: Sorry, Adv Mpofu?

Ms Maotwe: We have taken pictures already. You are late.

Adv Mpofu: I see that it has been captured.

Chairperson: Yes, Adv Bawa.

Adv Bawa: Chair, can I ask where it says that it is monthly salaries?

Adv Mpofu: No, you can just ask yourself. Maybe it is weekly salaries then. I think it is obvious that these are not… We will…

Adv Bawa: Adv Mpofu, I am asking a question because it is not on the document. You are either testifying or you have it on the document.

Adv Mpofu: Fair enough. Fair enough. Thank you, Chair. Mr Mataboge?

Mr Mataboge: Yes, Adv Mpofu? I am here.

Adv Mpofu: Yes, those salaries listed on the right-hand side, are they daily salaries, weekly salaries, annual salaries, monthly salaries, fortnightly salaries?

Mr Mataboge: We understood them to be per annum, which is annual salaries.

Adv Mpofu: Yes, but the salaries that are listed, I am saying, are they… I know, I am actually coming to the per annum thing, which is the times 12. But if somebody was earning, okay I do not want to go to the names again. Let us go to the last one. Someone who gets R285 000 and another gets R310 000. Did you understand those to be… If it is R285 000, it means that they are earning like R10 000 or something. Did you understand those to be monthly, weekly or annual salaries?

Mr Mataboge: We understand them to be annual salaries, Adv Mpofu.

Adv Mpofu: Alright, that is fine. We will bring evidence about that. Okay, that is fine. But anyway, the point I really wanted to make is this. If you add up those salaries it comes to… Okay, no, no, go to the next table at 5.4.10, without the names. Right, this one is R400 000, let us say, per annum, for the purposes of this exercise, R530 000, R384 000, R410 000, the next person, R235 000, the next one, R600 000, the other one, R530 000, the next one R235 000, the next one R470 000 , the next one, R235 000, the last one R500 000. You will agree that is a lot of money in total, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yeah, in fact, with my limited skills, anything between R4 to R5 million even if you exclude the first group of people, correct?

Mr Mataboge: I would not know that. I am not equipped with my maths and arithmetic.

Adv Mpofu: You are not a maths wizkid like me? Alright, but you can take my word that it is about between R4 and R5 million. That is just the second batch. The first batch I did not calculate and my skills do not extend to it. Yeah, I think it is probably another R4 million. Okay. Anyway, whatever the amount is, this was a lot of money that was the subject of what you found to be irregular procurement, not procurement, recruitment practices, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Alright. And then, what is important here, Chairperson, is then your findings, which you will find at, or rather the basis of your findings. And my question, I can tell you now, at the end is going to be whether there was any, under these circumstances, basis to find otherwise. But let us go through what you then having tabulated those large amounts of money, you then say “SARS failed to provide me” and me, here, is you and the Public Protector and Ms Mvuyana and everyone, “with copies of the advertisement for the post shortlisting and interview documentation for the above mentioned employees. SARS did however, provide me with a spreadsheet of all advertised posts beginning from January 2006 to 2007.” Now when you say SARS failed to provide you with necessary documentation to justify the spend on this lot of money is it because you asked for such? It would be unfair if…

Mr Mataboge: Yes.

Adv Mpofu: Yes, that is what I am saying. It would be unfair to say they failed to give you the documents if you had not asked for them. Okay, that it is fine. Then it says “the employment agreements for special agents stated in paragraph two that the employees shall serve in place to Specialist Agent and such place as may from time to time be directed by the employer” and so on. Okay, that does not matter. Let us jump the next one because it has people’s names. It says “Further evidence submitted indicates that Mr van Loggerenberg applied for employment at SARS on 13th January 1999 for the position of Assistant Director. He was appointed as head of the special operations on 15th 2007.” And here is the important one “SARS failed to provide CVs and recruitment documents pertaining to the appointment of all employees of the intelligence unit.” Again, had you requisitioned or asked for such information?

Mr Mataboge: Yes.

Adv Mpofu: Now, then comes my question. Sorry, let us go to 5.4.25. No, 5.4.26. “SARS failed to provide me with a policy that was obliged to the relevant period regulating the transfer of staff within the branches. SARS furthermore failed to provide me with a policy regulating headhunting of staff for positions at SARS. The failure to advertise positions externally, is a violation of Section 8.3.2 of the SARS and recruitment selection policy. The denial of Mr Gordhan in his participation in the recruitment process of one or more of the units’ employees is unlikely. The Sikhakhane Report and the Gene Ravele Dossier confirmed that Mr Gordhan played a role in the recruitment of Mr van Loggerenberg.” Two questions. The first one is the standard question I have asked you. Those documents that you say SARS failed to provide you and the policy that was breached, are those documents that you had asked for?

Mr Mataboge: Yes. When we write what we call an inquiry letter or document request letter, we list all of the things that we want to assess the complaint against as well as the allegation against policies, HR, personnel records and so forth.

Adv Mpofu: Yeah. Okay, now, then, the question I said, I was going to ask you, given those facts, those facts that we have summarised now, would it have been possible to find anything other than the fact that the recruitment policies were breached? Given these facts that we have just gone through?

Mr Mataboge: No, there would not been any other option to make that finding.

Adv Mpofu: And also, given the amount of money involved – the large sums of money that we have spoken about, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Alright, thank you.

Chairperson: Well, on that point.

Adv Mpofu: Yes, your timing is perfect, Chairperson. If that means it is time for the break…

Chairperson: It is.

Adv Mpofu: I am done with the Rogue Unit, anyway. When we come back after tea, Mr Mataboge, we will deal with the Pillay Report. Thank you, Chair.

Chairperson: Thank you. We will take a ten minute break and be back at 11:10. Thank you.

The Committee adjourned for a ten minute break until 11:10.

Chairperson: Colleagues, we resume with the interaction with Adv Mpofu and Mr Mataboge. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Sorry, I just need to… Alright, thank you, Chair. Mr Mataboge?

Mr Mataboge: Adv Mpofu, I am here.

Adv Mpofu: Okay, good. Thank you. Now, as I said earlier, the only remaining report now of your four that we have not dealt with is the Pillay retirement support. And it is not… For reasons that will be clear later, we do not have to spend a lot of time on this particular report. In fact, as I said earlier, I will use the judgment and possibly refer to only those portions of the report that are referred to in the judgment. But I think it will be easier if we navigate the judgment and then highlight certain portions, and it will become clear what it is that we are going to argue around this particular report at the end. And in any event, Ms Bawa, has referred to this report on the evidence, I think both Mr van Loggerenberg, and if I am wrong about that, then certainly in the evidence of Mr Pillay. Can we go to that judgment? It is in your judgment bundle, whatever it is, at page 480. I think it is Bundle C, Item 3. It is the judgment 36099. The Rogue Unit one is 48521. Right. Okay, now go to the next page, on paragraph one. Okay, I will just read this out, just to contextualise the report. It says “On 24 May, 2019, the Public Protector released a report on an investigation into allegations of maladministration and impropriety in the approval of Mr Ivan Pillay’s early retirement with full pension benefits and subsequent retention by the South African Revenue services. The report is a culmination of an investigation conducted by the Public Protector on the strength of a complaint made anonymously on 18 November 2018, against the applicants and relates to matters which occurred in 2010. Can you just confirm that summary of what this business was all about?

Mr Mataboge: Yes, I do confirm it.

Adv Mpofu: Right. Now, I just like the way the title of that report is, because I think it covers something that explains the three aspects of what this investigation was about. And I just want you to confirm, if the issue of, firstly, the maladministration and impropriety in the approval of Mr Pillay’s early retirement, right?

Mr Mataboge: That is correct.

Adv Mpofu: And the second leg of that was not just a retirement, but it was the retirement with fully pension benefits.

Mr Mataboge: That is correct, as well.

Adv Mpofu: And thirdly, and importantly, he was subsequently, well I think that is a bit of an exaggeration, immediately retained by SARS, after the ‘retirement’?

Mr Mataboge: That is correct.

Adv Mpofu: I have called it a one-minute. Right?

Mr Mataboge: Correct, Adv Mpofu.

Adv Mpofu: You do not have to call it a one-minute retirement but if the ‘retirement’ happened at twelve midnight, and then at one minute past twelve on New Year's Day he was re-employed. Correct?

Mr Mataboge: That is correct, Adv Mpofu.

Adv Mpofu: Thank you. Alright. Now, the reason I am emphasising that, Chairperson, is because this whole business, at least the way it was argued in court, is, we called it, it is just by coincidence that I argued you this case, the package deal, which was shorthand for all these three things, so we did not have to mention them every time. But do you agree that at least everyone agreed that for this whole scheme to work, whether it is legal or not legal, I am not there for now. But for the whole scheme to work, it had to have all those three elements, the retirement, the retention, and the payment of the full benefits by SARS in particular? Rather, I am sorry, the applicable penalties by SARS and the retention of Mr Pillay. If one of them was missing, the whole scheme would collapse, correct?

Mr Mataboge: Yes, that was supported by the documents that were provided to us when the initiative of the whole thing started within SARS.

Adv Mpofu: Yes. And the reason why I am saying it is common cause is because – yeah, you are right – the idea I think was said by a Mr Symington, who worked within SARS, that scheme could only work… In fact, he even said if one of those elements is not there, then Mr Pillay must withdraw the whole thing: it will not work. That is in the judgment as well – I am just paraphrasing. Okay, that is fine. Then just for the sake of maybe stating the obvious, the allegations, some of which were quite, shall we call them, stinging, made against the Public Protector in these allegations were made by Mr Gordhan. Are you aware of that? In the court papers, I mean.

Mr Mataboge: Yes, I am aware of that.

Adv Mpofu: Yes, and then at paragraph five of the judgment, Chairperson, the judges then say, and this is important for other reasons, both “Mrs Pillay and Magashula have in their respective applications to intervene, associated themselves with the submissions of fact and law set out by Minister Gordhan in the latter’s founding affidavit and the relief sought in the review application. In other words, the remarks made by Minister Gordhan, including the insults and whatnot, and we will get to those, the others had adopted or hijacked, correct?

Mr Mataboge: That is how I understand it as well.

Chairperson: The word used is ‘associated’.

Adv Mpofu: Thank you, Chairperson. Now, alright, that is fine. Let us move on. The importance of that will become clear later. And then a paragraph eight, Chair, the amount of the penalty, again, which was common cause is then stated, it says at the bottom of paragraph eight, “a penalty that was levied on Mr Pillay’s pension benefit by the GEPF in the sum of R1 14178.11 was paid by SARS”. So let us say that roughly R1.1 million was paid by SARS in penalties in respect of this. And this where your PFMA investigation was, really, as to whether that payment of R1.1 million was regular or irregular, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Alright. And then there was – this is also important, Chair and it is something we will emphasise when we are arguing, particularly in the context of this case. It says “The essence of the complaint” I am at paragraph nine, “was that Minister Gordhan Mr Magashula acted dishonestly in their dealing in this matter and placed Mr Pillay at an advantage.” So listen to me carefully. So there were two allegations, one of dishonesty, and the second one, let us call it unjustified enrichment of Mr Pillay. Remember that, Mr Mataboge?

Mr Mataboge: Yes, I do, Adv Mpofu.

Adv Mpofu: Yes because this is important for this vendetta theory. And your findings or the findings of the Public Protector did not go as far as finding dishonesty on the part of Mr Gordhan. But you certainly found the undue enrichment and the PFMA breaches, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yes, right. Then, Chair, if you go to paragraph eleven, this is where I was saying I will use the judgment to refer to the report because the judgment quotes the report, so we kill two birds with one stone. Actually, the heading says “the report”. Okay. I am going to read the quoted parts for the record, which really captures the essence of this report. We do not have to go into it. This is the findings and remedial orders, Chair, quoted in the judgment from the report. It says “regarding whether Minister Gordhan irregularly approved the early retirement of Mr Ivan Pillay with full pension benefits and his subsequent retention in the same position. AA) The allegation that Minister Gordhan irregularly approved the early retirement of Mr Ivan Pillay with full retired benefits and his subsequent retention at SARS is substantiated.” Then ‘BB)’ says “since neither Mr Pillay requests for early retirement nor Mr Magashula’s recommendation to Minister Gordhan contemplated retirement, there was no retirement in fact, and in law. If there were no retirement in effect in law, it can be concluded that Mr Pillay was not entitled to early retirement with full pension benefits under any statutory provision.” And then ‘CC)’ “Even retirement had been contemplated and there was in fact a retirement…” Sorry, Chair, I am interrupting myself. This is a… Alright, no. Let me deal with it when I finish. “Minister Gordhan was not authorised by Section 16 (2)(a) of the PSA to approve Mr Pillay’s early retirement request with full pension benefits, as this section does not confer any power on a Minister to approve a little time and full benefits.” Then ‘DD)’, “Mr Pillay was not entitled to early retirement with full pension benefits under Section 16 (2)(a) because the section makes no provision for such full retirement benefits. Section 16 (2)(a) of the PSA only confers a right to an employee to retire from public service upon reaching the age of 65. In terms of that section, no Ministerial approval needs to be sought.” And then ‘EE)’ “even if the request for Mr Pillay for early retirement had been sought in terms of Section 66, Minister Gordhan would also not have been authorised by that section to approve full pension benefits because the benefits which the employees are entitled to are on early retirement are regulated by Section 16(6)(b) and occur by operation of law. No ministerial approval is required.” Then the next one is “Minister Gordhan’s conduct therefore amounts to improper conduct as envisaged in Section 6 (4) (a) (ii) of the Public Protector Act. When Mr Magashula made the recommendation to Mr Gordhan for the approval of Mr Pillay’s early retirement without downscaling his retirement/pension benefits, SARS, through Mr Magashula, took the action contemplated in Section 17 (4) of the GEPF (Government Employees Pension Fund) Law and thereby triggered additional liability.” And then this is an important one “payment of the additional liability by SARS amounted to irregular expenditure, as envisaged in Section 38 of the PFMA and maladministration as contemplated in Section 6 (4) of the PP Act. Minister Gordhan also acted ultra vires in approving the retention of Mr Pillay as Minister Gordhan was not authorised to do so.” Now all and I am speaking for myself commend you for a very well written or logical at least... because you say ‘if this happened', ‘if this did not happen’, ‘even if that happened’, this and that and so on. But that is just a side. Bottom line, Mr Mataboge, you may remember word for word what the report says but I am going to try and summarise it and subject to your confirmation that the applicable laws were breached in that the retirement because of the age of the person and the applicable sections, they did not make sense, correct?

Mr Mataboge: That is correct.

Adv Mpofu: So that is the broad, let us call it, ‘retirement issue’. And you also found that this one minute retirement in law, did not qualify as a retirement. Whatever it was, but it was not at a retirement, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And then lastly, you found that the payment of the R1.1 million by SARS in penalties did not conform with the PFMA, correct?

Mr Mataboge: That is correct as well.

Adv Mpofu: Yeah. And then that retention was, well, the Minister ultra vires, which means exceeded his authority. But this is the most important thing that maybe is missed here. One of the essential issues about this is that it is in the language of the anti-corruption Brigade, which I used to be part of, or the Chairman of – the National Anti-Corruption Forum. There is a form of corruption commonly known as the Javelin. You are familiar with that?

Mr Mataboge: I have often heard of it, Adv Mpofu.

Adv Mpofu: Yes, it is not complicated. It is the situation where I am working for this Committee. And then the Chairperson says, ‘We need to procure computers for this committee’. And I am the procurement person. And I realised that this is such a nice deal. Then I resign after doing the procurement work. Then I go to the other side and work for a computer company and receive the javelin. It is that kind of thing. And it is usually associated with public officials, for obvious reasons, but I think in the private sector it is probably prevalent because people can still procure goods even there. But anyway, the point I am making is that one of the things that gets missed in the Pillay report is that when Commissioner Gordhan made the initial request for this, he was a Commissioner of SARS. But subsequently, when it was now being approved, he was the Minister who was approving it. Am I correct?

Mr Mataboge: Yes, I remember so, but I can check, Adv Mpofu, or rather, the finding from the Public Protector, was that the real reason behind the favourable treatment of Mr Pillay was because of their ‘friendship’ or ‘political kinship’ or ‘long standing comradeship’; those kind of things. You remember that?

Mr Mataboge: Yes, that came out during the interview meetings we had with SARS and MR Gordhan.

Adv Mpofu: Yes. And the most important thing here is that, Mr Pillay, I do not know what I was saying this to you or to Ms Mvuyana. So Mr Pillay features both in the Rogue Unit Report somebody who has been favoured by achieving the great heights of being SARS Commissioner, armed only with a matric. And now he emerges in this particular report as a person who was favoured for this package deal at the expense of SARS, so to speak. Now, as a person who was involved in both reports, you probably are the best person who can make that connection that he emerged in both reports as having been favoured by Mr Gordhan, correct?

Mr Mataboge: I will not use your words, but he was central, if I may use my words.

Adv Mpofu: Yes. No, fine. You do not have to use my words. Let us try and make it simpler and more palatable. In the Rogue Unit report, the allegation had been that Mr Pillay had achieved the status of Commissioner for SARS armed only with a matric, undeservedly, correct?

Mr Mataboge: Yes. Correct, Adv Mpofu.

Adv Mpofu: And in the Pillay report, the allegation which was substantiated was that he had received this package deal and the money was paid at the expense of SARS or the taxpayer also undeservedly, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yes, okay. That is fine. That is sufficient. And one of the issues was that it was not clear in some of the memoranda, the earlier ones, he said, it is for the education of his children, then it changed, it was for health reasons, then it changed, it was for personal reasons, unstated. But there was a grey area as to exactly what was behind the scheme, correct?

Mr Mataboge: That is correct. Even one HR official, I think was also asked for an opinion and he also, you know, had his misgivings about this whole thing and advised.

Adv Mpofu: Yes, thank you. In fact, let us go to paragraph 18. That is a reference to one of the internal officials at SARS, correct?

Mr Mataboge: That is correct.

Adv Mpofu: A ‘Mr Coetzee’?

Mr Mataboge: Yes, that is correct.

Adv Mpofu: Whom you interacted with as the Public Protector’s Office, correct?

Mr Mataboge: That is correct as well.

Adv Mpofu: Thank you. Instead of going through Mr Coetzee’s emails and all that, I will just paraphrase as it is put here in the Judgment. It says that “Mr Pillay’s memorandum was referred to Mr Nick Coetzee for advice by Mr Magashula. Mr Coetzee advised Mr Magashula to recommend the request of Mr Pillay to the Minister and that the Minister must approve if there are sufficient reasons to do so.” So it was a qualified statement, correct?

Mr Mataboge: Yes.

Adv Mpofu: And then the part that I think you are referring to then said “However, he cautioned Mr Magashula about the cynical nature of the transaction, as it would be technically construed as SARS contributing from each budget money for the schooling of Mr Pillay’s children and that the reappointment in the same position of Mr Pillay will raise eyebrows.” Is that what you were referring to?

Mr Mataboge: That is true. That is the reference I was making.

Adv Mpofu: Yes. In other words, even this official was saying that this just looks like a finagle and at face value this would look like SARS is just sponsoring the education of Mr Pillay’s children, particularly if he was going to be re-appointed in the same position, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And let me say this, because this is something that the Public Protector is going to testify about, some of the reasoning, or the allegations from Mr Gordhan and the others, was that there was nothing unusual about this kind of scheme. Do you remember that?

Mr Mataboge: Yes, I do remember.

Adv Mpofu: But in fact, and demonstrably so, I do not have to deal with in detail with you, but I am putting it as strongly as this: there is nobody in the entire world, well, I do not know about the world, but in South Africa, either before Mr Pillay or after Mr Pillay, who was ever a beneficiary of a scheme like this, in its totality. So in other words, there might have been someone who had early retirement; there might have been someone whose penalty was paid by their employer. There might be someone who has attained and so on. But to have all three in one package was unprecedented. And we were able to demonstrate this. The examples that were given all of them were distinguishable or different. So they gave names of people and it turned out that that person was over 65 or was not retained or whatever, but no one that you could find who had benefited in the same way, correct?

Mr Mataboge: That is correct.

Adv Mpofu: That is the one important feature. The other important feature and fortunately the court agreed with us on this, is that Mr Gordhan said he had relied on the legal advice of six experts. And therefore he was comfortable that even if this was wrong, but at least these so-called six legal experts had confirmed it, but it turned out that that was false. Either those people were not legal experts or some of them had never even spoken to him or they had not said what he said they said. And those people are listed at paragraph 21.1: Mr Symington, Mr Andrew Donaldson, Ms Minee Hendricks, Kenny Govender and Michael Olivier. You remember that he relied on the so-called ‘advice’ of those experts?

Mr Mataboge: Yes, that is what he alluded to in the meeting we had with him.

Adv Mpofu: Yeah, okay. We do not have to worry about that. The court found that all the things I have just summarised. Then, this is important for this Committee, at a broader level, Chairperson. I was looking for this passage I think when I was talking to Ms Mvuyana, about this business of the two-year limit. I think I informed the Committee that this was the first case in which that matter was actually debated by a court, but at that time I could not find the passage but here it is. Paragraph 29, and this apropos whether the Public Protector can be blamed for something which even the courts had not even dealt with. It says “At the time of the hearing of the application, the issue pertaining to the special circumstances envisaged in Section 6(9) Public Protector Act appears not to have been dealt with by any of our courts. Except for GEMS (Government Employees Medical Scheme) which did not specifically deal with the issue at hand, Counsel could not provide us with any authority that might have been of assistance to us determining the issue. We could also not find any such authority. It appeared at the time that this Court might be the first to be seized with the issue. Then subsequent to the hearing, but prior to this judgment, a full court division in Gordhan'', that would be the Rogue Unit matter, “has subsequently dealt with the issue, incidentally between the principle role players in this application.” So effectively, this issue, which is now heaped on the Public Protector, was dealt with almost simultaneously for the first time by two courts in the report that you are involved in. Is that so, Mr Mataboge?

Mr Mataboge: That is correct, Adv Mpofu. That is correct.

Adv Mpofu: Okay, then let us move on. Paragraph 34, then it says “In oral argument, Mr Mpofu, on behalf of the Public Protector contended that the jurisdictional point must not succeed because the applicants in their respective arguments on this issue fail to conceptualise the issue. This he says is so because according to him, the applicants take the approach as if this is a typical prescription provision, which means it is a provision that prohibits the Public Protector from entering complaints that are more than two years whereas it is a time bar provision. According to Mr (name redacted) this is a permissive provision and should be given a purposive interpretation. This section, as it were, falls under the heading, ‘reporting matters to and additional powers to the Public Protector’, which indicates that the Section is meant for the benefit of the Public Protector and not for the benefit of the alleged transgressors. Anyway, that was the debate, which was not accepted by the court. But the point I really want to emphasise is that this was the first time this matter was being dealt with judicially, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And the next issue which was central to this was this question of special circumstances, as to whether special circumstances must be subjectively in the mind of the Public Protector, or objectively determined, but we do not have to get into that. It says “Mr Hutton” who was the opponent… Okay, let us start at paragraph 47. “Mr Mpofu’s argument that because the Public Protector’s wide powers and subjective nature of her discretion, deference is given to her to determine the special circumstances is not entirely correct. He is correct that the Public Protector should determine the special circumstances. Section 6(9) of the Public Protector Act provides as much. The difference is only that the determination of the special circumstances must be an objective rather than a subjective effect.” And then it says “As Mr Hutton says” then he says obviously he said the opposite. Anyway, the long and short is that the court found that there was an inference that if you do not articulate those special circumstances in writing, then they do not exist; because I was involved in this I am not allowed to comment on that. But that is what was eventually found. You remember that?

Mr Mataboge: Yes, I remember, Adv Mpofu.

Adv Mpofu: Yes, okay.

Mr Mataboge: But if I may comment on this one as well?

Adv Mpofu: Yes.

Mr Mataboge: At the time these judgments were passed, we would have in the normal course of investigations canvassed the Section 6(9) applicability with the respondents. But at the time, it was not seen as a key element in the investigation because even the respondents at the time were still engaging with them before the 7(9). They would have to raise it as an objection but at the time it was not yet in the legal space, as it were.

Adv Mpofu: Yes, but also, again, you probably are the best person who can assist us in this because you are involved in both investigations. In both investigations the point is that at least, this is my personal view, as I say, so take it with a pinch of salt because I was involved in the matter. But one of the issues which the courts, at least from the camp of the Public Protector had overlooked was what you and the Public Protector were saying about this, which is that let us assume the two-year rule applies, let us even assume that it applies as a prescription thing. But when you are dealing with conduct that is ongoing, even as you are investigating, then you cannot say it is two years old, because it is ongoing.

Mr Mataboge: We call it continuous prejudice.

Adv Mpofu: Absolutely. I was trying not to put it in legalese, but you are quite right. But the point is, now I am coming to the facts, as far as you were concerned, both in the Pillay report, the issue was that Mr Pillay was continuing to be paid this pension, in fact, presumably, he is still being paid the pension even today. Correct?

Mr Mataboge: I believe so.

Adv Mpofu: Yes. And in relation to the Rogue Unit, your contention was that there were still ongoing spying activities, and therefore it could not be thrown to the past. So that is just a matter of fact: even assuming we accept the legal interpretation of the court.

Mr Mataboge: Yes.

Adv Mpofu: Thank you. Okay, then we come to the important part, which is more relevant to this. And unfortunately, well, then you can take this from me, as an aside comment, in fairness to the courts, just like in the Bosasa matter, some of the pronouncements of the courts, which probably shows even handedness on the part of the courts just simply do not get reported in the media for obvious reasons, I suppose. But in this particular case, actually, the courts had very strong words to say to Mr Gordhan and even punished him with an attorney and client costs order for insulting the Public Protector. Do you remember that?

Mr Mataboge: Yes, I do.

Adv Mpofu: Yes. And this goes to his theory which was expressed in the Section 7(9) response in the rogue unit report and even in this one that the Public Protector was actually playing a political game targeting him and part of state capture and corruption and all sorts of things. Instead of addressing why Mr Pillay was allegedly being favoured, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yeah. Now, Chair, I am just going to if you forgive me, I am just going to read out some of the… These are the extracts from Mr Gordhan’s affidavit to that effect, and they are quoted in the Judgment at paragraph 66. This is what Mr Gordhan says “more importantly”... okay just let me contextualise it for the Members. One of the proposals made by Mr Gordhan was that this was just after the election in 2019 and like we are now, at the time of the Cabinet. Mr Gordhan’s argument was that the Public Protector only released the thing on the 24th of May because the inauguration, which I attended, was on, I think, the 26th or so and we know traditionally a few days thereafter the Cabinet is announced. So the theory was that the Public Protector was releasing this report so that Mr Gordhan should not be appointed to Cabinet. That is the context here. Alright. Then at paragraph 38 he then says in his affidavit “More importantly, on 23 May 2019, the letter confirmed that the report will be issued the very next day on 24 May 2019. The timing is suspicious and indicates that the report was politically motivated. I say this because there was no reason for the unseemly haste with which the report was issued on Friday 24 May 2019. A mere 48 hours following the delivery of my submission to the Public Protector in response to the notice of the draft findings on Wednesday 22 May 2019. I can only conclude that the rush to complete and issue the report within two days of the receipt of my submissions, and those of other implicated persons, was informed by improper and the relevant considerations or an ulterior purpose or motive. By this I mean to refer to the Presidential inauguration of the third respondent held on Saturday 25 May 2019 and the political context in which my political opponents have sought to use the complaint lodged with the Public Protector and now her report to attack my integrity”, and so on. And he says, at 35.2 “There is no other plausible explanation. This shows that she did not have an open mind”. Then, here is the sting at paragraph 40, “I believe that the report was issued when it was issued, with the findings and remedial action it contained, so as to enable a renewal of the ongoing political campaign against me by proponents of state capture and defenders of corruption. In other words, the Public Protector was in cahoots with criminals” because that is what they would be “who are known as proponents of state capture and defenders of corruption and that is why she released the report at that time.” And then, at 40.4, he says, like this Committee referring to other judgments, “as set out below, in bringing this review application, I join a long line of litigants who have to run to the courts to ensure that this Public Protector and Adv Mkhwebane in particular, acts in accordance with the law and the Constitution. This track record of adverse findings against the Office of the Public Protector and Adv Mkhwebane specifically demonstrates in my opinion, that she is unfit for the office and that she hols (sic) and appears unable lawfully, constitutionally to exercise its power.” And so it goes and goes about the suspicious mind and what have you. And then he says that “it also showed her stunning incompetence”, he says, and those were the headlines for the rest of the week, I think. But incompetence, of course, is what we are here to investigate, and Gordhan already passed judgment on it but this Committee says he is irrelevant. But anyway, this is what he says at 9.5 “The serious allegation that the report was issued ‘so as to enable a renewal of the ongoing political campaign against Mr Gordhan by opponents of ‘state capture’ and ‘defenders of corruption’. Again, not even a single set of evidence is produced to support. The clear meaning of this is that the Public Protector is a participant or accomplice in a conspiracy together, and in concert with criminal elements, to wit, proponents of state capture and defenders of corruption. If this were indeed true, then South Africa’s hard fought democracy would be irretrievably damaged, and such a Public Protector would be guilty of the crime of treason, punishable by death in many countries. A bigger insult against the Public Protector is very hard to imagine”, said the Public Protector. And then she says, “The related averment ‘That I am caught seemingly in service to some other motive or agenda.’” And this is another important one “the inclusion of a long and irrelevant passages from unrelated court decisions, allegedly to demonstrate inter alia, my ‘stunning incompetence’ in the performance of my duties, and the unwarranted and substantiated and misplaced averments that I am unfit for my office, which ought to be the subject of disciplinary action.” And then, she says that, that in any event, is something that would have been in the hands of Parliament. Then the next paragraph 69, the courts goes on to deal with the fact that everyone can be criticised, but there must be what is called ‘ethical limits’ to such criticism. In other words, the duty to then produce. But perhaps the biggest insults to the Public Protector was this thing that it would be impossible for her to deal with Mr Gordhan’s Section 7(9) response, which was not even that long, in the space of two days or 48 hours, when lawyers deal with bigger documents at any stage for anyone who is legally trained. And this is what the court had to say about that – paragraph 76 – “It is indeed so that the Public Protector received Minister Gordhan’s response to the Section 7(9) Notice on a Wednesday, and on Friday morning, within 48 hours she released the report allegedly condemning Mr Gordhan for misconduct. Mr Gordhan wants to suggest that the report cites reams from his submissions but does not deal with them and contends further that the Public Protector could not have dealt with the representations within that short space of 48 hours.” And then says the court “the premise that the Public Protector cannot deal with her representation received in the space of 48 hours, is unfounded and meritless. Firstly, the evidence shows that the report already existed in near complete form at the time the Public Protector received the representations. Secondly, the Public Protector states categorically in her answering affidavit that when she received Minister Gordhan’s representation, she analysed it and found nothing therein to persuade her to change the report. Unless of course, there can be evidence to indicate that the Public Protector is lying. That she never actually analysed the response of the applicants to the Section 7(9) Notice. This remains an unsubstantiated allegation and runs into the Plascon-Evans rule because of the dispute” And the court, in its credit, says the following, which is true, because it characterised this for the demeaning and racist connotations or sexist even that it carries. The court then says at paragraph 78 “It is also condescending of the applicants”, that is now Mr Gordhan, Mr Pillay and Mr Magashula “to want to argue that the Public Protector would be unable to deal with their representations within a time period of 48 hours. The record shows that indeed the notices were dealt with. That they might not have been dealt with to the satisfaction of the applicants does not detract from the fact that the representations were dealt with in the report. Thus the applicants’ argument that the Public Protector did not consider their responses to Section 7(9) Notice is unfounded. The further allegations that she was politically motivated and that ulterior motives inform the report are also unsubstantiated. There is no evidence to establish that allegation, none at all.” And then it summarises the argument of the other side and here is the important explanation of the so-called inauguration (paragraph 81). Do you remember those paragraphs in the judgment, Mr Mataboge? Have we lost him?

Chairperson: Mr Mataboge?

Mr Mataboge: I am here. I had muted myself. I am here, Adv Mpofu. Apologies.

Adv Mpofu: You were answering to a muted… Well, be careful of what you wish for. The Chairperson might mute you if you do not answer. Okay, so I was saying do you remember those paragraphs that I just went through from the judgment?

Mr Mataboge: Yes, I do. I do remember them.

Adv Mpofu: Yes. Paragraph 81 then says “The challenge, however, for the applicants”, that is Mr Gordhan and the others “is that the Public Protector explains in detail in her answering affidavit why she had to release the report on the date she did. According to her evidence the Office of the Public Protector traditionally releases reports in batches or clusters of five or six unrelated reports. The present report is said to have been scheduled for release together with other five reports on Friday 24 may 2019, without any knowledge by the Public Protector of the date of the inauguration. The other five reports are named in her composite answering affidavit. Any haste, if there was any, is explained by the Public Protector as ‘purely motivated by the need to meet our self-imposed deadlines.’ There is nothing on record to gainsay these averments by the Public Protector.” Anyway, paragraph 89 then says “This however does not mean that paragraphs should not be struck out. When the averments made by the applicants in paragraphs 38, 39, 40” that is the one about the corruption and all of that.

Mr Thembinkosi Ngoma (Committee Secretary): My apologies, Adv Mpofu and Chairperson. Mr Mataboge just called me now, he is coming back from load shedding, so he is going to be cut-off and should be joining soon.

Adv Mpofu: Alright, thanks. Maybe you can answer the question.

Chairperson: Thank you, Mr Ngoma. We will take a two minute pause just to wait for Mr Mataboge.

The Committee took a short adjournment.

Chairperson: Adv Mpofu?

Adv Mpofu: Thank you, Chair. I thought that the quorum was 19, but I am happy with that cross-section. But that is fine.

Chairperson: Withdraw.

Adv Mpofu: Well, probably the most important passage in this judgment relevant to this Committee which will be raised in argument is paragraph 86, which explains clearly the role that the judiciary actually should play no role in the impeachment of a Public Protector and also basically says that Mr Gordhan should know better than to call the Public Protector incompetent and not fit for office and so on. When, as an MP, he could have just put a motion to deal with that. And then it says “On the averment that the Public Protector is unfit for her office, she contends that the averments are unwarranted, unsubstantiated and misplaced. More so is that they cannot be lightly or appropriately made, or pronounced by either a member of the executive, such as Minister Gordhan, or even this court as part of this judiciary, but can only be articulated by the legislature in terms of the doctrine of separation of powers. The making of such averment is said to be nothing short of a gratuitous insult by the wrong person in the wrong forum. The submission is that these impugned paragraphs should be struck out on the basis that they are irrelevant as they relate to an issue which to the knowledge of the applicant, falls outside the jurisdiction of the courts.” And then, it says later there “As argued by the Public Protector, even if these allegations are correct, there is nothing that the court can do because of the separation of powers. The proper approach is to refer such complaints and allegations to Parliament. We are in agreement and accept Mr Le Roux’s argument”, that was one of the opponents, “that paragraph 38, 39 and 40 cannot be read in a way that could be held to be insulting, contemptuous and defamatory because they all form Minister Gordhan’s sincere belief. Mr Gordhan sets out in paragraphs 38 to 40 his subjective belief” and so on. And then at 89, it says that “This, however, does not mean that the paragraphs should not decide that when the averments made by the applicants in those paragraphs are construed, whether individually or cumulatively collectively. They can be construed as nothing else but gratuitous averments based on suspicion. The averments are therefore vexatious and made intending to annoy the Public Protector. A similar finding based on allegations couched in similar terms by Minister Gordhan has been made in Gordhan, at paragraph 267-268.” So the exact finding was made in the Rogue Unit case at those paragraphs, so I will not cross-refer directly, Chair, because it is obvious. “They should similarly be stuck out in this application.” And then, paragraph 91 – this is something that, again, is not well understood by non-lawyers in particular, so we need to just deal with it, not I suppose, through a fault of their own. It says “relying...” This was about now, this issue of Mr Gordhan relying on previous judgments to show how bad the Public Protector is. I am at 90, sorry. “It is alleged that those paragraphs make specific reference of repeated admonishments that the Public Protector received from the courts to comply with the Constitution and Public Protector Act and where she was mounted personal costs as a result of her failure to do so. Relying in National Director of Public Prosecutions”, that is just the case, “the Public Protector in her heads of argument, submits that allegations relating to other court cases ought to be struck out as irrelevant as they constitute the opinions of other courts, the decision of which have some are still pending.” And then the courts, in agreement with that averment at paragraph 95, says “The court in Institute for Accountability in Southern Africa”, that is another case where Adv Hoffman wanted…

Mr Mataboge: Chair, I cannot hear Adv Mpofu on my side.

Ms B van Minnen (DA): Chair, it has gone totally silent.

Mr Mataboge: Yes.

Chairperson: Okay, just try again, Adv Mpofu?

Adv Mpofu: Okay, can you hear me now?

Mr Mataboge: Yes, we can, Adv Mpofu.

Adv Mpofu: Okay, fine. I do not know where I lost you but it is easy. I will just paraphrase it. I am now with the situation where there was a reliance on other court cases. Did you lose me before I got to that?

Mr Mataboge: No, after that we dealt with…

Adv Mpofu: Okay, good. No, then you did not lose me for long, because I had just started on that topic. I was saying that in agreement with the submission that the court could not itself declare the Public Protector not fit for office, nor rely on opinions of other courts. This is what the court said, it quoted a case called Institute for accountability, which stated the rule and qualified it, but for the purposes of this case I will quote, Chair, which is at paragraph 31. This is what the court then says “Ultimately, the rationale for the Hollington rule is that the findings of previous courts constitute the opinions of that court” that is what the court found – this was Judge Coppin, I think – “and for that reason, are irrelevant and inadmissible in subsequent civil proceedings. Even though such findings constitute expressions of opinion, they cannot be equated to the opinions of ordinary individuals and cannot be treated as such. Those findings were made by judges and confirmed in certain instances by the Justice of the Higher Courts. Judges have a duty to form and express opinions concerning issues raised before them” and that is the important thing, “including those that are relevant in the context of this matter. And they arrived at those opinions, aided by procedures, which were designed to ensure that they base those opinions on the correct information. Those opinions are also binding on all persons and those organs of state to which they apply.” Now, that is an expression of section 165 of the Constitution, you do not have to worry about that. But the gist of that is that the court, it is expressed in Section 165, decisions are binding to other courts, but obviously, they are also binding to the parties (and) the people who are involved in that particular litigation. You would know that as a lawyer from your law of evidence, Mr Mataboge, correct?

Mr Mataboge: Correct, Adv Mpofu.

Adv Mpofu: Yeah. And then it says “For all these reasons, the impugned paragraphs must be struck out as irrelevant.” In other words, on the basis of those submissions on opinion evidence on gratuitous insults, and lack of the wrong forum and all that, they were struck out. Now, the important issue about this, Chair, is that, and I am not going to go into the merits, then the judges go into the merits and they find against some of the findings in your report. Although there is a curious one, I am not sure. So somehow, all these things we spoke about the javelin and all that, the judges find that is fine. And Mr Coetzee’s concerns, and Adv Brassey’s opinion, which was that this was not the right thing to do. But then there is one which I will have to debate with Adv Bawa, which I also noticed only recently, where they say at paragraph 213, “under these circumstances we have to conclude that the Public Protector’s finding that Minister Gordhan acted ultra vires in approving the retention of Mr Pillay, was rational.” Chair, what I really wanted to drive at is that Minister Gordhan, in this judgment, even though it was portrayed in the media for obvious reasons, as a victory for him, but it was very scathing, to say the least on the gratuitous insults and condescending remarks that he had made against the Public Protector. And to that extent, he was ordered to pay – not only him, both him and Mr Pillay and Mr Magashula because as we said they had adopted his affidavit, including the insults. So you will see the order at the end – I am at 590. It says “the first, second…” No, sorry. Just go to paragraph 249 of the Judgment. I am so sorry. Go to 238. This is also an important paragraph to which I will refer the Committee, because again, this, and again, maybe because we are lawyer, we take these things for granted, about the difference between a court, let us say finding that there was no audi alteram partem or this and that prescript had not been followed by a litigant such as the Public Protector, which happens every day, I mean by the hundreds. So every day somebody, some functionary in a municipality or a province or whatever, or an SOE is found not to have followed a particular prescript. That happens every day. If people were to be impeached for that there would be no one left in the country. And to distinguish that, from situations where there are impeachable offences, and that the fact that a court has found against you, as someone said, is probably a good thing and an educational thing and guides you as to how to move forward and so on. But it is neither here nor there. And so the court made that distinction clearly here because Mr Gordhan and others wanted the Public Protector to pay punitive and personal costs on the basis of the findings against her, which were made by the court. And the court said at 238, Chair, “In light of what was stated in the above passages, we are of the opinion that the circumstances of this application do not warrant the ordering of a personal cost order against Adv Mkhwebane. The test set out is that of bad faith and gross negligence. It does not appear in the papers before us that Adv Mkhwebane conducted these proceedings in bad faith and was grossly negligent. The facts of this matter do not support such an order and we are accordingly not inclined to grant such an order. So that did not detract from the fact that they had found against her on the findings, or yourself. So just for good measure, she was mounted with punitive costs in relation to the 6(9) issue, that is the two-year thing. Bearing in mind that this very court said that this was the first time this matter was being tested in the courts. But that is what happened. I just do not want to mislead the Committee on that aspect. But at 250, which is the part you will not see on the newspapers.

Chairperson: Whilst you are having that pause, let me just recognise the hand of Hon Mileham.

Mr K Mileham (DA): Thank you, Chairperson. Chairperson, I apologise for interrupting proceedings, but on a point of order. It appears that Mr Mpofu is now testifying. I did not hear a question in that long soliloquy that he has just made of all these various sections of this case that he has quoted, but he did not put a question to Mr Mataboge. And I have a bit of a problem with that, Chair.

Chairperson: Okay, maybe he is still coming to that. Adv Mpofu?

Adv Mpofu: Thank you, Chairperson. I take strong exception to the use of the word soliloquy. I take strong exception but I will take it from whence it comes. Mr Mataboge, do you recall those portions in the judgment, insofar as you have confirmed that you have read it?

Mr Mataboge: Yes, I do, Adv Mpofu.

Adv Mpofu: Thank you. Alright, we were at paragraph 250 of the judgment before we rudely interrupted. It says “We conclude” and I am just putting the thing in perspective of the cost issues ‘as a result that costs should follow the event. As per our decision, the Public Protector should pay costs of the applicants in the review application on an attorney and client scale, as well as costs to Minister Gordhan and Mr Pillay on a party and party scale.” So this puts it in perspective. On the merits there was an attorney and client scale and on the counter-application; I have not dealt with it with you, it was about the contempt of the Public Protector. That part obviously got reported. Here is the part “on the other hand Minister Gordhan, Mr Pillay should pay the public protectors costs pertaining to the strikeout application on the attorney and client scale. The applicants must also pay the Public Protector costs pertaining to the PAJA (Promotion of Access to Justice Act) grounds on review on an attorney-and-client scale.” I have also not discussed that with you. That one was about Minister Gordhan. Firstly, the first attorney and client scale order against him was for the insults. Then the second attorney and client was for insisting on bringing that case under PAJA, when we had pointed out, we actually had written letters to him to say PAJA does not apply to the Public Protector. But that is just a legal thing. It does not show much malice. Yes, Chair. Okay, then I do not have to refer you to the court orders because they summarise what I have just said. So that is the Pillay Judgment. Thank you, Mr Mataboge. Obviously this was your baby or one of your reports, so you are familiar with those findings and the passages, just so that there is no doubt and I am not accused of a soliloquy or any other Shakespearean conspiracy. Were you familiar with those findings and do you confirm them?

Mr Mataboge: Yes, Adv Mpofu, I can confirm them. Like I said yesterday, whenever there are judgments, we sit as investigators with our legal services in our conference room and discuss as well as learning curves and teachings for our work going forward. Yes.

Adv Mpofu: Right, thank you. Now, I have asked you this before and although at least on this score, it was mitigated, I think, by the comments of the judges in two important ways: by rejecting the gratuitous insults, but also by stating where they felt so that even though they might have found against yourselves, there was nothing to warrant personal costs against the Public Protector. But to the extent that you were collectively… that collective that adopted each other's insults on the one side, and then there is the collective, which is the target of those insults. How did you feel about now being accused of such big things as being a conspirator to state capture and attempts to influence the appointment of cabinet and all those things? How did that make you feel as a professional?

Mr Mataboge: Just like I said yesterday, Adv Mpofu, it does overwhelm one as an investigator, even a Chief Investigator at that. Even your colleagues, let alone the colleagues outside of the Public Protector. They look at you in a different way and it effects how you do your work and your self-esteem. Some even talk about your cases. I remember on one or two occasions I had to stand my ground in one of the conference room to try and put matters into perspective. But it does affect you personally. And for sure anything that affects you, personally, and professionally, will work against your future, as a professional for that matter.

Adv Mpofu: Yes. Okay. No, I think that is important, because not only does it affect you now, as you put it in the future, if one day, maybe you might be looking for another job or another opportunity and then identified as one of those state capture practitioners. No, thank you. So now if you can just help the Committee, I am just taking advantage because you are here and you are an investigator and an experienced one. There is another issue, it concerns, in the main, allegations which are made in the reports that you were not involved in, CIEX and Vrede, and I will raise it with Adv Madonsela when she comes. But I am asking you from a different perspective because I think Mr Gordhan made a similar accusation. It is about this whole business about the Public Protector, expanded the mandate, or the scope, or in another case, she narrowed it and so on. Are you familiar with the Mail & Guardian case?

Mr Mataboge: Yes, I am, Adv Mpofu.

Adv Mpofu: Yes, not word for word, just the thrust of the case.

Mr Mataboge: Yes, we cite all the time as part of the reports we issue, as the one that informs our investigations. Where we may have not cited it would have been amidst, but it is always there.

Adv Mpofu: Yes, that is true. In fact, you have just reminded me. Maybe I should go to an example of where you do it. And I am doing this just to show again… You know, I do not know whether it is a – let me not ascribe it to any particular action but I will argue this at the end. There is a conflation of court proceedings with investigative proceedings such as yours. And another conflation of adversarial and inquisitorial proceedings. In fact, we had hoped to bring an expert to these proceedings – It is just that we did not get around to it – to explain some of these concepts, the law of evidence, how it works, what is relevance and what is this and the other. Outside of that, let me just use this, because as you correctly say, it appears in every report. Is it your understanding that the Public Protector is confined to the four corners of a complaint? Or that if the evidence leads, unlike a court, as you and I would know, a court is confined to the pleadings. If I plead something and I say you stole my car, the court will look into that issue not as to whether you also stole my motorcycle and so on. Unless if I have pleaded it, you get what I am saying?

Mr Mataboge: Yes, I do, Adv Mpofu. And I am familiar with that.

Adv Mpofu: Yes, thanks. That is a court of law. Now, in an investigative process, such as this one, does that also hold? So if I complain about my stolen car, and in your investigation, you find that someone also stole my motorcycle and my goat, whatever, are you confined… must you turn a blind eye to those things, just simply because they were not in the original complaint?

Mr Mataboge: I think the Mail & Guardian Judgment here is key, in that it criticised the Public Protector, you know, when they were dealing with that judgment to say, the Public Protector must go out there and find out the truth and must not just take what is being brought to his or her attention. And as such that is what we follow as investigators. If I may take it further, when, for instance, you investigate one matter and you find that there are systemic matters that also relate to almost similar conduct. We then widen the scope and do what we call systemic investigations. And it becomes a very wide… You cannot just say, because you found one idea being fraudulently issued, then you just ignore the rest, if I may just use one of the simpler cases that does not relate to conduct failure.

Adv Mpofu: Yeah, so as a matter of principle, does it even make sense? Is it logical to accuse the Public Protector of widening the scope of an investigation beyond the complaint or even narrowing it for that matter?

Mr Mataboge: No, it does not. I will even take it further, by referring to the PP Act, I think it is Section 7 (1)(b)(i) that talks about the format and the procedure to be followed in conducting an investigation. It says that “it shall be determined by the Public Protector with regard to the circumstances of each case.” That is the section from the Act. This talks to the Mail & Guardian Judgment somewhere.

Adv Mpofu: Thank you. And if we, as a country now, when I say we, want to confine the Public Protector to the four corners of a particular complaint, then we would have to change the legislation to indicate that, correct?

Mr Mataboge: That is correct, as far as I see it.

Adv Mpofu: Alright. Then let me just summarise as you say this is standard – almost all your reports contain this but maybe the members might not have read it or even if they read it, not understood it in the context that I am presenting it now. So this is just a random example, and you find it in the evidence report. But let us go to 6228. I think there is another mismatch in our numbering. Go to 9.1.11. Thank you. Okay, let us just use that one as an example. I will read it out, Mr Mataboge and at the right places I will ask you if you are familiar with it, okay? It says “In the seminal case of Public Protector v Mail & Guardian, the court held that the Public Protector is not a passive adjudicator, between the citizen and the state, relying only upon evidence which is placed before her by the parties. The Supreme Court of Appeal held further that the Public Protector should not be bound or limited to the issues raised for consideration and determination by the parties, but should investigate further and discover the truth and also inspire confidence that the truth has been discovered. The court further made it clear that the mandate of the Public Protector is an investigatory one, requiring proaction in appropriate circumstances. Although the Public Protector may act upon complaints that are made, he or she may also take the initiative to commence an inquiry and on no more than ‘information’, not even evidence, “that has come to his or her knowledge of maladministration, malfeasance of impropriety in public life.” If I may just pause there. This was at the heart of the case, which we argued, I think in 2017, which, if I am permitted, I will raise with Adv Madonsela. The turning point case that gave us the Zondo Commission, called the State Capture case. As to what is the level because the other side, representing the President then was saying no, the Public Protector must have evidence and we argued that even information is enough to… successfully in that case. Anyway, it says “the court emphasised that the Public Protector has a proactive function. He or she is expected not to sit back and wait for proof, where there are allegations of malfeasance, but is enjoined to actively discover the truth.” And just in closing, it says “Although the complaint by Mr Maimane had been lodged in terms of the EMEA (Executive Members Ethics Act), Mr Maimane had in the same complaint also requested that the suspicion of money laundering should be probed due to the manner in which the transaction relating the payment of the CR 17 Campaign went through several intermediaries before reaching its intended beneficiary.” Okay, we covered that yesterday. And now, the gist of is 9.1.15, where you say, or the Public Protector “I have therefore deliberately decided to cite the above case law and further lay this short background in order to address or dispel any misguided notion or contention that I have unduly extended the scope of this investigation without just cause.” And that is, well, at least we will argue that is the same misguided notion that afflicted Ms Mazzone when she articulated her various complaints about the alleged expansion of the mandate from let us say, Ms Madonsela’s version of the issues and the other issue. Okay, in your experience does it happen frequently or rarely that the final report covers either much wider scope or a narrower scope than was originally envisaged by the complainant?

Mr Mataboge: It does happen often in respect of other cases as well, Adv Mpofu.

Adv Mpofu: Alright. There is just one small thing on the Rogue Unit but I do not want to go back to it and then come back to this. I will deal with it separately. Rule 53, Ms Mvuyana testified that she. At her level, and the legal people, external and internal, would get involved, but it did not go much higher than you. Can you confirm that, I suppose even you would get involved peripherally, anyone higher than you would not normally get involved in a compilation of a Rule 53 Records?

Mr Mataboge: Yes, her explanation is correct, Adv Mpofu. Even myself, my involvement is more quality assurance – it is minimal as well, because there is quite a lot to do as a Chief Investigator.

Adv Mpofu: Okay, so you… Well, this happens even in government departments or anywhere. I do not think anyone ever expects the Minister or even a DG (Director-General) to be compiling Rule 53 Records. So in your situation, your Rule 53 Record would be compiled by the people on the ground really, who do the spadework, correct?

Mr Mataboge: Correct, Adv Mpofu. Correct.

Adv Mpofu: Okay. Sorry, Chair, I am just rounding up. If we go to 5816… No, no, sorry, it is the SC story, we have dealt with that. If we then go to 5931. Yes, okay, thank you. Okay. Just one or two issues, Mr Mataboge. If you do not mind us just going back to one or two issues that I just omitted to raise when we were dealing with the Rogue Unit. The first one has to do with this whole thing of the IGI Report. The Public Protector, when she testifies, will confirm, as I said, that she openly and consistently stated that she had sight of the report and all she was trying to do was to get it declassified. And that is why she laid charges against the Minister and I think the Minister laid charges against her and all sorts of things. But so there is no doubt that she both saw the IGI Report and used it in the PP’s report. Now, there was a suggestion here…well, firstly, do you confirm that that the Public Protector then was, as she will put it, responsible for any contents in the report that emanated from the IGI Report? Was that your understanding?

Mr Mataboge: Yes.

Adv Mpofu: Right. And what was then put to you the Public Protector will literally own up to that, and then she will explain the points in what you called, last week, the to-ing and fro-ing of the documents. The points at which then she would then populate those documents with the information at her disposal. But what was suggested here was that, by some reasoning, which has to do with your computer skills, or lack thereof, which cannot be worse than mine, that some of those changes at least went through your hands, let me put it that way, because they were highlighted in yellow, which apparently is your trademark way of…

Mr Mataboge: Who said that? I want to know who said that, Adv Mpofu?

Adv Mpofu: I am not revealing the whistleblowers. Another whistleblower told me that you do not even have WhatsApp. I think I am ahead of you. But on a serious note, to the extent that those changes were clearly done by you because of your highlighting tendencies, did that then mean that they came from you or were you dealing with them as they came from the Public Protector?

Mr Mataboge: No, once it is highlighted in yellow, it would mean that it is coming from me so that there is a distinction between the input from the PP and by the investigator herself. So that is why it is one of those practices, as I used the word ‘practice’ earlier on.

Adv Mpofu: The practices, yes. And so then, to the extent that you could have, let us say, inputted on the formatting of that of a particular section, or the framing or whatever, maybe using whatever you are using. The point I am asking is, if you then did some, some work on a particular section, did that mean that you, yourself had read the report, or you would have been formatting what someone else, you could have been, formatting what someone else had inputted, whether it was Bianca or the Public Protector, or anyone else?

Mr Mataboge: Yes. Maybe having discussed with the PP, you know, of the document, either telephonically, or you know? And then I would input it like that, having understood (it) to come from her in that context, so that when it goes back to her, she must see my input on it.

Adv Mpofu: That is fine. No, the point I am making is that it was suggested that simply because you had commented on it, or highlighted it or whatever, or worked on it, then it meant it was an indication that you had read the report yourself. Can you assist us on that?

Mr Mataboge: No, not necessarily. That is why I am saying it would be maybe through a discussion with Ms Mvuyana or even PP, and my understanding of that discussion then I would incorporate it that way and highlight it so that it can show that it is new text that is coming into the report now.

Adv Mpofu: Yes, okay. Thanks. No, that is fine. You see, you must move with the times because now your primitive methods… You must come to me for IT lessons. Alright. No, that is fine. I just wanted to clarify that. Then the last one is, Chair, 5931. It is important that I am dealing with this now, with us having what I have called the gratuitous insults of Mr Gordhan, in relation the Pillay matter, which as I indicated, were similar, I think, similarly referred to at paragraphs 267 and 268 of the Rogue Unit matter. So I am now dealing with the insults in general, because they appeared in both matters. Do you understand that?

Mr Mataboge: Yes, I do, Adv Mpofu.

Adv Mpofu: Okay, you follow. Okay, thanks. These are then some of the issues Mr Gordhan raised in his response to the Section 7(9), which we now know were ultimately rejected by the court and he was punished for them; hopefully that makes you feel better. But I just want to see, what I call the sauce because what is often missed, I think, in this Committee, is that the sauce of these charges and I think I have been at pains to point this out, were the people who actually made them originally such as Mr Ramaphosa or Mr Gordhan or Ms Mazzone, or whoever packaged the insults, if there is such a thing. At paragraph 5933… Chair, I think I will only need five or ten minutes. At paragraph 5933, I will just go through them again, and I will ask you in-between so that I am not accused of testifying, but I am just trying to do this for time. Paragraph three, Mr Gordhan says the following: he basically says ‘look, I am giving you this response and I do not want to do it’ and so on. Then he says “I do so, however, despite my serious misgivings about the current Public Protectors conduct in this matter, and indeed her fitness to do this investigation and make the findings proposed in the Notice. She has shown herself to be implacably biased, and indeed seems to be driven by a single-minded determination to tarnish me and others with her reckless investigations and findings into complaints laid by my political adversaries. I shall not allow her to do so and will protect my constitutional rights to fair and reasonable administrative action and maintain integrity.” Can you see the resemblance between this particular insult which was by the way, rejected by the court and charges 11.1 and 11.3, which really are that you and the Public Protector and others were single mindedly determined to isolate certain people and handpick them for political vendettas , what we discussed earlier? I just want you to see that this must be one of the sources of that particular allegation. Can you see the resemblance between the two?

Mr Mataboge: Yes, I do, Adv Mpofu. I do.

Adv Mpofu: Yes. And then a similar question arises from later in that document. Yes, I think it is paragraph 51, at 5949. In the same vein, and I will ask you again of the resemblance between this and what we discussed in the judgment and then the charge, 11.3 and 11.4. “The establishment of the unit was perfectly lawful. The Public Protector’s proposed findings to the contrary are wholly unjustified, erroneous, and intended to serve a political purpose or other ulterior motive.” Can you see that resemblance there, as well?

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

Adv Mpofu: And the last one is at page 5962, at paragraph 66. “The Public Protector’s proposed findings against me substantiating complaints laid by my political opponents are unfounded and explicable only by bias and ulterior motives.” I will not ask you how you feel about that, but do you understand it to paint you with that same brush that of a political campaign, for lack of a better word?

Mr Mataboge: Yes, I do, especially when we are the ones who are the foot soldiers and who even sit in these meetings when people are subpoenaed by the PP.

Adv Mpofu: Yes. Thank you, Chair. I just wanted to say that, you know, yesterday, we closed on a note where you said that you were worried, that, because I was hoping that you are out of danger, but to the extent that there might be other people who might share your worries. I had not thought of that. Maybe, as it normally happens, that the victimisation might start with the Public Protector or the insults or the harassment or whatever is happening. But that it could, you said, we sometimes get worried that they will come for us as well. And I just wanted to say that, you know, that reminded me of what I want to close on because sometimes people, us, we sometimes get drunk with power and forget how quickly the wheel turns. And the words of my friend, Mogoeng Mogoeng, CJ, in that judgment, that “we must do unto others as we would like others to do to us in the same situation.” And I do not know if you have heard of a gentleman called Martin Niemöller, who addresses situations like that. And I will read it out to maybe it will make you feel better or if you have not heard it. If you have, you must look for it. He says “first they came from the Socialists and I did not speak out because I was not a Socialist. Then they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for the Jews and I did not speak out because I was not a Jew. Then they came from me, and there was no one left to speak for me.” I think the importance of those words is something you must Google if you are able to use Google. Thank you very much.

Mr Mataboge: Adv Mpofu, somebody defamed me about my IT skills.

Adv Mpofu: I know. Your IT skills, or lack thereof. Thank you very much, Mr Mataboge, you have been very helpful. I know that I have taken you to some of these areas, but I think it is useful for this committee to have had someone like you and Ms Mvuyana who are the actual practitioners as opposed to the leadership of that institution. Thank you very much. Thank you, Chair. Chair, I am done. If I pick up anything during lunch because I can see that there are some whispers, then I will ask for a minute or two. But it is unlikely, Chair. I think we have covered everything.

Chairperson: Thank you, Adv Mpofu. We are going to pause there for a 45 minute lunch, and we come back at 13:55, which will be the turn for the Members. Is there something you want to throw in?

Adv Mpofu: Yes, Chair. No, I had forgotten our arrangement of addressing those other issues. Maybe can I do it when I come back? I can do it at any stage, as long as you do not punish me for missing the deadlines. Thank you, Chair.

Chairperson: Yes. Thank you. Thank you very much. Let us have lunch for 45 minutes.


Chairperson: Just before I proceed because we got an unusual gift, before lunch. You have to be surprised, it is a very unusual gift that we got from Adv Mpofu. Who saved and gave back time, which does not often happen, but that is a gift. So thank you very much, Adv Mpofu, for returning the time that you always claim. It is a nice reward.

Adv Mpofu: Thank you, Chair. I even fought for Adv Bawa to get more time last week, but who gives me the credit.

Chairperson: Thank you. Thank you.

Adv Mpofu: Thank you, Chair.

Chairperson: And with that colleagues, maybe we should also take his example. He would have been giving a certain time but he did not have to utilise it. I am going to be asking Members to interact. I am hoping that we will do that in a very focused way, and concluded well on time. Even though we are scheduled to end at 17:00, I do not mind if we conclude earlier than that. So I am in your hands. I am not saying do not ask your questions. Can I now invite Members to raise their hands? Before that, Adv Bawa?

Adv Bawa: Chair, I did indicate to you this morning as well as to Adv Mpofu that there were issues that arose from the documentation that we were provided and from Adv Mpofu’s cross-examination that I would like to deal with, after the Members of course.

Chairperson: Yes, because this is now not your time. You can indicate that when it is the opportunity for you to. Thank you. Hon Mananiso, Hon Gondwe, Hon Mileham, Hon Maneli. Those are the hands that I have colleagues, Members that wish to interact. As I am about to close the hands, there are more hands coming. Hon Siwela? Are there any further hands, colleagues, up in the air? So that we know what we are going to be focusing on. Hon Dlakude. Thank you. Let us proceed in that way. Hon Mananiso?

Ms J Mananiso (ANC): Thank you, Chairperson. Chairperson, I switched on my video for you to register me. Can I switch it off?

Chairperson: You are welcome. Thank you.

Question to Witness by Committee Members
Ms Mananiso: Okay, thank you, Chair. Let me pass my greetings to Adv Mataboge, Evidence Leaders and their teams. My first question to Mr Mataboge, is that could he define Adv Mkhwebane’s leadership style, for me? As an ice-breaker. Chairperson, can you hear me?

Chairperson: Yes, we can hear you. Mr Mataboge is just about to respond.

Ms Mananiso: Alright.

Mr Mataboge: Afternoon Hon Mananiso. I am not an advocate. I am Mr Mataboge.

Ms Mananiso: Okay, Sir. How are you?

Mr Mataboge: I am fine thanks. How are you? You have asked me a very…

Ms Mananiso: I was asking you…

Chairperson: He has your question. Thank you, Ms Mananiso.

Mr Mataboge: You have asked me a very difficult and perhaps technical question. If you talk leadership, one would have to define leadership and management style as concepts. But to try and answer you. I worked with Adv Mkhwebane during her stint as a senior investigator. She then left and came back and joined the institution as our leader now. And this bit of background for me, will show that she had to adapt to being our leader. For me, the one that I knew…

Chairperson: I do not know what is happening in your office, people phoning in.

Mr Mataboge: It is not me, Chairperson. It is not on my side. I think it is on the Hon Member’s side.

Ms Mananiso: Yes, it is my side, Chair. Sorry.

Chairperson: Please mute and only unmute when you have to speak. Apologies for that, Mr Mataboge. Please go ahead.

Mr Mataboge: If I may then summarise my answer. I do not want to belabour the definition. I want to just say that they normally say there are leaders who lead from the front and others from the back. With that distinction, the Public Protector, that is Adv Mkhwebane, has been leading apace with us. She was not leading from the front, as far as my experience working under her supervision, and myself being Chief investigator of all these cases that came before her. She is also a hands-on leader, if I may use the word hands-on, because she also gets involved and wants to know what is happening everyday within the work space. I think I should stop here, because I do not want to be technical about what is leadership and management.

Ms Mananiso: Thank you, Mr Mataboge. You have answered me. And then my second question to you, Sir, do you believe in the notion that everyone is equal before the law? Maybe me and you are on the same page in understanding that it is regardless of the authority that you are serving in, or you are deployed, or employed in, that everybody across is equal before the law and people must be treated fair? And I just want to check with you, do you think this particular process is fair or unfair? More especially when there is prima facie evidence?

Mr Mataboge: Which process, Ms Mananiso? The Inquiry itself?

Ms Mananiso: This process of Section 194 that we are in, Mr Mataboge.

Mr Mataboge: If I were to talk about the proceedings, with what is being brought forward, I would say it is fair because of both sides of the parties, if I may use that word, that in the dispute are being heard and are being given enough of a hearing, yes. I hope that I have answered you, Hon Mananiso.

Ms Mananiso: You did answer me, Sir. Thank you. We had evidence from Ms Mvuyana that the investigation of the SARS Unit was kept closely between her, yourself and the PP. Why was this the case?

Mr Mataboge: I will try to answer a bit, but I would rather leave this to the PP herself. I cited a section in the Public Protector Act earlier on, that says the process and the procedure to be followed in investigations is determined by the PP: it is her sole right. I think when I talked to Adv Bawa, I said that sometimes the lesser hands involved in crucial and critical investigation, the lesser risks of crucial and sensitive information coming into the wrong hands. That is how I personally viewed it. But I think PP would be the best-placed person to respond to that question, because we did not choose ourselves, she was pointed out to work with her (Ms Mvuyana) on this investigation.

Ms Mananiso: Okay, Mr Mataboge. And then my fourth question to you is that are you aware that the IGI Report was never declassified and it would have been unlawful for an unauthorised individual to process the report?

Mr Mataboge: Yes, I was aware.

Ms Mananiso: Alright. And then my follow-up, Sir. Would you agree that both yourself and the PP were not authorised to process the report?

Mr Mataboge: I am not sure because I and the PP have top secret clearance. I am not sure. I am speaking under correction here. I never thought so.

Ms Mananiso: Alright, Mr Mataboge. Those are my questions to you. Thank you for answering my questions. Thank you, Chairperson.

Mr Mataboge: My thanks go to you, Madam.

Chairperson: Thank you, Hon Mananiso. Hon Mileham.

Mr K Mileham (DA): Thank you, Chairperson. Good afternoon, Mr Mataboge.

Mr Mataboge: Good afternoon, Mr Mileham.

Mr Mileham: Mr Mataboge, let me start where Hon Mananiso left off and ask you: if a person has top-secret clearance, does that mean they are authorised to view any top secret document?

Mr Mataboge: That is my understanding of having obtained top secret when it was given to me. That was my understanding, yes.

Mr Mileham: Sorry, someone else came in and commented. It is your understanding that because you have top secret clearance, you can view any top secret document. Is that correct?

Mr Mataboge: That is what I am saying.

Mr Mileham: Okay. I am going to suggest that is actually an incorrect interpretation and that you are only entitled to view documents that you are authorised to view, but let me leave it at that. Let me turn to another matter. Yesterday, Mr Mpofu took you through various court judgments and he took you through the ConCourt judgment in the SARS matter. And he in particular highlighted the opinion of Chief Justice Mogoeng Mogoeng.

Adv Mpofu: Chair?

Chairperson: Sorry, just a pause, Mr Mataboge and Hon Mileham. I have a hand here. Adv Mpofu?

Adv Mpofu: Sorry, Chair. I am sorry to interrupt but I think Mr Mileham is making a mistake. For the record, that was in the Bosasa matter and not the SARS matter.

Chairperson: Thank you for the correction.

Mr Mileham: I apologise. Sorry, that was the Bosasa matter. He is quite correct. But that was a minority judgment. Now, I want to ask you as a qualified legal person. What is the value of a minority judgment of the Constitutional Court against the value of a majority judgment of the Constitutional Court?

Mr Mataboge: You cannot compare the two because the one is a majority decision while the other is a minority one but that does not stop one, as I was saying yesterday. As small as it was, as an investigation of the matter I felt a bit vindicated, but not in the bigger scheme of things, where the matter had not been viewed by other majority decision courts.

Mr Mileham: Let me put it another way. The minority has no impact on the outcome. Is that the correct interpretation?

Mr Mataboge: Yes, correct.

Mr Mileham: Okay. And the binding outcome is the majority judgment?

Mr Mataboge: That is correct.

Mr Mileham: And there is no higher court than the Constitutional Court. Is that correct?

Mr Mataboge: That is correct.

Mr Mileham: Which means that the decision of the Constitutional Court to set aside a report or to dismiss an application, that is the law; that is the finding and end of the matter, and it can go no further. Is that a correct understanding?

Mr Mataboge: Yes, and that is what happened.

Mr Mileham: So let me ask you this. If that is the case, why are we sitting here debating the minority opinion?

Mr Mataboge: I think you are asking the question to the wrong person, Hon Mileham.

Mr Mileham: Well, you expressed an opinion on it yesterday, and I am asking you, in your opinion, why are we debating the minority judgment?

Mr Mataboge: I do not understand when you say that we are debating it, because it was Adv Mpofu’s presentation of his version or argument.

Mr Mileham: Okay, and you agreed with him.

Mr Mataboge: As far as minority judgment is concerned, I agreed with what was in the minority judgment.

Mr Mileham: Okay, let me turn to another matter, and this is the quality assurance on the various reports that you issued. What was the process that was followed from the investigator to the final sign-off of the report?

Mr Mataboge: Which report, Hon Mileham?

Mr Mileham: Well, let us go with the SARS, the alleged Rogue Unit Report. What was the quality assurance process that was followed?

Mr Mataboge: The quality assurance is the same throughout, depending on who is the investigator because it has to go through myself as the Chief Investigator, having been drafted by the senior investigator. And then it has to go through the executive manager, and then it goes to the COO, and it goes to the Public Protector and sometimes even our legal services.

Mr Mileham: And yet, we have heard evidence that in the case of this particular report, it went from Ms Mvuyana, to yourself to the Public Protector. It did not go through the executive manager, and it did not go through the COO. Is that correct?

Mr Mataboge: Yeah, but that is not for me to determine and to answer. Like I said, we serve at the behest of the Public Protector.

Mr Mileham: Would you agree that then impacts the report itself?

Mr Mataboge: I am not sure to what extent.

Mr Mileham: Well, I asked Ms Mvuyana whether she thought that report was a shoddy report, and she asked what did I mean by shoddy. And I pointed out various shortcomings. And I said to her, let me rephrase it. ‘Did she think it was a quality report?’ And she said, ‘No’. So in light of that evidence, do you agree that there were shortcomings in the quality assurance process of that report?

Mr Mataboge: I do not agree with that.

Mr Mileham: Okay, let me highlight a few issues there, and then you can tell me whether you still hold that position. So there were witnesses that were never interviewed. Do you agree with that?

Mr Mataboge: I am going to refer you to the Section 7 (1)(b)(i) that I referred to earlier on about the determination of the format and the procedure to be followed in each investigation. When we investigate, we do not have to… Let us say in the earlier depiction of names that were there when Adv Mpofu was leading his evidence. There are almost how many people’s names are there? If we determine that we need to interview all of them, we should form a basis for interviewing all of them. So as a result of us trying to determine who not to call for an interview and not who to involve, it is on the basis on what we regard the material evidence that we would want and what the focus of the investigation is, for instance.

Mr Mileham: Fair enough. But if you issue a 7(9) Notice, that means that you believe that witness has material information for you, surely?

Mr Mataboge: Issue a 7(9) Notice to the witness, you mean?

Mr Mileham: Yes, if the Public Protector’s office issues a Section 7(9) Notice, that means that you as the investigators believe that there is material information that can benefit your report, surely?

Mr Mataboge: Yes, if we issue a 7(9) that says you issue a 7(9) to implicated and affected parties. Then that is when the materiality part comes into play.

Mr Mileham: So you agree that if you issue a 7(9) Notice that witness has material information that you would like to interrogate or investigate?

Mr Mataboge: Yes, that is why we are offering him or her a chance to respond to the 7(9) Notice.

Mr Mileham: Now, let me take that a step further. We heard from Ms Mvuyana, that the process followed in actually serving the 7(9) Notice on Mr van Loggerenberg was very, very weak. Would you agree with that?

Mr Mataboge: I do not agree that there was a 7(9) to be served on Mr van Loggerenberg. As far as I recall, there was a problem with the subpoena and not the 7(9). If I recall my facts correctly. It was not a 7(9) Notice.

Chairperson: Thank you. Just a pause there. I have a hand here from Adv Mpofu.

Adv Mpofu: Okay, thank you, Chair. I wanted to assist Hon Mileham, but I think that the witness has just done so. Thank you.

Chairperson: Thank you. Hon Mileham, please continue.

Mr Mileham: Okay, thank you, Chair. So if it is a subpoena, let us use the correct terminology, there is obviously material information at that point, surely?

Mr Mataboge: Yes, at that point. Correctly so, at that point.

Mr Mileham: Okay. So you were trying to serve a subpoena on Mr van Loggerenberg. Now, the process that was followed in serving that subpoena, would you agree that that process was flawed?

Mr Mataboge: I would not agree because this argument, Hon Mileham, keeps on propping up. I said to the team and even Ms Mvuyana, we are not like the other investigating institutions. We are the Public Protector and we try by all means to serve the subpoena our way. But we are not the police where we do a search and seizure, and look for people. We tried our best in the circumstances to serve this subpoena.

Mr Mileham: Well, let us explore what your best involved. You spoke to a whistleblower at SARS, who gave you incorrect information about Mr van Loggerenberg’s address, correct?

Mr Mataboge: Those are not my words. Who said that?

Mr Mileham: That is the evidence… Go ahead.

Mr Mataboge: I wanted to say we requested information from SARS on the former employees of SARS from their personnel records. So I do not understand when now you talk about a whistleblower, Hon Mileham.

Mr Mileham: Ms Mvuyana said that the information of Mr van Loggerenberg’s address came from a high profile whistleblower, in the human resources department of SARS. It was not a formal request for information; it came from a high profile whistleblower was what she said.

Mr Mataboge: When we wanted to serve all of the former SARS officials, we requested information from SARS. That is why even on the day, the sort of not well served subpoena, the day it was served, the messenger went to all of those other addresses, which we would have sourced from SARS personal files, including Mr Magashula… all of them.

Mr Mileham: We are talking about Mr van Loggerenberg.

Mr Mataboge: Yes, I am saying he was part of the subpoenas that were being served on the day, I think plus/minus six of them to the former SARS officials.

Mr Mileham: Okay. Can you point us to the official correspondence to SARS requesting those addresses?

Mr Mataboge: I will have to go through my records. Not now, but I will have to look at the records.

Mr Mileham: Well, why is it not in the Rule 53 Record?

Mr Mataboge: I will have to ask Ms Mvuyana, because she is the one who dealt with the Rule 53 Record. I will have to ask her.

Mr Mileham: Okay, because she said that it was the whistleblower, but okay, let us put that aside. What other steps did you take when it came out that the address was incorrect, to ensure that the subpoena was correctly served?

Mr Mataboge: No, once the messenger returned, Ms Mvuyana said that she went on Google to try and search for the address. Another thing that happened was that the PP also provided us, also as a team, with a court date. I wonder if it was out of time or in time, on the day Mr van Loggerenberg was going to appear in court, for us to serve it.

Mr Mileham: And why did you not serve it?

Mr Mataboge: But that did not take place.

Mr Mileham: Okay. Why did you not serve it on his attorneys?

Mr Mataboge: I was not aware of his attorneys at the time.

Mr Mileham: Even though you had had correspondence from his attorneys only days before?

Mr Mataboge: I was not aware of the correspondence that you are referring to, Mr Mileham, at the time the court appearance version was being brought to us.

Adv Mpofu: Chair?

Mr Mileham: Okay. So what I am hearing and correct me if I am wrong, is that your efforts to locate Mr van Loggerenberg extended only to an address that was provided by somebody in SARS and a Google search?

Mr Mataboge: Yes.

Mr Mileham: Do you think that is adequate?

Chairperson: Please wrap up. That will be the last question.

Mr Mileham: Yeah. Do you think that that is adequate in terms of your investigative responsibilities? And if not, is that not indicative of a shoddy investigation?

Mr Mataboge: I would not say that. That is why I even explained to you, Hon Mileham, that we are not like the Hawks, the SIU and other people. We are not the police. We are the Public Protector, you know? So I would not share that sentiment.

Chairperson: Thank you. I am going to the next speaker but before that, I see a hand. Adv Mpofu?

Adv Mpofu: Yes, thank you, Chair. I just wanted to assist Hon Mileham again. But just for the record, the evidence does not accord with what he is saying that there was correspondence from the attorneys days before. The evidence is actually that non-service was in April, and the attorney’s letter was somewhere in mid-June. Thank you.

Chairperson: Okay, thank you. Hon Siwela, you are recognised.

Ms V Siwela (ANC): Thank you, Chairperson. Good afternoon, Mr Mataboge.

Mr Mataboge: Good afternoon, Hon Siwela.

Ms Siwela: How are you?

Mr Mataboge: I am well, how are you?

Ms Siwela: I am fine. My questions relate to the IGI Report. I want to know if the PP surrendered the report to the IGI, as requested by the letter by the Minister of State Security, on 20 February 2019. Do you have knowledge of that?

Mr Mataboge: I am not aware. The response would best come from the PP, herself, or even the legal services because I recall the legal services people were involved. But now that it is only PP and I that are here, maybe PP can assist when she testifies.

Ms Siwela: Okay, thank you. For my second question, I want to ask you about the issues regarding the authorisation. Are you authorised by law to possess a classified report if you have a top secret clearance?

Mr Mataboge: I think this question was asked by the Hon Member that asked before you, who says that just because I have got a top secret security clearance does not mean that I am authorised. I think based on that, I will take his word for it.

Ms Siwela: You are not authorised. Thank you for that. So I want to know if at any moment you have been instructed by the PP to omit certain information while you were working from the Rule 53.

Mr Mataboge: No, never. When we work on the Rule 53, the Public Protector is sometimes not even aware of what we are doing and where we are working. It is very, very far removed from her space. Even our executive managers, sometimes, do not get involved in the Rule 53.

Ms Siwela: Thank you. Those are all the questions I had for you. I thank you.

Mr Mataboge: Thank you, Hon Siwela.

Chairperson: Thank you, Hon Siwela. Hon Maotwe? Hon Maotwe? Hon Omphile Maotwe? She is not here. Oh, it is just a hand there. Okay. Hon Gondwe?

Ms Maotwe: Sorry, Chair?

Chairperson: Yes, Hon Maotwe?

Ms Maotwe: I have a problem with my signal. Were you calling me, Chair?

Chairperson: Yes, please go ahead.

Ms Maotwe: Thank you, Chairperson. Good afternoon, Mr Mataboge.

Mr Mataboge: Good afternoon, Hon Maotwe.

Ms Maotwe: How are you?

Mr Mataboge: I am well thanks, Madam. How are you?

Ms Maotwe: I am well. I have got a few questions for you. The first one would be that, did Mr Jamnadas Gordhan confirm or deny that he was part of the establishment of the so-called Rogue Unit?

Mr Mataboge: At what stage, Hon Maotwe? Because we engaged with him during the meeting and he responded as well. I am trying to find out at what stage you are referring to?

Ms Maotwe: At any stage. Do you confirm or deny?

Mr Mataboge: I think when you use the word ‘Rogue Unit’, it becomes a problem. When he was saying that the establishment of the Unit was lawful, he talked of the NIA – not necessarily the Rogue Unit – that it was lawful and its activities were lawful. So he did not deny.

Ms Maotwe: So let us call it the SARS Unit. I said that the one that is well known as the Rogue Unit, but let us call it the SARS Unit. Did he confirm or deny that he was part of the establishment of that unit?

Mr Mataboge: No, he confirmed.

Ms Maotwe: Okay, let us move (on). So we are in this process that emanates from the Motion that comes from Hon Mazzone, from the Democratic Alliance. That is why we are here. It was the beginning of the process. Now, is there any substance to the charges from Hon Mazzone that the Public Protector shielded politicians like Ace Magashule, the former Secretary-General of the ANC?

Mr Mataboge: No, and that is why when I was asked this question by Adv Bawa, I was saying that I do not agree with the charges, I think it is 11.1 and 11.4, because like I was saying, we conduct our work as well as bona fides possible.

Ms Maotwe: Okay. Am I correct to say that you are personally involved in the Vrede II matter?

Mr Mataboge: Yes, I was.

Ms Maotwe: And then to your knowledge, at any stage did the Public Protector try to influence you in any way?

Mr Mataboge: No, not at all. Even during the other investigations as well. As a team we sit and discuss with the PP. We try to persuade her and she tries to do the same, before we arrive at a particular narrative. We do not just take it from her as such.

Ms Maotwe: Okay. My last two questions. With the former Chief Justice, Mr Mogoeng Mogoeng’s judgment in the Bosasa matter taken into account, should the NPA (National Prosecuting Authority) on its own not charge the sitting President criminally, for lying under oath in his responses to the Public Protector.

Mr Mataboge: I would rather not comment on that, Hon Maotwe. Especially in light of what I have just been told; that the legality of the minority decision remains a minority view and not the majority decision of the court.

Ms Maotwe: Okay, I will give you that. That is fine. My last question is: so Adv Mkhwebane was able to ask 31 very good questions to the sitting President, within one week of getting the complaint. We know now that as a matter of fact that the Acting Public Protector has not released the Phala Phala Report, nine months later. Is that the new standard? And should that standard be acceptable as a professional standard now that is in the Office of the Public Protector?

Mataboge: I would want to desist from commenting. But I will say that as a Chief Investigator who has been involved in many of these cases, I always use the word with the teams that I supervise, that sometimes a matter snowballs; we use the word ‘to snowball’. And once the matter snowballs it does not look like what it looked like before you started working on it. It may even then go beyond the turnaround time that you had envisaged yourself, or even other people outside.

Ms Maotwe: Should this not be priority number one, this matter? More so because it involves the first respondent in the country. So should it not be a priority on the desk of the Public Protector?

Mr Mataboge: Once again, I would want to desist but I just want to say it would be a priority. Depending on what is contained and what information is being grappled with by the team that is involved. Unfortunately I am not involved. It sometimes does not become as easy as it seems from a distance. With us being the team inside, we will be grappling with lots and lots of issues in an investigation. I am speaking from the experience when I was involved in the Bosasa one, for that matter. Yes.

Ms Maotwe: Thank you very much, Chair. That will be all from my side. Thank you.

Chairperson: Thank you, Hon Maotwe. Hon Gondwe?

Dr M Gondwe (DA): Thank you very much, Chair. Good afternoon, Mr Mataboge.

Mr Mataboge: Good afternoon, Hon Gondwe.

Dr Gondwe: How are you?

Mr Mataboge: I am well thanks and you?

Dr Gondwe: I am well, Sir. I have two to three short questions. I ask you to be patient because I still have to ask you about the IGI Report. I know you have already fielded a number of questions around that particular report, the classified report. But I just want to make sure that I have understood you. Do you understand?

Mr Mataboge: Yes, I understand, Madam. We are together.

Dr Gondwe: Yes, Sir. My first question is does the fact that a report is already in the public domain result in and when I talk about a report, I am talking about a classified report… Does the fact that a classified report is already in the public domain result in that report losing its classification?

Mr Mataboge: I do not think so because classification is a formal process, so it does not necessarily mean that you lose it.

Dr Gondwe: Okay, so if a classified report is easily available in the public domain, it does not lose its classified status, right?

Mr Mataboge: That is my view, yes.

Dr Gondwe: Yes, because I also understand it like that, that the law around this issue is there until a report is declassified, its unauthorised possession is unlawful in terms of the protection of Information Act and the intelligence services act. So whether or not your top secret security clearance becomes irrelevant, if your possession of the report is unauthorised. Do you also understand it in that way?

Mr Mataboge: Yes, I have been told earlier by a Member, I think it was Mananiso, that I must not think that if I have top secret security clearance it authorises me to have access to a report. That is what I was told.

Dr Gondwe: Okay. So at the time when you, Adv Mkhwebane and others in the Office of the Public Protector, had access to that classified IGI Report, were you under the impression that your possession of the report was authorised and lawful?

Mr Mataboge: Yes, based on the security clearance aspect that I have just been corrected on now. Yes.

Dr Gondwe: Okay, thank you. In the course of your oral evidence to this inquiry, we saw an email from Adv Mkhwebane to yourself. In that email Adv Mkhwebane, stated amongst other things that ‘Pravin Gordhan must face his day in court. And that he is a threat to democracy and he must stop before he causes more harm under the guise of cleaning up.’ And when Adv Bawa asked you about the email and its contents you responded to say Adv Mkhwebane sent it to you simply for noting. Now, Mr Mataboge, was that email simply for noting because it contained a host of questions in it? And you know, for me, it came across as an instruction as opposed to it being simply for noting. Was that email not drafted in the form of an instruction to yourself to make sure that you conducted the investigation in such a manner that the outcome of the investigation ensured he was stopped because he is a threat to democracy?

Chairperson: Okay.

Mr Mataboge: I would want to be shown the email again, Hon Gondwe because I do not recall that email during the engagement with Adv Bawa.

Chairperson: Okay. Whilst we are doing that, I have a hand I need to recognise. Just switch for now, Hon Gondwe. Adv Mpofu?

Adv Mpofu: Thank you, Chair. Chair, I object to that question. It is a deliberate misleading question. This email was canvassed with Ms Mvuyana, who at least confirmed the fact that it came, I think…

Adv Bawa: Chair, she could not confirm anything.

Adv Mpofu: No, wait. Wait.

Adv Bawa: No, no, no. On a point of order.

Adv Mpofu: Wait, let me speak.

Adv Bawa: You cannot feed the witness an answer that was given and retracted.

Chairperson: Okay. I have not recognised you though. Please wait for me to recognise you. Okay, please conclude, Adv Mpofu. Then I will come back to you, Adv Bawa.

Adv Mpofu: Chairperson? Yeah, Chairperson. I really do not appreciate being interrupted like that – rudely. No, I am saying the evidence before this Committee, which was led through Ms Mvuyana, was that particular email, I think she said it looked like it came from a complainant or somebody like that. And it was canvassed with her repeatedly, and even the mistakes – judge Nugget – and all of those things. And she clearly indicated that it did not resemble the style of the Public Protector. All I am saying… I am not saying which version, whether that version or the other version of Adv Bawa is correct. She seems to be too keen. She forgets that she is an evidence leader and not a prosecutor. No, you forget that you are not a prosecutor. Oh, sorry, I am addressing you, Chair. She forgets that she is not a prosecutor and her job is not to sponsor a particular narrative, as opposed to another. But to get to the truth, I am simply saying if that question is asked, and I am not saying the question should not be asked, then in fairness it should not be put as ‘Adv Mkhwebane sent to you, and she did this and another’ as if she was the author of the email, when that issue is in dispute. That is all I am saying, Chair. I am not saying that questions should not be asked. I am just saying that fairness demands that the witness is not misled deliberately, for nefarious purposes, to pursue the agenda of Ms Mkhwebane, or Ms Bawa, or both.

Chairperson: Adv Bawa?

Adv Bawa: Chair, I am not pursuing any agenda.

Adv Mpofu: I mean Dr Gondwe, sorry. Not Ms Mkhwebane. Dr Gondwe and Adv Bawa or both.

Chairperson: I did not recognise you now, Adv Mpofu.

Adv Mpofu: I apologise, Chair.

Adv Bawa: I take offense to that suggestion. But the point was Ms Mvuyana was not even included in this email. She accepted that was the case. The question was put with reference to the evidence which was given by Mr Mataboge as the recipient of the email. Ms Mvuyana, when questioned by myself, said she was speculating about it. She could not even recall if she had even been a recipient of this email. So for Adv Mpofu to elevate it as undisputed evidence before this Committee, or evidence that is in dispute by somebody who was not even sure that she had received the email and to whom the email had not even been addressed. She further said that she did not think this was an email from the PP, because there were no names above to whom it was addressed. When I pointed out to her that actually there were several emails from the PP in exactly the same way. She agreed to that. So I think that it is wrong for Adv Mpofu to offer an answer that was not based on the question that was put to the witness. He should be allowed to answer without a different answer being provided by Adv Mpofu.

Adv Mpofu: Chairperson?

Chairperson: Okay. Thank you, Adv Bawa. I want to move back to the Member. Let me get your point, Adv Mpofu.

Adv Mpofu: Thanks Chair. Yeah, I have a right to reply. Thank you, Chair. I think it now borders on something I cannot describe, to suggest that I am offering an answer. I think that is actually the highest insult that can be suggested to me. Chair, I am not doing anything of the sort. I am not offering any answer. What Adv Bawa is doing now is a method of a legal argument, which we will both have a lot of time to deal with when the evidence is being assessed. I am simply saying it is factually true that you cannot ask a question. You cannot say one witness says the thing is blue, the other one says it is white. And then you ask it as if there is no controversy about that question. And pose it as if, say, ‘she said Adv Mkhwebane’ when there is evidence before this Committee of whatever value or weight, which will be discussed at a later stage, that that is not the case. It is just not fair to the witness. It is misleading, number one. Number two, Chair, I do not want to waste your time. Adv Bawa should not be huffing and puffing about a particular version. It is not her job. She is an evidence leader. She is not a… even a prosecutor would not do what she is doing because even a prosecutor would understand that a question must be asked fairly and answered fairly can understand. Again, I understand, Dr Gondwe, maybe she is not a lawyer or at least a practicing one. But Adv Bawa knows that what I am saying is correct, which is that the question must be put in its proper context and with all versions of it, not in a misleading way calculated to trick the witness. That is all I am doing.

Chairperson: Thank you, Adv Mpofu. I am going to come back to you, Hon Gondwe, to pursue your question, if you are getting answers to it.

Dr Gondwe: Mr Mataboge, were you able to capture my question?

Mr Mataboge: Yes, I captured it. I tried to respond to say let me see the email that the question is based on because I do not recall the email myself.

Chairperson: Okay, can we have the email? Over to you, Mr Mataboge and Hon Gondwe.

Mr Mataboge: Through you, Chairperson? Go up.

Chairperson: She has a challenge with up and down, so you might need to assist her.

Mr Mataboge: She must go to the address, Chairperson.

Chairperson: Okay. Thank you.

Mr Mataboge: Yes, Chairperson. I see but I do not remember the email. It is so overloaded that I do not remember it, indeed. It was 8 November 2018, even, when one of the files was just being opened. I do not know if it was the SARS or the one relating to Bosasa. But I do not remember the email.

Chairperson: You do not remember the email?

Mr Mataboge: Yes.

Chairperson: Okay. Hon Gondwe?

Dr Gondwe: But do you remember what I asked you about the email; what my question was?

Mr Mataboge: Yes, I remember the question. It would mean that it was an instruction: that was the gist of your question.

Dr Gondwe: Yes, allow me to finish. Mr Mataboge, were you able to capture my question?

Mr Mataboge: Yes, I captured it. I tried to respond to say that let me see the email that the question is based on because I do not recall the email myself.

Chairperson: Okay, can we have the email. Over to you, Mr Mataboge, and Hon Gondwe.

Mr Mataboge: Yes, Chairperson. I see, but I do not remember the email because it is so overloaded, indeed. It was 8 November 2018, even, when one of the files had been opened. I do not know if it was SARS or the one relating to Bosasa. But I do not remember the email.

Chairperson: You do not remember the email?

Mr Mataboge: Yes.

Chairperson: Okay. Hon Gondwe?

Dr Gondwe: When Adv Bawa asked you what she meant by saying that Mr Gordhan is a threat and he must be stopped. You indicated that you saw it as you know, simply for noting. So my question to you was did you not see it as an instruction?

Mr Mataboge: We will have to go to… Sorry, Chairperson, and Hon Gondwe. I was suggesting that we will have to go to the record. This was not where I said it was for noting. I do not remember me saying that. Maybe we have to go to the record and listen to my answer.

Dr Gondwe: Okay. No, it is fine. And then in the course of your evidence, we were shown another email in which Adv Mkhwebane suggested that the Bosasa draft report be shared with SC. Do you recall that email?

Mr Mataboge: Yes, I recall the email.

Dr Gondwe: Okay. And then in that very same email, you agreed with Adv Mkhwebane that the Bosasa draft report be shared with SC. Can you confirm to this Committee, if you remember who she was referring to?

Mr Mataboge: I would not confirm, Hon Gondwe, because the accessing of the SC or even any legal assistance by us as investigators is done via the legal services within the Office. They will be the ones who know as to which SC is available at what time. So I would not have known which one she was referring to, particularly here.

Dr Gondwe: Oh, but you knew she was referring to a senior counsel? Is that what you are saying?

Mr Mataboge: To SC? Yes.

Dr Gondwe: Okay. And why did you agree if you did not know who she was referring to?

Mr Mataboge: Because it is in the normal course of our investigation, to use our legal services, to access and assist the investigation teams in accessing the SC or the attorney's assistance. That is what I said. So as to who it was going to be, it was not for me, because we have got a panel of attorneys, I think, on our database from where legal services sources the assistance they want for us as investigators.

Dr Gondwe: So you just… Then why did you agree? I am sorry; I did not quite understand why you agreed?

Mr Mataboge: I was saying… I was agreeing because of the level of what we thought needed to be done and the PP’s suggestion – I was agreeing to that. But as to whom it was going to be. I did not know. And was not for me to know, because we have got several people on our database that offer legal services, normally services for investigators to assist us with these opinions.

Dr Gondwe: And can you confirm to us what needed to be done around the Bosasa report by the SC?

Mr Mataboge: I think there was a question about the jurisdiction and the applicability of the quote to the deputy president as against the president at the time as a member of parliament. Yes, that was the question that needed to be addressed, I think.

Dr Gondwe: Okay. And in order for the SC to do that they needed a copy of the draft report?

Mr Mataboge: It means that I am talking about the wrong request here because when the Bosasa investigation started, Hon Gondwe, we also sought legal opinion on jurisdiction. So it means this one was for a report that was already advanced then. It is something. I am correcting myself in that regard.

Dr Gondwe: So you cannot recall what that something else is? Mr Mataboge, are you there?

Mr Mataboge: I think there is something else there in the PP’s email, which says that the draft needs to be discussed or engaged with the SC. I think the gist is there. I cannot say what particularly needed to be addressed at the time.

Dr Gondwe: Alright. Thank you, Mr Mataboge.

Mr Mataboge: Thank you, Hon Gondwe.

Chairperson: Thank you. Hon Maneli?

Mr B Maneli (ANC): Thank you, Hon Chair.

Adv Mpofu: Chairperson?

Chairperson: Just pause, Hon Maneli. Adv Mpofu?

Adv Mpofu: No, Chair, just to assist Members for the record. I did not want to be accused of suggesting answers to the witness, but the email that has just been put, the one previously, in the heading says that it refers to BBD Report, whatever that is. The witness was not sure. I am just saying for the record. It speaks for itself.

Chairperson: Thank you, Adv Mpofu. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. Good afternoon, Mr Mataboge.

Mr Mataboge: Good afternoon, Mr Maneli.

Mr Maneli: Just a few questions, Chair, to clarify my notes. It became apparent from direct evidence that there may be oversights in the course of investigations as you called it, oversight. In hindsight, one would want to check whether this would have affected yourself and the PP, and I am saying the PP in the sense of the final layer on the quality assurance is the PP. That your due diligence, your skills, including the conclusions that you arrive at, and finally, at the report; whether it is the report that you are to take out from the PP side, or even in preparation of your Rule 53, as you prepare for courts. So that is what I want to check with Mr Mataboge. Through you, Chairperson.

Chairperson: Mr Mataboge, did you get that?

Mr Mataboge: I got that. I thought that Hon Maneli was still going to pose a question, as I only heard him talk about oversight. Oversight in which sense? Supervision or overlooking certain parts? I did not get the rest.

Chairperson: Okay, let me ask him to briefly repeat that.

Mr Maneli: I will repeat, Chair. I started by a statement, which in a way should be also confirmed by him. I said, I am corrected by notes. He called it oversight. And I take it that refers to omissions in this case, not an accountability weakness. That is a starting point. consult. And having said that, that happens in the course of an investigation. Now, the question, therefore, is, in hindsight, do you also see this as having affected the work you needed to do in terms of due diligence, the skills that you apply, the conclusions to the reports, and as I said, that conclusion, I take it to be also on the reports from the PP or including in your preparations for Rule 53. I have indicated both PP and yourself in the sense that the PP is the final person in the quality assurance. So that is the question, whether from that oversight in hindsight now, whether you would come to that point, that it may have affected your due diligence, and everything else? Thank you, Chair. Through you.

Mr Mataboge: Yes, Hon Maneli. I think to a certain extent I concede, but that would be based on the capacity and the pressures that come with the work. But that does not mean in everything that we do, the oversight that I refer to would apply, because there are several, many other reports. It is unfortunate now that we are dealing with four or five that are part of the Section 194 (Committee). But notwithstanding the four, there are other reports that we wrote that due diligence, in my view, and thorough, you know, supervision went into them… into those reports. But further, I think it does not necessarily mean that once the report is being reviewed and set aside, like it happened with most of them, it would be at the heart of the quality because one or two reports were set aside on procedural issues other than the content itself. The court did not even go into the merits and the content if I recall. But your point is that because of capacity, we sometimes work under a lot of pressure to turn around… I mean to meet the turnaround times, Hon Maneli, yes. But that should not be used as an excuse for us to then have this oversight. And I am happy that we are talking about it in hindsight now. Thank you.

Mr Maneli: Thank you, Chair. If I may then proceed from that line. The CR17 report and the SARS Unit report are major reports that you were the chief investigator reporting directly to the PP. And the court in setting aside these reports raises significant shortcomings in the reports. I think then that the question that arises and I am linking this question to an answer that I listened to, which I would verify. Was there any consequence management that was introduced after this?

Mr Mataboge: No, there was no consequence management introduced.

Mr Maneli: Of course, with the other witnesses who have come before us, through you, Chair, there were also issues about audi letters that get received. And in that interaction, Mr Mataboge indicated two things on Adv Bawa’s questions. It was like he heard from the corridors. Should I then assume it correct evidence on your side that you have never received an audi letter at any given time? Secondly, also informed by your response to Adv Mpofu’s question about disciplinary action, whether in the course of doing your work, you were faced by disciplinary measures against you, and you said no. So I just want to check as it relates to audi letters, whether you have ever received audi letters, on that score?

Mr Mataboge: Yes, Hon Maneli, I have received, I think, two audi letters. All of which relate to the work in general, not particularly to Bosasa or to SARS. They would relate to the work in general. They would think that we do not meet targets, we do not deliver on the days that we agree with the Public Protector and so forth. I think as a Chief Investigator I would not have escaped that myself.

Mr Maneli: Chair, I am happy with this response that he was not excluded from audi letters, but they did not relate to these matters. Therefore, my last question, in that regard, just to build on what Hon Gondwe raised about lawful instruction. There is an email that we saw which one would regard as an instruction to consider a report from Mr Madiba. Your response, Mr Mataboge, was that whilst you would have received the email, you did not act on the matter. If I were to use your words, you said it may come across as insubordination? Unless I did not hear you well, as I was trying to take rigorous notes. But as you tried to explain it, it was not. But that is a lawful instruction. And it also came out in, I think Rule 53, that instruction, that there was lack thereof. Now I want to check would you indeed regard denying a lawful instruction as insubordination, which necessitates consequence management?

Mr Mataboge: Yes, I would, Hon Maneli. But I would have to explain myself to my executive authority as to why… I would not just disregard the instruction without explaining why I was taking that line. That is why I even said to the Committee that my take, which is still what I stand by today, is that I did not want a narrative, whether the Vrede one or Madiba’s report, to influence my own assessment of the investigation I conducted independently and for his narrative to influence how I come to my conclusions. This is what I even said to the then COO, who is no longer with us, as to why I was taking that line.

Mr Maneli: Thank you, Chair. Thank you, Mataboge.

Mr Mataboge: Thank you, Hon Maneli.

Chairperson: Okay. Thank you, Hon Maneli. The last person to engage will be Hon Dlakude.

Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. I will not waste the time of this Committee. My questions were covered, mainly by Hon Maneli and Hon Gondwe. Thank you very much.

Chairperson: Okay. Thank you very much, Hon Dlakude, for the discipline not to repeat questions. With that, therefore, that concludes the interaction of Members with Mr Mataboge. I now go to Adv Mpofu… I mean Adv Bawa, if she has any pick up questions.

Adv Mpofu: No, I am ready, Chair.

Chairperson: Whilst I was inviting Members, you were saying something. IT is now your opportunity.

Adv Bawa: Chair, as you will recall, I did not question Mr Mataboge in-depth on the Bosasa report, as I planned to do it in writing. When I got back and I looked at my notes on the way he answered it, I was happy that he covered it. But yesterday… Good afternoon, Mr Mataboge.

Mr Mataboge: Afternoon, Adv Bawa.

Adv Bawa: He answered certain questions of Adv Mpofu that I do need to clarify, in order for it to make sense to the Committee. Unfortunately, I have to do that in the context of the documents. And I want to deal with a proposition that was put to Adv Mataboge yesterday that for the PP, to have any, and I think I want to use, I think, scheme, or specifically target any person… what was the word you used? Vendetta? She would have had to have recruited the investigators to do so in the context of the investigation. And you said that you agreed with that? Did I understand you correctly?

Mr Mataboge: I do not recall, Adv Bawa.

Adv Bawa: Let me rephrase this. Adv Mpofu said in the context of having to make a finding or to come to the conclusion that the Public Protector focused or had a scheme or targeted or had a vendetta against, I think it was in the context of Minister Gordhan. For her to be able to do so she would have had to recruit her investigators in being able to pull something like that. And you disavowed having been recruited in such a manner?

Mr Mataboge: Yes, I would not have been, as a professional, not the subject or be pliable to recruit in that context. Having been working here for so long, I would not sacrifice my integrity and image just for one situation or one report, if I may use the word.

Adv Bawa: I understand that and I want to take you through… In this case, I did this exercise in respect of the SARS unit report with Ms Mvuyana, but you are essentially the investigator in the Bosasa matter and you report directly to the PP in that regard. So I want to take you through the draft 7(9)s in sequence and context, just to understand something. I am correct in understanding that you wear the hat of the investigator in the Bosasa matter. Am I correct?

Mr Mataboge: Yes, you are correct.

Adv Bawa: Right. And you answer directly to the PP in respect thereof?

Mr Mataboge: Yes.

Adv Bawa: Right. Now, can I ask you, when you are the investigator in the matter, who do you then rely on to check the applicable legislation? Do you do it yourself? Or do you dish it out to somebody else in your unit?

Mr Mataboge: I work with the teams. I also use the legal services as a sounding board.

Adv Bawa: Now, in the Bosasa matter, we must talk about teams very carefully, because we were told that you had a lean communication channel to prevent leaks. So when you check legislation in the Bosasa matter, who actually did it?

Mr Mataboge: I think this one was being done in conjunction with our legal services. That is why even in the beginning I said before we started with the investigation, I think legal services had to seek legal opinion on our jurisdiction on that. So we work closely with legal services.

Adv Bawa: Did you, as the investigator, independently verify the legislation?

Mr Mataboge: Yes, I did.

Adv Bawa: Okay, so let me take you to Bundle 1, 94 and it is page 6560. Now, this will be what the Members will see to be the report which you prepare. Sorry, let us go to the first page, which would be 6554, so that we can see the context of it. Okay? This is one of the early drafts. I have not tracked an earlier draft. If you go down you will see that you tell the PP “Kindly receive rough draft Section 7(9) as discussed for further guidance and directives.” Would I be correct in saying this was probably one of the very early drafts if not the very first one?

Mr Mataboge: Yeah, this one would have been the very first one, I think.

Adv Bawa: Okay, so then let us go up. She then comes back to you, not long after that “find attached and see my comments”, right? If we go down, Tshepo.

Adv Mpofu: Chairperson? Sorry, Chairperson? Thank you, Chairperson. I hear we have a new person operating IT. I thought it was Tshepo.

Adv Bawa: Adv Mpofu, I have been chastised from day one about names. Do not go there. I cannot remember anymore. I have been told that I even get Hon Mileham’s name wrong half the time. My team has been on me from the start. So let us not take that…

Adv Mpofu: No, thank you. That was on a lighter note. Chairperson, I want to… I do not want to be difficult, because we are all trying to search for the truth here, but I just want to warn Adv Bawa not to overdo what she is doing. I am not stopping her but she cannot raise new issues at this stage, for two reasons. One, you will remember that last week I was at pains, and as I was saying earlier, I even asked for her to get extra time, because I realised that she had not covered some of the reports. And it was and she still did not do so. She went on about Mr Gordhan and the Rogue Unit and all that. And it was to prevent something like this. That is number one. The reason for that, Chair, is that if she raises new issues in what is effectively reexamination, then I have to exercise my right to cross-examination, and then we will be here all afternoon. So I do not want us to get there. I am just saying I can understand if maybe because of time, she did not get to certain issues. But thirdly, Chairperson, which is more serious, why she should not be allowed to do this ordinarily, but if you want to be lenient, I do not mind, is that you, as Chairperson, when eventually we did run out of time because the witness had to leave, extended the opportunity to Adv Bawa to ask whatever remaining questions in writing last week by Friday, which should have been responded to by Monday, on the issues that she had not managed to cover. She did not exercise that right. She did not ask those questions. And in which case we would have had access to the questions and the answers. And then I would have covered that in my cross-examination. So to now try and exercise that right through the backdoor and re-examination is just unfair and incorrect. And as I say, I am not saying she must stop. If there are issues of clarity, I do not want to be fastidious about that. But if it goes too far, I will then have to intervene, Chair, or exercise my right to cross-examination which will just defeat the purpose of trying to finish early. Thank you.

Chairperson: Thank you, Adv Mpofu. Adv Bawa?

Mr Mataboge: Chairperson?

Chairperson: Yes, Mr Mataboge?

Mr Mataboge: I wanted to talk before Adv Mpofu talked on the same matter, to say that I am surprised now that, I do not know, I am not that good with legality, but I seem to feel like I am suffering double-jeopardy, in that Adv Bawa last week said to me, she was going to send me questions and I must in the meantime send her documents, which I did, in Mimecast because they were voluminous. And on the back of that, I got a call from Ms Ebrahim, to say I must rest assured that there will not be any further questions being sent to me, because what I sent through to Adv Bawa is sufficient and addresses what she wanted to ask on questions. So for me to be taken to her questioning again, it is like now is another session of her leading evidence against me. And I do not know, because this is not a court of law, would I then be able to be correct to cite double jeopardy? Because I do not want to refuse to answer questions because I have been cooperative; even though I sometimes feel like I am being pushed overboard by the Committee and the whole process itself.

Chairperson: Okay, maybe just for your clarity, before I go back to Adv Bawa. I would have recognised her, based on our directives that we have. I will try and summarise for you. I have utilised the directive 6.16, which says “after Members have posed questions, the evidence leaders may ask” and they have a discretion therefore, “any questions arising or seek clarity from the witness in relation to questions posed to such witness, whereafter the Chairperson shall excuse the witness from the hearing.” So she is on that platform. Adv Mpofu was raising a different point than you. But I hope that you are not surprised that she is coming back because that is how we do it. I am now going to give Adv Bawa to respond to the issues.

Adv Bawa: Mr Mataboge, when I asked you the question, I asked you the question, and I put to you that as far as I was concerned on the documentation that you had actually gotten paragraph 2.3 of the Executive Members Code, correct? That as far as I was concerned, you had not made a mistake in your documentation on that. You then in cross-examination with Adv Mpofu, agreed on the deliberate and inadvertent interpretation of it. I could not have asked you these questions on Sunday, when you only got cross-examined by Adv Mpofu thereafter. I had, on my understanding, accepted that you had accepted that you had gotten it right. And so now I want to actually point out to you that you had gotten it right in your draft and show you where it actually got changed and how it actually got changed. And that is directly arising, on the difference of the version that was given as I understood it, after I finished with you last week, and what arose in cross-examination. Now, I could conceivably not have asked you that over the weekend.

Adv Mpofu: No, Chair?

Chairperson: I want you to proceed. But, Adv Mpofu?

Adv Mpofu: I am sorry, Chair. I was also hoping that this is not going to take long, but I can allow this to be said now like this. Adv Bawa last week, when we… She did actually; probably the only thing she questioned Mr Mataboge on regarding Bosasa was this point about the code because according to her she said that was the only issue which will deal with when we are in argument. Adamant. So to suggest that it was only provoked by the cross-examination is not correct. But secondly, as you correctly say, Chair and just support you in terms of Mr Mataboge’s concern, what I was raising was not the mere fact of Adv Bawa raising any questions because she is entitled to do so. I did it with Ms Mvuyana, well yesterday or the other day. But it was the context, as you correctly pointed out. Again, I do not want to waste time with this. I am simply saying… I am not even saying the question must not be asked. I am simply saying she must just watch and not bring new material, which will then provoke the right to cross-examine. Thanks.

Chairperson: Thank you, Adv Mpofu. Adv Bawa, over to you. Just put your mic on.

Adv Bawa: Sorry, I want to go through it very quickly. I am going to let Tshepo do searches – and yes, I do not do justice to her name every second day, and we accept that. I am alive to the fact that there is a flight waiting, Adv Mpofu. If we go to page 190.4.6.

Adv Mpofu: No, it is not even a flight.

Chairperson: You do not have to respond. We have never spoken about a flight here. Do not respond.

Adv Mpofu: Okay. Sorry, Chair.

Adv Bawa: So, Mr Mataboge, this was the initial version, and I am going to let our operator behind me do the search for the word ‘wilful’.

Mr Mataboge: Sorry, Adv Bawa? Whilst she does that, I suggest that we also go to the emails that I used on Sunday to send through the documents I was sending because I was answering and commenting on each document that I was sending. I think I also commented on the inclusion or exclusion of the wilful versus… In the email that I sent to Ms Ebrahim, I think. That email may also shed some light.

Adv Bawa: Sorry, Mr Mataboge. I got documents, but I did not get comments from you. I only got documents.

Mr Mataboge: Yes, I am aware. That is why I am saying when I was trying to send them through to the officials, Ms Ebrahim and others, because of the server size it could not go through them I had to send them through Mimecast, because only your Gmail was able to take the volume of documents that I was sending through. These volumes of documents were accompanied by emails and paragraphs in which I was answering each question and clarifying each question that had been posed in the letter.

Chairperson: Adv Mpofu?

Adv Mpofu: Chair, this is a quick one. I want to help. The reason your word search is not working is because you misspelt ‘wilful’. It has one ‘l’.

Chairperson: Okay.

Adv Bawa: So just to clarify, Mr Mataboge. I got the following arising from the exchange over the weekend. And we must maybe clarify that because if I have it then that is what Adv Mpofu has as well, and if there is something missing, then we need to get to the bottom of that. I got an email from you which related to the draft answering affidavit in the National Assembly matter. I got a few pages of the investigative diary but not the investigation plan. I got a few Word documents listing the documents which Ms Mvuyana received as part of her investigation file. Then I got about 20 memos, which is like a route from going up to the Public Protector in respect of the Bosasa matter and different letters and stuff that went out. One to my recollection relates to the SARS unit matter. And then I got three closing reports, which related to the Pravin Gordhan matters. All of which is signed-off by the Acting Public Protector as closing reports, currently not by Adv Mkhwebane. They are not signed-off by her but I will ask you that question when I get to it, because it might have been signed-off, but actually dealt with there. Right? And then the other document I got we have got under what we would know as 190.6. Which are three draft final reports of the 11th, the 12th and the 15th, and the ministerial handbook that you have provided. I am not going to the reports and the handbook. I am going to the first draft of the Section 7(9), which you submitted to the Public Protector much earlier, and which had been given to us in the first batch of documents, when we had made the inquiry last year already. Is there anything else that you have given to us that I have missed, Mr Mataboge?

Mr Mataboge: Yes, Adv Bawa, you have missed the emails explaining the documents that I was submitting, because in submission of those documents, I was answering, you know, sequentially the questions that that have been posed in the letter, and then attaching documents to support what I was answering on, I think. That is why I say the issue around EMEA and the Executive Ethics Code is also captured in the email that I sent through, before I could send those drafts and the handbook by Mimecast. I had sent an email through to Ms Ebrahim, to Tshepo, I think, and Mr Ngoma as well, if I am correct. I sent emails answering each question – or addressing each question in the letter.

Adv Bawa: I missed it. But this is not the answer that I am actually going for. So can we just answer the questions I am going to put to you, and you can then refer to this if you would like to, but this was not… this is not where I am going, Mr Mataboge.

Mr Mataboge: It is fine, Adv Bawa. It is fine.

Adv Bawa: It might well be that in the flurry of documents and us wanting to make sure that Adv Mpofu got it timeously that the actual body of the email got missed by somebody on our team, but I am not sure about that right now.

Adv Mpofu: Chair?

Chairperson: Adv Mpofu?

Adv Mpofu: Yes, I think I can confirm that my documents seem to correspond exactly with those of Adv Bawa, except in one respect. The three closing reports, unlike what she says, only one was signed by Adv Gcaleka. The other two were signed by Adv Mkhwebane. But the actual documents are the same. Thank you.

Chairperson: Okay. Thank you, for clarity. Switch on your mic. Thank you. Over to you, Adv Bawa.

Adv Bawa: So I think, Adv Mpofu, in the email body, which I am just being shown now, Mr Mataboge answered some questions and I could have missed it. We had a problem in that the documents were too big for Parliament's email and I tried to assist him. But in the interest of saving time, Mr Mataboge, could we just do it in the way that I am suggesting? And if there was something that was missed, we could then just deal with it in this way?

Mr Mataboge: Yes, no problem.

Adv Bawa: So if we could go back to the page, and we will spell willful. Right, so if you see in paragraph 7.3 of your draft, you correctly cite the executive ethics code. If you go down to the next paragraph, if you search it. You will see in paragraph 9.1.8, you correctly referred to in the next paragraph. 2.3, you correctly refer to it. The documents are continuous. I do not want to go out of the document. But let us go to the next one. Are you back to the top now? Okay, go back down. Wait, hold on, I think you are on the next document. So if you go to page 6579, which would be the last one on that document. And then if you go to page 6571, you will see that what Public Protector does is he puts comments in the document and she says “include the legal provisions from the legal opinion. Also include the ConCourt judgment on how the President should conduct himself.” Do you see that?

Mr Mataboge: Yes, I do.

Adv Bawa: Okay, if you go to 5679, you get the same instruction to put in the legal opinion and the reference that he met these people at dinner, to do this. Right? Now, you testified to us, and I took you to it, about the legal opinion that had been provided by Mr Seanego, in respect of the Bosasa matter, correct? You referred to it earlier on, also as the one in which advice had been rendered on jurisdiction, right?

Mr Mataboge: Yes.

Adv Bawa: Now, you would be aware even though you are not in legal services. Your client would request the legal opinion from the attorney, the attorney would then give an instruction to the SC or the counsel or whoever, and then an opinion would come back, correct?

Mr Mataboge: Yes, but I am not in legal services.

Adv Bawa: No, you are not legal services, but you know that is how it is done. If you want an opinion, you go to legal services, legal services would get authorisation. They would then go to whichever attorneys on the books, that attorney will then get a legal opinion from whichever counsel you guys use at the PP’s office. That would not be you that gets the opinion; it would be legal services?

Mr Mataboge: Yes.

Adv Bawa: Right. But you are provided with this opinion in the context of the Bosasa investigation?

Mr Mataboge: Yes.

Adv Bawa: Now that opinion, if we go to page, it would be Bundle F 96, at 123129. Okay and if you go down to paragraph 3.2. I want to take you to a few places in the opinion. Yes, let us just run through this opinion. Start at 120. You get this opinion, that comes in. The opinion tells you about “the risk of being repetitive no legislation requires systematic and proactive disclosure of private funding of political parties i.e. the ANC. Consequently, political parties are under no express legal obligation to disclose the source of their private funding at election or other times, on the contrary, different considerations apply when it comes to individual ANC members who may be Members of Parliament and Cabinet members at the same time. No matter how one frames the issue, a conclusion the direct sponsorship of one's political campaign for party leadership does qualify as declarable. Sponsorship is unavoidable. And so likewise, the R500 000 gift to the CR 17 campaign was a disguised gift to assist the President's individual campaign to win the political party presidency. It is significant that the ANC has no rules governing direct funding of party members vying for the ANC presidency.” So you get that and it goes on. And then it tells you how it must be disclosed, and that it is a gift. And if you go to 3.3.3, which is 130. “Our answer to the second question is that the President cannot rely on party political activity where the rules of the party he is a member of do not permit or restrict funding of political campaigns by its members aspiring for leadership ascendancy.” Do you see that, Mr Mataboge?

Mr Mataboge: Yes, I do, Adv Bawa.

Adv Bawa: Okay, we then go on and it looks at 3.4.7.

Adv Mpofu: Chairperson?

Adv Bawa: I am just looking for one paragraph, Adv Mpofu. Just bear with me for a second?

Chairperson: Okay, he is talking to the Chairperson. Wait, wait. We do not know what he is going to say. Adv Mpofu, you are not saying that, right?

Adv Mpofu: No, I am definitely not saying that. Maybe I missed it, is it whatever the basis of her question is. Is it that this witness knows about this opinion, read it, ask for it solicited, or what? What is the connection between him and the opinion?

Chairperson: Okay. Over to you, Adv Bawa.

Adv Bawa: Mr Mataboge, you prepare a draft, right? You are then told by the Public Protector in elaborating on the draft to go to this opinion. Is that correct?

Mr Mataboge: That is correct.

Adv Bawa: So, the paragraph I am actually looking for, to save time, is right at the bottom 212/32/135. And there you see quoted paragraph Here you see “the introduction of members may not deliberately or inadvertently mislead the president, or the premier as the case may be in the legislature.” So whereas your Section 7(9) document correctly referred to Section 2 (3), the legal opinion refers to it incorrectly. Do you see that?

Mr Mataboge: Yes, I see it, Adv Bawa. But is it not in the Section 7(9) (Notice), this opinion, now? Is it not inserted at this stage?

Adv Bawa: Well, it is not inserted yet. Let us just go. Your version that I gave you, is, as I took you through the three paragraphs, at 2.3, correctly. You get an instruction from the PP to insert from this opinion, right? And she tells you what, of this opinion to insert. So let us go to the next version of the opinion that you then produced, which you see at 6571 para 9.1.23. We know that the person with the yellow highlights is quite distinctive in the document.

Mr Mataboge: Yes.

Adv Bawa: Right. So, we see there is where you are told legal opinion has come in. Now you go to the next draft, which is 6599. You still said that. You insert paragraph 9.1.24, which is not in the previous paragraph. “In the absence of explicit rules dealing with the corrections or amendments, regard must then be had to Section 2.3 of the Code which states that members not deliberately or inadvertently mislead the President of the Premier, or in this case, the legislature.” And so introduced into your Section 7(9) for the first time is a different version of the executive ethics code because you have the instruction to take the provisions from the legal opinion. If you go to 6579. Did you realise that you were inserting a different version, Mr Mataboge?

Mr Mataboge: I would not say I realised, because as I said to you, Adv Bawa, this was the one we had used in the previous reports. I know that you said that two wrongs do not make a right. But I think for me, it was more like we were correcting the one that had been initially put there. The one that comes from the code itself, not from the ministerial handbook. This one.

Adv Bawa: But, Mr Mataboge, you were using the one from the code and not the ministerial handbook. It is in your 7(9) and in fact, it is in your report in the final version as well. So just take it to the logical conclusion of where I am going. Go to paragraph 9.3.8. I am not talking about the two wrongs do not make a right. We have been through that. I am not going back to that. You are told, again, “use the legal opinion for further information in that regard” on the second draft at 6615. You go to paragraph, “based on the above, I do not believe that in this matter, I failed in my duty to disclose interest as required in the executive ethics code”. There is a draft and then you are told to put in the legal opinion, right? In the PP’s comments she also tells you to go find facts in the legal opinion. Now, if you go to paragraph nine and the document on the 15th of May, which is the next draft, 6621. Okay, there we go. It comes back on the 15th of May “Thanks, Mataboge. Check the few comments, attach the movement of money, Johan to assist you tomorrow with the total transferred to Ria Tenda, Environ, Phore, Ramaphosa Foundation. I am happy with the draft. Finalise it tomorrow for my signature. Do you have the draft from Njabulo? Share with me so that we cannot finalise it tomorrow, also.” That is a different version, can you see that?

Mr Mataboge: Yes, I do.

Adv Bawa: She is talking about the EMEA and she talks about the 214 version as well, right? Now if you go to page 6651, right? Which then takes you to… Right, there we go. This is what you then insert, okay?

Mr Mataboge: Yes.

Adv Bawa: And you put in the table of disbursements, which you must still come and then you put in the application of the relevant legal prescripts, which the Public Protector told you to take from the opinion, and you take the prevention and combating of corrupt activities act, and you quote it and you go down. We are not going to deal with the content of it. You deal with what the provisions tell you. And you introduce the money laundering aspect, based on this act. And you go down. And then you come to the conclusion that “based on the facts before me, I am therefore of the view that there is merit to the allegation relating to the suspicion of money laundering, as alluded to in the complaint lodged at my office”, right? So you inserted a law that emanated from the legal opinion that was provided, correct?

Mr Mataboge: That is correct.

Adv Bawa: And that law that you refer to is what a lawyer would call “PRECCA” but you call it “POCA”. It is not POCA that actually refers to money laundering. The courts actually tell you that you use the wrong act. Is that not so?

Mr Mataboge: Yes.

Adv Bawa: Right. So if you then go to 9.3.16, which is at 6661. Right, you then insert the applicable case law as you were told to take up to the opinion to do and you insert that. Now, if we go to the email on the 16th of May, which is 6665, right? You tell the PP “I tried my best to incorporate the information, Madam. If it is possible, a pair of a few new extra eyes would assist in the final product, if we had Q&A.” Do you see that?

Mr Mataboge: Yes.

Adv Bawa: Did that happen, Mr Mataboge?

Mr Mataboge: Yes, I think it did, but I think the people closer to the investigation. Maybe the Chief of Staff, because it did not end up with just me and the PP. There were other people in the closer circle that had to have extra eyes on the report, yes.

Adv Bawa: And did you get feedback from any of them, because I have not been provided with one email from any other person having given input into the Bosasa report from the PP’s Office? Not the Chief of Staff and not anybody else.

Mr Mataboge: I do not think it would have been in the form of emails, maybe in meetings, because even when we went to deliver the 7(9) at the President's offices, we were with the EM (Executive Manager), the COO and the Chief of Staff. I believe that those people would not have just accompanied us carrying a document that they did not have sight of, or even make comments or input. They may have participated in meetings.

Adv Bawa: Well, they provided affidavits to the Committee that said they did not.

Mr Mataboge: Alright, if that is what they are saying, Adv Bawa. There is nothing I can fault them for and say. But the fact that we…

Adv Bawa: Did the visit to the…

Mr Mataboge: Sorry?

Adv Bawa: Sorry. Did the visit to the President’s Office not precede the 7(9)s?

Mr Mataboge: No, when we went to deliver the 7(9) in, it had long been discussed with the team that was senior. I remember even when we agreed that because of protocol, it needs to be delivered. The COO and Chief of Staff and all of those people were all agreeable. That is why I am saying would they have agreed to go and be a part of a meeting where the PP would present the 7(9), in which they had not participated and not had sight of? I am just wondering.

Adv Bawa: I reiterate that I have not seen any input. But be that as it may, let us go to 6711. This is where you tell her “I have moved paragraphs around, I have not changed anything in the document.” I am just showing you for completion, so let us go to the next version, which is 6575. This is where she gives you further instructions on what to put in. And then if you go to 6917. “Kindly find the attached, the final draft”. I think we have several final drafts, but this is one of the final drafts, “with only new inputs in paragraphs 9.1.35 and 9.1.3 6 and 9.20”. Now if you go to 3936. And here you see that this has been changed in respect of “consequently President Ramaphosa’s reply was in breach of the provisions of 2.3(a), the standard of which includes deliberately and inadvertently misleading the legislature.“ In fact, here it reads “inadvertently deliberately misled parliament, in that he should be allowed himself sufficient time to research and a well-informed response. His conduct referred to above is inconsistent with his office as a member of cabinet”. Here you see where it is actually being introduced, again. Do you see that, Mr Mataboge?

Mr Mataboge: Yes, I do. Yes, I do.

Adv Bawa: Right. Now you go to 6994. And you see the conclusion is then put in “on the failure to disclose financial interests, which accrues to him as a result of the donations constitutes a violation of paragraph two of the executive ethics code and amounts to conduct inconsistent with his office as a member of cabinet.” Now, there are then one or two further versions, the 29th of May, which is 7011. You put in further inputs, 9137, that goes with it. There are minor editorial changes of grammar or something like that. Sorry, 7029. And if you go to 9.1.33. You then introduce the paragraph relating to the rumours of the relationship. And then if you go to 7056, you come to the beginning of the adverse findings, in respect of “having regard to the evidence received, the regulatory framework that President Ramaphosa should have compiled with and the impact that it had. I am likely to make the following adverse finding against the President.” Right? And then if you go to 7061, you tell her “I have added I have added new paragraph (9.1.37), to address the point raised about you in reference to the ConCourt judgment for your correction.” And you then go to page 7080, paragraph 9.1.37, “as head of state and the epitome of the Constitution should have acted with restraint and not allowed Mr Maimane’s question to affect his demeanour, as he had stated in his response, that he felt attacked and had to defend his family”, right? And then if you go to 7111 – I will pose the question at the end of it just to save time, before Adv Mpofu asks me ‘where is the question?’

Adv Mpofu: Yes, we do not want soliloquy's here.

Adv Bawa: Yeah, soliloquy. You then say to her “Madam, I have incorporated all the new yellow text as per the memo on the notice.” What memo is that?

Mr Mataboge: The memo would relate to when we submit the Notice. The memo is what we process as part of the submission to the PP’ but it goes through the approval lines. So the memo normally accompanies the notice or report or the subpoena drafts. That is what the memo would have been about here.

Adv Bawa: Okay. Would that have been one of the memos that you provided to me?

Mr Mataboge: Yes, because then the memo would have all the signatories within the office that needs to see the report or the draft before it goes to the PP.

Adv Bawa: Right, but this is the Bosasa matter. Your evidence was that nobody was actually dealing with the drafts other than you and the PP?

Mr Mataboge: I did not actually say. That is why in the memos that I submitted, I tried to show that when my managers were saying they were never involved, I even have some of the memos relating to Bosasa in that batch that I sent, if I remember correctly. I still had to submit in terms of protocol or channels, through my manager, except where PP would then have sent me an email to give me a direct instruction. But submission of documents you still have to follow normal process and procedure.

Adv Bawa: You see, Mr Mataboge, all the memos that you give me, relate to either getting a letter signed, or a subpoena done. None of the memos that you provided to us that I looked at, in the 14 or so memos that you gave me, actually deals with the substance of any of the reports. It is where you request…

Mr Mataboge: Is there no one relating to the Notice?

Adv Bawa: Let me just check. There is one… No. No, you ask for approvals to the FIC. You ask to sign letters to the President and his legal advisor. None of these memos that you provided to us and I have to go past May 2019, because that is when you provided the first drafts. Not one of the memos relate to that. And as far as the SARS Unit refers, the only memo relates to the issuing of the subpoenas in respect of the three tax people. And you know that the provision of the memos to us arose in the context of where I asked you for documentation to show that in the chain of command to which you referred, the EMs and the COO that they had involvement in respect of the SARS Unit report, and you said they did in respect of the SARS report, but not in respect of the Bosasa report. And that you had memos to prove it, and not one of the memos that you had provided to us actually proves that any of the EMs or the COO had any involvement in the compilation of the SARS unit report and that was corroborated by Ms Mvuyana’s evidence. And in fact, on the Bosasa matter, your evidence had been that they had no involvement, it was between you and the Public Protector. So when I asked you…

Mr Mataboge: That is why I say on the…

Adv Bawa: Sorry. Sorry, Mr Mataboge, finish.

Mr Mataboge: I wanted to say that is why I say on the strength of the mention of a memo there to the Notice, I need to find out what memo I was referring to there, because the memo would have been accompanying Section 7(9) Notices.

Adv Bawa: You see, Mr Mataboge, the email on the face of it at 7111, says that you have been provided with a memo and based on that memo you have put changes into that document. Let us just go back there. I have incorporated all the texts. Let us go to 7130 to see what you have incorporated because we are guided by the yellow line. So we see that now based on this memo that is provided to you, you then put in changes that say he “inadvertently and or deliberately misled parliament in that he should have allowed himself sufficient time to consider the question and make a well-informed response.” And then at 7160, there is a further paragraph that is inserted where you have invited the President to speak under oath that he had declared or provided your office all the relevant information. Do you usually ask that of somebody who appears – to provide you with an affidavit that they have given you everything?

Chairperson: Mr Mataboge, are you with us? You are muted, Mr Mataboge.

Mr Mataboge: Sorry, Chair, I wanted to say…

Chairperson: Just start again. Go ahead.

Mr Mataboge: Yes. This paragraph, as much as it is highlighted in yellow, like I said earlier on to say sometimes I highlight it in yellow but it will be based on the discussion that we would have had, not necessarily that it comes from me. And if I recall this particular paragraph, was said as a suggestion from Ms Basani Baloyi – that paragraph 22. So that is why I say it does not necessarily have to be from emails exchanged, and things that are tangible, to be in meetings. That may not have been recorded, as far as I recall with this one, now.

Adv Bawa: You see, Mr Mataboge, when we asked you in direct evidence, who was involved in the compilation of the reports in the Bosasa matter, you said it was you and the Public Protector. Is that not correct in the direct evidence? That is what you said to me last week.

Mr Mataboge: That is correct, but it does not mean that there were no inputs or suggestions. That is why I even said that the fact that we went with the team members to submit the 7(9) to the president, those members would have also participated in the meeting in preparation for the submission of the 7(9). And for me as professionals would they have really submitted and accompanied the PP without participating at all in the document that was being delivered?

Adv Bawa: So it actually defeats the purpose, if the question is we are making the lean team and we exclude certain people, and then we bring them back into the fold, that actually cannot be the reason why the team is lean because you do actually then have meetings which includes the COO and EM, on what you are now telling me?

Mr Mataboge: Adv Bawa, I am not privy to other engagements, because I am junior to the EMs and the COO, that were subsequent to my submission that the PP may have had with the EM and the COO or even the Chief of Staff himself. That would then come to me as part of what I need to incorporate, because they do not necessarily need to meet in my presence.

Adv Bawa: I have just got three more references and then I want to ask you something. 7161, which is the version of 30 May. “I am done, Madam. The changes are on the pages'' and you tell her where the changes are. Let us just go to 7190. You have elaborated on the hosting of dinners. And then at 7199, Mr Watson confirmed although he did not attend all the dinners. He was present at the one hosted. And then 7202. Now, Mr Mataboge, you get told what to put into the report, into the 7(9) after you have furnished it, correct?

Mr Mataboge: It is either being told or getting inputs, which is not unusual.

Adv Bawa: And the 7(9) is signed-off from the Public Protector afterwards, correct?

Mr Mataboge: That is correct.

Adv Bawa: And ultimately she is responsible for both the 7(9) and the report?

Mr Mataboge: Yes.

Adv Bawa: And she tells you to go and take information out of a legal opinion, and you do that.

Mr Mataboge: Yes, and that is why I am saying it is not unusual.

Adv Bawa: Right. It is unusual for a legal opinion to be provided by one person and to be furnished to the Public Protector under the name of another. Would that not be the case? As a general proposition.

Mr Mataboge: No comment on that.

Adv Bawa: Okay. Then if I can just take you to 190.5, which is the memos and the closing reports that were provided by you. I want to take you to the first one. If you go to 7472. You see the signature there?

Mr Mataboge: Yes, I do.

Adv Bawa: Okay, that is the Acting PP’s signature, correct?

Mr Mataboge: Yes, that is correct.

Adv Bawa: And so that there is no dispute between myself and Adv Mpofu afterwards. You will see on 7414, that is the signature of Adv Mkhwebane, correct?

Mr Mataboge: That is correct.

Adv Bawa: Right. And then if you go to 7472, that is the signature of Adv Gcaleka. So we are actually both wrong, Adv Mpofu – just so that we do not mislead the Committee.

Adv Mpofu: Yeah.

Adv Bawa: Now, let us just talk about these court papers that go in. You are involved in the SARS Unit matter, the Pillay Pension matter, and the Bosasa matter, and they all get reviewed and they get set aside, right?

Mr Mataboge: Yes.

Adv Bawa: Are you involved… Let us take them one by one because I want to be sure about your evidence, in making comments and in settling the affidavits in respect of what is filed on behalf of the Public Protector in the SARS Unit matter?

Mr Mataboge: Like I said previously, legal services would be responsible but they would be asked to consult with me, as the investigator of the matter. And where I would have comments, I would make them. But where I would not have inputs, I would not make them.

Adv Bawa: Alright. Do you do that in respect of the Pension Pillay matter?

Mr Mataboge: No, I do not recall there.

Adv Bawa: Did you give inputs in respect of the Bosasa matter?

Mr Mataboge: I do not recall either. I would have to check my records. But all of them would have been brought to my attention as is practice, to say that this is the answering affidavit; you make inputs; what are your inputs; do you agree or do you not agree.

Adv Bawa: Mr Mataboge, if there are mistakes on those affidavits, then those mistakes lie with the deponent or the chief investigator?

Mr Mataboge: Yes, because before it goes to the PP, it has been done by the legal services. I check it for correctness when it comes to facts and issues that I came to know in my investigation. Yes.

Adv Bawa: So, Mr Mataboge, that is why I am asking you whether you checked these affidavits. And the reason why I am asking you is because, again, I do not have copies of the emails that you are provided with these affidavits, that you are provided with these founding papers, and that you have made comments of any kind to them. And that is why I am asking you this in respect of those cases. There was extensive litigation that took place and yet in the documents that we have at our possession, we do not find documents emanating from you in respect thereof. Now, we asked you this question last week, and only one affidavit came back in respect of the National Assembly matter.

Mr Mataboge: My involvement, Adv Bawa, would not necessarily have been on electronic inputs. I would have been with the legal services when they take me through what they have in their office and reading out what they have prepared. And once or twice, when even in consultation with the attorneys that are assisting the PP, I would be a part of those meetings. It does not have to necessarily have been on electronic engagements or submissions like we see now with the 7(9)s.

Adv Bawa: So what is the… And does this happen once in respect of the matter because there are many drafts that go back and forth with instructions between the legal team and the Public Protector. Is your input sought once, or is your input sought before the affidavit is signed? At which point are you consulting?

Mr Mataboge: At the beginning, when the first answering affidavit is being prepared, and once or twice during the continuation of the matters, yes.

Adv Bawa: So if there are errors in those affidavits, where would those errors lie with, the deponent or the investigation team?

Mr Mataboge: I think the deponent, because he is the one who attest to those things. But it may even be legal services and the investigator because it starts with them before it goes to the deponent.

Adv Bawa: Now, yesterday, and this is the other aspect I want to move on, Adv Mpofu took you through paragraphs that deal with emails, in which he said you obtained and which served on the evidence before the Public Protector. Do you recall that? It was these emails on which you got some of your information from. I think it was either given to you by a whistleblower, if I recall correctly?

Mr Mataboge: Yes, I recall.

Adv Bawa: Now, in the High Court Judgment, the PP identified and referred to these emails in her affidavits and it is then dealt with in the judgment. The judgment is Bundle C, number 30, page 1100, at paragraph 117. While we are looking at that, do you accept the Mail & Guardian Judgment is what is usually followed, correct?

Mr Mataboge: Yes.

Adv Bawa: Right. So the judge in the High Court says “In this regard, her report and answering affidavit, the Public Protector discredited the President’s version, on the basis that the leaked emails showed that the evidence was untrue. In her answering affidavit, the Public Protector identifies the email she relied upon, in discrediting the President's version. They comprise two emails sent by Ms Nicol within the space of one week in November 2017. They support the President's explanation of his limited involvement in the fundraising activities, in that they show no more than two instances in which among other things, the names of potential donors were discussed with him. These emails do not constitute a sufficient basis for the Public Protector’s rejection of the President's explanation of the CR 17 campaign and his involvement.” Do you see that?

Mr Mataboge: yes, I do.

Adv Bawa: And that is based on what is contained in the Public Protector’s affidavit that she filed in the High Court. Do you disagree with what was relied on was two emails based on those dates?

Mr Mataboge: I think that I would rather not comment on that. The PP will be able to answer on that.

Adv Bawa: Now, if you go to the Constitutional Court, the majority, at paragraph 76.

Adv Mpofu: Chair?

Chairperson: There is only one Constitutional Court Judgment.

Adv Mpofu: Yes.

Adv Bawa: I am only teasing, Adv Mpofu.

Chairperson: When others got minority they are looking for something. Thank you. Adv Mpofu?

Adv Mpofu: Chair. Yes, the real articulation is that there is no Constitutional Court judgment, made up of the majority judgment and the minority judgment, and they are both real. Thank you, Chair.

Adv Bawa: Let us go to the one that counts, at paragraph… Adv Mpofu, help me here, man. What is the reference?

Adv Mpofu: Page 332. Do not ask me about the Bundle.

Adv Bawa: It is number 12, 332.

Adv Mpofu: Yeah.

Adv Bawa: And we are going to paragraph 76, which would probably be further on. And maybe, Mr Mataboge, while we are getting there, the concern that the Constitutional Court had and which they addressed is how the divergence between the managers’ evidence on oath and the emails were resolved. It appears that the Public Protector simply chose the emails over the manager's oral testimony, which got disregarded. And it was said that this was inconsistent with the principles laid down by the SCA in the Mail & Guardian. A decision to which the report actually referred and that the objective. So that is what they say in paragraph 76, where they say “the decision of firms in Mail & Guardian, the objective of investigations by the Public Protector is to discover the truth. When the investigation yields disparate pieces of evidence which do not fit into place, the Public Protector must continue digging until the two pictures emerge.” And then they quote Nugent. Go down. “The Public Protector has no place summarily dismissing any information. His or her function is to weigh the importance or otherwise of the information, and if appropriate, take steps that are necessary to determine the truth.” And then it sets out what Mail & Guardian says. And here at paragraph 78 “The truth which the Public Protector was seeking was whether the President had personally benefited from the CR 17 campaign donations. She has failed to discover this. The managers’ testimony was to the effect that he did not benefit personally, but even if this evidence was to be rejected, there is just no evidence that established a personal benefit. The emails on which the Public Protector relied simply showed that the President was more involved in the affairs of the campaign” and I have taken you to the emails, “This is not the same as receiving personal benefit.” And then in paragraph 79, “Moreover, the Public Protector would not disregard the evidence of the campaign managers solely on account of the emails that diverge with that evidence on the involvement of the President in the campaign’s affairs. Instead she was required to evaluate those witnesses' credibility and reliability of the testimony on the one hand, and authenticity and reliability of the emails.” I just want to stop there. What did you do to evaluate the authenticity and reliability of the emails that were received?

Mr Mataboge: I would not comment on that, Adv Bawa.

Adv Bawa: Why not? You are the Chief Investigator. You are the main investigator in the Bosasa matter. You obtain emails from a whistleblower, and I am asking you what you did as the investigator…

Mr Mataboge: I cannot hear you, Adv Bawa, on my side. You are muted or something. I could not hear you.

Ms van Minnen: Nor can we, in the Committee.

Chairperson: Let us take a two to eight-minute break and we can just grab tea in the meantime. I was not hoping for a break. So we are in the same space.

Adv Mpofu: Okay, anyway…

Chairperson: Is he back? Are you back?

Adv Mpofu: I was just about to walk out.

Chairperson: Okay. Adv Bawa, how far are you?

Adv Bawa: I need about another ten minutes, okay?

Chairperson: Okay, that is fine. Please go ahead. We will hold back on the break. Mr Mataboge, can you hear us now?

Mr Mataboge: Yes, I do now, Chairperson.

Chairperson: Okay. Over to you, Adv Bawa.

Adv Bawa: If the judgment can go back on the screen? I was taking you through some paragraphs in the Constitutional Court judgment. And I asked you what you did to authenticate and ascertain the reliability of the emails received from the whistleblower.

Chairperson: Just a pause. I need to check for completeness as well. Hon Denner, can you hear us? Hon Mileham? Hon van Minnen?

Mr Mileham: Chair, I can hear you. Sorry about that.

Ms van Minnen: Yes, also from my side, you disappeared briefly but you are back.

Chairperson: Can you hear us now?

Ms van Minnen: Yes, I can.

Chairperson: Okay. Proceed, Adv Bawa. Thank you, PP.

Adv Bawa: Mr Mataboge, I asked what did you do to authenticate as the investigator to confirm the integrity and reliability of the emails that you received; and on which you relied for your findings?

Mr Mataboge: I prefer not to answer that, Adv Bawa.

Adv Bawa: And I am asking on what basis do you not want to answer that, Mr Mataboge because you were the investigator in the matter? Did you personally do anything to check the authenticity and reliability of the emails?

Mr Mataboge: No, I did not.

Adv Bawa: Were you instructed at any stage to check the authenticity and reliability of the emails?

Mr Mataboge: No, I was not.

Adv Bawa: So… Okay, let us move off that. Now, after the judgment was handed down – and I am going to take you to 190.3 6540 – did you have any role to play, Mr Mataboge, in the decision to seek the rescission of the constitutional court judgment?

Mr Mataboge: No, I did not. Not at all.

Adv Bawa: Were you provided a copy of the affidavit that the Public Protector filed at the Constitutional Court for your input?

Mr Mataboge: I do not recall, Adv Bawa.

Adv Bawa: This is an email. Can you show what comes from? Well, I will tell you. This is an email that Mr Paul Ngobeni writes following the judgment of the Constitutional Court, and he addresses the email to the Public Protector and Mr Sithole. Mr Sithole did not have much of a recollection of Mr Ngobeni’s involvement in matters. But do you see that?

Mr Mataboge: Yes, I see it.

Adv Bawa: Mr Sithole’s evidence was, by the way, Mr Ngobeni had actually authored the opinion on which you relied and which had come out from Mr Seanego. He writes an urgent email in which he advocates seeking the rescission of the Constitutional Court judgment, on the basis that the court had gotten Clause 2.3 of the Executive Ethics Code so wrong. Do you see that?

Mr Mataboge: I see it, Adv Bawa.

Adv Bawa: Had you previously seen this email?

Mr Mataboge: I am seeing it for the first time today.

Adv Bawa: Okay, that cuts us short. We will take that up with the Public Protector. Now, let us just go to this IGI Report quickly. Do I understand you, and we must be very clear about this, every reference to the Inspector General and the IGI Report in the PP report that was finally issued was not put in by you, but it was put in by the Public Protector?

Mr Mataboge: Yes.

Adv Bawa: Now, how often are you given access to a classified report? In your years as a chief investigative officer, how often have you had a classified report in your position or been given access to it in any way? How commonplace is it?

Mr Mataboge: I have been Chief for almost five years and it was not common place because there has never been any classified that came into my space, except the IGI one.

Adv Bawa: Other than this one?

Mr Mataboge: Yes.

Adv Bawa: And yet, Mr Mataboge, you could not remember it at all?

Mr Mataboge: I could not because there were other reports, as I said yesterday or the other day that I get many, many reports. That is why I even cited the Sikhakhane Report, the Mpati Commission Report. There are many reports that come through to me, yes. That is why I could not remember it.

Adv Bawa: Right. When you testified under direct (cross-examination), I showed you a set of notes at 189.43, and you told me that that was Ms Mvuyana’s handwriting.

Mr Mataboge: Yes.

Adv Bawa: Ms Mvuyana’s testimony was that would have been taken at the meeting at which she attended with you, in the company of the Public Protector and that she was not high up enough on the totem pole to be having meetings alone with the Public Protector. Would that be correct that she would not be meeting alone with the Public Protector?

Mr Mataboge: That would not be necessarily correct. What if, when the Public Protector wants to discuss something with her? I am not in. That would not be 100% correct.

Adv Bawa: But her evidence was that she was not meeting alone with the Public Protector in respect of this matter. It could well be that in the greater scheme of things if the Public Protector called her directly, she would have to go. But her evidence was that in effect, when she met to get changes of the reports from the Public Protector as in this, well as in this minute, you were present. Can you comment on that?

Mr Mataboge: No, comment because I am not sure of that.

Adv Bawa: Right. And we have placed this note that she took to be two or three days prior to the report being issued. So I just want to take you up. We see in page 9, there is a reference to the State of Capture Report that has been in. And if you go further down, you see that you were asked whether the Public Protector ever gave you an instruction to remove something from the Rule 53 Record? You recall that?

Mr Mataboge: Yes, I recall that question.

Adv Bawa: Adv Mpofu asked you whether you ever given an instruction from the Public Protector to remove any item from the Rule 53 Record. Do you recall that?

Mr Mataboge: Yes, I do.

Adv Bawa: Here is an instruction from the Public Protector to remove the Gene Ravele Dossier, even in the narrative. Do you see that?

Mr Mataboge: Yeah, but the instruction is not to me.

Av Bawa: No, there is an instruction that goes out. Let us assume Ms Mvuyana says you were both… Let us take this differently. This is an instruction that is given at the meeting at which the evidence from Ms Mvuyana is to us that both she and you are in attendance at that meeting. You do not know if you were there or not? Am I correct?

Mr Mataboge: Yes, I will have to confirm to be correct. I would not want to commit to something that I am so unsure of because even this removal to me is strange. I am seeing it for the first time.

Adv Bawa: You do know that there is an issue in the judgments specifically relating to the Gene Ravele dossier that has come out. Do you recall that?

Mr Mataboge: Yes.

Adv Bawa: Do you remember what it was about?

Mr Mataboge: Was it not about the HR process that led to the appointment of some members of the Unit?

Adv Bawa: You see, without wanting to belabour the point, the court’s criticism was that in respect of where the dossier suited the Public Protector’s purposes, relating to recruitment, reliance was being placed on it. But when it related to evidence before the Nugent inquiry by Gene Ravele would disavow that an unlawful unit existed. That evidence – no regard was had to that evidence. That would have been in the Dossier. That also comes out in the judgment. Do you recall that?

Mr Mataboge: No, I do not recall it.

Adv Mpofu: Chair?

Chairperson: Adv Mpofu?

Adv Mpofu: Yes, I did not want to interrupt my learned friend. I think that is an unfair line of questioning. Firstly, from some cryptic notes, which I think, Ms Mvuyana described as shorthand. And, remove from what to what, unless if Adv Bawa knows what the cryptic note was referring to. Or who was instructing whom and so. But the most important point is that these are questions that should have been put to the author of the shorthand notes, who was here yesterday, or the other day. There was no issue about removing anything from the Rule 53, from what I recall.

Adv Bawa: No, there was, Adv Mpofu. I did raise the questions with Ms Mvuyana in respect of this. The witness, Mr Mataboge, said that there was never an instruction to remove it. The next question that I'm going to ask is, are you aware that there is no reference to the Gene Ravele Dossier in the Rule 53 Record? Mr Mataboge, did you hear the question?

Mr Mataboge: Yes, I did.

Adv Bawa: Are you aware that there is no reference to the Gene Ravele Dossier in the Rule 53 Record?

Mr Mataboge: Yes.

Adv Bawa: Right. And do you know that in the actual report, the SARS Report, there is no reference to the Gene Ravele Dossier? It is referred elsewhere but not in the source documents.

Mr Mataboge: I would not remember that exactly.

Adv Bawa: Okay. I understood that you accepted that one of the members put it to you that top secret security clearance did not entitle you to access to a classified document. Did you at any stage check the law at the time?

Adv Mpofu: Chairperson?

Mr Mataboge: What law, Adv Bawa?

Chairperson: Just hold on, Mr Mataboge. Adv Mpofu?

Adv Mpofu: Chairperson, that question is completely uncalled for. Firstly, I would be very wary to take the interpretation of a member, an unidentified Member, on a legal interpretation and whether that is correct or not. And now we all work on the premise.

Chairperson: Thank you. Adv Bawa?

Adv Bawa: He accepted it and I wanted to be sure that…

Adv Mpofu: Well they might be both wrong. Sorry, Chair.

Adv Bawa: No, can I…?

Chairperson: Continue.

Adv Bawa: So the clarification I am seeking from you, Mr Mataboge, you did not check the law yourself at the time?

Mr Mataboge: What law, Adv Bawa?

Adv Bawa: On whether the law regulates classified documents, essentially, it would be MISS (Minimum Information Security Standard)?

Mr Mataboge: Yes, I did check it.

Adv Bawa: Did you check it?

Mr Mataboge: Yes.

Adv Bawa: And did you come to the conclusion that under the MISS, you were entitled with your top security clearance to have access to any classified documents in the country?

Mr Mataboge: Yes, I thought so.

Adv Bawa: Are you aware that under clause 24 of MISS, there is something called the need to know principle?

Mr Mataboge: Yes.

Adv Bawa: And can you tell us what that means?

Mr Mataboge: I will have to check and find a way to phrase it. I will not do it off the cuff, now.

Adv Bawa: Let me help you. Under the need to know principle, it says “the furnishing of only that classified information or part thereof that will enable a person or persons to carry out his or her task” and that it is not necessarily linked to top-secret security clearance.

Mr Mataboge: Yes, I follow, Adv Bawa.

Adv Bawa: Did you check the legislation that pertains to this as well, Mr Mataboge? The Oversight Act and the Protection of Information Act.

Mr Mataboge: Yes, I do as a matter of fact.

Adv Bawa: Okay. I have only one thing I would like you to get back to us on. I think a Member, I am not sure if Adv Mpofu asked you that or if it was a Member, had said that ‘Did Mr Pillay say that he was a member of the SARS Unit.” Do you recall that?

Mr Mataboge: No, that was not asked to me, Adv Bawa. I do not recall it.

Chairperson: Yes, it was about Mr Gordhan and whether he was a part of the establishment.

Adv Mpofu: If it was me, it was definitely not this witness. In fact, funny enough, I intended to…

Chairperson: It was Hon Maotwe’s question about Mr Gordhan and the establishment of a… So that was a Member who asked that.

Adv Bawa: Okay. So the question was, you said that, let me just get it right, Mr Gordhan’s evidence to the Public Protector was that he had been involved in the establishment of precisely which unit was that?

Mr Mataboge: I asked the question to the Member to say he or she must clarify which unit. I did not use the word myself.

Adv Bawa: So the issue there is the alleged SARS Rogue Unit and then there are other units by other names, so I wanted to be sure as to whether what precisely you were testifying Mr Gordhan had confirmed in his evidence to the Public Protector. If you want an opportunity to respond to that after you go and look at the Notice, I am happy for the Chair to say, for the sake of us getting done, to do that in writing.

Mr Mataboge: No, Chair. I would not want to go that far, because the question was asked by, I think, Hon Maotwe, and I wanted her to clarify, because she referred to some other name. Then I said ‘what name?’, so why would I have to go and do a written response to such a simple short question?

Adv Mpofu: Chair?

Adv Bawa: Sorry? No, no. I think we are…

Mr Mataboge: Before I responded, Adv Bawa, I asked her that she must clarify the unit she is referring to.

Adv Mpofu: Chair, if I may assist? It looks like the question was about the establishment of the unit. The only problem is that Hon Maotwe then said ‘otherwise known as the Rogue Unit’ and the witness said he obviously did not, because he was saying it was lawful. Then Hon Maotwe then came with a neutral term, which was ‘did he agree to the establishment of the SARS Unit’. In other words, to remove the lawful or unlawfulness.

Adv Bawa: And I understood you to have answered yes, but I want you to be exact if you can recall precisely what it is that Minister Gordhan said he had been part of the establishment of.

Ms Maotwe: Chair? Chair?

Chairperson: Hon Maotwe, you have not raised your hand.

Ms Maotwe: I can assist.

Chairperson: No, no. Adv Mpofu has assisted us and I agree with him.

Ms Maotwe: I was the person who asked the question, Chair.

Chairperson: I have not noted you. It is done. I think it is corrected properly.

Ms Maotwe: But it is not done, because Adv Bawa is going back to it, Chair. That is why I am saying I am the one who asked the question. I can ask again.

Chairperson: I have not asked you to do that and I have not recognised you. Please hold back.

Ms Maotwe: I do not need you to ask me to do it. I am asking can I help. Can I assist? Adv Bawa is still not sure.

Chairperson: Please hold back, Hon Maotwe. I have not recognised you and I have not given you the platform.

Ms Maotwe: It was the SARS Unit, Chair. SARS Unit.

Chairperson: Over to you, Adv Bawa.

Ms Maotwe: Mr Mataboge, SARS Unit.

Chairperson: Over to you, Adv Bawa. I am not going to repeat that.

Adv Bawa: Chair, I think that Adv Mpofu has assisted us and the witness, and I just wanted the witness to be very clear about what he was saying yes to.

Ms Maotwe: I have also assisted you, man.

Chairperson: Okay, sorry. Hon Maotwe, I want you to withdraw what you have just said. Hon Maotwe, I am addressing you. I want you to withdraw what you have just said. What you have done now is unparliamentary. You know it is not done. Please unmute, Hon Maotwe. Hon Maotwe, I am addressing you. Please unmute and withdraw what you have just said. Hon Maotwe, I am doing it for the last time. Please withdraw what you have just said. I am going to ask ICT to assist me, and remove Hon Maotwe. Thank you, ICT. Proceed, Adv Bawa.

Adv Mpofu: Chair, can you please remove me as well? I need to go to the airport.

Adv Bawa: Last question. Mr Mataboge, are you there?

Mr Mataboge: I am here, Adv Bawa. I unmuted myself.

Adv Bawa: I think Adv Mpofu and myself are on the same page, that we must just be clear about what you said. Minister Gordhan had indicated to the Public Protector that he had been part of the establishment of... I know that he said it on affidavit during the 7(9) process and in the meeting. That is why I offered you the opportunity to go back and to check precisely what he said to the Public Protector’s Office.

Mr Mataboge: I can go and check, but I thought that I remember him saying the establishment of the unit was lawful, and that he would not if they were involved in any illegal activities, he was not aware of them. But I can go and check and provide an answer that will help.

Adv Bawa: Thank you, Mr Mataboge. And thank you very much for assisting us. We really appreciate it.

Mr Mataboge: Thank you, Adv Bawa.

Chairperson: Okay, thank you, Adv Bawa. Mr Mataboge?

Mr Mataboge: Chair?

Chairperson: We have now reached the end of our interaction with you. I would like you, for this moment, to switch on your camera.

Mr Mataboge: I hope that it is working fine, Chairperson.

Chairperson: It is not yet working. I can hear your voice but we do not see you yet. You have to be seen by us before you…

Mr Mataboge: I can see myself (on) this side, Chairperson.

Chairperson: Now, I can see you too. I was saying, Mr Mataboge, we have now reached the end of our interaction with you. Before I address you on behalf of the Committee, I want to give you an opportunity to make any comments, final remarks to the Committee.

Mr Mataboge: Before…

Chairperson: Just repeat that?

Mr Mataboge: I wanted to say after my remark will there still be any questions for me to answer?

Chairperson: After your remarks the only person who will speak is the Chairperson.

Mr Mataboge: Asking me questions, or just making remarks?

Chairperson: No. We have reached the end of questions with you. It is now your opportunity to have the final say.

Mr Mataboge: Chairperson, the final say is that I hope I do not put my foot in it, as it is normally said. As Adv Mpofu was saying, I have been through all of the former Public Protectors, up to Adv Mkhwebane. From my experience, the Public Protector of South Africa as it came to be, was not similar to the classical ombudsman that is known globally. As a result, thereof, in my view, it gave powers to the Public Protector that were not there in the Classical Ombudsman space. For me, in my view, that was the starting point of our problems. No matter what was well intended with those powers. That is the first comment I want to make. Secondly, the Nkandla Judgment also added more powers to the powers already there with the Public Protector, meaning that now it was like having a very sharp axe, with which whoever the incumbent would have to chop with. As a result, thereof, I want to use the principle that ‘power corrupts’, but it is also said that ‘absolute power corrupts more’. My view is that personally, there is just too much power centralised in the incumbent; I do not want to say, Adv Mkhwebane or Adv Madonsela or thereof. But in my view, as having worked for this long in this institution, there is just too much power centralised in one person. And in my view, the appointment of the Public Protector is a personality appointment. It is just good as the person that is at the head and as weak as the person at the head. If the person is being seen as a good person, it will reflect throughout on his or her interactions with the public or whoever that comes into his or her space. So in my little personal view, this power that I referred to is too centralised. I know that Parliament, Chairperson, is there to be an oversight and hold the Public Protector to account but when does that happen? It happens once in a while. So I was having a brain wave the other day to say that ‘but why does the Public Protector have an advisory board, or a council, that will meet often to look into the affairs of the institution and advise the Public Protector from time to time’. So that is why I was saying I do not want to rub anybody the wrong way. That would then call for an amendment of the legislation that gave all these powers to the Public Protector as well as bringing in this advisory board or council or commission into the space. I am saying this, with due respect, the management that is within the Public Protector does not assist him or her much in the affairs, and this is an example of what brought us here today. They do not have much really and maybe that is either they are partisan or they are afraid, they do not want to be seen to be judging the Public Protector. Maybe the incumbent or the former incumbent would not be amenable to what they are suggesting. But some of them are just partisan and they follow instructions. And in my view that does not bode well for the institution. So I think that is the bit I could close on, on my involvement and my engagement with the process today, Chairperson. Thank you.

Chairperson: Thank you very much for those comments and your final words to us as the Committee. We will definitely take those to heart and attempt, as part of the work that we do. As part of the Committee, I would like to thank you for availing yourself. Before, you came last week, and as well as yesterday and today, including coming on short notice. The Committee really appreciates that commitment and availability from you and your contributions. We hope that we will be able to utilise them in our deliberations. And hopefully they will be useful to the findings and recommendations of this Committee. And your final remarks, already, I was taking notes – giving us homework beyond the Inquiry, because it is about the Institution. I appreciate that because we are in that space. Thank you very much. With that, you are now officially excused. I am going to ask, before anyone has a question, you switch off and leave the platform, officially.

Mr Mataboge: Thank you so much, Chairperson. I am out of here.

Adv Mpofu: Chair?

Chairperson: Thank you very much colleagues. So we do not waste any time. Tea has been waiting for us. I am sure we can grab that as we go. I promised Adv Mpofu, who should be on his way, that there is something that he wanted to address the Chair and Committee about. I am sure he will be brief in doing that. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Because you know I am in a rush, I think that it is an indirect way of muting me.

Chairperson: You are not muted at all.

Adv Mpofu: No, Chair, I will not address… You remember yesterday there were issues I wanted to raise when we were addressing Adv Madonsela, which were like the non-Madonsela issues. So they are not as pressing as the reason why I have to go now. So the only issue I needed to raise, Chair, and we apologise for not having met your deadline of 13:00. We owed you a response on the proposal that was received by us, overnight, regarding the evidence of Adv Madonsela. We will still send you something in writing, but I just wanted, formally, to say on the record that we accept the proposal as it was made to us. Just so that the systems can start functioning. In other words, we will see you on Monday. Thank you, Chair.

Chairperson: Thank you, Adv Mpofu. That proposal, therefore, is now giving the baton over to me. That proposal, we are speaking in code here now, means that you have the day off tomorrow, but we are back on Monday and Tuesday, to conclude Adv Madonsela. On that note, let us adjourn our meeting, take tea, and see each other on Monday.

Adv Mpofu: Thank you, Chair. Amandla.

Chairperson: Yes, Hon Gondwe? Before I close.

Dr Gondwe: Thank you, Chair. Chair, I am confused now. What do you mean we are going to conclude, Adv Madonsela?

Chairperson: Come again?

Dr Gondwe: You said on Monday and Tuesday, what are we going to do?

Chairperson: I will assist you. You wanted to say something?

Adv Bawa: Sorry, Chair. But that was not related. Maybe you want to…

Chairperson: Oh, yeah. Thank you. Just a clarity to Members, and I am sure Thembinkosi will be sending that to you. As a Chair, on behalf of all of you, yesterday we wrote a letter clarifying a lot of the issues of yesterday. And as part of that letter, we then went back and said to them, we are still offering Monday and Tuesday, as we discussed yesterday. And that is a proposal that Adv Mpofu is saying that they will be taking that up on Monday, and they will lead Adv Madonsela. And then we conclude that. Thank you. Are you happy, Hon Gondwe? It is fine, you do not have to respond.

Dr Gondwe: Let me respond. I am still very confused, but I take the lead from you as a Chairperson. It is fine.

Adv Bawa: Chair?

Adv Mpofu: Chair?

Chairperson: I can assist you. No problem. Hon Members, we see you on Monday and there is going to be a correspondence coming your way. On that note, I want to avoid this any other business. But I will hear you out, Adv Bawa.

Adv Bawa: It is directly linked to that, Chair. We had an arrangement that the Public Protector’s statement would be due on Tuesday. Now we are having Prof Madonsela Monday and Tuesday.

Chairperson: No. Remember yesterday when I addressed this meeting, we said there were scenarios and I put all of those scenarios. They started from Saturday and Sunday, and that could not stand. And then they went to Monday and Tuesday. And the Monday/Tuesday scenario then said that scenario means we shift the date of the statement to the 9th. Okay? So that was addressed here yesterday. If there are difficulties, they can be attended to. That is a part of that proposal. I hope that assists, Adv Bawa?

Adv Mpofu: No, Chair?

Chairperson: I am confirming on his behalf. There is an official letter in that regard.

Adv Mpofu: Yes, it is in the letter. I think that there is even something about installments, but I think we can deal with it in the backroom.

Chairperson: Now that you have deposited this issue here, you can formalise it in a paragraph – that will help. Thank you. The meeting is adjourned. Thank you.

The meeting adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: