PP Inquiry day 60: Prof Thuli Madonsela (Day 1)

Meeting report

Chairperson: Okay, good morning colleagues. It's now exactly ten o’clock, which is the starting time. I'm still short of a few Members, so we’ll wait for a few minutes... Good morning, again, colleagues, on this day the 6 March 2023. Let me acknowledge and welcome Members here at M46 and on the virtual platform; acknowledge the Public Protector here at M46 and her legal team led by Adv Mpofu; the evidence leaders Adv Bawa and Mayosi; members of the media with us; our entire support staff in their various duties; and lastly but not least – those that brought us here, the members of the public in their various platforms, YouTube, 408. You're all welcome today. We are proceeding with our Enquiry, with the next witness today, which will be introduced very shortly by Ms Fatima Ebrahim. We have this witness the whole of today, up until midday tomorrow. And so, we’re going to do our business within that timeline. Thank you very much for your attention. Without any delay, I'm going to ask Ms Ebrahim to do the preliminaries, introduce the witness. And then we start our proceedings. Thank you. Over to you, Ms Ebrahim.

Ms Fatima Ebrahim (Parliamentary Legal Advisor): And thank you, Chairperson. Chair, the witness for today is Professor Madonsela, as a former Public Protector. Prof Madonsela can you hear us?

Prof Madonsela: Yes, advocate. I can hear you.

Ms Ebrahim: May I please ask that you switch on your camera, so that we can... Oh, I see you now. Thank you. I’m going to be administering your oath.

[Prof Madonsela was duly sworn in by Ms Ebrahim]

Chairperson: Thank you, Ms Ebrahim. And welcome back, Prof Thulisile Nomkhosi Madonsela, to the Enquiry. This now seems to be a real start than the first start we had. So we welcome you back. I am aware, before I invite Adv Mpofu, that you had requested to make a few remarks. And I now allow you to do that. Thank you.

Prof Madonsela: Thank you. Thank you, Chairperson, and Hon Members of the Committee, and colleagues. I appreciate the privilege to be here before you. Nonetheless, I come before you reluctantly, because you’ve asked me to respond to questions primarily on two cases that have been extensively dealt with by the courts. And therefore, my reluctance to appear before this Committee had nothing to do with lack of respect for this important pillar of our democracy. It was because of apprehension, that I'll be put in a situation where we are rehashing what the courts have decided about this South African Reserve Bank matter, also known as the CIEX matter, and also about the Vrede Dairy matter. I therefore apologise if there’s a sense that has been given that I was reluctant to appear. I secondly would like to just place on record that it is not true that the delay was primarily because of arguments about whether CIEX is spelt with an “S” as opposed to a “C”, which was a mistake that the Secretariat could correct me on without lawyers being involved; or that the matters that were the focal point were two instead of one. The crux of the confusion that I was placed in is the fact that the lawyers of Adv Busisiwe Mkhwebane sent me a litany of questions, that when I looked at the charge sheet, I couldn’t find any reason whatsoever why I should answer those questions. And I responded accordingly, asking relevance, and also indicating that to the extent that they need that information, I’m not a person who has the information, the information is with the Public Protector in the archives, and staff members. So that was the first concern. The lawyers wrote back, yes, they questioned whether CIEX was spelled with an “S” or a “C”, and the small matter of whether the cases were or two, but the crux of it was still about what are the questions that I'm supposed to answer? Now instead of answering questions about the previous questions, the new letter provided new questions. Again, my response was to ask what’s the relevance of these questions. Is this my impeachment process? Because if it is, then this is the wrong forum. I was Public Protector until the 14 October 2016. But if it is indeed that somebody is accusing me of anything that I did wrongly, then this is not the right forum. This is a forum about my successor Adv Busisiwe Mkhwebane. If Parliament needs to question me on what I did or didn’t do, we would have to have a separate investigation. We can't turn an investigation into parallel investigation. And in any event, I do not think that Parliament still has jurisdiction to question me over those matters. But should they be merit in questioning me, which I think there’s no merit in any event. The right forum might be, at this stage, the Public Protector, where I am reported to the Public Protector as a former Public Protector who did something wrong, or it could be the Human Rights Commission. But certainly, this is not the right forum. And in terms of the statement, I place on record. A statement that I've put before you, that says the basic things of who I am. I’m a professor of law, currently employed at Stellenbosch University. And I’m the director of the Centre for Social Justice. I have indicated that all of the facts that are contained here, are to my knowledge true and correct. I must indicate though, that I don’t have access to the investigative reports. And therefore, where there are questions about dates, the Public Protector kept an extensive register, that will indicate who I met, when I met them, what documents were received in that office and on what date, and when will those documents left the office. And on the two matters, I have just indicated that all I can confirm is that I was the lead investigator at the commencement of the CIEX investigation. Talk about an attempt at rectitude being turned to look like turpitude, that’s a classical case in the CIEX investigation. I conducted this investigation initially with a Trainee Investigator... who then left to be with the NPA. How did I end up doing an investigation? The Public Protector office never did investigations, they were done by staff. And I would come in at the level of matters that were called special attention matters. But again, as a supervisor, overall supervisor or supervisor general, as an investigator general, after these matters have gone through Chief Investigators, Executive Managers, and then coming to my desk. This investigation was rejected by the staff of the Public Protector when it came in. I can confirm the one time it was rejected, but it may have been more than once that it was rejected. I only came to investigate it, because when I attended the World Justice Forum, I met Adv Paul Hoffman, and we sat together on a bus. And he convinced me that there was adequate information that showed that this is an easy matter, and the bank concerned had admitted that it owes this money and that I didn’t need to investigate anything. I was also told that there were documents. But as Public Protector, of course, any document that you’re given you still have to authenticate, and you have to conduct your own investigation. So we did this investigation... which meant investigating it over and above my overall responsibilities as Public Protector, which accounts for the delays in this investigation. And eventually... and then I was left alone, and there was no proceeding with this investigation. I couldn’t bother staff, because we had a triaging system. There was an in-tech assessment committee that duly assessed and found this investigation not worthy to be investigated for several matters. That firstly, the events complained of occurred before the Public Protector was established. Even if the money was recoverable, it would have prescribed... Also, it was firstly and issue of jurisdiction, given the fact that the matters preceded the existence of the Public Protector. So why did I decide to investigate it regardless? I’ve already indicated that Adv Paul Hoffman convinced me that there’s already sort of relative agreement. And also, that if this money is recovered it could make a difference in terms of the challenges of funding mainly social and economic rights, such as education, health, RDP housing, et cetera. Then how did I overcome the fact that the Public Protector only came into being in 1995 and this matter happened before that? We overcame that battle by looking at only whether government did process the CIEX investigation report and dealt with it properly, and to the extent that it did not, whether that was improper. So our focus therefore was not on the original loan, lifeboat or whatever people may call it. Our focus was on what happened after 1998. And of course, it turned out that it was a very complex matter. A lot of people that appeared before me wanted us to investigate the original loan or gift or whatever each one of them called the original transaction. I must also indicate that before me there had been investigations by Justice, Dennis Davis, Keith, et cetera. And therefore, we had to distinguish what we were doing and why we would repeat this. And that’s why you’ll see in the investigation report that we looked at them. So regarding what happened afterwards, the courts had already found that the report that was issued was broader than the original focus. The courts have already found that the remedial action to change the Constitution was neither part of the investigation, nor is within in the remedy of the Public Protector. And there’s nothing really I can do about that, given the fact that that’s a decision of the court. From my side, I left no final report or approved a provisional report. But I’ve looked at the documents that purport to be documents from my desk, they are totally changed. Again...

Chairperson: Just a pause, Prof Madonsela. I have a hand from a Member here. Hon Maneli?

Mr B Maneli (ANC): Thank you, Hon Chair. Apologies for the disruption, if it is, but I just wanted to be sure in terms of the notes I take, as to where we are. Because I understood you, Chair, because I'm not addressing the witness now, but you. That there was to be opening remarks and we then get to the actual evidence and so on. I'm raising it, because having listened, some of the matters that are raised are matters of evidence that would’ve come before the Committee, which we may need to interact with. So if you can just indicate, which will also help us with time also, toward what point do those opening remarks be done.

Chairperson: Thank you, Hon Maneli. Before I respond, I’m told that there’s another hand. Oh okay, it’s lowered down. Thank you, Hon Maneli. I did observe that Prof Madonsela did make opening remarks, and also has begun to take us through the statement in a way. So it was in two minds whether... because in any case we still going to have to do that. And with Adv Mpofu also, just like me, still listening, I thought we should allow her to complete that. And then even though it was just to clarify your point, it was now explanations into the statement. I’m aware of that, that she’s taken us through beyond the opening remarks. I'm just saying I was using my discretion to allow her to continue to place everything, because at the end when Adv Mpofu starts, he might have started there on that issue. Maybe that helps his time also. So I have, unless you’re objecting, then I'll have to attend to that.

Mr Maneli: No, not objecting, Chair, with the clarity that we’re now on another level. As long as that's done. Thank you, you can proceed, Chair.

Chairperson: Thank you, I think, I hope that helps to clarify. We're just following. So because having received and read the statement, we can see where she’s speaking into the statement. So that was clarity sought, Prof Madonsela, from a Member. As I've indicated, there being no objection, I'm going to allow you to continue.

Prof Madonsela: Thank you, Hon Chair. If Hon Members would prefer me to stop here, I am happy to do so.

Ms O Maotwe (EFF): Chair? Chair, my hand is up.

Chairperson: Just pause, Adv Madonsela. Hon Maotwe?

Ms Maotwe: Yeah, no, thank you. I had my hand up earlier on. You were correct; I lowered it when the Hon Member almost covered me, which is the question you did not answer to say how long is this address going to take? Because you indicated that we’ve got the witness today and half of tomorrow. So we don’t have time, Chair, because Adv Mpofu must still come in, Adv Bawa must still come in, and as Members we must still come in. So how long are you giving her, the time allocated to her? Like you always do, Chair, with everybody, including the PP and Adv Bawa. So let's just understand how much time are you giving her so we can manage our time properly. Thank you, Chair.

Chairperson: Thank you, Hon Maotwe. That's fair. We almost halfway there, in the middle of it, I think. Prof Madonsela, I think the issue is now perhaps so that there's an indication from Members, how far you are and so on. But Members are not saying you must stop, but it’s just that clarity. So I'd want you to continue.

Prof Madonsela: Thank you, Chairperson. And thank you, Hon Members, I will try and read through the statement as is, so as not to delay then. “I left no final report or approved provisional report. I found that the principal debt of the final loan had been paid but interest not. I considered it legally impermissible to claim the money, considering that prescription had been raised as a legal defence much earlier. The tone, scope, findings and remedial action in both the issued provisional report and the final report differ materially from drafts the investigator had worked on and submitted to me, though I did not approve same and requested further changes”. (e) “The State Security Agency was never involved in the investigation, except for an interview with Mr Billy Masethla regarding why his institution got involved in the original contract with CIEX and how the process unfolded”. And that was clarified by Mr Masethla, when I met him on the 22 March 2013. “Strangely though, after leaving documents with a colleague from the South African mission in London, which had been given to me by CIEX’s Michael Oatley at an interview this colleague accompanied me to, the documents arrived from the SSA, opened and with a note from the SSA Director General. They were meant to be transported by DIRCO”. I met Michael Oatley on the 15 September 2015. And we agreed then that I would leave the documents he had given me and further documents he was going to give me with the colleague from the embassy. And the record of that meeting was also kept by that colleague and later sent with the box that came already opened from the State Security Agency. “Key changes that I have observed in the final CIEX report, include the remedial action regarding changing the powers of the Reserve Bank, which was not an issue as the issue concerned lending and debt collection practices”. Regarding the Vrede Dairy investigation, I confirm that, one “The investigation was conducted by the Public Protector regional office in Bloemfontein during my term”. Two “The investigator and her team struggled, with drafts being sent back from my desk and from their peers in the Think Tank, presumably because the investigator had been doing service failure of an early resolution nature while at National Office and that until my time, regional offices did not conduct investigations on complex matters particularly involving corruption and related financial impropriety allegations”. Three “They still failed to meet the Standards in the Standard Operating Protocol (SOP), I personally developed and issued as a Handbook even after training using the same tool. One of the key reasons was omission of names and failure to conduct a forensic investigation, which is compulsory in the SOP in matters where corrupt relationships are alleged or suspected”. “When Mr Samuels...” - Not “Samuels”, I'm sorry about the “s”, “took over as Regional Representative, I asked him to take the investigation over”. My concluding remarks touch on the staffing arrangements in the office... staffing arrangement is basically... were primarily the domain of the deputy, I found it so, I left it so - and the CEO. One, “I inherited a well-run institution that had been built from scratch and improved step by step by my predecessors”. “Through learning and growing together we kept improving the system guided by Seneca’s assertion that: ‘Will I not walk in the footsteps of my predecessors? I will indeed us the ancient road – bit if I find another route that is more direct and has fewer ups and downs, I will stake out that one’ (Williams Stevens: 2020,22)”. Three, “Two of the investigation guardrails I personally developed, followed by peer review by the team was The Handbook on Administrative Investigations and The Public Protector Mandate book". So the Handbook on Administrative Investigations was a standard operating protocol that investigators had to comply with. Before then we had guidelines. And the feeling was that guidelines are guidelines. And therefore, to have proper guardrails that people could be held account; on the basis of we needed a standard operating protocol. Before then we also developed a Public Protector handbook to make sure that we know which version of which law to apply, and which laws were applicable to us. “I further did what I could to collaborate with colleagues towards guard railing the Ombudsman institution globally, which included establishing the African Ombudsman Research Centre (AORC), a process commenced by my immediate predecessor Adv Laurence Mushwana and personally suggesting and developing the OR Tambo Declaration on Minimum Standards for an Effective Ombudsman Institution.

Adv Mpofu: Chairperson:

Prof Madonsela: Right, the last one...

Chairperson: Just a pause, Prof Madonsela. Adv Mpofu?

Adv Dali Mpofu, SC: Okay, yeah. Good morning, Chairperson and everyone. I’m at sea as to what is actually taking place now. I think the issues raised by the Members are quite valid. If the witness is just going to be reading her statement or putting it out, I think the process here has been that once a statement is tabled, everyone can read the statement. And that the evidence is led in the form of questions by someone. Otherwise, yeah, Chair, I think let’s get into that.

Chairperson: Yes, that’s what we attended to earlier. I’m just going to ask her to conclude. She’s about to conclude. Thank you, Adv Mpofu.

Prof Madonsela: Thank you, Chair.

Chairperson: Thank you.

Prof Madonsela: It’s just two lines now or two paragraphs. Five “I resisted being spied on by the State Security Agency, through sudden repeated requests to vet me as I was finalising the Waterkloof Landing incidence by the Gupta family. What I could not prevent is it landing with the CIEX Box and flash disc all of which had been opened on arrival". I've included this, because there’ve been questions around the CIEX investigation and the involvement of the State Security Agency. I just wanted to confirm here that it was never involved. The only person that was interviewed on the 22 March 2013 was Billy Masethla, simply because I needed to know what was the basis for the State Security Agency getting involved and how the process unfolded, and he clarified that. And lastly “We worked as a team building and executing systems that tried to balance rigor with promptitude, gave priority to what we referred to as Gogo Dlamini cases while ensuring that the investigation standard applied and duty of care was uniform”. It is my considered view that the above is all that is relevant in the light of the Section 194 investigation. I therefore do not believe I should be asked a lot of the questions that were in the two letters that were sent to me. Thank you.

Chairperson: Thank you, Prof Madonsela, for firstly those remarks and walking us into the statement as well. We are now going to invite Adv Mpofu to interact with the witness. And I'm going to ask Adv Mpofu – because a bit of your time would have been taken. So you returned time last week, so it seems like we’re going to have to return some time to you. It's very quick. But we want to start with you now, and perhaps we can stretch it to three and up to four o’clock this afternoon. Again, if you can save time and give us back, we are happy to receive that. But over to you, Adv Mpofu.

Cross-examination of Witness

Adv Mpofu: Thanks, Chair. I may expect you to return the favour, in the spirit of give and take. Thank you, Chairperson. Good morning, Adv Madonsela or Professor. Would you prefer to be called Professor or Advocate?

Prof Madonsela: Whatever is easy for you, Adv Mpofu. Good morning, Sir.

Adv Mpofu: Okay. Good morning. Good morning, ma’am. No, that’s fine. So please don’t mind if we shift from the Prof to the Advocate. Adv Mkhwebane rolls easier on the tongue, because that’s how we refer to you for a long time. But... so it would be no disrespect if we use that title. Okay, now, maybe, Chair, we should do it like this. I think in fairness, I’ll take much shorter time just to put context to how we’re going to approach this. Now Professor I don’t think that there’s going to be much quibbling between you and me, regarding the scope of what we’re going to cover. And I'll explain to you just now, why I don’t think so. So there's a lot of time and energy that has been spent, even this morning, about scoping and whether these questions are legitimate or relevant and so on. And we all accept here, that according to the directives, the Chairperson is the final arbiter of relevance. Do you understand that?

Prof Madonsela: I do understand, but you are paid for every word you utter. I am losing time for every word I utter, so as professionals we also have to be self-regulating about what we ask and what we discuss, without waiting for the Chairperson to tell us.

Adv Mpofu: No, you are wrong madam. I'm not paid for every word I utter, but I forgive you for that, because you wouldn’t know. But that’s fine. I was simply saying in terms of the directives of this particular Committee, the final arbiter for better or for worse is the Chairperson of relevance. I'm just informing you...

Chairperson: It must be for better.

Adv Mpofu: Probably for better, yeah, but not always. I'm just informing you. All I was asking is whether you understand that. I'm not debating the point with you, it’s in the directives.

Prof Madonsela: Yes, but if I think you’re asking me an irrelevant question I will say so, Sir.

Adv Mpofu: Okay, so let’s wait until that happens. For now, I'm just asking you if you understand that...

Prof Madonsela: I fully do, Sir. Thank you.

Adv Mpofu: You do? Thank you. That's better. Okay, now, my understanding therefore is that subject to issues of the validity or otherwise of your affidavits or whatever version there are, but the reason why I'm saying I don’t think there’s going to be much quibbling between you and me is that... my understanding is that your statement is really anchored by three paragraphs. Where you say that your statement – paragraph four. Sorry, that will be Bundle H, Madonsela folder, the final affidavit or the third affidavit, 31 .6. Yes, paragraph four. There you say that the statement sets out a summary of what you intend to share with the Committee, and that’s the summary of what you’ve just given now. So in other words, what you’ve put in the statement is just a summary, not the full version, correct?

Prof Madonsela: It was a summary, but Sir...

Adv Mpofu: Yes.

Prof Madonsela: I have now been given an opportunity to present what I could, and I have done so.

Adv Mpofu: Good, so that’s the first anchor paragraph, paragraph four. And then, you then refer to the Chairperson’s letter wherein you were invited to, among other things... or rather, you were told that you deal with issues which are relevant to the motion. I think on that we all agree, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Yes, now, but the most important paragraph, I think it’s paragraph ten, which is your last paragraph, which you just articulated now. Where you say that “It is in my considered view that the above is all that is relevant in the light of the Section 194 Enquiry Motion and the contents of the letter of the Chairperson of the Committee”. So everything above paragraph ten is what you call “all that is relevant”, in your view at least. Like I said we might differ on what’s relevant and not relevant. But at the very least, your version is that whatever is from paragraph one to nine is all that is relevant, correct?

Prof Madonsela: As a summary, yes, Sir.

Adv Mpofu: Yes, good. Now then, that’s perfect, because in my view then, unless there’s any difference between you and me, which I'll indicate to the Chair, towards the end, I am happy to proceed on the basis that we start with what you and I agree is all that is relevant. And if at the end, there’s still one or two issues on which we quibble, then obviously we’ll refer that to the Chair to determine. I think that’s a fair way of proceeding, also so that you and I will be on the same page. So we will for the first part then be governed by your statement, correct? You're happy with that?

Prof Madonsela: Very happy. Thank you, Sir.

Adv Mpofu: Perfect, perfect. Alright, now that we’ve got that clear, I said it was subject to determining whether there’s even a statement before this Committee or an affidavit or not. We are at this stage confused as to whether there's an affidavit. As I understand you were reading now from the third version of your statement, correct?

Prof Madonsela: As far as I know, there’s only one version of my statement. And again, Adv Mpofu, I did say that you’re paid for every word you utter. There's only one version of my statement and that version was sent on the 25th with a very tight deadline, because of the quibbling between the lawyers of Adv Mkhwebane and myself, about what exactly should I cover. Finally on Saturday I was given the deadline of the 24th and I requested that it be moved... I think it was the 22nd I requested that it be moved to the 25th, which was a Saturday. And against several oaths, including load shedding, I sent the statement, and only to discover that there were small typos on the statement and those typos were corrected, and a corrected statement was sent. Nothing in the statement changed, except maybe you could say the most substantial change in the statement was saying Adv Paul Hoffman is advocate and “SC”, everything else was just spelling corrections. But if you want to make an issue out of that, and we use taxpayers' money to quibble about that, be my guest, Sir.

Adv Mpofu: Okay, no I will be your guest, madam, especially if there’s a possibility of criminal conduct. I think the taxpayer will be very interested in that. But okay, let’s just take it step by step. Am I correct that in your letter of 20 February you invited the Public Protector’s team to indicate what you called “truly relevant matters” before you prepare your statement, that... where she still needed answers from you. That's what you invited the team to do, correct?

Prof Madonsela: Yes, I did.

Adv Mpofu: Right. And in response to that invitation, the Public Protector’s attorney then wrote a letter to you, following the 21 February. Firstly, indicating to you that you had made a mistake in indicating that there was only one issue, but that there were two. And the issue about the spelling is a non-issue, really. The substance was that you had indicated that you were only going to be testifying on the CIEX matter. And we indicated to you that even on the version of the Chairperson, which we didn’t agree with, you were supposed to do two matters.

Prof Madonsela: Sir, you harboured that issue on the 1st, and I guess you were paid for that time. I dealt with it earlier; I don’t know what else we must do with it.

Adv Mpofu: I think...

Prof Madonsela: But also... Can I...

Adv Mpofu: Can you just answer the question ma’am? I think it can assist us if you just answer the question.

Prof Madonsela: Can I just finish also?

Adv Mpofu: Yeah.

Prof Madonsela: My answer is, yes, there was quibbling about... No, no, no, you don’t cut me like that, Sir... There was quibbling about...

Adv Mpofu: I’m not cutting you ma’am.

Prof Madonsela: In my earlier statement... Please don’t talk over me. In my earlier statement, I had also indicated that you compacted the quibbling to those two matters, yet the real confusion was around whose Enquiry was this. And all of those vague statements where you say – oh, courts have made these remarks about your cases, what is your comment on that. So I wanted to know, number one, am I being investigated now? And two, which cases must I go all over the internet to find out what courts have said about my cases? And three, I specifically mentioned to you that as far as I know, no court has accused me of not understanding the Constitution or being dishonest. Those were in those letters, Sir. We can’t reduce it to how I spelt CIEX, and the matter of the two cases.

Adv Mpofu: Okay, ma’am. Can I ask you to please firstly listen to the question, and then just answer the question that is asked of you? And then we will get somewhere, because on your theory, I don’t only get paid by words I utter but even the words I listen to, so let’s not make them too many. I'm saying, I'm asking you a very simple question, that in response to your invitation for us to indicate which other areas other than CIEX, that we needed answers to. Number one, we indicated to you that the other issue is Vrede, because that’s common cause, that was from the Chair. That’s what we did at paragraph six of our response, correct?

Prof Madonsela: Yes.

Adv Mpofu: Thanks, now we’re getting somewhere. And then the other issue, where we corrected you, was to say that it is false to state as you stated in your statement, that the Public Protector’s team had “forbidden” the evidence leaders from assisting you with a statement. And we said please indicate to us who advised you of that nonexistence fact. That was the second issue that we raised in that response, correct?

Prof Madonsela: Yes.

Adv Mpofu: And as it happened, the Secretariat, I think, without our knowledge, had also sent you a letter indicating that that allegation was incorrect. Right?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Thank you.

Prof Madonsela: That was my mistake, which I admitted.

Adv Mpofu: Yes. And which you apologised for, which apology was accepted. So I'm...

Prof Madonsela: Which you dealt with last week, and you’re dealing with again today.

Adv Mpofu: Yeah, did you give evidence last week?

Prof Madonsela: Well, it's on the record.

Adv Mpofu: Alright. Okay, so at least we settled the fact that it was at your invitation that we indicated those areas, good. Now, let’s come back to this issue of the statements. You are aware that...

Prof Madonsela: Can I... I’m sorry, Sir, with your permission.

Adv Mpofu: Yes?

Prof Madonsela: You see, giving answers out of context...

Chairperson: With the Chair’s permission.

Prof Madonsela: With your permission, Chairperson. Adv Mpofu let’s not mislead the Committee by narrowing. If you’re going to quote that letter, put the whole letter on record. Because, yes, it was at my invitation, but in response to your previous letter where I was saying I am confused about all of these matters that you’ve raised, and this is what the Chair says I should do, and you are saying I must do something else. And you ended up actually providing new issues, instead of clarifying my question. So it's important that we give those that are going to judge this matter context, and not be selective about the evidence we put on record. You must bear in mind that I'm representing myself here. And therefore, when I feel that there’s a need to put all facts on the record, I will say so, with the permission of the Chairperson.

Adv Mpofu: Right, okay. Now, you are also aware that there was... shall we say confusion as to whether you were called as a witness for the... by the Committee or by the Public Protector. Were you aware of that?

Prof Madonsela: No, I wasn’t. My... I was very clear from the beginning that only the Public Protector wanted me as a witness. Because the Committee had discussed with me earlier, the possibility of me being a witness. And that was abundant, because my response as I said in my earlier statement was there’s nothing I can say that will change what the courts have said on the matters that you want me to be a witness on.

Adv Mpofu: Alright, okay, fine. Okay, maybe then the confusion was not on your part, but you... I suppose you’re saying you are still clear when you received a letter from the Chairperson, dated 9 February 2023, where it says “The Committee had offered assistance to all witnesses who have requested it, but such assistance is limited to the drafting of a statement under the auspices of the evidence leaders as settled and sworn by yourself. The Committee will certainly not be in the position to provide you with any assistance beyond this” and so on. And also, further down “Should you require the assistance of the evidence leaders to prepare a statement, kindly contact the Committee Secretary”. Even with that, you still regarded yourself as a witness just for the Public Protector, am I right?

Prof Madonsela: Absolutely, my understanding was that I’ve been called by the Public Protector, but I am a witness owned by no one. Read my letters, in all of the letters I say I do not understand myself to be owned by any particular group. Well, I’m paraphrasing myself here. I teach on investigations. I wrote the investigations manual of the Public Protector. I also teach on commissions of inquiry. So my understanding is that witnesses are really there to help find the truth, wherever it is. They’re not supposed to be a burden with any party, and this is what I said in my letter to Adv Mkhwebane’s letter – lawyers.

Adv Mpofu: Yes...

Prof Madonsela: I didn’t consider myself owned by anyone, Sir.

Adv Mpofu: No, that’s fine. That's fine. I've already said that you... the confusion must have been on our part only, but I'm just explaining to you where it came from. Well, for your information, in this particular Enquiry, when the evidence leaders call a person, they would prepare the statement for that person, even when they subpoena the person. In this case, Mr Kekana. Then they prepare a statement for that person and lead that person. And the same with us, when we have called a person, as we did with Ms Mvuyana, we prepare a statement with her and lead that person. But...

Prof Madonsela: Sir, may I say a word? No, sorry Sir. With the Chairperson’s permission, read the first letter from the attorneys, the one that I missed for a long time. It didn’t say it was compulsory that I should be assisted by the attorneys, it said that if I so wish to be assisted, I can be assisted.

Adv Mpofu: Yes.

Prof Madonsela: So what you’re saying, you're seemingly saying something different to what the letter said. Even the last letter said if I so wish, the assistance may be provided. And I chose not to be provided with that assistance. And I insisted that I want to do this independently.

Adv Mpofu: No, that’s also not entirely correct. You said that you preferred to do the statement with the evidence leaders, didn’t you?

Prof Madonsela: Well, for the first time, the first letter, it was with the evidence leaders because they had already offered, and we were going to do it on the 20th. But my last letter indicated that I prefer to do it independently. No, my last two letters, actually, said that.

Adv Mpofu: No, that’s fine. So in other words, the only... Yes, fine. So you'll do it with the evidence leaders or independently. So the only people you were not prepared to do a statement with was the Public Protector’s team?

Prof Madonsela: Certainly, because honestly, because of the kind of questions I had been asked. It didn't seem to me that I am a witness to assist with providing evidence that could assist your client to explain herself to Parliament. The questions that I was sent in the very first letter, were accusing me of certain things. And how are you going to have your statement prepared by somebody who already appears like they trying to throw you under the bus? Why would you do that?

Adv Mpofu: Alright, so the... just a minute. So these are the issues that we had wanted you to assist us with. It was... firstly, it was the two witnesses who had accused you of ill treatment, and we wanted to give you an opportunity either to explain that away or to put it in its context and so on. Do you think that’s putting you under the bus?

Prof Madonsela: Absolutely. This is not an Enquiry into my conduct. To write to me about two witnesses – at that stage I didn’t even know who they were. Your letter just simply said something about... Mr Seabi. I didn’t even know at that stage who that person is, because, Sir, I have not been a Public Protector for almost six years.

Adv Mpofu: Okay, alright. And...

Prof Madonsela: And to say to me I should randomly answer to those questions. In fact, can you read onto the record all of the questions that you asked me to answer, in the first letter. And all of the questions that you asked me to answer in the second one.

Adv Mpofu: Yes. No, I'm not going to read the first one, because that was overtaken by events. But the second one, which we responded to at your invitation. We started with the two issues that I’ve just mentioned. Your alleged role in the ill treatment of Mr Nyathela, by the Office of the Public Protector. The second one was your alleged role in the ill treatment of Mr Seabi, by the Office of the Public Protector. We've already covered that. The third one was relevant human resource issues and policies regarding security clearance issue. And you regarded that as well, as putting you under the bus?

Prof Madonsela: Certainly, Sir. You said, you were asking me to respond to allegations against me. This Enquiry...

Adv Mpofu: No...

Ms Maotwe: Chair?

Prof Madonsela: Is about allegations about Ms Mkhwebane, not against me.

Chairperson: Just hold on, Hon Maotwe.

Adv Mpofu: Please, yeah...

Chairperson: Please conclude, Adv Madonsela. Then I'll go to Hon Maotwe, and come back to Adv Mpofu.

Prof Madonsela: Yes. I... firstly, at that stage I didn’t know who Mr Seabi was...

Adv Mpofu: No, no... I’m talking about 7.3 now ma’am. Relevant human resource issues and policies. You've already answered the Seabi and Nyathela issue. I'm saying relevant human resource issues and policies regarding the security clearance issue. Did you regard that as putting you under the bus or not?

Prof Madonsela: I regarded that as irrelevant. Let's use the language that I used in my letters. I would say what is the allegation, against whom, and what’s the relevance to this Enquiry? Place on the record, Sir, exactly what I said to you.

Chairperson: Okay, thank you. Just a pause, Adv Mpofu. Hon Maotwe?

Ms Maotwe: Yeah, no. Thank you, Chair. I didn’t want to interrupt as well, my apologies, but I need to raise this with you, Chair. I tried to call Thembinkosi as well, he's not picking up, I guess it’s because he's operating... The president of the EFF, Hon Julius Malema, has been trying to log on since ten o’clock. He’s been parked somewhere on the platform. Can he be allowed to enter the meeting, please?

Chairperson: Thank you, Hon Maotwe. IT, please attend to that matter, if there’s a Member in the waiting room. Do we have a Member in the waiting room? Okay, they say they don’t... there’s nobody yet, but I'll ask them to watch that space, to attend to that. Thank you for that, Hon Maotwe. Over to you, Adv Mpofu.

Adv Mpofu: Thank you. Madam let’s go back to what I said. If you please listen to the question and then answer that question, it will get us very far. You... these are your words, you said that the things that were asked were putting you under the bus. So I'm simply using your words, I'm saying whether asking you to assist the Committee in relation to relevant human resource issues and policies, regarding the security clearance issue – if you regarded that as putting you under the bus, yes or no?

Prof Madonsela: No, I didn’t regard it as putting me under the bus and neither did I say that in my response to your lawyers, to which I still don’t have a response back.

Adv Mpofu: Alright.

Chairperson: Thank you, just a pause. Just a pause, Adv Mpofu. Hon Maotwe, I guess that’s an old hand. Please remove it, so that I can see when it is a new hand.

Ms Maotwe: Yeah, it must've been an old hand, Chair. But still, Hon Malema is still on the waiting list there. Can they please allow him in? He's got the correct link... he’s got the correct link.

Chairperson: No, thanks. They're looking for him. Maybe the issue will be the correct link, because in the waiting room he’s not there. So forward him the correct link that you used to enter as well, because that would be the correct one. But in the waiting room he’s not there yet, he’s on his way. But there’s a problem of a link, I'm sure. Adv Mpofu:

Adv Mpofu: Okay, good. So that one is not putting you under the bus. Then the next one was administrative obstacles, such as budgetary constraint. You regard that as... I’m sure you don’t regard that as putting you under the bus.

Prof Madonsela: The response I put there, was what’s the relevance?

Adv Mpofu: Yes, just answer the question ma’am. I'm sure you don’t regard the issue of administrative obstacles, such as budgetary constraints, as putting you under the bus?

Prof Madonsela: Mr... Adv Mpofu, I used the “under the bus” quip as an add-on. Are we going to latch on to a footnote? Surely you didn’t come to this event prepared to latch on to a footnote? Can we deal with what we came for?

Adv Mpofu: Can please answer the question Adv Madonsela? Or do you want me to ask it for the third time?

Prof Madonsela: Okay, I don't know. Because the questions were vague, I had no idea whether the intention was to put me under the bus or not.

Adv Mpofu: Oh, I see. So now you didn’t know whether it was the intention. I thought you said that was the intention. Okay, that’s fine. And then the next one was...

Prof Madonsela: No, on the record it will say differently.

Adv Mpofu: Alright. And then the next one, we said we’d ask you on governance issues and audit outcomes. Do you regard that as putting you under the bus?

Prof Madonsela: I regard it as irrelevant.

Adv Mpofu: But not putting you under the bus?

Prof Madonsela: I'm not sure, depending on what was intended with it.

Adv Mpofu: Not sure?

Prof Madonsela: Anything that was vague was potentially trying to - but not putting me under the bus, trying to.

Adv Mpofu: I see. And then the next one was the management of backlogs and other performance challenges. Under the bus?

Prof Madonsela: I don’t know.

Adv Mpofu: Don’t know? The next one was scathing remarks made by the courts in respect of some of the reports issued during your term. Under the bus?

Prof Madonsela: Irrelevance, Sir.

Adv Mpofu: Okay, but not under the bus? Then the next one was the impact of especially the EFF v the Speaker, the Nkandla judgment, on the frequency of court challenges and the spend on legal fees. As well as clarity on the question of which version of the Executive Ethics Code you applied in respect of the Nkandla investigation, and others. Under the bus?

Prof Madonsela: Irrelevant. I am going to... when we are done, I am going to ask for permission to read the letter to this Committee... So that we can stop playing games.

Adv Mpofu: Alright, no that’s fine. No, the letter is before the Committee. I'm just...

Prof Madonsela: Yes, but I would like to read it for everyone whose listening...

Adv Mpofu: No, ma’am...

Prof Madonsela: So that the auditory...

Adv Mpofu: You are here to answer questions please. I'm saying I've just read you the eight issues, which we gave to you at your invitation. And none of them seem to be putting you under the bus... or you don’t know whether they put you under the bus. That's fine. Let's leave it at that, and let’s go to your statements now. The affidavits or so called... Okay, let me put it this way. And this is the context I wanted to put to the Chair before. The reason, madam, that we offered to assist you with a statement as we do with all witnesses and as evidence leaders do with other witnesses, is because we are, as you know, trained to do this, we do it almost day in day out. And quite frankly, whether you were going to do it with the evidence leader or us wouldn’t make much difference, except that it would simply conform with the requirements of the law and the requirements of this Committee. So let me just make it clear.

Prof Madonsela: Do you want a response to that?

Adv Mpofu: No, no, okay. Let me... Yes, you’ll have your response, but let me contextualise what I'm saying. Your first issue was that the reason why you rejected our assistance was because there were things that put you under the bus, which turned out not to put you under the bus. I'm now telling you the reason for offering you assistance was not to put you under the bus, but simply for you to be assisted as somebody who might not be conversant with the practice of law, and how these affidavits should or should not be done. That's all. That's really why we assist all witnesses.

Prof Madonsela: Can I have a response to that, Sir?

Adv Mpofu: And I'll show you just now you actually needed the assistance. Yes, you may ma’am.

Prof Madonsela: Can I just firstly clarify the under the bus?

Adv Mpofu: Yeah.

Prof Madonsela: I said the questions that were putting me as an accused person were trying to put me under the bus. I have not suggested that everything that was in those questions was trying to put me under the bus. I said in my opening statement, here, with you listening, that my objection to those questions was they were vague, and their relevance was questionable. So let’s just put the record straight. And secondly, regarding the affidavit, the very first affidavit was looked into by a Commissioner of Oaths who is a qualified attorney, just like you. And in any event, being a qualified person who does all of those things every day, does not necessarily mean you’re the only authority who can do those things.

Adv Mpofu: I see. So that relates to the first statement, correct?

Prof Madonsela: The first statement we just had typos.

Adv Mpofu: No, but I thought you said there’s one statement. So how can you have a first statement?

Prof Madonsela: There’s only one statement, Adv Mpofu. Are we trying to play with words here, Sir? Again, every minute is wasting taxpayers' money.

Adv Mpofu: Alright.

Prof Madonsela: It is.

Adv Mpofu: Yes. No, that’s fine ma’am. We'll try to save the taxpayers’ money... The first important thing you’d accept, at least, that it’s important for this Committee to understand whether or not there’s an affidavit before it. So that if there is then we go through it, but if there isn't then the law must take its course?

Prof Madonsela: Well, that is important. But I would have thought for me, just from a commission of enquiry type of investigation, that’s a point in limine that should have been resolved last week. The Chairperson announced on the 2nd of March, exactly a week from now, that the affidavit that was going to be used today was the affidavit that I sent as corrected on the 28 March. Which was the very same affidavit that was sent on the 25 March, but corrected for typos and signed by a different Commissioner of Oaths, who has a business in Joburg, but lives here in Somerset West.

Adv Mpofu: Alright. I think you’re missing the point. Maybe let me assist you. There is no affidavit by you, but we’ll come to that just now. I’m saying that do you know that you are... Alright, let’s start with the first affidavit, as you call it. It's dated the 23rd, and then there’s a correction, it’s changed to the 25th. You remember that?

Prof Madonsela: Adv Mpofu, there is one affidavit, it was sent on the 25th. And you know yourself that things can be corrected and annotated on the side where there are corrections. And that affidavit was replaced by one that was sent on the 28th, you didn’t object to that affidavit. You had the whole week to say that’s not an affidavit. To come now and decide that you’re going to spend taxpayers’ money arguing about whether the document of the 28th is an affidavit or not is shocking, to say the least. But anyway, well, it’s the Public Protector that’s paying; it’s not me, so maybe I shouldn’t be dealing with that.

Adv Mpofu: Yeah, maybe not ma’am.

Prof Madonsela: But as a taxpayer it worries me.

Adv Mpofu: Yeah, no that’s fine. We’ll as a taxpayer it also worries me when it looks like there’s a crime that is committed here.

Mr Julius Malema (EFF): Chair? Chair?

Adv Mpofu: But do you know... Maybe let’s do it like this...

Mr Malema: Chair?

Adv Mpofu: Do you know that you may not correct an affidavit after it has been attested?

Mr Malema: Chair?

Chairperson: Sorry, what’s that?

Mr Malema: What do you mean what’s that? Don’t speak like…

Chairperson: No, you have not raised your hand Hon Malema.

Mr Malema: We’re in a meeting here, don’t say “what’s that”.

Chairperson: You have not raised your hand Hon Malema.

Mr Malema: I’m raising my hand.

Chairperson: You’ve not raised it.

Mr Malema: But I've raised my hand now. I'm raising it.

Chairperson: You don’t raise it like that. You know how to raise a hand.

Mr Malema: How do I raise it?

Chairperson: You know, how you got in here, use the same tools to raise a hand...

Mr Malema: Yeah, but I don’t know how to raise the hand here. I'm trying to get your attention. And you can’t start by saying “what’s that”, instead of recognising me properly. Don’t say...

Chairperson: Hon Malema...

Mr Malema: Don’t say “what’s that”. Why do you say, “What’s that”? Don’t talk to me like you’re talking to your garden boy...

Chairperson: I am speaking to you now. If you can’t raise a hand, you call a point of order, I give you attention. You don’t just get into a conversation.

Mr Malema: I'm trying to get your attention, Chair. I'm trying to get your attention, Chair.

Chairperson: I’m now recognising you.

Mr Malema: Please speak to the witness, not to interrupt Adv Mpofu. Because it doesn’t come across as being dignified and it’s irritating to say the least. Let her... give her a chance, because watching from here, when she just barges and interrupts the way she wants with the advocate, it doesn’t look like the required decorum of these proceedings, please.

Chairperson: Thank you, Hon Malema. And that’s not a point of order, but I hear what you’re raising, which we attended to earlier before you joined, about the interactions and each waiting for the other. But also speaking through the Chair. I attended to that, and I'm going to be watching that space. Thank you. Over to you, Adv Mpofu.

Adv Mpofu: When you say each waiting for the other, are you suggesting that I interrupted her?

Chairperson: No, I'm not.

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

Prof Madonsela: Yes, Sir?

Adv Mpofu: I was just asking you whether you know or you don’t know whether an affidavit cannot be changed after it has been attested.

Prof Madonsela: I stand to be corrected, Sir. My understanding that you can correct it, provided it’s a proper procedure. That’s why the affidavit of the 28th was attested to by a Commissioner of Oaths. It wasn’t just changes randomly on the street.

Adv Mpofu: Well, but the second one where you changed by putting hand changes, seems like it was just changed in the street. And it was changed after the Commissioner had signed it. Let me demonstrate that to you ma’am... Can you put up the first affidavit, that’s 31.6.2? Right, just go to paragraph five. Okay, you see at paragraph five that it says, “The contents and intended appearance are in response to the letter of the Chairperson of the Committee, Hon QR Dyantyi, MP, dated 1 February 2023”. You see that?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Alright. Now, that version was then signed by the Commissioner of Oaths on the 25 February, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Now, after that you then went to change that date to the 21st, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Do you know that that is illegal? You cannot do that. Once it has been signed by the Commissioner of Oaths, you can’t then change the date on your own, in the street, as you call it. Do you know that that’s...

Prof Madonsela: Can I explain that that’s not what I did? Is it okay if I explain, Sir?

Adv Mpofu: No, firstly just answer my question ma’am. Then you can explain. Do you know that...

Prof Madonsela: Yes, I do.

Adv Mpofu: Do you know that that’s illegal?

Prof Madonsela: Yes, I do.

Adv Mpofu: Then you can explain.

Prof Madonsela: Yes, I did not change the original affidavit by hand. I took a copy of it, and I made the changes. You must look at the email that was sent on the 1 March to everyone. The email explained properly that what we are doing is we’re not replacing the affidavit of the 25th with the handwritten. We replaced it with the electronic version. And that electronic version was signed by a Commissioner of Oaths. In my wisdom, which seemingly now seems to be turpitude instead of rectitude. I wanted to make it easier for the Committee, because it was now short notice, to see what’s the difference between the affidavit signed by the Commissioner of Oaths on the 28th and the affidavit signed by a Commissioner of Oaths on the 25th. So the handwritten version was just for ease of reference, and the email says so. I’m certain that the Secretariat can produce the email that was indicating.

Adv Mpofu: No, okay. Then maybe let me assist you. If you know that it’s illegal to change an affidavit by hand, after it has been attested to... Then can we go to the second affidavit? 31.6.1. Right. So, okay, at paragraph five, you did exactly what you say you know is illegal, which is to change the affidavit by hand after it has been attested to. And then you put your initials next to that paragraph, correct?

Prof Madonsela: I have explained that this was to just show the Committee where the changes are in the proper affidavit. I never proffered this as the new affidavit. I proffered the affidavit of the 28th as the new affidavit, which is the affidavit that has since been accepted by this Committee.

Adv Mpofu: Yeah, wrongly. That's what I'm getting to, but don’t worry we’ll get there, we’ll get there. I'm simply saying, here, just on what is on the screen now. Is it correct that you did what you say you know is illegal? Namely, to change the 1st to the 21st and then you put your initials next to that.

Prof Madonsela: Well, I didn’t change.... this was the copy of the affidavit, for the purpose of assisting the Committee.

Adv Mpofu: Yeah, alright. I'll take it you don’t want to answer the question. That's fine. And you did the same thing on page two. Where you again by hand changed the affidavit and put your initials next to it, illegally. Correct?

Prof Madonsela: I’ll admit that all of the changes that are now in this affidavit and in the one that is supposed to be the basis of the discussions today, were changes that I made, which are typographical in nature. If you want to make them illegal, Sir, so be it. But if I knew... This is where I’m saying points in limine should have been discussed, because you are now accusing me of criminality. Chairperson, I am now a criminally accused person. I asked for legal representation, I was not granted. And when you wrote to me, Chairperson, you said – you don’t need legal representation, because you’re not an accused person in this process; you are in this process to assist us in an investigation against Adv Mkhwebane. So we dealt with this issue one week ago, these matters were not raised. If Adv Mpofu wanted to raise these issues, he shouldn’t be ambushing me right now. He should have raised them last week. And I should have gone for legal representation. He was not prepared to proceed with my affidavit for short notice. But he thinks it’s okay to ambush me with issues of legality, right now, without having even just been sent a written notice of it. Forget about seven days' notice.

Adv Mpofu: Do you remember me last week saying that we will have to raise issues for this Committee regarding these statements which may be referred to the police?

Prof Madonsela: Well, I don’t remember you saying that, but if you did say so, I'm still saying it’s a point in limine that should have been discussed last week. I was...

Adv Mpofu: But nothing was... Oh, sorry, ma’am.

Prof Madonsela: You speaking over me.

Adv Mpofu: I’m sorry. Nothing was discussed last week.

Prof Madonsela: But you're speaking over me.

Chairperson: Just allow her to conclude, Adv Mpofu.

Adv Mpofu: Okay.

Chairperson: Please go ahead, Madonsela.

Prof Madonsela: Right, this meeting today was convened by agreement. On the record, the Chairperson... Chairperson, on the record, you said the statement that was going to be discussed is the statement of the 28th or the corrected version of the 28th. And this was after Adv Ebrahim had said that that’s the statement that I’m prepared to go with. If Adv Mpofu wanted to put me on trial for how the changes happened between the statements happened, he should have indicated last week Monday that he wants me criminally charged for that. In which case it changes the complexity of this event today.

Adv Mpofu: No, ma’am...

Prof Madonsela: I should have then had a lawyer to come and represent me, because I'm now being accused of criminality. He insisted last week that he needs me as a witness on those matters...

Chairperson: Okay...

Prof Madonsela: When he was saying why he needed me, he didn’t say he needs me to answer for this statement. I remember when you had ruled, Chairperson, that this is the end of the matter...

Chairperson: Thank you, Adv Madonsela. I think you have conversed and ventilated the issues quite firmly, thank you for that. Adv Mpofu, I just want to go to a break, so if there’s something you want to raise quickly before that?

Adv Mpofu: Yes, just to round off this statement.

Chairperson: Okay.

Adv Mpofu: Okay, ma’am. I’ve not accused you of criminality yet, I'm simply saying that the... at least I thought we were together. You agreed that to change a statement that has been attested to after the Commissioner of Oaths is illegal. We agreed on that and you were right. Now, I'm simply demonstrating that you did exactly that, which you and I have agreed is illegal. That's all really, and maybe just because there’s going to be a break, let me short circuit this... At paragraph 5, paragraph 6, paragraph 7.3 maybe you can just run those, for the witness to see... paragraph 8.3... And paragraph 9.6. So it’s one, two, three, four, five places – you did that which you have admitted is illegal, by changing the statement by hand and putting your signature next to it. At that point... that’s the only point I want to make, then we’ll move to the third statement.

Prof Madonsela: May I...

Adv Mpofu: Are you following?

Prof Madonsela: May I just respond to that, Adv Mpofu? Again... I’ve canvassed the issue of what you’re doing, even by your standards may be quite low. If you intended to accuse me of illegality or criminality, you had the time last week. To say today will not be about the contents, it will not be about merits, it will be about accusing me of criminality or illegality. You didn’t do that. And I disagree with you that I deny that I did anything illegal. All I admit to is I indicated where the changes in the electronic statement are. Last week... just my last word on this, last week when you had an opportunity to indicate why you want me today, on this matter, the only thing that you raised as an issue about this statement was the fact that the stamp of the Commissioner of Oaths, of the statement of the 28th was in Joburg, whereas we claimed that this happened in Stellenbosch.

Adv Mpofu: Okay, ma’am...

Prof Madonsela: The evidence leader read the law to indicate that it’s okay to have a business stamp for a different place, but if it can be confirmed that the statement has been done where it claims to have been done. So that was all that you raised. This incremental approach is quite shocking.

Adv Mpofu: Okay, ma’am. Alright. I'm sorry to shock you. But all I'm saying is we have to establish whether there is indeed an affidavit before this court. If you were... all you were doing was to indicate, for example...

Chairperson: Not the court...

Adv Mpofu: The Committee, yeah.

Chairperson: Yes.

Adv Mpofu: If you were to indicate... if you merely wanted to indicate that the 1st should be the 21st, then why did you put your initials next to that? Because...

Prof Madonsela: Because I wanted the Committee to see where the changes were.

Adv Mpofu: For the Committee?

Prof Madonsela: Yes, this statement was being sent to the evidence leaders. And it was literally around 10am when the event was starting, and it was important for whoever I’m sending the electronic statement... You remember you raised the hullabaloo at that stage about the fact that you’ve been sent a nine-page statement. It turned out that it was eight-pages and one of the pages was repeated. So the statements were sent simultaneously to make sure that you could see from the handwritten version, that this is where the changes are in the signed statement. It was sent as one email. It wasn’t sent as two separate emails.

Adv Mpofu: That’s fine. Well I'm going to demonstrate, not now, the reason I'm asking you these questions ma’am is that you are here. So it's important for you to answer for yourself. Otherwise, if I raise them in argument, when you’re not here, that would be unfair. Let’s just round off that issue by saying that, I will demonstrate that what you’ve just said is completely untruthful. If you are merely indicating the changes, then you wouldn’t have signed against them. And some of them have even the Commissioner of Oaths has signed against those changes, which by the way is the correct thing to do, but where it’s only you who has signed them that is completely illegal. I think let’s leave it there. Either you know that, or you don’t. That's... I can’t help it. But we’ll then move to the next...

Prof Madonsela: Can I... Can I respond to that? I deny what you're saying and I think it's really low.

Chairperson: Thank you, Adv Madonsela. Hon Sukers, we are almost to a break, but let me hear you out.

Ms M Sukers (ACDP): Yes, Chair. I would like for Adv Mpofu to please tell the Committee what is the relevance of this line of questioning. Adv Thuli Madonsela came here to answer or to speak to evidence relating to two cases. We've now spent almost half a day on this – not half a day, but certainly a significant amount of hours. What is the relevance to that? Secondly, Adv Madonsela is not here for oversight, she is not. And none of what has now been discussed or been questioned has to do with the aim of this Enquiry.

Chairperson: Thank you, Hon Sukers. Hon Malema?

Mr Malema: Adv Mpofu is well within his right, and he is correct to ask the questions that he is asking. Because we can’t have defective papers before us or to a particular extent even be told lies, and then we say it is not what Adv Madonsela is here for. Adv Madonsela’s credibility and whatever she has put in the affidavit or the letter, because we are still not even sure if these are still going to be referred to as affidavits. It has to be questioned, so that at the point of deliberations we don’t get shocked. And that Adv Mpofu has made that point – that I'm raising these points, because during the deliberations I don’t want to be told that I was unfair to you. We should all be worried, that a Committee like ours, even when people are not here as accused, they can come and lie here. Then it’s a waste of time. No one must come and lie here. And if there is anything that suggest there is a lie, it must be exposed. If it’s a correction, why does it have signatures of two people? Why do you need a signature of Commissioner of Oaths - to show that no I was just making a correction of a typo, because that is not the document you’re going to use, the document that you’re going to use is the one that I've given you with those typos, this one I'm just correcting for ease of reference. But you use the Commissioner of Oaths to even attach a signature. To me it’s clear you were making amendments to the original document, and as they say it’s illegal. But that point will come. And it can only come if it has been exposed through this line of questioning.

Prof Madonsela: Chair?

Chairperson: Thank you... I will recognise you, Adv Madonsela. Thank you, Hon Malema, because I'm going to try and make a summary and make a ruling on this issue. Adv Mpofu?

Adv Mpofu: Yes, thank you, Chair. Chair, in fairness to the witness. I think the point has been made now repeatedly that she needs to be given an opportunity to respond to this. But the principal point I was making, Chair, is why we offered to assist her, so that these illegalities would not have occurred, because we know that she’s not a practicing lawyer. And the only point I want to make before we take the break Adv Madonsela is this, even on your version that these were just corrections, that is completely false because on five, one, two, three... on three occasions both you and the Commissioner of Oaths have signed on these so-called changes after the commissioning, which would amount to an illegality on both your parts. And then on one, two, three, four, five occasions, you only signed on your own. Just that inconsistency, either you were going to sign on your own or sign with a Commissioner of Oaths, but both of those things...

Prof Madonsela: May I assist...

Adv Mpofu: Sorry, both of those things cannot be correct. The correct one, as you should know, is the one where you both signed. So where you’ve just signed on your own is incorrect, is illegal on your part. Where the Commissioner of Oaths has signed on his part after you have already commissioned, then that illegality on his part or her part. That's really the gist of this. And it’s not a small matter. This is Parliament. It is the Parliament that passed the law that defines what an affidavit is. So if this Parliament was just playing games when it passed that law then they will tell us, but I'm sure they were passing that law for a reason, so that people don’t come and misrepresent the truth. And so that is the importance of this exercise. And finally... sorry, Chair. Finally, the issue is really as to whether there is or there isn't an affidavit before this Committee, but we can run that off. I hope you understand those, do you?

Prof Madonsela: I disagree. Can I explain and assist you this time? Even though I’m not being paid to assist you.

Adv Mpofu: No, I don’t need your assistance ma’am... No, I don’t need your assistance or your snide remarks ma’am. Please, you’re just here to answer questions, not to be sarcastic.

Prof Madonsela: I do want to assist you... I do want to assist you.

Adv Mpofu: If the Chair won’t stop you... Okay, I know the Chair is not stopping you from all that. You've been insulting me and being sarcastic...

Prof Madonsela: Please don’t speak over me...

Chairperson: No, no, just pause, Adv Madonsela. Can you conclude Adv Mpofu?

Adv Mpofu: Okay, no, Ms, Adv Madonsela, I'm saying to you and I'm saying it as kindly as I can master, despite all your insights to me this morning, I'm saying that the... on the... Now you’re speaking over me. Alright let me start again.

Prof Madonsela: Sorry, Sir.

Adv Mpofu: It’s fine, apology accepted. I'm saying ma’am that we are making three points here and either you understand them or you don’t. One is that your version that these were merely indicative changes is belied by the fact that you signed against it. Secondly, the fact that on some parts only you signed for it, which is wrong. And then other parts you and the Commissioner of Oaths signed against it, shows illegality on both your parts. And thirdly, I'm saying it’s important for this Committee to know, because our directives say so, that witnesses should make an affidavit. Witnesses are free not to make an affidavit, but once they purport to make an affidavit, it has to be an affidavit. Do you understand that or not? I'm not saying you agree with it, but do you understand that?

Prof Madonsela: I don’t understand your logic, Sir.

Adv Mpofu: Okay. Well, that’s fine. Then maybe you can go and have... let’s take a tea break. Maybe...

Prof Madonsela: No, before then...

Chairperson: No... Sorry, thank you, Adv Mpofu...

Adv Mpofu: No, sorry, Sir, I'm not taking over your meeting... I’m just saying on this statement.

Chairperson: Thank you... Thank you, Adv Mpofu. Over to you, Adv Madonsela.

Prof Madonsela: Thank you, Chair. What I wanted to assist Adv Mpofu with are two points. There's one document on the table in three articulations. It's a four-page affidavit. It was signed before an attorney who is the director of the law firm where he is on the 25th. On each page of that affidavit, both he and I initialled it, and it was sent to the Committee. So now Adv Mpofu has not only insulted me and criminalised me, he has now criminalised a fellow member of the bar, by simply failing to read documents that he’s paid to read. That affidavit of the 25th is in the document pack, I hope. And it any event, it was sent to the attorneys that are instructing Adv Mpofu. The signature of the attorney who assisted me is at the end on page four. And he has initialised all of the pages. So to fabricate lies here and suggest that those signatures only appeared during the corrections is shocking, to say the least. And again, this could have been corrected if we had had a pre-trial kind of hearing to clarify these things, instead of trying here to play games.

Adv Mpofu: Chair?

Prof Madonsela: I've indicated that there are three articulations of one document.

Adv Mpofu: Okay, Chair?

Prof Madonsela: I have not proffered to this Committee the version that Adv Mpofu is latching onto, as the document on the record. The document that I've offered to the Committee was the version that is electronic, where the changes were made. And therefore, a new Commissioner of Oaths signed that document, precisely because we realised that if you make changes on the previous document, it would be a problem, legally speaking. Hence, a new Commissioner of Oaths signed the document that I came to this Committee today understanding were the basis of our discussion. But two hours later we’re discussing things that should be discussed at a pre-trail... and certainly between learned friends, being the evidence leaders and the lawyers, before we come to these events.

Chairperson: Thank you, Adv Madonsela. I want to make a ruling before we go for tea, but I see the hand of Adv Mayosi. Nobody wants tea today, but I'll have to make that ruling before tea. We've been at it for some time now. Adv Mayosi?

Adv Ncumisa Mayosi (Evidence Leader): No, Chair. I'll retract, you can proceed.

Chairperson: Okay...

Adv Mpofu: Chair, please bear with me. I know you want to go to lunch... I meant, to make a break.

Chairperson: I want to make a ruling actually.

Adv Mpofu: But can I just make a... respond, just by one point. Adv Madonsela, you...

Prof Madonsela: Yes, Sir?

Adv Mpofu: Yes, ma’am. Okay. What you have just said is completely untrue. And I'll demonstrate it to you, ma’am. In your... you’ve said that where the Public Protector... sorry...

Prof Madonsela: It can't be untrue.

Adv Mpofu: Alright, you said that... You just said now in your last answer, that in your versions that you rendered to the Committee, all the pages were signed by you and the Commissioner of Oaths, correct?

Prof Madonsela: May I answer, Sir?

Adv Mpofu: Yes, you may. That's why I asked.

Prof Madonsela: In the first version of this affidavit... The first version of this affidavit being the one sent on the 25th was signed by the Commissioner of Oaths, he never ever signed anything else after that.

Adv Mpofu: No, that’s not true. Let’s go to that...

Chairperson: Sorry, sorry, sorry, Adv Mpofu. No...

Adv Mpofu: Chair, I just wanted to start with something else when I come back.

Chairperson: No, thank you.

Adv Mpofu: Okay, let me just summarise then.

Chairperson: I want you to pause there, now.

Adv Mpofu: Can I summarise? The witness can either confirm or not.

Chairperson: Okay.

Adv Mpofu: Okay. This is the truth madam. On the first version you are right, you and the Commissioner signed. On page two at 7.4, you and the Commissioner signed. Page three, 8.3, you and the Commissioner signed. But on page four or five, 9.6, the Commissioner did not sign. In other words, you are the only person who signed that, that’s where it talks about Gogo Dlamini and all that. Do you admit that, or do you want to dispute it, so that we can put it up after the break?

Prof Madonsela: I dispute it. The document only has four pages.

Adv Mpofu: Okay...

Prof Madonsela: There's no document with five pages.

Adv Mpofu: Okay, that’s fine. So at 9.6, your version is that both you and the Commissioner signed?

Prof Madonsela: The Commissioner was just signing each page – the Commissioner of Oaths. He wasn’t signing changes, except the one where he had made a mistake on the date.

Adv Mpofu: No, that’s also not true. He signed four times, but I'm saying...

Prof Madonsela: He signed four times, of course, because he initialised each page.

Adv Mpofu: Yes, okay ma’am... Look, let me just tell you, yeah, you’ve just made it worse. I think that the sum total, which I'll argue at the end, is that none of your versions hold water or consistently appear through the statement. And none of these statements therefore qualify to be called an affidavit. And to the extent that either you or the Commissioner of Oaths breached the Act, then those matters... Are you a member of the Legal Practice Council?

Prof Madonsela: Adv Mpofu...

Adv Mpofu: Yes, ma’am?

Prof Madonsela: That’s irrelevant...

Chairperson: I’m going to stop you now. I thought you said you’re summarising.

Prof Madonsela: Firstly, number one...

Chairperson: Adv Madonsela, Adv Madonsela, please pause. I want you to pause as well. We are now going to take a tea for 15 minutes, back after 15 minutes and I will make a ruling. Thank you, so that we'll proceed.

Adv Mpofu: But, Chair, I’m still talking... No, Chair, I want to move to something else when we come back, but if you want us to come back to this.

Chairperson: We’ll come back after 15 minutes, after a tea break.

Adv Mpofu: Alright, thank you, Chair.

[Tea break]

Chairperson: Welcome back, colleagues, from the tea break. I had to promise that we are going to, from the Chair, make a ruling so that we proceed with our work. But before that, so that I'm fair, Adv Mpofu did ask for the last opportunity... but before I go to you, I'm going to recognise Adv Mayosi.

Adv Mayosi: Thank you, Chair. Thank you. Chair, I don’t want to interrupt Adv Mpofu. I don’t know how far he is with concluding on this issue. But I thought that it might assist the Committee if he could perhaps indicate whether there is a problem with Adv Madonsela’s statement dated the 28 February, because that is the statement that is before the Committee.

Adv Mpofu: Yes, thank you, Chair. Yes, that’s a fair question. Yes, well, there’s a problem with all three versions, so that would automatically include that one...but that’s not the issue. I mean, you can’t tell us that that is the only issue before the Committee. The Committee has been presented with illegally signed statements, against the... At least that’s one thing the witness and I agree on. But, Chair, for the sake of progress, I'm actually going to move to that statement.

Chairperson: Yeah, I’m going to allow you to move through that statement, but I think there’s a last issue.

Adv Mayosi: Thank you, Chair. Just as a follow-up Adv Mpofu. Could you just identity what the issue is then with the statement of the 28th, one. And the evidence of the witness when you were asking her questions, was that she didn’t present the changed version as a statement before this Committee. So there's a statement of the 25th which as I take it from her evidence is replaced by the statement of the 28 February, before this Committee.

Adv Mpofu: Okay, well, Chair, if Adv Mayosi wants to take the stand, I can indicate to her. But I thought it’s better if I indicate it through the witness who’s the author of the statements. But maybe if she had anything to do with this... Okay, the first... Okay, maybe let me assist her for the sake of progress, Chair. On the first statement, the last question I asked, I indicated what the problem is. I don’t know if you were following Ms Mayosi. Which is that on the last page at 9.6, only the witness signed and not the Commissioner. Are we together on that one? Okay, good. So even if you wish away the second statement, which... where she makes handwritten changes, and sometimes she signs alone, and sometimes signs with the Commissioner of Oaths, that alone is a problem, because there can only be one way of doing it. Not both of those things can be correct. But I say for the sake of progress, Chair, if I can move to the statement of the 28th?

Chairperson: Yes, Adv Mpofu, because my ruling was going to go to that point.

Adv Mpofu: Okay.

Chairperson: So are you now moving into that statement?

Adv Mpofu: I am, Chair. Yes.

Chairperson: Okay, let me allow you.

Adv Mpofu: Thank you, Chair. Ma'am? Adv Madonsela, Professor? Is the witness still with us, Chair?

Chairperson: Yes, she’s with us.

Prof Madonsela: Right, yes.

Adv Mpofu: Oh, good. Yes, now, I want to show you that even the statement that you direct us to, which is the affidavit of 28 February 2023, because I see your version and that of Adv Mayosi’s, that we must forget about any illegality that might have taken place in respect of the first two statements. And because it’s the statement of the 28th that is before this Committee, right? Professor?

Prof Madonsela: There was no illegality. Firstly, you made a mistake, Sir, by saying that the Commissioner of Oaths signed the corrections, which means you did not look at the original affidavit. Because you would have seen that anything that is signed by the Commissioner of Oaths is symmetrical between the statement of the 25th and the hand corrected statement. So it would be nice if you would withdraw that accusation of a fellow member of the legal profession, by simply failing to look at the two statements together.

Adv Mpofu: Okay, now you’re bringing us back. Sorry, Chair, I was trying to avoid this. Can you then go to the statement, bundle H, item 31.6, and I'll just deal with the front page, so as to save time. Just the front page, move up, from paragraph four, move up, okay. Chair... Are you able to remove those pictures of me and the professor? Or minimise? Because we want to see the margins where the signatures are... Well, whoever, IT?

Chairperson: Just hide the pictures for now or minimise...

Adv Mpofu: Take away the picture... yeah.

Chairperson: Okay, you can see them now.

Adv Mpofu: Thank you, yes. You see there that the signature is just your signature? Sorry, no I think that’s the wrong statement anyway. That's the one of the 28th, I want the one of the 25th. It's 486, page 486. 486, yeah, go down, go down... I mean up, whatever. Further down, yeah. That's it. Can you see that picture Professor?

Prof Madonsela: Yes.

Adv Mpofu: Right, at the bottom both you and the Commissioner signed, correct?

Prof Madonsela: Yes, as you will see in the original statement it’s exactly symmetrical.

Adv Mpofu: No, just answer the question. At the bottom both you and the... of those three...

Prof Madonsela: Yes, as in the original statement it is symmetrical.

Adv Mpofu: No, ma’am. Please just answer the question. At the bottom. I want all three to show at the same time. There's one, two, three. The bottom one is signed by you and the Commissioner, correct?

Prof Madonsela: Yes, Sir. As exactly as is the same in the statement of the 25th.

Adv Mpofu: And then that...

Prof Madonsela: Display the 25th one, you’ll see the symmetry.

Adv Mpofu: That is the statement of the 25th ma’am. I’m saying at the bottom... Just answer the question; don’t worry about anything else. If I want something else, I'll ask you a question. At the bottom of those three signatures, it’s you and the Commissioner, yes/no?

Prof Madonsela: Yes, it is.

Adv Mpofu: Yes, and at the top two signatures, it’s just you. Yes/no?

Prof Madonsela: This is where I was all by myself indicating the corrections. Yes, it is me, because the Commissioner of Oaths was not there. He signed all of the statements on the same day.

Adv Mpofu: Good, thank you. So you signed there in the absence of the Commissioner of Oaths, correct? That's what you saying?

Prof Madonsela: Yes, because there that statement is not what is presented to this Committee. And I think Adv Mayosi just indicated to you that the statement presented to this Committee is the electronic version, which is signed by a Commissioner of Oaths, Sir.

Adv Mpofu: Okay, then at least it’s clear that on that page that we see there’s inconsistency. On the one signature both of you signed, and on the other two only you signed. That's fine, let’s go quickly to the statement you seem to be so keen to go to of the 28th. Can you put that up? That’s item 31.6, go towards paragraph five. Yes, only you signed there, correct?

Prof Madonsela: Yes, it is me only.

Adv Mpofu: Yes, and so what you said before tea is untrue, that you and the Commissioner signed on the final statement, correct?

Prof Madonsela: No, Mr Mpofu. Are you trying to deliberately misunderstand me? Can I correct you if you’re trying to misunderstand what I said?

Adv Mpofu: Yes, ma’am. The record was there... Yes, yes.

Prof Madonsela: The statement of the 25th, which your team and the evidence leaders have has my signature and the signature of the Commissioner of Oaths.

Adv Mpofu: At certain parts. At certain parts, we've established that that’s...

Prof Madonsela: No, on every page. That statement... don’t play between the two statements. Play with the statement of the 25th separately, which remember your team received it and the Committee received it through the evidence leaders, separately. It was a four-page document all by itself. It is signed by the two of us on every page.

Adv Mpofu: That’s a lie.

Prof Madonsela: That’s why I'm saying you should've read the two documents and not confuse them.

Adv Mpofu: Okay, let’s go to the statement of the 28th ma’am. Let's not confuse anything.

Prof Madonsela: Yes.

Adv Mpofu: The one of the 28th is the one that you own. Do you agree that on what everyone can see now on the screen, only you signed?

Prof Madonsela: Yes, Sir. On the statement of the 28th all pages were signed by myself.

Adv Mpofu: Yes, and there’s no signature of the Commissioner of Oaths on that page, either for the change or for the... for anything. There's just no signature of the Commissioner of Oaths, do you accept that?

Prof Madonsela: Yes, because it was now a new Commissioner of Oaths attesting to the entirety of the statement – and saying that as far as he’s concerned, I have sworn before him that this statement in its entirety is a four-page statement... is the truth and nothing but the truth.

Adv Mpofu: Okay, have you heard of the rule... Sorry, I'm sorry ma’am. I'm sorry to speak over you. Do you know or are you familiar with the rule that the Commissioner of Oaths must sign every page?

Prof Madonsela: No, I am not familiar with that rule. If I were familiar... If you had asked me last week on Friday, I would... he is here in Somerset West, I would have taken it to him to make sure that he signs all pages.

Adv Mpofu: No...

Chairperson: Just a pause, for the hand. Adv Mayosi?

Adv Mayosi: Thank you, Chair. If Adv Mpofu could indicate which law makes it a requirement for the Commissioner of Oaths to signal – to initial every page, please?

Adv Mpofu: Alright, it’s the... I’ll give you the name of the Act. The reason... Let me show you how that... You accept that the Commissioners of Oaths are ruled by the same rules, madam?

Prof Madonsela: I accept it, Sir. I have just said that you’d rather waste three hours, when you could have raised this thing last week. There was an issue about the statement, is it the right statement, is it the wrong statement. And the Chair ruled, with me having said there is nothing wrong with the statement. He ruled that this will be the statement. Had you said then you have a new objection to the one you had, because on that day the only objection you raised, Sir, was that the Commissioner of Oaths signed with the stamp in Joburg, whereas he was here in Stellenbosch. Had you raised that, Sir, we would have not wasted taxpayers’ money in four hours. I would have called him to come to my house or gone to his house, to fix that and have a new statement for you.

Adv Mpofu: Okay, no it’s not... No, ma’am, it’s not fixable. You see? That's the whole point. That's the whole point of swearing to God and saying that I swear that the contents of this declaration are true, so help me God. Once that is done you cannot alter that which you have sworn to God is the statement. Maybe you don't understand that part, but...

Prof Madonsela: Can I respond to that, Sir?

Adv Mpofu: We will get the Commissioner of Oaths to give us an affidavit on all the contentious issues. But for now, I'm simply asking you, because you're the only one who’s here, that your... Let’s go to...

Prof Madonsela: Sir? Chairperson?

Chairperson: Just before, Madonsela, just before... Hon Maneli?

Mr Maneli: No, thank you, Chair. I just want to ask, again, just for clarity on your side so that I know where we are. Chair, first, we were not supposed to convene on this witness as per the first ruling. But an argument put on the table, we were convinced to review...

Chairperson: Please switch off your mic, Adv Mpofu.

Adv Mpofu: Sorry, Chair.

Mr Maneli: You were convinced to review the position of the Committee, and you made that ruling that we would use this statement of the 28th as the basis for the engagement. Assuming Chair, that at that time there was no time to look at it in the meeting, of course we’ve had other days and maybe something else would have happened. At least I would expect that there would be communication in this regard that we may not be happy with the statement that is before the Committee on the basis of its legality, right? But again, as we were starting now, I think one reasonably would expect that as a preliminary point to deal with, whether there’s question about the legal standing of this affidavit or statement that is before the Committee. And that therefore the engagement you are having at this point is the motivation of the illegality of it, because I make an assumption that if it’s illegal the advocate himself would not participate in illegality. So that at least we know what we are dealing with, whether we are in that motivation of demonstrating the illegality. Secondly, at least the last statement made now, that even if you try to fix this, it’s not fixable. It's linked to the question that’s not answered. And I thought, Chair, you would want the answer first to that question on which law... I think Adv Mayosi asked that. So that at least that matter is then cleared, and we know that we are listening to a motivation that the Committee in its consideration should look at this affidavit differently, because it has already made a ruling to accept it and use it as the basis of convening Monday, then Tuesday. Otherwise from the point of the Committee, there was no reason to convene, Chair. So I'm just saying at least assist for a member like me who might not be in the legal space, but who really wants to participate in an Enquiry of the Committee, understanding that it’s also not a court. And if there are any other matters of criminality that needs to be pursued, there are channels to also deal with that aspect. So that’s my point, Chair. As I say I may be raising it, because I'm swimming in confusion where we are. Thank you.

Chairperson: Thank you, Hon Maneli. I kept postponing the ruling, but...Adv Mpofu, because I need to rule so that we are able to get into the contents of the statement. And you were promising that you were going to the statement, hence I pulled back. I think you said you’ll answer the question of Adv Mayosi. I did not want to rush you into that. I think the Member is asking that you do provide that response...

Adv Mpofu: No, Chair...

Chairperson: I’m on the floor.

Adv Mpofu: I'm sorry.

Chairperson: Switch off your mic, thank you. So I'm saying I'm interested to hear that, because I can’t hold back any longer in terms of making a ruling and directing these proceedings to a particular point, instead of us being all over the place at one point. So I'm just going to give you that last opportunity to assist us on those issues.

Adv Mpofu: Okay, Chair. I said, well, we’re not here... a legal argument at this stage. I'll give you and Ms Mayosi and Mr Maneli the name. It's a long Act, I'll give it to you now, about Commissioners of Oath passed by this Parliament. I'll give you the section. But I wanted to short circuit this, exactly for the reasons that Mr Maneli is raising, just to make it easy for someone who doesn’t have to read the Act, Chair. If you allow me, just two questions. And I'll give you now... my team will get you that long title. The... let’s go to the statement of the 25th. This is going to be short, Chair. Yes, just go to the second page, we’ve already dealt with the first page, go to 487... At the bottom. You see that, for that page you and the Commissioner both signed, correct?

Prof Madonsela: Adv Mpofu, I have said the statement of the 25th is signed by me and the Commissioner on all pages. Do you have difficulty flighting the original without the changes on it?

Adv Mpofu: Okay, that’s good...

Prof Madonsela: Because you really are wasting time... If you flight the original without the changes, we would not have to keep...

Adv Mpofu: No, please ma’am... Answer the question.

Chairperson: Yeah, but don’t interrupt her.

Adv Mpofu: But she’s not answering the question.

Chairperson: Because you can put your point that the question is not answered, it doesn’t give you the power to interrupt her as she’s speaking. We've come to this point much earlier on... Thank you.

Adv Mpofu: I’m appealing to you, Chair. I’m appealing to you to please...

Mr Malema: Chair, why are you not sitting on the same chair as the witness? Why are you not sitting on the same chair as the witness? Because what you are doing...

Chairperson: Hon Malema, you’ve not been recognised to speak. Hon Malema, you've not been recognised to speak.

Adv Mpofu: Chairperson, you’re abusing me now...

Chairperson: Just let me complete... conclude this.

Adv Mpofu: Okay.

Chairperson: I’ve addressed this matter early on, that you are not... there must not be no interruptions. And early on it was not done by you. It can't be right now that it is done by you before she concludes what she’s saying – you must interrupt her and then you complain to the Chair that she’s not answering the question. If you want to put that to the Chair, then you will put that, but it doesn’t give you the right to interrupt her while she’s responding. Please conclude Adv Madonsela.

Prof Madonsela: Yes, Chair. I'm sorry to correct you, Sir. Earlier on, Adv Mpofu did also speak over me, and I did call him on that. And if you play the record, you will find that more than once, he also spoke over me. But to the extent that I spoke over him, I do apologise... or spoke out of turn, I do apologise.

Chairperson: Thank you, Adv Madonsela. Adv Mpofu?

Adv Mpofu: Thank you, Chair. You know, Chair, I'm trying to do this patiently. I'm saying, Chair, I've asked the question. The reason why we have you here as a Chairperson is to assist all of us. I've asked the question... the witness. We've now taken six minutes on the question, whether or not on the bottom of the page that she can see on the screen there are two signatures, yes or no. I mean, surely that must be the easiest thing to answer. To now get this whole lecture is uncalled for Chair. We're on timed schedule. You’re going to tell me at a particular point to stop. So in the time that’s available I must get as many questions, and answers to those questions as possible. I'm asking a simple question...

Prof Madonsela: Right.

Adv Mpofu: Yeah. Okay, let me do it like this ma’am, without showing you anything, because maybe that’s where the problem is. In the statement of the 25th did the Commissioner of Oaths sign every page?

Prof Madonsela: Absolutely.

Adv Mpofu: Yes, and then in the statement of the 28th did the Commissioner of Oaths not sign every page?

Prof Madonsela: True.

Adv Mpofu: Good, thank you. Then...

Prof Madonsela: Just a correction. Sorry, Sir. He did sign the last page.

Adv Mpofu: Now you’re allowing her to speak over me?

Chairperson: She had not concluded, conclude.

Prof Madonsela: The answer is yes; he didn’t sign the first three pages. He signed the last page.

Adv Mpofu: Great, yeah. Now, thank you... So I'm saying irrespective of the name of the Act, which I will supply. I'm trying to simplify it as Mr Maneli said we should, or even for a non-lawyer. One Commissioner of Oaths signed all the pages; the other one did not sign all the pages. Which one is correct of the two Commissioners of Oaths?

Adv Mayosi: Chair?

Prof Madonsela: I didn’t know there’s a competition between the two of them...

Adv Mpofu: No, ma’am. Please answer the question.

Prof Madonsela: Yes, I'm not a Commissioner of Oaths. All I know is that I submitted to this Committee, the statement of the 28th that is signed by a Commissioner of Oaths as the statement for consideration. And the Chair ruled that that was the statement that would be the basis of these deliberations on the 1 March. We are meeting on the 6 March; nobody came back to me – and said no that statement will not be acceptable. And then you say, no... Once you’ve said 'So help me God', it’s all gone. Well, oh help me God, it was the truth. Don’t try to imply just because the other pages were not signed on the statement of the 28th there is a lie. I don’t like the fact that you make statements at the end of things and then you jump to the next question. When you make a statement to me, let me respond to it. Thank you.

Adv Mpofu: Okay. I'm moving away from this, but I just want to...

Adv Mayosi: Chair?

Chairperson: Before you move away. Adv Mayosi?

Adv Mayosi: Chair, because of Adv Mpofu’s line of questioning I have to insist that he furnish us with the law that makes this requirement. As far as I could see the Justice of the Peace and Commissioner of Oaths Act contains no such requirement, that a Commissioner has to initial every page. Neither do the regulations governing the administration of Oaths of affirmation. But if there’s a different law that Adv Mpofu is aware of, it will assist us in this line of questioning as far as this affidavit is concerned.

Adv Mpofu: Alright. Ma'am when you were in your seven years as the Public Protector...

Chairperson: Before you ask her, so we now know the name of the Act.

Adv Mpofu: Yes, no I know it too, Chair. It was given to me...

Chairperson: Because we were waiting for it.

Adv Mpofu: Yeah, it’s... So are you feeling better now?

Chairperson: Wait, I'm on the platform.

Adv Mpofu: Alright.

Chairperson: Don’t create a dialogue please.

Adv Mpofu: Okay.

Chairperson: You’ve just asked me now to be the Chair. Now I'm in that Chair that you want.

Adv Mpofu: Alright, Chair. Alright, alright.

Chairperson: So I'm indicating that we now have that clarity about that Act, and there’s a point that says quite clearly, and it’s going back to you in terms of within that Act, what section of that Act is really requiring that...

Adv Mpofu: Okay, it’s the regulations, Chair. Chairperson, I don’t have the Act in front of me right now. If you want me to, I can take a break of your time and go and find it.

Chairperson: No.

Adv Mpofu: I’m trying to save that, and you are pushing me to give you a name of an Act. What difference does that make?

Chairperson: Now, this is what we’re going to do now. You asked that you’re going to proceed to the next point.

Adv Mpofu: Yes.

Chairperson: I just want to indicate this now. Your next point has got to be getting into the statement that brought us here, for the following reasons. When we met here at the 1 March, and this has been quoted several times, we concluded in giving the directive that that statement which was corrected and cleaned-up would be the statement that this Committee was going to utilise for its own purposes, in terms of it being written evidence. Okay?

Adv Mpofu: Written affidavit.

Chairperson: Wait, I'm speaking. I didn’t even give you to speak. Please switch off your mic... And thereafter, as the Chair of this Committee, I wrote to the Public Protector to give a further opportunity, which is the proposal that you brought – to say, even though we’ve taken a decision to utilise that statement as part of our deliberations, we are offering you another opportunity to come today and tomorrow to interact with the witness, which you agreed. There's never been any objection about whether that statement is now objected to, because it's not legal and so on. So I regard the exercise that I've been very patient to allow it happen, it’s now become a peripheral issue in relation to what we’re here for today and tomorrow. I want you to come and get into interacting with the witness, based on the statement that this Committee adopted here, that it is going to use for now in terms of the testimony but also in terms of its deliberations.

Adv Mpofu: Chairperson, if I may just respond to that. Firstly, you are being extremely unfair. I said to you on that day, and I have been hearing the witness say we should have raised this on the first, but there were no proceedings on the 1st, because we never interacted, at least I never interacted with the witness. But even under those circumstances, Chair, I told you that we have problems with these statements. That's number one. Number two, I told you that the statement of the 28th arrived at 10:13 while I was talking to you. I started talking to you at ten o’clock. So when was I going to look at that statement and see all the defects in it, when it arrived when I was busy addressing you. That’s the second point. The third point is that as you know, this witness has refused to consult with us. If she had consulted with us, even after that time, all this would have been resolved with her. So the only and first opportunity for us to deal with this matter is now and here. So for you to want to suppress... and lastly, Chair, and very importantly, sorry Chair. The most important thing, I've said this, I’m saying it I think for the fourth time now, is to establish. There's no point in saying you made a ruling on the 1st, in fairness to you, when you made that ruling, surely you were making it on the assumption that this is an affidavit, like all affidavits that we have seen here, and you’re entitled to believe that. When it is now being pointed out to you that this is not an affidavit, you can’t refer me to a statement you made when you yourself had not seen the statement, because it came at 10:13. Now... so you’re just bullying me for no reason?

Chairperson: No, let me assist you, I'll give you back.

Adv Mpofu: Yeah.

Chairperson: Let me assist you. There's no bullying here. And in fact, even on the day we indicated that there was nothing substantial that was changed in the statement. I'm on record as having said that. And in fact, beyond that, the letter I wrote to you, which you responded yesterday, there’s no objection in that letter in relation to this issue.

Adv Mpofu: No, that’s not true, Chair. Can we get the letter of yesterday?

Chairperson: No, no, no, I'm not going there.

Adv Mpofu: No, that's definitely false.

Chairperson: No, you’ll argue your point. You'll argue your point if you want to argue your point...

Adv Mpofu: Okay.

Chairperson: I'm interested that we’re going to be all over the place, instead of getting to the crux of what brought us here, Adv Mpofu.

Adv Mpofu: No, Chairperson...

Chairperson: We’ve been spending a number of times without getting into why we are here.

Adv Mpofu: Okay. We are here to lead the witness on an affidavit, are we not? ...Yes, if we are then it’s important to establish whether there is an affidavit or not, because, Chair, let me explain to you...

Chairperson: I thought we had agreed that there is that statement.

Adv Mpofu: No, it’s a question of law; it’s not a question of the Committee.

Chairperson: You’re not able to prove which law that says it’s not a statement or an affidavit. You’re not able to do that.

Adv Mpofu: No, no, that’s about something else. You just.... now showing your ignorance.

Chairperson: Okay, just finish and then I'm going to … invite Members.

Adv Mpofu: No, if you want the...

Chairperson: Hon Members, we have to just quickly deal with this issue. I'm going to give you the last opportunity.

Adv Mpofu: Yes, okay. Yeah, okay, Chair. Since you seem to be obsessed with the name of the Act, it’s the Justices of the Peace and Commissioners of Oaths Act, number 16 of 1963. I hope you’re happy now.

Chairperson: It was raised.

Adv Mpofu: Okay, and under that Act there are regulations, and I'll give you the reference. But the witness has confirmed and in fact you stopped me at a point where this thing would have been done a long time ago, Chair. I was just about to ask the witness whether in her seven years at the Public Protector, where she signed millions and millions of affidavits, does she know that in those affidavits, in fact and we’ve got some here, the Commissioner always signed every page or not. That's all I was going to ask, and then move on. If she knows...

Chairperson: That’s fine, that’s going to be your last question and then you get into the matter of these issues.

Adv Mpofu: Yes, Chair.

Adv Mayosi: Chair?

Adv Mpofu: Okay, it will be. Thank you, Chair. But, Chair, okay, you know, I really feel that you’re just... I don’t understand why you’re not interested to know whether there’s a... it’s not me who drafted the directives that said statements that come here must be affidavits. There's a reason for that, Chair. There are proceedings, for example, in the Judicial Service Commission, Chair, the law there used to say that if you want to complain about a judge, you can make a statement. It was changed a few years ago to say, no, that complaint must come as an affidavit. There's a reason, Chair, that there’s a difference between an affidavit and a statement. So I'm saying to you... Yeah, that’s really all I was establishing. If the Committee is not interested whether what is before it is indeed an affidavit, well, that’s the Committee’s prerogative.

Chairperson: Thank you, Adv Mpofu. We'll come back to you to ask the last question, then you get into the actual content of why we’re here.

Adv Mpofu: Yes, yeah.

Chairperson: Adv Mayosi?

Adv Mayosi: Chair, I want to leave this point. Adv Mpofu is correct, it’s the Justices of the Peace and Commissioners of Oaths Act, 16 of 1963, but I would still really request him to show us which section of that Act says that the law says that it does. The regulations governing the administration of oaths and affirmation, which were updated on 23 April 1982. I would again request him to show us where in the regulation there is this requirement that he relies upon.

Chairperson: Yes, okay. I will... Thank you for raising that.

Adv Mpofu: Chair, I will come to that, and I will give you the... after the break I'll give you the particular section. I'm happy now simply to ask that question that you allowed me to ask, so that we move on, and then when we come back... I don’t want to waste your time, otherwise you... if you feel like giving me a break, you may do so. But I think this can be resolved by just asking that one question.

Chairperson: Okay, go ahead.

Adv Mpofu: Adv Madonsela?

Prof Madonsela: Yes, Sir?

Adv Mpofu: Yes, I want to ask you whether in your experience as a Public Protector or as anything to do with the law, in the affidavits that you have signed before, whether it was an Nkandla matter or any other matter, you ever noticed that you would be required to sign every page and so would the Commissioner of Oaths? If you remember just from memory. If you don’t, we will demonstrate later but do you remember anything of that sort?

Prof Madonsela: No, I didn’t pay attention to the fact that all of them were done the same way.

Adv Mpofu: Alright. Okay, no, that’s fine then. Let's leave it at that, we will leave it for legal argument at which point we will give the Commission all the law, regarding all the... Can you give us the Commissioner of Oaths, the one from North Riding, is he available to give an affidavit? The one who did not sign every page.

Prof Madonsela: He is definitely available. He lives here in Somerset West.

Adv Mpofu: That’s fine. That's good. No, then we will avail ourselves of that opportunity. Thank you, Chair. Now I'm going to ask you the questions. I want to make it clear at this point, that what you have presented to this Committee is just a, you know, we have demonstrated that it’s a litany of falsity, but certainly what you have presented as an affidavit is not an affidavit. And we will... but, we’ll leave that for legal argument. I'm sure you don’t agree with that conclusion, but we’ll leave it for argument, correct? I mean, when I say correct, I don’t mean you agree. I mean can we move on to...

Prof Madonsela: I do have a question, Sir, because we haven't discussed the contents. And your conclusion to now say it’s a lot of falsity, I do not understand that. My understanding is that on this Committee’s agenda today is the statement of the 28th. And my understanding is that last week your concern was only that it was... it had a stamp from North Riding, and today your concern has changed to the fact that it’s not signed on every page. Where does the falsity come from now?

Adv Mpofu: No, I'm saying ma’am, it is not an affidavit. Let's forget how we got there. I'm just simply saying it is not an affidavit that is compliant with our laws, but I'll ask you questions on it on the assumption...

Prof Madonsela: Which law, Sir?

Adv Mpofu: The one that I just cited. Okay, alright, let me... I'll give you the... if you want it again. Anyway, no, let’s not go there. I’m going to ask you questions now on the assumption that the... what you said in that – I think let's rather call it a statement, not an affidavit. What you said in that document is what you want to testify on, okay? So we're now going to go to the document. I think I'll call it a document. Alright. Now, let’s go to.... You have correctly, if I may say so, as a lawyer, you know that saying that says context is everything.

Chairperson: Sorry to disturb you. There's just a hand, Hon Malema? Just before you proceed. Hon Malema?

Mr Malema: No, I was worried that Adv Madonsela is now asking Adv Mpofu questions, and you allow that as a Chairperson. Adv Mpofu is not there to answer questions. And you should be directing that meeting in a proper way, please.

Chairperson: Thank you, Hon Malema. Proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chair. I wanted to just show the Committee Member that I'm exercising extreme patience for reasons that will become clear. So I'm not going to respond to the insults and the slurs and the snide remarks. I think it’s better... the public is there to judge on its own, yeah. Alright. Madam, I'm saying then that let’s go to your statement, let’s start at 9.1. Oh, sorry, I was asking you the question, do you agree that in law context is everything, correct?

Prof Madonsela: No, it is not everything. It's part of the considerations you make. As a lawyer you would also know that. That it’s just part of what you consider, it’s not everything.

Adv Mpofu: Okay, you’ve never heard of the often-repeated statement by judges that context is everything in law? Or if you’ve heard of it, you differ with it, correct?

Prof Madonsela: No, I haven't heard of it, but you can guide me which judgment has said that. The Constitutional Court judgments don’t say that. They consider context as one of the considerations they make.

Adv Mpofu: No, that’s fine. Well, the Constitutional Court does say so and every legally trained person who has come here... they’ve been more than ten. I've always, if they’re legally trained, I first ask them that question and it’s only you who has never heard of it, but that’s fine. Let me move on again, because I'm going to be asked which paragraph of which judgment that is in. And unfortunately, even I don’t have all the judgments without referring to them. Okay, it’s fine, let’s not quibble about that. But okay let’s say you agree that context is important?

Prof Madonsela: He who asserts must prove. Twice, you have made assertions and when asked to prove, you said you’ll prove it later. I take issue with that. You said the affidavit should have been signed on every page, you cite the same law that the evidence leaders cited. And then when you were asked which regulation, you said you’ll find out later.

Adv Mpofu: Chairperson...

Chairperson: Adv Madonsela, Adv Madonsela, Adv Madonsela, I appreciate your interaction on that issue. I would want you to answer the question that he’s asking, if you agree that context is important.

Prof Madonsela: Yes, Sir. I had already said that. I had said that we are required actually by the Constitution and the law to consider context among other considerations.

Adv Mpofu: Okay, thank you. I'm happy with that. So important is context that in your statement you have three sections and two of them deal with context. Only one deals with the content of CIEX and Vrede, am I right?

Prof Madonsela: Certainly not as everything, as one of the considerations.

Adv Mpofu: Ma’am, did you hear the question? Is it so that in your statement, you have part A, which is headed “Context”. Part B, which deals with the content, let’s say. And part C, which deals again with context. In other words, of the three sections in your statement, two of them deal with context, is that so or not so?

Prof Madonsela: It is so.

Adv Mpofu: Thank you. Alright. So on the basis that your statement is 66% made up of context, then we’re going to start with that context. Right. Now, I want to start at paragraph 9.1 of your statement. You said everything that is above paragraph ten is relevant. So let’s do it like that, so that we stick to what you regard as relevant. You say at paragraph 9.1, “I inherited a well-run institution that had been built virtually from scratch and improved step by step by my predecessors”, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Right, okay. So let’s deal with that part. When the well-run institution that you refer to, you would agree that as a corporate leader at least... I was once one, that that refers to... broadly to the people issues, the operational issues and the governance issues. Those would be some of the signposts of a well-run institution, correct?

Prof Madonsela: Yes.

Adv Mpofu: Good, and of course, there’s the output, which is the productivity. If you’re producing sausages, how many sausages. If you’re producing bread, how many loaves of bread, and so on. So those are the pillars of a well-run institution, correct?

Prof Madonsela: Absolutely, quantity and quality.

Adv Mpofu: Yes, absolutely. Good, in fact very good. On all those aspects, it’s quantity and quality. So the people... the HR issues, the operations, the governance, and the output. Those would be measured qualitatively and quantitatively; I agree with you. Alright. So would you then say... if you say you inherited a well-run institution that had been built from scratch, you also left behind a well-run institution based on those parameters that you and I have agreed on?

Prof Madonsela: Yes.

Adv Mpofu: Alright. And now, when it comes to the people issues, you had... obviously, there’s never a hundred percent in these things. But you had the necessary skills that you needed to run the institution, correct?

Prof Madonsela: Absolutely. Although, I'm not sure now whether this is now about me or it was just me giving context about the institution, because you’re now asking me about my skills. I'm not sure what’s the relevance of that question.

Adv Mpofu: No, if you listen, you’ll get the relevance. I didn’t ask you about your skills at all. I didn’t ma’am. I was talking about the institution. I thought you said, “I inherited a well-run institution”.

Prof Madonsela: Well-run and having all the skills that you need are two different stories.

Adv Mpofu: Alright.

Prof Madonsela: Interrelated, but don’t have the same meaning. I think you know that.

Adv Mpofu: Alright, so you... So what's the answer or do you not want to answer? Whether you had the necessary... Oh, I see why you were confused. When I say you had the necessary skills, I don’t mean you. I mean, did you have the necessary skills base to call it a well-run institution when you left it?

Prof Madonsela: I'm not sure who’s confused about the two of us at times. I know you like using that sentence, but sometimes I wonder who’s the confused one. But let me answer your question, we had the right skills base. And what you had put now for the public view, would show you that there’s a logical sequence to what I said. That it was a well-run institution, but we kept learning and growing together. In other words, it was not a perfect institution. And it says so in the affidavit.

Adv Mpofu: Yes, I think that’s the same thing as what I just said, that it’s never 100%, but if you prefer to say it that way, that’s fine. And... Okay, let’s put that one. And then in terms of governance, were you satisfied with the achievements of the institution?

Prof Madonsela: The institution kept growing. I know this is irrelevant, but it’s you trying to insert your attempt to measure me, instead of making this about your client. But I will answer you nonetheless, Sir, because you’ve been wanting this for a long time. The institution that I inherited was well-run, built by two advocates of this country, one of them a judge who built it from scratch. It was though, an evolving institution. And when we came in, the concerns around for example, issues of corruption, ballooned, because the Scorpions had been discontinued. And obviously, this well-run institution had to be agile in adjusting to change, which if you’re talking about the skills base, anyone who had ever worked in the provinces had never dealt with a complex investigation unless they had worked at national office.

Adv Mpofu: Chairperson, please...

Prof Madonsela: Corruption and good governance matters or conduct failure matters were never dealt in the provinces. And therefore, that’s an institution that had to evolve and adjust to that. With regard to governance, when I arrived the institution had gotten a disclaimer, not because my immediate predecessor was incompetent, because the CFO had died. So my first appearance in Parliament was to speak to a report where there had been a disclaimer. That's when we started to rebuild.

Adv Mpofu: Okay, thank you... Okay, now, I'm just asking a simple question really, which doesn’t require all this stories. I'm simply saying, as far as governance is concerned, were you happy or not happy with the performance of the institution that you call well-run?

Prof Madonsela: When it comes to governance, I was happy. When it came to investigations, we changed. The emphasis on numbers, to balance numbers with the...

Adv Mpofu: Chair.... But that would be operations.

Chairperson: Adv Madonsela, you did answer in terms of governance. So you... don’t stretch it further than that.

Adv Mpofu: Yeah. In fact, Chair, yes. I'm not going to go to operations, because I think then we’ll spend another 15 minutes. Alright. And it is indeed so that until recently the institution never received a clean audit, correct?

Prof Madonsela: I knew you were getting there, because that’s one of the irrelevant questions you had asked me. Of course, I would have been shocked if my successor never got a clean audit. Because if you understand the auditing process, Sir...

Adv Mpofu: No, ma’am. Please answer the question.

Prof Madonsela: If you’re starting from a zero balance, which is where we started...

Adv Mpofu: No, just answer the question. Sorry, Chair... I can’t, we can't do this. Answer the question. I will ask you if I want to know about balance sheets and all that. I'm asking you whether the institution did or did not have clean audits until recently. It's a simple question, yes or no?

Prof Madonsela: Progressively it arrived at a clean audit, eventually. With the systems we put in place and the leadership we had. Progressively, it had to.

Adv Mpofu: Yes, okay, but... yes, no, no, I understand that. But it could have deteriorated. So it improved recently, correct?

Prof Madonsela: Well, from an audit point of view you would say yes, because every year the...

Adv Mpofu: Thank you. Thank you, ma’am. Alright, thank you. I thank you. Alright. Then... so that’s your 9.1. So we know at least that there was this recent improvement in one of the areas, okay. And then when it comes to the issues of... you know that one of the issues that bedevil any institution like that is the issue of backlogs, correct?

Prof Madonsela: Yes.

Adv Mpofu: Yes and the evidence of Mr Neels van der Merwe is that the backlogs are now at an all-time low...

Chairperson: Apology to both yourself and Adv Madonsela. Hon Nqola, we’re not interested to hear who’s talking there where you are, please stay muted. Over to you, Adv Mpofu.

Adv Mpofu: Thank you. Now, I was saying, do you agree with the evidence of Adv van der Merwe, which you may or may not have listened to, but I will tell you what it said. That the... who has been there since the beginning of time with the institution, that currently, because of the systems that are put in place, the backlogs are at a considerable all-time low.

Prof Madonsela: I don’t know what the backlog was before I arrived. I said I inherited a well-run institution. One of the things... but one of the things we had to deal with was the emphasis on speed versus rigour. And therefore, the slowing down had to do with making sure that there was rigour.

Adv Mpofu: Okay.

Prof Madonsela: So I've never measured the office purely on the basis of backlogs. Much as, in fact, in KZN there was a time when they had cleaned up all of the cases, and they would have of course registered a new backlog. We went back and reopened all of those investigations, because they were improperly closed. So we were concerned that justice should not be sacrificed at the altar of speed.

Adv Mpofu: Okay, so one of the reports that we’re going to deal with specifically sat on your desk as it were, for something like five to six years. Is that what you mean by ensuring rigour?

Prof Madonsela: Absolutely, I did deal with it in my statement, if you will recall, Sir. That's the one that I voluntarily chose to do, against a decision of my team. And therefore, it had to be my cross to bear.

Adv Mpofu: Yes, no, I understand. I'm saying in so far as it went on for about five to six years...

Prof Madonsela: Firstly, it was an outlier...

Chairperson: Just pause, Adv Mpofu. For the last time, can somebody for the last time mute Hon Nqola or remove him from the platform.

Adv Mpofu: Thank you, Chair. Alright. Fine then, we’ll take that answer for now until we get to that report. Now you then say that at 9.4... Or let’s start with 9.5; we’ll come back to 9.4, when we come back. 9.5 you say, “I resisted being spied on by the State Security Agency, through sudden repeated requests to vet me as I was finalising the Waterkloof Landing incidence by the Gupta family”. When you say the... you consider vetting by the State Security Agency as being spied on, is that how you characterise that?

Prof Madonsela: No, Sir.

Adv Mpofu: Okay, what did you mean by...

Prof Madonsela: And can I then supplement my answer?

Adv Mpofu: Yes.

Prof Madonsela: I had been Public Protector for four year or even five. And as I was finalising the Waterkloof Landing matter, the last persons I interviewed... well, the last person I interviewed was from the State Security Agency. And then two things actually happened. A few days later there was a first of those crazy spy stories. And then suddenly in the middle of nowhere, the State Security Agency wanted to vet me. And this was the time when we knew that that agency was full of shenanigans, and we now know that it was captured. But I knew for a fact that this had nothing to do with trying to vet me. It had something to do with wanting to follow me with the permission of a judge. That's the context in which I'm talking about being spied on.

Adv Mpofu: Alright, being spied on, okay. Good. So, but you yourself were never vetted, correct?

Prof Madonsela: I wasn’t vetted. Public Protector’s had never been vetted before me.

Adv Mpofu: Yes, and you never had security clearance yourself, correct?

Prof Madonsela: No, never did. Not for this post. I was vetted for other things as a consultant with government, including for work with the State Security Agency itself, previously.

Adv Mpofu: That’s before. I'm saying at the... as a Public Protector you refused to be vetted? Or rather... Sorry, let me withdraw that. As a Public Protector you were in fact never vetted or got security clearance, correct?

Prof Madonsela: Yes.

Chairperson: Can you just get your last one, so that we can take a pause.

Adv Mpofu: Yes. Yes, thank you, Chair. Just to wrap up that point. It is correct isn’t it, according to the evidence of one of the witnesses that you are the person who authored the security clearance policy at the Public Protector before the arrival of Adv Mkhwebane, correct?

Prof Madonsela: That you would have to check with the Auditor-General. I didn't initiate the idea of staff being vetted. As one of the audit findings we were talking about governance issues, is the Auditor-General that tells you what needs to be done. And one of the things the Auditor-General said we needed to do was staff at a particular level needed to be vetted, and it didn’t include the Deputy Public Protector, by the way.

Adv Mpofu: No, I'm not talking about the Deputy Public Protector. I'm talking about you. You... I'll show when we come back, because the Chair correctly wants to take a break now. I'll show you when we come back that you signed the policy that said people at a senior level should be vetted, but you are telling us that you yourself were not vetted. You were just a... what you call it, although you had access to those documents that are referred to in your policy, you were not, in fact, security cleared.

Prof Madonsela: Yes, and I had done that for five years without it being an issue. And there was no policy that said the Public Protector must be vetted. And my predecessors were too, had never been vetted or security cleared.

Chairperson: Okay, let’s pause there. We'll take a forty-five minutes lunch and be back at five past two. Thank you. We adjourn for lunch.

[Break]

Chairperson: We’re back; it’s five minutes past two. We're going to resume with our Enquiry. Let me quickly check if we have... we’re connected with Hon Members. Hon Malema, can you hear me? Hon Zungula, can you hear me?

Mr V Zungula (ATM): I can hear you, Chair.

Chairperson: Thank you. Professor Madonsela, can you hear us?

Prof Madonsela: Yes, Sir.

Chairperson: Thank you. Thank you, we now proceed. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. I'm going to require your protection to deal with the questions. I'm going to try and ask them in a simple manner that requires short answers. But, Chair, I just wanted to make the references to the passages or the references in law that you were harassing me to do. And I said that even I don’t have all these things registered in my head without looking at them. The first one, Chair, is... and we’ll deal with this obviously when we argue, but just for the record. It's the Act that I told you about, the 1963 Act. The regulations governing the administering of an oath or affirmation. If you go to regulation 4(1), which is the one that I was dealing with the witness with about below... where there’s a cross-signatory, so to speak. So it says, “Below the deponent’s signature or mark the Commissioner of Oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration”. Now the point I was making to the witness, Chair, is that the interpretation of that signature or mark, a mark could even be just initialling. Below that a Commissioner has to certify. And that must not be confused with regulation 4(2), which deals with the signature at the end of the statement, where it says, “The Commissioner of Oaths shall – a) sign the declaration and print his full name and business address below his signature”. So that’s the reference to that, to the issue of signature. The other one, Chair...

Chairperson: Thank you.

Adv Mpofu: Thank you, Chair. The other one the witness challenged me to refer to Constitutional Court case to do with context. Yes, that, Chair, you’ll find in many cases... we’ve found lots of SCA cases and so on. But one of the most recent ones is judgment of Khampepe J, University of Johannesburg v Auckland Park Theological Seminary... I’ll give the full, okay... what we call neutral citation, Chair, is 2021, ZACC, 13. But maybe when we argue, I'll give you the full quotation. You'll remember that... Chair, I'm sure you’ll remember that virtually all the legally trained witnesses, I've asked that question. And they’ve confirmed it, because it’s so trite, that I'm... to borrow from the witness “shocked”. And this is what Justice Khampepe said, she started by quoting this from a poem, and I'll just read the stanza that she refers to, she said “I am writing this in a time when anything we write can be used against those we love, where the context is never given, though we try to explain, over and over. For the sake of poetry at least, I need to know these things”. And then starting the judgment, she says... this is Justice Khampepe now, “I make bold to say that it is not just for the sake of poetry that the old adage, context is everything, holds true. In so many scenarios, words alone ring hollow. Context gives life and meaning to what is said or written”. And all sorts of other things, but that’s just one of the quotations for the... or rather, sources for the very well-known in legal circles at least, that statement that context is everything. So, Chair, can we then just go back to the...

Chairperson: Yes, proceed please.

Adv Mpofu: Yes, we'll proceed... I you promise not to ask me to do road learning of the whole law of South Africa. Okay, right. Now Professor, we were at the point where I was asking you whether... or at least you had confirmed that you were not vetted or cleared, from security point of view. I'm just going to ask this question in broad terms to cover what I'll argue at the end, just to give you an opportunity to answer. Do you think, having read all the appropriate statutes and policies, including the MISS and the policy that you signed? Do you think it’s appropriate for a head of an institution to require those below her, who handle certain information to be security cleared, but he or she is not security cleared – being the person who actually has access to everything that everyone else has access to, do you think that’s consistent with the intentions of MISS and the policy you signed?

Prof Madonsela: Yes, Sir. And do you want my explanation?

Adv Mpofu: Pardon?

Prof Madonsela: I’m very sure about that, because there was correspondence between me and the State Security Agency when it tried to assert itself into the Public Protector’s office, under this pretext.

Adv Mpofu: Yes. No, ma’am.

Prof Madonsela: Should I explain myself, Sir?

Adv Mpofu: No, no, no. No, it’s fine. I’m quite sure that there was such correspondence. I'm asking you a broader general question. Whether...

Prof Madonsela: And the answer is yes, Sir.

Adv Mpofu: That it's appropriate to basically say to the people who report to you, do as I say but not as I do? In other words, you who has access to those classified documents would then be breaching your own policy, wouldn’t you?

Prof Madonsela: Can I explain again, Sir? The policy for the vetting of staff did not come from the Public Protector; it came from the Auditor-General, because of a decision from government to vet staff. Ministers have access to documents, they’re not vetted. Judges have access to documents, they’re not vetted. Members of Parliament have access to documents, they’re not vetted, because there’s an equivalent process to vetting that the go through. For example, when I was going to be appointed as Public Protector, there was a process of vetting or equivalent to vetting, that the Department of Justice undertook. And this was the case for all of the Public Protector, and this is the case for the judges. I was recently involved in the selection of the Chief Justice, and it’s the same process. And therefore, you are incorrect, Sir, by suggesting that by not being vetted by an institution that had gone rogue at that particular time – and it was known, it was in the public domain that this institution had gone rogue. And that institution, I had been told by journalists, just after this last interview on the Gupta landing matter, that it was the institution responsible for the first spy story.

Adv Mpofu: Yeah, okay. Alright, I'm going to argue... maybe, let me make it quick. I'm going to argue that it’s inappropriate for the head of an institution to impose a policy that says people at a particular level must have clearance. In other words, if you had these objections, then you should have the objections in principle, rather than imposing it on other people not on yourself. That’s the first issue I'm going to argue. I've heard your response to that, that’s fine. But I just want to move to the issue, which you touched on, which I had not touched on. So basically both you and the Deputy Public Protector were not security cleared.

Prof Madonsela: As had been the institution since its inception.

Adv Mpofu: I take that as a yes.

Prof Madonsela: It is a yes.

Adv Mpofu: Good. And in the case of the Deputy Public Protector, I think he spoke about this openly in the Portfolio Committee. One of the issues why he... Did he attempt to get security cleared?

Prof Madonsela: Not during my time, because it was not a requirement. The Deputy Public Protector was not the first Deputy Public Protector. Adv Shai was the first Deputy Public Protector, for two terms. Nobody tried to vet her.

Adv Mpofu: Yes, I know.

Prof Madonsela: And there were two Public Protector’s before me, for two terms nobody tried to vet them. But there was an equivalent parliamentary process that I regarded as equivalent to vetting. And that’s the open one where anybody can during the process bring in...

Adv Mpofu: Ma’am, it’s going to help us a lot if you just answer the question. So at that particular time, for all the good reasons you’ve mentioned, both you and the Deputy Public Protector were not security cleared, yes/no?

Prof Madonsela: I've answered that question. I don’t know what kind of answer you want anymore, because I...

Adv Mpofu: No, I want the straight answer.

Prof Madonsela: And then I give you additional information.

Adv Mpofu: Yeah, you must just give me the answer.

Chairperson: Yeah, okay let me just... If I can come in here. Prof Madonsela, you did answer the question. Perhaps you need to... I think he’s asking for shorter answers, that’s what he’s...

Prof Madonsela: I would say...Through you, Chair.

Chairperson: Go ahead.

Prof Madonsela: My answer would be we were vetted in a different way. In that we went through the kind of vetting that you see in the United States, where MPs like yourselves are allowed to get as many people from the public to submit to you anything that they know about this person that they think makes them not a fit and proper person. So my view is that we were vetted, maybe not security cleared by the State Security Agency. And if I were to make that decision, not to allow myself to be vetted by them at that particular point, I would still make it.

Adv Mpofu: Alright. Okay. So okay, fine. We'll take that as a yes again. And I wanted to say that in the case of Mr Malunga, and I think this is something he spoke about openly. One of the issues that was raised for... or rather that might have stalled his security clearance was the fact that he came from Zimbabwe, remember that?

Prof Madonsela: I don’t appoint Deputy Public Protectors. I didn’t know that, because I had never asked him. I never tried to get him vetted, because that was a parliamentary process.

Adv Mpofu: Yes, okay, but you knew that he came from Zimbabwe?

Prof Madonsela: No.

Adv Mpofu: You didn’t know?

Prof Madonsela: I knew that he lived in Zimbabwe, he had lived in Swaziland. I didn’t know where he came from, I never asked him.

Adv Mpofu: Oh, come on, Adv Madonsela. This is something that was being discussed in the public domain, but that’s fine. That’s you answer, that’s your answer. And...

Prof Madonsela: That’s my answer, I never asked him.

Adv Mpofu: Yeah, no, no. I know it’s your answer, I just find it incredulous, yeah. But anyway, that’s fine. Mr Malunga was called as a witness, but it was decided that he shouldn’t come. So I don’t think... It would be unfair to discuss him in his absence. But you yourself, you were born in South Africa?

Prof Madonsela: I was, certainly. You know that information, don’t you?

Adv Mpofu: No, I wasn’t there when you were born ma’am. I'm just...

Prof Madonsela: Well, I think it’s in the public domain. Like you say I should have known about Malunga, you should have known about me too.

Adv Mpofu: Okay. So then you agree with me that you should have known about Malunga now?

Prof Madonsela: Well, I'm saying by your logic. I don’t agree with you. I'm just saying by your logic, then you should have known about me. It's not my logic, it’s your logic.

Adv Mpofu: I see. No, that’s fine ma’am, the public is listening. No, no, I was simply distinguishing. I was saying in your case... rather, in his case, there was that issue, but that issue did not arise in your case. And so, I'm just wondering... Okay, let me ask this question, so that we move on to the next topic. When, for example, as you correctly say this was raised with you when you were investigating the so-called Gupta landing at Waterkloof. Don’t you think that that particular issue, obviously the landing of a foreign plane in Waterkloof, which is a military airport, would be a matter dealt with by the SANDF and among others, military intelligence? Don’t you think that your lack of clearance, of cleared status, would limit you in investigating something like that, because it might involve documents to which somebody like you would not have access? And just, if you don’t think so just say so, don’t tell me why. If you do think so, just tell me.

Prof Madonsela: I don’t think so, in the same way that it doesn’t limit judges. But you are incorrect; again, you’ve distorted what I said. I said...

Adv Mpofu: No, ma’am. Don’t...

Prof Madonsela: As I was...

Adv Mpofu: Chairperson?

Prof Madonsela: Can I just correct you, Sir?

Adv Mpofu: No, no, but you can’t insult me at will like that. Chairperson, can you ask the witness to stop saying that I've distorted her, anything? She's been insulting me...

Prof Madonsela: But you’ve done that, Sir. Can I correct you?

Chairperson: Okay, go ahead.

Prof Madonsela: Thank you, Sir. It's on the record. Everything that we’re saying is on the record and there’re people listening. I did not say that they asked to vet me for the Gupta landing. I said as I was concluding that, the last witness that I interviewed was from the State Security Agency. And they knew where this whole investigation was going, because we had done a forensic and we caught them lying. And shortly after that, two things happened. One was the spy story. The second thing was a letter requesting to vet me. The issue of me being not vetted and not having... An objection to me accessing information was not in this case, it was with Nkandla case. We discussed it and we agreed with the Ministers consent, the whole cluster of Ministers that had been appointed by President Zuma to deal with me in this matter. We agreed that the Public Protector goes through public scrutiny, that is similar to vetting. And therefore, it was improper to refuse to give me the documents for Nkandla. That was a totally different thing and it was agreed to. And then out of the blue, the State Security Agency wanted to vet me.

Chairperson: Alright. Thank you, Adv Madonsela...

Prof Madonsela: Not in relation to any case. Just out of the blue. And they said it would be good for me to do that, in writing.

Chairperson: Your point is well covered, Adv Madonsela. Over to you, Adv Mpofu.

Adv Mpofu: Thank you. Alright. Now I'm going to start protecting myself, because the Chair is refusing to do so. Let me just tell you for now that your accusation that I was distorting information is unfounded. I have no reason to distort anything, madam. I'm asking you questions. It is you who said in your statement you “resisted being spied on by the State Security Agency, through sudden repeated requests to vet me as I was finalising the Waterkloof Landing incidence by the Gupta family". I'm simply asking, based on that statement of yours, which I've now quoted verbatim, so that you don’t accuse me of distorting information, which would be highly unprofessional. But the issue I'm saying is that don’t you think, and you may agree or not agree, that for an investigation such as that one, it might be a limitation not to have access to certain documents when by its nature that investigation involves classified information?

Prof Madonsela: It was being finalised, Sir. So all of the investigation and access to documents had already been done, as my statement says. It wasn’t before I did the investigation this was raised; it was when I interviewed the last person who was a member of the State Security Agency. A few days after that - when I'm talking finalising an investigation, I'm talking writing the report, which for whatever strange reason never saw the light of day.

Adv Mpofu: Yes. Okay. Let's quickly go to the bundle C, folder two, item 27 please.

Chairperson: Are you winning?

Adv Mpofu: Alright. Thank you, Chair. If you’ll go to the first page... At 1.1, it says here “The Public Protector South Africa depends on its personnel, information and assets to deliver services that ensure the health, safety, security and economic well-being of South African citizens. It must therefore manage these resources with the due diligence and take measures to protect them“. You remember that?

Prof Madonsela: No, I wouldn’t remember it. It happened so many years ago and we live in the digital age.

Adv Mpofu: Okay... no, no. Okay, I'm...

Prof Madonsela: But I take it that it’s from my institution, my former institution.

Adv Mpofu: Okay. Okay. Okay, ma’am. You... Let’s assume you don’t remember it, but you can’t dispute that it was part of the policy.

Prof Madonsela: I cannot dispute that. I cannot see my signature on it, because the policies that we signed by the Public Protector would have my signature on it. I have no reason to say yes or no.

Adv Mpofu: Fine, let’s go to page 459.

Prof Madonsela: If you show my signature, then I'll say yes.

Adv Mpofu: Let’s go to page 459. Further down... Is that your signature?

Prof Madonsela: Yes, it’s my signature. But it’s not initialled every page, so I don’t know if it’s changed. But I want to believe it, because it is an old statement, that it must exist.

Adv Mpofu: No, I agree with you. Yeah. In fact, the facility of initialling every page is meant to stop fraudulent activities. You’re right to make that qualification, am I right?

Prof Madonsela: I know where you’re getting Adv Mpofu...

Adv Mpofu: No, don’t worry about where I'm getting. Just answer the question. Answer the question.

Prof Madonsela: I don’t know.

Adv Mpofu: Oh, so why did you tell the Chair that because it’s not initialled every page, it might not be authentic. If you don’t know now, when the implications of that question...

Prof Madonsela: It’s not about fraud. It's about you were attributing it to me. And I was saying I don’t know. And I said if it’s got my signature, then it must be me. But since it’s not initialled, I don’t know if it's been changed, because policies are changed over time. But let’s just accept that this is a policy that I signed and it’s a policy where I was required by the Auditor-General to sign and I complied.

Adv Mpofu: Okay. That's fine. And as it happens, also what you’ve just said is not true. You did initial every page, because you knew that that is the correct procedure.

Prof Madonsela: Well, I didn’t say... I didn’t say I didn’t initial. I just said if it’s signed by me or initialled by me, that’s okay, because you showing me these things. I don’t even know what’s the procedure here. Nobody... Just common decency, such that if you’re going to put things to people, you send to them in advance. I mean, you were not prepared to put your client through an immediate process, having been given a document four days ahead. And you throwing documents to me without having shown them to me in advance.

Chairperson: Okay...

Prof Madonsela: You must apply the same rules you want for your clients to me, Sir.

Chairperson: Okay, thanks, Adv Madonsela. Just a pause there. Adv Mayosi?

Adv Mayosi: Chair, this particular policy is initialled on every page.

Chairperson: Is initialled?

Adv Mayosi: On every page.

Adv Mpofu: That’s what... Yeah.

Chairperson: Okay.

Adv Mpofu: But that’s what I just said. I don’t know why Adv Mayosi is jumping in, to use Adv Bawa’s expressions. I've just said to the witness, that as it happens, that this is signed every page. So...

Chairperson: Initialled every page.

Adv Mpofu: Initialled every page. So what’s the purpose of that intervention, Chair?

Chairperson: Okay. That's fine. Maybe she didn’t pick that up. Let's proceed, over to you.

Adv Mpofu: How do you know? How do you know that she didn’t pick it up?

Chairperson: She’s saying now.

Adv Mpofu: Oh, okay. Fine. Ma'am, please, I don’t want to debate with you. The record will show that you said it’s not initialled on every page. So there's no point in me debating that with you. All I'm saying is the significance of that, you raised the point not me, okay? I did not raise the issue about signing every page, after lunch. You raised it.

Prof Madonsela: May I just respond?

Adv Mpofu: No, wait. Let me finish. Please, Chairperson...

Chairperson: Yes, finish Adv Mpofu.

Adv Mpofu: Madam, I'm saying that you raised the issue. And I'm simply saying that the only reason you raised it of your own volition as part of either an attempt to disown this document or discredit the fact that it has your signature at the end, is because indeed the practice of initialling every page, which you did here, ensures that the signature at the end is not just inserted. Because all sorts of things could happen. And I know earlier, you denied falsely, that in the many affidavits that you’ve signed over the years at the Public Protector, you and the Commissioner of Oaths signed every page, but let’s put that aside. I’m saying you’re raising it in this context here. And the fact that you did do the right thing of initialling every page means that you know despite your fake or feigned ignorance, that that is a guarantee. The signing of every page, it’s a guarantee.

Prof Madonsela: May I respond to that, Sir, because that’s an attack.

Adv Mpofu: You don’t want me to finish? It’s fine. If you don’t want me to finish, you can...

Prof Madonsela: Yes, I just want to respond to the digression...

Adv Mpofu: Before I speak? Before I finish?

Prof Madonsela: Yes, please, Sir.

Adv Mpofu: Don’t you... Isn’t it better to respond once I've finished?

Prof Madonsela: Because you’re going to go to a different issue. I want to respond to the lie you’ve just made right now.

Adv Mpofu: No, ma’am. I will never go to another issue without giving you an opportunity to respond, believe me.

Prof Madonsela: Okay.

Adv Mpofu: That has never happened.

Prof Madonsela: Okay.

Adv Mpofu: Alright. So I’m saying madam that the reason why you, not me, raised that issue, is because you know very well, despite your earlier false denials that the issue of signing every page is intended as a bulwark against forgery or fraudulent documents or people claiming that this is your document. This one in particular, I think has fifty-four pages, simply because your signature is on page 58. You know that. You can now respond. Thank you, ma’am.

Prof Madonsela: Thank you, Sir. Here is the distortion again, Adv Mpofu. Earlier on when we had a conversation; it was about Commissioners of Oaths. You not telling the truth, Sir, when you say I said I never signed every page. You asked me, in the practice of Commissioners of Oaths and I've been Public Protector for many years, do I know of any occasion of where there were no joint signatures. And then I said I don’t know, because I don’t have a recollection of every document. And this is on the record. I will ask that the Committee, when this is debated, we get the verbatim. Secondly, on the issue that you’re accusing me of. On the one issue it was Commissioners of Oaths. And currently we are dealing with a policy. These are two different things. It's signed by one person. And all I asked was if it is signed on every page. To now distort my words and say I said it’s not signed on every page. It's a fifty-nine-page document that you’ve just put in front of me right now. Am I a clairvoyant to have known that it’s not signed on some pages? But lastly, on that issue that you’ve argued here, about the fact that if something is not initialled on all pages, it is therefore unlawful or illegal or it’s not an affidavit. You cited something from 1963. I will cite to you something that happened here in this province, which becomes precedent. That is the case of Minister of Safety and Security v Mustafa Mohamed.

Adv Mpofu: Chairperson, please...

Prof Madonsela: It's an April 2010 case that contradicts what you just told the Committee, Sir.

Adv Mpofu: Chairperson, please. Adv or Ms Madonsela, well she didn’t... I asked her. Are you registered with the Legal Practice Council? Because there’s a Member who’s...

Prof Madonsela: It’s immaterial.

Adv Mpofu: Pardon?

Prof Madonsela: It’s immaterial.

Adv Mpofu: No, but... No, there’s a Member here, Hon Mileham, who’s interjecting to say...

Prof Madonsela: Just been trying to bully me, Adv Mpofu. Speak to the rules here.

Adv Mpofu: No, I just want to know. I want to know ma’am, please, this is important. A Member says that you’re an advocate. So I want to know if you’re registered as such with the Legal Practice Council, that’s all. It's a simple yes or no.

Prof Madonsela: It’s immaterial.

Adv Mpofu: So I'll take that as a no.

Prof Madonsela: Take it whatever way you want, Sir.

Adv Mpofu: Thank you very much, yeah. No, I'll take it. Anyone who is registered with the Legal Practice Council would not struggle with that question, but that’s fine. Then, it means then... I was doing that for the sake of knowing where to report these transgressions. At least with the Commissioner of Oaths, I'm sure he’s registered with the Legal Practice Council, so we’ll refer him there. And other people involved will be referred to the police. That's fine. Alright. Now I was saying ma’am, I don’t want to quibble with you. You’d agree though that the principle, it doesn’t matter whether in the one case we’re talking about the affidavit, and in another one we’re talking about the policy, in another one we’re talking about what have you. The principle of signing or initialling every page is the same, which is to ensure that that document has been properly signed by the person whose signature appears at the end. The principle, do you agree?

Chairperson: Just a pause.

Prof Madonsela: Subject to the Zeman judgment of 2010, Sir. Thank you.

Chairperson: Thank you. Hon Malema?

Mr Malema: Chair, the Advocate when he asks the question, and the witness is not answering or deliberately refusing to answer. I thought it is your role to come in and check if she will not answer the question. Because that thing of her belonging to any professional body is very important, and it can’t be left hanging like that, for simple reasons that the advocate had mentioned.

Chairperson: Thank you, Hon Malema. I was satisfied with the answer she gave. It's how she feels to answer that question by saying in relation to the motion that we’re dealing with here, for her it is immaterial. Over to you, Adv Mpofu.

Adv Mpofu: You’re saying you satisfied with that?

Chairperson: Over to you.

Adv Mpofu: Your satisfaction is very easy to achieve, Chairperson. I'm... this is... Anyway, it’s fine, it’s fine, it’s fine. We're going to be patient. So anyway...

Mr Malema: Chair?

Adv Mpofu: The public knows, I mean, it's very clear now we had a Public Protector who was not security cleared, who was not an advocate, at least as defined in the current law. And what are you a professor of?

Prof Madonsela: Adv Mpofu, I signed... I’m a professor of law.

Adv Mpofu: Which law?

Prof Madonsela: I am a professor of... I’m appointed as a chair in Social Justice, as the affidavit says.

Adv Mpofu: No, yes...

Prof Madonsela: And the affidavit did not claim that I am an advocate. But again, there’s a role of advocates in this country. If you want to know whether I am registered as an advocate you just need to find that out, but I find your conduct unethical, that you keep trying to threaten me with reporting me. Let's just deal with this case and stop these threats. Let's just deal with this case. Let me answer the questions, and let’s finish this business and stop with these subtle threats. You’re not bullying me.

Adv Mpofu: Okay, ma’am.

Mr Malema: Chair, Chair, Chair?

Chairperson: Hon Malema, I see your hand again.

Mr Malema: No, but when you say you are satisfied with the answer and then if I'm not satisfied with the answer, what happens? Because if these people are answerable to you and you are satisfied with the answer, why are you not taking them to your dining room? Because we’re here also, we’re not satisfied with the answer. So what happens when we’re not satisfied with the answer? That everything satisfies you, then automatically it means we are satisfied ourselves. That question is very relevant for us who are going to be making follow-ups on this question. So, please, you can't say that you’re satisfied and then we must move on. What happens to some of us who are Members of this Committee who are not satisfied? And who must be satisfied through you. But Chair, please, can we get an answer for that question, that you say you are satisfied, as if we are here to satisfy you...

Prof Madonsela: Chairperson, my answer remains...

Chairperson: No, no, no, I’ve not recognised you Adv Madonsela. I've not recognised you.

Prof Madonsela: Thank you, Sir.

Chairperson: Hon Malema, please conclude. Hon Malema, please conclude.

Adv Mpofu: Chair, maybe it looks like there was an interference, Chair. Maybe he’ll come back when we... once he is reconnected.

Chairperson: Okay, he’s frozen. That's okay, Adv Mpofu?

Adv Mpofu: Thank you, Chair.

Chairperson: Sorry, Adv Mpofu. Hon Maneli?

Mr Maneli: Thanks, Chair. I just want to for purposes of clarity. So that we understand if we understood it the same. And this is because interjections before, when you tried to come in between witnesses and what is raised by the legal team, have been that you should be satisfied that the witness has responded. It's not about you being satisfied as a person, with that response. So I'm just saying you need clarity on that, because it'll come back again. I don’t think it’s about you being satisfied, because you're not asking the question. The question is asked elsewhere, and there is a response to the question. You may not be happy with the answer, but the question is whether there’s been an answer to that question. And if that answer is not there, surely the follow-ups have been made, as to try and establish the answer to such a question. So I'm just saying, Chair, so that it helps us to also make progress. Thank you, Chair.

Chairperson: Thank you, Hon Maneli. There has been an answer, not once. Hon Sukers?

Ms Sukers: Yeah, Chair. I also just want to add, Chair. The witnesses cannot become the subject of this Enquiry. And we cannot subject witnesses continuously to intimidation. And earlier there were insults hurled at the witness, currently providing evidence. We cannot do that. It goes against the directives that this Committee has accepted. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. Hon Malema, are you back?

Mr Malema: Yes, I got cut when I was still posing my question. And then Ms Madonsela spoke, and I was not talking to her. She must not say that she can’t be bullied by people and think she can bully us. I was talking to you, and I was going to expect an answer from you. She just abruptly interrupts me – and says, my answer remains. And then that’s when I got cut. I was not talking to her. I was talking to you. And I was saying to you, how do we proceed in that regard? Please, no one is bullying her here. And she’s not going to bully us. Staying at Stellenbosch does not give anyone any right to bully us. It's not going to happen, that one, never. It will never happen to some of us.

Adv Mpofu: Chair?

Chairperson: Are you done, Hon Malema?

Mr Malema: Yes.

Chairperson: Thank you. Thank you, Hon Malema. You got cut and frozen. Members are still going to have an opportunity to interact themselves directly with the witness. For now, it is an interaction between the witness and the legal team of the Public Protector. So we're still going to allow that, but I repeat, and I've been directed properly that I'm satisfied with the manner that the witness has responded. Not once, on the issue. It might not be an issue that from the one who’s listening that it’s not satisfying in terms of what has been asked, but she has tried to respond to the matter. Adv Mpofu?

Adv Mpofu: Yes. Thank you, Chair. No, she has tried, but she has not succeeded. I'm saying, Chair, you know, just to assist Hon Maneli. Your role as Chairperson is not simply to be satisfied and I think I've said this before, to be satisfied that somebody has moved their lips and they’re speaking. For example, if I say are you an advocate. And the person tells me the score of the Kaizer Chiefs game yesterday. You might be satisfied that they’ve responded, because they have, but you should be satisfied as to whether they answered the question. That's really your role, because to be satisfied that someone has responded means that people can just come here and do anything.

Chairperson: Which you know is not the case...

Adv Mpofu: And that’s why I wanted to understand. No, Chair, in fact you’re quite right. So I wanted to understand that you are satisfied that she is refusing to answer that question, which is crucial. You know, the very first question, the very, very first question I asked this witness this morning, was whether I should refer to her as Professor or Advocate, and she said I can use both. And I'm simply wanting now... given the demonstrable lack of knowledge of the law and the regulations, to establish whether indeed, particularly the issues that have to do with affidavits. And I was really asking that, Chair, not to embarrass the witness, but simply as I said, to know whether any allegations against her should be referred to the Legal Practice Council. There would be no point in doing that if she’s not registered with that body. But it’s fine, Chair, the public, I think, will make its own conclusions. I don’t want to waste time on this. So Ms Madonsela, the policy that you signed says... can you go to, I think it’s... yeah, in the policy itself now, which you initialled every page. Thanks. It's 4.3.5.1.1, yeah, you people at the Public Protector know how to number documents, 409, 4.3.5.1.1. Okay so it tries to cover the... it says, “All employees, contractors and consultants of PPSA, who requires access to classified information and critical assets in order to perform his/her duties or functions, must be subjected to a security vetting investigation conducted by the State Security Agency in order to be granted a security clearance at the appropriate level”. “The level of security clearance given to a person will be determined by the content of or access to classified information, entailed by the post already occupied or to be occupied in accordance with their respective responsibilities and accountability”. Then “A security clearance provides access to classified information subject to the need-to-know principle". I'm just paraphrasing, the essence of that is that people who are going to have access to sensitive information must be subjected to security vetting investigation. Is that a fair summary?

Prof Madonsela: No, it doesn’t say people it says staff, it says personnel.

Adv Mpofu: No, I didn’t say that, but it said...

Prof Madonsela: It doesn’t say people, Sir.

Adv Mpofu: Yeah, it doesn’t say staff either. It says “employees, contractors and consultants” and those are people, human beings. You understand? So I'm saying those employees, contractors and consultants, those people who require access to classified information must be subjected to security vetting. Is that a fair summary of what the policy that you signed requires?

Prof Madonsela: It speaks for itself, Sir. Yes.

Adv Mpofu: Yes, thank you. Alright. And now... Alright we’ve already established that you signed this, because its absence was seen as a deficiency by the Auditor-General, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Good. Right, okay. Then, I think, yeah, we’re making some progress. So no security clearance... and no advocate. So the next issue that you deal with in your statement is after this of being spied on, you say... or no, before we leave that. You indicated that at some stage when you were dealing with, I think CIEX, you had a document in London, which arrived from SSA that you had given to DIRCO. Am I right, is that a fair summary?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Yes, and why did you give that... why did you not travel with that document yourself to South Africa?

Prof Madonsela: Because the documents were bulky. These were documents from Mr Oatley. And the person whose name I have on my minutes of the 15 October 2015, and had sort of substituted an investigator for me, because I was alone in the meeting with Michael Oatley.

Adv Mpofu: Okay, so you gave them, those documents away because they were bulky. That’s basically the...

Prof Madonsela: It was some of the bulky ones, like lever arch, if I'm not mistaken, and I took the ones that I could take. But what was, what we agreed, the bulk of the documents – it's a box. I didn’t have that box, that box was provided by Mr Michael Oatley... But I don’t know where this is going, Chair...

Adv Mpofu: Yeah. No, okay. I think that’s your problem really. You mustn't worry about where anything is going to. Just answer the question, that’s all.

Prof Madonsela: I don’t worry, Sir.

Adv Mpofu: Yeah, well. Yeah, okay. Then don’t tell us if you don’t know where it’s going. Yours is just to answer questions. Alright, then you say at 9.6, “We worked as a team building and executing systems that tried to balance rigor with promptitude, gave priority to what we referred to as Gogo Dlamini cases while ensuring that the investigation standard applied and duty of care was uniform”. This is a term that you’ve used, again, in the public domain. So even I would know, but just for the record when you talk about Gogo Dlamini, you are indicating really, you are differentiating the ordinary South Africans as opposed to some of the high-profile people that you deal with. Just ordinary South Africans effectively with nothing much, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Yes?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Thank you. Now the... we had here, two Gogo Dlamini’s, except that they were males. So I'll call them “Khulu Dlamini”. And both of them... or at least one of them said that you took eleven years without resolving their problem. Would you categorise that as giving priority to what you refer to as Gogo Dlamini? And maybe, before you answer, so that we save time. The other one was a real “mkhulu”, he was 80 years old, and he was here. And as I indicated last week, he cried tears, because he says you ignored him when he told you that he had been assaulted by a member of your staff, Mr Samuel. Would you agree that at least from the evidence before this Committee, the Gogo Dlamini’s that we’ve heard testifying here have had only praise for Adv Mkhwebane? Who in both cases intervened on their behalf, ordinary people, but they gave us horror stories about your lack of response to them. I'm saying that in relation to your claim of giving priority to Gogo Dlamini’s. You'd agree that... and I want to give you an opportunity to deal with it. That doesn’t give us an impression that you prioritise Gogo Dlamini’s. Actually, it gives us the impression that you terrorised them.

Prof Madonsela: I knew you would want to assert this in the back door. These are two of the cases that I had objected to being asked about. And I asked whose impeachment enquiry is this, given the fact that these questions are about my conduct. And they also are selective cases, but nonetheless, because you have decided that I am on trial, despite the fact that this Committee said I did not need legal representation, because I'm not on trial. I will answer you.

Adv Mpofu: Thank you.

Prof Madonsela: We gave priority to Gogo Dlamini cases as an institution and that’s what my affidavit says. We gave priority to Gogo Dlamini as an institution. Giving priority to Gogo Dlamini does not mean you will summit in relation to each case at the time you choose to summit. For example, in November or it was in December, when I was at UJ, a student came running to me in front of the other students and insisted she wanted to take a picture with me, because I am the reason she’s at university, because her mother was part of a group of employees that had been dismissed that I gave their jobs back. I didn’t know that. So it's just one example of Gogo Dlamini, and of this child, who I've now, I took a picture with because she has taken law, because I dealt with their case. They were traffic officers, they were Gogo Dlamini’s. So you selected the cases of SARA. SARA is a case of artists. As far as I recall, I did conciliate that... because we gave priority to Gogo Dlamini cases. If you look at my schedule as Public Protector, and this you can get, because the diaries stay back there in the office. You will see that the majority of cases that I dealt with were cases that involved common people, despite the fact that we had an institution that was divided into the service delivery, its access to justice and service delivery as the affidavit of Ms Mogaladi says. And my role was the overall institution, plus special attention maintenance from any of the branches, of all of the provinces, plus the good governance... but I still sat on those cases... So you're going to say if SARA... if the Department of Arts and Culture did not implement the agreement on time, then that means I did not prioritise Gogo Dlamini cases...

Adv Mpofu: Yeah, okay. Yeah, no, no. No, that’s fine. But you’d agree...

Prof Madonsela: No, no, can I finish, Sir? Even the very fact that I got involved was precisely because of prioritisation, because that branch was the Deputy. And at the time that matter started, my Deputy was Adv Shai. And then the other case was a human resource matter. Again, human resources, if you had bothered to ask for institutional documents, you would have found how the structure was shared between me. Again, that matter was dealt with properly according to the institution, in terms of the procedures. And I... this person you showed me, and I did ask you who’s accusing who? Provide me with the documents, you never did. And you talk about lawyers who know their staff. Lawyers provide people with documents; they don’t rely on ambush. If I accuse you, I write to you and say you’re accused on one, two, three, here is the person accusing you, here is the information. And you let people respond properly...

Adv Mpofu: Okay, thank you, Chair. Are you finished now?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Okay. No, that is why madam we were at pains to beg you to consult, so that we could have put these things, but you rejected that offer. But be that as it may. You are now saying that the making a person like Mr Nyathela to wait for eleven years until the current Public Protector came to his rescue is saying that is... that counts for nothing. He just had to wait for eleven years and forever. If your term was twenty years, he would wait for twenty years.

Prof Madonsela: I didn’t say that. There are matters that are resolved, this matter, for example, transcended three Public Protectors. And as far as I recall, because I don’t have the information now. There was one resolution after the very first time I got involved. There was a resolution between the Department of Arts and Culture and this person. And I haven't had an opportunity to get that information, but I do know that there was a resolution. But having said that... I am saying your effort is to try and to resolve these matters. And if at the end of the day they’re not resolved, it doesn’t mean that you haven’t prioritised it, in the same way that there are matters that I have resolved. There are matters that come to me now, where there was a finding of no wrongdoing. There's a case, for example, that I want, because of the names of the people that I was dealing with, and my successor found no wrongdoing. And when I dealt with the department, we’ve moved an inch on something, because there were clearly...files were lost. But the finding was that there was no maladministration, yet this person's files were lost. How can you say... So I'm just saying when you’re dealing with these matters, sometimes the outcomes are in the hands of other people. Yours is to make sure that you assign people. And when you personally need to get involved, you get involved.

Adv Mpofu: Yes, okay. That's fine. The... I won’t bother you with the gory details, but the evidence of Mr Nyathela in front of this Committee is uncontradicted. And I was just giving you an opportunity to deal with it, but you’re telling me about students at the University of Johannesburg, who assume... also fall under Gogo Dlamini. But I'm going to ask you about the specific case then, of Mr Seabi, because you may be right that you rely on others and so on. Mr Seabi, who cried here, said that he told you, not somebody else - that "this person who is chairing your meeting assaulted me". And you said you’d talk to him after that meeting, and instead you just drove off to Thabazimbi. And he says the only thing you did was to take Mr Samuel to the Free State. And there was never any comeback for he’s being assaulted by Mr Samuel. And that evidence is also uncontradicted. Would you agree that that doesn't demonstrate prioritisation of Gogo Dlamini, if you allow septuagenarians like that to... who’s now an octogenarian to be assaulted by members of your staff?

Prof Madonsela: Firstly, that’s not true. That whole story is not true. It's also not true that that matter was never dealt with. Again, when this matter was put among the accusations that now made me the person who’s being impeached, I did ask you the specifications and you shouldn’t say to me I needed to come for consultations. Earlier on you asked me about my practices as a Public Protector. As a Public Protector when people are being accused of things, we wrote long letters to them, indicating specifically what are they being accused of and what do we know. And I do not understand for you being highly paid, why you were not able to write specifically and say what you are accusing me of. Because if you had told me what you accused me of and if you had told me that you would insist in bringing these matters on, I would have then insisted on driving to Pretoria or flying to Pretoria to get these files of what exactly happened. But I do know that what you’re telling, what you’re saying to this Committee is not true. It is just not true; you’re using an old man. And I'm sorry about what happened to Mr Seabi, we do know that there was a matter there, but that matter was dealt with through a proper HR process... the details of which I don’t have at this stage, because I didn’t know you were going to ambush me further with it. We did agree that the focus of this Enquiry was going to be the two cases.

Adv Mpofu: No ma’am. Ma’am, you... your statement says you gave priority to Gogo Dlamini. It's not me who said that. So I’m simply testing the proposition that you make. If you don’t mind. So the... it’s... The old man, if you’re saying that he’s lying, he was not assaulted. Well, I can tell you that there’s a court decision that says that he was assaulted, and Mr Samuel was sentenced for that. And that’s it. So it's not, if all that is made up, it’s either Mr Seabi or the court that found Mr Samuel guilty. I was not even asking you about that. I’m asking you about your careless and cruel refusal to attend to Mr Seabi about which he testified here in a very sad way, about an incident that involved you personally. And if you don’t want to deal with it, that’s fine. But please be assured that it...

Prof Madonsela: Can I... may I respond again, Sir?

Chairperson: No, please allow Adv Mpofu to conclude.

Prof Madonsela: Okay, sorry.

Adv Mpofu: No, I was saying madam that the evidence of Mr Seabi before this Committee, in that respect is not contradicted. And in relation... sorry, Chair. In relation to the issue that you raise of relevance, that is very relevant. This is... just one second, madam. Mr Seabi... you find it at bundle K, Chairperson, page 6456, if you can put it up. He was invited by the Chairperson to make concluding remarks towards the end of his evidence, which as I say is quite... you can be sure there was not a dry eye in this room when he told his story. He said, 6456, “I want to thank you from the bottom of my heart’ - he said to the Chairperson, “I know that now I will be at ease. I could not report people like Adv Madonsela anywhere. You gave me a platform and I know that my case is being attended to”. To which Hon Siwela then said, “Adv Madonsela will be part of those who will appear... as the Hon Members have said, but we condemn the issues of violence”. And to which, Hon Dlakude said, “Regarding Adv Madonsela, we will handle that on your behalf”. And to which Hon Nqola said, “In that regard... is that Adv Madonsela is due to come and appear before the Committee. We will surely ask that question on your behalf”. So there’s no doubt about the relevance of what I'm raising to the issues that are before this Committee. So all I'm saying is, do you have an answer or not, to the allegations that you are complicit in the criminal assault of Mr Seabi by Mr Samuel?

Prof Madonsela: Two answers. The first one is this is another low, even by your standards. Firstly, you are making...

Adv Mpofu: Chairperson, please. Okay, no. Wait, wait.

Chairperson: Okay. Just pause, Adv Madonsela. Adv Mpofu?

Adv Mpofu: Chairperson, yeah. I'm not going to tolerate this forever. If you allow this witness to insult me as she has been doing, then I'm going to have to deal with her myself. And it’s not going to... it will be ugly. Let's just say, on both sides.

Chairperson: Just pause. Just pause there, let me attend to the issue.

Adv Mpofu: Yeah, I'm not here to be insulted by a witness... And what is your problem Mr Mileham?

Chairperson: No, no, no. Leave that...

Adv Mpofu: No, he must not do that. Don’t do that, okay?

Mr K Mileham (DA): Chairperson?

Chairperson: Adv Mpofu...

Adv Mpofu: He must not do that. I’m being assaulted here and he’s laughing, giggling.

Chairperson: Adv Mpofu, you not...

Adv Mpofu: I’m being insulted and he’s giggling.

Chairperson: Adv Mpofu...

Adv Mpofu: Please, Chair. Protect me from both the witness and from the likes of Mr Mileham, the husband of the complainant.

Chairperson: I’ll attend to both issues. The first one, let me start with the... Switch off your mic, Hon Mileham. I didn’t recognise you. I would want you when you... to speak through the Chair. So we avoid...

Adv Mpofu: Yes. No, sorry. I was addressing you.

Chairperson: I would want you to register that point and then I attend to it as a Chair. But the problem you do, you attend to it yourself and it doesn’t help.

Adv Mpofu: Well, Chair, because you’re failing to protect me.

Chairperson: Then you are making another statement, which is also not correct.

Adv Mpofu: Okay, I'll leave it to you.

Chairperson: I’m going to ask, firstly, Hon Mileham, let’s keep our calm and not even try and interject. In the House we do that, but this is just another platform... about whatever, because if you have something to raise, raise your hand and raise the matter. So that we avoid this issue. I'm not saying raise your hand now. I'm saying when you have to raise something, that’s what you do. I'm not there now. To Adv Madonsela, maybe it might be important, I know that there’s been a lot of exchanges between yourself and Adv Mpofu, to refrain from that kind of language of this is “a low” or another “low” from you. I would want that you tone down on that language...

Adv Mpofu: No, Chair... I’m sorry, Chair. That's not...

Chairperson: What are you doing? I’m on the platform. I'm not speaking to you, even for that matter.

Adv Mpofu: Okay, but that’s not the insult.

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

Adv Mpofu: Okay, Chair.

Chairperson: So Adv Madonsela, I'm asking that you tone down on that kind of a strong language. And I'm going to be asking everybody to do that in the process. Hon Sukers? I’ve noted your hand.

Adv Mpofu: Chair?

Ms Sukers: Yes, Chair. No. Chair, you've actually covered that by saying that you are saying it to everybody, because as I referred earlier. Even the exchanges prior, the subtle intimidation of the witness. The witness has now twice, I think thrice, spoken of the fact that if she is under... if she is a subject here of the Enquiry, then she needed legal protection or she should have consulted with her legal, with her lawyer. So the issue here, Chair, is Adv Madonsela is not the subject of our Enquiry. She is not. And I would like it to be noted, in terms of the time, because we have not progressed to the two cases that has been the focus of this testimony - why Prof Madonsela is before the Committee.

Chairperson: Thank you, Hon Sukers. I am watching that space, but I was also happy with the fact that some of the issues raised are arising from the statement. So it's important that we don’t just rush that aside. And Adv Madonsela is competent enough to respond to those issues. But I take your point about issues of subtle threats and intimidation. Hon Mileham?

Mr Mileham: Chairperson, I would like to point out that I did not laugh at Mr Mpofu. I made a comment, quietly. And my comment arose, because Mr Mpofu threatened a witness. He said - I will deal with it myself and it will be ugly. And Chair, that is absolutely unacceptable in a Committee of Parliament and I'd ask that you deal with that matter, Chair.

Adv Mpofu: Okay, Chairperson?

Chairperson: Thank you, Hon Mileham. As I also get back to you, I'm also going to be asking the same.

Adv Mpofu: No, you can’t ask the same. I'm the victim here.

Chairperson: Wait, wait...

Adv Mpofu: I’m being insulted.

Chairperson: Wait, Adv Mpofu.

Adv Mpofu: That’s the same for what?

Chairperson: You’re going to have to tone down your language here, Adv Mpofu. You're not going to be treated special at any time. So whatever I've just asked Adv Madonsela to do, I'm asking you also to do that. You can’t expect special treatment from the Chairperson. I'm addressing both of you. Please proceed.

Adv Mpofu: Thank you, Chair. All I'm saying, Chair, is that when I'm being insulted by the witness, you can’t say that you are addressing both of us, because I have refrained the whole day. I've been patient. I did not insult this witness. I did not intimidate her. I'm simply saying, if you fail, as you have dismally, to protect me from her insults, then I'm going to have no option but to do it myself. It's called self-defence. I cannot be just insulted at will by anybody, including the witness, you, any human being alive, okay? So my lack of response must not be mistaken for not being able to do so if I want to, please.

Chairperson: Yes. Let me just indicate this, and I'm going to say it once. Whatever self-defence you want to do, it would be outside of this Enquiry.

Adv Mpofu: No...

Chairperson: In this Enquiry there’s a Chairperson that will direct proceedings and who does everything.

Adv Mpofu: Who’s supposed to defend us...

Chairperson: You might feel that you don’t feel protected. I'm playing a role that the Chairperson must play, which must be fair to everybody. If you have to do, initiate self-defence, it will be outside of this Enquiry. Thank you.

Adv Mpofu: Okay. No... Anyway, that’s fine. Thank you. Madam, when you say even by my standards, what do you mean, what are those standards? Other than the intention to insult me and my professional integrity. What are the low standards you’re referring to? Because that’s not... The Chairperson did not address the actual insult, I tried to assist him. So I’m going to ask you to answer that question.

Prof Madonsela: You have insulted me. You have berated me. You have ambushed me. You have threatened me. That I considered low, but out of respect for you as a fellow professional, and out of respect for the Chair and his ruling and to this House, I have withdrawn the statement about it being low.

Adv Mpofu: You’ve only withdrawn that part, but you don’t withdraw the rest of it?

Prof Madonsela: No, you have insulted me, Sir. You have berated me, you have threatened me.

Adv Mpofu: You have not insulted me? Have you insulted me?... No, I'm asking ma’am, have you not insulted me today, since the morning and I've appealed to the Chair?

Prof Madonsela: Sir, I didn’t argue that I had not insulted you. You said you’ve not insulted me, you’ve not berated me, you’ve not threatened me. And I'm saying that’s not true, you’ve done all of those things. And you have ambushed me, which legally is improper. You understand administrative law, but if you are going to be accused of something, you need proper notice and time to apply your mind. You're asking me about things that happened six years ago, with no information given to me now or in advance.

Adv Mpofu: Thank you. Alright, yeah. Anyway. I think as the Chair said, everything I've asked you arises from your statement. Now the other issue that you’ve referred to is the OR Tambo Declaration on Minimum Standards for an Effective Ombudsman Institution. We had evidence about that from Hon Zulu-Sokoni, whom I understand you know her?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Yes. Alright. We'll come back to that one. I just want to go to the remaining third. As I said your statement was 66% or 66.6% to be exact, made up of these sections that you called context, both of them. So let’s deal with the remaining third of your statement, which is part B thereof. Now you’ve testified that you were the lead investigator in the CIEX matter, correct?

Prof Madonsela: At the beginning, as it says in the statement.

Adv Mpofu: No, there’s no such thing as beginning. It says, “I was the lead investigator on commencement, only working with a Trainee Investigator and when he left for the NPA, the investigation was stalled until I was given a young investigator, who had just been promoted to the status of an investigator”.So in respect of both persons, you were the lead investigator, correct?

Prof Madonsela: At commencement means the same thing as at the beginning.

Adv Mpofu: Yes, ma’am. And then you say after that, after the commencement or beginning or start, the investigation... you were given another investigator who had just been promoted. Were you the lead investigator even at that stage, which was no longer commencement?

Prof Madonsela: It was now at this stage shared, because he did some of the work. And I was there only for...

Adv Mpofu: Yes, I know that...

Prof Madonsela: You see, can I explain what is a lead investigator? A lead investigator is the person who will draft the rudimentary report. So before I had Adv Livhuwani, I did the document drafting and the initial document that I was consulting with was drafted by myself. But once I had somebody who was an investigator, that’s why the report writing and scheduling of meetings went to...

Adv Mpofu: So is your answer then that when you were given a young investigator who had just been promoted to the status of investigator, that person was the lead investigator or you?

Prof Madonsela: It was a shared...

Adv Mpofu: Okay, were you a co-lead investigator?

Prof Madonsela: I would say that. I wrote that it was an outlier, because it had never been done that the Public Protector does an investigation, because as Public Protector you don’t have the time to do that. So he was sort of the main, but with me there every step of the way. I think, yes, to say we were co-investigators would be fair, except that he was more main than me, because the rudimentary documents now fell on him, whereas when I was still with [Tavernay] the rudimentary documents still fell on me.

Adv Mpofu: But the investigation was virtually being conducted by you?

Prof Madonsela: It was co-conducted by me and this young investigator, who has appeared before this Committee.

Adv Mpofu: Yes, but your statement says the opposite ma’am. You said in 7.1, “The CIEX investigation was an outlier in that it was the only investigation that was directly supervised by and virtually conducted by myself as Public Protector”. Which is just the wrong grammar, I'm sure you wanted to say “by me”, conducted by “myself as Public Protector". I'm saying that the... Is that statement a fact or are you now changing that?

Prof Madonsela: So that’s again... When we start talking again about pointing each other's mistakes, just be sure that you’ve started again and don’t be offended if it’s brought back, okay? As I say, it says “virtually”, so virtually doesn’t mean exactly.

Adv Mpofu: You’re threatening, why are you threatening me now? With bringing back whatever you want to bring back.

Prof Madonsela: I’m just letting you know that virtually means exactly that. Like I'm with you now virtually.

Adv Mpofu: No, come on. It doesn’t mean the same thing. That... Okay, that’s fine. But you accept that the investigation was conducted, was virtually conducted by you as the Public Protector?

Prof Madonsela: Yes, that’s what I’ve said, Sir.

Adv Mpofu: Right. Okay. So no, it’s what you did not say. But I pointed it out to you, it’s fine. And as far as the CIEX investigation is concerned then, made it quite frankly unprecedented and even unsucceeded, because I can assure you that I don’t think any other Public Protector including you had ever conducted an investigation at that level, or even after you. Now, so you might want to explain to the Committee why such a... Okay, sorry, let me ask it like this madam. Would you agree that as a matter of policy it is undesirable that the Public Protector himself or herself, does the investigation, but that it’s better for them to supervise? That's the structure of the Act.

Prof Madonsela: No, that’s not true.

Adv Mpofu: Okay, so you think it’s... Alright, so why then has it never happened in the history of mankind, that the Public Protector investigates himself or herself at that level? And you say at 7.2, correctly, “Before then no investigations were conducted from my office and no other was”. So why was that practice or policy or culture developed?

Prof Madonsela: Okay, when I said before then I meant during my time. So I’m sorry that I didn’t explain that I'm talking about my time, that before then I had never conducted an investigation and... I had personally done investigations before... as Public Protector. And after this there was no other investigation that was conducted by myself. I cannot speak for what happened under Adv Mushwana or Baqwa, who dealt with the arms deal and other investigations. I would be lying if I said I know that they never conducted any investigation.

Adv Mpofu: Okay, but at least you know that you never conducted an investigation before the CIEX one.

Prof Madonsela: I said so, even the “virtually” that you now came to have corrected me. It is in my affidavit, Sir. I said on my own affidavit that this was an outlier. An outlier is an unusual thing, something that is out of the ordinary, because it came out of extraordinary circumstances.

Adv Mpofu: Yes, that’s what we’re getting to ma’am. I'm saying that the... an outlier it’s like an exception to the rule, correct?

Prof Madonsela: Exactly.

Adv Mpofu: Yeah. I'm saying this was not an outlier as such. It's something that had never happened, either before or after the CIEX investigation, at least during your term. You're quite right that you might not refer to other people’s terms, but it was unprecedented and unsucceeded by anything like it, correct?

Prof Madonsela: As in calling it an outlier. I hope you don’t intend for us to get dictionaries to define outlier.

Adv Mpofu: Okay. I thought I'm avoiding, ma’am, the dictionary. Let's just use simple English. Before this investigation or after it, you had never conducted an investigation yourself, yes?

Prof Madonsela: In the office where I do the groundwork, yes.

Adv Mpofu: Thank you. Alright. Now, and... Now let’s go to the reason that you give at 7.3, you say, “The reason for the anomaly was that the request by Adv Paul Hoffman SC, to have this investigation conducted was rejected on grounds of the fact that the matters it dealt with preceded the genesis of the Public Protector”. Who rejected it?

Prof Madonsela: There was an intake and assessment committee, and then it also then goes to the Think Tank. So it was... it would have been rejected by one investigator and it went to the team, which is the assessment committee and then it would have then gone to the Think Tank that also said no.

Adv Mpofu: Okay, so effectively that’s what happened. This was rejected by an investigator applying the policies of the organisation, and also rejected by the Think Tank, and you basically overruled both those structures... well, the person and the structure, correct?

Prof Madonsela: I did, but this is what I did, of course, you go back to the committee and say there’s additional information. What you didn’t pick up is that there’s this statement and the statement that I made this morning. It wasn’t just they made a decision and then I overruled it. It was a decision was made then I travelled to Barcelona and met Adv Paul Hoffman who gave me additional information. And then I asked him to supply the additional information. And given the workload that people were already battling under, and the fact that at this stage he seemed to think that there was no investigation that was going to be required, I then took it. So it wasn’t just overrule arbitrarily, it was after additional information I was persuaded that this could be done.

Adv Mpofu: And you did not think it would be...

Prof Madonsela: And I was wrong...

Adv Mpofu: Yeah, yes. No, I know that. You did not think at that stage that you should have then taken it back to the people who rejected it?

Prof Madonsela: Well, of course it gets taken back. You don’t just make this arbitrary decision. Nothing was ever done from my office; it still goes back to the registry. But I request that we accept it on the grounds that I am going to do it. So it didn’t just go into a little corner in my office, it went back again. Adv Paul Hoffman, that’s why you’ll see the new request, is late dated... I think it’s not dated in 20... Oh God, I'll have to look at my notes. He had to resubmit the investigation. But again, that we can get from the files, from Ms Sekele, who was responsible, I think, at that stage for intake assessment and customer service. Nobody did things in a little corner during my time.

Adv Mpofu: Okay, so whether it was a little corner or a big corner, the issue is that you saying that, “There were also concerns regarding the efficient use of resources given lapse of time making this a cold case compounded by prescription rules regarding the recoverability of relevant funds”. So not only was it rejected on the basis that it preceded even the promulgation of the Public Protector Act. Do you think you have the right to conduct an investigation for a matter than even precedes the promulgation of the Act?

Prof Madonsela: No... No, definitely I don't. That’s why my original report does not read like this report. I never investigated whether the gift was a gift, whether it was a lifeboat, whether it was loan, whether it was corruption or not, no. Even though some witnesses took me through that, like Judge Bertelsmann and others. I was clear that my investigation was what happened in 1998. My investigation was not whether it was a loan, a lifeboat, theft or gift. My investigation was simply on receipt of the CIEX report, did government act properly.

Adv Mpofu: Okay, so you...

Prof Madonsela: And I had made a way that it was not going to be an investigation at that start. It was the...the thinking or the impression that I was given by Adv Paul Hoffman, was that it was going to be something that is almost like a mediation. By the way, with Public Protector investigations when it’s conduct failure it would not be mediated, but if it’s service failure then it could be mediated.

Adv Mpofu: Okay, you’ve just said that your investigation was not whether it was a lifeboat or a gift. I'm putting to you that that is false.

Prof Madonsela: Well, you can put it to me that it was false, but I will tell you that I didn’t investigate whether it was a lifeboat or a gift. I was investigating the conduct of government.

Adv Mpofu: Okay.

Prof Madonsela: At the point at which the CIEX report... That’s why they called it the CIEX investigation, because it was all about what happened. In fact, I can share you my notes with Michael Oatley. You will see that my concerns with Michael Oatley, with all of these people, actually, my concern was about what happened at the...

Adv Mpofu: Yes, okay ma’am...

Prof Madonsela: Can I just finish the sentence? What happened when Michael Oatley approached the government of South Africa as a bounty hunter, so to speak? And what happened at the point at which he submitted this report, which was different from what he was contracted for, by the way. But I still wanted to know what happened. And if what happened is not what should have happened, and then the implications financially thereof. It was always with the view that possibly some mediation would take place in this matter, which was my style, by the way, on some of these matters.

Adv Mpofu: Okay, thank you ma’am. I'm just going to ask you one thing. You've now twice said this here. Now can you tell us, you know that you had that well-known style of naming these reports, “Secure in Comfort” and those kinds of things? What did you call this one of CIEX?

Prof Madonsela: They hadn’t named it yet. Remember I didn’t leave an approved provisional report?

Adv Mpofu: Yeah, okay. I'll tell you when you come back, that you named it “Lifeboat or Gift”, which is what you’re saying you did not investigate, but we’ll deal with that after tea.

Chairperson: Thank you. Thank you, Adv Mpofu. Thank you, Adv Madonsela. We will pause for 10-minute break for tea, and back eight minutes to four.

[Tea break]

Chairperson: Welcome back, colleagues. As we finish our teas where we’re sitting, let's proceed... Thank you, welcome back. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Ms Madonsela, I was showing that the report... you know Adv [Livhuwani] Tshiwalule?

Prof Madonsela: Yes, Sir. He was the investigator that I ended up working with.

Adv Mpofu: The young one?

Prof Madonsela: Yes, brilliant young one.

Adv Mpofu: Yes. Now he told us that the draft that you left behind... and to be fair to you, you did say that this was not a provisional report in the sense that it was an approved one. I take that point, but the draft that you left behind, because as we know you did not finalise this report, contrary to your intentions to do so by the time you finished your term, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Yes. Now if you go to... okay, you’re going to have to help me here. Adv Tshiwalule’s statement... it’s bundle D, I want specifically to go to 3222. I’m told it’s item 15.

Prof Madonsela: Okay, you can flight it.

Adv Mpofu: Alright. Just go to the end, we’ll come back to the beginning. Just go to the... right to the end. Sorry, that’s 3279. So that’s the draft, which as you correctly pointed that you did not sign, because there were still outstanding issues and so on. But it indicates your name and his, correct?

Prof Madonsela: Yes.

Adv Mpofu: Right. Now you testified before tea that you never investigated whether this was a lifeboat or gift. And I was telling you that that is false and if you go to 3222, do you see what name did you give to that report at roman one, can you read it out?

Prof Madonsela: This was a name that was given by Adv Tshiwalule. You went to the end of the report Adv Mpofu, all Public Protector reports look like that, regardless of who investigated them. It has the name of the Public Protector and the name or names of the investigators as assisting parties.

Adv Mpofu: I know.

Prof Madonsela: So that doesn’t mean it was my report. In fact, reports that I hadn’t seen would have had the same ending. So that’s not true, that's simply because Adv Tshiwalule who states very honestly that I had asked him to fix certain things. But also it was my style that after they had fixed certain things...

Adv Mpofu: I think she’s gone.

Chairperson: Are you there? You muted, you’re muted, Adv Madonsela. Unmute yourself. You are muted.

Prof Madonsela: I think somebody else muted me. I was just finishing a sentence, that my style, which can be confirmed by everyone, is that once they had written and I had made certain comments of things that they themselves can change, then the final report would be done by me. And literally sitting behind my laptop modifying language where appropriate. And of course, then it would also still go to the quality assurance team. It would not go to the Think Tank sometimes... but it would certainly go to the quality assurers. So I didn’t investigate the lifeboat, but here’s the thing, Sir, the fact that the title says, “Lifeboat or Gift”, does not necessarily mean you investigated the essence of what happened. You are still investigated the essence of... if let’s say it was a lifeboat, why was there no collection, because all we were looking at and you will see with the set of questions that we asked. And I refer you to what is online now, is my interview with Chris Stals, it’s fully online.

Adv Mpofu: Chair, please...

Prof Madonsela: And then you’ll get what I said to him I was investigating, because he had been the governor of the Reserve Bank at the time this happened.

Adv Mpofu: Ma’am.

Chairperson: Okay. Just pause, Adv Mpofu. Adv Madonsela... Firstly, before I intervene as a Chair, I'm going to ask you Adv Mpofu, because once you start that conversation you remain in charge of that, so that when you ask her to or when you want her to pause at a certain point, you have to do that or indicate. It’s only when that is not happening then I’ll come in, because I don’t want to disturb the flow between the two of you.

Adv Mpofu: Yes. Yes, I understand that Chair. Okay, ma’am do you even remember what the question was or what I asked you to do?

Prof Madonsela: The question was... It wasn’t a question; it was an accusation...

Adv Mpofu: No...

Prof Madonsela: That it’s not true that you say that you did not investigate the lifeboat. And I said that you are not.... you are the one who is incorrect.

Adv Mpofu: Yes. No, it’s fine. I think, no, it's understandable you forgot what the question was, and I don’t blame you. All I said was whether you could read what the title of the report was.

Prof Madonsela: I could read the title. And then you accused me of being responsible for that title. And I was telling you that, no, I was not responsible for that title.

Adv Mpofu: Alright. Now, okay. Let's do it like this. When you received this draft, let’s go... I'll just take a random example. And I think you’ve just described it. Go to 3242, the bottom. So those remarks on the right, those would be your corrections and additions, correct? Or your comments.

Prof Madonsela: No, these are... comments by someone, not me. I don’t think...

Adv Mpofu: When you say, “What is the figure”. Well, according to Adv Tshiwalule, he sent these drafts to you, and you were working on them. And he agreed with you that you had not finalised, you were still raising certain issues. So he never said he sent it to anybody else. So those comments would be yours. And according to your evidence it was only you and him, you were the co-investigators. So let’s not waste time on this. Those reports... those comments were yours, correct?

Prof Madonsela: If they’re mine, they would say that they’re from me. Usually, the computer says whose computer it is from. My comments were extensive towards the end, and they were not cosmetic.

Adv Mpofu: Alright. Okay, that’s fine. If there were only two of you...

Prof Madonsela: Well, I don’t know which version is this one. It's certainly; I wouldn't have done the cosmetic.

Adv Mpofu: Alright.

Prof Madonsela: But I also don’t understand where this is going, because the Constitutional Court has ruled on this matter. Are we going to try and review that ruling?

Adv Mpofu: No, we’re not going to. And I told you earlier, as a witness it’s not your duty or obligation to say where the questioning is going, that’s my duty. Yours is to answer the question. All I'm saying is that what you’re saying now is startling, so say the least. You testified that this was a so-called outlier and that means that you and Adv Tshiwalule were co-investigators and nobody else. That also coincides with his evidence. And now I'm saying to you there is a comment for example at 3242 which says, “What is this figure”, something about 1.5 million. So he could not be asking himself that figure, that question.

Prof Madonsela: Did you ask him? Did you ask him who asked this question? Because investigators...

Adv Mpofu: Yeah, he did say. Yes, he said like you said that it was only the two of you. So who else?

Prof Madonsela: He specifically said in his statement, Sir, that on his last day, three days before I left office, he submitted the final report, which I responded to. So where is that version, because that would have been the only version that should be material?

Adv Mpofu: No ma’am. Okay. Okay, you know, really, I think you’re just...

Prof Madonsela: That is in his statement, Sir.

Adv Mpofu: Okay. Alright. In your estimation, just as a matter of logic. If it was you and him only involved in this and he made a draft, and the other person commented and asked about figures. Who else could it conceivably be other than you?

Prof Madonsela: Towards the end, he does say that... Towards the end some of the other, the quality assurance people, we would ask them questions. And I wouldn’t be surprised if he asked somebody who was a quality assurer, these questions, because these are more technical questions. My questions were substantive questions.

Adv Mpofu: Alright. Anyway, the point I want to make is a simple. When you received these drafts, you made comments yourself. Let's assume these ones were not yours. You made your own comments, correct? You did?

Prof Madonsela: I did. And usually by hand, actually.

Adv Mpofu: No, ma’am...

Prof Madonsela: Usually it was by hand.

Adv Mpofu: Yes, okay. And in none of those comments that you made, did you change the name of the report from “Lifeboat or Gift”, correct?

Prof Madonsela: We changed the names at the end, and that you can confirm with the team, because that was not... we were not in a hurry. Some of the names would actually change hours before we release it, like “Secure in Comfort”. The answer came as we... Yeah. So, no, we wouldn’t be bothering about names at that stage.

Adv Mpofu: Okay. Alright. So it would seem therefore that your evidence that you did not investigate whether this was a lifeboat or gift is false, because that’s exactly what it was. That's the first impression or the very first three words.

Prof Madonsela: Adv Mpofu, may I just clarify once more?

Adv Mpofu: Yes.

Prof Madonsela: You asked me when we started, that with this matter having been rejected by my staff - a proper intake and assessment team, with me having signed, because when they reject, they don’t just send it, I sign, and I agree to the rejection. Why did I investigate it? The only way I could investigate it was if there was a coincidence between our remit and what we were trying to do. And you must realise that, as you can see in the report, we interviewed so many people. They themselves would ask us, what allows you to investigate this matter? Given the fact that you were not born before it started. And then we would explain to them that we’re investigating from 1998. And I have said to you, instead of me and you haggling and tackling about what exactly was I investigating. One of the key people that unlocked this matter was Chris Stals. My interview with him is fully online, just check it out.

Adv Mpofu: No, that’s fine. That's your answer, that’s your answer. I was just pointing out to you, that was the title of the thing. That's fine. Then you say at 7.4, that you were persuaded to take this case on, irrespective of all these weaknesses. “When the complainant...” that would be Adv Hoffman, “assured me that it would be a slam dunk...” now that’s slang for saying it would be easy... it would be something that was not going to take long, correct?

Prof Madonsela: Yes. I apologise for the language, Sir.

Adv Mpofu: No, that’s fine. I think we all know what that slang means, but it’s fine. The... yeah, there’s a whole thing about slang in affidavits, but that’s fine. Okay, that it would be a slam dunk in that there “were documents indicating that the debt was admitted and funds set aside by the bank at the centre of the complaint”. I don’t know what that means. What were you trying to say there? Just... You wanted to say, “were at the centre of the complaint”?

Prof Madonsela: I was persuaded to take it when the complainant assured me that it would be a slam dunk, in that there were documents indicating that the debt was admitted and funds set aside by the bank, at the centre of the complaint.

Adv Mpofu: Yes. No, I understand that. I'm saying how can that make any difference? If it’s illegal or rather if it’s against the Act or if it predates the Act. Whether it’s a slam dunk or not a slam dunk, cannot be a reason for you to investigate something that is... that falls outside of your jurisdiction.

Prof Madonsela: That’s why I have explained to you that with the conversation that I had it was very clear that I'm being asked to investigate the CIEX report, not...

Adv Mpofu: Okay.

Prof Madonsela: And that’s why it can’t be regarded as a CIEX investigation, because it was all about what did you do with the CIEX report. I mean, I can show you my notes with Billy Masethla, the focus on it... there’s nowhere where I even asked anybody why did you give away this money. Some volunteered the information about the money, because they had done the work already, like Justice, Dennis Davis and Bertelsmann. But everyone else was asked about 1998.

Adv Mpofu: Okay, ma’am. Alright. The... and then you say that the matter ended up being... you didn’t answer my question, but it’s fine, let’s move on. “The matter ended up being far more complicated though we persisted even after loss of time after the Trainee investigator left”. So even when it became clear that it’s not a slam dunk and it was more complicated, you continued to spend money on it, correct?

Prof Madonsela: I did, because...

Adv Mpofu: Yes, thank you. No, I just wanted to know that you did continue.

Prof Madonsela: I don’t like these hanging questions. You, not me, insisted that context is everything. You didn’t even allow me to explain that it’s not everything, it's an important factor. Even if Justice Khampepe said something about it, that was in obiter, not... I mean, not reasoning.

Adv Mpofu: You want to say “ratio decidendi”? Yeah, that’s Latin, it's very difficult. So okay, that’s fine.

Prof Madonsela: You love actually, getting these small jabs, eh? They make you feel a little bit more...

Adv Mpofu: No, no, I'm assisting you. I'm assisting you.

Prof Madonsela: Okay.

Adv Mpofu: You wanted to imply the words “ratio decidendi”, is reasons for the decision. Yeah.

Prof Madonsela: Okay. No, it is “ratio decidendi”, yes, but I was in the process of saying that and then I thought that for other people it’s important that they understand there’s a difference between a comment and a reason for decision. And what Justice Khampepe said was not reason for decision.

Adv Mpofu: So that then... I mean, okay, let’s not go there. You want to debate stare decisis with me. The...

Prof Madonsela: Oh yes, you’ve just missed it, actually, with the case. With the one case that you insist on.

Adv Mpofu: No...

Prof Madonsela: The one about the affidavit, you’ve just missed it... stare decisis.

Adv Mpofu: Okay, that’s fine. That’s fine. Let's not go there. Let's not go there. You and I, if you want me to explain the principles of stare decisis. The ratio decidendi and the obiter dictum have got nothing to do with what we’re discussing, but that’s fine. So the... you say, “The matter ended up being far more complicated though we persisted”. I'm simply saying that you... rather, even after you realised that it’s not a slam dunk, you decided to proceed with it. That's really just a simple issue, yes or no?

Prof Madonsela: I had answered, and then I said to you I must explain, I don’t like the hanging questions.

Adv Mpofu: Okay, go ahead.

Prof Madonsela: Yes. So I did say, yes, there was reason to proceed, because I still saw the prospect of some success. And at that stage, it was the prospect of some kind of mediation on this matter... of negotiation of this matter. If you know that, the powers of the Public Protector include conciliation and mediation. And on matters like this, that was being considered. And in fact, that’s what I was beginning to put forth on many of the parties that I was talking to, because I knew that if we’re talking legality, we would have problem, but if we’re talking morality, there was room for moving forward.

Adv Mpofu: Okay. Let's do this ma’am, before we get waylaid into topics that are going to get one of us into tight corners. Let's go to the... your next paragraph. What you say, you say you left no final report or approved provisional report – we've established that, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: So, and you’re familiar of the principles of the Mail & Guardian case, because of time now I won’t be able to take you through them, but effectively that the Public Protector is not bound by the four corners of the complaint, and he or she may broaden or limit the complaint. And in fact, the best example of that is the fact that the Public Protector, in terms of the Act, can even start an investigation without anybody’s complaint.

Prof Madonsela: Absolutely. By the way, I'm the one who wrote the Public Protector’s standard operating protocol. It started as using the Mail & Guardian as our training tool...

Adv Mpofu: Yes, good.

Prof Madonsela: Extracting those principles initially as guidelines, but later extrapolating them. I got one of the investigators, actually... and then we instructed them, and they are in the standard operating protocol that I drafted. So I wouldn’t not know the Mail & Guardian principles.

Adv Mpofu: Yes, nobody said you don’t know. In fact, I said the exact opposite. I don’t know why you want to be defensive about it. I said, you are familiar, of course, with the Mail & Guardian. And then I went on to explain what it says. I was just asking you whether my summary was a fair one, about...

Prof Madonsela: Yes, Sir. It is fair.

Adv Mpofu: Pardon?

Prof Madonsela: It is fair.

Adv Mpofu: Thank you. And therefore, if that’s a fair... and this is now for the purposes of and for the absent Ms Mazzone, who’s not here... or who’s being kept away. So it would be... I’m trying to say this in the most charitable way. It would be... I can’t find another word, nonsensical to accuse the Public Protector of broadening the scope, because that’s exactly what Mail & Guardian says you are entitled to do. You can broaden the scope of the investigation; you can narrow it and you can even invent it - I'm exaggerating. In other words, you can investigate when there’s no complaint at all, correct?

Prof Madonsela: I wouldn’t say it’s nonsensical. It would depend on context. And I wouldn’t say context is everything, but I would say we would want to know what is the narrowing, what is the expansion. And again, this is a matter that has been ventilated in court.

Adv Mpofu: Yes. No, let’s not go to the court. I'm asking you now. It's not the court that is on the stand. I'm saying that the... generally, in terms of the principles of Mail & Guardian, the Public Protector has wide powers to broaden the scope of a complaint, to broaden the scope of any investigation and to narrow it. And I'm saying to illustrate that point, he or she has even the scope to create an investigation when there’s no complaint at all. That’s the essence of Mail & Guardian, correct?

Prof Madonsela: I didn’t read Mail & Guardian to say you can broaden the scope. I understood the Mail & Guardian to say there’s no barrier to how far you can go to find...

Adv Mpofu: Yes.

Prof Madonsela: For the people who don’t know the Mail & Guardian case, this is the so-called “Oilgate” case, which I got to litigate, that’s why we have this jurisprudence, and taking it over from my colleague, Mushwana. And the issue there was not about broadening the scope of an investigation, the issue was about self-limiting...

Adv Mpofu: Chair?

Prof Madonsela: When the Public Protector didn’t follow the money, when it went with... in saying that was now outside the scope of the Public Protector, because it was outside state entities.

Adv Mpofu: Yeah, okay.

Prof Madonsela: So I don’t think the Mail & Guardian principle is about broadening the scope of an investigation, unless you read it different, Sir.

Adv Mpofu: Really, really, really. Okay. So you don’t think Mail & Guardian, which says that there could be effectively a complaint about... let’s say, a car. And if the investigation then leads to a bus and a train and an aeroplane, and I don’t know what other mode of transport, then that’s what you must do. The... you won't be, unlike a court of law, you won’t be limited by the four corners of the pleadings or of the complaint, but you can broaden it in the sense that I've just explained. In that, if the evidence leads you to the bus and the train and the aeroplane, you investigate that too. You don’t regard that as broadening? Let's say an investigation...

Prof Madonsela: Well, my understanding, which is what we put in our investigation standard operating protocol, is that you’ve got to follow the evidence wherever it has gone.

Adv Mpofu: Yes...

Prof Madonsela: And that you’ve got a lot of powers and you should not self-restrain, but you right that the powers of the Public Protector include the power to investigate both what is alleged and what is suspected. But for me with my team when I trained them, which is the same training that is given in Canada et cetera, and other places, is when you investigate you have to still be clear what is the issue, what is the evidence and what are issues.

Adv Mpofu: Alright... Okay, and you say you wrote the manual on Mail & Guardian?

Prof Madonsela: No, I wrote the manual that the Public Protector is using. And the Mail & Guardian case was the basis of how we started our training each other on what is a proper investigation, as determined by the Public Protector v Mail & Guardian, as decided by the SCA.

Adv Mpofu: Yeah. Alright... No, that’s fine. I think, at least had some expert witnesses, who correctly interpreted the Mail & Guardian case. That's fine... and anyway, people can read it for themselves. It’s not a very complicated case. Okay, so, the... You’ve already testified about the SSA issue and the shenanigans that happened in London. So let’s just go maybe to the gist of what you say in (g). Chairperson, I’m at paragraph 7.6, which is on the third page... Your pages are not numbered, Professor. So it’s paragraph 7.6 at (g), you say there... and I suppose this is the culmination of what you want to say about this, “Key changes that I have observed in the final CIEX report, include the remedial action regarding changing the powers of the Reserve Bank, which was not an issue as the issue concerned lending and debt collection practices”. Where did you see those changes?

Prof Madonsela: In the final report, the issued report.

Adv Mpofu: Yeah, where did you get that?

Prof Madonsela: In the remedial action. Okay, do you want to flight the report? I don’t have it now.

Adv Mpofu: No... I don’t want to flight it. I'm asking you... There’s nothing to flight. I'm asking you, when you say the key changes which you observed, it was in what? What was that... you observed them where, and what occasion, for what reason? And so on.

Prof Madonsela: You see, if you had asked me in advance, I would have flighted the report. So I’m going to paraphrase the report. The final report deals with the need for an instruction to Parliament, to change the powers of the Reserve Bank. This investigation was only about the landing practice and debt collection, because when you land you’ve got to collect the debt. And I've already indicated here, that from the evidence that we got, the interest though agreed as collectible, had not been collected. So there was nothing beyond that, in terms of what we were remedying. Because in each report, you ask when has happened, what should have happened, is there a discrepancy and if there’s a discrepancy, has somebody suffered an injustice and how do you remedy it. So there's no remedies that just fly from the blue. Your remedies are determined by that logical framework of what happened, what should have happened, is there a discrepancy and to the extent that there’s a discrepancy, was there harm caused. So the remedy is to remedy the harm, that’s why you call it remedial action.

Adv Mpofu: Yes. Thank you ma’am...

Prof Madonsela: You can’t remedy if there’s no harm that has been caused.

Adv Mpofu: Yes. Okay, please try and limit your answer to my question. I've not asked you any of what you’re talking about. I'm saying... maybe let me just explain what I'm asking you and why I'm asking you. When you say you observed the final, that includes the “remedial action regarding changing the powers of the Reserve Bank” and so on, because there’s no such thing in the report. I was just establishing whether you established it from newspapers from, you know, whatever... or did you actually read the report itself? That's all, really ma’am. It's really, that’s all.

Prof Madonsela: Oh, okay. Sir, if you said I am lying and I did not read...

Adv Mpofu: No, I’m not saying you are lying ma’am. I'm asking you where did you observe this from?

Prof Madonsela: I’m saying it is in the report. So to the extent that...

Adv Mpofu: So you observed it from the report? Is your answer that you observed it from the report?

Prof Madonsela: You keep asking me and then as I'm speaking you speak over me.

Adv Mpofu: Okay... I can’t, no Chair...

Chairperson: Can I ask...

Prof Madonsela: I don’t understand. Do you want me to answer, or do you want to answer yourself?

Chairperson: Just hold back, Adv Mpofu. Can you complete the answer, Adv Madonsela.

Prof Madonsela: Right. My reading of the report is that that’s the remedy, one of the remedies is... one of the changes is the requirement as a remedy, that the powers of the Reserve Bank be changed. That's my reading. I don’t have the exact wording right now, but if you want me to look for the wording I can quickly scroll into my documents, find the report and then flight it.

Adv Mpofu: No, I'll put it up. I'm going to flight it ma’am when we come to that. We're not there. I've asked you a very, very, very simple question. Where did you make these observations? Was it from a newspaper or from the report itself or from... interview?

Prof Madonsela: From the report itself.

Adv Mpofu: Thank you. That's all. Okay. Now if it was from the report itself, then I'm going to ask to flight page 69 of A1, I think. And you are saying that there was an instruction. Instruction to whom?

Prof Madonsela: Where did I say there was an instruction?

Adv Mpofu: You just said it five minutes ago, in that long speech you made. You said there was an instruction to Parliament, to change...

Prof Madonsela: I didn’t even mention Parliament.

Adv Mpofu: Okay, you didn’t say there was an instruction?

Prof Madonsela: No, I just said there was a remedy – a remedial action to change the powers of the Public Protector. And then my long story was about for every wrong there’s a remedy, but there’s a logical framework to how you arrive at the remedy.

Adv Mpofu: You didn’t use the word instruction in what you said?

Prof Madonsela: I can’t... I don’t remember using it. If I did, it’s so weird that I've forgotten that, but of course we’re on record...

Adv Mpofu: Yeah. No, the whole thing is weird, but I'm simply saying you did say it was an instruction, but that’s fine, let’s not quibble about that. Whether you said it or not, the record will speak for itself.

Prof Madonsela: I don’t remember saying it.

Adv Mpofu: Did you read an instruction from anything that was said?

Prof Madonsela: I never used the word “instruction”, I used the word "remedy”.

Adv Mpofu: Okay, I'm not going to argue with you ma’am. You did use the word instruction and as I said the record will... I'll send it to you once it has been transcribed. So what are you saying now, was there an instruction or no instruction?

Prof Madonsela: I am saying there was remedial action. I haven’t spoken about instruction. I spoke about remedies, remedial action. And I said there was remedial action about changing the powers of the Reserve Bank.

Adv Mpofu: Okay, ma’am. I'm sure you’ll... somewhere on social media, it will be played for you. That you said “instruction". So we don’t have time now. So, alright, but whether you said it or not, you are saying that there was an instruction... okay. Are you saying there was an instruction or no instruction now? Forget about whether you...

Prof Madonsela: I said there was remedial action. Can we stick with my language?

Adv Mpofu: Yeah, but I'm asking you... No, ma’am.

Prof Madonsela: Stop trying to put language into my mouth.

Adv Mpofu: I’m not... No, no. Then you don’t understand what I'm doing. I'm asking you questions. You can... I don’t need to stick to your language. I'm the one who’s asking questions, so I use the language that I choose. I'm asking you whether – and I'm not saying you said it or you didn’t say it, the record will speak for itself. I'm now asking you afresh. Did you read any instruction in what the Public Protector put as remedial action or not?

Prof Madonsela: I wasn’t looking for instructions; I was looking for remedial action.

Adv Mpofu: Alright. Now you would agree that one of the things that Mail & Guardian, and I think the EFF Nkandla case also says, is that the Public Protector... the wide powers of the Public Protector include going to what he or she regards as the source of the problem, the root cause... correct?

Prof Madonsela: Yes.

Adv Mpofu: Yes. Now, and you therefore agree that if the Public Protector regards in his or her wide powers, the root cause to be “X”, then that root cause has to be addressed, correct?

Prof Madonsela: Yes, absolutely.

Adv Mpofu: Good, good. Okay, now we’re getting somewhere. Now in this case, the Public Protector identified the root cause. And she, not you, not me, was the Public Protector... as including the, what she said at 5.3.27, that’s page 65. Which was that “The Republic has an obligation in terms of the Constitution and international instruments to improve socio economic conditions of its citizens through legislative and other measures to alleviate poverty and ensure social justice for all. The South African Government must realise economic rights to its people”. And then she goes on to say, “The decision not to recover seriously prejudiced the people of South Africa, in particular the poor who would have benefited through social development programs”. You don’t quibble with that, correct?

Prof Madonsela: I do... I would have put it differently, because with the investigation that I did. I think I have no quibbles with this, but do you want me to give you a bit of context?

Adv Mpofu: No, that’s fine. If you have no quibbles, that’s good enough for me. So, okay. Then the... I’m now saying that the Public Protector rightly or wrongly, because she's the Public Protector, not you, not me, at that time, having identified as part of the root cause, the mandate of the Reserve Bank, then made the remedial action that you’re referring to. And I'm going to send you there, it’s on page 69. It's the one to the Portfolio Committee on Justice and Correctional Services, that’s a committee of Parliament. This is the one that caused all the hullabaloo with the chattering clusters and those types of people. So she says, “The Chairperson of the Portfolio Committee on Justice and Correctional Services must initiate a process that will result in the amendment of section 224 of the Constitution, in pursuit of improving socio-economic conditions of the citizens of the Republic...”. You understand... okay, you may not know the processes of Parliament, but a process, you know that a process which is aimed at amending something like the section 25 of the Constitution, the process that we had two or three years ago, is something that is allowed but it may not result in an actual amendment. Do you understand that? Just as a constitutional scholar or understanding of how Parliament works.

Prof Madonsela: I do, but I think there’s a word that we are forgetting there “must”, on line two of what you’re flighting.

Adv Mpofu: Yes, yes.

Prof Madonsela: I think when we are finished with this, Sir, please allow me how I understood, because you’re now asking me to second guess my successor. All I had confined myself to what changed, I didn’t say what change was right or what change was wrong, that’s up to this Committee to make that decision, it's also been up to the courts. What I can do as your witness, Sir, is to explain to you how I dealt with powers of the Public Protector, this is things that I observed as a Public Protector, but that were not in my remedy.

Adv Mpofu: Okay...

Prof Madonsela: Again, understanding my powers long before the Nkandla judgment, but understanding my powers correctly.

Adv Mpofu: Yes. No, that would be very interesting, but if you could just stick to the... answer my questions. So if we get time we’ll get to that interesting debate. I'm saying, do you know... do you know what a motion is in Parliament? A motion is like a proposal, correct?

Prof Madonsela: Yes, but it’s by parliamentarians. I think the issue for me is the word “must”.

Adv Mpofu: No, just answer the question madam. Do you know that a motion is...

Prof Madonsela: Yes, I understand what a motion is. We are on a motion right now. The trigger of this process was a motion, Sir.

Adv Mpofu: Exactly, so that was a motion of Ms Mazzone, correct?

Prof Madonsela: A parliamentarian, yes.

Adv Mpofu: Yes. And, so that motion is then a proposal. Parliament could have rejected Ms Mazzone’s motion, correct?

Prof Madonsela: Exactly. You're very correct.

Adv Mpofu: Okay, good. Now the Public Protector then says, “in pursuit of improving socio-economic conditions of the citizens of the Republic, by introducing a motion in terms of section 73(2) of the Constitution in the National Assembly and thereafter deal with the matter in terms of section 74(5) and (6) of the Constitution”. So that would be as you correctly say, like the motion of Ms Mazzone. It would be tabled in Parliament, and it would either - if it achieves the correct majority it will succeed, if it doesn’t it will fail, that would be the end of the matter, correct?

Prof Madonsela: Yes.

Adv Mpofu: Thank you. Now, then the rest of it is then the proposed wording of that amendment, which may or may not... both you and I have established, may or may not succeed. And it’s a banal or a harmless thing that says, “The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, while ensuring that the socio-economic well-being of the citizens are protected”. You wouldn’t quibble with that as well, correct?

Prof Madonsela: I would quibble with what is it doing here.

Adv Mpofu: No, ma’am.

Prof Madonsela: If one of my investigators brought a draft with this, I would ask what is this doing here, Sir. Number one, our power to instruct Parliament.

Adv Mpofu: Yes, ma’am.

Prof Madonsela: Two, what remedy... what are we remedying in terms of the wrong we were looking for, and our findings about that wrong.

Adv Mpofu: Yes, but you’re taking us back now. I said to you earlier and you agreed that the remedy is for what the particular Public Protector, not you or me or anyone else, regards as the root cause. So that Public Protector is not going to ask that question. You might ask it, because you might have a different root cause. I might ask this as well, because I might have a different root cause. But a Public Protector who has identified as he or she is entitled to do, a different root cause will not ask that question, correct?

Prof Madonsela: But the Public Protector... So we now are talking a hypothetical, a reasonable Public Protector...

Adv Mpofu: No...

Prof Madonsela: So a reasonable Public Protector would have contested inside the report, why this is an issue. It couldn’t just randomly pitch at solutions.

Adv Mpofu: Yes, ma’am. And... Okay. If you just listen, you know, one of the attributes of a leader is to listen. I'm saying to you, I'm not talking about a reasonable Public Protector or an unreasonable one. I'm saying to you this Public Protector identified as the root cause, rightly or wrongly - let’s put that aside, identified as the root cause the issue of the mandate of the Reserve Bank. And we’ve agreed that she was then suggesting that there should be a motion in that regard. So take that as for granted. So a Public Protector like that is not going to say – what is this doing here, because he or she has already identified the root cause, rightly or wrongly. Do you understand that? Do you grasp, do you understand that notion? That a person...

Prof Madonsela: No, I don’t, Sir.

Adv Mpofu: You don’t? Okay, fine.

Prof Madonsela: On the one hand, you want me to put me in the shoes of this Public Protector. On the other hand, you don’t want me to use my brain. I therefore don’t understand what you want from me, Sir.

Adv Mpofu: No, that’s fine. That's fine. No, you don’t understand. I think that’s the... we’ll forgive you for that. But anyway, let’s now talk in broad terms of the Nkandla report and the Mail & Guardian report – or rather judgments, sorry. The... I don’t have time now to take you through Mogoeng Mogoeng CJ’s judgment, but you know that in that judgment as well as the one that you and I were involved in, your very last one, which was State of Capture, that the wide powers were affirmed in those two judgments, correct?

Prof Madonsela: Absolutely, Sir.

Adv Mpofu: Yes, and in fact just... maybe anecdotally, so that people can understand where you and I come from with this. The... without the intervention of the parties that were represented, the State of Capture report might never have seen the light of day, correct?

Prof Madonsela: Certainly, Sir. And we thank those parties. Our country would continue to be under the grips of severe state capture, which is still in but not that severe.

Adv Mpofu: Yes, that’s fine. That's fine. All I'm saying is that the State of Capture report, which was released literally on your last day. There would have been no Zondo Commission and all these things, had we not intervened at that moment. There might not have ever been a Zondo report, correct?

Prof Madonsela: No, Sir. It's not true that it was released on my last day, because President Zuma litigated and I left without releasing the state capture report, it was released much later. Thank you.

Adv Mpofu: Yes, but it was litigated upon on the 13 October, when you were leaving on the 14th. So had that litigation been successful or not opposed, then that could have been a success for... You know what I mean, if it was successful, it might have led to a situation where we might not have had a Zondo Commission and all what followed, we know what followed. You're right, on the 3rd of November actually, it was released by the court to the hands of the Speaker, and you were already gone, so that’s fine. I'm addressing something else. I'm saying without that intervention, because that was released by court order, then whatever else followed would not have happened, correct?

Prof Madonsela: That’s correct.

Adv Mpofu: Thank you. Alright. And in fact, I can tell you for free that you have Hon Malema to thank for that, because he’s the one who made us not to sleep the whole night to make that intervention.

Prof Madonsela: I’m grateful to Hon Malema, and I'm grateful to every human being who made sure that as a country we push back against impropriety. And grateful to you, for your role too.

Adv Mpofu: Thank you. Thank you very much, but as it were, and this is something that I just wanted for you to confirm, because there’s a fixation sometimes. You spoke very well, and I agree with you, about the balance between fairness and rigour. In other words, you can’t just chase deadlines, you also have to make sure that in the process you produce a quality product, correct?

Prof Madonsela: Yes, Sir.

Adv Mpofu: Yes, and that lesson, I think, can be learnt then from that example that you and I are talking about. The reason why you wanted a commission of enquiry to be set up was because you had estimated that the... that investigation would cost R130 million and take six months. You did not have the R130 million, correct?

Prof Madonsela: No, that’s not correct, Sir. I think we had asked for only six million.

Adv Mpofu: Only, how much?

Prof Madonsela: You mean from our side? The investigation done by the Public Protector.

Adv Mpofu: Yes...

Prof Madonsela: We asked for three million. We didn’t ask for R130 million, we asked for only R3 million.

Adv Mpofu: Okay. So you suggested a commission, because you thought that it would cost three million to do that exercise?

Prof Madonsela: Please repeat the question. I thought you were asking me...

Adv Mpofu: Okay. Yeah, no, It’s fine. If you listen, it will help. I'm saying in the State of Capture report you proposed that there should be a commission of enquiry, which we now know ended up being the Zondo Commission, because you could not afford the amount that was required to do that investigation, which you had estimated at R130 million, correct?

Prof Madonsela: That's totally incorrect, very untrue.

Adv Mpofu: What was the figure?

Prof Madonsela: We had estimated as the Public Protector that we were going to need R3 million to conclude that investigation, we only got R1.5. So the only reason we didn’t finish that investigation was time, not money. We got the money late and by the time we went full speed with the investigation, we ran out of time. There was never a R130 million, I have no idea where you got that figure from.

Adv Mpofu: Okay. No, that’s fine, ma’am. We will deal with it, the evidence is all there. But let’s say it was three million, the point that makes my point even bigger, I'm saying that so I'm happy to work on your figure. So that job which you had estimated to be three million, you know that it ended up... the actual commission cost anything between one billion and two billion, depending on who you listen to. But the point is that it was far more than the... whatever you had estimated, whether it’s your figure or mine, correct?

Prof Madonsela: Absolutely, Sir. I had a particular understanding of how soon the commission was going to take off.

Adv Mpofu: Yes, yes...

Prof Madonsela: It would have been cheaper, because he would have been able to get all of the witnesses on time. And of course, the longer it takes to conduct and investigation, the colder the case becomes. And also, I had not expected President Zuma to expand the mandate of the commission of enquiry. The investigation I ordered was based on certain circumstances, which simply conclude the one that I was doing.

Adv Mpofu: Yes, ma’am. That's my next issue. You also estimated that the exercise would take six months, and we now know that it took four years or whatever. And you’re right, the reason is what you said earlier, namely, that you had to balance... I mean, the chairperson he got about five or six extensions I think, simply because the evidence that was before him could not just be cut at half, mid-sentence, correct?

Prof Madonsela: No, that’s not what I said, Sir. The...

Adv Mpofu: No, I'm not... I'm saying, do you agree or not. It's not what you said...

Prof Madonsela: No, I don’t agree, Sir.

Adv Mpofu: Okay, good. Alright, that’s fine.

Prof Madonsela: The delay, I said to you, Sir, was because the mandate was expanded far beyond what had been asked. But also, at the end of the day, it’s about processes such as like this, where for example we spent a whole half the morning dealing with things that we could have dealt with elsewhere.

Adv Mpofu: Yes. No, I'm saying ma’am, the.... Okay, maybe you’re not familiar with this. Do you know that Justice Zondo, on his own estimate, when he knew the mandate, right? And how expensive or not expensive it is; then estimated that for example he was going to finish by the end of a particular year. That turned out not to be the case. And then he went again, and then he went again, and then went again. He knew the mandate, so let’s forget about the expansion of the mandate. I'm simply saying that because of the evidence that was accumulating before him, and the need to give people a chance to refute the evidence and all that. He was... in fact, even in the end, he had not finished his work, but that’s why there were those extensions. You don’t agree with that? Is that what you’re saying you’re not agreeing with?

Prof Madonsela: I really don’t know the complexities behind the delay of that report, because you didn’t indicate to me that...

Adv Mpofu: Alright, but you know that...

Prof Madonsela: Sorry, Sir. Can I just finish that. You didn't indicate that you’re going to make me an expert witness on that. I would have re-acquainted myself with the report and what Justice Zondo said about the reasons for the delay...

Adv Mpofu: No, ma’am...

Prof Madonsela: And then assess to do it on my own rationality.

Adv Mpofu: Okay. No, you don’t have to... okay. You don’t have to be an expert ma’am. You just have to be a South African. I'm saying you... every South African knows that that committee... they might not know the number of times, I know it was four or five times. But they know that the committee asked for multiple extensions, that’s all. You’re aware of that?

Prof Madonsela: Yeah, I'm just battling with where are we now? Why are we now discussing the State of Capture report?

Adv Mpofu: No, don’t worry about where we are. I'm saying to you, you... okay. Let me assist you. When you were going towards the end of your term, you had about ten reports that you wanted to finalise before you leave, including CIEX and Vrede and State of Capture, correct?

Prof Madonsela: I can’t remember the number, but there were many, and of course the exact names of the reports. I think there were more than ten, but we can be guided there, we shouldn't speculate. I wrote a report that indicated what was outstanding.

Adv Mpofu: Yeah, okay. Just answer the question, ma’am.

Prof Madonsela: I don’t know what was the number, because again, if you had asked me these questions, I would have asked the Public Protector to assist me with those preparations.

Adv Mpofu: Okay. Just please...

Prof Madonsela: This is what makes commissions of enquiry take forever.

Adv Mpofu: Okay, yeah... especially if witnesses behave the way you’re behaving. I'm asking you a simple question. I'm saying if the reports - don’t worry about the number, whether it’s nine or seven or eight, but did the reports that you wanted to complete by the 14 October on your departure include CIEX, Vrede, State of Capture and I think the Mandela funeral report? There's evidence here that those were the reports that you had intended but failed to conclude at the end of your term. If you can’t remember just say you don’t remember. You don’t have to cast aspersions...

Prof Madonsela: They are among the reports we planned to conclude as a team.

Adv Mpofu: Thank you, I'm grateful. Thank you, I'm grateful to you. Thank you, that’s all I wanted to know. Now I'm saying therefore that despite all those good intentions, because you couldn’t just meet the deadline for the sake of meeting it, certain things had to be done. You therefore did not finalise or release those reports as you had intended, correct?

Prof Madonsela: Certainly.

Adv Mpofu: Good. You see how easy that is... Alright. Now the issue that... yes. Before we get to the Vrede report, you mentioned, we were just talking about the Nkandla report. Is it correct that in the Nkandla report you used the version of the code that was subsequently found to be inapplicable by the Constitutional Court?

Prof Madonsela: In terms of reliance, this is where again, where we spoke earlier about the difference between obiter and ratio. I definitely did not rely on it, because had I relied on it, I would have actually asked President Zuma to be punished for saying nobody built him – government did not build him a house, whereas government had built him a house. In fact, it’s one of my... I didn’t expect you to go there, but it occurred to me that there will be a lot of curveballs here. I have a note here about that, that had I relied on the version other than the one in the booklet that Sibongile and I did, I would have not arrived at the conclusion that I did.

Adv Mpofu: Okay, so you’re denying. That's fine.

Prof Madonsela: No, I'm saying it may have been mentioned in that version, but I did not rely on that version. Because it may have been a mistake but in terms of what I relied on, read the report. In fact, I have... I didn’t know, of course again, that it was going to be thrown like that, but I thought that it might be.

Adv Mpofu: But you said you prepared on it. The point I'm making...

Prof Madonsela: No, I said I did, yes, come across it.

Adv Mpofu: Yes. So what's the answer? Are you denying that you used the 2007 version of the...

Prof Madonsela: I’m not denying that I used it. I'm saying it may have been quoted, I haven’t checked it. But in terms of my reliance there, we deal with – in fact, I deal with the President’s bona fide. And I say in that report that Members of the Executive... look there, article... item in that report 2.3... I did not rely on that. You are talking about... Members of the Executive may not wilfully mislead the legislature to which they are...

Adv Mpofu: Or inadvertently.

Prof Madonsela: I did not rely on the... inadvertently.

Adv Mpofu: Okay, so...

Prof Madonsela: Read my report, you will see the reasons. You were very happy to talk about the ratio decidendi, read the ratio decidendi in that report.

Adv Mpofu: Madam, I was, as you might recall, maybe you don't. I was one of the Senior Counsel who was acting in that matter. So you can be sure that I've read that report, many times, and I've read the judgment. And there is reference to inadvertence in your report and in the judgment. But that’s fine, people can read for themselves. You and I don’t have to quibble. If you don’t know what you wrote, you don’t know what you wrote.

Chairperson: Okay, on that note...

Prof Madonsela: Sir... Sorry, I have not said I don’t know what I wrote, Sir. I have...

Chairperson: Just a pause.

Prof Madonsela: Oh, sorry, Sir.

Chairperson: Just a pause, Adv Madonsela. I was addressing Adv Mpofu, to say you now need to start wrapping up your interaction.

Adv Mpofu: Okay, Chair.

Chairperson: Adv Madonsela... Back to Adv Mpofu.

Adv Mpofu: Thank you, Chair. Chair, you would... Thank you, Chair. Let me just thank you. I think I know you appreciate the kind of... what I’m dealing with here. But we... I think I'm going to move, for example from this, because as I say the report speaks for itself, the judgment speaks for itself. So there's no point in me having a debate about whether inadvertence was mentioned or not. Okay, so then let’s go to Vrede. I'm just going to ask you a couple of questions on this, because you basically... your statement doesn’t address the issues in the motion. But just, since you’re here, I'll ask you questions that we would like you to assist the commission with. Again, you did not have a final report or a provisional report in this matter, did you?

Prof Madonsela: No, I did not, Sir.

Adv Mpofu: Yes, thank you. So any motion by Ms Mazzone or anyone else that the Public Protector altered a provisional report by you would be... let’s avoid that word “nonsensical”, would be illogical because you never had a provisional report, correct

Prof Madonsela: I would not enter that space. If a report was issued that pretended to be a provisional report from me then I wouldn’t say it’s illogical, I would say it’s a mistake, but I don’t know. I don’t want to speculate about...

Adv Mpofu: No, it’s fine.

Prof Madonsela: Thank you.

Adv Mpofu: Okay, ma’am. No, I understand that. You don’t have to speculate; I'm asking you as a matter of logic, okay? If someone says somebody altered a letter written by me, and we can establish that I never wrote that letter, that would be illogical just as a matter of logic. In other words, if the premise... is what’s called a premise, if you studied logic. So if the premise is false, then the deduction from that premise cannot stand. You understand? Just as a matter of simple logic.

Prof Madonsela: I think we studied logic differently. My understanding would be untrue, not necessarily illogical. I would say it’s not true.

Adv Mpofu: Okay, very good. Okay, then let’s stick with untrue. So it would then be untrue for anyone to suggest that Adv Mkhwebane altered your provisional report, if there’s no such thing in existence as your provisional report. Just as a matter of logic or simple logic actually, not even as in philosophy, just like street logic, correct?

Prof Madonsela: It would be untrue, not illogical.

Adv Mpofu: Yes, alright. Okay, that’s fine, whatever. But it would be logical, is that what you’re saying?

Prof Madonsela: It would be logical for someone to think that a report was issued if they saw one or they read a judgment that said there was one. I don’t want to enter into that space, Adv Mpofu. I had said to you, I did not leave a report. You're asking me now to speculate about how to judge then, anybody who...

Adv Mpofu: Who says that untrue statement, yes. That's fine.

Prof Madonsela: I am not qualified to do that. You yourself said context is everything. For me, I think context is a factor. So I would not jump into illogic, I would look at the context.

Adv Mpofu: That’s fine. Alright, I'm happy with that. And you, again, you had this report for what, four five years? 2013, 2014, 2015, 2016, I think.

Prof Madonsela: It was quite long, yes.

Adv Mpofu: And you never finalised it, correct?

Prof Madonsela: It was not finalised, yes.

Adv Mpofu: Yes, and as we’ve now established, you’ve never even had a provisional report.

Prof Madonsela: Yes.

Adv Mpofu: Right. Now...

Prof Madonsela: Are you going to ask me why? Because if you open a story line, to be fair to me, I need to conclude it. These yes or no answers that you want the public or the Committee to fill in the gaps, is improper. Maybe in adversarial justice that’s how you do. My understanding of a commission of this nature - or of a structure, not a commission, a structure of this nature is that it’s an inquisitorial process. So in an inquisitorial process you want to know what happened, how it happened, why it happened.

Adv Mpofu: Yes, ma’am. If I had my choice, we could be here the whole week and we would get into all those details. Unfortunately, I have to cover some ground in no time. Anyway, it’s fine. A litigation doesn’t work like that, but it’s fine. So the reason why I'm asking you questions and sometimes leading questions, is because the narrative is contained in my question, and you can agree or disagree with it. But fine, let’s not go into the techniques of litigation. I'm saying that the report... or rather, after that period of four years or so, there was not even a provisional report and I think we've established that. And really, all I wanted to say was that the new Public Protector who then came into office obviously then, because of that failure of yours to finalise it, which is not your fault, because you tried, then had to take it over and hers was not simply to just rubber stamp – whatever you had done, but she was now the Public Protector and it was going to be her product. As least you’d agree with that?

Prof Madonsela; Absolutely.

Adv Mpofu: Thank you. And I'm sure that same thing happened to you when you got there, because it’s always work in progress. Alright. Now the... what I was really going towards, Ms Madonsela, is that in that period of four years or so, you never met with the beneficiaries?

Prof Madonsela: No, I didn’t meet with the beneficiaries.

Adv Mpofu: Okay.

Prof Madonsela: It was not necessary. The most important thing that I did was to give a whole day training to the team on how to conduct a proper investigation using the standard operating protocol, which unfortunately when I look at the final product, was still ignored.

Adv Mpofu: Yes. No, no. And in that four years you also never visited the Estina dairy farm.

Prof Madonsela: No, I didn’t. When the Public Protector is not the investigator, you don’t do all on-site visits.

Adv Mpofu: Oh, thank you.

Prof Madonsela: It’s just...

Adv Mpofu: No, because...Oh, sorry ma’am.

Prof Madonsela: You trust your investigators, I had Adv Celia doing that. And when Adv Celia was struggling with it, because she had been doing early resolution for the longest time, I assigned my Samuel to do that. Of all of the investigations that I have done, I didn’t visit every corner of the country to see everything, it was impossible.

Adv Mpofu: Yes. No, I'm just establishing the facts, I'm not...

Prof Madonsela: I’m giving you context.

Adv Mpofu: Yeah, that’s fine. So the reason... Let me give you context. The reason is that one of the criticisms levelled against Adv Mkhwebane - who dealt with this matter in seven months and finalised it, by the way just as an aside. The reason why, one of the reasons she’s criticised is because she did not meet with the beneficiaries. I'm simply saying that in four years, let alone seven months, you did not meet with the beneficiaries, you’ve explained why. I just want it as a factual fact that you did not meet with them, that’s fine. So the...

Prof Madonsela: Sorry, Sir. You made an aside, she did conclude it in seven months without a forensic, and it was sent back by a court of law.

Adv Mpofu: Yes. Well, yeah. She finished it in seven months, and it was sent back by a court of law, that’s a fact, but...

Prof Madonsela: So that’s about balancing rigour with speed, excellence is about both.

Adv Mpofu: So excellence is sitting on it for four years? You regard that as excellence? And not even producing a provisional report.

Prof Madonsela: Adv Mpofu...

Adv Mpofu: Are you being serious now?

Prof Madonsela: If you’re sitting here to try and compare me with the Public Protector, I’m going to ask this Committee...

Adv Mpofu: No, I'm not.

Prof Madonsela: No, wait a minute. I'm going to ask this Committee to go and check at the Public Protector office if there isn’t any case right now that is as old as this case is, that you’re trying to make me look bad for.

Adv Mpofu: You won’t find a case that is eleven years or seven years or six years...

Prof Madonsela: Okay, let’s do that.

Adv Mpofu: Yeah. No, Mr Neels van der Merwe already assisted us in that. I'm not... You’re the one madam who says that because something was reviewed, therefore it means it was not of quality, which is a ridiculous statement to make here. But the point I'm making is that it is... I’m simply saying to you, it is better to produce a report, and if it is reviewed by a court, that’s good too, because that’s a learning opportunity, than to sit...

Prof Madonsela: Can I respond to that, Sir?

Adv Mpofu: Yeah, that’s all I was saying.

Prof Madonsela: Can I respond to that? In my training, which I've trained even under Adv Mkhwebane at the centre that I helped establish in Durban. I have said, no, rather than do a shoddy job, do not conclude, because the worst thing that you do... and this is the training that you get in every training of the Public Protector, is that when you say there was no wrongdoing, you are throwing your whistleblowers under the bus. When you say there was maladministration, when there was corruption, those who have committed corruption rejoiced, that’s a universal understanding. So yes, it’s better not to conclude an investigation than to sign off on an injustice. That’s my approach, what Adv Mkhwebane – your client's approach is, that’s her approach. But I'm just putting on the stand my approach, and that’s the training I give to people, is do not sign off on a shoddy job, because there’s a lot of people that will suffer, including the complainants.

Adv Mpofu: Yes. Well, I hope by that, you’re not suggesting that the report simply because it was reviewed, it was a shoddy job. But if you are, that would even more ridiculous than what I was commenting on earlier, because you know that there were many reports of yours that were successfully reviewed... or in your language, then were shoddy jobs, including the SABS judgment. Correct?

Prof Madonsela: There’s no judgment that has been issued that has suggested that I did not understand the Constitution, that personally held me accountable even with personal orders. There's no judgment that even suggested that I was dishonest. This was one of my responses to your letter, when you were trying to surreptitiously throw this into this Enquiry.

Adv Mpofu: No, ma’am. I'm saying... Now you’re talking about completely different things. You see, that’s the problem with you. You said... I said, I put a proposition to you, that you did not do a report in four years that the Public Protector finalised in seven months. Your response was that, well, that report was reviewed successfully. So let’s keep it there. So I'm saying that the fact that a report is reviewed successfully is something that happened to you many times, including the judgments: National Empowerment Fund v the Public Protector, that is a 2017 judgment; SABS v the Public Protector, where the following was said at paragraph 2.8... Oh yeah, you can please, sorry, it’s bundle C, page 1460, I'm wrapping up, Chair. Item 41.

Prof Madonsela: Please let me respond when you’re done.

Adv Mpofu: Yeah, like I've done all day. Believe me we’re not going to move to the next question, before you respond. So I think that’s... you would have noticed that’s what has been happening all day. Yes, which one is that, SABS... yes, can you go to paragraph 2.8. Okay. Sorry, sorry, Ms Madonsela... It says there that... sorry, I'm just trying to find the paragraph. It says, “The Public Protector exercised her discretion to entertain these complaints despite the expiry of 11 years from which the second complaint was lodged and despite s6(9) of the Public Protector Act 23 of 1994”. You remember that, that was another one where you had according to this judgment at least, breached the two-year rule and went over something that was eleven years old?

Prof Madonsela: Right, do you want me to respond to that, Sir?

Adv Mpofu: Yes.

Prof Madonsela: Number 1. I did not involve myself in that litigation. Number 2. the two-year rule is not a prescription rule, it’s a discretionary rule.

Adv Mpofu: Yes.

Prof Madonsela: Number 3. which I asked you in all of the... in the wild accusation that some of my reports have had negative comments from judges. I said I'm not aware of a single one of my reports that was litigated up to the Constitutional Court, not even up to the SCA. The very first case that I litigated as Public Protector was Adv Mushwana’s case, that's the Mail & Guardian case. The NEF case, I disagreed with the judgments. In fact, I have included it in my teaching on administrative law every year ever since. It's the subject of my... if you read online, my inaugural lecture, my social justice lecture. I talk about how that acting judge erased the complainant. You know the things that you said last week, about how your client was being ignored, the inconvenience to her was not mattering, that’s exactly what happened in the NEF case. And the judge even comes to a conclusion, where he says she knew that she did not qualify. When that evidence was never at use, it’s not even in the judgment itself. So that judgment is pathetically wrong. If I had been Public Protector, I would have litigated the NEF judgment right up to the Constitutional Court, because if there’s a judgment that is so far removed from proper administrative justice and Ubuntu, it is the NEF case.

Adv Mpofu: Yes. No, no, I accept that you disagree strongly, and you have strong words to say about the judgment. That's fine, join the club. I'm saying so you agree therefore that the fact that a judgment makes such scathing remarks about you, does not necessarily mean that they are correct; it could be shocking or all these things that you’ve just said.

Prof Madonsela: I think if it’s the Constitutional Court, we can’t escape the issue of shoddiness.

Adv Mpofu: I see. So the Constitutional Court unlike the lower courts is incapable of getting it wrong, is that what you’re saying?

Prof Madonsela: Is the ultimate guardian of the Constitution.

Adv Mpofu: Yes. No, no, I understand that ma’am. I’m saying therefore if this finding in the NEF case was made by the Constitutional Court, you’d no longer think that it is shocking and all the things you’ve said.

Prof Madonsela: I would be sad, but I would understand that that’s the law now, the complainants don't matter, all that matters is inconvenience to an institution. If an institution strings you along, it’s okay. And if a Constitution fails to do triaging, which is a basic in every institution, whether you’re doing UIF, whether you’re doing the social grants or you’re going to hospitals – triaging to determine whether you’re at the right place or not, is a standard requirement. And the judgment that says it’s irrational to have required the NEF to do triaging is incorrect, it’s totally, totally incorrect. But if it has been done by the Constitutional Court, yes, I would have been sad, but I would then understand then that’s the new law of the land.

Adv Mpofu: No... That’s a different question. It would be the final. In other words, there would be no other court to go further, but it would still be as incorrect as it was when it was made by a lower court, correct?

Prof Madonsela: Absolutely... and none of my decisions have been taken even as far as the Supreme Court of Appeal.

Adv Mpofu: Good. No, no we’re together there. So it would be wrong. And in the SABS case, I'm just trying to save time... it says that “The Public Protector joined the second...”, paragraph 14, sorry ma’am. That's 1477. “The Public Protector joined the second complaint with the first complaint because of the view that the withdrawal of the permit was directly connected, and in revenge, to Prabudass’ allegations against the SABS. Despite not being able to decide the first complaint the Public Protector persisted in entertaining the second complaint. Upon a reading of the papers this acceptance of Prabudass’ view was not done with an enquiring mind as required of the Public Protector". So in this other judgment, Judge Potterill said that you had approached the matter without the enquiring mind required of a Public Protector. Was that one also outrageous and all the...

Prof Madonsela: No, I don’t think it’s outrageous. I think that’s Judge Potterill’s opinion. And of course, that’s... I would have still taken it on appeal. And that’s the case we dealt with extensively as a team at the Public Protector, and Think Tanked that whole entire brains tasked, we Think Tanked a lot of times. And I do disagree with the judge respectfully, but I'm not saying it’s one of those judgments that horrify me. The NEF judgment horrified me to the core; as a result I've been using it in my teaching since then.

Adv Mpofu: Yes, but I'm saying on the SABS case, the final word is that you approached it without the open mind. In other words, in a biased fashion. You accept that?

Prof Madonsela: I did not do so. If I had been involved in the litigation, of course I would have defended myself. When Adv Mushwana was no longer Public Protector and I had to deal with the Mail & Guardian judgment, I asked him what his thoughts were on it. But that said, all I'm saying is I disagree with this judge, and I'm saying there is no judgment by the SCA or the Constitutional Court that suggest that I do not know what I'm doing.

Adv Mpofu: Well, okay ma’am. Would you agree that if you are biased as this judge was saying you were, in the approach to the matter and not approached it with an open mind, that is a serious accusation against a Public Protector or a judge or somebody entrusted with so much power? Bias, this judge said you were biased.

Prof Madonsela: It certainly would have been. I suspect that given the kinds of monitoring that I was subjected to during my time as Public Protector, I’d probably... this matter would probably have been brought to a committee like this. Unfortunately, the decision that you’re talking about was made when I was no longer Public Protector.

Adv Mpofu: No, ma’am. I think... I accept all that. I'm saying as a judgment which is the final word, you’ve said that correctly that is the opinion of Judge Potterill, that’s not what I'm disagreeing with. In fact, I agree with that. There’s a view out there with those who don’t know, that would differ with you that the judgment is the opinion of judge Potterill, but I'm not one of those, because you and I are at least educated in law. That's not the point I'm making. The point I'm making is that this is a judgment, it is what it is. It's a judgment of the court and it is a final judgment. And it says that you were biased in your approach. And I'm saying that that is the legacy of your dealing with this matter. Let me just, I'll read you another part, paragraph 9. “The Public Protector dismissed the complaint of the SABS that after 11 years the file and documents pertaining to this matter were destroyed and therefore she should not consider the complaint. In fact, she took umbrage with the SABS for this loss of records. This is an astonishing stance; if the SABS knew there was a complaint 11 years earlier they could have safe-guarded the documents, but the Public Protector simply did not inform the SABS of the complaint. She ignored the fact that the relevant person, who withdrew the permit, was available for an interview in lieu of the destroyed documents. What makes matters worse is the Public Protector herself submitted that her office unfortunately misplaced the original complaints and correspondence submitted by Pradubass; the pot calling the kettle black. The Public Protector balanced the “mismanagement” of the SABS documents with the prejudice Prabudass would suffer. Herein lies the substantive irrationality of the decision of the Public Protector as set out below”. This is what I call scathing remarks against not only your bias but also allegations that you ignored evidence, which is even worse than bias. And you were... you engaged in what the judge called the pot calling the kettle black – the pot being you in that example.

Prof Madonsela: Well again, with due respect I disagree with the judgment. But again, I don’t know where this is going. I do realise that I am being impeached long after office, unlike Adv Mkhwebane for whom this was supposed to be about. She has been given in advance what the allegations are, as opposed to what’s happening here. I need now to go and look at the case that you’re putting forth. I need to look at the investigation file and look at who was I working with as an investigator, and to see what really happened, because I wasn’t involved even in the litigation. In fact, even with the NEF case, I only discovered that it had been reviewed successfully when I was talking to people about the potency of the Public Protector to give remedies that are unusual. So I'm going to say that I disagree with the judge's finding, but I would say that the finding of a judge of High Court that is not upheld by the finding of the Supreme Court of Appeal or the Constitutional Court does not have the same weight in terms of who you are and what you can offer, than the finding of the SCA and the finding of a Constitutional Court.

Adv Mpofu: I see. So you are...

Prof Madonsela: That’s my opinion.

Adv Mpofu: Yes, it is you opinion and it’s wrong. But the finding of a court of law, which is final, is a finding of a court of law. It’s correct that it’s an opinion of that court, but it is... if there’s another case that comes up in Gauteng, this judgment would be binding on the judge, unless, as you know, unless if they find that it was clearly wrong. But the point is there’s no such thing... the binding effect of a judgment is the same, whether it’s a magistrate's court or a High Court or a SCA or whatever. It's a final judgment, because it has not been disturbed. But that’s fine, you can deal with that maybe when you’re dealing with your students. The point of the matter, the only point I'm making to you is that you are the one who started making the snide remark that if a report is... you’d rather not finish a report than have it reviewed. I'm showing you that in these cases you “finished the report” but it was reviewed. So you had the worst of both worlds, because the judges found it as biased and astounding and astonishing and the pot – you, calling the kettle – the other, that would be the respondent, black.

Prof Madonsela: May I just correct you there, Sir?

Adv Mpofu: Yes, ma’am.

Prof Madonsela: You are not telling the truth when you said I said I would never finish a report rather than have it reviewed. I said that I would not finish a report if the investigation has not been thorough. And I said that if I have to choose between promptitude and rigour, I chose rigour. And that’s what I teach my students, and that’s what I teach practitioners, and that’s what is in many of these documents. So I do disagree with you when you are saying there’s no difference in weighting to a judgment of a High Court, and the judgment of the Supreme Court of Appeal and the full bench of the Constitutional Court. I disagree with you, Sir. But again, lastly, to say you’ve put me on the stand as a counter being impeached person, because I don’t know really why you brought me here. You brought me to answer for cases that I've dealt with. You should have told me so, that this is about me, in which case then I would have spent days at the Public Protector team to get all of the information, because context matters. Earlier on you accused me of not prioritising Gogo Dlamini’s. These are two Gogo Dlamini cases. The NEF case is a case of a black woman of foreign origin who was promised money wrongly, because she wasn’t black under the Black Empowerment Act.

Adv Mpofu: Okay.

Prof Madonsela: And after to’ing and fro’ing, after the NEF going to the extent of establishing a bank account with her, and therefore her having a legitimate expectation that the NEF will pay the money to her...

Adv Mpofu: We’ve got the judgment. We've got the judgment, ma’am.

Prof Madonsela: No, but I... No, Adv Mpofu, you can’t have your cake and eat it. You can't, Sir.

Adv Mpofu: No...

Prof Madonsela: If you want to bring these matters here, they have to be contextualised.

Adv Mpofu: Yeah, but we don’t have time ma’am. You know we don’t have time.

Prof Madonsela: But then don’t bring them here. Don’t bring them here.

Adv Mpofu: The judgment is in front of the Committee. I'm sorry madam, I'm simply saying this judgment is in front of the Committee, so don’t worry about going chapter and verse. It was already submitted last year.

Prof Madonsela: So you've spoken over me again and it's okay when you do it? Because I'm giving everyone the context.

Adv Mpofu: Chair, please...

Prof Madonsela: You’re the one who said context matters, so it matters when you want it to matter.

Adv Mpofu: Okay, ma’am.

Prof Madonsela: It doesn’t matter when I want it to matter.

Adv Mpofu: I’m sure the Chair will give me extra time. Go on and be my guest.

Chairperson: Thank you, Adv Madonsela. We're about to wrap up now, Adv Mpofu.

Adv Mpofu: Yes, Chair. I was, really, but... Now, madam, all I’m saying is that in this case of SABS your report lacked in both rigour and promptitude. That's the point I'm making. You said you balance rigour and promptitude.

Prof Madonsela: Yes.

Adv Mpofu: Because it was said that there was an eleven-year period, and yet the report was found to be not only shoddy but biased by the judge. Would you agree with that? Rightly or wrongly...

Prof Madonsela: Well firstly, I was Public Protector for seven years. So if the case took 11 years that would explain why somethings, somehow, could not be found towards the end.

Adv Mpofu: Yes, so...

Prof Madonsela: I just think the best thing in this case is to find out from the Public Protector files, what really happened. But I disagree with you, Sir, with due respect.

Adv Mpofu: Okay, good. No, you don’t need to... you disagree with the judge that says it was a shoddy job. I'm saying it was like Mr Nyathela’s case, where the 11 years included the entire seven years of your term. So I don’t think that’s an example of someone who balances rigour with promptitude, because this was worse than shoddy, it was biased, and it also took an extraordinary amount of time and as Judge Potterill’s called it at paragraph 19, “quite astounding”. And she said the remedial action that you made was non-descript, she says “The vague, non-descript and unobtainable remedy ordered of ‘Provide the Complainant with a remedy, including a reasonable amount as a settlement for consolatory compensation, to address the distress and trauma experienced by him and his family as a result of the manner in which this matter has been concluded’ leaves one dumbfounded and needs no further address”, said the court. That is shoddy...

Prof Madonsela: If I may help you. If I may help you, Adv Mpofu. In ombudsman decisions it’s not unusual to ask for two things, to ask for an apology and to ask for the wrong party to give some kind of compensation that is determined by them. You remember the case... the Sowetan case where a young lady had been raped and her matter was postponed for over eight years, and then we did our own investigation on it. What we did, we asked all of those who were involved in the conveyor belt to number one, an apology from the Minister of Justice. And two, what we called sorry money, which of course the NEF judgment says there’s no such a thing. We said some kind of sorry money determined by the Department of Justice, which the Department of Justice did come up with that sort of money. In fact, the report was accepted even before we finalised it, that’s why we called it, no it’s not... And then what Dworkin says in hard cases, taking rights seriously, is in these very hard cases when you can’t find hard law, when you can’t find hard law either in common law, the constitution or statutory law, you have to look at public policy. And one way of asserting public policy is what has been accepted by the government before. It was on that basis that I decided these cases. Thank you.

Adv Mpofu: Yes, thank you very much. I understand and public policy includes the mandate of the Reserve Bank. Ma’am maybe you’re getting me wrong. I'm on your side here. I agree with you. In fact, I've read that report in the SABS case. And I think that it’s not that bad, could have been much better, there’s room for improvement. But that’s not the point, the point is that the judge... and there are people who think that once a judge has spoken then we should not enquire. The judge says it left her dumbfounded as to how you could give that kind of... It didn't leave me dumbfounded, but the judge said it left her dumbfounded and it was quite astounding. And she says she doesn’t even know what was going through your head when you made such findings. That's the issue.

Prof Madonsela: Well, Adv Mpofu. Do you remember the SABC case, what the judge said in the High Court? And because I was Public Protector at the time, I litigated it and took it right up to the SCA, if I'm not mistaken. And eventually I prevailed. So I do think that I give respect to High Court judges, but that’s why we have an appeal system. I give more weight to decisions of the SCA and the Constitutional Court.

Adv Mpofu: Okay. For the sake of time...

Chairperson: Ten minutes, really, and then we close.

Adv Mpofu: Chair, I’m wrapping up now, yes. Thank you, Chair. Chair, can we make it fifteen? I promise I won't go one minute over that.

Chairperson: You’ll do it in ten minutes.

Adv Mpofu: Okay. Alright. Ma'am, I think you’re getting me wrong again. I'm saying that my point is not the point you’re making. My point is that judges can get it wrong. And that the mere fact that the judge said this is astounding and she was dumbfounded by your conclusion, does not mean that that is so. If someone had to enquire into that then they would have to look into the report and themselves be dumbfounded. You agree?

Prof Madonsela: I agree. They would have to look at the facts, they would have to look at your understanding of the law – just logically, and see whether it was reasonable for the judge to make that conclusion. You're right.

Adv Mpofu: Thank you very much. I am, thank you. That's a Hallelujah moment, thank you very much. That's what we’ve been trying to explain ad nauseum here. Alright. Now, thank you for that. Now the... In fact, if it was a court, I would just stop there, because that is... that’s the million-dollar answer that you’ve given. But seeing that we’re here, the... Let’s just wrap up, this Chairperson, you know, is going to ensure that the... Did you ever say to... or rather, why did you reject the Vrede report more than once?

Prof Madonsela: There were various reasons. I think in the earliest draft, for example, there was a version that said somebody said, the Premier said this. And then the question was why then was the Premier not interviewed. And then, because in the public domain, as you said yourself that the powers of the Public Protector include looking in all spaces. In the public domain there were already allegations of corruption involving the Gupta family and others. So it was important to then, in terms of our standard operating protocol, to look into those relationships and how those relationships played out. And also, Mr Magashule at some stage dropped at my office for a cup of tea, it wasn’t included in the report, because he just said he was visiting me, but he indicated that the person at the centre of this was MEC Zwane. That’s why I had said to Mr Samuel that all of these things should be considered. The important thing was when you do an investigation, everyone who was involved in the conveyor belt must be held accountable. And then the report at the end of the day has to cover all of that. So the earlier one had indicated that the Premier had some role in it. And then the next one had excluded now all of the names. And then the next one had the names but had not done the in-depth forensic.

Adv Mpofu: Okay. Now let me just try to summarise it, because we don’t have time. So you were not happy, because they had not interviewed some of the role players, correct?

Prof Madonsela: Yes, and they had not decided the accountability. I think the key was not so much the interview. It was both the interviews and the accountabilities of those role players who had already been mentioned in the investigation.

Adv Mpofu: Yes. Alright.

Prof Madonsela: The Mail & Guardian is again, whatever you hear in the evidence seeking process, you must follow it through until you get to the bottom of it.

Adv Mpofu: Yeah. Yes, and the Public Protector – that's Adv Mkhwebane, then did that and actually, unlike you, went to see Premier Magashule. According to Mr Samuels, she insisted that they go there. She went there, and then she invited him as she should, in terms of the law, to respond in terms of section 7(9). You’re familiar with that section, which was to give him an opportunity and the MEC to respond. You would agree with that? That's how it should have been done. That's what you were asking for actually, correct?

Prof Madonsela: Well, by the time I left already we were considering section 7(9) notices on those people. And you will see that in the evidence of Mr Samuel.

Adv Mpofu: Yes. I know you were considering, but...

Prof Madonsela: They were being prepared so it wasn’t a new thing, yes.

Adv Mpofu: Yeah. No, no, that’s a difference between a considerer and a doer. I'm saying that Adv Mkhwebane actually went physically herself, with her body, to the Office of the Premier, which is what you did not do. And she sent – not considered, the section 7(9) notice. I'm saying that’s the kind of thing that you wanted to be done, so that these people who were mentioned should be confronted with adverse findings and be asked to comment, which is what section 7(9) is all about, correct?

Prof Madonsela: I don’t think that is at issue; I think we keep running into spaces. I think what is at issue here, is how those names then disappeared from the report, if you’re saying that was what was decided.

Adv Mpofu: No, but you see, that’s the problem with you, you make these judgmental statements. Do you agree that section 7(9) is an opportunity for audi alteram partem? In other words, if you have a finding against me and you give me an opportunity to explain it away, that’s what the purpose of section 7(9) is, correct?

Prof Madonsela: It’s an extension. Though there’s various stages of audi, yes, I agree, but in the first audi is the letter that is written to you to tell you that there are allegations against you. Meetings are also part of the audi. And yes, section 7(9), is one of the instruments for exercising or for extending the audi to implicated persons.

Adv Mpofu: And therefore, if in exercise of my audi alteram partem rights, I then respond to your section 7(9). And I respond in such a way that is satisfactory to rebut the adverse findings. Then those findings do not disappear, they must go, because I would have answered. That's the whole purpose of section 7(9). It's not just to go through the motions; it’s to give somebody an opportunity to explain what might be a provisional adverse finding. So why do you say that the findings disappeared? What do you mean by that? Because they were not there simply because there was an answer in a detailed section 7(9) response.

Prof Madonsela: Well, again, we are talking about two different approaches. I will speak to my approach. In my approach, I would indicate all of the evidence presented against a person, and then I will indicate what they said. And then you and I would not be sitting here speculating about what was the original allegations that seemed to be worth considering as implicating someone, and how they responded to them and how you resolved it. Again, it’s in the manual that I left and the processes that investigators are supposed to follow.

Adv Mpofu: Yes, but that’s exactly what happened madam. The report details the allegations against the Premier and the MEC. The report refers to the letters that were written to them, I think one of them was the 7 July 2018, if I’m not mistaken. And the report deals with their responses. So I think it might be a good idea for you to withdraw the snide remark that the findings disappeared, because it’s exactly what the law requires, that when somebody gives you a satisfactory answer, you cannot continue to make adverse findings against them. In fact, that was one of the criticisms made against Adv Mkhwebane in the Rogue Unit matter. So if the section 7(9) response is satisfactory, then those findings must go. So would you withdraw that snide remark...

Prof Madonsela: I would not, Adv Mkhwebane... I mean, Adv Mpofu. I am going to revisit the report and revisit the information...

Adv Mpofu: And I'll send you the section 7(9). I'll send you the section 7(9) letters. And once you have confirmed that what I've just told you is what happened and what is in the section 7(9), will you withdraw that snide remark?

Prof Madonsela: If it’s proper to do so, I will do so. But you must understand that we not longer – well, at least during my term as Public Protector, we no longer concluded purely based on what the response was from the other side. We evaluated all of the evidence together.

Adv Mpofu: Yes, that’s exactly what happened, that’s the point. So if we can show that the evidence was evaluated and it was covered in the section 7(9), then you will withdraw that snide remark. Correct?

Prof Madonsela: Well, if you call it snide, I will withdraw it if there’s a need to withdraw it. At this stage I do not see the need to withdraw it. I just said the findings did disappear - I mean, the names did disappear. And the names did disappear.

Adv Mpofu: No, by that you mean the Premier and the MEC.

Prof Madonsela: Yes.

Adv Mpofu: They are referred to. That's a second snide remark, which is incorrect. The Premier and MEC are referred to in the report, I'm telling you as a matter of fact. So that’s also a false and unnecessary accusation. But it’s fine, we’ll cover it in a letter, which we’ll send to you, for you to withdraw the snide remarks that you were making.

Prof Madonsela: No, please let’s keep everything in this meeting. I don’t have an attorney, Adv Mpofu. I cannot keep responding to your litany of letters.

Adv Mpofu: Okay. No, it’s fine. Well, you’ll deal with it as you wish ma’am.

Prof Madonsela: Let’s keep it on this platform. It has been aired on this platform; let’s deal with it on this platform.

Adv Mpofu: No, that’s fine. I'm just telling you that we will send you a document that requires you to withdraw those snide remarks, because you’re making them in public, and they are uncalled for, vindictive and based on... completely baseless. And if I may borrow from judge Potterill, astounding and I am dumbfounded; and she was right that the pot was calling the kettle black. That's the sum total of your evidence. Thank you, ma’am. Thank you, Chairperson.

Prof Madonsela: Well, it’s so good that I haven't called anybody anything. If we’re talking about astounding, insulting...

Adv Mpofu: No, I'm just quoting the judgment. I'm just quoting the judgment.

Chairperson: Thank you, Adv Mpofu. Please switch off, Adv Mpofu. Thank you.

Adv Mpofu: Okay. No, Chair. Yes, ma’am, sorry. The Chair will give you an opportunity before I switch off; I just want to say I was just quoting the judgment. Thank you, Chairperson.

Chairperson: Thank you. Adv Madonsela, over to you, conclude.

Prof Madonsela: If we’re talking about things to be withdrawn, you have maligned me, that’s okay. I could see those snide remarks from the very first letter that I received from you – from the attorneys, that’s fine. But I would like you to withdraw other insults and snide remarks that you’ve made against the Commissioner of Oaths, who did the first document. And for this... for the purposes of this Committee, I have indicated that the status of an investigation... I mean, the status of an affidavit was dealt with in a case here in this province. If we talk about stare decisis, it was in this province and the case is Minister of Safety and Security v Mustafa Mohamed. And that case says that the fact that an affidavit is not initialised on every page does not invalidate it. And to pass words such as “illegality”, “criminality”, that was low. Thank you.

Adv Mpofu: Chairperson, if you allow me just to... Firstly, ma’am yes, I was not talking about invalidating, I was talking about the criminal actions of signing an affidavit after it has been attested, that’s a separate thing. But on the second point, if I have made any snide remarks about... to the attorney, unlike you, I definitely will withdraw them. We certainly going to pursue that matter with the attorney, we’ll ask for an affidavit. If it turns out that indeed he was not in... What’s the place Randburg or... I forgot the name of the place now, in Johannesburg, but he was in Stellenbosch then that will be clarified in his affidavit or when he supplies us with an itinerary or a plane ticket to that effect. It has happened before. But if all that turns out to be kosher, I will certainly have no problems with withdrawing as a professional person. But your postponed withdrawal will be dealt with in due course. Thank you, Chairperson.

Chairperson: Thank you, Adv Mpofu. Thank you, Adv Madonsela. Hon Sukers, I just want to get to the next stage.

Ms Sukers: Yes, Chair. My hand is up, because actually both advocates have now raised the issue that I actually wanted to request. The issue of whether an affidavit must be signed or initiated by the Commissioner of Oaths has not been settled, I think, for us as the Committee. I have looked at both the Act and the regulations...

Chairperson: Switch off your mic, Adv Mpofu.

Ms Sukers: And in my layperson’s view it is not the case, but as a Member of the Committee we cannot judge a matter unless the law is made clear to us. So I would request, Chair, that the evidence leaders address this point, or failing which that the legal staff put it before the Committee. Thank you.

Chairperson: Thank you, Hon Sukers. This is going to be an adjournment; we’re not done yet. The time now is six o’clock. We’ll adjourn our meeting and start tomorrow at nine, it’s a shorter day. And when we start tomorrow, we’ll start with Adv Mayosi, who will interact with the witness, followed by the Members. So at that point I want to say thank you for... we’ve stretched the day up to six.

Adv Mpofu: Thank you, Chair.

Chairperson: Whatever time you would have given before, you’ve taken it back and even more, Adv Mpofu. Hon Maneli?

Mr Maneli: Thanks, Chair. Just on the point raised by Hon Sukers. I'm not sure whether you’re saying then, Chair, you’re ruling that because we’re adjourning, it’s a matter that may need to be clarified in the morning on the standing of this affidavit, because we’ve now gone through point by point as we listened to Adv Mpofu interacting with it. I think it’s important, because in the records of the Committee, that we can place it on record in the morning, whether there’s clarity now on this matter here or not. So I’m just saying, she made that point and I thought you were coming to just clarify it, but if not clarified, I think we’ll still need it on record, because there was an opposing view that said it’s not an issue and we should proceed. Thank you.

Chairperson: Thank you. Adv Mpofu?

Adv Mpofu: Thanks, Chair. Sorry, just to be helpful. Chair, if the issues of law and legality and what have you, will be argued at the end, but if you want to – which seems to be what is being suggested now, if that legal argument is going to be brought forward then it should not be confined to that point. I've made about four or five serious criticisms, including from about twenty past ten to when we broke for tea, on the so-called affidavit, which I call a statement. So all those points then, if we’re going to now go get into legal argument, both sides we’ll have to address them and if... I don’t know why they must be addressed now, because all the legal points including the binding nature of judgments and what have you, have been left towards the end, correctly so. But if we’re going to have a stop start legal argument then it’s fine, let’s do it, but let’s not just do it on one point, let’s do it on all the issues that have been raised. Because the status of that document as an affidavit or not is dependent on all the four or five criticisms that are relevant. Thank you, Chair.

Chairperson: Thank you, Adv Mpofu. Hon Maneli, I thought I responded when I said we’re not concluding today. We're adjourning to start tomorrow at nine. If there’re any other issues, we’ll deal with the issues tomorrow, even before we conclude. Thank you. On that note, Hon Members and everybody else, colleagues, Adv Madonsela, we will adjourn the meeting and meet tomorrow at nine. Thank you very much.