PP Inquiry day 61: Prof Thuli Madonsela (Day 2)

Committee on Section 194 Enquiry

07 March 2023
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

The Section 194 Committee resolved today to refuse a request from the Public Protector (PP) legal team for the postponement of Adv Mkhwebane’s testimony from 15 to 27 March 2023.

This followed a written request from the PP legal team for a further extension in submitting her statement to the Committee. The Committee Chairperson had previously agreed to extend the original deadline from 7 to 9 March noting the limited time for the PP legal team to prepare her statement for 9 March, mainly due to the preparation for former Public Protector Adv Thuli Madonsela’s testimony today. The Committee agreed to grant an extension for the submission of her statement on 14 March, one day before her testimony.

The Committee justified its decision to reject the request on the basis of a letter received from the Public Protector of South Africa (PPSA) CEO about the institution’s inability to continue paying Adv Mkhwebane’s legal team fees beyond 31 March 2023. Members felt that it would be irresponsible for a Committee of Parliament to allow for a public institution to incur fruitless and wasteful expenditure. In addition, the Committee felt that the Inquiry had gone beyond its specified schedule, and had to be concluded by April.

Thereafter the Committee considered the PP’s request to call further witnesses. Due to the time constraints, the Committee resolved that at this stage it will accept witness statements and then determine whether to call them to appear for oral evidence, based on relevance and necessity.

Earlier in the meeting, the Committee heard that nothing in law renders the affidavit of Adv Madonsela, illegal or invalid as purported by Adv Mpofu, during yesterday’s proceedings. Adv Ncumisa Mayosi, Evidence Leader of the Committee, read out both the Justice of the Peace and Commissioner of Oaths Act and the Regulations governing it, to verify the sections that were quoted yesterday by Adv Mpofu in suggesting the validity of Adv Madonsela’s affidavit.

In her testimony, Adv Madonsela once again denied that she had issued a provisional report in the Vrede Dairy Investigation, as was purported. She highlighted that the copy shown in the meeting contained her details at the end of the report but not her signature.

Meeting report

Chairperson: I would like to welcome the Public Protector’s legal team, the Evidence Leaders, advocates Mayosi and Bawa, Members, both here at M46 and on the virtual platform, as well as the members of the public. We are here for the second session of Adv Madonsela’s testimony, with the first one having occurred yesterday. I now hand over to Adv Mayosi.

Cross Examination of Witness
Adv Ncumisa Mayosi (Evidence Leader): Just explain why ‘T.M’ and ‘Commissioner’ appear on this document?

Adv Thuli Madonsela (Former Public Protector): It is simply because this document is the same document that we discussed earlier. The Commissioner never signed anything further than he signed on the document submitted to this Committee on the 25th.

Adv Mayosi: Right. So is it your evidence that this is a copy of the 25 February affidavit?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Let us go down to the next initials. At the top of the next page. Again ‘T.M’. That is you, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: And you sign there because you have made a handwritten change in that paragraph, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Alright. Move on. Again, 7.3?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Again the reasons are the same: you alone signed because of the change in 7.3.

Adv Madonsela: That is correct, Ma’am.

Adv Mayosi: Explain, again, Adv Madonsela, and please be patient here, we really want to rule out any confusion that may still remain. Why does ‘T.M’ and the Commissioner’s signature again appear here, adjacent to 7.4 and 7.5?

Adv Madonsela: Because again the Commissioner's signature and my original signature are the same signatures that were in the document of the 25th. Nothing changed. It is the same document and the only change is in 7.3, where I indicate the corrections made.

Adv Mayosi: Right. Follow the initials, again 8.3 you have a ‘T.M’ there because you have made a handwritten change, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Is your evidence the same as to the reasons why the ‘T.M’ and the Commissioner's appears there?

Adv Madonsela: It appears there because it was always there from the 25th. Yes.

Adv Mayosi: Right. There is another ‘T.M’ next to 9.6, and it appears to be a handwritten change there. That, again, is you, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: And that is your signature, and a ‘T.M’ because you corrected your name, right?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: And we, of course, see that this is the same statement of the 25 February, that was signed in Stellenbosch that we spoke about earlier, right?

Adv Madonsela: Yes, Ma'am. I affirm that nothing changed insofar as the original signatures were concerned.

Adv Mayosi: Adv Madonsela, is it correct to say that the changes made on the 25th on the copy of the 25 February affidavit was signed or initialled not just by you, but by both you and the Commissioner? Is that correct?

Adv Madonsela: No, Ma'am. It is not correct. It is not true.

Adv Mayosi: Your evidence is that those changes, those handwritten changes on that copy were signed by you and you alone, right?

Adv Madonsela: Yes, Ma'am. That is why I wanted a withdrawal of the attack on the colleague who was commissioner of oaths because there was an insinuation that he is a criminal.

Adv Mayosi: Right. Now, let us deal with your affidavit of 28 February 2023, page 482. Adv Mpofu suggested that this affidavit was flawed or defective in some way because it was not initialled by the Commissioner on every page, do you remember that?

Adv Madonsela: Yes, Ma'am.

Adv Mayosi: So when he was asked to refer the Committee to the law that makes this a requirement he referred the Committee to Regulation 4(1) of the regulations governing the administration of oaths or affirmation. Put that up please. Yes, that is the one. Let us go to the section that Adv Mpofu referred the Committee to. He referred the Committee to Regulation 4(1). Can you indulge me please, Adv Madonsela, and read Regulation 4(1) into the record?

Adv Madonsela: Thank you, Ma’am.

Adv Dali Mpofu (Leader of Legal Team): Chair?

Chairperson: My apologies, Adv Madonsela. Just before you do that, I have a hand. Adv Mpofu?

Adv Mpofu: No. Thank you, Chair. I wanted to know if this witness has also been called as an expert in law. If she is then she should be qualified so that we can then deal with her as such.

Chairperson: Thank you. The witness is being asked to read the document. Adv Mayosi?

Adv Mpofu: No, Chairperson. Sorry, Chair?

Chairperson: I am with Adv Mayosi now. If you raise your hand I will come back to you.

Adv Mpofu: Yeah, I have.

Chairperson: You have to allow for the flow of the meeting so that it is not you that should be listened to.

Adv Mpofu: Chairperson, I am objecting here.

Adv Mayosi: Chair, the witness is asking to read this section into the record. This is in direct response to Adv Mpofu having brought this very section of the regulations to the attention of this committee and having relied upon it when he was asked specifically to show the Committee what he was relying on.

Chairperson: Thank you. Adv Mpofu?

Adv Mpofu: Thank you, Chair. No, that is obviously so. That is not the point I am making. I think she is missing the point. The point I am making is that you will remember, Chair, after lunch, I came back, after I had been asked, I think, one or two Members and Adv Mayosi and I told them that I do not keep every section in my head. And I addressed you on the sections for you to note: that is it. I never addressed that to the witness or through the witness, because if I wanted to deal with the witness as a legal expert, then I could have canvassed it through the witness; which is what she is doing. Legal arguments will be made when the time comes for legal arguments. There is nothing if the witness is an expert in the interpretation of statutes. I am simply saying that then she must be qualified as such, so that we deal with her as an expert in the interpretation of statutes.

Chairperson: Thank you, Adv Mpofu. I am still not connecting with the expert argument. Adv Mayosi? And then I will go to Adv Madonsela.

Adv Mayosi: Thank you, Chair. Also, I am not asking the witness to interpret anything. But thank you, Chair, I will proceed.

Chairperson: Before you proceed. Adv Madonsela?

Adv Madonsela: Thank you, Chair. I thought this was my opportunity to read the document.

Chairperson: Can you flight the document?

Adv Mayosi: Yes, it is Regulation 4(1). Please, Adv Madonsela?

Adv Madonsela: Thank you. Regulation 4(1) 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 shall state the manner, place and date of taking the declaration.”

Adv Mayosi: Thank you, Adv Madonsela. Now take us to the affidavit of the 28 February to test that affidavit against what section 4(1) says. Go to the end page 485. Now what you just read of regulation 4(1) is that what the commissioner of oaths must do is that he shall certify that the deponent, being you in this case of this affidavit, has acknowledged that she knows and understands the contents of the declaration and that she shall state the commission that is "the manner, place and date of taking the declaration.” Has this been done by the Commissioner in relation to this affidavit, Adv Madonsela?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Let us go back to the regulation. I would like us not to just look at Regulation 4(1). Can you also just read Regulation 4(2) into the record? Because it talks specifically to what a Commissioner of Oaths shall do in signing a declaration? Can you read those for us, please Adv Madonsela?

Adv Madonsela: Thank you advocate. Subsection two says “The Commissioner of Oaths shall sign the Declaration and print his full name and business address below his signature and, b, state his designation and the area for which he holds his appointment or the office held by him if he holds his appointment, ex officio.”

Adv Mayosi: Thank you. Go back to the affidavit of 28 February, on page 485. And my question again to you Adv Madonsela: Has the Commissioner done what is required of him in terms of Regulation 4(2)?

Adv Madonsela: Yes, Ma'am. He did exactly that. As you can see the stamp and also affirmation of his presence.

Adv Mayosi: Right. In your evidence yesterday on this issue, you made mention of a case in the Western Cape High Court. You mentioned it during your evidence, but you could not elaborate on it. That is the case of Minister of Safety and Security and others versus Mohammed, right?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Chair, the citation of this case, for the assistance of the Committee, is [2010] 4 All SA, 538, (WCC). A judgment that was delivered on the 30 April 2010. Can you tell the Committee Adv Madonsela, please, what the relevance of that case is to the issues raised by Adv Mpofu in relation to your 28 February 2023 affidavit?

Adv Madonsela: I think the essence of the Mohammed case is simply that an affidavit or a document so signed is not invalidated, simply because the signature… or not the signature. The initials of the Commissioner of Oaths are not on every page.

Adv Mayosi: Thanks. I have taken the liberty of making a copy of the case. Can you put it up, please? Yes. That is 26 of the case. And as Adv Madonsela has alluded to, the issue that this paragraph was dealing with was the legal status of an affidavit where that affidavit does not contain the initials of the Commissioner of Oaths on every page. And there I am reading the bold and underlined “Although it certainly is the practice for both the deponent and the commissioner to initial all pages of an affidavit on which they signatures do not appear. This practice is not a requirement for the validity of the affidavit. It is not required by the rules governing the administration of oaths and affirmations that are set out in the regulations promulgated under Section 10 of the justices of the peace and commissioners of oath act 16 of 1963.” Is that what you were referring to, Adv Madonsela?

Adv Madonsela: Certainly, and thank you for the opportunity to present it properly.

Adv Mayosi: Now, Regulation 4(1) that was relied upon by Adv Mpofu, does it say that a Commissioner is required to initial every page of an affidavit that is presented to him?

Adv Madonsela: No, Ma'am, We just read it. It definitely does not say so.

Adv Mayosi: Thank you. So just to move quickly along to the second issue that I said I was going to deal with, today in my interaction with you, and that is the issue of the motion. So let us turn to the motion. Put it up, please? And I just want to point out two things at the outset, Adv Madonsela, relating to the motion, just for you to get a sense of the approach that the Evidence Leaders will follow relating to you and the motion, and the reasons for that approach. So two things. The first one is that engaging in – it is the understanding of the Evidence Leaders – a competitive exercise between Adv Mkhwebane’s conduct and that of her predecessors, including yourself, does not form part of the mandate of this Committee. So my interaction with you is not going to involve that. Do you understand that, Adv Madonsela?

Adv Madonsela: Thank you, Ma'am. That was what I had been assured of.

Adv Mayosi: Yes. The second point, I would just like to point out upfront, that there is already evidence before this Inquiry on the aspects of the Motion that mention you in relation in particular to CIEX and Vrede. So the fact that there is already evidence, coupled with the length of time that has passed, coupled also with the fact that you told the evidence leaders that you no longer have access to records. These issues are the reasons why the evidence leaders determined that it wasn't necessary to call you for oral evidence. And the contents of the statement that you recently filed did not change that determination on the part of the evidence leaders. Are you with me, Adv Madonsela?

Adv Madonsela: Certainly, Ma’am, I am. Thank you.

Adv Mayosi: Yeah. But you are here now, Adv Madonsela, and we are grateful for that. But for all these reasons that I have asked to put upfront, I am going to be very brief with you when it comes to the motion. Are you with me again?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: So let us turn to the motion starting with charge one, which is where Adv Mkhwebane is alleged to have committed misconduct in relation to various things which it is said she did or failed to do in connection with the investigation report and litigation in the (South African Reserve Bank) SARB/CIEX matter. You see that?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Go down to 1.1.1. And starting with 1.1.2. There it is said that “Adv Mkhwebane’s, amongst other things, conduct was objectionable, because she materially broadened the scope of the investigation in the final report, as compared to the provisional report, without giving notice thereof to any affected person and without furnishing any explanation, therefore”. Do you see that?

Adv Madonsela: Yes, Ma'am.

Adv Mayosi: And it is also said in the next paragraph, 1.1.3, that she “materially altered the remedial action in the final report as compared to the provisional report on the instruction and/or advice of the presidency and or the State Security Agency and without giving notice and an opportunity to comment therein to affected persons.” Do you see that?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Now, the evidence that is already before this Inquiry and which you have now also confirmed in your affidavit, I think this is fairly uncontentious, is that you left, no approved or signed-off provisional report when you left the PPSA in October 2016, right?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: And the final report in this matter was issued on the 19 June 2017, more than 18 months after the end of your term, right?

Adv Madonsela: Yes, Ma'am.

Adv Mayosi: So the comparisons between the provisional and final reports that are referred to in these paragraphs, in these charges, these would be comparisons of provisional and final reports issued by Adv Mkhwebane and not you, correct?

Adv Madonsela: Yes, Ma'am.

Adv Mpofu: Chair?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: Apart from the futile attempt to amend the charges, that cannot be put as a leading question, because once again, it is evidence from Adv Mayosi, which is completely worthless, unless it is given under oath.

Chairperson: Thank you. Adv Mayosi?

Adv Mpofu: And subjected to cross-examination.

Adv Mayosi: It is on the record, Chair. You can ask the questions differently. It is your evidence that you did not issue a final report, correct?

Adv Madonsela: Yes, Ma'am, and I said so yesterday as well. It is just a confirmation.

Adv Mayosi: And it is common cause on the record that Adv Mkhwebane issued the final report in June 2017, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: You did not issue a provisional report, as you stated in your evidence. It is on the record that a provisional report was issued on the 20 December 2016 by Adv Mkhwebane, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Thank you. So the comparisons are not in relation to reports issued by you, correct? It follows.

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Thank you. Can we move?

Adv Mpofu: Chairperson?

Chairperson: Just pause, Adv Mayosi. Adv Mpofu?

Adv Mpofu: Surely Adv Mayosi must know that she cannot do what is doing? Surely?

Adv Mayosi: What am I doing?

Adv Mpofu: You cannot put a legal conclusion to a witness that you seek to draw. You can argue it at the end. What is she supposed to say? Is she just a prop? This is not Generations. So she must just say ‘Yes, yes’ to your evidence?

Adv Mayosi: Chair, no legal conclusions were drawn here. These are factual conclusions based on the common cause evidence and based on the witness’ confirmed evidence. Let us move on to the Vrede Dairy Matter. Please put it up. It is the Motion. And again, this is a charge of misconduct in which Ms Mkhwebane is again, alleged to have committed… to have done various things or to have failed doing various things in relation to the investigation, the report that was issued and also the litigation the ultimate or subsequent litigation in the Vrede Dairy Matter. Are you generally familiar with this charge, Adv Madonsela?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: It then proceeds to sub paragraphs which as do all the other charges in the motion, which describe what it is said Adv Mkhwebane did or did not do in relation to the Vrede Matter. In paragraph 4.4, it is said that “Adv Mkhwebane materially altered the remedial action proposed in the provisional report prepared by you before issuing the final report without providing any rational or proper explanation, therefore. “Do you see that?

Adv Madonsela: Yes, Ma’am. Now, you testified yesterday that you did not leave a provisional report in this matter, correct?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: Is it also your evidence that you did not leave a final report, either, in this matter?

Adv Madonsela: Yes, Ma’am. It is.

Adv Mayosi: Please go to Bundle A, page 1273? Go down, slowly. Yes, that is fine. Adv Madonsela, this document which is on the record says it is a provisional report on the investigation into complaints of maladministration against the Free State Department of Agriculture, in respect of non-adherence to Treasury prescripts and lack of financial control in the administration of the Vrede dairy project. In short, it suggests that it is a provisional report in relation to the Vrede Dairy Project. Do you see that?

Adv Madonsela: Yes, Ma'am.

Adv Mayosi: Go down. So there at the top, there is a line that reads “invisible oversight provisional report by the Public Protector dated November 2014.” Do you see that?

Adv Madonsela: Yes, Ma'am.

Adv Mayosi: You were still the Public Protector in November 2014, correct?

Adv Madonsela: Yes, I was.

Adv Mayosi: Go to page 1351. Go down. You see that this document obviously has your name in it as the Public Protector. And I think this is also part of the evidence before the Committee. Adv Cilliers was part of this investigation. Do you see that?

Adv Madonsela: Yes, Ma’am.

Adv Mayosi: It is an unsigned document. Are you able to tell the Committee at all what the status of this unsigned provisional report is?

Adv Madonsela: It was not a provisional report in the status of a provisional report of the Public Protector. In other words, it had neither been quality assured by the quality assurance team, nor signed by me. When you see those initials appearing, all draft documents of the Public Protector have that, although we had advised team members to stamp draft on documents, but it was a new practice. So you will find every draft report, no matter how rudimentary it is, it would have the initials of the Public Protector and the investigators that are working on it.

Adv Mayosi: Was this… I mean, you have testified that you never left a provisional report by the time your tenure ended. It is correct, is it that you never signed-off on this report?

Adv Madonsela: Certainly, and my evidence yesterday, you will recall this, if you may, Ma’am, was then that I then asked Mr Samuel to take over this investigation. And he certainly went there after these allegations had been prepared.

Adv Mayosi: So yesterday Adv Mpofu, I think in relation to this issue, asked you a question to the effect that it would be illogical to then conclude that you had left a provisional report behind to which you said that it would be untrue, that this was so. Is that your evidence?

Adv Madonsela: It still is, Ma’am.

Adv Mayosi: ‘It would not be true’, I think you said? You struggled with his use of the term illogical; you preferred ‘it would not be true.’ Is that right?

Adv Madonsela I did, Ma'am, because it depends on the context. If the facts appear to logically connect, you would arrive at a particular answer. It is not illogical on what appears to be the facts. And then of course, if later you realise that what appeared to be facts are not facts, then it just becomes untrue.

Adv Mayosi: So, if a representation or a statement is made in an affidavit or anywhere to the effect that this November 2014 report was a provisional report issued by you, would that be false or would that be true?

Adv Madonsela: That will be definitely false. A provisional report is a signed document by the Public Protector.

Adv Mayosi: Okay. I do not have any further questions for Adv Madonsela, Chair. Thank you, Adv Madonsela.

Adv Madonsela: Thank you, Ma’am.

Chairperson: Thank you, Adv Mayosi. You would have started at 09:15, and you are done now. Thank you. It will now be an opportunity for Members to interact with the witness, if they have any questions they want to raise with the witness. So I am now going to open for that opportunity. And I will start inviting and noting Members that wish to do so. I start with Hon Mileham, as the first Member, followed by Hon Bhekizwe Nkosi. Are there any other Members on the virtual platform that wish to interact and ask questions to Adv Madonsela, because I seem to be done here? Hon Zungula, you will be next. Those will be the last hands on the Virtual Platform. Let us start in that way. Hon Mileham?

Committee Member questions to Witness
Mr K Mileham (DA): Thank Chairperson and good morning to everybody. Adv Madonsela, good morning to you.

Adv Madonsela: Good morning, Sir.

Mr Mileham: Advocate, could you tell me… You indicated yesterday that some of your reports were taken on review? Is that correct? Did I understand you correctly?

Adv Madonsela: It is correct, Hon Mileham. Although I was never involved in that process.

Mr Mileham: Can I ask, you said that you were disappointed by those outcomes but what did you do when those reports were taken on review? What action did you take?

Adv Madonsela: Well, in the one case that was taken on review when I was still Public Protector, it might be two or so. When they were taken on review, we defended the case and when we lost we reflected on the outcome. For example, in the SABC matter, we reflected on the outcome, and we decided to take it further to the SCA.

Mr Mileham: Okay. And when it went to the SCA, what was the outcome there?

Adv Madonsela: At the SCA we won the case. And that is why we got the precedent from the SABC case that the Public Protector’s decision has legal force. Of course, it did not specifically say at that stage, it had a binding effect, but it meant the same thing. If we did the same with the Nkandla Judgment, and when… Okay, no with the Nkandla Judgment, it was decided in our favour upfront.

Mr Mileham: Now, let me ask you this, you alluded to it, but let me ask you straight up. In any of those reviews or any matters while you were the Public Protector, were you found by a court to be ignorant of the law?

Adv Madonsela: Not to my knowledge, Sir.

Mr Mileham: Were you found to have misled the court, or in any way submitted false information?

Adv Madonsela: Definitely no, on that one. Not to my knowledge.

Mr Mileham: And were your investigation processes at any point questioned by the court?

Adv Madonsela: Not to my knowledge, Sir. Although there is a case that was brought in yesterday by Adv Mpofu, where a judge in the High Court questioned my reasoning.

Mr Mileham: Okay, so questioning your reasoning versus questioning your processes, that is a different ballgame, is it not?

Adv Madonsela: To my understanding it is, Sir.

Mr Mileham: Thank you, Chairperson. I have nothing further.

Chairperson: Thank you, Hon Mileham for those questions. I now turn to Hon Bhekizwe Nkosi.

Mr B Nkosi (ANC): Good morning, Chair. Good morning to Adv Madonsela.

Adv Madonsela: Good morning, Hon Nkosi. Good morning, Sir.

Mr Nkosi: In your tenure as the Public Protector of the Republic, did you apply the provisions of the Constitution and the law applicable to the Office and other related law in respect of cases that you received?

Adv Madonsela: I did so, to the best of my knowledge and abilities, Sir.

Mr Nkosi: In doing so, do you think that you applied your knowledge and your experience in the execution of your responsibilities?

Adv Madonsela: I did, Sir. That would be my understanding, Sir.

Mr Nkosi: Would you say that the application of the law constitutes your strength? And are there any weaknesses in that regard?

Adv Madonsela: Will you repeat the question, Sir?

Mr Nkosi: Would you say the application of the law based on your experience, constitutes your strengths?

Adv Madonsela: I would say it is my greatest strength, and that was complemented by the Bar Council, the Law Society and the Deputy Judge President of the Northern Gauteng High Court, when I was awarded the Truth and Justice award by the Law Society. And that is just generally what I was praised for because… And I do know that that is my strength because I do not just take advice from my team. We debate it sometimes until the early hours of the morning. I also would not take advice from counsel. I would indicate to counsel what I think should be the approach and then we would obviously then deliberate accordingly.

Mr Nkosi: Okay, thank you. On your leadership. When you joined the PPSA, would you say that you moved the institution from what it was to a greater level or to a higher level?

Adv Madonsela: My view is that I did but I did not do it alone. Firstly, as I said, Sir, in my affidavit, I inherited an institution that was rooted on grounding. I know the media often says differently, but every time the media says that, I say that if there were no fundamentals that had been told by my two predecessors, I would have not been able to take the institution to the next level. So it was a process of building on the shoulders of giants and working with a marvellous team to learn and grow together.

Mr Nkosi: Would you say that the standard operating procedures that you introduced, enhanced the work of the Public Protector, as an Office?

Adv Madonsela: Yes, sir, this has been even recognised by Yale University. If you Google this, there is a podcast and transcript where Yale University tries to decrement what we did during my time, which was to build on the systems that my predecessors started, both at the level of general administration, but more so on case management, from triaging to report writing, and managing stakeholders, and the media. And to top it then, I did prepare that standard operating protocol, which was quality assured with the Think Tank team before I signed-off.

Mr Nkosi: Did this assist in the proper case management of the complaints, and was it effective?

Adv Madonsela: The case management and the complaints were incrementally better. I would say it became a 'pole pole' exercise, as a mountain climber I would use that exercise. That it was not…

Chairperson: It became what exercise, Adv Madonsela?

Adv Madonsela: 'Pole pole'. Oh, sorry, Sir, it is a Tanzanian Proverb about climbing a mountain one step at a time. I do not say that we summitted the highest peak, but I can confirm without any fear of contradiction that we summitted quite a number of peaks on the way towards the highest peak.

Mr Nkosi: Would you say that in executing your responsibilities you did so, without fear or favour to any person, be it a Bheki Nkosi, a Gogo Dlamini, or Mkhulu?

Adv Madonsela: Absolutely, Sir. As a result, there were times when we stood alone as a team, but we stood together, which was great.

Mr Nkosi: Okay, my last question. When you left the institution, did you leave an institution that Bheki Nkosi would be able to inherit and run with? And would you be proud of an institution that you left?

Adv Madonsela: Absolutely, Sir. I would say that I left any institution that would make my successor have it easier than I did. But I also want to say that my predecessors made it easier for me than it was for them. And we had systems for case management. It was just the electronic version that we had to impair because it was not of the capacity that could contain the caseload that we had started to inherit after the Scorpions were impaired. I also left policies that dealt with matters such as procurement, et cetera. But also in addition to the institution, I personally conducted training, together with other team members, we regularly conducted training on investigations, particularly to empower provinces because before my time, they did not do complex investigations, they only did inquiries

Mr Nkosi: Thanks, Chairperson.

Chairperson: Thank you, Hon Nkosi. I now recognise Hon Zungula.

Mr V Zungula (ATM): Thank you, Chair. Greetings to yourself, Members of the Committee. Morning, Ms Madonsela.

Adv Madonsela: Greetings, Hon Zungula.

Mr Zungula: I think let me start with the CIEX Report. Would you agree that one of the contributing factors in the lack of appetite to recover the money by government was an attempt to protect the economy in line with the mandate of Treasury and the Reserve Bank?

Adv Madonsela: Certainly, Sir. I would agree that the argument had been that if we did collect the money, there would be a run on the bank. From the run on the bank there would be a run on the Rand. And a run on the country would be run on the economy, and therefore, not that the money should not be collected, but the feeling was that given the fact that it was different shareholders that had invested in the bank at that time. And we were now trying to collect years later, where shareholders would now have to pay for it from that bank. The bank concerned had even been bought by an international bank.

Mr Zungula: Okay. So in that sense, money that belongs to Gogo Dlamini would not be recovered because of that particular mandate. Now, would you say it is unreasonable for the mandate to be reviewed to protect Gogo Dlamini?

Adv Madonsela: I would say it's unreasonable to review the mandate. Will you please repeat that question, Sir? I did not quite understand it.

Mr Zungula: Yeah. So I am saying that in line with your answer now, which effectively means that money belonging to Gogo Dlamini cannot be recovered from Absa because of the mandate. Now, would it be unfair or unreasonable to review the mandate to make sure that Gogo Dlamini is protected?

Adv Madonsela: Whose mandate would be reviewed here?

Mr Zungula: The mandate of the Reserve Bank.

Adv Madonsela: You mean the lending mandate of the bank?

Mr Zungula: No, no. In my first question I said one of the contributing factors in the lack of appetite was the mandate… was to protect the economy in line with the mandate of Treasury and the Reserve Bank, and you said you agree with that, and you spelled out other issues. Now, the question I am asking that in light of your answer, would it be unreasonable to review that particular mandate, the mandate of Treasury and the Reserve Bank in order to protect a Gogo Dlamini?

Adv Madonsela: Sir, the mandate I spoke about is the mandate on regulating banks and lending. It is an institution with multiple mandates. But you, you do understand, Sir, that this investigation was, as indicated in the transcript of my interview with Chris, just looking at collecting a debt. So reviewing the mandate of the bank, in terms of its lending practices, and debt collections would definitely not be unreasonable, Sir, because that would be a logical connection with the wrong because a remedy corrects a wrong and as the Public Protector we used to talk about righting the wrongs of the state.

Mr Zungula: Thank you. So I am glad that we agree that it is not unreasonable to review that mandate, to make sure that Gogo Dlamini is protected. Now the investigation took more than five years. Is it something that is fair on the complainant, that, you know, the investigation and the issuing of the report takes so long?

Adv Madonsela: It was not fair on the complainant, but it was reasonable. If you are talking about the real complainant, which is Adv Paul Hoffman, he understood my constraints because when I decided to buck the trend, and undertake an investigation, it was clear that we were hugely under-resourced. And, of course, I would have to fit it in together with the rest of my duties. And then, of course, Adv Paul Hoffman was not happy with the delay, but he understood. And Michael Oatley, who had triggered this investigation, was given the same explanation when I finally met him in September 2015.

Mr Zungula: Okay. Would you say the investigation was not prioritised like other investigations?

Adv Madonsela: Repeat your question, Sir. Sorry.

Mr Zungula: Would you say the investigation was prioritised or was not prioritised like other investigations?

Adv Madonsela: It was far more prioritised than other investigations. If you are going to talk about my time, given the fact that I did not investigate, that was led in evidence yesterday. You will see how many people I have personally interviewed. It is again in the report. From the President at the time, President Mbeki. Chris Stals can talk to you about how hard we tried to pin down the interview with him. And I took my time when I was in London for a different event to make sure that I arranged to meet Michael Oatley. So definitely, but the approach at the Public Protector was twofold: every investigation matters, but bread and butter issues matter most.

Mr Zungula: Okay. Why did you only work with a trainee and a young investigator, in what you describe as a complicated investigation?

Adv Madonsela: Sir, as I explained yesterday, this letter was rejected and I did not want to burden my team that had used our triaging tools to say this investigation should not be done because it is a cold case. We did not exist when the lending took place; the trail would be cold by now. And the possibility of recovering the money is next to zero; and this is taking into account that this matter had been the subject of an investigation by Heath and an investigation by Justice Dennis Davis, who both advised government against trying to recover. So the only reason, Sir, that I proceed was because Paul Hoffman convinced me with a documentation that he heard, preliminary of course, that the money could be recovered through some kind of mediation and conciliation process. And that was the process under which I undertook this matter. And this is the process that I tried to pursue. You will see in my interview with Judge [inaudible], he himself admits that it is more of a moral issue than it is a legal issue when it comes to recoverability of the debt. And of course at that stage, we did not have the evidence of Chris Stals, which shifted the picture a little bit.

Mr Zungula: Okay.

Adv Madonsela: So it is not true what you are saying, Sir, with due respect, that it was not privatised.

Mr Zungula: Okay. My question was you working with a trainee and a young investigator in what you described as a complicated investigation, whereas one would presume that in light of a complicated investigation, you would want to utilise the best experience and capable investigators. Is that correct?

Adv Madonsela: Yes, Sir. I would have done so if I believed that I could not handle the complexity, I could. I could work with others, if I thought that there were some investigators that did not have a huge backlog. Already, the team was struggling with a backlog. Statistics from the Public Protector are available that will show that we shifted just about the same number of investigations as my successor, if not more, if you look at per capita, if you look at; the number of investigations shifted; number of investigators at the time, and I would like to tender those statistics. And I would like to ask the investigators… I am sorry, the Evidence Leaders, to kindly request the Public Protector to submit today a 25-year report on statistics. So I could not withdraw any investigator from a matter they were already handling.

Mr Zungula: In 7.6 (e) of your affidavit, you mentioned that the SSA was never involved in the investigation. Yet you interviewed Mr Billy Masetlha from the SSA. Now, are you not misleading the committee by saying the SSA was never involved, yet you interviewed Mr Billy Masetlha from the SSA?

Adv Madonsela: No, Sir. I am not misleading the Committee. When Mr Masetlha was interviewed he was no longer with the SSA. He was interviewed, as I said in my evidence yesterday that he was interviewed purely because he had been the one asked as the head of the predecessor of the state security agency to issue the contract – to be the contract owner of the original contract; which the contract by the way, was not about what this investigation ended up being about. So I did interview Mr Masetlha, just to understand as the person who had issued the contract, number one, is it true that the money was not collected. Number two, why was it not collected. Number three, who made that decision. And we got the answers to all of that.

Mr Zungula: So you interviewed him in his former capacity or capacity of a person from the SSA?

Adv Madonsela: Exactly in the same way that you're interviewing me right now, sir, purely as somebody who has institutional memory.

Mr Zungula: Okay, so it is a different point. However, why did you not record the meeting with him?

Adv Madonsela: As far as I know, it was recorded. I am told that the record seems to be missing, as many recordings on this matter seem to be missing, including Michael Oatley’s. But as far as I know, it was recorded because that was part of our standard operating procedures. But I do have my handwritten notes of that meeting, which I can submit to this Committee.

Mr Zungula: Did it go missing during your term or after your term?

Adv Madonsela: I do not know when it went missing, because I was just informed when the Evidence Leaders were looking for information from me that Mr Mastelha’s testimony is missing.

Mr Zungula: Okay. Talking about you recording or not recording your meetings…

Chairperson: It will be your last question.

Mr Zungula: I am almost there, Chair, I am about to wrap up.

Chairperson: Okay, sure.

Mr Zungula: Did you record the tea that you had with Premier Magashule?

Adv Madonsela: No, I did not, because I never recorded events that were not interviewed, but every event that occurred in my office was recorded. So if you go to my office right now, my former office right now, and you request my diary, which was left there, it would record that Mr Magashule came in and it would record that he left. I did not record the meeting because he said that he had come to me for a cup of tea.

Mr Zungula: Okay. In 7.6(b), you state that the tone, scope, findings and remedial actions of the final CIEX Report differed materially from your draft. Now, in light of new evidence that would have come up, would you expect that the report would have stayed the same?

Adv Madonsela: No, I would not have expected it to stay the same. In fact, all I was indicating was that it has nothing to do with what I had, and what I would have had. That is all. I was not making a judgment on the fact that it changed.

Mr Zungula: Okay, last question, Chair. In your draft report, one of the remedial actions was to introduce regulation to prevent reoccurrence of the CIEX scandal. Did you support this remedial action?

Adv Madonsela: Of course. I would have supported it if I had finalised the report. To the extent that it would be talking to lending. What I explained, Hon Zungula, yesterday, is what is in the standard operating protocols. You decide what happened; what should have happened; is there a discrepancy between what happened and what should have happened; if so, shall we call it improper conduct? And if so, who was harmed? And how do we place them as close as possible to where they would have been but for the harm. We also would then look at is there a systemic problem in this regard? So I would definitely support remedial action that was talking to future lending practices and debt collection, because this is what this investigation was all about.

Chairperson: Thank you, Hon Zungula and Adv Madonsela. I now recognise Hon Holomisa.

Mr B Holomisa (UDM): Thank you, Chairperson, colleagues and our witness, Ms Thuli. There are two questions. The first question is how did you deal with campaigns to discredit you and your staff, by the ruling party during the Nkandla debacle? The second question is, are you not suspicious that now you get praises from the same party members, when you were doing the Nkandla Report and the State Capture report, and called you names, such as Agents for America, as well as – there were a lot. Yet the opposition parties stood up and defended yourself. Those are my two questions.

Chairperson: Thank you. Just wait, Adv Madonsela. Thank you, Hon Holomisa, for those two questions. Over to you, Adv Madonsela.

Adv Madonsela: Thank you, Hon Holomisa. Firstly, thank you for the support that you unwavering provided for the team, as it did its best to pursue its constitutional mandate, and the truth and justice. I will start with your second question, Sir. I am not surprised that I get praised because we all deal with life based on the new information that we have. At any given stage in life, we act according to what we know, what we think and how we feel. That is what Neuroscience tells us. I hold no grudges against anybody who dealt with me in any particular way, at any given stage. They did so in terms of what they thought was good for them, for their party and for the country at the time. And the fact that we differ about what we think is good for the country at any given stage, does not mean we should always differ. When we have persuaded each other to see a picture, that is beyond my paradigm and your paradigm, there is room for some kind of dialectical change. So I am very happy about the changes that I see because they give me hope for our democracy. They give me hope for the country. And yesterday, I worked until very late on the Expropriation Bill. So when I see people changing with new information, I think that we can find each other on seemingly intractable issues, such as the Expropriation Bill. It has been 8 years since the African demands, and 110 since 1913. So thank you for that. On how I dealt with people who disagreed with me, I would go to them. You would recall, Sir, that I would organise meetings with all of the parties in one room to indicate how we do business, and why we do things. We would explain the procedure we follow with intake and assessment, for example, they would think I just sit in a little corner and decide what to investigate. We would explain to them that there is a whole system of intake assessment, and all of the cases are sent to members of the team to approve or disagree with the intake and assessment team's decision. And it really worked because often, if I am not wrong, we would issue joint statements. With the governing party because it was big we would meet with them. But one thing for sure, I always made sure that I brought my team in meetings with stakeholders, so that they understood that I may be the professional who is appointed to lead the team, but I am not necessarily the one with the brains and expertise to find all the answers. I rely on the thinking in the group. But ultimately, everything that I sign is what I believe is the truth and legally sound decision to make. So that is all I can say to you Hon Holomisa. And thank you for your questions, Sir.

Chairperson: Thank you, Adv Madonsela and Hon Holomisa. We will take a ten minute tea break and be back after ten minutes. Thank you. We pause.


Chairperson: I am going to proceed with the Members for the questions. Hon Sukers?

Ms M Sukers (ACDP): Thank you, Chair. Good morning, Adv Madonsela. I am going to focus on some broad questions and not the narrow focus that you were called in for here. If you are not comfortable with the questions that are asked, you can just let me know.

Chairperson: As long as they are not bringing new cases here. We will watch that, so that you stay on the issues. We will see how you spice it, but we will watch you if you are bringing new things. Thank you.

Ms Sukers: Okay. Thank you, Chair.

Adv Madonsela: Good morning, Hon Sukers. Thank you, Ma’am.

Ms Sukers: Adv Madonsela, I recollect that you appointed in evidence that was before the committee before that you appointed a process engineer to look at process reengineering work before you developed an electronic case management system. Can you explain why you did that and what the status was when you left the office?

Adv Madonsela: Right. Thank you, Hon Sukers. We, firstly, did have a case management system that was working amazingly in generating data about where our cases were at any given stage and what was the case backlog. However, it was not able to contain the volume and therefore we then appointed a process engineer to look at what were the blockages, but also to do a little bit of futuristic thinking. This viewed the blockages with the current caseload, but futuristically, how are the cases likely to multiply or contract? And therefore what kind of platform would we need? And so that was a process we had to do. By the time I left, that process had been concluded. The next question was funding the new arrangement. And the good thing was that we had been assured by SAP that the platform was fine. It was a question of the soft engineering to design a system that was malleable enough or agile enough to handle the basic functions.

Ms Sukers: It took us, I understand, more than a decade to develop a case management system. Can you explain why that process was initiated and why it took so long, really, for it to be developed?

Adv Madonsela: Ma’am, it took long because the first thing was making a decision about what to do with this system that we had. We were struggling with, is the problem, the entire system, which included the platform that was being provided by SAP, or was the problem the package or the software, the engineering that had been superimposed on the platform. So it took a while. And part of the problem was financing that process.

Ms Sukers: We had the Zambian Public Protector here, who offered an opinion that adverse court judgments are an opportunity for an Ombudsman's office to self cleanse, she called it. Courts can be in error, and we have heard that argument over and over I think before the Committee as well, therefore you have an appeal process. How do you believe an institution should deal with that, in particular, what would be your approach? Would your approach change as higher courts and majority or even strong judgments are being made findings against the Public Protector’s Office. How should it be approached? What are the factors that you would consider and weigh up in challenging judgments and instituting educational reforms?

Adv Madonsela: Well, firstly, I agree entirely with what Adv Sokoni said in that particular context. Judgments are an opportunity to self reflect and keep improving. How you deal with them is exactly how we dealt with the judgment. We were not happy with the High Court decision on the so-called Oil Gate, which was the Mail & Guardian versus Public Protector. So when I came in, Adv Mushwana had instituted an appeal, and it was expected of me not to proceed with the appeal. I proceeded with it because I needed clarity on the role and powers of the Public Protector. And I was not persuaded by some aspects of the lower court judgment. And it then went on appeal, and a decision was made about what is a proper investigation. This is now part of my teaching. This is part of what I incorporate, when I am teaching on administrative investigations and commissions of inquiry. This is what we asked one of our investigators, I cannot quite fully recall whether it was Adv Matlawe or Adv Raedani, but one of them was tasked as part of our think tank to go and extract what was the judgment to say and then bring it to the think tank. And of course, my role was to quality assure it. That became the basis of how we taught ourselves about beginning with an open mind. Keep that open mind throughout, follow the truth, wherever it is, and do not self-limit. Explore fully the powers that you have been given by the Constitution and the law. So it was an opportunity to reflect on how we do things. And I do think that judgments, it is true maybe wrong at times. But once the Constitutional Court has spoken, you have to fall in line.

Ms Sukers: I would just venture for one follow up on that. You mentioned the learning from the Mail & Guardian case and how you have now incorporated it in your training and learning of your current work. But in terms of the Public Protector's of South Africa, is there any of the learning that has become part or entrenched in the organisation in any way through systems or processes, when you left?

Adv Madonsela: It was actually entrenched in the Public Protector. It is just a spillover, Ma’am, that I am using it in my teaching. As I said, Adv Matlawe and Raedani, they, at my instance, distilled the principles. I think it is probably Adv Matlawe, because he was in the quality assurance unit. And then, with my supervision in my own edition of how I understood the judgment, we then used it. It became part of our guidelines. Initially for the longest time, we had guidelines that were based on the Mail & Guardian judgment, plus what we had learned at Sharpen Your Teeth Training in Canada and Public Admin International in London, among other things, including the IOI training. So pretty much, if you look at the standard operating protocol that I designed and left at the Public Protector, the Mail & Guardian decision is at the core of what constitutes a proper investigation.

Ms Sukers: Thank you. Is it correct that a handover meeting with Adv Mkhwebane did not take place and can you elaborate on it? I think you mentioned it last week.

Adv Madonsela: No, Ma'am, it is not correct. We did have a handover meeting with Adv Mkhwebane, but it was short because the arrangements I had made for the handover were taken over by the storms of life. Hon Members, and Chair, and Hon Sukers, you will recall that towards the end of my term, we had our own black swan, to use what the economists use, when a sudden turbulence happens that just, you know, pretty much redefines your operational landscape. And because of that, then the team process that we had planned was interrupted by these emergency meetings, redoing the report, reversing certain things that would have been… The provisional findings that I had made and were in the Section 7(9) Notice that had been given to President Zuma – all of that had now had to be reversed in the circumstances. Because of that, then, the full day that I had hoped to spend with my colleague, was not possible. But the two of us agreed in the presence of my then Deputy, Adv Kevin Malunga, that we would meet the following week. Unfortunately, she refused, flat out to meet, saying that I was no longer Public Protector, I should have done this before I left. And I know that it would have been better to do it, all of it before I left. So there was a handover. I then submitted to her a written report that, to the best of my knowledge, gave her indicators of matters where if she needed questions to be answered by me, that would be a map she would use to answer questions from me. Unfortunately, that did not happen.

Ms Sukers: I only have two more questions, Chair. Advocate, finally my last two questions. This one has to do with funding. The role of an executive is to address the issue of funding. With the Nkandla Judgment, the disbandment of the Scorpions, there was increased workload on the Public Protector. What sources of support or funding existed aside from the South African fiscus? And what were the advantages and disadvantages of using these sources?

Adv Madonsela: Thank you, Hon Sukers. There were no other funds other than from the South African fiscus. And I welcome this opportunity because there has often been a public campaign that says that I received donor funds from USAID. No, yes, USAID gives its donor funds to Treasury, and then Treasury distributes those funds to departments. And we used to get our budget from the Department of Justice. And of course, through persuading USAID we got about that kind of funding through the Department of Justice. That was for the case management system. No money ever exchanged hands between the Public Protector and any donor outside the Treasury of the Republic of South Africa. Then there was pro bono assistance. A question was asked about leadership. When I first came in as the Public Protector, I had a clear mind that I wanted rigour balanced with promptitude. And because of the original nature of the institution, I felt there was a lot of emphasis on speed and not rigour, and that those were rewarded with speed. I gave an example yesterday of KZN closing a whole lot of files because government had either said we did not do it, or government had said we do not have the answers. Then of course they would have been rewarded for the number of cases they had closed, and I did not think it was right. But by insisting on how things should be done, it became clear to me that my team was not following because leadership is influencing and inspiring others to think and act as required to achieve desired results. So I felt that the body language was suggesting that they did not like the fact that I decided that then nobody is going to get a bonus until we fix this system. And with the advice of a total stranger, who had managed under transitional circumstances, he just told me that if you want to go far, go together. But if you want to go fast, you can go alone. So that's the leader, who then assisted us with pro bono facilitation of an exercise that led to understanding what really was our purpose as the Public Protector; which was really to achieve justice and therefore, finishing a case when you have reinforced injustice is worse than not doing the case at all. And then at the end then we are on the same page, through the pro bono facilitation.

Chairperson: Thank you, Hon Sukers. Thank you, Adv Madonsela. Hon Heron?

Mr B Heron (GOOD): Thank you, Chair and thank you, Adv Madonsela. Chair, I do not know if these questions were covered. I was struggling to get in the first hour of the meeting. But I really want to just ask some questions, if I may, Adv Madonsela, around the Vrede Dairy Investigation? We have had quite a lot of evidence presented to the Committee around that investigation, and the gist of it was that Adv Cilliers, who was doing the investigation in the Provincial Office drafted several versions of a report where she did not find or implicate… she did not find any evidence or any reason to implicate politicians. And there was evidence from Mr Samuel that you were not happy with the leading out of politicians in the report. Then yesterday, I think in your evidence, you indicated that you would had had tea with Premier Magashule, and he had indicated to you that then MEC Zwane was implicated or could have been implicated. So I am trying to understand the reason why you requested Mr Samuel to take over the investigation and then to investigate the politicians. Did that come out of that tea with the Former Premier?

Adv Madonsela: Good morning, Hon Heron, and thank you for your question. Firstly, I just want to say no, that was not the basis for saying politicians should be investigated. In one of the early versions of Adv Cilliers’ report, there had been an indication that one of the officials had said ask the Premier, it was the Premier who was behind this process. It is in writing. I have asked now that the Public Protector… I asked through one of the spokesperson at the Public Protector for Think Tank minutes that deal with the Vrede Dairy matter. And I was asked that I formally do so through the Evidence Leaders. Therefore, I am making that request to the evidence leaders to please ask for Think Tank minutes on the Vrede Dairy matter and copies of reports submitted by the team to the think tank on this matter. So it is not that the politicians enter the stage very late after meeting Premier Magashule. Probably the very first draft that served at the Think Tank, had mentioned the involvement of Premier Magashule. And then when I met him, he did not say MEC Zwane is implicated. He said MEC Zwane was at the centre of this. He has all the answers. They did not say he was implicated. He said he was the person behind the project.

Mr Herron: Thank you, Professor. The committee has heard that there were several drafts of this report that were prepared by Adv Cilliers, where she continuously kept the scope focused on the administration rather than the politicians, and that it was you that were unhappy with these drafts and requested Mr Samuel ultimately to take over the investigation. But it seems that, and it is a pity we do not have Adv Cilliers here, she was not able to find a basis for investigating the politicians. And it was really on your instruction, that she or Mr Samuel included the politicians. So if she was following the evidence that she had, how did your intervention assist us to determine whether the final draft of this report is an act of misconduct, when the initial investigator Adv Cilliers continuously drafted a report that did not include the politicians? It was really, if I understand that we have so far, at your insistence that politicians were included?

Adv Madonsela: Firstly, it is not true that the first time politicians were mentioned was at my insistence. As I have indicated, Premier Magashule was mentioned in the very first draft that served at the Think Tank. Secondly, the one version that was sent back, and that was now at the level of what she was presenting as a provisional report or for consideration as a provisional report. It was not sent back because politicians were not mentioned; it was sent back because nobody was mentioned. It would say ‘officials did this’ status, literally nobody, whether official, or politician, it had no names, the actors who did the wrong things did not have names or faces. So but you are right that, in the absence of evidence that indicated to the politicians, there would be no basis to drag the politicians into the arena. However, Herron, the Mail & Guardian case was about the failure to take into account what was in the public domain through the media. And the Public Protector was found to be at fault for ignoring the Mail & Guardian, which had broken the story, and we had some information. So the Standard Operating Protocols that was operational at the time was that any source of information must be followed. And in the public domain, politicians were already implicated. If we go and ask eNCA right now, they will give you a clip where one of the beneficiaries, an older person was lamenting how they were brought into the scheme with the promises of hope out of poverty; how they had a meeting at the George hotel, in Pretoria with politicians and others, and they were brought into the scheme, but it brought them nothing but pain. So we were not going to ignore what was in the public domain because it is about beginning an open mind as an investigator. You have to have an inquisitorial mind and you have to have some healthy scepticism.

Mr Herron: Thank you. If I may just wrap up, Professor. I understand that there were allegations in the public domain and so that is a basis for including political players in the investigation. Did you ever discuss with Adv Cilliers why she continuously excluded the political players so that you ultimately had to sort of remove the investigation from her and hand it to Mr Samuel?

Adv Madonsela: It was not removed from her because of excluding political players. It was removed from her for not having done a forensic investigation. It is in the standard operating protocol that when there are allegations of impropriety that involve conduct failure, in other words, it is now beyond service failure, or maladministration, there is an alleged or suspicion of corrupt relationships, you must conduct a forensic and that had not been done. I spent a whole day training the team in Bloemfontein on this, and after it had been going backwards and forwards and it was still not at the level of rigour that was required by our own standard operating protocol, I asked that Mr Samuel, take it over. And this was not a judgment on Adv Cilliers. She was an ace performer on early resolution. She had been in charge of early resolution. And if you see the stats that are going to be submitted by the Public Protector, contrary to what was suggested yesterday, we did exceptionally. It might even be better per capita, because of staff performance, like Adv Cilliers, but this was an investigation of a different nature and we needed to comply with our standards, operating protocols. But more importantly, the courts that already told us in the Mail & Guardian judgments, what a proper investigation is.

Mr Herron: Thank you very much. Thank you, Chair.

Chairperson: Thank you, Hon Herron. Hon Siwela?

Adv Madonsela: Thank you, Sir.

Ms V Siwela (ANC): Thank you, Chairperson. Greetings to Adv Madonsela and the colleagues.

Adv Madonsela: Greetings, Ma’am.

Ms Siwela: I have one question and it is in relation with the quality reports and the Think Tank. During our deliberation with Mr Samuel, he gave evidence that the incumbent did away with the Think Tank. What was the effect of the Think Tank in producing quality reports during your tenure? I want to check that.

Adv Madonsela: Thank you, Hon Siwela. The impact of the Think Tank on investigations was priceless. You can get this from minutes as I indicated to you one of my strengths is of course interpretation of the law and the Constitution. And the powers of the Public Protector is one example in that regard. But when it came to that Think Tank, different people brought different expertise. For example, there would be those that are coming with a lens of the understanding of the law of contract; the lens of understanding of common law, because although the Public Protector…

Chairperson: Just a pause, Adv Madonsela. Anybody’s mic on? You want an opportunity. No, thank you. There was an echo here. Apologies. Continue, Adv Madonsela.

Adv Madonsela: Thank you, Sir. Hon Siwela, I was saying regardless of my strengths as an individual, having the different lenses that my colleagues that Think Tank brought, allowed us to view each letter from multiple angles and multiple lenses. Time will not permit me to talk about different cases where I had a particular view, but when people brought their views to bear and reading directly from the cases that they had in their heads, it was possible to determine matters differently because at the end of the day, each decision was mine. But I benefited from the village. In Ubuntu we say it takes a village to achieve great things. Thank you.

Chairperson: Hon Siwela?

Ms Siwela: Thank you, Hon Madonsela, for your response. Thank you.

Chairperson: She is not Hon Madonsela. She is Adv Madonsela.

Ms Siwela: Sorry, Chair. Sorry, Adv Madonsela.

Chairperson: Unless there is something else that you know that we do not know.

Ms Siwela: Maybe it is a promotion, Chair.

Chairperson: Go ahead, Hon Siwela. Are you done?

Ms Siwela: I am done, because I am covered by other Hon Members.

Chairperson: Oh, okay. Thank you, Hon Siwela. Hon Mananiso?

Ms J Mananiso (ANC): Thank you, Chairperson. Let me start by welcoming the team leaders, the support staff and Adv Madonsela. Chair, I think on other questions, I must say that I am partly covered by other Members. However, I only have one question for Prof Madonsela. When she gave her testimony during the cross-examination process with Adv Dali Mpofu, she related that she has inherited a well-run institution. However, she further said that the institution is not perfect. So I want to take us through what she meant and as well, in future what needs to be done at the PPSA. Thank you.

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

Adv Madonsela: Greetings, Hon Mananiso. Thank you for your question, Ma’am. I do affirm that I said that I inherited a well-run institution. And for that, I think my predecessors Adv Selby Baqwa and Adv Lawrence Mushwana. By the time we got there, there was a very clear understanding that the Public Protector is not just there to inquire; the Public Protector has to investigate and provide remedies. So for example, Mushwana left me to follow up on remedial action on the Nandoni Dam, and we followed up on that. Adv Baqwa, among other things, he had really been strong on ethics, and that is one of the areas that we became very strong on. Thirdly, both of them had left the office with the highest standard of professionalism. I never got a sense that the team was politicised. And I can say right now, without fear of contradiction, that I had no idea whose political persuasions were, because they really just dealt with these matters professionally, and for that, I thank my predecessors for not politicising them; for conscientising them about transformative constitutionalism and transformative justice and for them to understand that they could make a difference. I also liked the Ubuntu. People like Pona and Sekele would pay for complainants to come to the Office with their own money, and provide them food where necessary. So that was the culture that my predecessors had left that were built on. And then Adv Mushwana had then built the case management system, which sadly only failed because of capacity, not because of the approach. So what needs to be sorted out because I noticed that there are still issues around fairness; around following the standard operating protocols. I would say one of the things that needs to be considered is having regulations under the Public Protector, to change the Public Protector Act, if possible. And again, this is a recommendation, which I want to distinguish. When I was the Public Protector I could distinguish between when I was directing somebody, because I had the power to direct, and when I was recommending, where I would say you should consider doing this, because I understood this is now outside my mandate. So what I am saying to you now, is just a pure opinion. The Act needs to be refined to streamline it, but more importantly, perhaps, allow it to have regulations that streamline these processes. Secondly, there was a lot that was made about vetting. What I had recommended to Parliament and to the Department of Justice was an oath of office and institution that is so powerful as people who are not members that are not required to be members of any profession, and therefore only way as a member of the Public Protector Institution or family, you can be held accountable is through this process. You cannot be – okay, you are a member of the IOI, which is voluntary. I think we need to have the investigator profession professionalised, and I have been talking to the Gauteng Province, where I have helped them with their standard operating protocol on investigations on forensic investigations, because I Chair the Advisory Committee on investigations. I have also then recommended to the Public Service Commission that we should professionalise the investigator brigade and have proper training that is accredited for this brigade in the same way that lawyers are trained. And then Parliament should fund…

Chairperson: Thank you. I think you have well-covered the points, Adv Madonsela. Hon Tlhape?

Adv Madonsela: Okay. Thank you, Sir. Just the last thing. Fund or assist them if it has not been finalised – the case management system.

Chairperson: Thank you. Hon Tlhape?

Ms M Tlhape (ANC): Thank you, Chairperson. Good morning to you and the team that is there for the Public Protector, the Evidence Leaders, my colleagues and the public at large. Good Afternoon, Prof Madonsela.

Adv Madonsela: Good afternoon, Ma’am. How are you?

Ms Tlhape: I am well, thank you. Prof Madonsela, I am interested in the operations during your tenure. Probably we should start on the Think Tank that my colleagues have just asked on. I just want to understand from you, what you would say is the impact on the quality of the reports, without the Think Tank? My understanding is that it has been dealt away with. Do you think it has got any impact?

Adv Madonsela: Thank you for your questions, Ma’am. I think this is one territory where it would be unfair for me to pass judgment on the quality of reports of my successor. All I can say to you, Ma'am, is that my own reports and my own thinking was enriched immensely by the think tank. It could get a little bit heated when somebody reminds you, I used to be a magistrate, so I know what I am talking about. But it was fun at the end because we spoke about learning and growing together. And definitely the quality of reports was far more robust than it would have been without the Think Tank. And over and above the Think Tank we had the quality assurance unit that then had to again review the reports.

Ms Tlhape: Thanks, Professor. My other question is on issues of consequence management. What measures did your Office employ, for instance, when investigators could not meet deadlines?

Adv Madonsela: Thank you, Ma’am. There were cases where investigators met deadlines and certainly the starting point as Covey says in the Seven Habits of Highly Effective People is seek first to understand. So I would want to understand. For example, there was a case where an investigator was struggling with meeting deadlines. And the immediate manager had had it, and just wanted him disciplined and possibly fired. And of course, you do not want to overrule your leaders, but you want to know what is going on. When we had a meeting with the investigator concerned, we discovered that he had an autistic child, and they were battling to find an autism school, and generally they were battling with this new phenomenon that is called Autism, where a whole lot of you know, cultural myths around surrounded and you are a young couple, and you have to battle with this. And therefore, we then sought to provide well-being support as a basis and he became one of the stellar performers from that. And so, in every case, you would follow the procedure of finding out what happened the same way as we conducted our investigations; what should have happened. Is that a discrepancy between what was promised, which were the outputs, and what was delivered? And if there was, is there an explanation for this discrepancy, a valid explanation for the discrepancy or disparity. And if there is a valid one, then you correct the situation based on the outcomes of that process, because the idea was not to break people or to make the organisation a fragile organisation. The idea was to make it a high performing institution, but knowing that firstly, every human being matters, as Bob Chapman says, in his book that says ‘everyone matters’.

Ms Tlhape: Thanks, Prof. Now, my other question is on the processes of quality assurance. Mr Tebogo Kekana, before this Committee, indicated that for the Vrede Report quality assurance processes were omitted before its final publication. I just want to hear from you, is it a problem? How essential, in fact, is the process of taking the draft reports through quality assurance before final publication?

Adv Madonsela: Thank you for your question, Hon Tlhape. I must again say I cannot comment on my successor’s system. We all design systems to the best of our ability, but there was a standard operating protocol (SOP) that said how things should be done. So if my successor amended the standard operating protocol, and quality assurance was no longer a step in the SOP; who am I to judge differently? Again, I just reiterate that for me, quality assurance was important. But earlier on I was asked what I could do to change the system. Of course, you need a robust, electronic case management system. But you need each investigator to deal with the investigation as if they were the only ones who were to issue it. That is why training is important, because then if investigators do not do their investigation as if they were going to be the final authority on it, then you get a backlog at quality assurance, where they also have their outputs in terms of how soon these investigations should come out. Thank you, Ma’am.

Ms Tlhape: My last question, Professor. Me and you will just go around this thing of the operations systems and your indication that you cannot venture into what your successor is doing. But I am asking this because as and when witnesses came before us, it looked like this was problematic. Mr Mataboge and Ms Mvuyana indicated that on another report that was set aside by the court, the current PP kept investigation close between three people and went into the very same standard operating procedures. Is it a problem? Or was it normal? Or is it okay to do that? Would you say, as a person who is experienced, it is a problem to keep an investigation report close to three people?

Adv Madonsela: At the level of investigating, Hon Tlhape, you may initially keep the investigation to two or three people because you are containing information flow, if it is an investigation where the leak of information could jeopardise the investigation. So that has happened with Nkandla, et cetera. But what then happens is that nothing and I mean nothing, during my time, ever went through without the normal quality assurance team. And the quality assurance team was investigators, so it did not include my Chief of Staff, or the CEO or Spokespeople. It was investigators that had been regrouped into a quality assurance team.

Chairperson: Thank you.

Ms Tlhape: Thank you, Chairperson. I do not have any more questions to ask.

Chairperson: Thank you. That was the last question, but then I saw the hand dropping. I will give her two minutes. Hon Gondwe?

Dr M Gondwe (DA): Thank you very much, Chairperson. Good morning, Prof Madonsela.

Adv Madonsela: Good morning, Hon Gondwe.

Dr Gondwe: Thank you. I have two brief questions for you, that are somewhat related. My first question is, during the course of this Inquiry, we had evidence that the SSA was actively involved in the operations and affairs of the Office of the Public Protector. And I wanted to find out from you, if you think it is important for an institution, such as the SSA to be actively involved in the operations, and the affairs of an institution such as the Office of the Public Protector? A case in point, we heard how they sat on an interview panel, and how someone from the SSA was seconded to act in the Office of the Public Protector, and at some point, advice was solicited around the development of an electronic case management system. So that is my first question.

Chairperson: Since they are related, can you also deposit the second one?

Dr Gondwe: Okay. The second one is around a top secret security clearance for investigators. And I know you have alluded to this somewhat indirectly in the course of your responses, but I just need you to respond to my question. And my question is simply this: how important is it for investigators to have top secret security clearance in the Office of the Public Protector? And, you know, not having a top secret security clearance, would you deem that as an impediment towards them being able to conduct investigations? Now, I am asking this because we also heard during the course of oral evidence before the Inquiry that the former DPP, Adv Kevin Malunga, was literally sidelined when it came to investigations because he did not have a top secret security clearance. So my question is simply how important is it for, you know, an investigator and you know, even Deputy Public Protector to have a top secret security clearance.

Adv Madonsela: Thank you, Ma’am. On your first question about the involvement of the SSA, I would definitely not involve them. And not, because during my time, according to journalists, they issued three crazy spy stories that had no sense, including one where a judge was speaking incoherent English and yet it came to be a transcript of my conversation with him as my handler. So that is aside from the fact that there was a time when the SSA had gone rogue, and that is during my time. But I would not involve any department in matters of the Public Protector because the Public Protector is there to oversee compliance with the requirements of proper conduct and state affairs, by all organs of state. And therefore you want to make sure that you have an arm's length relationship. For example, the one department I had a relationship with virtually all my life was the Department of Justice. I had a relationship with that department, long before I joined in 1995 as the deputy head of the planning unit, but I would not involve them because we had to oversee them. It is very important in the office, well it was important to me that my office was totally independent, but also seen to be independent. It was important for me that all my decisions were my decisions as advised by the team, of course. Not even as advised by lawyers. There was no investigation where we even sought the advice from outside except the investigations that were conducted by outsiders but concluded by us. So yes, I would say no to the SSA fraud in my time, but I am not going to comment on what somebody else would want to do with that institution. Secondly, on top secret clearance. My own view, which was my submission to Parliament during the time of the late Ben Turok, was that we should introduce a vetting system that I had found operating, I think it was in New York, where you have an integrity unit that does the vetting. Therefore, it takes it away from toxicity. Clearance – when I came there, the staff had not been top secret cleared. Then the Auditor-General insisted, but still the majority of the staff was not cleared because there was a backlog in clearing staff. There is absolutely no way I would have subjected my Deputy to clearance because it is not done to offices such as ours. It is not done to the judiciary; it is not done to the Human Rights Commission. It is not done to you Members of Parliament. And why? Because there is a process like this, that the Deputy, like myself, would have been subjected to, when members of the public would have been asked to submit anything and anything under the sun that they thought would be an impediment to him being appointed, or anything that made him or her not a fit and proper person to take that role. I was asked why subject myself to a regime that I did not want to be subjected to. I had to comply because of audits requirements, and of course, because of that I had to comply with that. But I do think staff has to be vetted in one way or another. The staff, nobody takes an oath, which is one of the recommendations suggesting that everyone should take an oath from the Public Protector to the staff. It is an omission. And I did point this out to the Department of Justice, and before they take an oath, check them out.

Chairperson: Thank you, Adv Madonsela. I think that answer is well responded to. Now, as we wrap up, I am going to ask Adv Mpofu to come back for any pick up questions, as we wrap up.

 Adv Madonsela: Thank you, Sir.

Clarification questions by PP Legal Team
Adv Mpofu: Thank you, Chair. Good morning, Ms Madonsela.

Adv Madonsela: Good morning, Adv Mpofu.

Adv Mpofu: Thank you very much. I am just going to do some pick up questions, but I just wanted to… Chair, you saw my hand when I was trying to raise my hands when Hon Gondwe was asking questions, but I thought to save time, let me just deal with those issues, now, upfront. Just to assure you that the record will show that there is no evidence here that has been led that SSA was actively involved in the operations of the Public Protector. Neither is there any evidence that Adv Malunga was sidelined because he did not have security clearance. That is just for the record, but we will deal with it maybe when we summarise the evidence. Alright, I think, Adv Madonsela, let us… Sorry, you will forgive me, that is how I am used to addressing you. I think let me just start with the issue of the affidavit, so that we get it out of the way that Adv Mayosi dealt with. I know that you and I differ on the adage that context is everything, especially in interpretation. But I do not want to spend more time on this than is necessary. I want to take you to page 409 – that is your first statement. Yes, can you go to… Oh, it is 93, I think, the last page. Now, you have been taken through the dynamics of this statement, so I do not want to waste time on it. I just want to refer to two important features. This statement, you know, firstly, you signed on top of the name correct?

Adv Madonsela: Yes, Adv Mpofu.

Adv Mpofu: Yes. And, in fact, you misspelt your own name there, correct?

Adv Madonsela: The person who typed it for me misspelt it. We were in a hurry. It was Saturday. The deadline was at four. I did not see that. I was trying to chase the deadline.

Adv Mpofu: Yes, that is fine. Okay, then let us go to the bottom. The date was 23 February 2023 – original date, correct?

Adv Madonsela: The Commissioner of Oaths mistakenly put 23rd. Then he realised he had made a mistake and put 25th, and therefore changed it.

Adv Mpofu: Yes, good. Okay, that is fair enough. And then, because he made that change, then he initialled that change and made a mark there, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: And you made a mark against his mark, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: And that is to confirm that change has been affected by both of you in the presence of both of you on the 25 February 2023, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: And you did that irrespective of the fact that on that same page both your full signature and his full signature appear there because that was for a different indication. The mark was for a different purpose, correct?

Adv M Madonsela: Yes, Sir.

Adv Mpofu: Yes, okay. So, do you now understand what Regulation 4(1) means, when there is a mark of the Commissioner and also the mark of the deponent?

Adv Madonsela: No, that is not what it says, Sir.

Adv Mpofu: Okay, what was the purpose for those two marks that you made there?

Adv Madonsela: We made a choice, given what the Mohammed case says, we were not required by law, but we made a choice with this Commissioner of Oaths, because this is a different Commissioner of Oaths, to sign together – or he made a choice, because he was in charge of this process of the signing as Commissioners of Oaths are. He made the choice that I should sign next to him. It was not legally compulsory in terms of Minister of Safety v Mohammed.

Adv Mpofu: No, Minister versus Mohammed has got absolutely nothing to do with what we are discussing. I am asking about… The Minister of Safety and Mohammed talks about singing every page; I am not talking about that. I am talking about the corrections you made on the change of date. What does that have to do with Mohammed?

Adv Madonsela: Okay, sir. Minister of Safety versus Mohammed has nothing to do with what you are talking about.

Adv Mpofu: Yes, thank you. Alright, that is fine. As I said, do not want to spend too much time on this. All I am saying is that, despite the fact that both your signatures in full appear on that page, you both found it necessary to sign and countersign against the alteration on the date. Alright.

Adv Madonsela: Exactly, which has nothing to do with either the regulation or the Minister of Safety.

Adv Mpofu: You just did it for fun?

Adv Madonsela: We made an election or he made the election and I complied. Which is what Minister of Safety v Mohammed says.

Adv Mpofu: No. Minister of Safety versus Mohammed says something about alterations on affidavits, in your estimation?

Adv Madonsela: No, it says nothing about alterations. That is why I did… Neither does the regulation that you cited say anything about alterations. That is why I do not quite understand. Maybe you should repeat your questions, Sir? I do not know what you are trying to say. I do not know what you want me to say.

Adv Mpofu: Just answer the question. You do not have to know what I am trying. I am not saying anything. I am asking you a question. You just answer it truthfully, and honestly, as you saw at the beginning of these proceedings. Okay, let us go then to the next statement. That is the one on page 486. Now, let me ask you this. Do you know that these precedents are very important in the history of this country? Unprecedented, correct?

Adv Madonsela: Absolutely. All proceedings are very important as far as I know. That is how I handled my cases as the Public Protector.

Adv Mpofu: Alright, that is fine. Okay, but you do know that in posterity people will look back at these proceedings probably as a reference point when any impeachment or if an impeachment occurs, because well, you might not know the history of how the rules came into being, but at least it is predictable that this will be a reference point, correct?

Adv Madonsela: I really do not know. It might be immediately superseded by another precedent. I really do not know what the future holds, Sir.

Adv Mpofu: Yeah. No, that is fine. That is fine. Alright. Now, tell me, if somebody in a hundred years, not now, comes across the affidavit 486 – comes across that affidavit. Okay? You explained that there are two marks and a mark below. Let us go to the next page, because that is the more important one. Start at the top. You changed there. There is an insignificant change. You changed the word ‘summons you’, it was ‘your’ to ‘you, and removed the ‘r’, correct?

Adv Madonsela: No, Sir. Please, you must read the originals before you make these allegations.

Adv Mpofu: Okay, what were you singing against there?

Adv Madonsela: But really you should have read it before you make accusations, Sir.

Adv Mpofu: Adv Madonsela, Professor, Miss… whatever you are. Please answer the question. What were you changing when you signed at the top of that page?

Adv Madonsela: I was changing the sign, the accidental sign that in the computer is in the same space as a period that was the sign there. And it was shown this morning, Sir. Are we going to rehash something that was shown to this Committee this morning?

Adv Mpofu: Ma’am, please answer the question. What were you changing when you signed next…

Adv Madonsela: I was changing what was shown to this Committee this morning, and was referred to by Adv Mayosi, which was a sign in the same key on the computer as a ‘period’ sign.

Adv Mpofu: So why are you answering differently from what you were answering when you were asked by other people? What is so difficult about telling the Committee what you are changing? So it was a ‘period’? And you signed against it. And then at 7.3, what were you changing there?

Adv Madonsela: Sir, I am not answering you differently. You firstly, on the record said I changed an R. I said to you, I did not. To my colleague earlier, I answered yes or no, when she was showing things on site. She never accused me of things that I had not done.

Adv Mpofu: Okay. What were you changing at 7.3?

Adv Madonsela: As you can see, there is Paul Hoffman, and out of respect, and professional courtesy, I thought we have to say ‘Adv Paul Hoffman, SC’.

Adv Mpofu: Yes. And on… Sorry, just go back to paragraph five – paragraph four. There you were changing a small letter C to a capital letter C, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: And then in the next one, at paragraph five, that was not a cosmetic change, like the others. It was changing the date from 1 to 21 February, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: Good. So we can safely say… Then 8.3 you are changing a Y or a letter – I am sorry, I am scared now of even identifying the letter. You were changing a letter of the alphabet at 8.3, taking it off, correct?

Adv Madonsela: No, Sir. It does not take a letter of the alphabet, as can be seen in the version that was aired this morning. It was ‘the’, which is T, H, E, which was changed to ‘they’, which is T, H, E, Y. So a letter was added.

Adv Mpofu: Added? Okay, so you are adding a letter of the alphabet. And then at 9.6, you were adding a letter of the alphabet, S, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: Right. So we can safely then say that was a collection of, let us call it one substantive change, and some of them just grammatical spelling changes, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: Right. Now, I am saying this in relation mostly to the substantial change. And then of course, you also changed another letter of the alphabet, on your name. It was no longer ‘Nomkhoso Madonsela’, but ‘Nomkhosi’, or ‘Nomkhos1’, whatever. You were changing the letter O to I, I suppose. Correct?

Adv Madonsela: Yes, Sir. Which is aligned to the heading of this affidavit.

Adv Mpofu: Yes. Right. Now, I am saying if someone reads this affidavit… Alright, let me just make it… All these changes that you made here, substantial and not so substantial, you did them then on the 28 February or the 1 March, correct?

Adv Madonsela: Yes, Sir.

Adv Mpofu: Yes, what? Which one is it?

Adv Madonsela: Oh, the changes were done by me before the… I must have done them on that Sunday when I came back from some event, but could only then have a Commissioner of Oaths for the electronic version much later.

Adv Mpofu: Okay, good. So you did them on the 26 March, or rather, sorry, February, according to you. And then they were only commissioned on the 28th, right?

Adv Madonsela: Effectively, this affidavit when it was submitted, was not meant to be the affidavit. So my understanding is that before this Committee, there are two versions of the affidavit. Can I just finish because this was what I said in my email, is it not? There are two versions of the affidavit. I am submitting the electronic, but for ease of reference, I am also adding the hand changed one because of the speed with which things needed to be done, it should be easy for the Committee to look at the version of the 28th and say ‘where have the changes happened’. I was trying to prevent the hullabaloo that ensued when a belief was entertained, that the affidavit had been changed. And it was now a nine-page document. So I wanted to keep it clear: this is the change. But what I was submitting for this committee's consideration was the electronic version that was again, read this morning.

Adv Mpofu: Yeah, well, that cannot be true, madam, because the hullabaloo that you are referring to only occurred after 10 o'clock, or after half past 10. You did this, you say on Sunday, two days before? Or were you predicting a hullabaloo?

Adv Madonsela: No, I was trying to prevent the hullabaloo, which happened anyway, because my intention was to not stress this Committee by submitting a new affidavit. Number one, an affidavit has to be submitted seven days before parties. So if I am submitting a new affidavit that for all intents and purposes, satisfies the requirements of an affidavit. But for this Committee to entertain it without stress, they needed to know, what is the difference between that affidavit and the one of the 25th. Thank you, Sir.

Adv Mpofu: Alright. No, it is fine. For now, let us accept that as your explanation. But you would accept that somebody who reads this affidavit, twenty years, thirty years from now, will make the following conclusion, that there is an affidavit which has those changes and those changes, at the bottom of that there is signature of the Commissioner of Oaths, and therefore those changes were made on the 25 February 2023. You would admit that, correct?

Adv Madonsela: No.

Adv Mpofu: Now, okay. So if someone walks in where you are, there in Stellenbosch, and takes this affidavit; looks at it, sees all the changes from the 21 February 2023 and everything there. At the bottom it says ‘Thulisile Nomkhosi Madonsela’, and then it has a sign of Commissioner of Oaths, 25 February 2023. When are they going to think those changes were made?

Adv Madonsela: Well, I do not know. I think a reasonable person would Inquire. Are we talking about a reasonable person, or an unreasonable one?

Adv Mpofu: No, I am talking a hundred years from now; we will all not be here. I am saying that a reasonable person, who picks up this affidavit, when will they say those changes were made?

Adv Madonsela: I think they might think about these changes in multiple ways. If they think in complex terms, as I expect reasonable people, especially lawyers, I would think they might think it could have happened anytime. And if they were reasonable people, they would inquire they would not assume.

Adv Mpofu: Okay, let us say a judge, who is prima facie a reasonable person. If a judge sees this affidavit like this, with all these changes, when will he or she think that they were made?

Adv Madonsela: I would expect a reasonable judge to want to know who made them, because a reasonable judge would want to know the Genesis or genealogy of the affidavit. In fact, a reasonable judge would be like me as a Public Protector, because as a Public Protector I knew people could manufacture documents. I would therefore never presume when things happened, I would investigate.

Adv Mpofu: I see. But you do accept at least since you do not want to answer that question, that when you make these signatures, and marks and all that, it is really not for your own edification, it is for the reader out there; a judge or whoever might read this in 200 years time or the Chairperson, or whoever will be reading the record? When you signed there, you are communicating outwardly to someone else?

Adv Madonsela: No, Sir, I disagree. I do not sign or write for [inaudible]. I write to communicate with the people that I am communicating with. And that is why I took extreme care to send two versions of the same document so that they would not be confused as to this clean document, which had been properly signed, according to the Mohammed case. But now they would have to wonder, what is the difference between this one and the one we received on Sunday? So I was communicating with those people. And that's what I do. I never do anything for the public. I do not play to the gallery. I am present where I am supposed to be.

Adv Mpofu: Alright, Ma’am.

Chairperson: Thank you, Adv Madonsela. I have two hands. Just a pause, Adv Mpofu.

Adv Mpofu: Okay, Chair.

Chairperson: Adv Mayosi?

Adv Mayosi: Chair, thank you. I am just struggling with this line of questioning, given the current context of this affidavit to these proceedings. I am struggling with what relevance it has, what a reader might think of it in 30 years time?

Chairperson: You drop your hand? Okay. Yes, Adv Mpofu?

Adv Mpofu: Yes. No, Chair, well I am not here to cure Adv Mayosi’s struggles. The reason why I am asking the question is that the affidavit or the document that we are reading, although the witnesses evading the question, is any document like this Chairperson, when you sign that signature is meant to communicate something to somebody, at least I hope. You do not just sign. You are singing to say to whoever reads the document, because you cannot, when you read affidavits in a court case – you do not go back to… – or a Constitutional Court Or whatever, that you have to go and inquire from the people that signed that document. That is just absurd. So when you sign an affidavit like this, you are communicating to the reader, really, something, whatever it is that you want to communicate. And, for example, when they signed with the commissioner of oaths against the change of the date, they are communicating to whoever it is, that although it might look like the 23rd, now it looks like the 25th, but we corrected this and then we all know. That is how I know, I was not there. I know it because I can read from this. The question is very simple, and the witness knows the answer, but she chooses not to answer it, that when you read this affidavit, you will know, or at least you will read that there were corrections made, yes. And they were made on the 25 February 2023. But that would be false, because on her new version, now, they were made on the 26th. So we now have three versions; one was done on the 23rd, or the 25th, which is the correct one. The second one on the 26th and the other one on the 28th. That is all I am trying to portray. It is very obvious, actually. But if Adv Mayosi is struggling with it, there is very little I can do.

Adv Madonsela: May I respond? No, no, Adv Mpofu. You said yesterday, you are not going to make an allegation, and then leave me dry. May I respond?

Adv Mpofu: I did not make… Chair? Why are you addressing me? Chair?

Adv Madonsela: Okay, Chair, may I please respond?

Adv Mpofu: Chair, I have not put any question. I am going to put the question. You will then respond to the question, Ma’am. Okay, maybe for your assistance, I was going to move to something else, so that I give you the opportunity to respond. You, Adv Madonsela, are disputing the fact that somebody, anybody, reading this document would be left with the impression that these changes were made on the 25 February 2023; which impression would be false? Is that your evidence? So that we can move on.

Adv Madonsela: Yes.

Adv Mpofu: Yes, Ma’am. You can explain.

Adv Madonsela: I do not think everybody has a single mind. Firstly, just going back to if I communicate with the intention to convince the person I am communicating with, then I agree with you, because this was sent in communication with the Evidence Leaders, and it was also sent to the legal team. So a reasonable person would take this document with the email that was sent to them to say we are sending you two documents. And because this document was not even at the time, it was really sort of photocopied, and therefore it became one document with the final document. So a reasonable person would read the email first and understand, ‘okay, the document that is being proffered as the affidavit is the corrected version of the 28th, properly signed by a commissioner of oaths. And then this document is not being proffered as a document to be relied on, because it is only telling you the owner of the electronic version what are the changes. So a reasonable person would want to know the context and chances are they would find these documents together. And, of course, an unreasonable person, I cannot be held accountable for how an unreasonable person would twist a simple matter into a complex matter.

Adv Mpofu: Okay, so only an unreasonable person would think that the 25 February means the 25 February. Okay. And all of this, what you are saying, would come from your email, which simply reads ‘Dear colleague, kindly receive an edited version of the affidavit. I apologise for the errors in the initial one.’ What you have just said is encapsulated in that email for the reasonable person, correct?

Adv Madonsela: A subsequent email indicated what is the relationship between the two documents.

Adv Mpofu: Alright. Okay, Ma’am, let us move on. That is fine. I think the facts speak for themselves. Now, let us come to your favourite…

Adv Madonsela: No, no, wait. Chairperson? A reasonable person would…

Adv Mpofu: Can I please finish? Madam, please let me finish? Then you can interrupt me.

Chairperson: Okay, let me pay attention to Adv Madonsela.

Adv Mpofu: Haai.

Adv Madonsela: I am saying a reasonable person would not split the document because just as when the document was received, it was thought to be a nine page document. Honestly, good people. A reasonable person would look at the document and realise that it is not a nine-page document, it is two documents. And they would want to then understand what is the relationship between the two documents. I therefore deny what Adv Mpofu, you are trying to do here. Are you trying to run away from the fact that yesterday you misled this Committee about what is required to make the affidavit of the 28th an affidavit? And now you are now shifting the goalposts to the corrected affidavit.

Chairperson: Thank you, Adv Madonsela. Adv Mpofu?

Adv Mpofu: Well, Chair, I do not know why you want me to say anything, because I do not know what the witness was responding to? I just uttered two words and you allowed her to interrupt me.

Chairperson: She wanted to address the Chair, and I allowed her.

Adv Mpofu: No, she was responding to what I was saying.

Chairperson: She asked for permission to speak, and I allowed her.

Adv Mpofu: In the middle of my question?

Chairperson: Like anybody does.

Adv Mpofu: Okay, it is fine. I will not ask that question again, because you and the witness seem to know what the question was and even the answer. No, it is fine, Ma’am, let us move on. I will not ask you what I was trying to ask you because you interrupted me with permission. Now, let us move onto your favourite topic; the one that you said I am running away from. Sorry, Chair, I am just looking for my judgment. Right, do you persist with your version of yesterday that you are not aware of the practice of both the deponent and Commissioner of Oaths sign every page? Are you aware of that practice?

Adv Madonsela: Adv Mpofu, you are distorting my words once again.

Adv Mpofu: No, just answer the question, Ma’am. Do not insult me.

Adv Madonsela: I do not persist with a version that I never offered, Sir.

Adv Mpofu: Then say so. You do not have to insult me, Madam. You just say yes or no and then give your explanation. There is no need for you to insult me. I feel nothing to be insulted by someone like you. So just do not do it. Just answer the question.

Adv Madonsela: But I am… Chair?

Chairperson: Sorry, just pause, Adv Madonsela. Adv Mpofu, yesterday, I did ask that the language be toned down.

Adv Mpofu: When I speak the language must be toned down? You allow me to be insulted? No, man.

Chairperson: Are you going to listen to me, Mr Mpofu? Are you going to listen to me? Once I do this, I am going to ask you to wrap up also. It is not proper that you use such language in this Inquiry. To even go and say you are not insulted by someone like you. We cannot allow for that in the space of Parliament. Yesterday, she used a language that says ‘is another low from you’, and I called her to tone down and stop doing that, which she did. I cannot allow this to continue in the same Inquiry. So I am asking you to please tone down the language.

Adv Mpofu: Anyway, Chair. You are completely unfair because you allowed her to say something about my standards but now you are up in arms to defend. But that is fine. Ma’am, I am saying the case of Mohammed also refers to the practice of signing on both pages. Are you aware of that?

Adv Madonsela: Yes, I am. I cited it yesterday, Sir.

Chairperson: Just before you proceed. Okay, I was just going to ask you to switch on your video because it was off. I was not sure what the difficulty was. Thank you. Proceed, Adv Mpofu.

Adv Madonsela: thank you, Sir.

Adv Mpofu: Yes. And are you also aware of the practice referred to in that case?

Adv Madonsela: I am aware, Sir. Yesterday you did not ask me about the practice. You said to me, you as a Public Protector, in all of your years as Public Protector are you aware of any case where the commissioner of oaths and the deponent did not initial every page together? I said,’ I do not know. I did not check everything.’ Which means that I was right, that there may be cases where it was not done. Hence, the Minister of safety v Mohammad Case. This case would not have happened if there had not been instances when somebody did not do it.

Adv Mpofu: Alright. Okay, Ma’am. Okay, fine, at least now you are aware of the practice. Firstly, that is not what I asked you. But that is fine. The record will speak for itself. Let me just assist you as to what I was talking about. Or at least do you accept that in the… Oh, no, let us do it like this. Do you remember me saying yesterday that the question was not aimed at a question of validity? Remember that?

Adv Madonsela: Oh, it was not because throughout you were talking about illegality and if it is illegal, according to the law it is valid. That is the principle of legality.

Adv Mpofu: No, Ma’am. Please man, listen to the question; I am begging you. Did you hear me yesterday saying that when I raised these four or five pointers, it was not only the question of validity? Or you did not hear me? If you did not hear me, you did not hear me.

Adv Madonsela: Please repeat yourself, Sir?

Adv Mpofu: For the third time, did you hear me yesterday when I said some of the issues I was raising had to do with the, let us call it the conduct of the Commissioner of Oaths, and you as a deponent and not only about the validity of the affidavit?

Adv Madonsela: Oh, I heard you malign the two colleagues that signed and suggested there may be some criminality. Is that what you are referring to, Sir? If not, please refresh my memory? You said a lot of things, Sir.

Adv Mpofu: No, that is fine. No, it is okay. I cannot repeat it for the fourth time. Anyway, the law is very clear on this, that when to comes to a question of validity, something might be allowed, but there is an established practice, and that practice, I think you and I went through it, among other things, is meant to prevent forgery or someone manipulating other pages and so on. That should be obvious. That is why we initial every page, correct?

Adv Madonsela: You said that I think or something to that effect.

Adv Mpofu: Yes, do you agree with it?

Adv Madonsela: It is to authenticate, and of course, each circumstance differs from another. In this particular, with the Commissioner having the original signed by another commissioner and me being present there, made it just easier to quickly do this and running against time. So yes. The practice, I guess, has a reason, everything has a purpose, but there are outlying situations as happened in the Mohammed case.

Adv Mpofu: Yes. Okay. Well, the evidence leaders seem to suggest supporting you and the commissioner’s deviation from that practice. And I just want to tell you that the Evidence Leaders, just as a matter of interest in this Committee, have presented statements where both the commissioner of oaths and the witness signed on each page and that includes the person you called the young investigator. The following statements are signed by the commissioner and the witness on each. Statement of Mr Tebogo Kekana, dated 18 July 2022; the statement of Mr Vusi Mahlangu, dated 2 August 2022.

Chairperson: Just a pause, Adv Mpofu. There is a point of order. Hon Mileham?

Mr Mileham: Thank you, Chair. Chair, I am sorry to interrupt Adv Mpofu, but we have now listened to this go on for four hours about the affidavits and frankly, I am at the end of my patience on this. We know the issues, we have ventilated the issues, we have heard the various responses, we know what the concerns are that Adv Mpofu has with the affidavits, we know Adv Madonsela’s response. I fail to see what going through it another time accomplishes. We know the law, we know the situation and we have now spent over four hours on this one issue. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Adv Bawa?

Adv Nazreen Bawa: Chair, we will confirm that as evidence leaders we followed the practice. If you wish to say this on other occasions, I have followed the practice.

Chairperson: On that, just hold. I want him to conclude on what he is doing. I take note of your intervention, Hon Mileham, but let me…

Adv Mpofu: Yeah, thank you, Chair. I think this is just a waste of time in the name of saving time. The statement of Futana Tebele; four, the statement of Baldwin Neshunzi; five the statement of Livhuwani Tshiwalule; six, Nditsheni Raedani, Reginald Ndou, Basani Baloyi, Ponatshego Mogaladi, Muntu Sithole, Nthoriseng Motsitsi, Nelisiwe Thejane, Neels van der Merwe, Freddy Nyathela, Ronald Lamula, Bianca Mvuyana, and Mr Seabi. All of them are signed on every page by the…

Adv Madonsela: Do you want a response to that?

Adv Mpofu: No. Can I finish?

Chairperson: Please hold back, Adv Madonsela. Conclude, Adv Mpofu.

Adv Mpofu: Right. In each of those statements, both teams that are here, have caused the, and there is one exception, just to be fair to you. The one is that Mr Samuel had two statements. One of them was signed by the deponent on each page and the other one was not. The other exception is you, Adv Madonsela. But on each of the names I have listed to you, we did not pick up earlier because we only did this analysis yesterday; the deficiencies in Mr Samuel’s statement, but that statement is not what the paper is written on, and for other reasons. But on each of those statements, the teams here ensured that there is that. And the point I am making, Chair, is a very serious one, which is that whether it was the Evidence Leaders or ourselves when we offered our assistance to you, Professor, then you could have been sure that from what I have just told you, that what you call the hullabaloo, and what is annoying Mr Mileham, would not have taken place because the statement would have been done properly – I think this is ample evidence, whether it was them or us. Do you accept that?

Adv Madonsela: No, I do not because I do not know how you do things. There were mistakes in the letters. There have been mistakes in how you have read things here, so how could I have predicted that you would not have made mistakes.

Chairperson: Thank you, Adv Madonsela. We get your answer. Adv Mpofu, I want you in the next six minutes to wrap up, which will be 12:30 – we were supposed to conclude at 12:00. Thank you.

Adv Mpofu: Chair? Well, no, Chair, I am to going to need more time. I need to deal with… There were three segments of issues. One, segment A was the issue of the affidavit, which was dealt with by Adv Mayosi – I have dealt with that. Segment B, was a…

Chairperson: I want to assist you so you do not waste any more time. I want to assist you.

Adv Mpofu: No, no. I am not wasting time, Chair. Can I finish talking? Come on, guys? Please.

Chairperson: Please conclude because I am going to make a ruling. Please conclude, Adv Mpofu?

Adv Mpofu: It is fine, Chair.

Chairperson: Again, I am asking you to conclude at 12:30.

Adv Mpofu: Alright. Madam, you, I think, did not answer the question that was asked by Hon Holomisa. At least you said that you do not hold grudges and so on, which is fine. I think the gist of the question is whether you are not surprised that the same people who insulted you during the Nkandla debacle and called you names, and called you a CIA space, and still call you names, and sometimes even objectionably referred to your features and all sorts of despicable things. Called you a ‘uMakoti waseStellenbosch. Intombi ebukekayo’ (the new wife of Stellenbosch, and the latter is a sarcastic term for a beautiful girl), and all sorts of things – degrading names. Those people are now praising you. I think the gist of that was not that you hold grudges, I think, admirably, you do not hold grudges, but the question was whether you find it strange or expedient that those people are driven by expediency, that they are now suddenly your fans?

Adv Madonsela: May I respond to that? Chair, allow me to say that even by your standards, Adv Mpofu, this was the lowest.

Adv Mpofu: Chairperson?

Adv Madonsela: You conceived as an advocate of the Supreme Court of South Africa to bring insults that have been in the public domain into this…

Chairperson: Adv Madonsela? Adv Madonsela, please pause.

Adv Madonsela: Yes, Sir. Gosh.

Chairperson: Please take a breather. I understand what the challenges are. I did ask you yesterday, not to get to that level, and I am asking again.

Adv Madonsela: Okay, I apologise, Sir. I apologise and I withdraw.

Adv Mpofu: Apology accepted.

Chairperson: Please proceed.

Adv Mpofu: Alright.

Chairperson: I want her to conclude. Please conclude your response, Adv Madonsela.

Adv Madonsela: Adv Mpofu, I am shocked beyond measure that you, as an advocate of the High Court of this country, have taken slurs that have been said to me, a lot of the things that you said have never been said in Parliament. The one slur about my look that you have repeated in this record that you yourself have said, you envisage to be here for 100 years, you have brought what President Zuma said about my looks in the streets into this record. That is shocking. And that is unprofessional, Sir.

Adv Mpofu: Yes, thank you. Is President Zuma a member of the ANC?

Adv Madonsela: It does not matter what he is. I am just saying, sir, you have taken a street fight and brought it here. Firstly, you have reduced my response to what was said. I did not say that I have forgiven people or something. I said, people change. You and I were on the same side on one issue, because we understood the same. When you litigated on the Public Protector, we approached you to persuade you about our interpretation of the powers of the Public Protector. You accepted that, and you used that and we won the case. Today, you are on the other side, because you have been persuaded differently. So my response, which I repeat again, is that it is not about holding no grudges. It is about me. I am not surprised, because that was the question that I was asked. I am not surprised because I expect MPs, lawyers and reasonable people to change their mind when they get new information. What we do, I repeat, again, Adv Mpofu, depends on what we know, how we feel, what we think, then we end – and that changes every day. At least this is what neuroscientists say. It is not just about I bear no grudges. It is about we deal with issues as we deem fit, and I am glad that MPs are not stuck in yesterday, they are here, right here in this room, trying to make sure that South Africa works for everyone.

Adv Mpofu: Yes, no thank you. Well, for the record, I am not on the other side. I am just representing Adv Mkhwebane. I do not regard that as being on the other side from you. But also, in case you missed it, the adjectives that I used about it being objectionable and despicable should show you that I do not agree with those epithets. For example, I do not agree that you are a CIA agent. I think that is ridiculous.

Adv Madonsela: I disagree with you. You are elevating those things once again to this room and putting them on the record. That is unprofessional, Adv Mpofu. Shocking really… Shocking. Totally shocking, Sir.

Adv Mpofu: Well, that is fine. You can insult me as much as you want. I have told you what that does. It is water on a dark speck. You can insult me all day, Ma’am. Now, as far as Vrede is concerned, you say that you thought and considered that politicians should be investigated. We now know that Adv Mkhwebane did not just think. He actually went and investigated the politicians and also went to the site of the Vrede dairy farm. Now what I wanted to ask, I was going to give you references I want now because of time, of the conversation you and I had under Section 7(9) responses of Mr Magashule and the MEC, which you had said if you had seen those you would withdraw, the snide remark you made yesterday about their names disappearing. But because of time we will probably have… I was trying to avoid having to do that in writing, but we will write those to you, and we will submit your responses to the Committee in the interest of time. So I am just informing you that. Do you understand, Ma’am?

Adv Madonsela: I fully do, and also about going to where victims are. I went to Glebelands, where no one was going because it was the killing fields. Even my staff did not want to go. So you are not going to say that because I did not meet this particular set of complainants that is a judgment on me. And again, Adv Mpofu, this is not my impeachment; it is your client’s impeachment.

Adv Mpofu: And it is shocking, yes. My last topic then, is what I call… what Judge Madlanga and Chief Justice Mogoeng called the magnification of the errors or mistakes made by Adv Mkhwebane, by judges and other people. Now, you would agree that of all the things you could be accused of as a Public Protector, probably the highest would be that you are biased and did not approach an investigation with an open mind? That is probably the worst thing. Forget about making an error of law or not understanding the law and all that. But if you are biased, that is the ultimate, correct?

Adv Madonsela: I would agree that the highest accusation that could be made is that you clearly favoured someone and worked with them to achieve a particular result.

Adv Mpofu: Yes. That is otherwise known as bias, correct?

Adv Madonsela: It is not as simple as that.

Adv Mpofu: Okay, do you know or do you not know, if you have ever done administrative law, that bias, or the nemo iudex principle means not approaching a subject with an open mind and being biased?

Adv Madonsela: Yes. Oh, Sir, the highest accusation that can be made against you, as a Public Protector, as a judge, as a lawyer, a young person who wants to be a fit and proper person, is that you lied under oath, or you lied generally. That is why you get struck off the role if you are dishonest. So even during the times of Plato, one of the virtues that was regarded as one of the highest virtues in society was honesty because without honesty, we have nothing.

Adv Mpofu: Correct, good. And you…

Chairperson: It is going to be your last point, Adv Mpofu.

Adv Mpofu: It is the last point, Chair, but please allow me to develop it.

Chairperson: Yeah, we are going to be closing now.

Adv Mpofu: And you have been, as we gathered yesterday, Judge Potterill found you to be biased?

Adv Madonsela: She did, and it was not appealed. And for the person who will benefit from that judgment, being not appealed, to claim a benefit from it, does not seem right to me. I think John Rawls would disagree with that as just.

Adv Mpofu: I see.

Adv Madonsela: If you have pursued another person’s interest, as I did with Adv Mushwana, with an eye to justice and the role of the Public Protector to the ultimate, and to come back and said ‘I did my best to get to the bottom of this’, then you can come here and say ‘Yes, I put the best of counsel in this case. I did my best to have it appealed, but it came wanting. I even got you involved to explain yourself, but you cannot give me any of that.

Adv Mpofu: Yes, alright. And the giants that you say you walked on the shoulders of, at least one of them is referred to by Prof Hoexter, as the ANC protector, that would be Adv Mushwana. And do you know that this is what the SCA, talking about appeals, said about his investigation? “An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case. I have said before that an investigation calls for an open and enquiring mind. There is no evidence of that state of mind in this investigation.” In other words, he was also accused of bias apart from just being called the ANC protector. Is that…

Adv Madonsela: May I respond to that?

Adv Mpofu: Yes, of course, Ma’am.

Adv Madonsela: I think it is unfair to malign Adv Mushwana here without having warned him. The Mail & Guardian case is a case that we use. I have never suggested that the giants on whose shoulders I stand, were correct in every way. In fact, the statement said that we look to them, to the extent that their way is a better way but when we found a better way, we do things differently. If you did not read my statement, and did not understand the input of my statement, then I am sorry, Sir. My statement was a four-page statement, and the last part of it was very clear about not suggesting that my predecessors were correct in everything.

Adv Mpofu: Okay, my last question, then is this. Well, for the record, both your giants did not obtain a clean audit, including you as the giant admirer. But as far as… You have also said that you have accolades from all sorts of bodies. Is it true that one of the accolades that you also received and got was to be named a Person of the Year by the Guptas?

Adv Madonsela: Oh, certainly. The accolades that I mentioned were by my peers.

Chairperson: Just pause, Adv Madonsela, before you respond. Thank you, Adv Mpofu. That would have been your last question. Please respond, Adv Madonsela?

Adv Madonsela: The accolades that I mentioned were the accolades that were relevant to this Inquiry. I was asked if I consider myself an expert, or my strength being the interpretation of the law, including the interpretation of the Constitution, and that shone through in the powers of the Public Protector. I am the inventor of the equality court. I have drafted many laws and have been part of drafting many laws. I defended the equality Act in Parliament, and you will find that in parliamentary records. And I then in that particular context mentioned the accolades that have been given by my peers. And it was the Law Society that approved me in terms of my interpretation of the law; the Judge President Ledwaba speaking on behalf of the judges. And then I got the Commonwealth Lawyers Association, Truth and justice award. I got the Sydney Cambridge Award. I got the Transparency International integrity Award, the AU APRM Award, the Association of Certified Forensic Investigators Award. And therefore, this was mentioning my peers. Again, I do not like the idea of trenching things into this Committee. To you chairperson, thank you for the opportunity to…

Chairperson: Just pause there, I am coming back to you. Thank you for responding to that last question. We have now reached the end of our interaction with you as our witness. Before I thank you on behalf of the Committee, I want to ask you to say your final remarks and comments to the Committee.

Final remarks of witness
Adv Madonsela: Thank you, Chairperson, Hon Members and colleagues for the privilege to be a witness. I came here as a reluctant witness. I was shocked that for the bulk of the 1 March, I was the accused person watching on this platform, unable to defend myself. For the bulk of yesterday, I was the accused person. But nonetheless, I do hope that what I have shared with you about what I know about the glorious institution, but not flawless institutions that I inherited, I have shared with you today. I also hope that I have assisted you to get a sense of what I did with the two reports that you have asked me to be involved in. I was shocked that I was asked if I am an advocate or not; if I was born here or not. The only thing I was not asked is if I am a woman or a man, and to prove it. My colleagues were made to look like criminals, the ones who were assigned. They are respected in their profession. When a director in a very respected law firm, who does these affidavits every day or most of the days of his life. One, a chartered accountant, who does this some of the time. And integrity is important in their professions. And I am a little bit saddened that their names were wrongfully and unnecessarily maligned. But nonetheless, I am an advocate of the Supreme Court of South Africa. It was irrelevant that I was asked, because whoever needed to know that should have just checked the records of the LPC (Legal Practice Council). They would have found my name and my number. But it was irrelevant because the person wanted that information for the purposes of reporting me, and that could have been done after this process. It was not relevant to the evidence that you as a Committee need to know, in order to make a finding on whether or not the client of Adv Mpofu, my successor, Adv Busisiwe Mkhwebane, is guilty of the things she is accused of. Thank you for the privilege. Good luck to everyone who is involved. And thank you for what you are doing to make our country work, and work for everyone. Bless you.

Adv Mpofu: Chairperson?

Chairperson: Thank you. Thank you very much, Adv Thulisile Nomkhosi Madonsela.

Adv Mpofu: Chairperson, I am raising a point of order.

Chairperson: I am on the platform.

Adv Mpofu: Oh, sorry.

Chairperson: I have not noted you to speak. Switch off that mic, please.

Adv Mpofu: Yeah, but how else…

Chairperson: Switch off that mic, Adv Mpofu.

Adv Mpofu: I am catching your attention.

Chairperson: Switch off that mic, I have got your attention.

Adv Mpofu: So why are you shouting at me?

Chairperson: Switch off the mic, Adv Mpofu. I was saying, Adv Madonsela, on behalf of this Committee, as a Chairperson of this Committee, we want to deeply thank you for availing yourself before 1 March, before yesterday, and during up until today. You have even given us extra time. We needed to release you by midday today. You allowed us to get into your time in that and I am grateful for that, on behalf of this Committee. We thank you for what you brought here, as your testimony. As the committee, we are going to deliberate on all of these issues, including what you shared with us. And we hope and trust that testimony will be of great use for the work that we have been mandated to do, which deals with issues of incompetence and misconduct, the fitness to hold office Adv Busisiwe Mkhwebane, so that by the time that we report to the National Assembly, we are able to say here are the findings and here are the recommendations. So we thank you for your contribution and beyond what you have just placed in this Inquiry. We thank you for what you have done as a former Public Protector, and we wish you well in your current and future endeavours, as part of your contribution to this country. Thank you very much. And on that note, as I have indicated, we would have reached the end of our interaction with you. You are now officially excused, Adv Madonsela. Thank you very much. I now turn to you, Adv Mpofu. You wanted my attention?

Adv Mpofu: Yes, thank you, Chairperson. You see, you must avoid turning this Committee into a complete circus. I made an objection while Adv Madonsela was here. You shout at me for no reason because you want to release her before I speak. I wanted to say, Chairperson, you should not allow things like what you have just done now. There is a reason why Parliament designed the Inquiry the way it did.

Chairperson: What is your point that you want to raise? What is your point because I am now closing the session? What is your point? I am going to assist you. Let me help you.

Adv Mpofu: You do not even know what I am going to say. No, I do not need your help.

Chairperson: Then conclude. Please conclude.

Adv Mpofu: Alright. What that witness said in the end about her being an advocate must be completely struck off anything to do with this Committee. Because a witness cannot surreptitiously add evidence at the end when she refused to answer the question, which was put to her in evidence here under oath. And the reason this is a very important issue, Chairperson, if you allow that kind of deceit and disingenuity to pervade this process, then you are littering it and poisoning it. The witness, I gave her four or five chances to answer the question. She chooses to. And then you ignore me so that you can release her, and then she gives evidence at the end. It is not allowed, Chair. The reason why I have…

Chairperson: I think you have made your point.

Adv Mpofu: Yes, yes. Thank you, Chair. No, let me just say this.

Chairperson: You have made your point.

Adv Mpofu: No, no, Chairperson. Let me just finish.

Chairperson: Thank you, Adv Mpofu. You have made your point.

Adv Mpofu: Chairperson, let me just finish, please. I promise I will not be long.

Chairperson: Then finish, please.

Adv Mpofu: I will not be long, yeah. The reason, Chairperson, why I put the question to the witness, and when she refused to answer, in fairness to her, I did not pursue the matter, is because we had information we had information at our disposal, that she was not an admitted advocate when she started as Public Protector and she subsequently was enrolled. But because she refused to answer the question, I did not put that proposition to her. And if she had not refused, I would have put it to her and in fairness she would have cleared the air or whatever, whatever the situation is. It is a very serious allegation, and to allow it to be addressed like that, is really objectionable. Thank you.

Chairperson: Thank you. Thank you, Adv Mpofu. Let me just make this point because there is no basis for what you are doing first. You started yesterday at 10:43, and I would have given you up until 15:30 to 16:00. You finished one minute after six. You had that time with yourself for everything that you wanted to do. Today, you would have been given time, from 11:38, as pick up questions. Pick up anything that would not have been concluded. I had to stop you from doing that. I must just say that it was now the Chair addressing the witness because the witness, yesterday, never denied or confirmed issues of advocate: never. And for you to say that she refused to answer that question, is something else.

Adv Mpofu: What was the answer?

Chairperson: Besides that… I did not let you speak. Please stop doing what you are doing. And in any case I had already officially recused Adv Madonsela. I had said that you have done what you came here to do, and on behalf of this Committee, we are happy with those contributions and we are going to look into those issues as part of our deliberations. Thank you very much. You are excused.

Adv Madonsela: Thank you, Hon Members.

Committee business
Chairperson: Thank you. Hon Members, that is the end of our inquiry today, which was meant to be until 12. You have already received the correspondence and we can take a break for that or we can go to lunch and come back for 30 or so minutes, and deal with some of the in-house issues that we need to deal with, whilst we are here, and not convene another meeting. Let me just hear from you which of those you prefer?

Adv Mpofu: Chair? Chair, please for one second?

Chairperson: Hon Nkosi, and then Hon Sukers and Mileham.

Mr Nkosi: Chair, may I propose that we proceed for those 30 minutes or 15 or so, and finish so that those that want to attend the House can do so at 14:00.

Chairperson: Okay. Hon Sukers, I know you had a different view? Raise it.

Ms Sukers: It was my view, Chair, that we break for 30 minutes and then resume.

Mr Nkosi: I withdraw.

Chairperson: Hon Mileham, Hon Heron and Siwela? It is a quick thing. Do not make it complicated. What is that? I do not know sign language. You are covered by which of the two? Oh, I did not know about that. Have you withdrawn, Hon Nkosi? Oh, thank you. Hon Herron?

Mr Herron: Chair, I wanted to support Hon Nkosi, and say let us proceed and conclude now.

Chairperson: I am told that he has already withdrawn.

Mr Herron: Then I am tabling it as a new proposal that we do not break now.

Ms Siwela: I am supporting, Hon Herron, that we proceed for fifteen minutes, and then we close. Thank you.

Chairperson: Despite that, we do need a break. Even if it is 15 minutes and not 30 minutes, colleagues. We have been here, so I am going to have to overrule that and make a determination that can accommodate all of us. Before we do that, Adv Mpofu?

Adv Mpofu: No, Chair, sorry. Mine is a small one. It has to do with your meeting. I wanted to confirm that you got the second correspondence that came this morning? Which was rushed. In other words, instead of bringing it later.

Chairperson: Thank you. We have all of those, thank you. Hon Members, I am going to ask for your indulgence, Hon Herron, so that we can take about 30 minutes and come back. It will be before the 14:00 House sitting. Thank you. We adjourned and return at 13:30, yes.

The meeting adjourned for a 45 minute lunch break.

Chairperson: Welcome back to this Committee session – that we indicated before lunch – colleagues. We are now about to start. We are now about to start. We indicated that we would start at 13:30. I think small delays in the lunch, but I think we should now be good to go. Let me just check if we are connected and if Members can hear us. Hon Malema, can you hear me now?

Mr J Malema (EFF): Yes, Chair. I am on board.

Chairperson: Thank you very much. Good afternoon, again, to all of you Hon Members, the members of the media, the support staff as well as the members of the public. After completing the inquiry with the last witness that we had today, I had indicated that there are a few in-house issues that we quickly need to attend to, mainly in two categories. There is some urgent correspondence we need to attend to and respond to. And secondly we can conclude the meeting with the adoption of minutes, since we are here. Hon Members would know that in terms of our revised programme, the next form of activities is supposed to start from next week, on the 15 March, where will have the Public Protector, Adv Mkhwebane, giving her testimony. The programme indicates up until when that will happen, which is the 31 March. There are a few issues before that that we need to kind of iron out, which will be part of this correspondence that we will attend to. There is correspondence from the PP, through Seanego, their attorneys. We will also share with you the letter that we were copied on, by the PPSA, on their financial situation and how that financial situation will impact on the Inquiry. So we just want to quickly, I will ask the Committee Secretary to just lay down those correspondence that would have been sent to you and then get a brief input on those; have a discussion on them, and then we conclude on that aspect. Then we will do the normal business of the minutes. Are there any apologies you have received for this part or session of our meeting, Mr Ngoma?

Mr Thembinkosi Ngoma (Committee Secretary): Thank you, Chair. Except that Mr Maneli will be joining us now, there is no apology for this session. Thank you, Chair.

Chairperson: Thank you very much. Can you just then start running through what correspondence we have received? And then I will invite Ms Ebrahim thereafter.

Mr Ngoma: Thank you. Thank you very much, Chairperson. There are a number of correspondences that I shared with Members during the course of proceedings today. First one, Chair, that I would like to talk to is an affidavit that I received from Adv J Govender, from the Office of the Inspector-General of Intelligence. She works there as a legal advisor. I have shared the affidavit with Members. I received it after I had requested some information from her as the Secretary of this Committee, and she then provided that written affidavit. The next one, Chair, is the correspondence that I received on the 5th from Seanego, which is a response to the letter that you wrote to them on 1 March. That is after we had taken a number of decisions last week, and we communicated with them, which led to the Committee having Adv Madonsela appearing over the past few days. I am not going to go through the letter, Chair, Members do have it in their possession. The next letter, Chair, I received during the course of this morning’s proceedings, which is dated today 7 March, also from Seanego. That letter, Chair, talks on the witnesses that the Public Protector still intends to call to appear before the Committee. As I have indicated, that letter is also with the Members, Chairperson. I hope that all Members have received it through their emails. The last one, Chairperson, being a letter wherein I was copied. It is a letter to Adv Mkhwebane, from the Chief Executive Officer at the PPSA. I was copied into this letter, and I felt that it is important that I table it to the Committee, as it talks to a matter that could impact the work of the Committee. Chair, the letter is on the discontinuation of legal services to Adv Mkhwebane, that are being provided by PPSA in relation to the work of the Committee. As I have said, Chair, I am not going to go through it, Members have it. Chair, before I switch off, if Ms Ebrahim has anything to add or would like to provide more detail on the correspondence, then I will leave that to her. Thank you very much.

Chairperson: Thank you, Mr Ngoma. Ms Ebrahim?

Ms Fatima Ebrahim: Thank you, Chairperson. Chair, the correspondence does necessitate that the Committee make certain decisions and deal with certain issues, so I will just go into more detail than what Mr Ngoma did. There are two letters which primarily form the subject matter, before the Committee this afternoon. Chair, the first letter, which is dated 1 March, in which Members do have a copy in their possession relates to the submission of the PP’s statement and her appearance before the Committee. As things currently stand on the programme, the PP’s do to come in for evidence on 15 March, which I think is next week, Wednesday, and it was agreed initially that she would submit her statement by today, the 7 March. That date was subsequently pushed out following the offer made to the PP last week that should she wish to lead Adv Madonsela then that opportunity would be provided to them. And in that letter, Chair, it was then said if they avail that opportunity, we will push out the statement to 9 March. But should she wish to submit in two parts she may do so on 9 March and 14 March to give them enough time to prepare. That offer to put questions to Prof Madonsela, as we know, was accepted at the meeting last week Thursday, at the conclusion of the meeting. Just before they left, Adv Mpofu indicated that they will accept the offer, and that was done orally. So our understanding was that the offer of the statement, the submission thereof being split into two parts was accepted. However, Chair, we are now in possession of the letter of the 5th, which is asking for an extension. And what the letter is requesting is that we push the date for submission of the statement to the 20 March and then the appearance of the PP to the 27 March. And then in terms of dates, Chair, just to remind the Committee that we are sitting in the Western Cape High Court on the 13 March for the final day of hearings in the review matter. And then there is a public holiday on the 21 March and I know Adv Mpofu is not available on 22. So those dates were purposely left open in the schedule. Chair, the directives do not speak to the procedure for the PP submitting the statement. The PP is not compelled to submit a statement. Members may recall that prior to us starting the hearing portion of this process, she was provided an audi opportunity if she so wished to respond to the charges. That opportunity was not availed, but of course should the PP want to submit a statement she may do so. What the Committee must now determine, Chair, is whether it is reasonable to expect that statement to be submitted by 9 March, which is two days from now, given that we concluded with Prof Madonsela today. It is on that basis that the extension was sought, and everything else in the schedule be pushed out and therefore this should too. Then the letter of 5 March, Chair, also spoke about the possibility of calling three additional witnesses, and that was Mr Mmusi Maimane, Mr Maema and Mr Linda, who is the messenger whose affidavit the Committee has in its possession from the PPSA. That request, Chair, should be read in tandem with the letter received today, which speaks in more detail to that particular request. Mr Mmusi Maimane is being sought in relation to CR 17 and Vrede. Mr Maema, who works for the NPA, in relation to the Rogue Unit. The letter of today indicates that they no longer seek to call Mr Linda. So there is not much information in terms of why Mr Maema and Mr Maimane are now being sought. Mr Maimane did indeed appear on the Public Protector’s first provisional witness list, but not on the final witness list. But according to the letter, he has indicated his willingness to assist and what the Committee sought to advise is the date on which the Committee intends calling them so that they can then prepare the statement. So the Committee is obviously not in possession of affidavits from these two witnesses to determine already whether it wishes to call them to testify, or if the Committee may even simply accept the evidence as contained in the affidavits. Obviously, we have not seen the affidavits in order to determine that. So the scheduling, Chair, is only in respect of Mr Maimane, because as far as Mr Maema is concerned, they have indicated that it is subject to them obtaining permission in terms of the NPA Act. Chair the letter of today does not speak to the question of whether they wish for Mr Maimane to testify if the committee so decides that he should testify before the PP commences her testimony. So there is no clear request in that regard. If so, one would have to then factor in the time for drafting and preparation of the statement, submission of the statement, and then push all of the days out accordingly. However, Chair, there is also no requirement in terms of the directives that the PP needs to be the last person that appears before the Committee. So nothing would prevent the Committee from scheduling these witnesses at another time, if it so wishes. So the committee must now determine, Chair, how to deal on the one hand with the request from Mr Maimane for a date to be scheduled and whether the Committee would rather want to wait for the tendering of a statement in that regard, and then determine the way forward, but also on how to deal with the request of the Public Protector, that she be allowed to submit her statement at a later date, being 20 March and then pushing out her appearance to the 27 March. So that is the guidance that we seek from the Committee so that we can convey it to the PP’s team. Thank you, Chair.

Chairperson: Thank you, Ms Ebrahim and Mr Ngoma for the tabling of that correspondence and the explanation accompanying that. Those are the few decision-requiring issues that we need to attend to. I am not going to prescribe or restrict members, that I will be looking out for when Members contribute to indicate in terms of those areas, what their interventions and suggestions are on those areas that have been highlighted by Ms Ebrahim. The first of those is we know that the programme starts next week on the 15th with Adv Mkhwebane. There is a request about an extension for the statement, if so required that it was due for the 9th. Initially it was due for today, but once we brought Adv Madonsela yesterday and today, we could not reasonably expect them to deliver on that. Hence it was pushed to the 9th. And the issue here now with us, is it still kind of reasonable to expect that on the 9th, or should we extend that understanding that we are starting on the 15th. I am just summarising the issues for you, colleagues. Also taking into account that there has not been clarity in their letter. There is also the issue of new witnesses that are being requested to appear by the PP’s team, Mr Maema and Mr Maimane. I think there is a bit of information about what is happening on the 13th, which means that if you are to extend anything, it would be seen as unfair that Adv Mpofu and the legal team will be in court on the 13th. Those are some of the issues, colleagues, that we need to attend to in your contributions and deliberations. Thembinkosi has indicated, you will read that at your time, the affidavit of Adv J Govender. You also need to take into account in your contributions, the letter from the CEO of the PPSA, indicating that they can only fund this inquiry up until 31 March. The 31 March is supposed to be our last day to interact with the witnesses because April is supposed to be a report writing process. Anything beyond 31 March, that Office says it does not have the funds to continue. I now invite contributions from all Members to hear what your take is on these issues. Let me invite a show of hands of those that are interested to interact. Hon Mileham will start from the Virtual. Hon Bhekizwe Nkosi will follow. There does not seem to be any other Members interested to interact with this, at this stage. I am watching. Let us allow, Hon Mileham. Over to you, Hon Mileham.

Mr Mileham: Thank you very much, Chairperson. Chair, I have a concern and that is that the witness list seems to be never ending. So we just seem to be about to hear from Adv Mkhwebane, and then they introduce new witnesses. And we just seem to be about to hear from Adv Mkhwebane and they introduce new witnesses. And I think we need to put a stop to this. I think we need to say okay, we have given you an opportunity, we have called the witnesses that you asked us to subpoena (the ones that we think are relevant of the witnesses for us to subpoena), we have done everything that you asked us to do,, and we now have to draw a line in the sand because we have to come to this inquiry. I think that we need to push for Adv Mkhwebane’s statement as quickly as possible. I do think that we do need to grant a little bit of leeway given that there is the review application early next week. But I do not think we should allow it to extend as far as the 20th. I think that we should probably look at, I am not sure what the dates are but by the end of next week, we should have the statement in hand. And seven days thereafter, we should go to a hearing with her where we can have an opportunity to interact with her because otherwise we run into April and we are still sitting waiting for witnesses in April. That is my opinion, Chairperson, and I hope that it will be considered. Thank you.

Chairperson: Thank you, Hon Mileham, for all those points. They are taken and noted. Hon Nkosi?

Mr Nkosi: Thank you, Chairperson and thanks to the Secretariat for providing us with the correspondence. I just want to start with the PPSA letter that is copied to us. I have just gone through it. It is clear, Chair, that in terms of this correspondence from the PPSA, in paragraph 12, I think where it says “in the circumstances, I wish to advise you that the PPSA will not be able to extend the funding” blah blah blah “beyond the current financial year, ending 31 March. Incidentally, that corresponds with our own programme. Chairperson, I think the constraint which we then face is that whatever we do beyond if we are to extend our programme beyond that, in these engagements, except for the writing of the report, the PPSA will not have funding. And it is clear that we also must act in the interest of guarding the taxpayer and what they are paying for. So, Chair, after noting that, I would propose that, one, in as far as the following statements, we take them as submitted. One, the statement that was submitted to us of Adv Govender. We have done that before; there is precedent. This must be submitted and we will read it; it will be read into the record. The issue of additional witnesses, and the statement of Mr Maimane, who is prepared to write, that at the time it is written, then the affidavit is availed, it also must be treated the same and read into the record, depending on the relevance. With Mr Maema we do not have anything. We do not know when he is going to submit. That is pending a decision of the National Prosecuting Authority, so we cannot comment on this. In the event, Chair, that Mr Maimane has submitted his affidavit, we will then determine, on the basis of relevance, whether we will hear him, and if we do, when. My proposal at this stage is that the statement is submitted and be taken as read. If the Committee determines that it is relevant, we can hear it anytime. We should not prescribe before the appearance or non-appearance of the PP. Chair, I want to address the issue of next week. I hear what Hon Mileham is saying, and I agree with him that we should give the PP enough time to prepare the statement. I think we have done so. We have done so I think close to about twice now. My approach would be that one the statement should still be submitted, that it does not determine the appearance, that the statement is done and is submitted but that we proceed with the PP appearance on the 15th because there is nothing in the rules that says she cannot appear before she submits a statement. So that will be my proposal, Chairperson, that we proceed with the PP on the 15th. The statement will be submitted that she appears here. Whatever adjournment will be given on the basis of commitments outside of, like you have indicated, the advocate is not available, yes, we can consider that. But really, that we begin with this process at that stage. Chair, this is simply informed by the fact that we have, ourselves, have constraints of time, and we should not subject, in my view, the PPSA to a process as Parliament, to engage in unlawful or irregular expenditure beyond their budget, otherwise we will take the blame or Parliament will take the blame. So, Chair, that will be my proposal. I am not sure you will be able to summarise it, but it should stand as such.

Chairperson: Thank you, Hon Nkosi. I definitely will be able to, as I am taking notes. I am looking for Members to make a contribution, in addition to Hon Mileham and Hon Nkosi. Hon Sukers will be followed by Hon Siwela. In that order for now, thank you. Hon Sukers? I know what you are thinking. You are not going to waiver anything.

Ms Sukers: I am going to say, Chair, what I think is most important that we have highlighted before, we need the Public Protector to speak to this Parliament. As such, I would say, Chair, that we provide the Public Protector with the leeway in terms of the statement, then to provide it to us before her testimony, possibly on the 14th. But for the dates of the appearance of the Public Protector before this house, to not be postponed and that what was proposed by Hon Nkosi in terms of the other witnesses that the Public Protector wishes for this committee to hear that be considered in terms of written statements for consideration. But that be done with the understanding that it is the Public Protector now, that must be before this Parliament. Thank you.

Chairperson: Thank you, Hon Sukers. I have noted Hon Siwela.

Ms Siwela: Thank you, Chairperson. Chair, I think I want to concur with the colleagues that we accept those statements but let us resume with the appearance by the Public Protector on the 15th, because we cannot really ignore what we have been advised on the issues of funds. I do not want to waste time, but just to support that let us proceed. We have indicated, Chair, that we got other commitments as Members in Parliament. This process, I think, is taking far too long. Thank you, Chair.

Chairperson: Thank you, Hon Siwela, for your contribution. Hon Maneli?

Mr B Maneli (ANC): Thanks, Chair. I am no longer on the Virtual. I am here.

Chairperson: I did not see you when you got in. I do not know what that is.

Mr Maneli: No, thank you, Chair. I also want to join the other Members who are saying we should be able to proceed, I think with the motivation, Chair that has been given. Except to add that we are also asked to look at the fairness, so that it is not just about time and costs; they are just part of it. But in fairness, the person to appear and account to this Inquiry is the Public Protector, who has been coming throughout, and listening to everybody else, except herself given an opportunity to speak for herself. And I think for me that fairness is about clearly creating the opportunity for her to speak for herself, and that you do not prolong the processes to the point that she herself would feel that there is probably no value that the Committee places on her being given the opportunity to speak for herself. That's one point, Chair. The other point, Chair, relates to the time that gets given, and that is why I am saying Hon Nkosi has covered me on this point; I am only just putting a finger. That throughout the process, you have always communicated, as we deal with the other witnesses, the timelines for submission. This Committee has agreed – even at the time there was to be a withdrawal of the witness that we have engaged with – still to consider giving the time which was initially the 7th therefore extended to the 9th to allow that the two days should not be lost in the process for their preparation, so that Members also have an opportunity of going through any statement. I am saying if there is 'any', based on what has been raised already, because the Public Protector may also elect not to. We have already got witnesses that came before the Committee that opted not to, but were ready to come before the Committee and clarify matters. I am saying at least if they elect to go that route, there was a timeline that was given and there has not been objections to that timeline over a period of time, Chair. So I am saying over and above all the other factors, I think it is only fair that we are able to proceed. And let us see what else comes afterwards. As I said, with regard to statements that Hon Nkosi referred to, I agree there, that we accept. Just like we would have wanted to accept a statement even of this previous witness, but you are flexible, Chair, to listen to argument. So I am just saying that so far I think that fairness is something that the Committee values.

Chairperson: Thank you, Hon Maneli. I now recognise Hon Nodada.

Mr B Nodada (DA): Thanks, Chair. I do not want to belabour the point, but just to say that I do support the views by Hon Mileham and other Members that we do stick to the timelines of giving the Public Protector the opportunity to take the stand. As they had indicated in the beginning, even though they did out of protest, that is the intention. I am sure that whatever has been said and put to her, she would want to clarify the nation and all those that seek answers based on the determination that we need to make as a Committee. This should be despite the fact that we may get witnesses after the case but we should stick to that particular timeline. And we have got another responsibility as this House of ensuring that a Chapter 9 institution does not find itself in a position which will be questionable by the very same people that are sitting in this room, if they miss, go beyond the timelines of assisting Adv Mkhwebane and find themselves in an irregular expenditure situation. But more importantly, what Hon Maneli raises is the issue of giving her the fair chance to respond to every single thing that has been put to her on this Committee. We will deal with witnesses that have been requested to submit statements or make oral submissions to this Committee within that particular timeline before or after, but that particular date set for her to respond to us must be must to. Thanks, Chair.

Chairperson: Thank you, Hon Nodada. I am going to check first, so that I do not summarise and close other Members out, if there are other Members that still want to make a contribution to the issues that have been tabled?

Mr X Nqola (ANC): We are covered, Chair.

Chairperson: You have not been recognised. You must raise your hand. Thank you, Hon Nqola. No other Member? So that I summarise. That being the case, Hon Members. Maybe just one issue before I summarise, as a way of clarity. Hon Sukers was very specific in her proposal, that we grant the extension of the PP from the 9th to the 14th. So I do not want us to have two dates. Remember we granted the 9th from last week, because of the two dates of yesterday and today. Her proposal is to give her the weekend as well, and therefore taking into account that Adv Mpofu will be at the court on the 13th. Let us expect a statement, if any (a very important point), on the 14th. Do Members agree to that firm proposal? There is one Member that made the proposal.

Mr Nkosi: On the record, I agree, Chair.

Chairperson: Hon Nkosi supports, so we will go with that. So basically, Hon Members, what we are saying is that Members are of the firm view that we have a standing programme. That programme from the very onset we said was a living document, and that there will always be issues where you are forced to, to review and amend it. But still, within that context, the time that we have, is not open ended. It is not elastic; there is a timeframe that we operate within. I have just made the point, secondly, that we, in relation to the request of the PP in the letter of the 5th, where she has asked that the statement be submitted on the 20 March and that the PP give testimony on the 27th. This Committee is of a different view, and therefore says for issues of fairness, we are going to grant, it is the furthering granting of the extension from the 9th to the 14th, for the statement to be submitted, if there is any statement. And secondly, as opposed to the 27th proposed, this Committee is of the firm view that our programme that starts on the 15th, should stand, and that we expect the PP to give testimony from the 15th to the 31st as originally planned, so that we go with it as it is. I take it that members are noting the statements submitted by advocate Govender and you will read that at your own time. The next firm proposals which there is no objection to, is that even firstly that statement of Adv Govender must be taken as submitted and read into the record. Okay? That is firm. But also the additional two witnesses that have been mentioned, actually one witness, Mr Maimane, that if there is a statement, that statement is submitted as read in the record. When the statement is submitted, we will decide then whether to do an oral hearing or take it as a statement. At this point it is difficult to speak about Mr Maema, because he is still not a witness. There are still efforts to source him out from the NPA. That is not a space that both the PP and ourselves are in control of, okay? I think a strong point is made that the PP appearance on the 15th should not be directly linked to the issue of the statement because it does not determine that. But a caution to this Committee and Members of Parliament on behalf of the National Assembly, having received the letter from the PPSA, the CEO, about them having run out of funding by the 31 March, that this Committee, as an extension of the NA, which plays an oversight role to the PPSA, cannot ignore those facts and cannot force that institution to operate unlawfully. Then we become the same people who will question them why they spent money they did not have. I think I am getting that very clear, that we should avoid forcing the PPSA into unlawful activities, that the programme should remain intact, and that we allow for the possibility that witnesses might even come after we would listened to the PP because there might be issues that might arise out of that; including the issue of Mr Maimane and other witnesses. By way of summary, that is what I am hearing from all of you, colleagues. Is there any objection to that summary, based on your contributions? No objection. Thank you, Hon Members. Therefore, that is our summary of the discussion on all of those issues that were raised. We are now going to step off that and proceed, and ask Mr Ngoma to quickly take us through the set of minutes we have, as a last point, so that we conclude our meeting and join the National Assembly Sitting.

Mr Ngoma: Thank you, Chairperson. Yes, I would love to get Members to the House as soon as possible, Chair. Chairperson, we start with the set of minutes of the 21 February, wherein we adopted the minutes and then we had Mr Mataboge appearing before the Committee. So the 21 February before you, Chair.

Chairperson: Those are the minutes. We are going to go through them page by page, colleagues, to make any corrections, if any. No corrections? Do I have a mover for the adoption of the minutes?

Mr Nkosi: I move, Chair.

Chairperson: Hon Nkosi moves. Do we have any seconder?

Mr Maneli: I second, Chair.

Chairperson: Hon Maneli, at M46, seconds.

Mr Ngoma: Thank you, Chairperson. The next set of minutes, the minutes of 22 February.

Chairperson: Who is that? Please mute, Hon Siwela. Go ahead, Mr Ngoma.

Mr Ngoma: Yes, thank you, Chairperson. These are the minutes of 22 February. Members will remember that is the day we also had an in-committee session, where we discussed the matter of Mr Mataboge’s appearance and the SMS of Mr Mojaki.

Chairperson: Yes. Any corrections, Members? Do I have a mover for the minutes?

Mr M Mahlaule (ANC): Chair?

Chairperson: Hon Mahlaule?

Mr Mahlaule: I want to move for the minutes but the scrolling was very fast. I did not see my name on the register.

Chairperson: Okay, okay. Let me do it. Thank you for pointing that out. Let us go back because that is an important part also. Thank you for pointing that out, Hon Mahlaule. Just go page by page, and I will indicate when you must go to the next page. Okay, we will go to the first page on top. That is the date, the 22 February. I think the problem is that the person running it does not know how to do it properly. He is struggling.

Mr Ngoma: There is just too much on my screen, Chair.

Chairperson: Unless you want to hide Hon Mahlaule. His name is there, I can see it. Sukers had raised her name and she is there. Hon Maotwe there, apologies. That is page two, go to page three. Thank you. ‘Adjourned at 11:45’. Do I have a mover for the adoption of the minutes, Members? Hon Sukers?

Ms Sukers: I move for the adoption, Chair.

Ms Siwela: Siwela seconds.

Chairperson: Hon Sukers moves, and Hon Siwela seconds. The minutes are duly adopted. You do know that there are sharpshooters here. Please mute, Hon Siwela.

Mr Ngoma: Chairperson, the next set of minutes is Thursday 23 February. Chair, Mr Mahlaule was there, and so was Ms Sukers, Mr Herron, and Ms Denner.

Chairperson: Thank you for those corrections. Go page by page. That is page two, and that is page three, which is the last page. Thank you. Do I have a mover for the minutes?

Ms Sukers: Chair, I move for the adoption of the minutes.

Chairperson: Hon Sukers moves for the adoption of the minutes.

Mr Mahlaule: I second, Chair.

Chairperson: Hon Mahlaule seconds. The minutes are duly adopted. Can we move to the next set?

Mr Ngoma: Chairperson, the next set of minutes are for Monday 27 February. Thank you Chair, and Members for your patience. On the screen are minutes of Monday 27th. The 27th, Chair, is the pay date for the municipal workers in Cape Town. Minutes of 27 February, even there Mr Maneli was in attendance. Mr Nqola and now the Deputy Minister, Ms Tshabalala, were also in attendance. So is Mr S Jafta.

Chairperson: Okay, let us move. That is page 2.

Mr Ngoma: These ones are very short, Chair. It was the appearance of Ms Mvuyana.

Chairperson: Okay, thank you. There being no corrections, do I have a mover for the minutes?

Mr Nkosi: I move, Chairperson.

Chairperson: Hon Nkosi moves for the adoption of the minutes. Any seconder?

Mr Maneli: I second, Chair.

Chairperson: Hon Maneli seconds. The minutes are duly adopted. We move to the next set of minutes.

Mr Ngoma: Chairperson, the next set of minutes are for Tuesday 28 February, which was the last day of February. Unfortunately our committee assistant could not have a birthday in February, as he was born on the 29th. So this year he could not have a birthday, Chair. Yes, that gentleman right there at the back, Chair.

Chairperson: It is a very good way of saving costs.

Mr Ngoma: Chair, maybe I should remove Mr Mahlaule’s name here, Chair, because he rejoined later in the day. I had marked him for apologies, but you will see there, his name appears before Ms Tshabalala on the attendance register. The reason why he is there at the bottom is because he joined us thereafter. Chairperson, here we also had Ms Mvuyana appearing before the Committee. They are very short minutes. We also discussed correspondence. There were matters that related to Committee matters.

Chairperson: Okay, let us go to the last page, which is page four. That is the end of the minutes. Do I have a mover for the adoption of the minutes, colleagues? Those that were present.

Mr Nkosi: I move, Chairperson.

Chairperson: Any seconder?

Ms Siwela: I second. Siwela seconds.

Chairperson: Hon Siwela seconds. The minutes are duly adopted. Can we move to the next set?

Mr Ngoma: Thank you, Chair. The next minutes, Chair, are for, which are the last set of meetings we will adopt for now, Wednesday 1 March, which happened on my daughter’s birthday. She turned 18, Chairperson. The minutes of the 1st, Chair, wherein Prof Madonsela appeared before the Committee. Just to make it clear, Chair. You even clarified here that the meeting of the 28th was not closed. That was when you asked the Evidence Leaders and the PP Legal Team to excuse us and later it was said that people were excluded. The meetings of this Committee, Chairperson, are public meetings, open to the public and are not closed, except under extreme circumstances, such as committee sessions. That is the minutes, Chair, of 1 March.

Chairperson: Thank you. Any corrections? None. Do I have a mover for the adoption of the minutes?

Mr Nkosi: Chair, I move.

Chairperson: Hon Bhekizwe Nkosi moves. Do I have a seconder?

Mr Nqola: Seconded, Chair.

Chairperson: Hon Xola Nqola seconds. The minutes are therefore duly adopted. Thank you. That was the last set of minutes that we are looking at. The time now is 14:32, which brings us to the end of our Committee Session meeting. It allows us to go and participate in the National Assembly activities. On that score, Hon Members, we will see you next week, as planned. If there are any issues, you will be notified. Thank you very much. The meeting is adjourned.

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