PP Inquiry day 62: Adv Busisiwe Mkhwebane

Committee on Section 194 Enquiry

15 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

During her testimony, Public Protector Busisiwe Mkhwebane read out parts of her affidavit in which she accused both the Democratic Alliance and the African National Congress of joining forces to remove her from her position due to the investigations Public Protector South Africa (PPSA) has instituted under her tenure. She insisted that the impeachment process had nothing to do with holding her to account nor the Constitution nor the rule of law. Instead, she argued, it was a project initiated by the DA, aimed at scoring political points as the first party to have initiated proceedings that led to the removal of the Head of a Chapter Nine Institution from their position.

Adv Mkhwebane further argued that the motion initiated by the former DA Chief Whip, Ms Natasha Mazzone, was a racially motivated campaign borne out of the fear of the upliftment of the poor and marginalised by her and PPSA, at the expense of those currently running the economic status quo.

Both Adv Mkhwebane and the leader of her legal team, Adv Dali Mpofu, SC, urged the Committee and members of the public to accept that she too is a human being with feelings and has made mistakes. Those that have instituted the impeachment proceedings, Adv Mpofu said, ignored the PPSA achievements under Adv Mkhwebane’s leadership over the last six and a half years, such as three consecutive clean audits, a reduction in the case backlog, and outreach programmes. Instead, her critics focused solely on some of the high-profile reports that were dismissed by the courts, with personal costs, such as the CR17/Bosasa and Bankorp-CIEX matters.

Meeting report

Chairperson: The day is the 15 March 2023. The time is 10:08. Let me take this opportunity to welcome the Hon Members, here at M46 and on the Virtual Platform. To welcome the Public Protector, Adv Mkhwebane, here at M46, as well as her legal team, led by Adv Mpofu, who is also here; the Evidence Leaders, advocates Bawa and Mayosi. To also acknowledge Members of the media with us, as well as our entire support staff and their various duties. Last but not least, the Members of the public, who consistently are with us on the various platforms, YouTube and Channel 408. I would like to welcome you today, to this session, as our Inquiry continues. And now we continue to get to the next level of the Inquiry. We have the next witness, who has been listening since last year, to everybody that came to this Inquiry. She would have spent most of her time here at M46. We have had over 20 witnesses. From today, it is going to be her opportunity to address South Africans, to address this Committee, in her own testimony. So I am going to be asking that we allow that space. Members, as you know, will have the opportunity, later on, to ask questions. It is going to be important that we spend the next few days. I do not know if it is going to be easy or hard, but it is part of the terrain. I am going to ask that we all observe and interact with the testimony that is in front of us. We did receive a statement yesterday – a very long statement/affidavit, I must say. And so I think many of us are still reading it. It will also be important that we walk with the presentation of that, as it might be very helpful. And so, Adv Mkhwebane would have taken an oath. She is still under oath, so we are not going to do that exercise of taking an oath. She has been with us, as I have indicated, without missing a single day, even when there were possibilities of her missing, she did not. I am saying that from the Chair. So, Colleagues, I therefore would want to take this opportunity and ask and handover to Adv Mkhwebane and her legal team, who are going to have to, firstly, give us the landscape of how you are going to go about this testimony, so that we are all on the same page, and we follow that, and in the process interact with Adv Mkhwebane. So with that, colleagues, I am not going to waste any further time. I am going to handover to the PP and her team. This is the moment you have been calling for. You would have indicated that you cannot wait. In fact, I listened to you on Monday saying Wednesday is too far. I was saying that we already programmed it, so we cannot have it on Tuesday. We are here now, and are in your hands. Thank you.

Adv Dali Mpofu: (Leader of the PP’s legal team): Thank you very much, Chairperson. Good morning, Chair, Hon Members, members of the public, our colleagues, the Evidence Leaders. Chair, if you allow me an indulgence to make a special welcome to members of the family. We have Adv Mkhwebane’s two sisters here, who are with us for the first time. Ms Jeanette Mahlangu. We also have her other sister, Prof Maputle, and we have a third member of the family who has been with us from the beginning, supporting the PP, probably never missed a day, unlike some of us, and that is the Public Protector’s husband, Mr David Skosana. We know that they all come from very far, and it was important to come and support the Public Protector. Chairperson, without wasting any more time, I will indeed, before asking the Public Protector to take the stand, and do what you have called ‘landscaping’, just briefly for the Committee. Chair, you would have noticed from our long statement, which to your disappointment, as you know, is only the first installment of the statement. On a lighter note, Chair, we want to assure that even though we have indicated that there will be two more installments, they will be much shorter, because of course the first statement you would have seen the first 100 pages is background and overview and so on. Obviously we will not do the background every time we come, we will do it once and then the other statements will be much shorter and themed around some of the issues. On that score, Chair, for purposes of members of the public, who may have not seen that statement and Members of the Committee, who only saw it yesterday. In a nutshell, the approach, as you said from day one, Chair, this is an unprecedented process, so I am sure other generations will learn from what we are doing. So you and ourselves have to be inventing methods to make this work. Therefore, in our wisdom, what we propose to do, Chair, is to deal with that overview, which will be quite comprehensive, for context and as you say, to preface the other three segments that I will talk about just now. So let us think about four segments; the overview, which is extensive and not to be repeated. The second segment, Chair, will be then getting into the charges themselves and we will explain why we have rearranged the motion, if you like, because obviously we were not going to be guided by Ms Mazzone’s sequencing of the Motion. So we have decided to sequence it the way we think will work for you, Chair, and for the process. Let us call that the second segment. Both the first and second segments are contained in your first statement that you referred to. The first segment, just to go back a bit, deals with the Public Protector's understanding of the process, why we are here, and the road that brought us here and so on. It then deals with, you know, what we might call the nuts and bolts, the Office of the Public Protector. You know, you and I, Chair, we may talk about the Office of the Public Protector but half of the people do not know where it is, what it looks like, how many floors are there, you know, what happens when you get an audi, you know. She will assist us to map that in a nutshell: what is this Office of the Public Protector. And then of course, in that process we will also be dealing with the person because again, we can talk about buildings, offices, floors and lifts, but ultimately this is about people. It is about the public on the one hand, and a human being called Ms Busisiwe Mkhwebane, on the other. So who is this person? Who is Busisiwe Mkhwebane? What got into her head to apply for such a difficult job, predictably knowing that it is strewn with all sorts of land mines and so on, and having seen how her predecessor was treated? I have a personal story about that, Chair. I will tell you in private. Some of us when we took some of these jobs, you had to tell your family members that ‘look, it is going to be rough, but hopefully we will get out of it.’ I can see Adv Bawa nodding. You accept them knowing exactly what is going to happen, but as they say in the language ‘it comes with the territory’. That will be, let us call it, the other sub-segment to get to understand the person. Then, Chair, we will then deal with some of the, without getting into much detail, journey, literally starting from the first reports she gave to this Parliament. In 2015/16, you might remember, Chair, she had the misfortune actually, I think in the first week, to have to come and present her predecessor's report. Then of course, 2016/17 she was not reporting her own report – the first one, and so and so on. Without wasting much time, we will give that journey. She, as you know, Chair, devised something called Vision 2023, and we are now in 2023. She will also explain what was that about, how far did she go, where were the failures, where were the successes and so on; again, in a brief and succinct manner. Then, Chair, that will then lead us to some of the broader principles. You would have seen in the statement, that we have picked up what we call ‘Big-Five Cases’, where we have put five court cases, of course there are many other court cases, but for the sake of saving time, we have chosen five specific court cases that we think for even a Member of Parliament who just wants to understand what this whole thing is about. If you read those five cases you will get the full picture. They include the famous Nkandla case, where the Constitutional Court explained, in very fine detail, what this animal is all about. What is this thing called the Public Protector? Why did the founders of the Constitution find it necessary to have such a thing; why? What was it? That is number one. Number two, it takes to us to even where we are now, because it says some of the risks inherent in this job is because you are going to be dealing with very powerful people, very powerful forces, and therefore what Chief Justice Mogoeng says is that “it is bound to attract a very unfriendly response from those that you are investigating”, so we will take that. The famous Weekly Case… I am sorry, it shows my age… The famous Mail & Guardian case, Chair, that we have spoken about, which says that the Public Protector is not shackled by the complaint – you remember the example I gave to Prof Madonsela? – if the complaint is about stealing a car, and in the middle of that she finds that you also stole a bus or aeroplane, she will follow that trail, unlike a court of law, because in a court if you say ‘I am here for the car’, you are here for the car; you cannot now, as we go along, add your own things. So the Mail & Guardian gives that perspective. There is the SABC case which also gives that perspective. And then, of course, one of the cases we will touch on is the fourth of those cases, Commissioner for SARS v Public Protector Case; actually, I think it is the other way round, Public Protector v Commissioner for SARS. We will now be getting closer to the meat, because as you know, Chair, 90%, or whatever percentage it is, of these charges is based on previous court cases. We will then put into perspective that whole debate we had in July; do court cases, because they are binding, mean that we cannot inquire and so and so on. So we will have that discussion. And then the last of those big five cases, Chair, is the case of the EFF v he Speaker. Remember the first one was EFF v The Speaker, and the last one is also the EFF v The Speaker. So how we distinguish those cases is the first one is called the Nkandla case, and the last one is called the EFF Impeachment Case. That will be the last case we will be talking about. I have the misfortune or fortune of having been in almost all those cases, except the Mail & Guardian, and the SABC case. But the importance of that last case – the EFF Impeachment case – Chair, is literally the one that has brought us here. The rules that govern your Committee, Chair, are literally modelled on the rules that emanated from the EFF Impeachment case; 90-95% of those rules are identical. Why is that so? Because Parliament, I think, took the pragmatic view that an impeachment is an impeachment. Obviously there may be nuances when you are impeaching a judge, or a president or a head of an institution, but the core is the core. So in that case, we will not go too much into it, except for context, again. But that case really set the scene as to why we need this stage, because it was believed before that you could just impeach a person; you can just wake up and use Rule 85, I think, of the rules. Speaker Mbete went to the Constitutional Court with that approach, that ‘no, we do not need anything. We have the rules, and we just impeach you’. The Constitutional Court, of course, said you need to have an inquiry and so on and so on; hence we are here. That will be the last section, then Chair. After that we will really get into the meat. The last point I am going to make about that is the point I made early about sequencing. We, for reasons that will be explained now, have decided that what really has brought us here are the cases that have touched what the Public Protector calls the ‘untouchables’, which again, comes with the territory – that was set in the EFF Nkandla case. Therefore, we are going to start with those cases. We are going to start with the (Cyril Ramaphosa) CR 17/Bosasa case, because we believe that it was one of the main triggers for why we are here. Then we will go to the next level of untouchables, by going to the Rogue Unit/Pillay cases. The first case, needless to say, involves the highest office, which is the President of the country. The second cases involve some of the more powerful personalities in South Africa, particularly Minister Pravin Jamnadas Gordhan. So we will deal with his cases next and then when get to the second statement, Chair, we will then deal with the next level untouchables. Those are the big business, who are the real rulers. That will have to do with the CIEX which dealt with the mandate of the Reserve Bank, the economy of this country; whether it should or should not benefit the poorest of the poor, which is the ultimate insult you can give to that level of untouchables. So we will deal with that. We will deal with Vrede in the same vein. Then, Chair, the third and last segment, will deal with what we call the HR (Human Resources) Issues. The HR issues involve, ironically, we think it is the biggest waste of this Committee’s time because it is where this Committee is turned into the CCMA (The Commission for Conciliation, Mediation and Arbitration): really. Disgruntled employees who are charged for beating up people come here and abuse us. So we will deal with that in the end because we think it is a red herring. That is not why we are here. I do not think that anybody in their right mind thinks that this is the CCMA or the Labour Court. But ironically the bulk of the witnesses that have been called here involve that non-issue of the CCMA, so we have to deal with it. Out of the 18 witnesses that were called, fifteen, I think roughly, dealt with the CCMA issues. So that is the landscape then, Chair. We might at the end ask you for an indulgence, maybe to do some kind of wrap-up or give the Public Protector… I know you are going to give, as you have done with all witnesses, the chance to say her piece and whatever she might want to say, but we might also want to wrap-up. Chair, just so that I do not spoil your day, our starting point is that the period allocated for this testimony is too short. We know the issues, as you have articulated some of them in the letters and so on, but we are very much aggrieved by that. If you had 18 witnesses taking months and months, to expect the Public Protector to deal with all that evidence when her neck is on the block, in one or two weeks, is completely unreasonable. But, Chair, I intimated to you this morning, we will be engaging with you and the Evidence Leaders offline, just to make sure that issue does not get ahead of us. But we appeal to you to give this opportunity to the Public Protector. I would like to thank you for your opening remarks. I do not want to lecture you on that, you have just said it yourself. The Public Protector has been accused, unfairly, by a number of people, of not wanting to speak, or running away when she raises legalities and legal issues of some of the injustices that happened here, the first thing we hear is ‘she is running, she is running away’. And you are quite correct, Chair, she said, I can tell you this on my word of honour, that if it was according to her, on the 11 July she should have been sitting there and telling you her version, because she has been vilified by all sorts of people who do not even know she is, and some of them have never even met her. For the first time, she is going to have the time to speak for herself. If you were minded to give us until December, we were going to use it. I am just trying to say, Chair, we welcome the opportunity. Thank you very much. So, Chair, if I may then…

Chairperson: Yes, Sir. Having done that – thank you, Adv Mpofu – your name has already been removed there.

Adv Mpofu: She is now Adv Mpofu.

Chairperson: I am going to ask the Public Protector to follow her name. Thank you.

Adv Mpofu: May I also follow my name?

Chairperson: You will have to decide whether you want to be closer to that space or you are fine there. I leave that to you.

Adv Mpofu: Yes. Thank you, Chair. I think until about tea time I will remain where I am and then it might be a good idea, Chair, to move one or two desks, but we are here for a long time; it is a long way to December. Chair, you will give us the signal.

Chairperson: I do not want to use the signal. Thank you, Adv Mpofu. I hand back over to you. We are in your hands.

Adv Mpofu: Thank you very much, Chair. Good morning, Adv Mkhwebane.

Public Protector Busisiwe Mkhwebane: Good morning, Adv Mpofu. Good morning to the Committee Members, to my family, to the staff of the Public Protector – I know some of them are watching, so I am here together with you in this process – Evidence Leaders and Chairperson. Thank you so much. I am not comfortable because it is so cold. I know you will possibly not switch it off.

Chairperson: Thembinkosi is attending to it.

Adv Mkhwebane: Thank you.

Adv Mpofu: Thank you. Thank you very much. I almost remarked that…

Adv Mkhwebane: And to Members of the public who are watching, I think I am here for you as well, and thank you for watching.

Adv Mpofu: Yes, thank you. On a lighter note, I was going to make a remark that the Chair is more familiar with, they say it is cold outside of the ANC.

Chairperson: I have never been outside of the ANC.

Adv Mpofu: So you would not know?

Chairperson: I would not know, unlike some of us.

Adv Mpofu: It is very, very hot.

Chairperson: For a full 33 years I have never been outside of the ANC. Thank you.

Adv Mpofu: Thank you. No, thank you. Thank you very much, Public Protector. You heard the remarks that I made. I think both the Chair, and I, have emphasised that this is your stage. It is not the Chairperson, it is not me. You are the Public Protector. We are not the Public Protector of South Africa. And you have said, as the Chair also correctly pointed out, that you could… I just want to really, in your own words, explain that statement that the Chairperson and I have recited: why it is that you could not wait for this day, and why it is that you are so keen to give the side of the story? I think the Chair and I watched the same interview where you said, for once the South African public will be hearing from the horse's mouth instead of us talking about you. As the other slogan says, "Nothing about us without us". So why are you so happy that this day has come?

Adv Mkhwebane: Thank you, Chairperson. You know, indeed, I am very much excited that today, I will have an opportunity to address the South African public and the world at large; and to my colleagues in Africa, as their president, to engage with them, and to take them through what actually transpired because, you know, it is six and a half years now being the Public Protector. And I would indicate that I never had peace since I started to work as the Public Protector. And I think my, or the cause of all these troubles, which you have indicated Adv Mpofu in your opening, touching the untouchables. And I think the real cause being the Democratic Alliance, because, as you would know, during my appointment, they were the only party which never supported my appointment. And they were the only party which then after that started with allegations of me being a spy, which to this day they failed to prove, while the matter was in court. And also they started in 2017, also then to initiate the process of me coming here. So I think it is good that one is here to just then put things into perspective and indeed for the public to hear directly from me, because those who have ears will hear and those who have eyes will see; and for them to judge for themselves because unfortunately, they have been told by the most powerful, well the media, sometimes manufacturing concerns, and, you know, portraying a narrative, which is so wrong. Indeed, I am happy, though, Chairperson, I must indicate, you will say the statement is long but we did not have enough time because as you know, we were in court on Monday to deal exactly with some of the issues which we have been trying or I have been trying since 2017 to bring to the attention of Parliament, and to make sure that Parliament, as the lawmakers, they indeed comply and you know, do things the right way, which I will take you through why I am saying that. So, indeed, I am so excited to be here. And I mean, also to deal with the wrong perception that I am delaying the process by raising issues or taking matters to court.

Adv Mpofu: No, thank you very much, Public Protector. I would like, just as a follow-up, Chairperson, to that, you know, for a case of this size, and magnitude and complexity and 1000s and 1000s of pages, for someone like you and me the question is, where do we start? They say the answer is usually obvious: you start at the beginning. So, I will start a little bit at the beginning, at least of this process, Chair, by reminding us of what we said in the opening statement on the 11 July, very briefly. Chair, it is just an extract from the opening statement, and it is a lead up. Bundle K, page 13. The Bundle people will tell me where it will be found. We do not have to put it up.

Chairperson: You got that, Tshepo? Just repeat that Adv Mpofu, she is slow today.

Adv Mpofu: It is one of those days. No, it is my fault, Chair. I did not give her the correct one. I will get the proper reference now. But to save time, Chair, I will just read it in the meantime. Thank you very much. Item 1, Bundle K, page 13. I will just start somewhere in the middle, Chair where I said, at the instruction of the Public Protector, of course “I want to make remarks about a few high level issues chairperson. The first is to assure you that we are here to participate in this process. That our participation is, however, under protest, because of some of the issues that I am going to highlight, which I have called major constitutional violations. But we are here and we are going to participate, nevertheless, because we represent a law abiding citizen and Public Protector. She has always made it clear that he wants the opportunity to assure this Committee and the National Assembly and indeed the nation, that she is fit and proper, willing and able to discharge the duties as Public Protector.” I said, Chair, “in that process, she has been accused of all sorts of things, including so-called Stalingrad”, the people captured it in a way that is objectionable, “which is a term that is used by people who hate the Constitution and try and discourage others from exercising their legal rights which are in the Constitution. Now, that is a very strange accusation, Chairperson, because the irony is that every time when she raised concerns about this process, she has been proven right: every time. The DA and Ms Mazzone and all those people who are the main sponsors of the motion literally have wanted to do the motion, I think since the day she took office, if not before. And I will cut some of the activities in 2017, 2018 but around 2019, there was some intense rush to do this and the Public Protector wrote a very long letter to Parliament at the time and explains that ‘Yes, we know that Mr Steenhuisen’ ”, not Mr Steyn Huyseman as it is put there, “and others want her to be removed from office, but there is the small matter of the law, and there are no rules that govern the process for such removal, however overzealous it might be pursued. Eventually sanity prevailed and that point that you made was considered incorrectly so because there was at that stage a judgment that the Constitutional Court in relation to Section 89”, that is the Nkandla Impeachment that we spoke about earlier, “which said exactly that the legitimate judgment of Jafta J, in which I appeared to set the principle that the impeachment process must have its own designed rules. The Speaker of this Parliament opposed the application and so on.” So, Chair, there we were capturing some of the sentiments that the Public Protector has touched on. So I just wanted to remind us of that. Now, Public Protector, those were the opening words that you had mandated us to preface this Committee with. Can you then explain, again, why you, A, participated and, B, participated under protest, even at that stage?

Adv Mkhwebane: Thank you, Chairperson. Yes, I participated, you know, just to put this matter to rest. But then maybe let us start from the beginning, as I indicated that being labelled a spy, and the process of then initiating or writing to Parliament, I mean, you read about the long letter, which we wrote to the then Speaker, I think, Baleka Mbete, when the DA after the CIEX Judgment, after the Gauteng High Court Judgment was delivered, then they initiated the process to start saying, I need to account I need to be removed, I do not know the law; it was all that hullabaloo actually in the country, because again, touching the untouchables. Then there were various stages, which this process took place, because the then members of the DA, I think it was the start of initiating or wanting to initiate the process because they wrote to the Speaker, the matter was dealt with by the Portfolio Committee on Justice. Originally, that is when they indicated that they would not deal with this matter; this matter should be escalated to the Speaker. And, you know, Chairperson and Adv Mpofu, that is where I wanted this process to be as fair as possible because at first, remember, they were focusing on me as the Public Protector. Then later there was a stage where they were saying, ‘No, it is for all members of the Chapter Nine Institution.’ But then, firstly, they initiated the process and I said, ‘but you cannot go ahead and initiate such a process, just directly from Section 194 of the Constitution. You do not have rules on how this process will be ongoing, but secondly, as well, you cannot communicate every decision which you are making with the media without engaging me.’ So when you say all the time, they were proven wrong is because when I spoke about the issue of the rules, then there was that process where they started deliberating on the matter at the Committee level and the Committee then said no, they cannot deal with this matter. It should be escalated to the Office of the Speaker. Then the Speaker initiated the process that there should be drafts of the rules. And then that is where the rules were drafted but those rules as well, where it was just a matter of cut and paste, because there was a rush on removing Adv Busisiwe Mkhwebane from the Office (and) being labelled all sorts of, of names. Then I had to initiate that process, and indeed, they drafted the rules.

Adv Mpofu: Thank you. So just to make sure that we understand that. So you are saying from about 2017 the DA wanted you to be removed? It took you – Chairperson, the long letter she is referring to is dated 5 July 2018. I was not able to establish this morning, if it is already in the bundle, but for current processes it does not matter, we will upload in due course, because we are not talking about the content really, we are just talking about its existence. So it took you, the person who does not know the law, to advise the Parliament of South Africa that you cannot actually do what the DA wants to do. You need to have rules. And as you say, sanity prevailed and it was then understood that the process of rule-making must be done. Right. Then that process then started and then what happened next?

Adv Mkhwebane: Yes, as I indicated that the 5 July 2018 letter. Then the Speaker referred the matter to the Committee. There were various deliberations. It was not only one meeting; I think it would be several meetings, because I think the process took a year and 18 months deliberating on this matter. Then there was a stage where Mr Steenhuisen, again, writing to the Speaker, indicating that we have the draft rules, hence, I am saying that was a cut and paste from the original rules, which were drafted by Parliament…

Adv Mpofu: For the President?

Adv Mkhwebane: For the President.

Adv Mpofu: Or rather, for the impeachment of a President.

Adv Mkhwebane: Of a President, yes. So then those rules the way they were drafted, also, they were very much questionable because after the drafting of the rules we were never given an opportunity to comment on those. I will say ‘we’ because, remember, the allegation was, it is for the chapter nine institutions and chapter nine institutions for the benefit of South Africans are the Constitutional Institutions: Public Protector, Auditor-General, Gender Commission, Commission for Religious and Linguistics, ICASA, Human Rights Commission and IEC. Then I would say ‘we’ because we have this forum, where I also sit as the Public Protector of the Forum for Institutions Supporting Democracy. So the question was, but this cannot proceed, as is because these rules, I remember, even originally, it was even including the fact that a member or the head of the Chapter Nine Institution might be removed. And you were never given an opportunity to present your side of the story. And I remember one of them being concerned that I mean, they would say, even when you are incapacitated, or you are sick for a longer period, you will just… it was like being summarily removed. The worst part, those rules also did not include the issue of legal representation. And I think they were drafted in such a way that it covers the chapter nine institutions. But as you go through the letters and the communications from the DA, you see that those rules were drafted specifically for me, because in the letter where it says for the removal of the Public Protector, and that is another issue of the removal because this process should not be for the removal. This process should be for the determination of fitness and to perform your responsibilities, because remember again, that is still a process. You cannot just, in a constitutional state, just speak about the removal. And I think that is what I have picked up in this Committee when they are reading the people for them to take an oath, you know, they will just say the Committee for the removal of the Public Protector. It is not a Committee for the removal, it is a Committee to determine the fitness, because then if you allow yourself to be labelled that, then it means which I have been saying, or we have been saying that sometimes I feel as if it is a predetermined process or an outcome. So then after that the rules were drafted, and they were presented to the Speaker in the Sixth Administration, Ms Modise. Then there was the announcement, well, Mazzone submitted a motion and the Speaker announced that they have this Motion from Mazzone.

Adv Mpofu: Yes, just on that. Thank you. So we are now, just to situate it Chairperson, it is common cause that the rules were passed on the third of December 2019. And the motion, which we know now is the Mazzone Motion, was generated – sorry, I almost said manufactured – within 72 hours of the adoption of the rules and on the 6 December it was put through. Okay, all that is common cause Public Protector. But just as a matter of interest, you talk about historical unfairness. Can you just share with the Chairperson and the public and the Members, how you even got to know about that Mazzone Motion and how it was processed?

Adv Mkhwebane: Unfortunately, I discovered or found out from the media, the, you know, the billboard story we were discussing earlier, because I just had the Speaker having issued a statement indicating that there is this motion, and it is presented and adopted. And that is when further writing back to the Speaker, and informing the Speaker about the process and the unfairness of this particular process.

Adv Mpofu: So are you telling the members of the public and the Committee that nobody even bothered to just forget about writing just a phone call or whatever, to say, we have a motion, it is about you and it has been processed?

Adv Mkhwebane: No, not at all, because remember, I am accountable to Parliament, on how I use the state's resources on the issues of overseeing and performing my responsibilities. I engage a lot with the Justice Portfolio Committee, but besides that, as the forum for institutions supporting democracy, we engage with the Speaker, and there's an office within the Speaker's Office, which should be engaging with us regularly, but unfortunately, that was not the case. And only I found, well, I discovered when the statement was issued, and I had to then write back to the Speaker, and that is when we will be dealing with the letter of January 2020.

Adv Mpofu: Yes. Alright. So okay. And the statement you are talking about issued by the Speaker was the media statement?

Adv Mkhwebane: It was a media statement to the public.

Adv Mpofu: Yes, not to you. Alright. Okay, Chairperson, again it is common cause that that statement was dated 24 of January, which was a Thursday, I think, if I remember well because I spoke to the Public Protector, I think about 24 hours or 48 hours later. So you see the billboards or the headlines, and, of course, you then contact legal representatives, and we did not sleep for that weekend. And then on Monday the 28th you caused your legal representatives to write a letter to the Speaker responding to these newspaper headlines. Chair, if I may, can we go to page 660 of the Public Protector’s statement? I think Tshepo will tell us. I think it is Bundle H, Item 31.7, page 660. It was uploaded last night. Oh, you got it? Thanks.

Adv Nazreen Bawa (Evidence Leader of the Committee): Adv Mpofu, when you give the page numbers on the top, can you also give the typed page numbers at the bottom, because Tshepo is having a problem with the top numbers?

Adv Mpofu: Bottom of what? Of the page number?

Adv Bawa: Yeah.

Adv Mpofu: No, unfortunately this is not the body of the affidavit, it is an annexure. Let us do it like this, Tshepo. If you go to the very last page of the typed statement is 154, and then you will have BM1, BM2 – this is BM3, four or five pages after 154.

Adv Bawa: What was your number?

Adv Mpofu: 154 is where the Commissioner of Oaths has signed – the Commissioner of Oaths signed every page, by the way.

Adv Bawa: As is the practice.

Adv Mpofu: Yes. That is the last page where the full signature of the Commissioner of Oaths. It is BM3.

Chairperson: Let us see if slow Tshepo is winning.

Adv Mpofu: So Public Protector, while we are waiting, just to make sure, you did not amend this affidavit afterwards? You did not commit forgery?

Adv Mkhwebane: Adv Bawa? Chairperson, the mic of Adv Bawa.

Chairperson: Please switch off your mic. Thank you.

Adv Mkhwebane: No, I did not. I think it is very important that we just hold or, you know, respect the decorum of this House and make sure that we treat it as such, because I have taken an oath and I need to make sure that whatever I say is not changed after and or somebody else because if you allow that somebody else can even change my statement or include things. And I think it is just to protect the integrity of the process.

Adv Mpofu: Thank you. No, let us not go there. I was just waiting for Tshepo. We will get to that, do not worry, at the appropriate time. Yes, so, Chair, we were on 28 January 2020 – that is the letter. So again, you the person who does not know the law, within three days of reading these headlines to, again, advised Parliament about its illegal ways. And we will not… It is a longish letter, or rather it is shorter than the previous one, which I think was about 25 pages. This one was only seven pages, Chair, because I was involved in its writing. So your shorter letter says, at paragraph 2 “our client”, this is from Seanego Attorneys, "is aware that the rules of removal of office bearers in institutions supporting constitutional democracy were adopted on 3 December 201, and having sought and obtained legal advice she's of a firm view that this was unconstitutional and unlawful as they amount of violation of the constitutionally prescribed duty to protect the independence of Chapter Nine Institutions. Neither do they adequately provide for audi alteram partem, at all in their application and implementation. All in all, the rules are fatally tainted by irrationality and several other breaches of the rule of law.” Okay, let us jump to the… You raised the issue of the involvement in a process like this, and that it was unconstitutional. And then let us jump to paragraph 6 – that was an important one. It was free advice from you to the Parliament. You say there “Even on the DA’s version allegedly occurred long before the adoption of the rules. This purported retrospective application of the rules is in flagrant violation of the rule of law, including the time tested principle of nulla poena, sine lege” and for those who do not know Latin, it simply means there is no punishment without law or without rules. It is obvious, you must have a law and then you must… And then you refer to Section 181(3), and we spoke about that. And then you talk at paragraph nine about pronouncements made by Dr Mathole Motshekga in the Committee, which showed that he had entered the process by referring to your competence. Then you quote at 9.2, rule 88, that Dr Motshekga had breached. That rule says “No member may reflect upon the competence or integrity of a judge or a Superior Court, the holder of a public office in a state institution supporting constitutional democracy referred to in Section 194 of the Constitution”, that is a person like you, “or any other holder of an office other than a member of government, whose removal from such office is dependent upon the decision of the House”. It is obvious why there is such a rule. And you say that rule had been breached. Then let us jump to the issue you have just spoken about now. You say “notwithstanding all of the above, the National Assembly has unlawfully and out of the blue, issued a media statement on 24 January 2020, stating that the Speaker has approved a motion brought by the Democratic Alliance, and thereby purporting to initiate proceedings for the removal of the Public Protector. Our instructions are that our client has never ever been accorded the courtesy of being informed about the initiation of this process, aimed at her removal from office, let alone being invited to comment thereon. She had to read about it in the media, all in the name of fairness, justice and Ubuntu.” And then you say to the Speaker, you remind her of what was said in the EFF v the Speaker matter – that is paragraph 19 – that she of all people should know that this is illegal, because what was said in that case was the following – at paragraph 55, with, I think, high expectation from the judges – “Although all members of the National Assembly are expected to know the rules of the National Assembly, there is an expectation that the Speaker would know the rules of the National Assembly better than everyone else.” And you then said, “Please kindly furnish us with a response.” And I do not have to bore the Committee with the response as it was dismissive ‘No, there is nothing wrong with the rules. Go and do whatever you want to do.’ Alright. After that you then did whatever you had to do. What was that?

Adv Mkhwebane: I think before I say that, Chairperson and SC (Senior Counsel), because that communication was also trying to say, ‘can we talk, can we engage on these issues’, but yes, it was a dismissive response. Again, going back to those delaying tactics, which I am blamed for, to this day. I was trying to make sure that there is no need for us to go to court because litigation is very expensive. But unfortunately or again, fortunately for South Africa is that this Constitution is, you know, protecting everyone. Then we had to take the matter to court, because we showed them that, and especially in this letter, the issue of not complying with the rule of the audi alteram partem. I mean, giving us as Chapter Nine institutions an opportunity to comment on those rules. Secondly, the issue of retrospectivity; that is so wrong, in law, you cannot do that. That you will then have to persecute a person with the law, which you have recently crafted and I think that is what we also told them, that you cannot do that. The other issue then was the issue. I do not remember whether we have included the issue of the legal representation, because the rules were saying, ‘No, you cannot be represented, you are legally qualified’, but the fact of the matter is, if the rules were not meant for me, what about the other chapter nine institutions because your Human Rights Commission, well, even your Gender Commission, CRL, they are not legally qualified, those heads of those Chapter Nine institutions. So we had to take the matter to court, all the courts, which are there as well, to make sure that there is proper interpretation of what the Constitution and the law is saying. So then the matter was taken to court.

Adv Mpofu: Thank you. Sorry?

Adv Mkhwebane: And if they listened by then, I mean, if you could check what SC used to say, I mean, counting how many court cases have been to court as if it is anything wrong, but again, it was trying to bring sense to the lawmakers that they did not want to… they delayed, while finally we had rules, but your rules are so unconstitutional. ‘No, we are proceeding’. Then we took them to court. And indeed, the court found in our favour to indicate that yes, you cannot involve a judge. Yes, you cannot… It was the issue of legal representation. So, again, we were vindicated. But unfortunately, then the narration that is perpetuated by the media, because they have always been there, especially mainstream media, instead of reporting properly and educating, making sure that whoever is a South African is properly protected, and they understand what the process is all about. And I must say, SC, that I think I understood that, you know, sometimes somebody has to do this, or being used as the sacrificial lamb or as, you know, so that this process can be tested, and I have always been saying, it is not for me, it is for my successes or the generations to come because we pride ourselves as a country that we have this Constitution, the rule of law, but then are we walking the talk? Are we implementing it to the tee? And indeed, we took it to court and the court again, we succeeded.

Adv Mpofu: Good. Well, that was not what was reported, but for some reason I am here now, so I think we did succeed in getting you legal representation. Okay, now the… I think, from what you have just said now, it is important once again, to say, because you started by reminding me that these letters were not in the spirit of fighting, it was to say, let's talk, let's not waste taxpayers money, let's not go to court, these are the flaws in the rules, look at them, and then let us have the impeachment tomorrow, if we're going to have it, but you were forced to go to court. Alright. Then you touched on the issue of retrospectivity, which is another (piece of) advice you were giving to Parliament. Maybe it is time to say something nice about the DA, because the DA looked like it had better lawyers. We know that Parliament said ‘No, there is nothing wrong with this’, but I think the DA said ‘No, no, there is a problem’. What then happened around the issue of retrospectivity?

Adv Mkhwebane: You know they then realised because at the end of the day, whatever one was advising them on, again showing that you know what, do things in a proper way, because if I was somebody else, I will just come up with all the wrong advice, because I said, you cannot apply the rules retrospectively, because it was relating to the SARB matter, the Vrede Matter…

Adv Mpofu: CIEX.

Adv Mkhwebane: The CIEX matter. And those matters were still before court and already there were judgments on those matters. Now, what they did, they realise that this is not going to work. Then Mazzone withdrew that Motion, because they realised that it is not compliant to the law, as you are indicating.

Chairperson: You mean Hon Mazzone.

Adv Mkhwebane: Yes, Hon Member Mazzone. Ms Mazzone.

Chairperson: Okay.

Adv Mkhwebane: Yes. So then they withdraw that, and she was the Chief Whip of the DA. Withdrew that and within 72 hours, I think, three days, they filed a new motion. I am not sure whether it was three days or…

Adv Mpofu: It was on the same day. In the morning it was withdrawn.

Adv Mkhwebane: In the Afternoon it was withdrawn.

Adv Mpofu: 72 minutes.

Adv Mkhwebane: Unfortunately then for the Speaker again, instead of also possibly engaging or those who are advising her legally saying, but you cannot just admit another motion because they had to find a new issue and that new issue was possibly a being in cahoots with Samuel because then there was that letter, which Samuel wrote to the Speaker, complaining…

Adv Mpofu: I will take over from the Chair. You mean Sphelo Samuel, the second witness, when you say ‘Samuel’?

Adv Mkhwebane: The second witness.

Adv Mpofu: Okay.

Adv Mkhwebane: So then he wrote to the speaker complaining about being persecuted by me. And by then it was when he realised that I am aware that he assaulted or we were being sued as an institution – he assaulted a complainant. And that process was a process when I was saying to legal services, and the CEO (Chief Executive Officer), this is a very – we cannot be seen to be doing this. So then Hon Mazzone, Chief Whip, withdrew that and filed the new motion with those issues of Samuel. Those are the only new things which he she included. But the fact of the matter is those cases were still matters which happened before the rules.

Adv Mpofu: Yes, fair enough. Unless you are a two-year old child, it was then a clear, quiet acceptance of the fact that you cannot have retrospective rules, so they had to find a new issue being Mr Samuel’s so-called affidavit, if we can call it that. We have seen some affidavits in this process. Alright. Okay, so at least, as you say, the DA saw the light, and then they ‘manufactured’, or ‘generated the Samuel complaint. Fine. And then they withdrew and replaced the Motion at the speed of light. Fine. So that motion then was submitted, Chair, on the 24 February. Okay, then once again, you were faced with a so-called new motion. Then as you say, you went to court – you were forced to go to court. And at least the High Court here upheld two of your objections, which were the involvement of judges and the lack of legal representation. And once again, the DA, I do not like praising them like this, had better legal advice than Parliament. So the DA then did not appeal against the finding of the Western Cape High Court that you should get legal representation. They only appealed on the other issue of the judge… involvement of judges. But our Parliament of the people fought to the bitter end, up to the Constitutional Court to say you are not entitled to legal representation. What happened?

Adv Mkhwebane: Yes, I think again, being a concern that the advice to the Speaker and especially the lawmakers and the ones who are also supposed to be overseeing how the various legal or legislative frameworks are being implemented, and also saving the resources of the state. They appealed that. And, again, normally, I would say it is as if I do not have rights; I must just be left out to hang. And the worst part is that the very same Parliament, where I am accounting to, especially always, with the annual reports going there reporting how one is working, there was nothing stopping them, or even the Speaker through this office, supporting institutions or supporting democracy to say ‘Come’, summon me, ‘sit down. Why is this happening and why can it not be done?’ Unfortunately, then they were opposing that I get a legal representation. So but thanks to the Constitutional Court, again, they brought sanity to that issue that, you know, even a hardened criminal, a serial killer, serial rapist, when they say I want legal representation, they are afforded that particular opportunity, irrespective of whether this is not a criminal case. But the fact of the matter is, we are dealing with the rights of a human being, you know, my mother used to say “Ngingu Muntu Nami (I am a human being too).”

Adv Mpofu: UMuntu (You are a human being).

Adv Mkhwebane: Yes. So yes, I think sanity prevailed and we are here.

Adv Mpofu: Thank you very much. Right. Then the Constitutional Court, in a judgment of… actually a unanimous judgment of the Constitutional Court penned by Justice Nhlanhla, then said you should be accorded, not just legal representation but full legal representation throughout the process. Right. Okay. So again, so you advise them about the rules, they did the rules but they did them wrongly. You advise them that they have done them wrongly, then they went up to the Constitutional Court, and then they lost. And so now, the Constitutional Court actually had to itself amend the rules, particularly the Rule 129 (a)(d)(3), which is the one that said, you should have a lawyer who just sits here and says nothing. Right, fast forward. Then the rules have been cured by the Constitutional Court, thanks to you. And now, we are theoretically ready to go. Again, you had to, once the judgment of the Constitutional Court came, it came on the 4 February, 2020, Chairperson. Chairperson then gathered his troops on the 22nd 20 days later, the troops and I say that without any disrespect, including Hon Nqola, were gathered. It was said that ‘Oh, well, now we can start. The Constitutional Court has told us about the legal representation.’

Chairperson: That is in reference to the 36-member Committee that I chair?

Adv Mpofu: Yes, another correction, Chair. Otherwise known as the troops. Thank you. That is the 36-Member Committee of Hon Members, yes, Chair. Right. So that Committee then met on the 22nd of February and decided ‘okay, well, now there is a ConCourt judgment. Let the games begin.’ I am also just rushing through the common cause stuff, Chair. If I am putting words in the mouth of the Witness, Adv Bawa will say so. Then after the 22nd, the Committee then said it was going to finalise its Terms of Reference.

Adv Bawa: Chair?

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

Adv Bawa: Chair, I am not going to unduly interrupt, but let us not assume that everything is necessarily common cause.

Adv Mpofu: No, that is exactly the point I am making. If I stray into something that is common cause then please…

Adv Bawa: Adv Mpofu, I may just leave you to say what you want to say without taking issue, even if it is incorrect, and then pick it up with the Witness.

Adv Mpofu: Later on. Fair enough.

Adv Bawa: Rather than seek to interject. All I am suggesting is if I am not raising an objection, do not naturally assume that it is common cause.

Adv Mpofu: No, no, no. I do not. I think that I am addressing a different issue. I am saying, not necessarily that it is common cause, but I am saying, if I put in a leading question, or if I give evidence about dates, if it is common cause, unless if I stray into disputed stuff, then please raise it. Yeah. Okay.

Chairperson: Just put back your mic. Thank you, Adv Mkhwebane.

Adv Mpofu: Thank you, Chair. I think the Chair understood saying that, if I fill in dates, and so on, unless if it is contentious. Right? So I was saying okay, then the Committee meets. The Committee, this is all common cause, decides that it wants to adopt Terms of Reference. The Committee decides that, at some stage, it will be appointing evidence leaders, and so on and so on. All well and good. Because the committee had been suspended… well, let us put it this way, and voluntarily suspended its work.

Chairperson: That is very correct to put it that way.

Adv Mpofu: Yes. The Committee had voluntarily suspended its work, at the advice of Acting Speaker Tsenoli, who really has been the probably the best voice of reason throughout this – a breath of fresh air. When they were waiting for the Constitutional Court judgment, he advised the Chair and the Chair agreed, I do not know if he agreed willingly or kicking and screaming. But he agreed to suspend the process. Right. And then it was unsuspended, duly, because the ConCourt Judgment was out. Okay, so, and Chair, I am doing this really just to help other people who are not familiar as you and I with the process just to fill the gaps. Anyway, that is fine. That is February. March, come March, the 10th. of March, the Speaker of Parliament writes to the President and says, the Committee started on the 22nd, blank, blank, blank blank, without saying what that letter was for. Then on the 17 March, the President says, ‘Oh, I got this letter, telling me why I should not suspend you in terms of 194 (3)(a). Then, again you write letters, ‘let us not go to court. Let us be amicable’ and so and so on – rejected. What happened next?

Adv Mkhwebane: What I would say is that, I mean, you are raising the issue of the Deputy Speaker. Normally, the Deputy Speaker is responsible for supporting and overseeing the operations of the Constitutional institutions, especially Chapter Nine Institutions, though, I must indicate that I think even the other Chapter Nine institutions had, when they met with him, raised their concerns and the challenges. I think that is when he also realised that I think, you know, let us just focus on what the law is saying. Let us allow the process to be taken to court. Let us wait instead of just proceeding as if there is no tomorrow. So then, indeed, then the Speaker wrote to the President, and then the President started the process of writing to me. I think that was what triggered the letter which was written by the President. And I think the previous Speaker, Ms Modise, Hon Modise, well she was the Hon Modise, Member of the House – the Chairperson is going to call me to order here. But then they wrote informing the President of what is transpiring. But then the second letter by the Hon Speaker Mapisa-Nqakula was like now it means, in a way, start the Section 194 process. So that is then when I received the letter from the President asking why I should not be suspended or give reasons for that. Then the process started again, where we wrote back to the President trying to show the President that ‘okay, let us engage on these issues’, again the Speaker, ‘can we communicate on these issues, but that fell into deaf ears again. What else to do? Go back to the courts. And I think there was then part A of our application where we were trying to interdict the process. And I think, interdicting the process, again, it is not an ideal process, but I think if we can reach a point where issues are deliberated on, we agree and avoid state organs against litigating against each other because at the end of the day, is the taxpayers’ money and that fell into the deaf ears and then we had to go back to court.

Adv Mpofu: Yeah, thank you. Yes, again, to speed things up, you are right.

Chairperson: Maybe just before you proceed because I want to take a break, because if I do not I will be in trouble and you know from where I will be in trouble.

Adv Mpofu: Yes, Chairperson. I do know, Chair. I support you, Chair.

Chairperson: I want us to take a ten-minute break. We will resume after ten minutes.

Adv Mpofu: Thank you, Chairperson.

Adv Mkhwebane: Thanks, Chairperson.

The Committee took a ten-minute adjournment.

Chairperson: Colleagues, just before I hand over to Adv Mpofu, just to emphasise this traffic issue. Every time we have a witness here physically, I want us to avoid the traffic unless you have to. So I give regular breaks. And the culprits know themselves and they will be named soon. So let us avoid the traffic, thank you. Over to you, Adv Mpofu.

Adv Mpofu: Name them, Chair. Name them. Thank you, Chairperson. Chair, I hope you can also help us on the issue of temperature. The culprit is next to you. It is cold.

Chairperson: Okay, is that better?

Adv Mpofu: It is bearable. Thank you, Chair. If it is too hot, you know what to do.

Adv Mkhwebane: Yeah. Private summer.

Adv Mpofu: Private summer. Thank you, Chair. I just want to finish that journey of your series of let us call it, legal lectures. So first, you advise that there should be rules, there were rules. Second, you said it should be retrospective, they changed it. Then you said, it needs legal representation, the Constitutional Court came to the rescue. Now, we are now on the fourth level. Then now you say to the President, ‘no, you cannot do this. You cannot just suspend’, for this and that reason. ‘Let us talk and let us find a way’. In fact, you started with this Committee, ‘please stop your proceedings because we are challenging the suspension’. The usual happened ‘No, we will go ahead’, which is then what took us to what you call Part A. Then we get to Part B, where you were saying that the suspension of the President is unconstitutional. By now I think we know the drill. What happened? What did the court say? Did they agree with you, or did they disagree with you?

Adv Mkhwebane: Let me say that the Committee proceeded. Indeed, we requested them to stop the process in the meantime. I think there were those deliberations where they were saying ‘no, the processes are not linked’, which they are very much linked. So we then challenged the President’s matter, and the President went ahead to suspend. I must indicate that the unfortunate part is that again, the Speaker wrote the letter in March, and there was then a complaint which was lodged by the ATM (African Transformation Movement), relating to the famous Farmgate scandal or the Phala Phala matter. And again, coming back to that issue, which most of the time, I mean, I visited one… I was invited by one church in Delmas and engaging them, or it was women on issues of… so another one asked genuinely, that, you know, we are told by the media that you are fighting the President. And I had to then break it down to the person to say, I do not know how many times one has indicated that this Constitutional Institution, going back to the Mogoeng Mogoeng Judgment, that you will be fighting the most powerful, and people will feel embarrassed or those powerful people losing face. So a complaint was lodged, not to say it is me who then went all out, to say ‘Hey, bring the complaint’. And that complaint is very, again, unique because not any member of the public can lodge a complaint against the president and in terms of the executive members ethics act. So the complaint was launched by the ATM, and I think it was a matter of two days or three days, the complaint was lodged.. A letter was then written to the President to ask questions, especially to start collating the information because…

Adv Mpofu: Sorry, just for perspective, again, for those who are following the sequential. The complaint of the ATM, it is common cause, was launched, I think, on the 1st of June, last year, 2022. And your letter with 31 questions to the President was written, I think, on the 7 June. But you have said that you did not invite the complaint, it came to your office and you acted on it. Okay, can you take it from there?

Adv Mkhwebane: I acted on that complaint, being the Executive Members Ethics Act (EMEA), and which is very prescriptive that the complaint must be finalised within 30 days, though we have been struggling several times to do that. So then I/we wrote… actually, the matter was allocated to one of the very senior investigators or Chief investigator to then start preparing them the questions, the first audi, because any complaint which is lodged, we have to inform you, ‘There is this complaint. Can you supply us with this information in the meantime, whilst we conduct our investigation?’ So then that's when the famous 31 questions were crafted. They were sent on the 7 June. And I think on the 8 June, I confirmed because normally media will come with questions to ask, ‘we hear that there is something like this.’ And then I confirmed or we issued a statement confirming. It was basically that.

Adv Mpofu: On the 8th?

Adv Mkhwebane: On the 8th. Not to say going all out and to say we are having this, which is not what we do. Unfortunately our work is in such a way that the media will have a lot of interest in and we have to work with them, because they are a key stakeholder, I must indicate, and we have to respond to them, and, you know, be transparent, because that is what our Constitution demands of us. And then unfortunately on the 9 June I actually saw it on the news again. I was with my grandson and, and he was I think around two years by then, and he was saying ‘Gogo ’, you know? They were showing my picture on the TV. Now when I saw it, and I was like, ‘Oh, Public Protector suspended’. Well, I could not tell him because we were only the two of us in the house… ‘Hey, I am suspended.’ Yeah, but that is what transpired. Again, the same issue. No one called me. No one warned me, can you expect this or I have already decided. And I mean, our issue was, we were in court, my legal team agreeing with the legal team of the President that they will give us heads up. That never happened. But then be that as it may, then I received the letter. Well, we saw that the letter was sent around three or four in the afternoon, and by then the President was appearing before Parliament. So when that happened then we were very shocked because then there is something like this: the suspension. And we took it to court. Actually, there was already Part A and Part B of the court process. Remember, we were interdicting the President that you cannot proceed with the suspension. There are several issues you need to take into consideration. And we were also then still guiding that, but there are a various number of issues, which you need to consider. Remember as well, the matter was sent back to the Constitutional Court on the issue of… Besides that, it was also before court. When we raised new issues of the leakage, I think.

Adv Mpofu: Yes, that is correct. And you are still on the 9th. On the 10th we had been informed that there will be a judgment on Part A.

Adv Mkhwebane: Yes, we were informed that there will be a judgment on Part B. Remember already it was already – in fact it was Part B, remember the comments by the full bench was that the conduct of the President was rushed.

Adv Mpofu: That was in September, later on.

Adv Mkhwebane: Yes.

Adv Mpofu: On the date of your suspension, the following day, at 08:30, we had been informed that there will be the judgment on Part A which was whether or not there should be an interdict. So what is the significance of the fact that there was going to be a judgment on the following day?

Adv Mkhwebane: Oh, yes. Yes. There was that judgment on the 10th. All the parties were informed that they will be delivering a judgment the following day, but then the President went ahead the day before that. He could not wait for the court. And that is what we also showed, as well reasoned with the legal team, or as well trying to show the courts and even the legal team that that was rushed, and it is like, then he preempted the decision of the court. You know, well, there were other issues which transpired after which showed that there was something which was done, because it was as if the President was not even respecting the courts, preempting the courts after being informed that the judgment is going to be issued the following day.

Adv Mpofu: Right. Okay, so there it is. The President then suspends you, even though on the following day, the very issue of whether that suspension is lawful or not, was going to be judged upon by the courts of South Africa. Fine. So after that, you then instituted Part B and included the issue of the suspension. In the meantime, this Committee was apace, and it said that it was going to start on the 11 July, right? And the Members of this Committee, now, will get into gear with us, because, Chair, you will remember that when we were here on the 11th, we then asked if we could be excused for the next two or three days, or whatever. And that was the hearing of Part B, of that application, which was now the main challenge, no longer the interdict thing now – the main challenge on the President's constitutionality of his power to suspend you, right? So that was heard in July, in front of three judges. That judgment came on the 9 July – I am just fast forwarding.

Adv Mkhwebane: Three months.

Adv Mpofu: Yes. On the 9 September, then that judgment came out. And I think you were going there. What did that judgment on the 9 September say about the President’s suspension?

Adv Mkhwebane: I think if before we go there, I think one thing, which I would say some of the information fell into, well, the Speaker listened on some of the issues, which is the issue of the panel. Actually, that comes in, and I just want to just mention that when they were deciding on which panel members to determine the prima facie issues, I remember we utilised Adv Ntsebeza before, for a legal opinion on the issue of the funding or the raising funds for the personal costs. So the Speaker wrote to me and said, we intend to use or to have this person. So I am just saying at least somewhere they were listening. And if that could have been done regularly, we would not be going back and forth to courts. But then again, coming back to the issue of the Western Cape High Court, three judges or the full bench, where then the court indicated that the… it was in there. That suspension was hurried in nature.

Adv Mpofu: I am sorry to interrupt you, Public Protector. Just to assist the Members. Chair, could we go to what the Public Protector is now quoting? Just for the benefit of the Members. Page 521 of that statement, which is page 25 at the bottom. That is where the full court of the gist of what the High Court found.

Chairperson: You there, Tshepo? Okay.

Adv Mkhwebane: Yeah, I…

Adv Mpofu: Sorry, Public Protector. I just want to, as I say, kill two birds with one stone so that when we get to this part of the statement, then we do not have to deal with this. Could you maybe read for the record then, paragraph 155? You will see that it is put there cryptically. There is a fuller version, but 157 is put in full. So if you have the real paragraph 155, you can assist by reading it out, and then read 157. Sorry, Chair, we were in a rush to do the statement, so we did not put the words in-between there. That judgment is already a part of the record. Alright, just deal with 157.

Adv Mkhwebane: And then we will come back?

Adv Mpofu: That was the gist of what the court found in your favour.

Adv Mkhwebane: Yes. “In our view, the hurried nature of the suspension of the applicant in the circumstances, notwithstanding the fact that the judgment of the full court was looming on the 10th, and that led the court to a conclusion that the suspension may have been retaliatory and hence unlawful, and it was certainly tainted by bias of a disqualifying kind and perhaps an improper motive.” So it was in their view that “The President cannot bring an unbiased mind to bear in the circumstances, as he was conflicted when he suspended the applicant.” So that was then the key issue which the courts indicated, and I think there is paragraph 155 of the same judgment, which I am saying we should have also captured there in full, which I was trying to open now.

Adv Mpofu: Yes. Chair, for the sake of progress, I will just read it into the record and the Members can… so in other words I am going to read the dotted lines as well. It says “significantly” as indicated there “the sequence of events leading to the suspension of the applicant cannot be discounted, or overlooked. As explained above, on 7 June 2022, the applicant informed the President in writing that she was instituting an investigation against him with regard to allegations relating to a violation of the Executive Ethics Code” Mr Nqola’s special “in respect of the Phala Phala Farm incident, 31 questions were raised, and the President had to respond thereto within 14 days. This correspondence was followed by a public announcement by the applicant on 8 June 2022” as the Witness indicated earlier, Chair, “that she had decided to launch an investigation against the President in respect of the Phala Phala matter. In response, on the 9 June 2022, the President decided to suspend the applicant. On the objective facts, it is reasonable to form the perception that the suspension of the applicant was triggered by the decision of the applicant to institute an investigation against the President. There was no other plausible or logical explanation for the premature suspension of the applicant on the eve of a judgment meant to determine the very lawfulness of the suspension.” So that was paragraph 155. And then 157, you have already read out. Right. Just for the record, Chair, I am told that case is in Bundle H,, and we had raised it in the context of the Sokoni evidence, so it will be in the Sokoni folder. Thank you. Thank you, Chair. Right, then the court says effectively, on the 9 September – more than six months ago – “Your suspension was unlawful”, and that you can go back to work. You were very happy, understandably. And then, what happened next?

Adv Mkhwebane: Then that never happened because the DA, again, within 24 hours, I think it was within the same day, then wrote a letter to indicate their intention to appeal that judgment. Then I could not go back to the office, because I was ready to go back to the office and continue to do the work, which I am always or I am being paid for, and which I enjoy to serve the public and the poor and the marginalised. So actually, that is what I am appointed for. I am not appointed to deal with these five cases, because it is based on this impeachment. So that application then was lodged and the President also joined, as well, and lodged the appeal. And it was, well, from our side, we then also lodged an appeal – in fact, a Rule 18 application, if I am not mistaken – to say we would want the matter of the court to not be affected by the appeal. So then, that matter, never then succeeded. The three judges then agreed that the matter should be taken to the Constitutional Court for confirmation of those, some of the order. So we are here, still appearing before the Committee. And we have argued that matter in November 2022. So we are still awaiting the judgment in the matter.

Adv Mpofu: Right. Thank you. So then that after, where you were reinstated effectively, to go back to your office, and then the DA and the President ‘appealed’ so that you should not go back to the office in the meantime; and was argued on the 24 November, and we are awaiting judgment eagerly. Alright. So if that matter is successful, then obviously the Constitutional Court would confirm the High Court judgment, and hopefully the following day you will go to the office. I know that you are waiting for that judgment eagerly. But, Chair, just on a lighter note, on that day of the 9 September, the judgment was handed down in the afternoon and if it had been handed out in the morning, as it normally happens, the Public Protector would have gone to work to receive a memorandum because there was a march to her office by the ATM and others. What was that march about, Public Protector?

Adv Mkhwebane: That was relating to the very same issue of Phala Phala Investigation, and the delay to finalise the matter. So, as I said before that, you know, we try our best to finalise those matters speedily. And that is done not… besides the issue that the EMEA is providing for 30 days, but the fact that the very same accusations against the person who is being accused, it helps to get the outcomes quicker and deal with the matter speedily. So I think the main issue was, we have launched the complaint, the violation of Section 96 of the Constitution, which then also provide for the Executive Members Ethics Act, how the executive should conduct themselves. And I think it was an issue of how you update the complainants in the matter, and whether the matter would be finalised speedily. I mean, I am saying this because I remember around 2017 when I was appointed as the Public Protector when I was visiting provinces, in each province meeting the Premier, then being hosted by the Speaker, because we normally the Speakers of each province are our key stakeholder because remember, the Speakers also hold the executive to account. So normally, we will then work with them. The then Premier of Eastern Cape, Mr Masualle was saying, ‘you know, PP one thing which I would urge you to do is that if there are complaints lodged against members of the executive, or even any public servant, you know, if you can just find it in your heart to make sure that complaints are dealt with speedily because you will find that a person is accused, the media run with the story over and over and people end up believing whatever you are accused of. Kante (but), if you can investigate speedily, that can be then dealt with immediately because some people will even lose their jobs, some will be labelled that they are corrupt, without any detailed investigation. So I think then also when I joined PPSA I discovered that my predecessor appointed one of the senior investigators, who was specifically appointed to deal with Executive Members Ethics complaints, Mr Koko, who is now based in our Gauteng office. That was the intention to make sure that especially EMEA matters, we comply with the law and on the other hand, whoever is being accused, their matters are dealt with speedily. So that is where we have been striving, to make sure that we deal with matters speedily.

Adv Mpofu: Good, thanks. No, that is true. So the Phala Phala March of 9 September was informed by that? Well, six months later, you are still awaiting, the report is still not out. But be that as it may. Well, let me say nine months or ten months later after your suspension, that report is still not out. But let us put that aside. But the EMEA, I think it is common cause, and it has been accepted that although EMEA – all the witnesses who really had anything to say about it, I think the last one was Mr Mataboge – prescribes 30 days, it is seldom achievable. But that is one thing, I think, that everyone accepts. But how do you strive to make sure that matters of that kind, even if you do not meet the 30 days, are dealt with speedily? And maybe let us make a list of live examples, rather than talking about it in abstract. The CR 17/Bosasa matter, that Mr Mataboge testified about; how long did it take you from the time of the complaint to the issuance of the report?

Adv Mkhwebane: I think the CR 17/Bosasa matter took us up to around eight months and to issue the report on that matter. And there is the matter of the so-called SARS Investigation, or so-called Rogue Unit. When the complaint was lodged, there were around 12 issues which we were supposed to investigate. One of those issues was the complaint against Minister Gordhan of the Executive, that he lied, or allegedly lied to the fact that he met the Guptas, something like that. So then we had to split that investigation into two, so that we deal with some of the issues with the executive members ethics act. And then the remaining six matters, we then were meant to deal with them and investigate them under the Public Protector Act. But then that executive members ethics act investigation, I think it took us around seven months, if I am not mistaken for that to finish.

Adv Mpofu: Good. Thank you. Okay, now with those examples, and so that there is no confusion, when you say you took an average of seven months or eight months to deal with those matters of that calibre, you are not talking about what we are experiencing? Now. You are talking about, from the complaint, actually, to the report, not to the Section 7(9), which was leaked last week, I think in the Phala Phala matter. So the Section 7(9) would have been issued somewhere a few months after the initiation of the report. Can you remember?

Adv Mkhwebane: Yeah, the Section 7(9), because I think there is a recording which we have shared with the Members, in fact, we have uploaded where I was interviewing the President – I think we have uploaded that recording. I think it was around May, if I am not mistaken, or June, we will have to confirm the date. But then it was I think within two or three months after we had received the… three or four months after we had received the complaint. So normally, we would do that. And during the investigation, acknowledging that the investigators have other kinds of investigation, which they are dealing with. And again, the level of the person who is investigating the matter, especially the Bosasa matter was indicated by Mr Mataboge who was here, one of the witnesses, and who indicated that I said, to avoid leaks to avoid compromising the integrity of the investigation and as well protecting the President, it is better if it is a few people who are investigating the matter, so that we do not see information out there. And the very same person you would find that they are having investigators reporting under them, they should be making sure that they deal with their performance. They also have to conduct their investigations so that that is what transpired.

Adv Mpofu: Yes. Thank you. Well, just again, so that we do not have to traverse that road when we deal with CIEX and Vrede and all that.

Chairperson: Just a pause before you proceed. Hon Nqola?

Mr X Nqola (ANC): No, thanks, Chair. I want us to follow the testimony properly. Is Adv Mpofu putting it on record that the Phala Phala Report has not been issued by PPSA and just got leaked? I just want us to follow properly.

Adv Mpofu: Yes.

Chairperson: Thank you, Hon Nqola. Switch on your camera, Adv Mkhwebane. Over to you, Adv Mpofu.

Adv Mpofu: Yes, Chair. I will help you and it will take half a minute. Again, thank you, Hon Nqola. No, what happened is that – you know about Section 7 (9) by now – the Phala Phala Investigation, as the witness said, started in June 2022. Let us say nine months later, which is last week on Friday, the Section 7(9) letters were leaked in the media. There is no report, yet; and that is unfortunate. When we talk about the problems within PPSA, we will talk about the leakage; even the CIEX report was leaked, deliberately, I think. So we are still far from the report. That means that the President and General Rhoode and all those people who are implicated have now been given the chance for audi, which should not have never been leaked to the public, but unfortunately it has. I was just saying, in the spirit of killing too many birds with one stone, now that Hon Nqola has raised the issue, can you explain that? To be honest, it is not as simple as it looks. Particularly during the time of Prof Madonsela, the Section 7(9) letters were called provisional reports, which causes more confusion. But just please educate us, Public Protector, as to this stage of what happened last Friday, of the leakage of the Section 7(9)? You must have seen it in the media. What does that mean, in terms of your processes? You have told us about your processes so that we do not have to revisit that. Complaint, you have told us. What is the Section 7(9) stage of what was leaked on Friday?

Adv Mkhwebane: If we investigate the matter, there are various stages where we involve or we engage the complainant. Hence, I indicated that in any complaint, we would inform the person. In fact, if we receive the complaint, we will have to inform you as the implicated party that ‘we have received a complaint, can you then assist us with the investigation?’ Definitely, we would not just conduct an investigation in secret without informing you as the implicated party, hence, the 31 questions. When we receive your response, because, again, when I joined PPSA, there were no rules. Your rules are like your regulations to the Public Protector Act. So we had to have the rules so that we assist even the state institutions, the executive to understand when a complaint is lodged, how long must it take for us to investigate the matter, and as the implicated department, how long should you take to respond to us?’ So normally, in terms of the rules, when we issue you with that letter, we give you up to 20 to 30 days, to give us your side of the story. You respond to that particular matter. And we request further documentation, so that we can also be brought in our investigation that we deal with all issues or so that we are not only restricted, I think you mentioned the Mail & Guardian case earlier, to only one complaint was lodged on and by doing that, we also assisting to deal with the root causes of any particular malfeasance in the system. So we will then investigate, and that helps us to have the leads, because then we will then see, okay, you have responded as follows, this is the complaint. Then we need to approach possibly another department, SAPS (South African Police Services), we need to approach SARS or we need to approach the Reserve Bank or then we have to subpoena bank statements; we have to approach Home Affairs and say, if the person is alleged that I never travelled, what is the movement control system saying about that particular issue? Then after doing that, we then check the allegations against the evidence before us against what the law requires a person. That is where we have compiled that Section 7(9) Notice. And I think we're still going to deal with it in detail, because in the past we used to, with the CIEX matter, it had the remedies already. Thereafter, the challenges of the CIEX matter, then legal services gave a legal opinion that ‘but if you strictly read what Section 7(9) says, it says, you serve that notice to the implicated parties because we came to you, we indicated that there is this complaint, you responded and we are saying to you here is the complaint. Here is your response. Here is the evidence. What is the law saying to that?’ Application of the law to those facts, it shows us that you have violated this legislation. So that is what Section 7(9) says. And that is only served to the implicated parties. And we normally say you should not share it because there were instances where a report will be leaked, or a provisional report, well, when I arrived, my predecessors, some of the reports or provisional reports were leaked. And then people will think that or as well, they used to save that provisional report to even the complainant; I think hence Adv Hoffman complained, or also thought I violated the Public Protector Act by not sharing the CIEX Section 7(9) with him. So normally we do not serve it to the complainant. But what is required of us, especially in terms of our service standard, is that every 20 days or every month, we should be updating the complainant about the investigation. So that is what Section 7(9) Notice is. It is not the benefit for everyone. And remember, that can change the contents of the report, because you might respond to the Section 7(9), and then we could be saying to you, you are implicated, the matter is substantiated. But when we receive your response, sometimes we will say no, the complaint is no longer substantiated, or when we receive your response, we will say definitely, there is evidence, and then the matter is substantiated; there is a finding.

Adv Mpofu: Good. Thank you very much. Chair, again, without deviating, but I am just taking advantage of Hon Nqola’s question, so that we put this issue of the stages to bed. It might sound like Hon Nqola’s question is simple. It is actually very complicated, because one of my juniors is also asking me after the leakage on Friday to say now there are headlines that say the President has been exonerated and what have you. So if he has been exonerated, then why is he served with a Section 7(9)? And the answer, just for the Members, when we deal with the Bosasa matter, we will deal with that, is that in any event, and I just want you to confirm that, in terms of EMEA, when there is a complaint, which is an EMEA complaint, just by coincidence, the law requires you to serve that report to the President, if it is a member of the Cabinet that is being complained about. So it is a two way thing. Even though the ‘accused’ is the President; but because he is a member of the cabinet, the report has to be served on him. And that is, I think the context. And you will find that, I will not even put it up, Chair. When we deal with the Bosasa matter, we will deal with it. It is in paragraph 12 of Bosasa judgment, where the majority Judgment of the Jafta, J said “The section does not explicitly prescribe the procedure to be followed during an investigation. However, it mandates the Public Protector to follow processes outlined in the Public Protector Act and exercise investigative powers afforded to her by that Act. The section contemplates a swift investigation, which must ordinarily be concluded and the report be submitted to the President if the complaint was against a member of cabinet or deputy minister or to the premier if the complaint was against an MEC (Member of the Executive Council).” Is that how you understand the law, the EMEA?

Adv Mkhwebane: Yes.

Adv Mpofu: Okay, thank you. Thank you very much. Alright, now that we have put that aside and we know what it was, that it was leaked last week. You have told us that in your time, matters of this calibre, you took in Bosasa 8 months for the full thing, up to the report. We are still from that in Phala Phala. And you took seven months or so in respect of the Rogue Unit, which is even better. I just wanted to also deal with another issue, which was raised about even, I think your most ardent critics, sitting where you are sitting now, have acknowledged how you have improved the speed with which matters are dealt with; so it looks like you took Premier Masualle’s advice to heart. Now, in relation to that, just to wrap up some of the matters that we are going to deal with, we know that there was a matter of CIEX – one of the key matters here. How long did it take you to deal with that matter? And for the sake of perspective, the complaint was in 2010. And in 2016, six years later, at the time of the retirement of your predecessor, there was not, according to her, even a draft report. How long did it take you to deal with that matter?

Adv Mkhwebane: I joined the institution 15 October 2016. We issued the report, I think in June. It took us six months to finalise, in fact, to issue the report. Not only the issue of Section 7(9), no. But just to finalise that investigation. And I think what is key and critical, Chairperson, is that this institution is meant to be exemplary. I think that is what I also indicated during my interview, that we need to lead by example, as Public Protector. We investigate undue delay, therefore, undue delays should not be what we are accused of, I think. And that was what was driving me to say we cannot have work which is just piling up and not be finalised. And well, the investigation was… all the information was already collated. Whatever we found there, the interviews, the recordings of former President Mbeki, former governor, all the people who were interviewed, the records, which we found there, then we decided, possibly we can move on this. But also, we could not move without me satisfying myself that okay, this investigation, what is the root cause? Or why did we in the first place accept this complaint and investigate it? I think my predecessor indicated that there was that agreement, which was signed between the Secret Services here and M16 – no, not M16 – the CIEX company which was investigating. And that was because when you listen to the recording of President Mbeki, it was very clear that he did not want to deal with the matter himself. Therefore, it should be dealt with by South African Intelligence versus the other counterpart, because it was an issue of… in that sphere of investigation.

Adv Mpofu: Thank you. Yes. Alright. No, I think one of the people who assisted you who testified, I cannot remember the name.

Adv Mkhwebane: Livhuwani?

Adv Mpofu: Mr Tshiwalule? Yes, he confirmed that you came in October, familiarised yourself, and by November, December, you had done that, and then you gave them their marching orders, and six months later, the report was out. Thank you. So, again, the Vrede matter is another one that is going to feature here in the next days or so. Again, that one the complaint was in 2013, I think. So it was 2013, 2014, 2015, 2016, four years or so later, your predecessor had not produced the report. And how long did it take you to deal with that matter up to the report?

Adv Mkhwebane: I think we issued the report… I think it took us eight months, if I am not mistaken, because a lot of work had been done. I think that was one of the key issues. I was excited that the public heard Prof Madonsela saying that she never even signed the provisional report or the Section 7(9) because it was still drafts and she was still guiding the officials on what they need to do. This matter is the very same matter I was accused of having changed her report. That is one of those. So I think I took that time to finalise that matter. If you see some time around 2015, there was a stage where there was a media statement by my predecessor saying the investigation is complete and they will be issuing the report. But there was never a time where the draft or the provisional report issued in terms of Section 7(9) was signed and issued. So that was the process that we had to deal with.

Adv Mpofu: Yes, again, somebody testified about this. For the record, Chair, that report was issued, it is the so-called Vrede I, in 2018, which was about fourteen months after the… Anyway, the point is that you had two reports; one had been there for six years and the other one had been there for four years. You took a relatively shorter time to deal with those. We will revisit that issue when we deal with CIEX and Vrede. Alright, back to where we were, Chairperson. So now, the Constitutional Court hears your matter, and we are waiting for that judgment. Now, in the meantime, you have said in your statement that the reason why you wanted us to start with the CR 17/Bosasa/Phala Phala matters, you say in your statement, that is what this matter is really about.. If you go to paragraph six of your statement; and again, just for the sake of progress, Chair, if I can read out the extract from the Nkandla case, that the Witness referred to earlier in passing? Please go to paragraph six? Okay, I will just read out the part that is from the court case. The rest is your statement, so you will put it in your own words. This is one of the defining statements on the Public Protector, Chair. If anyone as the Public Protector says ‘Those who have ears will hear and those who have eyes will see’. This is, according to this statement, why we are here… the Chief Justice said “Her investigative powers”, her meaning the Public Protector, “are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power”, that would be otherwise known as Mahlamba Ndlopfu. “The predicament, though, is that mere allegations and investigation of improper and corrupt conduct against all, especially powerful public office bearers are generally bound to attract a very unfriendly response. An unfavourable finding of unethical or corrupt conduct, coupled with remedial action will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage. It is unlikely that unpleasant findings, and a biting remedial action would be readily welcome by those investigated.” So, according to Justice Mogoeng, this is just the nature of your job; take it or leave it. But it is, when you do your job, it is unlikely, rather, it is likely to attract a very unfriendly response. Now, you say that, in the context of paragraph six, about what you say, is, what this matter is about or not about and maybe, Chair, if you beg her indulgence, I would like the Public Protector, then, to link that statement to her own words, by reading out paragraph six. And then I will ask you a couple of questions.

Adv Mkhwebane: I think this shows that…

Adv Mpofu: No. Sorry, I am asking you to read it out, then I will ask you the questions.

Adv Mkhwebane: Six or seven?

Adv Mpofu: Six.

Adv Mkhwebane: “Before dealing with my credentials, and some of the overarching information, it is crucial to put my evidence to its true and proper perspective by calling out this process for what it is and what it is not, in my honest opinion. For the record, I do not for one second believe that this process represents a genuine impeachment process. It is merely a politically motivated witch hunt reminiscent of inter alia the words of Chief Justice Mogoeng, speaking for the unanimous Constitutional Court, when he said about the Public Protector”, I think the SC has already read this. I think I said to, SC, Chairperson, that the prophecy of CJ Mogoeng Mogoeng is coming to fruition, because exactly what he said is what I am currently going through.

Adv Mpofu: Thank you. And then, maybe, so that we can round off that point, you could go to paragraph seven and eight.

Adv Mkhwebane: Yeah, whilst going to paragraph seven and eight, I should also indicate that for paragraph six, that you know, Section 181 (3) of the Constitution is very clear that Parliament and any organ of state and anyone has a duty to assist the Public Protector, the Auditor-General, Gender Commission and all other Chapter Nine Institutions. So this shows that, you know, if you then investigate the untouchables, which I think you in the opening, you indicated what this is all about besides the political motive, but also the capital and, you know, those who have deep pockets would then use this particular process. So this process, as I said earlier, is a special project of the Democratic Alliance, which is aimed at scoring political points as the first party to have ever caused a head of a Chapter Nine Institution to face impeachment proceedings. This process has nothing to do with accountability. I think I was told several times, here ‘No, Public Protector you are accountable to Parliament.’ I have done that without fail. And, you know, when appearing before the Portfolio Committee on Justice, if you go through the annual reports, which we will go through, I used to indicate the challenges, and it is for that Portfolio Committee as well to see how can they put Section 181(3) to light, because they were the ones who were supposed to make sure that whatever I am doing or even cancel and guide me if there is something which I was not doing correctly. So it has nothing to do with the Constitution and the rule of law because at the end of the day, I would say 90% of the complaints, executive members ethics act complaints, which were launched, were from the members of the DA against the members of the ruling party. And the very same Bosasa was from Mr Maimane, who was the head of the DA. So it has nothing to do with the Constitution of the Republic and the rule of law. So this process is far removed from the Constitution as the South is to the north. It is a politically motivated witch hunt, masquerading as a bona fide inquiry under the auspices of Section 194 of the Committee. So it is a racially motivated because I would say that it was borne out of fear of change, which might actually benefit the poorest and the most marginalised members of the public who are in the main blacks and at the expense of those who benefit the most from the economic status; that I will say it boldly. And I should have even given examples in the past where I would say, you would find your CASAC, your Freedom under Law and all these NGOs who should be helping and working with the Public Protector to deal with the marginalised – the triple challenges of this country. But they would be the ones who are taking me to court, they would be the ones who are in cahoots with the DA to just deal with me. But when it comes to these high profile matters, which I am not going out there to look for them, because I do have my own initiative mandate as the Public Protector. But most of the time, I would do that, but I would not do my own initiative investigation as far as matters of concern are like this. So unfortunately, I find myself in this particular position, and, you know, the issue of the DA trying to get rid of me, and to punish me for doing my work as prescribed in the Constitution, you know, to do my work without fear or favour. Unfortunately, the current ruling party also aided or assisted them in this particular process, because if you would see the kind of work which we did with the league with the staff of the Public Protector, you would find in my affidavit, I will say ‘we’ because this is the work which we have been doing together. And what CJ (Chief Justice) Mogoeng Mogoeng said in the opening that one will be dealing with raw state power. It is exactly what happened because the CR 17 or Bosasa matter, the investigation was done honestly and it was launched by the very same DA. And we investigated it openly. The issue of Minister Gordhan, again, it was launched by the EFF, because they are also using the Executive Members Ethics Act. We instigated it with the team. And I think that is what I have shown that I work with a team. They are investigators who conduct day to day investigations. So these issues which I have mentioned here in my affidavit… I mean, the issue of Mr Pillay who the complaint came through a whistle blower about this matter, I need to indicate, and that whistleblower by then was working in the Deputy President's Office, the current President. Unfortunately, one of the journalists the late – what was her name? – who then exposed that particular person and causing serious damage to that whistleblower because he was employed and asking, ‘but how can something like this happen? I am also a public servant, can I really resign in the following day, within an hour be appointed’. But then I think my responsibility is to make sure that I assist this country per the policies of this country, per the rule of law to make sure that we have good governance. But unfortunately then, the DA made sure that they only focus on a certain calibre of people you need to be investigating and forget about the poor and marginalised.

Adv Mpofu: Thank you. Okay, maybe then for the sake of completion, with the leave of the Chair, you can then read the rest. You just stopped halfway with paragraph eight. You can just read paragraph eight into the record.

Adv Mkhwebane: “Assisted by the ANC, which is driven also by separate motives of retaliation and revenge for having exposed corruption and other wrongdoing on the part of its most powerful leaders. I would say that this investigation against the President, which we will deal with in details and the evidence which we honestly, received and dealt with and tested it against the existing laws and not any ulterior motive.” The issue of the Phala Phala because that led to my suspension, especially (since) we have dealt with the issue that I wrote the letter, asked the questions. And I mean, that led to the issue of my suspension, not even waiting for the court to issue their judgment of the likes of Minister Pravin Gordhan in respect of the so-called Rogue Unit scandal and the fake retirement of Mr Pillay because that is clear. And there is evidence which we are going to deal with, in my evidence, so that I can go and take the members of the public through the report, because the report what evidence we relied on, and what legislative framework guided my work. It was not at all based on the fact that I am just targeting certain individuals. And I think these investigations, especially against Minister Gordhan, because he was the accounting officer at SARS and what are his responsibilities in terms of what the Constitution is saying and what the relevant prescripts are saying. So as Chief Justice Mogoeng Mogoeng has said, that such investigations are generally bound to attract a very unfriendly response, which I have been receiving since I joined the institution besides the DA: and I am saying the ANC because I have got evidence of various members of the executives, and making very, very disturbing remarks against me; I mean even Minister Gordhan writing those in his affidavit, and you know, the court had to strike off those comments. So that is what I am facing or that is what I would say to the members of the public for them to understand where this process started, and what is happening. And when we deal with each matter, then I will have to take the public and let them be the judge and indicate because one is also being accused of being factional and all those. I do not know how many times one has been saying, I am operating in a political space because of this Executive Members Ethics Act. You know, SC and Chairperson, it is just that we were dealing with this statement in a rushed manner, there is one presentation I made to Cabinet, which was the first time the Public Protector appearing before Cabinet. And it was the question, ‘why is she doing this’, but, again, being honest and trying to make this state of ours, to work. 29 March 2017, the current President was a Deputy President, where I was presenting Executive Members Ethics act and saying to them, my predecessor issued a report, the Nkandla, and recommended that you amend EMEA. And by then, I was also saying she only dealt with when you investigate the President, you do not indicate who to inform, especially when you are still investigating, because when you investigate an MEC or a Minister, you inform the Premier or you inform the president, but with the President there is nowhere. So the only way is to inform the Speaker. You know what I did? I still have the presentation which we can share. I then said I am not impressed. I am not happy. I do not even want to investigate under this me. Again, promoting the issue which is why do you not have a situation where in the EMEA we have it like in the Public Protector act where we say, public servants exhaust your internal remedies first, because I was saying you should exhaust this process in Parliament first. Unless then when you fail to exhaust it, then it is escalated to the Public Protector. That is what I was trying to do. But unfortunately, as if I was also like, Chief Justice Mogoeng Mogoeng, foreseeing where one is going to end up, especially on the persecution and the comments made by some of the members of the ruling party.

Adv Mpofu: Right. Now, you have touched on all the accusations about you being involved in factional politics of the ruling party in particular. And indeed one of the charges of Ms Mazzone, Hon Mazzone, I think it is 11.3 and 11.4, and we know it has been trumpeted here also many times, was that you target certain people of certain factions of the ruling party, for example President Ramaphosa, and Gordhan. All of us South Africans know how the factions work. And then you exonerate, even when there is overwhelming evidence, like pictures, I suppose, of things being taken away of certain other people of other factions. The examples that have been used are Mr Magashule and Mr Zwane, Mosebenzi Zwane. In other words, if I am in this faction and my matter goes to the Public Protector, definitely, I am going to get the chop. But if I am in the other faction and the matter goes to the Public Protector, irrespective of the evidence, I am going to get condemned. Let us call that the ‘Mazzone Theory.’ You know, these things are easy to put on paper, as you call it, a narrative. Let us just examine the real facts. Some of the people you have found against… Can you just tell us some of the people that you have, without necessarily allocating them to a faction, as I think South Africans are wide awake as to what happens in those dynamics. Who are the sum of the key people you have found against?

Adv Mkhwebane: There were several executive members ethics act investigations, because those are the costs of why I am sitting here being accused of those by some who do not want or who just take whatever they are being told by the media without you know, honestly understanding what is happening. In Limpopo there was a report to issued against Ms Mokhaba Pokwane [sp?] relating to EMEA. There was a report which we issued against the then Premier of Western Cape, Ms Zille. There was a report we issued against the Deputy Speaker of Limpopo.

Chairperson: So that we hear all of them properly, just get closer to the mic.

Adv Mkhwebane: Okay. Against the Deputy Speaker of Limpopo and then against the Minister of Sports and Recreation Mr Mbalula, former Minister Malusi Gigaba, former Minister of…

Adv Mpofu: COGTA.

Adv Mkhwebane: Yes, Mr van Rooyen. There was a report which we issued against the MEC of Health, Simelane Zulu, Western Cape former MEC, Madikizela, from MEC, former Minister of Agriculture Forestry and Fisheries, Ms Tina Joemat. I think some of the matters were not substantiated but then I am just indicating who the people we investigated are. Some of the complaints lodged against MEC of Western Cape, Bredell. There are also complaints lodged against the President, President Ramaphosa and the MEC of Gauteng, Mr Mamabolo. So those are the investigations which one has conducted. I must indicate that some of them were substantiated. Some of them were not substantiated, and across all aspects of our investigations. These complaints, as I said, were lodged by the very same – you cannot as a member of the public lodge a complaint under the Executive Members Ethics Act – Members of Parliament against each other or members of the executive against each, which helps because what President Nelson Mandela said, in that university in Taiwan that, you know, we are not above the law. We would want somebody to help us to act, you know, ethically and to also have somebody who will oversee our behaviour and represent or protect the public so that we do not abuse our power. So, these are the investigations which we have done, and some of them were not substantiated. They were closed. Several reports which were issued, which we said, the matters are not substantiated.

Adv Mpofu: Thank you. Okay. I think that to make this point – I take that point, Public Protector – but maybe to assist, really, with the point about your alleged factional allegiance. Please, I take the point that you are saying these are the matters you investigated, but I am asking you specifically about persons that you made findings against in the context of what we know is factional politics in South Africa. Maybe I should just ask you like this; in relation to, and I will just pick up some of the matters you mentioned, Minister Des van Rooyen, that you mentioned, did you make a finding in his favour or against him?

Adv Mkhwebane: Minister Des van Rooyen, it was against him.

Adv Mpofu: Yes. And then in relation to Minister Lynne Brown, did you make a finding in her favour or against her?

Adv Mkhwebane: It was against her. That Minister Lynne Brown, what was worse was that utilising the very same code, which is alleged I have changed, because we said it was not deliberate on her part, because she was misled by the department, the DG (Director-General) of the department. And we said in future, she should be very careful and make sure that when she responds to Parliament, she is also happy that it is credible information. But unfortunately, those two Ministers, the President wrote a letter back, immediately acted on those two reports, and informed me that have implemented your remedial action and have taken action against these two ministers.

Adv Mpofu: Yes .And those actions against those Ministers were taken against what was not trumpeted Ms Mazzone as having used the wrong code?

Adv Mkhwebane: Definitely, having used… I mean because that code has been used since even my predecessor. There are several cases which I will take the Committee through, such as Shiceka, Dina Pule, Nomvula Mokonyane. The same code which I am said to have changed.

Adv Mpofu: Yes. Okay, and against Minister Malusi Gigaba, did you find for him or against him?

Adv Mkhwebane: It was against him. That one was one of the matters which if I am not mistaken, this matter, the investigator who was specialising in EMEA matters. I think it was done, as well, one of the quickest one which was done because it was only focusing on what the court has said, and what Executive Members Ethics Act is saying about what is expected from the members of the executive. So it did not take a long time to investigate that. But I must indicate that it was against him.

Adv Mpofu: Yes, thank you. And then one that is more difficult to pin down, functionally speaking; against Minister Macula, did you find against him or for him?

Adv Mkhwebane: Minister Mbalula, it was against. The issue of the evidence which was there before us, which was you know, as well brought to his attention, and it was against him as one of the ministers who also insulted me about our investigation.

Adv Mpofu: Yes. Alright. Okay, fine. As I say, it is easy to just allocate people to factions and choose those that you want to choose. But the insults, you talk about insults. Again, I suppose that comes with the territory. I said in the opening, and this is something I have discussed with you many times, as I say also, because it touches on some of my personal experience. The question that you get asked all the time, what got into your head to take a job like this, when you know what is coming? Now, I am asking that question in relation to the other South African, you were here around the Nkandla Scandal and all that. You saw how your predecessor was vilified, insulted, and really, you know, belittled, and we will not mention how she was belittled because then it is assumed by those who have minds of a peanut that you are therefore, insulting the person yourself. But having seen those objectionable insults against your predecessor, you still put your name forward for this job? So how did… Well, firstly, because you are human, and I am sure you knew you were getting into troubled waters, but what drove you to still make yourself available and take up the challenge, irrespective of knowing that you are going to be vilified? Look at where you are sitting right now.

Adv Mkhwebane: You know, I never applied for the position. I was approached, you know when they advertised the position, they called on the public to motivate and approach us. One of the staff members I worked with at the Home Affairs approached me. I agreed. I submitted my CV (Curriculum Vitae). And I remember before the interviews, my late mother was saying to me, ‘Yoh, I have seen how they treated Thuli Madonsela’, hence I said in the interview that my mother used to follow the current affairs. So she was saying, I do not think you would want to be treated like that. And, you know, when she said that… In fact, a lot of my peers at home were saying, you do not want to be subjected to that. But then I said, I would want to serve the public because in my space, I used to work in a very human rights related environment – humanitarian issues. So I said I would want to help the public. I would want to make sure that, you know, I am the voice to those voiceless. Being caring and a person who can help in that space, I would want to help. So I must indicate that you know, when we called my predecessor to come here to also be the witness, and I think you will remember I am the one who said, ‘Please, can we also include her’ because I was expecting her to deal with, you know, what she was going through. I think there was a question where you asked, which, I mean, when some of the Members, some of them are part of this Committee, because I mean, history has no blank pages. When you go back and see the videos on how some of the members of the Justice Committee used to treat her, deal with her, insult her, I thought she would understand the position I am in today, and also to help South Africans or even the Members of the Committee that you do not have to treat the person like that. But you know, what, SC, what gives me peace and what gives me joy, all the time, Chairperson, is that there are a lot of members of the public with the team of Public Protector, South Africa. And I mean, some of those who were scared to come or some of them were told that you must just bring what is negative about this woman. But they would tell you that I always said, ‘how do you sleep at night, when you have a person who is coming here desperate, because they have been failed by the system?’ Whatever happens, whatever negative comments, but let us make sure that we make a change. You know, it gives you a fulfillment to find people who were sleeping in makeshift tents, families dying. But when a roof over their head is constructed, and they would say, ‘You know what, at least now we are protected.’ That is what is keeping me going. But I think the main thing is that I'm not about your Bosasa/CIEX, Rogue and whatever. I am in this position, because I would want to free and to make sure that the very same thing which is being said, what the Constitution is there for the poor and marginalised, is indeed a reality. So at least we have tried with the staff to make a few enjoy it. But I must indicate that or even I think you can exonerate yourself some of you of the Members who were serving during Madonsela’s time and who are still here, ask yourself, is it the way you should be treating this institution which is there and which our forefathers said it will help in liberating the poor and the marginalised?

Chairperson: Thank you, Adv Mpofu and Adv Mkhwebane. We will pause there and take a 45-minute lunch. We will be back at 14:00. Thank you.


Chairperson: Welcome back. I hope you are sorted out, PP. Are you settled? Thank you. Welcome back, colleagues. We resume our work for this afternoon. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. I did not hear. Thank you very much, Chairperson. Okay, Public Protector, we broke at the point where you were talking about the humiliation, the insults that your predecessor had suffered and where your late mother had warned, why do you take such a job when you can see what has happened to your predecessor. I know that your sisters, Ms Jeanette, they always told us that they tried to discourage you from doing this because it was a one way to trouble, but you have explained why you insisted on doing it and why it gave you such satisfaction to deal with members of the public. Now, I just want to round-off that point by relating to something you touched on before lunch, which, you know, you said it in passing but most people do not even know it. That you should explain why it is that when the date was set, for this process, around about June or May, and we asked you to give us a list of witnesses. One of the first names that you suggested was that of Thuli Madonsela, in line with what you have indicated. Why was it so important to you? Adv Bawa confirmed last week that indeed she was on our very first list, well she was on their list, and then she was on our list. In fact, probably one of the few names that appeared on both lists. Why did you feel that you needed her evidence to the extent of asking the Committee to subpoena her, which was kindly acceded to, with the hijacking exercise that happened?

Adv Mkhwebane: Thank you, Chairperson. I think, Adv Mpofu, as I said, yes, I am the one who requested because, for me, I felt she could relate to what I am going through currently. And as I am saying to you that the warnings came from my late mother, and she knew how she was treated and the hostility towards her. And I mean, being an African woman, also going through that, and some of the people treating her like that. I thought she would come here as well, when Hon Holomisa asked her, she would then also put issues into perspective and speak with that voice after going through that hostility. And unfortunately, you know, I kind of was discouraged in a way because I thought she would, you know, maybe speak sense to some of the Members of the Committee, and, you know, inform them that it is not easy to do this kind of work and you are second guessed, you are insulted and it is as if you are going around and wanting to find people guilty. So, I felt sorry for that particular process. And I think and it is true what you are saying, members of the family, my friends, and well my younger brother always will say ‘I told you a long time ago you should not be doing this work because some of the work which you have done especially the untouchables especially capital’ because he used to work in the public service but interact with various racial groups and he would say, you know, you do not find against certain individuals. So I felt shame and I felt we should be helping each other. You know, ‘My Sister's Keeper’. But I would say my successors in title, I would not want them to go through the same thing. I think we need to stop this, hence I am saying to Members of the Committee, some of them those who have ears, let us not continue doing this, because sometimes you are being used by the powers that be, so that you do not, you know, liberate people from this cycle of oppression, because some people are benefiting out of the fights amongst us as black people.

Adv Mpofu: Yes, thank you. Now, I think you already answered my next question about how you were discouraged and disappointed. How did it make you feel when you were now instead of… I know, you expected hell as someone who would have gone through what you had gone through. Maybe educate us how you felt when it was actually suggested that you only called her, in other words, when you were referring to Hon Holomisa’s question about the insults that were held against her, that actually you, through your lawyers, I suppose, were the one who was making those insults? How did that make you feel?

Adv Mkhwebane: I felt sad and it was a shame, actually, for some people who are thinking like that, because I thought, you know, people will understand and as well just try to show that whatever is happening now we need to stop this persecution. But then I think when that matter was raised, it was to make sure that it is dealt with once and for all so that people are not concentrating on such petty issues, but they understand that she was doing her work the best she knows how. And the vilification, it was not justified against her, and the body shaming and all those but I thought, you know, she would also come to my rescue. But I think it was as if there was that issue of it is as if you wanted to embarrass her or… I think people took it as if we are fighting or we are in a fight or, you know, so sometimes it was more of not being cooperative, but we were trying to show that, you know, whatever is happening was happening to her. It is still happening even to this day. I mean, besides the issue of body shaming and everything, also the issue of the judgments and what happened with her and how the Members of Parliament were treating her, the same thing is happening. Can we stop the cycle?

Adv Mpofu: Well, I do not think you should bother yourself, if you want my advice about what I said about minds the size of a peanut. Anyway, at paragraph ten, quickly, which is page 502. Yes, I think you covered eight and nine. Here you talk about the unholy alliance. Just to round off the issue of how you see this process, can you take us to paragraph ten? Sorry, is the computer taking slow? I cannot read the one on the screen without my glasses. I do not know which one you prefer, the screen or your computer?

Adv Mkhwebane: No, I am reading my computer.

Adv Mpofu: Okay, can you please take us through paragraph ten.

Adv Mkhwebane: Alright. “It is these factors which have led to the formation of the unholy alliance between the DA and the ANC to advance their common objective of removing me from office by hook or crook and if the courts are to be believed, mostly by crook” because… can I elaborate?

Adv Mpofu: Yes, please.

Adv Mkhwebane: I mentioned this, because I indicated earlier that when the charges are read, or when people are meant to take an oath, it is like the removal of the Public Protector. It is as if it is concluded that I should be removed. And the worst thing is that, as Public Protector Sokoni was saying when she was testifying, if we take the judgments as they are, and I think you have tried to deal with those, and even my predecessor, you asked the question, and you read the NEF Judgment and the SABS Judgment. If you take it as is and you charge a person like Hon Mazzone, indicated that I should be charged because I have lost the following cases. And those judgments which we have shown and are going to show are based on wrong facts. I mean, it is very clear that I should be removed. I think I mentioned these parties, specifically, because the Speaker should have made sure that she is not possibly tricked into thinking that that is the way to go about because it should not have happened in the first place. And I think I am also mentioning it here because, you know, during the weekend, I went to some wedding, where somebody comes to me and says ‘Hey, you are in Parliament. You are an ANC person, and what is happening about this. We do not have electricity and stuff.’ I said, No, I am not an ANC person. The very same ANC is also now persecuting me, so why do you say I am an ANC person?’ That is why I wrote it like this, because this should not have been allowed that I come and sit here, state payers money is being used to just deal with me the way I am being dealt with.

Adv Mpofu: Thank you. Earlier in the morning you were talking about taxpayers, and how many attempts you have made, even to this Committee of saying, ‘Please, let us not waste money, we are in court. Let us hang 10 on the process, and maybe wait for the court process.’ But there was this eagerness to continue wasting the money. And we heard from the Chairperson last week that the same people that were refusing your requests to save the money by waiting for the court processes, are now saying that you must proceed effectively without legal representation. How does that make you feel?

Adv Mkhwebane: You know, Adv Mpofu and Chairperson, it makes me feel very sad, because the very sad because one of the charges – what is it, three or four? – where I am charged or I am being told or the Hon Mazzone, who is supposed to come here and explain between legal costs and legal fees, what does she mean. Even the very same cases I am said to have lost, we were defending the very same public because we investigated the matters and those who have deep pockets take us to court and I thought, when we defend the matters, we are helping the court to understand that, can you make sure that the very same poor and marginalised get justice. Now on all the matters, which we spoke about in the morning; the issue of retrospectivity of the rules and the issue of legal representation, which at the end of the day… And the very same thing of suspension, not waiting for the court process, but also it is as if it is retaliatory. That is what has been very clear. Now, we were in court on Monday, saying that there are these issues of conflicts, Hon Mileham, Hon Dyantyi. You know, it is not what you feel. Yes, you can say ‘No, I am fair, PP’, but how do I feel with you being part of the process? The letter we wrote in January, where Hon Motshekga, then was talking about issues of incompetence and stuff.

Adv Mpofu: Sorry, that is BM3 – the letter of January 2020.

Adv Mkhwebane: Yes. And the rules of Parliament are very clear. Rule 88 says that you cannot comment about the competence of an institution. So it is that. Now, we appeared at the court, and we are hoping that the justices have heard. Also, it is for history to be made as well. Can you in the midst of all these Supreme Court of Appeals judgments, international judgments, go ahead and allow a situation like this? Because at the end of the day, they will come back and say, you know, if they say no, but this matter, you cannot have, as these people must be recused. Then you are risking the whole nine months. How much have you paid my legal team? How much have you paid the Evidence Leaders? How much has been spent on me coming here, with the Office paying? The very same Office which has written to the Speaker now and the Chairperson that they will not be funding come the end of March. And there is a Constitutional Court which says you need to be represented. So how are we going to proceed, Chairperson, because then it means your process will be stifled? The very same office, which was not a party to the Western Cape High Court. They sent directors of a firm of attorneys. They sent SC to just be on a watching brief, where they asked how much was that. So I just think let us just look through all of these matters. I mean, Hon Hendricks once said possible R1 million is being sent, which I think that was asked. We would want to know how much is being spent. Is it worth it? Now, I am remaining with how many months in this position and we are still pushing this particular matter? So I think… Yeah. And all in the name of what? Me doing my work?

Adv Mpofu: Yeah. Well, as they say in the streets, ‘it is what it is’. Now, you take us to… Okay, let me round off on that point. If you had been listened to, for example, when you said in October, that let us stop this and wait for the recusal application. I think that was on the 27 October, last year. If you had been listened to then, well, we do not know how much money would have been saved, but we know that a lot of money would have been saved. But maybe to explain to the members of the public, the case that was argued on Monday in court, about the recusal of Hon Mileham and the Chairperson; if that succeeds, what will happen?

Adv Mkhwebane: As I said, it will have to start, you know, afresh; and how much has been spent on this particular matter? And if we were given an opportunity and, you know, correct that, have other members or then reach a settlement, I think we would not be in this situation, and I think we would have saved a lot of money. But again, still insisting that it is good that we are here, and it is good that now the public is listening to me. But the fact of the matter is will this be worth the money which we spent up to this far?

Adv Mpofu: Yes. Well, that takes us to paragraph 14 – or let us start with paragraph 13, maybe to put it in perspective, and then we will go to 14. Can you read out paragraph 14?

Adv Mkhwebane: “Any objective fair and reasonable analysis of what has occurred during my incumbency, until this point can only lead to one conclusion and one conclusion only: I am not guilty of the charges concocted by Hon Mazzone of the DA and supported by the ANC majority. On the contrary, I have taken the Office of the Public Protector to greater and unprecedented performance and governance issues pertaining to proper accountability.”

Adv Mpofu: Yes, thank you. Okay, let us just pause there. You have indicated that this, as far as you are concerned, is, what you call, a special project. But let us talk about the second part of that statement. Again, I think even your most ardent critics, even Mr Samuel, of all people, have said that you have indeed taken the Office to greater heights. Can you just tell us, we will come to this when we deal with the so-called HR issues, but some of the issues that… Sorry, I just want to fast forward to… It is fine, we will come back to that. I wanted to dispense with another section that we are going to deal with. But let us maybe just talk about governance. Let us leave out the other performance. Everyone knows about the three clean audits in a row, unprecedented. None of the ‘giants’ that preceded you could achieve even one clean audit. What drove you to that, and how did you manage it – that miraculous feat?

Adv Mkhwebane: The first thing which we did, I indicated earlier that our mandate is to investigate undue delay, discourteous behaviour, improper conduct in state affairs, the way it is so wide. And we cannot be going around investigating state institutions, when we ourselves are guilty or we have investigations, which are not finalised for 10 years for six years. So we then decided to just prioritise that because, you know, when complainants feel disgruntled, when they knock at all the doors, and they come to us, we treat them like that. That is why you will find them even breaking windows and, you know, behaving like that. And it was not the first time it happened when I was two, three years in the Office, when one of the complainants reached that level. And it was a question of saying, when they come to us, let us make sure that we listen. There is nothing which makes a person happy just to give them an ear, and even if you want to be helping them, but at least listen to them. So, secondly, there were a number of issues which I found there. It was not possible for my predecessors to have a clean audit or especially my, my… well, Adv Madonsela, because when I arrived there was a forensic report where they had outsourced investigations to various firms of attorneys. There were a lot of violations of the supply chain management policies, Treasury prescripts. And that was making them not to be able to have clean… or there were a lot of material issues which when we were trying to resolve them, Auditor-General when they come audit, and those for the accounting officer and the CFO were the key challenges because… and they would say ‘No, you need to issues of consequence management. Those who conducted those, they need to be disciplined.’ And as well we need to get a condonation from the National Treasury. When we wrote to the National Treasury, there was a delay. So finally when were joined by Mr Vusi Mahlangu, who had experience and worked in the Treasury in the past. That is one of the things which he said that ‘this, we will achieve.’ And indeed, it was a team effort. Somebody will say, but ‘No, that is an accounting officer’s responsibility.’ But you will never have an accounting officer because it depends on the executive, which will have to make sure that they have an oversight on how the operations of the institutions are being conducted because it is one thing to have an accounting officer who follows the PFMA to the letter. But then you have an executive who is a minister or a board chairperson or a board, who will then spend, or demand that you appoint people without following prescripts or demand that you appoint companies without following prescripts. So hence, we had to make sure that, myself included, we also act accordingly. I do not demand things. I do not even… because that was an issue of also, there are two firms of attorneys, which were used by the institution over and over, and there was no panel of attorneys. We had to insist, firstly, we utilise the IEC panel of attorneys as a Chapter Nine Institution, then later, we had to advertise and appoint our own or have a panel of attorneys, which we had to utilise. So, those are the small things which we did with the team, hence it was a team effort, it was not only my achievement.

Adv Mpofu: Yes, thank you. I think if anyone goes through your statement, and at your insistence, and if anyone goes through your oral evidence, and do a word search, the word that they will find the most frequent is ‘we’. So explain that, why you get all the credits about clean audits, reducing the backlog, staff morale, and so on, but you always insist that it should not just be attributed to you as an individual. Can you explain that?

Adv Mkhwebane: It is understanding – though I have been portrayed by those 15 witnesses as if I am this monster of a person...

Adv Mpofu: Sorry. No, I have to defend the witnesses. I think out of those fifteen, maybe eight of them said that you were the best boss they ever had. So let us…

Adv Mkhwebane: Okay. So the issue of working with the team. I mean you have heard some of the witnesses, Mr Tebele, Mr Mataboge, Ms Mvuyana, and them, who were saying they conducted the investigations themselves. And if you think how hard they work, and myself included, that we finalise the backlog, we should be leading by example, as I said, because that is our core; that is our key mandate. And when we issue reports, it is a collective. When the backlog is reduced, it is a collective. And they are professional in their own spaces, because I would not just claim this work alone. Yes, I was the driver or I was the leader of this team. As a collective, we managed to do that. And coming back to the issue of consequence management, I know we are still going to deal with those issues. Because when the Auditor-General checks, your systems, your processes, your delays, your violations, irregular expenditure and not complying with your own policies, they always will be saying what steps did you put in place and consequence management? And consequence management does not mean that you will be dismissing people. Consequence management will mean you have to make people to account because how do you learn without taking accountability without being asked for the reasons; why did you delay to finalise this nature? Why did you procure this without following the procurement processes? So that you can then in a way, a little bit a while you will be changing and understanding that this is how I should be dealing with the matters. So it was not my work. Yes, for six and a half years, we worked as a team. And I am proud to say that each and every member of the Public Protector Office has put their all in making sure that they deal with the complaints and the poor and the marginalised and they have changed their living conditions. So it is frustrating to see that I am now charged for incompetence. I have never brought the country to eight hours of load shedding and affect businesses and affect the livelihood of people. Some people are dying in hospitals, because there are no generators and everything. But I am sitting here whilst trying to change the lives of the people and I am being treated like this maybe because I am not the right colour. I do not know.

Adv Mpofu: Thank you. If they do not want you in the Public Protector, we will take you to Eskom.

Adv Mkhwebane: Yeah, I can make a big difference there.

Adv Mpofu: Thank you. We need that. Now, it is true, on a serious note, it does make a difference that you are of a particular colour and gender but that we will leave to the members of the public. And how do you feel then when some of the people you are talking about who have done that to the country, are praised as heroes, while you are condemned as a pariah and a victim of a cruel witch hunt, such as this one?

Adv Mkhwebane: I feel very sad, because I mean, with all the persecution I have been facing. I remember even from the media, there was a stage when I was labelled possibly, as an enemy of the state, in the Financial Times showing me as this Medusa, right?

Adv Mpofu: I think it was the Financial Mail. I do not know if it is part of the documents, but yes.

Adv Mkhwebane: Mail, yes. So you know, and you are trying to uplift people. You are trying to show that there are these root causes in the system, which generation after generation, you will still face the same challenges. And you find people who are performing badly. I think, in South Africa the challenge is that when you excel in your work, you will be vilified, you will be treated badly. And hence, I am saying I have counted or I have checked a lot of black professionals the way they are being treated, and who tried to change the living conditions of the people are treated like this. Hence, I am saying it feels very sad to be treated like that, and when you see other people who are performing badly, are then promoted or are then held to higher regard.

Adv Mpofu: Thank you. Now, before we come to your personal credentials, I just want to round-off that issue about… you say somewhere that you wanted the… We will deal with that when we deal with Vision 2023. You wanted to leave the Institution in a much better place than when you found it. And you wanted to do a smooth handover to your successor. Unfortunately, you are here wasting time while the public is left without its Public Protector. But just to put that matter into perspective. You say at paragraph 86, I am just jumping so that we round-off that point. You describe the conditions which you found there. That is page 38534. Yes, can you just describe the situation that some of the challenges that you found there, maybe by reading 86?

Adv Mkhwebane: “To my dismay, I found the institution in some state of disarray. I had to hit the ground running, literally, not having received any job specification, no training exacerbated things. Some of the issues which I identified as concerning included massive backlogs in respect of different types of categories of cases, especially the bread and butter issues”, because what we call administrative justice and service delivery matters, the numbers were higher. The shortage of staff shortages – and the staff shortage, also then we will deal with them. We should have said ‘staff shortages, Human Resource related challenges’. “Security clearance issues”, which was one of the key issues I picked up when I arrived there, “persistent governance issues and audit queries”. I have mentioned the issue of outsourced investigation. There is a report I think we have uploaded the forensic report, which showed a lot of gaps in the system. ”low staff morale”, I think even Samuel indicated that on that issue they were taking the institution to CCMA. I intervened, made sure that their issue of occupational dispensation processes or payments is resolved. There were some files, which are missing information, or we are not getting evidence. I mean, I think on the CIEX will deal with that – some of the information was not there. Then there were issues of transformation and the affirmative procurement, especially in relation to legal services, for instance, the repeated utilisation of the same white law firms without a panel of attorneys in breach of Section 217 of the Constitution and the regulated framework.

Adv Mpofu: Sorry, on that one, we know that Adv van der Merwe conceded that all the work there was outsourced to the mainly white firms. How did that affect the performance, in terms of the imperatives of transformation and affirmative procurement?

Adv Mkhwebane: That is one of the things, especially because the Auditor-General picked up that and flagged that It was one of things we should have resolved. I must indicate that as a learning institution we had to change; we had to be compliant and make sure this is not recurring. There was an advertisement to open up the space, to allow all the firms of attorneys to apply to be on our panel so that they can be utilised. So that is one thing which we did as an institution, because it was wrong that we use only two (or) three companies, and which were doing cases. Some of them were never stopped immediately, I must indicate, you know, because the matters were still in court. The matters they were still following up, so it was not a question of just stopping them. But we had to do it systematically, because understanding that now they understand the nitty gritties of that particular matter. But we had to change that because it was wrong. “Payment of service providers in terms of Treasury regulations.”

Adv Mpofu: Yes. No, sorry. We are still on 86.7. I know that I am not giving evidence, but I want to preface this by you explaining to the Committee why you have a passion for this. I have been in the legal profession for a number of decades and I am happy to say that I have never met a leader of any institution in this country, or a Minister, or anything like that, who is so committed to the issue of ensuring that black lawyers in particular, are given an opportunity, and also women. So for those who do not know, it is because of your insistence that you have a team like this, for example, as we are sitting here, majority women. And why you take those kinds of things so seriously, and insist that, you know, unlike your predecessor, in particular, that black people in every profession or service provider sphere that you deal with, despite all the noise and nonsense, that tends to show… What drives you to do that? What makes you such a champion of transformation, both in terms of race or gender?

Adv Mkhwebane: You know, I think one thing I normally say is that because of the inequalities in South Africa, where I mean the issue of inequality being one of the key issues, because we are always trying to deal with the issue of the triple challenges. I have said that during even my interview: inequality, poverty, unemployment. Every opportunity which one gets, I mean, why pay lip service and say, we have this Constitution, we need to uplift the poor, the marginalised. I think we are still going to deal with a Vision 2023 because for me it is, how do you empower a person to such an extent that they can stand for themselves instead of, you know, just leaving people or not empowering people? By doing this, how many families are you empowering? For me, I also was exposed to a situation where the legal profession, having seen some attorneys as well, marching to the Union Building, saying, state attorneys are not giving them opportunities and work. And how do we utilise the state institutions to assist in the issues of transformation, but assist in the issues of economic empowerment. So this was one of the areas which would also assist in empowering people. And I mean, a lot of the matters we are dealing with are constitutional and administrative matters, service delivery related. So if you then give a black company or black advocate, who would also sometimes they would understand the environmental issues which people are subjected to, because if I gave the Venda Pension matter to Adv Ngalwana, who would understand the impact of not reaching a solution to that matter – after my predecessor issued their report, I issued a special report. So to me also, it was a question of just empowering them. And it is still my passion. I will do it over and over. Unfortunately, in this Committee, then it was portrayed as if, you know, there are ulterior motives or some lawyers are benefiting, where they have done the work and they have excelled in what they were doing. And not to say they were just paid for not doing their work. So hence, I have been intentionally doing this, and I will continuously do that.

Adv Mpofu: Thank you very much. And for the record, all those victories that we talked about in the morning, whether it was about advising Parliament that there should be rules; whether it was about the issue of legal representation; whether it was about the suspension by the President, and all those you delivered with black brains, and all your opponents in all those cases where this Parliament, and of course, the DA had on the other side, had the exact opposite. So I think it is something to be mentioned. Alright. Now, you got 86.8. It says “Payment of service providers in terms of Treasury regulations”. What was that as a challenge?

Adv Mkhwebane: It was a challenge not paying service providers within 30 days. I mean, that is very clear. Again, that should be driven by each and every public servant because if you do not pay a service provider within 30 days, you are violating the laws. But secondly, you are then creating financial strain. There are a number of small businesses, which are suffering (as) they are not being paid on time. And this I must say, SC, and Chairperson, it also perpetuates issues of corruption, because you find that a small company SMME has performed, they are not paid on time, some are expected to pay a bribe, so that the payments can be fast-tracked – that time a person has conducted or has performed. So as an institution, we cannot then be doing the very same thing which we are investigating out there. Hence, we had to make sure that we comply. And that drastically changed because it is one of the criteria or the requirements, which the Auditor-General was checking, so that we can excel and it will also change a number of livelihood of those small businesses, but a lot of businesses, they just driven out of business because they perform, they are not paid. How do you pay your workers? How do you order any stock and stuff like that? So it has that ripple effect. So we had to make sure that we change that.

Adv Mpofu: Thank you. Then 86.9, you talk about one of the challenges “excessive reliance on consultants and the effect of core functions, for example, as reflected in the OMA”, I do not know what that is, “forensic report, which was uploaded under Bundle H Item 14, page 341.” Okay, let us forget about the details. You talked about excessive reliance on consultants, in respect of core functions. What was that? Can you assist the Committee to conceptualise that as a challenge?

Adv Mkhwebane: Yes, there were a number of reports which were outsourced. The Public Protector is allowed to do that under Section 7(3), to acquire the services of either secondment from other departments, or any other companies. But then the problem here was that the outsourcing of those investigations was not clear, the terms of reference. Some of the firms of attorneys and companies were paid. I mean, the arrangement was that they should be paid, I think the arrangement was R70 000 per investigation, but some were paid more than that. Some were even paid without delivery of the service, so it was a wasteful expenditure, because they conducted the investigation, but they did not submit the report. So this is what it means. But besides the forensic report, when I was presenting the report of my predecessor in Parliament, hence the accusation that I was, as if I am painting her negatively, but it was the report, which had information that some of the consultants which were utilised was when the State of Capture Investigation. Remember, they approached the National Treasury for the funds? There was this auditing firm, which was also engaged they were working with, I think, it is Ernst and Young, or…

Adv Mpofu: PriceWaterCoopers.

Adv Mkhwebane: PriceWaterCoopers, when they were conducting that particular investigation. So you can do that, but the issue is what are the limitations to that. And I think my passion then being the issues of security, I think it was very critical for me to refrain from doing that.

Adv Mpofu: Good. Then the last one, you put as “misalignment of meetings and unnecessary travelling time.” Can you briefly tell us that as a challenge that you found?

Adv Mkhwebane: You know, the famous Think Tank meeting, which I was accused of stopping and it was, you know, an operational issue which was blown out of proportion. Unfortunately we had Ms Motsitsi who came here, who was once an Acting CEO, where we were checking where we can cut and save costs because the issue was that the Think Tank was every quarter. There are various investigations, which they come and present – the provincial representatives. They come, they leave their investigators. You find there are a lot of gaps. They present those reports, they are not up to date, you send them back, they go back to their offices, work continues, three months (and) they come back, things are not done, those things are still pending. And there was a stage where we said, okay, possibly then come bring along that senior investigator so that we can engage with them directly but it is travelling costs (and) we do not have resources. So there was a stage, then a decision was taken that, ‘okay, let us minimise that.’ Or we also tried to say, Western Cape matters are not going to be presented by Western Cape. Send those drafts to the Eastern Cape team, the Eastern Cape must present so that we can see whether they can cross-present so that we promote the issue of speedy dealing with matters and quality assurance: that failed. Hence, I then decided, with the leadership, the then accounting officer, let us limit that, and let us only have a small team, which was in my office: Mr Matlawe, Mr Kekana and I think Nditsheni sometimes. A lot of the reports came from that Think Tank. If you check what is posted on Dropbox. The Think Tank and then the task register, which Tebele spoke about, they were coming from that. So we had to save a lot of money. Then we said we wanted to have a teleconference and deal with these issues, which we did in a number of instances, which also reduced the travelling expenses. So it was a lie that we had to cut the budget for outreach, because the outreach, the very same Nthoriseng was saying. I was working in Home Affairs as a regional representative, or as a provincial chief director in Limpopo, we can do this, we can just create a district model, and make sure that instead of dealing with individual municipalities, you deal with them as a district model, then we save on you having to do outreach to a few people in one local municipality, but do it in a broader district model. So those were mechanisms which were there, because if you speak about the issue of unnecessary travelling, a person will be travelling to one area, and meet less than ten people. So we were saying instead of doing that, travel to an area where you have all the local municipalities in one district, then you at least meet a lot of people and it will be impactful.

Adv Mpofu: Thank you. Before we move back to where we were in the statement, I was just going forward because it linked up with the issue that you had raised of how you found the Office. Apart from your passion and all the things that you have said – your passion for transformation, for delivery, for the poor, improvement and so on – compared to your predecessors, it is light and day, not just in the area of clean audits and backlogs and all that. And one has to find something more than, as I say, your obvious passion for work and hard work. Do you think one of the secret ingredients is that the fact that you, unlike anybody else who would occupied that office actually worked there as an investigator and you knew the environment so you were able, for example, you tell us, you found a report that had been sitting for six years, and you did it in nine months? To what extent really is the question, can you please tell the Committee in your own words, if that experience of having worked on the ground contributes to your excellence?

Adv Mkhwebane: I will start by saying that in whatever you do, wanting to serve whoever you can serve, without even expecting anything in return. Another benefit was that, as I said, earlier, I worked in a human rights related environment. So working there, yes, it was very helpful, that I worked as a senior investigator in the Public Protector.

Adv Mpofu: Yes, I really want you to take the Committee into your confidence as to what edge or advantage that particular experience gave you of having… I think we have had four or five witnesses who have said, I knew the Public Protector, because we work together as investigators, and so on, and when she came back, it was easy to relate. We have had so many accounts. In my estimation, that is something that maybe is the magic answer. Can you just tell us how it was to be there at the bottom, and then now to be able to relate to those people that are at the ‘ground level’?

Adv Mkhwebane: Yes, I think the first one is that serving. But then secondly, as well, I knew the operations of the Office, and how to conduct the investigations. That has been my strength throughout my work environment. Because I am this person who would when I get into an institution, I would not want to not know how the system works, and how to process any application. I mean, working at Home Affairs, during the Zimbabwe uprisings, I was at the director level, but I had to fold my sleeves and process asylum seekers. Working in China, when it was very critical for me to put things aside, is to know the system and how to process applications. You know why that helps? If you work in a service delivery environment, or that as well as I is encouraging everyone, if you are a director, a DDG, well, all our DGs and DDGs are like that in public service. I remember that we were laughing about CE and COO. But then I think the minute you do that, you will not have a situation where a senior investigator will come back to you and say, ‘No, Public Protector, this is not possible’, because you have been there and you know, it is possible for you to do that. So I think that helped me because I never behaved as if I am the executive. But maybe that is why sometimes then people felt I am encroaching a lot into their space because for me, it was purely to make sure that we deliver on time. And, again, not for our selfish(ness) or numbers that we have processed so many, but whatever we have done, what impact does it have on the person which we are serving.

Adv Mpofu: Yeah. Well, on a lighter note, when you were just an investigator there, did you ever think you will be the Public Protector yourself, if that person had not nominated you?

Adv Mkhwebane: Definitely now. I mean, I never thought I would be the Public Protector. For me, I worked under Judge Baqwa, and I never thought I would be the Public Protector. I worked under Adv Mushwana, as the senior investigator and then he gave me an opportunity to be the Acting Provincial Representative. One comment which was made by PP Sokoni from Zambia, who said, some of the witnesses well, when they came here and some of the issues, she was saying ‘Hey, now when you say you worked in that institution, and those people were your colleagues. Now you come back and you are the executive, possibly some people might not take it kindly.’ So that is possibly why you will never be, because I think you remember Samuel saying I was just a trainee or I was fearing of…

Adv Mpofu: Assignee prosecutor.

Adv Mkhwebane: Yes.

Adv Mpofu: Aspirant prosecutor.

Adv Mkhwebane: Yes, and I was scared of challenges because I stopped the Think Tank. But the Think Tank I stopped it because I could see that I would not allow a process with the accounting officer saying, we do not have money. We are not delivering. People are coming, staying in hotels, claiming S and T, going back as usual. You have Mr Seabi who has lodged a complaint, it is two years, six years, nothing is happening. So I think I was driven by that. So it was by the grace of God that I went back to this Institution to assist whoever can assist.

Adv Mpofu: Thank you very much. Yes, I think that assists a lot for us to try and find what the secret to your success is. Now, at paragraph 14, if you can just go through those items, and then speak to them. You say… Oh yes, we have spoken about the unprecedented performance, and that is what we were unpacking now. So paragraph, can you read out? And then you will take us through in the same way, without too much elaboration on each of the points.

Adv Mkhwebane: Okay. “To put matters into their proper perspective, I wish to point out the following glaring absurdities. My seven year non-renewable term of office will expire in six months time, October the 15th 2023. Based on past experience, within the next few weeks or days, they might be advertising the position of the Public Protector, shortlisting and interviewing for the next Public Protector. And that process, I think, will commence soon. And the current inquiry which we are still not yet sure how much it costs”, I think I spoke about it earlier. “But one member said around R1 million per day, including the non-financial cost to the public for the instability costs in the Office, which is incalculable”, I will expand on that later. “Contrary to the popular and false narrative, my legal team and I have been to court on countless occasions, making several attempts to stop the commencement or the continuation of this illegal process, which we have shown several times that sometimes we are rushing, and we might end up with a process which we will have to start afresh.” So I have mentioned the Constitutional Court. “Currently, there are two judgments which we are awaiting the full judgment of the Western Cape High Court. The judgment was reserved in the Constitutional Court respectively. So on each occasion the President, the Speaker and the Chairperson of the Committee and or the DA have opposed all efforts to stop this costly and pointless and futile exercise.” Again, hence, I said that I am sitting here with those charges, which I' have explained how they came about. “So the witnesses called by the Evidence Leaders and the Committee alone have effectively exonerated me of any impeachable wrongdoing…”

Adv Mpofu: Sorry, Chairperson. Can you just either close the…

Adv Mkhwebane: “The witnesses called by the Evidence Leaders and the Committee alone have effectively exonerated me of any impeachable wrongdoing, in respect of any single one of the charges. No fair court of law can possibly uphold the contrary finding, which will inevitably be made by the current DA, ANC overwhelming majority in the Committee. The impeachment effort is therefore doomed to fail if subjected to any fair judicial scrutiny.”

Adv Mpofu: Okay, can we then go back. So the first two points that you make is that your term is ending in a few months and the interview cycle is scheduled to start. How do you know that? What happened in your own experience, the last time you were an interviewee?

Adv Mkhwebane: Yeah, I think in about two or three months' time, indeed they will advertise the position and start with the interviews. Indeed that is what transpired during the process when I was nominated. And the question is, Members of the Committee and the public at large, is that the, you know, outcome or is that the process would want to pursue going forward. And I should be in the office, you know, making sure in fact, I have been saying that, when the process of me, like last year, when we were doing a lot of meetings, going through the investigations, coming up with a new model of how we are conducting investigations, I was always saying to the team, this is my last year. I would want to make sure that my successor would come to this Institution, and they just find that we do not have a backlog, all the matters are still within time, then they will have enough time to, you know, do their work, come up with their vision, and proceed with that. So it was purely that and I wanted that process to be so. So now the issue of the resources when the Office has written a letter that they would not be able to pay the legal cost of my attorneys and well, legal team, because they do not have the resources.

Adv Mpofu: Yes. Alright. So yes, my team did check what happened the last time. You are quite right, the process of advertising usually starts around March, April. So we can expect it at any time. But anyway, we are here now. And the good news, as you said in the morning, is that you have had an opportunity to speak to South Africans, the South, which you have been so eager to have. Now, we have already covered the two cases that are waiting for judgment. If the findings are in your favour, once more, then this process will have to be started from day one. In other words, every cent we have spent on this would have gone to the dustbin. Paragraph 15, we have covered; that is where you were referring back to why you have been participating in protest. We have covered that in the morning. If you can go to paragraph 16, and maybe take us through that before I go to your personal CV.

Adv Mkhwebane: So this one, I know you are leading me, SC, but then there is that paragraph 4, which deals with the Rule 129 ad, functions and powers of the Committee.

Adv Mpofu: Thank you. Sorry about that. Well, I might be leading you but it is your statement, not mine. We can go to paragraph four as a preface. Yes, paragraph four is where you were situating the issue of fairness in particular. I do not know if you want to paraphrase it? Maybe you should read it out.

Adv Mkhwebane: I think for the members of the public to understand the functions and powers of the Committee, in terms of the Rules of the National Assembly, the Committee must…

Adv Mpofu: Sorry, PP. Can you just maybe read the whole paragraph because the rule is situated within that context?

Adv Mkhwebane: From the beginning?

Adv Mpofu: Nods his head.

Adv Mkhwebane: “The purpose of this affidavit is to outline, to varying degrees of detail, some of the key issues which arise eyes from more than 60,000 pages of documentary and other evidence, which has so far been presented as forming the basis of the charges laid by Ms Mazzone, MP, against me, which therefore, in turn form the basis of the accusations whose veracity the Section 194(1) Committee is tasked to establish in terms of rule 129 ad of the applicable rules of the National Assembly, which states that the functions and powers of the Committee: the committee must when the Assembly has approved the recommendations of the independent panel, in terms of rule 129 z, proceed to conduct an inquiry and establish the veracity of the charges and report to the Assembly thereon.”

Adv Mpofu: Can you pause there. When that rule says that this Committee must approve the recommendations of the independent panel, what do you understand by that? The Committee seems to understand that they must go back to the original Mazzone Panel, irrespective of the recommendations of the independent panel.

Adv Mkhwebane: Again, that is going against the rules of Parliament. And remember, the panel was also appointed by the Speaker. The panel was paid to do the work which they have done. And the panel had findings of prima facie evidence, which was based on paper. And the panel had other issues which they said are not supposed to be dealt with or there is no prima facie case. I mean, the issue of Baloyi and other human resource-related issues. So…

Adv Mpofu: And Pillay. Baloyi and Pillay, they said there was nothing.

Adv Mkhwebane: Yes. So that is what the panel did and that is what the Committee should have looked into the matter. So unfortunately, the scope of the Inquiry then was expanded because this Committee, in their directives, then they focused on the original, Hon Mazzone’s motion, which then expanded the scope of this investigation drastically. And I think we had eight to nine months here. And if we only focused on those few items, which were recommended by the panel, possibly we would have been very far with this particular matter. So then two, it says “The Committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner within a reasonable timeframe.”

Adv Mpofu: Okay, just pause on that one. So the Committee also has an obligation to ensure a reasonable and procedurally fair manner. Do you feel that you have been treated reasonably and in a procedurally fair manner?

Adv Mkhwebane: I have not been treated fairly. I will say, firstly, I indicated during my first appearance on the 11 July that I am participating in this Committee under protest. Remember when I was suspended, my emails were closed. I could not access them from the 9 June, I think until the first week of July. I could not access my emails. I could not access certain information because there was key critical information from that. And then we raised the issue of Hon Mileham within a week after the proceedings started after discovering because honestly, I did not know that he was the spouse of the complainant, Hon Mazzone. And they were still pending cases which we were pleading with this Committee to say ‘Can these matters be dealt with before we can proceed?’ Well, the scope was expanded. The refusal to amend the directives because we gave our own inputs. The treatment which the legal team has been facing because it is a question of how each of the parties are located; the timeframe to cross-examine to determine the veracity of the allegations and most of the time was any matter or objection we were raising. I think out of 10, possibly two we were given an opportunity to… or were accepted to our favour. So when all those things were happening, I was just hoping that it will change. But then the last straw was the inhumane treatment, which I still say today, when I was feeling sick. When my legal team was raising the issue, requesting the postponement because they were going to be busy with the court matter; then they were given that. But when we raised the issue that we cannot proceed because I am not there as the accused person, I need to be present: I am sick. But then the Committee proceeded to examine or ask questions to Ms Thejane. And I think I felt as if it means I am not human. Hence I said even earlier, and the last time, hardened criminals will be given that opportunity, but I was never given an opportunity. So the build-up of all these issues makes me feel, unfortunately, sad, because it is what I feel, that I was never given an opportunity. Worse, there was a time when my legal team was not present, the Committee proceeded to share the evidence of Neels van der Merwe, because at the end of the day there would be opportunities for my team to object, live, to raise issues with the Chairperson and the Committee, but that never happened. So I think this is a learning curve. I am here. I indicated earlier, I am being used in this process. Everyone is learning. The world is watching. I think the Public Protector Zambia, said it ‘. ‘Whatever happens in South Africa, unfortunately, as Africa, it replicates to us.’ So I think they should be learning. They should know in the future that if such a process is conducted, be as objective as possible and make sure that you are seen to be objective, because it is a question of everyone, following and watching, but unfortunately, that is how I feel. I still feel like that – that I never received any assistance. It was worse, I mean finding women like Hon Gondwe proceeding, as if that person… It means that even if I had a heart attack or I died that day, it means to them it was nothing because they are rushing to this within a reasonable timeframe. Here it is reasonable and procedurally, within a reasonable timeframe. And I mean, if you can calculate how many times we requested that we be given an opportunity and how many times this Committee also took their time to conduct their Committee work and the break between those times. So I think, yeah, it was not fair, or I did not feel it was a fair process, because we are checking who is in the fire here.

Adv Mpofu: Yes, thank you. Now I think we should not brush over that point. So indeed, you are saying that it was reported that you were sick and indisposed. Nobody knew how sick you were. As you say, you could have been literally dead: that is not an exaggeration. You could have had a small headache. Or you could be comatose. We didn't know how sick you were, but the Committee decided to continue with a witness where you could have been literally in a mortuary, for the impeachment of that dead person. How fair can that be; or is there any reason under the sun why any Committee of fair human beings could treat a fellow human being like that?

Adv Mkhwebane: You know, that is why sometimes I would say the way I am treated in South Africa. I was a director and an Acting Chief Director, asylum seeker management. I used to joke sometimes and say, you know, what, maybe I must apply for asylum from another country because also, that made me feel bad; it was very much hurting, I must say, to be treated like that. And worse is when you were cross-examining some of the witnesses, and when they are saying bad things about me, and you are trying to get the veracity of the information and then you come to the issue of what if she also had fears, and deliver the best she knows how. You got a clean audit, and they claim that clean audit but they do not want to accept that. We had to go through that process. Now, worse, as I said earlier, you know there was one stage, well I do not know if you saw me – fortunately we were on the Virtual Platform when Tebele was testifying. Well, I cried, literally.

Adv Mpofu: I did see that.

Adv Mkhwebane: I felt that I went all out for this country.

Mr Nqola: Chair, I propose a two minute break.

Adv Mpofu: Yes, thank you, Mr Nqola.

Chairperson: No, wait, wait. You are proposing?

Mr Nqola: It looks like the Witness is not in the right space, so I was proposing a break.

Chairperson: Oh, okay. Thank you, Hon Nqola. We are about to get to tea. We will take a tea break for ten minutes and be back after ten minutes. We pause for tea. Thank you.

Adv Mpofu: Thank you, Chair. Thank you, Deputy Chair.

The Committee took a ten minute adjournment.

Chairperson: Welcome back. Colleagues. We were waiting for Hon Nqola. We now can start. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Thank you very much, Chair, for the break. Adv Mkhwebane, I am going to move to a lighter topic, I think for obvious reasons. I just wanted to say let us walk this journey; it is going to be fine. As you said, you are doing it for generations to come. And I want to register that in this whole process that it is only twice I have seen you breaking down. The first time was when Mr Tebele was testifying, and ironically he was the most complimentary witness about you. But when all the other people were insulting you, you were able to be strong. And now this time when we are talking about how people were prepared to continue with a witness even if you could have been on your deathbed. It is fine, we will get there. So let us move paragraph six, so that we can deal with lighter issues. We will come back to how you felt about the historical unfairness that you have experienced in this process. Maybe this will bring back good memories – the University of Limpopo. You hold a BProc and LLB degrees from the University of Limpopo, and you also have a Diploma in Corporate Law as well as a Higher Diploma in Tax Law, both from the University of Johannesburg. Is that so?

Adv Mkhwebane: Yes, it is correct.

Adv Mpofu: Yes. And you make the point there that at the time of the assumption of your office you were in your twentieth year as an admitted advocate of the High Court of South Africa. And you also make the point that we were told that such qualifications are immaterial. But you are saying the fact is material to your position, since the relevant legislation prescribes for any person to be eligible to serve as a Public Protector, he or she must have been an admitted advocate or attorney for a period of at least ten years, having been so admitted. Do you know why this House, this Legislature would have made such a stipulation that a person must have been admitted for at least ten years or a judge, or all the other things that get put in your advert coming from legislation? What is the significance of that, for the position that you hold?

Adv Mkhwebane: It is very much important to be, well, admitted as an attorney or an advocate. And the critical issue is that ten years you should have worked in the environment where there is administration of law, besides the issue that a person was not practising or a person is not possibly a, you know, in a position where they are, yes, a practising attorney or a practising advocate. But then what is critical is that you should then understand in a broader sphere how the operations of the state are because as a Public Protector you are, there is where we indicate that we investigate more than one thousand institutions. I mean, if you investigate, let us say, Home Affairs, you are not only dealing with the birth and registration legislation, but then you will also be exposed to Citizenship Act and the Marriages Act. actually be exposed to the Marriage Act. So you then need to understand how the applicability of the law operates. So this is very much critical that a person should meet these requirements.

Adv Mpofu: Yes. Alright. Okay. Sorry, I just said that for my own understanding that it is something that is important. But anyway, would it also assist you, that understanding of the law, to know some of the basics, really? I mean such as the fact that you cannot amend an affidavit a day after it was sworn in? I am just using that as an example, because it happened recently. But do you think someone in that office, there is time to have to be teaching them that kind of basic, basic first year, stuff?

Adv Mkhwebane: I think it is very critical and important to, as I indicated earlier, that, you know, when we also accept complaints from the complainant, when we assist them to complete those, when we expect them to write and sign for their statements, but then most of the time, as the Public Protector, we are then taken to court one has to sign affidavits. But again, it also limits the issue of being opened up to any fraudulent utilisation of whatever as a person you have put forth. I think, what happened recently, as I indicated that it was for the best of the Professor that for future generations, there is a statement which she made, which she acknowledged that she changed it alone after which she knows herself that I think for the decorum of these proceedings, it should be something which is properly attested to. I think those are the things which we keep on learning and especially when you are legally qualified, you cannot be blamed for being ignorant on some of the issues.

Adv Mpofu: Yes. No, thank you. That is fine. Those issues will be dealt with at the appropriate time and appropriate forums. But are you registered with the LPC? Please do not think I am being unkind, again. Sorry, Chair, it says Legal Practice Counsel, it should be Council. Are you registered with the Legal Practice Council?

Adv Mkhwebane: Yes, I am registered. Though at first I thought it is not necessary for me because I am not practising. But then there was a stage where I was also approached by the Legal Practice Council so that one you are properly registered but also I think such helps in situations… it should be helping in situations where one is facing such challenges, and how they can assist and also keep the profession to be compliant and not to be exposed to a number of questionable conduct. As much as you would find the auditing profession, where they are having the profession which manages how they should be conducting themselves.

Adv Mpofu: Yes. And you have put your LPC Registration there, we will not read it out. Thank you very much. I think that it is very important to also understand this – it is painful sometimes, but we have to go through this – whether these qualifications, which are, as you say, part of the statutory framework, the importance thereof. Let us put this matter into perspective. It is so that most of the people actually who testified here and work in your office, are admitted advocates, some of them may or not be registered with the LPC, but the majority are legally trained, so they know the basics, really. We do not have to teach them about the basics of forgery. For example, Ms Bawa, I think, put it to Mr Mataboge, mistakenly called him Adv Mataboge, and he was just quick to say ‘Yes, I am legally trained but I am not an advocate’, so no big deal. But what is the importance of the legal training and legal understanding as it were, not just at your level but with the people who actually do the spadework, shall we call it?

Adv Mkhwebane: As I said that it is very critical for them to be legally trained, a lot of them are legally trained, and at least when the complaints are lodged when they have to investigate. Remember, I said we have to check what is the complaint, what is the evidence before us, what legal prescripts have been violated or not. So for a person who's legally trained, at least they would be able to check all those. And I think the institution is the way it was. When I joined the public Protector before, we were seconded from the Department of Justice, and it was purely only those who are legally qualified, and we were called legal administration officers. So thereafter, during Mushwana’s time, they changed the process and they had to then appoint all the officials within the Public Protector, per the Public Protector Act. So indeed, it is very critical. Some of them are admitted advocates, some have been magistrates and some have been prosecutors, some would say they are trained but would want to be called a forensic expert. At the end of the day, to be legally trained is critical and to be addressed accordingly. I know others are admitted attorneys, and always they would write that when they sign anything admitted attorney, or admitted advocate or they call themselves advocate.

Adv Mpofu: Alright. Thank you very much. Now, the other issue, and I suppose it links up with the question that we spoke about earlier of you having the experience of working at the Public Protector’s Office. You also say at paragraph 57, that you were also a public prosecutor between December 1994 to 1996. And also moved to Kwamahlangu Magistrate Court to be also a public prosecutor. Again, very briefly, in terms of who Busisiwe Mkhwebane is and the journey that brought you to where you are sitting now, what learnings did you have from being a public prosecutor? On just that particular perspective of the law, as you have spoken about being involved in tax law and various other aspects of the law, but particularly that cutthroat adversarial criminal law experience of also being able to assess evidence. Can you just tell us briefly how that added your degree?

Adv Mkhwebane: Well, in my other profiles, I indicate that I was funded by the then Kwa-Ndebele government to study at the University of the North, Turfloop. And, you know, when they were funding you, every June and December when we were closed, we used to work at the magistrate's offices. So I only put the 94 to 96 as a prosecutor. But I started working while I was doing third year/fourth year as a maintenance officer, and then as a public prosecutor, maybe that is when Samuel thought I continued to be an ‘aspirant’ prosecutor. That is what also exposed me to the administration of justice to the criminal work. And, you know, when you are working at the magistrate's office, that is where you receive a lot. Yes, it is minor crimes, assault with intent to do grievous bodily harm. You would not do your serious offences like your murder, and rape and stuff like that. But then you would find that most of the cases as well like, your some of the cases, which needs one to decide whether you need to prosecute on them or not, you would be exposed to that. But then, also, this then exposed me to the challenges of people accessing the justice system. And working there also made me to realise that yes, you can be the prosecutor, but then being a prosecutor does not just end there. It reflects the socioeconomic challenges of each and every society, because you might find that you have a lot of maintenance cases; what are the dynamics and the social issues which are there. There is violence possibly, and what causes that. So I think it also helps one to contribute and change the status quo in the administration of justice.

Adv Mpofu: Yes, thank you. And of course, this also gives you practical experience. In other words, you have actually practised the law, not just at university, because being a prosecutor for so many years is, I can tell you, probably much more intense than most people who practise in nice air conditioned offices. How did that give you insight into the plight of our people?

Adv Mkhwebane: Yes, as I said that… I mean, I was still at home, Kwaggafontein, working in Mkobola [Magistrate Court]. Some of them we grew up with, but some you can see that it is the conditions in which they are, you know, staying under which leads them to commit such menial crimes. Hence, that also gives one a broader perspective, which is that as a country if you deal with such issues, you would not find a person just going to commit crime, to steal, to murder or to do anything. But I think you need to address where people are based, socioeconomic challenges, whether a person is employed or not, and what influences them to behave the way they are behaving. But then if you stay around the communities, then it helps as well to see those and check how you can empower them going forward besides just prosecuting them.

Adv Mpofu: Yes. Well, thank you. Maybe that actually… I am trying to assist the Chair here by covering even some of the ground that is lying ahead, whenever an opportunity comes. Let us maybe link that, PP, to what you have just said now, which is quite significant. It is a statement that one would hear in a class of criminology about the root causes of crime. I wanted to relate that to the statement made by Chief Justice Mogoeng Mogoeng in the Nkandla case, about the importance of root cause. Can you explain what in your understanding the duty of a Public Protector is in relation to this issue of root cause? And I can tell you now why that is important, because in the CIEX Matter, you are accused of having ‘expanded the mandate’ because you wanted to deal with what you saw as the root cause of the of that whole thing about the lifeboat and so on, which was, had to do with the mandate of the Reserve Bank. Why is it important, according to you, and Chief Justice Mogoeng, to have that mentality of not just dealing with matters superficially, but going to the root cause?

Adv Mkhwebane: You know the critical issue with that, dealing with the root cause. When you go to the mandate of the Public Protector in Section 182, where it says the Public Protector will investigate improper conduct in state affairs; the Public Protector is part of the Chapter Nine Institutions who are there to support and strengthen constitutional democracy. And I think we're still going to deal with the CIEX matter, SC, but what I would say is that the Nkandla Judgment assisted us to also understand the mandate of this institution when it comes to issues of the root causes. Because in I think it's paragraph 68, of the Nkandla Judgment, which dealt with how the Public Protector when you investigate, you should check, what are the root causes of the said maladministration, and when you issue your remedy, how do you deal with them so that there is no repetition of the very same issue going forward. So I think, hence, in all our reports, I think I can go there, where we deal with the issue of what the Nkandla Judgment said about the powers of the Public Protector and to take appropriate remedial action. There is that thing, which some people will say, but why you mentioned those key cases, at the beginning in the morning.

Adv Mpofu: Five

Adv Mkhwebane: Five cases. And if you see all our reports, and as well to show that we are a learning organisation, under my leadership, is that the court judgments, how do we continuously put them in our reports. I think Hon Sukers was asking what we are learning from the court judgments. So if you check each and every report, where we mentioned that a remedy should be addressing the root causes, and if you address the root causes, you will never have to have people coming back to the Office to lodge complaints about let us say, Home Affairs or about, for instance, Department of Labour, because if we issue that report with remedies, a proper organisation; which I normally would say that it was only one CEO of weather services, when he was appointed, he wanted a meeting with me and said, ‘You know, Public Protector, can you tell me which reports have you issued against this institution?’ I want to make sure that whatever you have recommended, because that person understood that when we issue a report, they would learn from that report, so that we do not repeat the same thing. And Judge Mogoeng in paragraph 68, saying…

Adv Mpofu: Okay, just a minute. Thank you.

Adv Mkhwebane: I think it is page 56.

Adv Mpofu: Yes, it is paragraph 68.

Chairperson: Is there something you want to emphasise, because you did take us through that in the morning?

Adv Mpofu: No, not that particular paragraph.

Chairperson: Okay.

Adv Mpofu: I just wanted to put it up, Chair, but it is not necessary. I can just read it out for the Members.

Chairperson: Please do.

Adv Mkhwebane: It is paragraph 134.

Adv Mpofu: No 68?

Adv Mkhwebane: No, I am saying in my affidavit.

Adv Mpofu: 134? Okay, let us use that one. I think that is easier, Chair, for the Members, rather than the one in the court case. Okay, can we go to paragraph 34.

Adv Mkhwebane: 134.

Adv Mpofu: Or rather 134, yes. I think read both paragraph 67 and 68, for the record.

Adv Mkhwebane: Yes, I was saying in all our reports, we mention this paragraph, SC, so that each and every accounting officer, each and every minister or each and every person when they read this report, they also would be educated. So it says “The court further held that an appropriate remedy must mean an effective remedy for without effective remedies for breach, the values underlying and the rights and trends in the Constitution cannot properly be upheld or enhanced.” So 68 deals with the root cause. “Taking appropriate remedial action is much more significant than making a mere endeavour to address complaints as the most the Public Protector could do in terms of the interim constitution, however sensitive, embarrassing and far-reaching the implications of her report and findings, she is constitutionally empowered to take action that has that effect if it is the best attempt at curing the root cause of the complaint. So that is the intention.

Adv Mpofu: Okay, good. Yeah, absolutely. That is good. Now, my favourite paragraph of your statement, which is a very short one, but I will tell you why, so that again, when we come to this, Chair, we do not have to redefine what remedial action is. And I think this one makes it easy even for someone like me. You say at 136 “In simple terms, to remedy is to cure, to correct or put wrong what is wrong.”

Adv Mkhwebane: To put right.

Adv Mpofu: “The concept has the same meaning as in the medical field.” And I think for me that made it easy because, you know, we think remedial action is like some big word, but actually a remedy is disprin or whatever it is. It is to cure a particular root cause. And if you go back to paragraph 133, I think again, the erudite Chief Justice Mogoeng gave us that simplification. He says… Okay, maybe read at paragraph 65 of the Nkandla case?

Adv Mkhwebane: “Again, in the above-mentioned Constitutional Court matter, Mogoeng CJ stated, among other things, the following: when confirming the powers of the Public Protector, complaints are lodged with the power protector to ensure incidents of impropriety, prejudice, unlawful enrichment or corruption in government circles.”

Adv Mpofu: Right. Can you then help us? I think that should clarify it for a three-year old child. You do not just wake up and give remedial action. You must identify the root cause and try and cure it. In the context of the CIEX matter, then, when you identified the root cause – which will get into when we deal with the CIEX matter. Let me put it like this, when you suggested that one of the issues that needed to be looked into was the mandate of the Reserve Bank itself, which obviously went beyond that particular issue of the lifeboat. What got you into that? I know that you did research – you asked Mr van der Merwe to do research and so on, that is common cause. But how did you get to that particular root cause that you identified?

Adv Mkhwebane: You know, I think my predecessor indicated the complaint of Mr Hoffman, that the complaint was about the South African government having spent those, it was around – how many pounds?... It is just that I did not read that part. Yes. And the question was, was that money utilised properly. But again, the other issue was, whatever led to the South African Government appointing this company was that the South African Reserve Bank was then giving loans and this gift to Bangkok. So the question was, and I think it was there in the drafts of Livhuwani, if you can see, one of the proposals was to change the policy on how the Reserve Bank and National Treasury and the Bank Act should be crafted or be operationalised. Then during the investigation on analysing the information, the key issue was how the Reserve Bank is operating because the issue was going forward how to prevent it. Then the interesting part, which we will deal with in the CIEX investigation, SC, or Chairperson, when the Section 7(9) Notice or the provisional report was served on National Treasury and Reserve Bank, then it was clear from National Treasury – I remember the official who responded, and I think she is still working there – that the legislation already has been amended and those issues will never take place. Then one had to check where the root cause was. For me, the root cause then was ‘okay, let us conduct comparative studies, to check in other countries, how are Reserve Banks are operating, and whether their mandates are captured in the Constitution or in the national legislation, which will then allow you as when the need arises, you can focus the mandate of the Reserve Bank.’ And that is what then led me to go to the root cause, regarding the structure of the Reserve Bank compared to other countries. Hence, you will find in the report, which we will deal with those paragraphs, and as well, the research which Neels did. If you can see the evidence of Livhuwani, that is where he was saying that I requested him to conduct that comparative study, because that is where the mischief is, where you have the mandate of the Reserve Bank in the Constitution. And when you check a lot of other countries, the mandate is not in the Constitution, the mandate is in the legislation. Then that makes your life easier, because you can change as and when the needs of the country are happening. So I know, we will deal with those and rebut that information because the question was, why she was coming up with this remedial action. For me, that was the root cause of the problems. And I think there is a paragraph in Mogoeng Mogoeng’s judgment on what an appropriate remedial action is or how to implement it. There is where it also says in paragraph 71, I think B, which we will deal with when we deal with CIEX, which will say, as a Public Protector, you can direct the manner of implementation of your remedy, but I think we will deal with it. So it was purely that and to see that we have this institution, how can we deal with the root causes of poverty in the country and what role can they play to change the lives of South Africans.

Adv Mpofu: Yes. Well, thank you, Public Protector. We might as well I know we will… I just do not want us to cover the same ground. So while we are here, let us deal with it because this is critical, by the way. Most of the charges here are based on remedial action that you gave and there are even charges that say that you expanded this or reduced this, which according to the Mail & Guardian (case), is exactly what you are supposed to do. But I think the critical thing is they fail to understand that the Public Protector’s powers are not circumscribed. In fact, as you say, Chief Justice Mogoeng Mogoeng made it very clear that these powers are so wide, although not unfettered, obviously, because no powers are unfettered, even the powers of the President. So I think let us go to paragraph 71 of the Nkandla Report. Oh, did I say report? Sorry, it is the Judgment. Bundle C, page 212, Item 4.

Chairperson: Tshepo, are you talking to us, or alone? Oh, okay.

Adv Mpofu: Yeah, it is that one. Thank you. You were just on time, Tshepo, before you were defamed. Okay, paragraph 71. Can we go through that, PP? As I say, it is probably at the heart of anybody who tries to understand this thing of remedy? And how you remedy the situation and the fact that it depends. You cannot just know what the remedy is without knowing the root cause.

Adv Mkhwebane: In summary “The Public Protector’s power to take appropriate remedial action is wide, but certainly not unfettered. Moreover, the remedial action is always open to judicial scrutiny”, I think that is very critical. “It is also not inflexible in its application, but situational. What remedial action to take in a particular case will be informed by the subject matter of investigation and the type of findings made. Of cardinal significance about the nature exercise and legal effect of the remedial power is the following: A, the primary source of the power to take appropriate remedial action is the supreme law itself, whereas the Public Protector Act is but a secondary source; B, it is exercisable only against those that she is constitutionally and statutorily empowered to investigate.” So, yes, it is C, which is one of my favourite sub sections. “Implicit in the words ‘take action’ is that the Public Protector is herself empowered to decide on and determine the appropriate remedial measure. Action presupposes obviously, where appropriate concrete or meaningful steps. Nothing in these words suggests that she necessarily have to leave the exercise of the power to take remedial action to other institutions or that it is power that is by its nature of no consequence.” So this is, if I expand… Oh, let me go to the other one. “She has the power to determine the appropriate remedy and prescribe…”, yes here is D, as well, “the manner of its implementation because it also guides the said institution. What is appropriate means nothing less than effective, suitable, proper or fitting to redress or undo the prejudice, impropriety, unlawful enrichment or corruption in a particular case. Only when it is appropriate and practicable to effectively remedy or undo the complaint would a legally binding remedial action be taken, also informed by the appropriateness of the remedial measure to deal properly with the subject matter of investigation, and in line with the findings made would a non-binding recommendation to make or measure be taken.” So that is where there is a non-binding remedial action. “Whether a particular action taken or measure employed by the Public Protector in terms of her constitutionally allocated remedial power is binding or not, or what its legal effect is, would be a matter of interpretation, aided by context, nature and language, which is very critical.”

Adv Mpofu: Thank you. That is more than critical. I think when we do get to CIEX, we would have almost covered half of it. Is that not the important thing? You were insulted, vilified and belittled for that remedial action to do with the mandate of the Reserve Bank, but according to the Chief Justice, that mandate, or rather that remedial action must be interpreted, aided by context, the nature and the language. So let me just ask you, straight forward, because that is really what the CIEX case is all about. When you were making that remedial action about the proposed amendment of the Constitution, to benefit the poor, it is explained in your report, the interpretation that is given is that you were in your report, amending the Constitution. Does that even make sense to you?

Adv Mkhwebane: It does not make sense. It is impossible for me to do that, because I think where it deals with the manner of implementation and how to do it, that is the responsibility of Parliament. I think there was where in the recommendation we were saying they should consider this particular committee to look into that particular matter. And what was perpetuated out there was that I said, the Constitution must be changed, and or the Reserve Bank must be nationalised. But what I was showing was that with the current mandate of the Reserve Bank being in the Constitution, the drafters of the Constitution, when they put it there, is a challenge, because generations and generations and generations to come, those who are still young, who will be listening to me, when 50 years, 60 years down the line, if that is still the case, we will still be where we are today. So it was trying to deal with the issue of the mandate and how the mandate can be in such a way that actually if possible, for me, I would say remove it, even from the Constitution. Have the national legislation, and it will be directed to as and when the conditions of the country changes because it was also the issue of unemployment. How can you utilise the Reserve Bank to assist in employment creation, and how the funding of very serious state projects and everything utilising that institution I think it was purely based on that and purely based on that because of what I have seen in the report, and in the judgment of the Constitutional Court. And, SC, every time when I meet with the team, and they would say ‘What remedial action should I take here?’ And I would say to them those paragraphs which we put there in each and every report, also internalise them as a senior investigator; it will guide you what remedy to put or to come up with. So it was purely based on that. I never had any sinister motives and whoever thought I am encroaching on the mandate of the Reserve Bank. That was not my intention. But I was saying the Reserve Bank is a state organ, so how do you use it to benefit the masses.

Adv Mpofu: Yes. Now you, Public Protector of South Africa? That is a serious thing. It is a very and weighty Office. And maybe something that we do not understand is that once you are given that Office, then you have certain powers. Can anybody apart from the courts, at least whether it is the Reserve Bank or the DA or whoever, actually second guess you, if you find that is the root cause? Let us assume it is the wrong root cause. But once you find that is the root cause, and then you find the remedy for it, can somebody say ‘No, you are incorrect’? Not that it is reviewable, but that you are incorrect. In other words, second guess you as a Public Protector. Is that allowed?

Adv Mkhwebane: It is not allowed. I think it happened with my predecessor in the Nkandla issue, because there was a Committee of Parliament which came up with everything. But the issue is, if you cannot implement it, and I liked that paragraph, which says, ‘the judicial scrutiny’. That is a self cleansing issue, because I do not have unfettered powers. It means I cannot abuse my powers. If I came to that conclusion, and it is wrong, then that is why institutions have a right to take me to court. And the courts can come up to different conclusions, especially on the application or applicability of the law, that whether what we came out with is proper. So you cannot just say no, you are wrong, we are not going to do that. But I must indicate, SC, that, when I engage with my counterparts from Africa, some of them would say, "No, we want our remedial actions to be binding’. But I think we still coming to that issue of the mandate of an ombudsman, because the ombudsman is there, to assist to take and hold state institutions to show them how or where you are going wrong, because unfortunately, this Constitutional Court Judgment made our remedial actions to be regarded as if now it is a court order. And it brought us into kind of possible competition to the courts, which it was not intended to do that, because as South Africa, we can choose to say, ‘Here, this institution is helping us. It is conducting investigations.’ Because normally I would even say to Ministers when I engage with them, ‘why spend money in forensic investigations, when you yourself can lodge a complaint with the Public Protector and the Public Protector, and say Public Protector, I am picking up the following governance issues? Can you help me investigate and recommend ways for me…’ because that institution should be treated like that, but unfortunately, there is that antagonistic way of being treated. And that is why I am sitting here.

Adv Mpofu: Yes, that is exactly why you are sitting here. And I must say, I would like you to comment on this because even it was difficult for me to even work it out in my mind, because having been involved in the Nkandla case, I always thought that we did the right thing by pushing the envelope, to the extent that the remedial action of the Public Protector is binding. We all thought, ‘yet, we have just done this big monumental thing.’ So it was shocking to me, at least, my system when Hon Sokoni actually said ‘no, that is actually the problem’ because once you have remedial action that is binding, then your Public Protector is going to be in on this. That is why you are sitting here, she said. If it was such recommendations, nobody would have even thought of an impeachment, but it is because of the bite and that, I must say, was something that was like a wakeup call. So do you agree with Hon Sokoni that a better model might be a, now as I say, you said you are speaking for the future generations, that as a country we should debate this issue as to whether we want the remedial action that is binding, or one that is a recommendation based for among other things to stop victimisation of people like you and your predecessor; because even for her the insults only came once after the Nkandla Judgment, which declared the remedial action to be binding.

Adv Mkhwebane: Definitely. I think, the mandate of the… Again, it depends on the maturity and the political will. I think it goes back to that. Also, as a country, how you would want to change the operations of the country to suit, you know, the operations or the governance of the country. At the end of the day, if it can be taken in that spirit, that yes, it is binding unless set aside by the courts and people are not taking it as if it is a court judgment, because, you know, you would be surprised how many times after we have issued a Section 7(9) Notice, then there is that issue of people thinking ‘No, you are going to find me guilty.’ We do not find people guilty but we are saying here, you violated this law. And then we are proposing that you correct it as follows. And when they respond, I mean, we are still going to deal with the Gordhan, Pillay Section 7(9) and everything. Instead of addressing the key issues or the evidence and saying ‘no, but yes, here we see, this is how we can improve.’ No, they do not address those, they address the technical issues. So I would think that, indeed, a debate is needed as a country. Here is this Constitutional Court Judgment. It is existing. If we implement it, can we change our mindset? Can we not treat the Public Protector as if it is… well, vilify a person, an incumbent, who is doing their work according to what the Constitution, the Nkandla Judgment, or the Courts have indicated they would do. You know, we are still going to deal with the Pretoria High Court Judgment on the State Capture Report. I mean you have seen what the judgment was saying that even the powers of the Public Protector, you can issue a state capture report, which separates… which has three stages. You can only investigate sometimes it is fine. You can only issue observations, which are also binding. You can also usurp the powers of the President, it is fine. So I think it is how we should be dealing with those and implementing those. And I think also possibly, we should not be looking at who is the incumbent, but check the repercussions of our judgments and decisions towards those institutions.

Adv Mpofu: Yes. No, thank you. Okay, I will take the blame for the State Capture Judgment as well. Again, we argued to the court that it was important that observations should be recognised. I can assure you if we had not succeeded, you would not be sitting there now. But be that as it may, I think the tight point really is, and that is the point I think Madam Sokoni was making in seriousness is that, ironically, it might well be that the Public Protector’s Office has got too much power vested in one office. And that, as I say, which we all thought was a good thing, the unintended consequence is that you then become a sitting target for all sorts of scoundrels to persecute you, as soon as you point out their corruption – without adopting my words, or putting words in Hon Sokoni’s mouth. I am simply saying that is that a debate we should have? You will not be accused of amending the Constitution. I would like to get your views on that because contrary to popular belief, this cannot be blamed on the Constitutional Court. The Constitutional Court’s job is to interpret the law. If we want to change it as a country, we must change the Constitution. The Constitutional Court is not going to change it. But at what level should that debate be pitched so that if it ends up with a constitutional amendment, so be it? And is there such a thing as being too powerful, which then puts you in the position you are sitting in today?

Adv Mkhwebane: You know, I think the Public Protector Office, the way it is crafted, I think you took Hon Sokoni through the institution of ombudsman, because remember, the king wanted an office of an ombudsman to deal with, or to check their behaviour. Indeed, it is one of the very high profile offices because if you have to investigate the king, and inform the king, you are not correct here and here. So the way… Or where it is pitched, it is fine. But the issue is when again, the issue of political will the issue of people understanding that they only focus on administrative issues, and how can you use that office as the leader to be your 360 degrees check, because you will then gauge from what is happening in the country, and indicate that, you know, here, we need to look into this matter. Here we need to change the following issues. So I would say even if we keep it at that level… Oh, again,, I spoke about Amending the Executive Members Ethics Act, because we can amend that legislation, because I think a lot of the troubles and the problems also for this Public Protector, is the issue of operating that political space, investigating under the Executive Members Ethics Act; being accused now in charges 11.3 and 11.4, that you are favouring certain politicians, whereas you conduct your investigation without fear or favour. You are then threatened with personal costs. I pay personal costs. I mean, the CIEX matter, I should indicate that my house was broken into, malicious damage to property issue the telephone calls one has received. So it goes to that particular level. And the mistake, again, people are doing is that some of them will say, we are waiting for the Public Protector report before… I mean, if a crime is committed, the Hawks should be going and doing their work. Why wait for the report of the Public Protector? Or why wait for the referrals from the Public Protector? So I think that the page should be engaged and there should be amendments to the various legal framework or legislations, even the very same Public Protector act, if it means doing that, to make sure that you use the institution to the benefit of the public. You do not use the institution or some people will then say this institution will help us to fight our political battle as alleged.

Adv Mpofu: Yeah, well, I suppose you should blame, not this Committee, or the Chairperson. You should blame the King of Sweden, in 1713, who came up with this. But I think on a lighter note, if a king could actually conceptualise an office that was going to scrutinise him or her, I think it was him then, is that not where the catch is? If you have a different king, then even if you suggest that they did anything wrong, they will probably have you killed. But a particular king might say, ‘I need this so that I can be a better King.’ Is it not also a matter of mindset? In other words, bringing it now, 300 years later. It is actually those people that Chief Justice Mogoeng called the repositories of raw state power. How they receive your criticisms, your remedial action, your finding. One said that if it is a Nelson Mandela, there will probably, as you said, will say we need this and need to be scrutinised; but not everyone is a Nelson Mandela. Others will say, ‘Well, let us suspend her tomorrow.’ What needs to be done at that level of those people who are being investigated themselves, not seeing you as the enemy of the state?

Adv Mkhwebane: I think you have mentioned Nelson Mandela when he was addressing the university in…

Adv Mpofu: Taiwan.

Adv Mkhwebane: Taiwan. And I think in one of my addresses to TUT (Tshwane University of Technology), where I also dealt with the issue of him subjecting himself to even going into court. Remember, the Louis Luyt matter? And he never felt that he was this powerful person that cannot account. What is currently happening, it has degenerated to such an extent, again, that Africa is looking up to us, where you find we are talking left, walking right. This institution is there in the national development plan of the country. The critical policy paper where you say, you are one of the institutions which will help us to deal with governance issues. But then you go ahead, you do not fund this institution, you defund it, you cut their budget, and you treat the incumbent with.. or instilling fear. So who would be the Public Protector who will then sacrifice their children's money, who will sacrifice their safety will also then sacrifice their work because currently I am under suspension, because of what I was trying to do. I was doing my work. And hence, I would say you would not find the Minister of Police after the wrongful arrest, or wrongful imprisonment, where you would find them paying personally from their pockets, because of the behaviour or conduct of the police officer who did that. But again, it goes back to political will. It goes back to saying, you cannot also have that because we are dealing with abuse of power as the Public Protector. Public servants, you are servants. You are not, I mean, from the president, ministers, you are servants of the people. Members of Parliament who are here are the voice of the voiceless. And the importance of this institution is that it is not a court. It is free. You have any other person who will come to us, and we assist them. But unfortunately, you find then the raw state power, those who have deep pockets, then taking you to court. And unfortunately, then you find that sometimes yes, we will deal with those court judgments and how they came to being and what papers were before them. At the end of the day, we are losing what it was intended to do. You know, when I was doing the training or going around the provinces, always when we deal with EMEA addressing the new MECs provinces. Where I used to take them through the executive members ethics act and, you know, say to them, the test here is so minimal, it means you should be spotless. I mean, if the Executive Members Ethics Act is just saying to you or even directly from Section 96 of the Constitution, you should not expose yourself to a conflict. It does not say you must have a conflict. And it means you need to behave in that way. And when we issue the report to you, learn from that. Going forward, do not repeat the same thing yourself as that particular person. So I think there is a serious debate which needs to be had, and especially planning for the future.

Adv Mpofu: Thank you very much. Well, can I do this because I have a section to cover. I know that and I communicated to the Chair, that for various reasons that we do not need to get into… Chairperson, the Witness had asked not go beyond 17:00. So I am appealing to both you and the Chairperson to go slightly over, maybe by 10 minutes, so that I can just kill this one topic. Is that okay, Public Protector?

Adv Mkhwebane: Yes.

Adv Mpofu: I know that it has been a long day, but can we just cover one more topic. Otherwise, if you do not want me to start at that topic, then I will ask to stop here.

Adv Mkhwebane: Okay, we can proceed. Chairperson, we slept around the a.m. so I am not feeling okay. We can proceed.

Adv Mpofu: Yes, please tell him that we did not sleep because of him. He gave us one day to prepare.

Chairperson: Yeah, you can proceed, advocate. Thank you, PP.

Adv Mpofu: Thank you, Chairperson. Sorry, PP. Okay, in fact I will do it like this, Chair. Again, if there is no objection, I will try and speed it up by just reading it out and getting you to confirm some of the issues. Alright. You have covered the prosecutor, and son. Then at 58 you say “I was later transferred to the Department of Justice head office in 1996, to work as a legal administration officer with the International Relations Division. My area of responsibility was extradition law, and mutual legal assistance. I was also trained in Siracusa in Italy on extradition law.” Confirm that?

Adv Mkhwebane: Yes.

Adv Mpofu: And then you say that you “participated in various human rights law projects and was part of the team that drafted the South Africa’s countries report on human resources and people’s rights, which was deposed to the African Union.” You were further “a member of the Coordinating Committee that drafted the National Action Plan on Human Rights, which was deposited to the United Nations High Commissioner on 10th December 1998.” Confirmed?

Adv Mkhwebane: Yes.

Adv Mpofu: And if you want to comment, then we will go… but let us try to move. “I worked as a senior researcher at the South African Human Rights Commission from 1998 to 1999, where I was tasked with compiling a country report on the status of human rights in South Africa.”

Adv Mkhwebane: Yes.

Adv Mpofu: Then you say your first interaction with the Public Protector, South Africa was when you joined the institution as a junior investigator in 1999. Okay, we have covered that, we can jump in at one. At paragraph 62, you say your “portfolio involved a strong record of 11 years in senior management within immigration services of the Department of Home Affairs.” I think one of the witnesses, again, I cannot remember… I think it was Mr…

Adv Mkhwebane: Lamula.

Adv Mpofu: Lamula, yes, who had worked with you at Home Affairs. Just briefly, what were the learnings because it seems to be very relevant, of that stint in Home Affairs in particular. What did you bring into the Public Protector’s Office from that?

Adv Mkhwebane: You know, working for Home Affairs, also helped me a lot in the issues of service delivery. you know, working there, I do not know… then it was one of the very much involved or, well, the department we used to work so hard. I mean, think the other paragraphs where we are dealing with the establishment of those refugee reception offices, but then working with the public, and especially, I know a lot of the ministers from Minister Mapisa-Nqakula. Former Minister Nkosazana Dlamini-Zuma used to say that Home Affairs is at the core of the country, because from birth to death, they are the ones who are busy with… or they help. And it is at the core of what we do is the Public Protector, because if a person is not issued with an ID, if a person is not issued with the birth certificate, death certificate to even bury your loved one, because it costs a lot for you to go through that particular process. So working there, and especially in immigration services also helped me to understand the international human rights-relevant prescript and also dealing with the issues of treating a person as a human being more than any other thing because that is where you realise that people run away from their countries being persecuted by the country and coming to South Africa being exposed, being vulnerable. What do we do as public servants to help people like those and not capitalise on their vulnerability? Exactly what we are doing at Home Affairs. And I think that also taught me to, you know, treat a person and not discriminate on that particular person. I remember there was a stage where at home when I was working at Home Affairs, and even now, there are attempts which you would not deal with when around me because I could understand the seriousness of how that makes a person feel. So I mean the situation of Zimbabwe in 2006/2007 also then opened up a lot of hard work, working on time, working throughout the night processing asylum seekers. So also that was the experience I could benefit; hence it was not an issue for just rolling up my sleeves and working at the senior management level, but working and assisting the public.

Adv Mpofu: Thank you. At the risk that I will be called xenophobic or Afrophobic, which I am prepared to take, because that is what happens in this Committee, if you repeat obnoxious nonsense, then it is ascribed to you. Are the terms that you saying you became intolerant to and could not be used around to such derogatory terms, which are used like Amakwerekwere and also sort of nonsensical terms like that. How did that educate you to be able not to treat fellow Africans like that?

Adv Mkhwebane: That is why I am saying if you heard a person saying ‘I am from the Eastern part of DRC, I ran away. I crossed the following countries. ’Yes, it is a challenge as there are those instances where as well being a refugee status determination officer, the ones I was managing, and also when we conduct research, and you discover how they are being treated in their own countries. Then you come into the country, which I still feel South Africa is still not protecting refugees, and especially genuine ones, I do not mean economic migrants who then also some of them commit or will enter the country illegally. But genuine refugees for me is how do we properly protect them, but as well for the public to know about them and how we integrate them into society. So hence, I am saying to you, for me, it was treating that person as a human: firstly humanity, more than anything else.

Adv Mpofu: Dignity?

Adv Mkhwebane: Yes.

Adv Mpofu: Thank you very much. Alright. Then you say “I provided strategic leadership on refugee services’, I think that is what you have just covered now, ‘especially Gauteng, Western Cape, Eastern Cape, KwaZulu-Natal, and Limpopo, where refugee reception offices are located. I monitored the roll out of the integrated biometric system to five refugee reception offices and increased the staff complement from 20 to 200.” Then you say “during the course of the political instability in Zimbabwe, around 2006/07, I provided strategic direction for processing asylum applications, which spiked from 50,000 to more than 200 000.” I think that is what you just described as the most hectic time. Then you say you “participated in the drafting and signing of the Tripartite Plan of Operation for the Reparation of Angolan refugees between South African department of Home Affairs, Angolan Department of Home Affairs and the United Nations High Commissioner for Refugees.” You also were “appointed as a board member of the Refugee Relief Fund board by the then Minister of Social Development”. Which one was this?

Adv Mkhwebane: Zola Skewayi.

Adv Mpofu: Dr Zola Skewayi. And you participated at various UNHCR (United Nations High Commissioner for Refugees) Excom (Executive Committee) meetings in Geneva, in Switzerland. You participated at the AU meetings in Ethiopia relating to refugees. A key achievement in this regard was the adoption of the AU convention relating to displaced persons in Africa – part of what you have just described.

Adv Mkhwebane: This was very critical because the displaced then lead to the issue of refugees. Remember if there is a conflict in a country, then people are crossing from either Ethiopia to the neighbouring countries, then what happens is that those people then will be travelling to other countries for safety. They end up then being asylum seekers in other countries. So I think that was to say Africa, how do you deal with the displaced persons so that you then manage to deal with your own citizens in a way preventing the spillage of asylum seekers. This was a very critical achievement.

Adv Mpofu: Yes. And then you participated, rather, you represented South Africa at SADC Refugee Commissioners meeting and presented papers internationally on refugee policy in Germany and within southern Africa. Confirmed?

Adv Mkhwebane: Confirmed.

Adv Mpofu: In 2010, you were appointed as a Counsellor Immigration and Civic Services, as a representative of the Department of Home Affairs at the office, which was based in the People's Republic of China. And as such, you had to relocate together with your family to live in China. You facilitated the establishment of the visa outsource offices both in Beijing and Shanghai. This included standardisation of operations of the two missions, improved customer service and service delivery to deepen political and economic relations between the People's Republic of China. You were based in China for four years and six months. And then you negotiated more such visa facilities since the government had to approve such, if centres had to be opened in areas. So that was your stint in China?

Adv Mkhwebane: Yeah, and just to add, because that is where the DA was accusing me to be a spy. I remember one of the journalists, I forgot his surname, he even went to China to just interview Chinese about my being there. At first, I was supposed to be deployed to Geneva, Switzerland. And I think when Mapisa-Nqakula was moved to another department, and Dr Nkosazana Dlamini-Zuma was the Minister, she said ‘No, strategically, we receive a lot of tourists from China, and we need to make sure that we build and develop the relations and capitalise on it’. So then she said, ‘No, in Geneva, it is like a cream mission. You just sit there and attend EXCO meetings. But we need people who will make sure that there is processing of visas, but again, at the senior management level, to check the issues of fraudulent issuance of users, those who will be travelling without proper documentation, and to prevent issues of illegal migration.’ So hence, I did not go to Switzerland, Geneva. Maybe if I went to Switzerland, Geneva, I would not be a spy.

Adv Mpofu: You would not be a spy?

Adv Mkhwebane: I think so.

Adv Mpofu: No, that is fine. I think let us deal with serious things. This CV, I must say, I am not sure this is for one single person, but let us go through it. “Due to the excellent service delivery and the impact it made on relations between SA and China and articles published in the local China Daily newspaper” which we have been looking for, regarding your achievements, but you “drafted the chapter on immigration green paper” we will upload it, Chair, when we find it “relating to management of the asylum seekers and refugees.” In 2014, you returned back to South Africa, and worked at the Department of Foreign Affairs as director: for country regional research c within the Chief Directorate asylum seeker management.

Adv Mkhwebane: This paper, Chairperson, in paragraph 68, I do not know how far the process is, but it was also going to help the country in developing this paper and dealing with SADC neighbouring countries and the issue of movement between the SADC region as a build up to the African integration, because that is how the Schengen Visa was developed. I do not know far this process is, because that was going to also help in the integration of SADC and the issue of moving away from you know, this issue of segregation or perpetuating the Berlin destabilisation of Africa. So I think it is going to help in the future if they can just focus on that, because you cannot eat an elephant. But bit by bit if you start with SADC then you integrate with ECOWAS (Economic Community Of West African States) and other countries, then Africa will be one.

Adv Mpofu: Then you just joked about the serious matter of being called a spy, but part of what… Oh, and the 007 thing was a mere three months.

Adv Mkhwebane: Only three months? Yes.

Adv Mpofu: Only working three months in a place, after this beautiful CV. Anyway, you say you “started working for the State Security Agency as a Senior Analyst in July 2016”. That would then mean it was three months befoe you were appointed as Public Protector?

Adv Mkhwebane: Yes.

Adv Mpofu: Okay. And you say “My responsibilities included advising director domestic plans and compliance to constitutional provisions while protecting state actors, which are people, government, fellows, territory, legislation and stakeholder relations. I held this post for a period of only three months before my appointment to occupying the position of Public Protector. This short stint could not by any means qualify me for the slur by the DA of being called a spy.” You have already commented on that.

Adv Mkhwebane: Yeah, I think I commented on that, and how critical it is to have the security agency, which is a constitutional institution, which I have been saying is treated as if it is an outcast. And they never as well, you know, their communications or marketing to just educate South Africans. People who are working in State Security Agency are public servants, they are civil servants themselves. And then you would have those who are working undercover. And those ones you would not even know about them. You would not even go to countries like China and be regarded as a Counsellor Immigration. And I said that in the past that now it is like you want to cause a Civil War, you know, between countries because of your own selfish agendas, just accusing a person that they are a spy. But what I would say is that that is a Constitutional Institution. That is why you have those legislation, you have MIS and everything, which to this day, I was shocked to hear that people have an opportunity. As far as I am concerned, everyone from the President to the ministers to the Members of Parliament should be security vetted because that is where as a country you know who we are dealing with. So, yeah.

Adv Mpofu: Right. I see, so you are saying that the war we see out there could be nothing. If China had such infantile logic to think that South Africa sent a spy there, then they could come and kill us all here? So fortunately, they do not belong to that court. Okay, now at paragraph 71 “I was appointed South Africa's fourth Public Protector for a non-renewable seven year term, by President Jacob Zuma, effective on 15 October 2016.” That we know. And you have said about what happened around your interviews and who supported you.

Adv Mkhwebane: Yes.

Adv Mpofu: Oh, by the way, another typo we will deal with, where there is something about 12 political parties, and you said it is 14. But we will deal with it with the Evidence Leaders. Alright. “This followed a thorough and transparent selection process carried out by Parliament. All but one political party, the Democratic Alliance and COPE abstention in the Committee endorsed my candidacy.” Then you say “In July 2018, I was appointed the first vice president of our AOMA”, we have heard about that from Hon Sokoni, “also a board chairperson of the Durban-based AORC, which assists AOMA with research, information capacity building and advocacy.” Confirmed?

Adv Mkhwebane: Confirmed.

Adv Mpofu: And in December 2018, to date, you were elected as the President of AOMA, during the association six General Assembly in Kigali, Rwanda, correct?

Adv Mkhwebane: That is correct. They should be having elections soon.

Adv Mpofu: Okay, so are you campaigning?

Adv Mkhwebane: My term is ending in October. We must get young and…

Adv Mpofu: Oh, okay. I was going to organise some CR 17 money. Okay. At paragraph 75, you say you “served on the board of the International Ombudsman Institute. A global body of Public Protector type-institution, which is headquartered in Vienna, Austria.” Now this part, I need you to deal with it yourself because for me, I think it crowns, I think what is this beautiful Curriculum Vitae. I cannot believe that anybody can achieve this in a short space of time, and still endure this kind of ridiculousness. But if you can just read and take us through paragraph 76?

Adv Mkhwebane: In dealing with my experience, I wish to isolate five important aspects which have, in my humble opinion, set me apart from all my predecessors, which may be answerable for my far better achievements in the fulfilment of the mandate of the Public Protector. The first one is my humility based on my humble beginnings, and the early installation upon me of the value and rewards of hard work.” As I have indicated above, I think working at Home Affairs is one of the best experience ever, or anyone who works at Home Affairs. To me that is one department which will build you and will show you how to be hard working though yes, there are a lot of challenges there. But I think that is what shaped me.

Adv Mpofu: Yes. Okay. 72?

Adv Mkhwebane: “My faith and belief in God and my outlook and quest as a devout Christian to do unto others as I would want them to do unto me.” I think this one was also mentioned by Mogoeng Mogoeng. I think that is what keeps me standing, praying a lot and all those who are praying for me. Yeah, though sometimes I was shocked with some of the Members who said to be Christians the way they are treating me but I think well I give that all to God.

Adv Mpofu: Do not worry, in my world, what goes around comes around. But in yours, I think it says, ‘turn the other cheek’. Well, not me. Alright.

Adv Mkhwebane: My experience in such pressurising environments, such as the Department of Home Affairs also helped me a lot. Besides Home Affairs, as a public prosecutor working at the Human Rights Commission, though Human Rights Commission was more research-based. Also, then trying to understand what is expected from this constitutional democracy.

Adv Mpofu: Okay, thank you. I wanted to say that I have shared that joke with you, that in your world, your motto is turn the other cheek; in mine, if you hit my cheek I hit yours so that when I turn the other one, you will not hit it again. But there you are. Alright. 76.3, you have covered. 76.4, what is your fourth motto or motivator?

Adv Mkhwebane: Yes, “This is an incomparable invaluable insights and hands on experience I gained from previously working at the Public Protector Office”, actually as a senior investigator – I think we need to correct that. I also worked as the provincial Public Protector because I normally call them provincial public protectors – the Acting one in Gauteng. That opportunity, I was given by the former Public Protector, Adv Mushwana. Then that also showed me that different perspective of how the Provincial Office of the Public Protector operates.

Adv Mpofu: Okay, And then can we go to the last one, 76.5? If you can go through that one?

Adv Mkhwebane: “Above all, I believe that I cannot betray my beliefs and my people because of the evil deeds and intentions of this…”

Adv Mpofu: Sorry, I cannot hear you. Chairperson?

Adv Mkhwebane: This place is so uncomfortable, Chairperson. “Above all, my belief that I cannot betray my beliefs and my people because of the evil deeds and intentions of my detractors, which requires me to stand firm in the face of adversity, guided by the spirit and ethos of other prosecuted women who came before me including Winnie Madikezela-Mandela, Rosa Parks and Esther of biblical times, who famously stated that she would not look back on her mission to face the all Earthly ruler and powerful king. She stated defiantly to her people as reflected in the book of Esther 4, verse 16, where she said, ‘I will go gather all the Jews in Susa, and hold a fast on my behalf, and do not eat or drink for three days, night or day. I and my young women will also fast as you do, then I will go to the king, though it is against the law and if I perish, I perish.’ “ I think this verse I mentioned when I was about to issue the so-called Rogue Unit report. Unfortunately, also, that is what happened, because it was like, when I was trying to guide and show what needs to be done, what were the root causes of the problems, going forward how to change that, then it was unfortunately interpreted to be something else. So this also is one of the verses which gives me strength.

Adv Mpofu: Thank you. And then go to paragraph 77.

Adv Mkhwebane: “I too, will face the powerful face to face only because the new land compels me to do so, and if I perish, I perish. It is an essential requirement of my current office to conduct myself or the investigations without fear or favour or prejudice. Therefore, I am not scared of anything or anybody. I think that is what transpired. Unfortunately, sometimes it is too much for my family, my children, but I think it is for the better good for the generations to come because I think all of us should be selfless. And unfortunately, I am not gaining anything for doing this work. But what I would want to do is to make sure that South Africans of all colour, creed, status, they benefit from this institution.

Adv Mpofu: Yes. Thank you very much. And the last, please, if you can go to paragraph 78. Just so that we round off that section.

Adv Mkhwebane: During my testimony, I will constantly touch on the above mentioned five aspects of who I am and who I always will be, no matter what. I received the persecution meted out by my enemies as a gift which can only make me stronger and hopefully inspire future generations of women, patriots, when required to walk a path similar to or even worse than mine. In a further appropriate biblical metaphor, Chief Justice Mogoeng Mogoeng famously described the Public Protector as ‘the embodiment of a biblical David, that the public is who fights the most powerful and very well-resourced Goliath that impropriety and corruption by government officials are. The Public Protector is one of the true Crusaders and champions of anti-corruption. Hers are indeed very wide powers that leave no level of government power above scrutiny, coincidental embarrassment and censure.’ ”You see, SC, you are teaching me advanced English.“ ‘In the execution of the investigative reporting and remedial powers she is not a not to be inhibited, undermined or sabotaged.’ “ So this deals with the Section 181(3) which we have mentioned up there. And I think this biblical David, especially the public. Again, I am still going back to say Mr Seabi, Mr Nyathela and what we are doing, and what we did with the team to deal with the communities, Masiphumelele and all those, was to exactly show to the state that we can be standing in the gap for those who cannot stand for themselves. But I think we will deal with vision 2023, and that is where I will take you through what the intention was about this biblical David.

Adv Mpofu: Yes and for those big words, you must blame the erudite, Chief Justice Mogoeng Mogoeng. Yes, he is one of the most prolific legal minds that we have ever produced. But in terms of the Biblical David metaphor, I think it is one that is fitting. I would like you to maybe close by explaining why you chose, of all the verses, a verse that is really probably fitting to where you are sitting today, and why your determination takes you to a place where your refrain is ‘if I perish, I perish’?

Adv Mkhwebane: I mean, if you represent or you are dealing with the poor, the marginalised people who do not have the means, or the resources to fight for themselves, and if I am honest, or we are waking with what is before us. WhenI say ‘If I perish, I perish’, I mean, we have been investigating the most powerful, I mean, if we were investigating the Bosasa matter, the kind of evidence we considered. And you need to make sure that you honestly, independently, without fear, without favour, compile reports, especially the investigators. I think at one stage you were asking either Rodney or Bianca to say ‘if when investigating those matters, does the Public Protector say to you now, we are going to target this particular person.” So this means all the vilification which I have been facing. And I indicated earlier that the Financial Mail report I mean, it was even worse, because I think even other institutions had to intervene, such as the South African Council of Churches, when they even went to to take pictures of my late mother at that age, because of people trying to show you that we can deal with you whilst I am doing my work. I mean, the issue of paying personal costs to this day. I mean, if you are a public servant, and you ask yourself, was it justifiable for me to do that? So all those threats. I mean, the kind of comments and the kind of embarrassing words and statements which have been said about me and I think through it all, I am just doing my work. I have nothing to gain from whatever I am doing. You know, if they are saying ‘for every insult I get, for every ill treatment I get, I am paid,’ I would say possibly, yes, I deserve it. But the question is, through it all, I am just to liberate those who are not having any means of liberating themselves, because it is still a long way to go. And you can check how people are living, when you go to the rural areas, when I do the road shows, the hospitals, the education system, access to water, which are basic things. That is all what one is doing, instead of then, selfishly leaving people who are just plundering the resources of the state, just to benefit themselves. So I think people do not want to lose face. In Chinese they are saying that when you tell a person the truth they lose face, and they will be very, very lethal when they deal with you.

Adv Mpofu: Thank you. Thank you, Chairperson. That covers the landscaping issues. And thank you both, Chairperson and Public Protector for giving us those extra minutes. I just did not want to leave some of those issues hanging. We will, now and again, touch back on some of the issues of landscaping that we have not covered, Public Protector, but I think that gives us the context. So, tomorrow, we will then, as you say in your statement, start with the real reason that you are here and therefore we will be dealing with the CR 17/Bosasa matter and we will go through the report and the judgments and then you will give the analysis of why that report is part of what you say has landed you in that seat. Thank you very much, Chairperson.

Chairperson: Thank you, Adv Mpofu and PP, for the day. The time now is 17:21. We are going to pause here and adjourn the meeting for today. We resume tomorrow at 09:00 and not 10:00, in terms of the programme, to give an extra hour. So thank you, colleagues. Do you have a difficulty with 09:00?

Adv Mpofu: I do, Chairperson.

Chairperson: Why? You do not want to wake up?

Adv Mpofu: No, Chairperson. Well, waking up is not the problem. The problem is that we did not sleep at all. Chair, is it possible… Okay, let me just consult for a second. Chairperson, my team is asking for 10:00, and I would like to represent them. Literally some of them did not sleep at all. I slept for a couple of hours.

Chairperson: Fine. Hon Members, 09:30 or 10:00? 10:00? Okay, you have support from the Members.

Adv Mpofu: Thank you very much. Let us leave it before it is spoilt.

Chairperson: Thank you. We resume tomorrow. Thank you.

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