PP Inquiry day 63: Adv Busisiwe Mkhwebane
Committee on Section 194 Enquiry
16 March 2023
Chairperson: Mr Q Dyantyi (ANC)
Motion initiating the Enquiry together with supporting evidence
Public Protector’s response to the Motion
Report from the Independent Panel furnished to the NA
The Section 194 Committee heard the second day of testimony from the Public Protector, Adv Busisiwe Mkhwebane, focusing on the CR17/Bosasa investigation and subsequent report.
The report and investigation by the Office of the Public Protector refers to the funds received by then Deputy President Cyril Ramaphosa’s 2017 campaign for the African National Congress Presidency. In her report, Adv Mkhwebane found that there was prima facie evidence that the Cyril Ramaphosa 2017 (or more commonly known as CR17) campaign managers were involved in money-laundering, as several payments of monies were transferred into various accounts. According to the PP's affidavit, significant individuals in the South African economy paid millions of Rands into the CR17 campaign, raising reasonable suspicion that they were buying influence from the then Deputy President.
However, the higher courts disagreed with her findings and ruled that money laundering must involve the proceeds of a crime, which they found no evidence to prove this in relation to the donations made to the CR17 campaign. Adv Dali Mpofu, leader of Adv Mkhwebane’s legal team, during his leading of the evidence, argued that the judgments made by the courts were incorrect in their findings. Furthermore, while accepting that she too was fallible, Adv Mkhwebane stressed that she had been targeted by those who she described as having ‘big pockets’, who only sought to see to her downfall.
Chairperson: Let me take this opportunity on this second day with Adv Mkhwebane, to welcome the Members here at M46 and on the Virtual Platform. Welcome, Public Protector, who is here with us at M46, together with her legal team, led by Adv Mpofu. I can notice that both of them have gone back to their roots – we envy that. Let me welcome the Evidence Leaders, advocates, Bawa and Mayosi; members of the media with us, our entire support staff, the people who brought us here, the members of the public on your various platforms. Welcome to day two of this session. We will, immediately, not waste any time and handover and ask Adv Mpofu to kickstart the proceedings. Are you settled, Adv Mkhwebane? Okay, thank you. Over to you, Adv Mpofu.
Adv Dali Mpofu: Thank you very much, Chairperson. Good morning. Thank you for those remarks. Today, I am going to speak in IsiXhosa. Good morning, Public Protector.
Public Protector Busisiwe Mkhwebane: Good morning, Adv Mpofu.
Adv Mpofu: How are you?
Adv Mkhwebane: I am well, thank you.
Adv Mpofu: Thank you. Alright. Now, we left it off yesterday where we said that today we are going to get into, shall we call it, the meat of the issues. The term that I borrowed from the Chairperson yesterday was landscaping. It was a correct term. We are happy that the Chairperson allowed us to do that landscaping, because as I always, once you set the scene, it might look like a waste of time, but actually, it saves time, because it means now when we get to the actual meat and the charges, we do not have to, every time to go back to that overview because the foundation has been laid. But having said that, Chairperson, it is inevitable that we have to enter the evidence back to the overview without over elaboration. I am not going to take a day every time we have to do that overview. So maybe, Chair, before I do that, if I can just address a few issues to you directly. One is the issue you discussed in your meeting last week about the funding of the legal team and all that. We just wanted to record, Chair, we know that it is not your issue, you were simply copied like everyone else. But just for the record, it is a matter we know that we are seized with. Unfortunately, the last few days have been hectic with statements and courts, and so on. So we will take advantage of the few days break and be able to respond. Then, Chair, we also want to flag the fact that we are concerned about the length of the evidence or the number of days that have been provided, but again, we will assess that. I think, after today in particular, we will be in a better position to engage at this level or at the level of the backroom as to what… so that by the time we come back next week, we will have a sense; either to say how much longer or shorter. I know that you want it to be shorter. We will be able to assess, particularly after today. Thanks, Chair. Now, Public Protector, I was saying that…
Chairperson: Thank you for putting those matters on record. They are well noted. Thank you.
Adv Mpofu: Thank you, Chair. Yes, I was just saying to the chair that we will, now and again, go back to the overview, but really for the purposes of making progress, because remember, every charge will have its own, ‘mini overview’, because that particular report has got a particular context. But we are not now going to go back to the broader issues, except for the purposes of addressing a particular charge. So that is the mode we are in now. So, in that context, I then want to recap that yesterday, you explained to the Chairperson and the Committee, why it is that in your resequencing of the charges, you are going to start with the CR17/Bosasa matter, correct?
Adv Mkhwebane: Correct.
Adv Mpofu: Yes. You explained, I think your words were that this is one of the matters that this whole thing is all about, which has been brought here in the context of the words in the Nkandla case, correct?
Adv Mkhwebane: Correct.
Adv Mpofu: Alright. So, we are now, then, going to zoom into that particular charge. But I thought, again, just to put it into its context, as we did when we were dealing with this charge with Mr Mataboge, we always have to keep the eye on the ball really. And I think, Chairperson, we are all in unprecedented territory. As we have said, all of us have a responsibility to shape this, as nobody else has done this before; so we need to find methodology that works for all of us, but one where we are on the same page. Unfortunately there is no precedent that we can look up to. I think we owe that to the nation, anyway, to try and design a framework. So in that spirit, then, one of the things, I think, we need to do is always focus on what we are not doing; if you know what I mean? For example, Chair, we are not here, when we talk about CR17/Bosasa, it is important to communicate this frankly to the nation and everyone, that we are not here to redo the Bosasa Report; otherwise we will be here for the whole month. Neither are we…
Chairperson: It is a very important point.
Adv Mpofu: Yes. Neither are we here necessarily to second guess the findings and try and amend them, as the report is the report, we cannot change it. Thirdly, Chair, we are not here to rewrite the judgment either. The judgment is the judgment. The example I thought of to make this point was; let us assume that this CR17 thing had featured in the Zondo Commission, and there was no video evidence of money being given and so on. This Committee cannot be concerned with that because this Committee is looking at a point in time, which would have been before those revelations or whatever. So we could not come here and say ‘No, Chairperson, let us play this video of what happened in the Zondo Commission to show that the Public Protector had this’. That would be a false methodology. So what are we here for? We are here for the simple task of looking at the charges that this Public Protector is facing before this Committee. Those charges have been defined by Parliament, not by the Committee. They have been defined by the Parliament, so we have to look at that definition. We do not have to reinvent the wheel or follow our hearts or whatever. Misconduct is what has been defined by Parliament. If we want to change it we will have to go back to the House and change that definition. But for now, we are all confined to what it is. So that is the first level, which I think we should always keep at the back of our heads. The second level, Chair, which is where I am going now, is then having understood what is misconduct, what is incompetence, and what have you, we then have to say, as we are doing now, which charge are we now dealing with. We are dealing with, essentially, now, 11.3 and 11.4. Then we look into the mechanics of that charge, and the specific allegations; that is all really. Then the Committee, in the end, will say ‘This charge and this charge. Yes, no or No’, and whatever. Maybe the last point, Chair, although it is not easily separable, there is no point in putting the legal argument to you at this stage, as it were, we must try to get into the facts. We will get an opportunity to do closing arguments, and then we will say ‘No, this fact means that’ and year. It is not always easy to make that separation, but we must strive to… if we are going to make a legal argument, it is really just to plant the seed, but not to focus. So that, Chair, is how we propose to approach this, so that we do not waste time on, as I say, on what this process is not about. Alright
Adv Nazreen Bawa (Evidence Leader): Chair?
Chairperson: Just a pause, Adv Mpofu. Adv Bawa?
Adv Bawa: Sorry, Adv Mpofu. So that we are on the same page, so that we have some agreement on the ground rules, because it seems as if we could make common cause, and the common cause would be, actually we are not rehashing the facts, e are not redoing the report, and we are not looking at new evidence on the facts that emerge subsequent to the motion being lodged. Is that how I understand you to say?
Adv Mpofu: Yes, more or less accept the first one. The first is not what I said. I am trying to say that we should focus on the facts, at this level, because that is what the Witness is here for. It is inevitable that sometimes we will put legal propositions and so on, but really, we just want the raw facts. Legal argument of what is the meaning of those facts and what it is not, you and I will debate at the end; so that is the first thing. But the rest of what you said, I agree. We cannot redo the report because it is there. It was done. It was signed and dusted. Neither can we rewrite the judgment.
Adv Bawa: There are just two issues that I thought we must just clarify. On the legal issues, some of the issues of misconduct and incompetence that appear do emanate from legal propositions that I may have to put to the Public Protector when it comes to some point. I may want to say that to you upfront so that you are aware, in case you want to canvass those issues.
Adv Mpofu: Chair, I accept that. I accept that also on the basis that is not just a witness, it is the Public Protector. She is legally qualified, which is one of the qualifications of being a Public Protector. So inevitably, when you put questions, even Members, no one can stop them from testing ‘how did you come to this conclusion, if you had this evidence?’ That kind of thing.
Chairperson: Sure. Thank you.
Adv Bawa: And then the second thought that I had, as you raise this, Adv Mpofu, was there is, of course, the exception an appeal judgment only came out after the Motion had already been finalised, even though the High Court judgment existed at the time. That obviously bears on some relevance, irrespective of which way that goes.
Adv Mpofu: Yes.
Chairperson: Okay, thank you, Adv Mpofu. Over to you.
Adv Mpofu: Chair, again, this is very important. Ordinarily, as I say, because this is unprecedented, we would have this kind of exchange when we do the legal argument, but, Chair, with your permission, I think it is important that you allow it, obviously within bounds, because it focuses, in my view, all of us; it focuses the Witness; focuses the Members, and it will limit unnecessary evidence, so to speak. So then maybe to respond directly to the point you are making. Well, you are saying that… Is the point that you are making for now or for the legal argument?
Adv Bawa: No, I think that I accept that this is not a hearing. I am in agreement with you that we are not here for the Committee to reevaluate all the evidence that informed the Public Protector’s reports. But there are judgments that have been handed down which are referred to in the Motion.
Adv Mpofu: Which were superseded by…
Adv Bawa: Which are then superseded by appeal court judgments. Let us take the SARS unit Judgment, for instance, where at the time the Motion was written there was a High Court judgment. You guys had appeals pending, there has now been finality, in respect of all of that. So that has some relevance for bidding on it. And in the same way, if the full bench decision in the Western Cape, that you argued at the ConCourt comes out, obviously there is now finality on that issue. That has relevance to which to be referred.
Adv Mpofu: I get you. No, I understand. Chair?
Chairperson: Are you done, Adv Bawa, so that we allow him to start? Over to you, Adv Mpofu.
Adv Mpofu: Yes. Before I start, let me just respond to that and just give you an assurance, both to the Committee and to Adv Bawa. We are not going to be taking technical points at the end and say… The SARS (South African Revenue Services) issue, Chair is a good example, both SARS, I think, and CIEX. We are not going to come here and say ‘Oh, no, you cannot take about the Constitutional Court Judgment in SARS because when Ms Mazzone drafted her Motion that judgment was not out yet’. We are not going to do that. If we were going to do that, we will be making a mockery of this process. I know that in the actual Motion, as far as the SARS matter is concerned, that is the Commissioner for SARS, the judgment that is cited, even in the amended Motion, is the High Court; as Adv Bawa says, that was because the ConCourt one had not yet happened. But it would be ridiculous if we are now going to say ‘Well, it is the four corners of the charge.’ Actually, it would be foolhardy for us to do that, because what if, for example, in one case where the ConCourt comes to agree with us, then if we are now going to say ‘No, you are confined’, it means even we will not be able to ‘take advantage’ of any favourable finding, should the Evidence Leaders be able to use any subsequent finding. You can be sure that we are not going to do that.. Thank you, Chair.
Chairperson: Okay. Thank you, Adv Mpofu. Let us not eat too much into your time.
Adv Mpofu: Yes. Thank you, Chair. Right. Now, Public Protector, what I want to do then, is to start with this session by taking you to something that is effectively one of the standard methodology templates that is contained in almost all of your reports. It is something that I like for its simplicity because sometimes, you know, lawyers like to complicate things unnecessarily. It is that template that you use for saying, what happened, what should have happened, and so on. And I think it makes it easy, even for members of the public to follow how you do things. Can you maybe assist the Committee as to where that formulation came from? Did it come from you? Did you find it there already? And what does it entail?
Adv Mkhwebane: Thank you. Good morning, Chairperson Members of the Committee, Evidence Leaders, the staff of the Parliament, my family, members of the Public Protector staff. This formulation was developed by my predecessor. It is one of the things which when we were deliberating at the think tank, I said, it is well crafted and indeed, it is simplified. It is something which we can continue using because it is true that when it is not broken, why fix it? So that is what we are using. And indeed, it is very simplified. I must indicate, it is what we have been doing and I think that is what I will be comfortable today to deal with; to answer the charges and to deal with everything I relied on at that particular time to come to the conclusion of all these reports.
Adv Mpofu: Yes. Maybe before we even get to that, just to situate the discussion that we just had now with the Chair and Evidence Leaders, for the sake of completion, for you to confirm that that is the framework that we will be following in dealing with your evidence and arguments and what should guide the Committee when it does its report. Do you confirm that or do you want to add something to it?
Adv Mkhwebane: I wanted to say that you are speaking over me, and I am sitting here. But you know, we discussed indeed, that is what we will be doing. We are not starting the investigation but what Committee Members and the public should know, and which I am saying, I will have to take the public into confidence on what was happening when all these matters were investigated.
Adv Mpofu: Correct.
Adv Mkhwebane: To prove the issue of competence, and to prove the issue of doing my work without fear or favour or prejudice.
Adv Mpofu: Yeah, good. Thank you. No, that is exactly why, I think, the Chair allowed me to put that question, so that we do not have some side agreements which you can say later ‘Well, I was watching you talking’. That is not my approach. Okay, thank you. Now that we have that out of the way, which I say, I think, will save a lot of time and bickering. Let us go to page 550? So that we are all on the same page about what we are talking about now. Right. So I will just read it out, Chair, for speed. For the benefit of the Members, that is the matrix or template we are talking about. It says “Like every Public Protector investigation, the investigation is approached using an inquiry process that seeks to find out, one, what happened; two what should have happened; three, is there a discrepancy between what happened and what should have happened, and does that division amount to maladministration or other improper conduct; and four, in the event of maladministration or improper conduct, what would it take to remedy the wrong or right the wrong occasioned by the said maladministration or improper conduct.” Very simple way of explaining the complicated process. Right. You have already heard in the other exchange that all that, for the purposes of this exercise, is not necessarily to redo the report but to… What we are really inquiring into, if you like, is what was happening in your mind, to put it simplistically. Were you motivated by… If you made a mistake, for example, was it an honest mistake that anyone can make because we are all human; or was it motivated by some intention either to target this one or to exonerate that one? We had those discussions with witnesses like Ms Mvuyana and Mr Mataboge. You understand?
Adv Mkhwebane: Yes, I understand that, SC. Chairperson, I will propose that you also, when you go through paragraph 125 and 126, which influenced what was happening when those investigations were conducted by the investigators.
Adv Mpofu: Alright. Okay, I will read that into the record, as well. It says, at 125, “The question regarding what happened is resolved through a factual inquiry, relying on the evidence provided by the parties and independently sourced during the investigation.” At 126 “The inquiry regarding what should have happened focuses on the law, or rules that regulate the standard that should have been met, to prevent improper conduct and maladministration as well as prejudice.” 127 “The inquiry regarding the remedy or remedial action” which we dealt with yesterday, “seeks to explore options of redressing the consequences of improper conduct and maladministration where possible and appropriate.” And I think for the sake of completion, we read 128, because that is important: “In the important case of Public Protector v Mail & Guardian, the SCA (Supreme Court of Appeal) made it clear that it is the Public Protector’s duty to actively search for the truth and not wait for the parties to provide all the evidence as judicial officers do.” Again, this is a point that has been repeatedly made here. But I think that should assist the Members to situate the core of what you do as the Public Protector. Thank you. Right. Okay, all that… That is enough overview material for today. Then we have to focus on the specific charges relevant to the CR 17 (report). Alright, we know that the, and I am paraphrasing to save time, charges 11.3 and 11.4 really focus on allegations of, let us call it, favouritism on your part; you favour this one and you favour that. I am putting it very roughly, but you get what I am saying?
Adv Mkhwebane: Yes, I do.
Adv Mpofu: Sure, thank you. Alright. Now, take us through, please… Walk us through without going into blow by blow… You made the point yesterday, again we will not revisit that, that you do not go around standing in the street saying ‘Hey, please, I am looking for complaints’, or ‘I want complaints against Mr Dyantyi, or this one.’ People complain to you, and you then have to act on that, correct?
Adv Mkhwebane: Correct.
Adv Mpofu: Right. Now then take us through how this particular complaint came to your desk.
Adv Mkhwebane: Okay, thank you. The investigation of the CR17 Report, I think that is what we call it, emanates from my decision to investigate and report on the CR17 campaign of the then Deputy President Cyril Ramaphosa for the African National Congress leadership in December 2017. So this was a complaint lodged by Mr Maimane, during November 2018 and then in January 2019, another complaint was lodged by Mr Floyd Shivambu.
Adv Mpofu: Okay, sorry. I know everyone knows these people, but for the record, what capacity… Okay, I will ask a leading question. Were they Members of Parliament, as prescribed in that Act?
Adv Mkhwebane: Yes, Mr Mmusi Maimane was a Member of Parliament and the leader of the Democratic Alliance.
Chairperson: Thank you. Just a pause, Public Protector. Adv Bawa?
Adv Bawa: Sorry, Adv Mpofu. I do not want to interrupt you, but it seems that you are at paragraph 250/251 of the statement if we put that on the screen?
Adv Mpofu: You put it on the record? Chair, can I do that?
Chairperson: Thank you. Go ahead. You can switch it on again, because when the third one comes in, it automatically goes off.
Adv Mpofu: Yes. Thank you, Adv Bawa. I think that will help us with this part of the questioning. I will just put it on the record. The Members will refer to 250 and 251, that is on page 610 of the statement. It reads as follows: “How this charge is formulated makes it difficult for me to respond. It gives an impression that the complainant was on a fishing expedition. This charge is not only confusing but presidential to me as it fails to deal with specific allegations or even name the politicians whom I allegedly disfavored and or favoured.” Okay, that now goes to 11.3 and 11.4, per say. Do you confirm that, Public Protector?
Adv Mkhwebane: Yes, I do.
Adv Mpofu: Thanks. Then the next one is at 251. “The CR17 Report emanates from my decision to investigate and report on the CR17 election campaign of the then Deputy President for the ANC Leadership in 2017, which would inevitably lead to the Presidency of the Republic. During November 2018 and again January 2019, I received complaints about President Ramaphosa. The first complaint was from Mr Mmusi Maimane, the then leader of the DA. The complaint was related to the relationship of President Ramaphosa, with a company called African Global Operations, formerly known as Bosasa. The following information appeared from Mr Maimane’s complaint.” Okay, I will not read the details of the complaint, but that is the background. That is how, in answering that question, I think Adv Bawa is correct, how the matter came to your desk is captured in those two paragraphs, correct?
Adv Mkhwebane: Yes, that is correct. Especially because they were Members of Parliament and they are the ones able to lodge a complaint under the Executive Members Ethics Act.
Adv Mpofu: Right. Okay. Now, again, until there is an objection, I will lead on the non-controversial background. I will ask you in the form of leading questions. It is indeed so that, and most South Africans know about this, that really the origin of this whole thing was a parliamentary question put by Mr Maimane to the President in the normal Q&A (Question and Answer) sessions, which ironically, had nothing to do with CR17 or anything of that sort. It was about, at best, allegations of some money coming from a questionable company to the President's son, that was it.
Adv Mkhwebane: Correct.
Adv Mpofu: Yes. Again, Chair, I am not going to read the actual question and the answer. It is all there. It is in the report and in the statement. But essentially what Mr Maimane, the leader of the DA, wanted to know was about the payment of a certain amount of R500 000 by this so-called Bosasa Company to Mr Andile Ramaphosa, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Right. I think this is very important, because I think had the matter ended there, we would not be sitting here debating that matter, because the President answers questions all the time; it is the question, it is answered and that is the end of it.
Adv Mkhwebane: That is correct.
Adv Mpofu: Yeah, but in this case, a couple of weeks later, the President himself, and this is where CR17 comes into the picture, wrote a letter to the Speaker to say that ‘No, no that answer I gave was wrong, about how I looked at my son and I will take him to the police station.’ Actually, that R500 000 was paid to the CR17 Campaign, Right?
Adv Mkhwebane: That is correct.
Adv Mpofu: Good. The rest they say, is history.
Adv Bawa: Chair?
Chairperson: Okay, just pause. Adv Bawa?
Adv Bawa: Chair, I understand Adv Mpofui is leading the Witness for purposes of saving time and wanting to get through facts, but there are times when Adv Mpofu’s characterisation and adjectives are different to what is in the affidavit. I just want us to be clear that we do not describe evidence of the Public Protector, or whether with it could create some confusion later. So I just want to raise that to make him aware,
Adv Mpofu: Alright. Okay, Chair. First, I agree with the fact that it is a leading question, but it is not a leading statement, that is why it is a question, so that the Witness can confirm. If the Witness that there is something wrong with an adjective or whatever, she can do so. Also, if Adv Bawa feels so, I think she is also allowed to point it out. But I do get what she is saying. There might be a particular nuisance; that is what is wrong with leading questions generally. Alright. So subject to that, you accept, let me put it as dryly as possible, that subsequent to answering the Parliamentary question, the President sought to correct it by putting what he was presenting as the correct facts. I think if we do it like that, without adjectives. Do you confirm that?
Adv Mkhwebane: Yes, I think that is also captured in the reports. Chairperson, and SC, I propose that while she is indicating that we go through the statement, but the issue is very important that let us go through the statement because we are doing this, as I said, for the members of the public to understand what I received and especially the fact that I am targeting individuals; and I indicated to you that somebody was even asking me, ‘Are you fighting the President’, so that people can know that within my responsibilities, this is what complaint we have received, and these were the facts. I mean, everyone saw it, but then some people might not have seen it and they are listening. They just want to understand what happened. Thank you.
Adv Mpofu: Yes. No, that is fine. I think let us do it like this, because it looks like my effort to try and save time is not successful. You go through the statement and let us do it the other way round. When I want to interrupt you to clarify something, then I will do so. Let us go from 251.1, because yes indeed, the people at home do not have the statement, but the Members do have. Let us rather have it from your side; I was just trying to speed it up. Okay, let us start 251.1, Public Protector.
Adv Mkhwebane: Yes, “On the 18 October 2017, according to the complaint, was that an amount of R500 000.00 was paid to the EFG2 Trust Foundation account by Mr Petrus Venter on the 18 October 2017, on the instruction of the late Mr Gavin Watson. The R500 000.00 was part of the R3 000 000.00 which had been transferred from Mr Watson’s personal account by Ms Natasha Olivier, the PA to Mr Watson, in to the account of Miotto Trading, which was the company of Mr Venter’s sister, Ms Margaret Longworth.” So that was the complaint. And then that “The money was paid from the personal account of the late Mr Watson. Mr Watson was the CEO of Bosasa.” So then the money was transferred to the account of Miotto, the company which was closely associated to Bosasa. So that was the complaint and that was said to be the money paid in EFG2, as we have explained. I think I will try to pick up on important issues. Then “On the 6 November 2018” paragraph 251.4, “during a question and answer session, indeed Mr Maimane presented some documents to the President” that there is a proof of payment and a sworn statement alleging that there is money to Mr Andile Ramaphosa. So “The President confirmed that he was aware of the payment but had been satisfied that it was a lawful payment of services rendered by a consultancy firm owned or operated by his son, Andile Ramaphosa. It later transpired that the President's answer t that question was false. On the 16 November 2018, the President sent a letter to the Speaker of the National Assembly purporting to correct the answer he had given in the National Assembly on the 6 November 2018. In the letter, the president confessed that the payment was actually a donation towards his campaign to be elected as President in December 2017. In his complaint, Mr Maimane alluded that he was concerned that there was possibly an improper relationship between the President and his family on the one side, and the company African Global Operations, on the other side.” So to confirm what you said earlier, he is the one who raised this issue of December 2017 in the letter to the Speaker. So that is what was captured, or the evidence which we also then considered.
Adv Mpofu: Good. Thank you. Thank you very much, Public Protector. Let us then… Okay, we do not have to deal with that segment because I already asked you questions.
Adv Mkhwebane: Then a…
Adv Mpofu: Yes, you can carry on.
Adv Mkhwebane: Yes, in fact, maybe before then. “Then the issue of my determination was whether the payment of the said amount as a donation of the campaign was proper and whether it did not amount to money laundering due to the money having had to pass through several intermediaries.” This was actually exactly what Mr Maiamne said in his letter of complaint. Not to say it was from what we have uncovered as the Public Protector, because that is not our mandate. And then “another complaint was received from Mr Floyd Shivambu”, the Deputy President of the EFF, (Economic Freedom Fighters) and his complaint was premised on Section 4 (1) of the Executive Members Ethics Act, in respect of the alleged breach of the Executive Ethics Code by the President in appearing before the National Assembly on the 6 November, when he was responding to this particular question about the R500 000.00 donation.” So that is what we did. As this was a separate complaint, normally within the office, if the complaint is similar, or it relates to the same facts, then we merge this complaint to the one which was lodged by Mr Maimane of the DA.
Av Mpofu: Thank you very much. Sorry, for the sake of completion, can you just read 253? I think that is what gives context to why this particular company… If a particular company had given money to the President’s son, so what? The issue is why did Mr Maimane identify this particular company for any suspicion?
Adv Mkhwebane: “Mr Maimane, in his complaint, further alleged that Bosasa was widely reported to have received billions of rands in state tenders. He further stated that he was concerned that the President may have misled the National Assembly in his reply to the question on the 6 November 2018, and that the true facts of the matter needed to be established.”
Adv Mpofu: Right. Okay. Alright. Thank you. At least as far as Mr Maimane’s complaint was concerned, it had two legs. One was the credentials or lack thereof of the company itself and secondly the question of misleading Parliament.
Adv Mkhwebane: Correct.
Adv Mpofu: Right. Now, Mr Shivambu’s complaint, you have already paraphrased. Now, the issue of the alleged benefit to the President or Deputy President – I will be saying the President, but I think everyone knows that at the material time, he was the Deputy President. For the purposes of Section 96, it does not matter, as he was a member of the Cabinet.
Adv Mkhwebane: Correct.
Adv Mpofu: Now, can you take the Committee through the issue of the benefits? Just explain why if it is a personal benefit it attracts disclosure under the code?
Adv Mkhwebane: Okay. I think that is in paragraph 259. So “During my investigation, I received evidence that showed among other things that there were monies transferred to the Cyril Ramaphosa foundation, that Mr Watson was present at the fundraising dinner hosted by Mr Ramaphosa and that on the 17 November 2017, Ms Donne Leigh Nicol, the President's legal adviser sent an email to the President regarding fundraising and events.” So this is the email which Donne sent to Mr Ramaphosa: “Hi, please find questions/notes around fundraising events. I have tasked PG to raise about R15 million. He has got Johnny Copelyn on board and is meeting a few other people. He is suggesting an event with 15 to 20 people on the 24th after the NEC. Is this possible? I think we should still schedule the following: Cocktail with black business, maybe 30: includes Moss, Saki, others; Cocktail with the Greeks suggested by Theo. You have said yes. Just trying to prioritise and get into your diary. People I need you to call, please…”
Adv Mpofu: Sorry, can you pause there? Just go back a little bit. Okay, before we get to the next section of the email, I just want to put a few questions to you. One, just for context, who wrote this email?
Adv Mkhwebane: It was Ms Nicol.
Adv Mpofu: And who was it addressed to?
Adv Mkhwebane: It was addressed to President Ramaphosa.
Adv Mpofu: Right. So when it says, for example, ‘You have said yes’, the ‘you’ will be Mr Ramaphosa?
Adv Mkhwebane: Yes.
Adv Mpofu: And where she says ‘I think we should do this then’, that is her making whatever suggestion?
Adv Mkhwebane: Yes.
Adv Mpofu: Okay, I just wanted that for context. Then it says, which is important in relation to the next sentence, “People, I need you to call’, in other words, people that Ms Nicol wants President Ramaphosa to call. Okay, you can carry on.
Adv Mkhwebane: Yes, there are these… “Mick Davis to coordinate a group from London including Martin Moshal – ask for a collection R20m. Eric Sampson to thank him for the money and to ask for another 10m. Can I ask the following for money…”
Adv Bawa: Chair?
Chairperson: Just a pause, Public Protector. Adv Bawa?
Adv Bawa: We had been very careful about not showing people's names and phone numbers up to now. There seems to be phone numbers on the…
Adv Mpofu: Okay. No, fine. I think we can block the phone numbers but the names are there. They are there.
Adv Bawa: And there is an account number that comes up.
Adv Mpofu: Fair enough. We will watch that, Chair. You know what? Move the thing to Eric Sampson. In other words, the number should not show on the screen. Yes, let us start number 2. Okay, carry on.
Adv Mkhwebane: “Eric Sampson to thank him for money and to ask for another R10 million. Can I ask the following for money: Tony Georgdiades, Kojo Mills, David Ngobeni, Paul Ekon. Request for meetings: Paul Ekon, Steve Ratau, Paul Nkuna, Manne Dipico.”
Adv Mpofu: Right.
Adv Mkhwebane: So this was the evidence which we collated during the investigation.
Adv Mpofu: Alright. Let us stop there. When we deal with what I call the base documents, this becomes a central thing. Chair, for the sake of progress, we will not but we also cannot show all of the emails and all that. I think the role of the emails, if we show one or two, what we are really after is what role did the emails play, rather than the contents per se; so that is the first reason. The reason is that even if we had all the emails, we cannot show them because they are sealed somewhere in Gauteng. These ones we can show because they come from the pleadings and not from the sealed documents. Right. Okay, fine. Can we then go back to paragraph 258, so that we deal with the base documents, which we will use in your testimony.
Adv Mkhwebane: Maybe, SC, before 258, I thought you were still following up. I think this was showing that during the investigation and the fact that the interviewing – we are still going to deal with those. We did interview Ms Nicol, Motlatsi, Chauke, the President.
Adv Mpofu: Mr Venter.
Adv Mkhwebane: Mr Venter, yes. I just want to deal with the involvement of the President in the process, because those were some of the issues when we go through, you will see why we are saying he was aware, because they were saying ‘No, we only invited him to the cocktails’. Actually, even in the letter responding to the Speaker, in fact, responding to us, he was saying ‘No, I was not involved. I did not know anything.’
Adv Mpofu: We will get to that.
Adv Mkhwebane: Yes, that is what we captured in the pleadings.
Adv Mpofu: Okay. Thank you. No, we will get to that and analyse. As I said, really what we are after is your reasoning, and why you came to certain conclusions; whether it was for all the nefarious reasons that are alleged in the charge, or that it was it was not. Okay, so I wanted us to just before we do that, because that goes… that information emanates from what I call the base documents, for lack of a better word. So can we first tell the Committee what those base documents are at 258?
Adv Mkhwebane: “It has already been established, and I hereby confirm that the key documents which will be used in my evidence to rebut the allegations into the charges which emanate from this Bosasa report are: the CR17/Bosasa investigation report; the pleadings in the Constitutional Court appeal, especially my founding affidavit; the Constitutional Court judgment, especially the minority judgment of Chief Justice Mogoeng; various newspaper reports, which detailed information regarding donors and recipients of CR (Cyril Ramaphosa) Funds”, I think this is because the information which we also had in our possession, “the recordings of interviews with some of the key players, and the recent SABC interview making reference to foreign funding to influence the 2017 ANC Conference outcome in favour of President Ramaphosa.”
Adv Mpofu: Right. Okay. Now, with the exception of the last item, because we have already said that anything that happened post the report is really merely for context. Those other five source documents are before the Committee and I am not sure if Thembinkosi finally managed to open the recordings – I know there was some technical problem. But anyway, putting technical problems aside, all those documents are before the Committee?
Adv Mkhwebane: Yes.
Chairperson: Go ahead, Adv Mpofu.
Adv Mpofu: Sorry, I was signalling to Thembinkosi. Alright. Now,let us then come to the evidence that you were leading. Whether you are dealing with the High Court Judgment or the ConCourt (Constitutional Court) Judgment, for the purposes of what I am going to ask you, it does not really matter because both of them made the same finding. The ConCourt confirmed the High Court, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Right. Now, again, without getting into the detail of the specific emails, it seems that the President’s version and that of his CR 17 managers was that the President basically did not know about the activities of the CR 17 Campaign; he was intentionally insulated, what in business we call ‘Chinese walls’. A Chinese Wall had been built between him and the CR17 so that he did not know what was happening on the other side of the wall. Can you just paraphrase maybe, in your own words, what the version was from your interviews with the people that you have just mentioned?
Adv Mkhwebane: Yes. The interviews which were conducted, as I said earlier, we interviewed Donne, Motlatsi, Chauke and they were saying they were the campaign team. When we wrote to the President and met with him, indeed he confirmed that he did not know anything about that. He was told we will be running this process for you, but then we are not going to tell you anything. We will invite you, or he was invited, or people were invited to attend dinners and events for the fundraising events. So that is the information we were given when we interviewed the collective. It is there in the report and I know you might take us there as well, or Members of the Committee.
Adv Mpofu: Alright. No, we can go there. Now, these… If you can still remember, how many times did you have to interview the President.
Adv Mkhwebane: We met twice. The first one was when the letter of, we normally call it, in fact, the first letter, where we inform him about the investigation. We also requested all the evidence which he is having about this matter. So after the letter was drafted, it was then delivered to the President to make sure that the process is or the investigation is conducted in such a way that there is no leakage or compromising the investigation.
Adv Mpofu: Alright. I think the part you want to refer the Committee to in the report will be found at 5.1.10.
Adv Mkhwebane: Yes, the main paragraph is 5.3.10 of the report.
Adv Mpofu: Yes. Bundle E, Item 10. That is the Bosasa Report.
Adv Mkhwebane: In the report, the first meeting was on the 29 January 2019. Yes.
Adv Mpofu: Okay. The first meeting with the President was?
Adv Mkhwebane: 29 January 2019. It is in paragraph 5.3.4 of the report, where it says ‘Issues in dispute’. Yes, paragraph 64.
Adv Mpofu: Alright. I wanted us to start 126.96.36.199.7 so that we do not lose the point you made earlier about, what I call ‘the Chinese Wall’. Can you read that into the record?
Chairperson: you also have it on the screen, in case.
Adv Mkhwebane: Chairperson, I must look for my second (pair of) eyes. That is why I prefer to read here.
Chairperson: Okay, it is fine. We will wait for you.
Adv Mkhwebane: Okay, it says “According to President Ramaphosa, a deliberate decision had been taken by himself, and by those leading the campaign that he would not be involved in fundraising, even as he would address meetings and have a few dinners with potential funders. These meetings and dinners with potential funders were used as occasions where he would have outlined his vision for the ANC in the country.”
Adv Mpofu: Yes. Now, you would agree this is what is at the core of the CR17 issue, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Let us put aside the issue of misleading Parliament and what have you. But as far as the CR17 issue, this was what I called the version, which was the President's version and that of the CR17 managers? I think that is what they are called.
Adv Mkhwebane: Correct.
Adv Mpofu: Right. So that is what we are going to be interrogating, and we need to, again, keep the eye on the ball that we are following your logic as the Public Protector, rather than anything else. Now, this version… In your finding, were you able to accept this version or this ‘defence’ that there was a lack of transparency; or did you reject it? If you did, then we will go to the specifics.
Adv Mkhwebane: This version was unacceptable because I have shown the emails that I have read earlier, because there would be a lot of other information which proved that the President was involved, or he was aware about those donors and funders.
Adv Mpofu: Alright.
Adv Mkhwebane: And to stress again, that by then he was the Deputy President, and that is what we were investigating and what (the) Executive Members Ethics Act says about members of cabinet and as well, Members of Parliament about declaring any donations.
Adv Mpofu: Yes. Okay. So, again I do not want to belabour this point, but just so that there is no debate in anybody's mind. On the President's own version, because we must not portray as if the President said ‘No, no, I do not know what dinners you are talking about’, he had attended and addressed these dinners of donors, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: More importantly, on his own version at these dinners, two things were discussed, broadly speaking; his vision of the ANC and his vision for the country?
Adv Mkhwebane: Correct.
Adv Mpofu: Okay. Alright. Fine, we will then come back to that. Then you can take us to the paragraph that you wanted to highlight on the same being. It was 5.3
Adv Mkhwebane: Okay, it was then the statements or the interviews we conducted with the campaign managers?
Adv Mpofu: Aha.
Adv Mkhwebane: Yes, so it is from 5.3 of the report.
Adv Mpofu: Yes. Good. Good. If I understand it correctly, the first interview you had was with the President. In the spirit of Mail & Guardian, he, it says in the report, allowed you – I do not think you needed his permission but I think for the sake of politeness – to speak to the campaign managers?
Adv Mkhwebane: Yes.
Adv Mpofu: Right. I think that is clear. Now, let us then go to that issue. We will come to the issue of the code. You remember that issue of using the wrong code? We are not there yet. Can you maybe, in your own words, explain to the Committee why you rejected the version? I mean the President could have gone to those dinners and maybe he did not know that after he left these people would have been asked for money. What evidence did you have to refute the version of the President and so called CR17 managers?
Adv Mkhwebane: Maybe let me say, Chairperson, that when we check what happened – what should have happened, and the discrepancy between what happened and what should have happened, and investigating with an open mind; firstly, the letter which was written to the President because I think that South Africa and the world were thinking, ‘Okay, this money was for the son’. But secondly, when the President wrote to the Speaker correcting, he said the money was for his campaign. And it was… Okay, the R500 000 which was then paid. So when the letter was written to the President, the meeting was held with him. Indeed, we engaged… we brought the complaint before him. And that, okay, he even said, ‘I was not involved. My campaign team managers were involved.’ Hence, following the Mail & Guardian advice or case, then it was for the investigators or the engagements between me and the investigator, Mr Mataboge. Okay, we need to subpoena all the campaign managers; we need to subpoena Mr Venter, because there was an affidavit going around of Mr Venter. We need to subpoena the PA to Mr. Watson; we need to subpoena Mr Watson; we need to subpoena the bank statements; we need to subpoena every document, which will assist us in this particular aspect. So it is not just a question of saying, ‘Mr President, you are saying, okay you were not part of the process. Okay, thank you.’ That is it. So we had to, because we have an inquiring mind, we cannot just receive information. I think there is a paragraph in Mail & Guardian which you are still going to take us through. And for the public to understand that if you have an inquiring mind, and you are an investigator, that is what we do as the Public Protector. We are not just receiving a complaint. Go to the department or to an individual and say, ‘There are these allegations’, you respond, okay, we will close the matter. Being a Public Protector and investigating, you must go to the root and to the truth. And it is not only the information, which we listen to, like what the newspaper is saying, and we take it as gospel truth. We need to go beyond or behind the information. So there is a difference between information and evidence. And most of the time, we rely on the evidence. Information, we use it as a lead. In other words, if something is published, and there is this thing, which was before Parliament, and the President has written this and is telling us ‘This is what I said’, then we will have to go deeper and find out. So I think I wanted to give that context before I just say, ‘Yes, I did not believe it’ because it will be as if I went into the investigation with a closed mind. But then we had to go and interview all these people. And the recordings are there, the transcripts are there, where you will see. And the report is very clear why we did not take this information. And why did we not take his version because it was not only the first time where we met. The investigation, we investigated, we had to go through every documentation, and then prepare what we call a Section 7(9) Notice, where we are saying ‘You are implicated. These matters are substantiated. Your version, originally when you responded, we are not considering it, but then here is the evidence which we have. Can you rebut this?’
Adv Mpofu: Yes. No, thank you. I think that is very helpful. That is exactly what, I think, we are trying to do. It is not like we are saying you just woke up with some conclusion. We want to trace the journey from the complaint to the finding, and to the remedial action; and what happens in between is how you got there, which is really what you are charged for. Nobody, I do not think the Committee sees it as its job to say this conclusion is questionable as a conclusion, or… but its job is to find and the courts job, by the way, is to find how did you get there. Whether the conclusion is wrong is not… That is what we lawyers call the difference between an appeal and the review. An appeal is to check whether the outcome is correct, but in a review, that is not what the court is interested in. It does not care whether it is correct or not. It is interested in the journey; ‘How did you get there? Did you break the law in reaching that wrong conclusion or incorrect conclusion?’ Right. Okay, fine. Am I correct then, for the benefit of the Members, that in what I have now called the journey, there were three sign posts. The first one was the President, because after all, that is the person who is accused, correct? Or who is complained against. Sorry, maybe accused is a strong word.
Adv Mkhwebane: Against, yeah. We are not a criminal court.
Adv Mpofu: Then the second sign post is the… You speak to him as the person and he says – it is like someone accuses me or complains against me and then I say ‘No, it was not me. It was my juniors’. Then you have to go to them, right? In the spirit of the Mail & Guardian of following the truth, so to speak. Then the second (third) signpost is the emails. Then that led you to the emails. Those were the three signposts of how you then reached your conclusion, correct?
Adv Mkhwebane: Yes, remember, which I need to put into context, is that when the investigation is ongoing and writing letters, a person responding, interviewing everyone subpoenaing bank statements, subpoenaing any other information, and the inquiring mind.
Adv Mpofu: Section 7(9) Notice.
Adv Mkhwebane: Yes. So the Section 7(9) Notice, as well, is still during investigations. At that particular time you are still receiving information, and that is when you find that there would be evidence which you will get – we are coming to the other reports that we will have to do deal with – at the stage where you need to decide is this critical information to utilise; but since it is critical, you might as well include it so that when the matter is reviewed, they can also see that this is the information you have gone through and in the process. So that is all the evidence which we consider.
Adv Mpofu: Thank you. Yes. And I think that accords with what I think Ms Bawa put to, I think Ms Mvuyana, if I am not mistaken, in the context of the Rogue Unit Report, that if some critical information comes up even two days before you release your report, you would then have to reconsider. You cannot just say ’Well, I am not going to look into this, even though it is critical’, as long as the report has not yet been released, correct?
Adv Mkhwebane: As long as definitely because it is still part of the investigation up until the end of the investigation. Yes, if the information is so critical that you did not even reference or you would want to hear what the other side is saying, definitely, sometimes we will issue a supplementary Section 7(9) or as well, call a meeting and say ‘There is something like this. Can you clarify?’ because that is still part of the investigation.
Adv Mpofu: Yeah. Good. Alright. I think now that is clear, then let us go through all of those stages. Now, the Majority Judgment in the – well the unanimous judgment – High Court and the majority judgment in the Constitutional Court, reviewed and set aside your report, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Right. And just so that, again, there is no confusion, this is not an appeal court, where we are. You are not here to say… It is not like a higher court or forum, or the Constitutional Court; so we accept that the judgment is the judgment.
Adv Mkhwebane: We accept, yes.
Adv Mpofu: Yes, but that is not what this Committee is all about. This Committee is about checking your state of mind as to how you arrived at your conclusions, for better or for worse, but that is what we are ‘inquiring’ into. So let us walk to…
Adv Mkhwebane: Maybe let me clarify this.
Adv Mpofu: Sorry. Yes.
Adv Mkhwebane: I know we will come to it. Yes, the issue of the judgment of the High Court and the judgment of the Constitutional Court based on what it has been said; and indeed, this Committee will not review that. But the fact of the matter is if it is based on wrong facts and if it is based on information which I do not agree with; indeed I will indicate that is not the case. This is what was in my mind or our mind when we were investigating this particular information. So just to prove that the issue of intentionally or grossly in a negligent manner, I conducted the investigations.
Adv Mpofu: Yeah, absolutely. Thank you. Now, I think that in that exchange we had with the Chair and Ms Bawa, that is really where the nub of the issue is. As we said, the drafters of the Rules of Parliament, in their wisdom, decided, for example, that negligence ordinary negligence which we call ‘culpa’ is not enough. So even if it could be found in a particular case that you were negligent in the legal sense, you cannot be impeached for that. The drafters of the Rules decided in their wisdom, that they must put that adjective, that it must be ‘grossly’ negligent for it to constitute an impeachable offence, for reasons Ms Bawa and I will debate when we do the closing remarks. I think that is an important point. Now, with all these tools and people, and interviews and Section 7(9) and audi alteram partem, and this meeting, the first meeting with the President and the second meeting with the President and all that. We then come to… You made certain findings, correct?
Adv Mkhwebane: That is correct. Actually, the findings were in the Section 7(9) Notice.
Adv Mpofu: The provisional findings? Let us call them the…
Adv Mkhwebane: The provisional findings, yes.
Adv Mpofu: The provisional findings, yes. Okay. And those provisional findings then typically we will be given. If I am the person complained against, you give them to me, so that I can criticise them and say ‘No, you should not make those adverse findings to be final’, and you assess that.
Adv Mkhwebane: Yes. I think, during this investigation, what transpired is that, as I said, again, the chief investigator was the one who was investigating this matter. The chief investigator was then in constant communication with me on the evidence, the information they are collating, how to deal with certain information and evidence, and how to analyse. So then when the final drafting and analysis of information, which is done by this investigator, and then being drafted, and then I was receiving drafts on this particular matter, and that is where the issue of okay possibly here you can improve; here you can add more information; here you can go further and interview the following people. So it is that process. It is not a question of just receiving the information and response, drafting and then, boom, it ends there. It is work in progress, which goes through various stages. And when that is also served, the Section 7(9) Notice, the recording which we have here, that is where the President was taken through that – the Section 7(9). Sometimes we just send it to implicated parties but in this particular instance because of the level of the President and because of the closely guarded investigation, where when the Section 7(9) Notice was drafted and completed, the Chief Operations Officer, Ms Baloyi, was then also then invited into my boardroom, where I took her through the draft, in fact, that Section 7(9), and I said ‘You will also accompany us to meet the President but this is the document which we came out with.’ The fact of the matter is that I did not want it to go through all the stages of now it is a submission; this one is receiving it; now this one and copy it and do this. I think it was purely for securing the integrity of the investigation but to protect as well, the person we are investigating to protect any person which we got the information from. So yeah, that is what happened in the investigation.
Chairperson: Thank you, Adv Mkhwebane. We will pause there for ten minutes and take a tea break.
Adv Mpofu: Thanks, Chair.
The Committee adjourned for a ten minute tea break.
Chairperson: We are back from tea. Over to you, Adv Mpofu.
Adv Mpofu: Thank you, Chair. Adv Mkhwebane, I just wanted to clarify one detail, so that we do not leave anybody behind. Remember earlier we spoke about Mr Maimane’s question, the President’s answer, the correction and all that?
Adv Mkhwebane: Correct.
Adv Mpofu: Now, at the centre of this, which I did not clarify – I think for those people who are not familiar with the details – was this R500 000 payment. It was made to an entity called EFG2's account, correct?
Adv Mkhwebane: Correct.
Adv Mpofu: Right. So the correction was not that the R500 000 had not been paid. The correction was that the R500 000 has been made to EFG2, which is an account of the CR17 Campaign, correct?
Adv Mkhwebane: It is correct. In fact, EFG2 was a trust account for a firm of attorneys, which they requested to collect all the donations.
Adv Mpofu: Yes, you are right. It was the vehicle, let us call it, that was used to collect the money?
Adv Mkhwebane: Correct.
Adv Mpofu: Okay, so in simple terms, forget EFG2, ABC or whatever, what had happened is that Bosasa, Mr Watson’s company had paid money into the account or the vehicle that was used for the CR17, which is the campaign of the President?
Adv Mkhwebane: Correct.
Adv Mpofu: Fine. Good. I wanted us to get that out of the way and to simplify it. Now we broke for the tea at the stage where we had established that in following the complaint you had discussed with the President. The President, as part of his version, said ‘No, the people who know about this are so and so’. You spoke to those people. I wanted us to go to those interviews – let us call them follow up interviews, that you then had with those people.
Adv Mkhwebane: Yes, it is page 64 of the report.
Adv Mpofu: Yes, it starts at…
Adv Mkhwebane: Maybe let me clarify that. Mr Venter’s affidavit, which, again, was what disputed by the President, was that he said the money was paid into Mr Andile Ramaphosa’s account. That is when the President corrected it, that it is not Andile’s account. So I think then it shows the journey of the investigation, because we did not just take what the complainant was saying, because this is what the complainant was saying. This is what the complainant said; but during the investigation we uncovered all of the other facts.
Adv Mpofu: Yes. Good enough. Again, in the spirit of simplifying this thing, Mr Venter’s affidavit and Mr Maimane’s initial version was that the money had gone into the son’s business account?
Adv Mkhwebane: Correct.
Adv Mpofu: The President corrected, to say that ‘No’, the money went into the father’s campaign account?
Adv Mkhwebane: Correct.
Adv Mpofu: Alright. Good. Now, we then go to page 64. If you can then summarise without necessarily reading it word for word, what the President told you in your first meeting.
Adv Mkhwebane: So I think, just to clarify for the benefit of Committee Members and the public when they read our report, because when we deal with an issue, like when we receive a complaint, we then assess that particular complaint, which is also done by the assessment committee. And then when it is allocated to an investigator in this instance, because of the sensitivity, I said then the chief investigator should investigate this matter. Then when we receive the complaint, we then collate information, and in our service standards, which we are still going to go through some time, we then say, we should meet with the complainant to understand the complaint. In this instance, it was an issue of clarifying because what the DA leader, Mr Maimane then said ‘This is the complaint, which we have attached in the report. And the complaint deals with this allegation and serving and the fact that the monies have been moving from here to here; possibly there might be issues of money laundering. Then, Mr Shivambu lodged a complaint and was specific to say, ‘Look into this matter also, in terms of the Executive Members Ethics Code; the issue of misleading parliament, the issue of exposing yourself to a risk of a conflict.’ Then under this issue, which I will take the Committee Members through, 5.3, is “whether there is an improper relationship between President Ramaphosa and his family on the one side, and the company called African Global Operations on the other side, due to the nature of the R500 000.00 payment passing through several intermediaries, instead of going straight to being donated to the CR17 Campaign, and raising suspicion of money laundering.” So there were common cause issues. Normally we would say common cause issues are – well, that is what you were doing with Adv Bawa – issues not in dispute; these are issues that are out there that indeed everyone agrees that R500 000 was paid into EFG2 Trust Foundation, by this Mr Venter. This Mr Venter was using Miotto Trading and this Miotto Trading is an account which belonged to Mr Venter’s account. So this Mr Venter was playing the role of being a bookkeeper and stuff like that, for the company. So the issue in dispute where we are going is then where the President, in my meeting with him on the 29 January 2019, I raised this issue of the R500 000 payment into the EFG2 account because according to Mr Venter it belonged to the President’s son. The President then indicated that he was not involved in the fundraising process. Hence, he also took us through the letter he corrected to the Speaker. Then he said that he only got to learn about the alleged payment from one of his advisers, Mr Bejani Chauke, on the 5 September 2018, where Mr Chauke informed him about the rumours that his son, Andile, had received R500 000 from Bosasa or AGO (African Global Operations). So that is then when the President advised that actually he was not involved, and that the information pertaining to the fundraising of the CR 17 Campaign can be sourced from the names of his campaign managers. So having regard to the broader allegations, that is when we then had to meet with all the parties involved. So 5.3.9 of the report, that is where we met with the directors of Edelstein, Faber and Grobler (EFG), who were responsible for the disbursement of the funds in the CR 17. And then we also met then with the President, Nicol, Motlatsi and Bejani. We also met with Andile Ramaphosa. Actually, Mr Andile Ramaphosa and others, we then subpoenaed the affidavit and then we submitted bank statements from FNB and Absa. We also interviewed Mr Venter, Mr Gavin Watson, Ms Natasha (the PA to Mr Watson).
Adv Mpofu: Good.
Adv Mkhwebane: So then, that is the evidence of Mr Motlatsi on 188.8.131.52.
Adv Mpofu: Perfect. Thank you. I think that the picture is clear. But again, I think we need to be patient so that those who are not here can follow some of the things that you and I might take for granted. So this acronym, EFG, which is the account into which the money was paid, as indicated at 5.3.9, was actually an abbreviation of the firm of attorneys that was involved in where the trust account was housed, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: And those attorneys, Chair, the full name is reflected at 5.3.9, which we just saw now. It is Edelstein, Faber and Grobler (EFG).
Adv Mkhwebane: Yes, correct. And actually, then I interviewed the late Mr Faber, who came with, I think, Mr Grobler.
Adv Mpofu: Yes, he was one of the people that you interviewed – the attorney. Okay, good. Alright. Now then, let us go back to where you were. Before we do that, just another mental picture. You know, all of these things, it is not as if they all happened this week and then the other one happened the next week and so on. And I think it is important again to show the timelines. So according to the information here, is it correct that this payment into the EFG account was done in October 2017? Okay, I will help you.
Adv Mkhwebane: We will have to go to that, yes, so that I can be sure of the date.
Adv Mpofu: Yes, yes. In the report you will find…
Adv Bawa: Adv Mpofu, it is paragraph 251.1 of the affidavit.
Adv Mpofu: 251.1, yes. Thank you.
Adv Mkhwebane: In the report because it is up there, it is 184.108.40.206. Yes, that is correct.
Adv Mpofu: Okay, I think I would rather take Adv Bawa’s one, without the 5.3.10.
Adv Mkhwebane: Yeah, Tshepo is having it already.
Adv Mpofu: Alright. You said 253?
Adv Bawa: 251.1. I do not think it is an issue that it is 18 October 2017.
Adv Mpofu: Alright. Yes, thank you. That is the one – just to situate it. So 18, October 2017, that will be on page 610, 251.1. That is when the amount was paid into the EFG Trust Account, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Okay. That is two months before the ANC December Conference at Nasrec, right?
Adv Mkhwebane: Yes, correct.
Adv Mpofu: Okay. Then the Conference happens, whatever, and the money is used. Mr Maimane then raises this question a year later; I think it is November 2018. We will assume that Mr Maimane had his own interactions with Mr Venter or whatever. But he raises the alarm, so to speak. If you go to the report, he raised it on the 6 November, a year and a month later.
Adv Mkhwebane: Correct.
Adv Mpofu: The President answers, and he corrects it a couple of weeks later, and then there is a complaint by the complainants – we have gone through that. You then meet with the President on January 2019?
Adv Mkhwebane: Correct.
Adv Mpofu: Okay, then the rest we will deal with, but just for people to have a mental picture of the sequence of events. Right. So we were at 5.3. You then meet with the campaign managers. Alright, you can take the Committee through, briefly, what emanated from those meetings.
Adv Mkhwebane: Okay. What we did was that we let them subpoena the affidavit of all the campaign’s managers to submit their sworn statements, prior to the interview. Indeed, we met with Mr Motlatsi, who indicated that he was one of the members of the fundraising committee; himself, Bejani and Donne. According to him, he said that they decided early in 2017, to approach donors for the CR17 Campaign, with a clear condition that the donors should not expect any favours in return for their contributions to the CR17 Campaign. So then there was a conscious decision by the committee members as well as an agreement with the President that he should not know the identities of the donors or the amounts they have pledged, which all three of them were saying so. So Mr Motlatsi said that he was the one who approached Mr Gavin Watson, who he worked with or they were together… In fact, he knew him for more than 20 years, and he is one of the people that he identified that he should be approached for this donation of R500 000. So in fact, he met with Mr Watson and Mr Watson offered this R500 000; so that is October indeed, 2017. So the decision was taken by them not to do anything in writing, because we were saying ‘Where are the minutes to prove that this was a project?’ They had no records or documentation for such a project plan. There were no minutes of the meetings, which were kept for this project. So according to him, Mr Bejani was the overall leader of this Campaign, and Nicol was the facilitator. We also asked them… Then, Mr Motlatsi said we asked him ‘How do you know the President?’ and he said ‘No, they were together in the National Union of Mineworker days’, so they knew each other since then. All of them, we asked, how much did they pay – actually, before that, we also asked “Was the President present at those dinners, which had been organised by the Campaign managers for donors?’ They said ‘Yes’ and he would address them, and he would naturally meet and greet the benefactors. So then we asked him “How much was donated?’ or the total amount. He was saying that it is around R200 million.
Adv Mpofu: Who is that?
Adv Mkhwebane: Motlatsi. Then Bejani, we also met him. He also submitted a sworn statement. And indeed, he confirmed that he is the one who alerted the President about the rumour that the R500 000 was paid into Andile Ramaphosa’s account, and he corrected that, especially with what the President answered in Parliament. He indeed confirmed that he, together with Motlatsi and Donne, were part of the campaign managers; they would coordinate and they would various branches with monies, which they collated. So Mr Bejani then also indicated that they did not record the activities of this campaign. And then I indicated in the report as well, that he was not helpful, especially as the leader of this, because he was not forthcoming with information. And then we also interviewed Donne, who was the one who facilitated the initial meetings with the EFG2. So according to her affidavit, she took us through the donation, which was acquired from Mr Gavin Watson. So I think here, you will see as well, for now, we were focusing on this R500 000 which was donated towards the CR17 Campaign. So she also then confirmed that there were these fundraising dinners and that she also alerted the President about the inaccuracy of his response in Parliament. Hence, they corrected that information. So we asked her how you know the President. She also confirmed that they were together or she worked for sometime at Shanduka. And then she also indicated that it was agreed that the identity of the donors and the amounts pledged should not be revealed to the President. And further that she also confirmed that it was around R200 million which was collected from the Campaign. And they also agreed that this is what was going to happen. So we then mentioned in paragraph 220.127.116.11, I think you can note that paragraph after we deal with all the people we have interviewed because this is the information which we are bringing in that “According to the emails, invitations and instructions, it confirms that the President was constantly informed of the activities of the campaign by the campaign managers whereupon his advice and approval on specific matters would from time to time be sought. So, this will then when we deal with the emails again, it will show why we commented like this. So then Mr Andile Ramaphosa, we were asking about his relationship with this AGO and confirming the mandate or contract that he had with Bosasa. They had an advisory mandate and anti-bribery and corruption policy signed between Blue Crane, his company and AGO in December 2017. So Mr Shivambu’s complaint was specifically focusing on Mr Andile Ramaphosa’s company, and how the President responded; hence I am saying that was the focus of our investigation. And in the report we have attached that agreement so that it can be clear that that after was investigated on and the evidence we have collated, as far as this matter is concerned.
Adv Mpofu: Okay. Can we, the people who were not, shall we call them, the main players; I do not want us to spend too much time on them. So Mr Andile Ramaphosa, you had an interview with him and it is summarised there, correct?
Adv Mkhwebane: We did not. We could not get a hold of him.
Adv Mpofu: Affidavit?
Adv Mkhwebane: At least he finally submitted his sworn statement, yes.
Adv Mpofu: Correct. The late Mr Watson, you had an interview with him, correct?
Adv Mkhwebane: We did, indeed, interview Mr Watson. The recording was shared with the Committee, as well. He indeed confirmed that Motlatsi approached him and that he donated to CR17. As well, he was asked about donating to the NDZ individual – the campaign of NDZ, which he confirmed at the stage when we were interviewing him.
Adv Mpofu: And just to fast forward. That confirmation…
Adv Mkhwebane: And he said that he attended the dinner, not all the dinner functions, but he did attend the dinner and indeed, Mr President Ramaphosa was present at the dinner which he attended.
Adv Mpofu: Yes. Okay, at least we know that in at least one of the dinners he was there in the presence of the President.
Adv Mkhwebane: Yes.
Adv Mpofu: The other issue, which issue, which I wanted to deal with, just in passing, since you have mentioned it, is that there is an allegation or proposal – yeah, a proposal that he should be charged in terms of Section 11 of the Public Protector Act, and that had to do with this NDZ issue you are talking about.
Adv Mkhwebane: Correct.
Adv Mpofu: Under oath, at one time, he said that he had donated. Under oath, at another time he said that he did not?
Adv Mkhwebane: Yes, because remember under Section 7(9) there is where it says the implicated parties might request to interview or request further clarity from the people we have interviewed. And then I then allowed the President to… actually, at the discretion of the Public Protector on how you will be doing that. So I then requested the attorneys of Mr Gavin Watson, to contact their clients. And we then said the President should send questions they would want clarity on. Indeed, we sent it to the attendees of Mr Watson. That is when he submitted an affidavit again; answering those questions, but now saying ‘No’ he never donated to the NDZ campaign.
Adv Mpofu: Right. Again, I know that South Africans know these things, but this is an inquiry, somebody 100 years later might be reading this and not know what NDZ is. That was a reference to the other campaign of Dr Nkosazana Dlamini-Zuma. NDZ are her initials, correct?
Adv Mkhwebane: That is correct. Again, that shows you the criticalness of saying information under oath, and then again, coming back and retracting that information. So hence, that case was opened.
Adv Mpofu: Yes.
Adv Mkhwebane: And the importance of an affidavit which he originally submitted contradicting the affidavit, which now he is responding to the President.
Adv Mpofu: Yes, okay. Well, let us not go there for now. For the sake of completion, we now know that Mr Watson passed away. Then again, you had an interview with Ms Olivier, that you mentioned earlier, correct?
Adv Mkhwebane: That is correct. That is the PA to the late Mr Watson.
Adv Mpofu: And then of course, as you have said, you had an interview with Mr Faber, Barry Faber, who was part of the EFG connection?
Adv Mkhwebane: That is correct. He is the one who told me that he was approached by Ms Nicol to open a trust account dedicated to the campaign, which he did in compliance with the legal requirements, because we had to find out how you did that; were you compliant as well yourselves? And did you were you audited by the Law Society, which they confirmed that they followed all the processes.
Adv Mpofu: Right. Okay, good. That is the landscape. Now this is a point that I had come to earlier, and you will see that I am eager to get there, so that we can start evaluating the logic in your report. So to preface that, am I correct that what you then had was what we call the version? So the version of all these people, the managers, the President? ‘No, there was a deliberate plan that he must not know’ and so on, and so on. So let us call that the version. And then you subsequently got to acquire confirmed evidence contained in the emails. You are now the ‘judge’ because these two things, at least at face value, look like they are contradicting each other. You then had to assess, that is your job, to assess the evidence, as you said earlier, correct?
Adv Mkhwebane: Yes, the investigator; but yes, under my direction.
Adv Mpofu: When I say ‘you’ now, I mean plural, Public Protector. Okay, good.
Adv Mkhwebane: Besides the email, SC and Chairperson, remember the evidence of one of the people who donated and who was part of one of the dinners.
Adv Mpofu: At least you also have a warm body, as it were. Okay. Now the process of now assessing the evidence – I just want to make this remark. You have seen, even in this Committee, and I will use an example of what transpired, I think it was with Mr Mataboge. This is a core difference between the Majority Judgment and the Minority Judgment. I will use this example: do you remember that Mr Mataboge gave evidence about whether or not he had seen, not necessarily read, the IGI (Inspector-General of Intelligence) Report?
Adv Mkhwebane: Correct.
Adv Mpofu: Yes. He was unsure and so on. Adv Bawa, at some stage, showed him an email where he was copied, where reference was made to that Report, correct?
Adv Mkhwebane: Correct.
Adv Mpofu: Then he said ‘Oh, yeah. Now that you bring it to my attention, I saw the thing, but I did not read it’, something like that. I am not going into Mr Mataboge’s evidence now. I am just saying that as a matter of testing evidence, what Adv Bawa was doing is acceptable. In other words, if I come here and I say ‘I do not know Mr Shabalala. I have never spoken to him. In fact, I do not even know who he is.’ You are entitled to say ‘Here, you sent him an email yesterday’ and so on. And then I might say ‘Oh, I did not know it was that, Mr Shabalala’ or whatever it is. So that is one of the central issues in this case as to whether that method of logic is valid – of hearing a version from somebody and when you have the objective evidence of an email that is not denied, then you can test it. That is more or less the methodology that you were using, correct?
Adv Mkhwebane: That is the methodology. Actually, in what happened; what should have happened; the discrepancy between what happened; and what should have happened and; what evidence you have in front of you. So basically most of the time that is our daily operations.
Adv Mpofu: Yeah, good. Alright. Let us then go to some of the monies that exchanged hands here.
Adv Mkhwebane: I think we can also say that the EFG2, they confirmed that after Ms Nicol requested them to open the account; she is the one who used to call them or arrange with them how to disburse the monies. So since we were following this R500 000, which was one of the matters which we had to look into, then we had to subpoena the bank statements.
Adv Mpofu: Aha. Good. This is now a new source of evidence, as it were? You have the testimonies of the people, the emails and now you have the bank statements?
Adv Mkhwebane: Correct.
Adv Mpofu: Okay. In the spirit of following the money or following the evidence, ala Mail & Guardian, correct?
Adv Mkhwebane: Mail & Guardian, yes.
Adv Mpofu: Mail & Guardian case. Alright. Now, let us then go to some of the recipients or beneficiaries, I think that is what you call them, of the amounts. If you go to 18.104.22.168, page 82 of the report. Okay, before we get to that list of monies, can we just round this up? We left your statement at, after you read out those names at paragraph 260. Go a little bit up a little bit. Okay, that is fine. This is just for Members to know that this paragraph follows the one where we had left the statement. Okay? This is just two paragraphs that I want you to go through, so that we do not come back to the contents of the emails. This is, if you like a cross-section of the emails, and which indicated to you that the President knew what was going on. We will come to that later. Can you place those two paragraphs on the record?
Adv Mkhwebane: “There was another email which was further evidence that showed on the 12 November 2017, Ms Nicol had sent an email to the President stating that Stavros says the following will fund if we had a small cocktail party. I need to discuss diary with you”. And then 261, “During the investigation, there was a further uncontested email from President Ramaphosa to a person named Donald, which stated the following: ‘Hi, Donald, thank you for assisting with the internet banking the other day. Could you kindly transfer an amount?’ “
Adv Mpofu: Sorry. There is what? Take it up. Yes, right there.
Adv Mkhwebane: “ ‘Could you kindly transfer an amount of R20 million from the money market investment that was left after we shifted R75 million from the money market select to Ria Tenda Trust, Standard Bank Account. I shall call you to confirm all this. Cyril’ “.
Adv Mpofu: Yes. Okay, I am trying to be creative here, Chair. Okay, can you move it up, so that the account number must not show?
Adv Mkhwebane: Yeah, it does not show.
Adv Mpofu: Yes, that is perfect. Well done, Tshepo. Apart from the sentence that we have, for obvious reasons, not taken out, the last is Cyril, meaning that is the sender of the email, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Good. Alright. Now we can go to…
Adv Mkhwebane: 262.
Adv Mpofu: Yes, 262, so that… There is no account number there, it is just the entities, correct?
Adv Mkhwebane: That is correct. “The investigation revealed that several accounts were used to mobilise funds for the CR17 Campaign. This included Ria Tenda Trust, Edelstein Faber Grobler Incorporated and a company called Linked Environmental Services”. And then 263 “Some of the beneficiaries of the donations were senior members of the ANC and officials or functionalities of the CR 17 campaign, which included Ms Marion Sparg, Mr Mxolisi Duma, Ms Thembi Siweya, and Ms Khumbudzo Ntshaveni.” Yes. So 264. “Millions of Rands in excess of R8 million were used to fund only hotel accommodation for several delegates who attended the ANC National Conference in December 2017 in and around Johannesburg.”
Adv Mpofu: Okay, just pause there. Again, it is just my interposing, so that people follow the sequence. Now we have established that R500 000 was paid in October 2017. And then the email about the small cocktail party, the people who said they will fund only if the President comes to a small cocktail party; that is in November?
Adv Mkhwebane: That is correct.
Adv Mpofu: Okay, that is now a month before the Conference.
Adv Mkhwebane: I think it should be clear that we were following the R500 000.
Adv Mpofu: Yes, yes.
Adv Mkhwebane: Unfortunately then when we analysed the evidence then we had to uncover something like this.
Adv Mpofu: All this. So it got bigger and bigger? Alright. Fair enough. I just wanted to situate the sequence; it is October and November. The paragraph that you have just read now, talking about paying money for delegates, these are now delegates to the ANC Conference. According to that, this is now December 2017?
Adv Mkhwebane: Correct.
Adv Mpofu: Okay, that is fine. It makes sense because we know that the Conference was in December 2017. It says that R8 million was used to fund accommodation for the delegates. We do not know what kind of accommodation it was. It was either very posh accommodation or many people; whichever it is. The figure was R8 million, right?
Adv Mkhwebane: That is correct. Remember, the bank statements were showing that. It was also confirmed by Chauke when we were interviewing him. He was saying some money was used for accommodation and all of that.
Adv Mpofu: Yeah. Alright. 265?
Adv Mkhwebane: “Very economic players in the South African economy paid millions of Rands into the CR17 Campaign raising reasonable suspicion that they were buying influence. In turn and from those funds several officials and/or functionaries of the CR17 Campaign received large amounts of money.” We analysed bank statements and you could see it moved from where to where, and how.
Adv Mpofu: Alright. Then 266?
Adv Mkhwebane: “I pause here and state that the records which include emails and bank records which I intend to rely on as evidence were sealed by the High Court in order to prevent them from being made public.” That was done.
Adv Mpofu: That is what I was mentioning earlier, so those bank statements, bank records and so on, you saw them before they were sealed, correct?
Adv Mkhwebane: Yes.
Adv Mpofu: Analysed?
Adv Mkhwebane: Yes. After we issued the report.
Adv Mpofu: Alright. 267?
Adv Mkhwebane: “Over and above showing how the money was moved around, the sealed records revealed that as false the version that the President was ignorant of the identity of the donors of the CR17 Campaign”. When we go to the Constitutional Court Judgment, because we availed all the information to the Constitutional Court.
Adv Mpofu: We are now getting closer to what I call ‘observation’. Before we do that, just to round off the previous issue. Go to Bundle H, 31.7.1 and 31.7.2.
Adv Bawa: Chair?
Chairperson: Adv Bawa?
Adv Bawa: This appears to be a media report. It is hearsay, so I am checking to the extent Adv Mpofu is seeking to read out media reports as a point to shift the script of what was before the Public Protector, the report and the affidavits. I have some difficulty on the reliance placed on media reports.
Chairperson: Okay, thank you. Adv Mpofu?
Adv Mpofu: Thank you. No, Chair, if you allow this, I will tell you what the purpose is. The purpose is, as I said, we cannot use the evidence that is sealed, for obvious reasons. I am not using the newspaper report for whatever it was reporting. Let us say the newspaper report was from yesterday. And I have said to you earlier that whatever would have happened yesterday, would then not feature in what we are analysing. But I am using it for a different purpose, which is to test the evidence that it was at the disposal of this Witness, at the relevant time; not now. The fact that it came out yesterday or whatever is not relevant. That is number one. Number two, I am not using it to test the veracity of the newspaper report, which is where the hearsay rule would apply. It is just to reference the fact that… because we are busy here in this Inquiry, inquiring into what factors and what evidence was playing in the Public Protector's mind for her to get to the conclusions that are before this Committee. So that is the only purpose. It is (for) a limited purpose. Thank you, Chair.
Chairperson: Okay, back to you, Adv Bawa.
Adv Bawa: Chair, the report comes out in July 2019, and this media article is written August 2019. So I have difficulty with firstly, the hearsay nature of the media report, the slant that is put on media reports, which we know one can go and dig and find media reports which are going to tell you, depending on how the author writes it. And thirdly, the Public Protector can tell us what she had in her mind at the time, without resorting to the hearsay evidence of a media report.
Chairperson: Yeah, okay. I hear you, Adv Bawa. Adv Mpofu?
Adv Mpofu: Chair, well, I do not want to preempt. I will only talk if you are not going to allow me to ask the question.
Chairperson: You can ask the question.
Adv Mpofu: Okay, thank you. Thank you. You heard that we do need to be careful, Adv Bawa is right. Again, just so that we disclaim any ownership of the media report. We are not here to verify the truthfulness. The journalist can say whatever he or she said in the article, that is not what we want the Committee to adopt whatever the journalist was saying. Number two, Adv Bawa is also right that technically if the report came even a day after the report, then obviously that report did not inform your report; that is just a matter of logic. Do you understand what I am saying? If the newspaper report came even one day after the PP’s report, then obviously it did not play any part in the report; you accept that?
Adv Mkhwebane: Yes, it is correct. Indeed, we do not normally rely on what the media publishes, because as I said, information in the media is information. We go deeper and investigate. But if you can hear what I said earlier, somewhere where I mentioned that before the ceiling, after we issued the report, there were publications of some of the information, which I have read here, especially the names and everything, which I can confirm that, indeed, it was published before the ceiling, and indeed, it is evidence which was before me.
Adv Mpofu: Before you. That is all.
Adv Mkhwebane: Yes.
Adv Mpofu: Yeah, I am assisting the Chair, to say that when he allows me to ask, it is for that limited purpose, or assuring Adv Bawa, rather than assisting the Chair. Okay, thank you.
Chairperson: Just pause, Adv Mpofu. Adv Bawa?
Adv Bawa: (Inaudible as she did not switch on her microphone).
Adv Mpofu: Chair, no, it is nothing of the sort. This is frustrating. We are trying to get into the truth here, but in doing so, we cannot use the Committee, as it were, to unseal documents that have been sealed. The Witness has made it clear that she had certain information in front of her and that information was published in these articles which she is aware of long before the ceiling. That is really the only purpose of this. Otherwise, I can just ask her to read it out herself or I can read it and ask and then she will confirm; it is the same thing. This is just a facilitation of evidence and it has nothing to do with the truth of the newspaper report; it is the existence. Adv Bawa knows that there is a difference between invoking a newspaper report for the truth of its contents and the existence, mere existence thereof. There is a big difference. The hearsay rule does not apply if you only want to establish that the report was made, not that it is true.
Chairperson: It is important that we stick to what you said at the beginning of what we are not doing here. I will give Adv Bawa, before I go to the Public Protector.
Adv Bawa: Chair, one of the reasons for the ceiling was the ambit of the Public Protector’s investigation and what the court eventually held was the case and confirmed by the Constitutional Court subsequently, as to what was permissible to be investigated under EMEA (Executive Members Ethics Act) and the fact that party political funding did not fall within that ambit. The number of the allegations in this media article does go to the expansive funding that went into the CR17 Fund as opposed to what was actually being investigated by the Public Protector. Over and above that, I do not agree with Adv Mpofu’s position because he is going to rely on the contents of the media article.
Chairperson: Just a summary of what your concern and intervention is (based) on?
Adv Bawa: Chair, my concern is that the media article was not one of the source documents that was before the Public Protector at the time of her report. It does not pertain specifically to the subject of the report, and it is not on the basis of the misconduct and incompetence allegations that are before this Committee. So there is nothing in this article that relates to what is before the subject matter of this Committee.
Chairperson: Okay, we will have to find a very proper and creative way, Adv Mpofu because I do hear what Adv Bawa is placing, which is very important. I am going to try and lean on you to…
Adv Mpofu: Yes, so do I. I will find a creative way of doing it, Chair, that is not going to stray into that issue. But one thing I must make clear, is that I am not relying on the veracity of the newspaper report, number one. Number two, we are busy inquiring into what was before the Public Protector, and I specifically have disavowed any… Remember the Public Protector had access to these sealed documents, Chair, so we could have said ‘Oh, well, here it is’ and put it up in the Public Protector’s statement, but that would be wrong. We do not want to do that. All that we are doing now is to say ‘Public Protector, in reaching these conclusions for which you are now being impeached, what information was at your disposal.’ That is really the only purpose and I thought your ruling made it clear. It is the only limited purpose of leading this evidence. Anybody who is interested in the truth and in what objectively was in fact in front of the Public Protector. I do not know who is being protected now. I think let us protect the process.
Chairperson: Nobody is being protected; we are protecting our process as a Committee, so that we do not put personalities into it: it is our process. That is a process that can be easily reviewed if we do not do it properly. You were going to interact?
Adv Mkhwebane: Can I speak?
Adv Mpofu: Yes, I think the Chair has given you the platform.
Adv Mkhwebane: Yes. Chairperson and Members of the Committee, I think I will ask Adv Mpofu again to read the charge which I am facing regarding this matter. Remember, as the Committee, you said it, you represent members of the public. And the public as well, they are listening; those who are listening, and they want to know the truth. And this is for me, a matter of life and death, because this is about me. I am the one who is sitting in this stand. I am being accused of gross negligence. I am being accused of targeting people. I am being accused of misconduct. And I think if you go back to the charge, Chairperson, this is what I am trying to prove: the evidence which was before me…
Chairperson: This is now 11.3 and 11.4? That is the charge “Patiently wrong finding on money laundering; doubting of bona fides of the President without reason”?
Adv Mkhwebane: That is correct.
Adv Mkhwebane: Remember yesterday, I also said, I have been subjected to this persecution, false reporting – yes, the very same thing that you are reading now, because other people take it as is. Now, Adv Bawa comes and says that the court found that… That is what the court is saying and again, those are the facts I do not agree with, because it is in the report. Hence, I said I will deal with the report, I will deal with… At the time, Chairperson, what I was dealing with. Hence, I am saying the President was the Deputy President of the country. The President was subjected to the Executive Members Ethics Act, and the President was a Member of Parliament. There is a legislation we have mentioned there where we were requesting the Speaker to do something, because the President and any of you, even if it is 350, you need to declare to Parliament. The investigation at that time was purely based on that. Hence, I am saying now that on that factual issue, unfortunately, the court got it wrong, that I was investigating the private ANC funding and everything. But even the President himself said to the Speaker, that was relating to the ANC campaign, and being a leader of the country, which is being the president. So what I was trying to show is that the untouchables, some of them being in the big business, which yes, the information has been sealed, and hence, I am saying as again, the process which was followed in sealing them, which we never agreed with, when we were litigating because it was just sealed in chambers. It was never an issue where both we submit and both it is argued, and we see, okay, which information is critical for me to defend myself. So the information which is out there not to say I relied on the media – that definitely we do not do. What is there in the media after the report is issued, I am confirming, or I am trying to prove here that I am being persecuted, or these untouchables who have donated and who are then also then protected, but my life is in danger here, well, danger in the sense that indeed it is a matter of life and death, because this is about my future. So the media article, I was going to confirm that, indeed, the following people were the people who donated or who benefited because of the evidence, which was before me. It is not because I am relying on the media thing, but I am saying what is published, the information indeed is correct. So it was purely that.
Chairperson: Okay, thank you, Public Protector. I see the hand of Hon Mileham?
Mr K Mileham (DA): Thank you, Chairperson. Chairperson, I just want to correct a factual matter, and that is that the President is not a Member of Parliament in terms of Section 87 of the Constitution, that when a member is elected as the president, he ceases to be a Member of Parliament at that time. Thank you, Chair.
Adv Mpofu: Chair?
Chairperson: No, wait, wait. Thanks for that, Hon Mileham. That would be correct, but if you situate back, which is her argument, that this was at the time. She would have done that before and said that at the time he was a Deputy President, and that time he was a Member of Parliament. Just to correct that. Hon Nqola, I see your hand.
Mr X Nqola (ANC): No, Chair, I just want to confirm what you have just said... The PP said the President was the Deputy President and a Member of Parliament. So I just wanted to confirm what you have just said.
Chairperson: Alright, thank you. Adv Bawa?
Adv Bawa: Chair, Adv Mpofu has said that he is not going to rely on the contents of the article but the Public Protector has now said she is relying on the contents of the article; that she does want to refer to the names and who benefited and who did not. That is different from what Adv Mpofu said when he said he was not relying on that.
Chairperson: Sure. Let us clear that up, Adv Mpofu.
Adv Mpofu: Yeah. Chair, really? I never said that. I said that I am not going to rely on the truthfulness. The hearsay rule is about veracity, you know that; that is the basic law of evidence, okay? So if I say, there was an article yesterday, which says the Chairperson beat somebody up in the Committee, I can adduce that evidence for two purposes. If I am adducing it to show that the Chairperson, indeed, beat up somebody, then it is hearsay. But I am adducing it for the purposes of showing you that there is an article that says that; whether it is true or not is a different matter. Do you understand the difference? So the hearsay rule does not apply in the first instance, and that is what I meant when I said ‘Of course I am not going to rely on…’. The journalists might have their own spin and what have you: I am not interested in that. All I want to say is that there were these articles, which happened as the Witness has actually resolved this, by saying those articles were published before the ceiling even happened. So assume there was no ceiling that had happened, then this objection would not be coming. So all we want to do is to say, these articles came out long before the High Court got involved in this. And this part of the information. In fact, we have already done that in paragraph 263, which refers to Mr Mxolisi Dukwana, and what have you. That is the information that was before the Public Protector. We are simply adding other information, which we are just for reference purposes using those articles. But it is not going to change. It does not change the fact that the articles are there. I mean, the absurdity of this situation, Chair, is that these are articles that are in the public domain, but they must be ‘sealed’ here in this Committee. That is just ridiculous. If they are in the public domain, they are in the public domain, right now, as we speak. So why would we want to run away from them simply because in another context they form part of sealed information?
Chairperson: It was not my understanding that the suggestion was that they should be sealed here, I did not get Adv Bawa to say that. The key issue is, which is important for me as a Chair of the committee that in the work we are doing in trying to get to the bottom of issues and the truth – and based on what you said at the very beginning – we are not going to use this space to ventilate what would have been sealed. I do not even know what would be sealed. Let us not utilise the space of this Committee to encroach on those issues. It is very important.
Adv Mpofu: I agree. Chair?
Chairperson: Before I get back to you. Adv Bawa?
Adv Bawa: Chair, judging from where your ruling, essentially, on this is, perhaps what we need to do is maybe two things; is link it to which provisions or paragraphs in the report this evidence leads to and where Adv Mpofu is then going with this.
Adv Mpofu: Alright. You know…
Chairperson: Does that help, Adv Mpofu?
Adv Mpofu: Yeah, it does, Chair. In fact, let me do it like this, to assist.
Chairperson: You can switch it on again. My apology.
Adv Mkhwebane: I need to correct something, Chairperson.
Adv Mkhwebane: The Evidence Leader is saying I said… I never said that I relied on those media articles. I was just saying, the evidence which was before me, and then the report was published, and before the sealing of the evidence, that is what I am trying to confirm, and to prove a point that I am dealing with the untouchables and why I would want us to confirm that. This is the evidence which was before me, because all those three bank accounts and how the money went through. And one of the people you will be showing now or who has the benefactor, is the sole director of Ria Tenda, which is in the report, but maybe Adv Mpofu will show you.
Adv Mpofu: No, I think, Chair…
Chairperson: Thank you, Adv Mpofu. You start here and then you…
Adv Mpofu: Yes, yes. No, in fact, I start with you, Chair, because I think you were proposing some compromise. I think sometimes they say a pause resolves a problem, especially when it is non-existent. So this is what I am going to do, Chair, in line with what Adv Bawa is suggesting, I am going to go into the information that is in the report. And then after lunch, maybe after she has had lunch maybe me and her will discuss it. In other words, let us assume that there are three types of information, Chair. There is the information that we have read in that paragraph, and then there is information that is in the report; none of that is controversial.
Chairperson: Just pause. Hon Joemat?
Adv Mpofu: People are having lunch already.
Chairperson: No. Hon Joemat, please keep your place? I see that there is traffic with you. Thank you. Keep to your space, as we are about to go to lunch soon. Over to you, Adv Mpofu.
Adv Mpofu: Thank you, Chair. I was saying that we have three types of information. There is the paragraph that I read and the information in the report, those have no controversy. The only controversy is around the third type, so I am going to park it and we will deal with it after lunch. What I am going to do now is to deal with the information that is not controversial and that is in the…
Chairperson: Okay, go ahead. Thank you. I am also trying to protect you from Hon Joemat.
Adv Mpofu: Yes, please, Chair. That is why I am sitting like this. No, no, it is okay. Public Protector, I do not want to waste the time of the Committee because later I will be making requests from the Chair, seeing that we are travelling today, so I want to be in his good books. This is what I am going to do, I am going to take you some of the… Adv Bawa says where in the report so let us go to the report. If there is anything outstanding, we will then go to the…
Adv Bawa: Chair?
Adv Mpofu: Can we go to… Oh, sorry.
Chairperson: Yes, Adv Bawa?
Adv Bawa: Just maybe to assist, Adv Mpofu. I know what you are trying to do, you are trying to break down the amounts and stuff in the report. Maybe I am preempting?
Adv Mpofu: Yeah, we will discuss it over lunch.
Chairperson: Okay, proceed.
Adv Mpofu: Can we go to page 82 of the report? Paragraph 22.214.171.124, PP. Okay, let us use the route of the report. So the heading there says “The evidence on the disbursements of funds from EFG2 Trust Account to several beneficiaries, including Ria Tenda Trust, Linked Environmental Services and the Cyril Ramaphosa Foundation.”
Adv Mkhwebane: Correct.
Adv Mpofu: Right. So can we go through those disbursements, which is the information that is in front of you? Let us not read the first paragraph, because we are almost at lunch now. So I will paraphrase. That is the information that you subpoenaed from EFG2?
Adv Mkhwebane: Yes, the bank records.
Adv Mpofu: The bank records? Right. Okay, and the easy one that we have spoken about all morning, is 126.96.36.199, which is the R500 000 we have spoken about?
Adv Mkhwebane: Correct. That was transferred from Watson’s personal account. Actually, the R3 000 000 was also confusing because it was R3 000 000 into Miotto Trading and then eventually into the EFG2 Trust Account was only R500 000. So the other R2.5 million was for other payments.
Adv Mpofu: Yes.
Adv Mkhwebane: Not to the donations but their operations as Bosasa.
Adv Mpofu: Right. Yes, I remember that. Maybe let us start reading from 188.8.131.52. We might not be able to read all of this, but we will continue after lunch. Can you read that out?
Adv Mkhwebane: “I can also confirm that large sums of money were transferred by various benefactors into EFG2 Trust Account for the CR17 Campaign, from where it was dispersed by the attorneys to several beneficiaries, including Ria Tenda Trust, Linked Environmental Services and Cyril Ramaphosa Foundation, to name a few.”
Adv Mpofu. Right. Now, we then get to the…
Adv Mkhwebane: Maybe before we get to that, I think even in the report, we will find it, just for Hon Mileham’s benefit, where we are specifically clear that we are investigating the President as the Deputy President by then. Hence I said I do not agree with the facts which were portrayed in court or in the court judgment. Thanks.
Adv Mpofu: Yes. No, I think even Hon Mileham understands that now. I said somewhere in the morning, maybe he was not here yet, was that when I say ‘the President’ I just mean the President, today, like President Ramaphosa, but the report was about him as Deputy President. Otherwise we will all get confused. Now, we have to remember to call him Deputy President or President. I think everyone understands that.
Adv Mkhwebane: Correct.
Adv Mpofu: Thank you. Alright. In fact, even in the judgment they call him the President, but it is on this understanding. Now, the next thing is if you can go through those big figures. I hope you do not have that problem of the former President.
Adv Mkhwebane: I will just read the first three. “From the evidence received by my office an amount of R 191 482 227.43 was deposited into this EFG2 Absa Trust Account, between 6 December 2016 and 1 January 2018.” So it was almost a period of two years, or one year and some months. “The R190 108 227 was transferred out of this account in the same period.” So it was a very complicated financial analysis process, so having a lawyer investigating the matter was difficult for us because all the information... I mean this R190 million who were paid for that. So we just summarised key issues.
Adv Mpofu: Yes, fair enough. In other words, you did what we call bush accounting.
Adv Mkhwebane: Definitely.
Adv Mpofu: It looks like the people who have problems are us lawyers and presidents, because even the current President is struggling with the figures. Alright. In any event, let us not get into that whole list, let us use that one as a model of the point you are making, so that we can break for lunch. You said that there was an amount that came in – let us call it that for those of us who are not accountants – of about R191 million. Then it is disbursed and those disbursements are almost around the same figure, another R190 million, give or take a few Rands and cents.
Adv Mkhwebane: Correct.
Adv Mpofu: And you were able… This is the worst thing when you study accounting, when the figures do not actually balance. But roughly you could see this is the money that came in and the money that came out?
Adv Mkhwebane: Okay. Yes.
Adv Mpofu: Alright, good.
Adv Mkhwebane: And the next paragraph?
Adv Mpofu: The next paragraph, then that is an amount of R190 million. The next one?
Adv Mkhwebane: Then the next one “The evidence from bank records, again, reflect that an amount of R388 544 349.34 was deposited into Standard Bank, South Africa, of Ria Tenda Trust Account, between 1 January 2017 and 20 February 2019”, so it is a period of two years almost. And then from that almost R388 518 464.55 was transferred out of it in the same period.
Adv Mpofu: Yes. Can I ask, with the permission of the Chair, you do not have to read those Rands and cents at the end. We all understand that you are lawyers, and your figures did not balance to the last cent. So you can say R388 million, and we just move.
Adv Mkhwebane: Okay.
Chairperson: He is interested in the millions.
Adv Mpofu: Yes.
Adv Mkhwebane: Yes, so that is what we discovered. Then the next one’s records also reflect that there was R441 million which was deposited into the FNB Account of Linked Environmental Services, between 15 December 2016 and 13 February 2019. And during the same period and amount of R441 million was transferred out of this account during the same period.
Adv Mpofu: Okay, sorry. Next one?
Adv Mkhwebane: Then there was an amount of R335 million that was transferred from Linked Environmental Services FNB account.
Chairperson: R335 000?
Adv Mkhwebane: R335 000 or million?
Adv Mkhwebane: You see now.
Adv Mpofu: Sorry. Which province are you from?
Adv Mkhwebane: From Mpumalanga.
Adv Mpofu: In Mpumalanga they can do these things. Alright, I think it is only Adv Shabalala.
Adv Mkhwebane: KZN.
Adv Mpofu: Alright. We are going to assume that the comma is after the 738.
Adv Mkhwebane: Yes.
Adv Mpofu: Let us say it is R335 000. I think the Chair is right. Okay, next one?
Adv Mkhwebane: “From Linked Environmental Services into the Cyril Ramaphosa Foundation between 20 July 2017 and 26 March 2018.”
Adv Mpofu: Right. And the last one?
Adv Mkhwebane: The last one was “Out of all the donations received for the campaign. Records reflect that there were three single largest donations of R80 million on the 9 March 2017, R39 million on the 29 September 2017 and R51 million on the same date into EFG2 Absa Trust Account.” And that came from the same donor.
Adv Mpofu: Alright. Then the punch line from which we will take this when we come back from lunch, is at 184.108.40.206. If you can read that into the record?
Adv Mkhwebane: “In conclusion, on the above revelations relating to exchanges of large sums of money, some of which were received from private companies, I wish to express my preliminary view that such a scenario, when looked at carefully creates a situation of the risk of some sort of state capture by those donating this monies to the Campaign.”
Adv Mpofu: Right, so that is your finding, having done all the analysis and the accounting and moving the money from this one to the other. Sorry, Chair, just for the sake of completion, that language of something ‘that creates a situation of the risk of some sort of state capture’ or conflict or some wrongdoing or whatever, mirrors the prohibition that is placed on members of the cabinet in Section 96 of the Constitution? We can start from there after lunch.
Adv Mkhwebane: That is correct, because when we go to the legal framework, and the applicability of EMEA and Section 96, that is what we were basing our findings on.
Adv Mpofu: Thank you. Okay, now I am stretching my luck. You can confirm that, I think in the Nkandla Judgment, Chief Justice Mogoeng Mogoeng had said that what is prohibited is not so much that the risk must materialise but the risk of such a conflict is sufficient to breach Section 96 on the part in that case of the former President Zuma, correct?
Adv Mkhwebane: That is correct. Actually, it is how even the Executive Members Ethics Act is crafted. You just need to… You should not expose yourself to the risk, even if it does not materialise. You should just stay away.
Adv Mpofu: Okay. Thank you, Chair. We will start from there.
Chairperson: Okay, thank you. We will take lunch for the next 45 minutes and be back at 14:00. Thank you.
The Committee adjourned for a lunch break until 14:00.
Chairperson: Colleagues, welcome back from lunch. We resume our session with Adv Mkhwebane, led by Adv Mpofu. Over to you, Adv Mpofu.
Adv Mpofu: Thank you, Chair. Chairperson, I am happy to announce that the intervention of the lunch hour, we managed to resolve the small impasse. For what it is worth, Chair, we agreed that we can use those articles, still on the limited basis that I had described. But I just thought, just for what it is worth, Chair, is to assure everyone that even on the basis of the limited agreement we had before lunch, there is nothing wrong leading the information. If you remember, Chair, we finished at 220.127.116.11, Tshepo. Chair, I just wanted to show that the next part, where the lunch intervened, after I had read that paragraph. It says “Below is the depiction of the flow of funds from EFG2 Trust Account.” That is a complicated graph, which actually has the same information that I am going to deal with. I just wanted to assure everyone that it is not something outside of the report. Thank you, Chair. Alright. Now, can we go to where we had the controversy – we were at Bundle H, PP Folder Item 31.7.1, and 31.7.2. Alright, can we go to the next article? I think it is 31.7.2. Chair, please bear with me. So that is an article as Adv Bawa indicated, of 11 August, 2019 – that is a few weeks after the report – which was from the Sunday Independent from some investigative journalists. It really basically shows some of the money flows that have been referred to, some of which we went through before lunch, and it also shows some of the persons that we had already referred to. On the left hand side we have the people that are referred to as some of the campaign managers and political activists who have benefited. Chair, again, just for the sake of fairness, you will see that in the statement we also use the term ‘recipients’ and we did that deliberately, because we do not want people to be just blamed for nothing. So it might be that the mere fact that you are a recipient of R20 million, we want to make it clear that it does not mean that you took it and use it for your own family, necessarily. They may or may not have done that. So that's not what we are trying to say. So I prefer the word ‘recipients’ than ‘benefiting’. The person they identified is Minister Ntshaveni. There is Marion Sparg, that we mentioned earlier; Mr Gondongwana and Mr Dukwana. On the funders, some of the main funders, which is the area we did not deal with. Was this information that was at your disposal, Public Protector?
Adv Mkhwebane: Yes, the bank statements, that is what they were revealing.
Adv Mpofu: Okay, maybe you should then… I have just summarised the names of the… Are you able to see?
Adv Mkhwebane: Yes, I am trying. I also need to indicate that besides this article, I think there was another article of either Mail & Guardian or Daily Maverick which also had a lot of other details, but this one was just showing these few individuals.
Adv Mpofu: Yes. No, fine, we will… Alright, I just wanted to confirm, maybe some of the figures that are there, on the recipient's side.
Adv Mkhwebane: My eyes are failing me. I cannot see properly.
Adv Mpofu: I think that it is not visible, Chair. Unless there is an objection, I will read it myself. Under the recipient, Ntshaveni, it says…
Chairperson: Yeah, we can see the figures.
Adv Mpofu: You can? It looks like the Chair is struggling. I mean the Witness is struggling.
Adv Mkhwebane: Yes, please. That is what I said.
Adv Mpofu: Okay, under Ntshavheni it is R5 million, correct?
Adv Mkhwebane: Yes, that is correct. As I said earlier, I think she was the sole director of Ria Tenda.
Adv Mpofu: Sorry?
Adv Mkhwebane: She was the sole director of Ria Tenda.
Adv Mpofu: Yes, the company that had been mentioned, called Ria Tenda. Then the other one is Marian Sparg, which was R24 million.
Adv Mkhwebane: It is R2.4 million.
Adv Mpofu: R2.4 million?
Adv Mkhwebane: It is supposed to be R2.4 million because I think there was a daily/monthly amount that was paid.
Adv Mpofu: Right. Okay, and then the Deputy Minister in the Presidency R2.3 million or R23 million?
Adv Mkhwebane: R2.3 million.
Adv Mpofu: R2.3 million? Okay. Then it was Minister Gondongwana, R400 000?
Adv Mkhwebane: Yes.
Adv Mpofu: And Mr Dukwana, R600 000?
Adv Mkhwebane: Yes.
Adv Mpofu: And the beneficiaries… I am sorry, the funders?
Adv Mkhwebane: Yes, according to the bank statements that is what it was reflecting. The individuals like, I remember, Maria Ramos, and in other ones it shows Rupert and Oppenheimer.
Adv Mpofu: The first face is Mr Nicky Oppenheimer, correct?
Adv Mkhwebane: Yes. And then there is also this other, Copelyn or Copland.
Adv Mpofu: Yes, Johnny Copelyn.
Adv Mkhwebane: Yes.
Adv Mpofu: Raymond Ackerman?
Adv Mkhwebane: Yes, definitely.
Adv Mpofu: Mark Lamberti?
Adv Mkhwebane: Yes, in the statement they were there.
Adv Mpofu: Okay, and then that person whose name is Stavros? His first name is the one that was in the email before lunch?
Adv Mkhwebane: Yes.
Adv Mpofu: Okay. As promised to the Chair, I am not going to talk much about the narrative, because that is the journalist’s take on it. The dry figures there... you mentioned yesterday that there is somebody called Mike Teke. There is an amount there next to Johnny Copelyn. Does that name ring a bell?
Adv Mkhwebane: Yes, it does. That is why I am saying that I think the Mail & Guardian also had companies which donated and individuals.
Adv Mpofu: Goldman Sachs, Sifiso Dabengwa – people like that?
Adv Mkhwebane: Yes, yes.
Adv Mpofu: We will get that. To save time, Chair, can we park this, because I was not sure we were going to reach an agreement with the Evidence Leaders. We will come to that. I think the picture, in any event is clear, that you had a …
Chairperson: Just a pause, Adv Mpofu.
Adv Mpofu: Sorry, Chair.
Chairperson: Hon Nqola?
Mr Nqola: No, Chair, I saw in the article that was shown there was written by a certain journalist by the name of Pete Rampedi.
Chairperson: By the name of?
Mr Nqola: Pete Rampedi.
Mr Nqola: So I wanted to check if that is the same person who wrote a fictitious article about ten kids in a certain hospital in Gauteng?
Chairperson: Okay. Well, that would not be anyone that would be able to answer here on that. Oh you know?
Adv Mpofu: Yes, I can answer.
Chairperson: Okay. Adv Mpofu? This is more of clarity.
Adv Mpofu: Chair, I think that we must demote him from Deputy Chair.
Chairperson: Proceed, Adv Mpofu. Please proceed.
Adv Mpofu: He is back to becoming an ordinary Member. Thank you, Chair. These are very serious investigative journalists: Mzilikazi wa Afrika, who is the ace investigative journalist in South Africa; Mr Rampedi, that he wants to make controversial because of one story, has got one of the most illustrious careers, starting with the Sunday Times and various others.
Chairperson: Please do not be distracted.
Adv Mpofu: Thank you, Chair. Thanks for the protection. I will ignore the former Deputy Chair. Alright. Now, I was saying, Public Protector, in a nutshell, without necessarily going into the minute details, now, we will get that other article that you are saying is more helpful. But bottom line is you had before you, information which corresponds with this, in respect of… this might not be 100% of the information, whatever percentage it is, but it coincides with information that was before you in respect of both the recipients as I prefer to call them, instead of beneficiaries and the funders?
Adv Mkhwebane: Yes, that is correct. Hence, I said this is correct, what they have reflected there and then there is more.
Adv Mpofu: There is more?
Adv Mkhwebane: Yes.
Adv Mpofu: Okay, good. I think that is clear then. Fine. If we get to a stage where we deal with that more then we will get to it. But I want us to move on from this, now. Thank you, Chairperson. Now, in your statements, you then go on to deal with the judgments, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: And there are two topics that I want to deal with in relation to the judgments. The one relates to the real issue in this entire manner, which is, if you remember, that matrix we had earlier. The evidence before you, including what we have discussed, versus the version. You remember that?
Adv Mkhwebane: Yes.
Adv Mpofu: And by the version we mean what was said by the President, the campaign managers and those types of people?
Adv Mkhwebane: And the evidence which we independently acquired.
Adv Mpofu: Yes, the bank statements. Alright, so that is the one thing we will deal with. The second, which hopefully we will get into as well, relates to the other topic about the code.
Adv Mkhwebane: Yes.
Adv Mpofu: Because that is an important issue for this Committee, in particular because it is one of the basis upon which you were severely criticised in the, I think let us just say in both judgments, the Majority Judgment and the High Court; that whole confusion whether it was the 2000 or 2007 code. That is the second topic that we will deal with.
Adv Mkhwebane: Okay.
Adv Mpofu: Okay, good. Now, Chair, if we can then move to the statement. Alright, the previous page is basically all of those big figures we were reading earlier, so we will not go through them. From 282 onwards, you put into perspective why you would like, at the end, when we do the legal argument to convince the Committee that the Minority Judgment, despite its obvious legal status, is more in accordance with the evidence that was before you, correct?
Adv Mkhwebane: Correct.
Adv Mpofu: Okay. Can you read from 282 onwards?
Adv Mkhwebane: Okay. “In conclusion on the above revelations in relation to exchanges of large sums of money, some of which received from private companies, I wish to express my preliminary view that such a scenario when looked at carefully creates a situation of the risk of some sort of state capture by those donating these amounts to the campaign as properly articulated in the minority judgment of Chief Justice Mogoeng, which I am in total agreement with.”
Adv Mpofu: Right. That is the point that you made just before lunch. Okay, carry on.
Adv Mkhwebane: “I will also seek to convince the Committee that upon any objective inquiry, there will be no option but to endorse the views expressed in the minority judgment, whilst acknowledging the legal status of the minority judgment…”
Adv Mpofu: No, the Majority Judgment.
Adv Mkhwebane: “of the Majority Judgment”, yes. “That exercise is in turn dependent upon whether the Committee adopts the view that its role is to rubber stamp the relevant court judgments or to independently inquire into the issues raised in the charges.”
Adv Mpofu: If you can pause there, so that I can address the Chair. Chair, that is a reference to that, and that is why I was saying we do not want to smuggle our legal debates through the Witness. That issue will be debated, I am sure, for a long time when we do the legal arguments as to what is the status of the judgments and so on. But for now, I would like the Committee to proceed on the assumption that we will convince you at that stage that the judgments can be inquired into. Thank you.
Adv Mpofu: Carry on.
Adv Mkhwebane: Okay, “so based on the facts alluded to above, as well as evidence adduced during the investigation, my team came to the conclusion that there was merit to the allegations relating to the suspicion of money laundering, violation of the Ethics Executive Code, and that the President personally benefited from the CR17 Campaign donations.” So that was based on the evidence before us. So 285, “It is notable that Mr Rodney Mataboge, who was the lead investigator, independently came to the same conclusion. His evidence to that effect was unchallenged.” So I think Rodney was one of the witnesses. And I indicated that him being the lead investigator was also to make sure that we protect the information and the evidence, especially because we were dealing with the President.
Adv Mpofu: Yes. Okay, maybe let us pause there. You will remember… The Committee will remember, at least, that Mr Mataboge was led on this and there was this whole thing that he was not part of any conspiracy, at least, assuming that you were some part of a conspiracy, that he was not a member of that conspiracy. And that evidence was not challenged. Something that you just mentioned now, the significance of the fact that you were investigating the President of the country – what is the significance of that?
Adv Mkhwebane: That is very much important, because I think, again, it was captured in the Nkandla Judgment that the President is an embodiment of the Constitution. And it is a very high, you know, high office of the land. And to protect the integrity of the investigation and to protect the President, but anything related to the investigation, it was very critical that at least there are few people who are dealing with this investigation. Hence, I indicated earlier that even the Chief Operating Officer, Basani Baloyi, she was only taken through the Section 7(9), which we were going to discuss with the President. So she was part of that meeting. But all the information and the details was the responsibility of the lead investigator. I must also indicate that it is one person also who has requested to assist with the Excel information on how the calculations can be made. But that was it.
Adv Mpofu: Yes. And Chair, again, for the record, I do not want to belabour these points. For the record, we acknowledge when we talk about the President in that context, that insofar as the CR17 issue is concerned, he was the Deputy President, but insofar as the Maimane question was concerned, he was already the President. So just in fairness to the issue that Mr Mileham was raising. So we do not have to repeat that. We understand that.
Adv Mkhwebane: Yes.
Adv Mpofu: Okay, good.
Adv Mkhwebane: Maybe let me just say that even with the current Phala Phala investigation, also to protect the credibility and then, you know, having a few people who are dealing with the information or the evidence, also the chief investigator was allocated to deal with this investigation.
Adv Mpofu: Oh, so before your suspension, from what you are saying, should we understand that before your suspension on the 9 June, the Phala Phala matter was allocated to a particular chief investigator?
Adv Mkhwebane: Yes, definitely. I remember we prepared, even, the 31 questions and those were the questions which were sent to the President.
Adv Mpofu: Yes.
Adv Mkhwebane: Again, it is a question of seniority and the position of experience…
Adv Mpofu: Protocol?
Adv Mkhwebane: And protocol, yeah.
Adv Mpofu: Okay, good. In other words, it was not… Yes, in fairness, I think Ms Bawa did put the question to Mr Mataboge, as to why that investigation did not follow the normal chief investigator, investigator, senior investigator and so on and so on. So, from what you are saying, should we understand that with both Phala Phala and Bosasa, there were those considerations that you are dealing with the President?
Adv Mkhwebane: Definitely.
Adv Mpofu: And apart from the protocol issues and seniority issues, one should not read anything into the fewer number of people getting involved?
Adv Mkhwebane: No, not at all, because I mean, the main intention was to protect those individuals and as well to protect the information from leaking. You know, and the way we operated that time, normally, when we subpoena a person, we expect the person to come to the Public Protector Office, but in this instance, because we were investigating the President, the initial letter was delivered to the President where we had a meeting. The Section 7(9) was delivered to the President, where we had to take him through the Section 7(9) and what we relied on to come to the conclusion. So it was purely to protect the integrity of the investigation. And I think you have also indicated that to Bianca and Mr Mataboge, that it means I was supposed to even convince them or push or in this so-called…
Adv Mpofu: Conspiracy?
Adv Mkhwebane: Conspiracy, yeah. It was purely that, when we were investigating the matter.
Adv Mpofu: Yes. Sorry to ask you this, because it is at the risk of stating the obvious, as we say, but I think it was Mr Mataboge who also indicated that you personally delivered the Section 7(9) letter to the President. Can you confirm that?
Adv Mkhwebane: Definitely. Hence, I am saying I had to go with the team.
Adv Mpofu: Yes.
Adv Mkhwebane: Normally, we just send a messenger or we email it and that is all. But in this instance… Yeah.
Adv Mpofu: Okay, that is why I am saying at the risk of stating the obvious. So you do not go around delivering Section 7(9) letters? It was purely out of respect and the protocol of the office involved?
Adv Mkhwebane: Definitely.
Adv Mpofu: Okay, good. Then let us go to 286.
Adv Mkhwebane: “Most notably it would be absurd to label as dishonest or biased a view or conclusion, which was reached by the Chief Justice who expressed the issues in even stronger attempts. That view may or may not be correct, but it is certainly not reached in bad faith, or outrageously, as alleged by Ms Mazzone or the Evidence Leaders”, when they were leading evidence because that was purely what we focused on. I think this also reflected how the Chief Justice has gone through… well, in the judgment you could see that he read each and every document which was submitted.
Adv Mpofu: Yes. Good. Thank you. We will get to the Chief Justice's remarks. But the point you are making there is that sometimes the Chief Justice expressed himself even in stronger terms than you did in your report. For example, rejecting the version of the President and so on?
Adv Mkhwebane: Definitely.
Adv Mpofu: Okay.
Chairperson: And when you make the reference to the Chief Justice, it is in relation to the Minority Judgment?
Adv Mpofu: Yes, not only that, Chair. The Minority Judgment and the Former Chief Justice, so we have to be correct. Thank you, Chair. Thank you. Again, we are just doing that for the record, because I think everyone here knows what we were talking about. But thank you. Can we go to the next one?
Adv Mkhwebane: During my oral testimony, I will specifically refer in more detail to the relevant passages found in both the Majority and Minority Judgments to indicate the factual flaws identified by me and on the basis of which I am in respectful disagreement with some of the key conclusions raised by the courts as compared to the referable reasoning in the Minority Judgment.”
Adv Mpofu: Yes. Chair, that is preferable reasoning.
Chairperson: It is supposed to be preferable?
Adv Mpofu: Preferable, yes.
Chairperson: Okay, thank you.
Adv Mpofu: 288. Now, the Chair will have to bear with us here. Maybe to make it easier, I will interchange; some of the key passages I will ask you to read, and some of them I will read myself. This is something that comes from the judgment itself. Let us go to 288.
Adv Mkhwebane: Okay. “The key findings of the Majority Judgment, are summarised in paragraph 137 of the Majority Judgment as follows.” So it says “the Public Protector like all of us is fallible, and mistakes are to be expected in the course of the exercise of her powers, but what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake, for example, giving the phrase ‘willfully misleading’ the meaning of ‘inadvertently misleading ‘for it to fit established facts. She disregarded uncontroverted evidence to the effect that the President did not personally benefit from the CR17 donations, and stated that on the evidence placed before her, he benefited, personally. This finding was made when there was simply no evidence to the contrary. These are some of the disconcerting features of the impugned report.”
Adv Mpofu: Alright. So, again, it is just to take a cue from what the Chair was indicating. So in fairness, this is the conclusion, or summary of conclusions of the Majority report just so that it's clear that we acknowledge that and we know that it is the Majority Judgment and what have you. But that captures, in essence, the key issues about what is known as the weighty errors, the whole thing about the code of inadvertently and so on; and then the issue of the benefit or no benefit to the President, and then as a summary of what because some of the disconcerting features of the impugned report. Okay, now 289?
Adv Mkhwebane: Well, still on this paragraph. Hence, we will still deal with the issues of the code, which I say I respectfully, do not agree with how they came to this conclusion, when the President himself, said, when he was the Deputy President, that he was conducting the dinners and everything for being the President of the country and the President of the ANC. So 289 “While I acknowledge that, legally speaking, the Majority Judgment is, of course, a reflection of the law as it stands, I am of the view that this Committee is still required to inquire into the veracity of the adverse pronouncements made against me and or the Office of the Public Protector.”
Adv Mpofu: Okay. Alright. So that really reflects the debate that I said to the Chair, we will postpone to the legal arguments. There is a view here, at least, that goes around that once you have a judgment, that is it; there is nothing you can inquire into. Fortunately that view is not shared by Prof Madonsela, because when it came to the judgments which said that she was biased, she had very choice words to say about the judges and the fact that these were just their opinions and so on. But be that as it may, as I say, we will postpone that debate. Now, we then go to, having acknowledged the status of the Majority Judgment, go to what you said is the preferable view, in your view at least, of the Chief Justice. Can you then read from 290?
Adv Mkhwebane: “By way of contrast, the Hon Chief Justice came to the following different conclusions which I am in full agreement with.” 290.1, which is paragraph 168, “For this reason, whatever legal personality the President and his campaign managers may have chosen to clothe the repository of his campaign sponsorship. or financial assistance with, cannot detract from the naked truth that; (i), he pleaded with potential sponsors to give money in and for his name, CR17 Campaign, which is Cyril Ramaphosa’s campaign for the ANC Presidency in 2017; (ii), he knew that the money that was being given and spent on his own ambitious campaign came from an agreed structure known as the CR17 Campaign, to which he also contributed; (iii), he personally benefited from the sponsorship that propelled his campaign to its logical conclusion, which is the presidency of the ANC. So election or elevation to a position you desire is a benefit, and the benefit is personal because the targeted beneficiary gets to occupy and enjoy the position and all its accomplishments.”
Adv Mpofu: Accompaniments.
Adv Mkhwebane: “Accompaniments”. You see the Queen’s language, now?
Adv Mpofu: No, Chief Justice Mogoeng is like that.
Adv Mkhwebane: Yes. “It is perhaps necessary to state the obvious; the position is not occupied by a group, but by an individual. When the sponsored one attains the desired position, people congratulate him or her because they see him or her as the winner, the successful one.”
Adv Mpofu: Right. And when you say you agree with those sentiments in summary, maybe without going directly to the report to save time, I will just ask if that accords with your own conclusions on the topic?
Adv Mkhwebane: Yes, it does because remember the emails, which was sent directly by the President, the letter which he wrote to the Speaker indicating or correcting and indicating that it is for his Campaign. And thirdly, the bank statements or the money flow, which was moving through the accounts. And I think there was a stage where even the President issued a statement where he said, they will return that R500 000 back to Bosasa. So all those were proof enough that this was an individual benefit.
Adv Mpofu: Alright. As I promised earlier, I will read the next one and then you can comment. It is paragraph 171, 290.2. Thank you. Paragraph 171 of the judgment, Chairperson, says “For this reason, any proposition that the Public Protector should not have investigated possible ethical breaches concerning all the CR17 campaign donations, either because Hon Maimane, MP, did not explicitly mention the CR17 campaign, or seems to have confined his complaint based on the donation to the relationship between African Global Operations or Mr Watson and the President and his family, would be missing the point. The President himself said that Mr Watson's donation was made to ‘a campaign established to support my candidature for the Presidency of the African National Congress’. It was his campaign and it was known as the CR17 campaign. It is such an embodiment of his aspirations that it even bore his initials. This was the one and only campaign structure to which donations to his Presidential campaign were made. African Global Operations is a donor like all other donors to the CR17 campaign. The pursuit of the whole truth, alluded to in Mail & Guardian, demanded of the Public Protector in obedience to the constitutional mandate of her office, to strengthen our democracy, to investigate and satisfy herself on behalf of the public, that none of the other CR17 campaign-related donations were on the wrong side of the constitutionally prescribed set of ethical standards.” Firstly, is that in accordance with your findings?
Adv Mkhwebane: Yes, it is in accordance with my findings.
Adv Mpofu: And what Justice Mogoeng referred to as ‘constitutionally prescribed set of ethical standards’, would that refer to what you said just before lunch, including Section 96 and the Act and the code?
Adv Mkhwebane: Yes, that relates to that, and it is applicable to… Well, that is the legal framework, which we focused and relied upon.
Adv Mpofu: Okay, you can read the next one.
Adv Mkhwebane: “The President's duty to disclose was triggered the moment he agreed to establish or became aware of the existence of the CR17 campaign, asked sponsors to support his campaign, and became aware that money was being spent by the CR17 campaign to advance his Presidential bid. The emails in the possession of the Public Protector, which are, by the way, merely additional but not essential material for the purpose of establishing a case against the President that are not denied; and the briefings to the President about the State and activities of the CR17 campaign make the situation even worse for the President. The contents of any genuine email generated by a specific person should ordinarily be as good as the oral evidence given by that person. As a matter of practice and law, the contents of an email or a document by x and y, may, assuming its authenticity is not disputed, be used to contradict and discredit their own oral evidence and vice versa. This extends to the evidence of the recipient of those emails, who might have exerted a contrary view. He or she may be similarly discredited. For this reason, the Public Protector ought to be understood to be saying that the oral evidence of the President and the CR17 campaign managers regarding the happenings in the campaign with regard to the donors, and their donations was effectively belied by their own exchange of emails that revealed that the President knew what they claimed, in their oral evidence that he did not know.” So I think… Yeah. This, I think you mentioned earlier the question which was asked to Mr Mataboge, about the email, but then it reflected he did indeed receive an email about the OIGI (Office of the Inspector-General of Intelligence) Report, remember? So even here, the issue of the emails was never disputed. I think there will be a paragraph where we deal with the emails further in the judgment.
Adv Mpofu: Yeah, thank you. And maybe in this context, we should touch on the following issue, because unlike Mr Mataboge, who, as you correctly say, had to be reminded or confronted with his email, you do not have that luxury, because this Committee decided that the President that the recipient or author of some of these emails, including the one authored by the President, should not be called here to go through the same exercise as Mr Mataboge, where we would say, or you, through your lawyers, could say ‘But you say this, but here is the email’. Like Mr Mataboge, maybe he could say ‘Oh, well, now that you mention it’ or explain it away or whatever. So what is the impact of that on what you read yesterday about the fairness of the process?
Adv Mkhwebane: I think that does not give us an opportunity to also allow the President to inform the Committee that indeed, we met and indeed we involved him throughout the process, and the process was actually very fair. And it was conducted in a very respectable manner; and he was given an opportunity to respond to a Section 7(9); and the evidence we relied upon which we also brought to his attention, so it was going to make the process as well, to be fair.
Adv Mpofu: Okay. Alright. The next paragraph, which you highlighted for the Committee, in your statement, is at 290.4, Chairperson. It is paragraph 174, and it reads as follows “Besides, even in the absence of the proof, emails, uncovered by the Public Protector regarding the President's knowledge of who the donors were, and what the CR17 campaign was doing, just how realistic or in keeping with the lived experience it to assume that he would not want to know about the progression of his own destiny defining project or that donors would not want him to know that they were his enablers, to the much converted position or throne. He should, with respect, not be allowed to hide behind a structure that bears his name and that was established for the primary purpose of advancing his private interests and that actually advanced his personal mission to be President.” Now in relation to that particular passage, it seems that, of course… Well, firstly, is that in keeping with your findings?
Adv Mkhwebane: I think what is central here is that the President was saying he was not involved and he did not know, but it is very clear here that he was aware of the monies, he was being updated about the performance of the fundraising and the fact that Mr Watson confirmed that he attended some of the dinners. But I think the emails were the ones which were clearly also showing that he was even approaching other donors; hence, I said, in the article and others, which we will still share, it was the very same individuals who were approached to donate.
Adv Mpofu: Okay. 290.5? Thank you for that.
Adv Mkhwebane: “Whichever way you look at it, the President received a disclosable benefit, disclosable precisely because it has a potentially compromising short and long term effect. That money could have and should have come directly to the President because he is the one who needed it for his own personal benefit. He was required to and should therefore have disclosed it. That he and others chose to set up a structure that had the presumably unintended, but effective result of undermining or frustrating the imperative to be transparent, accountable, and to disclose to Parliament, to be ethical, cannot help him. It cannot help the President that he might have chosen not to know who his benefactors were. He knew and should have disclosed that the people or entities he addressed, asking them to fund his desire to become President, heeded his plea or call and gave money to the CR17 campaign, and CR17 in turn released money for his personal election to the much sought after office of President of the ANC.” So this one also answers the question by or the clarity sought by Hon Mileham. But then, I think, possibly that will be shown to me those paragraphs where the Majority Judgment is saying, ‘Well, this has to do with the campaign for the Presidency for the ANC’, therefore, the President was not supposed to disclose (as) the President is not a Member of Parliament. But I think I have clarified and I think it shows that Chief Justice Mogoeng understood the report, because in the report, we are very clear that he was investigated as the Deputy President, and he was the member of Cabinet, Member of Parliament. And that legislation, which we will read into the record is very clear that from R350 needs to be declared.
Adv Mpofu: Okay, I think in fairness to the Majority Judgment, and I stand corrected, Chair, I will check this: if I am not mistaken, the Majority Judgment did not make that mistake that Mr Mileham was making. But I think that was in the High Court Judgment.
Adv Mkhwebane: Okay. Oh, yes.
Adv Mpofu: But we will check that, just so that we get the facts correct. Then, in any event, we will talk about that High Court Judgment when we talk about the code, well, not only when we talk about the code; when we talk about your power to refer something to the NPA because there was that contradiction.
Adv Mkhwebane: Yes, yes.
Adv Mpofu: We will come to that. Alright, 290.6, it says here “On the need to disclose again, I say, the President knew of the CR17 campaign, which existed primarily for the purpose of advancing his political career. The veil sought to be erected between him and that project should not be allowed to obscure the truth or reality. He was more unlikely to have been ignorant of a matter so destiny-defining and all important. He was therefore under the obligation to disclose, in the very least, his private interest in the form of the sum total of the money paid to us by CR17 campaign; how this entity benefited him financially, in his journey towards the Presidency of the party.” I will do the next one. Do you want to comment on this, or should I do the next one?
Adv Mkhwebane: I think you can move to the next one.
Adv Mpofu: Okay, you can comment on both. “More importantly, as the Public Protector correctly found, when he received or caused others to receive the sponsorship of financial benefit, he was still the Deputy President of the Republic and a Member of Parliament”, the point you were making. “The code applied to him fully. He cannot be exempted from the consequences of what he did, then, by reason only of the fact that the ‘personal benefit’ has worked so well, that he now occupies the position of President in line with his and the sponsors' set objectives.” I think you have just commented on this. This is the Hon Mileham point.
Adv Mkhwebane: Yes, it is correct, and I think that though the figures are not reflected here, but indeed the financial benefit which has been shown and how their monies were utilised.
Adv Mpofu: Yes, well, on the question of the figures. We know, well, at least the Committee and members of the public can take notice of the fact that the President, I think, estimated the figures of his Campaign to be about R300 million, correct?
Adv Mkhwebane: I think it was… He himself, when we were investigating, no, but I think I heard it at the Zondo Commission when he was testifying.
Adv Mpofu: Yes. And apart from that, putting aside whatever happened at the Zondo Commission, in line with what we were saying, that we will not necessarily rely on anything that happened there after. Your evidence in the report is that the campaign managers had put the figure around even lower R200 million, correct?
Adv Mkhwebane: Yes, yes. I was coming to that. Unfortunately, as well, they were not truthful but on the other hand, they were estimating, and they were saying they must still do the final auditing of that particular account. So that is what they said. Then, when the calculations were made, that is the figures which are in the report, which we had to come up with. I mean, R400 million, or R388 million. Yeah.
Adv Mpofu: Yes, the figures that were read before lunch come to over a billion Rand?
Adv Mkhwebane: Again, if you say so, I did not calculate.
Adv Mpofu: Okay. Well, there was R200 million.
Adv Mkhwebane: It was R190 million.
Adv Mpofu: Yeah, let us round it off and say it is R200 million.
Adv Mkhwebane: Yes, then there was R388 million, and then there was R441 million, I think.
Adv Mpofu: Anyway, it is fine. Let me just say that it is far more than either R300 million or R200 million?
Adv Mkhwebane: Definitely, it is.
Adv Mpofu: Yeah.. Okay, thank you.. Now, then the next one, which is 290.8
Adv Mkhwebane: Yes. “The Public Protector should have afforded the President the opportunity to confront the contents of the emails that vitiate the version of the President and his campaign managers. It is concerning that she too, like the President, chose not to address the central feature of the concern raised why she did not hear the President’ side of the story before she finally relied on the emails, that is what the audi principle demanded of her, but the President has taken us into his confidence and shared with us the views he would have expressed to the Public Protector regarding the emails, had he been afforded the opportunity to do so.”
Adv Mpofu: Right. So in a nutshell there, the Chief Justice was criticising you for the audi – we know that whole story about the second audit and all of that – but you are saying that whatever the President would have put in his second audi he has now put before the court?
Adv Mkhwebane: Yes, correct.
Adv Mpofu: Right. Okay.
Adv Mkhwebane: And I think hence I said earlier this information we received, almost, at the end of the investigation, but indeed, it is not an excuse that we should have then gone ahead again and issued a supplementary Section 7(9). Again, it goes back to the issue of the timeframe to make sure that, you know, we are not keeping the person or implicated person or the person the complaint is against to be waiting for the outcome of the investigation. So in other words, I do agree with this, and I think that is where we improve continuously.
Adv Mpofu: Okay, so with the benefit of hindsight you say that was fair criticism of you by the Chief Justice, also given the subsequent cases that have also found that remedial action should be included in the Section 7(9), correct?
Adv Mkhwebane: Yes, remedial action, but then as well each and every information which will rely on.
Adv Mpofu: Oh, I see. If new information arrives, you then still have to give audi?
Adv Mkhwebane: Yes.
Adv Mpofu: Okay, good. Alright. So 290.9. I think this where you said the Chief Justice sometimes used even stronger language than the Public Protector in disagreeing with the President?
Adv Mkhwebane: Yes.
Adv Mpofu: Okay. 188?
Adv Mkhwebane: “And it bears repetition that that false vision is that there was a deliberate plan to ensure that the President does not get to know who the donors were, how much they donated, and how the financial assistance received for his campaign was being used. The emails squarely belied this assertion. The question that we should then be asking ourselves is why the President and his team deliberately convey a falsehood on an issue, so crucial, and inextricably connected to the constitutional imperative to promote and observe high ethical standards, in obedience to the demands of our democratic states founding values, which is openness and accountability. He must have known that if the truth evidenced by the emails were to be told, the obligation to disclose the names of the funders and the size of their contributions to the National Assembly, and by extension to the public, would automatically and plainly be triggered and in terms of the essence of my vote counts, the public will then have the opportunity to curiously and vigilantly monitor the outward manifestation of his relationship with the sponsors in line with the concerns raised by Hon Maimane, MP, regarding Mr Watson and the State tenders.”
Adv Mpofu: Okay, comment?
Adv Mkhwebane: Yes, I think it goes back to, besides what is indicated here, that was the intention that, at least that for compliance, the National Assembly, in terms of Section 55 of the Constitution, or Members of Parliament, their role is to conduct oversight, and to hold the executive to account. So the issue of them declaring and as well, indicating what contributions and what resources they have. I mean, it is within the issues. Again, it goes back to the values of the Constitution. And, again, going back to the fact that anyone who would want to be the President should be an embodiment of the Constitution, I mean, believe on the principles of accountability or on the principles of openness, and transparency.
Adv Mpofu: Alright. Thank you. Chairperson, you will be pleased to know that we are going to the last two of these extracts. The other one you highlighted for the Committee is 290.10 and it reads as follows – it is paragraph 192 of the judgment – “It also bears repetition that the President carefully and intentionally gave a false version of what he knew to be the case to the Public Protector. What he did is highly unethical, and a resounding rejection or dereliction of his key constitutional obligations. This is, therefore, not a question of the President and his team, mistakenly putting forward a version such as he did in the National Assembly with regard to the alleged Bosasa donation to his son, which he subsequently corrected. It is rather a case of a calculated misrepresentation of the facts by someone who is confident that the truth would never be uncovered. No wonder the President and his team have made no attempt at reconciling their version with the emails. The two versions are mutually exclusive or destructive and obviously incapable of reconciliation. And all the President could do and did was to keep on asking the Public Protector... and I paraphrase, ‘how did you manage to access this well kept or closely guarded secret? Who gave you this painful truth? Who gave this painful truth to you?’ says the Chief Justice. Any comment?
Adv Mkhwebane: I think as I commented before that, again, it goes back to the issue of when we conduct our investigations, we give the implicated parties an opportunity to give us their side of the story. And I think here we were not given all the information, because if we were given all the information, we would have even known that or the President would have said he knew about some of the donors, but he just did not want to agree or acknowledge at all.
Adv Mpofu: Yes. And maybe then I will read the last one and ask you to comment because this relates, again, to a topic that is broader than just the CR17 matter, and that is about… Yes, well, I do not know if it was a debate: the discussion that Adv Bawa and I had this morning had about the Commissioner for SARS case, where in the Mazzone Motion, it is cited as an example of your vilification from the bench, as it where, but in the Constitutional Court, the Constitutional Court actually, for a lack of a better word, rubbished those remarks, or disapproved them maybe is more of a neutral term. So that was based on what Madlanga J had said, which was the tendency of the courts to just target you for unnecessary criticism.
Adv Mkhwebane: Yes.
Adv Mpofu: Alright. So in that context then, this is what the Chief Justice said, and he in typical fashion, called it the magnification of the Public Protector’s errors. This is what he said at 199, which is the last extract, “There is indeed a disturbing tendency, by some of us, to presumably without intending undue harm or injustice, unduly magnify virtually every error of the Public Protector, real or mistakenly perceived. This is quite surprising, because judges with more experience as practitioners before their elevation to the bench, and with more years of service as judges than the 10 years minimum requirement as an advocate, or the mere fact of being a judge, regardless of how long to be appointed as Public Protector, have committed similar or more serious errors, and we are not as harsh on them, or should I say on ourselves, and rightly so.” Comment?
Adv Mkhwebane: I think this goes to the core of the complaint, or the charges. I think it summarises what you have been saying to correct the issue of or as well pleading with Members of the Committee to understand that yes, there are judgments, but then, as well, those judgments might have been reached using or through wrong facts. So hence, this process is an opportunity to deal with those factual issues because yes, there is nothing we can do about them. That is why when we address the issue of the code, I will show what I tried to, irrespective of what transpired. I think since you said it yourself that the former Public Protector also commented about the judgment of Potterill. But besides, I mean, one could…
Adv Mpofu: Sorry, I am again taking over the position of the Chair. You mean the judgment of Her Ladyship Justice Potterill?
Adv Mkhwebane: Yes. I think that she is the one who decided that NEF – is it NEF or SABS which you put through?
Adv Mpofu: SABS. Yes, the one that had scathing remarks against Prof Madonsela, and called her biased and that the judge was dumbfounded and it was astonishing and astounding, and not with an open mind. Yes, it was the SABS Judgment.
Adv Mkhwebane: Yes, and I mean if the Chief Justice is also saying this about the judges, indeed, there were several judgments ourselves as an office, which we had to go through where higher courts were criticising the lower court judges. There was no stage where those lower courts were then exposed or subjected to this particular process, which I am subjected to.
Adv Mpofu: Which process is that?
Adv Mkhwebane: The process of coming here and being told that I am incompetent, and yes, that I do not know the law.
Adv Mpofu: Alright. I am just about to break my promise to the Chair now.
Adv Mkhwebane: I think you said you will argue that during the legal arguments, because we wanted to include it in the statement, but then you said you will also deal with it when you argue on the issue of Section…
Adv Mpofu: No, certainly we will do that, but I just wanted to read something connected to the point you are making now, which also comes from that judgment.
Adv Mkhwebane: And even the Majority Judgment, they also agreed that they are fallible as judges.
Adv Mpofu: Yes.
Adv Mkhwebane: I don't know whether you are looking for that judgment?
Adv Mpofu: Yes, this touches on the topic that I said we are going to park, which is the issue of the code. Chair, I am sorry to do this, but just for the sake of completion, so that we do not go back to this judgment, I am just going to read out paragraph 201, as it is not quoted there, of the Mogoeng Mogoeng CJ Judgment. I am doing it because it relates to the issue that Adv Bawa and I were talking about regarding the Commissioner for SARS Judgment. This is what Mogoeng CJ says at 201, “Without any basis in fact or law…” I am sorry, Chair, I need to contextualise this again. This is the judgment I spoke about in the morning, Chair, where I said Ms Mazzone based her Motion on the Judgment of Mabuse J, which was in the High Court, but the Constitutional Court then reversed it. I said that we are not going to make an issue about, but obviously we have to point out the fact that the Constitutional Court then came to a different decision. So Ms Mazzone wrongly relied on the previous judgment. Obviously she did not know at that stage that it was going to be reversed, but the point that the Chief Justice makes is this “without any basis in fact, or law Mabuse J concluded in Commissioner of South African Revenue Service v Public Protector, that the Public Protector had 'a proclivity to operate out of the bounds of the law.’ and ‘a deep-rooted recalcitrance to accepting advice from senior and junior counsel’, and this was cited as proof of her unreasonable, arbitrary and mala fide conduct. He went on to order punitive costs against her in her personal capacity, a shocking and most unjust decision under those circumstances. Similarly, in Nkabinde this Court held that two of its members had erred. What all of this means is that the manner and the extent to which judges and magistrates criticise litigants, legal practitioners and witnesses should be a mirror image of the same measure of criticism, they would find acceptable under comparable circumstances where it to be meted out to them by their colleagues, the practitioners or the public. We must therefore do to others as we would have them, or have others do to us.” So the part that I was saying we will raise in argument is that as judges and magistrates have a duty to give out criticism which they would accept, we will hope that Members of Parliament also have the same obligation; to mete out only criticism which they would take when the shoe is on the other foot. But that was just to connect with the issue that we raised in the morning. I do not know if you want to comment?
Adv Mkhwebane: Yes. This is a complaint lodged by Hon Mazzone, which was adopted by Members of Parliament, and it was based on the judgments. I mean we can say that 90% of the charges are based on the comments. I think it is very much relevant, because this process also helps us, or me or whoever is willing to listen, to understand that this is how this matter was investigated, what evidence we relied on, and there were no sinister or conspiracies. But also it shows coming from the judge and the Chief Justice that matter, that they also make mistakes, but also the issue of ‘do unto others as you would want it to be done to you’. So I think that is very critical and I think it is something which others would want to see justice done, as well, for the justice system, not to be utilised for ulterior motives, or to destroy individuals or people. To understand that, I think let us focus on the law and what the law is saying and the facts. Yeah.
Adv Mpofu: Yes. Now, and again, I do not want to delve into the closing arguments now, but I just wanted to comment. Let us assume, because you have also been accused of something called ‘reckless litigation’; in other words, you were not supposed to go to court. Now let us assume in relation to that case of, where Ms Mazzone is now seeking for that case to be used for your impeachment, where you were accused of all of these things: deep-rooted, recalcitrance of accepting advice, proclivity to operate outside of the bounds of the law, which Chief Justice Mogoeng says is shocking and unjust. Let us assume you had in order not to be accused of reckless litigation, not decided to appeal this matter to the Constitutional Court, then this would have been the last word. Then it would have been justifiably used for your impeachment. Do you have any comment on that?
Adv Mkhwebane: Thank you for that question. You know, Chairperson, hence, I must indicate that this process has never been easy. I mean, you said it yourself that Ii have been sitting there for 6, 8, 9 months, listening to all these and the judgments and the comments and as well the accusations of wasting state resources, or always going to court or how much has been spent by the office on it. And the main aim for the office to oppose matters, because if you can check, a lot of matters, which we were taken to court on, I think, SC is still going to take us through the achievements the Public Protector statistics and whatever, where you will see that out of all the litigation or the matters which were taken to court, we were taken to court by the very same powerful and who have deep pockets. And by defending those matters as the Public Protector, it was purely to make sure that we defend the poor because these reports we issue to the benefit of the poor and the marginalised, but as well contributing to clean governance. Secondly, when we defended those reports, it is because we were checking the issue of the mandate of the institution, whether if we allow the court to come to a certain judgment, it will impact on the mandate of the institution. I think, secondly, there is a duty on us, well, if you are legally qualified and you understand or as an officer of the court, that you need to assist the court. Sometimes you might not even want to only file an explanatory affidavit, but you would want to oppose whatever the other party would want to achieve. And I think there was then a tendency where every official would then litigate and use the very same state resources and even won personal costs, which was going to the heart of threatening me or instilling fear, because when you then attack a person financially, then it is instilling fear. So I think, hence, taking this to the Supreme Court of Appeal to the Constitutional Court, was to make sure that let there be their direction, let there also be clarity on a number of issues. I am glad that we took this matter up to the Constitutional Court so that this issue can be clearly dealt with, and also, if Judge Mabuse listened and is seeing that it is part of his history to know that going forward, this is what he should also be considering. But again, I am always doing this and sitting here in this excruciating, painful process, because it is for the benefit of history. I mean, if you know, Nyathela, I used to say “it is not for us, it is for our generations to come, and whether history will judge us correctly’ the very same justices and the records do not lie. So I am glad that I did that. And I would encourage a number of people if you can, let us make sure that you have that right within the Constitution to escalate and take matters to higher courts, where possible. I think there was one investigation we did as an office, but we will deal with it some other times, where the Minister did not take the matter forward, or appeal that judgment. And unfortunately, that was the final judgment. And when the complaint was lodged by the DA against that Minister, that is all we could rely on because even if he says ‘No, I did not lie, but here is the judgment’. We have seen that sometimes factual errors can be made and the courts will come to a very wrong judgment. So at least the higher court or another court might come to a different conclusion but unfortunately, sometimes they also confirm the wrong facts. I mean, issues of Vrede, which we are still going to deal with; the issues of those notes that were written by Kekana, which are blamed on me but we are still coming to those.
Adv Mpofu: Yes. Thank you very much. Just in case anyone has forgotten, the words that you have just referred to were uttered here on that seat where you are sitting by Mr Nyathela, who said that those are words that came from you that he will take to the grave, where you said ‘Mr Nyathela, it is not about you, it is about the future of our children and the future of the black child, and those not yet born.’
Chairperson: On that, maybe we will take a break for ten minutes, for tea.
Adv Mpofu: Chairperson, can I plead with you to give me five minutes? I just want to round off this topic?
Chairperson: Five minutes now or when we come back?
Adv Mpofu: We can…
Chairperson: Okay, it is fine, take the five minutes.
Adv Mpofu: No, it is fine, Chair.
Chairperson: No, let us do it.
Adv Mkhwebane: Chairperson?
Chairperson: It is just a few minutes. Let us do it. Thank you.
Adv Mkhwebane: Chairperson?
Chairperson: We will fill up the bottle after the five minutes.
Adv Mpofu: Chair, you win.
Chairperson: Thank you. We will take a tea break and be back at 15:40.
The Committee adjourned for a ten minute tea break.
Chairperson: Welcome back, colleagues, from the short tea. We proceed immediately. You can start with your five minutes the Public Protector denied you, Adv Mpofu.
Adv Mpofu: Thank you, Chairperson. The Public Protector looks like the new counsel. Yes, thank you, Chair. The reason I wanted us to do it before tea was because it was flowing from the evidence that you were giving. It is just two quick points. You have made the point that had you not appealed the judgment of Mabuse J, which made all those scathing remarks against you, it might well have been used as a basis for your impeachment, on the theory that it is a judgment, and therefore, it must just be rubber stamped?
Adv Mkhwebane: That is correct.
Adv Mpofu: Right. But anyway, that theory will be tested in due course and the appropriate time. But the first of two things I wanted to say in relation to that; you remember, and you can comment ironically, Prof Madonsela, when confronted with the scathing remarks of Justice Potterill, her answer was exactly that had the matter been appealed, then maybe it could have been different? So again, showing the importance of why it is that sometimes matters should be – or rather that we should not just take judgments at face value. Any comments?
Adv Mkhwebane: You know, on the issue of… I know we are still going to deal with the evidence of each and every witness. It is true what you are saying about Ms Madonsela said about appealing the judgment, because I think through her evidence, which we are still going to deal with, it was as if ‘why did I not appeal the judgment’ or if I wanted to put her through that process. But again, I think you interviewed or you cross-examined one of the witnesses where you were saying, again, I said it yesterday: what if the Public Protector was also under pressure or was trying to make sure that she also is seen or is doing her job, without fear or favour? By then there was a lot of well, since I started in 2016, 2017 was the worst, especially after the CIEX report, and when I was taken to court. Already, the media and everywhere, the issue of the findings against the Public Protector by the courts. So if you check those judgments that were issued during those times as well. And there was that rethinking sitting with the leadership, and checking which judgments must we not oppose, which judgments must we not appeal. And I must indicate that there were a number of them which we appealed, hence, the Public Protector v Home Affairs matter, which was appealed to the SCA; and the SCA gave direction on the powers of the Public Protector, whether they are subjected to badger or the principle of legality. So I must say that, you know, sometimes you find yourself having to balance various issues. And indeed, taking the matter on appeal does not mean you are wasting or you are litigating recklessly. But you are on a mission to make sure that you are assisted sometimes with the interpretation of certain provisions of the law and the Constitution.
Adv Mpofu: Thank you. And then the second point, then that I wanted to make before tea was also in the context, and it is not the first I read this out, of the remarks that were made by Justice Mogoeng Mogoeng, in relation to the fact that the Public Protector should be judged according to the same standards as it were, as judges. Obviously, it does not mean that the Public Protector is a judge, but in the context of being able to give criticism that you are prepared to take yourself. Before the Chair can remind me that it was a minority judgment, I want to read the remarks of the same sentiment, which was expressed in the Majority Judgment, when the Constitutional Court unanimously reversed Mabuse J's scathing attack on you. This was quoted with approval by Mogoeng Mogoeng CJ in that same judgment, at paragraph 98. In my respectful submission, Chair, this really, again, as the Public Protector says, almost encapsulates what this whole business is about, or what it should not be about. He says at paragraph 198, “The following wisdom laden words of caution by Madlanga J, encapsulate the concern I have about the treatment of matters involving the Public Protector, Adv Busisiwe Mkhwebane, particularly her findings and recommendations or remedial steps. Although the context was different, the message or principle is just as apposite and telling in all other cases.” And then he quotes the unanimous judgment of the Constitutional Court in the case that we did when we challenged Mabuse J’s judgment. That is where Madlanga J had said, and I quote (which was almost identical to the cautionary that was issued by Justice Mogoeng) “There appears to be a developing trend of seeking personal cost orders in most, if not all matters, involving the Public Protector. Courts must be wary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal cost awards. Whether inadvertently or otherwise”, and I think those are the most important words and I will come back to them, “the High Court judgment in EFF/Gordhan and in the instant matter”, that is the Mabuse matter, “are instances where the High Court fell into that trap.” Then he says, “I voice those words of caution because of the disturbing frequency and regularity of applications for and awards of personal cost orders against the Public Protector. What is particularly disturbing is that it is clear that the applications and awards are not always justified.” So from the Chief Justice calling that judgment shocking and unjust, to the warning now by Madlanga J for the Majority, about how you get targeted unfairly, sometimes for this special treatment, let us call it. I want you to comment on this because I think in that whole passage, the most important words, ‘whether inadvertently or otherwise’; that, for me, as a lawyer, I think is probably the most serious indictment one can pass on to any court or even any judiciary, because it suggests that your targeting might be inadvertent, in other words, it could just be misfortune or otherwise; and otherwise can only mean that it is intentional. I do not even want… It is something a certain PW Botha said, ‘It is too ghastly to contemplate’ even as a possibility. But anyway, the Constitutional Court then said that the High Court had allowed itself to fall into the trap of singling you out for special treatment. And as I say, as a lawyer, I have never heard of a situation and I hope, if it has happened, it never happens again, where there is a particular litigant who is treated as a special target for certain treatment. What is your comment on that?
Chairperson: Maybe just before that, it was such a long statement you made. I do not know what you want her to comment on.
Adv Mpofu: Thank you, Chair. I will break it down. No, the Chair is right. In that summary, there were different concepts. The point is that linking this comment of the majority now, of the Constitutional Court, to the earlier one that I read out to you, particularly in relation to the hopefully, inadvertent targeting by certain courts. What is your comment?
Adv Mkhwebane: I would say, this also reflects to the public that… Going back to touching the untouchable, because there were comments which were made by one retired judge, which I will have to get that article or recording so that people can understand that I am not just making that up, where he said, I should be bankrupted. Meaning that, possibly because the process is difficult to remove the Public Protector, then use this painful process to deal with me. And indeed, I am also fallible. I am not saying I am perfect, and I also make mistakes. So if my mistakes are then magnified, like what… I am glad that Justice Madlanga had to comment the way he commented, and thanks to also having a legal representation like yourself, who would also reflect and show the courts that, you know, making mistakes, and I think we will still deal with the CIEX judgment. Again, the Chief Justice then, Mogoeng Mogoeng, reflected on how he went through our judgments and applied everything which we said. And I think that is what objectivity means. But as well, giving the requirements for issuing judgments where you subject people to personal costs; I mean issues of dishonesty, issues of misleading the court. And again, if that is intentional, and it is also reflected, but if one is making mistakes, then being subjected to this. Indeed, while they are saying ‘magnifying this’ but for me, I felt it was fashionable for, you know, judges, especially in the Gauteng North High Court here any person who just asked for personal costs against me, then they would be granted that, and unfortunately, based on wrong facts. I mean, that happened with even the Vrede matter, where the Judge Tolmay had to reserve or wait for the Constitutional Court to decide on the personal costs’ issue. And then she also had a decision where she said, I need to pay persona; costs. So that also is for history to judge all of us, because if you have precedents like this, and we have a situation where public servants and especially a Head of a Chapter Nine Institution will then be scared to do their work because they will be subjected to personal costs. Where would you get that money? Or again, that will cause you to be scared to take decisions and to be a lackey of any other person because then you will not be investigating without fear or favour because then you will be investigating having fear at the back of your mind and think ‘Hey, they are taking it to the High Court and I will receive a negative judgment” So I think we are still going to deal with all those, SC, because, you know, there was a stage where I reached the point that, you know, if a person is litigating against me, we just go there, because sometimes one felt it means we are going to be losing this case again. But again, we went on and on, because we wanted to make sure that we build and history has no blank pages. So hence, this process is also very clear. But I must say, it is very painful. I do not know where I must get the money. When you are employed as a police or as a nurse, when anything happens, and you are taken to court, then you must pay from your own pocket when you are doing your work. Not to say you were doing whatever you are doing for your own personal benefit.
Adv Mpofu: Yes, thank you. I think it is fair, just for the sake of balance and in defence of the judiciary in general. It is also fair to say that these very remarks that were very condemnatory of that unfair treatment, came from, in this case, the highest court in the land. Also that list of successes that you were talking about yesterday, whether it was having legal representation in this process, or the reversal of your suspension, were some of the positive attributes of having a judiciary. Imagine if there was not even a possibility of those reversals?
Adv Mkhwebane: Yeah, agreed.
Chairperson: Just a pause, Adv Mpofu. Hon Nqola?
Mr Nqola: Thank you very much, Chair. Chair, the Public Protector testifies that there is a particular recording or audio, I am not sure, where a particular said that she must be bankrupted. So she links that with what you may call the performance of the reports; those that were taken to court for a review. If that is the evidence that is submitted, can the Committee have that kind of evidence, which is the recording or VN (voice note)?
Chairperson: She referred to an article.
Mr Nqola: Oh, an article? Can the Committee be in possession of that kind of evidence?
Chairperson: Thank you, Hon Nqola. Adv Mpofu?
Adv Mpofu: Thank you, Chair. That is noted. We will submit it. We will look for it. Maybe when we are coming next we will just identify it for the record.
Chairperson: Okay. Proceed.
Adv Mpofu: Thank you, Chair. Yes. Now, I just wanted to round up the point you made earlier before we discussed this point, about the acknowledgement of the fact you were just not investigating anybody, but the President of the country, and I think you mentioned this in the context of both this CR17 matter, as well as the Phala Phala matter. I wanted to refer you, and I will ask you for a comment, to paragraph 190.
Chairperson: Paragraph 190 of which one?
Adv Mpofu: Of the Bosasa judgment.
Adv Mpofu: Thank you. I am linking it up with the Section 96 that you mentioned before lunchtime, just so that we do not have to go back to topic. I am dealing with two topics at the same time, while Tshepo is putting it up, with two topics at the same time: the Section 96 point, and the special status of the President.
Chairperson: You do not like using the mic, right?
Adv Mpofu: No, she does not want to be on the record. This is what the Chief Justice said then “Furthermore, the President is obliged by Section 96 (2)(b) of the Constitution to ‘not act in a way that is inconsistent with his office.’ This section is the constitutional source of the high ethical standards by which the President is supposed to lead this nation. Strategically and intentionally giving a false version to the Public Protector, while she is investigating a possible ethical breach falls squarely within the catchment area of this Section.” And then, he says, “Truth or integrity is, after all, at the heart of the Office of the President of the Republic, particularly in relation to his or her constitutional obligations. Deciding to present a vision known to be untrue, to be an organ of state, whose constitutional duty is to strengthen our democracy, is conduct that is inconsistent with that high office and obligations that the incumbent has to uphold, defend and respect the Constitution; and so is the failure to report sponsorship or financial assistance from the donors he has addressed and asked to donate to the CR17 campaign. This violation would still be established even if this obligation to tell the truth and disclose is confined only to the money from his campaign, which is, after all, neither his political party, nor an official structure of his party. The second leg of Section 96 (2) has already been dealt with at some length, and I will thus say no more. Lest we forget, we are not dealing here with an average citizen, but with a bearer of specific and frighteningly weighty constitutional responsibilities, who is expected and required to lead by example, and be above reproach. His office demands of him to be the lighthouse, the pathfinder, the embodiment of and the vessel for the enforcement of high ethical standards, particularly the foundational values of our democratic state; in this instance, transparency, accountability and the supremacy of the Constitution. Like all of us, he has rights, but unlike all of us, he does have special obligations, not imposed by courts, but by the Constitution and legislation. It is the President, the number one or first citizen of the Republic who we are talking about here. His is a distinctive and supreme office in the land that does not permit the employment of extraordinary technicalities when issues of ethics, transparency, accountability, upholding and respecting the Constitution have to be considered and pronounced upon. It is in this context, that one is constrained to keep on saying that technicalities must not be allowed to easily frustrate the fulfillment of constitutional obligations, and the attainment of substantive justice.” I need you to comment on two things. One, I think you have already commented on the issue of the special status of the President but particularly what is being referred to here as instead of addressing this question: ‘where did the money come from? Who are these people? What do they want?’ and all that. Going into technicalities as to whether the Public Protector has jurisdiction and what is the definition of personal gain and what have you; ‘where did the emails come from?’ Do you regard that as conduct that was consistent with what was said here?
Adv Mkhwebane: It is not consistent at all. I think, also I have mentioned in paragraph 296 of my statement, where I said…
Adv Mpofu: Sorry? 296?
Adv Mkhwebane: 296, Yes. Where I said the President’s technical approach in this matter leaves much to be desired, because especially when he says he stands for ethical leadership…
Adv Mpofu: Sorry, maybe let us put it up.
Chairperson: We have got it.
Adv Mkhwebane: Yes, 296. That is where I was also speaking about how the President's technical approach in this matter leaves much to be desired, especially when he says he stands for ethical leadership, but goes on to avoid accountability by ensuring that the CR17 campaign existed independently. However, he does not argue that it registered as a separate entity. So it was his campaign, and he was the face of the campaign. So I think the focus indeed was on that. And I think you were still going to address them in the statement, because, like the issues of the code, the issues of the fact it was for the ANC campaign. So it means that that was also perpetrated by the media, mainstream media, and they only made sure that people focus on all those and the mistakes which were there, or genuine mistakes which were there, but the fact of the matter is that they did not report about what his understanding, as the Deputy of President, on whether the Executive Ethics Members Act was applicable to him, and if he acted accordingly. Worse still I think the issue in the Nkandla Judgment; I think the same judgment of Mogoeng Mogoeng where he said, ‘The President is a constitutional being.’ And then being a constitutional being, again, you take an oath of office in terms of Section 95 of the Constitution that you will abide by the Constitution. So I think the intention of the Public Protector in assisting the country should have good governance, clean governance, but as well, ethical leadership, the focus should be on what has happened, what should have happened. They should have happened because part of it we are testing against the available legislative prescripts. So in this instance, we had to check what Section 96 of the Constitution is saying, what the Executive Members Ethics Act is saying about his conduct. But unfortunately, I knew there were instances where I even said sometimes the court judgments focused on technicalities, but they fail to address the issue of what we are doing as the courts assisting in the achievement of justice. I can go on and on and just indicate that some of the judgments like the Venda Pension Fund matter, you will find that it was purely on technicalities, but the fact of the matter is, are those vendor pensioners, what impact and the implication of the decision makers had on them? So was justice served, as far that matter is concerned? No, it was not served. Again, that is reflecting what those who are in the executive who have the financial muscle, who have the resources can go to court. And I think courts should be learning from such instances that sometimes, let us put aside the technicalities and the best lawyers you are having, the implications of their judgments to the future of clean governance of the country or the implications of their judgments to those poor and the marginalised. And the nice thing about the Public Protector is that people who do not have the money, the resources, they would use our offices because they do not pay. And at least as an office, we are able to sometimes defend them and escalate the matters to court and assist the court. So I think that is the best ever we are doing for this institution or for the public, actually. But unfortunately, then the Motion is saying we are litigating recklessly, forgetting that is done with the intention of making sure that we protect those who cannot litigate and those who do not have the resources and the money. So this institution, as Mogoeng Mogoeng said, is like a biblical David, which the Public Protector is to represent them and to take matters up. You will not find people going to court because it is very expensive.
Adv Mpofu: Thank you. Okay, then maybe to round off that entire topic, can you read out 297?
Adv Mkhwebane: “He then goes further to adopt a very narrow approach and say that he did not personally benefit from the CR17 campaign, but on the facts, it is, through this campaign that his personal status from being an ordinary man to becoming a President of the country changed. Today, the CR17 bank statements remain sealed. The country does not know who provided funds for the CR17 campaign. This is in contradiction and in violation of the constitutional principles of openness and transparency, to a greater extent, ethical leadership, which the President and his followers claim to adhere to.” I think, again, here, it is a question of leading by example, being a constitutional being. And if we have this Constitution, and we have to have the Constitution as a living document, we need to see every leader acting accordingly.
Adv Mpofu: Alright. No, thanks.
Adv Mkhwebane: I think at 298 we dealt with Section 96, which, again, I was still emphasising to everyone out there that we dealt with this investigation, in the capacity as the Deputy President of the country. And we were saying, and even any person who intends to be an Executive and the Minister and I said it yesterday that when we train, engage MECs, then we never had an opportunity where we can have all the Ministers together, because that is our intention to say this are the things you need to avoid. Again, when I go around, I used to say, we are tired and that we do not want to receive complaints about you, but these are the areas you need to stay away from. And it is so unfortunate that Section 96, the test is very minimal. It says ‘you must not expose yourself’, it does not say you must have a conflict. It says ‘you must not expose yourself to a situation involving the risk of a conflict between your official responsibilities and your private interests’; which is clearly stated in Section 96 of the Constitution.
Adv Mpofu: Okay, thank you. In the interest of fairness, also even to the President, in the previous paragraph, where they say he moved from being an ordinary man to becoming a President. We also need to acknowledge that he moved from being a Deputy President to becoming a President, which is not like coming from the taxi rank.
Adv Mkhwebane: Yes.
Adv Mpofu: Alright. Sorry, Chair, I just wanted to… I hope I am right about this paragraph. Bundle C, Item 4, Tshepo. Yes. I just want to emphasise this, the Office of the President is just anybody; you or anyone else could be the President, hopefully. So this is what was said by the Constitutional Court about another President, and I just wanted to check to the extent that it applies to any President, and whether it captures what you just said about Section 96 (2). Remember we have had this, at least the most high-profile cases in this country regarding alleged breaches of Section 96 (2), would be Nkandla, CR17 and Phala Phala.
Adv Mkhwebane: That is correct.
Adv Mpofu: Yes. So this is then what the Constitutional Court said: “There is thus a direct connection between the position of President and the reasonably foreseeable ease with which the specified non-security features asked for or now, were installed at the private residence. This naturally extends to the undue enrichment. Also the mere fact of the President allowing non security features about this construction he was reportedly aware, to be built at his private residence at government expense, expose him to ‘a situation involving the risk of a conflict between his official responsibilities and private interests.’ The potential conflict lies here. On the one hand, the President has a duty to ensure that state resources are used only for the advancement of state interests. On the other hand, there is a real risk of him closing an eye to possible wastage if he is likely to derive personal benefit from the indifference.” And the last sentence is the one that is often quoted to define Section 96, and I think it was also quoted in the independent panel report on Phala Phala. And it says “To find oneself on the wrong side of Section 96, all that needs to be proven is a risk. It does not even have to materialise. That is really the question I want to put to you. In relation to everything you have said on the CR17/Bosasa matter, and I want you to comment on whether there was a risk, not necessarily one that materialises, the risk of this kind of conflict. In fact, maybe let me put it like this: if there was no risk of breaching the law, why would the CR17 managers have kept away, according to them, the information and identity of the donors? If there was no risk, why would they do that? Would that be itself an acknowledgement of the risk of a conflict?
Adv Mkhwebane: I think, commenting on that paragraph, and especially linking it to the Bosasa judgment. I think if you can show it again because if you check even the footnotes, it is very critical for you to just note that so that when we deal with that issue of the code, we can deal with the issue. Indeed, the risk does not have to materialise. I think that is why if you read the report and the interviews with Donne and Motlatsi and Chauke, it was very clear that they were saying no. The question which we were asking them was, ‘Was the President involved?’ and they said, 'No he was not, actually, we wanted him not to know who are the donors'. They even said that ‘We informed those people that they must not expect any favours’, all three of them said that. Also during our engagements with them, the question was ‘But if you organise dinners’ which we have shared the audio of our meetings (with), ‘how do you then prevent that from happening because the President attended those functions or dinners and the intention was raise funds with those donors?’. So I think themselves they were also taking precautions, but taking precautions, which they knew that there are cases like the Nkandla judgment, which is there and it is by the highest court – Apex – in the land. I think, SC and Chairperson, the most important thing is that unfortunately, if we are a country, which if we have judgments like this, which we need to learn from, but unfortunately, there was a repeat in the Bosasa matter. So I will say sometimes leaders or people who are Members of Parliament who would want to be leaders, or Ministers or MECs. That is what was happening throughout our road shows of engaging members of the executive. Honestly, find it in your heart to learn, and honestly find it in your heart to be a true leader and a servant of the people because once you do that, you will not have difficulty in complying with things like this. So that paragraph you could see that in the judgment, they are referring to the 2007…
Adv Mpofu: No, let us go to it. We must go to it.
Adv Mkhwebane: So…
Adv Mpofu: Before you…
Adv Mkhwebane: Yes, I just wanted to say that we can note and deal with it later so that she will know when we say she must go to that paragraph.
Adv Mpofu: Yes, thank you. Yes, that was what I was saying. That is an important topic that we will deal with next, after this; just so that we do not mix up the topics. The question really that I was asking you is the relationship between the alleged hiding of the identities of the donors, in the same breath saying there was no risk of a conflict. Is that reconcilable?
Adv Mkhwebane: It is not because we are not saying even that risk materialised or that conflict materialised. But the fact of the matter is, Section 96 is very clear: do not expose yourself to that. Yes, they knew that it was not a good thing to do, but unfortunately, again, they were not transparent enough.
Adv Mpofu: Yes. So even if the version was to be believed that they kept the thing away from the President, that in itself would mean that they knew that there was a risk of conflict?
Adv Mkhwebane: Definitely.
Adv Mpofu: Right. Now, when we come to the… Okay, I have a long topic and a short one. Chair, I am in your hands. Which one should I do?
Chairperson: You can do both.
Adv Mpofu: I cannot, that is why I am asking.
Chairperson: Okay, do the long one.
Adv Mpofu: Okay, I should not have asked that question. Let me follow the Chair’s direction. Alright, let us at least still start with it. If it is too long then we will leave it. I just did not want to leave it hanging, Chair. The issue is about, while we are on the same vein about judgments and the fallibility of all human beings, including judges, and the fact that judges themselves may make mistakes – as I said, hopefully, honest mistakes and inadvertent ones. I just wanted to show you the topic I want to deal with. You remember one of your remedial actions that was criticised, was the fact that you had directed or gave remedial action in respect of the NDPP (National Director of Public Prosecutions), pertaining to the allegations of money laundering, or suspicion of money laundering, as expressed by Mr Maimane, in relation to the CR17 funds?
Adv Mkhwebane: Yes.
Adv Mpofu: If I remember well, and I am paraphrasing, the nub of that complaint was what we call in criminal law, round tripping, was that what Mr Maimane was alleging was that the money has gone through so many hands and structures and so on, that there was a suspicion of money laundering. I do not think he put it higher than that. In other words, if I just wanted to give money to the Chairperson, once I start giving it to this one, who must give it to that one, and via that one and then to Thembinkosi and then that one and that one, instead of just giving it to him. That was the type of allegations Mr Maimane was making. I am not saying that it was true, but was that what he was alleging?
Adv Mkhwebane: Yes, maybe you can go to that letter in the report.
Adv Mpofu: The complaint letter?
Adv Mkhwebane: We attached it in the report.
Adv Mpofu: Yes, it is. I am just checking.
Adv Mkhwebane: Actually, we considered exactly what the complainant was saying. Even if we never met with him, hence I said in service standards, sometimes or most of the time, we meet with the complainants but such high level matters sometimes we will just call to clarify, sometimes when the complaint is clearer then we will just continue to investigate. I think it is page seven and eight of the report.
Adv Mpofu: Getting into trouble with my daughter now, but that is fine.
Chairperson: We are in your hands.
Adv Mpofu: No, thank you, Chair. Let us just round it up. I have already defied you. I took the shorter topic. Mr Maimane’s letter is to be found at page seven.
Adv Mkhwebane: Page seven, yes. He dealt with the improper relationship. And then I think in the paragraph at the bottom, It is my concern that the set of facts related above reveal that there is possibly an improper relationship existing between the President and his family on the one hand, and the company African Global Operations formerly Bosasa, on the other side. The nature of the payment passing through several intermediaries does not accord with a straightforward donation and raises the suspicion of money laundering. The alleged donor is further widely reported to have received billions of rands in state tenders, often in irregular fashion.” So that is where this matter comes from. Again, going through the Mail & Guardian thinking, because we will have to just then deal with all the allegations which are mentioned. We cannot just choose to focus only on this R500 000 and forget about all other issues which were raised.
Adv Mpofu: Yes, so to round-off quickly, so that we leave it at a specific point. You are saying that Mr Maimane’s complaint apropos the money laundering was then based on, what I call for short, his allegation of round tripping the money?
Adv Mkhwebane: Correct.
Adv Mpofu: Alright. Okay, the Mail & Guardian article that we will upload, if it is not uploaded, which we will refer to next, then refers to the other money; in other words, not just the R500 000 but the rest of the more than R1 billion or whatever the total amount is, we will calculate it.
Adv Mkhwebane: The other money.
Adv Mpofu: The rest of the money. Yes, let us just call it that for shorthand. Okay, and Mr Maimane, we have indicated to the Committee, has indicated his willingness to come and testify to this Committee to give his perspective among others on this matter. And we also remember that Mr Maimane was a player in the Vrede matter.
Adv Mkhwebane: Yes. Actually, the complaint was lodged by a member of the DA.
Adv Mpofu: Mr Jankielsohn or something.
Adv Mkhwebane: Yes.
Adv Mpofu: But Mr Maimane was involved?
Adv Mkhwebane: Yes, as an overseer. I do not know how their structure is.
Adv Mpofu: He is not in the structure anymore.
Adv Mkhwebane: Okay, by then, whether a national person and the head can… Yeah. But he came with the beneficiaries to the Public Protector.
Adv Mpofu: Okay, good. Alright, then Mr Maimane will explain for himself those issues. Now, I am committing suicide, because I had negotiated something with the Chair, but I need to round off this point. Again, maybe this is a point we will develop when we round this topic up. I just do not want to leave it hanging because it fits in the evidence you have given about judgments and so on. We were talking about this NPA referral of the money laundering allegations to the NPA or NDPP. Do you remember Mr Mataboge gave, I think, a very clear indication or evidence of the powers of the Public Protector to refer – this is another thing that might be as confusing as the CIEX thing – suspected criminal conduct to the NDPP, as opposed to saying you are saying the person must be charged or convicted or sent to jail. You would refer it to the NDPP and if they find nothing, they find. That has got nothing to do with you, as you would have discharged your duties, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Just like when you refer something for amendment to Parliament, it is their business whether they get the sufficient majority or do not get it, you would have discharged your duty once you have made the recommendation?
Adv Mkhwebane: That is correct.
Adv Mpofu: Now, I then want you to have a look at, in the spirit of scrutinising, and I use that word advisedly, because I will use it, chair, when we deal with the issue of whether judgments are here to be rubber stamped or not. Such a notion would be foreign to the duty of this Parliament because the Constitution requires this Parliament to scrutinise things and not just inquire into them; and also to scrutinise the activities of the executive. But let us put that aside for now. I want to refer you to this particular topic, in relation to the CR17 matter, to the remarks made by Judge President Mlambo, in relation to this issue that we are discussing now, as to whether the Public Protector can make such a referral for alleged criminal conduct. Let us look first at what Judge President Mlambo said in the matter involving President Zuma, or the State of Capture case. Let us go to Bundle C, Item 48, page 1643, paragraph 91. This is what the Hon Judge President said: “There is nothing wrong in either the Public Protector Act or Ethics Act that prohibits the Public Protector from instituting…”
Adv Mpofu: Or rather “from instructing another organ of state”, thank you, Chair, “to conduct further investigation. The Public Protector Act expressly empowers the Public Protector to obtain assistance in any investigation” and so on. That is Section 6(4)(c)(i). That is the tone that Mr Mataboge referred to, do you remember that?
Adv Mkhwebane: Yes.
Adv Mpofu: Alright. Then what was what the learned Judge President said in relation to endorsing Adv Madonsela’s remedial action against President Zuma, correct?
Adv Mkhwebane: That is correct.
Adv Mpofu: Do you agree with the Hon Judge President’s sentiments and Mr Mataboge’s version of the powers of the Public Protector?
Adv Mkhwebane: Yes, I agree, Chairperson. But now, to the rest of paragraph 92.
Adv Mkhwebane: Maybe before you proceed, I wanted to say if you go to paragraph 91…
Adv Mpofu: 91? Yes, Chair, for my own disability, I will ask the Public Protector to read it while I am looking for my glasses. Go to 89. “You see the “language, history, purpose of Section 182 (c) makes it clear that the Constitution intends that the Public Protector has the power to provide an effective remedy for state misconduct, which includes the power to determine the remedy and direct its implementation.” I think yesterday in my response I wanted to say to you that we read this paragraph, yesterday, but it was now in the – this is Pretoria High Court Judgment, remember – or they took it from the Nkandla Judgment. Remember I was saying that when the Public Protector issues a remedy it should also determine how that remedy should be implemented. And then the next paragraph, in fact, then you can go to 91. Indeed, 91 and 92, because 92 is very clever that under Section 6(4)(c)(ii) “The Public Protector, may at any time, prior to during or after an investigation, if he or she deems it advisable to refer any matter, which has a bearing on an investigation to the appropriate public body or authority affected by it, or to make an appropriate recommendation regarding the redress of the prejudice, resulting there from or make any other appropriate recommendation he or she deems expedient to the affected public body or authority.” So indeed, this is how we have been working as an institution. And this also led us to a situation where we had to… It says “during the investigation or after an investigation”, therefore, it does not stop us during the investigation… It gives us the benefit, like the SIU because sometimes when they investigate, they can immediately refer some information to the Hawks or to any other to proceed. This also gives us that. Then also, it gives us that opportunity that even if we have completed the investigation, one of the remedial actions will then be the referral to that institution. And here it is clear that you can instruct that institution, you can also indicate or advise on how that remedy can be implemented. So we took it directly from the Nkandla Judgment but I can see even here, it is definitely reflected.
Adv Mpofu: Good. Now…
Adv Mkhwebane: And the notion – sorry, Chairperson and SC – of some of the analysts or some of the people will say that sometimes when the Public Protector is still investigating, other organs of state cannot do anything. Yes, it is helpful because our investigation is so thorough and through the powers of the Public Protector, we can then accumulate a lot of information and just pass it through because that is what we also intending or we did in this instance, that ‘Okay, because since this is not our mandate, we are referring it to you to look into this.’
Adv Mpofu: Good. And that is the point I am saying. Firstly, you have even taken it to a higher level. So you would then, in the spirit of what Hon Sukers is always telling us, have used the learnings from this Judgment and even better from the Constitutional Court in Nkandla, which you say says the same thing, in order to learn and fashion how you then conduct yourself going forward, correct?
Adv Mkhwebane: Definitely because if you check all our reports, we refer to those paragraphs from Nkandla Judgment. We refer to the Mail & Guardian Judgment. We refer now to this judgment because I remember after it was delivered, I was laughing that even the observations now have a binding nature and the issue of the fact that you need not complete the investigation. But the first stage of you having completed the conduct of the investigation is a different process; the report on that conduct is a different process and then to take remedial action. That is what this Judgment by Judge President Mlambo said.
Adv Mpofu: Yes. Now, I just want to refer you, just to show those who believe that judgment should just be taken at face value that they will end up having a headache. Can you go to Bundle C, Item 30, page 1127, paragraph 289? Right. Now this is the same Judge President Mlambo. Now, same Judge but different President, and different Public Protector as well. Now, you have fashioned in relation to that precedent, and then here now you are condemned for doing exactly that. Can you read what Judge Mlambo then says now this time?
Adv Mkhwebane: From 189?
Adv Mpofu: 189. He is dealing with the same Section 6(4)(c)(i). Maybe let us go up a bit. Yeah.
Adv Mkhwebane: Paragraph 189: “We are constrained to find that the Public Protector’s issuing of the remedial action to the NDPP coupled with her insistence when the NDPP queried her that she expected the NDPP to carry out her directive, displays in our view a complete lack of understanding on her part of the limits of her powers as provided for in Section 6(4)(c)(i) of the Public Protector Act in relation to matters falling under the NPA. We also find that she displayed a clear failure to grasp the meaning of the concept of prosecutorial independence decreed by Section 32 (1)(b) of the NPA Act. The PPA (Public Protector Act) and the NPA are clear that she has no power to direct the NDPP to investigate any criminal offence and how to go about to investigate or how to go about doing this.” Hence I said that anyway this reflects… because ‘you dare if you do, you dare if you do not’. Unfortunately, Hon Sukers wherever you are listening. We tried to put all these judgments as our guideline because, you know, showing that we are a learning organisation. Now we directly rely on the ConCourt judgment which says how to take a remedy you need to direct how it is implemented; and it was done in the Constitutional Court Nkandla Judgment. Now, we do the same and we are or I am accused of not understanding my mandate. I am accused of…
Adv Mpofu: Failing to grasp…
Adv Mkhwebane: Legal issues. Hence, my predicament now to ask myself, is this playing the ball or playing the man? Normally I would have the feeling that it depends who the Public Protector is, and whether that is fair for a constitutional democracy like ours and what are we doing to the future generation, because I am person who is concerned about them – we have a lot of lawyers and law students who are still at the universities and everything. So I do not know how we explain them if you are dealing with me? Then what do they learn from this? I did what I thought it has been done for.
Adv Mpofu: Well, thank you. I was saying that is just homework for those who would think that judgments must be taken at face value. They will tell us, maybe one day, which one of those two judgments from the same judge should be chosen. Thank you, Chairperson. The next topic is too long.
Chairperson: Okay. Thank you, Adv Mpofu. Colleagues, the time now is 16:55. This is where we are going to pause for the day. Maybe to indicate that though we are scheduled for tomorrow as well, we will not be meeting tomorrow, as the Public Protector has an important appointment at the Pretoria High Court, so we will not be sitting as an Inquiry. Again, we will not sit on Monday and Wednesday, not because of the Public Protector, this time because of Adv Mpofu, the legal representative or the Public Protector who has important matters on Monday and Wednesday, in Pietermaritzburg, which means we will then resume, colleagues, from Thursday. We are still finalising the time so that we allow a little bit of space. So whatever time, if we start after tea or lunch time, we might have to go much later on the day on Thursday in order for us to allow for… because it is kind of back to back, and we respect that. So that is what is going to happen. Also linked with that, Adv Mpofu, we are going to expect that by at least Wednesday latest, if we can get the remaining portions of the installments, because that will help to determine others. So we will be expecting by Wednesday to get the rest of the statement from yourselves. We have quite a long extended weekend to help us deal with some of those issues. They have to catch a flight, so I do not want to delay them any further for this evening, because I am not sure if they are not there tomorrow what will happen at the Pretoria High Court. With that, colleagues, this is where we are going to adjourn our meeting.
Adv Mpofu: Thank you, Chair. For the record, it is the magistrates court, but it is in Pretoria.
Chairperson: Oh, okay. Not the High Court?
Adv Mpofu: Yes. Thank you very much, Chair. We appreciate that and we will communicate about the statements. We certainly were envisaging that the next installment should be due sometime next week. Thank you, Chair.
Chairperson: Thank you, colleagues. We will follow that up with our issues. Thank you. The meeting is adjourned.
The proceedings were adjourned to resume on Thursday 23 March 2023.
Dyantyi, Mr QR
Dlakude, Ms DE
Hermans, Ms J
Herron, Mr BN
Joemat-Pettersson, Ms TM
Legwase, Ms TI
Lotriet, Prof A
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Mgweba, Ms T
Nkosi, Mr BS
Nqola, Mr X
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Van Minnen, Ms BM
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