PP Inquiry day 65: Adv Busisiwe Mkhwebane

Committee on Section 194 Enquiry

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


Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

The Section 194 Committee inquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, heard further allegations of victimisation from Adv Mkhwebane today, which she claims resulted merely from fears of the work she was conducting in Public Protector South Africa (PPSA). Going further, she mentioned that the binding nature of the PP’s remedial action was grounds for professional jealousy from judges.

Adv Mkhwebane questioned why the media continued to push the narrative that she is incompetent and did not properly understand the law. The remarks made by those in the media, she said, were unfortunate and magnified her mistakes, which were only minor in nature. Furthermore, she argued that the focus on her mistakes ignored the good work that she and her team of investigators have done over the past seven years.

She denied the accusations that she had made an alleged change to the wording of the Executive Ethics Code, in order to find President Ramaphosa guilty. In previous testimony before it, the Committee heard that Mr Rodney Mataboge, Chief Investigator at the PPSA, used the incorrect wording for the Code in the draft for the CR17/Bosasa matter; however, it was changed upon Adv Mkhwebane’s instruction.

Meeting report

Chairperson: I would like to welcome you to the Inquiry on this day, 28 March. And I want to indicate up front that we are in the month of Ramadan, and I would want to take this opportunity to wish the entire Muslim community strength during this time. But also, to welcome Members here at M46, and on the Virtual Platform; to welcome the Public Protector, Adv Mkhwebane, especially after you have made a full or better recovery from the illness, we welcome you back. We also welcome your legal team, led by Adv Mpofu, Evidence Leaders, advocates Bawa and Mayosi, members of the media, the entire support staff of the inquiry as well as the members of the public, welcome back to the inquiry from all of your various platforms. We will proceed as usual, but I just want to indicate up front that I and Adv Mkhwebane in-between the normal breaks that we might introduce five-minute stretch breaks, for good reasons, so do not be surprised when we do that. So thank you very much. I therefore, want to take this opportunity to invite Adv Mpofu to take over from here and continue the testimony with Adv Mkhwebane. Thank you very much. Over to you, Adv Mpofu.

Adv Dali Mpofu (Leader of PP legal team): Thank you. Good morning, Chairperson, Members and colleagues and members of the public. Chairperson, if I may, before we start, there are various issues of different degrees of seriousness which we needed to raise, but you indicated in your letter – in the letter that we received yesterday –that we should do so towards the end of the day. So I will just keep in touch with you as to when the appropriate time is; maybe when we shift to another big topic or another heading, or whatever. But we just need to flag that.

Chairperson: That is in order. Thank you.

Adv Mpofu: Thank you, Chair. Good morning, Public Protector.

Adv Busisiwe Mkhwebane (Public Protector): Good morning, SC, Chairperson, Committee Members, Evidence Leaders and the members of the public.

Adv Mpofu: Yes. Thank you, Public Protector. I think we also hope that you feel sufficiently better to carry on?

Adv Mkhwebane: Yes, I think I will try. As the Chairperson said, we will do…

Adv Mpofu: Your secret deal?

Chairperson: I do not know about it being a secret.

Adv Mkhwebane: I do not know about it being a secret.

Adv Mpofu: PP, we left because we were in a bit of a hurry and that day I had a secret deal with the Chairperson, because we were chasing a flight. I just want to round up the topic that we were busy with, so that I can move to something else. So we left it kind of hanging. Just to remind everyone, as it has been more than a week since we were here, we were busy finishing off the issue of the referral of the allegations of money laundering, to the NDPP (National Director of Public Prosecutions). Do you remember that, PP?

Adv Mkhwebane: Yes, I remember.

Adv Mpofu: And we had just put up the two dicta, as we call it, or the passages from two judgments of Judge President Mlambo, which seemed to be saying different things on the same topic.

Adv Mkhwebane: Correct.

Adv Mpofu: Yes. I think my last word was to say homework for those who think that judgments can simply be transplanted, because we would know which of those versions to take. So I just want to finish that topic with just two quick aspects. This is really just for emphasis or to emphasise the point that I suspect that the issue of the rule of the judgments is going to play a very prominent role. As I said to you, the legalities around it will obviously be argued when we do the oral argument or the legal argument at the end. So with you, we simply just want to tease out the facts so as to create a platform for those legal arguments: it is quite important. You will remember that literally on day one, that would be the 11 July 2022, it became clear that ourselves – when I say ourselves, I include you – and the Evidence Leaders had a fundamental difference of approach, which, as I say, will be resolved one way or the other in legal argument. And it is centred around this question of the role of the judgments. They hold the view that the judgments or binding, there is nothing more to be done, and we hold the view that the judgments are here to be scrutinised and verified and inquired into and so on and so on, without obviously detracting from the rule of stare decisis, that higher courts bind lower courts and so on. And my prediction is that, and I think you also put that in your statement, that the resolution of that issue one way or the other is going to be a major issue in the legal argument – that is one of the big issues. The second big issue is going to be the scope of the Inquiry, you know what you mean by that – everyone here now knows what you mean by that – whether A, the Inquiry should be confined to the recommendations of the independent panel to the extent that it might have excluded some of the ‘Mazzone Motion’ charges, or B, whether the Mazzone Motion is to be inquired into as it is. Again, we do not have to get into that debate right now, but those seem to be some of the big issues or hurdles that we are going to have to overcome, before we know what it is that this Committee has to verify. Now, against that background, this issue of the judgments that we were dealing with then becomes quite important. I would like to, before we move away from that topic, maybe let me ask Tshepo to put up this audio visual material which deals with what I read out the last time and we found it fortuitously. It is Bundle H, PP Folder 31.7.10. It was just uploaded now, before we came here. I thought it was uploaded yesterday, because that is when we found it. As I say, it is just for emphasis as we have already read this out to the Committee.

Chairperson: Are you winning, Tshepo? Okay, thank you.

Adv Mpofu: Hold on. Chairperson, just in fairness.

Chairperson: Just a pause before you play it out. Please pause on it. Thank you. Adv Mpofu?

Adv Mpofu: Chair. Yes, I just thought for people who have not seen this; it is easy for me because I watched it over night. Yes, it is just background, and it is the point that we made, I know it was more than a week ago; it is the same point but just a visual representation. In other words, people must look out for the one statement and the later statement against each other. Thank you. I just thought it would be easier.

Chairperson: Thank you. Please proceed and play the clip.

The Committee played a clip of the State Capture Review Case handed down by Judge President Mlambo.

Chairperson: We are hearing too many voices there.

Adv Mpofu: It is me and you, and then the video at the same time.

Chairperson: Yeah, we want to hear Judge Mlambo. Adv Bawa?

Adv Nazreen Bawa (Evidence Leader): Chair, can I check, are you… Sorry, Chair, through you. Is this him reading out the judgment or is this what he had to say?

Adv Mpofu: No, it is just the order.

Adv Bawa: Just the order?

Adv Mpofu: Just the relevant portion.

Adv Bawa: Adv Mpofu, can we just not read it as we have it in front of us?

Adv Mpofu: Yes, we can. We have already done that but we just want to use it for emphasis.

Adv Bawa: But the sound is going to be exactly the same thing, and it is terrible.

Adv Mpofu: Okay, fair enough.

Chairperson: Yeah, thank you. Can we improve the sound? Let us try again.

Adv Mpofu: Chair, just to save time, what seems to happen is that somehow the conversation between you and me is superimposed onto the video – I do not know how that happens.

Adv Mkhwebane: I think it is because when this is on… Maybe if we all switch off our mics?

Chairperson: Okay, we will try that. Let us do it for the last time. I will switch off.

Adv Mpofu: Okay, Chair, I have an idea. Can I… I will lead this and start with another topic, then I will ask my team to literally resend the thing afresh and then we will ignore that one and play the new one.

Chairperson: Thank you for that.

Adv Mpofu: Thank you, Chair.

Chairperson: You can now switch on yours, Adv Mkhwebane. Thank you.

Adv Mpofu: Alright. In any event, this topic that we are dealing with, the real gist of it is the reference to Section 6(4)(c) of the Public Protector Act, which Ms Bawa, I am sure, can find for us. It is the one that deals with your power to refer to other agencies.

Adv Bawa: Is that in the Nkandla Judgment?

Adv Mpofu: No, it is just the Public Protector Act itself.

Adv Bawa: Bundle A, under the legislation.

Adv Mkhwebane: Also paragraph 303 of my affidavit.

Chairperson: 303?

Adv Mkhwebane: Yes.

Adv Mpofu: Right. Chair, I will just read it. Can we go down 6(4), please, Tshepo? “The Public Protector shall be competent to investigate on his or her own initiative on receipt of a complaint. Any alleged…” and then they list out the various things. And then (c)(i), “if he or she is of the opinion that the facts disclose the
commission of an offence by any person, to bring the matter to the notice of the relevant authority charged with prosecutions.” Now, it looks like the finding against you by the Majority in the CR17/Bosasa matter, revolved around the interpretation of that Section?

Adv Mkhwebane: Correct.

Adv Mpofu: Yes. And just to save time, I will put it like this: your view is that it says what it says, that if you are the opinion that there has been a commission of an offence by any person, then you would bring that matter to the notice of the NPA – I am just paraphrasing – because the only relevant authority charged with prosecutions is the NPA, correct?

Adv Mkhwebane: That is correct.

Adv Mpofu: Right. And then Sub 2, Chair, says that “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 and affected by it or make an appropriate recommendation regarding the redress of the prejudice, resulted there from, or make any other appropriate recommendation he or she deems expedient to the affected public body or authority.” So that is the wider one, where you refer any matter, which has any bearing to an investigation, not necessarily criminal offence to the relevant authorities?

Adv Mkhwebane: That is correct.

Adv Mpofu: Right. Now, the view of the… You will remember that Mr Maimane’s complaint, in the case that we are dealing with, involved suspicions or allegations, let us say, of money laundering?

Adv Mkhwebane: That is correct.

Adv Mpofu: Right. Now, let us put aside the debate of whether it falls under PRECA (Prevention and Combating of Corrupt Activities) or POCA (Prevention of Organised Crime Act), we will come to that. It seems like in the report the wrong statute was referred to, but I do not think that is a major issue. Let us just say it is a crime. Money laundering is a crime, correct?

Adv Mkhwebane: That is correct.

Adv Mpofu: Yeah. Can you then explain to the Committee on what basis, using what we have seen, you made the remedial action, which was for the investigation of the alleged money laundering claims against the President?

Adv Mkhwebane: Yes. In the report, we in fact mentioned or we also attached the letter, which was from the complainant directly. Also, the good thing was that to show that the complainant was also saying they suspect there might be issues of money laundering the way the money was transferred from one account to another account. So during our investigation, the evidence which was before us was showing that, indeed, there was indeed a lot of money which was moving from one account to another account. And then, as you would see that Section 6(4) is very clear that either during the investigation or at the completion of the investigation. So it is possible for the Public Protector during the investigation even before the investigation is complete, to refer the matter to another authority whilst continuing possibly with other matters, which are falling within the mandate. But then in this case of the CR17 investigation or Bosasa investigation, we completed the investigation and then we referred the alleged issues of the claim or the allegation that there might be issues of money laundering or there might be any criminal elements. So, hence, in this instance, we referred the matter to the relevant institution, which is responsible for prosecution, which is the National Prosecutions Authority. So other matters, we also refer to the Hawks during our investigation or the completion of the investigation. I think that is why I said that sometimes people have a wrong perception that possibly as the Hawks or any other institution, they might not proceed with their matter or investigation until the Public Protector finalises the matter. But then that does not stop any other institution to proceed with any other matter if the matter is before them, per their mandate.

Adv Mpofu: Alright. Just to be sure, Bundle E, Item 10, Number 1, please? That is the Bosasa Report.

Adv Mkhwebane: Whilst still looking for it, again, besides what the complaint was all about, then take it further to what the Public Protector is expected or learning from the Mail & Guardian Judgment, that the Public Protector should have an inquiring mind and not only be restricted in the investigation.

Adv Mpofu: Right. Now, if you go to page 17, Tshepo. Okay, I will not read that out, just to save time. That is where you basically make a finding in reference to the Section that we just read out to the Committee, correct?

Adv Mkhwebane: Yes, this related to the issue of regarding whether there is an improper relationship between the President, Ramaphosa and his family n the one side, and the company, African Global Operations on the other side, due to the nature of the R500 000 payment passing through several intermediaries, instead of a straightforward donation to the CR17 campaign, thus raising the suspicion of money laundering. So I must also upfront say, to the Committee Members, Chairperson, and I think this process is also helps I indicated last week that it is for the benefit of the public, and I think, hence, sometimes I would prefer that we read and also educate not only the public but even public servants to know, when we investigate, we deal with issues. So in this matter, when we received that complaint of Mr Maimane, it is on page eight of our report, and we then had to go through that letter. Sorry, SC and Chairperson, if you go to page eight, Tshepo. We also adopted the issue of also just showing that this is the complaint which we have received because some implicated parties might say to us, ‘but who has complained? I just want to see the complaint.’ So putting it in the report, at least also shows that these were the issues which were raised, but then it does not restrict us because we can go beyond these issues. So that is where there was mention of the money passing through. So when you pick up that, then you can indicate that we have got the following two… three issues we are investigating. So under each issue, SC, if you can give me an opportunity to explain?

Adv Mpofu: Yes.

Chairperson: The Chair will give you that opportunity. Please proceed.

Adv Mpofu: The Chair is more patient.

Chairperson: Do not be intimidated by him.

Adv Mkhwebane: I think the SC is under pressure because they said the time, but I prefer that at least people must understand because when we receive such a letter, there is an assessment. Then we determine, because this will help us in the Vrede matter as well, SC, which issues we are investigating. So after receiving this complaint, then we say we have got three or four issues that we are investigating. Under each issue, we need to determine what happened, what should have happened, what laws have been violated, and how to address the gap between the two, so that we uproot the root causes, so that we can remedy that. So under this issue, because there were three issues, which we identified under the Bosasa matter. So it was then the issue of the questions responding to Parliament about; the second one was relating to the violation of the Executive Members Ethics Act concerning the exposure to a risk of a conflict; then the third one was relating to the improper relationship between the President, his family, and African Global Operations or Bosasa – that is the one which you asked now. This is the one where after the investigation and the evidence and the bank statements we have analysed, and the reflection of this R500 000, but then as well from Miotto, to EFG2 (Edelstein Farber Grobler) to this Linkd company and how the money was moving; hence there was a need to refer this matter to the NPA, which you have just read now.

Adv Mpofu: Okay, thank you. I think you know me too well. You could see that I wanted to move on, but I think it was important that the Chair allowed for that background, although it covers some of the ground we had already covered, it just situates the evidence. Let me do it like this, again, as I am trying to run with this. You remember that we had a discussion about the structure of your powers? Simple, investigate, make findings, you report and you remedy. We explained that remedy means literally curing, as you have just said, whatever it is the complaint was – we even used the medical example. So the patient is the complainant, they say this and that and that is wrong. You investigate to see if that is indeed so and then you prescribe the medicine, which is the remedy. Okay, that is fine. Okay, that is good for background. I wanted us to zoom into this specific issue of money laundering, and I think you have already covered it, so we do not have to go back to it. You have said that it is not something that came from your head, it emanated from Mr Maimane’s complaint, and it involved, what I called the last time, round tripping. In summary, he was basically saying because the money went to this one and that one and that one, then there is a suspicion of money laundering?

Adv Mkhwebane: Correct.

Adv Mpofu: And based on your findings, then you made the recommendation… not the recommendation… the remedial action, which you will find page 19, Chair.

Adv Mkhwebane: Of the report? Page 18.

Chairperson: Is it page 18 or 19?

Adv Mpofu: 19.

Chairperson: He says 19.

Adv Mpofu: It is against AA. This is what you were criticised for. This is one of the issues that you are supposed to be impeached for. 18? Yes, sorry. It is my mistake. This time it was my fault. Tshepo is wide awake.

Adv Bawa: Adv Mpofu, it is always your fault.

Adv Mpofu: Okay, against AA, this is what it says – really, all you did was make this recommendation and you should be impeached – “Within 30 The working days after receipt of this report, the National Director of Public Prosecutions is to take note of the observations contained in 7.3.1”, you have already referred to that, “as well as the recommendations contained in paragraph 7.3.3 of this report” that is where you confirm Mr Maimane’s allegations as having a prima facie basis, “and in line with Section 6(4)(c)(i)” which we just read now, “of the Public Protector Act, conduct further investigation into the prima facie evidence of money laundering as uncovered during my investigation, and deal with it accordingly.” Now, I think the simple question is: for making that recommendation, is there anything to your knowledge of the law and of your powers that is outside the scope of your powers that you were doing? In other words, were you finding anyone guilty or were you prescribing to the NDPP to find someone guilty or even to charge them? What were you doing by making that remedial action?

Adv Mkhwebane: No, I was not at all, because I do not have the mandate to investigate criminal conduct or criminal matters. The powers and the mandate of the Public Protector from the Constitution are to investigate improper conduct in state affairs and remedy that. So in this instance, I do not have jurisdiction to investigate criminal conduct, money laundering or suspicion of money laundering. And when I say these prima facie cases to investigate this, it was based on the evidence before me, which is the bank statements, and how the money was moving from one account to the other accounts. We could not ignore the fact that the money was paid into an account, and it moved from one account to the other. And I must indicate, SC, that, again, from the very same judgment of the State of Capture Judgment, the one we still going to deal with of Judge President Mlambo, what we also picked up and we also mentioned in our all our reports, was that they even went further and said the Public Protector can even only investigate and issue a report of referral, or the Public Protector can investigate, have findings, and not take a remedy, but then that is also binding, that even observations are binding, which is one thing which we were not doing. But through that judgment, we also then took that into consideration or the development of jurisprudence. So this is all which I did. I was not finding any person guilty. I was just saying there is this evidence in NPA. This is your constitutional mandate. Can you look into the matter? And again, looking into the previous judgment of State of Capture, where the Judge President said that there is nothing wrong in there, for the Public Protector to refer the matter to other organs of state.

Adv Mpofu: Thank you. Yes, that is where the bite, really, of what I am dealing with is. In other words, to your knowledge was what you were doing any different from the referral for further investigation by the NPA that was done in relation to the State of Capture Report?

Adv Mkhwebane: Nothing at all. I mean we will have to possibly just go through to the State of Capture Report and you will see exactly the same section was utilised. And the court pronounced that there is nothing wrong in what the Public Protector has done because the legislation, the Public Protector legislation, which gives the Public Protector additional powers, empowers the Public Protector to do exactly that.

Adv Mpofu: Yes. I think we are going to do the second try of the video, but if we fail this time we will not do it. The emphasis on it is that you fortified by your interpretation of 6(4)(c)(i), which was just put up for Members, but you were also fortified by the articulations of Judge President Mlambo in the State of Capture Judgment, correct?

Adv Mkhwebane: Correct. Chairperson, I think this process is also for the public. The public is watching and I think it is very critical for them to see that video. But secondly, also the students I know are watching, so you should also be watching that Latin word, so that they can learn.

Adv Mpofu: Well, okay. I think the last time we tried to speak in Latin in this room…

Adv Mkhwebane: No, but you are educating.

Adv Mpofu: Alright. If I do that, then I will also translate into simple language… I hate Latin. Alright, Tshepo, can we try That is the re-uploaded (video). It has also been emailed to you, if that does not work.

Chairperson: I think whilst we try to fix this we will pause.

Adv Mpofu: Thank you, Chair.

The Committee took a five minute break.

Chairperson: We are back exactly five minutes after. The people would have been back before that five minutes, but some of her beneficiaries of that break are still outside. Thank you. We proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. Yes, can we go straight into the video before it misbehaves again.

The Committee played a clip of the State Capture Review Case handed down by Judge President Mlambo.

Adv Mpofu: It got cut short. It is almost done, but obviously we will have to try some other time. I just want to assure you that whenever it is, it will be a minute or two. Thank you, Chair. PP, it looks like either the IT people are – I will leave the judgment of the IT people to the Chair. Now, just to round off the point. You have this scenario… Hon Sukers, I think, favourite point is about learning from judgments in order to have what we know as continual improvement, which any manager knows that is how you learn. I think the guru internationally is a person called Peter Senge, whose book is called the Learning Organisation; an organisation must learn from its mistakes, otherwise, it will never grow. The point really, which is crucial to this Committee, is how then would you… You are a Public Protector. You come into office. You are armed with a judgment of one judge, which says ‘Yes, you may refer a matter to the NPA, in terms of Section 6(4)(c)(i).’ For dramatic effect, we argued that – I was in that case – and our opponents were saying ‘No, no, the Public Protector cannot encroach into the independence of the NPA and what have you’ and we said “No, in terms of Section 6(4)(c)(i), as long you do not prescribe and do not say you must charge this person.’ In other words, if the NPA investigates, and they find that there is no case, then you will have nothing to do with it. In any event you will be functus officio. We succeeded in that argument. And then you did the same thing a few years later, I think in 2019 or 2020. Then you are told by the same judge that it is a sign of irrationality and all sorts of things. What does that do to your ability to execute your functions?

Adv Mkhwebane: You know, that creates a lot of confusion in how we operate as an institution because, indeed, as a learning organisation, and, again, repeating that each and every report of the Public Protector… I mean, if you check the reports I issued when I joined in… Oh, let us check the reports of my predecessor compared to the reports I issued in 2016 improving, 2017 improving, 2018 to show that we are a learning organisation, and as well, learning from the jurisprudence, which the courts are there for. Now, you find this particular matter where we investigated the matter knowing that I do not have jurisdiction over criminal conduct, and this matter should be referred to the National Prosecution Authority for them to look into the matter. I think you have seen how I have crafted or how that remedial action is crafted by the investigation team, which I agreed to, because at the end of the day, that is what I agreed to; but it creates a lot of confusion. I mean, in Sepedi they say ‘Ke Kgomo ya moshate: wa ikgapa o molato, wa e tlogela omolato’, meaning that whatever you do you are wrong; hence I am sitting here and the independent panel said I should be accounting for how I dealt with the Bosasa investigation. I think this is an opportunity for me then to show the public or anyone who cares to listen, that this is the provision of the Public Protector Act. This is what the same court under the same Judge President, who said during my predecessor's time or my predecessors report against President Zuma, there is nothing in the Public Protector Act which prevents the Public Protector to refer the matter to the NPA. But under my term of office, and investigating again the President, using the same legislation, the same provision referring this matter to the NPA, then I am being criticised that I am encroaching on the independence of the National Prosecuting Authority. And unfortunately, that is not our intention as an institution. Now, this puts me or puts us in a predicament. Maybe then the next Public Protector will be lucky enough and possibly would not be treated the way I was treated. I do not know which, when I hand over to that person, or when that person continues to do their work as the Public Protector, what do we say to this Section 6(4)(c)(i)? Must the person refer the matters or must the person… what should happen if the courts say you cannot do that as the Public Protector? So I think that is a very confusing situation. And again, I would normally say, I pity the students who are still at various universities. As law students, we rely a lot on court judgments. That is where we learn. That is where we learn the interpretation of statutes. Courts bring life to what is written in any legislation. So that creates a lot of confusion. And I must indicate that, indeed, we took the judgment, we incorporated in our various reports what the judgment has been saying, as I said earlier. Thanks.

Adv Mpofu: Right. Well, I think maybe just to place you then, in the context of a learning organisation. In this case you are the ‘student’. It is in this then the situation where the teacher tells you on Monday that one plus one is two. And then on Tuesday, they tell you ‘No, one plus one is now five. 'And then, if you fail at the end of the year, then we blame the student or should we blame the teacher?

Adv Mkhwebane: Definitely we will have to blame the teacher because I mean, whatever the teacher says, goes. Indeed, you cannot blame that particular student because they were told by someone in a position of authority. Me respecting the judges and the judiciary and learning from (them) because it is their specialty and they are guiding us. And I mean, being an institution, which is operating under the rule of law, that is what I thought we should be doing, but now I do not know which way to follow.

Adv Mpofu: Alright. Thank you, Chair. If I have the stamina, I will come back to the video at some other time, but I want to move on.

Chairperson: We are flexible on that.

Adv Mpofu: Thank you very much, Chair. Now, PP, again, without taking you back to the legal debate, for the next section I am going to take you to the findings of the independent panel, specifically on the CR17 matter. If we are right, that is really what we have to zoom into; it is those issues that they identified. If we are wrong, of course which is why we dealt with the bigger picture as well, but at least we covered those issues. I now want to zoom into the issues specifically identified by the independent panel. Before I do that, Chair, if I may? For context, can we go to page 822 of the independent panel report, Tshepo? I am sorry, it is paragraph 81. Did you get it, Tshepo? It is Bundle A, 10397.

Chairperson: Page 30 of the report, paragraph 81?

Adv Mpofu: Yes, thank you, Chair. That is what we call a concurring judgment.

Chairperson: So it is cleared, there is nothing with the clip.

Adv Mpofu: It is the people. IT, you must function or resign. Paragraph 81, and I will just read it out…

Chairperson: Just pause, Adv Mpofu. IT we have an echo and there is nobody talking here for us to have that echo. Please try and fix it. Let us try again, Adv Mpofu.

Adv Mpofu: Thank you, Chair. I will just read it out. This is what the independent panel said…

Chairperson: Let us pause, as we have to do it properly.

Adv Mpofu: Thank you, Chair.

Chairperson: Can we try again, Adv Mpofu? The problem was with Tshepo. Proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Alright, I will read it out; it is paragraph 81. It says “if on the evidence before this panel, which consists primarily of reports, court pleadings in the form of affidavits and judgments, it is found that the information provided by the Member” that would be Ms Mazzone “considered against the constitutional and legislative backdrop does not establish prima facie evidence of misconduct, incapacity or incompetence to warrant a recommendation to the Speaker of the National Assembly to appoint a committee to commence a Section 194 Inquiry, then in that event, there will be no such recommendation. Conversely, if it does establish prima facie then an appropriate recommendation will be made.” What is your understanding of that? What happens if no prima facie evidence is found? The simplest way to do this is to assume that there was one charge of this referral to the NPA, and if the independent panel found that there is no prima facie evidence, what should happen? And if it does find that there is prima facie evidence, what should happen?

Adv Mkhwebane: My understanding of this is that if indeed there is evidence which determined that there's prima facie evidence of misconduct, incapacity or incompetence, they will then make a recommendation to the Speaker, to establish or to commence a Section 194 inquiry. But then if there is no such recommendation, if it does establish prima facie evidence, then an appropriate remedial action will be made. In other words, let us say in this instance, there are three charges, and one of them, they say there is prima facie evidence, then it means then there must be a committee based on that one charge, but then the other two, there is no need because there was never a prima facie evidence to come to that particular conclusion.

Adv Mpofu: Yes. I think the emphasis from the independent panel is on the issue of appointing a committee. In other words, just to even have this Committee in the first place, forget about what it is going to do. Let us go back to my example of the one charge. They say ‘if the evidence does not establish prima facie evidence of misconduct’ and so on, to warrant a recommendation to the Speaker to appoint a committee, then in that event, there will be no such recommendation. In other words, no committee will be appointed at all?

Adv Mkhwebane: Correct.

Adv Mpofu: Okay. Conversely, if there is then there will be a committee. Okay, fine. Alright, let us put that in mind. If that is your understanding then that is your understanding, but we will leave it, again, as I say for argument at the end. Now, against that background, and we know that this Committee holds a different view, because it says, ‘well, whether there is evidence or not, we just go to the original charge sheet.’ Let us now then go to 887, Chair? I am so sorry, I am using my own page numbers. It is paragraph 215, Tshepo, printed page 95 of the same report.

Adv Mkhwebane: I think that whilst going there it is… Indeed, I think we will go to that because if that is the case then the Committee would then focus on the matters where there is evidence before them. Having prima facie evidence does not mean that a person is also guilty, because then you still need to inquire on that particular matter.

Adv Mpofu: Yes, correct. It is only what we call in legal terms, a hurdle. The prima facie evidence is a hurdle to pass. So if it was a criminal matter, Section 174 of the Criminal Procedure Act, if you do not pass that hurdle then you must be discharged.

Adv Mkhwebane: Discharged, yes.

Adv Mpofu: Okay, thanks. I think Tshepo has found it. Now, Chair, at least as far as the independent panel is concerned, these were the only two things in respect of which they found prima facie evidence of misconduct. Remember, there is misconduct and incompetence?

Adv Mkhwebane: Yes.

Adv Mpofu: As far as misconduct is concerned, there are only two things that the independent panel found prima evidence on, in our interpretation. On the interpretation of the Evidence Leaders and the Committee, it is everything that is in the Mazzone Motion, but our interpretation is only these two things, okay? It says “We find prima facie evidence of misconduct in the sense of an intentional and gross negligent failure to meet the standard or behaviour of conduct expected of a holder of public office in respect of the CR17 Report for the following reasons: one, the findings against the President on the issue of money laundering” that is the one we just discussed now, right, “and two, the PP’s doubting the bona fides of the President without reason and her failure to have an open mind on the issues to be determined.” That is it, correct?

Adv Mkhwebane: Correct.

Adv Mpofu: So if we prevail in the end, those are the two issues of misconduct that you will be facing, at least before this Committee, that you will be legitimately facing. Okay. I just want to say now, with that background in mind, the issue of the doubting of the bona fides of the President, I think we dealt with exhaustively, Chair, in the last session when we were here. We went through the minority judgment of Mogoeng Chief Justice, who I think we all agree put it much stronger than you. You might have doubted the bona fides of the President, but the Chief Justice basically said he lied and he gave a false account of the events.

Adv Mkhwebane: That is correct, yes. I think with our investigation showing the… or with the evidence before us, that there was indeed, especially firstly, the responses in Parliament, which was and is all over and still there in the archives –how he responded; the letter he wrote to the Speaker, correcting the matter and even confirming himself that it was relating to the CR17 campaign. Then the confirmation by all those we interviewed, the CR17 Campaigns Manager, Mr Chauke, the others, Donné and Motlatsi. And as well, the confirmation that they hosted those gala dinners, where they invited the donors, one of the donors being Mr Gavin Watson who confirmed the R500 000 and who also attended one of those events. So the evidence was there in the report, where we captured the information. We availed the audio recordings to the court, and indeed, all that evidence was before us. Then the issue of the emails to show that he personally sent emails or he was sent emails by Donne; he also sent emails to the prospective donors to facilitate – and we have shared those emails last week. So the evidence was then leading us to that. I think that it is true what you are saying that Chief Justice Mogoeng Mogoeng then said instead of addressing this issue, he is worried about where did you get the emails; so it was not doubting but it was the evidence and based on the complaint lodged by Mr Maimane, the investigation by the investigator and the finalisation of the matter. Indeed, I would say that prima facie finding or recommendation has no basis because we were basing our investigation on evidence, which is still out there, and the judgment of Mogoeng Mogoeng, which put it very stronger than us.

Adv Mpofu: Again, we will not go there because I think we went there extensively last time. But just to recap, the email information, which you say belied the denial of knowledge, was there ever a stage where the President said ‘No, the content of the email is wrong’?

Adv Mkhwebane: Not at all. I think…

Adv Mpofu: Oh, sorry, I think there was one email she signed where it says ‘take this money and put it there’ or whatever ‘Cyril’. Did he ever say ‘No, that was not me, maybe it is another Cyril. I do not know anything about this transaction’?

Adv Mkhwebane: Not at all. In fact, that is where the Chief Justice was even saying we should have also then given them an opportunity to comment on that, but then when the matter was then before court, there was nowhere where they were disputing that this email was not from the President. It was sent to Donald where he was saying the R75 million should be shifted to Ria Tenda, and as I said, Ria Tenda Trust Account was the one where a lot of monies were transferred to this account. One of the directors, we have mentioned last week, was Ms Ntshaveni, as the director of this Trust Account.

Adv Mpofu: Ria Tenda, yes. The sole director was Ms Khumbudzo Ntshaveni who is now, after the reshuffle, the Minister in the Presidency in charge of Security, our security.

Adv Mkhwebane: Yes.

Adv Mpofu: That then would take care, and whatever we did when we were last here, deals with 215.2, which is the basis on which you doubted, to put it mildly, the bona fides of the President.

Adv Mkhwebane: Not at all. Actually, you know, I indicated last week, even going to the President to deliver the letter, the allegations letter, going back again to take the President through the Section 7(9) Notice, and the record as well, which we have shared with the Committee, where I took him through the Section 7(9), and gave him an opportunity to respond. He requested that he respond in writing, and that was done. So it was a process where one was giving the President an opportunity to do that, not doubting him at all.

Adv Mpofu: No, but I thought that your finding was that his version was not true?

Adv Mkhwebane: Definitely, well, yes. After the evidence was presented to him, after the audi or giving him an opportunity to give us contrary evidence to what we had, and what the campaign managers were saying that he was saying, no, he did not know the donors, but now with the evidence before us, it was showing that it is not true, because we had to weigh that. Remember, when we listen to your side of the story, we check with what we have or the evidence we have before us, and once we do that, when we bring it to you through Section 7(9), we are saying we have the following findings against you. Yes.

Adv Mpofu: No, but I think that's what the independent panel means, when they say doubting his bona fides, that you disbelieved him and his version.

Adv Mkhwebane: Based on the evidence.

Adv Mpofu: Yes.

Adv Mkhwebane: Which is not true. I do not agree with them, because the evidence before us was weighing more than against the President actually.

Adv Mpofu: Alright. Maybe we are talking at cross purposes.

Chairperson: No, she agrees with you that she disbelieved him and she based that on what she had.

Adv Mpofu: On evidence? Okay, perfect. Then maybe to clarify, Chair – thank you – the following two words ‘doubting the bona fides of the President’ or disbelieving him or whatever it is, ‘without reason’, is really the crux of what they are accusing you of. As the Chair, that is the part that you are disputing, that in your view, you had valid reasons, and I think you have already explained.

Adv Mkhwebane: Yes, the first part I had valid reasons. And then the second part, failure to have an open mind on issues to be determined.

Adv Mpofu: Yes.

Adv Mkhwebane: That is not correct, as well. Remember, I spoke about how we conduct investigations? Even this matter was allocated to a chief investigator and I was investigating with him. And they have experience in the field. They are the ones who then propose these three issues which are referred to, which I said, they then said, ‘These are the three issues based on the complaint of Mr Maimane, we have identified the following three issues’ which I agreed with. So it was an open mind kind of investigation. And at any rate, independently sourcing the information, the investigators analysing the evidence, and then I agreed with them, because they also convinced me that these are the issues we are going to deal with, but because we do not have jurisdiction over criminal matters, Section 6(4) allows us to refer the matter to any other authority. So I do not agree with the fact that it was not an open mind kind of investigation, or we dealt with issues with that issue of possibly trying to find anything wrong, no matter what the circumstances.

Adv Mpofu: No matter what the evidence points to?

Adv Mkhwebane: Exactly.

Adv Mpofu: Good. Now, before we go back to the issue of money laundering, because I really want us to dispose of these two issues; at least your version must be clear to the Committee on these two issues. Just tell me how this works? The evidence was led here by Mr Mataboge, undisputed evidence that he disbelieved the President's version based on the evidence that was before him. Remember that?

Adv Mkhwebane: Yes, correct.

Adv Mpofu: That, in fact, he agreed with the analysis of the Chief Justice, that this was just a pack of lies, and the fact that the President did not know the donors were or did not benefit personality, that those he did not believe those two aspects, because those are the two pillars of the CR17 thing; it is personal benefit and knowledge, right?

Adv Mkhwebane: Correct.

Adv Mpofu: Yes. So that is Mr Mataboge. Nobody says that he is working nicely at the Public Protector’s Office. Then you have the Chief Justice of the country. He also does not believe the version of the President, and says it is a pack of lies, and uses all the strong words we read out when we were here. Then there is you. So you are in the company of three; you also do not believe the President, and you disbelieve him and so on and so on. Now, in terms of the rules of basic fairness, if there are three independent persons, one of them is a Chief Justice, the other is a bona fide official of the Public Protector’s Office and then you. How does it work that you must be impeached for believing or espousing the exact same view that given the same evidence, the Chief Justice finds, or not even the exact, a better or milder view then what the Chief Justice and Mr Mataboge conclude? Can you just comment on that? Because that is going to be one of the issues we are going to deal with when we argue this point.

Adv Mkhwebane: You know, Chairperson, this is why sometimes I would say I am being targeted, I am being victimised for honestly doing my work because I think you know, giving very simple explanations to members of the public who are out there. Hence, I said this process is good, because it is for me to indicate that with the evidence before the investigating teams, and I was glad that Mr Mataboge agreed to come and give evidence, and thanks to you, Chairperson, to make sure that at least the person who was investigating the matter so that the public, and even Members of the Committee can understand that you have very experienced investigators who will investigate the matter. And as well, I was convinced, not only by him saying, there is this information which is out there, because definitely, we do not at all rely on media reports. We use those as information which leads us to the evidence. So when we got the evidence and subpoenaed the bank statement, which was reflecting that, indeed, there is this money. I mean, worse even, the Campaign Managers confirmed that the money was received. The President himself never denied that he received the money. And the fact that we had the bank statements, which we analysed, and we incorporated in our Section 7(9) Notice, informing him. So I feel very victimised or I feel that, you know, whatever I did, and the best, I know how, that is what I would say to the staff: do your best and do not be, you know, threatened by whatever reports out there, because at the end of the day, you know, you are made to be this person who is alleged to be targeting certain individuals and that is not the case. Unfortunately, in South Africa, again you have a mainstream media which will perpetuate a narration that you are this incompetent person, you do not know your work, you do not know the law, then it is a manufactured concern, because it is repeated over and over, irrespective of what you do. I mean, I think we are still going to take the public through the good work, which I did with the public. And it is not only this work which has been done. Taking as well the learnings from the Nkandla Judgment, that the President is a constitutional being. The President should, you know, behave himself in an ethical manner; there should be transparency, accountability, openness. So now it is an issue that you cannot touch the President and we are there as an institution to assist in the issue of good governance in this country. But I must indicate that it makes me feel as if, then, I am being persecuted for doing my work.

Adv Mpofu: Yes, I think we established from Mr Mataboge that for holding the exact same view as you did on this issue, he was never was never subjected to any disciplinary action. And to your knowledge, was the Chief Justice, did anyone ever suggest that he must be impeached for agreeing with you?

Adv Mkhwebane: Not at all. I think there will not be any reason. I would not even subject Mr Mataboge to any disciplinary action because Mr Mataboge followed the law, I mean operated or investigated the matter purely with an open mind; the evidence before him, the complaint and the interview of various individuals, the response by the President to our Section 7(9) Notice. It was very convincing. I mean, the Chief Justice one thing about this as well, similar to the CIEX matter, which we will deal with, that showed the credibility and the way the Chief Justice applied his mind on the evidence before him, irrespective of what it was said, because remember when those pleadings were exchanged, the Rule 53 record. So you would see that he went through all the documents, and then he came to the conclusion. So I think that is what should be the case because I mean we do our work within the rule of law, within what the Constitution is expecting of us.

Adv Mpofu: Yes. Maybe let me put it like this because in our human condition, sometimes we say and do things but upon reflection and with the benefit of hindsight, we might say ‘now that you put it that way’ and so on and so on. That is just human nature. So I want to ask you straight, sitting there, where you are sitting now today, given the evidence that was before you; given the responses that were given; given all the material that you had, starting from the complaint to the end, do you believe that President Ramaphosa did not know the donors who gave those hundreds of millions or close to a billion or more than a billion rand to the CR17 EFG Account?

Adv Mkhwebane: Not at all. Well, he knew. I do not believe that he did not. What should I do with these emails? What should I do with one of the donors I have interviewed who confirmed ‘thanks, we had the recording and it is still there’, where he was confirming that he donated, he attended a gala dinner. So I do not know how to explain to any other person. But even a primary school child, if you will explain to them that there is this issue, you have your 10th birthday party, I can explain to my grandson, and you call your friends to come in fact, I call your friends to come and celebrate with you and bring gifts and then tomorrow and you ask you then say ‘No, I did not know what was the matter all about. And I do not think that was all.’ And you accepted yourself that the money was for the CR17. That is also one of the key issues because he said to the Speaker, ‘That money was not for my son. That money was for my CR17 campaign.’ And I think yes, being told by Bejani Chauke and even Donne corrected him that the EFG2 account is the one 'we opened for the people to donate to'. So he knew about the fact that people are donating to that and who are the donors to that particular account. So I will still repeat that. And I mean, history will judge me, according to what I have and the report is there, the evidence is there, which proves that he knew who the donors were. I do not agree with the panel conclusion or recommendation or what they are saying that I doubted him and it was not an open mind. I do not agree with the way the charge has been crafted, and I think we will deal with that, that I was targeting or intentionally having to find anything against the President. It was never my intention.

Adv Mpofu: Thank you. For the sake of completion, do you, sitting there, believe that the then Deputy President did not personally benefit from these donations that you say he knew about?

Adv Mkhwebane: I do not agree to that notion that he did not benefit personally, but I know the courts are saying. But then firstly, he said ‘It is for my CR17 Campaign to become the President of the country’ and by then he was the Deputy President. He was supposed to even declare those donations to Parliament because he was a Member of Parliament as the Deputy President. And indeed, he benefited because he was appointed as the President. That is why I agree with what Chief Justice Mogoeng Mogoeng is saying, because he definitely benefitted. It such a clear issue which does not need any…

Adv Mpofu: Genius?

Adv Mkhwebane: Yes, to explain that.

Adv Mpofu: Alright. Chair, I am going to go to another section of the report so I do not know if you want to take your break now? Thanks.

Chairperson: I do. That would be helpful. I was also hoping that we will try that one-minute clip for the last time so that you get it out of the way, now that we know where the problem was – that it was with Tshepo. Do you mind trying it, Tshepo? Then we will do that and go for a tea break.

The Committee replayed the State Capture Review Case handed down by Judge President Mlambo.

Chairperson: Thank you. On that note, we take a break for ten minutes. We will be back after ten minutes. Thank you.

The Committee adjourned for a ten-minute break.

Chairperson: We are back. Hon Holomisa, I would like you to withdraw that remark.

Mr B Holomisa (UDM): I withdraw, Chair.

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

Adv Mpofu: Chair, you must be tolerant with the General, as he is a former dictator. He does not want to waste time. Thank you. Right. Public Protector, as I was saying, maybe the importance of this will become clear during legal argument, but if you go to 251, Tshepo, of the same document. Sorry, Tshepo, this time I cannot blame IT. It is 209.2, page 91. I am just going to read some of the descriptions of your alleged conduct, and at the back of the mind, just keep in my mind that, as I said, both Mr Mataboge and the Chief Justice either agreed with you or put it stronger than you. Then I will be asking you whether, if these apply to you, then obviously they also apply to them. Okay, this is where the independent panel is quoting from the High Court Judgment.

Chairperson: Paragraph 65? That is how it starts.

Adv Mpofu: Yes. Paragraph 209.2. I thought the whole idea of IT is that it must be faster than those of us using manual documents? Thank you. Okay, it says the following – they are now quoting from the High Court Judgment – “The full court held that the Public Protector doubted the bona fides of the President”, we have gone through that, ‘and that this displays a deep seated inability or refusal to process facts before her in a logical and fair minded manner.’ “Now all I am saying is that, if that description is fitting for how you assess the facts, can it also be ascribed, or should it also be ascribed to the Chief Justice, because he also came to the same conclusion as you? So that would mean he also displays a deep-seated inability or refusal to process facts before him in a logical and fair minded manner.

Adv Mkhwebane: It means that it should be ascribed to him as well, because all the evidence which we relied on, was before him when he wrote the judgment.

Adv Mpofu: Let us just jump 209.4. The full court held that the PP had “not identified any evidence” any evidence “or facts to substantiate their conclusion that the President received direct personal sponsorship or benefited personally through the contribution made in this campaign.” Do you agree with that?

Adv Mkhwebane: I totally disagree. I mean it is worse because the evidence was before the judges in terms of Rule 53, where very information, I take it (to) legal services, who availed all the records. Worse, in this particular matter, currently, we have a situation where there are those records which are sealed. And when they come and say, I have not identified any evidence or facts to substantiate my conclusion, what do they mean? Because the bank statements are there. The monies, how they flowed from one account to another account; the emails and the transcribed record of Mr Watson, where he said ‘I was a sponsor. I am the one who donated. I attended one of the gala dinners.’ So this is totally not true. I mean, it is not based on facts. Unfortunately I am sitting here based on this unsubstantiated information.

Adv Mpofu: Yes. And then there was a whole deal made of the fact that in the report, whoever was drafting it and obviously you had oversight over it, we are not running away from it, there was a reference to PRECA as opposed to POCA. Let me just say there was a reference to one act, again, I do not want to the legalese; PRECA is the Prevention and Combating of Corrupt Activities Act, the well-known one that featured in Phala Phala; and then POCA is the Prevention of Organised Crime Act.

Adv Mkhwebane: Yes.

Adv Mpofu: Yeah, the different acts of Parliament. In the report, when reference was sought to be made to PRECA, there was a reference to POCA. I do not know where that goes. But both of them relate to criminal offences. I do not want to get into that substance over form issue. Assuming that you had referred to the correct Act or correct section. What is said is that in your identification of the money laundering allegations of Mr Maimane, and you have traced it correctly to the source. It says at 209.5, that the full court held that you “completely failed to properly analyse and understand the facts and evidence at her disposal, and showed a complete lack of basic knowledge of the law and its application. On the money laundering issue, the PP displayed anything but an open mind and she made serious findings based on the unfounded assumption that her findings were not only irrational, but indeed reckless.” Now, I do not want you to go back to tracing the issue to Mr Maimane’s complaint; we know that Mr Maimane had identified a specific issue about what I call ‘round tripping’. Now, your finding that there was prima facie evidence on that and referring it to the NPA, according to what you said here, ‘showed a complete lack of basic knowledge of the law and its application and the findings were irrational and reckless.’ Can you comment on that?

Adv Mkhwebane: You know, it is so unfortunate that I think Chief Justice Mogoeng and Justice Madlanga said that sometimes my mistakes are just magnified, and they are made as if this person who cannot, you know… is always perfect. So our court of appeal systems allow the process whereby the findings of the lower courts can be overturned by the higher courts, and that is based on error of law and offence. This is how our system functions as a country in a democratic country where there is a rule of law and a Constitution. So I am going through my… I am just reading what I said in my affidavit. “It is tried that an administrative decision remains valid until reviewed and set aside. The same applies to the decisions of the Public Protector; they are subjected to a review process. It is therefore not clear, why I would be charged for misapplying the law, when our system places the necessary safeguards or mechanism to correct judgments and or decisions where there has been misapplication of the law.” So, it is not clear to me why would misapplication of the law constitute an act of misconduct or incompetence. I mean, how many judgments which we can even take the public through where you find that a lot of judges, there was an error of law and how they applied the law, but are they then facing an impeachment? Not at all. I mean, you find in one jurisdiction, the judge in almost all of their matters or 90% of the cases are overturned at an appeal stage. Are they being subjected to that? No, that is not the case. So, but the main focus there was that I said there is this prima facie (evidence); I am not saying they are guilty. I said ‘Here is the information. NPA, because that falls within your mandate, can you investigate?’ So mentioning PRECA or POCA indeed, it was a mistake which happened in mentioning that particular legislation. But the intention was there is this suspicion of money laundering.

Adv Mpofu: Right. Thank you.

Adv Mkhwebane: I mean even in courts, where there is a full bench, I mean we see in the Constitutional Court there is a Majority Judgment and a Minority Judgment. So there would be different opinions and there would be the application of that. And again, coming back to say the investigators (were) investigating. And you know, when you take the report is watertight, it is fine. But then we find ourselves where we are now.

Adv Mpofu: Then we go to… In fact, let me jump to 209.7, just so that we do not move from topic to topic, we will come back to 209.6. They say “the full court held that the PP displayed a clear failure to grasp the meaning of the concept of prosecutorial independence. The Public Protector Act and the National Prosecuting Act are clear in that she cannot direct the NDPP to investigate any criminal offences and how to go about doing so.” Well, firstly, did you direct the NDPP on how she may investigate? That is number one. The second question, which we can come to later, is whether there is anything with you directing or recommending to the NDPP to investigate a criminal offence.

Adv Mkhwebane: I think the way the remedial action was crafted, it was very clear that this matter of money laundering does not fall within my mandate: it is a criminal act. And again, honestly focusing on what the Public Protector Act is saying, Section 6(4)(c)(i), that we can refer matters to a relevant authority. That is purely what I did here really referring the matter to the NPA; not encroaching on their prosecutorial independence, as it is for them to decide if they feel that ‘No, Public Protector according to our investigation, or according to how we assess this particular matter, we are not going to prosecute.’ I mean, normally in a lot of criminal matters, they will just nolle prosequi, or say ‘No, we will not prosecute this matter’ and that is the end of the matter. I was not at all saying to them you must do this, and how you must do it. If they feel that there is no crime committed, that is their own independent decision. So I totally, totally disagree with this finding. And when it was after the State of Capture judgment, the very same High Court under the very same Judge President Mlambo saying that ‘With the State of Capture, there is nothing preventing the Public Protector to direct any organ of state and now with me especially relating to the NPA but with me no I cannot do that and I am encroaching on the independence of the independence of the National Prosecuting Authority.

Adv Mpofu: Right. And then just to complete that section. At 173, they found that “It was remarkable that the Public Protector went as far as to engage on the issue, whether an answer given in the National Assembly may be clarified, as this was not raised in the complaints of Maimane and Shivambu.”

Adv Mkhwebane: Again, this goes against the principle of Mail & Guardian, because one was identifying the root cause. And again, one was saying, but it is also unfair against the President. I mean, if you can listen to the audio, because I was asking him ‘But why did you go ahead and explain yourself when the question you were answering there was relating to VBS? Now, Mr Maimane is coming with this different matter, which is not related to the question which was there, because the rules of Parliament are very clear. Then he volunteered all this information. And for me, I was saying, then it means there is that root cause (and) there is a problem here. For you, Parliament, you need to reconsider your rules, you need to amend them in such a way that they accommodate this issue of correcting yourself, again, self-correcting, because you cannot have something like this. At the end of the day, he was trying to show that I can respond, I can be open, but then you are then putting yourself in trouble and you end up not being truthful or saying the correct information, because I said to him why did you not say ‘No, Madam Speaker, I will not answer that question. Can it be put in writing? Let me go and investigate and I will come back and respond.’

Adv Mpofu: Yes.

Adv Mkhwebane: So this was based purely on the fact of the Mail & Guardian. You cannot just see something and I just keep quiet – what is the use of the Public Protector? I must deal with the root causes of identifying problems and remedy them going forward. People who would want to learn and who would understand the role of the Public Protector and an ombudsman, will work closely with us and know that at least we are having this institution, we are learning; the Speaker should have taken this with an open heart; the Speaker should have said ‘Members of Parliament can we will look into this particular matter? Let us check our rules and let us amend this rule. Let us deal with it properly.’ Worse, remember last week I said that I was the only one who presented at Cabinet, as the Public Protector, and I said ‘besides the amendments which were proposed by my predecessor on EMEA, you need to relook into this EMEA and see whether you cannot have an issue of a first instance complaint within Parliament; and if then as opposition parties you fail to deal with the member of the executive, then when Parliament fails to do that, escalate it to the Public Protector. We are an office of last resort.’ Like what is currently happening with the public servants, because our act is very clear on that particular issue. So this was done in that spirit. Unfortunately, I am then treated or we are treated as if, and I would say we, because that is what we have been doing as an institution. We found those investigators there and this is how we have been investigating, with a clear mind, with honesty, trying to help the country to be a better country. But then now I am blamed, ‘why do you have…’ I mean, somebody was even saying with the issue of R500 000 you enter a house and then somebody is being murdered there, and then you are told ‘No, the husband was beating a wife.’ You just come and say ‘Husband, you must not beat your wife, we are arresting you.’ You do not even… As a police, how do you enter a crime scene and then you just do not look into the corpse, you just arrest their husband because they are beating the wife. You do not even investigate who killed this person. That is not how we are as the Public Protector. I think Mail & Guardian was saying that we should not…

Adv Mpofu: Blinkers, for those of us who are not like you and the Chair, who can speak in Afrikaans.

Adv Mkhwebane: Yes. So this was purely that, Chairperson.

Adv Mpofu: Yes, well maybe to relate it to a live example, when you were saying that Parliament must look into this, were you not avoiding a situation where somebody says something under oath has happened even in this Committee before, and then correct it again, under oath on a later date. Which of the two should we then take as the truth?

Adv Mkhwebane: You know, I think the main important issue is when you correct yourself your transparency, your fairness, and as well follow the rules which are there, because it's wrong also to just correct something and not even follow the rules or what the practice is, and you do it properly. So I think it is very important to do that. And Parliament, I was showing them this weakness in their system, but anyway, they did not take it. And they also joined in the court case, which is within their right, because if you say the Public Protector’s remedial action is valid, unless set aside by a court of law; they are within their right. Again, it is that self-correcting process because it shows as well that as a Public Protector, I do not have unfettered powers, I am also subjected to review. My intention was purely to say ‘Here is a weakness in the system. Correct it and let it be a better country’.

Adv Mpofu: Yes. Okay, I think we can cut through this by simply asking whether your understanding and I think you have already referred to Mail & Guardian, of your work and your powers and your mandate preclude you, when something like this happens. I mean, we all know about it now, because it played itself out in the public domain. Are you then precluded from saying that this situation that befell the President, how could it be remedied? And in doing so, even go to look into the rules of Parliament as to whether maybe it is not his or Mr Maimane’s faults, and maybe it is just a gap in the rules. Now, they are saying you should not engage in that because it was not raised in the complaints.

Adv Mkhwebane: It is embarrassing, actually, to find something like this in the report, which was led by former Judge Nkabinde and the two advocates, because if you have an inquiring mind, what is the mandate of the Public Protector? We looked into the rules, we even wrote to the Speaker, we analysed the rules, unless we were also wrong. But then when we peruse the rules, we found that there is nothing which gives them the opportunity to self-correct or to correct themselves. I mean, again, this was with the intention, Chairperson, to also reduce the number of complaints which are raised under the Executive Members Ethics Act, because there are several ministers who were found wanting based on the fact that they lied in Parliament. So they were never given an opportunity to correct themselves and say ‘Actually, I made a mistake. The truth fact is that I wanted to say the following.’ So that is so wrong of them to say I should have just focused on the complaint because as an investigator, you should deal with all the issues where possible. And in this matter, we were trying to also reduce the number of complaints we are receiving, where we are being accused or where I am being accused that I am factional and political, forgetting that we receive complaints, we investigate, we have the findings, we bring them to the attention of those implicated and we recommend ways to correct that going forward. I do not agree with this.

Adv Mpofu: Okay. Now I want to relate this… I am now moving onto another topic. I think you have dealt with some of the criticisms. One of the major criticisms relating to the CR17 matter was the alleged or apparent misapplication of the code of ethics. Do you remember that?

Adv Mkhwebane: I remember that.

Adv Mpofu: Yes. Now, just to preface that, let us just explain what that is about, because it is in your statement. It is obvious that there are two versions of the code of ethics that were doing the rounds, one was a 2000 version, and the other one was a 2007 version, correct?

Adv Mkhwebane: Correct.

Adv Mpofu: It looks like there was some massive confusion in various people's minds as to which one was applicable, correct?

Adv Mkhwebane: Correct, though one would wonder why.

Adv Mpofu: Yes. Well…

Chairperson: You have to give them the benefit of the doubt. You cannot be hard on them.

Adv Mpofu: Yes, I think let us assume that there was bona fide confusion, and as the Chair says, they were not pretending to be confused. Okay, even if we give that benefit of the doubt. But the essence, for the purposes of this inquiry, and the topic we are discussing, of that confusion was around the clause that dealt with whether the conduct complained of, was willful or whether it would be willful and or inadvertent – we will come to the actual codes. You remember that whole debate?

Adv Mkhwebane: Yes, I do,

Adv Mpofu: Yes. Now, the thrust of the charge against you in relation to this, is not so much about that you were part of the people that the Chair and I were talking about, who might have been confused genuinely or otherwise, and so on. Actually, it is something much more serious, where the court basically said you, for ulterior purposes, basically re-wrote the code to suit your purpose. I think the English expression, Chair, is ‘cutting the cloth to fit your suit’ or whatever. But you understand the thrust of this? So it was not like when you were getting into your office you just happened to pick up the wrong code and apply it. As you say, it happens all the time. I know many judgments actually, where a judge actually applies the law and then it turns out that it was repealed, but it was not done deliberately. So I want you to comment on that. Firstly, did you go out there, look at the code, think that ‘No, this code, I will not be able to catch these people with this one. Let me just write my own or remove these words, or whatever. Did you do anything that outrageous?

Adv Mkhwebane: You know, Chairperson and SC, that made me, you know, my heart was so sore or my heart bled when I read those paragraphs, which I think you will be showing here. I was blamed for changing the code. Again, following what we have been doing since I joined the Public Protector Office, we rely on the court judgments, we rely on what the constitutional provisions are saying, the facts before us, again, the very same issue, what happened, what should have happened, the prescripts applicable, whether there is any gap between the two, how can we remedy that. I never changed the code and I was accused wrongfully. You know what is worse is that the very judge, Bess Nkabinde – we are still coming to the issue of Nkandla – was one of the judges who was still the judge of the Constitutional Court by then. They also referenced the 2007 code, but we are still going to deal with those, now she comes back and agrees to what was being said in the very same judgment of the Constitutional Court.

Adv Mpofu: Of the High Court.

Adv Mkhwebane: Yes, by then it was the High Court.

Adv Mpofu: Chair, just for the record, by the time the charges were withdrawn, the matter had not yet gone to the Constitutional Court.

Adv Mkhwebane: Yes, but the fact of the matter is that she should have remembered that the Nkandla Judgment was also relying on the very same. I mean, that is a very prominent case. I would not blame her for other cases where you would find that… I mean, we deal with a number of issues, but that is a very prominent matter and she should have remembered that we are dealing with the life of a person here – another woman. Can they really say this? Can she really do that? Is she that dumb to change even the code, just because she wants to get the President? So I was just regarded as if I am this evil person who would want to find anything, no matter what.

Adv Mpofu: Yes. And Chair, again just for the record because this can be confusing, the two codes, the one is 2000 and the other is 2007. It was subsequently found that the incorrect one is the 2007 – just for perspective, as we go along. Alright. Now, in paragraph 60 of the Bosasa Judgment, Tshepo. Chair, can I read it out? It is just a short paragraph. Paragraph 60 says – this is now the Constitutional Court Majority Judgment, Chair – “The Public Protector’s report reveals that on the facts placed before her, she accepted that the President did not willfully mislead Parliament.” Well, we will come to that because that is an issue on its own; maybe let us just flag it. Did you ever accept that the President did not willfully mislead Parliament?

Adv Mkhwebane: I do not remember saying that in the report.

Adv Mpofu: Well, in the report, you said that he ‘willfully misled Parliament.’

Adv Mkhwebane: Yes, I mean that is what we found.

Adv Mpofu: Okay, let us put that aside. That is not what I am asking you about now. I just wanted to flag that. Then it says “this meant that he could not have violated the code. The Public Protector, then…” this is the crucial part “changed the wording of the code to include deliberate and inadvertent misleading, so as to match with the facts. Having effected the change in the code, the Public Protector proceeded to conclude that the President had violated the code. It is unacceptable that the Public Protector did what no law had authorised her to do.” So do you understand that the thrust of the accusation is that you changed the code, then you found that the President had now breached ‘your code’, the one that you have manufactured, and proceed to conclude that the President has violated that? You have already answered that you did no such thing.

Adv Mkhwebane: Yes, it is not true. I did no such thing. Yes, in the report, firstly, the finding was that the allegation that on the 6 November 2018, during question session in Parliament, the President deliberately misled the National Assembly is such substantiated. It was based on the fact that plus before us, it was what he responded to during the investigation. He was given an opportunity to comment on the findings and that is not true. That is why I am saying how evil I am to just change the code to suit my fact and I said it last week that I do not have anything against the President. I even gave an example when somebody was even saying can you truly clarify whether you are fighting with the President. So things like this, then they perpetuate something like that, and based on wrong facts. Worse, the very same code, the very same Constitutional Court relied on – the Nkandla Judgment. Also, as a learning institution, we then relied on the Nkandla Judgment and our legal framework because when you go through our report, we indicate what are the common cause issues under that issue we are investigating, and what the law is saying about that. So we will refer to the code; we will refer to the Executive Members Ethics Act; we will refer to Section 96 of the Constitution which deals with issues relating to this matter. Further, we have reports we call them touchstone, which my predecessors relied on. In fact, the reports which they have issued. So they are well-known reports like the prominent reports such as the investigation of the late Mr Shiceka, Ms Dina Pule, when she was still a Minister, Ms Tina Joemat-Pettersson and the MEC of the Northern Cape, Mr John Block. So the very same 2007 code was used. So now I am blamed for changing the code, which is not true.

Adv Mpofu: Yes. Chair, just to situate this, you will find in the statement of the Public Protector at page 629. Tshepo, do not lose that judgment, we will come back to it. Can you go to the Public Protector’s statement at page 629 or typed page 133? The heading says the ‘Executive Ethics Code.

Adv Mkhwebane: It is paragraph 294.

Adv Mpofu: 294, yes. Okay, I will read this out and you can just explain it “The court was never wrong to make its findings based on a repealed code, and this is a sensitive issue I intend dealing with extensively during my oral evidence. I have been unfairly and wrongly accused of changing the wording of the code by adding ‘deliberate and inadvertent misleading of the legislature’, with the intention to ‘match with the facts’. This is the furthest thing from the truth. Evidence will be led to demonstrate beyond any question that my references to the 2007 code were based on the historical reliance by the Office of the Public Protector on that code long before my assumption of office. In this regard, specific reference will be made to previous reports including among others, the well-known Nkandla Report, as well as other prominent reports such as the Shiceka, Diane Pule, Tina Joemat-Petersson and John Block reports. To this effect, I refer to my rescission application with the Constitutional Court, the same will be uploaded.” Alright, now, you have already made a reference to that. Due to time, we will not go to all these reports; they will be supplied for Members of the Committee to refer to them. I think, just as an illustration, Chair, we will just pick out the one that the Public Protector has spoken about, particularly it also has this dynamic of involving Justice Nkabinde, who was a judge even in that matter. Tshepo, can you go to the Nkandla Judgment under those judgments, at paragraph seven? That is EFF v Speaker of the National Assembly. I wanted the version that you had the last time, which is from the law reports, because it shows the footnotes and it is much easier. Chair, she is navigating, whatever that means.

Adv Bawa: Adv Mpofu, the footnote is there. Footnote eight on the version we got.

Adv Mpofu: Yeah, I know it is there, as all judgments have the same footnotes. I am saying the one that she had last week shows it graphically. It is on the same page.

Adv Bawa: It is on the same page.

Adv Mpofu: It is not. Okay, it is fine, let us not waste time on it. Go to paragraph seven on whichever version of the judgment, because it looks like the navigation is not helping us. Yes, that is the one. Go to the next page. Alright.

Adv Mkhwebane: I think if you can scroll down to that footnote, number eight.

Adv Mpofu: No, no. It says “In the same breadth, she concluded that the President…”, she, being Adv Madonsela, the previous Public Protector, “violated the provisions of the Executive Members Ethics Act, and the Executive Ethics Code.” Footnote eight is the Executive Ethics Code. “These are the national legislation and the Code of Ethics contemplated in Section 96(1) of the Constitution. So this actually is a beautiful paragraph because it covers the entire thing: the constitutional provision, the act and then the code; and all of those things must be read together. Now, let us go to that footnote eight and see what the Constitutional Court was talking about. You will see there, Chair, it says “Chapter One of the Ministerial Handbook, a Handbook of Members of the Executive and Presiding Officers Act, 7 February 2007” at page 7215. In other words, (the) Constitutional Court itself was using the 2007 version for its Nkandla Judgment, right?

Adv Mkhwebane: That is correct.

Adv Mpofu: Have you ever heard anybody accusing either Adv Madonsela or the Constitutional Court of changing the code to suit the facts?

Adv Mkhwebane: That is why I asked in the beginning why they thought I changed, and then the Chairperson said I should give them the benefit of a doubt.

Adv Mpofu: Do not listen to the Chairperson all the time.

Adv Mkhwebane: Yes, so that is why I am trying to say to the Committee, the Chairperson, the members of the public out there, honestly, we – I would say we, because we worked as a team – these are the reports that were produced before by the very same team of the Public Protector. To me, I thought that was the perfect way to go. And they were not impeached. The former Public Protector finished her term, no one questioned her why she used that code. The current Justices of the Constitutional Court and those who have just recently retired, because we made an application for rescission of that, trying to show them that can you correct yourself that they were not impeached because they failed to self-correct when they are showed that there is this wrong thing which you have done because in the Nkandla Judgment you relied on the very same code, but now you are coming back and saying I invented my own code. I even lodged a complaint with the JSC. Unfortunately, they never wanted to entertain that, and now my credibility is at stake. I am being labelled this person who is just fighting the President who is even inventing her own laws just to make the laws to be relevant so that I can find President Cyril Ramaphosa to have violated my code. So it is so painful actually, to be subjected to this and sit here and yeah… I was doing my work the best I know how, with honesty and credibility, you know, not following up or being behind any other person.

Adv Mpofu: Alright. Now, I just want to pause with that issue and again, as I said, the Committee and the Chair will now give you the benefit of the doubt that in all those other cases that you mentioned, which we do not need to go through now to save time, indeed that code was being applied. We will deal with it when we do legal arguments. What I want to get into, again, maybe for the sake of emphasis, and forgive me Chair if I am repeating myself. The reason why you are sitting where you are sitting now is not because someone says you took the wrong code by some mistake; maybe the two codes were sitting on your table, and you just happened to pick up the wrong one. The reason is much more serious than that, which is that you, and I think the word you used was ‘invented’, literally, you became the legislature and the judge and the police, by all by yourself. You wrote a law and then you applied it. And that is what I would like you to address, not so much whether it was the right code or the wrong code, like the POCA and PRECA thing. It is the fact that you went out there in some dark corner and created a non-existent law?

Adv Mkhwebane: That is not correct, because that is very, very wrong. I never did that. I think when Mr Mataboge was testifying, I think of the drafts had the 2000 code. And I think there was an email which was shown here, that I said to Mr Mataboge use the 2007 code. And it was purely based on the fact that the ConCourt judgment is based on that code, the touchstone cases, and this institution, practice wise, we have been using that. And they then say that within my evil or sinister intentions I picked up the code and said ‘No, the way the facts are, then let us apply this code.’ I was honestly applying the code based on the fact that it has been the practice of the institution that this is the code which is utilised and no one was said or held to be incompetent or misconducted themselves, because they had findings against the sitting President.

Adv Mpofu: Yes. Alright. Now, maybe let us do this then, and park that issue. Let us take the Committee then to the correct code. We now know that everyone has been using the 2007 code, including the Constitutional Court and your predecessor. But at the beginning of the judgment, if we can go back to the CR17 Judgment, the Majority then quotes or cites the correct code. That would be page 334, Tshepo. Can we go to footnote two? Right. So Chair, you will see there, that refers to the correct code, as it were, which is the code of 28 July 2000, right?

Adv Mkhwebane: Correct.

Adv Mpofu: Now let us look at that code, for now. Indeed it says “Members of the Executive, to the satisfaction of the President or the Premier, as the case may be: A, perform their duties and exercise their powers diligently and honestly.” In fact, Chair, maybe let me explain why I am doing this. The suggestion in the Majority Judgment was that the code is narrow – it must be read narrowly. Our version, when we argue the case, will be that it is actually a wide-ranging code by definition. Forget about whether there is inadvertent and so on. By its nature it is meant to cover a wide range. By the way, it is a code of ethics, which is not a court of law, as it were. This is where I am going with this.

Adv Bawa: Chair?

Adv Mpofu: Sorry.

Chairperson: Just pause, Adv Mpofu. Adv Bawa?

Adv Bawa: Adv Mpofu, are we now getting into an argument on law, because I thought you said this morning we were not going to be arguing the law?

Adv Mpofu: No.

Adv Bawa: I just want to understand?

Adv Mpofu: No, no. I think you misunderstood me. That is exactly what I am not doing. We will argue all this, you and I, at the end. I am simply just for the Members to know why I am referring to this code, from the witness. Remember we are testing the witness’ understanding of these things because she is the police that applies the code. So I am not getting into the legal argument. It is a fact that there is a 2000 code. It is a fact that there is an alleged 2007 code. I am just going into what it actually says, and I am not putting any slant on it. Yeah.

Chairperson: Thank you.

Adv Bawa: Can I just maybe get the ambit of it? We also had agreed certain ground rules that the report is what the report is, and it is the report that would be essentially considered here on a factual basis. I am just checking whether where you are going now, where it fits into the report and if you could maybe just clear that?

Adv Mpofu: Thank you. I think that is a fair question, Chair. The point I am making, and I think where my learned friend is going, and that is why I made the editorial to the Chair, is simply whether against what I am going to read, whether it is correct to read the code as a narrow document, or it was intended to be a wide document in the understanding of the of the Public Protector. Remember, again, this is not just a witness. This is the Public Protector, the person identified in law to police these codes and all these things, among other things. She says she wishes it was Parliament, who has a primary duty to police and then it is referred to her. But as we sit now, that is not the case; it gets referred to her directly, as was done by Mr Maimane and Mr Shivambu and the others. Okay, thanks, Chair.

Chairperson: Thank you. We will proceed. Just switch it back on, Adv Mkhwebane. Thank you. Over to you, Adv Mpofu.

Adv Mpofu: Okay, I am not going to waste time on this, PP, because the question is going to follow. The code says ‘Members of the Executive must, to the satisfaction of the president or premier, as the case may be: A, perform their duties and exercise their powers diligently and honestly.’

Adv Mkhwebane: Correct.

Adv Mpofu: Okay. Maybe the question I will be asking you, with refrain, is whether you view that as a wide power or a narrow power?

Adv Mkhwebane: That is a wide power. It is not narrow at all.

Adv Mpofu: And then it says, “Those members must fulfill all the obligations imposed by them by the Constitution and the law.” Wide or narrow?

Adv Mkhwebane: It is also wide.

Adv Mpofu: “They must also act in good faith and in the best interests of good governance.” Wide or narrow?

Adv Mkhwebane: It is very wide.

Adv Mpofu: “They must act in all respects in a manner that is consistent with the integrity of their office or the government.” Wide or narrow?

Adv Mkhwebane: That is wide and very important for our investigations.

Adv Mpofu: Yes. And then if you go to the following page, Tshepo. Continuing with that footnote. It is now footnote three. We know that this applies to Members of the Cabinet, which included the Deputy President. It says “B, the code must include provisions prohibiting Cabinet Members and Deputy Ministers and MECs from undertaking any other paid work.” You know that that comes almost directly from Section 96 of the Constitution, correct?

Adv Mkhwebane: Yes, correct.

Adv Mpofu: “Acting in a way that is inconsistent with their office.” Wide or narrow?

Adv Mkhwebane: It is wide.

Adv Mpofu: “Exposing themselves to any situation involving the risk of a conflict between their official responsibility and their private interest.” Wide?

Adv Mkhwebane: It is very much wide because it does not say there must be a conflict. It says you must not expose yourself to that conflict – it is wide.

Adv Mpofu: “Using their position or any information entrusted to them to enrich themselves or improperly benefit any other person.”

Adv Mkhwebane: It is wide.

Adv Mpofu: ”And acting in a way that may compromise the credibility or integrity of their office or the government.”

Adv Mkhwebane: It is also very wide.

Adv Mpofu: Yes. Now, this is really something...

Adv Bawa: Chair?

Adv Mpofu: Sorry.

Chairperson: Adv Bawa?

Adv Bawa: Adv Mpofu, the first section you read was 2.1 of the code. The second part is 2.2 of the Act. I just wanted to understand that we are not interpreting the same thing, because I do not understand Adv Mkhwebane to have said that she has powers under the Act; she has powers under the code. That was your evidence last week, so that is where I am getting a bit confused here.

Adv Mpofu: Thank you, Chair. Now, this is a matter for legal argument. That is why I said that was a beautiful paragraph in the judgment, because it overcomes the problem you are raising, because in the same breath it refers to Section 96 of the Constitution, to the Act and to the Code as one system; and that is really what I am doing. I am sorry if I did not specify that I am now referring to the Act. As far as I am concerned, 96(1)(b) and (c) in particular, the Act, Section 2 and the Code really speak to the same ecosystem, for a lack of a better word.

Chairperson: Thank you. We are clarified.

Adv Mpofu: Thank you, Chair. I was saying that put aside this thing of inadvertent and what have you: what is your responsibility as Public Protector as the police woman of the Executive Ethics Code? How do you understand that job in view of these instruments we have just gone through?

Adv Mkhwebane: I think it is what you also indicated or clarified Adv Bawa that from Section 96 of the Constitution, to then this legislation, the Executive Members Ethics Act…

Adv Mpofu: EMEA.

Adv Mkhwebane: Which is called EMEA. And the EMEA refers to the Executive Members Ethics Code. So it is like the code is like a policy kind of reference. So the Public Protector, I said last time is one of the few institutions in the world not only in South Africa or in Africa, in the world, in the ombudsmanship institutions, which investigates the executive; and this act is very clear that on receipt of a complaint by the Public Protector, we must investigate and finalise the investigation within 30 days. So, the investigation of the Public Protector when we deal with the report and we deal with the legal framework, we will mention Section 96, we will mention the Act, we will mention the Code. So, if things are just blown out of proportion as if we only then focus on the Code, but the fact of the matter is, what is the Constitution which is the supreme law, saying about that particular conduct. So, if you are truly interpreting and applying the law, surely we should be checking the conduct of that public official against the Code. So the Code is giving effect to Section 2 of the Executive Members Ethics Act. I think, SC and Chairperson and Members of the Committee, I said every year during my roadshows, I would also then meet specifically with the Members of the Executive. Fortunately, in the provinces, I met with them several times. With the fifth administration, I took them through the Code, the Constitution, the Code, the Executive Members Ethics Act, and what the Code is saying. And then also through the sixth administration, the provinces, the same was done. Unfortunately, with the National Ministers the opportunity never presented itself, but we requested the Speaker, as the Forum for Institutions Supporting Democracy to say, we needed to take the Executive through our mandates, Public Protector, Gender Commission, Human Rights Commission, so that they know what are their responsibilities. More specifically, as well, because of the oath of office which they take as Members of the Executive, to abide by the Constitution. Therefore, you cannot be a Minister of Health, or Education, and just do your work and forget what are your constitutional responsibilities. So hence, throughout the process, we used all these three and they are similar, actually, because we would say, the Ethics Code contemplated by EMEA was published by the President 28 July 2000, and amended on 7 February 2007, because that is what one was under the impression that this is what happened. And indeed, the Code deals with the issue of how Members of the Executive should conduct themselves, perform their duties and exercise their powers diligently and honestly – still the same thing – and fulfill all the obligations imposed by the… So that is what the Code has been saying. Earth. So that's what the quote has been saying.

Adv Mpofu: Yes, before we take the break, so that Adv Bawa can also chew on it: is the statement that Adv Bawa makes correct, that your role is to, and this is my word and not hers, police the Code of Ethics and not the Act? In other words, not EMEA.

Adv Mkhwebane: No, that is not true. I mean, how do you reason like that? As I said, the Constitution as a constitutional institution, and Section 182 of the Constitution is very clear, ‘the Public Protector shall investigate any improper conduct in state affairs’. That is the way it is crafted. Then any improper conduct is a constitutional mandate, therefore, it flows down to then any conduct which is improper flowing from the Constitution to the legislation to the policy or regulations is the responsibility of the Public Protector. Again, going back to say, our model of operation or investigation, we always make sure that whatever conduct – is it according to or is it compliant to any legislative framework. Hence, if we investigate a simple matter, which normally I would do, when I do the roadshows, to bring it to a level of saying to the public servant, or to an executive, or the municipal manager: you advertise a position, you say the requirements is five years experience with a degree, you appoint a person who has a matric with two years experience. I am trying to simplify the work that we do as the Public Protector to any person, to a judge, to any Member of Parliament. Then if we find and when we investigate, we will then write to you as the Municipal Manager when you advertised, give us the advert. There is a complaint from Busisiwe. You have appointed SC Mpofu, and you say in your advert five years experience plus a degree, but Mr Mpofu has a matric with two years of experience. In all of our investigations that is a simple basic thing. Give us the adverts; give us the people who applied; give us the committee which is said to determine that you are appointing Adv Mpofu; and then the reasons. The same applies to tender processes. That is what we do. Give us your own internal policy, because that is what the AG also does. What is your policy saying? Can you really advertise and appoint contrary to what you are saying? Then when we have a finding, we would say, ‘Indeed, you acted contrary to your policy.’ So similar applies to this, because we will take it from the Section 195 of the Constitution, to the legislation relating to your operations, to your internal policies – so similar applies to this one. The Constitution, the Act, and what the Executive Members Ethics Code is saying.

Adv Mpofu: Chair, just one bite?

Chairperson: Okay. I did not want to spoil that so that we can digest that. Please conclude.

Adv Mpofu: Yes, this is important, just to round off so that we do not come back to this. The example that I am going to use is something that we are going to cross-reference in relation to your suspension and so on. But I am asking now in a different context. Let us use the example of the Phala Phala findings. So you are the Public Protector, you had your own process, 31 questions and what have you. That is against an EMEA complaint, correct?

Adv Mkhwebane: That is correct.

Adv Mpofu: Yes. Somewhere else, there was another process led by Chief Justice Ngcobo. He is not the Public Protector and he made findings about the prima facie evidence on criminal conduct, the breach of PRECA, and so on and so on. But the point I am coming to is this; your process and his process were using the same source documents. So the Constitution, Section 96, was breached, yes or no? EMEA, which is binding on the President and his obligations to Parliament, if any, and so on. Maybe that is what you can explain before we take the short break, as to why these three things in both of those exercises work as a unit; you cannot separate the Code from the Act and from the Constitution, in respect, for example, of the so-called risk of conflict?

Adv Mkhwebane: I think the Constitution, which is the supreme law, as I said, originally, and I think that is what the Panel found that the breach in the violation, because the Constitution is very clear. Section 96, you do not have to prove the issue of a violation or conflict – they say, a risk of a conflict. So in other words, you should conduct yourself in such a way that you are beyond reproach and you do not expose yourself to that conflict; you do not conduct any paid work; you do not avail state information, which is under your care, because some of the complaints relate to that, to benefit yourself; you act in good faith and to the best interest of good governance. So, you know, those issues are connected and interlinked. Therefore, you cannot have a situation where, because on the face of it, if you have former Chief Justice Ngcobo finding that there was that prima facie case, and there is evidence before the Public Protector that there is the allegations that there was monies which were found and the President saying it himself. There are recordings acknowledging and agreeing that ‘Indeed, I am trading’ but then I think again, the question is in foreign currency; is it the legal tender in South Africa and are you justified to say that? But as a Public Protector, we will then focus on the mandate of the Public Protector, as far as the Executive Members Ethics Act is concerned. Then the other issues relating to whether there was any failing to report, PRECA or whatever, and whether that is a crime, we refer it to the relevant institutions like your NPA and your Hawks. We would not say you are guilty, because that is not what the Public Protector does. We just do that purely on the evidence before us. But again, going back to the issue of beyond reproach, I did not want to mention the issue because lest I be accused that ‘Yeah, you see. She is a politician.’ The ANC will say through the eye of the needle. I would normally say that to the various Executives in the provinces, that if you say that, you mean you, you are this angel. But yes, you are human beings, you can falter sometimes. But try your level best to act according to what the Constitution, EMEA and what the Executive Members Ethics Code is saying because when you enter into this position, you enter, you want to be the servant. It means you are not entering to benefit yourself in whatever you are doing.

Adv Mpofu: Yes, I think that is a good note to end it, Chair, through the eye of the needle. Well, that is the test and we can deal with it later.

Chairperson: Okay, thank you. On that point, thank you colleagues. We will take a 45 minute lunch and be back after 45 minutes. We pause for lunch.

The Committee adjourned for a 45 minute lunch break.

Adv Mpofu: I am just going to try and kill two birds with one stone. The section that we were dealing with is page 629, the Executive Ethics Code. In your statement, the next section refers to violations of Section 96(1) of the Constitution: do you see that?

Adv Mkhwebane: Paragraph?

Adv Mpofu: 298.

Adv Mkhwebane: Okay. Yes.

Adv Mpofu: And then the next section is on the audi. We are now, I think, with the answer that you gave to the discussion we had with Adv Bawa, we can condense the Ethics Code and Section 96(1) into one thing.

Adv Mkhwebane: Maybe let me just indicate that the Executive Members Ethics Act, Section 3(3)...

Adv Mpofu: Yes, that is where I am going.

Adv Mkhwebane: Okay.

Adv Mpofu: You can save time, as we are going to call it up. You can talk in the meantime, PP, it will come up. We are now on the connection between the Code, the Constitution and EMEA.

Adv Mkhwebane: Yes, then the Act will then say the Public Protector will investigate the matter. Well, Section 3(3) refers to when the Public Protector fails or cannot finalise the investigation within 30 days, then the Public Protector will refer the matter to… Yes.

Adv Mpofu: Right. Sorry. Chair, this is quite important. This is really the heart of the case we are dealing with and the next one, which is the Rogue Unit. Also, we have been talking since we started about this thing about the 30 days and what have you. So this shows where it actually comes from.

Adv Mkhwebane: Yes.

Adv Mpofu: Maybe…

Adv Mkhwebane: In other words, the Act is the one which gives the Public Protector the powers to investigate the breaches, and to investigate the complaint, and submit a report within 30 days of receipt of the complaint to the President, if it is relating to a Cabinet member, a Premier – and to the Premier of the province concerned, if the complaint is against the MEC – or a Deputy Minister. So then, if we cannot finalise the investigation within 30 days, then the Public Protector must submit a report. In fact, the first one says you must submit a report referred to in subsection two. So that means the preliminaries and the second part of subsection three says, if we have not completed the investigation, we can then inform the President or the Premier if it is about the MEC.

Adv Mpofu: Yes, thank you. Alright, so this really is the core of your investigating powers, as far as the executive is concerned, of course?

Adv Mkhwebane: Correct.

Adv Mpofu: I am not talking about other branches of the State. Now, this seems to then be the source of what some might call your enormous powers. You have said that in terms of other jurisdictions, it is unique to us as South Africans. I think Hon Sokoni warned us, for lack of a better word, about the more drastic the powers the more like Newton said, ‘for every force, there is an opposite and equal reaction’ as it were – I think that is Newton’s law number four, Chair. It is a long time since I studied physics. So can you just comment on, firstly, you have already said that you wish that it would start in Parliament, and so on, but on the enormity of that power of you being the first port of call, where the legislation basically by name says ‘the Public Protector must investigate any alleged breach of the Code of Ethics on receipt of a complaint contemplated in Section 4.

Adv Mkhwebane: Yes, the powers which are granted to the Public Protector in terms of the Executive Members Ethics Act are so actually vast. In other words, it is even worse because it does not give the Public Protector discretion. Remember, the Public Protector Act, under Section 6(9) will say that the Public Protector will use her discretion whether to investigate or not to investigate; the one we will deal with when we deal with the SARS matter and the others. But then here it says the Public Protector must investigate. I do not have that discretion to say ‘No, you have brought the complaint, therefore I cannot investigate.’ So remember… well, when we were dealing with the opening statement and Part A. In fact…

Adv Mpofu: The landscaping?

Adv Mkhwebane: The misstatement. Yes, I think the Chairperson was saying the landscaping. But then I also dealt with the issue of touching the untouchables. And again, it goes back to Chief Justice Mogoeng Mogoeng’s Judgment in the Nkandla (matter) where he says the Public Protector is investigating the most powerful, well-resourced, deep state; and unfortunately they would not want to be held to account. So the powers in this Executive Members Ethics Act are so vast and so broad, and especially if you investigate the President of the country, the Ministers, people who have the power in society, people who have all the resources, which they have. If they would honestly be genuine enough, and understand that this institution is there, and by the forefathers of our Constitution, going back to our President Nelson Mandela; going back to the institution of being a ombudsman man, because if you have a king in Sweden, thinking that ‘I have all the powers. I can instruct any person to go and kill any person or to go and do anything they would want to do.’ But then I would want to have an ombudsman, who will be the mediator between the citizens and the most powerful. So if you investigate the President, and you hold the President to account, definitely you will then face such. That is why I am sitting here. Worse, you find the media, which is also not helping, because it is a key strategic partner of the Public Protector, which in any democracy, they should be the ones who are the voice and who are also helping to address issues of corruption, issues of maladministration, but then you find that they are the ones who are then magnifying the mistakes, which we do, and mistakes which are trying to show that the facts before us and the evidence is the violation of this particular legislation or of the Constitution. So the similar thing which happened is that with this investigation of Bosasa, I am sitting here, as it is part of the charges in this hearing, because of what I investigated; so I am facing the consequences or the wrath of what Chief Justice Mogoeng Mogoeng said. Now, with the issue of Phala Phala; sending those 31 questions led me to be suspended a day before even the court was supposed to pronounce on the judgment, but at the end of the day these are the repercussions of investigating the powerful. That is why that arm of the state, which is the Executive, is at the core of my challenges as the Public Protector. My predecessor faced similar issues, but it was better with her because she never reached the stage where she is sitting here and being subjected to impeachment, because I mean, you know, you also tried to show her that the very same – some – members who are here, they were calling you names, they were vilifying you, they labelled US spy and all those, is because we investigate the most powerful: the owners of media industries, and capital who do not want to account. As a country we are dealing with corruption because there is a corrupter and corruptee. Who corrupts and who creates all the challenges is those who have the resources and the means to have the resources. Unfortunately with me is that then you find – we will still deal with that – then another arm where I am taken to court and there are judgments which are issued, like what we dealt with now the code and the very same issue of the CR17, where the facts are not correct and wrong and the judgment is out there; just because it is a judgment. Yes, we respect the judiciary and the outcome, but the fact of the matter is now this process – that is why I said I am so happy to sit here and take the public because at least they would want to know exactly why are you being persecuted or, you know, you label this person who does not know the law. Now, with this Bosasa issue, here is evidence before the court. This is what we considered. We came to a conclusion that there is a violation of this law; the Executive Members Ethics Act (and) the Constitution. That is all what we did. I think those are the main causes of me sitting here and now being on suspension because of Phala Phala and the 31 questions.

Adv Mpofu: Yes, thank you very much for that answer. In other words, you can change the players and the Public Protector, the President and this and the other, but given the powers that are bestowed on that Office, is there any difference, really, between what you are going through, as you say, and what happened in the Nkandla business? I am saying that in relation to the obvious similarities, with both matters involving the trilogy that we spoke about: EMEA, the Code and Section 96. Both were against (the) President of the country. Both were adverse findings against such a President. Incidentally, both relied, wrongly, on the wrong Code, to some extent but that is just by the way. But if we forget about the personalities involved and look at those cases: the Nkandla experience, and what your predecessor went through; and your experience with Bosasa/CR17 and to some extent, Phala Phala, as you mentioned. Forget whatever happens to you as an individual, what learnings should the country take from this? It is either that things are getting worse, and remember that in a way, Ms Madonsela got away at the right time, 2017, which was a year after the Nkandla case that said that the powers were binding. You went in right on the face of the storm, and had your seven years in that era. And come the end of this year, we will have a new Public Protector, and we do not want a trend where that person will be flattened out in a few months, as it were. In other words, we do not want the situation to get worse, we want it to get better. What, apart from the amendment of EMEA that you referred to, where there will be a filter through Parliament, what else can be done to ensure that the powers are tampered or that the Public Protector is protected. It is one of the two: either you are going to tamper the powers, as Hon Sokoni was suggesting, or provide more serious protections or both.

Adv Mkhwebane: I think, for me, again, going back to the issue of saying the Constitution, the way it is crafted and it's providing for this institution, and that this institution should operate independently, without fear or favour. And the issue of fear or favour and the independence is affected by a number of things, I mean, how the institution is being funded is a challenge as how the institution is not being provided enough resources to do the work. And this institution, the powers which this institution has, there is nothing wrong with, as long as you have political will, as long as you have people who are in the Executive who would understand that they are there to save. Not they are there because they want to or it is just creating their own kind of fiefdom. or, you know, I am in position and I have this kind of power. But then how do you maximise and use this institution to your benefit? I think that is one thing, where if you are a Minister, and I have said it last time, you have challenges in this part of your department, for instance, health, hospitals, the way they operate, or water and sanitation, or this issue of pit toilets, if your education, there is nothing wrong (with) you approaching the Public Protector. That is when I was training or we were going around the provinces, even informing the Members of the Executive that, you know, the late Kader Asmal did that during, I think it was Mushwana or Baqwa’s time, where he approached the Public Protector and said “Public Protector, can you investigate the issue of communication in the public service?” Communication in the sense that how does the issue of red tape affect service delivery. And there is that report like that, because that person understood that this institution is so valuable (and) (it) is a constitutional gift to the public. And if you are an Executive, you want to serve the public, you would do that. Secondly, you then also have to work with all the NGOs, the ones who are calling themselves to be you know, NGOs, looking after the issues of the poor, the marginalised, the human rights violations, service delivery issues. You should be partnering with this institution, irrespective of who is the incumbent because unfortunately, in South Africa, once the media or those who do not want you… those you have investigated, and you have findings against. In Chinese they say ‘a person loses face’, meaning because they kind of think that you have embarrassed them, but that is not the intention. You have this responsibility to issue the report, and as a person, you should learn 'what must I learn' from this particular process. So I think if my successor can be treated with that respect, because unfortunately, I feel as if this institution’s powers are being weakened. And this confusion as well, unfortunately, in the Constitution, where you will find Section 194 for the Committee determining the fitness to hold office. Then again, it goes back to the President who will have to suspend the very same person, and the very same person is investigating the President. So there is that challenge and quagmire or issue with that. But then even if it is there, and we're dealing with the institution, we do not check who is the incumbent and what can we maximise from this institution. Then we would not have challenges. That is why I am saying possibly my successor will be favoured by those who have power or the media, because I think the media plays a critical role in this instance.

Chairperson: Thank you. Adv Mpofu?

Adv Mpofu: Thank you, Chair.

Adv Mkhwebane: I mean, whilst you are still looking, even the issue of the judges. Since the judges are there to adjudicate and interpret the law, I think my expectation is that if you review a matter, but then I think you can correct me there; Chairperson, an appeal is different to a review. And a review most of the time is you can review the matter and send it back to the decision maker. But then there was then an attitude, most of the time, I think it started with the Vrede matter – we will deal with that in the pleadings – wherein they said that must not be returned back to the decision maker, because the main aim was to when you review, you would say ‘Public Protector, you did not follow process. Here. You did not do the following. Go back and do it proper.’ And because as a court, you are focusing on the poor, the people who do not have the means, the people who cannot approach you as the court and the court, you are there to be blind to make sure that there is justice. So it is purely that. I think they have got a huge role to play as well to understand that this institution is not like a police. Yes, it has those powers, but those powers are unfettered because they can be taken on review.

Chairperson: I think you have covered (him). You have given him enough time to get back to the issue. Let us go back to Adv Mpofu.

Adv Mpofu: Thank you very much, Chair. Chair, I know we have read this out before, but I want to re-read it in the current context. This is the famous statement which you will find at paragraph 52 of the Nkandla matter. I will just read it out, because everyone knows about it – it is at the middle of 52. It says “The tentacles of poverty run far wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice and teeth that would bite corruption and abuse excruciatingly, and that is the Public Protector. She is the embodiment of a biblical David, that the public is, who fight the most powerful and very well resourced Goliath – what impropriety and corruption by government officials are. The Public Protector is one of the true Crusaders and champions of anti-corruption and clean governance.” And then the first sentence of the next paragraph “Hers are indeed very wide…” not just wide “powers that leave no lever of government power above scrutiny, coincidental embarrassment and censure.” And then if you can just jump to paragraph 65. This is where we talk about the protections: “Her investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power. The predicament though, is that mere allegations and investigation of improper or corrupt conduct against all, especially powerful public office bearers are generally bound to attract a very unfriendly response. An unfavourable finding of unethical or corrupt conduct coupled with remedial action will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage. It is unlikely that unpleasant findings and biting remedial action would be readily welcomed by those investigated”. Comment?

Chairperson: Maybe just before comment; if you can assist, Adv Mpofu, you made the point yourself. We did cover this ground. I do not want us to repeat and go back.

Adv Mpofu: No, fair enough. I do not want us to spend too much time on it. I want it in the context of what we are discussing, the EMEA powers and so on – only confine it to that, Public Protector. The Chair is right.

Chairperson: Okay, thank you.

Adv Mkhwebane: I did not get that. It relates to what?

Adv Mpofu: Remember what we are discussing is the extensive powers from EMEA, the likely reaction, and so on. So I am saying… I am reading this in that context. Remember, we dealt with this in the landscaping, just in terms of the general powers of the Public Protector? So I think the Chair is saying let us discuss it in the context of Newton's law that I was talking about.

Adv Mkhwebane: Okay. Yes, definitely. And I think you are confirming what I said earlier about the raw state power and the losing face, because those are the powers of the Public Protector, and people do not want to be held to account. And once we issue a report it is like… it is portrayed as if one is fighting that President or that Minister or that MEC and of which is not the case. But the fact of the matter is that a complaint has been lodged. We have the power to investigate, it is a must and not a discretion. I think this paragraph, Chairperson, is very critical, because when we deal with the alleged Rogue Unit or SARS matter, the issue of raw state power, where one is regarded or where you are told you cannot get this, or you cannot have this particular information, and you are just tossed up and down. But we have the Constitution, which gives you all these powers.

Av Mpofu: Thanks. Maybe, to focus it, as I say to the Chair, so that we do not go back to the landscaping as such. Maybe let us use the one case study that you just mentioned now. If we go to annexure BM10 of the Public Protector’s. That is the case you just mentioned, which will clarify both the broader EMEA point – that is your investigation into the Phala Phala thing. I am more interested in your remarks. You have already testified about your view that this was the cause of all your problems and all that.

Adv Mkhwebane: What paragraph in my affidavit?

Adv Mpofu: It is BM10… Sorry.

Adv Bawa: Chair?

Chairperson: Yes, Adv Bawa?

Adv Bawa: I understand what Adv Mpofu is seeking to do, but the letter is generated post the complaint and post the issuing of that. So we are now going to events which happened post with what this Committee is seized with, which I thought we had agreed was not going to happen.

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: Chair, no, no. I am not doing of the sort. I am saying we are using this, which is why it is here to illustrate… It is relevant for two reasons. One, it illustrates what we are discussing now, which is what an EMEA investigation entails, but also, in fact, this is prompted by the question from the Public Protector, which I think is more helpful. It relates to the body of the statement where this is attached, and that you will find, Chair, at paragraph 48 of the statement.

Adv Mkhwebane: Paragraph 48?

Adv Mpofu: Yes, page 517. So it is as I say, almost killing two birds with one stone. It discusses what we do now, but also dispenses of that portion of the affidavit. BM10 is more…

Adv Mkhwebane: I think it deals with the suspension.

Adv Mpofu: Yeah, and then it deals with the suspension. And then on the…

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

Adv Bawa: Chair, I do not want to interrupt, and I have not been interrupting. But I understand from this, that the first probably 49 paragraphs of the affidavit, besides the qualifications, are all backgrounds we had raised. Adv Mpofu dealt with the suspension many months ago, where I thought we had reached an accord that this Committee has no powers in respect to the suspension; nor was the suspension linked to the Motion. And you had raised a number of factors in addressing this Committee, both in your opening address, first one and the second one, dealing with the question of the suspension. I am not sure if we are going back there now?

Chairperson: Yes?

Adv Mpofu: Thank you, Chair. We are not going back to anything. Well, maybe let me ask the witness. Adv Mkhwebane, can you explain or rather do you subscribe to the theory that the suspension is not relevant to what we are going through here in this Inquiry?

Adv Mkhwebane: Thank you. Chairperson, I was just going to indicate that indeed is in my statement, and I would like to put my side of the story to this particular matter, because for me the issue of the suspension is directly linked to the operations of this Committee. So, indeed, there is no way I would not deal with this because that is provided for in terms of Section 194. Exactly what Section 194 is saying, there will be a Committee to determine this and after the start of the proceedings, the President may suspend. And with me, the President even suspended even before the start of that particular Committee. For me, I hear what is being discussed, but for me, I would want (to) because that is why I am suspended – because of this investigation. It links up, Chairperson, to my powers, investigating the most powerful, under the very same legislation, Section 96 is linked to the Executive Members Ethics Act and the Code. And that letter was sent. I have indicated in court but here, I also indicated when I served the letter, and when I was suspended. So for me, it is at the centre of these proceedings, and for the public to also know why I am raising this matter, and why the suspension – definitely according to me, you cannot separate the suspension from this process.

Chairperson: Just two things, so that we proceed properly. The first one; you just need to indicate where we are now, because the last time I checked we were at 298, the violation of Section 96 and then proceeding in that way. I do not want us to be all over the place, and we walk with you in terms of this. That is the first point.

Adv Mpofu: Thank you, Chair.

Chairperson: The second point; I think this Committee is not going to lock you out in terms of what you want to say, but we are a Committee that has a mandate, and we operate within that mandate, and we are in a legislative space. Whatever that we do now and what we will conclude on has got to be focused on those kind of issues. We would not want to encroach any executive space in terms of what we do. I think as a Chair, I have been communicating that consistently. But it does not prohibit you expressing yourself on those matters – that I would allow. But as long as you know as you do that you cannot create expectations of us that we cannot fulfill, and deal with.

Adv Mpofu: Yeah, thank you, Chair. For your comfort, Chair, we appreciate that. I promise you, this is not the place where we want to complain about the fairness or unfairness of the suspension or whatever, because that would really be now putting you in a space that you do not belong to. The sole purpose of this is, as I say, literally, to kill two birds with one stone; is to show a typical EMEA approach, which is what we were discussing, but also to deal with and then accept what my learned friend says about their view of the connection. But our view of the connection is that, as explained by the Public Protector, that both processes emanate from (section) 194. In fact, the so-called suspension is the suspension pending this process, so they are symbiotically linked. But I do not want to get into that debate right now. I am simply saying that this is something that is in the statement. This is an attachment to the statement, not something we are importing; it is already before the Committee. And I just want… Actually, we would have been done with this because I just wanted to show the flow of receiving the complaint from Mr Zungula, and then you do this and then you do this. It is really in that context, as a typical EMEA complaint.

Chairperson: You are using the Phala Phala thing as an example because it would not be a subject of this Inquiry?

Adv Mpofu: Absolutely. That is why I said case study. Thank you, Chair.

Chairperson: Okay.

Adv Mpofu: Can you go to BM10? I will even go faster because we have just wasted time on this. It is BM10, which stands for Busisiwe Mkhwebane. Alright, I will just do the highlights. Go down to paragraphs one and two. “In this example, you have investigations into allegations of a violation of the Executive Ethics Code against the President of the Republic, His Excellency, Mr Ramaphosa.” And then you say, and I am going to paraphrase, on the 3rd of June you received a complaint from a, Mr Zungula, correct?

Adv Mkhwebane: Correct.

Adv Mpofu: Then in paragraph two, you say what Mr Zungula alleges, that ‘you concealed a crime from the South African Police Services’. You paraphrased the essence of the allegation, correct?

Adv Mkhwebane: Correct.

Adv Mpofu: And then at paragraph three you then talk about the filing of the complaint at the police station by a Mr Fraser, correct?

Adv Mkhwebane: That is correct.

Adv Mpofu: Right. That is the first section. The next section of the document then details what Adv Bawa and I have been debating, which is the connection between EMEA, the Code and then the PPA, the Public Protector Act.

Adv Mkhwebane: Yes.

Adv Mpofu: So you refer to Section 7(1) of the Public Protector Act. You refer to your powers in terms of (Section) 182 of the Constitution. Section 3 of EMEA, the one that you just read out to the Committee. And then you… Sorry, Chair. What is the page at the top, Tshepo? 699? Okay. Let us go to 700. There you talk about that “The evidence furnished Mr Fraser also made it practical to entertain the matter. The seriousness of the allegations involves money laundering, tax evasion, kidnapping, defeating the aims of justice” and so on. And then the important part for the purposes of this discussion is paragraph 18, where you then link all that up to Section 96 of the Constitution. So that is the tripartite connection that we have been making since just before lunch. This type of investigation would then anchor in the Constitution, refer to EMEA…

Adv Mkhwebane: And the Code.

Adv Mpofu: And apply the Code, yeah. You then say at paragraph 15…Alright, you have already read Section 3 of EMEA. Right. Then in the spirit of – oh, well, I see that Hon Sukers is not here. After that whole fiasco of which code and all that, obviously you have now taken your lesson from the judgments. Go to page 702. There you cite the Code. Obviously now this is the correct Code?

Adv Mkhwebane: The 2000 Code.

Adv Mpofu: Yes.

Adv Mkhwebane: We have learned from the ConCourt.

Adv Mpofu: From all of these judgments?

Adv Mkhwebane: Yeah, they have changed and also relied on the 2000.

Adv Mpofu: Yes. Chair, if you allow me, please, to kill the third bird with the same stone. While we are there, can you quickly… I have lost the reference. The 2007 Code, we just posted it.

Adv Mkhwebane: Okay. Yes, to compare the two?

Adv Mpofu: Yes, while we are here, so you do not have to go back to that.

Adv Mkhwebane: Okay.

Chairperson: Just a pause. I see the hand of Hon Sukers.

Ms M Sukers (ACDP): Yes, Chair. I just want to tell the Hon advocate that I am actually here on the platform.

Chairperson: I am aware. He was referring to you being physically here. We know you are on the platform.

Adv Mpofu: Thank you, Hon Sukers.

Chairperson: He wanted to look at you. He cannot look at you on the virtual (platform).

Adv Mpofu: Yes, I was thinking that I was going to catch your eye. It is Bundle H, PP folder, Item 31.7.14. While we are looking at it, just for the benefit of the Members, this relates to the…

Chairperson: Please mute, Tshepo. I do not know what is happening there. Adv Mpofu?

Adv Mpofu: Thank you, Chair. This relates to the topic about the confusion that the Chair and I were referring to, whether it is bona fide or not, and the confusion between the 2000 and 2007 Codes. I just wanted to get rid of that for the sake of completion by just showing the Members where this thing about ‘advertently’ came from that was said to be invented by the Public Protector. And, in fact, at the appropriate time, Chair, I will demonstrate that in the Nkandla report now, not the Judgment, the report itself there is reference to the ‘inadvertently’ and all that. Are you there, Tshepo?

Chairperson: Okay, IT up there, do you know what is happening? We are not looking for a clip. We are looking to show a document. So assist us there.

Adv Mpofu: IT, I think it is paragraph 2.3. It is actually highlighted.

Chairperson: You sorted, Tshepo? Okay.

Adv Mpofu: Chair, can I go on? We will come back to it.

Chairperson: Okay, thank you.

Adv Mpofu: Thanks. Alright, in any event, you have confirmed that is a citation of the 2000 version of the, let us call it the correct version, correct, PP?

Adv Mkhwebane: Yes, that is correct. In the new investigation, to show that we are learning we move with the time(s).

Adv Mpofu: Yes, and to show that this time you did not invite the word ‘advertently’. Alright.

Chairperson: IT, are you having challenges? Okay, thank you.

Adv Mpofu: Oh, there you are. Chair, forgive us for the underlining, it is for emphasis. So that version of the ‘wrong Code’... And the point here is whether it was a mistake of applying the ‘wrong Code’ or inventing a new word. It says here “Members may not deliberately or inadvertently mislead the President, or the Premier, or as the case may be the legislature.” Then the rest is what we read before; ‘act in a way that is inconsistent with their position, enrich themselves’ blah, blah, blah. So, the… Okay, what is your comment on that – regarding the finding you had invented the inadvertent test?

Adv Mkhwebane: I did not invent my own words. This is the 2000 version of the Code.

Adv Mpofu: 2007.

Adv Mkhwebane: The?

Adv Mpofu: That is the 2007.

Adv Mkhwebane: Oh, yes. The 2007 was speaking about the ‘willfully’. The 2007 Code, which deals with the ‘Members may not deliberately or inadvertently mislead the President or the Premier, or as the case may be, the legislature.” So I found… Well, it was there in the 2007 Code. And I must indicate that this 2007 Code on the 7 February 2007, the then President, Mbeki, introduced significant changes to the code of ethics. So it was… He published a new ministerial handbook. So that is the information one has been having. Worse, the Nkandla Report relied on this Code. All those EMEA investigations by my predecessor relied on that Code. So hence, I also relied on that Code. I never invented my own Code as the Public Protector.

Adv Mpofu: Thank you, Chair. Sorry about that. Mr Shabalala was saying that I must show the Code, for the benefit of those who do not know these codes. Go to page eight, operator. At the bottom of that page, Chair, you will see the inscription there, approved by Cabinet 7 February 2007. That is good enough. It shows two things. One, it is the 2007 version, but also that it was, at least, at face value, approved by the Cabinet. It turned out that the old one was applicable so we do not have to go into all of that detail. It is just to show that really the reason why we are here is not so much about whether it was the right or the wrong, it is whether someone like the Public Protector would bona fide believe that this was the applicable Code at any stage, when it has that apparent stamp of approval by the by the Cabinet. I think that is good enough. Thank you, Mr Shabalala. Let us go back then to 2.3. Now, you see the conventional wisdom in the school of thought that says that you were inventing this was that it is a ridiculous invention anyway, on your part, because you cannot mix together ‘deliberately’ and ‘inadvertently’. But that is a matter for argument. I think what President Mbeki was trying to do, whether it succeeded in terms of procedure or not, or whether it was finally approved is another matter, but would you agree that this was an attempt to tighten the net, so to speak? So if the 2000 Code was only saying you will be guilty if you willfully misled the legislature; now they were introducing a new element to say, not only willfully or deliberately, because that is a synonym, or inadvertently. In other words, it is like saying, you may not kill a person intentionally, which is the law, but they also say, you may also not kill a person negligently; that now tightens the net, so to speak. So you cannot escape by saying, ‘Oh, well, I did not mean to kill the person’ if you were negligent.

Adv Mkhwebane: Yeah, I think that was the move towards making sure that people or the President is seem to be acting firmly, and being decisive, because the 2000 code, when it says, especially on the misleading part, it says, ‘Members of the Executive are forbidden from willfully misleading the legislature to which they are accountable.’ So the members should show that or the person… the investigation should show that the person has given the incorrect information with the intention to mislead.

Adv Mpofu: Correct.

Adv Mkhwebane: So the incorrect information alone is not sufficient. But then it should constitute that there was an intention. So I think President Mbeki then saw the need that people who are serving as executive – you remember the high standard, they should be behaving themselves.

Adv Mpofu: Eye of the needle?

Adv Mkhwebane: Yes, the one I have mentioned earlier. You cannot just rush to go and answer in Parliament without making sure that you go and investigate the matter; you get the response. I will give the example of the Browne Investigation, the previous Minister Brown, because I indicated that she inadvertently… she never made sure that Public Enterprises Department provides her with the correct information. She just went and presented that response, and it became clear that that response was wrong. So there was no intention, you know, but she was then kind of careless, because she should have made sure that the information she gets is truly the true facts. So I think that 2007 was then saying, you cannot just come and present malicious compliance. I like to say that in the office, that sometimes officials will just do malicious compliance. But you need to be seen to be knowing what… You respect the decorum of Parliament, because they are the people, you need to respect the people. You cannot just go and report and then life must just go on. So I think the intention was that which was good.

Adv Mpofu: Right. And incidentally, all those people that you mentioned, Minister Lynn Brown, Ms Tina Joemat-Petersson, Dina Pule and the others, who were, shall we say, censored or punished in terms of the ‘wrong code’ – the tighter version that we have just seen now. What consequences did they seemingly suffer and were they reversed it was discovered that it was the ‘wrong code’?

Adv Mkhwebane: Not at all. I mean, the previous Minister van Rooyen and Minister Brown, during my tenure there was no way – well we got an acknowledgement of the report, with the President acknowledging that ‘I have implemented your report. I will be relieving them of their duties.’ There is also the former Minister, Malusi Gigaba. There are issues of the other Ministers. But the issue is, nothing was done. But at the end of the day is that possibly Tina Joemat and Dina Pule – there are more, such as Nkoana-Mashabane. Some of them went back to work, but the fact of the matter is the intention is to know, because it is a lesson you learn; it is a warning.

Chairperson: I did switch it on.

Adv Mpofu: Oh, it is automatic? Sorry, I did not see that.

Chairperson: Please switch it on. I will attend to this because she raised her hand. I opened mine and yours was switched off. Please conclude.

Adv Mkhwebane: Yes, I just wanted to say the intention… Adv Bawa, when you switch it on, my one will switch off automatically.

Adv Bawa: I am trying to get the Chair’s attention to raise an issue with my colleague, and the only way to do it without interrupting him is to put the light on so he can see.

Adv Mkhwebane: Okay.

Adv Mpofu: We can have two but not three at the same.

Chairperson: Alright. Adv Bawa?

Adv Bawa: Chair, the question posed by Adv Mpofu presupposed that in any one of the reports to which he has referred to, and I am not for a moment saying that I know what the contents are, that any person had actually raised or discovered that the wrong code had been raised.

Adv Mpofu: No, Chair.

Adv Bawa: In the way the question was phrased. I just wanted him to clarify that because the question asked was: did anybody do anything about it when it was discovered. So it presupposes that anybody discovered it.

Adv Mpofu: Fair enough.

Chairperson: Thank you for that.

Adv Mpofu: Yes, thank you, Chair. No, no, that was inadvertent. That was not my intention. My intention was, A, it goes to what the Chair was saying that let us assume whoever applied the wrong code was doing it genuinely without some nefarious intention. So I am accepting that if someone was fired because of the wrong code, it was not to get rid of them. Yeah. So let us put that aside. I am now saying that assume that assume that, and the Public Protector has said there were consequences and Ministers were relieved, you are relieved now, and then later on comes the Bosasa Judgment, which relieves all of us from all of the misery, and actually explains that the correct code is the 2000 Code. Even at that point, you could either say, ‘Oh, I am sorry Minister Lynne Brown, you were relieved of your job wrongly.’ You do not have to rehire them but at least simply say it was the wrong law. I am at that level. I am not doing it literally to say… Maybe let me put it this way: was there any acknowledgement that those people who may have been reprimanded or punished, using the wrong code?

Adv Mkhwebane: There was no acknowledgement. Hence, I said, some of them were the ones who were found wanting under my predecessor’s time. Some of them went back to be Ministers, so they continued, and I hope they have learned their lesson. And again, taking it in that spirit that this code or this process, is not supposed to be taken as if it is a punishment or the Public Protector is abusing her powers or whatever. The intention is: you did this, but in the future do not repeat again. Now because we are going back to ‘wilful’. It is only purely on the issue of the misleading, because it is similar with the 2007 (code) relating to any other.

Chairperson: Okay.

Adv Mpofu: Okay. Anyway, I think we are fine with that. Then we are done with the comparative exercise, Chair. I was just taking advantage about the fact that it was before us. Can we go back to page 702, Tshepo? In this Phala Phala letter, you then, as we said, obviously now quote the correct code, and you highlight the relevant parts. I like that as a drafting style. So you give the full code in all its width – we were talking about the wide ambit of the Code earlier. But at the same time, you put in bold, Sections C, F and G, which obviously means those are the relevant ones for the purposes of this particular investigation. Those, Chair, are, C, “Members may not act in a way that is inconsistent with their position.”

Adv Mkhwebane: Yes.

Adv Mpofu: So you highlight that. You do not highlight the ‘willfully mislead the legislature’, because that is irrelevant to Phala Phala?

Adv Mkhwebane: Because that is not (the) parties.

Adv Mpofu: Yeah, okay. And then, F, you highlight “expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interest.”

Adv Mkhwebane: Correct.

Adv Mpofu: And then you highlight G, “receive remuneration for any work or service, other than for the performance of their functions as members of the executive.”

Adv Mkhwebane: That is correct.

Adv Mpofu: Okay, that is good. I have been criticising…

Adv Mkhwebane: And then with the Bosasa one we then also included the first one. So if it was this 2000, we were going to deal with the ‘wilful misleading’ but then because it was a 2007, we dealt with the ‘inadvertently’ and ‘misleading’ (and) ‘deliberately’.

Adv Mpofu: Yes, very good. No, I was saying that I have been making snide remarks about how the office makes 5.3, 5.4, 5.5. This is a compliment. I think this idea of highlighting the relevant parts, I think is a good idea, so the reader knows the attention can be brought to the relevant facts. Okay. Then you quote the Bosasa Judgment, effectively, having taken learnings from there.

Adv Mkhwebane: Yes.

Adv Mpofu: Then let us go to 703. Then now you have landscaped, to use the Chair’s word, you have put the Code, the Act and the Constitution and what have you. You then come to the merits and then deal with the actual complaint?

Adv Mkhwebane: Yes, that is correct. It is part of audi. It is part of informing the President or bringing the President into… well, informing that there is this complaint and who lodged it, how it is crafted, how it has been lodged and deals with what issues.

Adv Mpofu: Well, it looks like I am in a good mood today of dishing out compliments; but how did you do all this work within a week? This is quite a lot of good work and extensive exposition. I mean that landscaping is seven pages or so. Rather, in an EMEA investigation in particular, what drives the speed? Maybe that is the simpler question.

Chairperson: You are more than generous with the appreciation but now that is bordering out of what we are dealing with now, if she has to explain…

Adv Mpofu: How good it is?

Chairperson: Yes, yes.

Adv Mpofu: No, Chair, that is not the intention. The intention is really to bring it to the EMEA mode. Maybe that is why I added that last part.

Chairperson: Okay.

Adv Mpofu: This seems to be an efficient synopsis, but the Chair is right, that is just my assessment. What I want you to deal with, given the nature of the complaint, and the people involved and the EMEA and all of that, when EMEA says that you must do this within 30 days, what does it communicate to you?

Adv Mkhwebane: It communicates the speed. I must indicate that this is relevant on a number of, well, as a case study. But we can even go back to the issue of the Bosasa, the very same matter which is before this Committee. And striving to comply to the Executive Members Ethics Act. On receiving the complaint, it was allocated to this Chief Investigator also who was expected to at least draft – we call it the evidence or the information request letter. Well, it is the first audi actually, because then we bring it to their attention. So it was purely to strive to investigate the matter speedily. That is what I said that during our various meetings, there was a time where I would say, for task register, every week they should take me about the Executive Members Ethics Act complaints; trying to also lead by example, try to be compliant, because we're currently not compliant. And I acknowledged myself that that is not the issue. And this was trying to improve as time goes on. Hence, in other investigations, for instance, we will deal with that when we deal with the issue of SARS or the alleged Rogue Unit matter, where issues had to be split. There were 12 issues raised, then we had to split that investigation and conduct the first part, so that we can fast track EMEA, Chairperson, again, learning from where? From my predecessor. There was Prasa – is it Prasa or Transnet?

Adv Mpofu: Prasa.

Adv Mkhwebane: Prasa Investigation, where she did the first part and then I had to finish the second part. The main intention is to lead by example… investigate matters without delay. It has nothing to do with targeting people or… Yes, I think it was purely that.

Adv Mpofu: Yes. No, fine. Thank you. Just so that the Chair does not reprimand me again. If you go to 704, that same issue arises, not as a compliment but as a loaded gun, as it were, from Mr Zungula. The last sentence, yeah.

Adv Mkhwebane: Possibly Adv Bawa wants to object but she must tell the Chair to look into it. Maybe she does not want to delay the process. I am just saying I am sitting here, and it is her who tells the Chair, then the Chair will tell you. Maybe because she does not want to raise the hand.

Adv Mpofu: That happens a lot. That is fine.

Adv Bawa: I am endeavouring to catch the Chair’s eyes so that I do not interrupt your speech. But at this moment I was not doing anything. If it does bother you, I will go on record to that.

Adv Mpofu: No, it is fine.

Chairperson: Let me indicate that you do not need to hold back if there is any issue that you want to raise. Please, because we are here for that, get onto the mic. I am not always looking at you because I am concentrating on these two, so I would not see you.

Adv Mpofu: On the people that are on the floor.

Chairperson: Do not hold back on going to your mic if there are issues. It does not have to be you just do it for the sake of doing it. Thank you.

Adv Mpofu: Thank you, Public Protector. No, Chair, it is something that had been bothering us, but I thought we should just turn a blind eye to it. I think it is…

Chairperson: No, she is not disrupting.

Adv Mpofu: No, no. I am not saying that she is disrupting, but she seems to be directing you as to what to do.

Chairperson: No, neither you nor the witness. Nobody is directing me. I am open to everybody here, so I do not want you to make any creations here of that kind.

Adv Mpofu: No, Chair, believe me, I am not blaming you.

Chairperson: If that is what Adv Mkhwebane was saying, then I think I would have an issue with that.

Adv Mkhwebane: No, I am agreeing that possibly she wants to save on time. She does not want to object and press again, because it affects my mind. That is what I am saying. I was just showing the SC that, you know, I am seeing because she will talk but not press. So I am just clarifying to him that it…

Adv Mpofu: Chair, I do not think it is necessarily…

Chairperson: No. Are you done, Adv Mkhwebane?

Adv Mkhwebane: No, I just wanted to say that it is something possibly she wants to save time. She does not want to object.

Chairperson: Okay.

Adv Mkhwebane: And possibly that might appear as if she is telling you what to do. So it will help indeed, for her to object, as you say, so that we can know that this is the issue to address.

Chairperson: Yeah, she is an advocate and senior counsel, the worst thing she can be is the Chair of this Inquiry. Thank you. Adv Mpofu?

Adv Mpofu: No. Thank you, Chair. I hope that will assist. Maybe sometimes, I mean I do it sometimes, trying to catch her attention but it must not look like…

Adv Bawa: and I have, Adv Mpofu, tried to catch your attention because whilst I do not want to raise the issue about the leading questions where you are suggesting the answers to the Public Protector. And I have tried to catch your eye to say ‘Listen’. After each question, trying to do that because I also understand you are trying to move things quickly.

Adv Mpofu: Okay, that is fine. I will ask it differently if that was the question. Okay. What do you read into the last paragraph of Mr Zungula’s letter, which is at page 704, in relation to this question of speed that we are discussing, starting with the word ‘given’. Maybe read it out yourself because if I read it myself, it might be seen as a leading question on its own. I was just trying to speed it up.

Adv Mkhwebane: Yeah. “Given the seriousness of this complaint, the ATM wishes to remind you that Section 3(2) of the Executive Members Ethics Act compels you to report on alleged breaches of the Code within 30 days.” So that was directly from what the law is saying and as I said, striving to do matters speedily. And not only to this complaint, but to any other complaint, which is lodged under Executive Members Ethics Act.

Adv Mpofu: Okay, speeding up some more. Go back to 703. Again, I will not go through the part in the italics. I was saying then after the landscaping you get to the meat, which is 25.1, and there you say “In his complaint, the complainant informed the Public Protector that on 9 February 2020 there was a theft of millions of dollars by criminals who colluded with your domestic worker and that you concealed this crime from the South African Police Service and SARS, and thereafter paid the culprits for their silence”, and then you go to the italics. And then number two, on 704, “Having analysed the complaint, the following issue was identified to inform and focus the investigation.” And again, I don't want to go into the details. I am just showing the format of how you do this thing. So you say what the complaint is, you quote from the letter of Mr Zungula, and then you identify the issues now – this is now you speaking as the Public Protector, correct?

Adv Mkhwebane: That is correct. I think maybe if we could have used the Bosasa letter, I do not. But it is in the report as well – that is what we captured. Definitely, we bring to your attention the kind of implicated – you are not implicated as yet. This is still the very early stages of the investigation. We bring the complaint as is to you because it is not something like we are hiding anything to you, but we (are) just showing you this is what the person has complained about, and then can you give us your side of the story. In fact, that is at the core of the issue of giving the party their side of the story.

Adv Mpofu: Okay, then the rest is then the famous 31 questions.

Adv Mkhwebane: Definitely, because there you need to remove the issue of investigating out of the box, fact-finding missions. You try to, because always when we meet at our task register meetings, full bench, or when we do file inspection, that is the key issue that, Chairperson, I would say to them: take yourself to a crime scene. Well, you are not police and I am not a police, but we normally see that when you arrive at a crime scene, you need to cordon off that crime scene. You need to make sure that you get all the evidence, any information you might get, maybe (the) murder weapon, anything, DNA test and everything, so that at the initial stages, you have all the information. Hence, when we write that letter like that, we did the same thing with the Bosasa investigation. We bring everything to your attention. And in the Bosasa matter, because I think possibly the challenge that we are using this one. As well, the complaint was from Mr Maimane. The President spoke about his son, he cannot allow the family and all those. But what our investigation uncovered (was) that later he wrote a letter. It was his campaign. The son had nothing to do with that; yes, we interviewed the son. So even here we collate as much as possible, hence those 31 questions. And even it relates to matters which are falling outside of our mandate, for instance, the issues of alleged tax evasion, the issues of alleged kidnapping and all those; but we are doing that so that once we receive the information, then we go to Section 6(4)(c). It is either during the investigation we refer we say maybe ‘Hawks, this is for you. We focus on this’ or alternatively we collate everything and then at the end of the investigation, even after the Section 7(9), then we can refer that to other institutions if the need arises. So it was just purely doing that and that is how we conduct our investigations, Chairperson.

Adv Mpofu: Right. And then lastly on this, then maybe just to illustrate that point, we can look, at random, some of the issues which you say fall outside of your mandate which you did raise here. Yes, for example about whether any tax was paid. That would be something that falls under SARS, not necessarily under your purview, but you are entitled to look at it from the point of view of maladministration point of view

Adv Mkhwebane: Definitely, from the point of view of improper conduct. Remember as well, EMEA, the behaviour of the person in that position. Are you holding yourself with what your responsibilities are?

Adv Mpofu: Yes. Okay, I do not if you have got it in front of you because I do not want to be accused of a leading question here. You can just pick out any issue that falls under that category, which you did ask.

Adv Mkhwebane: Tshepo, if you can scroll up? It was relating to the violation of the Executive Members Ethics Act, relating to whether there was theft of the US dollars in excess of 4 million and whether – you can just scroll quickly, Tshepo – a detailed statement providing an explanation regarding whether your conduct was in contravention of the Code of Ethics and the Constitution, because we are saying, from your side, tell us did you do that financial interest, because it goes back to conducting work. And that, from your side, ‘requested indicated the nature and value of the financial interest.’ Well, that deals with whether there was any cash to the tune of that money is an allegation. So that is what the source of the cash and all those permits, whether you can receive foreign currency and all those. So, other things we requested, again, on the issue of how you conduct yourself as a Member of the Executive, which is very, very critical. You perform your duties and exercise your powers diligently and honestly. You fulfill your obligations imposed by the Constitution and the law, because all this also goes back to the issue of what the law is saying; the exact amount in Rands of such other foreign currency, the date on which the cash was received. So these questions was making sure whether the cash was declared, because are you respecting the Constitution and the rule of law? From your side tell us. So this was just a fact-finding mission; how long was the cash kept there and why it was not kept in a bank. So any question, Chairperson, we ask, but at the end of the day, we then sift and make sure that we deal with what is within our mandate, and then we refer what is not within our mandate – and they act in good faith in the best interest of good governance. So purely checking whether there is any compliance to the Executive Members Ethics Act.

Chairperson: Okay, thank you.

Adv Mpofu: Thank you, Chair. Yes, Chair, maybe let me just round off and then we can take a short break, before I move onto the next topic. Using that kind of case study, and we know you testified before about what the court said about that you were suspended as a result of asking those questions and in an act of retaliation and all that. And I just want, before we take the lunch break, for you to relate exactly that finding by the court, the Western Cape High Court, which is now before the Constitutional Court, in relation to what we were discussing earlier regarding the, shall I call it, the dangers of EMEA or the dangers of having these enormous powers in relation to your personal experience of why you are sitting there, and not just sitting there as a suspended person?

Adv Mkhwebane: You know, thanks for that question. And to just indicate that, you know, sometimes having these powers, it is like a curse; well, for me I felt as if having these powers, having to investigate the executive, people who have the resources, well-resourced, then you are treated as if you would want to or you are targeting them. Worse, taking the matter to court, opposing, trying to bring (it) to the court’s attention how we investigated the matter. I mean, it was good that when we opposed the matter before the full bench of the Western Cape, and where the outcome was saying that the suspension should be declared invalid and set asides and where the judges were mentioning that the suspension may have been retaliatory, unlawful (and) bias of a disqualifying kind and perhaps improper. This shows, and to the public, and I am not scaring whoever will be my successor, but then I am just pleading with the Executive, pleading with the judiciary, pleading with the legislature. Members of Parliament who are sitting here, you are here, because the public brought you here. Never allow a situation where you are not acting according to what the Constitution expects of you. But also use this institution to make sure that you are promoting good governance, you are not dealing with… well, I said it the last time that yes, I am sitting here. I am an example, possibly they need to make an example with me, or as a sacrificial lamb. But then my successors or generations to come, should not be treated like how I am being treated. Use this law, learn from it. And I said that any report we issue, learn from it. You do not have to take it as if the person is fighting you. And I am still repeating to the public out there, anyone, the complaints are lodged by the Members of the Parliament. I am not fighting the President; and if the President is listening, I am not fighting him. The judges who came to these conclusions, we did the best we know how, because what the law is saying, not to say we were targeting him, not to say I changed the Code to suit the facts, not to say I went all out not to believe him; but if you have got evidence in front of you, what was I supposed to do? I conducted the investigation with the team. Unfortunately, the judges as you know, the papers which were presented, and fortunately for us, we also availed all the records. Yes, the challenge, now we still deal with that. How we presented our case, maybe in my affidavit, but the fact of the matter is, you had the Rule 53, and you could see what was the intention of this investigation, it was not any sinister, or targeting anyone. So that is all I would say about that.

Adv Mpofu: Maybe just to round off before we take a break. Using this case study that we just looked at now, and the 31 questions and what have you, would it make any difference? Would you have asked different questions if the President was Mr Qubudile Dyantyi or Mr Kevin Mileham or whoever?

Mr K Mileham (DA): Chair? I am objecting at this point.

Adv Mpofu: Oh, sorry.

Chairperson: Pause, Adv Mpofu. Hon Mileham?

Mr Mileham: Chair, we have allowed this ‘case study’ to go for an extended period and it is far beyond scope of this Committee. Now Adv Mpofu is trying to bring in the 31 questions and different questions have been asked and the like; and I really think that that is now beyond the realm of this Committee. I am not objecting because you raised my name. I am objecting because I think that this has gone too far. Thank you, Chair. Sorry, Mr Mpofu.

Adv Mpofu: Yeah, so am I.

The Chairperson. No. Thank you, Hon Mileham. Please switch off your mic, Adv Mpofu. Thank you, Hon Mileham. I am very cognisant of that, and I deliberately did allow this space with the hope that it might buy us time later. But your point is a valid one, and I have taken note of that. Hopefully we are now wrapping up this, which would have built… I have no problem if it is about building a platform for what is next to come, but I take your point. Now. Did you still want to throw your last question?

Adv Mpofu: Yes, Chair. That is the one… I should have not made an example of Mr Mileham being the President. He has just shown that will never happen. So no, I was just saying, Chair… Really, it was my last question, and I take the point that Mr Mileham made about the case study. I am not even going back there. I was simply saying ‘Okay, forget about the case study.’ Whether it was Phala Phala, whether it was Bosasa, whether it was Rogue Unit or any EMEA investigation; and it is in that context that I was using the issue of the 31 questions. I am simply saying would those questions be different – because it is about the issue of targeting – if the President was the Chairperson or Mr Steenhuisen or whoever it is, would you have approached the matter differently?

Adv Mkhwebane: Definitely now. I think Hon Mileham, I think we were just giving examples. I investigated the… I mentioned various Ministers who were investigated. We investigated the former Western Cape Premier, Helen Zille. I am just giving (an) example that using the very Executive Members Ethics Act, irrespective of who the person is, we investigate, purely checking what the law is saying about that particular person. So I think that would not change or even if we were investigating any person, because remember, I am not the one who is investigating, as we showed Mataboge and Bianca. The investigation is allocated to an investigator then it means I must… If I am accused of being biased it means I must tell them, this is how you are going to do the matter or any other person, irrespective of the evidence which is before us or if it is my favourite person, then you must not consider this information. So we do the work irrespective of who is involved irrespective, because that is showing independence. And I think if we can be, Chairperson, allowed, because it is just trying to show. Hon Mileham might know about all those, it is fine, but again, his constituents or members of the public will be listening and want to understand why I am sitting here as the Public Protector; why the DA lodged this Motion and Parliament agreed to it. So it is purely doing that, for people to understand that I am not going out there and looking for complaints, Hon Mileham. A number of complaints are lodged by the DA and opposition parties. You might be fighting your political space, but I am operating in that space, unfortunately. So if any other Public Protector or maybe Mr van der Merwe, or Ms Pillay with the current law, this is what they will be doing. If they are independent, and they are honest and operate with integrity. So that is all.

Chairperson: Okay. Thank you for that, Adv Mkhwebane. Just before we go for ten minute tea break, just quick points to make to you, Adv Mkhwebane. We are now in the third day of your testimony. This is your time. I think when you are there, I do not want you to be disrupted by body languages. You are now getting a body language from your left, soon it will be from your right. This is what I have been managing here. She is doing her job. She might be agitated or even irritated, as you also do. So I am here to manage those issues. So I want you to stay focused on what you really want to canvas this Committee about. Let us take a ten minute tea break. Thank you.

Adv Mpofu: Thank you, Chair. By the way, I am cool.

Chairperson: I do not know about that.

The Committee adjourned for a ten minute tea break.

Chairperson: We are back, colleagues. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. We will not even go to the evidence of those people. Let us leave that part out. Just on the three paragraphs, I want to ask you a few questions. Firstly, you comment about the learning opportunities. What steps have you since taken… Or let me put it this way: which judgment gave the definitive answer to this question of whether the second audi must be given or not?

Adv Mkhwebane: It is the Constitutional Court Judgment, the so-called Bosasa Judgment.

Adv Mpofu: Yes. Good. Prior to that your office believed that there was no obligation to give this audi? Again, in the mode of what we've been saying all along, it does not matter whether it was the right or the wrong position. The question is whether you were doing it for nefarious purposes in good faith, or whether you were doing it because you hated certain people or were targeting them. Firstly then, when the regime was not to give two audis, was that for everyone, whether you like them or did not like them? Or was it for selected people?

Adv Mkhwebane: Maybe let me start by saying, I know, Chairperson, SC would want to… But I would want to just explain that just for the benefit of everyone who is listening. In October 2016, when I joined the institution. I was engaging the team, the investigators, and the handover report of my predecessor, which was received, I think a week after, there was no stage where we dealt with – okay – what way to proceed and how to deal with the matters. Then there was a stage where we were dealing with the template of the Section 7(9) Notice, and the report. And at the Think Tank we then discussed – there are minutes to that we can share; I think they are even uploaded on the Dropbox – where we discussed the issue of the provisional report, because when I arrived, it was only issued as a provisional report. And that provisional report was issued in terms of Section 7(9). That provisional report had remedial action. So it was the findings and the remedial action. Then, we agreed at the Think Tank that we should now not issue a provisional report because apparently, in the past, they also used to even share that provisional report with the complainant, then people ended up leaking that particular document, or believing that people are implicated forgetting that the implicated parties can submit more information. Then later, we then agreed that no, we are issuing a Section 7(9) Notice and it should read like that. So then the other lesson we learned was the Bosasa matter – the CIEX matter, which we will deal with when we deal with CIEX. That was issued and it had remedial action. Then it was also leaked to the media. We do not even know now who leaked it, because we tried to investigate that, the case was opened. Now, when the Constitutional Court dealt with the matter, I was clobbered with personal costs, the fact that I did not disclose this or ‘you did not do this’. Then the legal services, through Nemasisi – there is a legal opinion, I think it has been uploaded as well – where then he said ‘No, let us go back and determine what Section 7(9) says’ because it is very clear that during the course of the investigation, that any implicated person, on a matter being investigated, may be to the detriment of… or if we found that there is.

Adv Mpofu: Sorry, sorry, PP. I am sorry, Chair, to interrupt. This is an important section, but can you put it up for the benefit of the Members. You can carry on. It is the Public Protector Act, Section 7(9).

Adv Mkhwebane: Yes, just to show, Chairperson, the background to this, and that there were no ulterior or evil intentions in doing that. So then he gave a legal opinion, and the way it was done for those who are legally qualified, it is like having the elements of, well when in a criminal matter, you would say what are the elements of a crime, you know? So even here showing that, especially in 4.5 of that opinion, “The requirements of affording an opportunity to respond is based on the following four elements…”

Adv Mpofu: I am sorry, PP. I am sorry to do this. I am interrupting you for the second time. Can we do that systematically? I want us to go to the Section itself, and then maybe we can use that opportunity for my team to find, if the opinion of Mr Nemasisi has been loaded, to find it. So start with the Section and then we will go to the opinion.

Adv Mkhwebane: Okay.

Adv Mpofu: Alright. Chair, I will read it out, for progress. Section 9…

Adv Mkhwebane: Section 7(9).

Adv Mpofu: 7(9): “If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated, and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall affords such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.” Okay, now you can take us on your understanding of that. In a brief manner.

Adv Mkhwebane: Yes, and then from that we said ‘What are the four elements?’ The person must be implicated, firstly. The person must be implicated in the matter which we are investigating and the implication should be to the detriment of that particular person we are investigating, and there must be an adverse finding against that particular person. So actually, the Constitutional Court did not say… We normally say (the) second audi, actually it is the third audi. Remember, served the President with that letter. That is the first process. The second time was when the Section 7(9), we issued. I had to go to Mhlaba Ndlopfu. We had to discuss and show him the implications. Again, that is another audi.

Adv Mpofu: I see.

Adv Mkhwebane: So now the Constitutional Court finally decided that ‘no, it is not enough’ because here we were checking the implication. We were not dealing with the issues of the… we were dealing with the findings. And hence our Section 7(9) will say ‘These are following findings against you. Give us information or any other record that this complaint is not substantiated.’ Going back to that example of a person who is appointed with a matric, and the advert is saying a degree, because as an institution, or as a municipal manager you must say to us, ‘No Public Protector, our policy allows us.’ There is one matter we did in Limpopo where their policy was providing for the MEC; it was under Health, where the MEC of Health can then condone that particular behaviour. If the policy allows, there will not be any finding because you have complied. But in this instance, where there is an implication, and you do not provide us with the contrary evidence, then we will have the finding. So the issue of audi, again, I do not agree with the way it is captured, that I did not give the President an audi. So this was how one did the investigation, working with the team, and relying on the team and taking their advice; hence, the way we were doing our investigation. And again, why we changed from the CIEX and no longer issue remedies with the Section 7(9), it was because I was also blamed that SARB (and) ABSA responded 'why did you not meet' with them or blamed that I did not share the report with them, which is not true – we will deal with those issues. Now we felt… And you put this remedy, that is what happened in SARB, then they respond, they advise you accordingly. They convince you, actually, because in SARB we will show that National Treasury convinced us. We had to change that remedy. The Presidency convinced us; we had to change that. Now the challenge, again, it means we were supposed to go back to those parties, again, and give them another Section 7(9). So that decision that Nemasisi investigated and said ‘But this is the proper interpretation.’ Yes, it means the Constitutional Court says ‘No, you were not correct’ and we take that, and it is fine. That is what we are implementing currently, but there was no sinister motive at all.

Adv Mpofu: Okay, so in summary, going back to the case study, without causing any chest pains, you say that the 31 questions, so to speak, is what you call the first audi. When the finding happens, it would be the second audi. Then now what the court is basically saying is that you have a third audi after the remedial action has been determined. So that is the current position.

Adv Mkhwebane: I think it means that, but what is currently happening, before even the ConCourt finally issued the judgment, was that we started then issuing the Section 7(9) with remedial action, for expediency, not to say we will issue without remedies, you respond, then we issue with the remedies, you respond: no. What now we are doing is that we issue the first audi when we request documents from you – bringing the matter to your attention, then we issue it when we have a Section 7(9) and then we include the remedies there. So I hope we will not have challenges because once we include the remedies in the Section 7(9), and issue the report, that is what we have been trying to do. Even, there are some matters that we had tried to fast track, there are minutes to that; full bench, backlog matters, how to fast track those matters. When we serve you with a Section 7(9) we insist that we need to meet with you, because what I have picked up is that when people are responding to the Section 7(9) sitting their offices and being advised by their legal services, their reaction is kind of antagonistic, because they are saying ‘No, she is wrong. She cannot’ and not deal with the finding, what your policy is saying and why we came to that. So when we meet with them, it fast tracks the process. We then explain to you that these are the findings, but then to correct it, we are proposing you to do the following. So that is what we are doing, or trying to do most of the time. I would call upon any institution, when you are investigated, even currently, when you are issued with a Section 7(9), request for a meeting with that investigator, or even the Deputy Public Protector currently. Well, I am just calling upon people to do that; public servants, DGs, even the Ministers or even (the) President sit down, or understand why did you come to this conclusion. And we will show you but the law says this, here is your policy (and) here is the evidence; hence we have that. That is what we did with Minister Mbalula when he was the Minister of Sports, because we sat down and showed him everything. Unfortunately, our hands are tied, this is what is happening and these are the findings. So that is being done. Not to say we have anything we are doing in private or in secret. We engage you fully. We even show you the demand of those meetings. Let them take you through that.

Adv Mpofu: What Prof Madonsela referred to as a tea. So you allow for tea, as well?

Adv Mkhwebane: Well, if you are doing investigations, then it means that tea must be with the investigation team and then they should also participate in that particular tea.

Adv Mpofu: Alright, now the issue then is… Chair, I am moving on to something, but I want to flag this because as you know, Chair, this is a recurring issue, whether you are talking Vrede, whether you are talking CIEX, the (Section) 7(9), most of the complaints are around people complaining ‘I was not told this. I just woke up and then there was remedial action’, that kind of thing. Let us leave it there because we will come back to it in other contexts. It seems that the recurring themes in the complaints is this thing about expanding or reducing the mandate, generally, and then this issue of this one not being given an adequate hearing, or a second audi or a third audi or whatever.

Adv Mkhwebane: Yes, I think a number of matters which we will be dealing with, though, then each matter has its own facts and merits and explanation that it cuts across – or I am being blamed that I am not giving people an opportunity. Again, we are still reasoning that the implicated parties, because the person we are investigating, the person who has the responsibility in terms of that law, to act when there is any maladministration. Normally when we investigate that advert in the Municipal Manager Office, we will write to the accounting officer. And we serve the Section 7(9) to the accounting officer because they failed as the accounting officer. The accounting officer is the one who is expected to then go to the HR (Human Resources) manager who failed to make sure that they comply to the policy. I do not know if you get me, SC?

Adv Mpofu: Yes.

Adv Mkhwebane: So in an institution, we will not write to each and every person who was part of the HR manager, and then the panel which interviewed that person. Normally we would say you as the accounting officer, you need to deal with it, but then if we would be expected to issue a Section 7(9) to each and every person, then it means well, we would rather close shop because the institution will not close any matter.

Adv Mpofu: Thank you, Chair. I know I have been promising to move on, but I do want to close this issue. That point you are making is also important, because it is also cross-cutting, and I just want to flag it. For example, it looks like… Well, we are a Constitutional democracy so we all feel entitled to be respected and given our right to a hearing and all that. But you have read the Section. I think your point is that there is a limit and the section limits it to complicated…

Adv Mkhwebane: To implicated parties.

Adv Mpofu: To implicated parties. Sometimes it is the same – complicated parties. The implicated parties – I mean that issue seems to be playing itself out in various ways, and I will give examples. In the Rogue Unit matter, you know we raised it with Ms Mvuyana and other people, it became necessary to explain whether Mr van Loggerenberg, for example, is an implicated person and therefore entitled to a Section 7(9), and then Ms Mvuyana explained why that was not done. Did you regard Mr van Loggerenberg, I know we will get to the Rogue Unit tomorrow, as an implicated party in the sense envisaged in Section 7(9)?

Adv Mkhwebane: We explained and I think Mvuyana explained as well, that the matter was split into two. So there were twelve matters, or twelve complaints, and we then had to split the investigation into two. We dealt with six matters when we issued the reports. So the other six were going to deal directly with the issue of Mr van Loggerenberg, because he was directly mentioned and being implicated. Therefore, he was supposed to be given an opportunity in that particular matter. I think that is one of the reasons when they could not find him, and also advising them ‘Did you check if he is appearing in court? What other measures?’ But we said…

Adv Mpofu: The subpoena?

Adv Mkhwebane: The subpoena, yes. We could not serve the subpoena, but we said ‘anyway, because there is part two, we will still have to trace and find him so that he can give us his side of the story, especially on the monies paid and everything. Yes. So in the first investigation, he was not, and we had to save it to the accounting officer and the decision makers.

Adv Mpofu: Alright. Maybe let us do it like this. The first was the EMEA investigation?

Adv Mkhwebane: Including a few other issues of the appointment of the Unit…

Adv Mpofu: And so on. Then the other part was no-EMEA?

Adv Mkhwebane: There was no EMEA.

Adv Mpofu: Okay, was he implicated in the first part?

Adv Mkhwebane: No.

Adv Mpofu: Okay, fine. Let us put that aside. We will deal with it when we deal with the Rogue Unit. I was just flagging that as an example of this whole (Section) 7(9)...

Adv Mkhwebane: Of who is implicated? Yes.

Adv Mpofu: No, of everyone claiming to be entitled to (a) Section 7(9). The other example is in CIEX. You will remember…

Adv Mkhwebane: The Reserve Bank?

Adv Mpofu: I think it was Mr Tshiwalule, or one of those witnesses. You will remember again, there was a whole thing about Mr Hoffman now?

Adv Mkhwebane: Yes.

Adv Mpofu: Who was also taking the PP to task ‘Why was I not given the Section 7(9) Notice?’ Unlike Mr van Loggerenberg, in that context Mr Hoffman was the complainant and not the implicated party.

Adv Mkhwebane: Yes.

Adv Mpofu: Again, he was not given a (Section) 7(9) and I think he was told politely, that actually he was not entitled to it because he was a complainant. Now, the question is, and as I say it is to be expected, to the extent all and sundry would require to be given an audi – and I think one of the charges actually incorrectly refers to affected persons, not implicated persons. In other words, everyone who was affected must be given an audi which is not the law; but that is just an aside. To the extent that all and sundry would claim this Section 7(9) non-consultation and what have you; how did you deal with those demands from people whom you did not regard as implicated?

Adv Mkhwebane: I think starting with Mr Hoffman, actually, he even complained to the Parliament Justice Portfolio Committee, as well, one of the people who complained about me not giving him the report, not doing my report properly, but yeah, it is all of those. But he was told that we are doing this in terms of Section 7(9). We are giving the implicated parties an opportunity to respond, and once they respond, you will be the first one to receive the report – the final report, because again, it will take both sides of the story. We cannot have this evidence, this conclusion and share it with you because when I arrived there, again, listening to what has been happening, where some of the provisional reports were leaked, the complainant will say, ‘Yes, I was right. The institution was wrong.’ Then you find that the evidence or when the institution responds, that is not the situation. So any person who has lodged a complaint with the Public Protector, you do have the right because that is why we issued the rules. And again, we did not have the rules for all those years, I am the one who made sure that we finalise and issue the rules. Those rules of the Public Protector, they are there for the members of the public for the public servants, you should know them, because the rules are saying it as a complainant, you have the right to receive feedback on the progress of your investigation. And if we do not have any findings against the institution, we can only give you what we call a discretionary notice or where we say your complaint is not substantiated. But when we issue a Section 7(9) Notice, it is only for the implicated parties, people we were investigating, people who violated the provisions of the law, or even their policy. So I would say they are not justified to demand that particular information.

Adv Mpofu: Yes.

Adv Mkhwebane: And I think there were a lot of other concessions when I arrived, though we did not give that as an example, there was a matter of IEC, I think against the previous CEO. We had to be convinced by one of the SCs, that ‘do not oppose it, settle it’ because my predecessor did not even serve the notice to the implicated parties because there, they were implicated. So we had to then agree that ‘okay, let us not oppose the matter, let us settle it.’ So it goes to that extent. It depends on the implication of that particular person, not the affected person.

Adv Mpofu: No. Thank you. Again, I think in the spirit of what the Chair was saying, again, we will assume that those people who are making those demands were doing so in good faith, because not everyone scrutinises the section. They just know that they have a right to be heard, generally, although you would expect more from Senior Counsel Hoffman. But the point is, and this is a point we will make when we deal with the second statement. Chair, by the way, I forgot to confirm in the morning that the second statement was deposited yesterday, just for the record.

Chairperson: We have received and I think it has been dispatched to Members. Thank you for that.

Adv Mpofu: Thank you, Chair. Yes. So yeah, in that second statement, the second installment of the statement, there is a small section where we deal with what we say is the defects in the charges. So, again, I am trying to dispose of that. Tshepo, if you can go to Bundle A page 2? That is the charge sheet. I am doing this in passing; I am not going to dwell on it. We will deal with it when we are dealing with CIEX. So you see there that you have a number of what the independent panel called sub-charges. So you have charge one, and then there are a number of sub-charges effectively of what you are alleged to have done, this and that and the other. But one of the charges uses the – and I just want you to comment in relation to what we are discussing now about implicated parties versus so-called affected parties, or parties involved in a matter. You are accused of misconduct in relation to the CIEX matter because in the conduct of that investigation, you “failed in her duty to give affected persons, including the Speaker and the South African Reserve Bank, both prominent role players in the affairs of the state, notice and an opportunity to comment on any findings or remedial actions she proposed to take with the consequences that they were severely damaging not only to the economy but to the reputation of her own office.” And my simple question at the stage, we will deal with it later when you deal with that, is do you regard yourself as having any legal obligation to give Section 7(9) Notices to so-called affected persons?

Adv Mkhwebane: No, not affected persons, to the implicated persons because that is what the Section 7(9) says.

Adv Mpofu: Alright. Thank you, Chair, for allowing that detour. Hopefully it will save us time tomorrow, or whenever we deal with the second statement, sorry.

Chairperson: So in the context of a suggested constitutional amendment, the Speaker will be implicated?

Adv Mpofu: That is a good question.

Adv Mkhwebane: The Speaker will be affected, not implicated, in the sense that – remember we will deal with that matter, Chairperson. Let us deal with that in the issue of context.

Chairperson: That is fine. I will park that because after seeing that it also refers to the Speaker as affected.

Adv Mpofu: That is an interesting question. Public Protector, can I prevail on you? I am now abandoning you, I am representing the Chair. Can I prevail on you that we deal with it now briefly? I think it is a very good example of this distinction between an…

Adv Mkhwebane: Implicated and affected…

Adv Mpofu: Person, yes. So what the Chairperson is saying that you have a situation for good reason. For good reason you find that this legislation must be changed because it is affecting the poor and what have you. And then you do a Section 7(9). Do you – and let us not talk about courtesies and all that, I am talking about matters of legal obligations – have a legal obligation in that example, which I have just made up, when you issue your Section 7(9), to the real implicated person, someone who messed up with that legislation? Would you then have a simultaneous legal obligation to issue that Section 7(9) to the Speaker as well? The Chairperson is right; ultimately the Speaker is going to be in charge of the remedy.

Adv Mkhwebane: Not dealing with this particular matter; hence I said the issue of context is very much important.

Adv Mpofu: Yeah.

Adv Mkhwebane: Where we are… Let us go to the example of the Nkandla Report, Secure in Comfort. I wonder whether the Speaker was served with the Section 7(9) Notice, but we will have to investigate that. I think we will come to that. Just try a situation, SC and Chairperson, where the remedy was to amend the legislation, because I know my predecessor’s remedy in the Nkandla Judgment was that they needed to amend the Executive Members Ethics Act, and to deal with… When a complaint is lodged against the President, who do you inform if you have not done the investigation within 30 days? Currently, the practice is we just inform the Speaker. I do not remember, but if it is a policy, we do not go to the Speaker; we just go to the DG, to the accounting officer.

Chairperson: Let me come in, so that I do not delay what you are doing. We can park that and come to it later. It might also help you to sleep over it, because I am taking it directly from what you have placed here and putting it into a particular situation, because his argument – and I am not going to get into now, we will have to deal with that late – is this issue of people being affected is not in law.

Adv Mpofu: Yes, there is no legal obligation. Correct. No, the Chair is right. Chair, I think let us park with it and we will deal with it in the morning. There is also a spanner in the works, especially with EMEA matters. Remember if it is an EMEA matter, in any event you have to inform the Speaker because the Executive accounts to Parliament, so there would be a difference with non-EMEA matters. I think let us sleep over it, but it is a good example to illustrate this point of affected versus implicated.

Adv Mkhwebane: Maybe for now we (should) look into the direct provision of Section 7(9). By then, honestly, I was just looking at what the Section 7(9) was saying, and the legal opinion. We will check into it.

Adv Mpofu: Yes, it is very interesting. Also there is this stuff about reporting to the President; so what do you do when it is actually the President who is accused and so on? It is all those questions. Okay, we will deal with them in a more organised manner. Right. Okay. Can we then move on to the issue of jurisdiction?

Adv Mkhwebane: Okay.

Adv Mpofu: Again, I am not going to spend a lot of time on this. You will remember that one of the big issues, well, it might not have been big for you, but for the public out there at least. One of the big issues on the Bosasa matter was this whole issue as to whether you – the Public Protector’s Office – the President took the technical point that your office does not have jurisdiction, because this money, even if it was given, even if it was R100 billion or whatever it was, it was for political party activity, which is ’private activity.’ Therefore, whatever the amount was, it did not fall in the jurisdiction of the Public Protector – I am just paraphrasing the defence. The court upheld that defence. Of course, Chief Justice Mogoeng has very choice words to say about who was actually the beneficiary of the money and who was going to be elevated to the position of President and who was the Deputy President and so on, but he was in the minority. Now, can you just comment, because we do not have a lot of time as to the process by which you and your investigators and your Office determined that you do have jurisdiction? We know that the court found otherwise, and for now we have to accept that. The question, again, is whether you were just hunting for this person, so you even overreached where you do not have jurisdiction. Why did you determine that you have jurisdiction in this matter, instead of saying ‘Oh, well, Mr Maimane and Mr Shivambu, I do not know what is wrong with them because this has nothing to do with the Public Protector. This is about some political parties somewhere in Nasrec’ – why?

Adv Mkhwebane: The complaint was lodged in terms of EMEA, the Executive Members Ethics Act, which obligates the Public Protector to investigate. I cannot just say ‘no, I am not going to investigate.’ Hence, we had to determine whether when the complaint was lodged again, it goes to the assessment section of the institution. And since it is an EMEA-related complaint, they know they need to open a file allocated to an investigator. In this instance, I said, because it involves the President, let it be allocated to a chief investigator; and the investigation was conducted. Now is the President… At face value, everyone will think the President must account, and we need to investigate the President. Yes, indeed, it was complicated because it involved party political issues. And hence, we had to conduct (a) preliminary investigation, do research, ask for legal opinions, and then boom, it transpired ‘No, this happened when the person was the Deputy President.’ As a Deputy President you are a Member of Parliament. As a Deputy President or any Member of Parliament, like any other one who is sitting here currently, you need to declare whatever gift you have. We even had to write to the Speaker, request any declaration. That is what we did. It was not a fact-finding or fishing expedition or trying to, you know, target the President. No, but our investigation then uncovered such things. Hence, it is very critical that we conduct a preliminary investigation, which is part of investigation, because in the definition of the Public Protector preliminary investigation is part of the investigation. And when we account to the Portfolio Committee, Chairperson, you would know, we will indicate which matters we received; where we do not have jurisdiction, we do not just not mention them. They know we will mention them. And I like it, because my predecessor used to do that, which is supposed to be like that. We did work. We received the call. We spent some time. Therefore even in this one we received, analysed, then we discovered no, this matter we have jurisdiction. That is what we thought. Well, I still think like that because he was the Deputy President, and he was supposed to declare. But now… Yeah.

Adv Mpofu: Yes. Again, in that view, correct or incorrect, you are in the company, at least, Mr Mataboge and Chief Justice Mogoeng. Again, I will ask you for the sake of completion, because you have answered the question at a broader level. If the Chief Justice and Mataboge, who in terms of the Public Protector Act, is presumed to be independent because the Public Protector Act says that any official there must be independent and unbiased and all that, and no suggestion was made that he was not. So if two independent persons, Mr Mataboge and the Chief Justice came to the same conclusion as you, and they have not been impeached or anything of the sort, why do you think you can be singled out from those people who come to the very same conclusion based on the same facts, rightly or wrongly? Let us say wrongly, because the one is in a minority judgment, the other one was overruled by the court.

Adv Mkhwebane: You know, again, maybe let me start by saying, you know, losing, well it is there in my statement, in court on a point of law. Yes, from my side, after Rodney Mataboge investigated and finally the Chief Justice going through everything, our reasoning: what happened, what should have happened, is there a discrepancy between the two, and what is the law saying? We considered all the laws, we found that there was then a substantiated complaint, and unfortunately with me, again, I am not treated like any other person. As you would see in a number of cases, the way the comments are about the investigations which we have conducted. Well, the buck stops with me as the Public Protector, because the Constitution says the Public Protector must investigate. I hope and I pray that this process, again, I am still saying my successor will have it smooth, because I am an exemplary, and I hope the judges are also listening, the judges, clerks and everyone. They should understand how that Office operates. We do not just wake up and just take what the media says and just investigate. It is so unfortunate that sometimes you find that some of the judgments from, well, I will mention Judge Baqwa, who was the Public Protector, who would understand how investigations are done. Some of them, well, it was concerning. But unfortunately, I do not think it should be fair that I am just impeached for that. I think that was done, you know, innocently, honestly, and the best we know how. It was not a fishing expedition, or it was not intended to target the President, but till this day, he was the Deputy President (and) he was subjected to that particular law.

Adv Mpofu: Yes. And assuming now for a minute that he knew about the gifts, he received the gifts, he participated in their distribution and so on. Did you find that those gifts had been declared?

Adv Mkhwebane: No, our investigation revealed that there is nothing that was declared by him, because when we conduct the investigation, as I am saying, in the file the letters were written to check was that done. I mean, it is a public thing, as well. Any member of the public, you must check whether the people who represent you here in Parliament have declared whatever they say they should be declaring, because that is part of ethical leadership. That is part of transparency, accountability.

Adv Mpofu: Yes. Okay, talking about transparency and accountability, would you care to comment on the, shall we call it, advisability of someone in that position then reacting – we have already spoken about reacting by taking technical points. We dealt with that last time – by actually getting the evidence that you have referred to sealed away from the public eye?

Adv Mkhwebane: I think for his own benefit, as the constitutional being, I think it will be advisable for the President to operate in the spirit of transparency, accountability, and removing any doubt and any unnecessary, you know, inferences which people are making out there. I think it was the way it actually was even done, it creates a lot of suspicion, and, yeah, I think it does not sit well. Leaders should be leading by example, should be 100% compliant with the Constitution because when they take an oath of office, Section 95 of the Constitution, you abide by the Constitution. So any provision of the Constitution as a President, hence, I am saying you are a Constitutional being. I think that should be done. And I think in my statement I also mentioned besides that issue, I know you have moved, that the worst thing for me to be mugged with (a) cost order in the very same matter, considering the fact that, you know, you can just subject a party participating openly and assisting the court. Now you have to pay personal costs. Well, in this one, it was a cost order against the Public Protector. Those are state resources, which unfortunately, we also belong or benefit from the same fiscus. Now we need to pay those and unfortunately that is one of the charges here, which we will have to deal with. Where are we going as a country? One organ of the state?

Adv Mpofu: Yes, well, happily in this one, while the High Court ordered you to pay costs on the punitive scale, and so on, at least the Constitutional Court reversed that order.

Adv Mkhwebane: The High Court did.

Adv Mpofu: Well, the Constitutional Court ordered, actually ordered no party to pay the costs, I think, because it said everyone was acting in the public interest and the money actually comes from (the) Treasury.

Adv Mkhwebane: I hope it is a lesson for the lower court, especially the High Court to take note of that.

Adv Mpofu: Yeah. Chair, sorry, let me just flag that issue out. Yes, we do not have to go there, just to save time, Chair. I will just read out the order or the part. In terms of costs, the EFF was ordered not to pay anything because of the Biowatch principle that said the rule does not apply to the Public Protector. And then the court said (at) paragraph 147, “The position between the Public Protector on the one hand and the President, Speaker and the NDPP on the other hand is different. Usually, the parties that are successful on appeal would be entitled to their costs, and the Biowatch principle would not apply between organs of state, however, all these parties use public funds to fund this litigation, if one of them is to pay costs effectively it will be the public, which will bare that liability. In the circumstances I consider it fair not to make a cost order.”

Adv Mkhwebane: Which was perfect. I mean, I think it should be like that on all the matters which we have been litigating. But unfortunately, I am charged for issues of wasteful expenditure and everything, even when I am not participating in the procurement. But that was very fair. Actually, it is one of the best and I hope every judge can learn from it.

Adv Mpofu: Yes, thank you. Maybe to correct myself, the Constitutional Court did not reverse the High Court order. At least, as far as the appeal is concerned, gave this order that you were happy with. Okay, just for the sake of completion, on the issue of the sealed documents. Is there any explanation that you can think of why the President would want this information sealed regarding the donors that he does not know, according to him?

Adv Mkhwebane: I think the way it was done as well, because it was a letter written by the President's attorney to the Deputy Judge President, and it was something which was done in chambers. From our side, we were saying, let this matter be dealt with in court so that we can hear all the facts and, you know, deal with this matter openly. And that was done with the intention of showing that we relied on information, it was not just something which we woke up with the team and said the President is implicated. But the report was issued because we had the evidence proving that there are these donors, they are existing – the ones which we showed the other day – and they have paid so much money. And the President knew about them. So it was purely to just assist the court. So we were thinking the court will, you know, for justice and issues of transparency, accountability, because that is what is expected of any other court. So I was then surprised when they were sealed and that is history.

Adv Mpofu: Yes. And again, I do not want to belabour this point, but I wanted to differentiate between me, if Mr Shabalala and Mr Skosana gave me gifts, well I do not have to reveal that to anybody if I want to keep it secret. But if I was the President of the country, subject to EMEA and all of the things that we have gone through, what message would it send?

Adv Mkhwebane: Hence, I said it will raise suspicion. Those who would want to have ethical leadership, and especially as a country where we have a lot of challenges of dealing with crime, challenges of dealing with corruption, and where we are trying to deal with the so-called State Capture, which is a crime, because it is an issue of one, you know, giving a gift so that they would want to expect something in return. So I think it leaves a question mark, or it leaves something hanging over the President's head to say, ‘but why do you not want that to be revealed? You need to be transparent in your dealings.’ So I think it is just a matter of ethical leadership. Lead by example.

Adv Mpofu: Thank you. Well, on that, the Act, and unfortunately Mr Nqola is not here. I think we all forget that, actually, that is what this whole thing is about. EMEA, as Mr Nqola will now testify, stands for Executive Members Ethics Act.

Adv Mkhwebane: Definitely.

Adv Mpofu: Ultimately it is not about tick boxing, it is about ethics. So from an ethical point of view, maybe my question is, what is the difference between (an) ordinary Joe citizen like me, and someone who puts themselves up to become the President of a country or a Minister or an MEC or a Premier or whatever?

Adv Mkhwebane: Because we are dealing with the Executive Members Ethics Act, definitely the standard of… we have high expectations on you. And whatever you do as the President, anyone will take… You should be leading by example (because) anyone will take a leaf from you. Taking it back to families…

Adv Mpofu: I think can we have one Inquiry?

Chairperson: That whisper is a bit loud, so we can hear that you are whispering. I am going to ask that whoever is whispering you are disturbing the witness. Thank you. Proceed, Adv Mkhwebane.

Adv Mkhwebane: Sorry, Chairperson, I will try to focus. You said I must focus, but I could not because now it is competing with my… I would shout. Yes, so I think you need to lead by example. In any family, I mean, we have got children. Simple example, well, being a Christian, the Bible says ‘a child does what the father does.’ You need to walk straight when you are not walking straight. I think ethical leadership is that but it filters down to how as citizens we should be conducting ourselves. So I think it is purely that.

Adv Mpofu: Well, thank you. Chair, I think that needs translation, what she was saying is that if a crab walks in a skew way it cannot expect its children to work straight. And maybe we stop it on that amphibian note.

Chairperson: Completely it says it cannot force its children to walk.

Adv Mpofu: Yes, that is even better.

Chairperson: More than expectation.

Adv Mpofu: It must lead by example, in simple words.

Chairperson: Yes.

Adv Mpofu: Thank you, Chair. Chair, on that crustacean note, can maybe… It is 17:00, Chair. If you just allow me five minutes to wrap up? Yes, thank you. Now, Public Protector we have then… Oh no, I will use the five minutes for this, we did deal with this briefly. There was this issue about whether it is PRECA or POCA, Do you accept that the correct Act was not quoted or cited in the report?

Adv Mkhwebane: Yes, I think that I indicated earlier that the error of law with the judgments is happening. The error of the Public Protector if we have not followed the process, especially the review process, is also happening. In a proper democracy they should have, or in a proper justice system, the report would be returned back to the Public Protector and say the matter is reviewed. This issue, because remember it was relating to the referral issue, and again, that does not fall within my mandate. The main intention was that there is that prima facie information. NPA, because it falls squarely within your mandate, go ahead and do it. But unfortunately, then it was magnified to such an extent that it became the only thing which we deal with. So hence, I am saying it is neither here nor there, but I acknowledge that we should have mentioned the correct legislation.

Adv Mpofu: Correct. Thank you. And I think similarly, do you… We have all gone through the 2000 and 2007 version of the Code, and what have you. But do you accept that whoever was drafting the document, and I think Adv Bawa has referred to this previously, in another context, when she was questioning Mr Mataboge, that it would seem that in certain parts, and I think she correctly said there were like three versions. There are certain parts of the report, it is the correct code, where you say the President willfully misled Parliament, but then in other parts it will say willfully, and advertently. And I think there is even a third version that says willfully or inadvertently. I am saying now, given… and therefore, that is what gives the impression, which was not picked up even by the court, by the way, but gives the impression that even instead of using the wrong Code, it is if you are using both Codes. Do you accept that as a drafting error, so to speak, that something like that should not appear in a report?

Adv Mkhwebane: Yes, I agree, SC. I think it was also as a result of, I mentioned earlier, where Adv Bawa showed that email (where) Mataboge sent the draft, and I was saying refer to the 2007 Code. So it means he referred to the 2000, worked on the 2000, and when I said check the 2007, then both Codes were used there.

Adv Mpofu: As a matter of fact?

Adv Mkhwebane: As a matter of fact. The report is there and it is very clear. It is so unfortunate that the court only focused on the deliberate or that I changed the Code and I still repeat, we have shown the two Codes. I never changed. And I gave the Constitutional Court an opportunity for the recession, because it was a clear mistake, which they did. Unfortunately, that judgment still stands. Unfortunately, anyone who would read that judgment will think this Public Protector, you know, she thinks she is so powerful that she creates her own… I mean she hates Mr Ramaphosa to such an extent that she created her own Code, just to have a finding against him. But I hope that it is clear to every South African and the world at large that I never created any Code. Those Codes were there, both of them. And fortunately, they were used both because if it was somebody who was very fair, judging this matter, would have seen as well to question ‘But, PP somewhere you say willfully, somewhere you say deliberately.’ So yeah.

Adv Mpofu: Okay, I was looking for those passages, but as I said, Adv Bawa referred to them. Again, yes, if indeed this was a case of somebody who is going out there to reinvent or invent the Code. Would you have other parts of the report actually referred to the 2000 Code? What does that indicate?

Adv Mkhwebane: I would have made sure that throughout the report, I am using this deliberate and inadvertently or deliberate misleading of Parliament. You know, even when we were laughing that Mr Mataboge was not techno savvy, but when it comes to trusting his brilliant… and he made sure that his documents are properly drafted. So he would have made sure that he searches everywhere where there is that willful, if it was my invented matter, he was going to make sure that… So unfortunately, that is what transpired. But the main thing, again, what people forget, is that we were checking the conduct of the President, and we were trying to correct that. Whoever is currently President when you go and answer questions, and the people who are advising the President, just answer, even the Deputy President or any Minister, answer what is asked: leave. When there is a follow-up from Opposition, do not answer and request them to be in writing, because that is what your rules are saying. When you want to correct, can Parliament, Speaker, amend your rules so that you give them an opportunity to do that. But as we said, President Mbeki was of the view that if we say we need to lead by example and be firm, we need credible and ethical leaders who would be honest when they treat or respond to Parliament. It was purely that.

Adv Mpofu: Yeah. Then maybe finally on this, is for you to explain why you say if there was no EMEA, you might not be sitting where you are sitting. Why is it the albatross, so to speak, that you have had to carry?

Adv Mkhwebane: The albatross, you can say that again, SC and Chairperson. Through you, Chairperson, because, you know, if you are a President of the country you have all the powers which you should be using institutions like us to help you to lead ethically. It might not be the President because possibly even some people who are surrounding the President would then want to, you know, deal with you. But I feel that this is one of the things which made me to sit here as the Public Protector. Secondly then, is the Nkandla Judgment – I know you are one of the…

Adv Mpofu: I was on the other side.

Adv Mkhwebane: Yeah, but I think the ombudsmanship, the remedial actions, the binding nature because then people feel I am losing face; I cannot be told by the Public Protector, therefore we need to perpetuate this thing that she does not know the law, she is incompetent. Forgetting and then just promoting that and vilifying you and forget about what you should be doing. But EMEA then makes me to say be persecuted by ‘The Untouchables’ which are the Members of the Executive, because, well, some have issued very derogatory statements against me, others calling me a hired gun, others calling me a rogue Public Protector; all in the name of just doing my work. And the biggest mischief is Executive Members Ethics Act.

Adv Mpofu: Yes, in fact, you have, I think, correctly expanded the question to include the Nkandla Judgment, because it is not just EMEA, it is combo, that toxic or dangerous combination of the powers that you have from EMEA now, even more enhanced by the powers that are brought about by the binding nature of the remedial action in the Nkandla Judgment. That goes to Hon Sokoni’s point, and I think we can close it on that, whether then given those two double-barreled weapons in your hand, EMEA and the Nkandla Judgment, what your view is on Hon Sokoni’s proposal that it might well be that what we were celebrating as the Nkandla Judgment’s achievement of the binding powers is a poisoned chalice, in the sense that those double-barreled powers of the Public Protector then cause the situation that we now see in South Africa. So question is would you agree with Hon Sokoni – and I say this was a wakeup call for me, because I could not deal with it – that maybe, obviously not now, the future legislators, should relook into the question of whether or not powers of the Public Protector should be binding or recommendations?

Adv Mkhwebane: I think I agree with Hon Sokoni, and remember her evidence, also, for those who have gone through it, Members of Parliament and I hope they are learning from this process because whatever is happening, indeed, let us take it in the spirit of doing it for the generations to come a better country, a better legal system. So worldwide, I said it, we are one of the few countries where our remedial actions are binding, I mean through the Constitutional Court. And Africa looking up to South Africa, Zambia followed suit, Kenya followed suit, and always when I meet with them, as the President of the African Ombudsman and Mediator Association, I would say to them do not envy us as South Africa, remain as a purely ombudsman, your remedial action or recommendations should be… You need to persuade those institutions, and work with them until such time they understand where you're coming from. The minute then you want your remedial action, because now a remedial action is like a court order. Hence now there is also professional jealousy, or some judges thinking that I am competing with them. I also want to be a judge. I am not saying I am a judge, but it is because of that remedial action. I would say that reconsideration should be… in fact that should be looked into. Alternatively amend… Okay, the issue of amending EMEA, to have the first instance complaint in Parliament; then when the Parliament is failing, escalate to the Public Protector, as far as EMEA is concerned – because we are dealing with EMEA. As far as the Constitutional Court Judgment, it is the final arbiter, unless as a country, I see there is talk of revamping and looking into the Constitution, and whether it still serves its purposes. Possibly those are some of the things which we need to look into. I do not know, SC because it is a Constitutional Court Judgment.

Adv Mpofu: Yes, well I am asking.

Adv Mkhwebane: But again, it might not be a problem because if a court understands its role that the Public Protector has issued a remedial action, it is reviewed, taken in that spirit that I do not want to, or the Public Protector, because I am left with how many months. And when you see that the Public Protector reached a wrong conclusion, why not go to basics as a judge, refer the matter back to the institution. You failed to look into the following… Like what we requested with the FSB – we are going to deal with that. I am now blamed or charged for that. I was saying about FSB, I was misled by my team; bring back the matter, so that we investigate it properly. Maybe that might help and also then allow the Public Protector, but it will be a useless institution where you would then give them a long process to investigate, because that will mean if we are investigating, we serve you an audi another audi, until some time you agree, but if a person says no, because some of them have attitude and say ‘No, I do not agree’ even if you show them but you violated this law, ‘No I will take you on review’ because they know with this current Public Protector whoever comes to court, they will win the case.

Adv Mpofu: Yes, I am asking you because, again, maybe this is something that is not easily appreciated. Remember, we cannot blame the judges; the judges interpret the Constitution. So if the Constitution says that the remedial action is binding, the judges cannot do anything about it. We assume that is what they did in the Nkandla Judgment. So that would mean the solution, yours and Hon Sokoni’s solution, lies elsewhere, and that would be in a Constitutional amendment. That is why I am asking you, because you cannot die twice. You have already been impeached for proposing a Constitutional amendment.

Adv Mkhwebane: We are still going to deal with that. Not amending it, but just proposing it.

Adv Mpofu: Proposing, that is what I am saying. That is what I wanted to say. Ultimately, let us say now it is after your term, you have now handed over, so you really will not be doing this from a position of self-interest or self-preservation or trying to defend yourself from an impeachment. Would you agree with Hon Sokoni that therefore such a Constitutional amendment should be proposed, well, let me say debated by the country, I think let us put it at the lowest level, that the country should look into that issue if we want to preserve the benefits that this institution gives to South Africa?

Adv Mkhwebane: I think it is just debating on the issues and see, because you would find that how it is crafted in the Constitution is fine, it gives you all the powers but again, it still goes back to the courts, SC, because if we review your judgment, why not send it back and say to you do the proper work? Because I think instead of then piling that up, and then saying we are charging you 90% of your charges, 90% of your charges relate to the court judgments and the comments by the judges. But yeah, possibly there must be a debate on that particular issue.

Adv Mpofu: Yes. Thank you, Chair. I am closing that issue but as usual, if I, overnight, have one or two… it will not take more than ten minutes, Chair. It always happens that… I will just check my notes, and we may just want to sweep up one or two issues, but in theory we will be moving to something else tomorrow. Thank you, Chair.

Chairperson: Thank you, Adv Mpofu and thank you, Adv Mkhwebane. I am mindful of the fact that we have stretched this one. Colleagues, I think this is where we will pause for the day, and we will resume tomorrow at 10:00 am. Thank you. The meeting is adjourned.

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