PP Inquiry day 67: Adv Busisiwe Mkhwebane

Meeting report

Chairperson: Thank you. Good morning, colleagues. Welcome on this day, 30 March 2023, day five of the testimony of Adv Mkhwebane. I want to welcome all Members present here today – most of them are on the virtual platform; to welcome the Public Protector and her legal team, led by Adv Mpofu; welcome evidence leaders, Adv Bawa and Mayosi; members of the media; our entire support staff; and the members of the public - present with us on their various platforms. Again, we resume today colleagues, to continue listening to the address of the Public Protector to this Committee, on the issues that are in her statement. We concluded yesterday whilst we were on the unit matters. Adv Mpofu had listed six areas of focus or pillars. We dealt with the EMEA, as well as the establishment issues. I don’t know what his order for the remaining four, which includes operations, qualifications, recruitment, procurement or equipment – depending how he... I think our attention is going to be on those immediately, as I hand over to Adv Mpofu, who will indicate which of those he’s starting with. So thank you very much. Over to you, Adv Mpofu.

Adv Dali Mpofu, SC: Thank you. Thank you, Chairperson. Chair, unless I indicate otherwise, we will follow the sequence of those issues that you have correctly enumerated in the sequence that they appear in the report. Thanks. Chair, there’s kind of a new section, which is like a general section, but it’s also contained in the report. And I'm not sure at this stage, whether I'm going to do it at the end of the six or somewhere in between. But I'll do it as a standalone, I won't mix it up. And you’ll see, Chair, when we get there. There's an area of the report which deals with... You’ll remember the Public Protector expressed how aggrieved she was with the... some of the unfair criticism. At least in her estimation, coming from Mr Pillay, Mr Gordhan and at some stages I think even their attorneys. Where she feels that it went beyond, you know, legitimate criticism. You'll also remember, Chair, that... I can’t remember which witness I was dealing with, but we demonstrated that those criticisms about the Public Protector being part of state capture and what have you, also featured in the judgment, in the so-called “rogue unit” judgment. And the judges actually, in the so-called “rogue unit” case, found that those remarks by Mr Gordhan went overboard. And in the Pillay case, the judges went as far as to impose punitive cost order against Mr Gordhan, for making such remarks. So that whole section, that’s what I'm calling the general section, is fortunately actually contained in the report. So there’s a whole heading where the Public Protector talks about remarks made against her. So we will fit it, probably at the end, after the six issues. But Chair, what I thought I should do, again in the spirit of killing many birds with one stone and because we have already dealt with the so-called “rogue unit” judgment in parts. You'll remember that whole thing about the IGI – did she see or did she not see the IGI report. So I don’t want to... the kind of approach I’m taking with the report of blow-by-blow, I'm not going to do the same with the judgment. So the judgment I’m just going to pick up relevant parts, because otherwise it will just take too long. But having said that, Chair, I'm building up to this. At the same time, I want you and the Members effectively to know where we’re going with all these six areas and what have you, what is the actual goal. And for that, Chair, if you allow me, we’ll go to the judgment at paragraph 290, Tshepo. The so-called “rogue unit” judgment, that’s case 36099. Okay, while she’s looking for it, good morning Public Protector.

Adv Busisiwe Mkhwebane: Good morning, SC. Good morning, Chairperson, Members of the Committee and evidence leaders; and everyone, members of the public.

Adv Mpofu: Right, you've heard that short address when I was engaging with the Chair. Just to confirm, that you are obviously familiar with the judgment of... shall we call it the “Baqwa bench”, it was a full court in the North Gauteng division. The judges were Selby Baqwa, L Windell and AC Basson, with Baqwa J presiding.

Adv Mkhwebane: Correct.

Adv Mpofu: Yes. And we have dealt with this judgment in various guises. And we will, after we’ve dealt with the report, come back to it - subject to what I’ve said to the Chairperson, that we won’t read it paragraph by paragraph. We will cherry-pick certain areas which talk to the six issues. But I thought, in fairness to the Members and anyone else who is following this, because this is quite a long and complicated saga. Even after you split it into two, it would be fair to indicate what are the issues that we want to counter, really. Insofar as we know most of these charges rely on judgments. So ultimately, that’s where we should reference. So Chair, if you’ll allow me, I'll just read paragraph 290 of the judgment, it's got the nine criticisms. Is it up yet?... Yes, thanks. It’s up, Chair. Alright, so after... as you can see paragraph 290. So obviously there’s a lot that comes before it. But this is where the judges, Chairperson, kind of summarise the gist of their findings. And they say, and I quote at paragraph 290, “We have already alluded throughout the judgment why we say that the Public Protector has not only failed in the exercise of her duties but displayed bias towards Minister Gordhan and Mr Pillay. We conclude that taking into account the following, a conclusion of bias is warranted...”. Then they list the following nine points. One, “The investigation and the Report fell outside of the jurisdiction of the Public Protector as it related to events dating back to 2009/2010. No exceptional circumstances have been presented by the Public Protector justifying the investigation after an extraordinary lapse of time. Also, despite the fact that the previous incumbent had already, in 2014, received a complaint about the alleged unlawful establishment of the unit but elected not to investigate the complaint, the Public Protector nonetheless proceeded with the investigation”. So there, Chair, if I may just comment briefly. We will demonstrate that there’s no basis for that finding, (a) because according to the Public Protector, the “rogue unit” was still operational actually. It was not dating back to 2010, it was operational even at the time of the report – number one. Number two, that it’s not true that the 2014 complaint was about the establishment of the unit. It was more about the HR issues, I think Ms Mvuyana said that. Then the second one, Chair, it says “The manner in which the Public Protector interacted with Minister Gordhan during the investigation and in releasing the Report: not only did the Public Protector elect to not engage with Minister Gordhan’s attorneys on record, the section 7(9) notice was publicly posted on YouTube before giving any notice to him and his attorneys. Similarly, the Report was presented to the media without any prior notice to Minister Gordhan nor his legal representatives”. Again, we’ll demonstrate that this is just not true. There's no 7(9) notice which was publicly posted on YouTube, it just did not happen. So we don’t know where the judges got that. And then it says “The reliance on the discredited KPMG report despite it having been disavowed and the Sikhakhane report despite it having been widely discredited. She also failed to engage with the findings made in the Nugent report”. We showed already yesterday that that’s not true. She not only engaged with the findings made in the Nugent report, she actually quoted them more than once in her report. And the KPMG report was not disavowed in total; the Sikhakhane report was not widely discredited by anyone. It also just did not happen. And number four, it says “The blatant dishonesty of the Public Protector with regard to the OIGI report and her insistence on ordering the Minister of State Security to implement, in totality, a report that she has, according to the Report, never seen.”. That by now everyone knows that it’s just non-existent, factually incorrect and we don’t know where it comes from. And then five “The Public Protectors pandering of the rogue-unit narrative and her public reference to the unit as the “rogue unit” and as a “monster” and her stated desire to “defeat the monster” display a profound bias towards Minister Gordhan and Minister Pillay”. Well that one doesn’t even make sense. Firstly, it’s what Chief Justice calls magnification. Some passing comment made in a meeting with IGI, and then everyone calls the rogue unit the rogue unit, or the so-called “rogue unit”. And we’ll demonstrate that that’s exactly what the Public Protector did. And I don’t know how defeating the monster, if it’s a monster - the unit, means it’s biased against Minister Gordhan and Mr Pillay, because their version is that they were not part of any rogue unit. Anyway, then number six is “The Public Protectors complete disregard of the Sunday Times apology and the Kroon apology”. The Kroon apology, we’ve shown that it was an individual. The reliance of judges on Sunday Times, I don’t think that warrants any comment. And then seven, “The Public Protector’s scurrilous allegations that Minister Gordhan deliberately mislead Parliament”. Which I think they wanted to say “misled”. Yeah, but apart from that grammatical error, the issue of the Gupta brothers and so on, we dealt with yesterday. And then eight, “The Public Protector’s unwarranted and slanderous attack on Potterill, J”. We'll deal with that, we’ll come to it now. And “The Public Protector’s relentless pandering of the untruths of Mr Pillay’s qualification”. That one we think is just a misunderstanding of what was being... whether the issue that was being investigated was a matric or a qualification. So Chair, what I'm saying, that those are the nine findings which probably got us here or which were being relied on by the complainant, in using this judgment as part of the material for this Committee’s proceedings. And so that’s effectively what this evidence is going to be directed towards. So let’s keep those at the back of our minds, and I think about three of them have already been dealt with. So as we go along, we’ll also cross-refer back to this. Thank you, Chairperson. So Public Protector, I just want... You know about that part of the judgment. And I think at various points of your evidence we will then cross-refer to those, to show you that this judgment is really not to be...at a factual level it cannot be relied on by this Committee - or rather the conclusions, the factual conclusions thereof. Can you confirm that?

Adv Mkhwebane: Yes, I can confirm that. And we will deal with it referring to what transpired during the investigation.

Adv Mpofu: Alright, and then I've already indicated at the end we will then deal with the section that deals with 181(3), 165(4), the so-called YouTube section 7(9) release and section nine of the Public Protector Act. That's the section I touched on yesterday, where I said the “homework”, where we spoke about the provisions of section 181(1) and 181(3). So can we also park that section for after the six issues?

Adv Mkhwebane: Okay, I'll deal with it.

Adv Mpofu: Good. Then we go back then, Chairperson, to the next of the three issues. Which is as the Chairperson indicated, the equipment issue. Now you will agree Public Protector, that of all these issues that we deal with here, this should be the quickest. And we should not spend a lot of time on it for various reasons, because as I've said yesterday, it’s a straightforward application of the PFMA – whether something is procured properly or not procured properly, number one. Number two, we’re dealing with Members of Parliament here; they may not be lawyers, but one thing they know for sure is holding people accountable against the PFMA, that’s what they do routinely for different institutions. You accept that?

Adv Mkhwebane: That’s correct. As much as they would also hold the Public Protector who’s also accountable to Parliament, on how we utilise the budget or the resources allocated to us. And they rely on the Auditor-General, which is also a Chapter 9 institution, on such issues.

Adv Mpofu: Yes, correct. And in fact, even the very same Public Protector among other things, is held to account against the PFMA, correct?

Adv Mkhwebane: That is correct, especially how we use our resources – the accounting officer. And then the Public Protector as an oversight authority.

Adv Mpofu: Okay. Alright, so then let’s go and try and do it as quickly as possible. In fact, maybe I'll convert the logic. And in this one, Chair, I'll start with the conclusion. Just so that, again, we know where we’re going. Can we go to page 70, Tshepo? Of the report. That would be paragraph 5.3.31...

Chairperson: Come again? Paragraph?

Adv Mpofu: 5.3.31 on page 70... Right, it says there... The first conclusion, PP. Maybe, yeah, I think read it out and then you can comment.

Adv Mkhwebane: The first conclusion which was reached. Remember, Chairperson, we said to remind you and the Members of the Committee when we check the common cause issues, the issues in dispute, the evidence we have before us – what the law is saying about that issue. And then when we apply the law to the facts, then we come to the conclusion. The first conclusion was that “SARS failed to provide me with documents relating to the procurement of equipment for the CBCU, NRG and subsequently the SPU. Such conduct is in violation of section 181(4) of the Constitution”. So in this instance, Chairperson, to take Members of the Committee to yesterday, we spoke about section 181 of the Constitution dealing with all the Chapter 9 institutions and how do we support constitutional democracy. Supporting constitutional democracy, meaning how state institutions should assist the Public Protector in the investigation – the human rights and all others, in their investigations. So failing to provide the documentation by SARS, led to the violation of this particular section. And in a proper way that also leads to the contempt of the Public Protector, because when you go to section 9 of the Public Protector Act, which we will still go through, which is applicable to all those who are refusing to cooperate with the Public Protector, is when the failure to cooperate to provide information. Also it’s criminalised in terms of section 11 of the Public Protector Act. So that’s what they did. And I mean if it was the Auditor-General saying “can I get the documents for why you have the following equipment”; I wonder whether they would have behaved the same.

Adv Mpofu: Right.

Adv Mkhwebane: Then the second one, “It is extremely unlikely that a unit carrying out investigations on behalf of SARS would not procure equipment necessary for the fulfillment of its duties and functions”. Because we’ve seen from the memorandum which was written by the Minister through Mr Pillay... Mr Pillay through Mr Gordhan as the accounting officer, to the Minister - that there is a unit we want to supplement, we also then want you to avail the resources so that whatever we would want to do can be done by NIA, or State Security now, because it falls within their mandate. So three “It is unclear why SARS and/or its former employees would keep the procurement of equipment such a guarded secret. Without proper explanation, I can only infer that the proper procurement processes were not adhered to”.

Adv Mpofu: Yes, maybe let’s just pause on that one. Because again, you know, for lawyers it might be familiar with what you call inferential reasoning. But actually, it’s logic, which everybody applies on a daily basis.

Adv Mkhwebane: Yes.

Adv Mpofu: And so the idea, I think, the example you’ve made of the Auditor-General is also fitting here. In other words, there are certain circumstances, just in normal life, where if you require a certain answer about something and that answer is not given, you can infer what it means. And the usual example is the so-called smoking gun example. If there’s a dead body and you’re standing there with a gun, and someone says “well, what happened?” and you say nothing, and you don’t say “no, I don’t know, I wasn’t here” or whatever, then we can infer you are the person who shot the person dead. Just to make a...

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

Adv Nazreen Bawa, SC: I’m just checking if Adv Mpofu is giving evidence.

Adv Mpofu: No. Yeah, if you’re checking, the answer is no. The question then is what did you or why did you infer from their refusal... or rather, yes, from their refusal to account for any equipment? That the influence is therefore that they did not adhere to procurement processes.

Adv Mkhwebane: The inference was based on the fact that the allegation is saying... the complaint and the allegation and the evidence, independently acquired by the Public Protector, was revealing that there is equipment, which was procured, which is being utilised. Then from SARS and the implicated parties, we don’t get that information and the commitment, you know, because our investigations are like that. We will have information when we conduct this, we ask you to “assist us”. But then sometimes whilst assisting us, we do other means of investigations. And we had the information that they have the equipment kept at the SARS building somewhere, and that equipment is being utilised. And we had some members who were part of that operation who have utilised this. So hence the issue of why keep such information and not want to share the documents. You have the equipment, you are using the equipment, how did you procure the equipment? Because surely a state institution, which is having assets... I mean, when they are going to be audited, surely, they need to account for that. Where did you... If it’s a donation, there is a process as well which you need to follow. So it was purely based on that. Hence my inference that this is like a guarded secret. And there was no proper explanation why this was being hidden so much.

Adv Mpofu: Then the next one, I think is in the same mode. That's 5.3.34.

Adv Mkhwebane: Yes, “The existence of the unit is a non-disputable fact and therefore the buying of equipment is an obvious consequence of that”. Because anyway we had the evidence that the equipment is there. And we are of the view that “the failure and blatant refusal of SARS and its former employees to provide me with records of the procurement and whereabouts of the said equipment is unwarranted and undermines my ability to perform my constitutional functions”. Again violating the Constitution because section 181 is very clear that state organs must assist such institutions, so that we can perform our responsibilities as the Public Protector.

Adv Mpofu: Yes. And, okay good. And that would go to section 181(3), the one about assisting you. And 181(4), which says that state organs must not interfere with your functioning.

Adv Mkhwebane: Yes, correct. Because, you know, if you refuse to cooperate, if you refuse to provide information and evidence, it’s like then interfering with our operations. And then why are you hiding the information? So that we can also exonerate you as an implicated party. Because when we conduct an investigation, we are not conducting an investigation to find anything which is wrong against you, but we conduct investigations so that we can also exonerate you. Because you need to assist us to assist you, basically.

Adv Mpofu: Alright, and just as an aside, Chair, we’ll deal with it under the so-called general section that I defined. But one can flag that a breach of section 181(3) is actually a criminal offense, in terms of the Public Protector Act. Okay, the next one?

Adv Mkhwebane: “The failure by SARS and denial by the former officials of the existence and purchasing of the equipment by SARS is a clear indication that such equipment was utilised for activities falling outside the SARS investigative mandate”. So it goes back to that memorandum which was written by the then Commissioner Gordhan to the Minister Manuel, where he was saying - this unit, we want to beef it up with the procurement or the funding of NIA by then, State Security, so that we can conduct other activities. And at the end of the day, I also confirmed yesterday that I'll still go back to the observations that it was very clear that I informed them - I’m not interfering with your mandate, continue to do investigations. Definitely, we need to deal with crime. We need to deal with those who are conducting illicit trading or, you know, impacting on our economy and all those. But at the end of the day, do it within your mandate. And I think that’s what even the Commissioner Nugent... when he was dealing with the matter, we read the paragraph yesterday. And he was also saying they must do it within limits. So doing something within limits, it means that do it within your mandate. So I think, Chairperson, when we go back, because we started at the end, you will see our ways of investigating. How we tried several times to get the information and the evidence from them specifically, to indicate... provide with evidence, how did you procure this? Here's evidence, here’s the equipment, whatever you say you are spending. But we will see, we will show you where the responses was – no, we only spent one million on this and that. But then we have evidence, which was independently acquired, which shows that around 40 million was spent. And evidence that there is this equipment, which is lying there, equipment which is so sophisticated, compared to what they’re saying they’ve used to procure the equipment.

Adv Mpofu: Thank you, alright. Now we’ll go to the build-up of that. But just for the sake of completion, in response to your... or rather, in amplification of your point, that the equipment was there. That was not disputable, but the issue at least in this context was how it had been procured. I'd like you to comment. If you can take us to Bundle H, Item one, Tshepo? It's a letter, I don’t know what page, but it’s a letter from SARS... Yeah, you remember this letter? This letter, I think we presented it to Mr van Loggerenberg in a different context, but I just want to deal with it now in relation to the topic that we’re dealing with. It's addressed to you, from the current SARS Commissioner, Mr Kieswetter.

Adv Mkhwebane: Correct.

Adv Mpofu: Yeah. And maybe you can read it, it’s not long.

Adv Mkhwebane: Yes, this was sent to me by the current Commissioner. And the heading was “Report: Investigation into allegations of violation of the Executive Ethics Code by Mr Pravin Gordhan...” So it relates to this report we are doing. And “I trust you are well and that you have started 2021 on a positive and constructive note”. “I wish to inform you that SARS will be vacating its premises at River Walk Office Park on 31 May 2021. You may recall that the equipment that formed part of the Public Protector’s investigation into the alleged so-called “rogue unit” was securely stored in the basement of the said premises under supervision of the DPCI and SSA. SARS will be relocating the equipment to a new secure location under supervision of the SAPS and the SSA at a date to be determined”. “You are most welcome to send representatives to oversee the relocation. Should you decide to do so, it would be appreciated if my Office could be alerted to make the necessary arrangements”. “If we don’t hear anything to the contrary from your Office prior to 15 May 2021 in this regard, SARS will proceed with the relocation”. So this was presented to this Committee. And all of a sudden there was a letter which was written to the Chairperson, from the Acting PP, which we’ll have to discuss and possibly go through it. But the main thing is that the... when we deal with the remedial action, because the remedial action... one of the remedial action was that the equipment and everything relating to the mandate of SSA should be taken over by SSA. So you can see here that now they are acknowledging that it was overseen by DPCI and SSA, and then it should be under the responsibility of that. So I took it it’s the implementation of the remedial action. And it relates to the very same issue of the equipment. Because the main thing is again, going back to the investigation, you will see that it was such a very guarded or very... yeah, it was so secretive. Not acknowledging from SARS that, yes, there is this equipment; yes, the equipment was procured. And we independently uncovered that there is this equipment. And that was also forming part of the charges against Pillay, van Loggerenberg and Richter.

Chairperson: Okay. Thank you, PP. Adv Mpofu?

Adv Mpofu: Yes. No, I wanted to say, Chair, that the...

Adv Mkhwebane: We’re trying to get the letter from the Acting PP... From the DPP?

Adv Mpofu: Yes. Bundle L... No, it’s actually a letter from Mr Kieswetter, which was written to the Chairperson here.

Adv Mkhwebane: Okay, and copied the DPP?

Adv Mpofu: Yes, actually it was written to her... or sorry, yeah... this Chairperson was...

Chairperson: Yeah, maybe you can talk to us and explain as to you’re looking for that in aid of what point you want to put across.

Adv Mpofu: Okay, Chair. Okay, thanks.

Chairperson: Whilst she is looking for the letter.

Adv Mpofu: No, I've got it.

Chairperson: Okay.

Adv Mpofu: What I was just saying that... Oh well, firstly, let me just respond to the PP, that the letter was sent to Adv Gcaleka; and then it was sent to the Chair and the evidence leaders and copied to you and to me. Alright, so the...

Adv Mkhwebane: Okay.

Adv Mpofu: Yes. Now, Chair... Now, I'm answering the Chair. Chair, the point I wanted to make is really the same point I wanted to make when I presented this letter to Mr van Loggerenberg. Namely, that whatever the controversies about the lawfulness or unlawfulness and so on, what is indisputable is that there is some equipment which is kept at SARS as a result of this investigation. And from the point of view of the Public Protector, that’s the equipment. We know that... Let’s assume for the purposes of this, Chair, that the unit was proper, was lawful and properly well established, and what have you. So the point we’re making now is not about the lawfulness or unlawfulness of this... but of the equipment, assuming it’s a lawful unit and all that. And the reason why I'm now presenting the second letter, Chair, is to avoid repetition of this. Because when we presented this, then this letter was sent to you and to me and so on, to say we were misrepresenting the position about the lawfulness of the unit and so on. So I just wanted to make it clear, that that’s not what we’re doing. We’re actually assuming for the purposes of the current exercise, that the unit was lawfully established. But we’re simply saying, the Public Protector’s job was to simply say – this equipment, where did it come from? As she would do to a municipality or whatever. It doesn’t mean that the municipality is unlawfully established, she’s just saying - where did you get this equipment?

Chairperson: Is it where did they get that or...

Adv Mpofu: How...

Chairperson: The regularity of the procurement issue. Is that the point you want to...

Adv Mpofu: That’s the point, yeah. In other words, I'm saying I want to insulate that point. It must not be muddled up with whether it’s lawfully established or not. It's purely a PFMA issue. Thank you, Chair. So I was just being fair to Mr Kieswetter, to say.... having displayed his letter, I must also acknowledge that he wrote another letter to query what we were implying.

Chairperson: To complete...

Adv Mpofu: Yes. Thank you, Chair. And that letter was dated 29 July 2022, Chair. It's Bundle L, Item one. And the date speaks for itself. The mere fact that it was 29 July 2022, it means we had already started here. Okay, thank you. I think the point...

Chairperson: And that would have been in response to the questions that arose from the 11th of July 2022?

Adv Mpofu: Yes, absolutely. To Mr van Loggerenberg, yes. Thank you, Chair. And you’ll remember that we used that letter for two reasons; for the point that I have just made, but we also used it to say even Mr Kieswetter refers to the thing as the so-called “rogue unit”, so there’s nothing magical. That doesn’t mean he thinks it’s a “rogue unit”, it’s just how it’s referred to. So PP, I think Ms Mvuyana... and I stand corrected on this, Chair, because I know she said it to me when we were consulting, but whether she said it in the evidence I stand corrected. But Ms Mvuyana confirmed that she was one of the people who had gone to do the inspection or the relocation, whatever is referred to in that letter, of the equipment. Can you confirm that?

Adv Mkhwebane: Yes, I can confirm. I mean, she even testified here. That's what she said, she went there.

Adv Mpofu: Yes. Alright, okay fine.

Adv Mkhwebane: Because I couldn’t go, and I then requested... I don’t know whether she went with Mr Mataboge, but I said let them go and I think...

Adv Mpofu: Supervise?

Adv Mkhwebane: Yes, just oversee that particular process, because I genuinely... And I mean, by then I believed that due to our investigation and finally they are implementing the remedial action... and is the same equipment which we independently got evidence that it was procured.

Adv Mpofu: Right. Alright, fine. Okay, hopefully then that’s going to make us move as quickly as I predicted on this here. Now can you then... I know you said we started at the end, for reasons which will become clear now, about your conclusions. Now let’s start at the beginning. We go to 5.2, which is which is at page 40, Tshepo.

Adv Mkhwebane: 5.3?

Adv Mpofu: 5.3, sorry.

Adv Mkhwebane: Yes, 5.3. I think page 60.

Adv Mpofu: 60, yes. Right. Again, here you said the issues in dispute... And this was...

Adv Mkhwebane: It was a response, dated 5 February 2019. This is “SARS referred me to the extract of the Commission of Enquiry report...”. This is still referring me to the Nugent Commission report. So now we are highlighting that members might unlawfully have acquired and used the equipment, all of which came later to be alleged. So then that’s where I'm saying to the Chairperson, that even he said, “I see no reason why SARS was and is not entitled to establish a unit to gather intelligence on the illicit trades...” Which I also said in my observations. Whatever they are doing they should then do it within their mandate. So he said, “even covertly, within limits”. So I think that’s what I was stressing, based on that.

Adv Mpofu: Yes. And in fact, you’ll remember on the nine points that I read out for the Chairperson and the Committee’s attention... from the judgment of Baqwa J and others, that one of the things you are accused of is ignoring or overlooking the Nugent report.

Adv Mkhwebane: Correct.

Adv Mpofu: Now if you read that passage, which again you rely on for the second time in your report. Is that passage against what you’re doing or is it actually in support of what you’re doing? In other words, why would you neglect something that supports you, if it does?

Adv Mkhwebane: You know, I was considering... You remember there was that question as well... and I think Chairperson also wanted clarity on that yesterday. So this was the response of SARS. And I was still making sure that I incorporate in the report, to show that I've listened to you SARS and indeed this is what you are saying. But this is also agreeing with what I at the end... Hence, possibly the issue of making those observations. Acknowledging that, yes, Nugent – your terms of reference might have been different; you were not conducting an investigation, but it was a Commission, but I do note that you also say... because it complements what I also said. He said, “even covertly, within limits”. So I think he was also acknowledging, unless then he would say otherwise. But I read it to mean that can be done, but it should be within limits. Because I also agree that we cannot leave criminals, you know, who are affecting the economy of our country, which if it benefits the poor and the marginalised, and to allow that people can do as they please. And we have SARS which has the responsibility to deal with illicit trade within their mandate, and they do have investigative powers within their legislation. So that was the intention.

Adv Mpofu: Yes.

Adv Mkhwebane: So it’s not true that I ignored... I mean, if they read this report it seems as if they never read this report.

Adv Mpofu: Yeah, well exactly. The three charges then say... going back to the paragraph 290 of the judgment that I read out earlier. “She...” - she, being you. “She also failed to engage with the findings made in the Nugent report”. Where does that come from?

Adv Mkhwebane: That’s why I'm saying it will be... it’s very concerning, because it then shows that the judges... the report was before them. Remember also acknowledging that judges will adjudicate the matter based on all the documents before them. And indeed, the issue of the rule 5(3)… if they also applied their mind to the evidence before them, they would have seen that. I clearly stated that this is what the Nugent report... Or unless I was supposed to be... I don’t know, because the SARS Commission of Enquiry report is the Nugent report. And exactly, this is what it says. So I was just wrongly accused by the three... judges.

Adv Mpofu: Judges...

Adv Mkhwebane: And hence I’m saying one of them - Judge Baqwa, was the former Public Protector. And I think he should have at least checked what the report was saying. I mean, give himself some time to just go through the report. Because even in my affidavit I mentioned this is the report – yes, the Nugent was not investigating, but yes, SARS informed us about the Nugent and it’s mentioned in the report.

Adv Mpofu: Yes, thank you. Alright. I thought you were even suggesting that maybe they didn’t know that the report that is... in the report it’s called by its proper name as it were, which is “Commission of Enquiry into Tax Administration and Governance Final Report”, final report. Are you suggesting that maybe they didn’t know that’s the same thing as the Nugent report?

Adv Mkhwebane: Possibly, I don’t know. But they should have asked maybe... my legal representation, because they were arguing the matter there. I was not there. And I think that’s why I said to the Chairperson when I took the stand, that now at least it’s my opportunity to just clarify all these things. And you know, I hope they’re also listening, that this is all what we did. And we never had any ulterior motives, but I mentioned that, acknowledging that Nugent report. Maybe we should have mentioned it “Nugent Commission”, but I mean, I think they were doing the... they were appointed by SARS, hence we referred it to the SARS Commission of Enquiry.

Adv Mpofu: Yeah. Anyway, alright. But anyway, your version is that you did engage with the... because, really, all they’re saying is that you did not engage with. They're not even saying you did not agree with it or you should have agreed with it. They're saying you just did not engage with it.

Adv Mkhwebane: That’s not true. And again, I'm showing that I'm respecting the response from SARS. I never just ignored it, but I took it into consideration.

Adv Mpofu: Right.

Adv Mkhwebane: And worse is that focusing on what the Public Protector is actually all about. Compliance, respecting the law. You know, making sure that you have this legislation – are you acting within the bounds of that particular legislation? And actually, the Constitution. Because yes, you can do those, you can covertly listen to people's telephones, follow people, put cameras in their homes, but because you’re investigating, and you do it within the bounds of the law – where it’s very clear that you cannot just do that without getting the authority from the judge to do that.

Adv Mpofu: Yes. Anyway, for the purposes of this Committee, all of that, I think is... Let me put it this way, the merits or demerits are not that important. Obviously the important is the underlying factual basis. But for the purposes of this Committee, what’s important is whether the finding of bias against you should be relied on, if you get what I mean... So that’s what I want you to comment on, so that we move on from this. If the finding of bias according to this judgment, is based on among other things, the fact that you did not engage with the Nugent Commission report - and you can demonstrate that you actually did. Then would this Committee then be entitled to just rubber stamp that finding, if its factual basis is false?

Adv Mkhwebane: Any committee should not rely on this, because now I'm showing the Committee directly from my report, and even showing the public. And I hope even... hence, I’m saying the judges, and even Minister Gordhan is listening. And they’re seeing what I referred to. And there was no bias on the part of the investigators, because I will just boldly say that the investigator was having all the evidence, the investigator analysed all the evidence. And when it was brought to me to append my signature, I was also happy that they have definitely incorporated their evidence and response of SARS. And so, I would then say to the Committee, to the public - yes, here’s the judgment. It was confirmed by the Constitutional Court - even those justices, I hope they are also listening. But this is the report which clearly states that we have acknowledged, we have mentioned... You were saying it says they were saying...

Adv Mpofu: It’s...

Adv Mkhwebane: I’m just trying to get that word...

Adv Mpofu: The first part... Sorry, Chair... The first time you mentioned it... Tshepo, if you can go page 41? Paragraph 5.2.5.

Adv Mkhwebane: Under the recruitment?

Adv Mpofu: No, under “establishment”, at first.

Adv Mkhwebane: Yes.

Adv Mpofu: Can you go to page 41, Tshepo? That’s where you actually refer to the thing in full, “SARS referred me to the Commission of Enquiry into Tax Administration and Governance Final Report (The Report)...”. That's where you say maybe you should have said the “Nugent report”.

Adv Mkhwebane: Maybe, yeah.

Adv Mpofu: “specifically under the heading ‘The so-called Rogue Unit’”. Another interesting heading by Judge Nugent, “The so-called rogue unit", in which it is stated.... And then you put three paragraphs from that report.

Adv Mkhwebane: Yes.

Adv Mpofu: And then again, when it deals with the equipment, which is I think page...

Adv Mkhwebane: Page 60.

Adv Mpofu: 60... Chairperson, at 5.3.1.

Adv Mkhwebane: Yes, that’s what I would say to the Chairperson, Committee Members...

Adv Mpofu: And this time you called it the SARS Commission of Enquiry. Again, as I say, I don’t know, maybe again you should have called it the “Nugent report”.

Adv Mkhwebane: That’s why I'm saying maybe I should have done that, because it was there, I think in all the documents which we have availed to the court. And if they say I've ignored the report, they should have read. Because I think, again, as a... Well, a lesson to learn from all of us or from... In fact, to all the judges out there, all those who will then be adjudicating on our reports - I hope you are getting something from this Enquiry as well, because when we conduct investigations that’s how we do our investigations. And that’s why I’m even saying when the matter is dealt with or a report is issued, they would understand that there are investigators who go out there and conduct the investigations. But for them, again, pleading with them... because I remember when we were busy litigating, I would say to the legal counsels who are representing the institution – please make sure that you’re starting point is the report. You deal with the report so that you kind of bring the judges into acknowledging what we did and what happened in that particular matter. So even now, I think when you adjudicate any matter, just go read the report. Understand why we came to a particular conclusion, because we check the facts, we check what the institution said and then we come to the conclusion. And not only my conclusion out of the blue, but it’s the conclusion which is based on the facts and the evidence before us, and what the law is saying about that. So here, on the issue of the equipment, the very same judges is saying – yes, they might have procured it, they should have. And even if they do that, but the fact of the matter is within limits.

Adv Mpofu: Yeah.

Adv Mkhwebane: Because we can’t have a country which is just governed... or some institutions are just going all out to destroy people’s lives and to, you know, do things without any consequence. Like you have to... The law applies to all of us, because if you procure anything, if one municipality, one school or anyone... because section 217 of the Constitution is very clear, that we should all comply when we procure, competitive bidding, but then it refers to PFMA. And if you have any issue, which you will need to procure you need to indicate that – okay, possibly I'm deviating. But it must be recorded, you must be transparent about it - how you procured it, why didn’t you advertise that for competitive bidding. So it’s just purely that. That's all what we do as Public Protector.

Adv Mpofu: Thanks. And maybe for the sake of emphasis... and Chair, please forgive me again for deviating. Sorry... yeah, “deviating”, I think it’s the right word, off-ramping a bit, but it’s also to make sure that we don’t come back to all these nine things again unnecessarily. If you go back to paragraph 290, that’s the judgment of Baqwa J and the others, just so that we emphasise this point once and for all. We've established that they were just factually wrong, as to whether you engaged or not with the Nugent report. Then they say at Roman 4... I think Tshepo is beginning to know what I'm going to say before I say it. Alright, then it says, “The blatant dishonesty of the Public Protector...”. This is now another basis for... remember the two things that this Committee is supposed to find against you in respect to this, is that you were biased and dishonest. And the dishonesty is expressed as this, “The blatant dishonesty of the Public Protector with regard to the OIGI report and her insistence on ordering the Minister of State Security to implement, in totality, a report that she has, according to the Report, never seen”. Now, where does that come from? Sorry, I can't ask the question better than that. Do you ever say in the report that you never saw the IGI report?

Chairperson: I think yesterday she also covered those grounds, unless you want her to...

Adv Mpofu: Yes, as I said it’s for the sake... I’m now doing it almost against those nine things, so that we tick them away, yeah.

Adv Mkhwebane: Yes. Well, I never said that. Again, reading the report and I think the question I will still ask them, if given an opportunity that they can also come and give testimony, and ask them – okay, you read the report, which paragraph did I say that? Because I think I indicated to the Chairperson yesterday how I struggled writing to each and every person. They violated the very same Constitution, because the Minister Duba, Minister Dlodlo... I even wrote the letter to the President, there was no response. But then in my report I was showing that all these people I’ve tried to, you know, ask them to assist. All of them violated section 181(3) of the Constitution, they never assisted. And the three judges, if they can indicate which part of my report, because there’s no paragraph. I mean, the Committee Chairperson and Members of the Committee, if you can read the report, there’s no way where I mentioned that I said I've never seen the report. And I mean, the very same recording which was played here... I indicated I have the report, there is this report, and we need to get it from the source. Because, again, showing that I cannot just take information, or I cannot take just some report which is delivered by whistle-blowers - yes, we rely on them. And I said even newspapers, if there is something published, it’s a lead for us. There’s this report, I must go to the source... of the drafter of that particular report. And the drafter then indicated, never denied that there’s no report. He acknowledged...Dr Dintwe, that no it’s there. But then our law says we are not the custodian. Minister of State Security is the custodian. And it shows, there are letters which are written, the content of those letters. So I don’t know what’s the use then of requesting a Rule 53, when you are not even reading those documents and come to this conclusion.

Adv Mpofu: Okay. Thank you, Chair. I’m coming back then to where we were, having disposed of those issues. You then... Can you just briefly take us through the... there was somebody called Clifford Collings. And you referred to the 40 million estimate of the equipment. How was that evidence gathered? I think Ms Mvuyana did assist us on that, but just from your understanding of the amounts or the extent of... yeah, the amount or extent of equipment that we’re talking about here.

Adv Mkhwebane: That’s the point where the heading is saying whilst conducting the investigation, whilst approaching SARS, whilst SARS... responding and not assisting us. There is this independently sourced information which was the... on the 6th of October 2011, paragraph 5.3.3, “the Executive: Anti-Corruption and Security, Mr Clifford Collings, submitted a ‘Request for exemption from procurement processes in terms of Treasury Regulation 16A6.4’”. So that’s the exemption. “... with subject ‘confidential exemption request to acquire specialised security solutions and services from the sole supplier – Scapecom Solutions’”. This information was nowhere... It was not provided by SARS, but its documents and it’s directly from the evidence we’ve acquired through other means, to see that okay there was a request for exemption, so that they can procure this equipment. Because at first, they were not acknowledging the fact that there’s this particular equipment which was procured. And there was also a submission... if I can move to the next one, which SARS provided prior, because when we checked other documents, which we... well, independently acquired, there was an approval to expand the original TSS – in fact, Technical Security Support Services Agreement. And the submission served before EXCO, because those were the documents we had, showing how SARS acquired the other technical security equipment, and the discussion of that submission at the EXCO. And the submission indicated that SARS had appointed these companies: AST Africa, I-View, Protea Coin Group, Scandsa Signal Engineering, to provide the equipment. And then the BAC Bid Adjudication Committee minutes also was reflecting the approval to “award the provisioning of technical security services contract for the South African Revenue Service on a national basis”. Again, acknowledging that it’s within SARS mandate to do that. I think, Chairperson, I will still continue to say that was within their mandate to procure any equipment for their security; for securing their buildings, for securing their systems and everything. So again 5.3.8, that’s where we got how much was spent to procure the equipment, from this Mr Clifford Collings who, “submitted a request for expansion and variation of order against the original contract”. So there was already an existing contract. Our main aim, again, is give us the documentation, show us what you procured, but then I think the issue of not revealing this procurement was based on the acknowledgment as well, that this is not the equipment we can buy within the mandate of SARS.

Adv Mpofu: Yeah. Alright, can you go to 5.3.18, just for the sake of emphasis.

Adv Mkhwebane: Yes, 18, “I have also noted that SARS failed to provide with all documents relating to the purchasing of equipment for the NRG, SPU and the CBCU”. So remember Chairperson, yesterday I indicated that there’s various names which were used for the unit, acknowledging. And I think in the report we’ve also mentioned that it changed from this name to this name, to this name. And the main issue also, is that maybe going to 5.3.15, where the exemption which was approved by Mr Pillay in 2009, it was only relating to a limited amount of one million for a period of one year. I think this will link up to the evidence which was provided here, because I think I don’t know whether it was Mr Pillay or Mr van Loggerenberg, who just said – no, it was just cameras which you can buy from... it’s not a complicated. I think there was that evidence which was given here before this Committee – no, simple cameras and which were not costing. Because that’s what they say, but then now you’ve got this one million, you’ve got this 40 million. You have evidence that but this equipment is sophisticated equipment which can be used. I think we still coming to that, so that you can see what kind of equipment we have.

Chairperson: Thank you. Adv Mpofu?

Adv Mpofu: Thank you. Thank you, Chair. Yes, I’ve taken you there deliberately, because I want us to move to the responses of the implicated persons. And really I'm... as it were, it’s a shortcut that I want to almost propose. Do we really need to even go... If indeed you established, or if it cannot be disputed – what you say, that this institution and this person’s simply refused to give you the paper trail for the equipment purchase and procurement. Do we have to go any further than that? Isn't that on its own sufficient to establish (a) your complaint about a breach of section 181(3) of the Constitution, which is a failure to assist the Public Protector, but (b) the inferential reasoning that you’ve just articulated now? What I'm saying, that if a Public Protector, Auditor-General, policeman or whatever authority says I want you to show me your driver's licence and you say “no, I'm not going to do it”.

Adv Mkhwebane: That’s a challenge which I was facing, because there was that resistance to cooperate. And the main intention was to reveal and to dispel any, you know, wrong information which is perpetuated out there. Remember there was a stage where I also mentioned that, you know, if it means there is this perpetuation that there is this unit which apparently is operating in a rogue manner. If SARS has information they’ve procured things properly, they can account for how the equipment was procured, then I don’t think there would be any challenges, but then unfortunately they never cooperated. Hence, I had to include that information here in the report. So there was also 5.3.19, where we’re still saying, “from independent evidence obtained is that the unit had an internal process of procuring goods for investigation purposes”. So this unit which was operating was... it means it was not accountable to any person. It was just doing as they please. And we were trying to make sure that that is not happening. And this report’s intention was to say – SARS, continue operating within your mandate, within the proper procurement processes. So again, constitutional democracy, supporting the very same democracy and contributing to each institution to operate within limits.

Adv Mpofu: Right, thanks. And therefore, then we can, as I say, short-circuit this by just going straight to the responses that you received. And the first one is at page 65, which you got from Mr Gordhan.

Adv Mkhwebane: Mr Gordhan, yes, responded. We requested an affidavit, or we subpoenaed an affidavit from him. “In an affidavit dated 17 May 2019, Mr Gordhan stated that he had never, in any way, been involved in the procurement of ‘intelligence equipment’ by the SARS for any of its investigative units”. So this is contrary again to the memorandum which he wrote, which he was acknowledging that they need equipment, or they need this intrusive and penetrative equipment; and understanding that that is the mandate of State Security Agency, hence he wanted them to be beefed up.

Chairperson: Maybe on that point...

Adv Mpofu: Yes, Chair.

Chairperson: Just a clarity... So what will be your understanding of the involvement? What will be your understanding of the involvement? So that you can... I want to be on the same page as you, because I.... You’re correct, he would have written that memo to the former Minister of Finance. So my understanding would be maybe he’s doing that on behalf of other people. But help me with that, the issue of involvement, because in the affidavit he declares that he’s never been involved.

Adv Mpofu: Yes.

Chairperson: And you are linking that on the basis that he’s actually the initiator of writing this memorandum. So it is the involvement that we need to have a common understanding on.

Adv Mpofu: Chair, if you allow me to just piggyback on your question. And in answering that question, bearing in mind that again we’re talking about the PFMA compliance, and he was at that stage not a Minister but the accounting officer. Thank you, Chair.

Adv Mkhwebane: Yes, Chairperson. I think the... Again, as the accounting officer you might not be writing... because acknowledging that you have the Bid Evaluation Committee, Bid Adjudication Committee, assisted by the CFO. You have the end user who’s preparing all those, but who’s the final accounting person? It's him, because he should have... Well, why sign something like that and you send it to your executive authority, and you say we want to have equipment which can do this. Which is good, because possibly they could see that these criminals are so sophisticated. But now why write an affidavit and say you were never... he had never in any way. So I think even qualifying it, because that’s what he said.

Chairperson: Thank you. No, that helps. Let's proceed.

Adv Mpofu: Thank you very much, Chair. And then we go to the....

Adv Mkhwebane: Affidavit of Mr Pillay?

Adv Mpofu: Yes, the response of Mr Pillay. Again, in a nutshell, I think the way we dealt with the Gordhan one, where you demonstrate that... what you thought of that response, with the help of the Chairperson’s question. So you can also just with Mr Pillay succinctly say, look it was inadequate or adequate for this broad reasons here. Remember now again, we just spoke now with the Chair about the accounting officer. Now we’re going almost further down to the operational people, such as Mr Pillay. I mean, I know he was also a leader, but he was below Mr Gordhan.

Adv Mkhwebane: Yes. I would say Mr Pillay, remember, is the preparer of the memo? And in public administration, we can say he’s the end user. So he’s the one who responded and stated that “the allegation was vague and therefore he could not answer. He submitted to me a list of equipment which he stated was a PowerPoint presentation listing certain equipment submitted to the then Minister of State Security, Mr David Mahlobo” - that’s what he said. He further stated that “the SPU, NRG and the High-risk Investigation Unit did not procure or utilise the listed equipment throughout its existence”. Now he’s acknowledging there is this list, but they couldn’t provide how did they procure this equipment. But again, public servants who don’t understand that when we write this, or even Members of the Executive. When you are held to account, I mean, hence the judges was saying I never gave them an opportunity. Here in the report they’ve responded. Secondly, the Public Protector Act - we’re dealing with you as a public servant, we are not dealing with your attorney. We are not dealing with your legal representation. Public Protector Act is very clear, section 7, subsection I think eight. It's very clear that, yes, it might assist you, but not represent you. So now you say this thing is vague, instead of assisting and making sure that you put this matter to rest. It's very clear, because you should have been very upfront and say this is how we procured it. Again, being the end user, and at the DDG level or Deputy Commissioner, at that level. He should have made sure that, you know what, just to put this matter to rest – Public Protector, here’s how we procured; here are the minutes of the BEC, which is Bid Evaluation Committee, BAC Bid Adjudication Committee; here are the approvals; after that memo, this is what we did and this is how we acquired the equipment; but again, we realised that we shouldn't have... I mean, even this one. Chairperson, it’s very clear that he... they were acknowledging that this is the equipment they cannot use. This is the equipment that belongs to State Security Agency. So this is also an acknowledgment that we have encroached on the mandate of SSA. And this is what we were purely checking. Now we were not saying, you know, you were wrong, but we were showing them that, - here, this is what your law is saying, PFMA is saying, you didn’t follow it and it’s wrong. So the people who must be held to account there are those who just would do as they please.

Chairperson: Thank you. On that checking point, I want us to take tea.

Adv Mpofu: Okay... I wanted to, I just have one more question.

Chairperson: Okay, go ahead. Go ahead.

Adv Mpofu: PP, are you still okay? Can we just do one section?

Adv Mkhwebane: Can we go for tea, please?

Adv Mpofu: Okay.

Chairperson: Thank you, PP. We will take a ten-minute break for tea.

Adv Mpofu: Thank you, Chair.

Chairperson: You’ve been overruled, by both the Chair and...

Adv Mpofu: By both the Chair and the witness.

[Tea break]

Chairperson: Thank you, ready? Okay, back and thank you. Back from tea, we resume again. Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Moving on to the next heading which, Chairperson, you’ll find at 5.4, page 71.

Chairperson: Got that.

Adv Mpofu: Yes. That's the so-called recruitment issue. Okay, now... I want us also to tackle this much, the same way as the previous matter. I think by now we’re all like Public Protector’s here. So we know the drill; what should have happened against the prescripts and so on.

Chairperson: Which is very good.

Adv Mpofu: Yes. Thank you, Chair. So now, again, at its simplest here, here you’re talking about the personnel, or the people now. We've spoken about the equipment, now we’re talking about the ones with flesh and blood. But it’s much more the same drill, really, which is – were those people procured or secured according to the prescripts. So please take us then to the approach that you took in relation to this. Bearing in mind, Chair, that the peculiarity of this particular section is that it’s common cause, I think, for everyone that it was also, in a way, the subject matter of the 2014 complaint, but we’ll come to that. Can you just take us through then, what approach was taken by you and the team, PP?

Adv Mkhwebane: Thank you, Chairperson. Chairperson, I just wanted to put the two paragraphs before we move to this number four. Page 66, 5.3.25 and 5.3.26.

Adv Mpofu: Sorry... page 66. Oh, I see. Just going back to the procurement issue?

Adv Mkhwebane: Yes, because I also need to show that the list, which was shown by Mr Pillay. But as well the independently acquired information was showing that the equipment was kept at SARS premises and was the latest technical surveillance counter measures equipment that could be utilised for video and audio recording, as well as tracking devices. So in the notice of disciplinary hearing of Mr Pillay, the charges state the following. So we also then received that information, because he was charged for the same matter. So he was charged with employing the personnel with extensive military intelligence background into the unit. Apparently, he exposed SARS financially and caused, endorsing or approved exorbitant expenditure in their recruitment and acquisition of equipment used by the unit without following SARS procurement policies and their legislation. “You solicited and acquired the following intelligence equipment for use by the unit...” - We had to blank that, because I think we will just read that section which allows the Public Protector to use her discretion not to publish certain information. The fifth charge as well, was to establish and fund the special investigative unit. So this is what we dealt with, or which was before us as well from the evidence which we acquired independently; but others, it was through the documents which we received from SARS. And then I think here we deal then with the law, Chairperson, which we need always to apply. The section 38, which is the responsibility of the accounting officer – how they should utilise state resources...

Adv Mpofu: Sorry... just a minute. Yes, I'm actually... I’m glad you took us back there. You'll remember that one point that I wanted to squeeze in, but I was beaten by the vote. Yes, that was the point. It was, Chair. And I just want to preface it, so that the PP can carry on. That last point I was going to take you to 5.3.27. And then in the light of the question from the Chair and my question about Mr Pillay, as to whether, shall we say, and accounting officer can wash their hands and say – it's got nothing to do with me. Yeah, that’s how I wanted us to close that issue before moving to the next issue. So with that in mind, you can take us to 5.2.27.

Adv Mkhwebane: Yes, 5.3.27. Chairperson and whoever is listening as an accounting officer, this is your bible, because it says, “The accounting officer for a department, trading entity or constitutional institution...” - that includes the CEO of the Public Protector. (a) “must ensure that the department, trading entity or constitutional institution has and maintains: (i) effective, efficient and transparent systems of financial and risk management and internal control”. Two, it was relating to something else. And then we say three, “an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective". This is taken directly from section 217 of the Constitution. And then as well, I'll read the bolded part, Chairperson. I don’t know whether you’ve picked any other thing, but the bolded part, Roman figure two... Or must I read the whole section?

Adv Mpofu: I think the bolded. Just the bolded part.

Chairperson: Well, from the screen everything is bolded. So...

Adv Mkhwebane: Oh, okay... Okay, “prevent unauthorised, irregular and fruitless and wasteful expenditure...”. It’s still there, Tshepo, Roman figure (ii), towards the end. So it says, “to prevent unauthorised, irregular and fruitless and wasteful expenditure and losses resulting from criminal conduct”. So this relates then to what the accounting officer should do, not the executive authority. So we’re not asking Minister Manuel here. So that’s I think that...

Adv Mpofu: Chairperson’s question...

Adv Mkhwebane: Yes, leading to what we’re dealing with here. So then the next one deals with number (g) “on discovery of any unauthorised, irregular or fruitless and wasteful expenditure, must immediately report, in writing”. And (h) “must take effective and appropriate disciplinary steps against any official in the service of the department, trading entity or constitutional institution”. Then we can jump to then, almost the end there, “makes or permits an unauthorised expenditure, irregular expenditure or fruitless and wasteful expenditure”. So as an accounting officer, this is what is expected from a person. So by then he was the accounting officer and Mr Pillay as well, under the responsibilities of the end user. And the senior management position is obligated as well, to ensure that the institution complies to this. Whatever they prepare, sent to the accounting officer, this should be the case.

Adv Mpofu: Thank you. No, I think then, yeah, that makes it clear. It goes both to the regulatory basis of your findings but also to addressing the issue raised by the Chairperson, whether... I think, would you agree that in a nutshell, section 38 of the PFMA, really, the words “accounting officer” must be taken literally? That you are the person, the buck stops with you, you have to account. So and that’s why, I think, one of the things you’ve read is about taking people into disciplinary action. So either you account or hold those who report to you accountable, but you can’t say – it's got nothing to do with me...

Adv Mkhwebane: Yeah, “it’s got nothing to do with me, I'm not involved in any way”. So you should be accountable for that. And the next paragraph, Chairperson, deals with then also acknowledging that within the National Treasury prescripts you can request for deviations, but as well we need to have all the documents, because you should then show proof. I think I've mentioned the simple example of somebody who’s appointed without qualifications, and I said if your policy provides that the executive authority may give condonation, then you’ve complied, because your policy says so. But here, there were no documents shared with us. The next paragraph also deals with... still, you can procure, because National Treasury Practice Note 8 – as an accounting officer, you can also procure on an urgency or emergency basis, but then you should have very practical and convincing reasons why such goods are procured on an emergency basis and why they are procured from a single source or service provider. So that is what we do as Public Protector. And you know, Chairperson, I need to indicate that, again repeating, this is a very good opportunity to also bring to the attention of accounting officers – public servants, because you need to learn from this. And I think as a side issue... sorry, Chairperson. That's why when we changed the face of the website of the Public Protector, I said to them let’s make it a point that we even group the various reports. You know, to show EMEA reports, maladministration, undue delay, tender irregularities... And my vision was for students at the university – you visit our website; you’re doing constitutional and administrative law; you can visit and see how we’ve applied the very same legislations practically. It's like kind of case law. So I think that’s what was the intention. And when we come to a remedy, we are showing you that you violated this law and this law. Going forward as an accounting officer or any official, don’t repeat the same thing.

Adv Mpofu: Good. Okay, thank you very much. Then we can now then go to...

Adv Mkhwebane: Go to the next one, yes.

Adv Mpofu: The next one, yes. And on this one, which is 5.4, the recruitment issue. I've made those introductory remarks, but I'd like you to just, again, for the sake of emphasis. You’ve made this point yesterday; you’ve made it even this morning, but if you can read 5.4.1 just to indicate really what you were doing and what you were not doing, as it were.

Adv Mkhwebane: Yes, the common cause issues. Again, it’s things they were not disputing. The fact of the matter is SARS recruited employees to work in the intelligence unit or that unit. “The issue for my determination is whether in doing so, SARS followed proper recruitment processes”.

Adv Mpofu: Yes. So again, I think it makes it clear here. You not interested as to all those things, the question is whether they recruited according to the policies, not so much who they recruited and so on.

Adv Mkhwebane: Correct.

Adv Mpofu: Okay. Right. Then the issues then... I think another important issue, by the way, is the 5.4.2, which basically shows that this unit went back in time.

Adv Mkhwebane: Yes. And I think I mentioned that yesterday, and even today, Chairperson, that there’s somewhere in the report where we capture how this unit was changing from one name to another function. But the issue is the same mandate, the same equipment and the same modus operandi, but we will just show that. So yes, it’s tracing back to 1998. “As continuously argued by the respondents in this matter, SARS established various units to improve investigative capacity...” - which is good, fine. And that’s why we captured it here. The timeline of such rationale is summarised below. There was a memorandum which was directly from SARS, it’s part of the documents. By then a Mr Eric Neethling to the Office of the Acting Commissioner. So indicating then how this unit has been changing from one unit to another. “The first unit created to address serious non-compliance was the criminal investigations unit (1999)”.

Adv Mpofu: Yes, can you jump that part? I think we just established that there was that memorandum. And I just want us to jump to the second memorandum, PP, which is at 5.4.4.1. That would be the one from Sipho Mbongwa and Gene Ravele... or rather to Gene Ravele and Ivan Pillay, which is the one that seems to start to show that they wanted, if you like, to deviate from the policies. And if you can read from the aim, which is on the following page, page 73.

Adv Mkhwebane: Page 73... yes. Chairperson, yeah. But I think just remember me to mention something up there, when I'm done with this.

Adv Mpofu: To go back to that first memo?

Adv Mkhwebane: Yes.

Adv Mpofu: Okay, fine. Okay... We’ll remind you, yeah.

Adv Mkhwebane: Yes. “The aim of this submission is to obtain approval for the appointment of personnel referred to below. These are external candidates”. So then the recruitment process followed was informed by “a broad range of factors, in particular by the need to adhere to security given the risk and dangers associated with the work and the need for operational effectiveness”. “Whilst posts were not advertised in the conventional manner, individuals identified as having the necessary competencies for the unit to operate were asked to submit their CV’s to a panel for interviewing. Such individuals are recruited from both SARS (internally) and in the relevant security sectors and have the following range of skills: intelligence, legal, accountants and investigative skills”.

Adv Mpofu: Right. If you can comment. Just go to the following page, because I want to ask a question that covers all those. It says 52 people were interviewed and so on, but then the next... For me the important one is the following paragraph, which is almost like an admission that there was deviation. My next question will be whether that deviation was justified to you or not, yeah.

Adv Mkhwebane: “Despite the fact that the recruitment did not follow the conventional procedures for recruitment in SARS...” - So they’re acknowledging, “it is submitted that this is because of the unique nature of the Organised Revenue Crimes Unit, and the environment that its members will be expected to operate under”. Therefore, this also raised red flags that they knew that they wouldn’t follow that. Fine, it’s good. Yes, we need people to investigate so that we can deal with the tax crimes and illicit trade, but then have it in your policy, that’s all. Because you’re allowed as a public institution... the Public Protector, anyone, to deviate from your policy, but indicating the policy that... where the special needs or we need people who have the specialised skills to operate covertly within the mandate of SARS. We would then do a head-hunting process, because you are allowed to do that. And you can then justify that you cannot just advertise, because then it will be a public issue, and you don’t want to compromise the security of those people. Fine.

Adv Mpofu: Alright. Now before we come back to your previous point, I just want to finish off this point by taking you to 5.4.4.3, where again going back to the discussion we had earlier about the PFMA and so on. This time it looks like there is indication of the involvement of Mr Gordhan as the accounting officer. So please take us to 5.4.4.3 on page 75.

Adv Mkhwebane: So, “The memorandum was approved by Mr Gordhan on 11 November 2002, in which he noted that such approval was ‘subject to a discussion with Ivan et al on the role-functioning-reporting'…" So here it shows that he was involved.

Adv Mpofu: Good, alright. Now that we know that there was recruitment, there was... self-confessed deviation from the conventional procedures of recruitment in SARS, and that Mr Gordhan actually gave his stamp of approval to this. Then here comes the million-dollar question. Was all this sufficiently justified to the PP, to the Public Protector, by documents, by policies and so on? As you’ve told us repeatedly, that ultimately that’s the test.

Adv Mkhwebane: So the issue here is it shows that there was approval, but then the involvement of the accounting officer... And the issue that the policy or processes were not adhered to. So I don’t know whether I got your question right, but I think for me it’s also addressed by the next paragraph 5.4.4.4.

Chairperson: Okay, let’s clarify that properly. Do you want to repeat that question, Adv Mpofu? So that we don’t do any guess work.

Adv Mpofu: Yes... Thank you, Chair. No, I was saying, PP... Maybe I put the question too broadly or clumsily. That is we take it as a fact now from what you’ve established, that (a) there was some recruitment, (b) by the admission of the writers of that memorandum... and I'm quoting directly from what they say, “that the recruitment did not follow the conventional procedures for recruitment in SARS” - so as a matter of fact. Three, the accounting officer in the name of Mr Gordhan signed off on this one. So he couldn’t this time say – it has nothing to do with me. So we tick all those boxes. Now the question is... To justify all that, was the Public Protector supplied with policies that corresponded, that justified that? In which case you tick the boxes and then say, well, as you said, you might have deviated, but here’s a policy that actually allows the deviations, and therefore there’s nothing wrong. That's the crux of my question.

Adv Mkhwebane: That’s correct, yes. Yes, correct, because in this instance there was no policy or justification. I think we’ll also see when we go to the findings and where we serve the section 7(9), because that’s where we were supposed to be provided with those – here's the policy, what does it say? And that can be done. So the matter was going to be unsubstantiated. If we had that evidence, we wouldn’t have it as unsubstantiated.

Adv Mpofu: Yeah, and... Well, in fact, the... If you forgive me again, I’ll do what I did with the previous one, by jumping to the end, because I think that’s where the answer lies. If you go to 5.4.28...

Chairperson: As you go there, she said you must remind her about something.

Adv Mpofu: Oh, yes...

Chairperson: Let’s start there, and then we go to...

Adv Mpofu: Otherwise, we’ll forget, yeah.

Chairperson: I’m now reminding you...

Adv Mpofu: That was in relation to the memorandum of Mr Neethling, yes.

Adv Mkhwebane: Page 71.

Adv Mpofu: Page 71...

Adv Mkhwebane: I just want to mention that there was another... the anti-corruption unit was also established in 1999. If my memory serves me well, I don’t know whether this is the one or is this ACAS, which I just want to put on record. I think I remember Mr Mataboge was asked about it by the evidence leaders, if I’m not mistaken. So just to reflect that there’s this unit, which is currently known as Anti-Corruption and Security, and has as a responsibility the safeguarding of SARS personal information and material, as well as the conduct of internal investigations where staff may have been involved in acts of criminality that harms SARS in its ability to execute its mandate. So I wonder whether that’s the one Mr Mataboge was asked about. But then again, if that’s the unit, then the fact of the matter is then the unit changed, and it became more sophisticated. Hence, we are saying it moved from one stage to another, to another. And you see here the mandate was more of internally based, and of which I'm still saying – fine, that’s what SARS was expected to do in any rate, to protect its officials and staff. Yeah.

Chairperson: Thank you, PP. Just before Adv Mpofu proceeds... You can help us, there’s somebody, I think he wants to come in. He's really looking through that door. So let’s make it easy for him to be inside. Thank you. Proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Chair, I know I'm not a witness here, but I can at least comment on what the PP is talking about now here. The anti-corruption unit of 1999 - I hope that is not where the so-called “rogue unit” came from, because then it means I'm guilty as well, because I was appointed by this Parliament in that year to chair something called the National Anti-Corruption Forum.

Adv Mkhwebane: Oh, okay...

Adv Mpofu: Which among others had Minister Manuel and others. And I think this is what we encouraged, for entities to have their own anti-corruption units. So this should have been done in that mode, hopefully. I hope it then didn’t metamorphosise into the “rogue unit”. But yes... I think, thank you, PP, that’s important, because this then traces the statement, which is made somewhere else, which we dealt with, that said this thing actually came back from... or rather, emanated from the late 90s and so on. Okay, now, I was then taking you to... the conclusion. The question I asked earlier, as to whether all those deviations were justified by documentation. 5.4.28, yes. Can you maybe in the mode of the last one, take us through those conclusions? And we’ll come and sweep up any other issue, but knowing where it leads us to.

Adv Mkhwebane: 5.4.28, yes. So this is the conclusion. Again, Chairperson, application of law to facts and the evidence before us. We came to the following conclusion, “SARS failed to provide me with a policy that applied at the relevant period, regulating the transfer of staff within SARS branches”.

Adv Mpofu: Next one.

Adv Mkhwebane: Further, “failed to provide me with a policy regulating the headhunting of staff for positions with SARS”. Three, “The failure to advertise positions externally is a violation of section 8.3.2 of the SARS Recruitment and Selection policy”. So this shows that they had a SARS Recruitment and Selection policy, and the very same policy they violated. That's all we were looking for, nothing more, nothing less. The accusation that I'm attacking... because was labelled this person who affected... and some members were affected with their families, divorced, were killed, and... Just because of investigating and showing that you appointed people. I mean, and we are dealing with bodies here. Yes, they were appointed, but follow your policy.

Adv Mpofu: Yes, and yeah. Now yeah, that’s a question I'm asking almost rhetorically then, which is really aimed at the Members of this Committee. And if you can help us with the answer. Given what you’ve then now just told us... The entity says itself in black and white – we've not followed our own policies, we have deviated. The accounting officer has signed against that deviation. You come as a Public Protector and say, well, okay, given me then the documentation that justifies those deviations. And they don’t give you those documents. What are you supposed to do as a Public Protector? What other conclusion can you come to?

Adv Mkhwebane: Definitely... because we are an investigative body. We always have to find other means and ways to go to the root cause of the problem. And that reflected, you know, the issue of disregarding the mandate of the institution. You know, not assisting the Public Protector to do investigation. Again, it still goes back to the very fact of violating section 181 of the Constitution, because you are a public servant... and the Constitution. If we say we are constitutional state and the constitution applies to all of us, why not comply to that and assist this institution? So I think it was purely based on assisting us to conduct our investigation. And just forget about the... yeah, the accusations and the... you know, because again, Chairperson, I said it yesterday and since the beginning, that I have touched the untouchables, and who will always perpetuate this narration that this Public Protector is "rogue”. I was labelled that by one of the Ministers. But the only thing we’re doing with the officials, again, surely, I think it’s clear now that the investigation was conducted by the officials and based on the evidence before them and what is expected. That's the finding we came to adopt, because we have this support of what information we had.

Adv Mpofu: Yes, I guess what I'm getting at is... because, ultimately these are impeachment proceedings. So I'm trying to put it in a simple way, this question of saying what is the duty of a Public Protector faced with these facts that we’ve just established now? Let's assume there was a deviation, there was employment of people without adhering to the policies, then the accounting officer signed against that. And you asked for the policy that justifies that, and you were not given that policy, and then you find that this is fine. Isn’t that when you should be impeached? Because what other... I’m trying to say what other conclusion would you come to on these facts that we have now established?

Adv Mkhwebane: No, other conclusion. I mean, this is the conclusion which we’ve reached, based on the evidence, based on the responses, based on the policy; which we had to independently, you know, analyse. And not checking who is who, but we had to do this. Now the question is if one is... Okay, let’s say it is not me, another Public Protector... Actually, not me, not even Public Protector, Chairperson... the Auditor-General. I mean, if she can sit here and you ask her – here's the situation... not even her, because there is a lot of auditors doing this. Any auditor will tell you, or any investigator of the Public Protector will tell you this is wrong, you can’t then behave like that being an accounting officer – being a public servant, actually. Now I'm sitting here, I'm being impeached or then I must be removed, because of this report. Again, it goes back to the very same thing of saying then it means that other people must not be touched, must not be investigated. And again, it goes back to what the Chief Justice Mogoeng Mogoeng, in the Nkandla judgment, majority judgment, that you know, you just find yourself in a situation where you investigate role state power. Some people don’t want to account, they don’t want to be investigated. And how do you deal with something like this, because if it comes to any other department or government official, or the DGs and CEOs and Ministers and everyone – if we behave like this, what kind of society as we creating? I mean, SARS being the very important institution in the country. We cannot allow something like this to go on. And as the Public Protector we are there to help them to lead and be compliant to the Constitution. And I will still call upon them... I’m left with how many months, three, four months? So whoever will be my successor, please cooperate with, please assist. The institution is there to make you shine. Well, I used to say, Chairperson, when I visit various provinces that, you know, the Public Protector operates like a kidney. You'll never see the kidney, but if your kidney is healthy and it keeps you going; we are not praising the kidney, we are praising you as a person to say you take care of yourself. So we’re just operating from behind to make you shine, because when you get a clean audit, when we say this institution is performing, you know. And the people are happy; service delivery is being delivered, it’s because you’re learning. I think, Hon Sukers was saying the issue of self-cleansing, because you should be using these reports to just self-cleanse and make sure that you comply. I'll still say to the Commissioner currently at SARS - go back to the report, go through it, correct whatever has been happening, but unfortunately, I even heard that the very same members were paid some monies, apparently “sorry-monies” or something like that. Hence, I'm saying I was not against these people, they were doing their work, they were employed. And I was not saying anything wrong with that, but I was just saying your employer didn’t follow the policy to employ you.

Adv Mpofu: Yeah. Alright. You know, this is what judge Baqwa and the other two judges had to say about this part. If you go to paragraph 211 of the judgment, Tshepo.

Adv Mkhwebane: 211?

Adv Mpofu: Yeah, it starts at 211. We called it... I think, instead of the recruitment issue we called it the employment issue, in the actual court case, but it’s the same issue.

Chairperson: Are you there Ms Morie? Okay.

Adv Mpofu: Thank you. Let’s start at... at 213. The one just before... 214 actually speaks to the point raised by the Chairperson here. But let’s start at 213... And check it also for factual correction. They say, “The Public Protector implicates Minister Gordhan and Mr Pillay in participating in the recruitment process. She, however, limits Minister Gordhan participation to the recruitment of Mr van Loggerenberg. Minister Gordhan is not implicated in the recruitment of any other employee of the unit”. Given what we’ve just spoken about his signature of that memorandum, is that correct?

Adv Mkhwebane: It’s not true. It's not true, because I'm glad here the judges took the time to copy and paste our report. But if you then read the report, it’s very clear that we have also mentioned the fact that Minister Gordhan signed the memorandum. So it doesn’t only refer to Mr van Loggerenberg, it refers to any other employee. So now they are saying I ignored that, but if a person has signed... And he even commented and said – can I discuss with the... provided, I discussed with Ivan...

Adv Mpofu: Yes, alright. Okay so that’s we can... well, not tick, cross that for factual correctness. Then this is the Chairperson’s point, it says, “In response Minister Gordhan reiterates that he approved the establishment of the unit but denies any involvement in the recruitment of staff for the unit. He points out that it is the responsibility of management of the unit to do so within the applicable legal and regulatory framework and was dictated by its specific needs. He argues that to find that he was responsible for any irregularities in the recruitment process merely because he approved the establishment of the unit, is absurd”. Okay, what do you have to say about that? In light of his status as accounting officer.

Adv Mkhwebane: Again, judges should know that the Minister was investigated as the accounting officer. I think possibly here is the... I don't know. Possibly they thought I'm just... I was investigating the Minister Gordhan...responsibility of SARS, as Minister, no. He was the accounting officer. Anything which is signed, anything which is happening. The operations, the appointment of staff. I mean, as an accounting officer section 38 of the PFMA was very clear, because there were those paragraphs which I said – must I read them. Because it also says to you, management of resources of the institution, resources will also include how you ensure, because when you employ people, you need to pay them. It goes back to the issue of how you would utilise the resources, especially financial resources to pay these individuals. So I don’t know what’s absurd about us showing that he was the accounting officer, and the legal framework which we relied on to come to the conclusion.

Adv Mpofu: Yeah. Alright, now... Now if you go to 5.4.31, that’s your conclusion... Oh, I’m sorry. It's page 84. Remember you read your first three conclusions, and then we were commenting on that. Now just... I just wanted us to complete the conclusion so that we don’t jump back and forth.

Adv Mkhwebane: Okay...

Adv Mpofu: 81, yes. That would be... it’s still under the heading “conclusions”, yeah. It's particularly important. I'll put a question when you just finished reading 5.4.31.

Adv Mkhwebane: Okay, “The denial of Mr Gordhan in his participation in the recruitment process of one or more of the unit’s employees is astounding. The Sikhakhane report and the Gene Ravele dossier confirm that Mr Gordhan played a role in the recruitment of Mr van Loggerenberg”.

Adv Mpofu: Right. Now the... Okay, so this covers two things. One is about his denial of being involved in any of the employees... and you say that’s “astounding”. I think we’ve dealt with the reason for that, because he had agreed to having signed the approval. And then the second issue you deal with is the fact that in the other report – in the Sikhakhane report and the Gene Ravele dossier, he confirmed... or rather those reports confirmed that Mr Gordhan played a role in the recruitment of Mr van Loggerenberg. Now if you... Then the judgment criticising you for even that reference to the Sikhakhane report, on the basis that it had been... I can’t remember the expression now, “widely discredited”. Firstly, to your knowledge, was that report widely discredited? If so, by whom?

Adv Mkhwebane: That’s why during the investigation there was no way where we had any reference to... actually, yeah, we didn’t know. I didn’t know who discredited the report. And again, using it as a lead and getting the information that this report was done, was submitted to... all the recommendations which were made by that report ended up leading to the IGI report, which investigated the matter and dealt with the matter. So I didn’t know who discredited the Sikhakhane report.

Adv Mpofu: Okay. Well, again, to go back, Chair, to the findings of bias and dishonesty, this is again another basis upon which the judges made those findings against you. So if... or unless, should I say, the evidence leaders or anybody will be able to show that this Sikhakhane report had been widely discredited, can the factual foundation of your alleged bias then be sustained?

Adv Mkhwebane: Even if, let’s say they show us all the evidence that it was widely discredited, but I indicated that the report at that stage when we were investigating, we relied and we mentioned that there’s this information and the information we didn’t have any... You know, when they say “widely”, it means the whole country knew, it was reported all over, there was a judgment, it was reported... and when we conduct research possibly...

Adv Mpofu: Let me assist you. It's not true that the Sikhakhane report was “widely discredited”. So if I'm correct in that, that’s why I’m saying unless the evidence leaders of course can prove me wrong. But if I'm correct that it’s not true that... when their turn comes. If for the purposes of my question... If it cannot be sustained that the Sikhakhane report was widely discredited, can the Committee rely on that to remove you from your office?

Adv Mkhwebane: No, they can’t. Well, I'm saying to the Committee you can’t rely on that, because these were various other sources which were relied on. I mean, relying on the policy of SARS, relying on every other thing, we’ve mentioned this information, because it was before us. And you can’t just remove me based on that.

Adv Mpofu: Yes, the second issue...

Adv Bawa: Chair? Chair, sorry.

Adv Mpofu: Can I just ask this question, please? Because I just don’t want to lose my train of thought, please, Chair. And I might also assist, Adv Bawa’s intervention. The second issue is this... before Adv Bawa comes in, which is also quite crucial. Let's assume, let’s assume for a minute even all the evidence you have given us now about how you came to the conclusion on Mr Gordhan’s involvement in recruitment, both of other employees or Mr van Loggerenberg. So assume there was no such thing as the Sikhakhane report, never existed. Would your conclusions on this be different?

Adv Mkhwebane: It wouldn’t, because hence I answered earlier that with the responses we received from SARS, with their policy not mentioning the... well, the issue of headhunting. The finding wouldn’t have differed.

Adv Mpofu: Okay.

Adv Mkhwebane: I like too... well, when I say, even if that’s the case as you like to you say, that’s the argument. But even if that was the case, it was not an issue of malice or, you know, trying all out to deal with the people. So it was just purely looking into what the policy is saying. And we are not dealing with one person here; we are dealing with a number of people who have been employed during that process for that particular unit.

Chairperson: Okay, just a pause. Adv Bawa?

Adv Bawa: Chair, it’s one thing when Adv Mpofu ask the question and then he gives the answer, which is what happened. But besides that, can we just get the Public Protector to answer that question. The question was whether at the time the Sikhakhane report was widely discredited or not? And then the Public Protector didn’t quite answer it, and then Adv Mpofu gave the answer.

Adv Mpofu: No. No, Chairperson. That's really ridiculous. I'm allowed to say to the witness; at the end of the thing we will argue this and that and the other, and then answer... Well, that’s what I said... The premise is that it’s not correct that it was widely discredited. I even said you’ll also probably argue that it was widely discredited. But assume for the purposes of this question that in that exchange my view will prevail. And I'm sure you can ask the same question based on your... It’s for the Committee, not myself or the evidence leaders at the end of the day, to decide who’s right and who’s wrong. Yeah, but I'm entitled to premise the question on the postulation that I'm going to argue from. Otherwise, I must argue the point now, which I'm not allowed to do. I'm simply saying assume that there’ll be no proof that the Sikhakhane report was widely discredited. If I'm right... If I'm wrong, I'm wrong, that’s the end of that question, it will be worthless. But if I'm right then I'm entitled to an answer.

Chairperson: Adv Bawa?

Adv Bawa: Chair, the exact words “it’s not true that the Sikhakhane report was widely discredited”, and if that’s true “it cannot be sustained that the Sikhakhane report was widely discredited”. There was no premise for what Adv Mpofu has put now. The point I'm trying to make... I don’t want to go back and forth on this, Adv Mpofu. All I'm saying is can the witness just answer the question? So that we know what the witness view was, as to whether at the time the Sikhakhane report was widely discredited or not, as opposed to Adv Mpofu’s view.

Chairperson: Okay, I will allow Adv Mpofu to proceed, but I'm not sure if it was a question or it was a comment made.

 Adv Mpofu: It really was a premise. And Adv Bawa is just being unfair, because she has cut out from that thing she’s reading now. She’s cut out the part where I say maybe the evidence leaders will establish the opposite. Well, I said it in the original question...

Chairperson: Okay, okay, okay. I'm trying to move over to you. I don’t want the two of you to argue...

Adv Mpofu: Alright. It's fine Chair.

Chairperson: You’re still going have... And you’ll respond in terms of the question, but if it’s not going to be asked now, the question can be asked...

Adv Mpofu: Okay. No, thank you. I'll rephrase it, Chair. Thank you.

Chairperson: Go ahead.

Adv Mpofu: Yes, I think it’s easier if we do it like that, yeah. Assuming at a factual level, both your legal representatives and the evidence leaders will establish as a matter of fact... or even as a matter of law, whether the Sikhakhane report was widely discredited or not, okay? So put that in mind. In other words, it’s not common cause. But I'm saying now assuming for a minute that there will be no such proof that it was widely discredited. Would then the Committee be entitled to rely on that basis, which basis number three, for the conclusion reached by the judges that they say “We conclude that taking into account the following, a conclusion of bias is warranted...”, then they list all those things. We've dealt with the one about did you see the report. We've dealt with the one about whether you failed to engage with the findings of the Nugent report. We're now dealing with this one about the Sikhakhane report having been widely discredited, of their premises. Do you get the question, PP?

Adv Mkhwebane: I do, yes.

Adv Mpofu: Yes, please answer.

Adv Mkhwebane: I’m still saying, I never knew that the Sikhakhane report was discredited. We used the Sikhakhane report like any other report which we had. And also showing that that was the evidence before us. And it was relating to recruitment of all the employees.

Adv Mpofu: Yes, thank you, which then covers my second question. And in fact, let me do it like this, in fairness. Assume now that the opposite. Assume that the evidence leaders will be able to establish that the Sikhakhane report was widely discredited. Now my next question was, was the Sikhakhane report the basis for your conclusion, or were you referring to it in passing? In other words, that’s why I was saying, just postulate there was no Sikhakhane, there had never been such a thing. Would your conclusion on this recruitment issue have been different?

Adv Mkhwebane: No, not at all. It would still be the same.

Adv Mpofu: Alright, thank you. I think that’s... that then covers it, yeah. Alright, thanks, let’s then move on to... well, maybe while we are at it, on the judge's premises for your alleged bias. One of them is that you... no, it’s fine. It's not related to the topic we’re doing now. I was going to deal with the Sunday Times thing. Alright. Alright, I must not allow myself to be deviated as well. Now there is... sorry. If you go to 5.4.4.2. And again, to save time I'm not going to... I don’t want us to go into the details, but also, we don’t want to put people's names up there. The one at 5.4.4.2, you’ll see that there are one, two, three, four, five, six, seven, eight persons', who were to be employed under this deviated regime.

Adv Mkhwebane: All right.

Adv Mpofu: Yes. And without going through their names, the first one is Mr something something, intelligence officer and forensic investigator, as defence intelligence. That's their qualification.

Adv Mkhwebane: Correct.

Adv Mpofu: The next one is Mr something, as well. Formerly employed by the South African Secret Service.

Adv Mkhwebane: Correct.

Adv Mpofu: And the third one is also a male; directing staff at School of Intelligence, in the defence force. And so it goes. The others are kind of neutral qualifications, the one is an investigator, the other one is a forensic expert... other one is an investigator and an auditor, a forensic auditor.

Adv Mkhwebane: Correct.

Adv Mpofu: Just those three types, senior people, were identified there in relation to the earlier question, as to whether there was an intelligence... Well, I think actually, no. You don’t have to answer that. I think it has now been acknowledged by everyone, including in this memorandum, that there was an intelligence element to it, to this. I think the only thing that might be in dispute is whether that National Security Intelligence Act applied or didn’t apply, technically speaking. Alright...

Adv Mkhwebane: I think we’re still on the issue of the individuals who are employed. Maybe on that issue, what’s critical is that the focus here was the recruitment policy. The accounting officer followed the recruitment policy, irrespective of who came to which conclusion. But more specifically, as well, that we’re dealing with a number of individuals, because you’ve read those individuals, page 74, 75. And there are also individuals from page 76... yes, page 76 to 77, different names. There are also individuals in page 78, for Members of the Committee to take not. So now, out of those numbers, it’s around... what 30, 40 people? Estimation, it's an estimation. So I'm blamed for three individuals, but specifically also for Mr Johann van Loggerenberg, who was the witness here. So it was relating to their appointment to the policy, to the process which is followed. And that’s all what this report was all about.

Adv Mpofu: Right, okay.

Adv Mkhwebane: And the fact that they were never called upon, these people. They were never even served with the section 7(9). Again, Chairperson, they were affected not implicated.

Adv Mpofu: Alright. And then if you go to page 80. I just want to dispose of this issue, this specific issue of Mr van Loggerenberg. 5.4.13 onwards, that’s where you deal specifically with Mr van Loggerenberg. If you can read 5.4.13, and maybe go to 14 and then jump to 16.

Adv Mkhwebane: “Further evidence submitted indicates that Mr van Loggerenberg applied for employment at SARS on 13 January 1999 for the position of Assistant Director: National Special Investigations subcomponent: Intelligence. He was appointed to the position of Head: Special Operations on 15 June 2007”.

Adv Mpofu: Next.

Adv Mkhwebane: “SARS failed to provide Curriculum Vitae’s and recruitment documents pertaining to the appointment of all employees of the intelligence unit”. 16, “Mr Ravele stated that he was given the Curriculum Vita of Mr van Loggerenberg by Mr Gordhan. Mr Gordhan had received Mr van Loggerenberg CV from Mr Pillay when he was still at the South African Secret Service to screen and verify before he was interviewed by Mr Andy Mothibi, Manager: Labour Relations”.

Adv Mpofu: Okay. Next one.

Adv Mkhwebane: “Mr van Loggerenberg’s CV demonstrated that he had done extensive work as a Deep Cover Agent in both the SAP and the SAPS...”, well, I think...

Adv Mpofu: The South African Police is the apartheid one. And then SAPS is the current one.

Adv Mkhwebane: “He had worked for the South African Narcotics Bureau before joining Crime Intelligence Gathering”.

Adv Mpofu: Right.

Adv Mkhwebane: And, “Mr van Loggerenberg was offered a Director’s position, which he declined on the basis of the salary package being too much for him. He accepted the position of Assistant Director and was appointed as Assistant Director: Special Investigations”. And then “On 15 June 2007 he was appointed to the position of Head: Special Operations”. So that’s the information which was gathered, or we’ve also noted and included in the report. And it was in the section 7(9), this information.

Adv Mpofu: Yes, and just to be clear, so that we don’t mislead the Committee... when you say Mr Ravele stated, you did not interview Mr Ravele.

Adv Mkhwebane: That’s correct.

Adv Mpofu: What... where did you source the information attributed to Mr Ravele?

Adv Mkhwebane: It was sourced by the investigators. Similar applies to the reports of Sikhakhane, the opinions of...

Adv Mpofu: Trengove.

Adv Mkhwebane: Trengove... So that is all the information which was before us.

Adv Mpofu: In fact, yes, Chair... sorry. It's easier to make the point I want to make, if you go to 5.4.15, because... I was jumping it to move on, not to dodge that point. So I think it’s better that we just go there. So that we qualify the source of Mr Ravele’s information.

Adv Mkhwebane: Yes, that dossier, undated dossier which the officials – the investigators were having, that Mr Ravele, former employee of SARS stated that Mr van Loggerenberg joined SARS in 1998, whilst Mr Ravele had been stationed at the office of the Deputy Commissioner.

Adv Mpofu: Okay, so that’s fine. Alright, now that, okay, we’ve got that out of the way. We can then go to Mr Gordhan’s section 7(9) response to you, in respect of those issues. You'll find that at 5.4.20, yes.

Adv Mkhwebane: 5.4.20... This one, Chairperson, is still the first audi. It's still not yet the section 7(9). Yes, because we had to subpoena the affidavit.

Adv Mpofu: Alright.

Adv Mkhwebane: “In an affidavit dated 17 May 2019, Mr Gordhan denied having any involvement in the recruitment of the SARS investigation unit. However, he believed that the proper process was followed by SARS in recruiting staff”.

Adv Mpofu: Okay, you don't have to comment on that. That's the same answer as before.

Adv Mkhwebane: Yes.

Adv Mpofu: Alright. Then as far as Mr Pillay is concerned...

Adv Mkhwebane: He also responded; he argued that “the Public Protector had already dealt with the allegation relating to the recruitment of staff. He was of the view that the matter had been finalised satisfactorily by the former Public Protector, Adv Thuli Madonsela”. “He provided no further response to these allegations”. “It is indeed correct that the issue relating to the recruitment of staff for the intelligence unit had been previously investigated by my office. The matter was finalised and signed off by a Chief Investigator, which means that I am still able to review such report if the need arises”, because it was relating to labour relations issues actually, more than the recruitment of those officials. Because they were complaining about the issues and then they ended up referring the matter to CCMA. But then also what was clear from that closing report was that because the matter involved the intelligence unit, then there was that issue... I think if we will go to that closing report sometime, that it was still the Sikhakhane report recommended that IGI investigate. So there was still that particular process.

Adv Mpofu: Thanks. Okay. And again, you can educate us, because I think like Mr Pillay, we would not know some of those inner workings. So what Mr Pillay, really, he was refusing... Maybe, I’m putting it too strongly. He was failing to respond to your question, and he was raising what we lawyers call res judicata. He was basically saying - I don’t have to answer this, because it was finalised by Adv Madonsela. Now you are explaining to us that it doesn’t work that way, or maybe we could call it the principle of functus officio. But those are just Latin terms, which simply mean that the issue can no longer be revisited. Now you are explaining to us that signing off had been done at Chief Investigator level. As I say, for those of us who don’t know the inner working things of the Public Protector’s office, what is the significance of that? What would be the difference? Let's assume that it had been signed off by, indeed by Adv Madonsela, as opposed to a Chief Investigator. What difference does that make?

Adv Mkhwebane: If it was signed by Adv Madonsela, indeed I would have been functus officio. I wouldn't have been able to review that particular report.

Adv Mpofu: Right.

Adv Mkhwebane: But then, because it was signed at Chief Investigator level, that’s still what we can do internally. We have a policy – internal review policy, because sometimes there’s closing reports which are done. And the people complain that the matter has not been closed properly, I'm still prejudiced. Definitely that is escalated to me. And then, actually, not only to me. A lot of them, I would say to the Executive Managers, you deal with them at your level. Let's say a province has closed a matter or a Chief Investigator has closed a matter, in a proper span of operations the Executive Manager – the supervisor of this Chief Investigator, should then look into all the evidence. Check whether all the processes were followed. And if they feel that – no, you should reopen or, you know, consider the following facts, then they will do that until the matter is clearly investigated. So this was signed at a very low level. And again, 5.4.24, I'm also acknowledging that we noted that “the issue pertaining to the intelligence unit was not dealt with at the time, as it was under investigation by the Office of the Inspector General of Intelligence”. So that’s the main reason.

Adv Mpofu: Yes. Okay, so basically then there were two reasons. One was the level of the approval, which did not preclude your subsequent involvement. And you’re saying in any event, the intelligence unit issue had been... to the extent that it was not investigated, it was because it was before the IGI.

Adv Mkhwebane: That’s correct. And you know, another issue which public servants or those who are investigated don’t understand... or we are investigating, they don’t understand, is that when we have this... Firstly, when we send you that first letter, be as open and transparent as possible. Don’t just be dismissive and not want to cooperate with the institution, because Mr Pillay was supposed to just tell us again - okay, yes, I responded to Madonsela, there is this file and I suspect that it was when I also realised that apparently there’s this report, then I had to write emails and request stuff – can I see this closing report? Who was the investigator? What is in the file? To avoid a situation where one hand doesn’t know what the other hand is doing. So hence I advised Mr Mataboge and them, can you check that file, what is it saying, send it to me. And then when I checked, okay, there’s a lot of other information which is there. I think I mentioned, but there’s this. And that information is directly from SARS. It means they were cooperating with my predecessor more than me. So we could have said to... and we captured it like this in the section 7(9). Again now, the second audi, because then if Mr Pillay indeed read this section 7(9), he would have said - no, PP, you are not correct here and this is the true... yes, we received that; but then okay, on second thought let me help you, this is the information on the matter, this is what transpired on the matter. But it’s just that he just treated the institution with that, you know, I can’t - it has been dealt with, therefore I won’t entertain this. I think even this issue with the equipment, he just said... or it’s the operations, where he said – no I'm still in court somewhere. He was that dismissive.

Adv Mpofu: Yeah. No, that’s... Well, you’ve pre-empted my next question. And I see that it’s almost lunch time, but if the Chair allows me to ask this... a couple of questions... so that we round off this issue as well. So that we can move to something else...

Chairperson: Please go ahead.

Adv Mpofu: Yes. After lunch we can move to something else, yeah. Okay, let me... I’ll ask this, let’s start with what you’ve just answered. As I've said, Mr Pillay or any layperson like all of us, who would not be familiar with how the office works would be entitled to say – well, this was done; therefore, don’t bother me. Now my question is... and you saying this was at the level even before the 7(9). Once it was pointed out to him that that’s not a valid defence, let me put it that way, was he then forthcoming with the information?

Adv Mkhwebane: No, he was not. I think when we go to the findings and incorporating his response to section 7(9), it will be very clear as well, that he was still not interested in helping.

Adv Mpofu: Okay. So...

Chairperson: Just before you proceed, Adv Mpofu. Adv Bawa?

Adv Bawa: Maybe Adv Mpofu can give us this after lunch, the reference in the 7(9) where it was said to Mr Pillay that that wasn’t a valid defence.

Adv Mpofu: I don’t know. I don’t work at the Public Protector’s office. The...

Adv Bawa: The proposition... Sorry, Adv Mpofu. The proposition that was put to the witness was when you indicated to Mr Pillay that this wasn’t a valid defence, was he forthcoming? So I'm asking the question as to... he didn’t lay the foundation as to... I’m assuming from what followed that it was in the section 7(9).

Adv Mpofu: Alright. I think the witness actually covered this... just now, a few minutes ago. The... rather... okay, let me do it bit by bit. So this was then the response of Mr Pillay.

Chairperson: Can you just quickly respond to this.

Adv Mpofu: Yes, I am. I am, Chair. Sorry, Chair, I didn’t indicate, yeah. When I'm doing it, I'm noting, I'm actually trying to deal with that through the witness here. You said that this was an audi opportunity, which was prior to the section 7(9) notice, correct?

Adv Mkhwebane: Yes, where there are affidavits. Then again, I explained that they were sent subpoenas to provide notices. And in response to the subpoena... he indicated the following. So I thought we're still going to also... the issue of responding to a section 7(9), because, yes, not being convinced by the response. Then hence the final conclusion on this matter as is.

Adv Mpofu: No, I think Adv Bawa’s problem is a different one.

Adv Mkhwebane: Oh.

Adv Mpofu: I'm saying let’s just cut this to the chase. I've said... You’ve asked for the information from Mr Pillay, right?

Adv Mkhwebane: Correct.

Adv Mpofu: He says – I don’t have to answer you, because it was done through Adv Madonsela. Correct?

Adv Mkhwebane: Correct.

Adv Mpofu: You’ve now told the Committee here that that’s not a good enough answer, because it was done at Chief Investigator level.

Adv Mkhwebane: Correct.

Adv Mpofu: In the next round of engagement with Mr Pillay, did you point out that the... that answer doesn’t hold water or did you... and/or did you insist on getting the information? And did you... Maybe, let’s break it down. Did you require the information again, and did you point out to him that this was not an answer?

Adv Mkhwebane: I think let’s go to the section 7(9).

Adv Mpofu: Right.

Adv Mkhwebane: Because the information was captured in the section 7(9). So to see how we crafted it in the section 7(9).

Adv Mpofu: Yes. Alright. In fact, you’re quite right. Chair, can we do that when we get back? You'll remember, Chair, that section 7(9) is that, I think, 71-page document, that I went through in detail with Ms Mvuyana. And actually, that’s the reason I didn’t want to go there now, because it would be a waste of time. We went through it almost half a day, with Ms Mvuyana. So we will refer to that document over lunch, to point out where this point is dealt with. Thanks, Chair.

Chairperson: Okay. And you’re done with the other points that you wanted to...

Adv Mpofu: Yes. No... Sorry, Chair. There was just one more. Just so that we start on something new when we come back. Sorry, just one. I've just lost my train of thought now. One second, one second, Chair... I just wanted to round off or to connect this issue of the IGI report. Just for the sake of completion, I think you’ve established, you did say yesterday and somewhere earlier in the report, that the IGI investigation as it were, was an offshoot of Sikhakhane. Because it looks like it was Sikhakhane who referred those issues for investigation by the IGI. Is that the correct understanding of the sequence of these reports?

Adv Mkhwebane: Yes.

Adv Mpofu: So in other words, we would have had Sikhakhane, IGI, KPMG by Moyane and Nugent, somewhere around 2018, I think. That's the kind of progression. Am I right?

Adv Mkhwebane: Yes, I think that’s what we incorporated, I think in the report, somewhere where it was the recommendations of Sikhakhane to refer the matter to IGI for investigation... And hence, there are some instances indeed ourselves, where if there's a matter which relates to State Security and how the officials there are conducting themselves, we'll refer the matter to IGI. Like what I said about other ombudsmen – sector ombudsmen, because there are those sector ombudsmen who can deal with the matter. For instance, the SARS ombudsman. And then once that is dealt with, at least they’re in that field. So yes, I think that’s one of the recommendations; we’ve captured it in the report if I'm not mistaken, what was recommended.

Adv Mpofu: Okay, Chair. We can stop now. I'll start with the operations issue, but something tells me that there’s one more issue, which has just escaped. So if I need to sweep up one or two questions, when we come back, then I'll do so.

Chairperson: Okay, thank you. We'll now take lunch and be back at two. We adjourn, thank you, for lunch.

[Lunch break]

Chairperson: Welcome back, colleagues. I hope you enjoyed your lunch. Let’s resume, and hand over immediately to Adv Mpofu.

Adv Mpofu: Okay. Thank you. Chair, can I just defer this question we were busy with. I'm going to... I’ve got the section 7(9) of Mr Pillay, the 71-page number, but I've not yet found the other... So if we can just defer, maybe we’ll do it after tea.

Chairperson: No, problem.

Adv Mpofu: Yes. Thank you, Chair... 734 of what? No, I've got... I found it, but... it’s paragraph? 14.3.25...

Chairperson: And 26, apparently.

Adv Mpofu: Okay, I've got it. Thank you, Chair. Thank you, Adv Bawa... No, I've seen that. I'm looking for something else.

Chairperson: Okay. That's fine. Thanks, Adv Bawa.

Adv Mpofu: That’s just a reflection of the same thing that’s in the report, word for word. Okay. PP, let me just ask that question this way. Mr Pillay... okay, I was looking for the date of his 7(9). There are two issues that Mr Pillay raised. One is that the matter that you... and you’ve explained that that could not have been. The second one is the issue of the IGI, that the reason why the matter had not in fact even been investigated by... in the Madonsela regime, was because it was at that stage in front of the IGI.

Adv Mkhwebane: Yes.

Adv Mpofu: Do you know if at this stage the IGI report had been finalised? At the stage of your investigation now, obviously it was. We know that the IGI report was issued out in 2014 already.

Adv Mkhwebane: Correct.

Adv Mpofu: Right. So again, maybe I should ask the same question. Was that brought to his attention, that both of the issues that he was raising held no water, and therefore he should still supply the information? To your knowledge, if you can remember.

Adv Mkhwebane: I don’t... How we conduct the investigation, is we requested the affidavit – provide us with all the information. Because in the affidavit we are saying it is a document request letter. Everything, tell us what you know, and these are the issues we’re investigating. And then after that we analyse the evidence, they analyse the evidence. Then we issue a section 7(9), where we still say to the person this matter is substantiated. And then we send it to the implicated parties. And it’s for the implicated parties to indicate whether they still disputing whatever is in the section 7(9). And that is what transpired in this particular process. So the section 7(9) as we still going to go through, whether also on the IGI report – where did I mention that it was just dropped, that IGI report in the office. I think if whether that was captured in the section 7(9), we have to see what information was there. But the process was purely a fact-finding process, because our investigations are inquisitive in nature. We are not investigating, because we want to find people guilty, or they are accusatorial in nature.

Adv Mpofu: Yeah, okay. I understand that as a general statement. I'm asking this specific question. And if you can’t remember, it’s fine, we’ll look for the information. Remember Adv Bawa’s concern that she raised, is whether... I prefaced this by saying we can excuse Mr Pillay for raising those issues, because like all of us, we don’t know the inner workings of the Public Protector’s office. So we might not have known necessarily that if something had been dealt with by a Chief Investigator, you in any event, still have power to review it.

Adv Mkhwebane: Okay.

Adv Mpofu: So we therefore can’t blame Mr Pillay for holding that view. Neither can we blame him if he held that view for the rest of his life until... unless somebody pointed it out to him that that view is baseless. That's really what I'm looking for, as to whether at any stage in the subsequent audi engagements, whether it was 7(9) or whatever, with his lawyers or whatever engagement, whether you insisted in getting the information on the basis that the technical defences that he had raised were baseless.

Adv Mkhwebane: No, I don’t have any information to that effect. I don’t remember whether that was done by the investigators...

Adv Mpofu: No, that’s fine. Then we’ll have to give him the benefit of the doubt until we find if there was such an engagement, either by you or Ms Mvuyana or whoever.

Adv Bawa: Chair? Sorry, Adv Mpofu. So in other words, the question that you prefaced before the lunch adjournment when you assumed that the deficiency in his response was put to him, you're withdrawing the question until you find the information?

Adv Mpofu: Are you asking me? Okay... Ms Fatima, can she swear me in...

Adv Bawa: The question, sorry, Adv Mpofu... Let me put... the question was put, when you pointed out the deficiency to Mr Pillay, did he still... which position he took. I don’t have the exact wording, right. And it presupposed that it was pointed out to Mr Pillay, and that’s the difficulty when we do the leading kind of thing, Adv Mpofu. Hence, I questioned that. But the witness isn't able to tell us about that and you think there’s a reference in the documents. Can we agree that you withdraw the question until you find the reference in the documents?

Adv Mpofu: No, I’m not withdrawing anything...

Chairperson: Adv Mpofu?

Adv Mpofu: Oh. Sorry, Chairperson. No, I’m not. I don’t know, it’s a waste of time. I've just said, because of the objection that was raised, until we find... because, I just have time now to go through the 7(9). We have to give Mr Pillay the benefit of the doubt, that nobody raised it with him. I don’t... I can’t do more than that. If it makes you happier to withdraw the question... It’s the same. I’ll ask it again once I've got the information.

Adv Bawa: That’s fine. That's good enough.

Adv Mpofu: Alright. Okay.

Chairperson: You can proceed.

Adv Mpofu: Okay. Thank you, Chair. Now, so that was the... sorry. That was then the recruitment issue. And we understand it, again, in its two-legged way. That it relates on the one hand to the recruitment of Mr van Loggerenberg specifically, but it also is the recruitment of the rest of the people.

Adv Mkhwebane: All of them.

Adv Mpofu: Yes. Okay. And if I understand you correctly... insofar as Mr Gordhan is the accounting officer, the buck stopped with him for both.

Adv Mkhwebane: Yes.

Adv Mpofu: And as far as the rest of the staff is concerned, he signed on that deviation request.

Adv Mkhwebane: Correct.

Adv Mpofu: He said subject to having a discussion with Ivan.

Adv Mkhwebane: I would ask the Chairperson that we go to that part.

Adv Mpofu: Okay.

Adv Mkhwebane: So that it’s clear and...

Chairperson: No problem.

Adv Mpofu: Alright...it's easy, we will do it quickly. If you go to 5.4.4.3, that’s on page 75. That I understand to be the section that deals with all those multitudes, not necessarily Mr van Loggerenberg. It's all the other people.

Adv Mkhwebane: Correct.

Adv Mpofu: And that deals with the 2002 memorandum of Mr Mbongwa...

Adv Mkhwebane: And Mr Ravele.

Adv Mpofu: To Ravele and Pillay, yes.

Adv Mkhwebane: And then, Chairperson, can I read... actually, going towards 5.4.5, because Mr Gordhan commented like this, “The functions, roles and responsibilities of the above-mentioned unit, from the evidence before me, were either transferred to or there was simple renaming of the unit which was named the Customs and Border Control Unit (CBCU), SPU and NRG…". You know, I'm calling the “C” the “S”, Chairperson, because in Russian a C is an S. so it is “unclear what became of the employees that were appointed in 2002 as evidence indicates that the majority of the members did not form part of the CBCU formed in 2007”. So there were new people appointed and whatever, but look at paragraph 5.4.5, “In a response dated 26 August 2014...”, the very same issue which Mr Pillay said – no, we responded to the former PP. And then when I said to the team can you get that file, why was it closed? But then what is in that file, because those are the documents of SARS, and they are still valid documents. “Mr Pillay stated that the recruitment of employees into the Customs and Border Control Unit (CBCU), who would later become members of the NRG, was approved in 2007”. So that’s when then Mr Pillay also, there was a memorandum from him in 2007. He was the then General Manager: Enforcement and Risk to Mr Magashula – the then Chief Officer: Corporate Services, titled “Specialised Capability to Focus on the illicit Economy”. So the need for the employment of resources – employees with specialised capabilities – was outlined. So that memo was acquired from that file. So the recommendation of “twenty-six (26) candidates was supported by the Chief Operations Manager”. Hence the issue of Mr Magashula, that he came back and said he doesn’t know anything; whereas he approved this memorandum where they were appointing this team, and with specialist knowledge to deal with illicit economy. So Chairperson, this is what transpired during the investigation, because remember it’s still the process of investigations. So we’ll also have to check in the section 7(9), where is this captured; and when we were serving the section 7(9), what was the response to this. Because we were told that this matter was investigated, and it was closed; whereas for me it was closed at the level of Chief Investigator.

Adv Mpofu: Alright. Okay. No, I think that helps a lot, because again, it might take us backwards in a way, but it would take us to the following place, whether even in the 2014 investigation Mr Pillay had actually answered this question satisfactorily, yeah.

Adv Mkhwebane: Correct.

Adv Mpofu: Because it would be no good for him to refer us to 2014, if the issue was left hanging even then; but... for the purposes of Adv Bawa, we don’t know that either. It's only once we’ve got to dig that far, that we will be able to see whether he was... whether this defence of his was well meant or just an excuse not to answer the question.

Adv Mkhwebane: Maybe let me say this, Chairperson, just to put this matter into perspective... He said in his response to the affidavit – no, I responded to Adv Madonsela. And I'm saying it in the spirit of saying if I was not there, it’s a investigation which I received, there was nothing stopping him to say – PP, indeed it was, but then this is the information which I submitted; or SARS can you please give the Public Protector the documents which I shared with the Adv Madonsela. That's all it is, because I'm saying, why the dismissive approach? - No, this matter was dealt with, and it was closed. It's as if why do they do that, or I don’t know what I'm supposed to be doing. It's purely on that, I was raising it based on that particular aspect.

Adv Mpofu: Alright. Can we do this, Chair, before I go to the next issue of operations? Again, just to... this juggling thing of referring to the nine issues of the judges and our six pillars. Can I take you back to your statement, PP? Just so that we can situate also these two exercises that we are doing at the same time, of dealing with the judgment and also dealing with the report here.

Adv Mkhwebane: Okay.

Adv Mpofu: Okay. So if you go to 144, Tshepo...

Chairperson: What were you looking for?

Adv Mpofu: Page 144, paragraph 326.

Adv Mkhwebane: Paragraph?

Adv Mpofu: From 326.

Adv Mkhwebane: Okay.

Adv Mpofu: Alright, yeah. Let's just do 326 and... Yeah, just 326.

Adv Mkhwebane: Okay. Must I read?

Adv Mpofu: Yes, please.

Adv Mkhwebane: “As alluded above, the relevant charges against me which relate to this investigation and report are based on the adverse remarks made by the High Court in the matter of Pravin Jamnadas Gordhan v the Public Protector and Others, handed down on 7 December 2020, which already forms part of the papers”.

Adv Mpofu: Okay, so that’s the judgment that we quoted from earlier, Chairperson. Okay, then you can jump to... 329.

Adv Mkhwebane: Okay, “I have also considered the adverse remarks and findings by Baqwa J, some of his remarks and findings show a complete distortion of facts. It is on the basis of these distorted and objectively untrue ‘facts’ that Baqwa J makes incorrect findings or conclusions of law and I am going to demonstrate below how Baqwa J incorrectly and impermissibly relied on distorted facts in his judgment on material issues. The original distortions came from Mr Gordhan’s affidavits. The refusal to call him as a witness to explain the distortions is therefore inexplicable”. Actually yes, the Committee... because that’s where it was going to be... the matters will be ventilated.

Adv Mpofu: Yes. Okay. Now that deals with two important topics, which I want us to deal with very quickly. The first one is... we dealt with that in the morning. That you are challenging the factual basis of the findings of the judges. Now the second issue which I think is more important is that to the extent that one can excuse the judges' factual distortions. We can say, for example, where they say you ignored the Nugent report, which is just factually untrue.

Adv Mkhwebane: Correct.

Adv Mpofu: That they didn’t just wake up and say that. It's because that’s what was being alleged by Mr Gordhan in his affidavit. Maybe the fault of the judges that they just didn’t factually check, they didn’t do a fact check on that allegation. But they did not invent it, it came from Mr Gordhan’s affidavit. And you probably disputed it, but the judges didn’t - just believed him, for whatever reason.

Adv Mkhwebane: Correct.

Adv Mpofu: Right. Now the... So that then takes us to the second issue, which is that the person to come and account for that mishap or misstatement of facts is not the judge, because the judge got it from somebody else. It is the originator of the allegation – of the wrong allegation, namely Mr Gordhan. And that’s the issue then which I'd like you to comment on, as to the refusal by the Committee to call Mr Gordhan, when the allegations upon which they are supposed to impeach you under this topic emanate from him.

Adv Mkhwebane: Yes. I think the facts which the court relied on, especially his possibly pleadings in court and how he then presented the facts. Maybe it was more convincing to them. And I think it also still makes sense for the Committee to consider that information and evidence for him to come and explain. So that I can also clarify that the main purpose of that investigation was based on the fact that he was the accounting officer. He worked in that environment. He commented that, you know, he’s approving the unit, but then Mr Pillay must talk to him. He was the originator of that memo where he wrote to the Minister, which was prepared by Mr Pillay. So I think it was going to be helpful to clarify all those issues to this particular Committee, because currently I am presenting this side of my story and the Committee then... it means must just take my version.

Adv Mpofu: Yes, because you see, again, we should be fair to Mr Gordhan as well, because the first port of call should not be that he deliberately lied under oath. That's a possibility, but it can’t be the first port of call. The first port of call should be that he for some reason or another, actually believed, for example, that in the report you said you have never seen the IGI report. I mean, I don’t know how he could make such a mistake, but let’s give him the benefit of the doubt.

Adv Mkhwebane: Yes.

Adv Mpofu: So then if that was a mistake, which then somehow found itself – the mistake was perpetuated by the High Court, the SCA and even the Constitutional Court, without it being picked up.

Adv Mkhwebane: Correct.

Adv Mpofu: Then the person, as I say, to then explain how that mistake arose, if it’s a mistake or how the lie arose, if it’s a lie; is not the courts but Mr Gordhan.

Adv Mkhwebane: Yes, they relied on the information which was before them, or they were convinced by his information.

Adv Mpofu: Yeah. Well, okay. The... yeah, but how can they be convinced about something that’s not there in the report, that it is there?

Adv Mkhwebane: Some people know they just believe that what he said in his affidavit, and they didn’t go to the report and check for themselves.

Adv Mpofu: Okay, that’s fine. Somebody made a mistake somewhere at best, assuming the bona fides of everybody.

Adv Mkhwebane: Yes.

Adv Mpofu: Okay. Alright. Okay, then you go on to... yeah, 330, please.

Adv Mkhwebane: “The allegation that I am biased because during a public interview I referred to the unit as the rogue unit gives the wrong impression that I coined the term “rogue unit” is not true as Ms Mvuyana testified that the term was first used in the public domain in 2014, when the story of the SARS investigation unit broke out in the Sunday Times. The term was commonly and widely used in the public space by those who believed that the alleged existence of the unit was unlawful or rogue. This much is also stated in the relevant affidavit of Mr van Loggerenberg”.

Adv Mpofu: Right. So shall we say then that’s the fourth basis upon which the charges find you biased, is that you used the word “rogue unit”.

Adv Mkhwebane: That’s correct.

Adv Mpofu: And so your response is that you used it in the same way as anyone else.

Adv Mkhwebane: That’s correct.

Adv Mpofu: Okay. Now the... and Chair, we will... I won’t go to this reference now, just to save time, but you might remember that when we were cross-examining Mr van Loggerenberg there was a reference to a speech that had been made by the Public Protector, and which became the subject matter of a lawyer's letter by Mr van Loggerenberg. And in that speech, you actually had referred to the thing as the “so-called, rogue unit” in one part, and I think in another part as the “rogue unit”.

Adv Mkhwebane: Correct.

Adv Mpofu: Also in the discussion that you had with Mrs...

Adv Mkhwebane: Govender.

Adv Mpofu: Govender, Dintwe and the others.

Adv Mkhwebane: Correct.

Adv Mpofu: Did the others... how did they refer to the unit?

Adv Mkhwebane: In the transcript, or well, during the deliberations. I mean, the Members of the Committee listened to that, they were saying the “rogue unit”.

Adv Mpofu: Yes. Alright. And quite frankly, I don’t know if, yeah, anyone really can say that the use of that term in four or five years after its invention by the Sunday Times... I think everyone uses it that way. Mr... We just saw now that the SARS... Nugent. Judge Nugent had a heading called the “so-called, rogue unit”. Mr Kieswetter referred to it as the “so-called, rogue unit”. So that would then be the fourth ground. And then the... you deal with one of those four grounds at 31. Can you just for the sake of completion read that out?

Adv Mkhwebane: “There is a misconception that I also ignored the Nugent report, however the evidence of both Ms Mvuyana and Mr Mataboge which stands uncontested is that we treated the Nugent report in the same way as we treated all the other reports. The court also missed the point that the Nugent commission had different terms of reference. He never found that the establishment of the rogue unit was lawful. He only expressed some doubts about some of the findings which he said were not clear to him”. And I think in the report we’ve read what those issues were, and the issue of the rogue unit operating, which in fact, that unit should operate within limits.

Adv Mpofu: Alright. And yes, 32?

Adv Mkhwebane: “On the KPMG and Sikhakhane reports, I respond in the following manner. Firstly, I state that both the KPMG and the Sikhakhane reports have not been reviewed and set aside. Having said that, I support the evidence of Ms Mvuyana and Mr Mataboge, which again stands uncontested that, as a matter the findings of both reports corroborated and made findings similar to the PPSA findings which shows that the conclusions reached by the Public Protector’s team were not outrages and irrational. Furthermore, both reports made a finding that the establishment of the intelligence unit without a mandate was unlawful and in contravention of section 209 of the Constitution and the relevant statute”. So it was purely focusing on those issues. So there was no way where... actually, we were indicating. I think we dealt with issue of whether the discredit of the Sikhakhane report and all those, because we dealt with it with an open mind and we were focusing on the contravention of the laws applicable to the operations or to the establishment of that unit.

Adv Mpofu: Right. Okay, that’s fine. Then to save time... At 333 you deal with the judge Kroon issue, you’ve dealt with that. And then the IGI report, having seen it and so on, you deal with it at 334, we’ve already dealt with that. Alright, so those will be then some of the... or rather, as we go along we will then deal with the other remaining grounds, the Sunday Times, this that and the other, yeah. Alright. Chairperson, unfortunately I need to raise an issue of concern. Well, firstly we will notice that for the first time since July that no Members of Parliament are present in this Committee. And it is a matter of concern, particularly given that you indicated to us that there was a view that the Public Protector – while she gives evidence, the Committee had decided or proposed that she should be present here physically. So we won’t know what’s the point of having her here physically to address empty chairs. And it would probably...

Chairperson: Sorry, sorry, where are we going now?

Adv Mpofu: No, you’ll see just now.

Chairperson: No. No, wait. I've not given you permission for that detour, I've not done that.

Adv Mpofu: Okay. Alright, I need to raise...

Chairperson: We're still listening to you interacting with the witness.

Adv Mpofu: Yes.

Chairperson: So you can’t just do that. And you know how we operate on issues that are not relevant to what we’re dealing with.

Adv Mpofu: Okay. Yes, no Chair. This is a serious matter and it’s not irrelevant. And maybe... if you allow me just to go straight there to the issue I want to raise.

Chairperson: No, we can deal with that matter. I would want us to proceed with the issues that you are going to talk about, to get into now. And I'm going park that issue, come to it, you’ll raise it.

Adv Mpofu: Chair...

Chairperson: We’re just in the middle of this and that’s what we do.

Adv Mpofu: No. There’s a reason, Chair.

Chairperson: No.

Adv Mpofu: Allow me...

Chairperson: No. I will not do that, Adv Mpofu. I would want you to proceed and continue with the next pillar, as we call them, that we need to deal with. Because you shouldn’t be getting into the issues that are of relevance to how I run this meeting as a Chairperson. And I'm going to allow you to raise whatever issue you want to raise, but for now I want us to continue to deal with the matter that we have been dealing with.

Adv Mpofu: Chair, I'm... I hear you, Chair. But if you just hear me out, please... You’ll understand...

Chairperson: No, Adv Mpofu. No...

Adv Mpofu: No, Chair. I can’t continue...

Chairperson: No. There's no way you can’t continue. I want to continue with the witness here, the Committee is in session.

Adv Mpofu: No, that’s the point. The Committee is not in session.

Chairperson: That’s what you think. I'm going to explain that to you. Please go ahead with the next point, Adv Mpofu.

Adv Mpofu: Chairperson...

Chairperson: Because later on if it’s an issue that I must listen to I will do that.

Adv Mpofu: No. Sorry, Chair. It cannot be postponed. The issue is that there is no quorum in this meeting as we speak.

Chairperson: That’s exactly the point, because you don’t understand. I'll explain that to you later, because I don’t know if you understand how we run these issues. I want you to continue doing that and I'll explain that point, because there’s a quorum. Because I don't know how you understand a quorum. If you’re just pointing and counting people, then you’re going to get it wrong. I'll explain that later. I want you to continue. If your issue is quorum, please continue.

Adv Mpofu: No, chair. I need... No, Chair. I'm sorry... I'm ready to continue, Chair. But at least you have to convince me that there’s a valid meeting. I can’t continue...

Chairperson: There is a valid meeting and I'll explain that.

Adv Mpofu: No. I need to... we’ll dispute that...

Chairperson: No, you can’t do that. You can’t, because you can’t do that. Please don’t delay this meeting. Because if a Member... is not here, it can’t be an issue that we must stop, because a Member is not here. I've not given you an opportunity to digress, to off ramp. I'm the Chairperson of this Committee. The standing of this Enquiry and this meeting, I remain in charge of that, and the decisions that we make in relation to what quorum and so on. You can’t in the middle of you interacting with the witness, because you’ve just received a note and that’s what you do. No, I can’t do that. Now I want you to continue interacting with the witness.

Adv Mpofu: The problem, Chair, is that you don’t want to listen to me.

Chairperson: I’ve already listened. You've raised what the issue is, and I'm saying I'm not entertaining the issue.

Adv Mpofu: Chair, you have to listen to me and then you can overrule me. You can’t refuse to listen.

Chairperson: I've already done that. I've already done that. And I'm going to give you the last time to say that, and I'll repeat my ruling.

Adv Mpofu: Please, Chair. That’s all really I'm asking for. You can then repeat your ruling. Chair, all I'm saying, I'm not fighting with you. I'm saying that according to our information, the meeting is not properly constituted. If we’re right, we may be wrong... if we’re right that the meeting is not properly constituted then you can’t force me to continue in a meeting that’s not properly constituted. All that needs to happen is to make sure that we establish that fact, and maybe our way of establishing it is wrong, I'm prepared to hear that. But what you can’t do, Chair, is then to force me to talk into a non-meeting. So I just need to be... yeah. So that’s all I'm saying really.

Chairperson: Thank you, Adv Mpofu. And you know that that’s the role of the Chairperson. It's not anybody else’s role here to do that.

Adv Mpofu: To chair, yes. But to object is our role.

Chairperson: No, I'm going to come back to you and attend to that from about... because that’s when the point was raised, from about half-past two. Not at a point when things would have changed to say at that point when you raise this issue this would have been a situation, and I’ll explain that. I'm not going to now digress from that. I want you to continue. I'll come back to that and explain that.

Adv Mpofu: No, Chair. But then it means someone might go and recruit Members. I want to know if there’s a quorum now.

Chairperson: I’ve already given you a time at which I'm going to be telling you at this time this is what was happening. There's no recruitment that is going to happen. I want you to continue, Adv Mpofu, and interact with the witness. And I see hands of the Members, I'm not going to take those hands.

Adv Mpofu: Alright. Okay, we’ll do that, but at least the record will show that we wanted a... what you call it, a roll call or check. That's fine... it’s your meeting, it’s your process. Okay. Now Public Protector, we’re going to move to the... We’ve recorded the concern about whether the meeting is properly constituted. So we’ll proceed, as it were, under protest or on the assumption that we are wrong on that score... Right. The next issue was going to be the issue of operations, as the Chair has indicated. Which is... whether the unit... We’ve dealt with the staff, recruitment, establishment and so on. Whether assuming again, the staff... And this is, Chairperson, the way we really would like this. We'll deal with it I think when we argue at the end. It's almost like all these are alternative grounds. So when we talk about the operations, for a minute we have to assume that it was properly established, the people were properly recruited and so on. And we want to zoom into now the issue of whether the operations were rogue. Actually, this whole rogue unit thing is... if you think about it, it’s only about the operations, because all the other stuff... whether the people were recruited badly or not, that’s got nothing to do with rogueness.

Chairperson: So you’re saying the establishment is less important?

Adv Mpofu: No, I'm not saying that.

Chairperson: I thought that the six pillars...

Adv Mpofu: Are all important. No, no, no, you’re right, Chair.

Chairperson: Because even if one pillar of those is...

Adv Mpofu: Is missing...

Chairperson: You have a problem.

Adv Mpofu: No, fair enough. That's true, Chair. But I'm saying just as a matter of fact, the loose term of “rogue unit”, which might even not be a good term, is really...

Chairperson: I do get your point about the importance you attach to operations, in terms of the impact.

Adv Mpofu: Yes. And to the extent that the unit is named after the operations, yeah. Okay, good. Now that being so... madam Public Protector. The criticism, because always we must relate these things to the criticism, the charges, the judgments on which the charges are based and so on, yeah. So otherwise, we just talk in the air. So the criticism here is that... and I'm giving a broad brush, is that this unit was, you know, doing the Lord’s work and there was nothing wrong with what it was doing. And you in the pursuit of your agendas relied on the information, on dubious information let’s say, to come to the conclusion that its operations were illegal. You know, you are aware of that? I'm putting it at its broadest here.

Adv Mkhwebane: Correct.

Adv Mpofu: Now...

Adv Bawa: Chair? Sorry, Adv Mpofu. Can we get some understanding as to what you mean by “dubious”? Are you referring to unlawful or are you referring to... I’m just trying to figure it in the realm of legality, where do we fit “dubious”.

Adv Mpofu: Okay. Probably... because I'm paraphrasing a view here, yeah. I think maybe in fairness to that question, Chair... dubious in a sense that... and it will be clear now in my next question or two. You'll remember that some of the evidence comes from the “confession”, which was made to Mr Moyane by members of the rogue unit, a Mr De Waal and Lombard. There's already been evidence about that. So I don’t think anyone says that did not happen, but then people they’ll say – okay, well how did you know that that recording was authentic or whatever. So it’s “dubious”, I use that word advisedly, because I don’t think they say it’s unlawful as such. But they probably say the weight, maybe the weight of the information is such that the Public Protector should not have taken it seriously. But it will become clear, but that’s what I mean, Chair, by the questioning of the finding.

Adv Bawa: Sorry, through you, Chair. Adv Mpofu, is that the evidence you referring to?

Adv Mpofu: Pardon?

Adv Bawa: Is that the evidence you referring to? The De Waal and Lombard evidence.

Adv Mpofu: No, I'm making an example. You asked me why did I use the word. Remember I'm paraphrasing what the criticism of the Public Protector’s finding on this topic is. It's much more detailed than what I'm paraphrasing. All I'm saying is that its base that criticism, is that the Public Protector, (a) without talking to anyone from the unit - I think that’s part of that criticism. Two, relying on dubious, questionable, whatever sources of information; came to the conclusion that the operations of the unit were unlawful. And I'm just prefacing it. So it’s not me who says this. I'm trying to paraphrase the criticism of others, which obviously we don’t agree with, so that we can deal with it here. Alright. Anyway... In fact, we don’t even need to go through all this. I'll take you through the judgment itself actually, at the appropriate time, what it says about this particular aspect. But nevertheless, what is common cause is that you relied, madam Public Protector among other things, on the evidence which involved Mr van Rensburg. I think at 5.5.34, this is what you say... sorry, page 93... 5.5.34.

Chairperson: Put your mic on. Public Protector, your mic.

Adv Mkhwebane: Of my affidavit?

Adv Mpofu: No, I'm sorry. Of the report, PP.

Adv Mkhwebane: Okay. Five point?

Adv Mpofu: 5.5.34, page 93.

Adv Mkhwebane: Oh we’ll deal with the conclusions...

Adv Mpofu: No, I'm just kind of... You go jumping to that conclusion to deal with the issue that Adv Bawa is raising. So I'm not doing what I was doing before saying let’s start with the conclusion. I'm just wanting to... because maybe I'm not articulating this the way you articulated it in your report. This is what you say, 5.5.34, “The evidence before me indicates that during June 2007 until November 2007 Mr Pillay and Mr Janse van Rensburg irregularly recruited Mr Helgard Lombard and Mr De Waal and/or authorised Mr Lombard and Mr De Waal to intercept communication within the offices of the DSO...” - that’s the old Scorpions, “...and those of the NPA without an interception direction issued by a designated judge in terms of the Regulation of Interceptions of Communication and Provision of Communication”. So I'm saying that’s you conclusion, that we can’t escape that. But what I was then saying is that that conclusion is then criticised by others for the reasons that I mentioned. Do you understand that?

Adv Mkhwebane: Correct.

Adv Mpofu: Alright. Now if you can then... this one we’ll start from the beginning, not from the end.

Adv Mkhwebane: Okay.

Adv Mpofu: If you go to 5.5.1, Tshepo... that’s page 84, sorry. Just for the record, Chairperson. I've been asked to... because of that issue that I raised, that our information was that at some stage there were fourteen Members, when there’s supposed to be nineteen. I'm just placing it on the record, I'm not raising it.

Chairperson: Let’s proceed, because I'm going to assist you later. Please proceed.

Adv Mpofu: No, I will proceed, and I'll appreciate the assistance...

Chairperson: Thank you.

Adv Mpofu: Alright, we are at... yes, thank you, Tshepo. Alright. So take us through this one. You've heard the exchange between the Chair and I about the relative importance of this section. And so I wanted to maybe “landscape” it for us, as to what materials you used, how you came to the conclusions about the operations, because after all, if this was a “rogue unit”, it is its operations that South Africans out there should be worried about, yeah.

Adv Mkhwebane: Yes, thanks. Just, Chairperson, again, this issue regarding whether the intelligence unit carried out irregular and unlawful operations. And if so, whether such conduct constitutes maladministration. Firstly, the fact before the Public Protector was that this unit, the way it operates, it operates in a way that impacts and affects the characters, the... you know, livelihood, and the way they operate they are not complaint to the law. So that was the focus of the Public Protector, because again, in this instance the facts before me were that when we listened to the audios of the interviews conducted by the former SARS Commissioner Mr Moyane, interviewing these two individuals, Mr Andries van Rensburg and Mr De Waal... In fact, Lombard and Mr De Waal. It was clear that the way this unit was operating was in such a way that it doesn’t comply with the policy of SARS; it doesn’t comply with the law, especially the SARS legislation and the Constitution. And during the investigation it was clear that, again, going back to the fact that my responsibilities were to make sure that I don’t impact on the mandate of SARS. SARS must still continue to do the investigations according to their mandate. But again, when listening to these audios which I think we will have to in a way play a little bit, so that you can hear, but we will deal with them. You'll hear that indeed it was the Commissioner of SARS interviewing these individuals; they spoke about the operations of this unit. And if they were requested by NPA to install these cameras, the kind of information they collated. And they were part of the operations of the unit... and it was called “Project Sunday Evenings”. And where they would then listen, even there are videos which were there. And I must indicate to you, Chairperson, that yes, we’ve captured this information here. Because it’s what was based on the evidence and it’s something which we can submit. There was then another evidence which was there, where there were videos which were showing after the installation of the cameras, what was happening within DSO, because they could watch the happenings and what was transpiring at DSO. Now it will come to the issue which we’re still going to deal with. The issue of being accused of why entertain a matter which has happened two years prior, why I shouldn’t have exercised my discretion to look into that, because of that information which was there and the allegations which were presented to me that the unit is still operational to this day. So that’s what came to our attention, and that’s why we were investigating. And worse, also the kind of equipment which was utilised and how it was utilised without the approval of the judge listening to the communication of individuals. So it was purely based on that.

Adv Mpofu: Yeah. No, that’s fine. If I can take the Public Protector to paragraph 336 of her statement. Just to anchor this leg. There are just a few typos, but I'll point them out when we get there. So for example it says the NPO, instead of the NPA. 336, thank you, Tshepo.

Adv Mkhwebane: “There was also ample evidence that Mr Pillay irregularly instructed and/or permitted a certain Mr Lombard and Mr De Waal to intercept information/communication within the offices of the DSO and the NPA. I attach the uploaded audio recording of the interview between the two of them and the former Commissioner for SARS, Mr Tom Moyana. I am in the process of obtaining an affidavit which will confirm that he indeed participated in that recorded conversation”.

Adv Mpofu: Right. So, Chair, I'm now addressing you... You’ve heard what I've said about this before. Sorry, Chair. I need to refer to the... We have uploaded, Chair, an affidavit of Mr Moyane, which was submitted in the Zondo Commission, which deals with this, Chair, it's a way of trying to circumvent two things. Either we can call Mr Moyane or ask him to make a fresh affidavit, or well, we’re in your hands, but we thought this is the most efficient way of trying to do this with your permission... Where he, as the Public Protector has indicated, there’s an audio, a long audio recording of this interview between Mr Moyane and Mr De Waal and Mr Lombard. It will just waste time to play the whole thing here, but that was uploaded a long time ago. The... what we then did to try and shorten this part of the proceedings, was to secure the old affidavit of Mr Moyane, where that same conversation is now in transcript, in black and white. Which will save Members from having to transcribe it for themselves or for us to have to listen to it now. That's the shortcut, if there’s no objection which we are proposing. But the last point, Chair, that I want to make, is that we’re doing this in terms of the directives. Paragraph 7.2 of the directives of this Committee says, “The Committee may consider affidavits and evidence that have been filed in other proceedings and/or before other bodies, provided that the Evidence Leaders and/or Public Protector shall be permitted to put forward evidence and/or submissions contextualising the affidavits or evidence in question and such is relevant to the Motion before the Committee”. So I think the issue of relevance is clear, because this emanates from the report, and these people’s names are mentioned there, but it’s just a procedural point. And if we read the directive properly, and the party who is proposing the importation of such an affidavit should then explain – be permitted to put forward that evidence and/or submissions contextualising it. So we would like, Chair. It's already uploaded, but I can’t just go into it without passing this procedural step.

Chairperson: Let me check first with the evidence leaders. Adv Bawa, firstly you are aware of this...

Adv Bawa: No, I’m not, Chair. The last occasion when Adv Mpofu sought to rely on these audio recordings, I objected on the basis that the audio recordings were hearsay, was one. And two, the issue was through the witness then and remains the case now, is what verification was done of the audio recordings prior to the reliance thereon in the report. And that was the issue, not the substance of the recordings but the verification done on the recordings prior to it being relied on in the report. Now the issue remains that now, it doesn’t get remedied by an affidavit which is done by one of the people involved in the conversation in whichever year. I presume it’s post the report, Adv Mpofu. The Moyane affidavit was done after the Public Protector issued a report.

Adv Mpofu: Yes, it was the Zondo Commission.

Adv Bawa: So having gone back to the initial ground rules when Adv Mpofu started, about are we relying on information that emerged subsequent to the Public Protector having issued a report and which matters we deal with in the course of that. This affidavit clearly falls in that category. It doesn’t inform the Motion or the charges, because it happened after the fact. Now I know Adv Mpofu is trying to rely on the transcript attached to Mr Moyane’s affidavit in order to save time in having to listen to a recording, but all the Public Protector had at the time was the recording. Now I'm not suggesting that we need to... we accept that she had the recording and if Adv Mpofu wants to point to certain aspects of what was there then so be it, but it still remains unreliable evidence even then - or information. It wasn’t even evidence.

Chairperson: So what are you putting forward?

Adv Bawa: I’m suggesting that if the Chair is minded to want to use the transcript as opposed to the audio, my objections to the admission of it remains the same.

Chairperson: Okay. Let me come back to you, Adv Mpofu.

Adv Mpofu: Yes, Chair. Just in reply. Thank you, Chair. Yes, no... I think Adv Bawa is maybe missing a few points here. She's correct of course that I said when we started, Chair, because I didn’t want to be misunderstood when we were doing the so-called landscaping, that we were not here to appeal or re-run the investigation and so on. That's not what we’re doing. What we’re doing here... and I also disavowed, and I still do, relying on events that might have happened after the fact, for obvious reasons. Because we have to situate the factual complex at a particular point in time. But what I'm doing, Chair, is not to bring up some conversation that happened after the report. The conversation happened before the report, that’s why they are referred to in the report. And the recordings were listened by the Public Protector before she wrote the report, that's why they are referred there. All that has happened is that the... it’s the same as the transcript of the meeting with the inspector-general and all that. If I happened to find it yesterday, I would bring it to you, because it happened before the report was written. It's a fact that I only found it yesterday, is neither here nor there. So that’s really, I think, the point that is being missed here. All I'm doing now is as we’ve done right through. Is to say what... I said we’re all becoming Public Protector’s now. To say what material was before the Public Protector when she did her report. And one of those materials was this recording. The only issue is really how do we then present it to this Committee. Do we present it by going through the Public Protector blow-by-blow what she heard in the audio, or do we play the audio here, or do we do the practical thing we are proposing, which is simply to put the transcript? But again, we can’t just put the transcript. We are anchoring the transcript in a sense that it comes from an affidavit of one of the participants in that conversation. It could have been an affidavit of Mr De Waal or Mr Helgard or whatever. The fact, the only third person in the room was Mr Moyane, and he presents it. So it’s actually a matter of trying to find a way in an inquisitorial process of presenting this. I don’t even want to go into the technicalities about hearsay and what have you, because that’s not at all. And my understanding, Chair, is that when clause 7.2 of the directive was inserted, it was exactly for that, because in court proceedings this would never be allowed, that you bring affidavits and evidence that have been filed in other proceedings, provided the evidence leaders are permitted to put forward. But this was a way to facilitate, otherwise we have to go into the rules of evidence and call judge Zondo to say was this really served before him.

Chairperson: The Public Protector did raise a hand, so I need to listen to her first and then...

Adv Mkhwebane: Chairperson, can I be given a five minutes stretch? I will assist as well... in this.

Chairperson: Okay, that’s fine. We’ll take just five minutes stretch, that’s fine. Thank you.

Adv Mpofu: Thank you, Chair.

[5-minute break]

Chairperson: Five minutes is done... Please close the door. It was five minutes stretch, it was not tea break. Thank you. Thank you, I want us to proceed. Thanks, PP, for letting me there. Adv Bawa?

Adv Bawa: Chair, I initially understood Adv Mpofu to say he was doing this, because he wanted to rely on the transcript. But he has now clarified that he is seeking to rely on the affidavit and the transcript. I don’t also see that the transcript has any authentication to it. I mean, I'm happy to say go through the transcript; I'm less happy about the affidavit, which I haven't really had a chance to look at and where that introduces material subject to the caveat I said to you earlier on, that it wasn’t there. And then say if there is a discrepancy between the transcript and the recording, I would then raise it later just to save time. The issue is the affidavit comes in a particular context...

Chairperson: That’s fine, thanks. I thought you wanted initially to deal with the transcript...

Adv Mpofu: Yes. Chair, I wanted...

Chairperson: So if we proceed in that way, so that you... I think your interest should be on the paths that are relevant to what we’re doing, so that we don’t get side-tracked by everything else that would be in there. Maybe let me hear you out.

Adv Mpofu: Yes, Chair. If you hear me out, I'm trying to make a compromise here. The only reason I wanted to rely on the affidavit, Chair, well is firstly obviously to anchor the transcript. The second reason is that there’s another document there, which is an annexure. And maybe at least, maybe let’s do it step by step, Chair. Let's say we agree on the issue of the transcript, with the proposal. And if I want to use anything other than that, I'll seek a further agreement. And I can... but let me play open cards by saying why I wanted to go further than the transcript. Obviously, there’s a whole lot of evidence in the affidavit about all sorts of things that have nothing to do with you, it’s state capture and what what. So I’m not going to rely on that. But there are parts of the affidavit that talk to the transcript, number one. But there’s another part, where there’s... which is only relevant to this Committee, where there’s... I don’t know what to call it; it’s a complaint, police complaint by Mr Moyane regarding whatever he received from these people. So I do seek to rely on that as well, but we can park whether that’s also... until Adv Bawa has had a look, and if she doesn’t object then we will just indicate. But I won’t go to war with the affidavit itself, because it was just to anchor the transcript.

Chairperson: Okay. I think you should proceed, Adv Mpofu.

Adv Mpofu: Thanks.

Chairperson: We’ll try and manage it together as we go through.

Adv Mpofu: Yes. Thank you.

Adv Bawa: Sorry, Chair. Can I get clarification, proceed on the transcript or proceed on... Do we understand that Adv Mpofu?

Adv Mpofu: Yes, I understand that the only agreement at this stage is about the transcript. I'm saying if we want to expand it to what I've just mentioned, I'll engage with you, so that we don’t waste time. If we agree, we agree. If we don’t, the Chair will rule.

Chairperson: Thank you. Proceed, Adv Mpofu.

Adv Mpofu: Okay. Thank you. Alright, after all that I'm not going to use the transcript right now. I was just referring to the material that was before you, but we will go to the transcript. So all in all... Okay, maybe I should ask you like this. How did you acquire the recordings that lead us to the transcript?

Adv Mkhwebane: Some of the recordings we got from the whistle-blower. And I also wanted to say, Chairperson, before I asked for the five-minute break, that actually even I discussed the matter with Mr Moyane, who confirmed to me that indeed that was the situation, and he has opened a criminal case about the matter.

Adv Mpofu: Yes. Thank you.

Adv Mkhwebane: So I'm just confirming that it was not hearsay, but it was a question of speaking directly with him as well.

Adv Mpofu: That’s fine. Okay, thank you. No, that part is resolved, because I mean, if you called Mr Moyane here really, it would simply for him to say - where it says Tom Moyane, it’s me. I think we’ve resolve that now, at least. Otherwise, he has no other role to play. Okay, right. Now... I then want you to please then take the Committee to what you, without going to the transcript directly for now, what you understood to be the... I'll avoid using the word “rogue”, the unlawful activities or operations of the unit pertaining to the NPA and the Scorpions.

Adv Mkhwebane: What was unlawful was that the issue of bugging the NPA and DSO offices in 2007. And that was done not as a way of following up with the issues of... or tax related issues, or what is within the mandate of SARS. In the information it was that Mr Gerrie Nel approached what Mr van Rensburg was saying, that he had received a telephone call of the personal assistant of Mr Nel that they are requesting a meeting with him and indicated that NPA is having a problem with leaks, and required a system that would help to record that. So Mr van Rensburg indicated that Mr Nel did not enquire where he and Mr Lombard worked, as they never operated on official capacity as SARS officials. Mr van Rensburg however requested that he informs Mr Pillay. So the involvement of Mr Pillay came into the picture. Now Mr Pillay was at SARS, operating at SARS. And Mr Pillay then acceded to Mr Nel's request that they go and install those.

Adv Mpofu: Okay. Sorry to interrupt you, PP... I wanted just a synopsis, but since you are referring to the document. Then let’s refer the Members to... you are now at paragraph 5.5.5.

Adv Mkhwebane: Yes. Chairperson, I was still going to... I was just summarising. I thought we will go through the... but the main issue was that...

Adv Mpofu: Just go to 5.5.3 and let’s start there.

Adv Mkhwebane: Okay, yes. The main issue was that the operations led one to wonder are they operating within their prescripts. Yes, that’s what one was looking at. Yes, and that’s where 5.5.2 it says, “Mr van Rensburg submitted during an interview with the investigators working with Adv Brassey SC, information on the activities of the intelligence unit. The recording of that interview was made available to me as it would assist me in my investigation. In the recording Mr van Rensburg discussed issues relating to, inter alia, the bugging of the NPA and DSO offices in 2007, by the SARS intelligence unit”. So this is how it came about, “Mr van Rensburg confirmed the existence of the unit and indicated that the operations of the unit, at the time he was active within it, were mostly kept undercover to a point were some of its employees did not have office space at SARS. Meetings to discuss current operations underway and to provide briefings to Mr Pillay on current operations where in most cases held on Sundays, either at Mr Pillay’s residence or at a restaurant. The team members termed these meetings as “Project Sunday Evenings”. 5.5.4, “In the recording Mr van Rensburg outlined that, he had received a telephone call from the Personal Assistant of Mr Gerrie Nel, who at the time was a prosecutor at the NPA, requesting a meeting with him. At the meeting Mr Nel indicated that the NPA had been having a problem with leaks and required a system that would record. So “Mr van Rensburg indicated that Mr Nel did not enquire where he and Mr Lombard worked as they never operated on official capacity as SARS officials. Mr van Rensburg did however indicate that he informed Mr Pillay of Mr Nel’s request, which Mr Pillay acceded to”. So “Presentations of a recording system were made to Mr Nel who decided to approve the procurement of the recording system. The system was installed at the NPA after hours in the presence of Mr Nel and/or his Personal Assistant”. “The equipment installed was non-visible and remote meaning that Mr Nel, as the client, would have access to the system from home. Mr Nel was also aware that Mr Lombard would have access to the system for purposes of testing”. So “After a few months, Mr van Rensburg received a call from Mr Pillay who asked how far they were with the installation at the NPA offices and whether they could hear and see inside. Mr Pillay informed Mr van Rensburg that he had authorisation to see if the system can be used to obtain information on the Jackie Selebi case. Nothing was ever documented as they operated a gentlemen’s agreement. Mr van Rensburg then instructed Mr Lombard to record the information on the Jackie Selebi case”. So again, this raised eyebrows – gentlemen's agreement. And this relates to a state institution and the installations which were there, how were they programmed. So it goes back to all those issues, that we should be operating within the prescripts of the law.

Adv Mpofu: Okay. Thank you, alright. Alright, so you indicated the... Okay, maybe let me ask it the other way around. Was there any indication that the alleged bugging of the NPA offices, or even the Scorpions offices, was in pursuit of anything to do with SARS?

Adv Mkhwebane: Not at all, because here they are saying because they had leaks within the NPA. And they wanted to make sure that that is stopped, or they would see what is happening at NPA. Hence my issue that then it raised those questions, what is NPA... Why, I mean if you are SARS, you are investigating illicit trade, tax related matters. Now you have a senior official of SARS allowing something like this to happen at another state institution.

Adv Mpofu: Yes, because in fact, this is the point that we will come to I think when you get to the conclusions that I was making to the Chair when we started, that the rogueness or non-rogueness of the unit is really about this kind of thing. So whether it was chasing tax dodgers as alleged or now it was just like a private army or intelligence force, not accountable to anybody. Now maybe what we should do, Chair, if you can be patient with us, is to go through the next section which is headed information regarding Mr Helgard Lombard and Mr Johann De Waal, because if we do that extensively, as to how... we may not even have to rely on the transcript. So I'll just confirm with the Public Protector later if that comes from the transcripts, and then there will be minimal reference to those. Okay, can you go to 5.5.9 and just read that whole section. And you can pause whenever you want to pause to comment, but we just want to put it on the record.

Adv Mkhwebane: So this one was also another recording, where “Mr Lombard and De Waal submitted during an interview with the former Commissioner of SARS...” so that’s the one where I said I confirmed with Mr Moyane, and Mr Makwakwa was also there, on the unit's activities. So “in the recordings Mr Lombard and De Waal discussed the intelligence unit and certain operations they had participated in during its tenure”. “Mr Lombard, with the assistance of Mr De Waal indicated that they had started in the unit in 2007 with Mr van Rensburg as leader of a few operations”. So “In relation to the bugging of the DSO, Mr Lombard stated that he had received a call from the Scorpions requesting for installation of certain equipment’s at the offices of the DSO”. So he said, “The equipment installed included cameras, microphones, digital video recorder (with routers), alarm systems, encrypted cell phones and biometric access controls”. “After the installation, Mr van Rensburg requested that Mr Lombard listen in on the conversation at the DSO, Mr Lombard requested that Mr van Rensburg obtain and approved section 127”. So I think here it shows that Mr Lombard knew that we should be operating within the law. So and “A couple of days later, Mr van Rensburg informed Mr Lombard that Mr Pillay had received an approved section 127 from the former President, Mr Thabo Mbeki and therefore could begin listening to the conversations of the DSO”.

Adv Mpofu: Okay, let’s pause there.

Adv Mkhwebane: Yes.

Adv Mpofu: We established when we were dealing with the prescripts that... for a shortcut, for you to do some of this kind of interception you need permission from a judge.

Adv Mkhwebane: Correct.

Adv Mpofu: And so then for the information at your disposal was that Mr Pillay then told Mr Lombard, and that also comes from the transcripts, that he had received permission from former President Thabo Mbeki and therefore this was now legal. As to whether you could also get permission from a President, let’s put that aside. But he represented that he had permission from former President Thabo Mbeki.

Adv Mkhwebane: Yes, that’s what he said. And hence when we investigate this is the information we would collate, and then we will have to test it against the legal prescripts. Therefore, when we were checking the prescripts which we had to rely on to test this, what is the approved section 127, but that should be the approval from the... In fact, in terms of that law it’s only the judge which can give a go ahead on that. So that’s what we had to check. But then again, this information, the question is they proceeded whether to go ahead, and we couldn’t even find this approved section 127.

Adv Mpofu: Okay, good. Alright. Let's continue.

Adv Mkhwebane: Then, “Mr Lombard stated that Mr van Rensburg had, as reasons to listen to the conversations of the DSO, stated that Mr Mbeki had been surprised by the arrest of Mr Jackie Selebi. Mr Lombard was therefore tasked to listen for anything that might surprise the President in the future”. So that’s what he said in that recording. And eventually, “Mr Pillay confirmed to Mr Lombard that there had never been authorisation for the listening of conversations at the DSO offices”. So here you see Mr Lombard listened to Mr van Rensburg, the communication was through this person. And this van Rensburg was saying Mr Pillay said let's listen to the communication there and gave the approval for listening and in fact for installation of this system. But now the system ended up listening to something else and then Mr Lombard is saying no, Mr Pillay confirmed. So that information we placed it there, for everyone to see that we’ve considered all, and we were truthful in what was captured in this information.

Adv Mpofu: Okay. Now I keep on bringing you to this just so that we don’t stray on the obvious political issues that are involved in this. From your point of view as a Public Protector who’s looking at the thing dispassionately, the issue then becomes... let’s assume all this is true. Let's assume Mr Pillay was told by Mr Mbeki to bug the NPA, which I doubt... and to listen, Mr Lombard has to listen for anything that might surprise the President in the future to avoid any further surprises from the NPA, as it were. Could that have anything to do with the stated intentions of the unit as a tax invasion busting unit?

Adv Mkhwebane: Not at all. Again, I still repeat that those were the red flags. And the question is, out of all the institutions why do we have to install the cameras. And again, with the approval of the SARS senior manager, Mr Pillay. And if that is done it should have been... Actually, I don't know why Mr Nel approached SARS to do that for them. Because if possibly they wanted to do that, they’ve got their own policies. They should have also advertised, appointed a company properly to do this. So this information is just kept to indicate that this was the information which was out there, and we needed to test it against the available legal prescripts.

Adv Mpofu: Okay. And then from 5.5.16, it would seem therefore that Mr Pillay subsequently owned up that he had been lying, that he never had any authorisation from President Mbeki, and he told Mr Lombard that.

Adv Mkhwebane: Yes. Eventually, Mr Pillay confirmed to Mr Lombard that there had never been authorisation for the listening of conversations at the DSO offices.

Adv Mpofu: Right. Okay, next.

Adv Mkhwebane: Then, “Mr De Waal reiterated the above statements and stated further that he was of the impression that the client (the person who wanted the recordings of conversations at DSO) was the President and/or Mr Gordhan”. So that’s the conclusion of the other person. But Mr De Waal further stated that “there were other instances whereby covert intelligence was used to gather information on certain targets. These included Mandisa Mokoena, Mr Leonard Radebe, a conversation between Mr Glen Agliotti, Paul de Robillard and Yusuf Kajee. These operations, he stated, were for the benefit of SARS and not politically motivated like the bugging of the DSO offices”. So you see this was confirmed by Mr De Waal, who understood that the others it was more related to tax and the operations of SARS. But this one of the DSO was not at all the mandate of SARS.

Adv Mpofu: Okay, good. Alright. So that’s then the information you have. And of course, as usual, you have to then put all these things to Mr Pillay, Mr Magashula, Mr Gordhan. So that then they can... to the extent that they are involved, well maybe not Mr Magashula, because he was not involved in this, but the other two. And so what were the responses and that would take us to 5.5.19.

Adv Mkhwebane: So again, we requested an affidavit from Mr Gordhan. And here we brought the allegations, all the issues relating to the operations of this institution. And Mr Gordhan “denied that the unit operated in an unlawful manner and if so, the members did so without his knowledge and approval”. So that’s what he said, which is what we considered. We captured here, “Mr Gordhan further stated, specifically to the allegations of the bugging of the DSO and NPA offices that he was not aware, nor was he involved in any activities relating to the alleged bugging of the offices of the NPA and DSO”.

Adv Mpofu: Okay. Now, thank you. So it looked from that response of Mr Gordhan, it looks like it was taking what we lawyers call the escape clause. He was not saying all these activities did not happen or whether they happened, but he was saying if it did happen it was without his knowledge, and he was not aware.

Adv Mkhwebane: That’s what his response was.

Adv Mpofu: Fair enough. Now from the point of view of an accounting officer, what would be the implications of that? Let's assume for a minute that it’s true that he was not aware.

Adv Mkhwebane: It goes back to the issue of oversight and management or accountability, because surely if the Mr Pillay who reports to him was conducting all these operations and should report to the supervisor or somebody they report to. And I mean, taking into consideration that he wanted to discuss with Mr Pillay on the appointment – the recruitment of these individuals. Again, taking into account that he in the beginning requested that SSA be funded to assist them. Acknowledging that they can’t do the penetrative and intrusive investigation. And understanding what the powers of or the investigation mandate of SARS. So surely, he might have not been told. But I think if you have your executive meetings you are briefed on everything. Surely he would have asked what is the status of this unit. So unfortunately, as the executive officer – accounting officer, the buck stops with you.

Adv Mpofu: Alright. But apart from that, to be fair to Mr Gordhan again, apart from that official position, was it... and to distinguish Mr Gordhan maybe from Mr Pillay in this particular aspect. Was it you case or your information or your finding or anything of the sort, that Mr Gordhan himself participated in the “rogue” activities? As opposed to the issue of the establishment of the unit, and signing on the personnel, which we have established as a matter of fact.

Adv Mkhwebane: Not at all. I mean, there was no way or there’s no information which I had which says that Mr Gordhan was participating in the operations of this unit.

Adv Mpofu: Right, okay. Which then takes us to Mr Pillay who seems to have been... have his hands dirty there, if those transcripts are to be believed.

Adv Mkhwebane: Yes.

Adv Mpofu: Now what was his response? Firstly, did he say there’s no... He didn’t know this Lombard and De Waal or that they were not, you know, people he ever worked with.

Adv Mkhwebane: In his affidavit he denied that the unit was involved in any unlawful and illegal activities on the part of SARS or its officials. And he never mentioned whether he doesn’t know or he knows Mr van Rensburg... Mr Lombard and Mr De Waal, yes. Now again, here he then decided to say, no, he further stated that “he had been indicted for the allegations relating to the bugging of the DSO and NPA offices and therefore maintained his constitutionally guaranteed rights as an accused person as set out in section 35 of the Constitution”.

Adv Mpofu: Okay.

Adv Mkhwebane: So then, with that we couldn’t then get any further information from him on these. In fact, when he wrote to us originally... when we go to the findings and their responses to section 7(9), we’ll also have to hear what was his response.

Adv Mpofu: Okay. Well, yes. That's in America they call it “taking the Fifth”, which is a reference to the Fifth Amendment. So... and this as I understand it then, this goes back to the question of the non-calling of witnesses. You wanted Mr Pillay to be called here to finish his evidence.

Adv Mkhwebane: Correct.

Adv Mpofu: And particularly because, let’s assume then at that point he was taking the technical point that he was actually facing charges and therefore could not assist.

Adv Mkhwebane: Yes.

Adv Mpofu: He’s no longer facing those charges now.

Adv Mkhwebane: Correct.

Adv Mpofu: So maybe he may have been able to assist us in this Committee. But what is your comment on the fact that he was allowed... yeah, allowed not to come back. He said he was available for one day in September 2022, and that seems to be like that applies for the rest of his life.

Adv Mkhwebane: I would plead with the Committee to call him back, so that he can clarify this point. Because now whatever I'm saying here, again, will stand... the allegations or what is said by Mr van Rensburg and Mr Lombard and De Waal. So it would help that he can also then tell us and clarify this information to the Committee. That by us incorporating this you are no longer then facing the criminal case, I think it was withdrawn; then can you just take us through this issue.

Adv Mpofu: Thank you, Chair. I've just asked for that document to be found, which is the, I think the charge sheet. But if there’s no objection before we find it, you would be aware that we previously put it up, I think I don’t know whether it was in the cross-examination of Mr van Loggerenberg or Mr Pillay, but that Mr van Loggerenberg and Mr Pillay were criminally charged, together with Mr van Rensburg as a result of all of this.

Adv Mkhwebane: Correct.

Adv Mpofu: Yes. And that, Chair, takes me to the issue that I had parked, but maybe let me try and avoid it because in fairness Ms Bawa might not have had a look at that particular annexure. So I'll just refer to it, without going into... it’s the annexure, the first annexure to Mr Moyane’s affidavit. It's called... what you put up earlier was the actual charge sheet, I think. This one says the statement of complaint, which then brought... someone goes to the police station presumably before there’s a charge sheet. So it’s the “statement of complaint in order to satisfy my legal obligation to report allegations of corruption in compliance with PRECCA” ...

Adv Mkhwebane: Okay... Tshepo?

Adv Mpofu: Oh yeah, it’s page 929...

Adv Mkhwebane: Of?

Adv Mpofu: Of the attachments to the Moyana affidavit. I don't want to get to the body of the thing, because I must still negotiate with Ms Bawa.

Adv Bawa: Chair? Sorry...

Chairperson: Yes, Adv Bawa?

Adv Bawa: We had an arrangement about the transcript. Now you’re going to another annexure attached to the affidavit.

Adv Mpofu: Yes. Alright, okay. I'm saying that’s why I don’t want to get into the body of the thing. That's exactly why I wanted the admission of this whole affidavit, because I don’t want to have to do this in a piecemeal fashion. Alright, okay. It's fine, we’ll do it some other time. But to your knowledge are you aware that... you may not have known who laid the complaint or whatever, but you’re aware that in this Committee we have previously put up the charge sheet of those gentlemen? Mr...

Adv Mkhwebane: I relied on that. We got the charge sheet through our investigations. And the information, I think it was part of the evidence which we’ve considered. It's just that we must get in the report where did I refer to that evidence.

Adv Mpofu: Yeah. Well, here it’s even the part that we’ve just read now refers to it. Mr Pillay told you that he’s facing charges. Mr Pillay told you that he’s facing charges for... for bugging the DSO and NPA offices.

Adv Mkhwebane: Correct.

Adv Mpofu: And therefore, he couldn’t answer you, because he was invoking section 35 of the Constitution.

Adv Mkhwebane: That’s correct. But I think, Chairperson... If I'm not mistaken, there was a time where we uploaded that charge sheet, and it was even showing the pictures of the equipment.

Adv Mpofu: Yes. No, we did. I don’t think... there’s no controversy about that. Sorry, I'm just finding it...

Adv Bawa: Sorry, Chair?

Adv Mpofu: The document was signed by and Adv Pretorius, it’s part of the record. What is new, the only thing that seems to be controversial is the complaint, the police complaint that led to that charge. So I'm leaving out the complaint now and talking about what is non-controversial, which is the charge sheet.

Chairperson: Thank you.

Adv Bawa: Adv Mpofu, I think it’s part of the rule 53 record and we do have it, the charge sheet.

Adv Mkhwebane: Yes.

Adv Bawa: The charge sheet is part of... to my recollection it is part of the rule 53 record, and it is here.

Adv Mpofu: Yeah, that’s exactly what I'm saying...

Chairperson: Okay, go ahead. That's where you were going?

Adv Mpofu: Yes, that’s where I was going, Chair. I was saying that that one is not... I thought what it being contested is whether I can refer to the police complaint that led to that charge sheet. So I'm parking that for now. And really, the only point I want to make out of this is a very small one, it’s not... I have no interest in the charges or non-charges of these people. And it is simply the fact that, you know, apart from all these other people - Kroon, Sikhakhane, Nugent, what have you, that the NPA at least at some point also saw enough evidence for it to charge these people. I know that they were later withdrawn, but that at some point there was a view that there was sufficient prima facie evidence of criminal activity.

Adv Mkhwebane: Correct.

Adv Mpofu: Okay. Alright. And so, as I say we don’t even have to put it up, because that’s the only fact I wanted us to establish. Just as yet another independent body that took that view. Alright.

Adv Mkhwebane: That’s correct.

Adv Mpofu: Good. Now, okay. With all of that, let’s go to 5.5.27, if you can just jump. Sorry, I don’t know if you answered my question about whether Mr Pillay said... apart from taking this technical point about being charged, whether he said he did not have any dealings with Mr Lombard or Mr De Waal? If you remember.

Adv Mkhwebane: I don’t think he did, but we’ll have to check his response or his affidavit. I don’t think so, because if he did, we would have incorporated it here.

Adv Mpofu: Yes. Okay, good. So let’s go to 5.5.27.

Adv Mkhwebane: Yes. This was what was in the file of a complaint by Mr Manyike, who confirmed that Mr Lombard stated, “that the unit were instructed to track and tag Mr Leonard Radebe’s vehicle because he constantly visited Mr Jacob Zuma. This information was found by tapping and intercepting Mr Radebe’s phone”.

Adv Mpofu: Okay. So, alright. Did you follow up on this? Who was this Mr Radebe? It looks like someone who was usually phoned or was phoning former President. Was there any follow-up on this particular information?

Adv Mkhwebane: There was no follow-up, but the main thing was checking whether the operations were in compliance with the SARS operations. Because remember, the other one said they bugged the NPA offices, DSO. And the other one now is saying this Mr Radebe’s vehicles was tapped and the interception of his communication. Again, if you do that you need to have the approval of the judge and it should be relating to your mandate as SARS. But we never met with Mr Radebe. That's the information we’ve put out there, and that’s the information we had to also include in the section 7(9) notice, which we will have to also go through and see how was it responded to.

Adv Mpofu: Right. Okay and for what it’s worth, did you then find that any of these people had any of the requisite legal right to do this, in the form of for example, the judge's order or permission?

Adv Mkhwebane: The investigation then uncovered that those operations if you take the evidence before us then, and if we go to 5.5.33 of the report. That's where we said the provisions of section 3 of the Communications Act, provides that “communication may only be intercepted by authorised persons in execution of an interception direction”. So, “An interception direction is an authorisation issued by a designated judge, on application, to an applicant”. So this, Chairperson, again, repeating over and over the operations of this unit, because if you then operate out of the law. Normally... some people would say, no, this is not a banana republic, because anyone can do as they please. So we shouldn’t encourage something like that. Hence, we are there as Public Protector to make sure that when a complaint is lodged, we investigate, we put all the evidence and information which is before us and checking that if that has been done is it within the prescripts of that institution. Even here, it was purely checking whether by intercepting and listening to people's conversations – yes, as SARS you can do that, but it should be for your mandate. But again, you should comply to the law, as said by the Commissioner Nugent as well. That they can do that, but they must do that within limits.

Adv Mpofu: Right, okay. That then takes us to the conclusions, which you reached. And you’ve already read the first one, when I took you there to clarify the issue of the transcript. That was 5.5.34, so we don’t have to read that again. So can we start at 5.5.35?

Adv Mkhwebane: Yes. “The conduct of the intelligence unit in intercepting private communications of individuals seriously violated their rights to privacy. The unlawful interception using state institutions and resources to fight personal and political battles amounts to abuse of power”. So that is still within the mandate of the Public Protector, to investigate the issue of abuse of power. And further, “it is highly unfeasible that the unit’s officials operated in isolation of their principles. The unit was managed by Mr Pillay who at the time reported to Mr Gordhan”. So again, in public institutions the way we operate is that anything you do as an official, that unit, you need to then escalate and report your operations. Possibly they also had meetings where there’s an allegation up there, that these operations were reported at this Project Sunday or at Mr Pillay’s house. So that was the information, which was mentioned. And that information, again, was included or I think it was brought to their attention. We’ll have to check what was their response on that.

Adv Mpofu: Alright. Now I want to know then if at any other stage Mr Pillay dealt with or squarely, yeah, dealt with the issue of his being implicated directly as the mastermind or whatever role you want to say he played in the bugging of the NPA saga and claiming that he had the permission of the President and all that. I know that at that stage he effectively avoided that question, because it was... subject of pending charges. Has he ever denied the... in some detail, even by saying he doesn’t know these people or they’re just making it up or they don’t like him or whatever. Has he ever dealt with it squarely?

Adv Mkhwebane: In the report there’s nowhere where we captured it that he denied it. In fact, he denied the fact that the unit operated illegally. He didn’t deny that - I don’t even know these people, and I never indicated that so and so operated this unit as per what they are saying. So I think, Chairperson, we will have to also then go through, but SC will take us through that or... because it was going to help as well, for me to... for us to just show that these are the affidavits, these are their direct responses and what they actually said in their responses. Because remember, I'm accused of not taking their information into consideration.

Adv Mpofu: Yeah. Alright. Okay, Chair. I was just looking against the judge's findings. Alright, I think we’ve dealt with four of these, yeah. Can we, before we move to the qualification issue, just maybe also deal with this thing of - remember the first basis for alleging that you are biased is this issue of jurisdiction. I don’t quite understand how that works here, but I suppose the allegation is that because you investigated something that is more than two years old, therefore you were overzealous, or you were chasing after these people or something like that. But it’s not quite clear, but I think we need to deal with it, because it’s put up actually as the first ground for your alleged bias.

Adv Mkhwebane: Thank you, Chairperson. I think, I hope we’ll then go into that in various... well, in details, because that is the issue which led to being accused of being biased or targeting Mr Gordhan. And yes, indeed for us to go through the charge. And the allegations that I... yeah, I was targeting him.

Adv Mpofu: Sorry, let me just read it out. This is what the judge’s say... your bias is warranted because of this...

Adv Mkhwebane: Is that paragraph 390?

Adv Mpofu: 290, Roman one...

Adv Mkhwebane: Roman figure one?

Adv Mpofu: Yes.

Adv Mkhwebane: Oh, I wanted to say, because in the investigation as well, how we conducted the investigation, sending the subpoena. I think we will also have to read the sections besides section 7(4). But section 7(1) or Roman figure (i) – how do we determine the investigation, the kind of criticism, media reporting. And I think we’ll still come to the issue of the attorney - Malatji Attorneys and how they treated all these investigations, the issue of the YouTube, what led to that. So I think also to bring issues into perspective. So the investigating report, you say I must read it or you?

Adv Mpofu: No, I can read it. They say, “The investigation and the report fell outside of the jurisdiction of the Public Protector as it related to events dating back to 2009/2010. No exceptional circumstances have been presented by the Public Protector justifying the investigation after an extraordinary lapse of time. Also, despite the fact that the previous incumbent had already, in 2014, received a complaint about the alleged unlawful establishment of the unit but elected not to investigate the complaint, the Public Protector nonetheless proceeded with the investigation”. So the last part I think has been clarified. That this is just the... the 2014 thing was about HR and in any event the intelligence unit part was being investigated by the IGI. I think we’ve dealt with that. So I wanted us to deal with the first part, which is your bias based on the fact that you exceeded your jurisdiction, I think that’s what it says.

Adv Mkhwebane: This is not correct, because in the report, when we were conducting the investigation there were letters which were written by the attorney of Mr Gordhan, where he indicated that...

Adv Mpofu: Sorry, PP. Can you lift up the...

Chairperson: Sit closer to the mic.

Adv Mkhwebane: Okay. It’s not true and the matter was brought to his attention, during preliminary investigation. And the issue of special circumstances, which I propose we read what section 6(9) says. Because special circumstances are determined by the Public Protector, it’s at the discretion of the Public Protector. And if there’s a complaint that this incident is still ongoing, people’s lives are still under threat or people are being monitored without their knowledge, without the approval by the judge. Chairperson, I also said I saw the video, which I was still trying to trace, which I didn’t include here, but the issue was if the unit is still... those cameras which were installed in 2014 or 2015, they were still there, they were still operational. And then the complainant even indicated that there is an incident where one of the acting directors of public prosecutions, it was Dr Ramaite, yes - I think was saying the publication of what he did in office, in the media, was as a result of what was captured by those cameras. So, and the indication that some information which was sent to me, which we will also have to show, because there were some emails which were shown here, blown out of proportion again, that I'm saying Mr Gordhan is a threat to democracy – are things which were sent to my email, which I would copy from either Twitter or my private email, then send it to the investigators to take note of. So others were even saying so and so was killed driving to this particular place. So that’s all the information which was coming forward. Now the question as a responsible Public Protector and investigating the... going deeper into the credibility and correctness of the information. And the fact that we cannot have a situation where, yes, it might happen to the DSO, it might happen to whoever; but is it fine that it should continue to happen where you are living your life, information is being recorded and tracked on your life. You are not being investigated... because, yes, they are within their rights if they’re doing the issues of tax to do that, but let them get the approval of the judge. One day if you’d want to take them to task, they’ve got that approval and they must tell you what they investigating about you. Not an issue where you are being investigated, you are being followed, you are being tapped and listened to, that’s a violation of your constitutional right and your right to privacy. Because now they will record whatever you are doing in your private space. Yes, possibly if people are doing anything in the office which is not right. But then, at the end of the day you are now faced with this information, you are being recorded or you are being kind of... because, there were allegations that others were blackmailed. You know, because now they’ve recorded you, they have this information about you, Adv Mpofu, and you were in this room and in the hotel and you were doing the following. Now when you are supposed to do anything they just say - we have that information, don’t forget. So it was just making sure that this if it’s happening... Hence my discretion was let’s look into this, and let’s reflect on the issue and let’s stop it from happening. Let's make sure that people who should be doing that and using that intrusive equipment are SSA. But secondly, if it’s SARS, let them also inform you. Because you remember yesterday, I read what the SARS Act, or even earlier this morning, what does it say about investigation. So you need to be told, you need to be given the outcome.

Chairperson: Okay. We’ll take a ten-minutes tea, from that point.

Adv Mpofu: Thanks, Chair.

Chairperson: Can we pause for that? Then we’ll come back to the qualifications, when we come back.

Adv Mpofu: Yes.

[Tea break]

Chairperson: Welcome back to our last session of the day. Hope you enjoyed your tea. Adv Mpofu, over to you on your qualifications or any finishings.

Adv Mpofu: Yes. Thank you, Chair. I need.. If you just allow me, Chair, to go back to the issue that I was busy with. Just one or two questions. PP, this section 6(9) point, I just want you to confirm that. We will deal with it, because it’s a bit of a legal argument, really, about the interpretation of section 6(9). And it’s... the main issue being whether that is a... that two-year period referred to in that section is meant to be a restriction to the Public Protector or not, because some people read it as saying once the complaint is two-years old then you are barred from getting into it. You read it, and I for that matter read it to say that even if a complaint is more than two years, you have discretion as a Public Protector depending on a whole lot of things, the importance of the issue, whether it’s ongoing as you’ve said and so on. So one can say the jury is still out on that, whether it’s a permissive section or a restrictive one. But those are just the legal niceties. What I want you to confirm is the fact that that question of the interpretation of section 6(9), at least at the time of this report, when you were doing this report. Had it been settled by the courts, or even decided by the courts, let alone settled?

Adv Mkhwebane: It was not. It was still the belief, or I also took it on the fact of it. Hence I said, Chairperson, if you read section 6(9), yes, you’ll argue, it will be the legal argument. But I think if we can go there, for one to just read for the public and the Committee Members to also understand how it read. And if you apply the discretion, because it’s very clear... well, when you argue you’ll have to show them the provisions of the Public Service Commission Act, I think that’s the one, if you can check it, if I'm not mistaken - where it’s very restrictive. It says once that happens, you don’t even entertain.

Adv Mpofu: Okay. Maybe the convenient place then, just because we’ve been dealing with the judgment...

Adv Mkhwebane: It’s in the report.

Adv Mpofu: It's in the report, but it’s also in the judgment. Okay, we can do it from the report. Let's see, it might be easier to do that.

Adv Mkhwebane: In the report... at the beginning... Why we accepted this, because I think we were asked to indicate why we are investigating. And by then, page 9 was clarifying what are the special circumstances which one was considering.

Adv Mpofu: Yes. Okay, but yeah. The section is not... Okay, let’s go to the judgment. Paragraph 20, Tshepo.

Adv Mkhwebane: Okay, paragraph 20?

Adv Mpofu: Yes, 20. In any event, while she’s putting it up. Assuming whatever the interpretation of section 6(9) is, can it be applied if the transgression is ongoing?

Adv Mkhwebane: Definitely.

Adv Mpofu: Or should it be applied when something, at least, is still... is ongoing as you do it. In other words, the two years... when is the two years supposed to run? Isn’t it at the end of the occurrence?

Adv Mkhwebane: Can you repeat yourself?

Adv Mpofu: Can section 6(9) be used against the Public Protector when the transgression in question was ongoing when the investigation was conducted?

Adv Mkhwebane: No. Hence, I'm saying at the time I was reading section 6(9) as it’s captured. And maybe allow me to say I would still want us to go to that page 10 of the report, because it will show you why we continued to investigate. Section 6(9) as well, Chairperson, is at the core of the ombudsman, of the Public Protector. You know, when I go there actually, well it’s at the... it’s very close to my heart. And you know, I'm so passionate about it, in a sense that I don’t want to say I'm emotional about it, because I might end up being emotional. But the fact of the matter is you find a Gogo Dlamini, you’ll find somebody who has been trying, knocking on all the doors. And at the end of the day they’re failing, they are being failed by the system, by all the other offices. And at the end of the day, they then approach the Public Protector. When they come to the Public Protector... now as Public Protector, you don’t use your discretion. You just tell the person, no it’s a complainant, because apparently currently is what is happening, tell us they do you think they are special circumstances. Special circumstances must be determined by you as the Public Protector. It's in your soft skills, because you need to understand that this person is suffering. Hence, even in this case of the so-called unit, violating the laws, people rights. And I've mentioned before tea, if you are then recorded, your life is in danger. That was what I was told is happening, hence the investigation and go deeper into investigation. I think there were some comments – no, you can’t say you are conducting preliminary investigation. And you go ahead, you approach the implicated parties. Because if you listen to that recording as well, where we had a meeting with Mr Gordhan relating to the Pillay matter, which we still going to deal with, but the attitude was why do we investigate. It means even if any person from the street just approaches you, you’ll just investigate. That's part of investigation, because preliminary investigation is included in investigation. So this one it also then allows you as Public Protector to use your discretion, not to close your door – where must this person go? Because they can’t afford to litigate, they don’t have the resources. Our services are free. So I think that discretion, it’s just the issue which I said it was giving this institution that human touch. That that issue of saying forget about the legalities, because unfortunately this organisation has been turned into something like a court now. And at the end of the day using your discretion was to say, but what are the circumstances surrounding this person. And we’ve mentioned what are the circumstances we will continue to investigate. So can I go ahead at read section 6(9)?

Adv Mpofu: Yes. It’s on paragraph 20.

Adv Mkhwebane: So it says... yeah, for the Members of the Committee and the public. “Except where the Public Protector in special circumstances, within his or her discretion...” - a discretion is something which you can’t touch, it’s a soft skill for as far as I understood it; “... so permits, a complaint or matter referred to the Public Protector shall not be entertained unless it is reported to the Public Protector, within two years from the occurrence of the incident or matter concerned”. So it gives me an opportunity to use my discretion and in special circumstances. So that’s how I dealt with this matter. And that’s why, Chairperson, I will ask that we go to also page 10 of the report, where during our investigation we then also captured what those special circumstances are saying. And again, taking into consideration the fact that we were asked what are those special circumstances, and the lesson was, okay, we’ll have to find a way of indicating that these are the issues we’ll look into when we are investigating. Because again, we are this institution now which must make sure irrespective of the fact that we need to protect, but on the other hand we need to also be compliant.

Adv Mpofu: Okay. Now, maybe let me ask it like this. The... alluding to the question of what is known as throwing the baby with the bathwater. Let's assume for a minute that the establishment of the unit, which it is common cause would have happened even on these facts. Let's even peg it at the time of the memorandum of Mr Manuel, 2007. So you can’t debate that’s more than two years before this event.

Adv Mkhwebane: Correct.

Adv Mpofu: Let’s assume you could exclude that. Now what about the other issues? If the recruitment issue - again, maybe let’s even assume that that happened earlier, but if those people were still working there, if the equipment was still there and if the activities of the unit, “rogue” for the purposes of this example, were continuing. Then would it be fair to then exclude the whole report? Maybe rather exclude then the establishment issue, if it’s too old. But the operations issue, which is ongoing could be enquired into. Isn’t that a better way of dealing with this?

Adv Mkhwebane: Yes, it’s a better way. Because actually, that’s... firstly, the main reason that if they... we needed to investigate to check whether indeed the activities of that unit are still being carried out. And also, if then there’s this information that besides the fact that they’ve been established to deal with tax compliance, legislation and conduct the investigations under the SARS Act. But now, if there’s evidence or information before you showing that they not doing that within the laws and the operations are contrary to how they’ve been established then those allegations should be followed up. Hence, I'm saying we ended including what were the special circumstances or develop kind of some pointers to guide the investigators to also know that if the matter is still ongoing, and whether the seriousness of the allegations, whether the outcome of the investigation into the complaint can rectify the systemic problems in state administration. And remember, if we have to deal with the root causes, and also people who are recognising this institution genuinely, they would then learn from what we investigated and implement. So that was part of the intention. Hence, I'm saying page 9 of the report captures those things.

Adv Mpofu: Yes, okay. Can we go to paragraph 23 of the judgment, because I want to go to the actual, the real punch line of this jurisdiction issue, which is not about these legal technicalities here. Just paragraph 23 of the judgment... yes, okay read it out.

Adv Mkhwebane: Yes. This is exactly what happened, “Upon the failure to elicit a response from the Public Protector, Minister Gordhan, through his attorney, pursued the matter further and again requested the Public Protector to identify the ‘special circumstances’ permitting her to investigate the complaints against Minister Gordhan. The Public Protector responded on 24 April 2019 by stating that she had been reliably informed that: the surveillance equipment illegally acquired at astronomical costs, is still being utilised to intercept communications between people by the unit which was not completely disbanded. So this was a matter of special interest as public funds are still being used for illegal purposes”. So this is the continuation and indeed it’s captured here.

Adv Mpofu: Yes. And then, 24?

Adv Mkhwebane: “It would appear from the above explanation that this was a reference to the complaint regarding the purchase of equipment by SARS. The explanation, however, failed to explain the exercise of her discretion over the remaining issues raised in the complaints”.

Adv Mpofu: Yes... and this is the point I was raising, whether if some of the issues could be hit by 6(9), let’s assume for the purposes of this that they are; would then the entire report, even the ongoing activities have to be discarded? But maybe...

Adv Mkhwebane: It can’t, because I think it went further where they also saw the other factors which we take into consideration as special circumstances. So it means to them that’s not justifiable.

Adv Mpofu: Yes. And then let’s go to 34.

Adv Mkhwebane: Of the judgment... “In conclusion, the Public Protector’s decision to conduct the investigation was unlawful because there were no special circumstances present. The review should succeed in its entirety on this ground alone. However, if we are wrong in this regard and the Public Protector had the necessary jurisdiction to investigate the complaints, we will nonetheless consider the review”.

Adv Mpofu: Right. Now, so what that means for the people who don’t read judgments all the time, that the judges were therefore opening the door to say – well, it did not have jurisdiction but maybe we are wrong about that. And therefore, we’ll go to the merits of the complaint. Now under those circumstances when they themselves leave the door open to maybe we’re wrong on this. Can you use that as the basis now, later 290 you now say you’re biased, because you have no jurisdiction? What happened to maybe we are wrong? And that’s really, I think the gist again for this commission, rather for this Committee. The most important thing is not so much whether the thing was two years late or you got the law wrong or whatever, the question is whether that lack of jurisdiction can be a basis for your impeachment? Can be a basis for saying, okay, it was two years you still did it, and therefore what; therefore, you are not fit for your job? That's the connection. Can you understand if that connection is valid or not?

Adv Mkhwebane: That doesn’t make sense, in the sense that paragraph 34 is saying this, they are also acknowledging, well, they are concluding that it was unlawful, there were no special circumstances. Having read the report and what we considered. But they are saying should the review succeed in its entirety on that ground alone, however if we are wrong, they are also acknowledging. And then go into paragraph 290, Chairperson, and then say I was biased, or I was wrong. So that’s why I'm saying for you as the Committee, you shouldn’t just take the judgment and just conclude like that. Because they themselves were not sure. And from my side, I was dealing with this matter openly, honestly, and yeah.

Chairperson: Thanks for that. Sorry to disturb your flow. But as long as you understand that that’s not our duty to just follow the judgments, if it was our duty, we would have long finished this work. From the panel, there would not be such a long process. Section 194 charges us to investigate and apply our minds. So, I don’t want there to be a perception that ours is to rely. The judges are important, but we are not a Committee that rubberstamps. And you did indicate that we’re not here to reinvestigate, to relitigate those judgments. So, the balance of that understanding is very important.

Adv Mpofu: Thank you, Chair. I think that’s right. And unfortunately, our duty then is to... because if you don’t do anything then the judgment will stand. So I think that we’re on the same page, yeah. Thank you, Chair. And the point really is this, and which is what we’ll argue at the end, but I just want your comment, PP. The judges say they – the judges, may be getting the law wrong on this section 6(9). But the same judges in the same breath say if you get the law wrong on section 6(9), that means you’re biased, but if they get it wrong, they’re just getting it wrong. Now, yeah, so that’s the thing. How does it work? And this relates to an issue that we will deal with in the morning, about the relationship between protecting the independence of the Public Protector and the independence of the courts. It's a whole discussion, yeah. But what I'm asking you, is how do you feel by being judged by a different standard? When you get it wrong, it’s impeachable, but when a judge gets it wrong... well, another, the appeal court might fix it, but they go back to work the following day.

Adv Mkhwebane: Yes, I think, hence it’s... well on the face of it, it’s very much unfair, because indeed we’ve shown here the judgments where it was shown by Judge Madlanga, Chief Justice Mogoeng, the issue of magnifying the mistakes of the Public Protector. I mean, you know, sitting here for the past eight/nine months being vilified, being labelled this person, actually even before then I don’t know the law, and all those. I mean, hence judges they do falter, they have an opportunity for their judgments to be considered at a higher court – the issue of error of law on appeal. And when they have lost those cases, no one will come and hold this particular process. So with me, now they’re holding this particular process. And unfortunately, Chairperson, because most of the way the Mazzone Motion was crafted and those charges, it relates a lot to the judgments and the language they’ve used there against me. So I'm just saying... and this point is very critical, because it shows with them as well, that they might have made a mistake, they were wrong, but they go and find against me that I was biased. So with this process we are trying to show you that. I mean, when you consider these judgments as well, I'm glad that you’re saying no they will be there but then we are dealing with now the facts. And as well, I said to South Africans hear me out, I was doing this work, this is what I was doing. But again, I’m also not perfect. Do I have to receive such harsh treatment? Such humiliation? I don’t know.

Chairperson: There is a point I wanted to make before you proceed, Adv Mpofu. Taking from what the PP has just said, because I would encourage you to invest and spend more of your time in explaining yourselves here to the Committee, other than a lot of time being invested in those judgments, because it’s us who must be persuaded as the Committee. But it’s in the nature of the Motion that you have those judgments, so there’s no way out of it. So that is well understood. But also, there’s only one body that has to check the fitness to hold office of the Public Protector, for any of those holders, it’s the National Assembly. None of the courts in whatever judgment, they would never come close to dealing with the fitness to hold office, that's our role. So I think if we understand that lay of the land, it’s going to help so that... this is part of a jurisprudence development on its own. Thank you.

Adv Mpofu: Thank you, Chair. I couldn’t agree more, Chair. And when we do the oral argument, I can assure you we’ll spend the first hour or two just dealing with that issue, because it’s key to this. As you say it’s inevitable. Unfortunately the Motion is not based on the PP went to work and stabbed all the workers there; it’s based on the judgments. And therefore, we have to navigate that. In fact, according to the independent panel, they say that all the charges, except for the charge of Mr Samuel’s affidavit of February 2020 are based on judgments. And that’s the quagmire we find ourselves in. And that’s why, Chair, when I was doing the landscaping, I made that point clear. Because I didn’t want to ever be understood to be addressing the judgments per se. We only address the judgments insofar as we want to address you. When I say “you”, I mean the Committee, yeah. Thank you. No, I think that clarity is important, and we will deal with it in legal argument. But the... you know, maybe the most graphic way of illustrating this point in the way of a question to you, Public Protector, is for us to understand that one of the... In fact, now it’s even more relevant, because it’s time to appoint a new Public Protector. It is that one of the qualifications for being a Public Protector, apart from being admitted as an advocate or practicing as an advocate and all the others. Actually, I think the first one is you qualify if you’re a high court judge.

Adv Mkhwebane: Correct.

Adv Mpofu: And indeed, even when you applied there were judges that had applied. I think one of the judges that was shortlisted was Judge Desai, I think he withdrew, because of that. So now what this means then the situation we’re in, is that judge Desai protected by section 165. Let's assume it was he, not you, who was appointed. Protected by 165 of the Constitution for independence, which means that if he gets the law wrong, he gets the law wrong. Judges get the law wrong every day. But suddenly if he had become the Public Protector, the situation changes. If he gets the law wrong, then it’s an influence of bias and it’s a ground for removal. Now as a country this is something we have to grapple with, it’s not as easy as I'm simplifying it now. So I'm saying that... as you are on the wrong side of that example, what should we do about ensuring that whatever the intention of the constitutional founders - mothers and fathers were... for fashioning the protections for both of these institutions? That that balance should be kept to ensure the integrity, the dignity, the independence, the effectiveness of the Public Protector.

Adv Mkhwebane: They should be... because remember the Public Protector is a constitutional institution, not only the Public Protector. I think what needs to be learnt from this process is that the rules and these proceedings, the section 194 of the Constitution, as well as comparing section 181 of the Constitution and 165 of the Constitution, the independence of these institutions, the performance of their duties without fear or favour. And they are doing their work and they should be supported by any other organ of state. And it’s very clear that no person must interfere with the operations of the Chapter 9 institution, and similar issues applicable to the judges. So, I think, here I've mentioned yesterday or last week, where I said... I think even yesterday, I said there are a number of judgments which have been set aside by the higher courts of those judges. I'm still repeating, you can go and check how many judgments possibly in this matter we are busy with, where the judges found against me. And now the judges are acknowledging and saying suppose we are wrong. And you’ll check and ask yourself – they managed to do this, now their judgments are set aside, some of them at the Supreme Court of Appeal or even Constitutional Court. And there are also “damning” comments from their other colleagues, but are they subjected to what is ongoing? Because I think as a country, we should play the ball and not the man, I normally say that. Whatever we are doing we are setting a precedent which is very bad. Because now if we do this against this Public Protector, what about the other Public Protector? What about Auditor-General? What about in future then there will be an administration which will say judges... you are also now; we have these impeachment proceedings for you – you found the following people guilty; somebody has been in jail for 20 years for something that they’ve never did, just because of the mistake and the error of application of law by that particular judge. So you... can you imagine how gross is that compared to what I'm accused of?

Adv Mpofu: Yeah. Okay. And maybe, Chair, again, I'm mindful that we not here at the stage of legal argument. But I'd like to, like yesterday I said there’s “homework”. This is the other homework, and this homework means it’s not for tomorrow; it’s for when we argue. The one is this, and really this is not a simple issue. If you go to section 165(4) of the Constitution, Chairperson, you’ll find that it says the following...

Chairperson: What section?

Adv Mpofu: 164... Subsection 4. It’s actually uncanny, if I had a way I would put the both of them there together. But you’ll see the point I wish to make, Chair, which will develop when we argue.

Chairperson: You have... you can repeat this. You have taken us through this, because there’s a link between this and 181.

Adv Mpofu: Absolutely.

Chairperson: So you have... but please go ahead.

Adv Mpofu: Yes, but let me make it in this context, yes. It’s not just a link, they literally are identical. Yeah, that's the point really I want to make. So 164(4), says “Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”. Then go to 181(4), they are like identical twins... 181(3), sorry, “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions” - that would be the Public Protector. In other words, the constitutional mothers and fathers saw it enough to give the exact same protection, literally word for word, for the judiciary and for the institutions... not just the Public Protector, the institutions protecting democracy. And it’s always difficult to make this point, because the cynics then say – oh, the Public Protector thinks she’s a judge, you know. But that’s not the point that is being made. The point is that the constitutional protection is the same. So, and then I think that takes us then, Chair, to this question of why is then the mistake of one impeachable, but the mistake of the other not? But we will develop that point further. Chair, can I therefore... I’ll start with the qualifications issue, which is not long, when we resume. I think we could break at this point. Thank you.

Chairperson: No problem. I think it’s now 17:00, this is our closing time. So you are correct there, we will pause there and then resume...

Adv Mpofu: Yes, Chair. I'll give... In fact, I was hoping, I wanted to give you the three topics that I will deal with, so that people can prepare properly.

Chairperson: There are two. So it can’t be three now. So it’s qualifications and those general...

Adv Mpofu: Yes, on the report.

Chairperson: So that’s the second... So what is the third one?

Adv Mpofu: No, that’s just on the report, Chair. Then we have the... remember we still owe you maybe three or four of those from those nine points of the charges. I think we’ve tackled about four or five of them. And as I say, I'm trying to deal with both, because if you do them sequentially it will be many issues, but now we’ve already killed some of the others.

Chairperson: Okay. Alright.

Adv Mpofu: But I'll do a quick roadmap tomorrow morning.

Chairperson: That’s fine. Then let me just therefore before we close, go back to my promise to assist Adv Mpofu and your team, on the issue that you wanted to off ramp about. So you know when there’s a bus and somebody wants to go to... station when we’ve just started. So I refused that off ramp. And you wanted that off ramp on the basis of your doubt about the status of the meeting, and I promised that I will clarify the matter, because I immediately connected with what your concern was. And I don’t blame you. I want to start up so that you maybe in future would be in one, because you were concerned about... which is my concern too, and should be everybody’s concern about the meeting, about what I think you thought you saw as a shrinking meeting. Firstly, let me explain that. And this is something you will notice every day we start. Our quorum arrangements in the National Assembly, we’ve made it to be kind of, call it hybrid or two-way. So we have a number that we use to start the meeting. We also have got a second number for decision-making in a meeting. So in a Committee of 36, if we are to get into making decisions, minimum we need 19 and above. But to start a meeting, as I always do every morning, I never start a meeting when we are less than 12 or 13 Members. So firstly, you want to share those two. It’s done not only in this Committee; it’s done across in various other committees. You might not know that. Hence, I wouldn’t want to blame you for wanting to raise the issues. I would have indicated to you and you also gave me the number later on, that at the time when we came back 14:01pm, then we certainly did not have 19 Members present in the meeting. You gave the number, but there would have been even before you raised that, I would have known how many Members, it was even less than 14, because you giving us even two more. So there were about 12 Members at the time, just before you raised that; 12 including myself would have been present in the meeting. And therefore, that plays in with the space of starting a meeting and continuing with a meeting. And then, because your concern was... okay, yeah. That's a second one which I must address, about... because in a letter to you, we requested that the Public Protector – we would prefer that she be present here physically. So in your own way, you’ve kind of thrown that thing... in the process. Just to explain that this week has been a very difficult week, because this is the last week of the National Assembly before it starts what we call recess - constituency week. So from next week we are on constituency week, in the same way we were on constituency week when we started the Enquiry on 11 July. All other committees were not... were on holiday, we don’t have that, we’re not going to have that as this Committee. So many committees are on what we call oversight, either in different provinces. So Members are logged in from the spaces where they are. That's one of the reasons why you don’t see many of them physically here, especially this week. Certainly, the situation is going to change from next week in that regard, because we’re dealing also with other issues of national importance. In the last meeting of our Committee, I would have raised a number of risks that we’re facing in this process, including that risk that would have come to you in writing, but I'm not there on that one. We can speak about that either tomorrow or any other time.

Adv Mpofu: There’s only tomorrow...

Chairperson: I don’t know about that... We have a scheduled programme, but that programme depends on some of those risks mitigated. So your point there is taken. So I would have raised with Members that one of the risks is then for fitting – for example even their constituency period – on the basis that there’s work that needs to happen. But members of the public, yourselves, must be ensured that Members are continuously monitored. So that we never get into a space where we’re compromising in that regard. At least in that way you will be the first to say that that Chairperson never starts a meeting if it is less than, because we’ve done that live, even if it helped others who would walk in late. And I won't mention names. But monitoring those numbers, also the important thing is that everything else that we do that is happening, all Members would have an access to. So for example, you had a situation where I am aware that there would be either Members not being able to consistently attend these meetings. I mean, I was making a light joke this morning, with General Holomisa, before the start of the meeting. And I was saying to him in Xhosa... you are in and out of this meeting. His argument was he’s dealing with issues of national importance. And so... but he would have been in the morning. So you can imagine if you have Members of the ATM not here, Members of the EFF not here, Members of AIC not here and some others come in; or even if all of them are here and at the time when we come back, they are outside – how a meeting could be disrupted, the proceedings, if you were to follow physically where they are sitting and so on. But I don’t want to elaborate. I hope the clarity I'm giving would help the issue that you are raising. And as I said I'm not blaming you, but I thought I did not want to give that explanation at that point. As I always do, I never want to disrupt the flow, but the flow was being disrupted by the initiator. So I had to protect yourself against you, in that regard. So I thought I must just make that explanation on record in relation to that. Thank you very much, Hon Members. And thank you, Adv Mpofu.

Adv Mpofu: No. Thank you, Chair. I was also trying to protect you against yourself in running a meeting that is not correct...

Chairperson: Thank you.

Adv Mpofu: Thank you, Chair, for that explanation. We'll have to look into it. And the other issue, Chair, I don’t have time now. Maybe we’ll address it tomorrow. But as you know there is that other serious issue.

Chairperson: A little space tomorrow to attend to some of those issues.

Adv Mpofu: Yes, okay. Thank you, Chair.

Chairperson: Thank you. Thank you, colleagues, everybody else. The meeting is adjourned. We start tomorrow at ten. Thank you.