PP Inquiry day 68: Adv Busisiwe Mkhwebane

Meeting report

[PMG draft report]

Chairperson: Colleagues, it's now ten minutes past ten. We are ready to start. We were ready to start at 10, myself as the chair, the Public Protector, Adv Dali Mpofu for the legal team, members of the media, the support staff and members of the public, were all here at ten. We were waiting for the Members, so the Members have just allowed us to start ten minutes late, just to put it on record. So we're now ready to start. On this day, the last day of March, it is day six of the testimony with Adv Mkhwebane. Again, I want to welcome all of you to our meeting. We're continuing today as Adv Mpofu has laid the pillars for this charge which we're going to focus on. We're left with the qualifications as well as what he terms, the general issues, which I'm not able to pin down. But I will not punish him for that. So these are the two areas that unless I'm missing something as we delve into the unit charge. So I want to immediately having started ten minutes late into their time to hand over back to you Adv Mpofu. Thank you.

Adv Mpofu: Thank you, Chairperson. Well, I can see that you want to restrict my scope. But I did remind…

Chairperson: I am aware of those nine areas where we covered five of them or…

Adv Mpofu: Yes, yes. Okay, that was the only complaint but more on a positive note, the approach that I'm going to take actually is going to continue to deal with them simultaneously. And I will, for lack of a better word, defer the qualification issue to the end. Because what I want to do is remember the qualification issue features on the six but it also features on the nine. So when I do it, then we know we're done.

Chairperson: That’s in order.

Adv Mpofu: Thank you, Chair. Chair, okay, I know you're allergic to issues as you put it the other day, but unfortunately, that's…

Chairperson: Just to indicate that we'll have a slot for those. So the issues…

Adv Mpofu: Yes, when?

Chairperson: We're looking at after lunch, just after lunch.

Adv Mpofu: Yes. Thank you. No, thank you. Thank you, Chair. Let me just check with the Public Protector because she asked me to raise the issue one of the issues now. So probably that I don't want to decide this with the Chair. Are you okay with…

Adv Mkhwebane: Good morning Chairperson, Members, evidence leaders and everyone. Thank you so much Chairperson. I think it was going to have to be raised in the beginning whilst you still have a lot of members because it relates to a very serious issue regarding the issue of the legal fees; but in the responses, yeah.

Chairperson: I'm aware of that. Let's keep them as part of that package so that we can deal with them later. I want to ensure that we have the floor, I will not forget they will come to that.

Adv Mpofu: Thank you. Okay. Well, I'm saying okay that means 'agree'. Let's do as …

Chairperson: I'm aware of the protest as it was.

Adv Mpofu: It’s noted. All right. Thank you, Chairperson. Let me put it this way, our aim, and I don't think we're going to achieve it, was to try and finish the first statement. In other words, not only to cover the issues that you've raised, but to dispose of the full first statement so that we can have only the second statement outstanding. But I can assure you that even if you don't achieve them, 100%, we will be very close to achieving that. It's just better to have a natural break at a particular point. Okay. As I've already indicated, I've come up with a method that might even move us quicker by trying to start first with the outstanding issues on list of nine. So that when we do the qualifications issue, then we will be basically wrapping up both lists. And that is made possible by the fact that the outstanding issues on the list, some of them can be dealt with really quickly and for reasons that I will explain now. Just to remind the Chair that under nine we had the issue of jurisdiction. Remember that one of the grounds for bias was alleged to be the fact that the point we dealt with last yesterday that the PP accident the two-year thing. Yes. So that issue has been dealt with. The second one that we've dealt with is the issue about Sikhakhane report which is widely discredited. There's just one loose end as it contains a reference to the KPMG report, but that will be quick. The third one that we have dealt with, of course, extensively even with other witnesses, is the issue about her having not seen the IGI report. So that that thing is, has been exhausted in different ways. And then there was the issue about so called misleading Parliament around the Gupta issue. We've also dealt with it when we were doing the other six issues. So what is left in that list is…but let me start with the quick ones. Public Protector this, you'll remember that, and I'm starting with this because it's almost related to the jurisdiction issue and also to something that we raised around CR17 regarding the Code. Remember that one of the grounds upon which Judge Parker and the others made that overall finding of bias/dishonesty and so on, was that you had allegedly attacked Judge Potterill, correct?

Adv Mkhwebane: Right.

Adv Mpofu: Now, this actually is related to the previous point, remember I made the point about the thing what McClung CJ [YouTube 35:44], the magnification and the failure to do by some in the judiciary to do unto others as they would like to be done to them.

Adv Mkhwebane: That's correct.

Adv Mpofu: Now, this one is quite a strange one, because in a nutshell…Well, firstly, let's start with the innocent part. This issue is clearly related to the confusion between the 2000 the 2007 Code, which we dealt with extensively under the heading of CR 17. So we won't go there, we won't even put them up. Everyone knows what we're talking about, correct?

Adv Mkhwebane: Correct.

Adv Mpofu: And it's about this perennial confusion about whether it's wilful or wilful and inadvertent or wilful or inadvertent, that seems to have afflicted everyone which including the President, even at some stage, the Constitutional Court. You and, perhaps to some extent, some of your investigators, but I think we now know where it comes from, right?

Adv Mkhwebane: And that's right.

Adv Mpofu: Now with that benefit, and in fairness, it's a benefit that the committee has over everyone else. I think when the judges made their comment; they were unaware of the confusion. The President was obviously not aware, the Constitutional Court was not aware, you're not aware, but at least now if there's one thing the committee has contributed is that the mix up has been cleared. Okay. Now…

Adv Mkhwebane: I think it helps a lot. Because now if we have fair reporting in all the spheres like the mainstream media, your legal briefing, they can now report correctly and not sensationalising issues. It will help even all the lawyers so that they can understand that this confusion has been cleared.

Adv Nazreen Bawa: Adv Mpofu, just so that we are on the same page when you talk about the mix-up and confusion. Are we in agreement that 2000 Code was the law and that the 2007 Code was not the law?

Adv Mpofu: Thanks Chair. Yes, that's exactly what I think has been cleared here that is indisputable. What I'm referring to is the fact that the Constitutional Court, the Public Protector, the President, to some extent as we'll show at some time, and as I said, the investigators – clearly there was a misapprehension. I don't think any of those people was doing it just for some nefarious purpose, especially the Constitutional Court.

Adv Mkhwebane: I think we can start with the former Public Protector as well.

Adv Mpofu: Oh, yes. And of course, the former Public Protector applied it in the Nkandla case which is what had led to the Constitutional Court applying it as well. Yes, that's correct. And as I said, all of those people, including the former Public Protector, were victims of some confusion. I don't know where it came from and I don't think it's important for us to trace where it came from, but it just got perpetuated there. But I'm saying Public Protector, and you're quite right. I mean, this whatever comes out of this process, at least, that's one contribution that we would have made, which is because we then had to drill into it, and I think we were able to identify it even if you didn't identify its source. Now with that background, knowing what we now all know. Obviously, if anyone, whether the incumbent or the next Public Protector or whatever, fell back into that confusion, then they would only have themselves to blame because it has now been clarified.

Adv Mkhwebane: All Right.

Adv Mpofu: And indeed your office and you in particular, since those occurrences, has now been applying the correct Code, and we have demonstrated that in some examples, I can't remember which one…

Adv Mkhwebane: The Phala Phala…

Adv Mpofu: Oh, yes. In the Phala Phala investigation, the 2000 Code that Adv Bawa refers to was being used as the basis. But let's put all that aside. What you were accused of, let's go to paragraph 58 of the judgment chairperson.

Adv Mkhwebane: Which page is it?

Adv Mpofu: Paragraph 58 of the judgment.

Adv Mkhwebane: I'm saying the page.

Adv Mpofu: Page 4034, the big ones.

Adv Mpofu: Have you got it?

Adv Mkhwebane: No, the small page of the judgment.

Adv Mpofu: 19.

Adv Mkhwebane: Okay, thank you, yeah. All right.

Adv Mpofu: Okay, I won’t read the full thing, let me just read out, as I say by now, everyone will be able to recognise this. It says that “what compounds the Public Protector’s misdirection is that she then makes a complete about-turn by departing from her report and now argues that an ‘inadvertent or mistaken misrepresentation violates the Executive Ethics Code’”. And then it Codes the paragraph where you refer to the ethics Code in the Potterill Summary of the ethics Code issue. I won’t read that out. And then paragraph 59 says that “Potterill J, with reference to the expressing wording employed in the Executive Ethics Code thus held the view that what is required is that the misleading statement must have been wilfully and that an innocent mistake will therefore not fall short of the provisions of section 2.3(a)” and so on. And then 60 is where the criticism against you is then levelled. They say that she even goes as far as to accuse the learned Judge “a gross misinterpretation of…Code” and of “deliberately omitting words” from the Code.

Adv Mkhwebane: I see that part, yes.

Adv Mpofu: And then it quotes your affidavit, the same confusion about wilfully and inadvertent and so on. On paragraph 61, again they say to claim Potterill deliberately omitting the words inadvertently misled or misled from the actual Code is astonishing, besides being a Public Protector, Adv Mkhwebane is an officer of this court and owes a duty to treat the courts with the necessary decorum, and so on. At the bottom, it states that “this clearly held the possibility of misleading the court”. The previous sentence is important because that's where it's now alleged that this confusion was deliberate on your part. What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath when she ought to have known about the falsity thereof. I think that's the punch. This clearly held a possibility of misleading the court. This is conduct unbecoming of an advocate and officer this court. She owes Judge Potterill an apology. The Registrar of this Division is requested to send a copy of this judgment to the Legal Practice Council. So effectively because of this mistake, that everyone since your predecessor has been committing, you are now supposed to be sent to the Legal Practice Council. Now the point I want to make is this, Chairperson, so that we don't spend too much time on this. You will remember Public Protector that Judge Jafta, for the majority, of course, had made a similar accusation against you.

Adv Mkhwebane: Correct.

Adv Mpofu: Yes. I think the only difference is that, ironically, while you are accusing the judge of taking out the word inadvertently, Judge Jafta accused you of putting word in. But it's clear now that both of you are wrong. Both him and you effectively were suffering from the confusion that was spoken about, correct.

Adv Mkhwebane: That's correct.

Adv Mpofu: Yes. Now, here's the thing.

Adv Mkhwebane: Maybe let me just clarify that.

Adv Mpofu: Yes, yes, of course.

Adv Mkhwebane: Judge Potterill used the 2000 Code as you've read it. On my side, I used the 2007 Code, and indeed, Coded it as is. Indeed, when I read the judgment, I thought, why only use wilfully and I think you will see, I indicated to a person in the Bosasa report, where we were using where Mr Motta (YouTube 47:36) used the 2000 but mixing it, and I had to respond and say no, use the 2007 Code, because there was still that confusion. Yes, I agree that it was done under that understanding.

Adv Mpofu: Yeah, yes. And don't get me wrong, I'm not saying it was the exact same thing. As I say it was almost two sides of the same coin. But all I'm saying is that all of it emanated from this confusion between the 2000 and 2007 Code.

Adv Mkhwebane: Correct.

Adv Mpofu: Now this goes back to the issue that we closed with yesterday about and about what I said about Justice Madlanga’s issue about the magnification of your mistakes, and the refusal to do to you as people who would like to be done to them. Is it correct?

Adv Mkhwebane: Correct.

Adv Mpofu: And the issue is this, and I want you to comment in your own words. Why is it that a judge can, for good reasons, without any malice, attribute to you the act of deliberately inserting words, but when…

Adv Mkhwebane: Of creating my own Codes to suit the fact.

Adv Mpofu: Even worse, yes. But when you say about a judge, still labouring under the same confusion, or generally affecting everyone, you say the judge deliberately omitting the word, as I say, it's two sides of the same accusation if you like. But in the case of the judges, actually ten of them, who made that mistake, that's fine. But when that same mistake is now made by you, it's a falsity issue “ought to have known about the falsity thereof, it helps hold the possibility of misleading the court. Conduct is unbecoming of an advocate an officer of this court… owes the judges an apology. Registrar is requested to send a copy of the judgment to the Legal Practice Council for consideration.” Can you just comment on that inconsistency or incongruency in judging practically the same thing?

Adv Mkhwebane: And, you know, it's what I was referring to, yesterday, that it's so unfortunate that sometimes when it comes to me, as the Public Protector, a lot of things and a number of things changed. And I could pick up that whatever I do is just actually blown out of proportion. And definitely, in this particular instance, also with the narration, it's unfortunate that sometimes some, and I've always been saying that, judges will just go with what is being reported out there. And as I indicated, you know, I was reading some article with Legal Brief, somebody shared that article. And it's unfortunate that a lot of lawyers, a lot of possibly judges they read because they should be reporting about cases and whatever. Is it necessary for them then to as well sensationalise, you know, to sensationalise, you know Mkhwebane who is represented by Mpofu who also represented Zuma and putting in factional issues. Stay away from that. And unfortunately, then they have this perpetuation which when judges read such things, I'm not saying all of them, they then take it as a truth, because they think this is how things are. So this was not my intention. And if judges were objective, they were supposed to read the Code which I have mentioned in my affidavit and compared to the Code which Judge Potterill has referred to, and objectively say, I mentioned or I indicated that she might have removed something or omitted it advertently or inadvertently. That was a genuine capturing of the Code as is. So I think judges should have sit back and reflected it and said, okay, Mkhwebane, you have this Code, because it was attached in 2007, you relied on it. Potterill, because Mr Gordhan is also relying on the 2000 Code, so you know, there's also a lot of, for me, what I've seen is that the choreographing which I can also honestly say that you find sometimes a minister or somebody mentioning or former judges having that platform in the mainstream media because they are given that platform commenting about Mkhwebane the way she doesn't know the law, the way she’s so rogue, and that is taken as if it's like that instead of a judge. Because for me, when you are legally trained, objectivity is key because you need to listen to both sides of the story and also when you are a judge, then you have all the records before you. But now, this way of capturing it in my affidavit, I was also said no, Judge Potterill you cannot mention that because I know this Code and it was a genuine, genuine response, but now I'm dealt with like the way I'm dealt with. So and these comments, unfortunately, they were taken directly. You know how this choreography is sometimes, it's from this member of the executive, or from this litigate into their affidavit into media into a judgment. Now a number of them, if you can analyse and read Hon Mazzone’s motion, is a similar (YouTube 55:17) thing. And the comments by judges, falsity, dishonesty, and now this opportunity, Chairperson, as you mentioned yesterday, thank you that you understand that, for me to prove myself that when I was doing it then, it was just purely because the law before me, the Code before me was saying this. And now when you come and mention something else, I'm like, why is she mentioning the following? And all of us are fallible. I think Justice Madlanga in this matter, also, when it was taken to the Constitutional Court in this way. And even the three judges or others were saying, yes, judges were also fallible, do unto others as you'd want to return to. So I can go on and on and on, because it's very painful for me to be subjected to this and everyone just ganging up.

Adv Mpofu: No, that's, well, it's, yeah, it's how it works. It's called manufactured consent. But that's a story for another day. So this ground, that you say it's a similar thing, starts with Mr Gordhan who puts this spin onto the issue in his affidavit, then it gets imbibed, and disputed in the legal argument, then it gets reflected in a judgment like this one, and then that's it. And all of it then finds itself into the impeachment motion of Ms Mazzone, which is supposed to be binding to Parliament. There's nothing Parliament can do about it, and off she goes. But anyway, hopefully, at least this process will break the chain. Alright. Now, when it comes to what Madlanga J (YouTube 57:45) in the SARS case called, and I am paraphrasing, the almost automatic knee jerk or fashionable imposition of personal costs against you by judges, particularly in the Gauteng High Court, what he called the disturbing frequency of that happening and the consequential weakening of the Public Protector office irrespective of the incomers. What can you propose that this committee – for what it's worth because as it happens you also account to Parliament – can do, if it agrees with Justice (YouTube 58:47)‘s unanimous Constitutional Court's analysis amendment?

Adv Mkhwebane: Well, it's the similar, I think you mentioned it in the context that we're dealing with the Pretoria High Court. All the matters which we've litigated, and again, Chairperson, the litigants having to litigate through that particular court and as defending the matters and opposing because we want firstly to assist the court. Secondly, because we would want to make sure that the mandate of the Public Protector is not impacted, and we are able to do our work without fear, favour and independence. Now that judgment also says to you as Members of Parliament that you are sitting here representing the public and the people, how do you make sure that the legislation which you have crafted are to the advantage and to the benefit of the people or the masses which you represent? So unfortunately, then, issues of personal costs, comments like this on the person of the Public Protector, because then it also reflects on the investigators who are doing the work. They are, they might say they are dealing with me as the incumbent, and we've shown them some of the judgments but one Public Protector, it's a different judgment, another Public Protector is a different judgment. So I think that impacts a lot on the proceedings which they are setting and forget that currently we are a generation which will have to make sure that our generation and generations to come are not subjected to this confusion. Unfortunately, Chairperson, I will say this, I've said it before, unfortunately, the system, the way it operates, it will use any gap which they find and to use us to be continuously oppressing and continuously impacting, or creating a situation where that constitutional gift of an institution is not serving the masses. But the status quo remains, those who have money, those who have capital, they will continue to litigate through the courts, and they will leave the people hopeless, and not having anyone to assist. So unfortunately, that's how it's happening. So one being this institution, trying to empower the public, and not allow abuse of power and not allow those who are in power to abuse the system, their resources, and be the law unto themselves by not complying to whatever law. So it was just intentionally done to improve. But now, when they say personnel cost, what does it do to me? What does it do to my family? What does it do to my successor and even other Chapter Nine heads because there was an instance where we discuss this FISD and others say, but if one was even working ICASA say, then there's a lot of litigations because that space as well. Now if you stick to the policy, they will take you to court, and they will even burden you with personnel costs which is totally wrong. And maybe if that can be turned around by another administration and we also subject judges to the same process, I don't know whether they would like it done to them. Because it's not right. I mean, or any member of the police, the mass and everyone who does their work as a public servant, and then when you do any mistake or something, then always you must pay from your pocket, which is totally wrong. And this goes back then to the issue of the constitutional democracy which was speaking about. I think, as Members of Parliament, which possibly currently we've started debating about to check, is it really benefiting the masses? Is it really assisting in this situation we're facing as a country?

Adv Mpofu: Yes. And now linking to that phenomenon, and as I say this, I don’t know what Parliament can do about it, if anything, but I suppose ultimately it is South Africans out there who must resolve these questions or decide if they want to have a Public Protector or not. And if they do, how it must be protected. But the…Chairperson, you'll forgive me, I know that I've read this before, but I think this is quite an important part of what we're dealing with which is what was called that in the CR 17 judgment by Mogoeng CJ is the heading is the magnification of the Public Protector’s errors, the magnification of the Public Protector’s errors. And I just want to pick up on something that you have just said now where he says that the following wisdom laden words of caution by Madlanga J encapsulate the concern I have about the treatment of matters involving the Public Protector Adv Mkhwebane, particularly her findings and recommendations or remedial steps. Although the context was different, the message of principle is just as opposite as telling in all other cases. Madlanga J said, “there appears to be a developing trend of seeking personnel costs orders, in most, if not all matters involving the Public Protector. Courts must be wary not to fall into the trap of thinking that the Public Protector is faking automatic personnel costs awards, whether inadvertently or otherwise, the high court's judgment in the EFF v Gordhan matter and in that instant matter, are instances where the High Court fell into that trap. And they said, “I voiced those words of caution because of the disturbing frequency and regularity of applications for and awards of personnel cost orders against the Public Protector. What is particularly disturbing is that it is clear that the applications and awards are not always justified”. And then now, Mogoeng CJ speaking for himself now says, “there is indeed a disturbing tendency by some of us to presumably without intending undue harm or injustice and duly magnify virtually every error of the Public Protector, real or mistakenly perceived. This is quite surprising, because judges, with more experience than practitioners before the elevation to the bench, and with more years of services, the ten-year minimum requirement as an advocate for the mere fact of being a judge, regardless of how long to be appointable as a Public Protector, have committed similar or more serious errors and we're not as harsh on them, or should I say on ourselves, as rightly so”. Then he makes that example about himself that I won't go into. Then he says 201, Chairperson, “without any basis, in fact…” and sorry, let me just pause here. Chairperson, this is particularly more important because this relates to a case that's before this committee, the case of Commissioner for SARS v the Public Protector. You remember the one in the Mazzone motion, it only relates to the high court judgment, but we all accepted that we will incorporate the constitutional court judgment. He says, and that's probably I in that case, probably the most insulting and scathing remarks were made against the Public Protector and if we had not appealed that case, those would be… I'm sure the Mazzone motion then almost look better than it does. Fortunately, the Constitutional Court reversed it. He then says…Justice Mogoeng, “without any basis in law, Mabuse J, that's the judge from the lower court, concluded and Commissioner for SARS v Public Protector that the Public Protector had a “proclivity to operate out of the bounds of the law” and “a deep rooted recalcitrance of accepting advice from senior or junior counsel and this was cited as proof of her unreasonable, arbitrary and malefic the conduct. He went on to other punitive costs against her in her personal capacity, a shocking and most unjust decision under the circumstances”. What all of this means is that is that the manner and extent which judges and magistrates criticise litigants, legal practitioners and witnesses should be a mirror image of the same measure of criticism that they would find acceptable under comparable circumstances where it's to be made meted out to them by their colleagues, practitioners or the public. We must therefore do to others as we would have others do to us. Now, I think where the issue that we're discussing now, the criticism, you can decide the judge and the judge is criticised you but it's the judge’s attitude is the mirror image of the statement of criticism they would find acceptable under comparable circumstances where it's to be meted out to them by their colleagues. And then, about the real issue now, which is the two Codes, then that said, I'm also concerned about any notion that she somehow amended the Code without authority…

Adv Bawa: Chair?

Chairperson: Just pause, Adv Mpofu.

Adv Bawa: I just like to press on the record, you've read the several times into the paragraph and on each occasion you've missed paragraph 202.

Adv Mpofu: Paragraph?

Adv Bawa: You slipped from paragraph 201 to 203.

Adv Mpofu: Okay. Alright, I can read whole judgment if you want. And as for your first part, you don't have to play on record what I've just said a few minutes ago, which is that the Chair must bear with me because I've read it before.

Adv Bawa: No, I'm placing on the record that you've read it several times before and on each occasion, you've skipped paragraph 202.

Adv Mpofu: So what are you suggesting? That I'm doing it deliberately?

Adv Bawa: Perhaps you should read paragraph 202.

Adv Mpofu: Yeah, I'll read it or you can read it when it's your turn. Actually I'm not going to read it unless if you're suggesting that I'm doing it for dishonest purposes.

Adv Bawa: We'll get an opportunity to argue this.

Ad Mpofu: Well, then don't take it now. Alright, I'm not going to read out. Let's go to 203. He says, and this is the reason I'm jumping to that, is because this is the one that deals directly with the issue of the Code. He says, “That said, I'm also concerned about any notion that she somehow amended the Code without authority. I think hers was more of giving a wrong meaning to a legal instrument than amending it”. Anyway, I think we're covered. But maybe let me indulge my learned friend by reading 202. This is where it says “there can be no doubt that the Public Protector was wrong in certain respects. For that, she deserves to be dealt with appropriately. And it is for this reason that I have to reiterate my support for Jafta J's assertion that she went overboard by making supervisory order against the police, the National Prosecuting Authority and Parliament”. That's a different matter. “It was wrong of her to conclude that the President deliberately misled parliament to use wilful and inadvertent interchangeably when the two are mutually exclusive. The same applies to aspects of her remedial action alluded to above that manifest some overzealousness”. Okay, well, I don't see how this actually helps the prosecution. Because what Justice Mogoeng is saying here is exactly what was saying that it was wrong to use the 2007 Code. Everyone knows that. That's not what this inquiry is about. It is not whether it was right or wrong; it is whether the use of that Code was done with an intention to target certain people, or as an honest mistake that everyone else was making. And unfortunately, that point is missed miserably by the evidence leaders. But that's the very point that he's making. And even in the CIEX judgment, where Justice Mogoeng and Justice Goliath say that you are being blamed wrongly, there are two or three criticisms which they make, of course, some of them you actually considered by not opposing a certain matter. That's not the issue. The issue is not that advocate Mkhwebane is an angel who is infallible, who does not make mistakes like you and I. The issue is that where she makes mistakes like all of us, the same measure of criticism that you would find acceptable under comparable circumstances where it to be meted out against you, must be used. That is the subtle, maybe too subtle message, that is missed.

Chairperson: Don’t be tempted to get into it and…

Adv Mpofu: I know, Chairperson. I just don't like to be falsely accused of not reading things that are actually helpful to me. But anyway, that's fine. Let's let that pass. So Chairperson in sum, we've dealt with the issue of the Code and the issue of Judge Potterill. And then we're left with one that should even be shorter than that which is the rogue unit. We've dealt with the fact that the rogue unit narrative was not invented by you. I think we don't have to go there. But in the…

Adv Mkhwebane: Chairperson?

Chairperson: just pause…

Adv Mkhwebane: Yes, I think I know that yeah, yes. There was a comment and you then didn't give me an opportunity to...

Adv Mpofu: The question, yes, the…

Adv Mkhwebane: The comment, yes, exactly that. Again, going back to the issue that the comment made in my affidavit, I think you linked it to the other matter of Mabuse J as well, the issue of apparently not listening to and the proclivity and all those. So the main thing here, Chairperson, trying to just present my case, or my side of the story, is that the investigations conducted by investigators under my guidance, not removing myself from that, used that Code. And, honestly, when the matter was done, believing that we had the 2007 Code, believing that we are using the correct Code. And I think when we were defending the matter with the assistance of my legal team, because in each affidavit, I think you've also then now signed several affidavits Chairperson and you will see that in paragraph two or three of that affidavit, it will say any other thing or which I have put there at the advice of my legal team. Well, you unfortunately, possibly signed a few affidavits, I've signed a number of affidavits because you find yourself having to go through affidavits, you have to go through report, section seven, nine and everything. So I think the main thing is that all that happened, there was no malice. There was no intention to as well to behave in a certain way against Judge Potterill. And I think there was an instance where she even used a language, which was unbecoming in one of the matters, I launched the complaint with the JSC, which I never got a response. And in with this one of Judge Jafta, because I was saying to them, I've tried to correct the decision but they are still continuing that I'm lodging a complaint with the JSC. They have responded, “No, we won't entertain that”. But again, this forum also helps to those who would want to hear, to those who, well, history has recorded now for the generations to come because I believe whatever we do now, it will come back and bite us. Besides the issue of doing to serve to others as you would want, the issue is that history and our generations to come must learn from these mistakes which we are doing and must learn from how we behave and treat others and what are we planting in society because it might have not happened to them who are trying to inflict this pain to me and my family, but it could also happen to their children and their generation. So I think this process is helping so much and those quotations, they will go down correctly. And I think we are helping each other. I think the evidence leader says well, they are here to help, not to prosecute, not to judge, but they are here to help the committee and as well, when they say read this other one. I think it's with the intention of helping, not with the intention of saying no she's wrong or prejudging the matter. I think that will help a lot for all of us because this is a first of its kind. And everyone who's listening is recorded accordingly.

Adv Mpofu: Yeah, yes. Thank you. Yeah, that's very generous of you. Now, what I was then saying, and sorry for sort of after that exchange, we didn't give you an opportunity as a witness to respond. But, yes, as I was saying now that we'll move to the issue of the fifth ground, cited by Justice (YouTube 1:20:57) and the others. And I said it had two legs, the first leg we've exhausted about the rogue units term, I think, sufficiently. Incidentally, Mr Van Loggerenberg himself when he wrote a letter to you about the allegedly defamatory use of those words had attached their speech in which you actually had used the word so called rogue unit. So I think that's that matter is dead and buried here. But the other part of that was the reference which you made in the meeting with the IGI to Monster where it's also articulated in a strange way, but this is what Judge Baqwa (YouTube 1:22:05) says about it. At 29V, the Public Protector’s 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 displays a profound bias towards Minister Gordhan and Minister Pillay. So what has been said there now is that, let's assume you refer to the rogue unit or whatever it's called as defeating the monster, then now this displays a profound bias not against the rogue unit but against Minister Gordhan and Minister Pillay. Let's do it step by step. That remark, forget about the fact that it was made in a in a closed meeting with the Inspector General for intelligence, what did you seek to convey when you talked about defeating the monster?

Adv Mkhwebane: Members of the Committee listen to the audio. In that meeting, I communicated with the Inspector General. Actually, it was in the exchange of the letters that I requested them to provide the report and we ended up meeting. I told them that okay, there is this report which was conducted by the late Adv Radebe. And the report was dropped at the Public Protector and we have this report. I'm meeting with you to just check whether indeed there was a report like that. And the intention was to make sure that the intention was…

Adv Mpofu: I think there's an alarm fire

Chairperson: I hope it's not happening because of what you're doing here.

Adv Mpofu: That's the unnecessary heat that was generated by Adv Bawa.

Chairperson: There was no heat.

Adv Bawa: it was re-clothing the truth.

Chairperson: Haha, that's true. I think that's disturbing so maybe just to pause. I don't think we'll be able to continue now if there is fire. There's no fire.

Adv Mpofu: This is Parliament.

Chairperson: Just to pause for a few minutes so that we will allow for it to stop. Can you please check what's happening for us?

[Break]

Chairperson: Welcome back. Hopefully, there won't be another glitch. Apologies, Public Protector, you were on the platform when we paused. You were responding, I hope you still remember what we were on.

Adv Mkhwebane: Yes, the issue of the monster. So it was in that context that we were discussing this IGI report and indicating that I've received it. And concern that such a document can be all over and I've seen as well, Newsweek has published it. Then we discussed, after they explained the legal framework, I think, Adv Govender, as we said, we saw her affidavit and we might as well request that she be called so that she can be cross examined on some of the things which are mentioned in her affidavit and which I think that we need to put into perspective. So they then informed me about the operations of the SSA and what is happening, houses overseas, the monies which are being used, the recalling of some ambassadors, because there's an allegation that he did, or there's monies which they are using. Then they told me about the operations and everything. So at the end, she asked the question, so you say the rogue unit or the so called rogue unit, in fact he said that the rogue unit is operating. And I said apparently, and in that context of what they said and the operations of those people who, and I was even referring to some children who came to complain that they were trained in China, they came back and now they are not deployed properly into wherever they are supposed to be deployed. They were telling me. In the context of everything, which is happening, and again, the rogue-ness of the operations, Chairperson, is not about the individuals, now it's worse, the judges are referring to Mr Gordhan and even referring to Mr Pillay as a minister, which I was not referring to. The operations and I think we said it even yesterday, when Adv Mpofu was saying, this now when we deal with what they did outside of the law and we have evidence to that, and we’ve showed that if they go to DSO, NPA, listening to and viewing that place, is that within what the interception legislation required? So that was based on that, not on individuals, even Mr Van Loggerenberg and everyone who worked there, because now the very same thing I've mentioned yesterday that you've got around 30 to 40 people who are working in that unit, and they weren't doing their work. I would give an example about DA labelling me a spy because I worked at SSA for three months. And I've always been saying that there are a number of officials who are working there who are doing great work for the country, and who are in civilian, because they are known they are working there as public servants. So you cannot just label people who are working there or perceive people working there as spies. The issue here is the operations and the activities, it is not about individuals. So I think that is also the issue. The issue of monster was mentioned in that context. And as well, the issue of Rogue is mentioned in that context. It has nothing to do with individuals, but the action. Thank you.

Chairperson: Thank you.

Adv Mkhwebane: Thank you Chair. And maybe I tried yesterday to say I didn't want us to refer back to that audio that was played by the evidence leaders in the beginning to save time, but I'll just refer you to the snippets of the transcript of that, just to ask you a few questions on this. And you'll find it at Bundle K Item 13…And that by the way, in respect to have what you've just said now, did the fact that you worked at SSA for three months as an analyst makes you an SSA operative?

Adv Mkhwebane: Definitely not.

Adv Mpofu: Well, that's what Judge (YouTube 1:41:33) said…but anyway, we'll come to that. All right. Now, I was saying in the…Let's go to 1482, please. Further down, where it says Male speaker in this transcript, it's Dr Dintwe, correct? Throughout the transcript.

Adv Mkhwebane: Yes. It was Dr Dintwe who was talking here.

Adv Mpofu: Yes. I supposed because you and Adv Govender were female speakers. All right. Now, the if you go further down, please, just want to say, you know, why you should be impeached for what everyone else is doing, which is sometimes you referred to the thing as a rogue unit, other times as a so called rogue unit. So Adv Govender says that, but if I could add PP, your inclination that the rogue unit is still operating makes perfect sense. Because there's one person that we investigated, which is in the report, but also investigating her in the Special Ops. So then it does make some whatever was running until the unit of 21 people. So it was like, we believe it's a continuation of what went on at SARS. But we have no evidence to prove that it's worse because the elections and so on. So anyway two things come out of that. Firstly, she refers to it as a rogue unit. But also, she says, in their own view, it's still continuing.

Adv Mkhwebane: It makes sense and there's a unit of 21 people and yeah, they are investigating,

Adv Mpofu: Anyway, and then going back to the monster thing where you were referring to the rogue unit itself, so called the rogue unit and Mr Pillay, whatever that is.

Adv Mkhwebane: But before that, I think if you can scroll up where you speak about… at the end…

Adv Mpofu: On the same page, I've got it. I'm saying yeah, I'm going there now. This page 1490, if you go to 1489, please.

Adv Mkhwebane: Chairperson, I was referring to the context, because it was still a continuation of the Yes.

Adv Mpofu: of this discussion. Yes. That's why I started there about you were saying when you were finishing, you were now talking generally about the continuation of this answer. Which part were you referring to specifically?

Adv Mkhwebane: Can you go back to 23? Yes, because 23, page 1488. Okay, so you see the males Okay, go back again Tshepo. Yeah, no, no 1487. Yeah, so the context Chairperson is that they were busy talking about these houses which have been bought, the properties of SSA disappearing, and then the next page, they were speaking about the set officials who were recalled who were doing allegedly all these things and criminal offences. And then it's only the president, nobody else, we were talking about the legislation now, what their law is saying and what our law is saying, so it was just about deliberations. And then 1488, the next page, then we were speaking about there is an investigation, which the very same investigation, 2014. So Male Speaker says, “We shouldn't be dealing with this issue now, to be honest, where there were consequences they attached to.” So we were just saying that is not a good thing. We should be listening to the audio, but just to understand what we were discussing and the context with which we were discussing, then you can go to the next page where SC wanted to take me.

Adv Mpofu: It was just a quick thing to say, to deal with your evidence that this was not aimed at individuals, but at the entity…

Adv Mkhwebane: The operations, yeah.

Adv Mpofu: not both Minister Gordhan and Minister Pillay. 1489 at the bottom. You said, you know, all the best in that. But I think irrespective of all that we need to work together and support each other. Adv Govender says thank you. Then you say wherever we can, you know, in our small ways, we will defeat the monster. So let's also not allow things which we think they will threaten us, or they'll stifle our work to allow them to be our key focus. How do we make sure that irrespective of what we're after that we're moving forward and dealing with it? Because I mean, if we have this monster, because it's another monster, that rogue unit, you cannot have this. And Govender replies absolutely. And then, and so on. Yeah. Alright, so that's, it was not referring to an individual correct?

Adv Mkhwebane: It was not referring to an individual, but it was referring to the way it operated, the alleged way it operated.

Adv Mpofu: Okay, now be that as it may, but that's I'm saying the alleged bias against Minister Gordhan and minister Pillay is supposed to be from that quotation with that discussion. But while we have this Chair, if I may, again, I'm trying not to spend time on this transcript, but since we've got it, I just want to pick out one or two other small things. Can you go to 1467, also, just to show like in the speech that you made, that, again, you get cherry picking, where you say rogue unit, it's magnified, but where you say the so called rogue unit, it's not referred to. So that's what I'm saying. And this, just read out what you said where you were introducing the topic to everyone, in this particular.

Adv Mkhwebane: In this particular instance, we brought this complaint against Minister Gordhan; I think it was supposed to read a complaint was brought against Minister Gordhan. It was in relation to the operations of the SARS alleged rogue unit. We received it from information that the then late Inspector General Mr Radebe investigated this and the findings were as captured in the report. I must indicate that we received this…

Adv Mpofu: Just pause there PP… The key thing is that in that particular excerpt you referred to as the alleged Rogue Unit?

Adv Mkhwebane: Correct, SARS alleged rogue unit.

Adv Mpofu: Okay. And then you can read on from, I must indicate, because there's also something else that…

Adv Mkhwebane: I must indicate that we received the information that the report was conducted, or the investigation was conducted, I think. And the report made several recommendations against the involved parties. Actually, I start where we received information that the then Inspector General, yes, and as the Public Protector, again, going back to the issue that any organ of state should assist us to investigate s181(3) of the Constitution. So we didn't want to rely on the report, which was dropped in our reception area.

Adv Mpofu: Okay. That's right. So that, that, and then the judges said that you were concealing the fact that the report was…rather he said he had never seen the report. Is that congruent with what you said that?

Adv Mkhwebane: It's not because they had the audio, they had the transcript. And that's what transpired. I told Dr Dintwe that the report was dropped at the reception.

Adv Mpofu: Alright, and the next sentence?

Adv Mkhwebane: I was surprised that whoever had that report shouldn't have had their report because it's a very, it's a document which is classified but unfortunately, that report is there. You know, I've seen the report on Newsweek this week. Now, the organ of state is supposed to help me, he is informing me to get the report from the minister, though we've also already subpoenaed the minister because they were saying no, PP, we cannot and then they explain the Oversight Act.

Adv Mpofu: Okay. But can you go to 1469? This is now Dr Dintwe speaking. And if you can just read. Because again, it is said that they never confirmed to you that the report a) existed, or b) was there and c) it was indeed finalised on the 31 October 2014, which was the date that was the same as the one in your leaked report. So I'll take you…I think that ideally, that is in the first paragraph.

Adv Mkhwebane: Okay. I think that if we are given sufficient time, we will be able to go back and for instance, write to the President and to the minister to give this time so they were committing to help me. To actually advise them to them or consult them, then that I will be particular report to yourself or I will avail the report or the particulars of the report to you. So it's not like a complete report. It's one at a time that was given to us; we wouldn't have achieved what we actually wanted to do. I think that ideally, it will defeat the purpose why I'll be going to, you know, refuse to give you the report, when we are aware that the report is actually in the public domain. So I think he was telling me that we will want to help you and we are constrained by this Oversight Act because the custodians, okay, still coming to that. Actually, Adv Govender, I think there he was saying, you know, there's the report. Yes, we know, he never denied that this report like that. And he acknowledged that the report is there.

Adv Mpofu: Yes. But remember, there were now at least two reports, which were throwing around the one that you had, and whoever had it to give to you, as well as the one in the Newsweek. Yes. The point is simply whether he said no that one is different from the one we have. When he says that the report is actually in the public domain.

Adv Mkhwebane: Correct. He never denied the content.

Adv Mpofu: Okay. Then the next point.

Adv Mkhwebane: But they are unable to give to yourself. Okay, you know, officially…

Adv Mpofu: No, from that was not the only issue.

Adv Mkhwebane: Oh, yes, that was not the only issue.

Adv Bawa: Maybe if we have our clarity. There is an article in Noseweek; there isn't a report. The Newsweek article reports on the report. Are we talking about the same Noseweek article, Adv Mpofu? Or is the Noseweek that that has the entire report in it?

Chairperson: Thank you. Adv Mpofu?

Adv Mpofu: Yes, there is, when we talk to the Noseweek article, anyone who reads the Noseweek article, which quotes the report, I think, I don't know how many 100 paragraphs, word for word, makes it clear that they're quoting from the report. That's what Dr Dintwe was complaining about that. Not only is that this copy, but obviously, there's another copy that Noseweek has, which is obvious from the article.

Adv Bawa: Adv Mpofu, you were saying this, Sorry Judge, through you.

Chairperson: Yes.

Adv Bawa: You were saying these and these are, that's exactly the point. Noseweek had a report. The report wasn't in Noseweek. So nobody knew what the entire contents of the report was at Noseweek, apart from the paragraph that was in the article. That's the only clarification that I need.

Adv Mpofu: Okay, it’s fine. I'm happy with that. Yeah.

Chairperson: So in the article, there is reference to the report.

Adv Mpofu: extensively, yeah.

Chairperson: Sorry, so you don't have a full report.

Adv Mpofu: No.

Chairperson: Okay, thank you. Proceed.

Adv Mpofu: It doesn't say this is the report. So please read on from that was not the only issue.

Adv Mkhwebane: That was not the only issue. We also realise that even the complainant, we suspect that they could be in possession of that report. But they are unable to give it to yourself, you know, officially in all those other things. This process you request is more about just legitimising whatever is in play. Whether we refuse or gate we give the report is there, there, that's what we are aware of it. But can the Advocate just explain quickly our disclosures provision and also our difficulty in this particular matter?

Adv Mpofu: Yes. Now, when the…Okay, let's take the last, last point. Much further down, Tshepo.

Adv Mkhwebane: Adv Dintwe is still confirming the report, confirming because we were at Edom, that this is the report and what in the Noseweek is exactly from the report.

Adv Mpofu: That's what, that's what I meant. Remember yesterday I asked you that from that conversation, does that thing about the good authority?

Adv Mkhwebane: Exactly.

Adv Mpofu: So here you are talking. The minister, there was the IGI himself and the legal representatives and confirming basically the existence of the report or that the report you have in Noseweek is the report.

Adv Bawa: Okay, sorry. I must’ve interrupted you earlier on. Sorry Chair. Can you just tell me which page it is on Noseweek? I missed that. Sorry.

Adv Mkhwebane: That's 1418.

Adv Mpofu: Well, the first one is 1467. Except that transcriber said Newsweek but we know what it is. The first one is 1467; if you go there please Tshepo. This is where you say I was surprised that whoever had the report, can you read from there? Okay. Okay. Let me just do it because I'm just answering to Adv Bawa. I was surprised that whoever had that report shouldn't have that report because it's very, it's a document which is classified but unfortunately that report is there. You know, I've seen the report on Noseweek this week. That was the Noseweek. Oh, can you confirm because you are the one speaking that you didn't say Newsweek; you said Noseweek.

Adv Mkhwebane: Exactly it was Noseweek, yes.

Adv Mpofu: Okay. Then you said the other one was in 14?

Adv Mkhwebane: 1488 where Dr Dintwe was also confirming that the report is they actually say 1482.

Adv Mpofu: okay. Anyway, I think one is enough.

Adv Mkhwebane: Okay, so yeah, where I was reading now was where Dr Dintwe was confirming that possibly even the complainant has it.

Adv Mpofu: Yes. Yes. Then the last of those were basically they confirm the while you're saying you're basically talking about the same thing as it were. 1469.

Adv Mkhwebane: Adv Bawa, if you can switch off your mic.

Adv Mpofu: And you confirm yesterday that the report that you had indicated that it was issued on the 31st of October 2014.

Adv Mkhwebane: Yes, I think it was dated that date.

Adv Mpofu: We've got it in the documents here. But I know it just read what they say then from because, because only dealing

Adv Mkhwebane: where, which page?

Adv Mpofu: Adv Govender at the bottom, yeah.

Adv Mkhwebane: Because only dealing in the Special Ops of SSA would not have actually addressed the terms of reference given to us by the Minister of State Security. But we finalise the report on the 31st of October 2014.

Adv Mpofu: Yes, okay. Yes. Now, if they come from this date, and it coincided with the date on the report, that you had one, what would that, would that be confirming that we are talking about the same report?

Adv Mkhwebane: Definitely, we’re talking about the same report. And another thing interesting is that the very same Adv Govender has been with that institution for a long time. And maybe when she comes here, she will also have to confirm whether, because she confirmed that she was the one who, because it says, because only dealing in the Special Ops of SSA will not have actually addressed the terms of reference given to us by Minister of State Security, because it was the then Minister of State Security who had requested this investigation. But we finalised the report on the 31st of October. So the date is the same. Maybe she can also then indicate whether she was still working there, because I never asked her Chair.

Adv Mpofu: Yes. Anyway, I think it's clear.

Adv Mkhwebane: and I think the issue of we meet, we qualified that the report and made it clear that at the outset that we did not have a mandate over SARS, which they explained but then the only thing was that the referral was referring to the intelligence and encroaching on the mandate of SSA.

Adv Mpofu: Okay, and then as I'm trying to save time, I think it's all out there now. But just for the sake of completion, can you go to 1475?

Adv Mkhwebane: Because like we said, the report is out there already…

Adv  Mpofu: Yeah. So what did that communicate to you about the report that you had?

Adv Mkhwebane: Still confirming that is the same report.

Adv Mpofu: Anyway, and we do regard Dr Dintwe, the Inspector General of intelligence as good authority.

Adv Mkhwebane: Definitely, he is good authority. And I think what needs to be understood, Chairperson, was that moving away with the principle of relying on government, because the Public Protector when we investigate, you remember I said to you, because of that submission, which is signed by SARS, for us it is credible information. The meeting I had with Dr Dintwe is a credible good authority, meeting ahead with the two ministers of State Security to me is a good authority; I can't say Noseweek is a good authority. It's because, yes, they published it, and on confirming this, then it means that the very same report I'm having, indeed, Noseweek published a good report or the exact report. What I'm saying here is that I wouldn't just rely on Noseweek and say, I've got the findings. That's not what we do. We can’t rely on newspapers and regard them as gospel truth. I think that's what we normally do. And hence I also called upon magistrates, judges, well, we still going to address the issue of Sunday Times. But just let's listen to the official documents.

Adv Mpofu: Okay, thank you, PP. All right. So that that is with number five in the list, I think for us, it's number six or seven of the nine issues. And then as you said, then the next one is the Sunday Times. I mean, I think the less said about this one, the better. But apparently, number six on the list of the Baqwa J judgment is that you are biased because “the Public Protector’s complete disregard of the Sunday Time’s apology and clone apology”. I can, please listen, I don't think we need to waste much time on this. But do you, are you inspired by whatever the Sunday Times does? Or was the investigation in the first place inspired by the Sunday Times?

Adv Mkhwebane: I think on this Chairperson, it's disappointing, indeed, to be blamed for this Sunday Times’ apology. And again, I've said it several times that Sunday Times, News 24, Daily Maverick, they might publish things and the way they publish information. It's what will they publish because they want what is selling; they are in the business of making money. I mean, even currently, they are reporting about this process and now they're alleging I'm attacking judges. So I think for judges, any officer of the court, any legal practitioner, just read these papers with a pinch of salt. Because normally how they operate is that they will, when they publish their stories and to any member of the public who's listening, they will send you questions, they will then they have this source or information. Definitely some will conduct investigation. Indeed, you find that the investigation they are publishing, it’s information, which is there. Hence, as I said earlier, that using them as leads helps, because you follow the story and then you go deeper you go to the evidence, you request the department to respond, you have their policies, their documentation. But now to be blamed that I never took that into it, or that I disregarded that information, in the first place I don't read Sunday Times, my investigators possibly were investigating, they never maybe have seen this article. But their main issue was that, I think Mr Mataboge even mentioned that normally he will stay away from information, he would want to have his own source of information which is that investigative mind to say, yes, I see this, well, we will operate differently. Each person has their own way of investigating. But normally, I would encourage them, yes, you can see that what's happening around you, current affairs, then you go and investigate and use it as a lead. So it was purely that, but it's unfair to be accused of I disregarded the apology of the Sunday Times. Sunday Times is not an investigator, it doesn't issue reports. Sunday Times, since I said, is in the business of making money. And unfortunately, when it comes to me, again, I'm still repeating mainstream media has never been fair to me. And they will always perpetuate the narration and manufacture consent which will always push the narrative that I'm this incompetent person or am this person who doesn't know my work, or I can’t do my work. And I said it, they are a key stakeholder, I'm not neglecting them, they are a key stakeholder. Hence, I have the spokesperson, I have the communications as the section who will work with them, but, and they can do a lot if they can just change the way they are reporting. Because if they help us, firstly, publish our reports, what impact can our reports do to the public and all those and not just focus on individuals. But Sunday Times unfortunately, I differ with the judges to just rely on them and blame me for disregarding their apology. Judge dge Bloem also I never saw that because we were concentrating on our investigation. Judge Bloem might have apologised, and on his own as well, they were working as a panel, but he decided to do that. And I think we can unpack what he was apologising for. Does that have anything to do with us? Is there evidence that people's communication was intercepted? Or the fact that the viewing of DSO offices, was it done properly?

Adv Mpofu: I can assist you in that, I'm sure it's common cause. The only thing that Judge Koen apologised for alone was that was, what he said was the reliance on the Sikhakhane report without examining it independently. So that's, in essence, what he apologised for. And so it goes back to the question of whether the Sikhakhane report was discredited or not, which we will wait and see who discredited it. At least on our version, we're not aware of any such allegation. But so that, if let's assume that if the Kekana report was widely discredited, then of course, the Koen apology can be added to that. But that's an issue that will be added between us and on the evidence leaders. As I said yesterday, as I understand your version at least, is that the idea that the Kekana report was widely discredited, is itself manufactured. It's not that, I'm an analyst if something else will be presented to us.

Adv Mkhwebane: Yes, and I think the what I will also request I spoke about that Chairperson yesterday, that if judges can just read our reports and understand how we investigate, and how we regard as evidence, and what we see the application of the law to the evidence before us, because I cannot have a report which will just put all the information about the matter, Sunday Times said these, Daily Maverick said this, IOL said this, and this person said this. So I think that's how we do our work and again, in the spirit of just focusing on our mandate, but not perpetuating or being in the business of just giving papers authority like regard papers as authority, they are not authority.

Adv Mpofu: Alright. Okay, just to get that, to get that out of the way then, so that we move to the next one. Do you? Alright. In your view, put aside the fact that we established that the Nugent Commission actually agreed with you regarding the riches of procurement and other, let's assume the Nugent report, “discredited scanner report”, as far as both of those reports would be independent reports by independent panels of different people and at least the Kekana report was made up of three advocates. If, if I remember well, would you, from your point of view, would you have ranked one of those reports above the other? In other words, what makes Nugent better than Kekana? That if the one differs with the other, then we must listen to the other one.

Adv Mkhwebane: Instead of also speaking about maybe, let's say Judge Nugent, Judge Koen as well. Yes, I just want to say…

Adv Mpofu: Bearing in mind that they were not performing judicial functions, they were just…

Adv Mkhwebane: The fact of the matter is there were there as commissioners chairing that commission. But further, all of them are legally qualified, all of them are in the administration of justice. So I think it's so wrong to just again perpetuating that narration, you know, Chairperson, I would want to say to you, maybe let me say, which is the fact as a Public Protector, I acknowledge that I operate in a political space, I acknowledge that I'm a black person, I acknowledge that anything I do, I do it intentionally to make sure we don't repeat the atrocities of apartheid. So now, if we pick up a lot of these Sunday Times, judges perpetuating the very same divisive ways, when it's a white person or when it's a another race, then we are treated differently. Because the thing is a judge, Adv Kekana, they are also legally qualified; they did their work the best they know how. But now, why prefer to use Commissioner Nugent's or Judge Koen? So it's that thing again, you will promote, people must always think, when it's said by Sunday Times when he said by 702, or eNCA, then it's the truth. So we need to change that. Well, going forward, can you please consider that as the leading party, which still has that majority to deal with issues which can remove this systemic issues which are still there, which we still, you know, it's there. But sometimes we can’t touch, but it's sadly done. And you perpetuate…we are used to perpetuate it. Because the fact of the matter is, Sikhakhane did the best he knows and whereas he was requested by the very same Mr Pillay to do the work and he was paid for that work. But now you perpetuate this narration, you then synchronise and, so I think it's so wrong. I will plead with Members of the Committee and everyone I mean, even this motion launched by the DA which is good. And at least let's engage at that level openly. Why do we have to continuously perpetuate such things and why some of the people who allow themselves to be used as well to pin down and discredit people which is not correct.

Adv Mpofu: Yes. Okay. Can you think of any other difference between Sikhakhane and Nugent?

Adv Mkhwebane: No, none, because both of them were requested by the Commissioner of SARS, who established the Commission. SARS requested, who requested Sikhakhane to investigate and his team is a SARS. So I think let's not perpetuate that. And I think let's as leaders, and as people who can make changes in wherever we operate, including judges, let's ensure that we are intentional in changing the mindset when it comes to a different race, therefore, it needs to be believed or when it's reported by Sunday Times, it must be believed.

Adv Mpofu: And you're then supposed to be impeached, because you used the Sikhakhane report, despite it having been widely discredited by Judge Nugent, suppose widely is just because it's Judge Nugent. And the comment, I think we read it, I won't go there again. I think in Charles Nugent's defence, all he said was that why it has been found to be unlawful is not clear to me, to him. And that is seen as wide discrediting of reams of pages of hard work by Sikhakhane and his panel. But anyway…

Adv Mkhwebane:  I mean to be also fair to Judge Nugent, he said, even I have mentioned it yesterday, he said they must do it within limits. So I think it's shouldn't be just blown out of proportion and yeah.

Adv Mpofu: Okay, so that does number six number. The next one, then was the Gupta issue, we dealt with that. And then Potterill was dealt with. Chair, let me just double check if we are where we want it to be. Oh, there's one more. YouTube. Judge Baqwa now goes further to say that and number two, the manner in which the Public Protector interacted with Minister Clinton during the investigation and the listening of the report. Not only did the Public Protector-elect not engage with Minister Gordhan's attorneys, and on record…

Adv Mkhwebane: What paragraph is that?

Adv Mpofu: It’s still 290. That's where the nine issues are. But now this one is II, PP.

Adv Mkhwebane: Okay.

Adv Mpofu: Yes. Remember I is jurisdiction, II says that “not only did the Public Protector-elect not engage Minister Gordhan’s attorneys on record, the section 7(9) notice was public 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. Well, so Judge Baqwa was basically saying you posted the section 7(9) notice on YouTube. You remember you said that one of the reasons why you stopped including remedial action in s7(9) notices was because they were being linked?

Adv Mkhwebane:  Correct.

Adv Mpofu: Okay, so I think Judge Baqwa was right here. Now you this very person who does that then goes to release the section 7(9) notice on YouTube. So you'll be doing even a bigger leak yourself. Did that happen?

Adv Mkhwebane:  Definitely not. And Chairperson, I will ask, I think that YouTube was played here, or was it not?

Adv Mpofu: It was before but we can do it again.

Adv Mkhwebane:  Because I think it's so wrong to be blamed that I issued a section 7(9) report publicly and that has never happened. And Chairperson, you know, when I investigated this matter, I was under such a lot of pressure and stress, and you know, attack by the media, that I would have to say, and there was a stage when…you know, Chairperson, there was a stage even when I requested legal services, maybe I must just check that. I said to them, let them even report the attorney of Mr Gordhan to Law Society. Because anything we write to them, it was just published. It will stop…

Adv Mpofu: I think Adv Bawa was going to bring something to my attention?

Adv Bawa: I'm just saying we've already played the clip; it’s already on the record.

Adv Mpofu: Yeah, we want to play it again. Because it does play for a different purpose. Unless if you are prepared to accept that, that this is false, that she is released, elected or…that the Public Protector-elect not to engage with Mr Gordhan’s attorneys on record. And s7(9) notice was publicly posted on YouTube, before giving any notice to Mr Gordhan and his attorneys. If you are prepared to accept that as false, then we don't have to play the…

Adv Bawa: Play clips on the record. The clip says what it says, I don't have to accept anything, the clip is what it is.

Chairperson: That's fine. Thanks. Just before I come back to you, because on this issue, I can't remember the name of the witness who attested and would have responded, but I will allow it because Adv Mkhwebane is now in her own right responding to the issue. And I can't remember how long the clip is…

Adv Mpofu: four, five minutes.

Chairperson: I think for completion, let's do this.

Adv Mkhwebane:  Yes, Chairperson.

Adv Mpofu: Thank you. Okay, let's Bundle H, PP folder item, 31.7.16.

Adv Mkhwebane:  And I think yes, it was played by that witness, because they were trying to show what I said about the rogue unit. So I wanted it to be played to show the members of the committee, the Chairperson, the public, that I never issued a section 7(9). And Chairperson was still saying that attorney of Mr Gordhan, Mr Malatji, was the doing interviews for eNCA, 702. Anything we write to them, it was published. So this was a way of directly communicating to the public, those who cared to listen to me because they had the support of the mainstream media because wherever the report goes, and what I say, is not reported. So I had to then use the platform of direct communication to inform the public that I will be issuing the section 7(9). And I think for the record, it needs to be played so that you can see that I was informing the public.

Adv Mpofu: No it’s fine. I've said it already. So can we play it? Chair, we're not busy convincing you for something that you've already ruled. But I think the point that has been made is that it was, now I remember, the witness was Mr Van Loggerenberg, that it was played for a different purpose, which was to show that when she was talking, she said rogue unit and not so called or whatever, but now it's for a different purpose of actually dealing with a much more serious matter.

Chairperson: If I understand well, it was just a press conference, press release issue, not even a speech. This was not in a speech.

Adv Mpofu: Yes, that's correct. Now it's a different case played showing that section 7(9) notice was never publicly posted on YouTube as it says in this judgment.

[Adv Mkhwebane’s YouTube recording is played]

"I would like to communicate with the South African public about what has been happening in our investigation of the Minister of Public Enterprises. And there were allegations that harassing him and we issued a subpoena to him requesting information about several investigations, which we were conducting. The first one was relating to the pension payout to Mr Pillay and he was subpoenaed and he appeared. And that was the complaint which was launched in 2016. And we wanted his side of the story, because we've conducted our own investigation, and as well to help us in the investigation. Normally, that's what I do with all other ministers in my investigations, or all other people complained against. So in this one, then, it was all over the media and being portrayed as if I am targeting Minister Gordhan. And secondly, there was also a complaint which was launched in 2016, relating to the tender processes or irregular tender processes of a contract which was awarded to BBND – also a tender relating to or the purchasing of Interfront. That investigation is in progress, but again, the EFF lodged a complaint, plus, an anonymous complaint, where they were also lodging a complaint about the involvement of Minister Gordhan. It needs to be clear to the South Africans that I receive complaints; I don't go around and ask people to complain. And therefore, when I received the complaints, I will have to approach the person whose complaint against and request their side of the story. And we will all know that the EFF complaint was dealing with the rogue unit, the processes which have been followed, the recruitment, the procurement of the equipment, their operations. And another complaint was relating to the complaint under the Executive Members Ethics act, where they were alleging that Minister Gordhan lied in Parliament about his meetings with the Guptas. Therefore, I'm coming forward to say there still are a number of interactions, which you will have with Minister Gordhan. There's also another complaint about IFMS (Integrated Financial Management System) and Treasury under Minister Gordhan's watch, and again, we will still go back to him and request information. Now the challenge I'm facing is that the report that we’ve recently issued, there was a serious attack on the person of the Public Protector and this media narrative, which has indicated that I don't own any form of media. So this is my opportunity to communicate to whoever will listen, that I'll be issuing a section 7(9) notice relating to the EMEA which I need to finalise within 30 days, which that time has actually lapsed, relating to his meeting with the Guptas. But that is also part of that section 7(9) notice relating to the operations of the rogue unit. And I know that one will be faced with a lot of questions. In fact, there will be a lot of questions. There will be allegations that I'm still persecuting Minister Gordhan, but I'm doing my work. And I understand when it comes to the issue of the rogue unit. People have lost lives; people have been tainted, and I think that it's still going to happen, but I'm doing my work. And I will be safe serving that notice today which is 2 June 2019. In fact, it's 3 June 2019. And I'm ready to receive all the backlash, but I'm doing the work. I am not targeting or harassing any minister or specifically Minister Gordhan".

[End of YouTube video]

Adv Mpofu: Thank you very much. On a lighter note, you said you're ready to face the backlash, you’re facing it now. But the question really is whether that what you are prepared to face included three judges saying that what you've just done amounted to posting the section 7(9) notice on YouTube before giving it to Mr Gordhan.

Adv Mkhwebane: Definitely, and that's the backlash I've been receiving. And as well, it was blown out of proportion. Legal analyst, and some analyst were even called during that process, I was even attacked and, you know, labelled names. Now, this as well, it's part of the judgment. And if it says, I issued, I was just informing the public that I will be issuing the section 7(9) and in that section 7(9) it deals with EMEA and the other parts of the rogue unit. And it was also dealing with or indicating that there are other investigations. I receive complaints. I was not targeting Mr Gordhan. I'm not targeting him. It was complaints which we're investigating. So if I was issuing a report in s7(9), I would have read it, like what we did with the common cause issues, issues in dispute, the evidence and the finding, and issue it like that.

Adv Mpofu: Yes. Okay, maybe to be fair to Judge Baqwa and his colleagues, the word they use was you publicly posted it on YouTube. I don't even know if that's technically possible. But that's you publicly posted on YouTube, the section 7(9)  before giving any notice to him or his attorneys.

Adv Mkhwebane: I didn't publish the section 7(9). Firstly. Secondly, by that YouTube, I was informing everyone that I will be sending a section 7(9) so that I don't see the interviews again, all over when I send that section 7(9). Because again, the section 7(9), when we issue it, Chairperson, normally, we would want to make sure that it's not shared, because in each and every section 7(9), we will indicate that this is just for the eyes or person, it's only for the person or people who are implicated so that we don't compromise the investigation. And as well, is still not the final report so that's what we do. Then the issue, I don’t know, are you still coming to the issue of the report?

Adv Mpofu: Sorry?

Adv Mkhwebane: I don't know where they similarly, the report was presented to the media without any prior notice to Mr Gordhan.

Adv Mpofu: Did that happen?

Adv Mkhwebane: That notice was never done, it’s not done. I was not doing it with any other person who is implicated, other ministers, presidents, other very important people. Because when we issue reports, we only announce that we will be publishing reports. And then that's what the law allows us to do. And then we issue the, I publish the reports through media briefing, and then we post it in our website, especially reports. And then the investigators who are investigating the matters will then share the reports. I must indicate, Chairperson, that we were trying to make sure that also on the day of the publication in the morning, whilst issuing the statement, then they're sending the reports directly to those individuals. So we were trying to manage, as well, the issue of you know, the report now it's all over without the person who was being investigated receiving the report. So on this one we might not have shared it, notice was not given, and we might not have shared it quicker than what we expected.

Adv Mpofu: Okay. Now, to your knowledge, whether the president, the King, do you give notice to people before you issue the reports?

Adv Mkhwebane: No, I was not doing that. I never did that before.

Adv Mpofu:  Yes. Well, you might not have done to the President or the King but Mr Gordhan, I understand is above those levels. But do you think, have you ever had any of your predecessors, whether any of your predecessors has ever given notice before releasing reports?

Adv Mkhwebane: I don't know. I have never seen that in the handover report of my predecessor. And it was not done maliciously. It was just making sure that we have control of the process. And that's all not to say, maybe we should be doing that if…

Adv Mpofu: Yes, but if you do it, hopefully you’ll be doing it for everyone, not Mr Gordhan.

Adv Mkhwebane: Definitely.

Adv Mpofu: Or any minister?

Adv Mkhwebane: hm. Any public servant.

Adv Mpofu: Okay. Now if we go to the qualification issue, and Chair, thank you for allowing me to take this detour but we're now at the place that I was talking about, where we've covered the five of the six and eight of the nine. So on both lists, the only issue outstanding is the qualification issue. So we'll deal with it in one go.

Chairperson: Let’s pause for four minutes to stretch and then back at half past and then we continue. 

Adv Mpofu: Okay thanks Chair.

[Break]

Chairperson: Welcome back colleagues, we're going to take a quick session towards lunch. Over to you Adv Mpofu.

Adv Mpofu: Thank you Chairperson. PP, I think yes, we have covered all the eight things except the qualification. I heard you saying we didn't cover KPMG.

Adv Mkhwebane: So it's part of the reports. Okay. 

Adv Mpofu: No, it's not only is part of the report, just to save time of the committee, I think we'll deal with that in legal argument. Because you remember Mr Van Loggerenberg, when I cross examined him, considered that the KPMG so-called retraction was not a complete retraction, you will remember that, Chair. And he even considered that he himself had complained, I think in the media, that they did not retract the entire report. So I think we'll just refer the committee to that evidence, which showed that the only thing really that KPMG retracted was that they had taken the view of legal experts and presented it as their own view on the question of whether Mr Gordhan was aware of the rogue activities of the something like that, but anyway, the point is that I don't think we need to re-converse that.

Adv Mkhwebane: okay.

Adv Mpofu: So if we then go to the qualifications issue and that would be I think page 93. Chairperson, can I do this, I'm sorry Chair but also hopefully it will save us time. So as far as the judgment is concerned which is paragraph 5… 6 of the report. What I was saying we don't even have to go there. But as far as the judgment is concerned, it's issue number nine. And it's articulated as follows in the judgment, paragraph 290 as one of the bases for her alleged bias. “The Public Protector’s relentless pandering of the untruth of Mr Pillay’s qualification". That's the reason why she's biased – her relentless pandering of the untruth of Mr Pillay’s qualification. That's how the judge has articulated. And Chair, you’re going to think that I'm avoiding this qualification issue. Every time there's something new. But it's all meant to save time. Just as a reference point, Chair, I just want to take you to the Independent Panel report. And this should take less than a minute at paragraph 232 thereof. We'll come back to that page 93. The point I simply want to make here is to show that the nine issues that were identified in the judgment are the same nine issues that were identified by the Independent Panel as so called prima facie evidence of incompetence. So to the extent that those nine issues are baseless in respect of what we've gone through since yesterday, they will be equally baseless as grounds for the judge. That's paragraph 232 of the Independent Panel report.

Adv Mkhwebane: Okay.

Adv Mpofu: 233, because the incompetence is kind of half of the misconduct, so let's take the bigger one. So you will see that it says we find – 'we' now being the Independent Panel report – find prima facie evidence of misconduct in the nature of an intentional and gross negligent failure to meet the standard of behaviour or conduct expected of a holder of public office. Sorry, that’s the CR17 one. No, it's not actually, this is a misprint. They wanted to say…

Chairperson: They repeated.

Adv Mpofu: Yes. They just repeated, Yes. Yes, you did. I think for all the members, we should just change that manually for those who can. Where it says in respect of CR 17, it should say in respect of

Chairperson: Gordhan / Pillay rogue unit issue.

Adv Mpofu: Yes.

Chairperson: That's my note.

Adv Mpofu: That's for the following reasons. Yes. Okay. Okay, so I was getting confused now. So it's for this report that we're discussing. And then it says the nine aspects justifying the finding of bias against Gordhan and Pillay listed at paragraph 290 of the full court judgment, which are in summary, and then they are listed so that members know that the nine issues that we have been dealing with are the same nine issues that were referred to in this. Then the rest are just repetition of the issues that we've dealt with, the YouTube and all sorts of things like that. And 2233.1.9, which is where we're going now, is the Public Protector’s relentless pandering of the untruth of Pillay’s qualification. And finally, we get to the qualifications issue, okay. I think, yeah, after all the expectations, and this issue should not take as much long because it was also dealt with by Ms Mvuyane. Let's just cut to the chase. The allegation here is that you are the originator of the false notion that Mr Pillay does not have a degree and also was not in possession of a matric certificate. First of all, does Mr Pillay have a degree?

Adv Mkhwebane: No.

Adv Mpofu: And did he ever present to you, or did you ever have any sign that he was in possession of a matric certificate?

Adv Mkhwebane: According to the investigators, his file was empty so we don't have that.

Adv Mpofu: Yeah. And the, in fact, that's seems to be already half of the answer because it would seem that SARS, not even your investigators, let alone you, who came up with. Can you go to 5.6.4?

Adv Mkhwebane: SARS, in their response dated five February 2019, did not dispute that Mr Pillay did not have a degree and that he did not possess a matric certificate. So and here Chairperson, what we were investigating, just to be clear, because the issue of matric was the one which was magnified out there. It's the qualification, the necessary qualification for the position. So yes, we were looking into that. That's the issue we investigated.

Adv Mpofu: Yes. Yes, no, we Yes. We dealt with that witness Ms Mvuyane. I think there seems to be either a deliberate or an inadvertent to quote the phrase deviation of the issue to this matric thing, which is just a red herring. But the purpose, maybe now that we've said that, let's go back to my page 93 and read out the heading of that qualifications issue.

Adv Mkhwebane: Regarding whether Mr Pillay was appointed to the position of Deputy SARS Commissioner, and subsequently as SARS Commissioner whilst he did not possess the necessary qualifications for the position, and if so, whether such conduct amounts to maladministration. Maybe I must also indicate that if you go up the way we speak about the complaint which was launched; it was also speaking about the qualification for of Mr Pillay.

Adv Mpofu: Nothing about matric or PhD or whatever?

Adv Mkhwebane: It was; we were looking into the qualification.

Adv Mpofu: Whether he qualified to be a commissioner of or rather Deputy Commissioner of SARS, and I think at some stage even an Acting Commissioner.

Adv Mkhwebane: Yes.

Adv Mpofu: And that that sentiment, if you go to your common cause issues, I think it also comes out, particularly at 5.6.3. But let's go let's start at 5.6.1.

Adv Mkhwebane: It is not in dispute that Mr Pillay was appointed to the position of Deputy Commissioner by SARS in April 2009. It is also not in dispute that at some stage, he also acted in the position of a commissioner of SARS. The issue of my determination is whether Mr Pillay was appointed to these positions whilst not in possession of the necessary qualifications. That's that, that's what we were determining here. So hence, then we go to the issues in dispute, because remember, Chairperson, I said, we then bring the complaint, we will write to the said department. We then informed them about the complaint, and then we will request several documents from them. So then they responded to our letter. So hence here we are detailing or the investigator because they are the ones who receive the responses and they must analyse the evidence, they are detailing what information we have.

Adv Mpofu: Yes. And now the issue was turned into the fact that Mr Pillay, I think, when you're interviewing him, claimed that he had matriculated in 1970 at Benoni or whatever it is. But did he ever produce or did SARS ever show that he was in possession of a matric certificate?

Adv Mkhwebane: Hence, I'm saying that that's what the investigators said, the response we received from SARS they did not dispute that Mr Pillay did not have a degree and that he did not possess a matric certificate. Chairperson, let me say this, again, that there is this issue of mixing up the investigations. When I met with Mr Pillay, it was regarding his issue of a pension. It was, I think you can help me through SC, let's deal with the date on which the Pillay matter was investigated and the date, and then let's go and deal with the date on which you received this complaint and dealt with it. Because it will show you that that question was asked during the meeting for the Pillay investigation, not for this particular matter.

Adv Mpofu: That's a useful comparison. If you go to the Pillay judgment, which is just before this one, is before the rogue unit one, I think in the judgments’ file. Yeah. Okay, whilst the Chairperson was looking for it, this one, the rogue unit complaint of Mr Shivambu and another person was, I think we established was in 2018, I think, if my memory serves me well.

Adv Mkhwebane: The Pillay pension was launched anonymously on 18 November 2016.

Adv Mpofu: We're going there. I’m saying the one of the Shivambu in terms of 4219 is 12 October 2018. Okay, okay, so let's keep, no, no, sorry, that's the unanimous 2018. Mr Shivambu’s one was 9 November 2018. We established that I think two days ago. Okay. So keep that date in mind. And then Chair, we don't even have to display this unless if it's disputed, it's on the first paragraph of the Pillay judgment. It says “the report is a culmination of an investigation conducted by the Public Protector on the strength of a complaint made anonymously on 18 November 2016”. So I think that the point was simply making now is that this report is far apart, and whatever interview happened, So the point I making PP is that in relation to the rogue unit investigation you did not have a face to face meeting with Mr Pillay?

Adv Mkhwebane: No, I didn't. And with Mr Gordhan as well, I didn’t. The only meeting was on the Pillay investigation.

Adv Mpofu: Which was a two-year investigation of 2016.

Adv Mkhwebane: Yes. Okay. And I think with that also, maybe we should be checking when was that interview. Was there Mr Pillay and Mr Gordhan?

Adv Mpofu: No, I don't even think that would be necessary, I think the point is sufficiently made by the fact that whatever discussion you had about his matric was in relation to a different investigation.

Adv Mkhwebane: and a different investigator Chairperson.

Adv Mpofu: And even a different investigator.

Adv Mkhwebane: The investigator was not Ms Mvuyane, the investigator was Mr Njabulo.

Adv Mpofu: Okay, and there's something Mr Mvuyane told us something about Mr Njabulo – forgot his surname. Yes, if it was the same investigator, she might have even remembered, even though it was a different investigation, that there was this issue of the matric certificate.

Adv Mkhwebane: And I think that that context is very critical as well.

Adv Mpofu: And the only reason that it was raised in the Pillay context is because the in that, again, there was a suggestion at least, that his so called retirement had been approved by Mr Gordhan because of their friendship and struggle, connections and so on?

Adv Mkhwebane: Correct.

Okay. All right, good. Okay. Now I think that, quite frankly, that it should end there that this was about a different report and number two that it was SARS said they couldn't find his certificate and not you. But I suppose we just have to for the sake of completion to make sure the members are with us on this. We will just deal with one or two more aspects of this, which is now trumpeted as grant for your alleged bias or targeting Mr Gordhan or Mr Pillay.

Adv Mkhwebane: So we, in any our investigation, we requested an affidavit from Mr Magashula, so it's paragraph 5.6.5 around the qualification issue and how they operated in SARS.

Adv Mpofu: Okay. So there is yes, yes. Okay. In other words, you were 5.6.4 says SARS confirms that he doesn't have a degree or matric, but you didn't stop there. You also went to Mr Magashula who was then the CEO…

Adv Mkhwebane: CEO of corporate services of then the Commission.

Adv Mpofu: Okay, take us there 5.6.5.

Adv Mkhwebane: Yes. So that's what he referred to the, during an interview with Mr Magashula on the 25th of March 2019, he referred to the Leadership Competency Model Review accompanied by what is termed the goodness of fit, conducted by SARS during the year 2008, which confirmed that the value that Mr Pillay brought to SARS, hence the desire to retain his employment at SARS as Deputy Commissioner on a contractual basis following his retirement. So then Mr Magashula indicated that a goodness-of-fit assessment was conducted by Hay Group on Mr Pillay and five other SARS Exco members to determine the successor was fit for the position of SARS Commissioner. So, the Exco members, which I think we need to make a correction there, who were assessed in terms of the goodness-of-fit were Mr Magashula, Barry Hore, Edward Kieswetter, Kosie Louw and Gene Ravele. So that was their plan in 2008 already – that this is how the succession planning was going to be. So they relied on that. So Mr Pillay is said to have been one who came out as highly ranked of all six Exco members assessed in terms of most of the leadership competencies under the SARS leadership model. So they had that leadership model more than not focusing on qualifications because this leadership model I think it was checking competencies on the expertise and qualification and all those. So it says according to Mr Magashula, despite not being in possession of a degree, Mr Pillay fully met the requirements for the position of the SARS Commissioner. So again, Mr Magashula confirms that Mr Pillay didn't have a decree which is qualification. So in his response, Minister Gordhan stated in an affidavit that, because then we requested an affidavit from Mr Gordhan, there is no formal qualifications required for the appointment as Deputy Commissioner, Mr Pillay proved himself amply qualified for the position by his dedicated and successful service to SARS over the years. Mr Pillay joined the public service in January 1995 and served SARS for more than a decade. For the majority of his tenure at SARS, he had held various senior positions and discharged the accompanying responsibility of such high level positions in a commendable manner. Mr Pillay has always excelled at his job and made a significant contribution towards the establishment of SARS, including building and refining its enforcement and investigative capability as well as the establishment of the SARS large business centre. These improvements to operational efficiency make SARS the highly respected organisation it was until September 2014. His knowledge and experience and his leadership as a Deputy Commissioner were an invaluable assets to the institution. So even here, Mr Gordhan is confirming that according to him, no formal qualification is required for the appointment. So the issue here, Chairperson, we were looking at is the qualification. So Mr Magashula confirming, we'll have to check that letter of February and that the information was before the investigator Mr Magashula confirming, Mr Gordhan confirming that Mr Pillay didn't have the formal qualification.

Adv Mpofu: Yes. And your understanding of formal matric is a formal qualification, isn't it?

Adv Mkhwebane: Exactly. Because, I mean, that's how South Africa, well, that's how public service is structured. All of us, I mean, that position are a very high position. For one not to have that and I don't think it will be fair to others, not to, well, we have a lot of people who even don't have matric or who have matric, who have masters, who have degrees, who have doctorates and experience. So that's was what we were investigating. We were not checking whether the person has the experience because indeed other institutions in their policy, they incorporate that even if you don't have the post matric qualification or the qualification, but your policy allows that because of your quality of your experience and everything.

Adv Mpofu: Okay. I think that's the nub of the issue. Yes. Did SARS provide you with a policy that allowed for someone with a matric, let's say, only, to rise up to the level of a commissioner of SARS, Deputy Commissioner of SARS?

Adv Mkhwebane: There was no policy. The only thing we got was that goodness of fit, which is not a policy, we need a policy maybe we should say that irrespective of the qualifications, we can appoint any person based on their experience. And further, the worst part is that the response by SARS, which we will go through, where 5.6.10, yes, they were saying it was approved by Cabinet and therefore SARS did not have any records of Mr Pillay being appointed Commissioner for SARS. So this one, it was relating to the commissioner. Well, officially, he was acting. But the issue here we will still go through was that the investigators were saying in the file they couldn't find any information.

Adv Mpofu: Alright, well, that's fine. And I'm sorry, if I seem to be almost asking the same question, but in a different way. But it's for the sake of emphasis, let's say, irrespective of what you believe, as a person as to whether someone with a matric can be the commissioner for SARS. Let's say that there was indeed a policy that said whether you have a matric or not, if you have sufficient experience, you can rise up to any level, would that have further from the point of view of Public Protector, would that have resolved the issue?

Adv Mkhwebane: You know, if they've shown us the policy, and indicated that here is the appointment, and I think we are still going to come to the issue of when the post was advertised to, at level, what were the requirements, but then if they've shown us the policy and said this is what was agreed upon and approved, then we would have thought about it. Because remember, again, we are checking the qualification. Yes, it would have given us a different conclusion.

Adv Mpofu: All right. Now, let's check if you allow me, I'm trying, I don't know if I'll succeed. I'm trying to, to finish this issue before we break. Because, as I say, as far as I'm concerned, I think it's done, but we just want to make sure we don't leave any loose ends. Let's go back to the source again, the judgment, go to paragraph 235 of the judgment. Because we now know that the Independent Panel’s Report, which Ms Mazzone and everyone relied on, this judgment, to place you where you're sitting now. 235. Oh I’m sorry try page 81 of the actual judgment. Yes. So this, let's hear what Justice Baqwa and his two colleagues Justice Wendell and Basson had to say about this, which is the basis for the thing at the end number 9.

Adv Mkhwebane: There's contention in the answering affidavit and submissions made on behalf of the Public Protector that the Public Protector meet no finding that Mr Pillay had no matric and that Mr Pillay did not provide the information about his qualifications when he was asked to do so is disingenuous.

Adv Mpofu: But now, as a matter of fact, we know that you are never provided with a matric certificate and that's all they said in the report. Okay. And then, and then it says then the conclusion that Mr Pillay had no degree and no matric was central to the Public Protector’s finding. Pillay was not qualified to be appointed as Deputy Commissioner of SARS. Is that true?

Adv Mkhwebane: It’s not true because we were looking into the qualification. So it was not only a degree and no matric, that Mr Pillay had no degree and no matric was central to our, we were looking into the qualification. So yes, indeed, the qualification issue was then something which we received information from SARS, Mr Magashula, Mr Gordhan, that he had no formal qualification.

Adv Mpofu: All right. Okay, let's just go to 236. And the judge says, accordingly, at the time of the report, the Public Protector well knew that Mr Pillay has a matric certificate. Did you know that Mr Pillay has a matric certificate, have you ever seen it?

Adv Mkhwebane:  I've never seen his certificate and I think that's why in my opinion, I qualified the issue that was asked during the meeting when we were investigating the pension matter. And he said, I think we will have to just get that recording. He just confirmed that yes, he has a matric certificate, he studied where. But we never saw that copy and it was a different matter which we were investigating, not this matter.

Adv Mpofu: Yes. In 20 whatever year it was, did he say to you that he had a matric certificate or did he say that he did his matric at some high school?

Adv Mkhwebane: He did his matric at some high school.

Adv Mpofu: Did he give you a certificate?

Adv Mkhwebane: no. And then it says, that's the punch line. Her conclusion in the report that Mr Pillay does not hold even that basic qualification, notwithstanding the fact that on 25 March 2019, she accepted that this was a matter of public record and was within her knowledge is astounding. In doing so, she manifested clear bias against Mr Pillay in material irrationality and arriving at the findings and so on. And then we submit that this further demonstrates that the Public Protector closed her mind and adopted a process of irrational reasoning. That's really the, after all those factual issues, this is the basis then for the finding in paragraph 290. Is there justification for that?

Adv Mkhwebane: There's no justification to that because what I did was that relying on the evidence before us, Chairperson. The evidence before us is very clear. I mean, if we go back to the report, I've shown again that here is the information which is clear from our report that firstly, when this matter was investigated, and SARS response dated 5 February, they did not dispute that Mr Pillay did not have a matric, a degree and in this paragraph also, we said he did not possess a matric certificate. Then again, it's Mr Magashula who said Mr Pillay – the only thing which was done is this goodness-of-fit. So that's the information which was before me. Thirdly, Mr Gordhan in his affidavit, he says there is no formal qualification required for the appointment as Deputy Commissioner. Mr Pillay proved himself amply qualified for the position by his dedicated and self-service in this process. So there is nowhere where I’m given the qualifications, I'm given and the certificates about this matter. Then that's the conclusion which we had to come to as an institution because the legal framework which was followed, I think chairperson, I would want us to go there, I don't know where that is. Because the legal application of the relevant legal prescripts paragraph 97, Chairperson, we say the appointment of Commissioner, okay, before that, SARS saying to us, the file of Mr Pillay, he appointment was done by cabinet and then again being told that the file of Mr Pillay 5.6.12 where SARS stated that Mr Pillay’s personnel file had been removed and in the process relevant documents had been removed. These included Mr Pillay’s appointment letter, the memorandum directed to Mr Trevor Manuel by Mr Gordhan which set out the roles of the SARS deputy commissioner and they are saying Cabinet approved the appointment of three Deputy Commissioners, namely Mr Magashula, Mr Pillay and Mr Kieswetter. So, when I approached or when the investigators in their investigation, we requested all these documents, remember the story of the municipality, because it's basic information. Indeed, we wanted to check when that post was, when he was appointed, what motivation was given, whether the post was advertised, whether there was proper competition for the position, but it’s clear that apparently he was appointed by cabinet and yes, we wanted to get those documents and unfortunately, they were telling us that the file has been removed from the HR. But irrespective, they confirmed themselves, including Mr Gordhan that no qualifications are needed.

Adv Mpofu: Yes. If we can jump to the conclusions which were on page 98; if you just read the first two. 5.6.26.

Adv Mkhwebane: All right. SARS and Mr Gordhan considered that Mr Pillay did not possess a degree qualification or a matric certificate.

Adv Mpofu: Alright, next one.

Adv Mkhwebane: Mr Pillay was appointed to the position of Deputy SARS Commissioner on 15 April 2009, along with Mr Magashula and Mr Kieswetter. The motivation given by Mr Gordhan, which was approved by Mr Manuel was that due to the new leadership model, being adopted by SARS, it was required that three Deputy Commissioners be appointed for SARS

Adv Mpofu: Okay, please jump to 5.6.31.

Adv Mkhwebane: It is however apparent that SARS did not take the qualifications of Mr Pillay into consideration in his appointment as deputy SARS Commissioner. The argument by Mr Gordhan that the decision to appoint Mr Pillay to the position of Deputy Commissioner was based solely on Mr Pillay’s previous experience and acquired skill is vague considering the level of the position.

Adv Mpofu: Okay, well, that seems to be the…

Adv Mkhwebane: I think they 5.6.32 is also very critical because we're dealing with the South African Qualifications Authority because we are saying, another question which I asked the investigators, okay, they've submitted this goodness of fit document, was this goodness of fit document SAQA accredited because well, knowing having worked at home affairs in the past that we wanted training, not a training well, the training model, but as well, the taking into consideration the special skill of the refugee status determination officers. So we had to develop that manual and that manual we were told the process on how it can also be accredited so that it's a recognised document for well, policy kind of document which is properly approved. So this was one of the just internal arrangement goodness of fit which was conducted by this consultant and that was it, the internal succession plan.

Adv Mpofu: Yes. Can we just cut it down to this? Whatever, whether Mr Pillay has a matric or no matric, or whether he has a certificate or, Degree or no degree, did your conclusions on the issue of his qualifications, was it because you didn't like him, or because you wanted to target him, or because you were biased against him?



Adv Mkhwebane: Not at all. I never knew Mr Pillay, I don't know Mr Pillay, I don't have anything against him. Not at all, including the very same Mr Gordhan. So it was just purely an investigation and supporting constitutional democracy, making sure that the law applies to everyone equally. In public administration, the intention was, here's the gap, you can't do this. This is a high position. If you want to do it, have a clear policy, which is properly approved. Also, if you regard this goodness of fit as your document, can it then be approved properly, because SARS is part of public administration? Again, with the intention of guiding future leadership, future administration, do things properly. You have the law which you need to comply with.

Adv Mpofu: Thank you, Chair. Thank you for allowing me that. Unless there's something, I want to move on to something else.

Chairperson: Thank you. We now want to take lunch. We'll be back at five past two. Thank you.

[Break]

Chairperson: We’ll resume and proceed, Adv Mpofu.

Adv Mpofu: Thank you Chair. Okay, Chair, I need to raise the issues now.

Chairperson: No, I will indicate when. I want to do interact with the witness.

Adv Mpofu: You said after lunch Chair.

Chairperson: After lunch. Five o'clock is after lunch.

Adv Mpofu: Okay, thank you Chair. PP, can we now go to the more generalised section which it has its own sub issues, it's just to sweep up on this particular report. And before we do that, I just want for you to indicate two things about the judgment. One is that on the positive side, shall we say, for you, those judges Baqwa and the others and as well as the other three judges who dealt with the Pillay matter found in your favour in relation to at least one aspect, which was the insults hurled at you by Mr Gordhan and Mr Pillay which were found to be, at least in this case, vexatious, scandalous and irrelevant. Do you remember that?

Adv Mkhwebane: Yes, I remember that.

Adv Mpofu: And again, I cannot go into much detail on the specific insults, because I've dealt with those with Ms Mvuyane, but because you are the person who has been insulted, I think we need to just deal briefly with those. You will remember that the entire attack from Minister Gordhan and Mr Pillay was that these investigations were conducted by you, because you were part of a state capture and corruption and we were colluding with practitioners of state capture and you are not fit for your office and those kinds of accusations.

Adv Mkhwebane: Yeah, if you can think, if you're still going to take me through in the judgment, or what they said. Because, yeah, I need to confirm what they wrote.

Adv Mpofu: I was trying to avoid that, but as I say, even though we've dealt with it with Ms Mvuyane, I think we should deal with it with you.

Adv Mkhwebane: Cause it was said to me.

Adv Mpofu: Yes, about you and to you. Alright, alright, let's, mainly, they're not repeated in detail in this judgment, but they're repeated in the Pillay judgment. Okay, we'll go to the Pillay judgment, do you manage to find the Pillay judgment? Okay, go to the Pillay judgment at paragraph… Sorry Chair.

Chairperson: That's okay.

Adv Mpofu: Paragraph 66. Oh, yes, that's an expression that I was looking for, standing in competence. That's what Mr Gordhan accused you of. Okay. Now, the background to this is that, the allegation was that there's nothing wrong with the so called rogue unit, nothing wrong with the Pillay retirement, you were just driven by factional motives and that kind of thing.

Adv Mkhwebane: Yes.

Adv Mpofu: All right. Now, the parts that you wanted, are quoted in the judgment. Go to paragraph 89 of the quoted part. Yeah. And we'll remember that Mr Pillay said he embraced all this is in his own right and his own affidavit here. And Mr Gordhan says I can only conclude that the rush to complete and issue the report within two days of the receipt of my submissions and those of other implicated persons was informed by improper and irrelevant consideration or an ulterior motive. By this time, I'm into referring to the Presidential Inauguration of the Third Respondent, that is the President, held on Saturday 25 May 2019 and the political context in which my political opponents have sought to use the complaint lodged with the Public Protector and now her report to attack my integrity.

Adv Mkhwebane: I have seen it and I remember there is the question. How can he say that it? Firstly, we only took 48 hours or two days to consider their response. And, I mean, it means also attacking the integrity or the work ethic of those investigators who already had a report, which was already been drafted, the only thing which was remaining was to incorporate. And if they the matter was going to change the way the report was crafted, it definitely was going to be indicated in the report.

Adv Mpofu: Yes. All right.

Adv Mkhwebane: And it had nothing to do with the…

Adv Mpofu: inauguration.

Adv Mkhwebane: inauguration or when was it, and I think you will see in the date we issued those reports, there were a number of other reports which are issued.

Adv Mpofu: Yeah, okay. Well, I think I remember bumping into you at the inauguration, so I thought maybe you were rushing to, so that you can attend it, after he was gotten rid of. All right. And then he says, there is no other plausible explanation for why the Public Protector would have effectively ignored my submissions to her of 22 May 2019 received, in response to the section 7(9) notice. Well, firstly, did you ignore his submissions in the response to the section 7(9) notice?

Adv Mkhwebane: No, that's not correct, because in that report, those responses were incorporated.

Adv Mpofu: But anyway, he goes on to say that I believe that the report was issued when it was issued with the findings and remedial actions it contained, so as to enable a renewal. This is now by you. Listen to this one, to enable, you wanted to enable a renewal of the ongoing political campaign against me by proponents of state capture, and defenders of corruption. So in other words, you sat down in some room with proponents of state captures and defenders of corruption and decided to issue the report on a particular date. Did that happen?

Adv Mkhwebane: No, that's not correct. That's very wrong of Mr Gordhan and any other executive, I mean, who is supposed to be subjected to investigation by the Public Protector to insinuate such issues.

Adv Mpofu: Yet, and he says, I believe that my political opponents and those who are fighting back against the work underway to restore the integrity and stability of state institutions, good governance and continue eradication of corruption, which to use the report to attack me and my integrity and good name. Well, I don't think that he says you're answerable for that. Then the next one, the immediate reaction to the report from certain opposition politicians and their surrogates was an attempt to claim that I'm tainted in some way, unsuitable for reappointment to a position in government, continue my life contribution through political activism for the good of all South Africans. Then it says at 14.4 as set out below, in bringing this review application, I join a long line of litigants who have to run to the courts to ensure that this Public Protector and Adv Mkhwebane in particular acts in accordance with the law and the Constitution. This track record of adverse findings against the Office of the Public Protector and Adv Mkhwebane specifically demonstrates, in my opinion, that she is unfit for the office that she holds and appears unable to lawfully and constitutionally exercise its powers.

Adv Mkhwebane: So that's the same language which I was mentioning earlier which was used by certain Members of the Executive. They end up finding themselves in the court judgments and end up finding the same wording perpetuated in the media and in the motion. So that's the choreography which I was talking about.

Adv Mpofu: Yes. Then they say at paragraph 68 of the judgment now. “It appears in the heads of argument as if the Public Protector is contending for these paragraphs to be struck out due to relevancy”. Probably wanted to say relevance. And then it says, “However, in court, her counsel, Mr Mpofu, took a different stance and in fact emphasise the nature of the elements contained in paragraphs 38 to 40 and 70 as being scandalous. He argues that the said averments are worded as to be abusive and defamatory of the Public Protector, whose dignity the applicants are duty bound to protect”. That's the section 181 that…”The allegations are said to be abusive insofar as they're insulting. They are also said to be defamatory to the extent that the Public Protector has been intentionally and without any legal justification accused of criminal conduct without any foundation, thus rendering them scandalous and so on”. And then the courts then quotes from the EFF v Nkandla case, which we have quoted before.

Adv Mkhwebane: Yes, the issue of I don't know which paragraph it is on the raw state power and the most powerful who didn't want to be held to account.

Adv Mpofu: Yes.

Adv Mpofu: This again, as I was saying, to be fair to the judiciary where credit is due. This was a quotation from Judge Khampepe who made the remarks which I think you referred to in the morning.

Adv Mkhwebane: Okay.

Adv Mpofu: Yes, she made the remarks in the EFF v Gordhan matter, not the Nkandla case.

Adv Mpofu: Okay. And this is what Justice Khampepe said in that matter, which was one of the offshoots of this matter, you remember, it's the one about the costs where there was a challenge about the costs.

Adv Mkhwebane: That's correct, yes. In the ConCourt, yes.

Adv Mpofu: And then this is what Justice Khampepe said in that matter. “This matter has garnered much public interest and criticism; it is a matter which has political bite to it. It is thus understandable why the public would have an interest in it. However, it must at all times remember that courts must show fidelity to the text, values and aspirations of the Constitution. The court should not be moved to ignore the law and the Constitution and nearly make a decision that would please the public”. I think that's the point you were making earlier about not being swayed by the popular and manufactured consent. She then says, “The rule of law, as entrenched in the Constitution enjoins the judiciary as well as everyone within the Republic, to function and operate within the bounds of the law. This means that a court cannot make a decision that is out of step with the Constitution and the law of the Republic. It must impartially apply the law to the prevailing set of facts without fear, favour or prejudice”. I'm sure you'd agree with that.

Adv Mkhwebane: That I agree. Yes.

Adv Mpofu: Justice then said, “With that said, courts should not be immune to reasoned criticism”. And I think that was the point about Justice Potterill, and so on. “In fact, in a constitutional democracy like ours, criticism of the courts and other public figures is strongly encouraged. There should be a robust debate in the public domain on pertinent issues that affect it. However, there is danger in following populist rhetoric and labelling courts as captured and corrupt without some reasons or evidence. This undermines one of the core tenants of our constitutional democracy”. I'm sure you agree.

Adv Mkhwebane: Yes. I agree.

Adv Mpofu: And then lastly, she says, “similarly, the Public Protector is a constitutional servant, like the courts, and her office should be afforded respect. It is an office of fundamental constitutional significance and her powers are not only desirable, but also necessary for the purpose, inter alia, of holding public office bearers accountable. Her role in our constitutional democracy cannot be gainsaid. While she may be criticised, these comments should not be perceived as undermining her office and its constitutional powers. To mount a bad faith attack on her office would surely work to undermine the constitutional project of the Republic”. Do you agree?

Adv Mkhwebane: Yes, I agree with it.

Adv Mpofu: And then the judges basically then agreed with your arguments that the Mr Gordhan had gone overboard in the insults held to you, correct?

Adv Mkhwebane: That's correct.

Adv Mpofu: And specifically, it was added that, as you said there in the morning, some of these even had a condescending or even racist undertone, sexist as well. Correct?

Adv Mkhwebane: When we were submitting to court to strike out? 

Adv Mpofu: yes.

Adv Mkhwebane: definitely. Because that's what made me to question those comments.

Adv Mpofu: Yeah, yes. And particularly the one that we have already picked out, which was basically saying, you would be incapable of dealing with Mr Gordhan's representations in 48 hours or in two days.

Adv Mkhwebane: Yes, because it was like undermining our capability to do our work. I mean, it was just a few pages of the response considering the 100 and something pages of the report which was prepared. But again, the report, the response was properly incorporated into our report and it was considered.

Adv Mpofu: yes, and that is something that you found particularly demeaning or condescending?

Adv Mkhwebane: correctly so, because it was as if we don't know what we are doing. And I mean, the worst part is that his utterances were that, I mean, the Public Protector, especially the Public Protector, or Adv Mkhwebane:. So it was like, yeah, there's something problematic about me. And yeah.

Adv Mpofu: okay. And the court then said at paragraph seven, Justice Baqwa and the others said “the promise that the Public Protector cannot deal with a representation. No, no, this is not Justice Baqwa. Remember, we're quoting it from the Pillay judgment. And so this was Justice Khubushi, she was presiding, sitting with Justice Twala and Justice Davis.

Adv Mkhwebane: In the Pillay matter, yes.

Adv Mpofu: Yes, it was another full court. But to be sure, Justice Baqwa and other three judges also upheld this objection, except the only difference is that in the Pillay matter, Minister Gordhan and Mr Pillay were asked to pay punitive costs for this and then the other one the Baqwa matter they were asked to pay ordinary cost, but that's just a minor difference. Okay, so this is what the charges say, “the premise that the Public Protector cannot deal with representation received in the space of 48 hours is unfounded and meritless. Firstly, the evidence shows that the reporter already existed in near complete form at the time of the Public Protector received the representations. Secondly, the Public Protector states categorically in her answering affidavit that when she received Minister Gordhan’s representation, she analysed it and found nothing there to persuade her to change the report. Unless, of course, there can be evidence to indicate that the Public Protector was lying, that she never actually analysed the response of the applicants to the section 7(9) notice. This remains an unsubstantiated allegation and runs into the Plascon-Evans rule because of the dispute”. And this is the part that you are referring to. And then they go on to say, “it is also condescending of the applicants to want to argue that the Public Protector will be unable to deal with their representations within a period of 48 hours. The record shows that, indeed, the notices were dealt with, that they might not have been dealt with to the satisfaction of the applicants does not detract from the fact that the representations were dealt with in the report. Thus, the applicant’s argument that the Public Protector did not consider their response to the section 7(9) notice is unfounded. And the further allegations that she was politically motivated and that ulterior motives informed the report are also unsubstantiated. There is no evidence to establish the allegations, none at all. And then they then present what was argued by the other side. And in the end, the judges found that, at paragraph 86, “the making of such averments, was said to be nothing short of a gratuitous insult by the wrong person in the wrong forum”. And this was a specific reference to the alleged your unfitness for office. In fact, maybe let me read the previous one, because it's the point that the chairperson made yesterday so well about which gets forgotten actually, that the Constitution insists that your removal and accountability should be done by the National Assembly, which is why we're here. Neither the executive nor the judiciary have the power to do so.

Adv Mkhwebane: Correct.

Adv Mpofu: And this is what the judge has said. On the averment that the Public Protector is unfit for her office. She contends that these arguments are unwarranted, unsubstantiated and misplaced. More so, as they cannot be likely appropriate or appropriately made or pronounced by either a member of the executive such as Minister Gordhan, or even this court as part of the judiciary, but can only be articulated by the legislature in terms of the doctrine of separation of powers.

Adv Mkhwebane: That's correct.

Adv Mpofu: Very important. The making of such averment is said to be nothing short of a gratuitous insult by the wrong person in the wrong forum. And then that they should be, in any event, making it in the sense that even if the court agreed that you're unfit to Office, there's nothing it can do about it. Okay. So then it says “we accept that the impugned paragraphs relating to the Public Protector’s fitness to hold office should be struck out on the basis that they are in relevant as they relate to an issue which, to the knowledge of the applicants falls outside the jurisdiction of the courts. For, as argued by the Public Protector, even if the allegations are correct, there is nothing that the court can do, because of the separation of powers. The proper approach is to refer such complaints and or allegations to Parliament”. And then it says “we are in agreement with and accept Ms Le Roux’s argument that paragraphs 38, 39, 40 and 70 cannot be read in a way that could be held to be insulting, contemptuous or defamatory, because they all inform Minister Gordhan’s sincere belief. Minister Gordhan sets out in paragraph 38 to 40 his subjective belief about why this seems suspicious to him to ground the ulterior cause of action and throughout that set of paragraphs he is very clearly explaining the fact that he relies on and refers to surrounding circumstances”. But then they say, “This, however, does not mean that the paragraph should not be struck out. When the averments made by the applicants in paragraphs 38, 39, 40 and 70 are considered whether individually or cumulatively, they can be construed as nothing else but gratuitous averments made based on suspicion, the averments are therefore, vexatious and made intending to annoy the Public Protector. A similar findings based on allegations couched in similar terms by Minister Gordhan, has been made in Gordhan case”. “They should similarly be struck out in this application, for the reasons advanced above”. Yes. And then the rest of it is about the costs. As I said the matter was struck out with costs on an attorney and client scale in this particular case.

Adv Mkhwebane: That's a difference to the other one.

Adv Mpofu: Yes.

Adv Mkhwebane: Okay.

Adv Mpofu: And then, and I know Chair again, I know I've read this before, and I've raised it before. Even I think on the first day of our appearance here. This court referred to another case, which is important for the point that the Chairperson was making correctly yesterday. And that is the case of Institute for Accountability in Southern Africa v Public Protector and Others 2020 (5SA179 GP).

Adv Mkhwebane: The one of Adv Hoffman.

Adv Mpofu: In that case Adv Hoffman, as he took the matter to court to say that you must be, the court must declare that you are unfit for office, and the Court told him that you are in the wrong shop, as it were.

Adv Mkhwebane: That's correct.

Adv Mpofu: Yeah. And so this court now the full court, endorsing that decision, said the following “the court in Institute of Accountability in Southern Africa, when determining whether the Hollington rule applied, in relation to the applicability of findings of previous courts, to subsequent civil proceedings held as follows”. And I must pause here for the non-lawyers. Hollington rule is the one that says that judgments of other courts are opinions of those courts and it’s an English court. And here it says, ultimately, the rationale for the Hollington rule is that the findings of the previous court constitute the opinions of that court and for that reason, are irrelevant and inadmissible in subsequent civil proceedings. In paragraph 95…

Adv Mkhwebane: The same judgment. Chairperson?

Chairperson: PP?

Adv Mkhwebane: I’m saying Tshepo is asking is it the same judgment.

Adv Mpofu: Yes. The very same one that we were reading. I just jumped a few paragraphs. And this is, by the way, this is just the court agreeing with your paragraph 91, which it says “the line of the National Director of Public Prosecutions, the Public Protector in her heads of argument, submits that allegations relating to other court cases to be struck out as irrelevant as they constitute the opinions of other courts. The decision for some of which is still pending, okay. Anyway, so back to the quotation from the Hoffman case, sorry, or the Accountability whatever case. It then says, “even though such findings constitute expressions of opinion, they cannot be equated with the opinions of ordinary individuals and cannot be treated as such. Those findings were made by judges, and confirmed in certain instances, by the justices of higher courts of the land. Judges have a duty to form and express opinions on concerning issues raised before them. And they arrived at those opinions aided by procedures, including law and evidence, which was designed to ensure that they base those opinions on the correct information. Those opinions are also binding on all persons and those organs of state to which they apply”. So that court, as it were, was qualifying the fact that, which is the point I think we made on your behalf on day one, that when one says judgments or opinions, it doesn't mean like somebody walking in the street and expressing an opinion about whether it's hot or cold today. But judgments are opinions nevertheless. And then it says “for all these reasons, the impugned paragraphs must be struck out as irrelevant”. And yeah, yeah.

Adv Mkhwebane: Again, coming back to well, just that you're mentioning Adv of mine, the very same complaint in CIEX, which we'll deal with later and adv Madonsela was trying to correct the affidavit to include that. So it's the same complainant but as well he's the same one who took the matter to court to just declare me unfit. He's been just trying through hooks or crook to do that. He even opened the case, Chairperson, the one of alleged perjury. So…

Adv Mpofu: yes, it is the same Adv Hoffman. You will also remember that in the case of your suspension, the one way it was found that the President acted with retaliation. The first letter ever written to the President to call for your suspension was by Adv Hoffman in 2020.

Adv Mkhwebane: Correct.

Adv Mpofu: And the President correctly wrote to him to say that he cannot do so until this process, until the proceedings have started as identified in 1943(a).

Adv Mkhwebane: That’s correct.

Adv Mpofu: Anyway, be that as it may, the point, really, I think, just for the sake of completion is to say that both this Court and the rogue unit court made those important findings, even though for obvious reasons, they were not reported in the media.

Adv Mkhwebane: Yes, that's correct. And I think, Chairperson and Members of the committee, my earlier address about how sometimes the system operate, also include some people who will be hell-bent to make sure that you are removed. And not because you are not working simply because you are this colour which is not supposed to lead this institution, unfortunately, they are assisted by one of our own or some of our own.

Adv Mpofu: Yes. And because of that non reporting, that's why you find some fake outrage, for example, what is said by the judges here that judgments are opinions expressed. But if they had been properly reported, I think people would…

Adv Mkhwebane: would understand, yes. Even former Public Protector when she was here, she indicated.

Adv Mpofu: Oh, yes.

Adv Mkhwebane: her opinion, yes.

Adv Mkhwebane: Ms Madonsela also said that when we put the criticism by Judge Potterill that it was Judge Potterill's opinion and she didn't agree with it.

Adv Mkhwebane: That's correct.

Adv Mpofu: All right. All right, well. The final issue on this is that we've now analysed that judgment and we've shown that all the nine pillars relied on that judgment for your alleged bias and liked by Miss Mazzone by extension are flawed.

Adv Mkhwebane: Definitely, they are flawed.

Adv Mpofu: Yes. And despite that, the reason why we're here, among others, is that you, you tried, you, I mean, you did everything in your power to have those flawed conclusions to be changed. Firstly, you went back to those three judges for an application for leave to appeal pointing out some of those flaws, correct?

Adv Mkhwebane: That's correct.

Adv Mpofu: That application was dismissed.

Adv Mkhwebane: Correct.

Adv Mpofu: Then you went to the Supreme Court of Appeal to ask for leave to appeal against the judgment.

Adv Mkhwebane: That is correct.

Adv Mpofu: That application was dismissed by two more judges.

Adv Mkhwebane: That is correct.

Adv Mpofu: So that's now eight judges.

Adv Mkhwebane: Yes.

Adv Mpofu: And then you took the matter in terms of section 72 (F) to the President of the SCA and that application was dismissed.

Adv Mkhwebane: Definitely it was dismissed.

Adv Mpofu: And then you took the matter to the Constitutional Court to point out those flaws and that application was dismissed. Correct?

Adv Mkhwebane: unfortunately, it was dismissed again.

Adv Mpofu: Yes, twenty. All right. Now, there's nothing more you can do, I suppose. There's no other court to go to…Oh you even took the…oh that was a different matter, the one of Jafta J. So basically, those nine findings, including this YouTube, and some of them, like the YouTube thing, which are so obvious, and the fact that you said you did not see the report, which is nowhere to be seen and the monster and all those things, Sunday Times, all that survived our entire judicial system.

Adv Mkhwebane: Definitely, including the qualifications of Mr Pillay and the responses. All those judges failed. Hence, my then conclusion, Chairperson, that sometimes what is reported, and we were showing you what Mr Gordhan said, yes, it was struck out. But unfortunately, then there would be those mainstream media, especially News 24 and Daily Maverick will then pick up and nitty-pick those narratives and then report about it. And the more they report about it, that it will strike out. I don't think they even report it about it. But they will still continuously report that the Power Protector is part of the state capture connected dots. She's factional. Hence, I said to you earlier, I mean, even your legal brief, instead of informing people properly, lawyers, judges and advocate, then they sensationalise, that's the problem we have in South Africa. Unfortunately, you won't see that if you are in their good books and you will not being treated like that. But unfortunately, as I said, as a country, we cannot allow something like that which still perpetuates, you know, what was used even during apartheid in the Stratcom in the way they characterise-assassinate people. They might do that to me. I've got the record of that, my family, close friends, they know now, how the media operates. But then with the process again, as I said, those who have ears and eyes, let them see what the system can do to a person and the choreography of the process throughout. So I will plead with judges again, in such instances, given an ear, you know, check all the documents, show that you've applied your mind, you have considered indeed, because a lower court might come to a different conclusion. But when it's appealed, a different set of judges might see something which you didn't see, which I think we've proven here that with the Bosasa matter. There was an issue of a minority judgment. Minority judgment, at least it shows that, you know, people have applied their mind. So I think it encourages our democracy to show that at least somebody listened. And not me, because everything I did, I was doing it for the protection of the public; it was not a selfish thing that I want to be populist or to be known. No! It was just purely to say, we are doing our work and that's what I always preached to the staff.

Adv Mpofu: Now, okay, so for me herd mentality. So alright. Anyway, the reference then to this issue, I think it's 109, yes, which is really what I was building up to chapter seven, or linking it to the report under the so called general section. Fortunately, so that I don't have to fight with the Chairperson, fortunately, you dealt with this in your report. And so we can then deal with it, but without now referencing it to the court findings because we've done it. If you go, Chairperson, to page 109 of the report. Yeah, it's 5.8.8. They had in the report which says “a response to the allegations made against me, that's the Public Protector, in the performance of my duties as the Public Protector. We've covered most of those, as you said. They didn't just start in the court papers, which we've just covered. But the some of the remarks preceded this. I think you said earlier in the morning that it was this kind of thing that made you to have that YouTube press conference.

Adv Mkhwebane: Yes, this is what transpired and Chairperson, as I said, I had to also include this in the report, just to show how it was difficult for me to do this investigation and also to remind whoever is reading this report how I was treated with contempt. And what the Constitution section 181(3), section 182 and sections 6 and 7 of the Public Protector Act were saying. Again, I was using this opportunity to sensitise whoever, public servants and anyone to know that, you know, if you are in the executive and taking an oath of office, you should be respecting the office, even if you don't respect me, but I think a respect to the office, which is, if you've taken an oath of office to respect even the Constitution. And there was resistances as I indicated, the tone of which was used to undermine the institution. Because remember, when I subpoena a person, they appear before me, hence, even the first meeting when we were doing the Pillay, if you listen to that audio, I don't know whether we're going to do the Pillay matter, but then you could hear the attitude in the way I was addressed by Minister Gordhan. And I had to explain to him the mandate of the institution, how we conduct investigations. And you know, but you'll hear it if you're going to listen to it, you'll judge for yourselves as Members of the Committee because you can hear the tone. You can hear when I'm explaining, it's like, you know, you're not saying anything. When my officials were explaining, I remember Mr Nomasisi... Ms Magaladi were there, then that's when you could see that he's possibly sharing them. So…

Adv Mpofu: Sorry who was that?

Adv Mkhwebane: Mr Gordhan.

Adv Mpofu: okay, no, no, yes. Unfortunately, no, I don't think we'll get to that audio, even though one way he was kind of abrupt in dealing… No, we weren't, unfortunately, unless if we have to, Chairperson. Okay. I don't think I have to say anything. I don't think we're going to go into the Pillay matter in any great detail. I don't need to explain.

Chairperson: Adv Bawa?

Adv Mpofu: Okay, no, no, we will l get into it. But I have had discussions with Adv (inaudible)…

Chairperson: Don't engage in whisper.

Adv Mpofu: It was a loud whisper. No, it's fine. Let it go. It's alright. Yeah, we can, Okay, yeah. But we want to go into the Pillay matter for now until it's confirmed that we don't have to. I don’t want to breach..

Adv Mkhwebane: And then paragraph 5.8.1.3. That's why specifically I draw attention to the conduct of Mr Gordhan in the manner in which he conducted himself through his legal representative.

Adv Mpofu: I'm so sorry, PP. Before you go there, you referred to, in your previous paragraph 5.8.1.1, you referred to sections 181, 182 of the Constitution and then you also referred to sections 6 and 7. What you left out there obviously was sections 9 and 11 of the Public Protector Act. And I think just so that we don't take the members back there. It's again this issue about you being sometimes accused of equating yourself to a judge, but that actually the legislature itself has done that. And section nine, Chair, reads, “No person shall insult the Public Protector or the deputy Public Protector”. 91(b) states “no person shall, in a connection with an investigation do anything which if they said investigation had been proceedings in a court of law, would have constituted contempt of court.”

Adv Mkhwebane: Correct.

Adv Mpofu: And then section 11 which is where the bite is which criminalises such conduct. It says “any person who contravenes the provisions of Sections 3, 7 and 9 of this Act, or interferes with the functioning of the Office of the Public Protector as contemplated in Section 181(4) of the Constitution shall be guilty of any offence. And any person who was convicted of an offence in terms of this Act shall be liable for a fine not exceeding 40,000 Rand or to imprisonment for a period not exceeding 12 months, or to both such fine and such imprisonment”.

Adv Mkhwebane: Yes, that’s correct.

Adv Mpofu: Yes. And the point we'll make there is that there's no other office, at least that I know of, in South Africa that is protected by contempt proceedings like a judge.

Adv Mkhwebane: Yes, it's correct.

Adv Mpofu: Not like the Chairperson here, you can insult him and not go to jail.

Adv Mkhwebane: Yes, because that's what I said the conduct was tantamount to contempt. And indeed, this also shows the drafters of the Constitution, and that they had wanted to make sure that this institution is protected, because if you are dealing with those who have power and resources, you should be assisted and protected. And no one must interfere with the functioning and the performance of my functions.

Adv Mpofu: Yes. Okay, if you can. You spoke about tone. And I think that start from 5.8.1.2.

Adv Mkhwebane: Yes, I said there has been a continued tone of resistance and undermining of the functions and integrity of the Public Protector as a person and as an institution. That's what transpired in 5.8.1.3. Specifically, I draw attention to the conduct of Mr Gordhan in the manner in which he conducted himself through his legal representatives who seemed hell-bent not to cooperate with my office. And in doing so, he was using the media to tarnish and vilify the image of the Office and of myself as the Public Protector. There are various interviews with which Mr Malatji did with the 702, eNCA as well, where he was just perpetrating all these narratives of me targeting Mr Gordhan, and, you know, wanting to deal with him. And I think if you use media and the media is supporting you, then it will be reported in all spheres. Because this report also led to a situation where I was even attacked by the SACP, Mr Mapaila, and there was even a media conference or a celebration where it was in collaboration with Kader Asmal Foundation where they spoke about this as if I was persecuting people who are working for the Unit. And again, not understanding that I was just taking the operations and what laws are violated. I had nothing to do with the people, Mr Gordhan, and stuff like that. That was the challenge which one was facing, but again because of the resistance to not cooperate with me, and the statements made by Mr Gordhan and his attorney.

Adv Mpofu: 5.8.1.4.

Adv Mkhwebane: “So the above concern that I wish to indicate that the Office of the Public Protector is declared by the Constitution to be one that is independent and impartial. And the Constitution demands that its powers must be exercised without fear or favour or prejudice. Those words are not here material for rhetoric, as words of that kind are often used. The words mean what they say. Fulfilling their demands will call for courage at times, but it will always call for vigilance and conviction of purposes”. So that's what we read the section 182 which makes it clear that while the functions of the Public Protector include those that…

Adv Mpofu: Sorry, I think that part we have covered. The section 182, we covered yesterday, and

Adv Mkhwebane: The issue of us being proactive is really in our investigation.

Adv Mpofu: Yes. And then up to 5.8.1.8 where you dealt with Mail & Guardian, I think we've also covered that sufficiently.

Adv Mkhwebane: I think we also, yeah, dealt with the Minister of Home Affairs v Public Protector matter, which also helped, that it was clarified by the courts, our mandate. And then 10, “it is therefore unfortunate that despite the long standing legal views expressed in the above cases as well as the empowering legal prescripts, investigations of the matters before my office are still met with resistance, and legal challenges by those against whom they are conducted. So in light of the foregoing I strongly dispute assertions that I am pushing the agenda of capturing SARS. My only aim is to ensure that the people of South Africa are protected and public funds are not abused in the process of bringing service to our people. So that that was the intention of this investigation”. So I was addressing what Mr Gordhan said in his responses to our investigation.

Adv Mpofu: Right, now, in light of these observations and you've explained why you felt it necessary to actually express them in the report itself, not just in the media conference, which you had done. And just enough to indicate how strongly felt about the issue. Having put all this in the report, what then, was your reaction when, in the court challenge, in the affidavit a few weeks later, after releasing this report, you'll find in the very same affidavit, even bigger insults than the ones you had faced, such as you being part of a corrupt syndicate for lack of a better or conspiring with peddlers of state capture and corruption?

Adv Mkhwebane: I think it was very disappointing. Because then it meant as well, the undermining continued. It meant that my report was never read. And also reading the report would inform recipients to understand what I was trying to do, to understand that there are laws which need to be respected, irrespective of your position. But those laws were never respected. And also, we've explained ourselves in the report what we were investigating, what evidence was there. But then, he continued to do that before court. And that's what made me realise that no matter what investigation one is doing, it means it has been concluded that I've got the attitude or I've targeted Mr Gordhan which is not the case here. So I'm glad that fortunately, the judges then could see that this is not correct and this is very wrong. And I indeed, applaud and give them credit for doing that so that each and every person who's litigating, let's focus on the facts before us in the law, and forget about attacking each other, and you know, having those opinions which will have a way of degrading the integrity of a person.

Adv Mpofu: Okay, yes. We might need a five-minute break

Chairperson: We will take a five minute stretch, it's fine. We might as well just do five to eight minutes tea.

Adv Mpofu: I'm going to come back and address my issues.

[Break]

Chairperson: We start our last session of the day and I will proceed with Adv Mpofu. Over to you.

Adv Mpofu: Thank you, Chair. I just want to pick out just two issues from the judgment that do not quite fall into those nine categories, but where I need your comment. The first one is the rogue unit judgment in paragraph 104.

Adv Mkhwebane: what page is that?

Adv Mpofu: page 35 of the judgment. This is where again, I mean even if the Members of the Committee are not lawyers, but at least they are lawmakers so, I think they they'll be able to assess certain aspects. This is about your being wrong in law and all sorts of things. Okay, just 101, okay, I'm just going to use this, I'm not going to, just to see the kind of language or epithets that get used and handled. It says “the Public Protector’s stubborn reliance on an erroneous interpretation of section 3(1)”. And then in 101 it says, “but in addition to the fact that Sikhakhane report was widely discredited” and then it goes on to say that, we've already discussed that. The one I wanted to take you to is 103, “the Public Protector, in addition, argues in the report that the establishment of the unit Code is improper and in violation of Section 209 of the Constitution, and therefore amounts to a maladministration as envisaged in Section 182(1) of the Constitution and abuse of power as envisaged in Section 64(2) of the Public Protector Act. We went through that, you remember that part in your…

Adv Mkhwebane: in the report, yes. And I think maybe just to, okay, we're still coming to 209. Even s3(1) of the National Strategic Intelligence Act that was purely on testing the evidence and the facts on it.

Adv Mpofu: Yes. But anyway, in 104, then it says “this interpretation that in other words, your interpretation of section 209 of the Constitution is wrong in law, and does not constitute the legal basis for her conclusion. And a plain reading of section 209, it is clear that this section does not deal with the establishment of covert information gathering units at all”. Then it says section 291 reads as follows, as we all know, “any intelligence service other than any intelligence division of the Defence Force or police service, may be established only by the President, as head of the National Executive, and only in terms of national legislation”. Now, here's the part is what Judge Baqwa and the others say, “this section regulates the establishment of intelligence services, and is confined to the establishment of intelligence services dedicated to the protection of national security”. Where does that come from? Is there anything in that section of the Constitution that confines it to intelligence services dedicated to the protection of national security?

Adv Mkhwebane: I think, I don't see it in Section 209. And we've mentioned the section 209 in the report, and it was dealing with intelligence service. But what is also concerning is that they are plain reading. In 104 of section 209, it is clear that this section does not deal with the establishment of covert information gathering units. I don't know where did we speak about covert information gathering unit. Because I think if it was taken into context that we saw this memorandum which was signed by Mr Gordhan to Mr Manuel, and where they were saying we need intrusive way of gathering intelligence. And it was acknowledged by them that this falls squarely within the mandate of state security. So it was under that belief that this information should only be dealt with by State Security Agency. Yes, and it was very clear that the only exception in the Constitution is your intelligence service and which is established by the President, which is a state security for instance. And then you've got intelligence in the Defence Force and intelligence in the police service. So that's how I read this section 209.

Adv Mpofu: Yes, and if Ms Mvuyane said that some of the key red lights, if you like, of characterising this as intelligence where interception and surveillance, was there ever any doubt that this unit was doing surveillance and interception, by their own admission?

Adv Mkhwebane: Their own admission, yes. And they are also encroaching into the mandate of State Security Agency. Yes, they were allowed to do the investigations within the law and especially the demands of the Interception Act, which requires that whatever they do, they need to have the approval of the of the judge. So, the way they conducted themselves, it was solely in the equipment, which in the long run, it was very clear the kind of equipment which is kept there. I thought we were going to even show the Members of the Committee the equipment's, what kind of equipments were there and then definitely what they were doing, it was something which was falling within the mandate of State Security. And I think this issue that intelligence services dedicated only to the protection of national security, it's not true. Because everything you do as a state institution, especially state security, you protect your citizens, you protect your infrastructure, you protect everything and your borders, your sovereignty. So everything which is happening within your borders, and encroaching outside of your borders, you will have to protect. But here we were also dealing with the fact that as SARS, your mandate is investigative, yes, you can do covert, you can do this, do it within the law. But then you can’t have systems and equipments like this, which is only state security which can have that kind of capability. And I think that Mr Pillay even confirmed in the report where he said, there is a number of operations they did with state security and the police. So that is what they were supposed to be doing but not usurp the powers of State Security.

Adv Mpofu: Alright, thank you, because I say we'll deal with that. Whether that is true or not, the members of this committee, I think are capable of determining whether section 209 contains or can be interpreted in that manner. Alright, and there’s something else that I just wanted to deal with quickly is, and this relates to…

Chairperson: Pause Adv Mpofu. Adv Bawa?

Adv Bawa: I'm sorry. I don't want to find myself on a parallel universe. Let me just work this out. That was an issue of the question of law that was raised on section 209. Does your argument extend to interpretations of law as well in relation to judgments?

Adv Mpofu: Yes. If they're flawed they are flawed anyway. If they are patently flawed, you cannot say to a one-year old child and says something is there whilst it is not. Similarly, saying a YouTube meeting is a release of a section 7(9) meeting, you don't need to go to law school for that. Alright, so the other thing that I wanted to refer to is 5.4.4 page 101. Yeah, and this is, I was just saying, sorry before Adv Bawa came in there, this relates to a more general point that will be more pertinent I think in CIEX about, you'll remember there's that whole discussion about whether when you received a section 7(9) from Mr Magashula and you found that it was explaining the issue, then that's it?

Adv Mkhwebane: Yes. Yes.

Adv Mpofu: Okay, now, I'm just wanting to illustrate that principle here. Do you remember yesterday we were talking about the Chairperson’s favourite topic about implicated parties and affected parties and so on? And then we found that one of the section 7(9) notices in this matter was issued to Mr Manuel?

Adv Mkhwebane: Yes, correct.



Adv Mpofu: Now, I just wanted to illustrate a situation where if someone gives an explanation to you, you basically let the matter go. Can you go to 5.7.3? That's page 100. Chair, you do all the responses for all the 7(9), but I'm just picking out this one as a particular point. So the response received from Mr Trevor Manual to the section 7(9) notice dated 14th June 2019. Can you read that part?

Adv Mkhwebane: “Mr Manuel stated that the memorandum he signed approved the increase of funds to the new year's budget to create a special capability within the NIA to support SARS in its efforts to tackle the illicit economy. Mr Manuel argued that the memorandum he signed approved the transfer of funds to involve the NIA in supplying sites with the necessary intelligence, therefore, there was no wrongdoing on his part”.

Adv Mpofu: Yes. Now, that was the explanation by Mr Manuel. Did you then accept that explanation?

Adv Mkhwebane: Definitely the explanation was accepted. And hence there was no finding against Mr Manuel. In fact, yes, maybe there was remedy finding against Mr Manuel. Definitely. I think this one also is very clear that Mr Manuel understood the request, as I understood it, because he said this was to fund NIA so that they can provide the necessary intelligence to SARS, not SARS usurping what NIA should be doing.

Adv Mpofu: In other words, I think Mr Gordhan had made that point somewhere in either these papers or somewhere else. So just everyone is clear about this. In that famous letter, there were two types of approvals which were envisaged. One had to do with money and that was Treasury obviously that was for Mr Manuel and the other one had to do with the memorandum with NIA. And that would have to be approved by the Minister of Intelligence whom I think at the time was Minister Kasrils. That's correct?

Adv Mkhwebane: Correct.

Adv Mpofu: And the one by Mr Manuel was approved as indicated here, but the other one by Minister Kasrils was not approved. So therefore, then Mr Manuel had nothing to do with the operations, whether it's covert or not covert as interception. He had approved the part about the money.

Adv Mkhwebane: The money and the part about willingness to cooperate or sign the MOU so that they can support SARS with intelligence.

Adv Mpofu: Yes. Okay. Good. So once Mr Manuel then gave you an acceptable explanation in a 7(9), or was there anything else you could find against him or ask him to remedy?

Adv Mkhwebane: There was nothing which I mentioned, which was supposed to be done by Mr Manuel, but besides the Minister.

Adv Mpofu: yes. All right. If we go to paragraph 252 of the Rogue Unit judgment. Judge Baqwa and the others, now refer to you in a particular manner, start with 2.5.2.

Adv Mkhwebane: “But the demand made on the Minister of State Security to implement, in totality the OIGI report dated one October 2014, is the most astounding of all the remedial action contemplated by the Public Protector. Firstly, the possession or use of a classified report will clearly constitute criminal conduct on the part of Adv Mkhwebane, who is a former State Security Agency operative, remains bound by national security and intelligence legislation”.

Adv Mpofu: Okay, well, the judges called you a former State Security Agency operative, are you such a thing?

Adv Mkhwebane: No, not at all. I never saw this one, yoh, Chairperson.

Adv Mpofu: So you’ve never been… and you even missed this part in reading this.

Adv Mkhwebane: I never saw this part. I remember you asked SC yesterday. But I said to you, can you show me in the judgment as to why I am referred to as that, because now this also then perpetuates. And I remain bound by the national security and intelligence legislation. That's so wrong. It's not true. I was never a State Security Agency operative to anyone who cared to listen. I think possibly they were listening to what DA has been perpetuating that I am a spy. I mentioned over and over Chairperson that I was appointed by State Security in July 2016. I was working for the Department of Home Affairs all these years. And until I was transferred to China to work for Home Affairs under DIRCO as a public servant. It means then judges they take whatever is being mentioned by DA, which firstly, they never supported my appointment and they accused me of being a spy, which till today, they've never proven that because I took them to court, which again is being questioned why I had as a Public Protector, take them to court. Because they were accusing me, because of this process that I'm a spy. So this is very derogatory and to them and hence I said, even to the DA you cannot say that when I was in China, I was a spy. What are you doing to the relationship between South Africa and China that they can deploy somebody at the embassy and under the disguise that the person is working for Home Affairs? And I said, there are officials from SSA who are operating overtly like they are known, they are based at the embassy; they are working with the intelligence of that other side. And now when I'm labelled as an operative who is somebody who operates underground, who is not supposed to be known. I was never that kind of a person, because I was supporting the director of domestic branch with whatever information I know of the application of the Constitution, the law and what I'm supposed to be doing. So this is so wrong. And again, it's being perpetuated from the media what the DA is saying. And it's very concerning that judges will then include something like this in their judgment. Now I don't understand why this is, it is shocking, actually. And I think I indicated Chairperson in my responses to you and Members, when I was asked about this classified document, and I indicated that being the Public Protector, having the top security clearance, and hence the issue of wanting to have staff members within the office and anyone who's working in that office should be having that top security clearance so that we don't have situations like this. And now it's perpetuated by even Hon Gondwe in this questioning and creating all the doubt in people's mind that possibly State Security was running the office. State Security is a constitutional institution, I said it repeatedly. State Security should be at the call of each and every department’s operation, of each arm of government operation. Hence, I think my predecessor even mentioned that why judges and members of the executive and members of parliament are not, actually I think I even said, in other countries, while I was based in China for four and a half years, you can't have people who are working in public state affairs whom you don't know who's controlling them. Because if you're doing security clearances, not just sitting here, being interviewed, and then you check my thing, state security clearance goes deeper, which I think this country might reconsider because then you need to know, the Chairperson, your relations, your bank statement, who's paying you, who's controlling you. Because with some people you will find that they are paid by foreign intelligence, foreign countries. And, you know, hence, as well, you find some NGOs, who are funded by that foreign intelligence. And I even said it in the past that some people are operating the country's journalists whereas they are paid by foreign intelligence to cause instability in the country. That is never spoken about. And I think State Security should be the one which is educating South Africans why it's critical to have State Security. Hon. Gondwe and Members are sitting in parliament for a country because we are doing it for the country. Now when you as Members of Parliament exposing us and exposing our generations to come with what you were just saying, in your house, a neighbour can come in and kill your children because this is meant for doing it. So I think judges as well should be respecting that and I don't think it's fair to be labelled that but it's not in a wrong way as well to be a state Security Agency operative. It's good because those people are risking their lives to protect us as South Africans.

Chairperson: Okay. I allowed you to; I didn’t want to stop you. But maybe next time when you make examples use me as the chair, so that you will not be accused of picking on members of the committee.

Adv Mpofu: Thank you. Thank you. Yes. As you know, I'll welcome that opportunity. All right, no, but more seriously, what is to be done about this? If you, as you say, a narrative, which we'll know started on day one of you being a so called spy, then it gets into the media, of course and it's perpetrated there. Then it's repeated by Mr Gordhan in this affidavit because I think that's where it came from. The judges just regurgitated it from Mr Gordhan. And then Mr Gordhan, the judges repeated here, and then it gets to Ms Mazzone’s motion, then it gets into this committee. But all along from day one when it was started in 2016, it was a lie. And something that you have vehemently denied and you say you've even gone to court to litigate about it?

Adv Mkhwebane: That's correct.

Adv Mpofu: What must happen with this, if the judiciary does or becomes a conduit then for such statements?

Adv Mkhwebane: This proves what I said earlier that judges should not be entangling themselves, you know, because they know that when something is reported in the papers, when the accusations are made out there, give yourself time to don't just take that as gospel truth. Well, with us, it's good that we're doing investigations. Justices don't do investigations. But then I cannot be accused, I mean heavy judgment like this that this is criminal conduct. They use the possession which is also wrong, because that legislation is very clear that possession of a classified document, which I answered, is not a criminal offence. There were various other steps which they are indicating how it needs to be done. And I mean, if they could see I went into pains to declassify this report, I had to meet ministers, I had to… So now I'm accused with something like this. Again, this is clear evidence that judges don't just take the narration, the issue of the choreographed process, executive says these media reports about this manufacture concern, judges in their judgment is there. Now, the same thing is now I'm here having to account to this motion with something I was…

Adv Mpofu: Now, the point really is, well, two points. The first one is, I remember the Chairperson jokingly referred to your interview on television where you said, I think it was two days before we started, you said why don't they start today? And that's another narrative, by the way, when you said you were so eager for this process, because you wanted a platform to deal with these matters although you've been accused by all sorts of people to say, no, you're running away from testifying. But the point of the matter is that, I know from personal experience, if you had been called as the first witness, there's nowhere else where you could have dealt with these judgments. In this matter, you're called a former security state agent, state agency operative by the lower courts and the SCA confirms the judgment and the Constitutional Court confirms the judgment. So after that, how can you ever deny if someone says you are a security state agency operative, then you have to accept it because the highest court in the land has confirmed it. Now the issue really is, when I say what must happen, about those kinds of situations where a matter might have gone to the highest court, yes, we accept then there's nothing more you can do. Not everyone has a chance to have a process like this where they can ventilate the issues – thanks to Ms Mazzone – but what should happen?

Adv Mkhwebane: We can say that again, maybe thanks to her, you know, as a Christian, they say everything happens for a reason. God allows one to go through this humiliation for the past eight… six months. Vilification and people you know, I trust that speaking very painful and, you know, derogatory information and still perpetuation of me not knowing the law of all those things. And thanks, Chairperson, I think I'll give credit to you, yesterday you mentioned that this process, yes, we are not reviewing, because anyway, they've concluded. But again, it's a lesson to everyone. And I said it that, fine, I've been put into… I've been sacrificed and been humiliated and everything. But it's for the good cause of our generations to come. Thanks God, that this will remain the record of this hearing, 20 years, 40 years or 100 years to come that yes, there was this judgment. But this is what actually transpired and this is what I've said myself that I was never this, you can check my records, you know, because I was not at all hiding anything. And even if I was a State Security Agency operative out there, you must know yourself that you are doing what is best for the country, you are protecting us. With me, I was never that, I'm here now as the Public Protector and I'm trying to correct and make sure that we say we have this Constitution, unfortunately, in South Africa, then we call ourselves a constitutional democracy, which is another debate for another day. But let's as well stick to that and correctly deal with matters, I think, as CA and ConCourt and the judge presidents when you are requested to reconsider. Take your time, go through the records, you know, and just be objective, because you are there to do that. You need to make sure that justice is seen to be done, Lady Justice should be blind, irrespective of Mkhwebane, you've heard, you've read but from now on, don't just take whatever is reported in the media as gospel truth. You must also know that that if the country crumbles down, you can go to another country. But if you're a South African, truly South African, you care about South Africa, these are some of the things which you should very much be careful about because you can’t just use the country like that.

Adv Mpofu: But thanks. Okay, let's move on. I think the point I'm making is that it's factually incorrect, not that there's anything wrong with being a former state security agency operative, like if someone said you are a member of parliament, if it's factually incorrect, it's factually incorrect, it doesn't mean there's something wrong with being an MP.

Adv Mkhwebane: Correct.

Adv Mpofu: Alright. The last point then just on what I wanted to sweep up here, is I wanted to assure you because you were referring to the KPMG matter. In paragraph 346 of your statement, it's also dealt with and maybe 348, can we go there Tshepo? And while we're there, we'll also deal with the other point we made yesterday, which is that based on the same information, the NPA also found enough reason to charge, there are enough prima facie evidence of the rogue unit activities, to charge the persons involved. So can you please read through 348 and 349 which incidentally are the last paragraphs of the rogue unit part of your statement?

Adv Mkhwebane: Okay. So 348, “coincidentally, the KPMG and Sikhakhane report made a finding that the establishment of the intelligence unit was unlawful and in contravention of section 209. I pause to explain that although the Sikhakhane and KPMG report came to our attention during the investigation, we were never influenced by their outcomes and conclusions. The PPSA investigations were independently conducted which resulted in their own conclusions based on the evidence and information before the PPSA investigation”.

Adv Mpofu: Yes. Let's just pause there. And just again, as I said, just to juxtapose the fact that although you refer to those reports, they did not replace your work as it were, they do exist. Was the point simply to imbibe or regurgitate the findings?

Adv Mkhwebane: The, you know, the two reports, which were commissioned by SARS, again, state resources were utilised to commission these two reports. I indicated that the Sikhakhane one, it was clear that Mr Pillay commissioned the investigation and the KPMG report. I'm not sure it was Mr Moyane or who commissioned but the fact of the matter is that even though we received those two, then we went further to ourselves, engage that, get the record the information, also get the recordings relating to the operations, get the policy of SARS, relating to the establishment, the appointment, and they're relating to the procurement of the equipment. So, we've referred to these reports but at the end of the day, we've conducted our own investigation because of the rule 53 record which we've availed and it was showing that this is all the information which we relied on. And the interpretation and, coming to the conclusion that section 209 requires a State Security Agency, police intelligence and SARS intelligence. But then for SARS to conduct such; it's not provided for in the law and they should have possibly acquired permission from the President to do that. Alternatively, they shouldn't have even continued to do this work, without collaboration with State Security Agency. Remember, again, going back to what Mr Pillay said that they've done a number of those. So in hindsight, they should have continued to do that, conduct operations with state security because it's a state institution, it's a conditional institution and they have got the expertise instead of employing new people, let them work with them and collaborate with them to do these investigations.

Adv Mpofu: I just want to finish the issue of the reports and come back to it.

Chairperson: Just bring the mic closer to you. I'm looking for the IGI report. Incidentally, while we're waiting for it. Public Protector, are you aware that…

Adv Mpofu: Before you proceed, she wants to clarify something.

Adv Bawa: Adv Mpofu, we haven't uploaded the declassified IGI report.

Adv Mpofu: Okay. Well, it's not, it's, yeah, that's what I was covering now. The declassified report is on page… This might have been submitted by Mr Van Loggerenberg. I don't know because it says…

Adv Mkhwebane: Declassified copy. It's a declassified copy.

Adv Mpofu: The declassified IGI report starts at page 120, sorry, 220. Well, Mr Van Loggerenberg was more successful than you, he just did he put it as an annexure. I don't know where he got it.

Adv Mkhwebane: Yes, because it's declassified. If it was also declassified when I wanted it, I would have used it and it would have been part of rule 53.

Adv Mpofu: In fact, now that you've mentioned that, this can save us a lot of information and questions. Can we look at that document, the classified report, the Office of the Inspector-General report of an investigation into media allegations against the Special Operations Unit and/or other branches of State Security Agency. And go to the next page.

Adv Mkhwebane: Declassified.

Adv Mpofu: Yeah. Well, it's the stamp that says declassified. The Chairperson then won’t be arrested for this information. Okay, now, I was looking for more of this the signature at the bottom of that. Yeah, it was signed in Pretoria on the first day of October 2014 by Ambassador Adv Radebe, the inspector-General of Intelligence. And then just look at the introduction, next page, terms of reference anyway; I think I've showed you enough. All I want, I'll ask you, is this the document that was dropped at your office by an anonymous person, which you discussed with Dr Dintwe and various other people? I'll ask you the question at the end. I'll take you to some of the places, I wanted to take you anyway, and in the process, try to see if it's in the same document so that we kill two birds with one stone. Go to 2.5 which is 257. Remember Mr Van Loggerenberg said they didn't give him his right to be heard. Yes, yes, just the first paragraph.

Adv Mkhwebane: Mr Van Loggerenberg was interviewed on two occasions. It must be noted that he was legally represented by an attorney and two counsels on both occasions. In the first interview, he attempted to direct the interview by proposing that he has 38 themes on which he would like to advise the OIGI team. Coupled with this he provided the names of 64 people he felt the team should interview to understand the issues at hand. He was advised that he should desist from directing the investigation and the team will decide what questions to put to him. Mr Van Loggerenberg indicated that the interaction between SARS and SSA started when – that was blocked out – requested a meeting. The meeting occurred on the 15th of November 2010 at the behest of, so protecting some of the people which they needed to protect. Yes.

Adv Mpofu: Okay, fine. Then just go to 251 in the middle of the page that says "During 2006/7".

Adv Mkhwebane: During 2006/7, Mr Manuel, the former Minister of Finance raised a number of concerns about the illicit economy and SARS capability to address this. SARS made a proposal signed by the then Commissioner, Mr Pravin Gordhan on the eighth of February 2007 to the minister, to find a special capability within the NIA to supply SARS with the necessary intelligence to address the illicit economy. It was made clear in the proposal that SARS does not have the legislative mandate for clandestine activities. So is the same memorandum.

Adv Mpofu: and then right at the bottom interestingly.

Adv Mkhwebane: Interestingly, the memo indicated that fundamental to combating the illicit economy is the capability to penetrate and intercept the activities of crime syndicates. In addition, the memo was for the approval of 26 personnel with specialised capabilities which was attached then. So the same memo is the one which we've seen here and we've presented.

Adv Mpofu: Next page please. Sorry same page at the bottom which states only this year

Adv Mkhwebane: On the 28th March 2008, Mr Van Rensburg indicated he was unwilling to be redeployed according to an internal memorandum dated 28 March 2008 and signed by Mr Ivan Pillay. He was given a settlement package of R3 150 894.81. Mr Ravele stated that he believes that Mr Jensen Van Rensburg was going to expose the unit and blackmailed both Mr Pillay and Mr Gordhan. He stated that Mr Van Rensburg initially demanded R 10 million, which was reduced.

Adv Mpofu: Okay then, there was the issue of Mr Van Loggerenberg, who admitted that this whole thing started when his girlfriend started to spill the beans. So let's go to 253 on 28th May.

Adv Mkhwebane: On 28 May 2014, Ms Walter lodged a complaint with SARS, alleging that Mr Van Loggerenberg runs a covert intelligence unit that has surveillance and interception capability. She indicated that NRG still exists under the name High Risk Investigation Unit. This unit in its current form comprises of six members who report to Mr Van Loggerenberg. This unit does not operate from SARS premises but operates from home premises as they should be shielded from the rest of the organisation considering the high risk nature of their work.

Adv Mpofu: Yes, can we go to 256? The people's names are obviously blanked out.

Adv Mkhwebane: This was also corroborated by through an intercept. If the intention of Ms Walter was to discredit Mr van Loggerenberg as payback for the breakdown of the relationship, allegations of disclosing taxpayer information would suffice as it is a serious enough to warrant dismissal. She could only have known about the interception capability of SARS through what she was told and shown. There is no other way. Even more convincing as to the veracity of her information is that it has in all material aspects been corroborated by persons within that covert unit. There is further corroborated evidence to the effect that SARS knowing full well that it does not have a mandate to conduct covert intelligence collection in support of its activities approached by NIA to establish a dedicated covert capacity under the aegis of NIA subject to the signing of a MOU between the two institutions. However, the MOU was never signed and the proposed dedicated covert intelligence capacity never took off. It is against the aforementioned background that SARS then took it upon themselves to establish a covert intelligence capacity considering that the proposed initiative with NIA was not successful.

Adv Mpofu: All right, next paragraph 258.

Adv Mkhwebane: So these are the findings. “Evidence shows that SARS created a covert unit utilising covert and intrusive methods in direct contravention of the SARS mandate as provided for in the Tax Administration Act. We find that only the President in terms of section 209(1) of the Constitution of the Republic of South Africa, 1996 may establish any intelligence service by way of national legislation. No evidence exists that the precedent established and intelligence capability within SARS”.

Adv Mpofu: Okay, so let's stop there. So the people who should know better, the Inspector-General of Intelligence did not think that section 209 is limited to, I don't know what the judges said, some whatever. The Judge Baqwa and the others said, “This section regulates the establishment of intelligence services and is confined to the establishment of intelligence services dedicated to the protection of national security”. Now, alright, then maybe the last one, just go to 2.9 on next page 259. That's really the one that you then quoted in your report.

Adv Mkhwebane: Number one, it is recommended that criminal charges be investigated against Mr Pillay, Mr Gordhan, Mr Van Loggerenberg and Mr Richer for the establishment and involvement in the covert intelligence unit in SARS. And it is recommended that statements from Mr Peega, Mr Fitoyi, Mr Van Rensburg and Radebe are obtained in support of criminal charges. Ms Walter has provided a statement in this regard to DPCI... the Hawks. It is recommended that SARS produce a credible inventory of all operational equipment, which was used over a period by SARS NRG in the course of its covert activities, which must be confiscated and handed over to their mandated structures.

Adv Mpofu: Okay, now, what Mr Kieswetter has written to the Chairperson of this committee to say that I suggested that the equipment belong to the rogue unit and it was wrong. Is this equipment which they're talking about here the same equipment to your knowledge?

Adv Mkhwebane: That's the same equipment because, remember, there’s somewhere in the report, we were saying, it was clear that the unit was already operational even when they were approaching the Minister to approve. And then the documents which we had were SARS documents where there were issues of the spending of 14 million or requesting for deviation, the procurement of the equipment and the charge sheet as well where they mentioned and the photos of that equipment. So it was very clear that it's equipment which is of a specialised nature and its equipment which is only supposed to be utilised by SSA and are very much guarded and responsible way within the limits. And as I said Chairperson yesterday, you know, if this equipment falls in the hands of wrong people. The activity is wrong in its nature because it means they do as they please, it's so intrusive in the way they could utilise the information. So it was just making sure that we don't have a situation where people are not protected. As much as we were discussing with Dr Dintwe and Adv Govender, because if you listen to that audio as well, the things they are saying there is not about this unit, which for me is what I was concerned about, but what the others were also doing, you know, plundering state resources, buying equipment, stealing things, you know, just to create havoc, and what does that do? It’s for us who only have our home country South Africa. Because, unfortunately, serious Chairperson, this is serious, because well, if you take a world view and understand how, because no country will love you, unfortunately, as a country, you need to protect your country by all means, because yeah, if they can just attack you, they can do anything. I mean, State Security is one of the key because they need to protect and we can't have equipment like those being in the hands of wrong people or people who can use that for their own nefarious means. So it's just that yeah. The other one is that “it is further recommended that the law enforcement agency is currently investigating allegations against SARS and Mr Van Loggerenberg in particular continue with their investigation with the aim of preferring criminal charges”. And then “it is recommended that the investigation by SSA on the covert unit within SARS continue in line with its defensive mandate”. So those were the things which they wanted to be done. A further recommendation is that “the investigation within SARS headed by Mr Ravele be concluded as soon as possible. It is recommended that the payment of legal fees of Mr Van Loggerenberg paid by SARS be immediately stopped. Finally, it is recommended that the report of the initial SARS panel be approached with caution and that the second panel established to investigate the allegations conclude their investigations as a matter of urgency to enable finalisation.” So I considered this report. And indeed, this is the report which I saw, which was dropped at the reception of the Public Protector’s office. And that's why I said yesterday, Chairperson, the only focus was on what legislative framework has been violated and it has been mentioned in the Public Protector report independently as well. Because Mr Mataboge, I think, said that he never read the report. Me reading the report also possibly guided that, look at the following legislation, but section 209 was definitely also mentioned in the complaint.

Adv Mpofu: Okay, thank you. Now, two things that must be said about this. One is that at the time that you read the report, obviously, we know that the “good authorities” that you spoke about effectively confirmed that it was the same report that you are confirming now, correct?

Adv Mkhwebane: correct.

Adv Mpofu: The second issue, which is important is that all of this that we're reading now, including the declassified report, was part of an application by Mr Van Loggerenberg issued in December 2019. I don't know when it was granted, probably in 2020, which aim was to set aside that report two years later after your report, correct?

Adv Mkhwebane: That's correct.

Adv Mpofu: And you are not cited in this application?

Adv Mkhwebane: Yes, I was not cited

Adv Mpofu: But this application was Mr Van Loggerenberg and IGI whatever it was at that stage, and Minister of State Security. It was Minister Dlodlo. Yes, and we now know that in 2020, I think, that application was granted, correct?

Adv Mkhwebane: That is correct. I think what you should have mentioned as well with this report, what I'm reminded by…well, it's a criminal offence to use or to be in possession. We should have mentioned the Judge Sutherland matter because they used it and they said it can be shared. It was even before then the Pretoria High Court set aside this report. When it was used or what was going through, it was still the official document of the State Security Agency.

Adv Mpofu: Yes, evidence was here that Judge Sutherland indeed said, because for the same reasons as Dr Dintwe, that it was already in the public domain, so there was no point in dealing with it as a classified document.

Adv Mkhwebane: No, I'm just focusing on this person because I'm concerned about that paragraph. Actually. I'm still shocked that paragraph of me being a state security operative and that it's a criminal offence because it refers to me, yes, you might have raised it with Mr Mataboge but for me, I want, as the Chairperson and the committee members to consider that judgment made by Judge Sutherland and what he said about that particular report.

Adv Mpofu: Okay, so you want us to present it again? I've got the judgment. It was referred to…I was just going to…

Adv Mkhwebane: Because it links up to, well, what I didn't completely finalise because I thought we would call Adv Govender. But again, media reports it as if it's a criminal offence to have this and not having any qualifications to that effect, so it should be clear out there that even judges use that particular document.

Adv Mpofu: Okay. Now we'll come to that. Can we just finish this part because we have to be fair to the judiciary and to everyone, although we have agreed that we won't deal much with things that happened subsequent to the report, I think here we must make an exception and make it clear that the IGI report was subsequently reviewed and set aside.

Adv Mkhwebane: That's correct.

Adv Mpofu: The point I'm making is, do you know the circumstances under which that report was reviewed and set aside? Was that to them? Was it an opposed application? What actually happened?

Adv Mkhwebane: It was not even an opposed application because when I heard about it again, it's hearing in the news that I think Minister Dlodlo at first, I don't know, whether he or she opposed, or later, then withdrew and then justified a notice of abiding, and that was all what happened and as well not being quoted as the Public Protector because it had also a direct impact on our work but it was fine because our report was out there. And the report was declassified. The remedial action was implemented.

Adv Mpofu: Yes. And then thank you. No, I'm saying that because Van Loggerenberg, I think, somewhere goes on about how they… but in any event the report eventually was set aside, but obviously, not being a sangoma, one would not know that in 2019.

Adv Mkhwebane: Correct it was after the fact, yes.

Adv Mpofu: all right. Now if you go to the Sutherland judgment on page five 31.5.1, we're looking at the then classified report before it was declassified and had been put into court papers by Mr Julius Malema in a matter with Pravin Gordhan and Julius Malema… Freedom of Expression Institute. And Mr Gordhan in that case took the point that it should be discarded because it's classified. That is which it was at that stage on 31 October 2019. The date of this judgment and Mr Van Loggerenberg’s application to review it was filed in two months later. So, paragraph 25. Start at 24.

Adv Mkhwebane: “This stance provoked an application to strike out these inclusions on, principally, the grounds that they were irrelevant. The three inclusions were a report of the Inspector General of Intelligence of 31 October 2014 (IGI report), the “Report of the Commission on the cabal” of 14 March 1990, in its form as found on the O'Malley Archives website, the Cabal report, and the so called Sikhakhane report of 5 November 2014. Of these reports, the IGI report stood in a distinctive category in that it was a document admittedly classified secret that had been, allegedly, improperly leaked into the public domain. To deal with this document as a special case, the application to strike it out was heard in a preliminary hearing. The application was dismissed and the costs reserved for the main hearing for determination”.

Adv Mpofu: Can you go to paragraph 29?

Adv Mkhwebane: A reading of the report and of the minister’s rationale for excluding it from the public domain reveal that the rationale is wholly unfounded. The burden of the Minister’s perspective is that agents of the security agencies may be compromised. No agents’ identities are disclosed. The persons described are not secret operatives in the least. Moreover, at the time the document was attached to Shivambu’s affidavit, the document was already in the public domain and had been the subject of media reports. Any confidentiality claimed for the document is futile”.

Adv Mpofu: Okay. Thank you. All right. So again, I think we've already established all that's happened even before it was declassified. Well, I don't know when it was disclosed, classified, but at least before Mr Van Loggerenberg's application, correct?

Adv Mkhwebane: That's correct.

Adv Mpofu: Okay. Thank you. Chairperson, that would then conclude the section on the…

Adv Mkhwebane: Before you conclude that there was the charge, that's the last one, that NPA charge thing, the last paragraph on my affidavit on this matter.

Adv Mpofu: 254.

Adv Mkhwebane: 349. “Notably it is also common cause that based on similar information as that at my disposal, the NPA, per Adv Pretorius SC, found sufficient prima facie evidence of criminality on the part of, inter alia, Mr Pillay and Mr Van Loggerenberg to the extent that they were criminally charged and made a few court appearances before the charges were withdrawn. I'm in the process of securing the evidence around the mysterious withdrawal of the charges. What cannot be disputed is that they were indeed charged”.

Adv Mpofu: Yes. Okay. Yeah. Just to make it clear that this is not the Adv Pretorius of the Zondo commission. This is an Adv Pretorius who was a member of the NPA who signed that chart sheet. Yes. And Chairperson you'll remember, in one of your meetings, you discussed this, we may have made an indication to call someone from the NPA to deal with this, but I think your indication was that you'd have to see a statement and so on. And so that was the person that Adv Pretorius inquiry had led us to that somebody else but just mentioning that in passing.

Adv Mkhwebane: That's the last issue that there was something like that. And as well, during the proceedings, there was a stage where I said to Mr Mataboge, if you wanted to check the availability or where we can find Mr Van Loggerenberg, but then later that was stopped, because we said, anyway, we'll find him with this part B of the investigation. So part A for now, let's keep it. And I think one thing I also want to just clearly state, Chairperson, is this section 7. If we can just go to section 7, not section 4, there is s7(1)(b)(i) of the Public Protector Act, which I was using, in most instances. I remember, we came to Masiphumelele and we conducted that investigation and I served Mayor de Lille and then Premier Zille subpoenas. And they were also concerned why are you subpoenaing us because we are cooperating? But it was based on the fact that due to the issue of urgency, due to us wanting to resolve the matter expediently, so even in this particular instance… You don't have section 7?

Adv Mpofu: You can carry on. No, I'm fine. I’m under two different kinds of processing. I’ve promised the Chairperson that I'm going to finish this section and I'm hearing whispers of aeroplanes behind me. And so yeah, no, I've got the legislation, section 7.

Adv Mkhwebane: Yes, s7(1)(b)(i) states that “The format and the procedure to be followed in conducting any investigation shall be determined by the Public Protector with due regard to the circumstances of each case.” So this is used, sometimes where we want to, you know, what format can we take in for fast-tracking or getting cooperation from anyone we would want to investigate? So I think the question was, why issue a subpoena as a first point of call besides the issue of the three strike rule? So in certain circumstances we require or I then determine that, can you go ahead and issue prepare subpoena? Can we request for a subpoena and an affidavit from this person? So that can be as part of information gathering, so this is the section I was referring to.

Adv Mpofu: Thank you, Chairperson, it's ten to five and we still have to address the big issue. So firstly, let me indicate that we are at the end of the rogue unit issue, subject to the usual disclaimer, if there's anything to suit up at any stage, I will then ask for permission but for all intents and purposes, that concludes that section.

Chairperson: Thank you Adv Mpofu. We will quickly take five-minute stretch break and come back and then listen to your big issue.

[Break]

Chairperson: …last stretch to conclude the day. I forgot it's Friday, but we're doing well, we're working. Now. Over to you, Adv Mpofu.

Adv Mpofu: It’s a good thing you forgot it’s Friday. Yes. This is an issue we wanted to raise from Tuesday when we got here. But you had indicated that we should raise the issues at the end of the evidence. And that's why we've been keeping on trying to address this issue. Well, it's an issue to do with the letter that you received; it was copied to you and had been sent to the Public Protector on the 1 March. And we just wanted for it to be a courteous thing to indicate, as I had said to you jokingly in the morning that we should have brought you cake for lunch. But the serious part is that it's regrettable, now I’m speaking on behalf of my legal team in particular, but because of the Public Protector that still could be regrettable that we have to announce that today effectively marks the end of the road for the Public Protector’s legal team. We had hoped that between 1 March and now there would be some miracle, we should resolve the impasse that was caused by the letter of the Acting Public Protector Adv Gcaleka from 1 March, which she had addressed to the Public Protector to indicate that they would no longer be able to fund her legal team. I know that the Committee had discussed this matter and you indicated to the Committee correctly and so did the Members that this was not really your issue. Your task is to conduct the inquiry. But I think in the spirit of wanting the inquiry to proceed efficiently, obviously, even though it's not your issue directly, it is your issue indirectly at least. And we understand that. That is in that spirit Chair that when the related issue was raised in January with you, you had kindly assisted even though technically speaking it was not your issue. And in that vein, I think we're also aware that you were involved behind the scenes with some of the ways to deal with this as was discussed in your meeting. But the reality is that the correspondence that has been exchanged even up to this morning, I think was the last letter that was sent, it has been made clear on the side of the PPSA that their position has not changed. And of course, our position also has not changed as articulated to them on Monday or Tuesday, I think or whenever this week. Yeah. So the long and short of it is that there's a legal debate about it which doesn't have to concern you, but which maybe one day will be resolved somewhere. But it's really around the issue of... I think everyone accepts that the Public Protector is entitled to legal representation as determined by the Constitutional Court after a long battle. Everyone also accepts too that in the suspension letter sent by the President on the 9 June 2022. It's clearly indicated that the Public Protector would continue to be entitled to whatever benefits she was entitled to. And so is the Presidential minute that was signed by the President to effect that suspension, that illegal suspension. So that I don't think there's much debate there. I think the debate is done whether that burden should be carried out by PPSA or whichever organ of state we have no interest in whatever organ of state has to execute that duty, if there is such a duty. Yeah, so that's where we are Chair. But our position is that clearly the state has that duty in whatever case. And because the absence of that, it would be that the Public Protector bears that duty, I don't think anybody rightfully can think that. We have been told many times here that this is part of her accounting function and it's not the first time that she's accounting to Parliament. If that is the case, she has testified that she has been here several times to give annual reports or whatever. Nobody has ever suggested that she should get it out that function, I think, all state functionaries know about that. Now the last thing I want to say because maybe Public Protector might want to say something about this as well is that regrettable as it is, we see this at least ourselves as part of the campaign really to vilify and basically, you know, besmirched the Public Protector, and in this context, leave out there to hang and dry.

Chairperson: Just walk with me.

Adv Mpofu: Yes?

Chairperson: When you say you see this as a campaign, what that is?

Adv Mpofu: Yes, yes. No, I'm saying we see this as part of a pattern. Let me say, of basically victimising the Public Protector that she has herself has spoken about. Because we know where it started, you know, she's been vilified, she's been assaulted, she has been illegally suspended. And now, the last straw is that she is being again denied, effectively denied her right to legal representation because that's really what it amounts to. So I'm saying it's in that context Chair.

Chairperson: Okay, I follow you. Yes.

Adv Mpofu: Thank you. Thank you. We know I don't have to walk that road again. The judges have said themselves that she gets targeted with automatic costs and the executive has illegally suspended her. So every looks like every arm of the state wants to its turn in prosecuting her and treating her like this not to mention the media other racist organisations and clever blacks who were not so clever. So that's really the context in which you see this because it's just came as a shot in the blue, we don’t know what happened, all of a sudden, everyone doesn't understand that there must be assistance given to the Public Protector. And we suspected at a point that it was just driven by lack of funds, really. I am now speaking for myself; I don't believe that anyone thinks legally, that this is not something that should be done. But one can be protected to the fact that maybe there was some crisis, but from which people try to manufacture illegal argument about the non-entitlement of the Public Protector to legal assistance, which, which is just nonsense. So given the situation, Chair, she, and as I say, if she so wishes, she'll speak for herself. I think the way we lawyers always put these things in nice terms. So when a situation like this happens, we simply say she's not been able to give us further instructions to continue beyond this point. And, therefore, our instructions are terminated. And when it became clear that that was the case, then obviously she indicated to us, unfortunately, then there was the issue of the illness that interfered with this issue, because actually, we had hoped to resolve it around the Sharpeville day, the holiday, but then the Public Protractor fell ill and so we only were able to consult on it on Sunday, Monday this week. So that did put a bit of pressure on the communication. But because I think I had promised you on the week before, either I had promised you or you had asked for a letter, I can't remember, that we respond by Monday. And we only did that by Tuesday or Wednesday because the sickness had intervened. But other than that chair, that's it for us because we now have other legal engagement. Because once you indicated that to us, of course, unless if we wanted our children to have no bread on the table, then we would try to wait for the miracle. But in any event, the miracle hasn't eventuated up to this point as I'm speaking to you. So it looks like we took a good decision by not believing not too much in miracles. Chair, it looks like I have expressed the position of the legal team as such and maybe while I still have instructions for the day, I can ask the Public Protector to make her own comment. Because after that, I won't be in a position to ask you to do anything.

Chairperson: Just to check are you done?

Adv Mpofu: I’m done on my part Chair.

Chairperson: Thank you. Thank you Adv Mpofu. I don't know if your heard that PP. Can I hear you? I don't want anybody to speak on your behalf. You are here in your own leadership role as you account to parliament. So don't be surprised when I say you’re on your own. Yeah. You’re constitutionally here. Thank you. Go ahead.

Adv Mkhwebane: Thank you for that clarification and thank you for that opening that I'm constitutionally here. As the Public Protector of South Africa, I didn't bring myself to this Committee, I think Chairperson I've mentioned that several times. And since the beginning of the hearing, we indicated that I’m participating under protest, remember, we even indicated that can you wait several times, wait, we are taking this matter to court so that we don't continue doing the work and paying the legal team until we know, the legal standing, indeed, we continued, we also now brought the matter of your recusal of the Chairpersons Honourable Dyantyi and Hon. Mileham. We said can you wait but we are continuing. And even the unlawful suspension or illegal suspension, we also said let's wait. So all those were in trying, Chairperson, to save the resources and the costs. And so that when we continue, or when we focus, we deal with the matter speedily. Remember Chairperson at the beginning, there was a number of withdrawals, which were made by the Deputy Public Protector. So unfortunately that now she will then decide what I am supposed to have as the Public Protector of South Africa. I don't know where she gets that particular mandate but this is how I'm being treated. I think I've mentioned several times as well the issues of security, the issues affecting my family, withdrawal of in fact, the issue of security, for instance and reporting about some security threats which I was experiencing. But at the end of the day, who do one report to if nothing is being done about it. Now, here in this letter, I'm told about overspending in budget. The legal team didn't know that. At first, yes, they plan for 35 days. Now, third five days became how many days? So you can't blame us? Yes, they need to plan. It's true. Hence, I even said to you at some time that possibly ring fencing or requesting money, by then with the assistance of Parliament or approaching Treasury is one thing, but apparently they tried. But my issue here is that now I'm being blamed as if monies have been spent, as if it's my process, I brought myself here. And the fact that there are matters, which the legal team is doing, where she withdrew representation of those matters herself and CEO, the legal team is doing those matters in court on their own. Now, when I told them about this process that she wrote the letter and then she says they won't be paying any more beyond the current financial year 31 March 2023. I spoke to the legal team and they were saying “PP, they are doing a lot anyway of those other matters we are trying to resolve just to make sure that this process is a legitimate process, but as well just to bring sanity to the whole process”. And that issue of them continuing with this process, it couldn't pay any anything. I think I've raised it in previously that I mean, the office even went further to even participate in court processes, sending legal teams, having to pay senior counsels to spend two, three days there. So you know, when Mogoeng was saying “Do unto others as you would want it to be done unto you”, forgetting the very same thing that they are spending resources of the institution, but when it comes to this process, because at any rate, if I was just Busisiwe Mkhwebane working at State Security or at Home Affairs or anywhere else, I wouldn't be sitting here. I wouldn't be answering. Now also the issue of the of the perjury allegation, they are saying they are no longer going to pay beyond 31 August 2022. That matter as well was brought because of the doing of the work, the CIEX matter, which we're still going to present. So the issues which are happening in the office, they are continuing to spend when it's about them, they can then travel, they can use all the resources. There was it and complaining to us disgruntled, threw stones at the office then SAPS said to have deployed two, three four cars. Who's going to pay for those? It’s not SARS, still they will be taken from the resources of the state. So if you balance all those things, and I just get a letter like that, and I'm being told the legal team won't be paid. So now, I don't know what else to do. I don't have the resources Chairperson. I'm here because I've been brought here, it's not my process. And at the end of the day, you were copied, I think, Chairperson, in those letters, the Chairperson of the portfolio committee on justice was copied, the speaker was also copied. But then this continuous treatment, which I'm receiving, you know, from all angles, now, I'm being blamed that this inquiry has spent so much, forgetting as well, the very same media to report on how much Parliament spent, how much each and every legal representative has spent. So I think Chairperson it’s not fair for one to be treated like this. And I think Adv Gceleka they just need to assist this process, forget about what they are being told or how they deal with this particular issue but avail the resources. And on the other hand one is receiving letters like this. So now I need to be showing the legal team but now we are busy with statements, I'm sick. So it's a very painful process for one to go through Chairperson. So I don't know, then what? What is the way forward? And how can this matter be addressed? And it means if I don't have the legal team, I don't know how we are going to proceed because we can proceed until such time that this matter is resolved. And now when they say they were accepting a number of work which I heard because they will be discussing amongst themselves Adv Mpofu saying I've got two more of this one, I'm travelling to Limpopo, I'm travelling to KZN, etc. So, yeah, Chairperson, I think it's in your hands. But I think the treatment I'm receiving is very, very unfortunate and it's as if I'm this person on the street. I think people just treating me as if I'm not the Public Protector and I think it's not right for Adv Gceleka and Ms Sibanyoni to do this. And I don't think there's anything even stopping them. Yes, the last time, our interaction it was a shocking process one had to go through last year. But why can't we sit down and talk? Why can't we resolve matters and now you know, the position I'm at? It's another situation because you have just received letters that we won’t do this, we will do this, and as if I'm no longer the Public Protector unless they know something which I don't know. Thanks Chairperson.

Chairperson: Thank you PP for those comments. Let me just check. Is there anybody else from Members who wants to make any comment? Because when I responded, I will also be making a ruling. And there's not going to be a discussion after that. If there are any Members who want to engage with this by way of clarities or whatever, I'm going to invite you to do that now. I see Hon M Sukers at this stage; I don't have any other hand. I'm going to recognise you.

Ms Sukers (ACDP): Good afternoon Chair. Good afternoon to everyone that is there at M46 and to all the members on the platform. Chair, I think it is important possibly for us to retrace because of before I do that, actually, I think I need just clarity in terms of victimisation as mentioned by both the legal representative and the Public Protector in this context now, whether they are including the committee in that victimisation or feeling of being victimised by the notice on the payment of legal fees up until the 31st. The reason why I'm asking that is because at the beginning of the testimony of the Public Protector, both Adv Mpofu and the Public Protector referred to the treatment of the Public Protector by various Members without mentioning obviously names. But I need I think it would be wise for us to really know who is included in the victimisation as stated by both the Public Protector and legal representative and whether this committee is being included in that. This committee means the members of this committee including the chairperson. Then, Chair just in terms of the last several months that we have been going through this process, it is important for the record that we need to firstly, again, go back to the beginning, when we said the process in itself was to be fair towards the Public Protector. And I spoke specifically in relation to the treatment of witnesses at the time. And so did Mr G Hendricks (Al Jama-ah) and I speak on the issue around timelines. Because we at that time highlighted that there are millions of South Africans who do not have access to this kind of legal representation that the Public Protector has now. And it is within that context that we need to look at the amounts of money that we are spending in the process as well as the adherence to that process and the recognition of the process as a way of oversight. It is important for the record that it must be recognised. We cannot look at it in isolation; we must also look at the fact that the consequences of the time spent unnecessarily for days on end on issues that had a severe impact on the timelines and a severe impact on the budgets that are being spent and the money that is being spent here. The cost of that is also to the millions of South Africans because as I indicated to you Chair this morning at seven o'clock, six o'clock in the morning, it was with poor South Africans that I stood on the side of the road to have a meeting and tomorrow that I'm having a meeting with farm workers who does not have the money to defend themselves and which amplifies actually the Office of the Public Protector. So it is these many people that we've been hearing of that are being affected by the timelines when members are not in constituency, they are prioritising as I am prioritising this process. Yeah. And it needs to be noted for the record as well. This is, all of the chickens coming home to roost, we said, this is a metered taxi, it keeps on running and there is a responsibility to be paid by the Public Protector’s legal representatives. I believe that they carry a responsibility not only to her, but for the office, which she represents when they represent her in the manner that they represent and the cost of that to the South African taxpayers. It cannot be looked in isolation. There is a cost and that cost is being borne by the South African taxpayer and by the millions of people that does not have access to a legal representative. I want to put that on the record. Thank you Chair.

Chairperson: Thank you honourable Sukers, points noted. I see Hon Nkosi.

Mr B Nkosi (ANC): Thanks Chairperson and good afternoon to yourself and members of the committee, the PP legal team and the evidence leaders. Chairperson, I think we are facing a situation that we predicted which will happen some time ago. Previously, as the committee we had tried to intervene in this type of matters on payment. And even when we did, we did so under disclaimer that we should not as the Committee be seen as being involved in matters of the Executive as Parliament to encourage the entity or any other office to incur unauthorised expenditure. And that's a matter of not only principle, but as a matter of law. We conduct oversight over these institutions. And what we did by intervening, we did say is not creating precedents. That's the first point. The second point is that I do hear what the Public Protector and the legal representatives are saying. But the principal question to ask is who bears the responsibility really to pay for legal costs when you are engaged in this type of process, be it unique as it is, but generally, or other similar processes in the state? So, I am inclined to try to say that the responsibilities are between the Public Protector and the PPSA to negotiate an arrangement. We cannot be drawn as a committee on this process because of the point that I made earlier that we are the legislative arm of the state and it can be at our prompting that an authorised expenditure be incurred. In that regard, I would like to really submit that we have communicated a programme and have revised this programme to largely accommodate the PPSA, the Public Protector and to allow more space for the legal team. And therefore, I suggested that we stick to the programme. The Public Protector has a responsibility to ensure that she has legal representation that's paid for. Any other thing between ourselves and the current arrangement with the PPSA cannot be a matter of this Committee Chairperson. Yeah, I don't know how we are going to summarise but I'm just saying that I don't want to get into issues about costs, etc. How much it has cost up to now. I'm just saying that we have a programme that we must take to that problem and that the Public Protector has a responsibility to avail herself as we conclude, as we move towards concluding the process. Thanks Chair.

Chairperson: Thank you. I take it that there is no other member. Because I will not go back to those hands. There's no other Member who wishes to make any point. It's only those two Members because I've not seen any other hand. Great. Thank you. Now, before I come in, just two questions from my side. And I'll start with Adv Mpofu; you can raise any other matter that you were rising on.

Adv Mpofu: Yes, thanks Chairperson.

Chairperson: So as you make the point you want to make, you might as well just clarify this question that is coming to you, you will also go to the Public Protector and another question to her. So I've received this letter today, as I saw, have you? Because we copied all of us almost send at the same time at whatever time this morning because I need you to just clarify one thing. Because by the time you received that letter, they would have been a scheduled programme that doesn't end today, it goes on. And I'll be interested if having that programme, which is dated time and days, where it is true that even before the letter arrived, you would have taken other opportunities and jobs or if you would have done that this morning, when that letter arrived, that would be important that one gets that clarity. So as you make the point that you want to make so we have that on record.

Adv Mpofu: Yes, no, thank you. In fact, let me start with your question. Because it's I think it's relevant to what's going to happen next year. Chair. I don't know which letter to talk about. But we haven't received any letter today. But we sent out a letter this morning, which was in response to a letter that we received from the PPSA a day or two ago. It was one of two letters. But we've only responded to one. Because that letter, the one we responded to requested to be answered by today. That's one from the attorney. There is another letter separately which was written to the PP herself. I think it was also copied to you. In response to the one that she had written on Tuesday or Wednesday. That has no deadline so she has not responded to it, to my knowledge. But the one that we responded to Chair was about, it was a letter basically, which said in a nutshell, can you give us an estimate but our position has not changed that we cannot fund effectively. It's almost contradiction. And then we said in the answer, we can’t do that because for three reasons. One of them is that, Adv Bawa will confirm this, since Tuesday, we, in the so called backroom, we've been talking about, remember the letter that was written to you where it said we will engage in the backroom to try and adjust the number of days required and so on, hopefully, without changing the end date because we know that there's there has to be an end date. And so we were involved in those discussions, again, when we're still under the hope that some miracle will happen. But we basically abandoned in those discussions two or three days ago when it became clear that at least from our side that no miracle is going to happen. So the reality Chair is that by yesterday, we received a letter that confirms the position as that it's the same as it was on 1 March. So, coming to the other issue when it became clear, or as it became clear that and again, for now, I'll speak just for myself that the PP indicated to us that she won't be able =to give us instructions. Then obviously, we could not say no to other work. Speaking for myself, I'm now enmeshed in some matter that you might know about a certain Mr Bester. So even now, as I was cross examining, I see missed calls about that. So the way the practice works is that you always get approached for things and you say you're not available. But you can't say you're not available, if you are, if you didn't have the competing instruction so to speak. So that's the situation as far as the work thing is concerned. But Chair so the programme that we were negotiating, I think, has not been concluded, because obviously, it needed to be brought to you at some stage or to the committee. But that we don't know if that will ever happen or it might happen within your legal team or whatever's going to happen, I don't know. But so that's the issue about availability. But again, that might not be relevant, because even if we had no other work to do, we could not in any event continue on Monday without instructions. I just wanted to just respond to the question directly put by Hon Sukers and maybe I should start with Hon Nkosi. This is an important thing, because I think for the first time, I agree with him wholeheartedly. Well, not wholeheartedly, but almost that. No, but no, he's right and I acknowledge this. This is a matter for the executive. The committee is really, to the extent that the committee was involved in as assisting us. And it's always been made clear, even by the chair, that was assisting us insofar as it obviously has an indirect bearing on your work, but we've never, it's not something we can settle on the committee, however much we'd like to blame the committee. So it is the matter that's going to be resolved at the appropriate level. When we say is the state, whether it's the Treasury is the PPSA or the presidency or whatever, but somebody must resolve it. So that's where I agree with hon. Nkosi because, and this is not the first time this happens. Adv Madonsela told you that when she started with the Zondo Commission process, she only needed R3 million she says, afterwards, it was R130 million, but they ended up spending R2 billion rand because these things do take time and fairness means that sometimes you have to extend and you know. And then the issue, what is disturbing me are the comments of Ms Sukers. Because, firstly, if we sounded as if we're blaming the committee for this Chair, then we apologise for that because that's definitely not our intention, as I've explained the committee, quite frankly, it's got nothing to do with this. And we're grateful for the interventions of the Committee when that was done. We will blame the committee for various things. And we even ask for recusal of its members but we can't blame it for something that is not in its province. But the only thing really we can blame the Committee for, in this connection, has to do with what Ms Sukers is talking about but what has taken. We sat here from day one, apart from the things that are enumerated by the Public Protector where we have from February 2022, we've been saying for example, when we go to court let’s hold the proceeding so that we don't waste time unnecessarily and money. And every time this committee has rejected that, so maybe the committee can take blame for that. But that's a separate question. The other issue is, when we started on the eleventh, and we said, let's proceed with the scope that has been defined by the independent panel and the committee rejected that as well. I have no doubt that if we had done that, this process would have been finished, maybe in October, November or whenever. But the committee decided it wanted to go the long haul and include matters that are not part of the independent panel’s report, there's nothing we could do about that. So, you know, it's very easy to throw stones. But you will find that three of the fingers are pointing at you. So you know, but I call it a South African spot, this thing of blaming the victims. So now it's our fault that this impasse has been brought about by Adv Gcaleka or whoever else is involved in this. It's the fault of the Public Protector, is the fault of her legal team. But that's what as I say, it's a national sport. When women get raped, it's because they're wearing a short skirt. So that's why we are used to that. So we're not going to take any part of any blame for this situation that we did not create, and neither can the Public Protector be expected to shoulder the blame for it. It doesn't matter what anyone has to say about it and yes, we agree we cannot look at the processing in isolation. And I don't know what it has to do with millions of South Africans who don't have money to have legal representation. Well, if the committee sympathises so much with those millions of South Africans, it must also discuss its legal representation in the form of evidence leaders and any other legal representatives in solidarity with the poor that Hon Sukers was standing with in some road somewhere. Yeah, so that's the position Chair. It’s not our making, it's not of your making, at least in our estimation, but it is what it is.

Chairperson: Thank you, Adv Mpofu. Back to the PP. Just the question first to start with from our side. Maybe I want I'm going to start way he he's responded to my first question about the issue of taking other job opportunities, because I want you to place that on record. That's point number one. Because they work here on your behalf. The second point is 30 days ago, and I think honourable Nkosi is correct, and we'll have to stay in that lane. We don't want to straddle lanes and we have been very consistent. We're consistent with that. Thirty days ago, meaning 1 March, you would have received this letter, which as a chair I was copied to and shared that with the committee. Amongst other things that letter, it indicates that by today there would be no funding for this process from the PPSA. The important part will be, as you engage with them we would be interested, perhaps even outside of this meeting as to, within that 30 days, what kind of engagements would have happened based on that letter? I'm curious about that in our own way or through the relevant committees, whether it's justice and so on, would have to inquire as this committee about what work would have happened in that regard in the 30 days where a notice has been put. But the last question that I will be happy that you speak to us about, it's just a simple one. Now that you've put what you've put here, PP. So what are your intentions now? That's the question that I would like you to respond to. Thank you.

Adv Mkhwebane: Can you clarify that Chairperson? After receiving a letter engaged with a team? Do they engage with a team or with who? You mean me?

Chairperson: The clarity is that you received the letter from the institution that supports you in these endeavours, which is the Public Protector of South Africa. Yes, the office, which then said on the 1 April, we're not able to continue with any funding in relation to this inquiry. This is what they said in that letter which we received. And so the point that I'm curious about that I'm saying that we're going to have to take up, we'll have to take that up with the Justice Committee to find out as to with those issues that were put there, because part of what that letter says that there needed to be a discussion about what's the next plan to offset? What would have been that kind of challenge. I have no picture of what would have happened in 30 days to attend to those matters that were raised until there's a further letter that confirms certain things. I hope my I'm clarifying what I'm putting to you. So it's not the legal team that I'm referring to.

Adv Mkhwebane: To find other ways. Yes, Chairperson. I think, as I said, after receiving the letter, I think two days or a day or whatever, after I forwarded it to the legal team, I forwarded to my family to inform them about this depressing issue when I'm busy with the hearings. On the other hand, I'm told that we won't represent you I must also appear to quote, but then engaging with them to just continuously saying you are doing the other court cases for me. This is also one thing, which is now coming up. And I wouldn't approach that Chairperson I don't know whether I must because remember I’m suspended. And firstly, what Hon. Nkosi is raising, well, unfortunately, my legal counsel is agreeing with it. But on the other hand, accounting to Parliament, remember, this is a parliamentary process. This is the process which was approved by the National Assembly. So in hindsight, what I would say is that addressing the way of going forward because raising it with my family, my husband was also trying to find ways of checking what can be done in this particular issue. Firstly, I will never pay for I don't have, I mean, with the court law robbing me with personnel costs, and to even think that I must pay that because I wasn't, I never brought myself here. This is a test case. You've been saying that yourselves. There was never a time where a person like me, who's working for the state is brought to account. In a normal labour relations matter, indeed, an employee must bring a union member to represent or get their own legal team. In the past during apartheid, the state paid for their legal costs. It was another different arrangement. My case, I didn't bring myself here, it is a determination of fitness to hold office. The proposal going forward is for me proposing to the Chairperson that we're using the same fiscus and the same resources and to answer Honourable Nkosi as well Hon. Sukers, I'm very much concerned about the resources of the state. And I'm not saying PPSA or Adv Gcaleka must violate the legal prescripts of the PFMA and everything. But I'm saying in them process, they should have also engaged me or alternatively, when they speak to you, why can't we then tap into the very same resources you are using to pay evidence leaders? And then a speaker? Because it's her process? Why can't we then go the National Treasury avail resources for this process? Let them avail process the money for that particular process? Unfortunately, Chairperson, I will be appearing. And I was going to ask you and plead with you that can I appear online as well? But there won't be anything which I'll be saying because I wouldn't have a legal representation. And the ConCourt judgment is very clear about legal representation of my choice. But now I'm bringing it squarely to this committee because it's a parliamentary process. So I think, wherever you get the money... and the members of the public, I know, the media is saying I'm running away from the process. And I want this process indeed, and hence, I said, I appreciate it so much, and to clarify the information, but as well, can we use the same fiscus? Thank you.

Chairperson: Thank you, PP. Those points are duly noted. Those contributions, I take notes of them. I see your mic. I want to make a summary now and a ruling. But let me hear you out Adv Bawa.

Adv Bawa: I just wanted to clarify and agree with Adv Mpofu that we didn't conclude our backroom negotiations. But I think for different reasons on our side Adv Mpofu had endeavoured to negotiate with us on Tuesday. He was very excited on Tuesday about getting the Mr Bester brief even then already. And part of the difficulty was that the end date of any revised schedule was 29 May. And we had then been reliably informed that the criminal trial that Adv Mpofu was involved in had already been arranged in November to run for two terms. Am I correct that scheduled to start on the 17th of April? Is that correct, Adv Mpofu?

Adv Mpofu: You have more reliable sources than me. I don’t know anything about that. But I take your word, yeah.

Adv Bawa: So it did seem chair that we needed to rather than have expansive days rather than lesser days in doing this. And so the communication had ceased because it didn't seem that there was much point in having expansive dates.

Adv Mpofu: Chair, if I may just I know, just to clarify that.

Chairperson: don't get provoked.

Adv Mpofu: No, no, no, no, I'm not being provoked.

Chairperson: She was the last one to speak.

Adv Mpofu: it's really just a matter of clarity. Just to allay any fears about that other matter, the criminal matter. I mean, so that I'm not opportunistically using that matter. I had already made even before this arrangements with my team that if it does proceed that matter, I would have been engaged here. So it's other matters, not that one. That one would take me out for months.

Chairperson: Thank you for those clarities, colleagues, Honourable members. Maybe just by way of summary. Hon Sukers, you have your hand up I want to summarise so that we wrap up.

Ms Sukers: Yes, I think it would be if I may ask – I see that you frowning – shall I proceed with what I want to ask?

Chairperson: I don't know what you want to ask, so you would have to proceed.

Chairperson: I did indicate earlier in the week, two days ago, yesterday to the Public Protector and Adv Bawa never to follow my body language because it would be very confused.

Ms Sukers: Yes, thank you. Chair, I think I want to make a comment and then just ask the question, which is that as part of the responsibilities of any executive as has been mentioned, I think by the Public Protector before, and I think she reiterated now, when she said that she is the Public Protector. We need to do things within the limits of a budget, right? And that is part of the performance indicators for departments as well. So the question that I want to ask is what is the current cost up until today that has been paid towards the legal representation of the Public Protector, what is the cost standing, and if we can get an indication of that, what it is up until today the 31st when PPSA has now indicated more than a month ago actually to us that they cannot do this? Because the reason I asked is that we are accountable to the public. And we have made this point that this is a meter taxi that is running, every time wastage, every shenanigans, all the theatre, all of that comes with a cost. And so I would like to get a number Chair for the record how much has been paid up until now, thank you.

Chairperson: Note that thank you very much, you will get that number, not in this meeting, we'll find a way to forward that to you, I'm not going to open that door now. But that information would be readily available to all members. So let me therefore with that, proceed. Maybe I need to start just walk back. A week ago, we had a committee meeting in which, and you'd have made reference to it, in which in our own sincere and difficult discussions, we identified a number of risk that are facing this process. And we'd had summarised them into three, not going to go back into that, but they had to do with the risk of one that later led to the 1 March, the finances, we considered that as a serious risk. And we had an honest discussion about it, including the need for those risks to be mitigated by the relevant stakeholders. We still hold into that position. Because that risk has now materialised. There's no doubt about that. So when we discussed that, we did not throw our hands in the air and said this, now that we have this risk, everything stops here, we're very clear in our mind that we're engaged in a very important process and that there is a need for us to be very much alive of those risk. The second risk was the issue of the members. The issue raised by Hon Sukers that they are involved in other activities, which I explained yesterday. When you are checking the attendance, we identified that as a risk that as we're going to be meeting next week which falls within the constituency period and we should be with what honourable Sukers has already started. And the risk was we do not want an unending process, a prolonged process. And we've been very much insisting on that even when they will request to expand it and so on. And so I want to start therefore in responding to these I think, of course I would have asked the questions I wanted to ask from the PP. It's clear that what you are placing here, because we can't say we're surprised about it, that letter warned us about that risk. We are aware that there are a number of key role players, once that letter was received will start playing a role, maybe what they would have come to is not adequate as required by the process. And therefore, more mitigating measures must then be insisted on and quite clearly this is a process that that institution needs to see through. This is a process that would be unfair for the Public Protector, if it just ends in the middle of it, especially her having started. And by today, we have concluded the two charges. We have concluded part A, we will have already received part B of the statement. From where I'm sitting, that does demonstrate readiness to be subjected to be part of the process. I am not in a position to read anything else unless I'm too slow to read that. In which case when I finally read that, yes, therefore, in that regard, I think it's something that I'm taking it seriously that we're going to have to ring fence to take up the issues not done by us to knock on the doors of those people who, because something seems that something was started which kind of reduce whatever load but it's not enough to help us conclude the process in the way that it says it's ending today. That's the first point. I think the second point is with that having to be pursued and much stronger, and with some urgency, adding that to that, I am still going to insist PP that we all of us will have extra days of over this weekend. Because today we are on the sixth day of the testimony of the Public Protector. Initially, we scheduled nine days. Because we thought that would do everything in that nine days. And when it was nine days. It was not a backroom discussion. The setting of notes on the floor here between myself and Adv Mpofu was that out of the nine, I need six. So he wanted to take the bulk of it. But it's becoming clear once we started and would have made correspondence to yourself PP about the fact that there would have been a request to say we need extra, we actually need altogether anything between 10 and 12 days in your correspondence. And so as a chair, it's going to be important that we are settling for the ten which means today's the sixth day. Again next week, we will get the extra four days to make that ten in terms of our programme that we have, because we still have to go through the CIEX and HR, and wherever that he normally creates, yes, but he has to do all of those things within the stipulated four days. So I'm indicating therefore from the Chair that we were going to leave this meeting PP with the understanding unless something else changes. And in the light of what I've indicated that there has to be agile mitigating measures to deal with the risk that you have. We'll be back here on Monday, Tuesday, Wednesday and Thursday to conclude the part of your legal team and thereafter get to the evidence leaders and the members. It's clear now that that plan is going to be subjected to some work that will need to be done but on records that's what I want to place here as we conclude this meeting. I've touched this issue of the ten days I will not go because everybody else will get less days thereafter. Because at some point, we are going to conclude this. What I'm happy about is the fact that there's even further suggestions, I think you've put on the table, take a note of those suggestions. Again, those suggestions are demonstrating to me that the issue for you at this stage is finance. It's that support. Adv Mpofu says, as far as he's concerned, from the state the issue is not finance. I'm not allowed to ask him what the issue is. I’ll leave him to make those, I’m not going to say conspiracies, but I'll leave that to him to do that. But I think it's important that we're doing that also with the understanding that from next week, from Monday, the National Assembly is in recess, there is no other committee that is going to be working, this is the going to be the only committee that will be working. And because it is required so by the National Assembly. So there's some serious, urgent homework that we need to take as we leave this room. Because I think, PP correctly, and I share that with you, and this committee has made that point that it is not in our interest to force the office to do unfunded expenditures. But that within this state we've got to find something to assist that process. I think it's important that one connects with that as an important issue wherever, any of the organs of the state; it doesn't have to be PPSA. So I think we seem to be sharing a common desire in that regard, because I suspect that if you are not interested to proceed and we're not ready, such ideas would not be shared in that regard. So I think that's where I would want to leave this and respond in that way. I think that there will be other issues that can be taken outside of this meeting offline. And that we're going to need to have that hotline communications and engagement about what are the efforts that have been put in place, it's really the mitigating measures that we're attending to. So, the time now is six o'clock, eight minutes past six, at that point, colleagues, I’m not going to invite any responses to this. We leave here with a huge task basically because when that is done, everything else falls into place. There is no way we are going to stop prospects for other people to do their job, but those prospects are subjected to what they are occupied with because nobody can take new prospects when you are involved in an assignment. That is very clear and there can be no discussion on that at all. We can discuss that offline. So thank you very much once. The meeting is adjourned, Thank you.