PP Inquiry day 69: Adv Busisiwe Mkhwebane & Evidence Leaders

Meeting report

Chairperson: Welcome on this day. The time now is 10:07. We have the quorum to start – it looks like a quorum that is even for decisions, as we have this two-pronged approach. Let me take this opportunity to welcome all of you Members; and today, all of you seem to be on the virtual platform. You have left the Chair alone on this chair at M46. So, I want to welcome you from the Virtual Platform. I see you have also been joined on that Virtual platform today by the Public Protector. I want to recognise and welcome her, as well as I see her team, led by Adv Mpofu, also on the Virtual platform. To welcome the Evidence Leaders, advocates Bawa and Mayosi, who remain where they were from day one; members of the media who are with us, our entire support staff present, as well as the members of the public, who continue to participate in this Inquiry, in their own way. Thank you very much. Welcome. Today is 3 April 2023. We continue with our work of the Inquiry. Today is supposed to be day seven of listening to testimony of Adv Mkhwebane. I want to therefore start and recap with all of you where we left on Friday. I would have summarised and concluded the meeting with the fact that we said we had the challenge of one of three risks that we identified that would have been brought to the fore having materialised; and that risk is the one of the legal fees. We indicated on Friday, and we still do that it is not the work of this Committee to be dealing with that. Ours is a very focused mandate of conducting an Inquiry as part of the National Assembly extension as a Committee. We would have indicated that the relevant role players would have to find a way to mitigate that risk. I would have shared with you that we have a very commitment to conclude what we have started, that this Inquiry is not going to be left hanging; more so, I would have indicated that would be unfair to the person who has an alleged misconduct and incompetence on her name; who is there on the basis of us testing the fitness to hold office of that person. That position still stands. I think early on, even last year, I was very clear in indicating that this Inquiry cannot have a middle wish: it has two possible outcomes; one being an outcome that the PP is exonerated from all the issues that were tabled, as part of the Motion; two, that this Committee makes findings on those charges, and therefore makes a recommendation to the NA (National Assembly), and then everything else follows in that regard. And those two possible outcomes remain the prospects of this Inquiry. The middle wish of in-between, again… We are going to ask Ms van Minnen to mute. You are now in the Inquiry. The conference of your party is gone, in case you think you are still there.

Ms B van Minnen (DA): I was muted, Chair. My laptop tells me I was muted, so I am not sure what is going on here.

Chairperson: You have to be muted, indeed, because the Chair is on the platform. Thank you very much. You have just disturbed me, a bit, there, Hon van Minnen. So as we meet today, just to indicate to everybody that, as I indicated Friday, that we are going to ensure that the relevant role players take up the issue. The report is that that work is seriously underway. I am not in a position to give any details on that. It is not our space. And we hope that in a very urgent time/space, we would be in a position to indicate what are the outcomes of such endeavours to ensure that we continue as we start today with our work. So that is what I want to, firstly, put forward. And therefore, in that regard, it is going to be important that we then use the time whilst that work is happening to ensure that there is continuity in the work that we do. We would have finished Part A of the very comprehensive statement by the Public Protector, and in that we would have concluded the CR17 Charge and the charge relating to the issues around the Unit – Gordhan, so-called Rogue and so on… and all of those general points that would have been made. And therefore today it is supposed to be the start of – as we get into day seven because part of what I also indicated on Friday was that the Public Protector was… initially would have been given six days. As a Chair, I would have extended that as the practicality shows in front of us that we still have to go through the CIEX, Vrede, and those HR matters, her days to ten days, meaning that this being day seven, from today until Thursday, all of that time given her to make the ten days. They – the legal team – would have indicated on Friday, that since there has been a stoppage of financial support that they do not have further instructions. And so before I proceed with what I intend us to do… We are supposed, today, to start Part B of the statement. Having said everything else that I have said, to invite the Public Protector and her legal team to indicate if they are ready to resume on Part B.

Public Protector Adv Busisiwe Mkhwebane: Good morning, Chairperson. Good morning to the…

Chairperson: Over to you, Public Protector. I was hoping that you would be here, but I see you in the air. Welcome.

Adv Mkhwebane: Thank you, Chairperson. Remember, Chairperson, the Friday discussions about the issue of the resources. So I was told there will not be any resources from 1 April. So I am here with… Adv Mpofu is not here with the legal team Chairperson. He only joined just to make clarifications to the Committee Members in case there are any. As explained on Friday, that the letter, which was written by Deputy Public Protector Gcaleka, so it has placed me in the position where the legal team or I could not give further instruction because the legal team was hoping that by the weekend, you will be giving them a solution to the problem. Remember, Chairperson, the letter of the 1st of March was written to me, and copied to the Chairperson of the Section 194 Committee, Chairperson of the Justice Portfolio Committee and to the Speaker. So I think the cry from the office was that all of you, maybe you could assist. So I will indicate that my presence here today, as I have explained, was that I could not…Well, you asked on Friday whether… I mean, since the 1st, remember I had to prepare, go to court for the perjury matter, I was on sick leave. But then at the end of the day, Chairperson I am here not proceeding. And remember, Chairperson, we have not dealt with all the issues in Part A of my statement, which you have mentioned CIEX and issues relating to Vrede and issues relating to the legal issues, or the so-called.

Chairperson: HR issues.

Adv Mkhwebane: The HR issues are in Part B of the statement, Chairperson. I was just referring to what Part A of the statement relates to. So I think that is the position which I am here on. Adv Mpofu can clarify, if you need him to clarify, but he is not here to represent. In fact, he said he would join though he has another consultation, I think in the later part of this morning. So I think, as I indicated as well, Chairperson, you know the clarity of the Constitutional Court Judgment about being represented, and the trial proceeding with full representation. So I do not know, Chairperson, when you say we are proceeding, and on Friday this is what we have discussed. And if the legal team are indicating that they have got other commitments, I could not issue further instruction, unless then I received something which would say in the writing, ‘here are the resources’, and indeed, then I can proceed with them, to proceed with the Inquiry. So as I said, even originally, Chairperson, that I am here, indeed, accounting to Parliament, and this is part of my accounting to Parliament. And normally, my accounting to Parliament also includes, then, this process, which you correctly mentioned that I am here for you to determine my fitness. And unfortunately, Chairperson, you would know, we have mentioned several times that the expansion of the mandate or the Inquiry to the original Motion brought all these and if we could only have focused on the panel's outcome possibly would have finished. And I think we have explained, even to the office, because originally it was 35 days, which was the estimation from the legal team. But unfortunately, then that went beyond what was proposed or planned for, or it was something which was beyond everybody's control. So that is that, Chairperson. I do now know whether you would want Adv Mpofu to add or I will just hand back to you, if you have any questions or clarifications from me.

Chairperson: Thank you for that presentation, Adv Mkhwebane. Maybe just two things to say that, firstly, to repeat what I said at the beginning, that there is urgent and serious work that is… as we sit here now, that is underway, to follow up and make it through the commitment that we made on Friday that we do not want this Inquiry to stop in the middle; and that is continuing. So and as I speak now, we do necessarily have the outcome of that and the details of that. So I repeat that point, so that it must be clear that there would have been work done even over the weekend to ensure that we achieve the continuation of this Inquiry. So I just want to maintain that point. And maybe during the course of the day, we will get updates and briefings, but as of now, what I can say is that there are processes and things that have been put in motion in that regard. Then the second point is in relation to I think, if I get you correct, you are saying Adv Mpofu is logged in, is present in the Inquiry, but he is not on brief from you: is that a correct understanding on my side?

Adv Mkhwebane: That is correct, Chairperson.

Chairperson: Thank you, PP. And therefore that being the case, I think it is only fair that we do not burden him with explaining anything or clarities, because we are in a formal process, as we do things. We appreciate that for his commitment, even if he has other demands that are coming his way. Of course, you will know that today until Thursday and next week has already been programmed. And there is that kind of an expectation that if that risk would not have materialised, he would have been here. So it is only to be fair and appreciate that he is demonstrating further that he wants to continue being your legal team, but I would not want to burden him with any clarities at this stage. That being the case, I would then want to proceed, therefore, to the next point.

Adv Mkhwebane: Maybe to clarify, Chairperson, he was just here as a courtesy, not to say to proceed or anything. It was just a courtesy from him, unless you would not want him to clarify, but it was just for the courtesy, since he has other commitments.

Chairperson: Yeah, I hear you, PP. The issue about Friday, I think I would have summarised at the end and gave a ruling. If there are any issues he wants to raise or clarities, they would not relate on what we discuss on Friday. And you have already spoken and indicated that you are ready to continue accounting to this body. But there is therefore the issue of you not having the legal support, which we accept. So my intention is not to be all over the place and raise other issues. I think I am quite covered with your explanation, which is consistent with what would have been said on Friday. There is just nothing new in that. So I do insist that I would not want us to abuse him simply because he is here. So if you are okay with that, I want to proceed to the next point. Thank you. Hon Members, then I just want to address you on this point that the… Hon Ganief Hendricks? He probably did not raise that hand by himself, there might be a technical problem there. I think we are conversing with the PP, so it is clear that there is no audio problem, or he is disconnected. Hon Holomisa, you want to take his place? Hon Holomisa, I see your hand?

Mr B Holomisa (UDM): Yes. Thank you very much, Chair. Good morning to everybody. I think, Chair, you may have to consider postponing this hearing today until you have… until the Public Protector and the Parliament, or rather Acting Public Protector and Parliament, have possibly found a solution to this problem because we have a Constitutional Court decision which says the Public Protector must have a legal representative. So I would suggest that you postpone this, and then you iron out these problems which have just popped up. But at the same time, we know that we are dealing here with a situation where another court found that the Public Protector was wrongfully suspended. How I wish she can go back and work, whilst we continue to do this Hearing, or conduct this Hearing. Thank you.

Chairperson: Thank you, Hon Holomisa. You have decided to make a proposal even before I start. I will assist you in that regard, but let me give a hand to Hon Hendricks and Hon Maotwe. Thereafter, I am going to proceed to the next point I was intending to do. Hon Hendricks?

Mr G Hendricks (Al Jama-ah): Thank you. Thank you very much, Hon Chair. Hon Chair, I was very impressed with how you summarised where we stand now. You made it quite clear that we have two options, that the Public Protector be exonerated; secondly, that the Committee has certain findings which will be presented at the National Assembly. Maybe you have covered my position – Al Jama-ah’s position – that there is a third option, and that there is a settlement in this matter, so that we can bring proceedings to an end. I also want to state that there is a problem with resources and the General has explained justification for trying to postpone this Hearing. I do not think we should postpone the Hearing, that we should continue. The Public Protector is here to account. The Committee has heard all the evidence to support the DA Motion. We have heard – the Public Protector has submitted extensive affidavits, responding to the DA allegations. It is my view that the Committee has enough evidence to proceed to make a finding, however, we have to level the playing field, seeing that the Public Protector does not have legal resources. Maybe this Committee must all also then let its legal resources stand down and let this Committee then proceed with its work. I would like to make that submission. Thank you very much, Hon Chair.

Chairperson: Thank you, Hon Hendricks. Hon Maotwe?

Ms O Maotwe (EFF): Thank you, Chair and greetings to everyone. Chair, I am a bit confused when you from this point of the PP not having legal representation, and then you say you want to make the next point. So it makes it difficult for us to engage because we do not know what your next point is. When I look at the agenda for today, Chair, we have only one item, which is the Hearing – that the PP must appear before the Committee. Perhaps, before you even go any further, let us hear your… because once you engage on this matter, I mean, this is a very serious legal matter. But you prohibit us from engaging by saying you want to move to the next point without having concluded the first point, which is, in my view, the primary issue for this meeting. So maybe clarify us on that one first, before you go any further. Chair, you like to speak for all of us. I do now know why you find it comfortable to say there will not be a need for clarity from Adv Dali Mpofu. You do not know if we are going to need clarity from him. So you are speaking for yourself. You are not speaking for the committee because we have not engaged on this matter. I think I find it very problematic, Chair. So let us maybe allow for you to go to your next point, with Adv Mpofu on the platform, so that whatever you say, and we want to engage and want to get clarity from Adv Mpofu, he is around; we do not have to log off and log in again or go call for him. You just heard PP now saying that Adv Mpofu has got a consultation. So he might be consumed the whole day if you release him now. By the time we want to come in and have clarity from him, he might not be available. So I think let us leave him on the platform and get to your next point so that we can engage on this matter, because we really need to engage on the fact that PP does not have a legal representation. I thank you, Chair.

Chairperson: Thank you, Hon Maotwe. Maybe before I go to my next point, just to quickly respond on the two issues raised by the Members. Firstly, to start with Hon Hendricks: I fully comprehend what you have put forward, Hon Hendricks. And, indeed, it is a sound proposition which is consistent with what we would have indicated on Friday and today, except on one issue, the mandate of this Committee, as part of Section 194. It is a Committee set up by the National Assembly to do work, and the veracity of the charges and the Motion itself. And it is clear in our rules, what journey we need to travel until we get to the NA. And so, as I indicated earlier in terms of those two possible outcomes, this Committee does not have any other mandates, and will not engage in any other issue. You would be correct if you speak about issues of settlement, but they are outside of the jurisdiction and the mandate of this Committee; we do not engage in those issues, and will not even attempt to make that as a possible outcome. Our work is cut out, very clear what we need to do. We would not do something because the National Assembly recommends appointment; the President appoints; the National Assembly emphatically recommends removal; the President removes. So if there are going to be issues of settlement, they are outside of the National Assembly. The National Assembly does not get involved in those, so we would not even want to entertain that as a third possible outcomes. We have got two possible outcomes, and I hope that clarity would help. To come to Hon Maotwe. I am with you. You would not have followed what I indicated, that there are no clarities needed from Adv Mpofu, following the summary and the way forward of Friday. If you were with us on Friday, you would have understood why I made such a determination. We are not going back to Friday. We are here on Monday, day seven of the Inquiry. So I want to be as clear as that, on that issue.

Mr Holomisa: Chairperson. Excuse me, we cannot hear you.

Chairperson: You cannot hear me, Hon Holomisa?

Mr Holomisa: We cannot hear you, Sir.

Mr X Nqola (ANC): No, we can hear you. I think the problem is with Mr Holomisa’s side. We can hear you clearly.

Chairperson: Just reposition yourself, Hon Holomisa, so that you are able to follow us. Now, let me leave that having clarified those two issues because I think Hon Hendricks makes an emphasis on the point that I would have even made on Friday, that this inquiry has to be concluded and everything must be done to ensure that if where there is a gap, the shortcoming that is there, that materialised risk must be attended to. I have already indicated the work that is being done by the relevant role players in that regard, that as I speak here today, I am not in a position to say this is the outcome of the work they have done. But I have been informed about the work taking place and as a Chair, I am sharing that with you. So the next point I was going to, Hon Members, because that is where I wanted your attention before the hands were raised, was that we indicated before that we are not going to waste any time. We are going to make sure that we do the work of this Committee, understanding and accepting that there is a particular dilemma and shortcoming in the legal team of the PP continuing to get to the next three charges, as indicated, which is CIEX, Vrede and the whole HR issues. The next point I am walking with you towards, Members, is that today, us, not being in a position to confirm that the legal fees have been attended to. It will not be a day that will be wasted. We are going to have to utilise this time to ensure that we do work. The work we are going to do, Hon Members, is in the context that if Adv Mkhwebane’s team concludes, we would have concluded on Thursday, because by today they have already concluded on the issues of the CR17, as well as the Unit issues and those general issues that we concluded on Friday. At the point when the Evidence Leaders start their work, they would indicate, as they have always done, even before with the other witnesses, that they would take the Members, the Committee, through certain aspects of the work that they will be going through. So you need to remember that the Evidence Leaders are the extension of this Committee. They have been so designed to assist the Committee to unpack all of the issues and to assist them in terms of how to follow the entire process. So what I am putting to you today is that, and this is something we would have done when we go to cross-examination, or them leading questions – because they do not do cross-examination – Members will then do the cross-examination and the questions in terms of the ConCourt decision. Is to ask the Evidence Leaders, that on the matters that we have concluded, that I have indicated, the PP is not going to be asked any questions today or tomorrow, but the work that must happen is to invite the Evidence Leaders to do what they would in any case do, when they take the platform, because that would also help us to save time when we get to that point, that the Evidence Leaders, on the two matters concluded, take the Committee in terms of what approach and issues that they will traverse. This is the next point that I am going into, and this next point is also to help us save time, because when that support comes, it means that it will come (with) us having not lost time or created unnecessary delays. And therefore that is where I am going to, Hon Members. Perhaps at this point, I am going to invite the Evidence Leaders, but before that, I see a hand of the Public Protector.

Adv Mkhwebane: Chairperson?

Chairperson: Go ahead, I can hear you.

Adv Mkhwebane: Chairperson, I think I have mentioned that I am here. I am alone. I do not have my legal representation, and Chairperson, as this Committee, you are obliged to act according to what the Constitutional Court has said, firstly. Secondly, Chairperson, you have got directives, which are very clear on what process to be followed. On Friday – or Thursday – you refused that the Evidence Leaders should cross-examine before I finish my evidence. So this is not part… I mean, how do I then sit here without my legal team? In essence, whatever they are going to be saying – the Evidence Leaders – hence, I have a legal team, assisting me, Chairperson, to note all the issues, which they are supposed to be noting, so that when I continue presenting my evidence, they also know what is the issues which the Evidence Leaders will be saying. So, I do not think that would be proper and that will be fair, Chairperson, if you do that because that will be violating your own directives. So… And it will be a totally unfair process for you to continue doing that. And Chairperson, since the beginning of this Hearing, actually, I indicated during my opening statement that since the beginning of this process, I have always guided and suggested to the Speaker and the refusal to listen but then we take it to court, the court finds in our favour, again, wasting time… wasting resources. So I think, for your sake, and for the sake of the Committee, and Parliament, that (it) would be better if the Chairperson can make sure that we work and we get the resources so that we can proceed with the legal team. The process cannot continue with(out) the legal team. And I wonder why the legal team will even entertain this, contrary to the directives themselves. What fairness is there if this matter proceeds and they present and summarise? What is that, Chairperson? I do not think you would want to expose yourself, actually, personally as a Chairperson, to that particular situation, because this is not the proper way to go. But then it is in your hands. I have put it on record that whatever you are doing is very much unfair. Actually, what would be fair for you is all hands on deck, to find the resources so that we can proceed in a proper manner. Remember, your directives are saying, it should be fair, reasonable, without delay? So I think everyone is listening, whoever can avail resources, that can be done. And I even proposed that Parliament is also spending a lot of resources to pay the very same Evidence Leaders – they are not public servants, you are paying them. And I think there was a question from Hon Sukers about the resources paid to my legal team, they are also paid from the fiscus which should also be declared and everyone must know how much they are paid. And wherever you get the resources for them, get the resources for me so that this process can be finished without delay. So that is all from my side. Thanks… I think the best way is to postpone, Chairperson, so that we all go out there and get the issue So that's all from my side things. I think the best way is to postpone, Chairperson, so that we all go out there and get the resources.

Chairperson: Thank you, Adv Mkhwebane. Hon Herron?

Mr B Herron (GOOD): Thank you, Chair. Good morning. Until the Public Protector spoke I was not clear yet on where we were at this morning because Adv Mpofu was apparently on the Platform, but now I hear directly from the Public Protector that she is going to be here alone. And so I think it raises concerns for me if we are going to proceed with any part of this process with the Public Protector, unrepresented. Even if the Evidence Leaders are only going to set out or traverse what they propose to do, we have seen throughout the hearing how both the Evidence Leader(s) and Adv Mpofu, on behalf of the Public Protector, have challenged some of the stuff that has been said as part of argument or laying the basis of the evidence that is going to be led. So I cannot see how we can proceed with Public Protector unrepresented. And I do not understand what happened over the weekend in trying to resolve this. I do not understand the Committee’s role in trying to resolve it, but the Public Protector is entitled to legal representation throughout the proceedings. And we cannot continue – I do not see that we can continue without her being represented. Thank you.

Chairperson: Thank you, Hon Herron. Hon Zungula?

Mr V Zungula (ATM): Thank you, Chair. Greetings to you, and the Hon Members, including the PP. Chair, I want to agree with Hon Herron, in the sense that there is a court order, to the effect that the PP is entitled to legal representation throughout the entire process, not parts of the process, but the entire process. Now, I would add, Chair, that we do things correctly. We would not want a situation whereby the Committee works the longest time ever, but get some of the things wrong. And after getting the things wrong, the report of the Committee gets to be reviewed by technicality, in the sense that parts of the Inquiry which the Public Protector did not have legal representation, whereas the court order is very clear on the Public Protector must have legal representation at all times. Remember, Chair, the Public Protector did not invite this Inquiry; it is an Inquiry that has been brought by the process of Parliament. So we cannot expect the Public Protector to fund the legal team from her own pocket. At the same time, we have seen how in the Zondo Commission there were no funds. Processes were made and plans were made to avail funds, so that the Inquiry could reach its conclusions. Now, I would add, Chairperson, that let us do things right. If the Office of the Public Protector, through the Deputy Public Protector, has stated that there are no funds, I would advise that there should be an engagement between yourself and the Speaker. Maybe the Speaker speaks to (the) Treasury to say ‘This is the situation that is there. The Public Protector is entitled to legal representation of her own choice.’ Now, in this case, there are no funds, there is no resources availed to fund the legal representation of the Public Protector. Therefore, the Treasury must intervene (and) avail funds, so that when the process is done, we are 100% certain, Chair, that there is no prospect of the report being overturned, because of a mere technicality. So I would propose, Chair, let us not, you know, push to proceed with the Inquiry, for the sake of time. Let us understand that there are other elements that we need to consider, and particularly this one when it comes to the legal representation of the Public Protector. So I wanted to put that proposal, Chair, that first yourself, you engage the Speaker. The Speaker, on behalf of Parliament or behalf of the National Assembly, approaches National Treasury to avail funds. Only after we are sure or certain that when the Inquiry proceeds there is no… the rights of the Public Protector, or anyone for that matter, have not been trampled on. You would recall, Chair, that as the Evidence Leaders are going to do whatever work they are doing now, they will be part of the work of the Evidence Leaders that the Public Protector might not be comfortable with, or might not agree with, or might want to rebut. Now in the absence of the legal representation she cannot do that. That is why, Chair, I want to make that proposal. Thank you.

Chairperson: Thank you, Hon Zungula. Hon Maotwe?

Ms Maotwe: Yeah. Thank you, Chair. Now that you have presented your next point – which is what I said earlier on that we were unable to engage because we do not know what your next point is – says that we proceed with the meeting. It would be wrong, Chairperson, and it must be noted like that. The rules and the Constitutional Court are clear that (the) PP must be represented throughout the procedures; it does not say for other matters or when you deal with other matters. It cannot be upon the Committee to decide ‘No, for this matter, PP does not need legal representation. We can continue on our own without her.’ It is wrong, and the Evidence Leaders actually must say that themselves. The legal team of Parliament must say to this Committee – they are the ones who are supposed to defend Parliament, by the way. If we continue, Chair, we are bordering on unfairness of this whole process, which started last year, which has already spent a lot of public money only to be overturned by a court to say ‘no, but there were sections where the PP was not represented and the rule is she must be represented.’ I do know what the rush is for. I do not know who is putting you under pressure, because it is not me or you or her, who caused this mess, it is the Acting Public Protector with her letter that there is no funds. So let us go get funds. The bottom line, Chair, we cannot continue without (the) PP’s representation, and the legal team of Parliament should actually come and tell us that; we should not be fighting with you. So I think they are not doing their job, because we should not be arguing this matter. They should be the one to say ‘no, the rules are clear: without the legal representation, you cannot continue.’ So I do not know why we are still debating the matter, Chair. To continue it will be really very wrong, it will be unlawful, it will be illegal, it will be unfair for the PP. So let us not continue. Let us not even think of continuing, Chair. I thank you.

Adv Mkhwebane: We cannot hear (you), Chairperson.

Chairperson: Hon Dlakude? You cannot hear?

Adv Mkhwebane: You are audible now.

Ms Maotwe: Chair? No, no. Chair, after I spoke there was a complete silence, so I do not know if you were speaking after I spoke. We could not hear anything until you said ‘Hon Dlakude’.

Chairperson: Okay. Alright, let me repeat. Thank you for alerting me to that. I do not know what the challenge is. Can you hear me now?

Ms Maotwe: Yes, I can hear you now.

Ms V Siwela (ANC): Yes, we can hear you, Chair.

Ms Maotwe: Chair, you are silent again. We cannot hear anything.

Chairperson: Haibo. Hon Maneli?

Ms Maotwe: Yes, now we can hear you, when you say ‘Hon Maneli’. That is the first statement that you said. That is the only thing that we heard.

Mr B Maneli (ANC): Thank you, Chair. I hope I was not the one who was not hearing you, and I hope that I am also heard at this point.

Ms Maotwe: No, something is wrong on your side, Chair. Hon Maneli, can we hear (the) Chair? We cannot hear him. He comes and goes.

Mr Maneli: Yeah, I cannot hear the Chair. I wanted to check if it is on my side or that I proceed, if I am audible, but I cannot hear the Chair.

Ms Maotwe: I too cannot hear him. The last time I heard him is when he said ‘Hon Dlakude’ and then he went quiet again.

Chairperson: It seems there is a problem.

Mr Zungula: Chair, I propose that you sort out your audio.

Ms Maotwe: Chair, can you control your admin? They cannot just willy-nilly mute us without any instructions from you. What informs them to mute us? We are raising a point that we cannot hear the Chair, and then we are muted. What is this?

Adv Mkhwebane: You are not audible, Chairperson.

Mr Thembinkosi Ngoma (Committee Secretary): Good morning, Hon Members. We seem to be having a challenge with the sound, so I will take three minutes to sort that out, and then we will resume again.

Mr Maneli: Thank you.

Ms Maotwe: Thank you. But who is muting us when we speak here, without any instruction from the Chair? That is out of order man. Yissus.

The Committee adjourned for a few minutes to attend to technical issues.

Chairperson: Hon Maneli, can you hear me?

Mr Maneli: I can hear you, Chair.

Chairperson: Thank you. I was inviting you to make your contributions, followed by Hon Dlakude. Over to you, Hon Maneli.

Ms Maotwe: Chair, I think with that sound problem the ancestors were speaking. It is a signal (that) you must check it properly.

Chairperson: Please mute. Please do not come with the ancestors here. Over to you, Hon Maneli.

Mr Maneli: Thank you, Hon Chair. Chair, I just wanted to make just a few points. The first being that, firstly, let us accept the report you have given, which report indicates that as matters would have been raised, those matters are receiving attention. However, as we meet, we are not in a position to confirm the final resolution of those matters, in particular, the matter you just dealt with, Chair, which regards the PP. I thought it is important that we support you on that, that the report is clear; it is still an unfinished work. However, on the second point, Chair, I also want to suggest that, indeed, given that we have not completed hearing the evidence of the Public Protector on the remaining issues, that still needs to be dealt with, that probably it may be premature to look at landscaping from the side of the Evidence Leaders because also in that landscaping, there may be issues that need clarity, which will be matters that may also come later in the arguments. And if that happens, in the absence of this matter being resolved, indeed, it may, in my view, Chair, border on this part that we may have not heard the legal representatives are here on the platform, as a matter of courtesy, which in this case of I would say to hear what the way forward is because at this point, there is no legal brief on them to proceed. And that proceeding means to also take notes, even when (the) Evidence Leaders are on the platform as part of the preparation later on. I, therefore, want to suggest, Chair, that this may be different in a situation where the Committee, from time to time, would have convened as a Committee and when it convenes as a Committee, for matters that are focused on the Committee, we would have released in most instances, both the Evidence Leaders and the PP and the legal team to leave Members to engage on matters that relates to Members in the Committee itself, as opposed to those that have come as invited to this Committee; whether in the form of Evidence Leaders or in the form of the PP with the with the legal team, to come and account before the Committee. So I want to suggest, Chair, that if the meeting is not really just the Committee to look at possible options going forward, that would not proceed in that way. Probably (we should) use this period to do the follow-ups on the interventions; as you have said, we may get feedback, whether midday, or any other day from now, because the matter is receiving attention. Maybe from the side of the PP, for me, what could have been important from the point of the time – because I hear your point well there about the time, it is a concern we have all had – is that once the resource issue could be resolved, whether we can then look at the time, because there was already a booking, like you say, of being available throughout the process, and whether that availability could not be brought forward as a way of responding to that report that may come; because I take it that in the main, it is just about the confirmation, that resources would be made available, as opposed to proceeding to incur costs, and later on meant that there will be no resources that will be made available, and it gets to border on also or irregular or even an authorised expenditure that may have been incurred in this case. So that is really what I would want to put, Chair, before you. So this point I am making, with the connection, maybe I would have lost some of the inputs that have been made or the clarity that you may have given. If it is not the Committee alone, I would suggest, still, that we do not proceed as such, but use the day to chase progress on the matter. I submit. Thank you.

Chairperson: Thank you, Hon Maneli. Hon Dlakude? Is she off the platform? Okay, Hon Dlakude is not on the platform. Maybe, Hon Members, at this point this is how we are going to do this. Firstly, what we are dealing with here is that both the CR17 as well as the Unit issues, is evidence that was placed here – so that is evidence on record. Let me start there. Whatever that I was inviting the Evidence Leaders to do was never going to be any new evidence started by them. So there is evidence that is on record, that in the last six days that we listened to. Two, it remains an important point that, one, there is an issue of procedural fairness, and doing things within a reasonable time. That is always the issues that we have to balance. And I would have determined that there is no intention for us to waste any time going forward, even as we await the outcome of those interventions on finances. And as you know, (the) Evidence Leaders have a specific task that we designed it to be like that, which is a task of ensuring that the Committee and the Members in particular, are assisted in some of the very complex and difficult issues, and I think as a Chair, I am going to take that responsibility to ensure that that happens. So, thirdly, what is going to happen having listened to all of you, with the inputs that you have made; I think all of you seem to suggest that, and this is that determination I want to make, perhaps at this point, we can step off the Inquiry, and I am going to ask that we take a fifteen minute tea break. When we come back, we will come back into a Committee session. Those who wish to continue being there can do (so) because our meetings are transparent (to) the public. So when we come back from (the) break in that Committee meeting, I will take you through what we will be doing in that Committee meeting, which has stepped off from Inquiry because the issues that we need to attend to are important to be attended to. So at that point, I am going to ask that we take a fifteen minute break. We will be back at 11:30. Thank you.

[Break]

Chairperson: Welcome back colleagues. As I indicated before (the) break that would step off from continuing with the Inquiry and we will get into a Committee session; and in this Committee session, I am going to invited Adv Bawa to take the Members the parts I indicated are important that we traverse so that we save time, when the actual Inquiry resumes. This Committee meeting is still open to everybody, as we have transparent meetings in the National Assembly, so everybody is welcomed, there is no one barred from being present and participating in this meeting. Thank you. Over to you, Adv Bawa.

Adv Nazreen Bawa (An Evidence Leader of the Committee): Good morning, Chair. Good morning to the Members and the public. There is a context in which this is being done, which maybe requires a bit of a precursor to me going into the issues that we will traverse, so that there is some understanding of where it is coming from. There are essentially terms of reference and directives that guide the work of the Committee, and the role of the Evidence Leaders. The directives were drafted for purposes of regulating the, shall we call it procedures within the Inquiry and the terms of reference exist as have been drafted under the aegis of the National Assembly. The role of the Evidence Leaders is contemplated to be effectively threefold: the one of presenting the evidence, which is there; putting questions to the Public Protector or other witnesses; and to assist in empowering the Committee to assist the merits of the evidence in line with its mandates. And what I understand the Chair to be asking us to do is to deal with the latter part of it. Ultimately the assessment of evidence…

Chairperson: Hon Siwela, can you mute please? Thank you. Go ahead, Adv Bawa.

Adv Bawa: So, ultimately, the task of assessing the evidence falls on the Committee, and the Evidence Leaders is to assist the Committee in doing that. Now, there are effectively three forms of evidence before the Committee. The obvious one is the oral evidence which has been led and which you have been hearing, wherein we convene. The documentary evidence, which is the evidence which we have put up, which becomes evidence once it has been led before the Committee; and the other evidence, which one finds informed under directive 3.6.4 of the Rules of the Committee, or the directives, which says “affidavits and or evidence presented by the Evidence Leaders, which form part of court records may be regarded as being sufficient for its purposes, as presented without oral evidence being made in relation thereto.” The Members will recall that as Evidence Leaders we upfront did not take you through the court records when we led other witnesses, because we had indicated we would do so at the time when the Public Protector came to give evidence; and following on that, we would ask her questions arising from that. Now, the presentation today obviously will then lead on to whatever questions we would later ask the Public Protector when the Inquiry reconvenes. But the purpose of this is to take the court records, putting it into the legal context and taking the Members through effectively where that falls within the CR17 matter or issue. You also know that under paragraph 7.2 of the directives ‘the Committee may consider affidavits or evidence that have been filed in other proceedings and before other bodies, provided that Evidence Leaders and/or the Public Protector shall be permitted to put forward evidence and submissions contextualising the affidavits or evidence in question, which is relevant to the Motion.’ Now, we have not had anything other than court proceedings before the Inquiry, save that last week the Public Protector sought to put an affidavit before the Committee which had been before the State Capture Inquiry, and that would fall under paragraph 7.2. Members who had either been on board last week or listened to the recordings afterwards will be aware of how we dealt with that. So it is not falling into that category, it is under 3.6.4. What I am going to deal with today is solely going to relate to the matter of CR17, and it is in the context of Charge 11, and it might make sense if I read what charge 11 says to you. 11.1 states that – it deals with ‘failure, intentionally, or in a grossly negligent manner to manage the internal capacity and resources of management staff, investigators and outreach officers in the Office of the Public Protector effectively and efficiently.’ Charge 11.2 states ‘failing intentionally or in a grossly negligent manner to prevent fruitless, wasteful and unauthorised public expenditure and legal costs.’ And 11.3 states ‘failing intentionally or in a grossly negligent manner to conduct the investigations and/or make decisions in a manner that ensures the independent and impartial conduct of the investigations.’

Mr Zungula: Chairperson?

Adv Bawa: Charge four is ‘by deliberately seeking to avoid making findings against directing remedial action in respect of certain public officials…’

Mr Zungula: On a point of order, Chairperson?

Chairperson: Just a pause, Adv Bawa. Hon Zungula?

Mr Zungula: Yes, my apologies, Chair. I did not want to speak without being recognised, but I had raised my hand a couple of minutes ago, so I do not know if you saw it. I wanted to raise a point of order, Chairperson. Firstly, can I proceed, Chair? Are you fine with me raising a point of order?

Chairperson: Yes, what is your point of order?

Mr Zungula: Firstly, Chairperson, the Evidence Leaders… In fact, you said we are going to proceed in a, we are going to call it a Committee meeting, not an Inquiry. Now, any legal advice in the past, in a Committee meeting, we used to get it from the Parliamentary Legal Services, not the Evidence Leaders. The Evidence Leaders should not in any way present whatever, without legal representation of the Public Protector, because in the context of this Inquiry, the Evidence Leaders, someone can say they play a role of being somewhat as a prosecution team, and the legal representation of the PP is like the defence. Now, to have the prosecutors present whatever, in the absence of the defence, that does not seem to be fair and procedural, from my view. The second issue, Chairperson, I do not recall a meeting where we said as the Members we want the evidence Leaders to present whatever. So I would not know, if you are saying the Evidence Leaders are going to access the Committee; we do not have such a resolution as the Committee to say the Evidence Leaders must come, you know, to the Committee and assist us: there is no such thing. So whatever… If you want, as a Chairperson, to receive whatever assistance from the Evidence Leaders, you can have that arrangement on your own, but not under the guise of the Committee. So I wanted to raise, Chairperson, that it is grossly unfair that the Evidence Leaders are going to proceed in this manner without the defence of the Public Protector, because even the issues Ms Bawa is talking about now are the issues that are relating to the Inquiry. The issues she is going to deal with are issues in which the legal representation or the Public Protector can, you know, want to disagree with or can want to challenge. Now, in the absence of the legal representation, how can they challenge, whereas they are not here now? And when the Members are listening, whatever she is presenting will inform or influence how the Members view whatever they need to view regarding the cases; therefore, it cannot be that she is going to be allowed to proceed without the legal representation of the defence of the Public Protector. So I want to appeal to you, Chair, let us do things correctly. Let us not, you know, invent, you know, things on the way; let us not open ourselves to a situation whereby the entire proceedings can be challenged because of such, you know, mistakes or such things. If you want… If the Members want any form of assistance, just like we have done in the previous matters, the Parliamentary Legal support system is here to provide that assistance. The Evidence Leaders must only engage the Committee in the presence of the PP’s legal representation. I think that is what even them, as professionals in the legal field would want to operate – in fact, they know this much better than us, that they can only take up such space in the presence of their colleagues (and) not take up space in the absence of their colleagues. That is not fair, Chairperson. So I wanted to raise that point. Thank you.

Chairperson: Thank you, Hon Zungula. I just want to indicate immediately that you have raised a point of order and that point of order is not upheld, for the following reasons: one, there is no legal advice that we are being given here to start with, as I explained before the break what we are trying to do; secondly, this is a constitutional inquisitorial process, not an adversarial process, that must be likened to courts, including prosecutors and defenders; and further, I have explained not once (but) many a times, that when we started as this Committee, the issue of Evidence Leaders was our own invention as part of the Committee to assist the Committee. That is the role that they play. And this is a Committee session that I have declared so that we get that assistance to empower the Members. And I have indicated that what they are dealing with is something that has already been put on record as evidence. So I want us to proceed with Adv Bawa. Over to you, Bawa.

Adv Mkhwebane: Chairperson?

Chairperson: Yes, Public Protector?

Adv Mkhwebane: Yes, I see I have been muted, but I raised the hand even before Hon Zungula. I was not logged in because before the break you said (that) it is a Committee session, and I was just watching on YouTube. I see now you are handing over to the Evidence Leaders, who are not Members of the Committee. I excused myself because I mean, several times you were excusing my legal team, myself and the Evidence Leaders. So I am still saying, Chairperson, this is not the proper process to proceed with. It is unfair. It impedes and violate(s) my rights, because whatever they are going to be saying in this process, which, Chairperson, I have been following, as well, how the very same mainstream media which is continuously smearing my name, saying this week, it will be a cross-examination, some secrets, and whatever. So the Evidence Leader, how do you play to that, ethically, as a legal practitioner yourself? How do you allow yourself to just proceed with this process? It is inquisitorial, but it operates within the constitutional principles. So I just joined to just clarify that to you, Chairperson. This is illegal and unlawful and unethical; and possibly I will exercise my rights as well, to lodge a complaint against the Evidence Leaders to the Legal Practice Council, because you cannot behave like this as Evidence Leaders. And this is a Committee session, but I am saying this will violate my rights out there, because my legal team is not here (and) is not here to object and to do anything. So this process is unlawful, Chairperson. And as you said, that this is a Committee session, and I thought you are excusing me as well, because there is nothing more to talk about, because this is for the Committee Member. I am just putting this on record. And I do not think this is a fair process, because she is addressing now the evidence I have presented without my legal team, irrespective of that; and you made a ruling on Friday, Chairperson, now you are somersaulting on your decision, because she wanted to cross-examine and you refused her to do that. And, Chairperson, I will be recording it and as well as yourself, because you are also allowing this to be blown out of proportion. We (are) talking about my integrity and my credibility here. And this has always been your Marianne Thamm or your Karyn Maughan just reporting negatively and against what evidence I am presenting. But then I have placed it on record, and I think this is the evidence I will be utilising to go forward. Thank you, Chairperson… And I mean, the very same letter of the 1st (of March) of Gcaleka, we should, all of us, especially the Committee and the Parliament, should have addressed her to say… All of us were quiet since the 1st, well, for me, there was nothing I could do, because I am not controlling the funds – I am suspended. But that letter collapsed this whole thing because it should have been stopped at the beginning, Chairperson. So I do not understand what is the intention of the Evidence Leaders. This is recorded and I am going to deal with that. And what Hon Maneli said…

Chairperson: Thank you, Public Protector. I think you have covered the points. Let me respond quickly on that. Firstly…

Mr Zungula: Chairperson?

Chairperson: No, no, no, no. Hon Zungula, I am on the platform. I did not even give you an opportunity to speak. You did not even raise your hand, please. Let me just respond to this. I think the Public Protector has covered what she wanted to say. This is what I want to say: firstly, this is a public meeting; nobody is barred from joining it. I have made that point even before and after the break. This is a Committee session that we are engaged in. In fact…

Adv Mkhwebane: But Chairperson?

Chairperson: No, you cannot do that.

Adv Mkhwebane: The Evidence Leaders are addressing you, Chair. You cannot say it is a public meeting.

Chairperson: No, you cannot do that. Please, I did not give you a platform.

Adv Mkhwebane: Why are they participating?

Chairperson: Public Protector, I did not give you a platform.

Adv Mkhwebane: No, Chairperson. No, Chairperson, you cannot treat me like that.

Chairperson: I allowed you to speak, and there was no interruption.

Adv Mkhwebane: No, you are misunderstanding what I am saying.

Chairperson: Allow me to speak.

Adv Mkhwebane: I know it is a public platform, but then… Actually, I was not even finished when you intervened.

Chairperson: Allow me to speak. You are not going to interject whilst I am speaking.

Adv Mkhwebane: But then it was…

Chairperson: You are not going to interject whilst I am speaking, Adv Mkhwebane.

Adv Mkhwebane: They cannot participate without my legal team.

Chairperson: Please mute her. You are not going to do that.

Adv Mkhwebane: You mute me?

Chairperson: Yes, you are not going to do that. This is a Parliamentary session. It is unacceptable that you just come in when I have allowed you to speak until you have covered the points that you want to make.

Adv Mkhwebane: I was not finished, Chairperson. I was clarifying you.

Chairperson: Do not respond, please. I am on the platform. The issues I am making here, is that in response to what you have raised that, firstly, is barred from participating; nobody was chased away from joining this Committee session. This is a Committee session which is meant for the participation of the Members. Okay? I have allowed you to make the points of orders just as a courtesy, but this is a Committee meeting. And so, whilst you can join and listen in, the discussion now is meant for the Members of this Committee. That is the first thing that I want to say. And secondly, I do not think you have to determine what we do or do not do as a Committee, a Committee that you are now accounting to as part of this Inquiry. And so I do not think that – I hear what you are saying – it will therefore stop us from proceeding in this manner. I have explained there that there has been evidence that was placed for six days, and today we are going to just assist the Committee, unpacking the issues, for it to be ready. This is something that we would have done when the Evidence Leaders start asking questions to you but today they are not asking those questions. We are going to make sure that we do not waste that time when we start that process. And that is what we are doing, so that there is nothing that somebody is going to be prejudiced out of this process. And I was trying to address, when you came in, the issues that were raised by Hon Zungula, in saying – because I was in the middle of doing that – in saying that the issues he is raising are not correct in the manner that he has put them. Therefore, I wanted to proceed and continue with this matter. I did not… I thought that there was something else that you wanted to raise; hence, I recognised your hand. I probably should not have done that this being the Committee meeting and the discussion is that of the Members. I hope that is now understood? Thank you.

Adv Mkhwebane: Can I be excused, Chairperson?

Chairperson: Well, if you select to do that, it is fine.

Adv Mkhwebane: Okay. Thank you.

Chairperson: Thank you. Hon Maotwe?

Ms Maotwe: Thank you very much. Chair, I am not sure what you are asking Adv Bawa to do, exactly. She is an Evidence Leader, so she is leading evidence of what? Before we went to the fifteen minute break you said she was stepping off the Inquiry. Now, she should have packed her bags and left, because you said the next sitting is the Committee sitting – the Members. She is not a Member of this Committee, she is the Evidence Leader. She leads evidence in an Inquiry. So outside of the Inquiry, what exactly is she doing? I think that is the first thing. Adv Bawa must pack her bags and go. Chair, if you want us to have a Committee meeting, explain to us what we are meeting for. I pointed to you earlier that the agenda you circulated only has one item, which is the Hearing of the PP. Now, in the absence of the Hearing of the PP there is nothing else. So I do not even understand why we, as Members, are still in this platform; we should all log off because you adjourned the meeting yourself when you said ‘We are stepping out of the Inquiry.’ We thought that you are bringing something else that is new, that you wanted us, as Committee Members to deliberate on, but you are continuing with the Inquiry, Chair. In the true sense, you are continuing, and it is unfair, it is unlawful: you cannot do that. Even earlier on when I spoke, I said to you ‘why do you not get Legal Services of Parliament to come and guide us on what needs to happen’, you have not done that. And it will actually make sense because that is what you get, which is what makes Parliament to lose cases everywhere. That is the kind of services you get of people who should actually be objective and say to you (that) you cannot continue in the absence of a legal representation. So, Chair, this thing that you are doing is illegal. Let us just stop here. Adv Bawa must pack her bags and go. This meeting must be adjourned until such time that the PP has got representation, because it is a reality that we are constituted to discuss the Inquiry: we are part of the Inquiry. Now, what else are we going to be discussing outside of the Inquiry? We are not friends. We are not discussing soccer here. We are not discussing the tenth anniversary of the EFF, which is coming on the 29th of July. We are discussing the Inquiry. It is wrong, Chairperson. Please just get guidance from us as your Member(s). Even your own Member(s) told you that you cannot continue. So I do not know what else you want us to do, but it is wrong, Chair. Please. We are literally begging you, Chairperson, let us not do this. Thank you.

Chairperson: Thank you, Hon Maotwe. The Evidence Leaders have been directed to come and make the presentation, and I want to go to them now. I am not taking second bites, Hon Zungula. Hon Holomisa, I see your hand? Hon Holomisa?

Mr Holomisa: Thank you. Chairperson, I think there is a disagreement amongst the Members of the Committee, and I think it would be better that you consult us before you come to a conclusion of this nature. For instance, Hon Maotwe has just said that the Evidence Leaders are only supposed to bridge the session – plenary session. Why do you want us now to change the rules?

Chairperson: Are you done, Hon Holomisa?

Mr Holomisa: I am done, Sir.

Chairperson: Thank you, Hon Holomisa. Adv Bawa, please continue.

Mr Zungula: Chairperson?

Mr Holomisa: On a point of order, Chairperson. I have raised a question. You need to respond to us. Do not treat us like school boys. Respond to what we have raised. Hawu.

Mr Zungula: Can I address you, Chair?

Chairperson: Are you done, Hon Holomisa?

Mr Holomisa: I said to you, Sir, just respond to what we have raised. You cannot say she must continue whilst we are questioning her presence and the presentation, under the present circumstances. Do not bully us.

Mr Zungula: Chairperson, can I address you?

Chairperson: Thank you. Hon Zungula and thereafter I will make a ruling.

Mr Zungula: Thank you, Chair. The first one, Chair, I raised a point of order (and) you said I must raise my hand. Now, when I am raising my hand, you are saying that you are not going to allow me to have a second bite. I find that it is…

Chairperson: I hope it is not on the same point. Go ahead.

Mr Zungula: Chairperson, I am trying to address you, you are interrupting me. The first point I want to address, Chairperson, is that when the PP, Adv Mkhwebane, was speaking, you interrupted her. Now, I would plead with you, Chairperson, to allow a person to speak, whether you agree with her or you do not agree with her because you cannot want to silence a person when addressing the point or when she is clarifying a point that you have not understood in the context in which she wants. So that is the first thing I wanted to address. The second issue, Chairperson, is that you are saying this is a Committee of the Members. It is now the Members that are engaging in this particular meeting. It is no longer an Inquiry where you would expect the Evidence Leaders and the legal representation of the Public Protector. Now, the Evidence Leaders are not Members of this Committee, so how are you wanting them to address the Committee? You are saying you want them to empower us. We have never said (that) we want them to empower us. Secondly, in their empowerment, as you say, there will be issues whereby the legal representation of the PP may want to object. How can they object if they are not here? So I want to plead with you, Chairperson, let us do things the right way. We would not have any issues if you wanted the Parliamentary Legal Services to empower us, or to, you know, to raise issues to us. That is in line with how the Committee has done things in the past. We have never had, you know, the Evidence Leaders being part of the Committee empowering Members. It is even worse, Chairperson, that has not even come from the Members. It is not Members who said ‘let us request the Evidence Leaders to empower us on anything’. So it is you, alone, as a Chairperson. So I want to caution you, Chairperson, (to) please do things the right way. We are just wanting things to be done correctly, so that if anyone were to report or challenge this report that would come out of this process, we know that we have done everything by the book, and we have not opened ourselves to a risk of doing things wrongly, and you find that in the process we risk turning the entire time into wasteful expenditure, because we did not follow the law, we did not follow even the directives of this Committee. The last thing, Chairperson, as the General (Holomisa) was saying, when we are raising issues, we would humbly ask that you listen to what we are raising, because if there are three Members (and) all three are saying there must be… that the Evidence Leaders must not present, it cannot be that alone you will make a determination that they will proceed. This is a Committee of Parliament, and in a Committee of Parliament, like we have done in the past, it is consensus – that consensus comes from the Members who are expressing their views. It cannot be that all three Members are saying one thing, but you alone, you want to somewhat impose your own view against the majority of the Members that have spoken. I would understand if the other Members from the other parties spoke, and in their input they are saying ‘let us proceed’. Now, I would understand that when you are doing your summary, you are doing the summary based on the majority view, but in this particular case, the majority view from the Members who have spoken, is that let us not proceed with the Evidence Leaders. If there is a need for any empowerment, we ask for Parliamentary Legal Services. Please, Chair, we are pleading with you that let us do things correctly. Please do not fight with us because we are also not fighting with you; we are pleading with you that we should follow what the Constitution, the law and the directives of this Committee say. I thank you.

Chairperson: Thank you. Hon Hendricks?

Mr Hendricks: Thank you, Hon Chair. Hon, Chair, our view is you doing things the right way. Secondly, that you are not treating us as school boys. I have, earlier on, indicated that the proceedings must continue. We must not waste extra minute(s). However, you did not take my advice that we must level the playing fields and seeing that the Public Protector has no legal representation, that the Evidence Leaders should be excused and if there are any issues that you need help on as a Chairman, the Parliamentary Legal Team is there. They are not just here to swear people in; they are here to assist Parliament. Chair, this has been a very expensive Motion for the country. We cannot allow matters to drag on and drag on until the term of office of the Public Protector ends. I, Al-Jama-ah as a party... that there is sufficient evidence that we have heard from both sides. In fact, too much, and a lot of unnecessary evidence, where we are able to make a decision whether the Public Protector must be exonerated or make findings. You rejected our suggestion that another option is a settlement in this particular matter, so we can close this. We cannot bankrupt a Section 9, Committee. We cannot bankrupt the country with these kinds of proceedings. So I just want to confirm again that we are very happy with the way that you are conducting this Hearing so far. Thank you very much.

Chairperson: Thank you, Hon Hendricks. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. Hon Chair, just on the first point of clarity is that, well, before we took the break because the break came as a result of…

Chairperson: You have gone quiet. You are breaking up, Hon Maneli. You need to reposition yourself. Hon Maneli, please reposition yourself and start again because we missed everything that you said.

Mr Maneli: Can you hear me now, Chair?

Chairperson: Yes.

Mr Maneli: Yes. Chair, I was just saying that in the first session, which was the Inquiry itself, you have listened to the views expressed, and surely that informed your ruling, that we take a break but when we reconvene, it is not us proceeding with the Inquiry in the absence of the Public Protector and the legal team.

Chairperson: Hon Maneli, I do not know what is wrong. We cannot hear you, Hon Maneli.

Mr Maneli: Maybe proceed, Chair, if you cannot hear then. I have made the point that (since) we are now convened as a Committee, we should proceed as such and be briefed.

Chairperson: Okay.

Mr Maneli: The point, Chair, about the legal side of things. I thought when the Evidence Leaders clarified the(ir) role and they referred that they are dealing with the third part in their role, not to lead evidence or anything, but to help the Committee in that way. What needs to be tested, Chair, so that we deal with anything that may come back for the Committee, is for the confirmation that there is nothing illegal that is taking place, and therefore, the Evidence Leaders are not appropriating any responsibility that they do not have in terms of their appointment. I thank you, Chair. Let us proceed.

Chairperson: Thank you. Thank you, Hon Maneli. I see you are coming back, Hon Holomisa. Other Members, you are also free to come in if you want to comment on this. Hon Holomisa?

Mr Holomisa: Thank you, Chair. What I would suggest we do (is) let us call in the Parliamentary Legal Advisors, as it is normally the case when we have our own meetings. And also the legal advisors would also respond to the call that the Evidence Leaders do not have to come back or brief us currently without the presence of the legal advisors present in the Public Protector. The Public Protector's Office, under the leadership of Gcaleka, has actually caused us to be in this quagmire. It is her, in writing, that she is stopping this process by refusing to find the legal advisors, as instructed by the ConCourt. So what I would suggest we do, we need to adjourn for now, and then let the state law… I mean, the Parliamentary Legal Advisors to brief the Committee as to whether the process you are starting – we are following now – is within the bounds of the law. Thank you.

Chairperson: Thank you, Hon Holomisa. We are guided here by our own rules, the terms of reference we created, the directives that we have and all of those are not prohibiting us from doing what we (are) doing. In fact, Hon Maneli would have clarified (that) part of the role of the Evidence Leaders is not just to lead evidence or cross-examine. Their essential and the main role was meant from the very conception of this, to assist the Committee in unpacking the issues that we are dealing with. So we do not need a legal advice in understanding that. It has been our role. It is going to be difficult that for everything that we must do there must be an off ramp for legal advice. It does not assist the work of this Committee, and the pace of it going forward. We have always been consistent where there are matters that are very murky and not clear, we have sought that legal advice we have operated in that way in a number of occasions. It cannot be that for every decision, for every intervention that is made, there has to be a legal advice on that. We are empowered as these Members, as part of our constitutional role, to do what we are doing. So I hear your point, but I do not think that it suggests that we need to be seeking legal advice in proceeding in a manner of being briefed by Evidence Leaders, who are an extension of this Committee, by the very creation of this Committee. Hon Sukers, and Hon Dlakude? Hon Sukers, you are muted.

Ms M Sukers (ACDP): Good morning, Chair. I do not know if you called my name or Hon Dlakude’s name? I am sorry.

Chairperson: Your name.

Ms Sukers: Oh, okay. Hon Chair, good morning to you and to everybody at M46 and everyone to that is listening in on the Committee. Chair, I think it would be helpful, and I think you have already touched on that now in your reply. There is a concern around the Public Protector being without her legal representative. I think it is not as a Committee, certainly, it is our duty to ensure that we abide by the terms that were set, and I think we have done that consistently. However, what I think is important, possibly, for all of us as Members so that the fears of Members be allayed that the process not, you know, be compromised in any way and that the rights of the Public Protector by us as the Committee not being violated, is that they be a real emphasis of the points that you have made, and for that to be made in this meeting by the legal advisors, as well as the Legal Adviser of Parliament. And the reason for this is, this is a Parliamentary process, as you have said now. It is also a novel process – I think we established that. A novel process in the sense we are bound by the terms of our constitutional duty as Members to ensure we complete the process within the stipulated time. We are also bound by our constitutional duty to ensure that whatever evidence we have heard, that that evidence be properly be engaged with. There has been a mountain of evidence that has been given in the last couple of days, and it is important for us, certainly for me, it is important that I be enabled and empowered to deal with that evidence, to properly scrutinise that evidence, to understand it properly. So I think because of the concern that is currently in the meeting, that it would be helpful that the two points that you have made: the one around that this is a Committee meeting of Parliament; and secondly, that the issue around what – I am sorry – that means, and that it does not mean that it violates the rights of the Public Protector, but that it actually insist upon our duty to ensure that we do our job, and we do it properly. It is a bit long what I have said, Chair, but I think I fully understand your point, when you are saying what you have said. But I think the concern, the technical concern, around legal representation within the context of the Committee possibly, is difficult for Members to grasp. Last week, Chair… Personally, I want to put this forward. Last week, I think what was emphasised, for me, is our duty, our constitutional duty. And I think all Members need to remember that we have a constitutional duty in this process, and part of that constitutional duty is the enablement and empowerment for us to be able to deal with what we have heard. So I think it would be helpful possibly to the legal services can come in here to reestablish the context of which you have spoken when you replied to Hon… the General. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. Hon Denner?

Ms H Denner (FF+): Thank you, Chair.

Ms D Dlakude (ANC): Hon Chair, you recognised me.

Chairperson: My apologies, you are right. Hon Dlakude and then Hon Denner.

Ms Dlakude: Thank you, Hon Chair. Good morning to you, and my colleagues and everyone on the Platform and in M46. Hon Chairperson, you adjourned the meeting so that when we resume, it will be a Committee meeting. And we have been addressed by the Evidence Leaders, and we were assured because the Evidence Leaders, like you have summed it nicely, are an extension of the Committee. So if there is nothing illegal of what is currently happening, then we may proceed as a Committee. I want to agree with Hon Maneli on that one. We may proceed with the briefing by the Evidence Leaders, who are trying their level best to empower us as the Committee so that we may conclude this process. I know, Hon Chair, that we are empowered by the Constitution, by the rules of the House and also by the resolution of the House which established this Committee. So our… The expectation of the nation out there and all of us, is for this Committee to conclude its work within the legal framework, of course; so Hon Chair, if there is any doubt of what is happening currently in this meeting, then there will be a need for, for the Parliamentary Legal Services. But I heard you correctly, and I know (that) what we are currently doing now with the Evidence Leaders, there is nothing wrong about it. But if Members are uncomfortable about the proceedings now, then the Parliamentary Legal Services may come in to brief us. But from my side, I am very comfortable with what is currently happening, because what the Evidence Leaders are currently doing, they are empowering us as Members of this Committee, so that we may see this work of the Committee through to the next level. Thank you very much.

Chairperson: Thank you, Hon Dlakude. Hon Denner?

Ms Denner: Thank you, Chair. Good morning to everyone. Chair, I think the previous two colleagues actually said what I am about to say, but I just want to reiterate, Chair, we have a constitutional duty to see this process through. And we also have a duty towards the Constitution and towards the PP that we have to do everything in a procedurally and substantively fair manner. But, Chair, the PP, herself has said that she has been listening to what we have been saying, she has been watching the proceedings, and she even said that she has been recording it. So she is not being excluded from these proceedings. It is being done in a very transparent manner, so I see no problem with the fact that the Evidence Leaders are briefing us, so we, in turn, understand the evidence that has been put before us, so we can do our constitutional duty. So I think we should proceed, Chair, and that is just in short, my contribution. Thank you, Chair.

Chairperson: Thank you, Hon Denner. I see you want a second bite, Hon Sukers? You have learned from the other Members.

Ms Sukers: Yeah, Chair. Chair, it is only to say that if there is any doubt, or if there was a lack of clarity on everything that I have said, it is I am fully supporting what you have laid out. And I really want, Chair, that the whole issue around our constitutional duty and what we are bound to as a Committee, Chair, to be re-emphasised. It is my genuine concern, Chair, that when we look at last week, and we look at Friday afternoon, the question that we have around what are the costs to the nation? What is the cost to every Gogo Dlamini, meaning when we keep a process for longer than the stipulated time? What is the cost when the cost keeps on rising – legal costs? What does it mean for our country, Chair? And it is within that context, Chair, that I am speaking about constitutional duty. There is a constitutional duty to every single public representative that we do right and we do fair by the people of this country. And so everything that we are doing in this Committee should be within that context, Chair. And that is why I keep on emphasising the issue around constitutional duty. And I support what you have decided as the Chair, and I support it for those reasons, because mindful in the back of our heads, are the very things that what has been put upon us as people that are representing the people of this nation. So whatever Adv Bawa is doing, it is assisting me as a lay person serving the public. It must assist me to come to a fair conclusion that affects the head of a Chapter Nine institution. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. This is how we are going to proceed now, having listened to all of you who had raised their hands. At some point I was asked to allow Members to speak and then take consensus out of those contributions. I think we are at that point. Now, three Members contributed on this with the view not to proceed, and four Members contributing here with a view that we proceed, and that we need to attend to the legal permissibility clarity of this issue: we will attend to that. What we are going to do, we are going to allow Adv Bawa to continue, now until lunch, because part of the legal team, they are busy with exactly some of the issues that must be unlocked. We can allow them after lunch to give us a briefing on the clarity that is sought, even though many of us are very clear that there is nothing illegal about empowering Members of the Committee about the work that they are doing, which is this Section 194 Inquiry. Adv Bawa?

Adv Bawa: Chair, on your instructions, I was endeavouring to put the context to what precisely we are doing; and maybe if I did that, for the next few minutes, there would be a better understanding of precisely what we are doing. I started off by pointing out to the terms of reference. And the one line I probably did not emphasise is the nature of these proceedings are inquisitorial, but you said it, Chair. We are not prosecutorial, which means that we do work with the Committee in an endeavour to assist the Committee in its task of assessing the Motion. Now, the purpose of what we sought to do is to say to the Committee, there are extensive court records before this Committee in relation to essentially all the reports which formed the subject matter of the Motion. Those court records have not formed part of oral evidence to date. We have not extensively, we may have in isolated cases dealt with parts of it, but in respect of CR17 we have not taken you through any aspects of that. Now, as we go along, I would highlight that which would require Public Protector input, and where you may, as Members, ask questions, want to engage with the Public Protector on aspects of these court papers relating to CR17. We will take the Committee through the salient parts of the affidavits indicating what in respect on the main subjects relating to what the Public Protector…

Ms Maotwe: Chair, on a point of order.

Chairperson: Pause, Adv Bawa. What is the point of order?

Ms Maotwe: Seeing that you are proceeding, Chair, with the Inquiry, in the absence of the PP(s) legal representation, what happens in the case that Adv Bawa presents matters that are questionable by the legal team and they are not in this meeting? What I am saying is that whatever process you are engaging in now, since this meeting, you said it yourself, it is a public meeting. Let us say the matter of PP legal representation get(s) resolved in a day or two, and they go back to this record, because remember you are talking about the Inquiry here. What then happens when there are things that are factually or a misinterpretation that is made by Adv Bawa; are we going to start this process again, from scratch? Just clarity on that one, Chair.

Chairperson: No. Thank you, Hon Maotwe, for that point of order. The clarity is, first, because you have spoken (about) us having made a ruling to proceed on this matter. There will not be a repetition of that. Secondly, this is a feedback and a submission to Members, not to the Inquiry. This is a Committee meeting. And I have said, much earlier, that what she is dealing with is evidence that has been placed over six days in this Committee – she has just started. Over those six days we covered two charges, CR17 and the SARS Unit issue – the Gordhan and so on. So we have extensively discussed this about what the purpose of this is. So I do not want us to go back, now having made that ruling. Thank you. Adv Bawa?

Adv Bawa: Chair, maybe if I can add to what you are saying. The Public Protector has – and maybe Chair, in the days where she did deal with the CR17 matters and the Gordhan matters – extensively explained her interpretation of the report and has informed Members of various explanations in relation to what she had done in respect of both reports. I do not intend repeating that, and I do not intend putting up argument, essentially, against that, because that will happen at an appropriate time, if we get there. What I am…

Ms Maotwe: Chair?

Adv Bawa: Chair, can I finish the sentence please?

Chairperson: Please continue, Adv Bawa.

Ms Maotwe: Chair, please recognise me? On a point of order.

Chairperson: Your hand is recognised. Continue, Adv Bawa. There are other hands I have seen.

Adv Bawa: In effect, what I am going to be doing is… So what I am seeking to do is to show the Committee what is contained in the affidavits that have appeared before the courts. And remember the issue before this Committee is that there are review applications before courts, there are then appeals to the higher courts and then a judgment is written. The judgment is informed by the evidence that is put before the Committee. What will then happen when we get to examine the Public Protector, or alternatively when the Committee produces its first draft, is that the Public Protector will have an opportunity to answer anything that we may have put before the Committee that she does not agree with, which appears from effectively her affidavit that is before the High Court, and those of the other litigants who have responded to it. And if anything is not correctly represented in the draft report, which the Committee presents, the draft report is provided to the Public Protector and her legal team, at which point, the Public Protector and her legal team will be allowed to make input on it. So there is a double bite of an audi to what we are presenting today. We are not going to endeavour to recreate or argue a contrary view to what was presented by the Public Protector in her evidence. We simply want to show you what is contained in the records that are before court, that is relevant to the evidence that has passed in respect of the CR17 matter today. So that is the context in which we are doing that, in respect of the major aspects of it. We are not, for example, the court record in CR17, apart from the rescission application is something like 1662 pages. The Gordhan record is over 4000 pages. We are certainly not going to be presenting you every page, but we are certainly going to show you the highlights of what is contained in that documentation, which had informed the court judgments which form the subject matter of this Motion. And that is the relevance of what you put in before you. You have heard the Public Protector’s evidence in respect of precisely that.

Chairperson: Thank you, Adv Bawa, for that addition. I hope it clarifies. Hon Members, I see the three hands. I just want to say this before I entertain you. We cannot continue raising hands and dealing with the same matter that we have extensively discussed where a ruling has been made. I want to urge you not to continue in that way, because it is not helping the discussion and the meeting progressing forward. I am going to give these three last hands the last time and then from there we will. I am asking Members to refrain from doing that. Hon Maotwe, you had your hand up?

Ms Maotwe: Yes. Chair, I think you are confusing us and perhaps the Committee Members as well, because Adv Bawa is the Evidence Leader, and we have the advocate who is the legal representation from Parliament, who is Adv Fatima Ebrahim. You would normally call her if there is any guidance that you need or you want Members to be aware of anything, if there is any information sharing you want, but not the Evidence Leader; the Evidence Leader leads evidence. That is where the confusion comes in, and the discomfort comes in, Chair, to say (that) we are actually continuing with the Inquiry, despite the fact that you said that we are stepping out of it. I am sticking to that because of what is currently happening. We put it to you, Chair, that the PP does not have a legal representation (so) we cannot continue with this Sitting without the PP’s legal representation. And I asked you earlier, what happens when the things that Adv Bawa is saying are being challenged by the legal team of the PP when they come back after the Sitting you are forcing us to be in, and then the issue of the PP legal representation and they come back, and there are a lot of things that were misinterpreted by Adv Bawa or she mislead this Committee (and) they want to challenge that, what then happens? Do not play us, Chair. I think you are playing all of us. Please, let us allow the PP to go (and) get legal representation and then we can continue with this Committee Sitting fairly. At this point you are actually making a good case for an unfair process, which will be challenged in the court of law, and you will not win, this Parliament will not win. So as Members of Parliament, we have a constitutional duty, we agree. It is also our duty to protect this Constitution, by not allowing you to come and flout the process of this Committee. Our names are going to be written, and we warn you all the time, in this thing, and we will be labelled as if we agree with this thing: we do not agree. It does not matter whether it is one person or two or three people, the fact remains that the Constitutional Court said you cannot continue with the Inquiry in the absence of the PP. It does not matter whether there is fifty Committee Members and only one is citing that, and forty-nine agrees. You know that the ANC and the DA will always agree and they form the majority in this Committee. We are appealing to your conscience to say, let us be fair to the process (and) let us not waste each other’s time. We would have wasted a lot of time – time and money of the taxpayers of this country. This process is very costly, Chair, as it is, and it is very lengthy, so let us not come with things that will make it easy and possible for it to be overturned by a court of law. So we still appeal to your conscience to say let us postpone this meeting. It will not hurt anyone to postpone until the issue of the legal team is resolved. But continue like this, Chair: you know yourself, in your conscience, that it is wrong; it is unlawful; it is unfair; (and) it is illegal, but you still continue with it. That is why we are shocked about where you get this advice from. We said to you earlier on, ‘okay, if you do not agree with us, call the legal team of Parliament to come and tell us…’ It is their duty, actually, when matters are like this, that they should come and guide this Committee. You are refusing, also, to do that. You bring the Evidence Leader. She is leading evidence of what? You cannot answer that question yourself; herself she cannot answer that question. You cannot lead evidence in the absence of the Inquiry. You said, it is recorded, we are not discussing the terms of reference.

Chairperson: Thank you, Hon Maotwe. I think you are covered. Thank you.

Ms Maotwe: So we cannot be convened in this manner. It is wrong, Chair. Please, just accept and let us postpone this meeting. I thank you.

Chairperson: Thank you, Hon Maotwe. Those points have been made repeatedly, many a times. We have discussed that extensively. We have made a ruling in that regard. We are not going back to that. I want Members not to repeat the points they have made even before the ruling was made – we are beyond that now. Hon Zungula and then Dlakude.

Mr Zungula: Thank you, Chair. I have just listened… In fact, before I speak based on what I have heard from Adv Bawa; we have got a constitutional obligation, Chair. Now, this constitutional obligation must be in line with the law, it must be fair, it must follow procedure, and we must avoid any risk of this entire process, after spending so much money and time and resources that a court of law will somewhat overturn the report because we did not follow what the Constitution says. Now, I have listened to Adv Bawa (and) what she is saying she is going to do. The first thing, Chair, is that she cannot begin to touch evidence, even if she is summarising, you know, what was been presented without the legal representative of the PP, based on her words, she is going to be presenting evidence or presenting what is before the courts; and she is going to be doing that in the absence of, you know, the legal representation of the PP. Now, I would also ask, Chair, in terms of the directives or procedure, where exactly in the directives or procedure allows the Evidence Leaders to summarise evidence in a Committee meeting, particularly in the absence of the PP’s legal team and the PP herself? The reason, Chair, I believe that here we are dealing with an Evidence Leader because, like Hon Maotwe is saying, they are dealing with evidence. Now, you cannot deal with evidence in the absence of the legal representation of the PP. In her own words she is going to be, you know, presenting here, presenting what was before the courts on those matters. Like we stated earlier, Chair, what happens if… And she is not going to just be reading, line by line, what the evidence before the court was; she is going to be interpreting what she thinks, you know, was presented or was before the courts. Now, what happens if there are cases or issues in which the PP’s legal team would want to object; how are they going to object in their absence? And lastly, Chairperson, I am getting very concerned that it appears that there are some meetings that are outside of this forum, because when did the Evidence Leaders prepare for this presentation? They seem to be very very ready to present; because the agenda of today was the PP, you know, hearing oral evidence from the PP, in which it was clarified that she cannot because of the issue of the funding. Now, when did the Evidence Leaders, firstly, get to prepare whatever they are going to present? And how did they know that you are going to give them that particular task and they decided to prepare? So I would say, Chairperson, the conduct of you insisting that we proceed in this manner, it smells – it appears that there is something fishy going on because there is no way in which the Evidence Leaders would be so ready, so prepared, whereas the agenda did not even think or include them, actually, presenting whatever they are going to be presenting now. So, Chairperson, please, as the majority of the speakers said, let us get the Parliamentary Legal Services to advise first. I would propose that you do not allow them to speak up until the Parliamentary Legal Services speaks, and we engage that Parliamentary Legal Services first, and then once we are sorted and comfortable and are knowing for a fact that in terms of the Legal Services of Parliament, everything is above board, then we can proceed. Otherwise, as she is going to take the platform now, if you are going to give her the platform, we will raise objections, because in her own words, she is going to be dealing with things that may be objected by the legal team of the PP. Now, the PP is handicapped now, because the Inquiry is, somewhat, proceeding without her legal representation representing her. Thank you, Chair.

Chairperson: Thank you, Hon Zungula. Just to help you, the Evidence Leaders were ready even last week. I ruled them out when they wanted to come in, even before Friday, once the CR17 matters were concluded; so they have been ready. It is a pity, if you were attending everyday last week, you would know that there was the readiness from their side, which I ruled out, but I am not going to be assisting you on that. You represent your own party.

Mr Zungula: They were ready to cross-examine, not ready to present what you are…

Chairperson: I have not even noted you. Please do not do that. Hon Dlakude?

Ms Dlakude: Thank you very much, Hon Chairperson. Hon Chairperson, you said the Parliamentary Legal Services will address the Committee after lunch, so what we are dealing with right now is the Evidence Leaders empowering us with evidence that was led last week by the PP’s legal team. The material facts that they are dealing with is what the PP dealt with herself. So there is nothing new that is being dealt with here and the Evidence Leaders are not leading evidence; they are just empowering the Committee within what was led by the PP’s legal team. We agreed, Hon Chairperson, that this is a Committee meeting and empowering the Committee for it to continue and finalise its work. I think it is very much important. So, Hon Chair, I want to plead with my colleagues that we proceed in this manner that we are proceeding with. Then after lunch, as you have said, Hon Chairperson, the Parliamentary Legal Services will then brief the Committee or address the Committee. So, we are not moving forward as of dealing with a new information that was not touched by the PP’s legal team, we are dealing with what was presented, what was addressed to the Committee and the public at large. So the Evidence Leaders are empowering us as Members of this Committee, so that we can come… we can move forward and come to a better understanding and better conclusion. So I want to plead with us, let us not keep on coming in and disrupting the proceedings which we are proceeding with. The Evidence Leaders are empowering us as the Committee. Can we allow that? We have a responsibility and duty to finish our work. We have a responsibility and duty to produce credible reports and findings as this Committee. We must be ready. We must understand the issues. So I urge my colleagues, that we allow the Evidence Leaders to brief us. Thank you very much, Hon Chair.

Chairperson: Thank you, Hon Dlakude. Just before I go to Adv Bawa, to repeat the points that we have made, as we made that ruling – and Members would have also echoed that – this is not an accusatorial process, this is not an adversarial process: this is an inquisitorial process. Therefore, the fears about one this is placed, it will prejudice somebody else, are really not existent in terms of the process that we are following. I have made a ruling having listened to Members extensively, not once, and I think from this point, if there is an intention to just object willy-nilly, we will have to apply our rules as Parliament because there has got to be decorum of the process and the meeting of the Committee. Adv Bawa?

Adv Bawa: Chair, in doing this presentation, we still anticipate that we would, when the time is there, and the PP’s difficulties with legal representation is sorted out, that we would ask her questions from any issues that get raised. We would also anticipate, in the course of this presentation, to alert Members to what questions we would need to ask arising from any differences that we may have found emerging from the affidavits before court and what had been put before the Committee. We do not certainly intend providing an opinion of what is there. We have been at pains to say to the Committee on several occasions that we do not have a burden of proof. We do not have a case to make out. It is our job to present evidence. We, certainly, in taking up the time of the Committee, they would know what evidence has been presented in respect of the CR17 matter already, we do not intend on wasting your time by repeating that, but we do need to alert you to evidence which are on the court records, which deal with the subject matters that was dealt with before the Committee, in doing that. You will know, and I will ask Tshepo to put it up on the screen, the first full court record is at Bundle H 31.7.5. It was actually put up. The full court record appears from the Public Protector’s papers. And for the Committee's benefit and for those who are not legally trained, if I take it down to the basics, by the time you reach the Constitutional Court, what is encapsulated in the court records are the affidavits of the applicants, which you will see in this matter was the Public Protector and the Economic Freedom Fighters. And then you find that it is the respondents that file affidavits that answer the averments of the Public Protector when you (are) in the Constitutional Court. But when the case started off in the High Court, what you had was that the President brought an application reviewing the CR17 report, and the decision of the Public Protector to write the report of which the subject matter included the CR17 Campaign. That was the subject matter of the review application. The Public Protector then went on affidavit and responded to the President's allegations. The President then filed a replying affidavit, and the matter was then argued before a full bench in the North Gauteng High Court. The judgment came out, in short, finding in favour of the President. The Public Protector then took the matter on appeal directly to the Constitutional Court. I am not going to deal with all the subsidiary applications that happened, save to mention it, because there is also an application from the EFF to intervene and there are all kinds of other intervening parties. As I take you through the records, I will highlight that as it comes along. What then happens is in the Constitutional Court the matter is an application for leave to appeal – the matter is then argued. You have been taken extensively through the Minority Judgment that had been handed down by Chief Justice Mogoeng, as that is already before the Committee, having been put before the committee by Adv Mpofu. I will correlate that to the passages of the affidavit of the judgment handed down by the Majority of the Constitutional Court after the order was handed down by the Constitutional Court effectively upholding or – sorry – dismissing the appeal by the Public Protector. An application for the decision was brought by the Public Protector to have the judgment of the Constitutional Court rescinded. In that rescission application, the Public Protector filed an affidavit and the President answered that affidavit. So it is in that broad context, that being the papers served before the courts, which informed the judgments to which you had been directed. And as legal practitioners and some would know, the judgments are informed by those affidavits that are put before it, and it is to those affidavits that we are…

Chairperson: Please mute that Member. Thank you. Proceed.

Adv Bawa: So what we do know is that the PP’s affidavit… So in the context of what we have with the PP, we know that she has put an affidavit before this Committee, which for purposes of making it easier you will see it at Bundle H Item 37.1 at 49.7. (This) is where that appears. Again, with reference to the PP, we have a court record in which she filed an answering affidavit dated 7 August 2009, which you will see in the court record at page 427. You have a second answering affidavit which she files, dated 14th November 2019 – and you see that at 756 of the papers. And then we have a founding affidavit in her application for leave to appeal directly to the Constitutional Court in terms of Rule 19(2), which you will see dated 14th April 2020 – you find that at page 1443. The President's affidavits, he did a founding affidavit, a supplementary founding affidavit and a replying affidavit. The page reference for his founding affidavit first starts at page eight, the supplementary founding affidavit starts at page 450, and the replying affidavit starts at page 1226. The application for the rescission is to be found in the context of Bundle E. One sees that in Bundle E of the documentation at number 10, and the notice of motion is number 3 of Bundle 10. The Public Protector’s founding affidavit is number 4, and the President’s answer is at number 5. And so the evidence encapsulated before this Committee contains all those affidavits, which I have now highlighted and brought to attention because they are all properly before the Committee and should be considered for purposes of the Motion. As I have indicated, there are applications in the same proceedings brought by the Economic Freedom Front, the Financial Intelligence Centre, the AmaBhungane…

Chairperson: Economic Freedom Fighters or Front?

Adv Bawa: My apologies.

Chairperson: Okay. Alright, thank you.

Adv Bawa: Shall we call them the EFF? The Financial Intelligence Centre (FIC), the AmaBhungane organisation. There have also been affidavits filed by the Speaker of the National Assembly and the National Director of Public Prosecutions. So it is quite an extensive set of affidavits which is before the Committee. We had, last week, and to put it into context, especially for Members who were not here last week, one of the issues that had been dealt with was the Executive Members Ethics Act. Chair, this might be a convenient time if you wish to take the lunch adjournment, before I start on the substance of where I want to take the Committee. Unless you want me to just background it in the legal precepts, before I go to the evidence?

Chairperson: No. Thank you. It was my intention that we will take lunch at 13:00. Thanks for bringing that up to me. It is now 13:00, colleagues. We will take lunch.

The Committee adjourned for a 45 minute lunch break.

Chairperson: Hon Maneli, can you hear me?

Mr Maneli: I can hear you, Chair.

Chairperson: Thank you. You sound better and you seem to have increased the volume now. Thank you. We proceed, colleagues. I indicated before lunch that before we proceed with Adv Bawa, we will just get a few minutes update on the specific question that you asked about the legality of the approach and process. In fact, whether what I have directed Adv Bawa to do is outside of what we need to do, and whether it prejudices the Public Protector and so on. But it is not an all over the place kind of explanation. It is kind of very specific to our tools of trade here – our rules (and) directives. For this part, I have just asked for this part, for the Evidence Leaders to wait for us, outside of M46. I am going to invite Ms Fatima Ebrahim to quickly brief the Members as you would have requested. Thank you. Over to you, Ms Ebrahim.

Ms Fatima Ebrahim (Parliamentary Legal Advisor): Thank you, Chairperson. Good afternoon to all the Members and colleagues on the Platform. Chairperson, I have had a short while to just quickly apply myself to the questions that Members have asked. And I just want to, if you will allow me, to take the Committee back to the time before we commenced with the Hearings, at the time when we were still debating how this process would look and how it would unfold. And Members will recall that when I originally presented the possible formats that the Inquiry could take, there were three options at the time. One was to have Evidence Leaders, the other was that the process would be entirely Member-led with internal support from the Parliamentary staff, and the third would have been a hybrid approach, where you did not necessarily have Evidence Leaders being the face of the Committee, but that you would have some expert assistance in the background. And given the complexity of the charges and the volume of evidence before the Committee, it was decided that the best approach would be to use Evidence Leaders, because Members will recall even at that time, the panel report itself and the evidence bundle there went into thousands of pages, and it was felt that it would be a better approach if we had the support of Evidence Leaders. We were at pains, Chair, to advise at that time that this is not a quasi-judicial process and that the use of Evidence Leaders should not be seen to be an admission on our part that this is a trial of any kind or a criminal process or anything akin to that. And therefore in the TOR (terms of reference) we specifically stated that the nature of the process is inquisitorial, and that the Evidence Leaders will have two roles: one was to put questions to witnesses, if witnesses were going to be called, and secondly to present evidence. But the rider to that Chair, to both of those, was that the aim of that would be to empower the Committee to assess the merits of the evidence, because I have made it clear from the beginning it is this Committee that must make the decision, it is not Evidence Leaders or anyone else, that usurps the role of the Committee and that Members must be engaged in the process. The presentation of evidence, Chair, can take various formats. We tend to think of the presentation of evidence being one where witnesses are being called, and that evidence is presented via witnesses or through witnesses; but that is just one way in which evidence can be presented. The amounts of documentary evidence that does not necessarily have to be led through witnesses, it would in fact, be impossible to lead all of that evidence through witnesses, because as I say, they go into thousands of pages. The directives specifically say that the Evidence Leaders may present evidence without necessarily leading that evidence through witnesses. The question, thus, is not whether the Evidence Leaders can or cannot take the Committee through evidence, I think that is established – that is their role to take us though evidence. The question is whether they can do so now in the absence of the PP and her legal team. And to determine that, Chairperson, I remind the Committee of what I have called the golden thread that runs through the proceedings, which is that the process must be fair. That is always the departure point, when we have to deal with any question. And to determine fairness, what one has to then determine is whether this presentation of evidence would prejudice the PP, and if so, how it would prejudice the PP. Chairperson, my understanding is that the PP will be afforded an opportunity to deal with whatever evidence is presented here today. And in fact, there are two further opportunities built into the process. The first is the intention that the PP, herself, must appear before Members and answer the questions of Members and the Evidence Leaders if they have any questions to put to her. The process that the Evidence Leaders now seek to do is to equip the Members to ask those questions. Thus, anything that may be disputed, any gaps or contradictions that may arise as a result of the evidence that is being presented, can be dealt with her, and an opportunity will be given to her to deal with it. The second bite at the cherry, Chair, as it were, would be the opportunity that the PP is going to be given to comment on the draft report. And you will recall again, that before we started the process I …to respond to the charges, which indeed we did, at the commencement of the process already; the PP did not avail that opportunity. We would give a second audi opportunity once there is a draft report. And the purpose of that was in case the Committee missed anything or misunderstood anything there should be another final opportunity for the PP to place on record any corrections or anything that she wanted the Committee to consider further; therefore allowing the PP now to engage with this evidence and refute it. In a manner, Chair, therefore it can be said that the PP would now be at an advantage possibly because she is now aware of any of these contradictions or gaps or other difficulties that the Evidence Leaders will present and have the opportunity then to prepare for possible questions arising out of that from Members or during questions from the Evidence Leader. If this were to have been an adversarial process, that would not have happened because the prosecutor would keep their cards close to their chest, rather than saying this is what we identify as particular problem areas or issues or things that we may need further evidence on to resolve or to close. So the Committee can digest the presentation, Chair, but it would be subject in terms of using the information that comes forth in the presentation today, to the PP, importantly, being given that audi. So in other words, where that audi is not given then reliance cannot be placed on evidence presented. Nonetheless, Chair, there are always… It would have of course been ideal, if the PP’s team and her legal team were here, but unfortunately, that is not the case. At the same time, the Committee has a duty to ensure that it proceeds in a manner that ensures that its work is done in a reasonable timeframe. I am comfortable, Chair, as long as what I am saying in terms of the issue of reliance is seriously considered and that nothing goes in to the report without the PP then being given an opportunity to respond specifically to that. Thank you, Chair.

Chairperson: Thank you, Ms Fatima Ebrahim. You have taken exactly seven minutes to do that – to make those clarities in assisting the Members in answering the questions that were raised. Before I call in the Evidence Leaders for us to proceed, I am going to check if there are any clarities from what has been presented now by Ms Ebrahim, which clarifies some of the questions that we ask. Hon Zungula?

Mr Zungula: Thank you, Chair. Thank you to Ms Fatima Ebrahim as well. Two issues, Ms Fatima. The first one is what then happens during the process of the equipping done by the Evidence Leaders, there are issues in which the Public Protector, via the legal representation, would want to object? How then would that happen? Or is it going to be a case whereby immediately when they are done, when this thing of the resources... of funding is done, then they will have to come back and start from scratch and object to everything that has been done by the Evidence Leaders? That is the first point. The second point is immediately once the Evidence Leader is done, what then becomes the next step in the context of the proceedings? And the last issue is that, with the court order saying the Evidence Leader, sorry, the PP is entitled to legal representation throughout the entire process, do you view this – what is to be done or what is currently being done by the Evidence Leaders – as part of the process? I get this argument that they are an extension of the Committee, of which, in my view is false, because a Committee is Members of Parliament. Like yourself, you are providing assistance, you are not a Member of Parliament, you are not a Member of the Committee; you are requested time and time whenever necessary to provide assistance, and you are providing that assistance objectively so because you are not going to need to make a determination after the entire process; but with the Evidence Leaders, they are leading evidence, they have been leading evidence from the start up until this process. So how then do you reconcile the need for legal representation throughout the entire process? And you are going to have this particular process, or part of the process, which excludes the Public Protector because the Public Protector (is) effectively part of the meeting now, it is a Committee meeting. So that is the three points, particularly the last one as to on one side an extension of the Committee, on the other side they are Evidence Leaders, on the other side the Committee comprises of Members, and as the Chairperson stated earlier on, this session now is open for the Members to assist. Perhaps the last point; would you not, as someone who has been providing legal and technical advice in the past, being the most relevant person, as you are not inextricably involved in leading evidence? Would you not be the perfect person to provide whatever legal assistance Members need when it comes to equipping them or assisting the Members in this particular state? Thank you.

Chairperson: Thank you. Do you want to take – should I put them together or do you want to take one by one? Is it easier that way? Over to you. I have noted Hon Maotwe (and) Hon Gondwe.

Ms Ebrahim: Thank you, Chair. That was quite a bit, some of which were remarks, but I will try my best. Chairperson, I think what is key in terms of the question around objections; objections can be raised at any point, it does not need to be done immediately when something arises. But the key is that we have to deal with what possible prejudice there would be to the PP. And I have made it clear that the information that is provided here today cannot be used against the PP without affording the PP an audi to respond to that. So whether that is going to be in the form of Members putting questions to her saying, ‘This is what the Evidence Leaders presented in terms of x, y, and z, what is your response thereto?’ – providing an opportunity that way. Then secondly, if it is included in the reports; in other words, the Committee then… on evidence presented in the report in order to reach a finding, she must be given an opportunity then again, to respond to that. Chair, the nature of the proceedings is such that the role of legal services here would be to give technical legal advice and not to take the Committee through the evidence. Certainly the legal team is not steeped in the evidence in the same manner in which the Evidence Leaders would be. In a normal Committee process had the decision here been not to have Evidence Leaders, this would have been a role played by content advisors, typically, who would have studied documents and legal might have assisted on particular legal questions, but it was the decision of the Committee to follow this particular route. As I have said, Chair, it would have been ideal if the PP had been here, but unfortunately that is not the case. And the Committee then sits with this issue of still having to conduct its work within a reasonable timeframe and completing its work because there is a lot of evidence before the Committee that the Committee is going to have to engage with and the question is how best the Committee can do that. Chair, we had envisaged that even when we get to the point of deliberations where the role of the PP’s legal team would have come to an end during deliberations, that reliance may then even be placed on Evidence Leaders to assist the Committee where they are these technical questions where Members perhaps are not understanding or following the evidence because they would understand the evidence in context and that they could have assisted the Committee in that regard. And any attempt by the Evidence Leaders to persuade the Committee in a manner in which they should not have, because they are not meant to be biased – they sit here as neutral. I have made it clear from the beginning (that) they put evidence before the Committee, whether that evidence refutes or supports. The point being that the Public Protector would have still had the opportunity in that final draft report to have a look and then make her comments. Thank you, Chair.

Chairperson: Thank you. Hon Maotwe?

Mr Zungula: Chair? My apologies, Chair. Can I come in quickly?

Chairperson: No, I am going to take other Members. If there is a quick follow-up, I will check you at the end.

Mr Zungula: It is not a follow-up, Chair. It is just to highlight what was not answered.

Chairperson: Okay, go ahead.

Mr Zungula: Yeah, it is the question, Chair, regarding the court order that stipulates that the PP must be afforded with legal representation throughout the entire process. I think she forgot to answer that one. The Evidence Leaders have stated that they are dealing with evidence (so) how do you reconcile what is happening now versus that particular court order, in relation to the legal representation of the PP? Thank you.

Chairperson: Thank you, Hon Zungula. A quick one, Ms Ebrahim.

Ms Ebrahim: Chair, there has been no denial of the right to full legal representation but there is another part of the process, which is the Committee getting to grips with all of the evidence before it. Certainly when the PP returns with her legal team, the legal team, should they wish to engage on any of these issues, then, of course, they must be given the opportunity to do so.

Chairperson: Thank you. Hon Maotwe?

Ms Maotwe: Yeah. Thank you, Chair. Ms Ebrahim just confirmed that we are going to be dealing with evidence – she said it herself. She even says, if any evidence that is going to be presented now might be questioned by the PP, they can do that later. So it means it is very clear that we are continuing with the Inquiry in the absence of the legal representation, and that alone – you do not need any other explanation – tells you that we should not proceed. That is one. Number two, the programme for today, Chair, and I am going to repeat this because it is what you circulated … The programme says we are hearing the evidence by the PP (but) the PP is not here; so what are we doing? She is not here. Unless if you have got a new agenda which you have not shared with us? What you want Adv Bawa to do is not in today’s agenda; so why are we deviating from our agenda? That is number two. Number three, it is an observation, Chair. I have been observing that ever since the PP took the stand to give a testimony or evidence in this Committee, Parliamentary Channel, 408, has never, not once, televised that. But today, because now the tables have turned, it is no longer now, the PP leading evidence, it is now the Evidence Leader, Adv Bawa, going to be taking on the PP (and) suddenly the Parliament’s Channel is back on. That is bias. It is very wrong. So the public do not know the evidence that was presented by the PP, throughout, from day one. Are we saying the public is not supposed to hear the side of the PP? It must only hear the side of the Evidence Leaders? That is wrong, Chair. Why are we doing this, really? Finally, let us postpone this Sitting, it will not hurt anyone. Let us have this Sitting properly constituted, with the legal representation of the PP, as it is an instruction by the Constitutional Court. All of you will be bridging that instruction by the court. We do not want to be part of that. We do not want to be summoned. We do not want to go to jail for nothing. We are not scared of jail but we must go there for real reasons, not this thing of not following court orders; so let us do the wrong things, Chair, please. Please advise the Parliamentary Channel that we are watching. We are watching what they are doing. They are playing politics, and it is very wrong, and we are going to say it publicly, we are not scared to say it. It is very wrong. They cannot give the side of the other people and give the side of the PP – the whole world wanted to hear the side of the PP. It was not anywhere. Even when there was nothing happening in Parliament, they would repeat the things of the past, of Parliament in the past. Today, because now it is Adv Bawa… Since the morning, you can go and check it yourself, she has been there. It is very wrong and we are cautioning Parliament to say: stop what you are doing, it is wrong. Thank you, Chair.

Chairperson: Thank you, Hon Maotwe. Before I go to Ms Ebrahim, there are issues here I might have to respond to a Chair. If there are any issues you want to respond to, if none, I will respond later because there are two critical issues that she would have raised. Let me proceed to Hon Gondwe and then Nkosi.

Dr M Gondwe (DA): Good afternoon, Chair. Thank you very much for giving me the opportunity…

Chairperson: Maybe before I allow you to speak, I am just going to make a request to those who are following. I am giving you this opportunity to seek clarities on what has been said by Ms Ebrahim; your taking the platform is specific to that. Thank you.

Dr Gondwe: Chair, I do not have a clarity seeking question. I just want to agree with the insights that Ms Ebrahim has given us. I do agree that by us allowing Adv Bawa to take us through the court records that are relevant to the CR17 matter that will in no way prejudice the Public Protector. As Ms Ebrahim has indicated she will have an opportunity, you know, to be heard, if she wants to set anything, you know, straight in terms of what has been presented by Adv Bawa. Chair, I also want to just correct a misconception around her right to legal representation. The Constitutional Court did not say that this Inquiry cannot proceed without her having, you know, legal representation, it said that she must be afforded an opportunity to have a legal rep assisting her and we have not denied her that right, Chair. I just want to put that on record because there seems to be a misconception being peddled around us denying her the right legal representation. We have never done that and we are not going to start doing that. Thank you very much, Chair.

Chairperson: Thank you, Hon Maotwe… I mean, Gondwe. I do not think there is anything Ms Ebrahim needs to (respond) to, (as) you were making a contribution. Hon Nkosi?

Mr B Nkosi (ANC): Thank you, Chairperson. I am also not going to ask for clarities; just to say that I am better positioned now to agree with you. Firstly, that in the morning, we took a decision (that) we are adjourning or postponing the Inquiry; so there is no Inquiry here. We took a decision in line with that, we are proceeding as a Committee, right? As a Committee, we do have a right to utilise whatever resource that is availed to us, to enlighten us. One of that resources is the Evidence Providers – Presenters, sorry. And it is true (that) we made an election that we are going to have Evidence Presenters guide us through the process.

Chairperson: We call them Evidence Leaders.

Mr Nkosi: Evidence Leaders, yeah, guide us through the process. What they are doing now can be done at any time. We can adjourn the meeting after (the) presentation of Part(s) A and B, and request that they take us through all what has been presented by the Public Protector’s legal representative. The alternative, Chair, is that we approach them individually for advice, but that is not how we are structured; we are structured as a Committee, and we should receive from them as a collective. I think we must bury that. In any way, Chair, the records of this Committee meeting are public records, accessible by any other person interested in this, and in particular, the Public Protector. If there is anything that they want to object to, they have done that before. They can object to things that are said in the Committee, in the Inquiry itself. The last point, just as a matter of emphasis, again, that there is no one who is denying legal representation to the Public Protector. In fact, we are on record on several occasions, even when they staged a walkout here – his (her) legal representatives – as having emphasised the fact that we will not proceed without these legal representatives, I mean, without the legal representatives being there. So we cannot suddenly be this Committee that denies that representation, Chair. Other things, Chair, I think maybe we can discuss it. I just wanted to discuss the issue of the budget and how the budget works in Parliament, because I have heard several times, on several occasions, that (the) PP directing us to go to the fiscus, to go and get money from the fiscus. Just to make the point, Chair, that a budget is a law of the country. It is the Division of Revenue Act, and it is spent according to that Act, passed by Parliament. You cannot once you pass the law on finances, just go anywhere and get this money as if it is available. I will make the point when she is here. Thanks, Chair.

Chairperson: Thank you, Hon Nkosi. The last hand I have is Hon Siwela. Hon Siwela?

Ms Siwela: Thank you, Chairperson. Thanks, Chair. I wanted to participate even earlier than this but because of (the) network, I could not. Chair, I do not have much to say.

Chairperson: It will help your network if you just switch off the camera. Just switch off the camera, then we will hear you.

Ms Siwela: I have done so, Chair.

Chairperson: Yes, thank you.

Ms Siwela: I wanted you to see my face, so that this is Siwela indeed.

Chairperson: Thank you. Thank you.

Ms Siwela: Chair, I was saying I do not have questions, but to support that we proceed. The presence of the Evidence Leaders is to clarify certain things. I am comfortable that we are not violating any law, and I am happy that the PP will get an opportunity during the time to respond to us. As long as what we are doing is legal and we are not violating any laws, I am proposing that we proceed because our Evidence Leaders are the extension of the Committee to maybe advise us, and clarify certain things legally, which, on our own, we cannot. So that was my view, Chair. Thank you.

Chairperson: Okay. Thank you, Hon Siwela. Thank you, colleagues. To conclude and address some of the concerns raised by Hon Maotwe, just two of them. Though I am not aware, as I am always on this seat (I) would not know when we are on 408 or not. That is probably something that can be taken up to clarify, but what we all do know is that platform gets to be shared amongst a number of Committees at any given day; so there will be NCOP (National Council of Provinces), there will be NA (National Assembly) Committees (and) there will be sittings running in that, but we would not have followed it. In other words, I am saying it is a contested space for Parliamentary Committees. I have been told that it is Wednesday and Thursday where it would not have been running. In the absence of that, there would have been YouTube and so on. Thank you for bringing that, but I hope it clarifies (that) because it is not our space as this Committee, but the point you are raising that it is important the public connects with everything that we do. In the absence of 408, the public, which I acknowledge every day, and I mention 408 and YouTube, so when they are not on 408, they are on YouTube. They always tell us when our sound is not audible, when they are frozen; we are always alerted to that issue. It is good that Hon Maotwe has been alert to (the) issue. When we inquire, we could easily be told that ‘Section 194, you are not the only Committee that we have in Parliament. We cover this and this and so on.’ I think we have addressed the other issue you have raised, much earlier on, as we made the ruling about your question about what we are doing here now, and that the agenda would have been about the Inquiry. We have travelled that road. We have explained when we switched off from this and get into a Committee session, and I hope that does help. So that being said, colleagues, Ms Ebrahim, any last words you want to say before we conclude and ask the Evidence Leaders to come in?

Ms Ebrahim: Yes, Chair, just for the record, the Evidence Leaders are not an extension of the Committee. As I said in my response to Hon Zungula, they are resources to the Committee – they cannot usurp the functions of Members, they are here to capacitate Members to do their job. Thank you.

Chairperson: Okay, thank you. In that way, because he would have followed that, because the Chair would have used that language, so the Chair stands corrected on the extension, but it does not take away the fact that the Evidence Leaders are part of the way we have designed this Inquiry. Thank you for that, Ms Ebrahim. Can we call the Evidence Leaders to come in and continue? Thank you.

Adv Bawa: As I indicated, that today's presentation relates exclusively to the CR17 matter, but there is an overlap in respect of one aspect where it goes to something that was raised in the Gordhan matter, that has overlapped. You will specifically recall that we had not made any other evidence on the CR17 matters specifically, save for the questions that we posed to Mr Rodney Mataboge, who testified that he was the Chief Investigator, and only investigator in respect of the CR17 matter, and he reported to the Public Protector. So I have taken you through the number of affidavits that the Committee has before it, emanating and I have highlighted the ones that emanate from the Public Protector and the President specifically. Now, to put this into context, and for the benefit of the Members who were not here last week and have not yet had an opportunity to comprehensively look at the evidence that was led, I just want to briefly touch on… I am going to the Executive Members Ethics Code first but let me just locate it for you. If I can ask Tshepo to just put up Section 96 of the Constitution? So if you see subsection one, ‘Members of the Cabinet and Deputy Ministers must act in accordance with the Code of Ethics prescribed by national legislation.’ If you then go to page 454, that is the national legislation which says to you in its intro ‘to provide for a Code of Ethics’. Section 21, first, is headed ‘Code of Ethics’. “The President must…”, so the obligation is on the President “after consultation with Parliament, by proclamation in the Gazette, publish a code of ethics, prescribing the standards and rules aimed at promoting open democratic and accountable government, and with which Cabinet Members, Deputy Ministers, and MECs, must comply in performing the official responsibilities.” So we know that there is this Code and how that Code must come into effect; the following subsections tell you what the Codes of Ethics must contain. We will skip over that (and) we will go to… We know that the Code that emanates from this process is the Executive Ethics Code, right? Now, we go to paragraph section three. That is the power that is given to the Public Protector. You will know from, I think it was done by Mr Ebrahim a long time ago, that said the Public Protector’s powers must be sourced in the Constitution or legislation, under EMEA, which is the Executive Management Ethics Act – her power comes from Section 3(1). “The Public Protector must investigate any alleged breach of the Code of Ethics on the receipt of a complaint contemplated in Section 4.” So let us go and see what Section 4 tells us. Section 4 tells us “The Public Protector must investigate must investigate in accordance with Section 3, an alleged breach of the Code of Ethics on receipt of a complaint by one, the President a member of the National Assembly, member of the National Council of Provinces, if the complaint is against a Cabinet member, a member of the Provincial Legislature of the province, if the complaint is against the MEC.” Subsection 2 tells you that “this complaint must be in writing, and it must contain the name and address of the complainant; the full particulars of the alleged conduct of the Cabinet Minister, Deputy Minister or MEC; (c) any other information that may be required by the Public Protector prescribed in the Code of Ethics.” Subsection 3 says “Nothing in the section prevents the Public Protector from investigating any complaints by members of the public in accordance with the Public Protector Act.” So the boundaries of the legislative powers are prescribed. If you go to the affidavit, and I am going to start by the last proceedings in court, first. We are going to go to the Public Protector’s founding affidavit in the Constitutional Court in the rescission application, that is in Bundle E, 10. Go to page 7, paragraph nine 19. The Public Protector correctly points out that “Section 3 empowers the Public Protector to investigate any alleged breach of the Code. The Public Protector’s powers to investigate are triggered by the lodgement of a complaint. This suggests that the scope of an investigation is determined by the alleged breach of the Code, as alleged in the complaint. It is important to note that Section 3 does not authorise the Public Protector to investigate a violation of the Act itself, but limits her authority to investigate the breach of the Code. The Public Protector herself tells us that her powers and her authority are limited under this Act to investigate the breach of the Code.” The Constitutional Court in paragraph 16 of its judgment then looks at what is said in Form 4. It says “The form prescribed for the complaint must contain the name and address of the complainant…. It must also set out full particulars of the breach of the Code and identity of the person against whom the complaint is lodged.” Paragraph 17 says “A member of the public cannot be a complainant in relation to a complaint submitted in terms of Section 4 of the Members Act.” Now, you will see when you look at the Public Protector’s report, she handled this properly, because she received a complaint from a member of the public, and she did not deal with this complaint from the member of the public under EMEA, because she is precluded from doing so under that Act.” So that is essentially what circumscribed the powers of the Public Protector to investigate the complaint under the Executive Ethics Code – it is the court. If we just leave this affidavit for a moment – we do not need to go to it, I am going to read it to you. “The President comes to court, and he challenges the PP’s decision to investigate and report on the CR17 election campaign for the ANC leadership election, which was to occur in December 2017, and to have reports 37, of 2019, reviewed and set aside, in particular, certain remedial actions.” So he comes to court and he sets out a number of grounds, which I am going to come to in due course, on which he challenges this report. Now, what the Public Protector does, if we go and we have to start at the start of it, what is it that came to her in the form of a written complaint that got us started off to investigate. If we go to her report… If you go to page 9 of the report, you will know that there were two complaints, one from Mr Maimane, and one from Mr Shivambu. And what the Public Protector then does to the two complaints is she decides to consolidate the two complaints into one investigation for administrative purposes. Go back up; I just want to show the Members what else she did that was in respect of the anonymous complaint. She says “Not long after the receipt of Mr Maimane’s letter, my office received another similar complaint lodged by Mr Shivambu” and the details of that. And then she says “as well as an anonymous complaint on 28 January 2019, who is not a Member of Parliament, and therefore precluded from lodging a complaint in terms of EMEA.” So we know that the complaint is circumscribed by what has been provided by Mr Shivambu and Mr Maimane under the Code and under the Act, right? What she does in this report, if you go to page 11, she identifies three issues that she says informs the investigation with reference to the two EMEA complaints. So she tells you that on top, and she says “taking into account the fact that the President was then the Deputy President, and thus a member of the National Assembly, the following issues have been identified.” So the Public Protector correctly says at the time when the events occurred, he was a member of the National Assembly. As the Deputy President, he presents and he makes the representations to Parliament as the President. There is no error in respect of that, in how that was pointed out. Now, under A, the three times, and we are going to have to deal with this in some detail for you to understand as we go along, what the Public Protector had identified as the issues to be investigated. “Whether on 6 November, 2018, during a question session in Parliament, President Ramaphosa deliberately misled the National Assembly and thereby acted in violation of the provisions of the Executive Ethics Code.” Now, if we stop there, we know that he is the President, and the Executive Ethics Code would have applied at the time he answered at the question session. What is then added on to that is “and the Code of ethical conduct and disclosure of members interest for the National Assembly and permanent council members” that is for when he was a Deputy President. “B, whether President Ramaphosa improperly and in violation of the provisions of the Executive Ethics Code and disclosure of members interest for the National Assembly and permanent council members exposed himself to any situation involving the risk of a conflict between his official duties and his private interest, or use his position to enrich himself and his son, through businesses owned by African Global Operations.” That is the second item that has been identified. “C, whether there is an improper relationship between President Ramaphosa and his family on the one side, and the company African Global Operations on the other side, due to the nature of the R500 000 payment passing through several intermediaries, instead of a straightforward donation to the CR17 campaign, thus raising the suspicion of money laundering.” Now, the Public Protector then references laws in the report to which she had in that regard. If you go to page 12, and the evidence was accepting of this. If you go down on the laws that apply the Constitution, we come to see that what is quoted in the report is Section 12 of the Prevention and Combating of Corrupt Activities Act 12 of 2004, which we commonly know as PRECCA – (in) the report it is called POCA. The report then sets out what the offence is that the person commits under PRECCA, okay? That is not the money laundering offence, and I think during the evidence it was accepted that the reliance on the Prevention and Combating of Corrupt Activities Act was incorrectly relied upon for purposes of finding the offence of money laundering, but that does beg the question for the Committee to have an understanding as to what is the offence of money laundering. Bear in mind that when we go through this, what I am looking at is what was before the court at the time it handed down its judgment, because it is the judgment that forms part of the Motion. So if you go to the founding papers, which is at page 57. What I am taking you to now is the President's founding affidavit in the High Court application. Before that, I think to put this into context, let us go up to the top. I am mindful that I have to give the Committee a context of how this comes in. So the President comes to court, and he says there is ‘an irrational finding of facts, and there is no basis for money laundering finding’, right? And he says that “The Public Protector concluded that there was a prima facie case of money laundering against me, and she referred the matter to the National Prosecuting Authority.” And he says in his view “there is no factual foundation whatsoever for any suspicion or prima facie case of money laundering. The Public Protector does not set out why she believes that the suspicion of money laundering is sustainable.” And I will come to what the Public Protector says in a moment. “Money laundering is a statutory offence in terms of the Prevention of Organised Crime Act 121 of 1998. Nowhere does the Public Protector reference this act in her report. In terms of Section 4 of that Act, a person is guilty of money laundering if he knows or ought reasonably to have known that the property forms part of the proceeds of unlawful activities.” That is the first element. Second: “Despite that, knowledge enters into an agreement that engages in any arrangement or any transaction with anyone in connection with a property or performs any other act with such property. Thirdly, the effect of any agreement or any other act must be to conceal or disguise the nature, source, allocation, disposition, or movement of the said property or its ownership must be intended to enable any person to avoid prosecution or to remove or diminish the property in question.” Now, we know that in this case, the complaint related to the R500 000 – that would be the property in question. The President then goes on and says “The Public Protector did not engage with this definition at all. There is no basis on the filings that she has made for a suspicion or prima facie case that there were any unlawful activities, nor is there any basis for the suspicion of a prima facie case made out, that there is any person that knew that any unlawful activity were carried out in connection with any monies, there is no evidence at all that anyone tried to enter into an agreement or engage in a transaction to conceal the nature, source, location, disposition or movement of any monies or for that matter their ownership.” Go down. And then he says “it seems that the Public Protector merely concluded on account of the fact that the money was paid initially to Miotto Trading, before it came to EFG2, that this was an attempt at disguising the source. As a matter of law, this is wholly incompetent. There is no factual foundation for this view, either. The CR17 campaign had no way of knowing why a donation sought from Mr Watson was paid via an associated company. The Public Protector had access to both Mr Venter and Mr Watson. Neither of them gave the Public Protector any information to the effect that there was ever any attempt or intention to disguise the source of the funds. It is notable that the Public Protector made reference to the Prevention and Combating Corrupt Activities Act 12 of 2004 (PRECCA) when dealing with the allegation of money laundering. I am advised that this Act does not deal with money laundering at all. It deals with the general offence of corruption. Corruption and money laundering are two legally distinct concepts. By confusing these two statues the Public Protector has shown a grave misunderstanding of the law.” And then he comes on that, in respect of that. Now, if I take you to the Public Protector’s affidavit, which one sees at page 856. Noticeably I was dealing with paragraphs 150 onwards of the President's affidavit, and you would know — maybe go up. So as you would know, one deals in an answering affidavit in two ways: you set out your main submissions or paragraph by paragraph with the allegations that you find in the founding affidavit. Now, this is what the Public Protector has to say in respect of the President's submissions relating to, ‘inter alia, your use (of) PRECCA as opposed to POCA, and you go the legislation wrong in this regard.’ The Public Protector says ‘The allegations contained herein are denied. The evidence contained in the record is clear about the movement of funds. The moving of funds from one account to another raises suspicion of money laundering. Having regard to the alleged suspicion, I reviewed the bank records of the EFG2 Trust Account to establish how the funds which had been collected from the CR17 campaign were dispersed. There were large sums of money entering and exiting this account. This compounded the alleged suspicion of money laundering. I found that because payments of the R500 000 passed several intermediaries…” and the several intermediaries phrase comes from, initially, Mr Maimane’s complaint, “instead of a straightforward donation towards the CR17 campaign.” So “it went from Mr Watson’s personal bank account to the Miotto Trading account, to the EFG CR17 Campaign Account. The suspicion of money laundering had merit. I therefore referred the matter to the relevant institution for probing as provided for in Section (6)(4)(c)(i) of the Public Protector Act. Legal argument will be advanced at the appropriate stage regarding the scheme. It will be invidious for a court to mark the work of the Public Protector as if it were making an academic essay or for it to expect the report to read as a court judgment. Save as aforesaid, the allegations contained herein are denied.” So at that stage in the High Court proceedings based on the affidavits, the Public Protector did not admit that she used the wrong legislation. And when the Public Protector comes and testifies, we will ask her where the main body of the affidavit, she dealt with the allegations that it was the Prevention of Crime… PRECCA as opposed to POCA. Chair, may I, at this point say because we are an inquisitorial process, and not an accusatory process, or adversarial in nature, what this also does is it gives the Public Protector a heads up on the questions had the matter run up to course. But I am not asking her those questions now, nor am I drawing any conclusions from the answers to be drawn. But as you would be aware, this note initially was being prepared last week with the purpose of doing this and then asking the Public Protector questions. So from there one then go to the High Court Judgment, which is 30 of Bundle C. If you go to paragraph 140 – sorry, I do not have the page number. There we go. Maybe go back up. Before I am accused of misrepresenting it, let us just start at the top of 139. Alright. I have not yet dealt with the facts and so we will come back to 139 when we deal with the facts, but maybe we will just put it into context, because here the court, in its judgment, which is already 59 pages, says “We know that the Public Protector did not have facts or evidence that the donors were either public officials, or the public funds were used to donate to the CR17 campaign. In fact, the evidence she had at her disposal identified the donors as private donors. It is inexplicable how then the Public Protector made the State Capture statement. To buttress her view, the Public Protector then referred to PRECCA to find her conclusion that money laundering was involved. She made the firm finding that based on PRECCA, the evidence at their disposal established the prima facie suspicion of money laundering. We know that she had no evidence even remotely suggesting that money laundering was at play. We also know that PRECCA has nothing to do with money laundering. The legislation that establishes the offence of money laundering is POCA”, and you have set it out there. Then in 140, he basically sets out the elements of the offence that I read to you, in similar terms to what was contained in the President's affidavit that was served on the Public Protector. Go down. That is the offence that is listed in paragraph 40. There is a second part of the offence in paragraph 41, which I also took you through earlier. The court then sets out the third offence, and we know that Sections 4, 5 and 6 of the POCA Act. Then the court says “The essence of the offence is the concealment of proceeds of crimes. Unless the money involved in the suspected money laundering transaction is the proceeds of crime, it does not matter how many accounts and transactions are involved in dealing with the money. There can be no offence of money laundering without the proceeds of crime.” So that is the point that the High Court makes in its finding on the law and which is confirmed by the Constitutional Court in its judgment, which confirms the High Court’s Judgment – and that deals with the offence of money laundering under POCA. It also deals with money laundering. The other legislation that deals with money laundering, the court also deals with that, is the Financial Intelligence Centre Act – the FIC Act. It says that the FIC Act was introduced to “combat money laundering activities, and the financing of terrorist related activities. The Act defines money laundering activity to mean an activity, which has or is likely to have the effect of concealing or disguising the nature source location, disposition or movement of the proceeds of unlawful activities, or any interest which anyone has in such proceeds and includes any activity which constitutes an offence in terms of Section 64 of this Act, or Section 4 or 5 or 6 of the Prevention Act. That is the POCA Act. It then goes down, and says “there was no evidence before the Public Protector that any of the donations made to the CR17 campaign were the proceeds of crime, nor that the President entered into an agreement or an arrangement whereby he assisted Mr Watson to conceal or disguise money, which he knew or ought reasonably to have known, is the proceeds of a crime. There was further no evidence before the Public Protector that the President knew or ought reasonably to have known that the Watson donation constituted the proceeds of unlawful activities. Additionally, it cannot be said that the President ought reasonably to know that Mr Watson made, and there is no evidence to suggest this, a tainted donation to his campaign, and then failed to obtain information to confirm or disprove the fact.” Go down. “Clearly, the Public Protector had no foundation in fact and in law to arrive at the finding that the President had involved himself in illegal activities sufficient to evoke a suspicion of money laundering. In addition, the Public Protector based her finding on legislation that had nothing to do with the offence of money laundering. The conclusion is inescapable that in dealing with this issue, the Public Protector completely failed to properly analyse and understand the facts and evidence at her disposal. She also showed a complete lack of basic knowledge of the law and its application. She clearly did not acquaint herself with relevant law that actually defines and establishes the offence of money laundering, before making serious unsubstantiated findings of money laundering against a duly elected head of state. Had she been diligent, she would not have arrived at the conclusion she did.” Okay, so that is the part dealing with money laundering. There is a further affidavit that was before the court, which was done by the Financial Intelligence Centre, which you (will) find at page 601 of the affidavit. So go back to 31.7.5 and go to page 601. Just go up, so I can put a context to this. I want to see what the heading is before that. I want to avoid any allegations that I am misleading or committed. So (the) heading in the affidavit is the ‘Alleged money laundering.’ And the context behind this is that the Public Protector is perfectly entitled to go to the Financial Intelligence Centre and put a request in for assistance. The ambit of which for purposes of what I am saying to you now, is not material. But she then gets a FIC report, based on bank accounts, and we are going to come to that in a little while as to what was actually provided to her. What the deponent from FIC says in his affidavit to the court is “Subsequent to the FIC report on 2 April 2019, Muller, the analyst who compiled the report, addressed an email to the authorised offer in the office of the Public Protector, Mr Rodney Mataboge and in that email requested a meeting with him for the purposes of discussing the contents of the report. The meeting is a procedure that has been adopted by the FIC to ensure that the recipients of information it provides understand the process it adopted and the contents of the report” and he annexes the email. Go down. He then says “The meeting convened on 10 April, present were Muller, Uys Alberts (another representative of the FIC) and Mataboge. At that meeting Mataboge specifically asked for confirmation on whether or not evidence of money laundering was found. Muller informed him that he could find no indication of money laundering, as he could not identify any predicate offence from which the money could have been proceeds of. I wish to emphasise that the FIC does not have investigative powers. It collects information, interprets it and analyses it for the purposes of assessing the legislative entities, who have such powers to conduct their own investigations. In this regard the FIC’s finding of the existence or not of the predicate offence or not conclusive, as it did not investigate whether or not such predicate offence existed. The conclusions are solely based on the fact that the amount of R500 000 came from sources that appear to be lawful. Once the Public Protector had received the FIC report, together with the source documents, she was duty bound to conduct their own investigations and analysis, as stated above.” Now, on 30 March, when the Public Protector gave evidence, she confirmed to the Committee that the wrong Act was cited in the report, in that respect. I have now taken you to what she had told the High Court, that informed the High Court’s judgment in respect of the PRECCA issue. There are two other aspects that I want to point out in the record because we endeavoured to look from the record, where PRECCA came into issues with money laundering, and the only reference we could find was at page 1002. It is an interview which the Public Protector conducted with the attorneys from the EFG firm. For those who were not able to be with us last week, the EFG law firm set up the Trust Bank Account, EFG2, which the donation of R500 000 was paid into. There is an interview. This is the transcripts of the proceedings of the interview conducted with the directives of Edelstein, Farber and Grobler Inc on 23rd April, 2019. It is the first page of the interview where the Public Protector informs… identifies who is in the interview, and sets out where the Public Protector indicates to them in line four, that “ we will indeed provide you with the recording after we have completed the investigation.” I am not interested in the recording. And then she says “if that can be understood, I will appreciate it. It is prudent for us to emphasise that we are conducting this investigation in terms of Section 182 of the Constitution and in terms of the Prevention and Combating of Corrupt Activities Act.” So, clearly, there was an understanding that the investigation was being conducted in terms of the Prevention of Combating of Corrupt Activities Act at that stage, which was the date that was the 23rd of April 2019. This is the only reference in the record, other than the affidavits that I have come to and the report in which it is mentioned. There may well be others, but those were the only two. So if you go… I have taken you to what the High Court had to say about it, and if we now go to the Constitutional Court judgment on it, in that regard – I want to go to paragraph 112 of the judgment, which you will see at Bundle C, number 3. I think it is number 12. So we are going to paragraph 112. So, as I said, I have not been dealing with the absence of facts, which both the High Court and the Constitutional Court identified as a defect. But in paragraph 12, it says “The Public Protector once again, misconstrued the empowering legislation.” Then the court says “the complaints to her were made in terms of Section 4 of the Executive Members Ethics Act, which stipulates the complaint should relate to an alleged breach of the Code” and I prefaced what Sections 3 and 4 of the EMEA had indicated. “The Code does not refer to money laundering, and yet the Public Protector treated the allegation as separate and dedicated a large portion of the report to addressing it and making a finding specifically on it. It appears the Public Protector was aware that the Members Act did not empower her to investigate the money laundering allegation, and she invoked the Prevention and Combating of Corrupt Activities Act (PRECCA), whose specific provisions were cited and interpreted in her report. The Public Protector’s report concludes its analysis of the PRECCA by stating ‘my investigation into the issue pertaining to possible money laundering is premised on the above legislation dealing with corruption and applies not only to private individuals who offer bribes, but also to private individuals who accept bribes. It would therefore have been remiss of me not to deal with this aspect of the complaint, so as to be able to confirm or dispel any suspicion as referred to in the allegations brought before me by the complainants.’ Having interpreted the PRECCA the Public Protector concluded that decriminalised corrupt activities and other forms of organised and financial crimes, including money laundering, but as the High Court rightly pointed out” and that is confirmation of the paragraphs that I have read to you early on “ that the PRECCA does not create the crime of money laundering. Before us counsel for the Public Protector attempted to explain this as the innocent reference to the incorrect Act.” So the explanation provided at the Constitutional Court by counsel acting for the Public Protector was to say that this was just an innocent reference to the incorrect Act. The court then goes on and says ‘There is no merit to this submission. The report quotes extensively from the provisions of the PRECCA, which the Public Protector interpreted to be criminalising financial crimes, including money laundering. This illustrates plainly that she misconstrued the PRECCA. In fact, a reading of the report shows that she equated money laundering to corruption and bribery.” Go to 115. “Having investigated the money laundering allegations, the Public Protector decided to dispose of them in terms of Section 6 (4)(c)(i) of the Public Protector Act. One more, the Public Protector overlooked the fact that this provision is triggered where the facts disclose the commission of an offence during the course of dealing with a matter that properly falls within her competence. This disclosure must occur at any time before, during or after an investigation of an issue listed in Section 6 (4). Money laundering is not one of the matters listed in Section 6 (4) as falling within the competence of the Public Protector. And apart from specified offences under the PRECCA, crime is not reported to the Public Protector for investigation.” And that is very important because it comes later when we deal with remedies and why the National Director of Public Prosecutions sought to file an affidavit before the ConCourt opposing the remedy relief that was sought. It says “The Constitution empowers the police service to investigate crime yet here the Public Protector undertook to investigate an allegation on money laundering made by the leader of the official opposition. This differs from stumbling upon money laundering facts during an investigation. With regard to the allegation that the President and his family were involved in illegal activities that gave rise to the suspicion of money laundering, the High Court held that the finding lacked legal and factual foundation, this conclusion is unassailable.” Now before we leave the ConCourt Judgment, go to paragraph 194. This is the judgment of the then Chief Justice Mogoeng. I am not necessarily going to read you all the paragraphs of the judgments of the… of all the paragraphs of the Chief Justice's judgment because you have got that already. It was done extensively, and some paragraphs more than once, and I think you would be very irritated with me if I read to you David and Goliath again, but let me take you to 194. “The Public Protector relied on an incorrect legislation in dealing with the offence of money laundering in her report. The Chief Justice agrees with the Majority of the judgment that there was incorrect legislation relied on and that is common cause. Where they differ is the reason that they put reliance on the incorrect legislation for money laundering. The Chief Justice says “that does not really matter. She was not going to refer criminal charges against the President. It is the police, in particular, the National Prosecuting Authority. The drafters of the charge sheet or the indictment, if charges were to be referred, were to ensure that the correct legislation was relied on. Hers was to alert them and ask them to investigate.” So that is the view of the Chief Justice on that. So through the one legal aspect leading to that, I want to take you back to what the President came to court to complain about, when he came in the context… and the founding affidavit. So if we go… Although the President makes out his case in his founding affidavit, the Public Protector puts a very useful summary of what the President's case is at page 804, paragraph 95 of her affidavit. So the President relied on several grounds on which he challenged the Public Protector’s report, including the one which I have just taken the Committee through. Page number 804 is where I want to take you to first. I think this is about a fair summary, which the Public Protector makes of the main grounds on which the President relied. Let us take a summary of that to get an understanding of the President's case. Right. She says that “The remedial action appropriates the functions of the National Assembly, the National Director of Public Prosecutions and the National Commissioner of the South African Police; that I lacked jurisdiction to investigate funds paid to the CR17 campaign; that Reliance was placed on an incorrect version of the Executive Ethics Code; that I violated his rights to Section 58 of the Constitution; that the evidence does not support the findings made; that there is no duty imposed on him to disclose; that he was not given audi; that the evidence was unlawfully obtained.” And then in paragraph 96, she says, “I submit that the President has failed to establish a factual or legal basis for any of these grounds and the relief he seeks. None of these contentions are borne out by the facts of this investigation at all. They are all an attempt to obfuscate the matter, to take irrelevant technical points merely to duck the real issues and avoid accountability. There is absolutely no legal basis for the contention that the President was entitled to more than what is contained in the Section 7(9) report, which included the possible adverse findings. Had I set out, in greater detail, any sanction, I would have been accused of pre-judging the issue without hearing from the President.” And in paragraph 97, she says “There is absolutely no factual or legal basis for these contentions. I will address each of them in detail below for how two of these contentions can be dismissed immediately” and then she deals with two, which I do not want to come to right now. She then, in paragraph… Go to page 840. “I now attempt to deal with the specific averments in the founding affidavit to the extent necessary. And she has, above, dealt with the President’s broad challenges against my report. She confirms ‘I deny each and every ground upon which he had brought this application.’ ” So there is a complete denial that the President has a factual and legal basis for challenging the report. As we sit here today, we now know that the Public Protector has accepted that she had used the wrong Act and that she had relied upon the wrong Code. So that I do not misrepresent things, Tshepo, just go back up to the initial paragraphs of the Public Protector’s affidavit – paragraph 203, so that we can put the factual and legal submissions into context. She says “the facts to which I depose are within my personal knowledge and I accept where the context indicates otherwise, or I expressly say so to the best of my knowledge and belief, both true and correct.” And in paragraph 3 she says “Where I make legal submissions I do so on the advice of my legal representatives, which advice I believe to be correct. I also make such legal submissions on the basis of my own understanding of Constitutional obligations of the office of the Public Protector and those of the President of South Africa as a Constitutional.” So she relies on her legal representatives, and she relies on her own basis of understanding of what her obligations are and those of the President. We then turn to what the major findings were that the Public Protector made against the President. I will turn to the reference in a moment, but I just want to summarise the three or four major findings that she made. They include that the President ‘deliberately and inadvertently misled Parliament.’ That he had ‘failed to disclose donations to the CR17 campaign.’ That her investigation ‘supported the prima facie suspicion of money laundering.’ Those were the three major findings that the Public Protector had made, and it was against these findings that she issued certain remedial action. So if you go to paragraph 7 of the report, which would be at page 100. Just go there. Let us start by 7.1. The way the Public Protector’s report is structured – go up a little (so) we can see. Section 7 of her reports are generally where she deals with her findings or conclusions having dealt with the evidence in the above sections. “Having considered the evidence uncovered, during the investigation against the relevant regulatory framework, including the response to the Section 7(9), I now make the following findings…” And then she takes… You will recall that I read out the three headings that she identified as the issue, and she then sets out what the findings are in respect of the President. And I specifically want to take you to 7.1.4. You will see that there is a finding. “I therefore find President Ramaphosa’s conduct as referred to above” the representations that he made to Parliament “although ostensibly in good faith, to be inconsistent with his office as a member of Cabinet, and therefore in violation of Section 96 (1) of the Constitution as referred to above.” Now when the Public Protector deals with the President's submission in the Section 7(9) component of the report, which we find at paragraph 5.4.23. I think it starts at page 158. I might have the wrong page reference, sorry. Just go to 5.4.23. So what the Public Protector has done is she has issued the President with a Section 7 (9) Notice, and then in her report, she details his response in the paragraphs dealing with that complaint in her report. This one deals with the paragraphs 122 to 145 of the Section 7 (9) Notice relating to the allegations that the President did not mislead Parliament. She then says “The response incorrectly states as follows: the Public Protector has correctly found that the President acted in good faith” This is her paraphrasing or quoting from the President's submissions, “that should be the end of the matter. Any suggestion that the President contravened the Executive Ethics Code is incompatible with the Public Protector’s own finding that his response to Mr Maimane was given honestly and in good faith.” It goes further than that (and) it says “The President, in fact, did not mislead Parliament at all. Mr Maimane told Parliament that the payment was one Bosasa made to Andile. He was the one who misled Parliament, albeit that he did so innocently.” The response from the Public Protector in the next paragraph is “I have taken note of the preposterous arguments and fonts in this regard, and I do not agree therewith because nowhere in the Section 7(9) Notice did I make the purported finding. Furthermore, the rules of the National Assembly are very clear on the procedures to be followed during the question and answer sessions in Parliament. I have also dealt sufficiently with my reasons for the finding in this regard and save to say I do not agree with the argument raised. I do not wish to reiterate what is already in the report which I had canvassed at length in the Section 7(9) Notice.” Now, the Section 7(9) Notice, at page 86 (dd) reached the conclusion that the President acted in good faith by saying the following: “His conduct referred to above, although in good faith, is inconsistent with his office as a member of Cabinet, and therefore in violation of Section 96 (1) of the Constitution, as referred to above.” So we have a situation whereby, in the context of Section 96, the Public Protector has said he acted in good faith. And in the context of the Executive Ethics Code, she has indicated that she has not said that he acted in good faith. And that is one of the issues that when we do ask the Public Protector to come before the Committee that should probably be cleared up. So with that in the background, I want to take you to the rescission application, which you find in Bundle E. And we know that after the Constitutional Court dismissed the appeal, on 23 July 2021, the Public Protector brought a rescission application. And in May 2022, the Constitutional Court unanimously ruled that the Public Protector’s application for the rescission of its majority ruling which confirmed the invalidation of the CR17 judgment in the High Court in Pretoria should be dismissed with costs, as no case had been made out for rescission. Now, I have checked, the Chief Justice Mogoeng is not part of the bench that sits in respect of the rescission application – I think by then he had retired – just so that there is no misrepresentation of any kind as to who the court is that rules in respect of. So if we go to Bundle E, 10, of the founding affidavit. Go to page 23 first, and then we will go up to the top. You will all be aware that seeking a rescission of a Constitutional Court Judgment, even then, was a very novel step to take, and so the Public Protector set out the context in which she brought it in paragraph 44, by saying to the court, “I wish to state from the very onset that as a person whose Constitutional duties involves quasi judicial adjudications, I am mindful of and particularly sensitive to the role that finality of judgments plays in the fabric of our Constitutional democracy. The doctrine of res judicata is very fundamental to the smooth operation of the Justice machinery. It assures the finality of court judgment and prevents matters from being re-litigated on the same cause of action and between the same parties.” And then she goes on to the law. Go up to the top of the affidavit, Tshepo. Paragraph 2, she says “The facts contained in this affidavit are unless the contrary appears from the context or is so stated, within my own knowledge and are true and correct. Where I make submissions of a legal nature, I do so on the strength of my knowledge of the law and upon legal advice which my legal advisers have provided to me, which advise I accept to be both true and correct. She then in paragraph 3 says “I am the first applicant in the judgment handed down by this court on Thursday, 1 July 2021, attached herewith as annexure ‘PP01’. In the aforesaid judgment, the Hon Court has committed a patent error, being an error which can be attributed to the court itself.” Now in the next section, she sets out who the parties are, so let us skip that (as) we do not envisage that to be necessary for this exercise. We then come to paragraph 12 and 13 (where) she sets out what the purpose of the application is, and it is for rescission. We then go down to paragraph 14, “we seek alternative relief”. And then paragraph 15, she says…she deals with the interpretation of legislation and application of law. Now just go down a little bit. I do not want to get into a debate about the law of rescission with this Committee at the moment. So she sets out a brief background about the Public Protector. Go to paragraph 28, I think. I am going to come back to some of those paragraphs in a bit. So we she does in this application is she says that this court’s patent error, is that it applied the law as per the 2000 Code and not the 2007 Code, and it should have applied the Code, the 2007 Code, and by not having applied the 2007 Code, it had committed a patent error. That is the patent error that she comes…

Chairperson: Just repeat that? I think you have mixed the years. Start again.

Adv Bawa: Sorry.

Chairperson: Just so we can follow it properly.

Adv Bawa: There are two Executive Ethics Codes that is referred to in this application. One is the 2000 Code, which is the law; and the one is a 2007 code. The patent error that the Public Protector comes to the ConCourt to seek a rescission on is the fact that the Constitutional Court applied the 2000 Code, which was the Law. And the Public Protector says you made a mistake, you should have applied the 2007 Code, because you made a patent error, and she sets out the reasons why they should have applied the 2007 Code. And it is important for the Committee to understand this, because this is what extensive evidence was laid on last week.

Chairperson: I was reading that heading there, and so that it was what maybe confused me. It says “This court approved the reliance on the 2007 Code.”

Adv Bawa: So the argument goes, and let me rather take it from the Judgment – from her affidavit. So the argument made in the rescission application. And it is important that you understand that there is oral evidence before this Committee and an acceptance by the Public Protector, that actually the correct Code is and the lawful Code, is the 2000 Code. There was no doubt about that last week to do that. I am taking you back in time to tell you what was her version before the Constitutional Court in the rescission application. And let me also say that there was an explanation given to the Committee about the Nkandla Judgment, which I am also going to take you through in a moment. But let us start at the starting point of this. Let me also preface this: the rescission application in the Constitutional Court was the first time that this argument was made. I have scoured the affidavits of the Public Protector in the High Court and in the original affidavit for the application for leave to appeal to the ConCourt. So one of the questions that would be asked of the Public Protector is where in those affidavits did you raise this issue? And I always accept that I could make a mistake because I am saying to the Committee, that I could not find the reference or reliance on this legal argument in the papers in the High Court or in the in the leave to appeal for the ConCourt, that arises for the first time, that I found in the rescission judgment. So that is a question that clarity needs to be obtained from her or the Committee needs to satisfy itself that I am correct, that it is not mentioned in those two affidavits. It says “In the so-called Nkandla Judgment this Hon Court unambiguously stated that my predecessor, Advocate Thuli Madonsela ‘concluded that the President violated the provisions of the Executive Members Ethics Act and the Executive Ethics Code.’ These are the national legislation and code of ethics contemplated in 96 (1), specifically this Hon Court cited Chapter One of the Ministerial Handbook, a handbook for members of the Executive and presiding officers, 7 February 2007.” And then she points out that “the obvious and significant differences between the two versions are that the 2000 Code was cautiously and deliberately framed” that is her view “ to state only that only members of the Executive may not: a, willfully mislead the legislature to which they are accountable.” And that is the dispute between the two versions, right? “Plainly this prohibition is narrow. As this Hon Court correctly stated, members of the Executive are forbidden from willfully misleading the legislature to which they are accountable.” She quotes from that – and then go down to 28. Then it says “Abandoning recognition of the 2007 Code in the Nkandla Judgment, this court erroneously concluded that I, as the current Public Protector, had seriously misconstrued the Code. This was because the Hon Court laboured under the erroneous impression that I was using the old 2000 Code, as opposed to the later 2007 Code approved and endorsed by the same Hon Court. I was not called upon to construe or misconstrue the old 2000 Code, but was legally required in accordance with the stare decisis doctrine to apply the 2007 Code whose applicability had been expressly endorsed by this Hon Court in the Nkandla Judgment. It was therefore a patent error for this Court to conclude and pronounce as follows: ‘Quite clearly, the statement shows that she thought that the Code prohibited members of the Executive from furnishing any and every piece of incorrect information regardless of their state of mind and objective they wish to achieve.’ Then she says “Both the Majority and Minority opinions did not question whether the…” and she is referring to the Majority and Minority decisions in the CR17 judgments, “did not question whether the 2007 Code of Ethics that had been used by the Public Protector Office of the Public Protector since at least 2009, is the applicable Code instead of the superseded 2000 Code, relied upon by the extant judgment. This is an unprecedented and unconstitutional departure from the well-established principle of stare decisis which has been consistently upheld by this Hon Court. The doctrine of precedent not only binds courts, but also binds courts of final jurisdiction to their own decisions.” It then says “these courts can depart from a previous decision of their own, only when satisfied that the decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority, it is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. It engenders certainty among the general public and other uses of court judgments, such as the Office of the Public Protector.” (The) Public Protector recognises in this paragraph the importance of the finality of court judgments, and I have no quibble with her views in respect of that. Paragraph 30, she then sets out why it is of exceptional importance that it should be decided by the court. “The two divergent approaches adopted by the same court are irreconcilable and cannot both be correct, one of them must be erroneous.” And then she says “A material factual or legal matter was overlooked in the decision in that this court was either genuinely unaware that it had already accepted the Code of Ethics be used by the Public Protector as applicable law in the Nkandla Judgment, or it departed from that judgment without expressly so pronouncing or giving reasons.” And then in paragraph 32 – and I am going to come back to this paragraph because it becomes a very important paragraph as we proceed through this affidavit, and the other affidavits. The Public Protector says “upon my appointment to the Office of the Public Protector, I duly familiarised myself with this Court’s key judgments, including the Nkandla Judgment, the 2007 Code of Ethics, and also followed the precedent set by my predecessor, Advocate Thuli Madonsela. In accordance with the principle of stare decisis on Sections 39 and 162 of the Constitution, I was duty-bound as the Public Protector to follow this Court’s Nkandla Judgment, in the interpretation of the applicable Code. Had I acted differently, I would have been correctly criticised for not respecting the principles of continuity.” Go further down. Paragraph 33, she says “Accordingly this application serves a narrow function to correct manifest errors of law in circumstances where this Hon Court had patently made an honest error in its judgment or order. Further, at paragraph 48, page 26 of the rescission application – I am skipping the explanation given for that for the moment, and the legal framework that is set out – “This Hon Court compounded its serious patent error when it ruled, apparently unaware of the existence of the 2007 Code that the Public Protector dishonestly and incompetently ‘changed’ the Code and ‘added’ words to it.” Further at paragraph 49, the patent error committed can only be attributable to this Court since the 2007 Code became the only applicable law was properly pleaded in the High Court papers and subsequently raised in the papers before this Hon Court.” Then go to paragraph 23, which you will see on page 12. I think I skipped it. My apologies. “The office of the Public Protector had in previous years relied upon various pieces of legislation in dealing with matters that involve the public office bearers, the Executive Members ethics Act, and the Ministerial Handbook” she defines it and attaches a copy of the former (and) she only attaches the portion that contains extracts of the 2007 Code. Go down. “The Members Act, inter alia, empowers the President of the Republic to draw up a code of ethics describing standards and rules aimed at promoting open and democratic government. Section 2 of the aforesaid Code states…” and then she sets that out. We have taken you through what the Executive Members Ethics Act says about the Code, so I am not going there. At paragraph 22, which is where I wanted to go, it says “On 7 February 2007 then President Mbeki introduced significant changes to the Code of Ethics. He published a new Ministerial Handbook: A Handbook for Members of the Executive and Presiding Officers (7 February 2007).” This is the genesis of this competing version of a 2007 Code as it got put out. It says that “The new Code widened the prohibition considerably in that the new Section 2(3) of the Executive Ethics Code now explicitly states that members may not: (a) deliberately or inadvertently mislead the President or the Premier or as the case may be the legislature.” The difference between the 2000 and 2007 Code, is that the 2000 Code says ‘willfully misleading’ as opposed to ‘deliberately’ or ‘inadvertently’ mislead the… I have not found and we do not believe it to be common cause but this 2007 Code that found its way into the Ministerial Handbook was never proclaimed in a Gazette and it did not comply with the requirements set out in Section 2.1 of the Executive Members Ethics Act, which I started off the address with. So it has no legal efficiency in the context of what this Committee and what the courts had decided.

Chairperson: Okay, can we pause for (a) ten minutes tea break at that point? Thank you. We will take a ten minute tea break, colleagues.

[Break]

Chairperson: Welcome back colleagues from tea. We are back on it, Adv Bawa. Over to you.

Adv Bawa: I just want to clarify the last proposition I put to the Committee so that it is understood. When I talk about legal efficacy, I do not mean… I mean it in the following sense: there is an Executive Members Ethics Act; it is under that act that the Code must be promulgated, and it is pursuant to that Code that the Public Protector has to ensure that it is abided by. The Act makes provision of how members must complain. And so it is under that Code, which emanates from that Act, that the complaints of Mr Shivambu and Mr Maimane come before the Public Protector. And so, when I say that that Code must be promulgated, I have not come across anything that has shown the 2007 Code to have been promulgated – that the only source or place that this 2007 Code has been found is based on the affidavits as having been contained in the 2007 Ministerial Handbook. So in other words, what I am saying is, it cannot be a Code under the Executive Management Ethics Act because it does not fulfill the requirements of the Act, unless there is a Gazette that I have not come across. So if we go to paragraph 21, page 10 of the rescission application in the founding affidavit in the Constitutional Court. The Affidavit then says “With regard to the provisions of the 2000 Code, the Hon Code correctly opined as follows: in the case of Public Protector and others, the President of the Republic of South Africa” that is the judgment…yeah. Then it says “With reference to paragraph 55…” it says “with regard to the provisions of the 2000 Code…” Sorry, Tshepo, go down. 55 says “When the former President drafted the Code, he did not lose sight of the fact that members of the Executive are usually called upon to give answers to questions raised in Parliament in respect of matters over which they have no personal knowledge. He cautiously and deliberately framed the code in these words”, then it sets out the words we have already gone through in 2(3)(a). And then in 56 it says “plainly, this prohibition is narrow. Members of the executive are forbidden from willfully misleading the legislature to which they are accountable. In other words, for a member of the Executive to breach the Code, she or he must have given incorrect information with the intention to mislead the legislature. Incorrect information alone is not sufficient to constitute a violation of the Code. Such information must be accompanied by a member’s intention to mislead.” And so I have taken you through 22 and then maybe go to 23. The 2007 Code is then said to widen the scope of what the 2000 Code provided. So based on what the Public Protector says in this affidavit, it begs the question as to what did the Nkandla Judgment say, and the stare decisis, the precedent set by Adv Thuli Madonsela and what has occurred in the office that she refers to. Let us turn to look at that for a moment. And before doing that, I should probably clarify this in the way that it has been going for this Committee: what is stare decisis? So that those who are not steeped in law can understand it. It is a Latin term that essentially means ‘let the decision stand’ or ‘to stand by things decided’. So in other words, there is a system of precedent, holding that courts and judges should honour this precedent. And it means that when you consider judgments or your judgments of the own court, one does not depart from what is regarded as the ratio decidendi of the judgment of prior cases, or from prior cases. And having said that, I must then explain what the ratio decidendi means. It is also a Latin phrase, and it sort of says the rationale of the decision. In other words, you cannot depart from the rationale of the decision of a court. It is the point in a case that determines what the principle of the case establishes. And a good way to juxtapose that is where a court makes what we know as obiter dicta comments or comments of observations made by the judge, which are not essential to the court judgment, then those are not the rationale of the decision, but comments or observations in passing in a case which do not require judgment, and which do not create the system of decisions that stand. And so what the Public Protector then says is that we have created this stare decisis which was caused by the Nkandla Judgment. Tshepo, if you can go to the Nkandla Judgment, which is Bundle C, PP judgments, number 4. We will go to paragraph – the heading just above paragraph 7. The allegation in the founding affidavit before in this rescission application, is that the CR17 Constitutional Court abandoned its recognition of the 2007 Code in breach of the principle of stare decisis because of what is contained in paragraph 7 of the Nkandla Judgment. In a nutshell, that is it. Last week that was dealt with.

Mr Holomisa: Chairperson?

Chairperson: Oh, thank you. Hon Holomisa, you have your hand up?

Mr Holomisa: Yes, sorry man. I raised my hand on a point of order because I sense or rather I hear the presentation by the Evidence Leader as part of a legal argument, when the Witness has finalised her presentation and the Members of parliament have asked questions to the Public Protector. And then later, the legal fraternity representing or legal advice team legally representing the Public Protector as well as Evidence Leaders, they can now engage in what the Evidence Leader is doing right now. If we want to be briefed further, we need to get, if anyone has got no facts, the minutes are there. What is she trying to do? Unless we are in a PR exercise here? I am lost: completely lost. This is the legal argument you will get when the two legal teams are closing. We have not even asked questions to the Public Protector. No, this is unfair.

Chairperson: Thank you, Hon Holomisa for the concern you are raising. Unfortunately, I must say that firstly, what is being done are not legal arguments. We are still going to go into legal arguments when everything else is done.

Mr Holomisa: Thank you. You have answered.

Chairperson: Okay, Mkhulu. All I wanted to say was that, yes, we have covered that ground, so maybe a little bit of patience for us to go through this and listen to it and apply our minds on it. Thank you. Proceed, Adv Bawa.

Adv Bawa: Chair, what I am dealing with is the contents of the Public Protector’s affidavits, and we are dealing with court judgments, but in the context of the affidavits because the Motion deals with court judgments. So it does sound like I am arguing the interpretation of law, but what I am trying to set out is essentially what the judge is saying.

Chairperson: Hon Holomisa is answered. Thank you.

Adv Bawa: So if we go to the paragraph… What the judgment does is that it sets a background, and paragraph 5 identifies who have lodged complaints. And then in paragraph 6, it sets out what the Public Protector concluded. And in paragraph 7, it says, “In reasoning her way to the findings, the Public Protector said that the President acted in breach of his Constitutional obligations, in terms of Section 96(1) of the Constitution.” So what one sees from the judgment is a recordal, of the reasoning of the Public Protector in that regard. And then, if you go down in paragraph 7, after the quote, “In the same breath, she concluded to being the Public Protector, that the President violated the provisions of the Executive Members Ethics Act and the Executive Members Ethics Code. These are the national legislation and Code of Ethics contemplated in 96(1).” And so if you go to the footnote you will see that what is referred to in the footnote is Chapter A. One finds no other reference in the Nkandla Judgment to the Code, and so when we argue the matter, and we will do legal argument, which will come later, just to preface that, so that there is an understanding of it, what we will argue is that there was a misunderstanding about what stare decisis was, and that there was no express affirmation or acceptance that the 2007 Code had been the correct Code; but that will be with reference to case law, when we argue that matter. But if you go to paragraph – go back to the affidavit. There is one further issue that I want to raise in the affidavit, so let us just go down to footnote 35, which deals with the challenge to Section 96. One of the challenges, which you would see, that was raised was that it was an infringement of Section 96 of the Constitution, and the Chief Justice deals with that. There was an argument, as you see at the top of paragraph 25, beginning with the President. The EFF argued that he breached obligations in terms of Section 83, 96, 81 and 182 of the Constitution. There is a footnote because the source of the Executive Ethics Act Code comes from Section 96. And so what Chief Justice Mogoeng says is, “Section 96 bears no relevance to the core issues before this court. Admittedly, it is pivotal to the Public Protector's findings that although the President was aware of the erection of non-security upgrades at his private residence, he is not known to have done anything to discourage the construction or to put an end to them considering his fiduciary duty to the state.” After the quote of the judgment, it says “but this application is not about determining whether the President and his family benefited unlawfully from the security installations or upgrades. That was for the Public Protector to do and she had already done that. The focus of this application is on the implementation of the remedial action taken by the Public Protector, and Section 96 can in no way assist in the process meant to secure the President's compliance. It cannot therefore be a justifiable basis for conferring exclusive jurisdiction to this court.” He does go on in the order, and the court makes no finding in respect of any infringement on Section 96 of the Constitution. I was going to take you back to what the Public Protector says in her affidavit, in paragraph 25, page 14. So we go back to number 4 (of) the founding affidavit. That was where it says “In the so-called Nkandla Judgment, this Hon Court unambiguously stated that my predecessor, Advocate Thuli Madonsela, concluded that the President violated the provisions of the Executive Members Ethics Act and the Executive Ethics Code. These are the national legislation and the Code of Ethics contemplated in (Section) 96 (1), specifically this Hon Court cited Chapter One.” We will deal with argument in respect of that. I am simply highlighting to you what she says (in) her affidavit, and I have shown you what the judgment says. Go to paragraph 29. “Both the Majority and Minority opinions did not question whether the 2007 Code of Ethics that has been used by the Office of the Public Protector since at least 2009, is the applicable Code, instead of the superseded 2000 Code relied upon by the extant judgment. This is an unprecedented and unconstitutional departure from the well established principle of stare decisis, which has been consistently held by this Court.” So you can see there where it comes from, the Nkandla Judgment. Okay, so that was the one issue in the affidavit. And we know that the CR17 case, what it was about; it was not about profiting from state resources. And I indicated to you and I have raised this, because this was raised for the first time in the context of the rescission judgment, as far as I have been able to ascertain. The second aspect goes back to where the Public Protector says that she duly familiarised herself with the court judgments including the Nkandla Judgment, et cetera, which is at paragraph 72, to do that. And where she says she “duly followed the 2007 Code”. And for that, I want to take you to page 47 of the Public Protector’s report, at paragraph 5.1.19. “Paragraph 2(3) of the Executive Ethics Code further states that members of the Executive may not willfully mislead the legislature.” You will see, as we have indicated, that is a quotation of the 2000 Code. Now, if you go to the record, at 31.7.5, the Public Protector’s affidavit at page 820, under the heading of the Executive Ethics Code. Let us just take it from 127. “The President alleges that I made use of a draft version of the Executive Ethics Code and that therefore the entire investigation was influenced by material error of law, and that the correct version of the Code states that the members may not willfully mislead the legislature, whereas the version I allegedly relied on states that members may not deliver overtly or inadvertently misled the legislature. He further alleges that although in some parts of the report reference is made to the correct wording of the Code, and that these references compound the scale of confusion and irrationality of the report.” Then she says in paragraph 129 “I admit that the correct version of the Code appears at paragraph 5.1.19 of the report, which provides that a member may not willfully mislead the legislature. I admit that certain sections of the report reference is made to a different version of the Code, which provides that a member may not deliberately or inadvertently mislead the legislature. The Ministerial Handbook also refers to the version of the Code which provides that a member may not deliberately or inadvertently mislead the legislature.” Go down to paragraph 130, because there is the explanation provided to the High Court. “I submit that the ‘error’ is immaterial, in light of the fact that my finding is based primarily on the President deliberately misleading Parliament, rather than inadvertently doing so. Whether the President falsely misled Parliament or deliberately did so is one in the same thing. There is absolutely no basis for the claim made by the President in this regard. What is concerning is that the President raises all sorts of technical issues, but fails to address the facts.” Now, what we will address the Committee, when we do deal with legal argument, is the judgment of Harris in the Constitutional Court, which deals with when you rely on the wrong provision of law and when you make decisions, because that is the argument of relevance to this court… to this Committee, in that regard. So that brings us to the issue of the 2000 Ethics Code, which is promulgated, we know, in Government Notice 41 on 28 July 2000. If you go to page 418, you will see that the Government Gazette containing the 2000 Ethics Code is attached to the founding papers marked MCR 22. So, that takes us to the CR17 report; what did the Public Protector actually say in the CR17 report which the President highlighted. Members will recall that I took Mr Mataboge Section 7(9) Notice that was finalised. I did not take him through drafts; I took him through the final version, to show the inconsistencies within the Section 7(9) Notice. I want you to go to page 15 of the report first. This is part of the summary of the report, which encapsulates the findings of the Public Protector in that. “The conclusion reached is that consequently, President Ramaphosa’s reply was in breach of the provisions of paragraph 2(3)(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the legislature.” So that is the first one: ‘deliberate’ and ‘inadvertently misleading’ as a standard. Then we go to paragraph 2.3.3 on page 20. ‘We have paragraph 2(3) of the Executive Ethics Code, which goes further and states that members of the Executive may not willfully mislead the legislature.” So here we have the correct 2000 version. Then if you go to page 4, that is the one I took you to earlier which also reflects the correct version of the Executive Ethics Code. Alright, so if you look at that, in that order. So that is now twice we have the correct 2000 version. Now if you go to page 50, which is paragraph 5.1.34. “Consequently, President Ramaphosa’s reply was in breach of the provisions of 2(3) Executive Ethics Code, the standards, which includes deliberate and inadvertent misleading of the legislature. He inadvertently and/or deliberately misled Parliament, in that he should have allowed himself sufficient time to consider the question and make a well-informed response. Now, we see it as being inadvertently and/or deliberately. There is then a version at page 57. We see again, it is ‘may not willfully’ mislead the legislature. So we have got the correct version in 5.2.8. Then if you go to 5.1.3, page 99. We see in the last line that it says “There would have been regarded to have misled the House inadvertently or deliberately.” It is used again, in a different context of EMEA, which is actually not a quote on Section 2(3), so that I am not misleading you in saying that. Let us go to paragraph 7.1.3 of the findings. “Consequently President Ramaphosa’s reply was in breach of the provisions of paragraph 2(3)(a) of the Executive ethics Code, the standards of which includes deliberate and inadvertent misleading of the legislature.” So what does this show us? It shows us that every time paragraph 2(3)(a) of the Code was cited in the report, it referred to the 2000 Code; and that is a repetition of what was in the 7(9) Notice that we took Mr Mataboge through. What we do not have attached to the Rule 53 is the version of the 2000 Code. We have a version of the Ministerial Handbook, but legislation does not have to be included in the Rule 53 Record, so that is not really an issue. So what does the President say in his founding and supplementary affidavits in respect of this? He says, and you need to go to paragraph 122 – go to the 3175 founding affidavit. It is page 48. So we started on the top. This is the section of the affidavits that deal with a material error of law that the Public Protector misread the Code. It basically says “I am advised that the functionary in the position of the Public Protector must not only get the facts right, she must also get the law right. This is a fundamental requirement of the principle of legality. If the findings of fact and conclusions of law are based on an inaccurate understanding of fact and a gross misunderstanding of the law, the outcomes can bear no rational relationship to the facts presented. In this particular instance, the Public Protector has displayed a grave misunderstanding of the provisions of the Code. In paragraph 5.1.2, the Public Protector stated the following: ‘however, in the absence of such explicit rules dealing with such corrections or amendments, regard must be had to Section 2(3) of the Code, which states that Members may not deliberately or inadvertently mislead the President, or the Premier, or in this case may be the legislature. I am advised that this statement which appears to have been the basis of the finding that I misled the National Assembly is based on a misreading of the Code. I have noted above that the Code states that the member may not willfully mislead the legislature. It is not clear where the Public Protector extracted the contents of paragraph 5.1.82, as it is not clearly referenced in the paragraphs. Bearing in mind that the Public Protector proceeded from an incorrect premise, it was inevitable that she would reach equally irrational findings.” Then he goes on at paragraph 128, “The incorrect understanding of the Code has plainly permeated the reasoning process of the Public Protector, producing a flawed outcome.” So that is what the President says at page 48 from paragraphs… wait. Paragraph 129, he says “Further, I know that in some parts of the report there are references to the correct wording of the Code, but I submit with respect to those references compound the scale of the confusion and irrationality of the report that illustrates that the Public Protector lacks understanding of the Code that she must enforce or alternatively is confused about the legal standard that is applicable. Neither scenario conduces for rational outcomes which are in keeping with the principle of legality.” In paragraph 30, he concludes “I submit therefore, that the fundamental error of law of misreading the Code has materially affected the reasoning process, producing an equally flawed and irrational outcome. On this basis alone, I submit that the entire finding concerning statements that I made in Parliament on 6 November 2018 must be set aside.” That is the President’s case, and he annexes a copy of the 2000 Code. In the text of the Public Protector’s High Court answering affidavit before the court, she states the following – and we go to page 820. This is where she deals with the Executive. She responds to what the President has to say, and says that in this regard “The President alleges that I made use of the draft version of the Executive Ethics Code, and that therefore, the entire investigation was influenced by material error of law, and that the correct version of the Code states that members may not willfully mislead the legislature, whereas the version I allegedly relied on states that members may not deliberately or inadvertently mislead the legislature.” I had taken the Committee through this paragraph in paragraph 129, where she makes the admission and where she then says it matters not what the error is. She then goes and she deals at paragraph 196 with the relevant paragraphs of the President's submission where she answers paragraph by paragraph. And she says “The contents of these paragraphs have already been dealt with elsewhere in the affidavit.” And we have just taken you through paragraphs 122 through to 130, which deal with these provisions. ‘I admit that the correct version of Code appears at paragraphs 519 of the report, and that certain sections of the report, reference is made to a different version of the Code which provides that the member might not deliberately or inadvertently mislead the legislature and she accepts that. And then in 196.3, she says “I submit that the error is immaterial, in light of the fact that the finding I made was that President Ramaphosa deliberately misled Parliament, save as aforesaid the allegations contained herein are denied.” So effectively, she denies – she admits that she got the Code wrong and she says that actually ‘what I did, is immaterial and it is not a material error of law’ because she denies the allegations in the President's affidavit. The President, in his reply, acknowledges the admission that she makes and that she admits to getting it wrong. So we know that is what she says and what she has admitted. My apologies, I missed his reply on 1249. Go down to paragraph 51, I think. “One of the grounds of review is that the Public Protector made a material error of law in that she misread the Executive Ethics Code and she applied incorrect principles, and had found that I had breached the Code in that I had inadvertently and/or deliberately misled the National Assembly. I amplified this ground after I received the record to point out that the Public Protector had misread the Code. The Public Protector admits her error” and he details what she says, which I have taken the Committee to. And then she accepts what the correct version of the Code is. And then it says further “In that explanation there is nothing to suggest that just because the word ‘inadvertently’ is not used in paragraph 5.1.19, it must be referring to the correct version of the Code. Only the incorrect version of the Code was included in the record, and there is no explanation by the Public Protector as to why, if it featured at all, the correct version of the Code was not included in the record.” Go down. I have already indicated the issue of the legislation. “Her random reference in the middle of the report is of no help in the actual finding that refers to both inadvertent and deliberate misleading of the National Assembly. My conduct could not have been deliberate and inadvertent at the same time.” Then he says “The Public Protector further tries to mitigate danger by pointing out that the Ministerial Handbook also refers to the version of the Code which provides that a member may not deliberately or inadvertently mislead the legislature. Respectfully this case is about the Executive Ethics Code. It is not about the Ministerial Handbook. If that Handbook contains an error, it does not justify the perpetuation of that error by the Public Protector. As if that is not enough, the Public Protector goes further to claim that the error is immaterial in light of the fact that my finding is based primarily on the President deliberately misleading Parliament rather than inadvertently doing so. This smacks of desperation and cannot possibly be true. The Public Protector’s finding is set out in paragraph 7.1 of the report. It has four sub paragraphs that alternate between the theme of deliberate, misleading and inadvertently misleading Parliament” and then he sets it out. “Paragraph 7.1.1 speaks of deliberately misleading the National Assembly. Paragraph 7.1.2 does not use the words deliberately or inadvertently, but refers to my answer as being albeit defective in terms of the roles of the National Assembly, was misleading. Paragraph 7.1.3 says my reply was in breach of provisions of paragraph 2(3)(a) of the Executive Ethics Code, the standard of which includes deliberate and inadvertent misleading of the legislature. Paragraph 7.1.4 speaks of my conduct having been in good faith, but in violation of Section 96 (1) of the Constitution. Respectfully, conduct cannot be in good faith and be deliberately misleading at the same time.” (At) Paragraph 56 he says “Therefore, to reach the conclusion that the error does not matter because the Public Protector primarily found me guilty of deliberately misleading the National Assembly, one would have to reach selected excerpts identified by the Public Protector instead of reading the report as a whole, that would be irrational. However, the irrationality does not only lie in reliance on the alleged inadvertent and deliberately misleading of the National Assembly at the same time. The Public Protector is all over the place in the report and her answering affidavit as to whether she is referring to the Executive Ethics Code or the Code of Ethical Conduct and the Disclosure of Members Interest for Assembly and Permanent Council Members. The finding in paragraph 7.1, that I misled the National Assembly is clearly based on both, despite the fact that at the time in question, I was the President of the Republic, and therefore not a member of the National Assembly, and therefore the Members Ethics Code could not have been applicable. All of this, notwithstanding the flippancy of the Public Protector to this very serious issue demonstrates a frightening level of callous superficiality. She has found me guilty of violating Section 96 of the Constitution, before making such a serious finding, she should have taken care to get the law and the facts right. The Public Protector is disingenuous in referring to a fundamental misunderstanding of law as just an error. She relied on the incorrect version of the Code in her report dated 5 July 2019, against Minister Pravin Gordhan, while he was still the SARS Commissioner. I attach ‘RA2’ only page 39 of that report and refer the Court to paragraphs 5.1.11, where the Public Protector recorded. Paragraph 2(3)(a) of the Executive Ethics Code which provides that members of the Executive may not intentionally or inadvertently mislead the President. If there is a dispute about the reference quoted, the entire report will be made available at the date of the hearing.” Chair, I want to go next to the affidavit in the SARS Unit matter, and may this be a convenient time to adjourn because it is 17:00 and it would take me a bit over in finalising that.

Chairperson: We are going nowhere, you can go ahead. No, thank you. That is a joke. I know it is the month of Ramadan, so there is a lot of energy there. It is 17:00, colleagues, that is the time for our programme to end and for us to adjourn the meeting for the day. We will reconvene tomorrow at 10:00 to proceed with our work. In the meantime, as I indicated in the morning, work is continuing on the other front of ensuring that we properly mitigate that risk of the legal fees. As progress has been made and an outcome is readily available, we will indicate so, but for now adjourn for the day. Thank you very much. The meeting is adjourned.