PP Inquiry day 71: Evidence Leaders
Meeting Summary
Motion initiating the Enquiry together with supporting evidence
Public Protector’s response to the Motion
Report from the Independent Panel furnished to the NA
The Section 194 Enquiry Committee was briefed by the evidence leaders on court judgments on the CR17 campaign, litigation with the National Director of Public Prosecutions (NDPP), the South African Revenue Service (SARS) and the Public Protector’s use of the classified Office of the Inspector General of Intelligence (OIGI) report. The evidence leaders, Adv Nazreen Bawa and Adv Ncumisa Mayosi, took the Committee through a voluminous archive of affidavits, court judgments and letters.
The evidence leaders clarified and dealt with the CR17 campaign and money laundering allegations. The evidence led showed the Public Protector’s vehemence in the affidavits about evidence of money laundering. The evidence leaders read out how the Public Protector ‘found that because payment of R500 000 passed through several intermediaries instead of straightforward donation towards the CR17 campaign, the suspicion of money laundering had merit. The PP referred it for probing. In response to the money laundering finding, the High Court found that ‘the Public Protector had no foundation in fact and in law to arrive at a finding that the President had involved himself in illegal activity sufficient to invoke a suspicion of money laundering. In addition the Public Protector based her finding on legislation that has nothing to do with the offence of money laundering’.
The evidence led detailed how the National Director of Public Prosecutions (NDPP) and the PP became embroiled in litigation. It was noted that the Public Protector disputed in her answering papers that the remedial action she had ordered, took away the autonomy of the NDPP to decide whether or not particular criminal conduct should be prosecuted. The matter then proceeded to the High Court.
The evidence led also related to a letter sent by the Minister of State Security to the PP. In the letter of 20 February 2019, the Minister noted that the PPSA was in possession of a top secret report unlawfully. The PPSA had not brought the unlawful disclosure of the classified information to the attention of the relevant authorities. It was highlighted that the report contained the identities of members, former members, sources, methods and intelligence of the now State Security Agency. Due to the non-compliance by the PPSA to notify the relevant authorities of the unlawful disclosure of classified information, it was imperative that the PPSA return the report to the Minister as a matter of urgency.
The Chairperson also discussed the Public Protector’s legal fees. The Committee was not one of the role players and it could not intervene and assist on legal fees. The Committee would continue to monitor that space. It had been assured by the relevant parties involved that serious work was being done to ensure a speedy conclusion of the matter.
Meeting report
Chairperson: Good morning to all of you, colleagues. Welcome to the Members on the virtual platform. Welcome, members of the media with us, our entire support staff, the evidence leaders, members of the public who are joining us on their platforms, whether it's YouTube or 408. Today is 5 April. We are into day three of this Committee session. I am not going to waste any further time. I'm going to invite Adv Bawa to continue with the unpacking of the evidence. Thank you. Over to you, Adv Bawa.
Evidence Leaders briefing on evidence before Committee
Adv Nazreen Bawa: Good morning, Chair. Good morning to the Members and the public. Chair, I just need to mop up on a related issue dealing with the money laundering. You will recall that we dealt with the law of money laundering as per the affidavits, and what I may not have done with sufficient clarity was show the Members the Public Protector’s vehemence in the affidavit in respect of money laundering, the paragraphs in the judgment that deals with it. Then I'm going to go to the question of the audi, and then Adv Mayosi is going to deal with the question on remedy, remedial action. Then I'm going to just mop up with one or two smaller things on the CR17 matter. So, if we start off by going to page 823, para 140, 31.7.5. The Public Protector says at paragraph 140, page 824 in her answering affidavit. ‘In respect of issue of money laundering, I found that because payment of the R500 000 passed through several intermediaries instead of straightforward donation towards the CR17 campaign, 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’. Adv Mayosi will come to that when she deals with the remedy relating to the National Prosecuting Authority. In the leave to appeal affidavit, if you go to 1462. At paragraph 23.1, maybe just to 23. The PP then summarises. ‘The records, which include emails and bank records, all of which were sealed by the High Court in order to prevent them from being made public, revealed suspicion and evidence of a matter that I considered important for further investigation by the relevant authorities. These uncontested records reveal the following’. Go down. ‘It is not true that the President was ignorant of the donors to the CR17 campaign’. Two, ‘Some of the beneficiaries of the donations for senior members of the ANC and officials of the CR17 campaign’, and they are identified. Three, ‘Several officials of the CR17 campaign were paid several amounts themselves’. She identifies the accounts. And then, millions of rands were paid for hotels; some payments reflect that they were paid into accounts way after the ANC National Conference. And then at seven she says, ‘Very important economic players in the South African economy paid millions of rands into the CR17 campaign raising reasonable suspicion that they were buying influence’. In the report, which I am not going to take you through, the Public Protector at paragraph 9.3.10.62 expresses a preliminary view that such a scenario looked at carefully creates a situation of the risk of some sort of state capture by those donating these monies to the campaign. So I want to go to the High Court judgment, not necessarily on the issue, but on the factual scenario that existed. And we go to paragraph 146 of the High Court judgment. We see what the High Court had to say in that regard. It said, ‘Clearly the Public Protector no foundation in fact and in law to arrive at a finding that the President had involved himself in illegal activity sufficient to invoke a suspicion of money laundering. In addition the Public Protector based her finding on legislation that has nothing to do with the offence of money laundering’. We had covered that. ‘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 the relevant law that actually defines and establishes the offence of money laundering before making serious unsubstantiated findings of money laundering against the duly elected head of state. Had she been diligent she would not have arrived at the conclusion she did. It is so that at the time that the Public Protector conducted investigations, the alleged corrupt activities of AGO in state tenders had aired at the Commission into State Capture. But this is immaterial. The evidence before the Public Protector from Mr Watson was that he had made a donation to the CR17 campaign as a long standing member of the ANC. There was no contrary evidence. In fact, the FIC had told the Public Protector in April 2019 at a meeting with her that its investigation could find no indication of money laundering, as they could not establish whether any of the monies deposited to the CR17 campaign accounts constituted the proceeds of crime. The FIC told the Public Protector that the payment from Mr Watson “came from sources that appeared to be lawful”. Of course, even if Mr Watson's sources of funding were suspect, and there was no evidence of this before the Public Protector, the suspicion of money laundering might fall on Mr Watson. But he was not the subject of the Public Protector’s investigation. As we had already noted, the uncontradicted evidence of the President, Ms Nicol and Mr Motlatsi is that the President had nothing to do with the donation from Mr Watson. In order to be suspected of money laundering a person must know, or they ought reasonably to know, that the money in question is the proceeds of crime. Quite how the Public Protector thought that the President might have harboured the requisite knowledge to constitute this crucial element of the offence on the evidence before her is unfathomable. The only real clue to the Public Protector’s reasoning on the money laundering issue came from the following passage. “A criminal might attempt to integrate the funds he/she received from corrupt activity, such as a bribe or kickback, into a financial system by channelling the funds through complex financial transactions during which he/she may involve several entities as conduits and use financial institutions as a means to disguise the corrupt sources of funds, as well as the ultimate beneficial owner of the proceeds of unlawful activity”’. And the judgment it refers that to the report at para 5.3.10.71. ‘This title passage formed a direct link to her conclusion that there was a suspicion of money laundering. In her reasoning, the Public Protector assumed that the monies donated to CR17 campaign constituted bribes or kickbacks, presumably for political favours. It is not clear who the Public Protector suspected was the “criminal” receiving them. However, as she was investigating the President, one must assume that he was the suspect. The allegation at the heart of her reasoning is extremely serious. It implies that the President orchestrated the entire CR17 campaign and used it as a vehicle for laundering the bribes he received from donors in return for political favours. This kind of allegation, even if implied or not express, ought not to be made without strong supporting evidence. We need to emphasise, once again, that in this case, the Public Protector had no evidence before her to substantiate this very serious allegation’. And then they talk about the role of the Public Protector with reference to the Mail & Guardian case. It says, ‘The role of the Public Protector is to “inspire confidence that all is well in public life”. Of course, this does not mean that she must suppress evidence or curtail her investigations inappropriately to protect public figures. But she is required to approach each case with an open mind. “The state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious, but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do”. On the money laundering issue, the Public Protector displayed anything but an open mind. She made serious findings based on unfounded assumptions. She paid no regard to the statute that establishes the very offence in which she implied the President is suspected to have been involved. She also ignored the detailed explanations from Ms Nicol, Mr Motlatsi and Mr Chauke about the provenance of each of the accounts involved in the CR17 campaign, and how and why the transfers were effected between them. Had she considered this evidence properly, she could not rationally have concluded that these accounts were being used in such a manner as to warrant a prima facie suspicion of money laundering. We find that her findings on the money laundering issue were not only irrational, but indeed, reckless. Consequently, they fall to be reviewed and set aside’. And now we turn to this question of ‘Audi Alteram Partem’. That, in the most basic of terms, means a right to hearing. And we deal with at different levels. But at the first level, we're going to deal with what the Public Protector says in page 26 of her report, paragraphs 4.1.3. May we just go to the headings so that Members can see where we are in the report? We are at the ‘Investigation Process’. 4.1.3, ‘Whilst awaiting a response to the section 7(9) notice, I received a request from President Ramaphosa’s attorneys to be afforded access and opportunity to question Mr Gavin Watson, Mr Maimane as the Complainant in the matter as well as the bank officials who had been subpoenaed to appear before me in terms of section 7(4) of the Public Protector Act. I then acceded to the request in so far as it related to Mr Watson but with a clear indication to him of his rights as far as the request was concerned. However, I advised President Ramaphosa that Mr Maimane is the Complainant in the matter and therefore could not be questioned as he and the bank officials had not appeared before me in terms of section 7(4) of the Public Protector Act. Although there were challenges with regard to President Ramaphosa’s attorneys to access Mr Watson with whom all contact was through his attorneys, these were in no way attributable to my office as I had given the go-ahead to such an engagement. My office experienced the same challenges in trying to reach Mr Watson to whom a written request was sent to get his cooperation. However, this did not yield any desired response from him. Consequently I even had to resort to my subpoena powers to compel Mr Watson to respond to President Ramaphosa’s questions which had been transmitted to him through his attorneys by attorneys acting for the Public Protector. In the end a response dated 04 July 2019 was received from Mr. Watson's attorneys which I have attached below for anyone to make a deduction of Mr Watson's version. He is ostensibly stating that he lied under oath whilst responding to questions I posed to him during his interview in my office on 18 March 2019’. And that Chair is something we would have to canvass with the Public Protector. He ‘also proposed of an affidavit through his attorneys dated 03 July 2019, which I have deemed necessary to attach hereto for ease of reference’. And ‘in this regard’, she says, that he's ‘committed an offence under the Criminal Procedure Act’, and that she will deal with the matter accordingly. The complaint of audi is essentially fourfold. It relates to affording the President an opportunity to make representations. It’s a denial of the President's right to interview Mr Watson. It’s a denial on having had access to the question of remedy, and it’s a failure to having provided the President with an opportunity to respond to the emails and the information obtained from the financial intelligence sector. And so, the Public Protector’s response, in one instance, which because the issue was abandoned during argument, there isn't really part of the judgment that I can refer the Members to, so I'm not going to take you into detail on it. And that relates to the issue of the question of the Financial Intelligence Centre issue. But then there is the position on the question of remedial action, generally, apart from what transpired with the NDPP. So what the Public Protector’s position was, was that section 7(9) did not envisage an audi in respect of remedial action. It was sufficient to simply tell the person involved of possible adverse findings, and you find that on page 838, para 150. It is ‘already stated above, section 7(9)(a) does not envisage audi in respect of the remedial action. In any event, the report states that the matter will or may be referred to the relevant authorities. It is sufficient legally that I alert the subject of an investigation about possible adverse findings against her or her’. And then the President responds by citing the following. If we go to the Constitutional Court judgment at paragraph 123. The Constitutional Court deals with this question of this at 123. And it says, ‘When an individual is implicated during the course of an investigation, the Public Protector is obliged to afford such person an opportunity to respond to the implicating evidence, if the implication may be detrimental to that person or if the finding adverse to him or her is anticipated. The formal manner of the response depends on the circumstances of each case. For example, if the implication was made in a sworn statement, a response in a sworn statement would suffice. Where that implication was made in oral testimony the implicated person would be entitled to adduce controverting evidence before the Public Protector. In addition, that person has a right to question witnesses who gave the relevant testimony. This questioning must be done through the Public Protector. Implicit in this process is that the affected person would be afforded an opportunity to make representations on the relevant evidence. Ordinarily the questions should be put to witnesses in the presence of the affected person or her legal representative. It cannot be gainsaid that the Public Protector’s investigation may implicate the rights in the Bill of Rights. Consequently, the Public Protector Act in terms of which those investigations are undertaken must be interpreted in a manner, where reasonably possible, that promotes the objects of the Bill of Rights. Section 7(9) declares that if it appears to the Public Protector at any time during the course of an investigation that an adverse finding or detrimental implication may result, the Public Protector must afford the affected person a hearing. Implicit in the language of section 7(9) is that where it appears that a particular remedial action adverse to the affected person may be taken, the Public Protector should afford that person an opportunity to make representations on the contemplated remedial action. If the section were to be read otherwise, the procedural fairness it guarantees would be seriously undermined. There is no reason in principle or logic that fairness envisaged in the provision should be restricted to findings or implication by evidence. The bigger risk to the affected person's rights is posed by the remedial action. And section 7(9) should not be given a meaning that is antithetical to the rule of law. For all these reasons, I conclude that when the Public Protector contemplates taking remedial action against the subject of an investigation, that subject is entitled to an opportunity to make representations on the envisaged remedial action. For a proper opportunity to be given, the Public Protector must sufficiently describe the remedial action in question to enable the affected person to make meaningful representations. The High Court here held that the Public Protector’s remedial action had serious implications for the President, including being a suspect in a criminal charge that carries a punishment of up to 30 years’ imprisonment. The High Court concluded that the failure to afford the President a hearing before the decision on the remedial action was taken was fatal to the validity of the remedial action’. That conclusion is beyond reproach. So that's the background on the hearing on the remedial action, in a general term. So now I want to turn to what the affidavits and the papers before the court said about Mr Watson. If you go to page 281 of the record, there's a correspondence that ensues. Go to 498. Yes, scroll to annexure SMCR1. Go to the 2nd of July letter. So on to July 2019, and I'm going to work from the lightest backwards. The factual scenario goes is that the section 7(9) notice is issued to the President. The President is afforded the time period within which to make representations on the preliminary report. The President asks for an extension whilst the Public Protector comes back and gives the President a lesser extension to what he requested. In the meantime, while that is all going on, there is communication that ensues in order to meet a request that the President makes to be able to question Mr Watson. There are all kinds of details on this page. The response that comes in from Mr Watson's attorneys comes in on 2 July in response to a letter and a subpoena that's issued on 1 July, answering the questions that have been posed by the President. And so you will see the dates we refer. We refer to your letter of 1 July and the subpoena for Mr Watson to produce a response to the questions posed in paragraph three of the letter sent to you by Harris Nupen Molebatsi, the HPN letter, which was irregularly served. And then they say, ‘We have at no stage undertaken any communication with your office to furnish you with written answers to the questions posed both in your correspondence or, for that matter, in the HPN letter, which was belatedly made available to us. Furthermore, it is evidence from the HPN letter that their client did not seek a written response to the questions but which were given to you rather as an indication of some of the questions their client wished to pose. Our client has fully explained his co-operative approach to the matter and our correspondence stands as memorial thereof. The allegation that our client has been the cause of the matter being unduly protracted, is with respect, fanciful and denied. We deny having at any stage acted unreasonably or that our conduct can conceivably be construed as misconduct. There is no basis for the threat to report us to the Legal Practice Council for supposedly “non-collegial” conduct, whatever that may mean. Our client has not been asked to produce documents and, in the circumstances, the need for your client to resort to the issuing of a subpoena duces tecum is not readily apparent. Nevertheless, there is no need to deliver any subpoena as our client has already indicated that he will voluntarily attend at the offices of your client on a date to be arranged, which by necessary implication would also need to be a date suitable to the President's legal representatives. We have therefore copied the President's attorneys in on this letter and suggest you liaise with his attorneys and the writer regarding a date suitable to all for the interview’. Go down. ‘We deny that the subpoena has been lawfully served or that our client is bound to comply therewith, for inter alia, the following reasons: By virtue of the provisions of section 7(4)(a) of the Public Protector Act, your client was obliged to apply her mind to the need for our client to provide a response to the questions posed in the HPN letter before issuing a subpoena demanding the production of an affidavit. In the absence of reasons from your client, all she appears to have done is accept at face value the need for a response to the questions indicated in the HPN letter and mechanically attached a copy of HPN letter to the subpoena without first determining that the questions will advance her investigation; the subpoena, as was the case with the demands for responses in your prior correspondence, insists on a response within an extremely short and unreasonable time period without affording our client the opportunity of taking advice thereon and to prepare any affidavit he may be advised to make in response to the questions; service of the subpoena on the daughter of our client does not constitute proper service. The issuing of the subpoena, again without a proper explanation from your client, appears to be an impetuous response based on an erroneous perception that our clients is delaying matters when, in fact, the truth lies elsewhere. Moreover, its issuance may not fully address the request from the President to interview our client on matters beyond the scope of the questions. That said, and under reservation of all our client’s rights, we will be meeting with our client in Johannesburg tomorrow morning to obtain final instructions on the subpoena but as matters presently stand and in order to avoid further waste of time and expense occasioned by your client's approach to the matter, our client intends producing the affidavit demanded but without conceding any obligation to do so whether within the truncated period demanded by your client or otherwise’. So one of the questions that would need to be asked to the Public Protector is why the request by the President to then interview Mr Watson did not come to fruition. There is also a letter if you go down. Go to 308. It’s not that. So then on 12th July, as you see from page 322. On the cover of an email from the attorney, the response from Watson, Mr Watson to the questions on affidavit is provided. I want to get to the Public Protector’s letter to say that she's agreed to the request so that I don't be accused of misrepresenting it. On 11 June, the Public Protector responds to the request, to which I've indicated early on, where her attorneys actually say that you can't question Mr Maimane. Go further down. I think it’s the last paragraph. Six, ‘We therefore reiterate the contents of our previous correspondence in so far as the issue of questioning Mr Watson is concerned’. So we don't need to go to the previous one. If I find it, I'll do that. Go to the next one. The Public Protector confirms in correspondence that the President may question Mr Watson, and then go down, and then the Public Protector had sought questions from. So what the President's lawyers ask for in this letter is that they still intend to question Mr Watson. ‘In order to ensure that we have sufficient time to question Mr Watson and to consider the information that we received from him in the preparation of our response to the Public Protector’s provisional report, we would be grateful if the Public Protector could urgently provide us with a suitable date to question Mr Watson. In this regard, please note that we intend to put, inter alia, the following questions to Mr Watson’. So, this is the letter which contains the questions which Mr Watson then answers in an affidavit. Go down. These are the answers which are reproduced in the report itself, to which we'd already gone through. Go down. Mr Seanego then responds on the 12th. Go further down. And says, ‘We refer to your letter of even date and confirm that our client accedes to your request to question Mr Watson. We will revert with a date and time for the question session no later than noon on Thursday, 13 June 2019’. Go further down. And then what we see happening is that on the 4th of July, Mr Watson's affidavit comes in, to which the answers to the questions he's attached pursuant to the subpoena that is issued on 1st of July. Go down. What we don't have on record is what transpired between the 13th of June and the 1st of July to reach that point. Go down. You can go to the end of this affidavit. There's one further letter that is then referred to. So this is a letter, go up. I just want to get the date. On 19 July, which is after the affidavit was already rendered? ‘We refer to the above matter. We act for President Cyril Ramaphosa. We confirm that we have been appointed by President Ramaphosa to advise him in relation to the abovementioned investigation. We note that today, during a press conference held in Pretoria, you announced the findings and recommendations in relation to the abovementioned investigation and made reference to your final report. This is the first time we have been informed that you have finalised the report. It must further be noted that the office of the President only became aware of this press conference through social media platforms. We formally request that you immediately provide us with a copy of the final report into the abovementioned investigation’. Chair, to be fair, I can't find the reference. I looked for it yesterday. But I know it's there, the Public Protector’s response somewhere was, that on that same morning that the press conference happened, the report was delivered to the office of the President. I'm just not sure. It was in the evidence as well. But I wanted to find it to show that it was on the record and I just couldn't. So absent that, let me say that that was the complaint from the President. This was a different one to the Gordhan complaint but seems as if the report was delivered to the office on that morning, or that was the response. So the President then complained in his section 7(9) notice that his deadline by which his response was supposed to be in did not take into account that he sought to interview Mr Watson, and he only received the written responses on 4 June 2019 after he had submitted responses this on 27 June 2019. And that's possibly the reference that I keep on thinking is wrong. Go back to 281. That's probably where that is being said. Scroll down. Sorry, I’ll have to find that, Chair. The allegation is made by the President and the Public Protector denies these allegations. Check 402. No it’s not that. Chair, the complaint in respect of Mr Watson was that the President was denied an opportunity to interview Mr Watson whom he was entitled to be interviewed under section 7(4) of the PPA. So that was the complaint, the two complaints from audi that I'm going to deal with, and now Adv Mayosi is going to turn to the question of the remedial orders.
Adv Ncumisa Mayosi: Thank you, Chair. Good morning, Chair. Good morning, Members. Are we at the BOSASA Report? Alright. So, Chair, the PP’s remedial, made several remedial actions against several authorities in her report in the BOSASA-CR17 investigation. The remedial actions were against the Speaker of the National Assembly, the NDPP, the National Commissioner of the South African Police Service. Starting first with the remedial action against the NDPP. It flowed from the PP’s findings set out in paragraph 7.3 of her report. Paragraph 7.3. Page 103 of the report. Oh no, it’s not page 103 of the report. It’s the paginated 103, I think. 7.3. So the issue that the PP was dealing with in paragraph 7.3, as set out there, is the question of ‘whether there is an improper relationship between President Ramaphosa and his family on the one side, and the company AGO 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’. That is the question or the issue that the PP was dealing with in that paragraph. Her findings then follow in the paragraphs below that. Where in paragraph 7.3.1 she found that the ‘allegation that there is an improper relationship between President Ramaphosa and his family on the one side, and the company AGO on the other side, due to the nature of the R500 000 payments passing through several intermediaries, instead of a straight donation towards the campaign, thus raising suspicion of money laundering’. She found that this allocation has merit. She then further went on to say that, ‘I have taken into account of the facts as well as prima facie evidence before me, I am therefore of the view that there is merit to the allegation relating to the suspicion of money laundering as alluded to in the complaint lodged with my office. In 7.3.3. she found that, ‘However, I have decided to refer this matter to the relevant institution for further probing as provided for in section 6(4)(c)(i) of the Public Protector Act which states that the Public Protector may, “at anytime prior to, during or after an investigation, if he or she is of the opinion that the facts disclose a commission of an offence by any person, bring the matter to the notice of the relevant authority charged with”’. Now Chair, turning to the remedial action as related to the NDPP. Go to paragraph 8.2. The remedial action against the National Director in relation to the National Director of Public Prosecutions was that, ‘Within 30 working days of receipt of this report, take note of the observations’. The NDPP was to ‘take note of the observations contained in paragraph 7.3.1 as well as the recommendations contained in 7.3.3 of this report, and in line with section 6(4)(c)(i) of the Public Protector Act’. The NDPP was to conduct further investigation into the prima facie evidence of money laundering as uncovered during the PP’s investigation, and deal with that accordingly. Flowing from that was also a monitoring obligation that was imposed on the NDPP and this is found in paragraph 9.4 of the report on the next page. Where the PP stated as follows, ‘the NDPP must within 30 days from the date of the issuing of the report and for approval of the PP submit an implementation plan to the PP indicating how the remedial action referred to in paragraph 8.2.1 will be implemented’. In relation to the South African Police Service, the remedial action was in paragraph 8.3. The remedial action in relation to the National Commissioner of SAPS was to ‘within 30 days of receiving the report investigate criminal conduct against Mr Watson for violation of section 11(3) of the Public Protector Act by lying under oath’, and the concomitant monitoring obligation is in paragraph 9.5. Which stated that, ‘the National Commissioner of SAPS must within 30 days of the issuing of the report submit an implementation plan to the PP indicating how the remedial action referred to in paragraph 8.3.1 of the report was to be implemented’. Insofar as the remedial action to the NDPP, the PP testified to the Committee that her referral was based on the question of money, or the appearance of money passing through several bank accounts and the suspicion of money laundering. The remedial action was then challenged, and what led to the legal challenge of remedial action. It was said that she did more than merely refer these matters to the relevant authorities. But that she had instructed the NDPP and the National Commissioner of Police as to how to discharge their responsibilities. And so what had to be determined by the court was whether the PP’s remedial action was a mere referral or whether it was an instruction on those authorities. In her affidavit, the NDPP stated the following. The best version was in Bundle A, the NDPP’s affidavit. Bundle A, 2936. Go down to paragraph 43. So in the litigation, this is the affidavit that the NDPP filed, and in paragraph 43 of it she says, ‘I informed the Public Protector that according to our interpretation of section 6(4)(c)(i) a Public Protector could do no more than notify the NPA of facts, that in her or his opinion, evidence that an offence had been committed’. The NDPP stated in paragraph 44, ‘I accept, albeit not in my letter, that in the discharge of that function, a Public Protector may also notify the NDPP of facts that, in her opinion, require investigation by the Investigation Directorate of a serious offence involving dishonesty’. The letter to which the NDPP alludes in paragraph 44, I think is a letter that she had written to the PP on the 6th of August 2019, where the NDPP had sought to clarify from the PP regarding her remedial action against the NDPP in that letter, and we'll go to that letter Chair and we'll read it for the record. The NDPP informed the PP that she, the PP, could not do more than notify the NPA of facts that in her opinion evidence the offence that had been committed. For that letter that was written by the NDPP to the PP, can you go to item Bundle H? Item that is 37.1.5. Page 1111. Yes, that’s the letter. Go down. So that is the letter, Chair, that was written by the NDPP to the PP, where she sought clarity. ‘Dear Public Protector, I refer to your report number 37. I write to you collegially, bearing in mind section 41(1)(h) of the Constitution, to clarify the meaning of the remedial action directed at me in my capacity as the NDPP, in paragraph 8.2 and 9.4 of the’ PP’s report. In the second paragraph, the NDPP recorded her unequivocal support for the constitutional powers conferred on the PP in terms of section 182(1)(c) and the statutory powers conferred on the PP in terms of the Public Protector Act. Going down into the letter, paragraph 3, the NDPP stated, ‘If, in the report, you intend to exercise the statutory power under 6(4)(c)(i) of the PP Act to notify me, as the National Director, that you are of the opinion that facts uncovered during your investigation disclose the commission of an offence by any person, that is appreciated, welcomed and noted. Your report is being considered for the purposes of determining the way forward regarding an investigation, also given the establishment of the Investigating Directorate in the NPA. I am concerned though, that the wording of paragraphs 8.2 and 9.4 of the report appear to record the exercise of a power which you perhaps never meant to exercise. I have received correspondence between you and the attorneys of the President. In that exchange, you have agreed to stay the remedial action in the report, except for that in paragraph 8.2 and the monitoring mechanism in paragraph 9.4. That response suggests there might be a misunderstanding. While paragraph 8.2 read with 9.4 requires the National Director to conduct an investigation and submit an implementation plan, for the PP’s approval, within 30 days of publication. I understand and appreciate that, in terms of section 6(4)(c)(i) of the PP Act, a Public Protector can do no more than notify the relevant authority charged with prosecutions, of his or her opinion that the facts disclose that an offence has been committed. In line with the principles of co-operative government and inter-governmental relations as set out in the Constitution, you will no doubt agree that it is in the interests of the proper exercise of the independent mandates of our respective offices that we clarify this misunderstanding, without resorting to the courts. For that reason, I ask you please to confirm urgently in writing whether in paragraphs 8.2 and 9.4 of the report, you meant simply to notify the National Director of your opinion that an offence has been committed? If that is so, I request that you please amend the wording of those paragraphs to clearly reflect this’. The Public Protector responded to this letter on the 7th of August 2019. Go down, I think the Public Protector’s response follows after that. That's the one. Yes, this is the Public Protector’s response to the letter. The Public Protector notes with regret the contents of the NDPP’s letter. She states that, ‘Whilst the Public Protector appreciates the NDPP’s unequivocal recordal of the Public Protector’s constitutional powers, the contents of the NDPP’s letter are in direct contrast to that unequivocal support as will be demonstrated below’. ‘First,’ says the PP, ‘it is important that the remedial actions directed at the NDPP be explained in context, which context the NDPP seems to have been disregarded’. ‘In paragraph 7.1.3 of the impugned report,’ which is the PP’s report dealing with BOSASA. The PP states that ‘it is found that “the allegation that there is an improper relationship between the President, and his family on the one side, and the company AGO on the other, due to the nature of the R500 000 payment passing through several intermediaries, instead of a straight donation towards the CR17 campaign, thus raising suspicion of money laundering, has merit”’. The PP furthermore, refers to the contents of paragraph 7.3.3 of her report, which I read out earlier to Committee Members. In paragraph 6 of her letter, the PP says that, ‘The remedial action in paragraph 8.2 clearly encapsulates the paragraphs referred to above’. She says, ‘It is strange that these have not been drawn to the attention or have not drawn the attention of the NDPP, despite them being clearly stated therein. It is therefore obvious that the implementation plan in paragraphs 9.4 is a logical and legal consequence of paragraphs 7.1.3; 7.3.3 and 8.2’. The PP says, ‘It is not readily clear what is there to be clarified in the remedial action contained in the report’. In paragraph eight, the PP refers the NDPP to what the PP says is the ‘extent of powers to take appropriate remedial actions’ and which she says ‘was well-established in law. In EFF v Speaker of National Assembly’ case. And I think if you look at the reference Chair, the Committee will see that she's referring to, is it EFF 2016? That would be the Nkandla judgment. She quotes a paragraph in the judgment which she says well establishes in law the powers of the Public Protector to take appropriate remedial actions. In paragraph nine, she says that that ‘position was further relied on by the High Court in the matter between the President and the Public Protector and others’. And she goes on to state, ‘where it was held that adopting a purposive interpretation of the relevant statutory framework. It is plain that the Public Protector must, if she is to properly fulfil her constitutional mandate, have power, in appropriate circumstances, to direct the President to appoint a commission of inquiry and to direct the manner of its implementation. Any country implementation would be inconsistent with the Constitution as aptly pronounced by the court in the EFF case and would render the Public Protector’s powers to take remedial action largely meaningless or ineffectual’. She then says, ‘It is clear from the above that the NDPP’s view to implement the remedial action under the guise of “unclear” remedial actions can only lead to an inescapable inference that such a view stems from the President's letter. The case law is clear that the Public Protector can direct organs of state to take certain steps, and even direct how those steps should be taken. Although the PP cannot dictate to the NDPP how the investigation must unfold, the NDPP must nevertheless submit an implementation plan as recorded in the report’. She says, ‘It is therefore incorrect that the wording in paragraphs 8.2 and 9.4 appear to record the exercise of a power which the PP meant to exercise. The Public Protector can deduct suggestive undertones of unlawfulness of her remedial actions from the NDPP’s letter. It will indeed be meaningless for the PP to direct that an organ of state to merely “note” the findings and do nothing consequential about those findings and remedial actions. Third, the NDPP’s request that the wording of the paragraphs referred to in the NDPP’s letter be amended is improbable. The Public Protector’s mandate is fully discharged once she has investigated, reported and taken remedial action as injuncted by section 182 of the Constitution. Once the above exercises have been discharged, she becomes functus officio. She is by law precluded from doing anything to a report once it has been issued. Thus, the wording in the aforesaid paragraphs cannot be amended, altered or deleted, at this stage. Lastly, the Public Protector wishes to record a worrying concern that this NDPP’s letter was addressed to her as a result of exchange of correspondence between the President's attorneys and the Public Protector. There is nowhere where NDPP or her office is engaged on this matter simply become the NDPP or her office will not be deprived of any Constitutional obligation or power to investigate as directed by the remedial action. There is also no apparent prejudice which may result from the NDPP exercise of its Constitutional mandates to investigate. The PP directed such an exercise of power simply because the Constitution places this function on the NPA. Furthermore, section 181(3) imposes a Constitutional duty on the NPA and other organs of state to assist Chapter 9 Institutions. This obligation cannot be dispensed with at will’. The PP continues and states that, ‘As stated above, it appears that a reasonable inference can be drawn that the letter was addressed to the PP after unilateral engagement with the President's attorneys, and at the advice of the President's attorneys. In any event, as the NDPP you are entitled to your views and the unsurprising position you have adopted in this matter. Your position is, however, irrelevant to the approach the Public Protector will take in this review application’. And she says that she trusts ‘that the above clarifies the matter’. So the NDPP and the PP then became embroiled in litigation because of this response to set aside the remedial action insofar as it relates to the NDPP. The Public Protector disputed in her answering papers that the remedial action she had ordered, took away the autonomy of the NDPP to decide whether or not particular criminal conduct should be prosecuted. In her answering affidavits, the PP stated that her remedial action merely referred the matter to the NDPP to conduct further investigation. She said that she did not usurp the autonomy of the NDPP at all. In short, then the Public Protector indicated that she merely referred the matter and she didn't tell the NDPP how to go about discharging or performing her Constitutional mandate. So the matter then went to the High Court. High Court Bundle C, number 30, paragraph 181. The High Court stated that, and I'm starting to read from the second sentence as we pointed out earlier, ‘the NDPP could not lawfully simply ignore the Public Protector’s remedial action directed at her. The remedial action was not in the form of a mere recommendation. On the contrary, it required the NDPP to act and, furthermore, it required her not only to submit an implementation plan on her action to the Public Protector, but also to obtain the Public Protector’s approval for the plan. Go down to paragraph 189. So the High Court continued, ‘We are constrained to find that the Public Protector’s issuing of the remedial action to the NDPP coupled with her insistence, when the NDPP queried her, that she expected the NDPP to carry out her directive, displays in our view, a complete lack of understanding on her part of the limit of her powers as provided in section (6)(4)(c)(i) of the PPA in relation to matters falling under the NPA. We also find that she displayed a clear failure to grasp the meaning of the concept of prosecutorial independence decreed by section 32(1)(b) of the NPA Act. The PPA and the NPA Act are clear that she has no power to direct the NDPP to investigate any criminal offence and how to go about doing this’. 205. So, the Court continued, ‘We earlier concluded that the Public Protector acted not only irrationally, but also recklessly in reaching her conclusion that there was evidence supporting a prima facie case of money laundering. We noted that this conclusion had potentially extremely serious consequences for the President. This is not a consequence peculiar to him because of the position that he holds: anyone against whom such a finding is made would potentially find themselves under investigation for an extremely serious offence. However, the fact that it was the President is an added concern. When the Head of State is implicated in money laundering it immediately presents a threat to the well-being of the public at large. If the implication is well-founded, then this is a consequence with which the general public must come to terms. However, if it is reached irrationally and recklessly it is another matter entirely’. The Court continued and said, ‘What makes the Public Protector’s conduct in this regard worse is that despite being requested to give the President an opportunity to respond to the remedial action she had in mind, she refused to do so. The President wasn't given sight of her remedial action directing the NDPP to investigate money laundering. It is unclear why the Public Protector failed to comply with one of the most fundamental principles of natural justice by declining the President's request to be permitted to make representations on the remedial action. It would not have unduly slowed down investigation, which seems to have been conducted at relative speed. The Public Protector ought to have understood the importance of not making findings that will have such serious implications without affording a proper hearing to the persons affected. At the very least, she failed to show appreciation for an elementary principal of due legal process’. 210. Finally, the High Court said at paragraph 210, ‘we are concerned by her attitude to the Speaker and the NDPP. As we have already described, in her letter in response to the NDPP, the Public Protector implied that the NDPP was being unduly influenced to back the President's case. Such an implication is completely unfounded, particularly in circumstances where we have found that the NDPP was entirely correct to seek clarity and, subsequently, a review of the Public Protector’s directive’. So given this backdrop, questions which the Committee may wish to canvass. There are a couple of questions that the Committee, when the PP does come, may wish to canvass with her in this regard. For instance, the legal basis upon which the PP can prescribe to the relevant authorities what to do, and also the legal basis upon which she can then require them to report to her regarding what they do. It could also be pursued with the PP, the question whether or not that she accepts that the contents of the letter that was written to the NDPP, as well as its tone, does she accept that perhaps that was incorrect. Did the PP have any evidence of collusion between the NDPP and the President's office, as suggested in her letter? Does the PP accept that she didn’t have the authority to issue instructions to the NDPP? As I stated earlier, Chair, in her answering affidavit the PP stated that her remedial action to the NDPP was merely a referral to the NDPP to conduct further investigation and that it was not an instruction. The Committee could perhaps ask the PP why she didn't say that in the letter that she directed to the NDPP in response to the clarity that was sought. Now, Chair, I move to the remedial actions insofar as they were imposed on or made against or in relation to Parliament. Go to the PP’s report again please. Page 104, start at 103, yes. So this is the remedial action against the Speaker of the National Assembly. ‘Within 30 working days of receipt of this report, refer His Excellency President Ramaphosa’s violation of the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members to the Joint Committee on Ethics and Members’ Interest for consideration in terms of the provisions of paragraph 10 of the Code’. 8.1.2, ‘Within 30 days of receipt of this report, consider within her discretion,’ that is the Speaker, ‘for deliberations by Members of Parliament in terms of the Rules of the National Assembly, issues relating to my observations under paragraphs 6.1 to 6.6 of this report for possible review and amendment thereof’. And, ‘Within 30 days’ again, ‘of receipt of the report, demand publication of all donations received by President Ramaphosa because as he was then Deputy President, he is bound to declare such financial interests into the Members’ registerable interests register in the spirit of accountability and transparency’. The monitoring obligation in relation to this remedial action can be found in paragraph 9, page 104. Where in 9.1, the Speaker of the National Assembly was required, within 30 working days of the issuing of the report, to provide the PP with an implementation plan indicating how the remedial action referred to earlier will be implemented in 8.1.1. The Speaker was to again, within 30 days of the report provide the PP with an implementation plan showing how remedial action 8.1.2 would be implemented. And again, similarly 30 working days showing how, of an implementation plan relating to the remedial action in 8.1.3. So in relation to the remedial actions that she made against the various authorities, the Public Protector in her answering affidavit, in the BOSASA record, considered the attacks to be spurious and ill conceived, and she alleged that the remedial action had been couched in a manner that left the discretion with Parliament, with SAPS, and with the NDPP to perform their functions. In other words, if they believed that they should do nothing, they were fully entitled to do nothing as long as they exercised their discretion lawfully and for a legitimate purpose. So the PP adopted the view that the speaker was opposing the remedial action as a support for the President, based on the fact that the Speaker came from the same political party as the President. The Public Protector concluded that the Speaker was doing that, rather than holding the executive to account. When the High Court considered the issue, it held that the remedial action was an unwarranted encroachment on the Speaker's discretionary powers. It was an unwarranted encroachment by the Public Protector on the Speaker's discretionary powers, and that it ought to be reviewed and set aside, the remedial action. Go back to the High Court judgment please. Paragraph 211. ‘Her attitude,’ the Court said, ‘to the Speaker is equally concerning. In her answering affidavit, in response to the Speaker's review, the PP says that the Speaker's review is tantamount to “demonstrating support for the President” and is a failure to “stand on the side of accountability”’. The Court said, ‘these are reckless statements to make against another organ of state and deserve the opprobrium of the court. The totality of the Public Protector’s conduct highlighted above warrants an adverse costs order against her. In our view, an order that she be directed to pay the President's costs on an attorney and client scale is warranted’. Again, similarly, there are various issues that arise from this background and which the Committee should pursue with the PP. These are questions that are similar to the questions that are posed in relation to the remedial action against the NDPP questions relating to her authority and the legislative basis for adopting the conduct, the course of conduct that she did, which brings me then, Chair, to the end of this portion.
Chairperson: Thank you, Adv Mayosi. I think at that point, it might just be fair that we take an early break, tea break, and then we’ll come back to Adv Bawa. Thank you, colleagues. We'll take a 15 minute break.
Chairperson: Welcome back everybody, back from tea. We continue. Over to Adv Bawa.
Adv Bawa: Chair, I want to mop up on the CR17 part. Adv Mayosi took you to the reasoning of the court, which the court summed up at the end on what it formed, what aspects of it inform their adverse cost order. And she took you through the remedial part. I just want to take the members to 198 of the judgment; we take it just a little bit further up. You should probably go to 196, so that you can see that this part of it comes under justification on costs. So in 196, it says, ‘In respect of some of the parties there is no issue as to the questions of costs’. And in the next two paragraphs, it sets out what the position is with those parties. So let's go to what it says in relation to the Public Protector, from 198. ‘As to the Public Protector, there is no question that she should be ordered to pay the costs of the President, the Speaker and the NDPP, for her unsuccessful opposition to their review applications. The only question is the scale of the costs that she should be ordered to pay. The President submits that she should be ordered to pay costs on the punitive scale of attorney and client. He does not suggest that the conduct of the Public Protector warrants her being ordered to pay costs in her personal capacity. Counsel for the President submitted that the conduct of the Public Protector in this case shows a reckless determination to make an adverse finding against the President. They pointed to what they submitted was her egregious misreading of the Executive Code, and her baseless, and very serious conclusion that there was prima facie evidence of a suspicion of money laundering. They submit that her investigation showed a determination to malign the President by making very serious findings against him without engaging meaningfully with the evidence before her and the applicable law. The principles applicable to the court’s discretion to order costs on a punitive scale, as opposed to on a party and party scale are usefully collected and referred to in the Constitutional Court judgment in Public Protector versus South African Reserve Bank. Costs are a discretionary matter for the courts concerned. Such costs are warranted when it would be unfair to expect a party to bear any of the costs occasioned by litigation’. So that's one kind. ‘The question must be answered with reference to what would be just an equitable in the circumstances of a particular case. The general principle is that an attorney and clients scale is awarded when a court wishes to mark its disapproval of the conduct of a litigant’. That's the second kind, and let me say while I'm interjecting, there are a number of different reasonings that go under cost orders because it always depends on the discretion of the court. So if I read on, the courts ‘have awarded this scale of costs to mark their disapproval of dishonest or mala fides conduct, vexatious conduct, conduct that amounts to an abuse of the process of court, or conduct that is extraordinary and worthy of a court's rebuke. As cost lie at the discretion of the court, this is not a closed list. Public officials attract special consideration when it comes to punitive cost orders, and they may even be ordered to pay costs out of their own pockets. In PP v SARB the Constitutional Court said the following in this regard: “A higher duty is imposed on public litigants, as the Constitution’s principle agents, to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights… The Public Protector is therefore enjoined by the Constitution to observe the highest standards of conduct in litigation”. And: “There is no merit in the Public Protector’s contention that the independence of her office and proper performance of her functions demand that she should be exempted from the threat of being mulcted with adverse personal cost orders. On the contrary, personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector act in good faith and in accordance with the law and the Constitution”. While the latter excerpt refers specifically to personal cost orders, the underlying principle is applicable also to attorney client cost orders against the Public Protector. It underlines the Public Protector is carrying out a constitutional duty, and that the Constitution demands that she is scrupulous in using her powers in accordance with her constitutional mandate. We have discussed the Public Protector’s broad powers and the particular mandate given to her under the Constitution. Her broad powers come with important obligations. In using them she must act independently, impartially and she must approach each investigation with an open mind. It is not surprising that, given the weight of the constitutional burden she carries, and the breadth of her powers, she is required to be a highly skilled professional in her relevant field of expertise. She must be expected to understand and correctly apply legal prescripts that may be relevant to her investigations. She should consider all the evidence before her and weigh it appropriately and fairly before making an adverse finding. She should be conscious of the impact that an adverse conclusion may have on the rights of those she is investigating. She should not hesitate to make adverse findings when the evidence reasonably and rationally supports such a finding. Equally, however, she should not rush to conclusions and should tread carefully before making findings that may have serious implications for people within the scope of her investigations. Unless the Public Protector conducts herself in this manner, she runs the risk of undermining the very reason for the existence of her office. If she strays from this path, she will lose the confidence of the citizens for whom she has been appointed protector. For these reasons, it is critical that, where appropriate, Courts should show their displeasure should the Public Protector fail to meet her constitutional mandate. It is a duty imposed on the Courts by the Constitution itself. We earlier concluded that the Public Protector acted not only irrationally, but also recklessly in reaching her conclusion that there was evidence supporting a prima facie case of money laundering. We noted that this conclusion had potentially extremely serious consequences for the President. This is not a consequence peculiar to him because of the position that he holds’. And, we’ve read the rest of it to you, and Adv Mayosi took you through that to the end of the order. Now, Chair, I want to, before we close CR17, cross reference it to the record in the Baloyi matter, which you'll find in Bundle A 2174, at paragraph 66. Maybe go further up so that we have context for Members of what Ms Baloyi says. Okay, Ms Baloyi is talking about the Gordhan matter and the CR17 matter, and she starts at paragraph 58. ‘The manner in which the Public Protector handled both complaints was extremely unusual’. Members will remember that at the time Ms Baloyi was the COO at the Public Protector’s office. ‘First, with regard to the BOSASA report, the Public Protector interviewed the late Gavin Watson. I was present in the interview. Mr Watson told the Public Protector that he donated not only to the CR17 campaign, but also to the NDZ campaign. Yet the Public Protector refused to investigate the allegation about donations to the NDZ campaign, despite the fact that Mr Watson indicated that there are many donors who fund political parties. In light of these revelations Ms Mogaladi and I encouraged the Chief Investigator to consider extending the scope of his investigation to include these allegations, or to limit the investigation to the R500 000 and to request the NPA to investigate the other allegations. Second, after we raised the suggestion of extending the investigations, Ms Mogaladi and myself were excluded from these investigations. The reports did not go through the ordinary process from Senior Investigator up to the Public Protector. Instead, the investigations were primarily conducted by external people who reported directly to the Public Protector. I do not know who these people were as I was entirely excluded from the process. This is highly unusual and, in my view. The Public Protector is sometimes required to rely on external investigators to aid her with reports. But that is only when the skills or capacity are lacking in the office. That was not the case here. There was no legitimate reason why the complaints could not have been reviewed through the ordinary process. Third, she prioritised both reports. As I've noted earlier, these types of investigations usually take up to two years to finalise. However, these reports were completed within few months. This caused suspicions within staff members. Fourth, on 26 May 2019 the Public Protector sent me a WhatsApp message that read: “COO, I worked with few people to deal with the sabotage of the Pravin Gordhan camp. The notice is almost ready for rogue, will issue this week and report will also be issued in the manner I will determine. The notice for the President is also ready, will call him this week to discuss the notice. It is not about you but one has to play chess”. She's then annexed it and showed it. And, ‘The next day, the Public Protector sent me a WhatsApp on 27 May 2019 message that read: “We meeting CR on 30 May at 3pm at Mahlamba Ndlopfu. You part of the team, will give you hard copy to read and shred after”. I attach a copy of a screenshot. These messages were disturbing to me. I did not ask Public Protector what she meant by them because I knew it would upset her. I did not want to upset her at the time. I understood the reference to playing chasing the first message to mean that the Public Protector was playing a political game. The requirements for me to shred the section 7(9) notice to the President is equally concerning. That is certainly not usual practice. I was given the document to read an hour before the meeting. I believe that the Public Protector wanted me to shred the section 7(9) notice because of a fear that the documents would be leaked’. And then she goes on to ‘McBride’, that’s the next heading. The Public Protector has responded to these allegations at 2416. It starts by paragraph 53. Go down. I read from paragraph 66 earlier on. And, the Public Protector’s response to this was, ‘The inclusion of the BOSASA and Rogue Unit matters, which are irrelevant to the present dispute, is also mischievously a poor attempt at sensationalism. It will not be appropriate to waste more time on these reports. These allegations simply demonstrate the applicant’s unsuitability for the position of COO in that she is prepared to breach the confidentiality clause of her employment contract for no apparent reason. Secondly, she clearly does not understand the workings of the Office of the Public Protector. In a nutshell: The BOSASA investigation emanated from the complaints of two Members of Parliament concerning the conduct of the President of the Republic in allegedly misleading Parliament. Accordingly, and even if Mr Watson had indeed contributed to the so-called NDZ campaign or other such campaigns, this would have no bearing as to whether or not the President had misled Parliament in his question and answer session. While the NDZ campaign might have been of general and casual interest to the COO it is not covered by EMEA. A competent and suitable COO would know this almost instinctively. There was nothing unusual about my decision to reduce the team substantially, due to the high profile and sensitive nature of an investigation involving the Head of State which by definition is no ordinary investigation as alleged by the applicant. EMEA investigations must be finalised within 30 days not two years. This applied to both of the BOSASA and Rogue Unit reports. The WhatsApp messages concerning such investigations are obviously intended to be private and confidential. Their dissemination is unlawful and amount to criminal conduct. In any event, the interpretation of my messages is absurd and outrageous. It is a well-known fact, to the applicant and the public that there was a concerted effort by Minister Pravin Gordhan and his team to discredit my office and to politicise its work by labelling me as a participant in corruption and “State Capture” hence my alleged release of the report a few days before the Presidential Inauguration on 25 May 2019, so as to prevent the appointment of Minister Gordon into the new Cabinet’. This is a reference, Chair, not to SARS Unit report. It is in reference to the Pension-Pillay report, which was issued on 24 May 2019. ‘All of this is of course a speculative, imaginary and unfounded conspiracy theory against which my office had to be naturally alert, and device communication strategies to resist and refute. The strategy and intention were most definitely to frustrate and sabotage the work of my office. My reference to chess was obviously in respect of our defensive moves to counteract the sabotage and unwarranted attacks directed at the Office of the Public Protector. If there was any alleged “game” it was initiated by our assailants and we were entitled to defend the integrity of the office. We shall always continue to do so, as we are duty bound by the Constitution’. And then we go into the Biblical David and Goliath of the previous predecessors. Go on to the next, 140. ‘That is the nature of the inevitable chess game that comes with the territory of the office. Like a literal chess game, it features kings, queens, knights and no shortage of witting and unwitting pawns. It is well known that I have even had to resort to issuing reports on YouTube so as to avert attempts at sabotage’. Chair, there is a bit of an elephant in the room, given the allegation of external persons involved in the report. And while we’re here there are two documents in the evidence. That the Committee may just note that for when it comes to question time, that I want to alert the Committee to. This is simply so that when the Public Protector comes to give questions, the Committee can traverse that with her. And I want to go to page 6539, which in Bundle F of the document. It’s an email, and I want to go to page three of the email. Go down a bit. Go down two pages. Okay, this is an email. Go up. Mr [Alfred] Mhlongo, on 9 October 2019, as the senior legal manager, addresses an email to Mr Seanego and someone else at Seanego, Mr Sithole, who did not have much of a memory about these things and the late Mr Nyembe. He says, ‘Good morning Mr Seanego, Ngobeni prepared an analysis of the ministerial handbook issues relating to “inadvertently” and “deliberately” misleading Parliament after the fiasco with Pierre de Vos on our Constitutional Court leave to appeal in the Rogue Unit matter. That is the document that you must please forward to council. Kind regards, Alfred’. Go up. Mr Seanego said, ‘Please forward the analysis to us, we do not have it’. Go up. ‘Good morning Mr Seanego, Kindly request same from Ngobeni. I also do not have it my brother’. That’s Alfred. Go up. And Mr Seanego then says, ‘Good afternoon Mr Mhlongo, I called Mr Ngobeni but there was no response. I called Adv Masuku SC and he undertook to forward it to me. Will forward same immediately upon receipt’. Chair, I don't have the document in question, but we do have an email if you go to 6540. You see the date on that Chair is the 9th of October 2019, which is not long after that. So what we have here, Chair, is an email. Go up to the top. Chair, this is an email that is addressed to Mr Sithole’s Gmail account, and also the Public Protector’s private account, and hence she doesn't want to show it. It comes from Paul Ngobeni. It’s Mr Ngobeni and its dated 2 July 2021. It is just after the Con Court has handed down its judgment, that we have taken the Committee through, and it says here, ‘I am writing to urgently bring the following matter to attention. The Concourt judgment in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others 2016 ZACC 11 Nkandla judgment provides a revealing insight into the dishonesty and political manipulation within the Concourt. There the Concourt stated that previous Public Protector Madonsela “concluded that the President violated the provisions of the Executive Members’ Ethics Act and the Executive Ethics Code”’. That is the paragraph of the judgment to which the Committee has been referred to earlier on in the week when I had taken the Committee through that judgment. ‘“These are the national legislation and the code of ethics contemplated in section 96(1)”. Specifically, the Concourt cited “Chapter 1 of the Ministerial Handbook: A Handbook for Members of the Executive and Presiding Officers at pages 7 to 15. See footnote eight of the EFF Nkandla judgment. The copy of the Code specifically relied upon by the Concourt is here’. He provides the Ministerial Handbook and then he quotes section 2(3) of the Executive Ethics Code. Then it says below, ‘But the judiciary appears to have taken the position that these provisions of the Code were only applicable to President Zuma or during his presidency. When Ramaphosa was being investigated for lying to Parliament about the Bosasa payments to his son, he gave a false answer but admitted that he misled Parliament “inadvertently”. Likewise, when Pravin Gordhan was investigated for lying about attending a meeting where a member of the Gupta family was present, he claimed that he was not guilty because he did not “deliberately mislead” Parliament. Incredibly, the Concourt judges both when it came to Ramaphosa change gears and rely on the old 2000 version of the Code, which only prohibited “wilfully” misleading Parliament. This was simply unprecedented in world jurisprudence in that the judges knew that the Executive Ethics Code contemplated by the Executive Members’ Ethics Act was published by President Mbeki on 28 July 2000 and amended by the same Mbeki on 7 February 2007. Further, Madonsela, the former Public Protector used the 2007 version of the Code in writing several adverse reports against Ministers such as Shiceka’. He gives it ‘at least since 2010’, referring to an article. ‘In the same Nkandla judgment, Madonsela admitted she relied on the 7 February 2007 version and the Concourt judgments affirmed that was the correct code. In yesterday's judgment… the Constitutional Court did a complete somersault and ruled that the Public Protector relied on a wrong code of ethics for investigation into the CR17 matter. It accused her of “changing” the applicable code and never once referred to the same 2007 Code the PP used and which the Nkandla judgment endorsed. It ruled as follows. Then it sets out the ruling, and then it goes further in 1920 what the Court said. Go down. I’m not going to read the judgment. We've taken the Members through it. Go down. 56, 57, 58, 59, 60, 61, 62, 63. Stop there. Just after 63, go up. ‘These scandalous accusations against Public Protector can totally destroy her career as a lawyer and a public servant. They must be challenged and corrected immediately. Conclusion: Public Protector proceed as a matter of urgency to file a reconsideration and rescission of the entire judgment under Rule 29 of the Rules of the Constitutional Court’, and it provides the rules. ‘The Court plays a pivotal role in the interpretation of legislation, as well as, the development of the common law and is in the same position as the High Court, in respect of applications for rescission or variation of judgment’. Then it quotes what Rule 32 says. Go down. It then says, ‘In the judgment against the Public Protector, the judgment ignores the Concourt’s own Nkandla judgment and relied on an old superseded version of the Code based on the submissions of CR which ignored the Nkandla ruling and other Public Protector findings relying on the 2007 Code. This was an “erroneously sought” judgment. Further, the order or judgment contains a “patent error or omission”’. We had taken the Committee to the patent error in the founding papers of the rescission applications at length when we started. ‘Because it ignores Nkandla judgment and relies on an old superseded code. There is ambiguity to the extent the Concourt implies it only recognises the 2000 code while in Nkandla it recognised the 2007 version. For a remedy, the Public Protector must demand an apology because the Concourt relied on its own errors to make accusations and slanderous remarks implying dishonesty and incompetence when she was actually correct. We must dramatize the fact that all our judges including at the highest level can make mistakes and they’. Signed. Chair, this is one of the issues that we wanted to raise and would like to raise with the Public Protector when she comes and gives evidence. And that takes us through the CR17 matter, and I had indicated to the Committee yesterday that we had been a lot more prepared and could convert our questions into a presentation to the Committee because we had anticipated asking the Committee, the PP questions. We had asked the Committee when you had refused our application last week, Chair. We have also done some work on the Gordhan SARS Unit matter. And in that regard, for purposes of preparing for questions and trying to see where the different documents on a very dense record and several applications have been. I, in the course of that, prepared a bit of a comparative table to try and give the members an idea of where what belongs with reference to certain subject matters. And the first subject matter that I could seek to take the Committee through relates to the IGI report. If you will bear with me for a moment, to just give my friend here behind us the document so that we can put it up on the screen and it will go girl easier in doing that.
Chairperson: Okay, that’s in order.
Adv Bawa: Chair, can I as a precursor say that this was initially prepared for purposes of us being able to ask, and will still be used to be able to ask the Public Protector questions and for purposes of being able to understand the documents. And so you must just bear with us a little bit if we stumble along the line. And I don't really want to regurgitate stuff that the Committee's already heard from the Public Protector. This was solely aimed at dissecting the documentation that's on the record and maybe direct the Committee on what to look at that is relevant for purposes of the record, in doing that. So the Gordhan SARS related matter, in respect to the charges before this Committee falls into the same category as the CR17 matter. So, if you go to page two. It’s simply a reproduction of what's contained in the PP’s statement, which is before you at paragraph 334, so I’m not going to take you there. And then the second part of it, which is number two, you must keep track with me, is the questions that the Members have asked in writing, and the responses that have been given to those which I'm also not going to take you to because that you have before you in writing. So let's move on to what we have in the next set of pages, which come on page six. Go down. There we go. So for the most part, we had traversed the versions of the section 7(9) notices and what was said in respect of the IGI report when the evidence of Mr Mataboge was before, when Mr Mataboge was before this Committee, and we had gone through the versions of the section 7(9) notice and what had happened in that instance. For purposes of this, I only want to go to the last column which effectively shows what was contained in the section 7(9) notice that was given to Minister Gordhan, dated 3 June 2019 under the heading of the Sikhakhane report. And where there are correlations to it. So maybe to give you a road map of where this goes. So I'm going to take you through the section 7(9) notice first because that's the start of what goes out. The paragraph reference is to the paragraph reference in the section 7(9) notice. Sometimes it correlates with the draft, sometimes it doesn't, but that's neither here nor there. So in the first 7(9) notice that goes out to Minister Gordhan it says, ‘The report recommended that the activities and functions’ – and that's a reference to the report being the Sikhakhane report. ‘The report recommended that the activities and functions of the SPU be investigated by the Inspector General of Intelligence. In a meeting held with the Inspector General, Dr Dintwe on 31 January 2009, he confirmed that the Office of the IGI had indeed previously investigated allegations of an intelligence unit within SARS and confirmed the existence thereof’. And then the next one is. Just go back up. You will see on an earlier draft, it said, ‘I am however, unable to utilise the report or any party thereof as I am still awaiting the Minister of State Security to declassify the report’. Go down. The next paragraph it says, ‘Apparently the then Inspector General, Adv Faith Radebe conducted an investigation on the intelligence unit within SARS and issued a report on 31 October 2014, which I was reliably informed that it was in the custody of the former Minister of State Security from whom I tried to get a declassified copy of the report without success’. You'll see there in the previous draft it said, ‘I am however, unable to utilise the report or any part thereof as I am still awaiting the Minister of State Security to declassify the said report’. Next reference in the section 7(9) is interviews conducted with the Minister of SS and IGI. Go down. ‘In an attempt to determine the veracity of the allegations of the existence and the activities of the intelligence unit, I sought more information from the IGI. This information was attributed to a report by the former IGI, Adv Faith Radebe dated 31 October 2014. Having subpoenaed Dr Dintwe to a meeting in my office on 31 January 2019, he admitted to the existence of a report on the intelligence unit compiled by Adv Radebe. However, he also confirmed the existence of the unit, as per the report of Adv Radebe. He stated that the report can be requested from the Minister of State Security as the lawful custodian thereof. I had also subpoenaed the Minister of State Security’, that then was Ms Duba, ‘for submission of the report which led to a meeting with her on 15 February 2019. At the said meeting, the Minister undertook to request her DG to avail a declassified copy of the report to my office. I have yet to receive the report as promised. I have opened a criminal case against the former Minister of State Security for violation of section 11(3) of the PP Act. I have since requested President Ramaphosa’s assistance in facilitating the availing of the declassified report by the Minister of State Security’. So that's what we get told in the section 7(9) notice. Now, we come and we commence to the drafting of the draft report, and you will see that the 7(9) notice had gone out on 3 June 2019. And the first draft of the report with remedial action comes out on roughly around the 4th of July. These are not all the reports. There are reports that are earlier and some have different work in progress on it. Right. So firstly, we deal with what is contained in the executive summary on remedial action. And we know that in the executive summaries in the first draft, it’s not included yet. But there's a proposal. ‘Not included in the executive summary but the proposed remedial action at 7.3, the Minister of State Security to 7.3.1 within 30 days of this report, acting in line with Intelligence Services Amendment Act, commission an investigation by the Inspector-General of Intelligence on the current status of the unit for any continued breaches of the Act by individuals or organisation and take the necessary appropriate action as provided for by the enabling legislation’. We go to the middle column here. We’ll see on a later report, as they go from the earlier drafts to the later ones. The ones in the middle has a different recommendation, which says, ‘Minister of State Security to: Within 90 days of the issuing of this report, acting in line with Intelligence Services Amendment Act, implement in totality, the OIGI report dated 31 October. Within 30 days ensure that all intelligence equipment utilised by SARS intelligence unit is returned, placed into the custodian of the SSA. Within 14 days of issuing of the report avail a declassified copy of the OIGI report dated 31 October 2014. Now, if you go to the end column of the executive summary, you will see we haven't repeated it entirely. But you will see that, ‘within 90 days… implement in totality the OIGI report dated 31 October 2014. Within 30 days ensure that all intelligence equipment utilised by SARS intelligence unit is returned, audited and placed in custody by SSA. Within 14 days of issuance of this report avail a declassified copy of the OIGI report dated 31 October’. And bear in mind the last column is the finalised report. If we then proceed further, you will see what is said, if you go to the next block, which is paragraph 4.4. There are some instances where previous drafts simply say the same thing, but at different parts of the report. And if it's a draft, we haven't really gone there. So we know from paragraph 4.4, the key sources of information is listed in the last column identified by documentation. And for those of the Committee Members who were here last week, we had heard the evidence from the Public Protector as to the manner in which she has indicated that the OIGI report was included in the source documents, and I don't want to get into argument over what it is. I simply want to take you through the report. So if you go down. I’m simply raising it because my note had there that the IGI report is not listed in the source documents. So let me rephrase that and say, the IGI report is expressly not listed by reference to its name under the source documents, so that I'm not seen to be undermining the evidence that was put before the Committee. And we'd have to deal with that when the PP deals with evidence or in closing arguments if it necessitates. What is also not listed in the source documents is the correspondence which prevailed on the 22nd of February and the 27th of February between the Public Protector and the Minister. I, just for the sake of completeness, I pulled it out and made it easier to find. If you go to Bundle E, number seven. Just put it on the screen. Just click on annexure P7. Annexure PP7, which is the letter. The reason why I thought you could show it is because I wanted the Committee to see that they are expansive. You know what I'm trying to do? So the court records in this matter span 48 volumes of papers, that is apart from the paperwork that went up to the Appeal Court. There's also an extensive Rule 53 record. And so certain documents are pulled out or we've come across it and we've tried to take it out so that we don't go and hunt for it in this huge record. And sometimes we've just added it to the folder, to do that as repetition in that case. So let me go to annexure PP7 at the bottom. Go down. This is a letter from the Public Protector, dated 22nd February to the Minister. And it deals with investigation into allegations of a violation of the Executive Ethics Code, irregular, unlawful and criminal activities by the Minister of Public Enterprises. ‘I refer to our meeting of the 15th February 2019 and your letter dated 20th February 2019’. She's not going to deal with everything and it must not be construed that she agrees with what was in the 20th letter. She then says in paragraph two, that she fully supports and respects the role of the SSA, and hopes that the SSA and the Minister appreciates and respects her Constitutional mandate. She then sets out the law. We are all familiar with sections 182(1), 183 and 184. So we are not going to read that out, to do that. And then the Public Protector says, ‘Having provided the legal background of my constitutional powers and your constitutional obligation towards the functioning of my office, I would like to reply to your letter as follows. The premise of your entire letter is mistaken. It presumes that I am in possession of an authentically classified secret document. This presumption ignores the steps I have taken to ascertain whether the document received by my office relating to my investigation is indeed what it purports to be, i.e., secret document from the Office of the Inspector General of Intelligence. In this regard, it is important that I remind you of the following steps, of which you are aware, that I have taken in order to establish precisely whether the document I have is a classified document’. And then she says, on 8th January, she addressed a letter to the IGI advising him of two complaints she had deceived in November. Going further, ‘In order to ascertain whether the information and/or documents I have received were authentic, I sought an official copy of the report relating to an investigation conducted by the then IGI, late Ambassador Faith Radebe, into allegations of the establishment of an intelligence unit within SARS, in violation of section 209(1) of the Constitution. On 14th January 2019, I again addressed a letter to the IGI requesting a meeting. On 15 January, I received a response from the IGI, who confirmed the existence of the report relating to the investigation into media allegations against the Special Operations Unit (SOU) and/or other branches of State Security Agency (SSA) in 2014 and that same should be requested from the Minister. On 18th, January 2019, and in terms of section 7(4) and (5) of the Public Protector Act, I issued a subpoena to the IGI seeking the submission of the said report. On the same day, I issued a similar subpoena to you as the Minister responsible for the SSA. To the extent that the allegations contained in your letter presume that the document I already have is indeed a classified document, I would like to state that you are mistaken. The above steps that I took were precisely taken in order to ensure that indeed I have in my possession the same report that the State Security Agency and the Inspector General of Intelligence have. This is so because as Public Protector, I receive a plethora of documents, which purport to be confidential, secret or otherwise. It is for that reason that I sought and continue to seek confirmation from your office and that of the Inspector General of Intelligence that the document I have is indeed the same classified document that you have. It is not clear to me why your letter suggests prematurely, that the document with which I have been furnished is the same classified document. This is the very fact I seek to verify with you and the Inspector General of Intelligence. As you well know, I have an obligation in terms of section 7(2) of the Public Protector Act, to ensure that the contents of any documents in the possession of a member of the Office of the Public Protector or the record of any evidence given before the Public Protector, during any investigation, are not disclosed and are kept confidential. All classified or confidential documents or record are only accessed by members of my office who are vetted and possess a valid Top Secret Security Clearance Certificate. However, I have to establish from the appropriate State organs whether the documents I have are what they purport to be. It is not clear to me why you consider this an offence, even before you confirm with me whether or not the document I have is authentic and/or is what it purports to be. The accusation that I did not bring to the attention of the relevant authorities the unlawful disclosure of classified information is both premature and incorrect. The subpoena and discussion during our meeting were precisely to bring the matter to your attention. Based on the Constitutional powers of the Public Protector to which I have referred above, I request that you cease and desist from what appears to be an interference in the performance of my constitutional function. Instead, it would do both of us a great favour if you and the office of the IGI confirmed whether the document I have is the same as the report your good offices may have. In this regard, my subpoena of the report is still valid, and the Minister has an obligation to comply with my directive, to enable me to confirm its authenticity. The Minister is hereby assured that the contents of the report will be managed in line with section 8(2A) of the Public Protector’s Act. Should the Minister fail and/or refuse to adhere to the above request, I reserve my right to approach the court for, amongst others: Contempt of the Public Protector in terms of section 9(1)(b) of the Public Protector Act, and a violation of the Constitution. Contempt proceeding as a result of the Minister's failure and/or refusal, without just cause, to comply with a direction or request under section 7(4) of the Public Protector Act. Unless the Minister retracts the aforesaid later date 20th February 2019 on or before close of business on 27th February 2019, I shall immediately proceed in accordance with paragraph 10 above. Lastly, you are requested to adhere to the spirit of the principles of cooperative government and intergovernmental relations, which encourages all spheres of government and all organs of state within each sphere to foster friendly relations, assistant support one another and avoid unnecessary litigation. To the extent that the Minister has requested the names of members of the Office of the Public Protector that have had sight of the document to which I refer, I wish to confirm that the document in my possession purporting to be secret has only been seen by members of my office with the requisite security clearance. I also wish to assure the Minister that I respect the SSA as the custodian of security of the State and its citizens. Further, I will gladly assist the Minister in any lawful performance of her statutory duties. I hope the above clarifies what clearly seems to be a premature and mistaken accusation against me and my office. Considering my assurance in paragraph 9 above, and the fact that my investigation is at an advance stage, I await the Minister's response and compliance with my subpoena, by 27th February 2019. Chair, can we then go to the next, which is marked annexure PP8 which is the Minister's response to this letter?
Chairperson: The 20th of February letter?
Adv Bawa: That's the 22nd of February. So you will know that you have heard evidence of the letter of the 20th. So to get the order. There is a meeting on the 15th. There is then the letter that the Minister writes on the 20th. This is a response that I've just gone through, of that letter of the 20th. But what I'm now taking you to is the Minister's response to this letter.
Chairperson: You did show us the letter of the 20th from the Minister?
Adv Bawa: I didn't now Chair, but it was in the Public Protector’s evidence. I'm trying to avoid having to traverse the same ground. If you want to go to the 20th letter we can?
Chairperson: That’s fine. Go to the letter you were going to now.
Adv Bawa: I'm taking you to the Minister’s letter of the 27th of February. You will recall that the meeting between the IGI and the Public Protector took place on the 31st of January. So now let's go down to the letter. 27th of February is a response to the letter dated, go down.
Chairperson: It was the deadline given by the PP that by the 27th she needed a response.
Adv Bawa: Yes. ‘Your letter dated 22nd February 2019 and received by the Ministry on 25 February 2019 refers’. And then the Minister, ‘I am mindful of the responsibility on the Public Protector (PPSA) to strengthen democracy in the Republican and to be independent, subject only to the Constitution and the law in terms of section 181(1) and (2) of the Constitution. I have in my letter dated 20 February set out the grounds on which your possession of the classified report that I am the lawful custodian of, is in contravention of the law and cannot therefore withdraw the letter’. Maybe I should have taken you to the letter first.
Chairperson: For completeness.
Adv Bawa: Can we do that after?
Chairperson: Yes, it's going to be important. Just to refresh everything. When you're done with this, we do that as well, so that there is no gap.
Adv Bawa: Yes. ‘Moreover, you admit in paragraph 7.1 of your letter that you are in possession of a document which “purports to be i.e. a secret document from the office of the Inspector General of Intelligence”. I reiterate and confirm your statements to me on 15 February 2019 that a copy of the classified report of the IGI on the “investigation into the establishment and activities of the Special Operations Unit and/or other branches with the SSA” was delivered to your office by unidentified persons. I further confirm your assertions that the report was not registered at the reception desk of your offices and that the video cameras at the entrance and reception to your building did not record the delivery of the said report. It is further noted that the version told to me is corroborated by the IGI in his letter to me dated 4 February 2019, which is attached and marked Annexure A. In his letter the IGI recounts his meeting with you on 31 January 2019. In paragraph 10 on page 3 of his letter, the IGI pertinently states that “The PP did not accept the reasons advanced by the IGI and instead stated that she is in possession of the classified report, which was dropped off, at the offices by an unknown person”. The IGI repeats that you are in possession of the classified report in paragraph 12 on page 4 of Annexure A, where he states that “Furthermore, consideration would be had to the fact that the PP is in possession of the classified investigation report, albeit unlawfully, thereby hampering her use thereof, coupled with the fact that the report is in the public domain i.e. Noseweek”. Accordingly, your assertions that I am prematurely and presumptuously accusing you of being in possession of a classified report, or which you ought to have known was classified, since you are still in the process of determining its classification station status, cannot be supported and is misleading and disingenuous for the following reasons: The classification of the report was confirmed by the IGI to you on 31 January 2019, two weeks prior to our meeting; the IGI informed you that I am the lawful custodian of the report in’ terms of the legislation ‘and advise you to request the report from me. I must re-emphasise the significance of the classification and the danger, which disclosure of classified information poses to the intelligence establishment and its members. Your continued unlawful possession of the classified report is disconcerting especially in light of the expressed caution by the IGI to you concerning the statutory limitations imposed by the Oversight Act on the disclosure of investigation report and the fact that the law has been violated in this regard. Furthermore, for you to retain unlawful possession of the classified document in order to verify its authenticity or classification status, which has already been confirmed as unlawful by the IGI, would only aggravate the contravention of the law. The fact that you, personally, and members of your office have top secret clearance, does not imply that your entire office will automatically have access to all classified documents. In the circumstances, I must reiterate that you return the documents and any copies thereof to me without further delay. I will in turn ensure that the report is verified. The compliance with the legal provisions that safeguard the identities of members and sources of information, national security intelligence and intelligence collection methods of the SSA cannot be interpreted as constituting contempt of court. Your reference to section 9 of the PPA is therefore misconstrued and misapplied in this context and clearly intended to detract from the issue at hand. I reiterate my request that you uphold the legal provisions and other measures attendant to the safeguarding of classified information set out in the Minimum Information Security Standards (MISS)’. And Chair, we would have to address you on that Act at some point. ‘To that end, it is important to ensure that the counter-intelligence investigation is conducted to identify the person or persons responsible for the unlawful disclosure of classified information. A criminal docket will be opened and we must allow the law to take its course. Such an investigation cannot be construed as interfering with the functioning of the PPSA. I acknowledge that your position of the document is not an account of any actions on your part, and your cooperation with the investigation will therefore be appreciated. In the same way that I attended at your office on 15 February 2019, I am available, should the need arise, for a further meeting regarding the contents of the report and to ensure that adequate measures are put in place to comply with the legal imperatives’. That's from the Minister. Now Chair, these two letters are not listed together with the correspondence in the report, and I will after the lunch adjourn and confirm with you whether these two documents are actually listed in the Rule 53 record. It just dawned on me now that I don't have that answer. And so that I'm not inadvertently misleading the Committee, when I showed the Committee the screen with all the documents, I didn't get the two letters out of the record, which would automatically show that it came from the court record, which is why I'm now wondering whether it was part of the Rule 53 record. So, if we go back to the document we were on.
Chairperson: I thought that you’ll complete the letter of the 20th of February?
Adv Bawa: We must go to the 20th of February letter. I just have to think for a moment as to where it is.
Chairperson: Okay, we’ll flag it and then you can continue.
Adv Bawa: Can we do it immediately after the lunch, Chair?
Chairperson: No problem. Go ahead.
Adv Bawa: If we can just complete what’s on the report as Adv Mayosi looks for the letter. So if we go down to the next block. Go down. At 5.2.26 you'll see, prefaced by the word ‘apparently’. Its recorded in the report that ‘the then Inspector General, Adv Faith Radebe conducted an investigation on the intelligence unit within SARS and issued the report on 31 October 2014, which I was reliably informed that it was in the custody of the former Minister of State Security, whom I tried to get a declassified copy of the report without success’. Right and then go down. ‘In an attempt to determine the veracity of the allegations of the existence and activities of the intelligence unit I sought more information from the Inspector General. This information was attributed to a report’, and the report is again identified. Go down. Then it comes to 5.2.28. ‘He, the IGI, stated that the report can be requested from the Minister of State Security as the lawful custodian thereof. I had also subpoenaed the Minister of State Security, for submission of the report which led to a meeting with her on 15 February. At said meeting the Minister undertook to request her DG to avail a declassified copy of the report to my office. I have yet to receive the report as promised. And as per my letter dated 25 June 2019, I will be requesting the new Minister of State Security Ms Dlodlo, to avail the declassified report to my office. I have opened the criminal case against the former Minister of State Security for violation of section 11(3) of the Public Protector Act. I have since requested’ it from the President. Go down. ‘In light of the above mentioned and in terms of the powers vested in me under the Constitution, I have it on good authority that the findings of the OIGI report, inter alia, were’. And we know, Chair. Maybe I should take you to that part of the report. If you could just go to that report. You have to go up to get the page reference. You know where the report is 216? Bundle E, number seven. Right, and you want to go to paragraph 5.2.33. ‘I have it on good authority that the findings of the OIGI report, inter alia, were that: SARS created a covert unit utilising covert and intrusive methods which were not in line with the SARS mandate and in violation of section 209(1) of the Constitution which only empowers the President to establish any intelligence service; The establishment of an intelligence capacity within SARS, a capability exclusive only to legislative intelligence services was illegal’. And then it sets out what the OIGI report recommended. ‘Criminal charges be investigated against Messrs Gordhan, Pillay, van Loggerenberg and Richer for the establishment and involvement in the covert intelligence unit in SARS; SARS produce a credible inventory of all operational equipment which was used over a period by the NRG in the course of its covert activities’. One of the issues we would need to assist the Committee with is what is meant, Chair, by ‘on good authority’. If you then go back to the table. We’re now on page 22. It then says, ‘Furthermore, due to the sustained denial of the unit’s existence, as well as the failure by the Minister of State Security to provide my office with a copy of the declassified report on the investigation conducted by the IGI, Adv Faith Radebe on the affairs of the unit, I have requested President Ramaphosa’s intervention in the matter’. Further down, ‘Evidence obtained during the investigation indicates that State Security report found, amongst others things, that SARS created a covert unit utilising covert and intrusive methods in contravention of the SARS mandate. SARS had an interception and monitoring of communications capability which went beyond targeting tax offenders but was also utilised for political purposes as per the documentary evidence in my possession’. Okay, so that is, in essence, what the section 7(9) of the report said. And then what happens is Minister Gordhan takes the report on review, and Mr Pillay intervenes, as an intervening party. And what we have in the next table is, the Members will recall that many months ago, I did a timeline table of the litigation in the Gordhan matter, which sets out the different steps of the judgments that was handed down, and the litigation which ensued. And so, what this does is, it takes you to what the averment is in the founding affidavit, in respect of matters relating to the IGI, what the Public Protector’s answer was, and where there is something related to that in the reply then that is put up. And in the fourth column, a somewhat separate matter we would deal with a judgment, to an extent. It's relevant, but it wouldn't necessarily correlate to the other paragraphs that follow. And so the date is set up in the first column to identify the document in doing that. And of importance to the Committee, would be obviously what the Public Protector has said to the court, which informed the court's judgment and what the litigants have said to the court. So if we start off with what was the first affidavit in the court. It was Minister Gordhan’s affidavit at paragraph 168 to 193. Where he, and I won't necessarily for purposes of this exercise read everything verbatim. To do that. If you can just move it up so that we can try and get the whole bit of the table in. Right, there we go. So Minister says, ‘Nowhere in the initial section 7(9) notice to me and subsequent engagement was there mention made of a remedial action directed at the Minister of State Security and relating to a classified IGI report. I have not lawfully been provided with a copy of the report’. Go down. ‘As part of the Public Protector’s investigation, neither have I been provided an opportunity to comment on it. Her sudden last minute inclusion of this aspect in the report, and the insistence that it be implemented in the remedial action, is unfair, unlawful and improper’. Go up. The first column. Okay. Second column. The Public Protector answers that in the paragraphs and says, ‘I stand by remedial action in relation to the Minister of State Security. I deny that I have a duty to facilitate the applicant’s engagement with the OIGI. No doubt the Minister will know how to implement the clear remedial action of the PP’. And then with reference to the eighth respondent, which is Mr Pillay’s affidavit. He says, ‘The demand made on the Minister of State Security to implement “in totality the OIGI report” is astonishing. I wish to draw the court's attention to a series of letters that passed between the attorneys acting for me and van Loggerenberg and the IGI regarding the report that the Public Protector appears to have insight into but rather coyly denies having possession of. If such a report does exist, her possession or use of it would clearly constitute criminal conduct on the part of Adv Mkhwebane, who as a former State Security Agency operative, remains bound by national security and intelligence legislation’. He then annexes the letters, and he says, the following points for present purposes emerge from this correspondence. And he says, ‘There has been ongoing engagement between myself and others and the IGI which brings into question (a) the existence of the alleged report and investigation, (b) the alleged content of any such report, and (c) any ability to rely on such a report since no one allegedly implicated has been afforded a hearing or any right of reply. None of these issues have been resolved or concluded yet’. Go up. Chair, to put this into context there is a Part A and Part B to the application. And so what the Public Protector answers this affidavit to saying, ‘I've addressed the allegations made in the applicant’s affidavit’, and this is earlier on in paragraph three in the affidavit, ‘which are largely repeated in the eighth respondent’s affidavit. When I deal with Part B of the application, which relates to the prayer for the review and setting aside of my report, I intend to deal with allegations in Mr Pillay’s affidavit that relates to the review application. For now, I intend only to deal with allegation in Mr Pillay’s affidavit in so far as they support the relief sought in Part A. The relevant paragraphs to Part A of the relief sought by the applicant appear to start at paragraph 31 of My Pillay’s affidavit. Before I deal with allegations. I must make it clear that I do not accept the allegations made by Mr Pillay’. And then going down in the fourth column. ‘It is the Minister of State Security who requests from me the details that appear to trouble the Minister and Pillay on whether I am in possession of the Office of the Inspector General of Intelligence’s report. Mr Pillay has no such lawful basis to ask me to confirm whether I am in lawful possession of documents in the control of the State Security Agency’. So there's neither an admission nor a denial. Paragraph 16, the Public Protector says, ‘The allegation that I am a former State Security Operative deserves no answer other than that it does not form a legal basis on which an interdict should be granted’. Go up. There is an application before court and it's noted in the judgment that at the hearing of Part A of the main application, which was before her Ladyship Potterill J. I'll come to this judgment subsequently, but I'm just wanting to record this. The Minister informed the court of her intention to bring the current. Sorry, Chair. Let me preface this. There is later on an interlocutory application to prevent the disclosure of the IGI report. And this is the judgment in that interlocutory application, which records what has happened before Potterill J when she deals with the interim interdict. I may just at the start of the lunch adjournment just take you through the sequence again so that this makes a bit of sense. But for now, let’s just note what paragraph says. ‘At the hearing of Part A of the main application, the Minister informed the court of her intention to bring the current interlocutory application in which an order preventing the public dissemination of the IGI’s report would be sought. By agreement between the Minister and the EFF, the court made a ruling that in its argument, the EFF would not make differences to the IGI’s report pending the determination of its status’. Just to put this into context as to how the different bits of litigation and interlocutory application was taking place. Chair, could we take a bit of an adjournment?
Chairperson: Thank you. It’s just one minutes past one. We’ll take lunch colleagues and we will reconvene at two to proceed and conclude on these matters. Thank you. We adjourn for lunch.
Chairperson: We restart our session, the afternoon session. Over to you, Adv Bawa.
Adv Bawa: Chair, Adv Mayosi has found the letter that you have asked us to find, and she’ll take you through the letter before I resume.
Chairperson: Thank you. It's important for completeness to just cover that ground.
Adv Bawa: So just as a matter of order, the letter that she's coming to now is actually the first letter in the chain.
Chairperson: That's your 2022, 27. Okay
Adv Mayosi: Thank you, Chair. The letter is in Bundle E, folder seven, yes. And then in that folder, item nine, page 4340. That's the letter. So Chair, Adv Bawa would have read into the record or referred to the PP’s response of the 22nd of February, but you asked for the letter that the PP was responding to and this is that letter. It’s a lengthy letter Chair, but it's important to read in the record, because it's quite informative for the issues that have arisen in this matter now. So this letter was addressed by the Minister of State Security, the then Ms D Letsatsi-Duba. And it's dated the 20th of February 2019, and it deals with this issue of the IGI report. The subject matter of the letter itself is evident from its heading. It seeks to deal with the ‘investigation into allegations of a violation of the Executive Ethics Code, irregular, lawful and criminal activities by the Minister of Public Enterprises’. In the first paragraph, the Minister refers to the meeting that had taken place between the Public Protector and the Minister of State Security on the 31st of October. Let me just rather read the letter instead of trying to paraphrase it, for the sake of accuracy. ‘The meeting between the Public Protector SA and the Minister of State Security, concerning the report of the Inspector General into the allegations against the Special Operations Unit and/or other branches of the SSA dated 31 October 2014 and on 15 February 2019 refers. The Minister confirms that during the meeting, the PPSA informed her that a copy of the secret report was purportedly delivered to their offices by identified persons, which is therefore patently unlawful. It must be emphasised that the PPSA had not brought the unlawful disclosure of the classified information to the attention of the relevant authorities in compliance with the Protection of Information Act of 1982. It must be emphasised’, the Minister continued in paragraph three, ‘that the former Minister of State Security, Mr D Mahlobo, requested the former IGI, Adv F Radebe, to conduct an investigation into media allegations levelled against the Special Operations Unit and/or other branches of the SSA on 26 August 2014 pursuant to media articles published in the City Press on 10 August 2014. The IGI does not have a legal mandate to investigate the South African Revenue Services in terms of the Intelligence Services Oversight Act of 1994 and SARS-related activities could therefore not have been commissioned by the former Minister of State Security. The former Minister of State Security commissioned the investigation in accordance with section 7(7)(c) of the Oversight Act which provides for the IGI to perform all functions designated to her or him by a Minister responsible for a service. At the conclusion of the investigation, the IGI is required in terms of section 7(7)(f) of the Oversight Act to submit the report to the Minister, who is the lawful custodian of the report. The intelligence or information received by the IGI during the course of the investigation and contained in the report is subject to a restriction in law, and the IGI may only disclose the contents of the investigation in accordance with section 7(8)(b) of the Oversight Act’. In the circumstances that are listed there, Chair, which includes amongst others, ‘after consultation with the President and the Minister responsible for the SSA’, and subject to the various conditions that are listed there. In paragraph five, the Minister continued to say that, ‘With respect to the aforementioned provision’, which I think was section 7(8)(b) of the Oversight Act, ‘the Minister confirms that she had not been consulted about the disclosure of the information in the report and, in any event, considers the disclosure thereof to be detrimental to the national interest. Accordingly, the leak of the report to the media and the public publication thereof in Noseweek on 1 February 2019 is prejudicial to the national security interest. The report contains the identities of members, former members, sources, methods and intelligence of the now State Security Agency. Due to the non-compliance by the PPSA to notify the relevant authorities of the unlawful disclosure of classified information, it is imperative that the PPSA returns the report to the Minister as a matter of urgency. The Minister has also instructed the Acting DG of the SSA to urgently conduct an investigation into the unlawful disclosure of the classified information as a matter of urgency. The disclosure of information contained in the report and the publication thereof in any manner or for any purpose that is prejudicial to the security or other interests of the Republic constitutes a contravention of section 4 of the Protection of Information Act of 1982 and it is imperative that criminal steps be instituted against those responsible for the unlawful disclosure. Furthermore, any person who discloses classified information or material entrusted by the DG or a member of the SSA without the permission of the DG commits an offence in terms of section 26 of the Intelligence Services Act of 2002 and should be prosecuted. In addition, any person who discloses information in contravention of section 7(8) of the Oversight Act, commits an offence in terms of section 7A of the Intelligence Services Oversight Act, which should be investigated and prosecuted. The PPSA is accordingly requested to cooperate with the investigation to be initiated by the Acting Director-General of the SSA. The Minister furthermore notes that the publication of the PPSA’s findings are provided for in section 8 of the Public Protector Act of 1994. Section 8(2A)(a) of that Act provides that all the reports of the PPSA must be open to the public, unless the PPSA is of the opinion that exceptional circumstances require that the report be kept confidential. It is submitted that the information contained in the report and the consequences of the disclosure of such information qualifies as “exceptional circumstances” in terms of section 8(2A)(c)(iv) of the Act as it is prejudicial to the interests of the Republic. The public disclosure of classified information in the report would violate the rights of persons associated with SARS and the SSA, potentially disrupting the SSA’s operations and impairing its intelligence gathering methods, and threatening its operational cooperation with domestic institutions. As a result, the unauthorised and unlawful disclosure of the information contained in the report will undermine the SSA’s ability to fulfil its counter-intelligence responsibilities as defined and set out in section 2(1)(b) of the National Strategic Intelligence Act, which includes information security. The exposure of agents, members and methods of the SSA impairs its intelligence gathering capabilities, its functioning, and that of the other National Intelligence Structures defined in section 1 of the National Strategic Intelligence Act, as well as the operational cooperation between them. This ultimately impairs or threatens the ability of the government to discharge its duties in terms of the Constitution, amongst others, to: secure the well-being of the people of the Republic in accordance with section 41(1)(b); maintain national security in accordance with section 44(2)(a) read with sections 146(2)(c)(i) and 198; defend and protect the Republic in accordance with section 200(2); establish and maintain intelligence services in accordance with section 209(1); prevent, combat and investigate crime in accordance with section 205(3)’. Chair, the Minister continues to say, ‘It must be re-emphasised that rule 7(1) of the Rules Relating To Investigations By The Public Protector And Matters Incidental Thereto of 2018 provides that the PPSA shall treat information received as a result of a complaint or investigation as confidential and shall take reasonable steps to safeguard confidentiality. However, the Rules do not specify the security measures to be employed by the PPSA and what would constitute reasonable steps to safeguard confidentiality. In the absence thereof, it is advised that the PPSA employs the following security measures: ‘the report must be handled in accordance with the standards prescribed in the MISS at all times; the report, as well as any copies thereof must be surrendered to the Minister within three days of the date hereof; its contents must not be disclosed to unauthorised natural or juristic persons; the identities of all persons who had access to or sight of the report at the offices of the PPSA must be furnished to the Acting DG of the SSA within five days of the date hereof’. Signed by the then Minister of State Security, Chair. Ms Bawa continues.
Chairperson: And so as you continue, so by the time she wrote the last letter of the 27th of February, seven days later, do we know if those identities were shared with the Minister that she’s asking here?
Adv Bawa: No, I don’t know.
Chairperson: Okay.
Adv Bawa: I don't know what happened to that report that the Public Protector had. I’m hesitating because I can't recall whether she told us.
Chairperson: Okay, thank you.
Adv Mayosi: Chair, Ms Mogaladi did lead evidence that might be relevant to an answer there, so there is partially some evidence that's already before the Committee. We don't have to go there. I suppose let's go there. In the folder that has statements, Ms Mogaladi’s statements. I think that’s Bundle D. Go to the annexures, Ms Mogaladi’s annexures. 4008. Go down. So Chair, you will see that Mr Ephraim Kabinde on 20 February 2019 wrote to the PP and said, 'See attached the letter from the SSA Minister'. And it's this letter that we have just read. Ms Mogaladi led evidence to this effect. Go up. And then the PP responded to Mr Kabinde, and addressed her response to all those recipients, and she asked for a legal opinion from an SC via legal services. Referring to the contents of the letter, ‘They now blame the PPSA for not supporting receipt of the report and violating the Protection of Information Act? Prepare response to the Minister and inform her that she is not assisting at all in performance of my mandate, I subpoenaed the report and we agreed at the meeting that she will send the declassified report and now come with such threats? Their letter is also contradictory, they say we must return the report and on the other hand advise how to store the report? All officials who had access to the report, have top secret security clearance’. She mentioned Rodney, COS, Chief of Staff, ‘PA and myself’. She asks Ms Mogaladi, ‘Pona you have top secret security clearance right? Yes, this letter has been led in evidence before.
Chairperson: That’s helpful. I have just been reminded about that. Thank you.
Adv Bawa: And the two letters that I addressed emanates probably after this email, as a response to the letter that Adv Mayosi just read. Chair, just as a quick deviation so that we know what, just go to the timeline at 2a. So that we can put into context what I'm reading so that we, we don't do that. We don't lose anybody along the way. So first, there’s this application from Minister Gordhan done in July. Go down. And there’s affidavits lodged in that application. In respect of Part A, there’s the Potterill judgment. Then the Minister of State Security launches an interlocutory application to interdict the PP and the EFF from disseminating the report. There is a series of affidavits in that application, and the judgment comes out later. Then we have Mr Pillay bringing an intervening application into the initial application that Mr Gordhan brought, and there are affidavits in response to that. And he introduces Mr van Loggerenberg’s affidavit, which is attached to it in that application. And then, those are the papers that we're looking at now. So if you go back up. We have the Minister of State Security’s application that is argued and then we have an application that Mr van Loggerenberg also brings against the Minister of State Security that the PP complains she was not joined to it. Okay, so that's just a bit of a quick sketch as to where the affidavits that I'm putting to you now fit into the scheme of Gordhan related matters. Okay, so let's go back to where we were. We were on page 25 of paragraph 69. Where Minister Gordhan says, ‘It is unclear how the Public Protector on the one hand insists that the IGI report be implemented and yet still seeks a declassified report to be available to her. In the event that the PP is not lawfully in possession of the IGI report, then there is no basis for directing that it be implemented as she is not lawfully familiar with its contents. In the event she's in unlawful possession of the OIGI report, I invite her to disclose how she came to be in possession of a classified report’. So let's turn to the PP’s response in the second column. You'll see that the other paragraph is for further than what we’ve referred to. ‘I declined the applicant’s invitation to answer his questions on the work I did when I carried out my investigation. The insinuation that I did not have lawful access to government documents is simply inaccurate and wrong’. Go down. Then if we look at Mr Pillay’s affidavit. He says, ‘The IGI admits having “no mandate over SARS”, which investigates any “findings” and “recommendations” that may have been made in any OIGI report against SARS, me or any other SARS official; and 32.3.3. The remedial action demanded by the PP in this regard is irrational’. Chair, I apologise if some of the prepositions don't look right. It's a cut and paste from a PDF into this document, and so it might just have done that. So the substance has been checked but some of the prepositions might be more our error than the deponents. So after the founding affidavits are filed, there's a Rule 53 Record filed in the matter. And then there's a supplementary. Go down. There’s a Rule 53 Record filed, which is meant to be all the documentation, which informs the report. So the respondents come back and file what is called the Rule 30A(1), where they ask for specific documentation which is not included in the Rule 53 Record. This is what they request, ‘Any and all documents relating to the Public Protector being “reliably informed”, as referred to in paragraph 5.2.26 of the report. Requests any and all documents relating to the findings and recommendations of OIGI report. Request the transcript of the meeting between the PP and the Minister of State Security referenced in 27 and 32 of the report’. So let's see what the response to the request was, going down. The response to the request is, ‘Kindly note that the requested recordings were provided to your officers on 15 August. Further note that the information requested was provided and sourced from anonymous, therefore it is not readily available and it is the subject of the interlocutory application pending in the High Court’. By that stage, presumably, the interlocutory application that had been brought, to which I just referred, had already been launched on the 23 July 2019 by the Minister of State Security. It’s not clear why it wasn't part of the Rule 53 Record. Let’s just see when the Rule 53 Record was filed. Go up. Okay by the time the Rule 53 Record, that couldn't be right because the Rule 30A notice. We must check that date. It doesn't seem right. Go down. The second request is the requested that the report cannot be made available as it is subject to the interlocutory application under the case number. And ‘Please be informed that the requested transcript is not available, our client advised that the meeting was not recorded for security reason and therefore there is no transcript related thereto’. If we go up again. That is the meeting between the PP and the Minister of State Security, which is the 15th of February which is not recorded. So go down. And you can skip the summation of the letter of the 20th of February. Adv Mayosi has just done that, so go down. There's a supplementary founding affidavit which is filed by Minister Gordhan on the 7th of October 2019, in which he says in paragraph 22, ‘The record does not disclose the source of this information. When called in the Rule 30(a) notice, PG35, to disclose the relevant documentation underpinning these claims, the response received was that the necessary recordings had been provided and that the “information was provided and sourced from anonymous, therefore it is not readily available and is the subject of the interlocutory application in the High Court”. The cover letter of the PP’s attorneys is provided’. And then let's see what the answer was. ‘It is apposite to mention that the IGI report is indeed subject to the interlocutor application. The matter was heard on 6 November and the judgment of the Hon Mngqibisa-Thusi awaited on this issue’. We know that the judgment only came out several months later. ‘In observing the Constitution and the regard for the office of the Minister of State Security, I could not attach the report of the IGI to the record without seeking direction from the court first’. So the PP answers this, and then we see the founding affidavit of Mr Pillay repeat the allegations, which he previously made. And then he says, ‘The demands made on the Minister of State Security to implement “in totality the OIGI report dated 31 October” is astonishing. I wish to draw the court's attention to the letters’. And he repeats what I've previously read above. It's the same submission about the former State Security Agent, and so if we see the answer. So the part dealing with My Pillay’s answering affidavit seems to actually respond to his supplementary founding affidavit and only answers 17 paragraphs. So if we just go there. If you go to volume 12, page 2755. Its volume 35, sorry. It's volume 35. It’s Bundle E, and it would be number seven, volume six. Go to six. 2755. So this is the answering affidavit that the Public Protector files after the supplementary founding affidavit is filed. Go down. In paragraph three assists it says, ‘In this answering affidavit, I deal with the remaining allegations in Mr Gordhan’s founding affidavit and thereafter I intend to deal with his supplementary affidavit. From the outset, I stand by the application to strike out’ etc. And she deals with Gordhan’s affidavit. Go down to four. ‘I've read the supplementary affidavit of Mr Gordhan’. And she deals with that. Then go to 12.
Chairperson: Just as you go through that, I’ve just missed something that you can flag when you're done. There's an issue of reference to legal opinion that I might want you to help me, at the end, when you're done with that.
Adv Bawa: ‘In this answering affidavit, I will deal with the affidavits of Mr Gordhan, Mr Pillay and van Loggerenberg’. So, in other words in this affidavit, the PP says I'm going to be dealing with those allegations, as part of the Part B relief that I had not dealt with when I dealt with the Part A relief. And the allegations that Mr Pillay previously made, is the part dealing with Mr Pillay’s answering affidavit. In this affidavit he only actually answers the supplementary founding affidavit and not the allegations that she didn't answer and only answers 17 paragraphs thereof in this affidavit. So if you go to volume 40, you'll see what Mr Pillay says about that. Just to put it into context. I think you might have to go to seven. I want to go to volume 43, 3383. Go to paragraph five, start there. This is the replying affidavit, and he notes what she stated in paragraph 12 of the affidavit, and says, ‘Despite this statement, the Public Protector’s affidavit appears to deal almost exclusively with affidavits of Minister Gordhan, save for the limited references to my supplementary founding affidavit, which I deposed to on 25 September 2019. The brief response to my supplementary affidavit appears at 326 to 340 of the Public Protector’s affidavit. I record that on 1 August 2019 I deposed to a founding affidavit in support of: my application for leave to intervene as a further applicant; and my own application for substantive relief against the Public Protector and Adv Mkhwebane, as sought in prayer three’. Para 7, ‘I note that the Public Protector’s affidavit does not answer the allegations made by me in my founding affidavit. What the Public Protector’s affidavit does, in the course of answering Minister Gordhan’s affidavits, is to refer to me at various stages. I shall reply, in so far as it may be strictly necessary, to what is said about me in these paragraphs. I also note that, despite what is stated in paragraph 12 of the Public Protector’s affidavit, there is also no answer to what was deposed to by Mr van Loggerenberg in his affidavit dated 25 September 2019, which affidavit was annexed to my supplementary affidavit as annexure “VIP10”. In the circumstances, the evidence set out in my founding affidavit, and in Mr van Loggerenberg’s affidavit, stands unchallenged and uncontradicted in these proceedings’. When we come back to the matter at some point, I don't have it in this note, when we deal with the substance and we look at Mr van Loggerenberg’s affidavit, then there is a complete explanation or an extensive explanation on the SARS Unit and his involvement in it. So let’s go to the Chair’s question. Go back to the note. It actually dovetails. Go up into the middle of the page. So part of the answer of what Adv Mayosi gave you emanating from the email, says that the Public Protector was going to seek a legal opinion on how to deal with the report. Chair, do you want me to take you there?
Chairperson: Yes, please.
Adv Bawa: So this is one of the issues that we gave, that the Public Protector would need, clarity would have to be sought on or some question would have to be asked about this. Because a legal advice was sought, and you'll find that at Bundle F, item 96 and you go to page 2123.174. Make it 2123.175. Right, and what this is, Chair, maybe go up one page. ‘My opinion is sought regarding the status of the document that had been written what appears to be a threatening letter to the Public Protector. In her letter the Minister insinuates the Office of the Public Protector may have committed an offence by being in possession of a classified document’. And then go down. I’ll take you briefly through the opinion. And then there's the instructions given to the senior counsel that a complaint had been received. ‘Subsequent to this complaint or attached to the complaint itself the Public Protector’s office was furnished with a document which purported to be a secret report. It was not worthy that this is the document itself that purports to be “secret”. Nothing in the document amounts to confirmation that such classification is indeed authentic or done by SSA in terms of MISS. In what seems to be an appropriate step to verify the authenticity of the report, the Public Protector sought confirmation from the Minister and the IGI’, and we've been through all of that. Go to six. ‘I am instructed that before the Minister and the IGI could confirm whether the document is an official one or not, the Minister has elected to write to the Public Protector and declare that she has committed an offence. This despite the fact that the Public Protector has sought confirmation. So the issues on which the advice is sought is whether the contents of the letter from the Minister violates the provisions of the Constitution, whether the Minister has authority to demand the surrender of the evidence or the documents during the course of the investigation. I think that was the question that was asked earlier, whether the document was given, whether it is lawful and/or appropriate for the Minister to demand the names from the Public Protector’s Office. This was the advice rendered. So let's just go down and see what the answers were. And ‘Before I consider the various instruments, it is important to state at the outset that the Public Protector is well within her rights to first establish whether indeed the document described as “secret” is indeed so classified by the requisite authorities, the State Security Agency. Accordingly, and until these requisite authorities have so confirmed, it is premature to describe it as such or to threaten the PP or accuse her of any offence’. And then it explains what the office is. Go down. We’ve been through those things several times. Go down, go past the judgment. Go up, I just want to see what paragraph 12 says. Okay, no go down. Sorry. Go back down. 13 is the letter. Go down. We've read this letter. And then it's states, ‘There's a premise implicit in the statement of the Minister. First, it assumes that the document in the possession of the PP is indeed what it purports to be. Second, the statement asserts the PP had not alerted the requisite authorities regarding the document furnished to her by an unidentified complainant. This goes against the fact that the PP had addressed correspondence to the current IGI and subpoenas both the Minister and the IGI seeking confirmation that a report relating to the same subject matter was indeed in their possession. It is inaccurate of the Minister to allege that the PP had not alerted the requisite authorities. In any event, the Minister cannot expect the PP to assume, as a matter of certainty, that the document she has in her possession indeed a classified document. In the same letter, the Minister does confirm that the IGI requested the Minister to investigate these media allocations’. And the Minister states that the IGI, ‘“does not have this legal mandate”. Without traversing the entire legal analysis that follows after this paragraph, the contents of this paragraph leave the PP no wiser about the inquiries she made. If anything, the contents of the above, tells the Public Protector precisely the opposite, that the report she has may not be a lawfully classified document. I doubt that the legal treatise by the Minister comes any close to clarifying whether the document is indeed what it purports to be. It appears to me that the Minister proceeds, incorrectly in my view, to state that the Report in the possession of the PP contains identities of members, former members, sources, etc. It is not clear to me how the Minister makes his bold assertion about a document whose authenticity and legal mandate she disputes’. And then he gives his advice. ‘I am of the view that apart from the fact that the Minister has no power to interfere, it is premature to threaten that the PP has breached any statute. Equally, no intelligence legislation grants the Minister the power to make the assertions or threats she makes in her letter’. And then he sets out the PP’s powers. And then says, ‘In the event that an authentically and officially classified document lands her disk, she has to treat it in accordance with those provisions. The PP may well provide the Minister with a copy of the document in her possession and seek confirmation that the document is authentically classified. It is not sufficient for the Minister to merely state that the IGI could not have investigated the subject matter of the document in the possession of the PP without seeing the very document. It is equally incomprehensible how the Minister concludes that the document contains all these names, etc., and confirmed with the DG of SSA or the IGI that the document is the one classified by the SSA. Until there is more clarity from the Minister, the Public Protector is duty bound to proceed with the complaint before her. It is important for the Public Protector to cooperate with the SSA in its lawful execution of its mandate, but it is premature to simply give out names of staff members without an official explanation from the DG whether there is an investigation into the Public Protector’s staff, and what the subject matter is’. ‘In light of the above, I advise that the Public Protector write a letter to the Minister asserting her own mandate and clarifying the misconceptions and that the Public Protector must challenge the allegation that she has acted unlawfully by merely receiving a document from a member of the public. She's on record seeking confirmation. It is therefore premature to allege, as the Minister does, that the Public Protector has acted unlawfully. It is important for the PP to indicate her preparedness to cooperate with the SSA’. And 27, ‘Once the Minister and the IGI have confirmed the authenticity of the document, the Public Protector may then make an election as to how she should cooperate or engage with the SSA and the IGI in how to take the matter forward. I am available to explain if there are any issues for clarification in this regard’, and the date on the opinion is 25 February 2019. Okay, we're done with this document.
Chairperson: Thank you
Adv Bawa: So this opinion is after the length of the 20th and before the letter of the 22nd.
Chairperson: Thank you. You may proceed.
Adv Bawa: So that is the response of the Public Protector to the averments in Mr Pillay’s founding affidavit before the court in this regard. That is what the court looked at as what were the allegations that had not been denied, amongst others. So if we go down to the next page. Chair, I’m sorry, Adv Mayosi has confirmed that the Rule 53 Record was filed in September. I just wanted to double-check that. Then we've dealt with paragraph 67, and paragraph 68 is not responded to. So let's just go to paragraph 68 of the founding affidavit. ‘Not only did the report improperly traverse the operations of SARS in circumstances where the OIGI had no mandate over SARS, but the Public Protector also cannot rely on a classified document that she possessed and considered unlawfully’. And the response was, ‘The fact that Adv Radebe did not interview Mr Gordhan does not make out a case for the review of the PP’s report. Mr Gordhan is entitled to challenge the OIGI report if he is advised to do so. The allegations made against that the OIGI are irrelevant to this application. If Mr Gordhan wishes to challenge the report of the OIGI, he should have joined the OIGI as a party to the proceedings’. Go down. It’s dealt with again. ‘Mr Gordhan is not entitled to make adverse allegations against a party that he has not cited. That too offends the principle of audi alteram partem. It is denied that the PP was not entitled to rely on the report of the OIGI because of the reasons advanced by Mr Gordhan. The OIGI as Mr Gordhan have special constitutional duties to assist and protect the Public Protector in her investigations. The OIGI complied with that duty to assist in that regard’. And then if you go further down to the next part. Chair, I'm not for the moment dealing with, if you look at the last column. When we come and we do a legal argument, and once you've gotten all of the other information, then I'll deal with what the full bench judgment has to say. This is the judgment that Adv Mpofu took you through last week and several of these paragraphs you've had been alerted to. I simply want to do the exercise of taking you through the affidavits. So the fifth respondent in this application is the Minister of State Security, and files an affidavit. And says, ‘In an attempt to determine the veracity of the above complaint, the PP apparently sought more information from the current IGI. The PP states in the report that the information was attributed to a report authored by the former IGI, Adv Faith Radebe, dated 31 October 2014’. The Public Protector comes back and says, ‘The allegations contained herein are denied in so far as they reflect that I apparently sought more information from the IGI, I only sought to be provided with a declassified report to enable me to perform my duties as mandated by the Constitution and the PP Act’. Then he comes back and says, or the Minister comes back and says, ‘The PP expressly states that she sought more information from the IG. There is no other inference to be drawn’. That emanates from the report, Chair. Go down. ‘At the time of compiling the PP report, the PP concedes under and paragraphs 5.2.32 and 5.2.33, of the report, thereof that she was not furnished with the IGI report but nonetheless had it on good authority that the findings and the recommendations of the IGI report were that’, and then sets out what the recommendations were. The PP’s response was, ‘The fact that I had it on good authority what the findings and the recommendations of the IGI report does not mean that I was wrong in what the contents of the IGI report are and there is no evidence to indicate that the contents of the IGI report states otherwise’. The response comes back, ‘The first and second respondents are resolute in trivialising the negligent conduct in this regard. The fact of the matter is that the first and second respondent acted irrationally by not applying their minds to the IGI report in its entirety and are daringly admitting to having done so’. Go down. ‘The PP having obtained the above information “on good authority” concluded in the PP report that the evidence obtained during her investigation indicates that the OIGI report, found amongst other things that SARS created a covert unit utilising covert and intrusive methods in contravention of the SARS mandate’. Let’s just see what the answer is. ‘I have already alluded to the fact that in arriving at my findings, I have considered, inter alia, the IGI report. The IGI report was not the only source of information that informed my findings’. Go down. At paragraph 12, ‘I am advised at the PP’s remedial action against me as referred to in paragraphs 11.1 and 11.2 are incompetent in law for the simple reason that the recommendations in the IG report are incapable of being implemented. I am further advised that the erstwhile IGI acted ultra vires’. The response, ‘The allegations contained herein are denied. The remedial actions against the fifth respondent are competent in so far as there is no evidence contrary to the fact that SARS created a covert intelligence unit thereby overstepping its legislative mandate’. Go down. ‘An order was granted on 8 June 2022 reviewing and setting aside the impugned IGI report’, and the case number is 91160/19. And this is the application brought by Mr van Loggerenberg where it was stated that an order was taken by agreement. Public Protector was not cited. Public Protector responds and says, ‘the Public Protector complains that she was not joined and that the order was granted by consent’. Go down. In paragraph 41 to 43, ‘where she explains that the IGI unilaterally extended her terms of reference to include the investigation on the conduct of SARS who allegedly contravened SARS mandate and thus exceeded her power in terms of Intelligence Oversight Act’. PP responds and says, ‘The erstwhile IGI explained at length why the scope of the investigation has to be extended. It would have been remiss of the IGI to ignore the information about unlawful activities at SARS’. Go down. That's a note into the judgment, so leave that. Go down. ‘The reach of the IGI’s powers is circumscribed under section 7(7) of the Intelligence Oversight Act which expressly provides that such powers are to limited “services” defined in the Act, defined as the SSA, the Intelligence division and the South African National Defence Force. The erstwhile IG was not legislatively permitted to investigate the conduct of SARS members simply because SARS does not form part of “services” as defined in the Intelligence Oversight Act’. The PP denies these allegations. ‘The erstwhile IGI justified the extension of her mandate in that she explains that it came to her attention that there were unlawful activities taking place at SARS and she embarked on the investigations. In any event I have already alluded to the fact that my findings are not based on the reported of the IGI alone but also upon other factors as mentioned herein above’. ‘On her own version the PP alleges that the IGI report was not the only source of information that inform her findings and on the other hand she laments the setting aside of the IGI report by Mr van Loggerenberg. Therefore the first respondent can proceed in this review application and justify her recommendations, findings and remedial based on her investigations, and the other sources of information’. Go down. ‘Another issue that begs the attention of the court, is the fact that the PP formulated the remedial action without having sight of the IGI report and only “relied on good authority” for its contents. In other words, she framed the remedial action without applying her mind and/or being conscious of intricacies of the findings and recommendations of the IGI report. Had the PP engaged with IGI report beforehand she would have been aware of the legal complexities of the IGI report and would have not imposed such remedial action’. And that allegation, Chair, is not responded to. This is an allegation by the Minister that the Public Protector does not respond to. But she does say earlier in her affidavit, ‘The IGI report which the fifth respondent conceded should be reviewed and set aside was considered by the PP who had conducted an independent investigation confirming its findings on the unlawful establishment and activities of the SARS intelligence unit. She issued remedial orders in which the findings and recommendations of the IGI report are to be implemented’. Go down further. ‘By consenting to an order reviewing and setting aside the IGI report without citing the PP… the fifth respondent undermines the remedial action set out above. This deliberate action is intended to weaken the PP and her defence of her remedial action in this review application. The failure of the parties to join the PP to the proceedings was a deliberate misjoinder intended to sabotage and undermine the remedial action of the PP and the determination of the lawfulness of the remedial action in this application’. Go down. ‘The conduct of the fifth respondent should not be permitted by this court’, the fifth respondent being the Minister of State Security, ‘which must view it as an unlawful attempt to undermine the remedial action of the PP and to frustrate and interfere with the proper ventilation of this application. Finally, it is clear from my report that I made factual findings about the establishment of the SARS intelligence unit. I also made independent factual findings on the unlawful intelligence activities of the SARS intelligence unit. I stand by these findings’. Okay. So that's the papers of the Minister of Safety and Security, and the PP’s response to that. Then there's the interlocutory application. The interdict of the IGI report and the Minister's affidavit. The Minister ‘applied to interdict the disclosure of the report and strike out the reference to the report at paragraph 37 of the EFF affidavit. No mention is made of the PP’s possession of the report in this affidavit’. Go down. The Minister further says, further, ‘No mention is made of her affidavit that PP is in possession of the report or that correspondence passed between them. This application is made before the Part A judgment is decided’. Go up. And in this application, on 5 September, you will see Chair that it's even filed before the Rule 53 Record is filed. ‘I have read the interlocutory application and considered the relief sought by the Minister. I oppose the application for a number of reasons. The applicant undertook to provide me with a declassified report of the IGI to assist me in my investigation. The relief sought is contrary to that undertaking in that an interdict in the terms sought by the applicant would strip me of evidence necessary for the performance of my constitutional duties to investigate a complaint relating to the matter that is covered under the report’. The Minister responds, ‘The respondent fails to take this Honourable Court into her confidence and is deliberately misleading the court in so far as she states that I undertook to provide her with a declassified report of the IGI and infers that I failed to honour my undertaking. In this regard, the undertaking to provide the respondent with a declassified report was conditional upon her returning the classified and “secret” reports which she claimed to have received anonymously. I undertook to commence the declassification and redaction process on receipt of the report from the respondent. However, the respondent failed to provide me with the report in question’. Chair, this follows on the correspondence to which you were taken earlier. Go down. Further, the Public Protector said, ‘The report was relied on by me in my report. The interdict sought by the Minister would amount to interdicting the “release, publication and/or public access of the PP’s report” to the extent that I refer to and rely on the OIGI report for some of my findings and remedial action. I refer to and rely on the OIGI report in a number of findings’. The Minister says, ‘The onus on the respondent to initiate the process by returning the report to its lawful custodian being the Minister of State Security. I deny that the relief sought would strip the first respondent of evidence necessary to perform her constitutional duties of investigating a complaint relating to the matter covered under the report. I specifically deny that the relief sought would amount to interdicting the “release, publication and/or public access of the Public Protector’s report” or an order for an interdict would be contrary to the unlawful or be contrary to the provisions of the Public Protector’s Act. I respectfully submit that the first respondent fails to take the above Honourable Court into her confidence, in that, she does not refer to the specific and relevant provisions of the PP Act upon which she relies for this proposition. On the contrary, I have been advised, which advice I accept, that the Minister of State Security is the lawful custodian of the report’, and cites the provisions. ‘I also deny that there is no legal or constitutional basis upon which it is justifiable to interdict the release, publication and/or public access of the report. The Public Protector is enjoined,’ and set out those provisions and says, ‘to take account of all the laws of the country inclusive of those provisions set out in the Intelligence Services Act, which provides’, and then they set out those provisions. ‘The second respondent is obliged to dispatch a record. She should have done so by dispatching a declassified report and/or requesting the office of the Judge President to receive and keep the report pending the process of declassification and redaction. I also reiterated the fact that the report is already in the public domain does not mean that the document has lost its status as a classified “secret” document’. The Public Protector then says, ‘The applicant’s conduct in terms of this application undermines the effectiveness of the Office of the Public Protector by failing to declassify the information she promised to declassify and then using her powers to issue blanket refusal of access to the report. It is also very important to be alive to the reality that members of the executive and others who have been investigated by the Public Protector are likely to adopt an obstructionist posture and the classification of documents could be one such tactic used to deny access to evidence’. Let me just go to the response. Go up. At paragraph five the Minister responds to this averment. ‘The Minister of State Security could not have been expected to declassify the report/information which is in the Public Protector’s possession, due to the Public Protector’s refusal to avail the copy in her possession’. Go down. ‘In the course of investigation, I interacted with IGI. I did so because I got information that she had conducted an investigation into issues relevant to my consideration of the complaint. I was investigating the facts of the complaint, in particular whether as a fact, there was an intelligence unit established and operating in SARS. I refer to my interaction with IG on page 49 at paragraph 5.2.27 of the report’. Go up to column three. ‘I specifically deny that I made false promises to declassify the document or that I reneged on my promises. I reiterate that the onus on the respondent to provide me with the report in her possession, which she has to date failed to do’. Go down. ‘The IG does not deny the existence of a report that could be helpful in my investigation. She stated that the IG report could be requested from the Minister as the lawful custodian and of that report. I reflected that on paragraph 5.2.28 of my report’. Minister then says, ‘It has now become clear that the first respondent has always been aware that the Minister is the lawful custodian of the report. Yet, despite the knowledge, the respondent fails and/or refused to furnish me, with the report in her possession and to follow due process in declassifying the document. It is clear that the respondent has no intention of copying or following rather the due process and is acting without regard as to her duties within the limits of the Constitution. Save for the foregoing, the remainder of the contents of this paragraph is not within my knowledge and are accordingly denied’. The PP says, ‘The Minister of State Security, in response to my request for information on my investigation and the IGI report, offered to request the IGI to provide me with a declassified copy of the IGI report. Despite this undertaking, my office did not receive a declassified report either from the Minister or the IGI. I reflect that in paragraph 5.2.29 of my report’. The Minister says, ‘From the correspondence between the erstwhile Minister and the respondent, it is clear that the erstwhile Minister did not refuse to declassify the report in the second respondent’s possession, but sought its return in order to initiate the declassification process’. Go down. ‘When Minister Dlodlo was appointed as Minister I addressed a letter to her dated 25 June 2019, requesting a declassified copy of the report. I went as far as requesting President Ramaphosa to assist in providing my office for the declassified copy of the of the IGI report. I deal with it in my interactions’, and she sets out the paragraphs. The Minister says, ‘Save to admit that I was requested to furnish a copy of the declassified report through a letter dated 25 June 2019 and the interactions which she allegedly had with the President as contained in paragraphs 5.2.29 and 5.2.32 of her report, I deny the remainder of the allegations contained in these paragraphs’. Go down. ‘In the Public Protector’s report dated 5 July the respondent states at paragraph 5.2.30 that: As per my letter dated 25 June 2019, I will be requesting the new Minister of State Security, Ms Ayanda Dlodlo to avail the declassified report to my office. Before I could respond to the respondent’s later of 25 June 2019, the respondent issued the report on 5 July 2019, wherein she made a remedial order in paragraph 8.3.3 to the effect that I must: “Within 14 days of the issuing of the report avail a declassified copy of the report”’. Go down. ‘Consequently, on 15 July 2019 I requested an extension in writing on until 31 July to obtain the advice of counsel and consider the remedial measures in paragraph 8.3.3 of the report, which was granted by the respondent. However, on 29 July 2019 Potterill J ordered that the remedial action in the respondent’s report be suspended and that the respondent is interdicted from enforcing the remedial action until the final determination of Part B’. Go down. ‘On 1 August I requested an urgent meeting with the respondent in writing, which was convened on 2 August during which it was emphasised that the issue of declassification of the IGI report will be dealt with in the interlocutory application’. The Public Protector says, ‘The classified IGI report was provided to me by an anonymous source. I needed the relevant Minister to declassify the IGI report, not because I am not entitled to access or use a classified one. In law I am entitled to access any document, whether such document is classified or not. I sought to have the OIGI report in my possession declassified because I wanted to ensure that I could utilise the document for purposes of conducting my investigation without the constraints of its classification. Having been given the undertaking by the Minister that I would receive the declassified IGI report, I was entitled to rely on that undertaking for purposes of conducting my investigation into serious matters involving the complaints’. Go up. The Minister responds, ‘The contents of this paragraph are denied. I specifically deny that the respondent received the report anonymously and put the respondent to the proof thereof. I accept that the Public Protector is entitled to access the report. What she is not entitled to, is to be in unlawful possession of a classified report that she received unlawfully. The second respondent is not allowed to be reckless and disseminate to the public a classified unredacted report that has the consequence of endangering lives to the prejudice of our intelligence operatives, their families and our intelligence gathering methods’. The PP says, ‘I do not know where the EFF obtained a report attached to its papers’. Chair, you will recall that part of the relief sought was because the EFF had attached the classified IGI report to their affidavits in these proceedings. ‘I have the IGI report which will form part and parcel of the Rule 53 Records. In my report I correctly reflect the findings of the IGI report in paragraphs 5.2.33 and 5.2.34 of my report’. Then the Minister says, ‘The respondent concedes that the fact that the report was classified, placed restraint on her. However, despite being fully aware of the restraints, the respondent alleges that she was entitled to rely on the report’. The PP says, ‘I'm aware that Mr Gordhan and Mr Pillay have dared me to explain my references to the IGI report, in particular how I obtained it. I shall deal with their concerns when I deal with the review application’. And I've already taken you through the paragraphs showing you where she dealt with those concerns in the review application. ‘Suffice for now that I am authorised in terms of my legislative and constitutional powers to have access and regard to any document, or report for the purpose of performing my constitutional functions. The classification of document by the State does not constrain me in the performance of my constitutional function’. Go up. ‘Once again, the second respondent ignores the obligation placed upon her by security legislation. She cannot willy-nilly endanger the lives of our agents and their families as if their lives do not matter. The second respondent can also not act in a manner that is detrimental to the constitutional obligations of the SSA with regard to the security of the country’. Go down. ‘If the IGI report is interdicted and expunged from the court record, my report will be stripped of crucial evidence relating to the matters that I cover in my report. Furthermore, the Honourable Court will be deprived of very important evidence on which to reflect on my following findings, which are being challenged by Minister Gordhan and Mr Pillay’. And then she sets out two of those findings that we are familiar with that is contained in a report. Go down. I just want to finish this section before reading what the Minister says. It's for three of the items. Go up to column three. The Minister says, ‘The second respondent’s understanding of Rule 23 of the Uniform Rules of Court together with declassification process is misplaced. The report in its current form should be expunged from the current record simply because it has not been declassified or redacted, nor the illegal possession thereof been sanctioned. Secondly, a declassified and redacted report will be available and made part of the record’. So here Chair, the Minister undertakes to provide a declassified report to the record. The Public Protector says, ‘These are the findings that I made in my report which appear from pages 58’, and she sets it out. ‘The Honourable Court determining the validity of my report in the review application must determine whether my findings and remedial action was unlawful, irrational or biased, by having regard to the content of the OIGI report. To expunge a critical source of evidence relevant to the determination of the review application would be unfair to the court, the complainants and the public. It would also be unfair to me in then it would open my report to unjustified attacks’. Go up. Chair, we do know that the complainants never got the report. ‘The endangering of the lives of operatives, their families and knowledge of our systems and procedures, as regards intelligence gathering, would be unreasonable, unfair and simply wrong. The safeguarding of our members, agents, sources and collection methods is imperative for the future functioning of the SSA. The Public Protector’s report is a subject of review proceedings and her findings will be dealt with appropriately at a later stage’. And then the Public Protector says, ‘I was entitled to have regard to the findings of the Inspector General, as contained in the IGI report for the purposes of conducting my constitutionally sanctioned investigation relating to this matter. This means that the Honourable Court must have regard to the entirety of the record, including relevant reports of any other constitutional legislative body, which I considered for the purposes of my report. The Honourable Court must have regard to the legal opinion of Trengove and Nxumalo; the Sikhakhane report; the KPMG report; the affidavits of persons who were approached by me; the court judgments that I refer to; the legislative and constitutional provisions; the evidence submitted to me by SARS and the submissions made by different persons and entities on the subject matter. To exclude the OIGI report which is directly on point in relation to the issues would be unreasonable, unfair and simply wrong. The Inspector General's word on matters in dispute in the review application is critical since the office is established for the specific purpose of investigating and monitoring the conduct of intelligence services and their activities. It is a strategic and critical body created to ensure that intelligence services operate within the law and are accountable for their intelligence activities. I admit that the IGI report is a classified report. The purpose of the IGI report is to bring the attention of the court’s understanding why I made the findings that I made’. ‘The second respondent does not seem to understand the legal consequences of being in possession of a classified secret document, yet she concedes that the IGI report is classified “secret”’. And then the PP says, ‘The remedial action was made on the back of an undertaking by the Minister to provide the declassified report’. The Minister responds, ‘I take note of the offer made in these paragraphs. To the extent that the first respondent seems to suggest that the Minister should be directed on the manner of the redaction and the declassification of the report and/or which portions of the report should be redacted, I respectfully submit that this is completely unacceptable and inappropriate. The OIGI reports findings are not the nub of the problem but the status of the document. I take no issue for purposes of this application with the findings as I will deal with what the second respondent makes of the findings at the appropriate time’. So Chair, what isn't included in the column is that there's a tender to remove from the report all names or any sensitive information that the Minister deems to be removed for business of declassification. The Minister then says, ‘I like tender to make available to the Public Protector a declassified copy of the IGI report. I note specifically that in paragraph 39, the respondent concedes that she made the classified document public without necessary safeguards. In this regard, I submit that the respondent was reckless and acted without consideration for due process’. We're not going to the next section. So Chair, that is, in a nutshell, the submissions relating to the OIGI report reflected in the affidavits before the full bench. We have dealt with it to that to that extent, in that regard. And that's how far we've come in being able to assist the Committee. We have other aspects of the matter. For example, we've done two other bits of work but we're not in a position to share that with the Committee yet. One, the Committee would be aware of the extent to which the Public Protector’s report has relied on the reports prepared by Adv Sikhakhane and the KPMG inter alia, and what is the position in respect of KPMG and other reports visa vie what's contained in the Public Protector report. On the understanding that we had been preparing for purposes of cross examination, as opposed to this exercise. And doing that, and the purpose of doing this exercise was sort of assisting the Committee in taking what is voluminous paper and condensing it into bite-sized pieces. And we’re in the Chair’s hands as to how much further the Chair would want us to go in this regard.
Chairperson: Okay, thank you very much Adv Bawa. Maybe at this point we'll take a tea break for 15 minutes. We’ll come back after tea. Thank you.
Chairperson: Welcome back colleagues. Thank you. Maybe just before we wrap up for the day. I'm going to ask Adv Bawa. There’s something that she needs to clarify.
Adv Bawa: Chair, The context of what we presented to the Members is effectively the substance of the evidence on paper. We would have to take another, we’d have to take it a step further, which we would only do after either questioning of the Public Protector or some sort of an argument to place it into the context of the motion before the Committee, and deal with in the context of any other relevant case law or law that would apply. That would ordinarily happen afterwards. This is not a, what we've done today is not a substitute or is not our closing argument. And I don't want the Members to misunderstand it to be that. We would probably have included a lot of this analysis on our paper to the Committee in a couple of weeks time, because this evidence that we put to the Committee today was already evidence before the Committee. It didn't have to be led in any particular way because they’re all on affidavit. Thank you.
Chairperson: Thank you Adv Bawa. Honourable Members, at this point just to indicate that we have started this exercise since Monday. I do hope that you would have found it very useful. I'm encouraged that since Monday, from beginning to end, it has been full house with Members listening in and obviously taking copious notes about what would have been unpacked, just based on the evidence that was presented to us. I repeat, over six days, covering two charges. We want to propose that we pause and end here, and then resume next week. Next week, as you know, we are scheduled, even though it is a constituency period, we are scheduled, and the week thereafter. So that schedule has not been changed or removed. Obviously, it's a schedule that doesn't start on a Monday, because we’ve got Easter Monday. The schedule that starts on a Tuesday. Maybe to indicate to you that, though, as a Committee and as a Chair, we have stated this upfront that we’re not one of the role players to intervene and assist on the issue of legal fees that was raised. We've been monitoring that space. Where facilitation is needed, that gets to be considered. To indicate that as part of us monitoring that space. We are assured by role players who are involved there that there remains serious work being done to ensure a speedy conclusion of the matter. So I'm saying that so that you know that when we resume next week, Tuesday, it's with two possibilities, of either resuming the enquiry itself or completing this exercise. And so the next few days, starting later today, tomorrow we would have a clearer indication. Members would have to stay close to their emails, even though it’s an Easter weekend. So that when there's an indication, you're well prepared about either of those kinds of situation. And I've also taken note of some of the suggestion that some of you as Members have said about perhaps what else and how. I’ll share that with Adv Bawa. How some of the things can be packaged. So that's what I want to raise. Maybe before I close, any member who wants to say something? Hon Jane Mananiso.
Ms J Mananiso (ANC): Thank you, Chairperson. Mine is just to say that I agree with the proposal that we pause and then we'll continue next time, and we'll be informed about any updates. Thank you.
Chairperson: Thank you, Hon Mananiso. Hon Siwela, you joined at half past nine this morning. So you are the first Member to join. That's how sharpshooters do. I now recognise you.
Ms V Siwela (ANC): Thank you, Chairperson. I don't want to be whipped or thrown out. I must be responsible. And thanks Chair for this session. It has been useful for us. I agree with the view that it be packaged for us as it has been so useful, and we really enjoyed it. Having this process smoothly without any interruption. It was excellent to us. So I agreed that we pause and then resume next week. Thank you, Chair.
Chairperson: I hear you. You are enjoying the absence of disruptions. Thank you, Hon Siwela. Hon Dlakude.
Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. Indeed I fully agree with yourself and my colleagues. The exercise was an eye opener to us. It made things clearer and more clearer. So we really appreciate it. So we'll be ready for next week, Hon Chair. I agree fully with your closing remarks, if I may say so. We will await for those emails and then we'll take it from there. Thank you very much, Hon Chair.
Chairperson: Thank you Hon Dlakude. Hon Sukers.
Ms M Sukers (ACDP): Good afternoon Chair. Good afternoon to all my colleagues as well. Mine is just Chair, to wish everybody a blessed Easter and trusting that everybody would enjoy the time with their families, and in one of the most important celebrations of our Christian faith. So I just want to wish to all my colleagues and especially to everybody who follows our proceedings as a Committee and to you Chair. Thank you, God bless.
Chairperson: Thank you, Hon Sukers. We appreciate that. And I think the fact that we also have an extra day in between is in line and consistent with us going and recharging spiritually, physically and connecting also with members of society and our families. Thank you for that. With that Hon Members, if there is no other member, I think that is where we're going to leave it. Thank you for your patience and participation. The meeting is now adjourned.
Documents
Present
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Dyantyi, Mr QR Chairperson
ANC -
Dlakude, Ms DE
ANC -
Gondwe, Dr M
DA -
Hermans, Ms J
ANC -
Joemat-Pettersson, Ms TM
ANC -
King, Ms C
DA -
Luzipo, Mr S
ANC -
Mananiso, Ms JS
ANC -
Maneli, Mr BM
ANC -
Mgweba, Ms T
ANC -
Mileham, Mr K
DA -
Nkosi, Mr BS
ANC -
Seabi, Mr M A
ANC -
Siwela, Ms VS
ANC -
Skosana, Mr GJ
ANC -
Sukers, Ms ME
ACDP -
Tlhape, Dr ME
ANC -
Tseke, Ms GK
ANC -
Van Minnen, Ms BM
DA
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