The Section 194 Committee unanimously agreed to adjourn proceedings until 15 May after the suspended Public Protector, Adv Busisiwe Mkhwebane, appeared without legal representation, saying she could not obtain a legal team as the additional R4 million recently made available for her legal fees was “unrealistic and absurd”. Since July 2022, she has spent R30 million on legal representation before this Committee.
While Committee members agreed that it would be unfair to continue the hearings without the PP having legal representation, the R4 million budget made available by Public Protector South Africa (PPSA), should be sufficient to complete her testimony and the impeachment inquiry.
Adv Mkhwebane noted she had approached the Constitutional Court to order PPSA to supply more money to pay for her team of lawyers.
Chairperson: We continue with the resumption of our Inquiry on this day, the 8th of May 2023. We are welcoming you at Room S12A in the National Council of Provinces (NCOP) building. I want to take this opportunity to welcome Members here at S12A, as well as Members on the Virtual Platform. I want to take this opportunity to also acknowledge and welcome the Public Protector, here with us at the venue; acknowledge and welcome Evidence Leaders, Adv Bawa, who is with us. To members of the media joining on their various platforms, our entire support staff, who have always been with us with an able hand; the members of the public, in your various platforms, YouTube and 408; I want to welcome all of you, colleagues, and say to you that we are back with the Inquiry. The last time we spoke, in our last meeting, I had indicated a few things which I want to recap before we start our proceedings. I indicated that when we paused the Committee sessions that we would be meeting in the next week or two. I indicated that the next week following that be a week where Members were on leave. And I indicated Members should be on standby – that we could resume at any moment. I further indicated that once we resume, it will be in an environment where there is a stampede of programmes. I did say that budget votes resumed; that is exactly what is happening. Budget Votes are resuming this week, so there is a stampede of activities. I said that even with that the work of this Inquiry will continue. And I asked Members to prioritise knowing that they have got other business and other Committee commitments. It is for that reason that you find yourself here today at S12A. So we have not fallen off the stampede but, we are here in this venue because M46 is going to be very active with the Budget Votes on any given day between now and when they conclude whether it is in the morning or afternoon. And given the fire disaster, it seems to be the only venue that is big enough after the Good Hope Chamber. And of course, it is quite now a demanded venue because of the work that we are doing. So just a recap on that. I also would have, in closing that meeting, indicated that we were being kept abreast of the work that was being done by those relevant role players who are working very hard to ensure that we resume our work and that any other issue that could have been a challenge or a problem was being attended to. Meeting here today and resuming our work, now therefore demonstrates and we were copied into a letter from the PPSA – copied as a Chair in that letter, which has been shared with you. What has been a problem of funding has now been made available for the completion of this process. One of the things I said when we… In our last meeting, I indicated that when we will resume for the completion of our work, we will not resume to prolong what we are doing. We will resume to conclude what we started in 2022. We remain focused on that task, as we re-gather here, today. And so from the Chair, I do want to thank those relevant role players who have ensured that the work of this Inquiry gets closer to a conclusion. Those role players will include our Honourable Speaker, as well as Treasury, in making sure that we are here today. But I also indicated in that meeting, as I closed that meeting, that once there is an indication of the availability of funds, that we would issue a revised programme. We were holding back on that revised programme subject to that availability of funds. So Hon Members and everybody else we now have received that revised programme, based on the outstanding work that must be done, but as well the availability of those funds. The revised programme that you have received, altogether, gives us 22 days of work of this Inquiry, from today, until when we have to conclude. We have been thoroughly explained that we have what seems to be available, and that there does not seem to be anything more than what has been made available. I did also indicate that when we resume in terms of the timelines and the programme, we will resume and conclude the remaining four days of leading evidence in chief by Adv Mpofu or the legal team of the Public Protector. You will be aware that by the time we paused they had presenting testimony and evidence for six days. You are aware that we received two parts of an affidavit or statement, part A and B. And we have had those now for close to two months. So I did indicate that that revised programme, when we resume, we’ll be kick starting those four days to conclude the testimony of the Public Protector and thereafter go to the Evidence Leaders, Members, closing arguments, draft report writing, audi process, and then the tabling of our report to the National Assembly (NA). And so we gather here today, colleagues, having issued this invitation for this meeting. There has been correspondence that we received from the Public Protector. I am going to take an opportunity to give the Public Protector a few minutes to take us through the correspondence that she has written to the Committee or any other remarks that she wants to make before we resume as planned in the programme. So that is really the purpose of our resumption of our work going forward. Before I go any further, I see the hand of Hon Mileham?
Mr K Mileham (DA): Thank you, Chairperson. I am informed that the sound levels on Zoom are problematic. There is an echo and it sounds like it is underwater. I just wanted to bring that to your attention, Chair.
Chairperson: Thank you, Hon Mileham. Maybe we can test that. Hon Members who are on the Virtual Platform; Hon Sukers, can you hear us?
Ms M Sukers (ACDP): Yes, Chair. I can hear you. Good morning, Chair and good morning to everyone in the room. I can hear you.
Chairperson: Thank you. Hon van Minnen?
Ms B van Minnen (DA): Thanks very much. Morning, Chair. The people on the platform I can hear, like I could hear Hon Sukers clearly, but for both yourself and Hon Mileham, there is a nasty echo but I think it is probably coming from the way the room is built, more than anything else.
Chairperson: Okay, let me go to the next Member because Hon Sukers seems to not have that problem. Hon Holomisa?
Mr B Holomisa (UDM): Thank you, Chairperson and colleagues. I can hear you, Chairperson but if you are having troubles you should go and sit in a tent outside.
Chairperson: Thank you, Hon Holomisa. He says he can hear very well. Hon Dlakude?
Ms D Dlakude (ANC): Morning, Hon Chairperson, Hon colleagues. I can hear you loud and clear, Chair.
Chairperson: Okay. Hon van Minnen, you might need to reposition yourself and sort out whatever that you have there. All other Members seem to be connecting well with us, without any echo, so just check if you do not have many gadgets opened there, where you are, and then fix what you need to fix. Hon Xola Nqola?
Mr X Nqola (ANC): Yes, Chair. I do not think that there is really a contradiction. The issue is we can hear you but there is that kind of echo. It sounds like it is at your back. I think I agree with the Hon Member that says it may be an issue of the room. Otherwise, we do hear you.
Chairperson: Alright. Well, I am going to ask that they switch off the air conditioner and see how that works. Yes, there is a small sound of the machines. I am sitting next to machines, so maybe that is… but as long as you can hear me. We will try and see how we fix it, so that… Have you switched it off? Okay. It is not the aircon, it is the machine that must be on. There is no way we are going to switch it off. So let us see how we soldier on within that process. Thank you. Thank you, Hon Members for that. Thank you, Hon Mileham, so that we do not have glitches. Members will indicate if it is getting worse or so. With that, colleagues, I want us to then start.
Public Protector, just to indicate that you remain under oath as the person on the stand. I want to now hand over to you to make your remarks.
Adv Busisiwe Mkhwebane: Thank you, Chairperson. Good morning. Good morning to the Members of the Committee. Good morning to the public, to the Evidence Leaders, everyone who is on this platform. Chairperson, I decided to attend the meeting physically today because last time I was here on 3 April, I appeared virtually, when you shouted at me and you muted me. I must indicate that this came as a shock because the Evidence Leaders were allowed in the so-called Committee meeting, whilst I was kicked out. This inquiry is about my possible removal from office. So it is strange that I can have any… or it can have any business without me. So what I wanted to tell the Committee on that day was, firstly that the so-called Committee meeting was illegal and that the responsibility for affording me legal representation was not on my – in fact, it was not by me personally, but it was the decision of the Constitutional Court. Chairperson you, when Members raised the process, or some of them, decided to continue with the Inquiry. You stated publicly that I would be given an opportunity to respond to the 6-day presentation of the Evidence Leaders; that has turned out to be not true because the proposed schedule you released last week does not cater for that right of apply. Secondly, you have unilaterally decided that all my outstanding evidence must be finished in four days, irrespective of the major topics which we will still have to cover: the CIEX matter, the Vrede matter, HR related matters; of which 15 witnesses were called over a period of approximately 25 days. And I am expected to respond to that in four days. The worst was the recent decree from above that it has been unilaterally decided that my legal representation must be limited to R4 million, which is the surplus from PPSA. I must indicate, Chairperson, that process was determined, yes, with everyone trying to locate funds to deal with the process. But it is so unfortunate that I have to come here before the Committee so that we can deliberate on this matter, to remind the Committee on what process is being followed in appointing a legal representation. Remember the letter which was written by the Deputy Public Protector to me, on 1 March, copying you, the Chairperson of the Portfolio Committee on Justice, and the Speaker. Further, there was the letter written by the CEO of the Public Protector to Seanego Attorneys, informing them about not having funds to continue beyond 31 March. So that is the key issue which we need to discuss here. And I must indicate that at the beginning of this process, I was still in the office. When you wrote to me after the judgment of the Constitutional Court (ConCourt), you asked whether I will have any legal representation and who the legal representation is. I was still within the office. I had to request the CEO, as the person who is responsible for appointing a legal representation. And by then, Seanego was busy with all the litigation, and legal services and myself, we then agreed that they will proceed with this Inquiry. Then the attorneys are the ones who are briefing the advocate, and that is when they also asked which advocate I would prefer to use, which was then Adv Mpofu. And a letter was written to you and the Committee and we informed you about a legal representation. Currently, I do not have any legal representation. In any event, on Friday, the Committee was served with an urgent court application to resolve the impasse of the funding and the illegal Committee meeting. We cannot go forward before the issues are resolved. Why I am saying that: your letter, Chairperson, your interviews where you were saying, you know, the ConCourt judgment, including the Speaker and even the President saying the ConCourt was not specific on who should be funding my legal representation. So that is an opportunity for them to clarify that. And I also want to indicate that the letters which were written to the Speaker was… because this is a Committee of Parliament and I am accounting to Parliament and I had expected the Speaker to consider that very seriously, considering the fact that this is a Committee of Parliament, that you also decided to not assist in intervene in the process. And as you would know that the issue of my unlawful suspension is still pending before the Constitutional Court, especially after the unlawful suspension by the President, which the Western Cape High Court decided on 9 September 2022, that I should have returned to work. And (the) DA and the President and the Speaker applied for an agent application. Unfortunately, it is up to six months now. I am still waiting for that particular urgent judgment, which I think was going to help in resolving the impasse and the violation of my right to work and human dignity. So I think on that particular issue, I will also be raising a serious complaint or a formal complaint with the JSC (Judicial Service Commission), especially on the delay on this matter. But that is another issue which I will deliberate. Coming back to the legal representation, how it functions. I hope the Evidence Leader or your legal services should have advised you, Chairperson, that writing that letter and terminating or then saying there is no funds for the legal team to proceed, basically was terminating the mandate of my legal representation. And that was done by the CEO of the Public Protector, who is the accounting officer and responsible for the finances of the institution in terms of the PFMA. So firstly, the profession, I think, possibly even the Evidence Leaders should have empowered you. They were briefed by the state attorney. The same applies with my legal counsel. They were briefed by the Seanego team. In public administration, the CEO, who is the accounting officer, is responsible for that particular process. So in this particular issue, I wonder why, Chairperson, I was expected to come back and we are proceeding today. The matter now is that you would ask what have I done, and I asked why copy Seanego when currently they are not my attorneys. The SC (senior counsel) currently is not my SC, as far as this matter is concerned. What should be happening is that Public Protector, South Africa, which I have also then, after receiving the letter, which I did not receive on 2 May, but then finally I managed to receive, it because I was surprised by your letter, when you were saying there is money and we are proceeding and as per the letter of the Deputy Public Protector. So I then inquired from the Public Protector’s office, especially on the issue of the travelling arrangements, because I understand there is this meeting, and I understand there is money which is availed. And then that is when the Deputy Public Protector responded and said they have written a letter, actually, even travelling with my protector, it should come out of that particular R4 million, including accommodation, including everything. And I have seen where I am even told to handle this money properly. Firstly, let me start by saying I do not handle any finances as the executive authority. I do not appoint any attorneys as the executive authority. The Public Protector, South Africa, they did the process initially, they entered into an agreement with Seanego because Seanego was part of the panel of attorneys on the list of the Public Protector. And they then agreed on the fee structure. They then signed the agreement with Seanego. In terms of the PFMA, that is the process they should be following. So we cannot just have R4 million which is just being availed and there is no accountability. In some letter, I am told I must handle this money properly. I do not handle monies. I expect the Public Protector, because when I communicated with them, I even requested the list of the panel of attorneys, which was shared with me, I think, on Friday midnight or Saturday around, I think, 12am. And for me to check who is the panel of attorneys, which is there, whether Seanego was still there, because basically that termination of their service by the CEO, it means that they need to sit down with Seanego, if it is Seanego because again, it should be the legal team of my choice. Seanego should be briefing the legal counsel. So basically then, Chairperson, I am sitting here. I do not have the legal team to represent me. And I am accounting to Parliament. I am here. And again, you have received the necessary court papers. And I think you were asking why they can not proceed with the matter pro bono as they are doing. Unfortunately, this is a parliamentary process; you wanted to hold me to account, and the process has already started. The ConCourt has already decided that you should be availing legal representation. And they have done a lot actually, which they were not supposed to do, because all these other matters are dealt by them because I do not have the resources. And that is the only way I could exercise my rights as a citizen of this country because if my rights are trampled on, I will have to go back to the same courts. Some of them they do indeed, listen to me. Some of them, they feel it is fine for me to continuously to have my rights being trampled on. So the lawyers have not indicated that they are willing to proceed pro bono. You would ask whether I communicated with them. I have not communicated to the Seanego director, specifically, but informally engaged with the legal team. And it is not to say we are engaging on them coming back. So I think, Chairperson, the proper way forward in this matter is that the Public Protector should start that process. I think you would also want, and even the Auditor-General would want to know, how that R4 million which is availed is going to be utilised, because the attorney must properly be briefed; the attorney must properly then appoint the legal representation, which legal representation indeed, to make matters quicker, is to, indeed, brief the current SC or counsel. But I cannot do that myself because I am the executive authority, I do not have the right to do that. Surely, yourself, I do not understand how you operate, but properly you cannot, as a Member of Parliament, engage and tell what the Evidence Leaders must be doing. You, through your legal services, communicate to state attorneys (then) state attorney engages your counsel on what needs to be done and on the briefing which needs to happen. So I would really indicate before this Committee is the proper way of doing that. And lastly, Chairperson, I think, is the issue of the current arrangement, which is there, because the Deputy Public Protector writing letters to me, and well, as well, instructing me how to handle the matter. I am the Public Protector of the country, I should be engaged properly. And hence I am saying I am not willing to engage myself in an unlawful and illegal process, which will put the institution to further scrutiny on how the money is being utilised. So I think it is very critical that the Committee has an oversight, and Members of Parliament should then plead with them also to make sure that they follow the proper process. So attorneys should be properly briefed, since they terminated the service. And they wrote a letter to them on the 31st, actually before the 31st – I think the 30th of March – where they said to them, besides the letter which was written by the Deputy Public Protector, which I responded to, that, indeed, they do not have money, they cannot continue beyond that. But they were asking how much they need, which is the proper way of asking to complete the process, this final process. And they could not respond because it was when there was no agreement with their backroom meeting on the days of my testimony, the dates which are available, and then I think that was on the 30th. But on the 31st, they even indicated and stressed that irrespective, we do not have money. So that was what transpired, Chairperson. So I am here. I do not have legal representation, and I will ask and plead with you to let us postpone this hearing; let PPSA follow the proper process; appoint the attorneys; agree on the terms and conditions; appoint and brief the legal counsel, and then we can indeed proceed with the hearing. Thank you.
Chairperson: Thank you, Public Protector for the presentation you have just made. Members, maybe this is what I am going to want us to do. I am going to give you an opportunity, as Members, to briefly interact with this, and after that, in your responses to that, I will then come back as a Chair and make a ruling on the matter. But I do want to invite you if you have any issues you want to raise, having listened to what I indicated is the purpose of us being here today and the response of the Public Protector. I invite you for that opportunity. I just see hands. Hon Mileham. Any other hand of Members who wants to either raise clarities or questions or any other comment you want to make in this regard? Nothing on the virtual platform?
Mr B Nkosi (ANC): Chair, I am unable to raise my hand. My name is Bheki Nkosi.
Chairperson: Okay, I note you, Mr Nkosi. Hon Nkosi followed by Dlakude, Maneli. Any other hand?
Mr Holomisa: I am here as well, Chairperson.
Chairperson: Alright. I have now seen those hands. Thank you, Members. I now proceed. Hon Mileham?
Mr Mileham: Thank you, Chairperson. Chairperson, I have two issues that I would like clarified. The first is, it is my understanding, and I think I got this from Parliamentary Legal Services, that the judgment affording the Public Protector legal representation said exactly that, that she was entitled to legal representation, but it did not require Parliament, or any entity or state to avail, which are the words that the Public Protector used, legal representation to her. And so I would like that corrected, if that is indeed the correct understanding of the matter. The second issue, Chair, I would like clarified and I am not an attorney or an advocate, but it is my understanding is that what happened in this particular instance, is that the money ran out. As such, we basically hit a pause button as far as the Public Protector’s legal representation was concerned. And so we are now resuming – it is not a case of going back out for a new procurement process, a new legal representation or anything like that. It is a case of resuming because the funding has been found to continue. I would really like some clarity as to whether my understanding is in fact correct. Thank you, Chairperson.
Chairperson: Thank you, Hon Mileham. Hon Nkosi?
Mr Nkosi: Thank you, Chairperson and good morning to the Public Protector and the Members present. Chair, I think I have heard you properly, and for me, I think as a matter of principle, the moment we involve ourselves, as a Committee, in the funding arrangement of the Public Protector’s legal representation, that is when we embroiled ourselves in this difficulty. Now, there is an expectation that we should assist and resolve matters that are really not in our purview. And that difficulty will continue as long as we think we have got the ability to do so. However, because we have done so and maybe set precedents, perhaps we should assist. I do not agree with that. My understanding, Chair, is the following: that one, the Public Protector lacked funding, that funding has been availed because of the processes that were entered into between that office and yourselves and the Speaker. We now have that funding, we have R4 million. And my understanding is that is all that is available to assist this process to come to (a) conclusion. And I think we should stick to that. There is no additional funding that is available. And we should stick to that R4 million. That is the budget allowed (to) us. The second thing, Chair, is that where we are, all evidence has been presented to this Committee in writing, particularly by the Public Protector, so it is there, it is written and available to us and accessible to anyone who wants to go through the evidence. So all that is needed is to lead the final part of that, I think it is about 120 pages that is left. And I think in the period provided, it should be possible to do that, including what we have outlined would be cross (examination) by the Evidence Leaders and the questions from Members and audi to the Public Protector and thereafter report writing. So, I think that the period permitted is very, very important. The next issue, Chair, is whether we continue at this stage with the process without the Public Protector being legally represented. I would have a problem, Chair, if we were to continue without legal representation of the Public Protector because that would not indicate fairness on our side. And therefore, my suggestion is as follows: that we allow the Public Protector to obtain legal representation, taking into consideration the available resources. We know it is R4 million, so the engagement must be within R4 million; whether the Public Protector Office assists in that process, or she does so on her own, we must allow her to get legal representation. To allow that process to take place, we adjourn this sitting, I mean session, between now and next Monday to allow that process to take place. And next Monday we then resume with the Committee work as suggested by you for today, that we are going to continue with the latter part or the presentation of evidence by the Public Protector. And just to conclude, Chair, then that will allow fairness for the Public Protector. We cannot really ambush her. And my request is that there must be reciprocity on her side. She has indicated a willingness to remain in the process and participate to the fullest until it is finalised. On the court papers, Chairperson, firstly, we should note that the Public Protector has approached the ConCourt on this issue. But we do have precedent, Chair, that on this Committee that when that court or any other court is approached it does not have the effect of stalling this process, the process must continue. The issues will be ventilated, wherever they are, in whatever forum, in this case, the Constitutional Court. Serving those papers does not halt the Inquiry at all; it will be a tragedy if that is the case. My suggestion, Chair, to you is that respond to the papers, or whoever has been served, respond to the papers within the time allowed, but that must not interfere with the proceedings of this Committee. I think we do have precedence, twice or so, of court decisions that have indicated that we must proceed and that whatever issue is ventilated, should be ventilated. And that in any way the Public Protector will have the opportunity to approach the court if the Committee decides, either in her favour or not in favour, on four charges. That is where we are. Lastly, Chair, let us urge that we conclude this process. We definitely cannot go towards October with us sitting in this Committee. We have sat here for close to about six or seven months and it is an inordinately lengthened time. Thank you, Chairperson.
Chairperson: Thank you, Hon Nkosi for that contribution. Hon Dlakude, are you ready? Not ready? I proceed to the next one. Hon Holomisa?
Mr Holomisa: Thank you, Chairperson, colleagues. I think I must agree with the last speaker who says we have to tread carefully when it comes to non-representation, legally, for the Public Protector. What I would suggest we do… Can you hear me?
Chairperson: We can hear you, Sir. Please, go ahead.
Mr Holomisa: Alright. What I would suggest we do is for the Acting Public Protector perhaps to negotiate with the previous team representing the Public Protector to come back if they agree to work on the capped budget of R4 million, after assessing the amount of work still to be done. If the old team of course is not available, the Public Protector must get new lawyers in conjunction with the Acting Public Protector. You will recall, Mr Dyantyi, our Chairperson, you did say that the Public Protector will be given six days, if I am not mistaken, to make her presentation on the Evidence Leaders, in her absence when the Evidence Leaders were presenting to the Committee. Yes, we will, of course, wait for the ConCourt decision. But it is important that this issue of ConCourt, or the Public Protector running to the ConCourt for verification of their order, or confirming whether the state should be responsible for, or who should be responsible for paying for these fees, because you seem not to be clear as well. So let us hear from the ConCourt. So I support therefore the postponement of this matter for a short period. For us to be pushed around to say, we have to finish this and that, yet we are violating the procedural issues, then it is risky that this work we have being asked to do, might end up being led to litigation by the Public Protector challenging us. Let us go slow, and make sure that we clean all this mess. Thank you.
Chairperson: Thank you, Hon Holomisa for your contribution. Hon Maneli?
Mr B Maneli (ANC): Thank you, Hon Chair. Greetings to Hon Members and the Public Protector. Hon Chair, I think a number of points have already been covered by the input made by Hon Nkosi, save to just emphasise a few points. I am trying to link this point with what Hon Mileham raised as a second point of the question you raised. Just to remind the Committee that indeed what Hon Nkosi raised about us getting involved in areas we ordinarily would not get involved in. That, Chairperson, is being done to ensure that the process is protected and saved from collapse. And there have been achievements in that regard. And I am deliberate in stating this because it is linked to that point raised by Hon Mileham. We had a break, Chair, because the payments were not forth coming. And there had to be an intervention in that period. It is this Committee that wanted assurance whether there was a walkout and whether there is a change in terms of legal representation. And because we did not have anything from the Public Protector, or the attorneys themselves, that indicate that they have withdrawn completely and they are no longer the attorneys of choice by the Public Protector. That matter was clarified. We were able to proceed thereafter. We have now taken another break because you have had money that runs out, and we had to also, again, play a role (that) we should not be, of trying, again, to save the process from collapse. I think we must appreciate, Chair, that we have reconvened today because that intervention has yielded the result, you would not be talking the R4 million if there was not such an intervention. So with that having been said, Chair, I think there should be an understanding that then as you are taking even the break, unless I did not hear you well when you still had aircon issues. I did not pick up from you, even from the input made by the Public Protector, that at a formal level, with the R4 million available, there has been a letter, formally, that withdraws from the process in terms of engaging the legal team. So it is still going to be an engagement to be done. Whatever would have been an engagement, in the words of the Public Protector, was an informal engagement that would have happened. Now, I am raising this, Chair, from an understanding, unless that understanding has changed, that in the main, these are lawyers of choice by the Public Protector, but the PPSA comes in on the basis that the funding comes from them, and therefore, there have to be something that regulates a relationship that manages the outflow of the money from the state coffers. But necessarily, the instructions are more from the client, and the client in this case is the Public Protector. So I am just saying, Chair, for me that is important so that we… our expectations are reasonable in that, in the main, it is about the choice that the Public Protector makes, not really about the office itself, otherwise the office could have appointed anybody by this time, surely, who would agree to the R4 million. So I just thought it is important to just stress that point. But there is an important point raised by Hon Nkosi about the evidence before the Committee, because we should also not lose sight of that; that we have evidence that is for the Committee and most of it being in writing, which can be referred to. So at least when we talk about the timelines, we are also including evidence available before the Committee, and this has nothing to do with being unfair; it is a fair point to raise that the evidence is before us and the timelines are also informed by that, so it is a combination of the two. That which we still need to hear, but without ignoring that, that is already before the Committee, Chair. And I take it that even when we talk figures, whether it is R4 million here or not, or R4 billion. These are figures that get agreed to, and surely any deviation, Chair that seeks to go beyond what has been agreed upon, surely it should raise questions about even other matters that are before the Committee, as part of what it assesses; the legal fees that skyrocket, and so on. So we, ourselves, have the duty to cap the costs, Chair, without compromising the quality of what needs to come out of the Inquiry. And therefore we will be the last to push for an open-ended process, in terms of costs, which we also need to take sight of. I think these points were important to emphasise and link up with what Hon Mileham raised about the break did not mean completely starting a new process. That is why even in your programme, it is a continuation, it is not a restart of an Inquiry; it is a continuation of an existing process. So I thought it is important, Chair, that I raise that, and that I support that, at this point in time, it will be unfair to proceed without giving the Public Protector an opportunity to consult and be legally represented. And I take it in that fashion, presenting an opportunity. And I think we will then have to make an assessment. I think that is the only part, Hon Nkosi, where I may have a slight difference, is that we have to make an assessment on the basis of a report that comes before us, instead of indicating upfront that we would never be able to move forward unless something else happens. So that is what also, Chair, I thought so that when we review decisions based on evidence before us, it should not be like we have been inconsistent as the Committee, but we are also guided by information and evidence that is before us and make a determination on how that affects the programme, and how then the programme needs to unfold. But generally, Chair, I accept that we have to proceed at some point, but we must also be fair, and this is the fairness I think you are doing: that, firstly, funding has been secured, we should not take that away; and that there is also an opportunity afforded to the Public Protector to consult with her legal team now, formally, and that we know we are able to proceed, Chair. Thank you.
Chairperson: Thank you, Hon Maneli, for your contribution. I now recognise Hon Zungula.
Mr V Zungula (ATM): Greetings, Chairperson. Greetings to the PP, Evidence Leaders and Members, Chair, even though it is not in the ambit… it does not fall within the ambit of the work of the Committee, but Chair, you know, we just need… I would want to put it out there that it is, in my view, a travesty of justice, that a case, or an issue that has been with the Constitutional Court for six months, has not reached a stage of, you know, finality, whereby people know what is what, because, you know, the outcome of that issue does have a bearing on the work that we are doing. So in my view, you know, it is a travesty of justice that we sit here six months later, something that impacts the work of this Committee is still in the processes of the Constitutional Court. The second issue, Chair, I would want, perhaps, when you are summarising and making a ruling, perhaps you start by saying where are we now, because the last time we had met, there was the so-called empowering of the Committee by the Evidence Leaders. And you made a commitment that the PP will be afforded an opportunity to respond or to reply to whatever has been put by the Evidence Leaders. So if that would reflect in the programme to say, where exactly will that happen, because my view would be before we can get through the evidence of the PP, perhaps the first thing that needs to be done, would be for the PP to respond, as you had committed, to that particular empowering by the Evidence Leaders. The other issue, Chair, is that as we sit here now, the issue of the legal representation of the PP has not been concluded, hence, the PP is there alone without legal representation. Hence, the PP, you know, has filed papers with a Constitutional Court for the very same issue, and also the issue of what was done by the Evidence Leaders. So in that regard, Chair, I still maintain (that) without the legal representation of the PP we cannot proceed, you know, with the hearing, because the Constitutional Court was very clear, with regards to the processes that need to be followed. Now, it is not by the Committee's doing that there is an issue with the funding of the legal representation of the PP. But also it is not by the PP’s drawing, hence, the courts have been approached to get rid of these uncertainties, because now, you know, we are speaking, you know, to each other, you know, making insinuations about what could have been meant and what was not meant. That is why there's a court process to ensure that there is clear guidelines or there is finality as to who must bear the costs of funding, you know, the legal presentation of the PP. Like all other public officials, you know, you cannot, I recall you even spoken in one interview that she should have gone to legal aid. You know, it is stuff like that, Chair, in my view that warrants that the Constitutional Court hearing and adjudicating the matter will assist in terms of this issue reaching the finality. So in that regard, I do not see how, Chair, we can proceed. I agree with the latter speakers about the postponement, in the sense that once there is a postponement and the Constitutional Court is able to adjudicate and give a determination on the matter, then as we proceed, we proceed without having any concerns whether we are doing something that could be legally challenged in the future, or we are doing something that, you know, could be subject to even tampering with the process and undermining the work that has been done for the longest time. So it is in that spirit, Chair, I would propose that I agree with the speakers that saying let us postpone. Hopefully this matter could be heard urgently, and a determination could be made urgently, then when we proceed, we proceed with the full comfort that no laws will be broken with a proceeding. Secondly, the issue that the Public Protector had, and also some of the Members of the Committee had, with the Evidence Leaders, also, ‘empowering’ the Committee, will also be ruled on by the Constitutional Court, then, Chair, everything from our side, you know, we will have that comfort that we are proceeding in a manner that will not be subject to litigation in future. Thank you.
Chairperson: Thank you, Hon Zungula for your contribution. Hon Maotwe?
Ms O Maotwe (EFF): Good morning Chair. Good morning to the PP and the colleagues. Chair, I think we are having exerted efforts to complicate this matter when actually it is very simple, and really it does not warrant us to convene to discuss administrative matters that should be resolved by the Acting PP and her administration. Chair, the issue of PP legal representation has not been resolved: it is as simple as that. And hence, I am saying we want to complicate matters that are not actually complex. The matter has not been resolved. Discussing these technicalities now is telling us exactly – it is actually confirming that, indeed, the matters are not resolved. And they do not need to be entertained here, Chair. If really, we want to discuss these budgetary issues, Chair, in this Committee, then we may as well just call on the Acting PP to come and explain to the Committee the issue of funding for these proceedings. The same way the PP is there trying to give her side of the story, why her legal team is not there; we are hearing from one side. So if really we want to entertain the issue of the legal representations or the fees, then it is also, maybe, advisable to call the Acting PP. Maybe she will enlighten us on how these matters work, and we will be in a better position to then be informed of what needs to happen, because I do not think she understands her seemingly irrational decisions and how they interfere with the work of this Committee. We adjourned a month ago, sometime in April, and when we did that, we told you, Chair, that we cannot continue with these sittings without the PP’s legal team. We come back here; we still do not have the PP’s legal team. Now, what if the PP’s legal team that was here before, when the Acting PP comes with money, they say, ‘Well, we have taken other matters’? Because remember, these people are running their own private law firms. They also need to sustain their law firms and all those who benefit out of their services. So they cannot be stuck in a matter that is not clear. When is it going to end? And when can they open their diaries? Their diaries might be full by the time the Acting PP is ready with the funds and that will cause even more delays, which is something that we do not want. So there are serious implications for the work of this Committee, Chair, that if not attended to, we will see this matter even still sitting even next year. What we are doing to (the) PP, Chair, it is a serious abuse, because she must now use her own time and possible resources to go to the Constitutional Court. As you may be aware, there is a matter that was filed on Friday, on matters that were clearly articulated already in the judgment that we cannot proceed without her legal representation. Now we want to spice it up and say ‘No, but the judgment never said it must be paid for by the state.’ Who is she working for? She is working for the state. So how do you want her to pay the legal fees that, we as Parliament, said she must come to account for, which relates to the work she was doing when she is and was employed by the state. So, Chair, my appeal to you is that let us adjourn the meeting. I think most of the speakers that came before me have expressed that view, that let us adjourn this meeting. Let us allow the opportunity for the Acting PP to consult with the legal team of PP (to) resolve the matter of the funding. Because if you continue, Chair, you will be doing what we advised against, in the past, where you, Chairperson, on your own, decided to proceed with Evidence Leaders, without the PP, and the Evidence Leaders agreed to actually continue. We have already undermined this process by that. From a point of fairness and administrative justice, we have already undermined this process. Let us not make matters worse. Let us please adjourn, Chair. I thank you.
Chairperson: Thank you, Hon Maotwe, for your contribution. Hon Sukers?
Ms Sukers: Thank you, Chair. Good morning, again, to everyone.
Chairperson: Hon Dlakude is back. Okay, go ahead.
Ms Sukers: Thank you, Chair and good morning to everyone, again. Chair, there is a portion of the meeting that, obviously, I did not hear. But I just have a question, Chair. I have a question around the legal representation (and) what that means for this Committee. And then I just want to say, Chair, this, and I think it is a matter of record, but I think I want to state it again. Over R26 million has been spent on legal fees already. The process that we are in is a process of Parliament. It is a process of oversight. That process had its parameters. And in terms of the obligation that we had as a Committee, and still have, is that of fairness to the Public Protector. I think we have extended fairness to the Public Protector up until now. There is the issue of fairness towards the South African taxpayer. And every single public representative that is part of this Committee has that responsibility. It is a responsibility that we as Parliament cannot ignore. We are currently, in this week, starting with the Budget Votes. We have a responsibility we need to be aware of as individuals and public representatives. It is important to say that and to also make it, again, a matter of record. And within that context, Chair, it is totally unacceptable for us to continue to traversing matters that have been clarified over and over again. The one is the Constitutional Court process is different to the process of Parliament, it is two different processes. How can we want this process to be stalled until the Constitutional Court provides us with direction? How can we do that? We have three arms of the state; one of it is sitting here in this room doing the work of the state. Then finally, Chair, I think the third that I need clarity on is the issue around the process itself. There is now been made several comments made around going back for the terms and for the legal team to be briefed, and for the conversation to be had with the Public Protector South Africa, together with the legal team on the terms. I need an understanding. We are in an ongoing process. The process has not been aborted, it has not collapsed, it is ongoing. So it is my understanding that those terms that were then decided upon would still continue. Therefore the one thing that is most important for the Committee is what legal representation looks like; what does it mean for us at this point of the hearing, in order for us to go on? The process had… We have heard testimony from the Public Protector, I think it went on for five days, I am not sure. Then we had six days with the Evidence Leader going through everything that we have heard, to explain it to us as lay people in terms of law, the evidence that we have heard. So there is no reason for us truly, truly, Chair – I have a problem when we as public representatives continually stall a process or call for it to be stalled, given the amount of money that has been spent here, and we know how we are struggling with our budgets for health, basic education and how people are being left stranded and without their rights being defended. There is no excuse for that.
Chairperson: Have you landed? Are you done?
Ms Sukers: Yes. My apologies. Yes, Sir. Thank you.
Chairperson: Thank you, Hon Sukers. I just wanted to make sure that I do not cut you. Hon Dlakude?
Ms Dlakude: Thank you very much, Hon Chairperson. My apologies, I had to drive to a place where…
Chairperson: You are muted, Hon Dlakude. You are muted.
Ms Dlakude: Hon Chairperson, can you hear me? Maybe I should switch off my video. Hon Chair?
Chairperson: Okay, try again.
Ms Dlakude: Hon Chairperson, can you hear me?
Chairperson: Now we can hear you. You can start properly. We did not hear you at the beginning.
Ms Dlakude: I want to apologise, Hon Chairperson, that I had to move to an area where I can get a better network coverage because of load shedding. Hon Chairperson, let me start by saying that I really appreciate that the Committee and Parliament were involved in trying to resolve the issue of funding the PP’s legal team. It yielded the result that we are resuming the work we had left off due to the lack of funding. Also, Hon Chairperson, as a Committee we cannot ignore the facts raised in the letter from the PPSA, with regards to the funds. Let me put it like this, Hon Chair. They said, initially R4.5 million was set aside for the process. Then the legal fees escalated to R30 something million. As a Committee we cannot, and as Parliament, ignore this. I wanted us to note it. Then now, an amount of R4 million has been availed, hence we decided to resume with the work today. But I want to concur with my colleagues, especially Hon Nkosi, who said, indeed, we cannot continue today with the work of the Committee because the PP does not have legal representation. And also, let me make us also not to forget that we have statements that were deposited to the Committee by the PP and her legal team: her statements are before the Committee. And also she made her legal team lead her evidence, until to the point where we left off because of the funding issue: let us not ignore that. So my agreeing to pause today, until next week, Monday, is to allow the PP, and the PPSA’s office, to resolve the issue of the legal team. Even though this Committee has not seen a letter from her legal representation, saying that they are no longer representing her. But we are taking the word from her that she does not have legal representation; we are taking that from her word. So I would suggest that we pause here this week, and we resume next week. I do not think that will be a difficult thing for the PP and PPSA to resolve that matter of the legal team because we only need them to lead her evidence, the evidence that we already have. It is not like they are going to start afresh. So that is what I want us to be aware of and also not to mix issues here. We are not starting afresh – we are continuing from where we left off. And then I am coming to the issue of the Evidence Leaders empowering the Committee. Hon Chairperson, I think, I believe it was the best thing to do. We were dealing with evidence that was led before the Committee; we were not dealing with something that is new. So they were preparing us, empowering us, so that even where we did not understand, we could understand better. So they did a great job there. Then, Hon Chair, with regard to the court papers – the court papers that the PP applied to the Constitutional Court. So I want us, Hon Chairperson, not to forget that there is nothing that is stopping the Committee from doing its work. That is not an interdict; that is not an interdict, Hon Chairperson, but it is an application by the PP to the Constitutional Court to raise the issues that she is raising, but it has no bearing on the work of the Committee. So we are allowing this break for her to resolve the issue of her legal team, Hon Chairperson, so that we can proceed as a Committee, and also to make sure that this process is fair. So far, we have done that, Hon Chairperson. Where there was a need for her to consult or to do what, we allowed for that space. Thank you, Chairperson.
Chairperson: Thank you, Hon Dlakude for your contribution in this discussion. Thank you, Hon Members. That was the last Member on the platform to make a contribution. Before I go to any summary or ruling, I am going to take this opportunity to invite the PP for whatever last remarks you want to make, PP, having heard what the Members are saying, and then thereafter we will make a summary and a ruling. I would not like to close you outside. Over to you, PP.
Adv Mkhwebane: Thank you, Chairperson, Hon Members. I will just clarify where clarity was sought. Hon Mileham’s questions, I think, ‘Who should pay, hence the matter is taken to ConCourt?’ That will be dealt with there to clarify the matter. And indeed, I am before the Committee, I am accounting to Parliament. This process is the first of its kind. I think that has been repeated several times. There was never a process like this; it is a learning curve for everyone. And whatever we are doing here, it is for future generations and how the heads of Chapter Nine Institutions will be dealt with when there is a process like this. So the Constitutional Court will have to then, because Parliament seems to be second guessing their judgment, so they have to clarify that matter for everyone. And unfortunately, if you say it was a pause button and not a new process, unfortunately, there are letters which will be shared or which are shared with this Committee; a letter from the CEO, the accounting officer of the institution, indicating that they do not have the monies. If you say to an appointed attorney, there is no money to proceed beyond 31 March, I do not know what does that mean. But then, again, hence I said to you I am not involved in that. I am not the accounting officer. Hon Nkosi, I do not know when you say the R4 million is enough? Indeed, going back to the institution. Originally there was an agreement with the legal team and there were negotiated rates and we even wrote the letter to the Deputy Public Protector, where I clarified that even Adv Mpofu’s rates and even the other legal team, they were negotiated rates, which were even below the normal rates, which they were charging at the particular time. So there was that agreement, which was done by the CEO, as the accounting officer – I was never involved in that particular process. And with the attorney engaging the legal counsel. So I think, whilst the R4 million, Hon Maneli, I do not know when you say that has been negotiated or agreed to. With who? And how did they come to realise that the R4 million… I mean, including myself, I do not know, Hon Nkosi and Maneli whether you have practised in the past and you know that the evidence, which is before the Committee, the money is sufficient for the legal team to proceed.
I cannot comment on that. So I think what you are saying that, indeed, adjourn the meeting, which I have to engage and request the CEO to deal with this matter. And there is a panel of attorneys, they are the ones who should be going back and say, ‘On the panel of attorneys, Public Protector, are you still willing to proceed with Seanego?’ – which was my attorney of choice. If Seanego is willing to proceed, then that is what we will be discussing, and then they will brief the legal counsel. And indeed, they were not on a retainer that you are not doing any other thing, you are only going to be doing this particular work. On the issue of the ConCourt, indeed, it is just purely to assist this process, because these matters are interlinked. You might say the different process, you do not want to be involved but unfortunately, the issue of the funds is impacting on your work and the speed of resolving this matter. When the Deputy Public Protector wrote that letter on 1 March (copying the Committee Chair, Speaker and Justice Portfolio Committee Chair) that exactly created chaos for this Committee. And unfortunately, you cannot say you are not involved in the process. So it is for the court to advise. Unfortunately, there is history. You would say that yes, there is ConCourt judgments on the matter because, yes, the two matters are relating to my matter before the courts. They said ‘No, you can proceed.’ And we know that Parliament, the very same Parliament in the past, with the Nkandla matter, you proceeded, you dealt with the matters, and the ConCourt had to tell you that you should not have handled the way you have handled the Nkandla matter. Anyway, it is for Parliament to continue. And if you say the R4 million is enough, we will proceed, and then the funds will be exhausted again, because I understand – which I do not know how they came to that – the money is including the travelling, the accommodation, and everything. And whether that will be sufficient to finalise the matter, I think, again, it is doing one and the same thing and expecting different results.
So the issue of Hon Maneli, that it was a break, and the walkout, and change and everything, I have explained, read the letter from the CEO, the accounting officer. And I do not know whether, if you read that letter as an accounting officer, possibly if you were an accounting officer in the past and understanding the PFMA, and I think it is high time possibly, you know, as Committee Members you engage your counterparts in the Committee where the Auditor-General sits, so that they can also make sure that we comply to what the principles and the PFMA is requiring of us. Definitely if you can do that, because you cannot come here and say it is a continuation when there is a letter terminating and saying we cannot pay you: how do you continue beyond that? And as I said, I am not the accounting officer, I do not deal with the resources. There are accounting officers who are dealing with the monies. So the issue of there is no formal letter to withdraw – the letter from the CEO was basically terminating the services of Seanego. So the CEO must go back to the attorney, and they need to agree on terms. And that is what should be happening. And indeed, I am glad that you are proposing the postponement, which I appreciate. And indeed, the whole week we will have to do that, and deal with the matter. So the issue that I am saying I am the client and not PPSA, I mean, I do not understand why do you have to go to that, Hon Maneli? At the end of the day I do not deal with the resources. Even in the past, there is the CEO, there are Legal Services. I need an attorney; yes, this is my attorney of choice, per the Constitutional Court judgment. And indeed, I told legal services this is my attorney of choice; legal services asked ‘Okay, attorney, who is your counsel, PP, of choice?’ Then I indicated that based on the fact that they know this matter from a number of matters they defended, they have a lot of information, with the understanding that they will be saving this process a long time: that was the understanding. So if you say – Hon Maneli, I do not know whether you also practised and you know – that the evidence before this Committee justifies the R4 million, I cannot comment on that. And remember, my statement has attachments, which will still have to be placed before this Committee as part of the evidence. And there was no one who agreed to that R4 million.
PPSA just indicated that there is this surplus, which they can avail. There was never a process in the past where they engaged the attorney, because that is what they did; sit down with the attorneys and then we agreed on that particular money. So I think it is good for us to go back and do that particular process with PPSA. So Hon Zungula’s issue… Yes, I have raised in my response to the Chairperson, that the issue of the legal aid and the way it was raised, and indeed, I did not expect that from the Chairperson, which I clearly stated in my letter that, unfortunately, even the mandate of the legal aid is totally different to this particular process. And if (the) Minister of Justice who is overseeing, or Legal Aid should be accounting to them, is the one who is also assisting the Public Protector South Africa with the additional funding. So, I mean, if there were monies there, surely they would have allowed that the money would be then moved to the Public Protector. So the issue of Hon Sukers… You know, it is concerning for me to hear you speak like as if I placed myself in this situation. And for you, as a Member of Parliament, I am very much concerned about the monies which were spent. I never brought myself here.
You are one of the parties who said that there is a prima facie matter, there is a panel of the three members who were paid by the very same Parliament and yourself as Committee Members, yourself being present, you agreed to the expansion of the scope. If you stick to what the three panel members dealt with, I do not think we would have been here. And I indicated that for those 15 witnesses, whom you listened, and there was no issue. And it is concerning for me that as a Member of Parliament, and even myself, I am concerned. You are only dealing with what has been availed to me to protect or exercise my rights. I never… I mean, if I was Busisiwe Mkhwebane from Qwaggafontein sitting where I am sitting – I am not the Public Protector – because this is within the scope of my work. It is a new thing which is happening in Parliament.
It is interesting that you do not even want to know how much has been spent for the Evidence Leaders, because there is none which has been paid to those two: it is one senior counsel and a junior counsel. So that money as well, you should be worried about. So I do not think it is fair for you to just come and think that me insisting on that. And it is a Constitutional Court judgment which said we should be – I should be – represented. And again, not every Chapter Nine Institution head is legally qualified. What Parliament was insisting on and the Speaker saying I can defend myself. At the end of the day, I think it should be fair and it should be in a situation where as yourself, this Committee, because if you stick to the panel recommendations we would not be sitting here. But you decided yourself, to revert back to the Mazzone… Hon Mazzone’s motion which then expanded this whole process. So I think it should be fair to everyone that it is not me or the lawyers who expanded the scope, it is yourselves. And when we agreed with the R4.5 million originally, Hon Dlakude, with the legal team, and the very same agreement, the CEO signed with Seanego – the R4.5 million – was based on the fact that it will deal with only the panel recommendations, the prima facie issues. But then you decided to go against that, hence, we are sitting here.
I am also concerned about the monies which was spent, and I think it should be fair to the public as well to be transparent how much is spent for the Evidence Leaders, because we cannot only speak about this R26 million, we should be speaking about everything which has been… because Parliament wanted to run this process. You then had to engage the services of two counsel who are not employees of Parliament. So I think it should be a fair process, and again, learning from this process going forward. So the R4.5 million was based on the assumption that the process will only follow the panel of three panel members. But that people who the panel members recommended that their evidence is not necessary as there is no prima facie case, you decided to invite them for two days to sit here and be listened to. So I think it should be very fair, Chairperson, that we go back, we then agree with the Public Protector and the CEO, the accounting officer – that is why I said in my opening, I do not know how the R4 million came about – and the attorney should determine with the kind of work remaining and the counsel, then we can proceed. Definitely we have to proceed. So Hon Dlakude, there is a CEO letter, which I think it will be availed for you to… or for Committee Members to deal with. So thank you, Chairperson, for allowing me to just clarify these issues for the Committee Members. And I will hear from you.
Chairperson: Thank you, Public Protector. Colleagues, we will take a 10 minute tea break and come back, summarise and make the ruling.
Chairperson: Thank you. Welcome back, Colleagues, from that tea break. I now want to just do the summary, make the conclusion and the ruling, but before I do that, I see a hand. What would that hand be for, Hon Nkosi?
Mr Nkosi: No, thank you, Chair. I raised my hand before you concluded the meeting. Chair, I just want for you to consider, in your summary, the following: the Public Protector appears before the Committee as a person against whom certain allegations of serious misconduct are made. She cannot take the posture that suggests otherwise. I heard what she said, and I think myself, and maybe other Hon Members would like to pose questions. Unfortunately, she does not have legal representation and that is why it will be difficult to pose those questions. But I am just requesting that in her responses to what we are saying, she confines herself to what she has said. The accusations she faces are extremely seriously. Secondly, Chair…
Chairperson: Yeah… Hon Nkosi? I would want to ask you to pause there so that we do not go that route. Perhaps allow me to do the summary and the ruling. I would not want to open this now for further discussion. I respect and appreciate the points you are raising. Perhaps we will have time to deal with those issues if that is in order with you?
Mr Nkosi: Yes, if… Chair, I accept your ruling, it is your ruling. When the opportunity arises, I will raise my second point at a particular point. Thank you very much, Chair.
Chairperson: Thank you, Hon Nkosi and thank you for your understanding. Colleagues, I think we have got to make the following points first, maybe just in terms of context, and recapping, because I think there has been one point of the recap I did not do. Firstly, there is what seems to be a very creative narrative about what I said at the end of our Committee session. I want to explain that. The context in which that must be explained is that this is an inquisitorial process, as opposed to an accusatorial process; with us not being in court but driving a constitutional parliamentary process. I indicated quite clearly, and I want to repeat today, that the Committee session that we undertook, is a session that we would have done at any point in our time, whether at the beginning or end. At that point we took a decision to say, six days later, the evidence placed in front of us covering two charges, we needed to unpack that. It is a decision that we made, that decision must not be misconstrued with any other thing. I indicated then that that process actually created and opened up opportunities for the Public Protector, especially because this is an inquisitorial process. If it was an accusatorial process, all of the things that we unpacked were never going to be unpacked – somebody in a court would have been surprised about that. We indicated that, firstly, there has been the benefit of a heads-up, as part of that unpacking. The PP, when she resumes, would be in a different and better space to prepare to answer some of the questions that were raised. That is the first opportunity: a heads-up about what is going to be coming.
Secondly, she has an opportunity, when asked questions whether by Evidence Leaders or Members, those issues can be attended to. That is an opportunity that she has arising out of that. Thirdly, there will be another opportunity in the closing arguments, that one would have had time to prepare – you would know where and what are the issues being raised. It never had to do with any six days that the Chair said there was going to be and therefore… and that there is going to be a response of the PP. If there are any responses from her, when asked those questions, when doing those closing arguments, when preparing for herself to do that. So I think that must be firmly put in its correct understanding. So I do not know where the six days come from. Certainly it would not have been part of any of the summaries I made. And perhaps whoever would have… because it is clear that somebody is saying there needs to be a response to that, and therefore, if we took six days to unpack that, then there needs to be another six days to respond to that: it does not work like that. I think that must be explained properly and firmly here, today. So that is really the first point that must be made. Secondly, there is an issue of postponement that Members, and they seem to be unanimous about, perhaps to firstly, clarify the postponement, because one Member said, ‘Let us postpone until the ConCourt ventilates this matter and makes a decision.’ The proper agreement and issue raised here is that Members are saying we cannot continue today. Let us postpone today, and allow for some time. And I will come back to this issue. And there seems to be an agreement for us not to continue, therefore, in terms of that. Now on a number of issues Members have raised here. We are resuming the Inquiry, Hon Mileham, as we are doing today. And as it seems we will all agree to pause for today and do it from Monday.
The next point, I think, that must be explained as part of the summary, is that we… And we have been here before. And I have always emphasised this point: the Public Protector, and anybody else in this room, they are within their rights when they are not happy with a particular decision or a process, to take that matter to a correct address and a correct platform that they deem fit for that purpose. Since the start of this process, we have had those off ramps in the taking up of issues. Not once; not twice, where in that process there has been an off ramp to say we are going to court on this. There was the issue about recusal and everything else. We have always indicated that if the court is the correct address for someone to take that, including the PP, no one should ever try and stop that, or try to say it cannot be done. It is within her rights to do that. And similar to this issue of going to the Constitutional Court and making that application, we should not have problems with that. That is what she is doing. But what must be understood, which has been… which we demonstrated in other past examples, is that such an application, such an exercising of one's right in relation to this process, must never be construed as an interdict. The fact that the PP is applying to the Constitutional Court cannot stop this process from proceeding. She must proceed and those who must respond to those papers will have to do that as respondents and so on. But, there is no interdict, there is no legal impediment for us not to proceed.
Hon Sukers has explained that this is a parliamentary process and (that) we are a separate arm of the state, The Constitutional Court is going to have to adjudicate on what we are doing, not on what we are not doing. It is the Constitutional Court‘s right to determine those issues, those prayers placed there. So there is no postponement, therefore, that is done on the basis that there is an application in the Constitutional Court, as mooted by Members here. So the point must be firmly, therefore, made in that way, that we have been here before; we have discussed these issues. I think we should not just be repeating them. I think Members have been firm about us having to, within a fair process, urgently concluding on the work that we are doing. And it has been expressly put here, today, that the issue of fairness, fairness to hearings, has been extensively advanced by this Committee. In fact, we were very generous, because at some point, you could not distinguish between us and the court process. And it is understandable. This is a novel process. But we are not a court. We are a parliamentary process. And so, Members are also very clear that, in fact, we meet here today with evidence that has been presented in front of this Committee. It is now going towards two months as having that evidence, sworn affidavits, statements by the Public Protector, first with part A and part B, 154 pages – all of that, we have that evidence.
There is no evidence that is in front of this Committee, unless that is still coming. If there is anything, and perhaps I would indicate that if there is anything, in addition to what has been placed in front of this Committee, not only in this Committee but to the panel, firstly, and this Committee in the form of affidavits – if there is anything additional would welcome that. But as we speak, we have got close to two months of written evidence that has been placed to the probing of this Committee, as it does its work of the Inquiry. So that evidence is available in writing. And so the continuation is really about leading on that evidence. So far, I have not heard anybody say something contrary, that Members in unison are saying we are postponing today's Inquiry. We are giving the PP seven days to get legal representation. We are resuming next week Monday. And perhaps let me add this properly. We are resuming next week Monday, with the new or old legal representative, depending on how the work of the PP, what she does. But this is what needs to be clearly understood, colleagues; that we are going to resume on Monday with the Inquiry. Therefore, PP, with either the new or old, the Inquiry is going to proceed. And therefore, we are not going to mandate for another discussion, that there is now an absence of this legal team or that legal team: this is a parliamentary process. I want us to leave here knowing we expect Monday to resume and we are resuming as the Committee and that this Committee is going to do the work that it is supposed to do to fulfill its mandate.
Thank you, Hon Members.
The meeting is adjourned.
- Media Statement: Committee On Section 194 Enquiry Agrees To Postpone Meeting To Allow PP Time To Attend To Issues Relating To Her Legal Representation
- RMT Attorneys: Proposed Resumption of S194 Enquiry
- Letter: Resumption of the S194 Enquiry
- CCSA: Notice of Urgent Application
- Parliament: Letter to RMT Attorneys
- Parliament: Letter to Adv Mkhwebane
- PPSA: Letter to Adv Mkhwebane
Dyantyi, Mr QR
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Holomisa, Dr BH
King, Ms C
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Mgweba, Ms T
Mileham, Mr K
Nkosi, Mr BS
Nqola, Mr X
Siwela, Ms VS
Sukers, Ms ME
Tlhape, Dr ME
Tseke, Ms GK
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