PP Inquiry day 75: Adv Busisiwe Mkhwebane (Hearings postponed)

Committee on Section 194 Enquiry

17 May 2023
Chairperson: Mr Q Dyantyi (ANC)
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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 Inquiry was forced to postpone its hearings once more due to the failure of Adv Busisiwe Mkhwebane’s (the suspended Public Protector (PP)) failure to obtain legal representation. This was after the Committee Chairperson, Mr Qubudile Dyantyi’s remarks in the previous week that the Inquiry could no longer afford to continue delaying proceedings because of the cost to the taxpayer and the looming expiry of the PP’s term in October.

Adv Mkhwebane confirmed that she had terminated Seanego Inc’s mandate to continue as her legal representation. She has since identified a firm of attorneys to represent her for the rest of the Inquiry, with the aid of Adv Dali Mpofu, SC.

The Committee further heard that the Solicitor-General had informed the Public Protector South Africa (PPSA) that it could not act on behalf of Adv Mkhwebane because of a conflict of interest. Moreover, the Solicitor-General expressed concern regarding the size of the PP’s legal team and fees, which have amounted to more than R25 million thus far.

Members were disappointed by the continued delays in finalising the hearings, with some suggesting that the PP was deliberately frustrating the process, attempting to delay until October. However, it was agreed that Adv Mkhwebane should be provided an opportunity to secure legal representation, but within a reasonable time. As such, the Committee hearings would be postponed indefinitely.

Meeting report

The Chairperson: I want to take this opportunity to welcome Members here at S12A NCOP (National Council of Provinces), as well as Members on the Virtual Platform. I want to take this opportunity to also acknowledge and welcome the Public Protector. We were supposed to have met on Monday. I subsequently, as a Chair, gave another further opportunity for two days, Monday and yesterday, hence we are resuming, that we would have to have given the Public Protector more time to see if she can succeed in her endeavours to have legal representatives here. We shared a lot of correspondence with you, colleagues. And it is important that we do that so that we are on the same page, almost on a daily basis, about what we are doing, to try and get to a point where in the limited time that we have that we effectively resume the inquiry. I am aware that the National Assembly Programming Committee, led by the Speaker, last week they met [and] they discussed the speedy resumption of this process, and they have shared their views about what needs to happen and by what time this process needs to be concluded. We also account – we are an extension of the National Assembly, so when that body of the Assembly meets and…because it is a programming committee, it looks at what will happen when and so on. So, they would have expressed themselves on the matter about why it is important at a certain time that we wrap up our process. We equally share their urgent sense of urgency and a sense of completion of our work. Perhaps what we are going to do today, I am just going to, so that we make sense of this to and fro festival of correspondence, just going to ask Ms Fatima Ebrahim, our legal advisor, to just give us a summary of where things are and the intention. As the Chair, I wanted us to deal with it in relation to legal representation. She will give us that. And I will, then, after that, go back to the Public Protector and hear out given the fact that we would have adjourned the meeting to give her further opportunity. And we will take it from there, colleagues. Let me at this point, recognise Ms Ebrahim to come in and just…and she will speak on the things that we have shared with you, all of it, but just to give a kind of key salient points of the matters. Ms Ebrahim?

Ms Fatima Ebrahim (Parliamentary Legal Advisor): Thank you, Chairperson. And good morning to yourself, all the Members, the Evidence Leaders, and the Public Protector, of course. Chair, Members would have noted that there is a number of correspondences that have been shared; they have been fast flowing since we last adjourned the meeting, so I do not want to take the Committee through each and every piece of correspondence. It has been tabled and it is available for Members to read in more detail, but rather, I just want to try and capture where we find ourselves today. Chair, after we adjourned the meeting last week, you will recall that the issue that the Public Protector raised, and she can correct me if I am not capturing it correctly, is that she was not in a position to engage Seanego Inc or counsel, that that had to be done for the PPSA (Public Protector South Africa), and that the effect of the letter of 31 March from the Acting Public Protector had the effect of terminating the funding arrangements between Seanego Inc and the PP (Public Protector), therefore, she was no longer in a position to be able to give instructions. Following that Chair, we addressed urgent correspondence to the PPSA, asking them for clarity on this issue, because clearly there was an impasse between themselves and the PP. And in the meantime, the PP also addressed her own correspondence to the Acting Public Protector. We then received correspondence, which confirms the view that they had previously put on the table, which is that nothing prevents the PP from instructing the legal team that they did not terminate the brief and that was the position that they intended to take in this matter. Because that correspondence was received by us, if I recall, on Thursday night last week, having said to the Public Protector that we will resume on Monday. We then said to her “In light of this correspondence and then taking the firmer view that you can proceed to issue instructions to Seanego Inc, and in turn to your legal counsel, we are going to delay proceedings until today, just to afford you some additional time to take those necessary steps and sort out those housekeeping issues”. We then, Chair, received correspondence from Seanego Inc, from Mr Seanego, who would be the attorney on brief in this Section 19[4] proceedings, indicated that for professional reasons they no longer act on behalf of the Public Protector. At the same, Members will also see that there is some correspondence that has come in from attorneys, RNT attorneys, who have indicated that they act for the Public Protector in the two litigation matters that are currently ongoing, and that would be the appeal of the High Court, the recent High Court ruling on the recusal issue, and then on the new matter that has being brought to the Constitutional Court. They are not the attorneys on record for purposes of the [Section] 194 Inquiry, and they are not being treated as such by the Chairperson or the Secretariat. Seanego Inc then indicated that they no longer act for the PP. We responded to ask what these professional reasons may be and inviting Mr Seanego to please come before the Committee and explain so that the Committee can get a better understanding of where we now stand, because clearly the issue of whether the PP can instruct Seanego Inc or not, is now a moot issue, if they are no longer the attorneys of record for purposes of these proceedings. So, to try and get a clearer picture, that is what we proposed to do. However, we have received correspondence this morning from Mr Seanego, indicating that he is not able to attend a meeting of the Committee because of the issue of legal privilege that the Public Protector has not waived. And in the absence of her expressly waiving that professional legal privilege, he would not be in a position to explain to the Committee what the reasons are for that professional relationship no longer existing. So, where we stand now, Chair, is that it is not clear whether the Public Protector terminated that professional relationship, or it is because of actions from Seanego Inc. But the factual position is that currently as we have it on record, Seanego Inc no longer acts on behalf of the Public Protector in this matter. In the meanwhile, Chairperson, because we were taking parallel approaches to try and get a resolution on all of these issues, once we received notice from Mr Seanego Inc that he no longer acts for the PP, we also addressed correspondence to the CEO (Chief Executive Officer) of the PPSA, noting the fact that the PP has previously expressed that she has no objection to using the services of the state attorney, much the same way that Parliament utilises the services of the state attorney, and we have indeed done so to brief the Evidence Leaders. And we asked whether this option could be explored given the correspondence received from Mr Seanego. We received feedback on that this morning, Chairperson. We were copied in on the letter from the Solicitor-General in response to the CEO’s request to them for clarity. The CEO, in fact, sent them a copy of our letter to her, asking them to please weigh in. And the Solicitor-General has come back to say that they cannot act on behalf of the PP, because, according to them, it will not be feasible due to a conflict of interest. They have, however, indicated that they can assist the PPSA with outsourcing of private attorneys and the applicable tariffs within the PPSA. And there is correspondence from the PP previously, where she indicates that Seanego Inc would have been her first choice but failing them another set of attorneys by the name of Chaane. And this was before Mr Seanego indicated that there is no longer this professional relationship. What the Solicitor-General does go on to say, in quite some detail, and Members will see that from the correspondence, is that the issue of funding and budget is extremely important, that it is not an open cheque book exercise, and they suggest that there must be a renegotiation of fees, a streamlining of the legal team, and the PPSA must actively seek cost containing measures when engaging with a legal team. But, Chairperson, that is the position that we find ourselves in – that the PP is present today without a legal team accompanying her, despite the length of time that has now passed. Thank you, Chair.

The Chairperson: Thank you. Thank you, Ms Ebrahim, that is helpful. I think following that I would have a number of questions to ask, but I think it is fair that I go straight to the PP and ask her to give her take of the situation, and perhaps I can come later and ask a few questions. Over to you, Public Protector.

Adv Busisiwe Mkhwebane (Suspended PP): Good morning, Chairperson. Good morning to…

The Chairperson: Just a pause, PP, we seem to have…Is it fine? They are showing us flowers and everything else. I need to see them. I do not want to see pictures. I need to interact with Members here and Members on the platform. It is fine if they see me, but it is a two way thing. Just quickly fix that and then we go back to the PP. Yeah, their beautiful portraits, I can go and check that somewhere, not here. Thank you very much. Are we back on?

Ms Tshepo Morie (Committee Secretary): Yes.

The Chairperson: Thank you. Sorry for that, Public Protector, over to you.

Adv Mkhwebane: Thank you, Chairperson. Good morning to you and Members of the Committee, Evidence Leaders and parliamentary staff, and members of the public. Chairperson, let me start by saying, indeed after the discussion the last time I wrote a letter to [the] Public Protector South Africa to approach Seanego, or alternatively Chaane Attorneys. And I indicated that as the executive authority, I cannot deal with operational issues because I wanted them to assist me. Well, the Deputy Public Protector responded and said, well, even the legal services or [the] CEO’s letter that I should be proceeding with the attorney. So, I was waiting for them then to approach Seanego because they are the ones who are processing the payments. I do not do that. So, until such time then I discovered that Seanego wrote a letter to the Committee, indicating his unavailability. So secondly, Chairperson, I never said I agreed to use state attorneys, that is totally wrong. What I said the last time was that the issue of funding, where you get the funding to pay the Evidence Leaders, which is, I take it, because Parliament is bound by the Constitution and Section 217 of the Constitution. [The] State Attorney briefs the Evidence Leaders and surely the budget of Parliament is utilised for that, I was saying the very same kitty should be utilised for paying my legal services, when you were still looking for money. So, I did not even know that the Solicitor-General was approached. And I would not have agreed to that because knowing the conflict of interest that [the] State Attorney cannot brief or act on behalf of Parliament and act on behalf of the Public Protector, and hence we have a panel of attorneys within the PPSA knowing that we are audited by the Auditor-General, and we should be following or compliance to Section 217. So currently, Chairperson, as I indicated that, indeed, Seanego was my first option because of wanting to finalise the process, and they had knowledge about the matter; and I gave the second option. And I am still saying, Chairperson, I am not involved on operational issues. And I indicated in my letter to you that for the Public Protector South Africa the CEO, as the accounting officer, is obligated to facilitate the process, as they have done with Seanego, because they were asking for legal fees. Coincidentally, that is what the Solicitor-General is saying, because understanding what the Constitution, Public Finance Management Act is saying, there should be that process of compliance, what are the legal fees, how to utilise them – indeed, within the State Attorney as well, they do have those requirements – how to charge what the hours per rate or per page and all those things. So that money should still, because it is state monies, Public Protector’s money, should be managed within the Public Protector South Africa. So I cannot be told by the Deputy Public Protector that there is R4 million, therefore you will have see to finish that you pay for your accommodation, travelling and the protectors which you are using and all those, because at the end of the day, I am still the Public Protector and unfortunately, I cannot even when I was still in the office, I did not involve myself in the appointment of legal attorneys: Legal Services used to do that under the guidance of the accounting office. So I am here, Chairperson, and indeed I indicated that if Seanego is not available there is another attorney because I wrote to the Deputy Protector, I requested the panel of attorneys so that I can check in the meantime which other attorney one can identify and utilise in the list, and that is what I did, Chairperson, after leaving here, calling the office, in fact writing to the office indicating that, informally engaging the legal team as well to check whether they are still willing to proceed, especially Adv [Dali] Mpofu, who is the lead counsel in the matter. And for now, though they have other commitments and [are] busy with other matters – today I think we know that they are in court. So, they are available, Chairperson, as soon as we have an attorney who will then brief them. Unfortunately, this quagmire was brought to this Committee by the letter of the Deputy Protector of the 1st of March, and we are here because of that. Thank you.

The Chairperson: Thank you, Public Protector, for that explanation. Maybe just before I seek the following clarities, just to indicate that you remain under oath. I simply have seen…Can you hear me?

Adv Mkhwebane: You are very far. I was asking Thembinkosi why did you put me here, I should have been in the middle, at least so that I can hear you. I am struggling to hear you, to be honest.

The Chairperson: Okay, I did hear you. Can you hear me now?

Adv Mkhwebane: Nods.

The Chairperson: Thank you. I was just saying, Public Protector, just to confirm that you remain under oath, before I seek the following clarities…I also want to indicate that: yes, I can confirm [that] I have seen those letters you make reference to, in which you state your standpoints and preferences in terms of attorneys. Mr Seanego has indicated that he is no longer involved in the matter because of professional reasons. He has put that in writing. He has also indicated that he is not at liberty to share those reasons because you have invoked legal privilege and not provided a waiver in that regard. So, my first clarity is can you share with this Committee those reasons that you are referred to by Mr Seanego, apart from the funding issues, which have now led to a situation where Mr Seanego is no longer on brief? So that would be my first clarity, PP.

Adv Mkhwebane: Oh, that is your first, so you will ask another one?

The Chairperson: Yes.

Adv Mkhwebane: Chairperson, I think the letter to Seanego I was copied. I think it is very clear here that Seanego is saying that is very critical that the letter of the 1st of March and the 29th of March, that is the first reason that as Seanego they are saying their mandate was terminated by [the] Public Protector by that letter. So that is the first paragraph, it addresses that. Because, irrespective of what the Deputy Public Protector and Legal services are saying, Seanego was appointed by [the] Public Protector. There are letters where the previous CEO appointed Seanego through Legal Services and all of the litigation, up until they were the people who represented me here. And that was done because they had the knowledge of the matter. Nothing more, nothing less. And that was done to save costs, instead of getting other attorneys to deal specifically with this process. They knew where the matter started from the MP Mazzone’s [Ms N Mazzone (DA)] complaint, the responses to the Speaker and all those: so that is the first issue. So, when the letter was written to them on the 1st of…actually, to me by the Deputy Public Protector, I had to share [it] with my legal team. And then as well, the CEO wrote to Seanego asking them to cost the remaining part, and Seanego responded and said ‘We cannot’ because the Evidence Leaders and them are still going to discuss in the backroom to identify the timeframe, the schedule and everything: that is the first reason. Secondly, for professional reasons, they decided for themselves; that is an added issue, but the main issue is that they have terminated the service. For professional reasons, Chairperson, there is a number of, between attorney and client, where we discuss issues and strategies on how matters should be dealt with, with the Seanego team and them preparing me for this process; but not only for this process, remember, they were my attorneys for a number of other cases. So, it is based on that. So, there is nothing I could say on the professional reasons which they are having. And I have seen here that they are also busy with some hearing and some other matters. But I think at the core, at the centre of this matter is that their mandate was terminated. And I think, Chairperson, you would see that from all my letters, wanting to make sure that this process is finalised expediently, I said Seanego is still my first preference. And then they had other than commitments, which they could not forgo. For the whole month of April, they also had their own, charting their own work, so I would not know. And I cannot say what issue is the main issue from their side. But informally, that is what they said, they will proceed with other matters. And I think that is a right that is guaranteed between attorney and client to do that.

The Chairperson: No…Thank you for that, PP. I hear you on that. Quite clearly, from where I am sitting, apart from the funding issues – let us just put funding issues aside – I am interested in, and as I have asked the question, because they cite “professional reasons” … Let us leave the funding part because that is what has held us back. And as an intervention in relation to that they are citing professional reasons for a brief that now it no longer exists. And I am only asking that if you can share with the Committee what those professional reasons are, because they get two instructions from you? And they indicated that for legal privilege, and you have not provided the waiver in that regard – I am interested in what those professional reasons are, funding issues aside, because there is a process to deal with that, including what the letter was indicating from [the] Solicitor-General. Unless I have missed you, when you explain what those professional reasons are. I would just want [you] to help me repeat that.

Adv Mkhwebane: Chairperson, I think the best way is for them to be here, for me to be here, and my legal team to be here. I do not know what are those professional reasons.

The Chairperson: So, you have no knowledge of professional reasons that you would have invoked in this manner or that now existing? Because they have done that in a written letter to us that there are professional reasons that they are not citing, and I was asking you if you can share that, but your answer is you are not aware of the existence of such professional reasons?

Adv Mkhwebane: Not necessarily that I am not aware of…The issue is there is client-attorney privileges, so for them to say: “professional reasons”, it might be that they have got a lot of other work they are doing. Or it might be that because their services were terminated, and remember, Chairperson these people they were dealing with my matters, at a very minimal negotiated rate, as Seanego. So, there is also that issue, possibly professionally, they cannot sustain themselves by continuing to do my matter. So, I think it is better to hear from them, what are those [professional reasons], if they can disclose [them]. So, for me, I said, I am asserting my rights to privilege between attorney and client because there might possibly [be] other things, which I do not know. But as far as I am concerned is that the mandate was terminated. They continued with their life. And that is all I can say.

The Chairperson: Also, as far as you are concerned, there is no problem with the professional relationship between yourself and Seanego, as things stand?

Adv Mkhwebane: I do not know of any challenges, so I would say, Chairperson, the best way to handle this is that we resolve the issue of legal representation. If they are no longer participating, let us proceed with [the] other legal representation which I have opted for, so that we can finalise the matter.

The Chairperson: Okay. Perhaps at this stage, Members, before one goes to a ruling, if there are any other clarities or questions that Members have, based on what has been tabled, or Ms Ebrahim if you want to come in first, I will allow Members if there is any question or clarities, before we make a ruling. Ms Ebrahim?

Ms Ebrahim: Thank you, Chairperson. I just wanted to place on record [that] in paragraph seven from the letter from RMT Attorneys, dated the 5th of May. And this is – I said Tshepo must put it up on the screen – where it says, “Given the fact that our client” – and the client now being the Public Protector – “is without any legal representation in the Committee and her eagerness to complete the process, but in a fair manner, she would have no objection to being represented by the State Attorney, or for that matter, any other attorney, provided, of course, that this would be done in a manner which will be fully compliant with a binding order of the Constitutional Court.” So, Chairperson, it was based on that paragraph that we then sought the assistance, via the PPSA, of the Solicitor-General, because it has been our approach since the letter of the 1st of March, in fact, not even the letter of 31 March, to do whatever we can, from the Committee’s point of view, to assist the Public Protector. So that was the reason, PP, and perhaps we have misunderstood your attorneys, but it was based on that that the ensuing correspondence was being seen to the CEO of the PPSA.  Chairperson, if I can please ask for clarity for our own purposes, for when we decide after this meeting, how we can further assist the PP? Am I correct in understanding that the PP has no objection to us putting these questions to Mr Seanego? So, in other words, you are willing to waive that right to legal privilege? And the reason I asked, Chair, is so that we can consider whether we should be writing to the PPSA to assist the PP in still retaining the services of Mr Seanego and pursuing that, rather than jumping to the second possibility which is to obtain the services of a new attorney that might assist to take the process forward. Thank you, Chair.

The Chairperson: Okay. Over to you, PP. I hope you got that clarity-seeking question.

Adv Mkhwebane: As I said, Chairperson, that I am not waiving my right to privilege. That is between attorney and client. And I do not think it is proper. Even I saw the response of Seanego, and they were here as well reminding this Committee about what were their responsibilities in this particular Committee. So, if there is a client and attorney privilege, then I do not think it is fair for you to ask that, Fatima [Ebrahim], to me to waive. And secondly, I think what we can do is for Public Protector South Africa and yourselves to speedily appoint the next attorney, and then we can negotiate how quick we can resolve them, assessing whatever they are expected to do, agreeing on how the rates and the time, which is allocated and the work, which is now remaining, so they can assess that. So, I think that is what you can do for us or for me, so that we can proceed because I would want to, indeed proceed with the legal representation being present.

The Chairperson: Okay. Thank you, PP. I hope that is clear, Ms Ebrahim?

Ms Ebrahim: Yes, thank you, Chairperson. So, my understanding now is that we will not ask PPSA to pursue the avenue of using Seanego Inc, and that it is the understanding that we now move to the possibility of new attorneys. Thank you.

The Chairperson: Okay, thank you. Honourable (Hon) Members any clarities or questions?

Ms O Maotwe (EFF): Chair?

The Chairperson: Hon Maotwe?

Ms Maotwe: Good morning, Chair. Good morning to the PP and the colleagues. Chair, I am a bit lost, because when we adjourned the last time, we agreed that the matter of the PP not having a legal rep[resentative] will be resolved [and] by that time we resume that matter would have been resolved. Now, we are back here today. The agenda is very clear, it says the evidence by the PP. But we are still asking [for] clarity on the issue that is still not resolved. The question that you just asked to [the] PP, was it not practical for you to be asking, like you have been doing, clarity through letters and all that? Why must we all convene here to listen to you asking the PP simple questions that she could have asked via letters, like you always do? Because the reality is that this agenda is misleading. We set aside time, Chairperson, to attend this meeting, to want to listen to the evidence by the PP. We have got other Portfolio Committee meetings. There is a Parliament sitting right now, [a] mini-plenary sitting. We left all that to come here, only for you to ask the PP a simple question that you could have asked through a letter. This is pure abuse and waste of resources, honestly. Can the issue of the PP legal team be resolved and us, the Committee, be called to come here and continue with this meeting? Not these things that you are doing. It is a complete waste of time. And the public is looking at us as if we are “moemish”, all of us. You now involve us in your “moemish” things…No, it is wrong, Chairperson, please. And you are asking the PP the things that you should have asked Seanego. No, Chair, this is wrong. Please, let the issue of the legal representative of the PP be finalised, call us [as] a Committee, we want to come and resume the work of the Committee, not to be dealing with back office administration. Please. Thank you.

The Chairperson: Thank you. Hon Zungula?

Mr V Zungula (ATM): Thank you, Chair. Greetings to yourself, the members of the Committee, the PP, the Evidence Leaders, support staff, everyone. Chair, I want to agree with my colleague. You would recall that during the start of this Inquiry, there were some teething problems that were identified, and it was suggested that there needs to be a back office to deal with such. Now when the back office is dealing with such it would save time from the Committee in terms of meeting in this fashion to discuss things that should have been resolved in the back office. In the last meeting, and in fact for the last few meetings, especially after the issue of the funding for the legal [re]presentation of the PP came about, it was stressed, Chairperson, that up until that process has been done and agreed to and everything has been sorted and the PP is here with her preferred legal representatives, we can proceed. You will recall, Chairperson, that number one, the PP did not suspend herself. And there is a court ruling that states that the suspension of the PP by Mr Ramaphosa [President Cyril Ramaphosa] was invalid and unlawful. Number three, Chairperson, that the Constitutional Court, in fact, even that suspension, it was clear that she must continue receiving the same type of benefits and rights she would ordinarily [have] been receiving had she not been suspended, meaning the issue of legal representation has been… There was a commitment from the unlawful… in the unlawful suspension. And also, in light of that, the Constitutional Court also said that the process must include the legal presentation of the PP: at no stage, the process must continue without legal representation. Now, we cannot keep on going back and forth on the obvious. The obvious thing is that the Committee must sit, the Inquiry must proceed having complied with that Constitutional Court order of ensuring that the PP does have the legal representatives. Now, I want, Chairperson, to put it to you that please convene the people that you need to convene in your back office at the times that are convenient for yourself. And then you can deal with these issues. But when you call a meeting, where you are going to…the Inquiry is going to proceed, like the agenda is saying that it is day what of hearing the evidence of the PP. Only bring us when that has been sorted and the legal representatives of the PP are there because rightfully so, I want to agree a lot with my colleague here, is that there are plenaries that are sitting, and some of us, you know, are taking part in various debates, which needs our thorough preparation. Therefore, we cannot be called to a meeting to hear what should have been discussed and agreed to in another forum. So, I want to move, Chairperson, that this meeting clearly cannot proceed. Number one, because still, the legal presentation of the PP is not here. So, there is no way in which you can proceed having that not being agreed to and fixed and it is now resolved. Number two, going forward, only bring us to a meeting when that has been sorted so that we do not have to do this back and forth, because we have been saying the same thing over and over again about what the court has said, what is fair, even in a hearing at a workplace, there is always legal representation, whoever that is accused, whoever that is, you know, his case is being dealt with, he is always afforded legal presentation. But it cannot be that Parliament, which is a law-making institution, is unable itself when it is conducting such a hearing to respect that fundamental right of ensuring that a person is represented by a legal representation…representative of their choice. So, Chairperson, please call us when that has been sorted. Then we can move on properly. I thank you.

The Chairperson: Thank you, Hon Zungula. Hon Malema?

Mr J Malema (EFF): No…Chair, I am covered by the two previous Speakers. Morning, colleagues. As you would know that we are busy with a lot of different types of things, and then to be convened like this, as if we are just people who have no responsibility except being on standby for this, it is a problem. We were told today that we are going to listen to [the] Public Protector and then the next thing we are here, we are listening to administrative issues. Which shows that when we adjourn here someone is not doing his or her job in the back office. She only speaks here because there are cameras, and she wants to appear on cameras. But if you are a back office, you will be someone who is camera shy, and then do all types of things, including asking people whether they waive their rights or not behind cameras. But because I like cameras, I do not do my work. I wait for the day when there are cameras so that I can show my face and pretend to be doing some work. These questions that you are asking here could have been answered by Seanego. And the Public Protector is being nice. Someone writes a letter, you ask another person, “What did that person mean?” You are very fortunate [that] you are not asking me such a question, because I will not have answered such nonsense. I did not write you a letter. Go to the author of the letter and get the answers. But because it is done for the show, you are asking the wrong person deliberately, because it is for the show. For you, it is for the show, but for her, you are humiliating her. You are continuing to violate her on things that could have been done behind closed doors. “What is this professional thing?” Because the intention is to embarrass her. But if you were a professional, you would have asked behind closed doors so that by the time we come here, we deal with the nitty-gritty of what brings us together here, not things that seek to embarrass someone. Stop embarrassing a woman, stop wearing a tie in the morning with an intention to embarrass a woman, an African woman for that matter. Be ashamed of yourself.

The Chairperson: Thank you, Hon Malema. Hon Nkosi?

Mr B Nkosi (ANC): Thank you, Chairperson. I just have two things: firstly, is that I agree that the Committee, in its work throughout, has to demonstrate transparency. And it, on its own, must be seen to be accountable through and through. And I welcome the transparency with which you are handling these issues and the consistency with which you do. But I just want to ask the following question on funding: I may have misheard, but are we having guaranteed funding for that R4 million? Or are there still negotiations for additional funding? And that matter must be clarified because then it helps us to determine the next steps…Yeah. I thought I heard that there are additional negotiations to try and resolve the issue of funding. I thought [that] we had closed that matter when the PP said they have availed only R4 million, which they have sourced from their previous unspent budgets in previous financial years, I think it is 2019/20? Thanks, Chairperson. Otherwise, I will follow your summary.

The Chairperson: Thank you, Hon Nkosi. We will respond to that question. Hon Sukers?

Ms M Sukers (ACDP): Good morning, Chair. I have lowered my hand, Chair.

The Chairperson: Thank you. Hon Mileham?

Mr K Mileham (DA): Thank you, Chairperson. Chairperson, I want to go back to the actual Constitutional Court ruling on this matter, which was the Speaker of the National Assembly versus the Public Protector and [the] Democratic Alliance versus the Public Protector. And in that judgement, the Court amended Rule 129 (3), and it reads as follows (the amended rule reads as follows): “The amended Rule now provides the Section 194 Committee, “must afford the holder of a public office the right to be heard in his or her defence, and to be assisted by a legal practitioner or other experts of his or her choice””. Chairperson, I would argue that this Committee has bent over backward to afford the Public Protector the opportunity to be assisted by a legal practitioner of her choice; that we have done everything we can do; and we are being asked to do things that are outside the remit of this Committee. I would argue that the fact that the Public Protector has not continued her relationship with Seanego, for whatever reason, is nothing to do with this Committee. Nothing, absolutely nothing, is preventing her from being assisted by a legal practitioner of her choice. And the key word here is assisted, it does not say “represented”, it says “assisted”: that is in the ConCourt (Constitutional Court) Judgement. I think that we need to be very cautious about overstepping into a realm where we should not be playing. And I think we also need to be very cautious about entertaining these continuing delaying tactics because nothing is preventing, three weeks down the line, the same thing from happening all over again, and this Committee then being delayed further. We are operating to a timeline; we do have a schedule that we need to keep. And I think that we need to take all of that on board and proceed. The Public Protector has indicated her willingness to continue with this matter. Well, now it is her opportunity to express her side of the story and to put her facts on the table. She can be represented by whomever she chooses… no, sorry, she can be assisted by whomever she chooses. But I think that we, as a Committee, must insist that the process continues and that we hear evidence as a matter of urgency. Thank you, Chair.

The Chairperson: Thank you. Thank you, Hon Mileham. I see Hon Holomisa, you have come in.

Mr B Holomisa (UDM): Good morning, Chairperson and colleagues. I heard you say that the Speaker has insisted that these hearings must be processed to the conclusion as soon as possible. And I also, regarding the same message you are conveying to us, given that between yourselves and the members of representation, why this meeting today? And you, yourselves, the Speaker herself, could not sit down and discuss this issue. The truth of the matter is that the Public Protector is not satisfied with the manner in which we are handling this matter. But she has now and again said, “I am ready to testify”. So please, please, please, Chairperson, time is running out, as the Speaker said. Go to her office, and also request the acting Public Protector to be present. And then you issue…you iron out all these administrative problems, because these are administrative problems, the way I see it. I do concur with the previous speakers who said “No, do not take chances. Sort out the main problem”. And the main problem is about legal representation. Thank you.

The Chairperson: Thank you, Hon Holomisa. I take it that those are the only hands from the Members who wanted to speak on this issue.

Ms Z Majozi (IFP): Hon Chair? My apologies, I am experiencing load shedding, so my icons are not working.

The Chairperson: Okay, I will give you an opportunity, Hon Majozi. Please, go ahead.

Ms Majozi: No…Thank you, Hon Chairperson. To all Hon Members, the Public Protector…No…Chair, I just wanted to concur with the Hon Member from the DA, who has just spoken now, that I think the Committee has been supporting the Public Protector and we have given her enough support and showed that we want to proceed with the matter so that we get to the end of it. I mean, our programme was supposed to end in June, but now with the challenges, it becomes very difficult. And to note that, as the Committee sits, it is public funds that are being wasted all the time. And if we have to postpone over and over again, then it will become a serious problem for us also to then explain why because we must justify why we have been postponing the meetings and so forth. And I think since the Public Protector knows that she does have full support in terms of getting her legal support, but the term ends in October. If that time passes without us reaching any conclusion, it is going to be a serious problem because then why would we still sit? What will be the justification that this Inquiry will need to still continue because then the term would have ended? So, I think we must really, really come to a conclusion that these proceedings do proceed and we do what is expected of us and also the Public Protector does what is expected from her side so that we finished with this process. It has been too long. The estimated time at that present moment when we started was not this…it was not supposed to take so much time. So honestly, I think sometimes we are just playing a tactic[al] games here and trying to push [the] time that we get to [the] end of October and not finish with the Inquiry. So, I think we must be decisive on this one, Chair. And if we need to get also legal advice on how then to move forward if there are cases like this, I think we should do that, so that we are able to proceed with the Inquiry. Thanks, Chair.

The Chairperson: Thank you, Hon Majozi, for your contribution. I just want to make sure that I am not closing any other Member outside before I come in. Thank you. None. Thank you, colleagues. Maybe at that point, Hon Members, I think it would be important to just clarify a few things. When we adjourned the last time when we met before we agreed on a postponement of seven days, part of the summary that was given on the day was that when we resume, we will be resuming either with the old or new legal support – just to remind Members. So, it is clear today that the issue of the old legal support in the form of Seanego has been confirmed that it is no longer in place. You would have received a lot of correspondence from that meeting up until today, that is assisting you to understand where we are. There has been a lot of information shared with you about the kinds of efforts that were put in place by ourselves in the last seven days. The PP, herself, would have written letters. And when [the] letters are written there is a response immediately expected out of those kinds of letters. So, it would not be correct to say that or to project that nothing would have happened between then; there have been a lot of things that have happened. It is important to keep on respecting the process with all of its imperfections and challenges and be patient about that. We have been very much patient up to this point. And we have advanced the issue of fairness: nobody can really complain about that. What is becoming clear today, as would have been indicated, even in the letter this morning from the Solicitor-General, is that we are now at a point where we are going to need to get the legal support of the PP, in terms of the attorneys of record. The PP has confirmed that her senior counsel remains the senior counsel, in writing, to us. The issue that is being sorted out now is the issue of the legal support. And Hon Nkosi, just to clarify the matter; what we are dealing with now, is not money, is not funding. Your understanding is correct that that has been kind of made available. The issue that we are now trying to quickly get our heads around is the issue of the legal support. That must be sorted as a matter of urgency so that there is no confusion about that…because we have developed a programme – the revised programme that has been sent to you – that is in line with what is available in terms of funding. And the Solicitor-General letter is also indicating that whatever must be done will have to be done within the available resources, not outside of those resources. I hope that clarifies the issue so that there is no confusion about us not resuming, is it because of funding. It is less about that. It is clearly about the issue of the legal support. Hon Mileham, I take your point in the clarity that you bring around that and that this matter is still going to be ventilated further because sometimes it gets interpreted in a particular way, so one really appreciate[s] that. I appreciate your comments, Members, of your impatience for us not proceeding, and your eagerness for us to quickly resume and get to our business. Your criticism to the Chair is well received, I do not think that I would want to protect our officials, as I always do. So, if there is any criticism it is directed to the Chair, and I take that on the chin, in terms of the issues that you have raised, because the officials work under the direction of this Committee and under the Chair. So, there is nothing they do just on their own. It is also important that we keep this process very transparent in the manner that we have done because it has been transparent from the start, it is going to be transparent until the end. Because even at a point when at a point we have a report is not going to be done in a dark, smoke-filled kind of room, it is going to be done here. So, questions are asked to the Public Protector, that is part of the exercise of accountability that we do. The Public Protector accounts to the National Assembly. And so, we will do it both here, but we will also do it, as you would have seen in the correspondence of the kind of questions that have been asked through those numerous letters, either letters to the PPSA, to the Public Protector, to whoever, or from the PP to the PPSA or to us. So there has been a lot of correspondence in that regard. And some of the issues, I would, I would have hoped that Members would have picked that up, therefore in that kind of correspondence. So, I think at this point, it will be fair, in summarising that the only issue now that we are attending [to], which, with the assistance of the Solicitor-General, pointed out in black and white that they are ready to assist in that regard. And the PP indicated her commitment to only needing that legal support. That is a matter that if that is what you are sending us to do, that we are going to urgently go and attend to and finalise. It is not funding; it is that legal support. And I would suggest, therefore, Members, that perhaps instead of me saying let us resume tomorrow, you give us the time to quickly attend to that. The moment we would clinch that to be able to say to you, all of that is now in place, as I have indicated. So, it would only be fair that then we adjourn the meeting, and that you will remain on standby, not because there is nothing else that you do. I have always indicated that point that once we come into the main month, there is a stampede of programmes: budget votes, constituency, and everything else that is there. We are going to indicate, as a matter of urgency, to you, Public Protector, to the Members, when we resume once we…because obviously whatever that we will do, we will be doing with also your knowledge in that regard. It is not something that we are going to do without you not being part of that process. So, I want to ask Members that we will adjourn the Inquiry. I am not going to say come tomorrow. We will indicate once we attend to that. I hope that is in order to all of you? Thank you. Just a clarity from the PP.

Adv Mkhwebane: Yes, I wanted to because I was not involved with that issue of Solicitor-General and whatever, but the fact of the matter is that the letter I wrote, as the executive authority, that the panel of attorneys…

The Chairperson: Just move closer to the mic[rophone].

Adv Mkhwebane: I am saying…Yeah, you see Chairperson. I was saying I hear you consulted [the] Solicitor-General and what he says and all those, but I was not involved. But what I am saying is that…

The Chairperson: I have…We have not. The Solicitor-General is a discussion between PPSA and Solicitor-General. We were copied to the letter.

Adv Mkhwebane: Okay. But I am just saying the letter I wrote about the attorney of my choice; I will go with the second option. And then if I can be involved in those deliberations and everything so that we can proceed because I think PPSA was also having some strange way of dealing with this. And I think, hence the last time I said, possibly the Auditor-General should come in so that they understand you cannot just give me R4 million as a blank cheque because there are laws to be complied with. Hence, using the panel of attorneys, and the PPSA operationally, the accounting officer will still handle the negotiations, the agreement, the legal fees, the timeframes, and all those. So, I just wanted to clarify that. And then once that is done, then we can proceed. Thank you.

The Chairperson: Thank you. Thank you, PP. That was always my understanding that whatever that we are going to do, you [are] going to be involved in that process. I am aware of the letter you sent about Seanego and the other attorneys. So that remains in order. There should not be a problem with that. So, thank you, Members. So, when we do that, it will also go with a revised programme, in that regard, when we give you that announcement of the resumption in a very urgent space of time. Thank you very much. The meeting is adjourned.

The meeting was adjourned.


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