PP Inquiry day 80: Committee Report deliberations

Meeting report

Chairperson: Good morning, colleagues. Welcome to our continuing meeting. Let me welcome all of you Members, all of us on the virtual platform, the invited evidence leaders to our meeting, members of the media who are joining us and members of the public. This is a continuation of our meeting that we started on Friday, with the sole purpose of drafting our report as scheduled and programmed, but also as expected as part of our mandate. We concluded with Vrede on Friday at about quarter past eight and agreed that we meet today at nine to proceed to the FSCA and the rest of the charges in the motion. I will therefore not waste any further time. We will start now, four minutes past nine. And I will invite the evidence leaders again and as part of the exercise to do the brief context on that one. This one is supposed to be much shorter than the others and I hope we’ll be as laser focused as we can be. I now invite Adv Bawa.

Adv Nazreen Bawa, SC, Evidence Leader: Good morning, Chair. It seems as if my video for some reason doesn't want to go on.

Chairperson: You’re not the only one. The Members and virtual platform, none of them was able to show their face. Please go ahead. You will see me throughout the day. Don’t worry.

Adv Bawa: Okay. So Chair, Adv Mayosi is going to be dealing with the next couple of sections, and I will come in at some point. So what the order in which we’re going to do it is to deal with the subject matter along the format, or in the order of what it was set out in the summations. Thank you, Chair.

Chairperson: Thank you over to you, Adv Mayosi... Adv Mayosi, are you there?

Adv Ncumisa Mayosi, Evidence Leader: Thank you. Thank you, Chair. I’m here, but I’ll switch off my video, because there’s lots of confusing things happening here.

Chairperson: No problem.

Para 7.3 of the Motion
Adv Mayosi: The charge that relates to the FSCA, which was the successor of the Financial Services Board is the charge that is in paragraph 7.3 of the motion. And it relates to a report that was issued by the Public Protector, Report number 46 of 2018/19 that emanated from a complaint launched by the leader of the EFF Mr Julius Malema in relation to certain aspects, alleging maladministration at the Financial Services Board as it was then called. So the investigation emanated in a report that was issued. The FSCA then challenged that report. So, in the founding affidavit in the review application of the FSCA, they made a number of criticisms against the Public Protector, including that the conclusions that she reached against the FSCA and against the then CEO of the FSCA Adv Tshidi... the conclusions were unreasoned, the conclusions and findings were not explained, they were arbitrary, they were unjustified. What then ultimately happened in the litigation is that the Public Protector decided not to contest the review application after it was launched. What she did, she proposed a draft order in the sense of the parties agree to review and set aside the FSCA report, and that costs be dealt with in a certain way. The parties couldn’t agree on an order on that basis. So she nevertheless then filed an affidavit in response to the founding affidavit of the FSCA and Adv Tshidi. And in that affidavit that she filed, the answering affidavit, she didn’t deal at all with the criticisms that were made against her about bias, about not having considered the matters as she should have, about her report having been unreasoned and so on. So in the founding affidavit, she really concentrated on the question of jurisdiction, what are the things that was raised. And this is a matter that arises... this is an issue that arises in a lot of the cases that are before this Inquiry, is the fact that she investigated a matter... a complaint that related to things that happened more than two years previously. So the complaint, one of the issues here was the question of jurisdiction. So in her answering affidavit, that’s what she focused on - the question of jurisdiction. And what she really wanted was for the matter to be remitted back to her for her to investigate again. So she didn’t deal with the criticisms against her conduct, against her actions, the criticisms of bias, and so on, and so on. So the charge really relates to her failure to have dealt with that, with those issues. And one of the issues raised by the FSCA in relation to her is that as a litigant in a court, she has a higher duty to explain herself, to explain her decisions. She considered the review, but she didn’t really explain why it is that she considered the review. She didn’t really explain what the decisions were backed up by, and that was the issue. That’s the issue that’s raised in the charge so charge 7.3 really talks about Adv Mkhwebane’s failure in the litigation related to the FSCA matter. What it says is that because she considered the review without explaining herself, she then considered that the irrationality and forensic weakness that the applicant, FSCA, was alleging in the papers, was founded. She failed to appreciate her heightened duty towards a court to explain herself to the court as far as her decisions are concerned, and that’s what really this matter is about. Unless there are questions, Chair, that’s the context...

Chairperson: Thank you. Because, you know, when you land or stop, you don’t indicate that. You just pause. Seems like you’re looking for something or still continuing. So, thank you. I take it that you have landed. Thank you for that. That’s the context, Hon Members... Tshepo, today we’re going to be... I want you to be quicker to put up the questions, so that I go to the Members for their commentary. And the issues here, it’s about us... because the matter here is that in the litigation, unlike your “Lifeboat” and others, in the litigation in respect of this one, we want to check if Adv Mkhwebane... and it's been now confirmed in the context, whether she declined to defend the lawfulness of the findings and the remedial action in the report, or also, whether she failed to give proper explanation for her findings or remedial action. And if that is the case, to further respond to whether she considered that the FSCA report was irrational, forensically weak and misunderstood and misapplied legal principles. And whether she demonstrated a failure to appreciate the Public Protectors heightened duty towards the court as a public litigant. I invite you Members, having listened to that summation of the context and the refreshing of what’s involved in this particular charge. I want to invite you to comment and make your contributions.

Ms D Dlakude (ANC): Thank you very much, Hon Chair. Chair. I’ll just show my face and switch off my video. Thank you. Hon Chairperson. I fully agree with the summary given by Adv Mayosi, that the Public Protector failed to defend her conclusions. She further did not explain why the conclusions drawn by the applicants were wrong, including that of bad faith, improper motive and just honesty. She simply refused to explain herself. What is of concern is that the PP did not afford Adv Tshidi and others an opportunity to respond to the submissions of the EFF. She disregarded the documents filed by Adv Tshidi and others. She failed to consider evidence of the third parties that supported them. It was apparent that she selectively used evidence to suit the decision she wished to take. She was simply going through the motions and had already made up her mind to uphold the allegations against Adv Tshidi and others. She further failed to disclose the fact that her meetings with the EFF did not give the implicated parties an opportunity to respond to the information received from the EFF. The parties learned about these submissions in Rule 53, filed by the PP. I submit, Hon Chair.

Chairperson: Thank you, Hon Dlakude, for you contribution. Hon Nkosi?

Mr B Nkosi (ANC): Thanks, Chair. This is myself; may I please switch off now?

Chairperson: You can, go ahead. We know you.

Mr Nkosi: I’m not AI. No, Chair. I think I agree with Hon Dlakude. A concern for me is that the Public Protector does not deal with this charge in her evidence before the Committee. And as shown in the summation, that she only refers to it in relation to other charges of maladministration in relation to management of the Office. So, it is concerning that such a gross conduct or neglect on her side... allegations, sorry, would go unanswered by her. This is very serious, Chair. So, I agree.

Chairperson: Thank you. Thank you, Hon Nkosi, for that contribution. Any other Member who wants to make a contribution? Hon Siwela?

Ms V Siwela (ANC): Thank you, Chairperson. You can see...

Chairperson: Yeah, we see you. We see you.

Ms Siwela: I’m still there. Thank you. Chair. I just want to support the summary by Adv Mayosi; and also to concur with the two speakers that indeed our PP has failed to respond. So to me, that was a gross misconduct, because denying to respond or to defend yourself; it is highly questionable, that’s my concern. But in short, I support the summary, thank you... and the two speakers.

Chairperson: Thank you. Thank you for the contribution, Hon Siwela. If there’re no further contributions... is there a dissenting or a different view to what has been shared? There being none, I now proceed. We’ll proceed to the next charge. Ms Mori, you’re going to be much faster with me today. I'll only read the questions when you put them up there. So you have a heightened duty yourself, to assist the Chair today... We’re going to the next charge.

Para 10 of the Motion
Adv Mayosi: We’re trying to work things out with Tshepo. So, Chair, the next charge is charge 4. And this is the charge of misconduct and/or incompetence. It has various layers from paragraph 10 to paragraph 11.4. For the moment, I’m going to be dealing with paragraph 10. This is the charge which has commonly been referred to as the HR issues. And what the charge really involves is an allegation that Adv Mkhwebane has herself intimidated, harassed and/or victimised staff in general - staff in general in the Office, or has failed to protect staff in the Office when they have been victimised, harassed and/or intimidated by the former CEO, Mr Mahlangu. Again, that relates to staff in general. But then the charge also involves, it particularises certain individuals, which are named in the charge.

Chairperson: Just a pause, Adv Mayosi. Hon Nkosi, is that your old hand, or is that a new hand? Hon Nkosi... I take it it’s an old hand. Go ahead, Adv Mayosi.

Adv Mayosi: Thank you. So the charges deal with staff in general. And it also deals with staff...

Mr Nkosi: It’s an old hand, Chair.

Chairperson: Thank you. Thank you.

Adv Mayosi: Staff that are named in the charge. So I think the exercise that the Committee is going to be required to pursue is whether the evidence establishes victimisation, intimidation, harassment, in relation to staff in general. And whether those things are established in relation to the particular individuals that are named. So there was evidence that was led by the Executive Managers in the organisation. And Adv Mpofu on behalf of Adv Mkhwebane made much of the fact that there was no relevance to calling all of these people to speak to this charge. But the people who were called - the witnesses that were called by the evidence leaders didn’t come to speak only to this charge. They came to speak about Vrede, about CIEX and about other things. But because they were staff members in the organisation at the relevant time, they also then spoke to this aspect of it. So I think, Chair, we need to deal with each individual that is named here first, and go through that for the sake of expediency. And then the Committee obviously needs to decide whether the evidence establishes any of these issues in relation to each one of those individuals, and then in relation to staff members, period. So the question around Mr Sphelo Samuel, he of course was involved in the assault with Mr Seabi in 2011. He then left the Limpopo office, and he went back to Free State. And ultimately... he wrote an affidavit to the Speaker in March 2020. And then he was charged with in relation to the assaults, amongst other charges, disciplinary charges in the organisation on the 11th of March. Whilst Mr Samuel said in his evidence, he himself didn’t feel intimidated or harassed. There seems to be a suggestion that the charges relating to the assault were connected to the fact that he had written the affidavit or the statement to the Speaker on the 10th of March. And he was making interviews and he had come out. And he in his own version was a whistleblower. So I think there needs to be some kind of debate in the Committee around whether the evidence establishes some kind of victimisation or harassment or intimidation in connection with that. And I leave it there, Chair, with Mr Sphelo Samuel, before we move on to the next individual.

Chairperson: Okay, I think that helps. So that way, we take them one by one. Thank you, Adv Mayosi. And therefore, Members I’m inviting you, I think, to respond to the question whether in your own view, having been part of this Inquiry from the beginning, having listened to witnesses with testimonies presented, whether you’re able to find whether there’s evidence of intimidation and harassment to each of these members. There's much a broader question around Mr Sphelo Samuel given the issues there, which might not be the same as other members. But I’m inviting you to respond and make your contribution. Hon Xola Nqola?

Mr X Nqola (ANC): Well thanks, Chair. I think, yes indeed, this is a correct approach that we take them one by one, because their situation may not be the same and we’d not like to a cover them at once whilst the merits of their issues are not the same. Chair, I think with Mr Samuel, there are issues that were raised even on the reasons why he was moved to Free State. In that the relationship in the head office degenerated to an extent that he had to be moved to Free State. But more than that, Chair, leave the issues of him not being greeted by a person they were investigating and all those things, I don’t think they are really material. But I remember to a certain extent when the Public Protector alleged that Mr Samuel did not even attend the inspection in loco in the Vrede Dairy farm report investigation, until Mr Samuel came and showed a photo of him with the Public Protector in the inspection in loco, which was an antithesis of what the PP said. But then, Chair, I think the presentation from the PP’s side was only on issues of Mr Samuel having been suspended for assault and all those things. It did not really go to the merits of what Mr Samuel was alleging as an intimidation and harassment from his employer. From where I’m seated, Chair, the version of Mr Samuel still remains undisputed, because when the PP was supposed to come and disprove what Mr Samuel was alleging, the PP focused on Mr Samuel having assaulted someone else, blah blah blah. And even went to an extent of calling the person as a witness to tell the occurrence of that day. So as it relates to Mr Samuel, Chair, I stand to think that indeed Mr Samuel was harassed and intimidated. Thank you very much.

Chairperson: Just before you sit down, so that you combine all of the elements for each individual. You’d have to respond whether there would have been harassment or intimidation to Mr Samuel by the PP, or alternatively Mr Mahlangu as the CEO would have done this on behalf of the PP – both harassment and victimisation. It would help just to speak to all of those.

Mr Nqola: Chair, the reason why I’m focusing on the PP, it’s because the PP even went to an extent of saying Mr Samuel did not attend the inspection in loco. And that was actually proven to be not true. So from where I’m seated is some sort of intimidation and harassment of staff, by the Public Protector. Yes, there are cases where you see that Mr Mahlangu, the then CEO, was pointed to have harassed someone and all that. But in this case it does show directly that it’s the PP... Chair, you’ll remember the story that was narrated to the Committee by Mr Samuel on the provincial headquarters of the Free State government and all those things. So from where I'm seated, Chair, Mr Samuel was indeed a victim of intimidation. Thank you very much.

Chairperson: Thank you, Mr Nqola, for your contribution. Hon Sukers?

Ms M Sukers (ACDP): Good morning, Chair. Good morning to all my colleagues and everyone on the platform. Yes, Chair. I would agree with what was said by my colleague...

Chairperson: Hon Sukers. Hon Sukers, you can switch off your camera now... Thank you, go ahead.

Ms Sukers: Yes, I think Mr Samuel is one of those witnesses, Chair, that certainly I felt was even in his testimony when he came before the Committee, suffered greatly, both his professional credibility, you know, in how he was treated before the Committee. And I would agree that, yes, Mr Samuel was victimised. And the sequence of events in terms of the original incident that happened at Public Protector subsequently under then Public Protector Thuli Madonsela. And then the complaint by Mr Samuel followed the disciplinary action that was taken against him. He was victimised by both Vussy Mahlangu and by Adv Mkhwebane, because it is unfair for a matter to be brought against the person in the timeline that it has been brought against him. Then following his complaint, is exactly the same circumstance that was brought by the Public Protector and her lawyer, regarding unbiased treatment when there is a case against... say for instance in this case the CR17 story, the Phala Phala, all of that. You have elements of the same; you can then apply the same here. But I'm not going to defer to that, other than to say the sequence of events, what has been transpired since he lodged the complaint with the Speaker and his subsequent treatment; it does relate or come to victimisation. One thing that I also want to highlight that was actually very painful that we didn’t bring up was when the then CEO was testifying and made it a point to say that Mr Samuel was ill all the time. You know, the dignity of Mr Samuel is suffered greatly, I believe. And I think at the time of his testimony he was still not reinstated. There is a clear case of victimisation and that it was in the institution, it was not addressed properly. And you can only say that then there was a campaign to deal with this man decisively. Thank you, Chair.

Chairperson: Thank you, Hon Sukers, for that contribution. Hon Mananiso?

Ms J Mananiso (ANC): Thank you, Chairperson. Chair, one would want to heartily agree with my colleagues who have spoken before me. And I want to say that, indeed, the testimony that came before us didn’t give us a sense in terms of the response of the PP. However, one has seen that with the testimony that came before us through Mr Samuel, Mr Samuel was victimised. And as well, what the PP did, it was to retaliate to Mr Samuel. That's it from me, with regards to her using her power and authority. That's my submission, Chairperson.

Chairperson: Okay, thank you. Hon Dlakude?

Hon Dlakude: Thank you very much, Hon Chair. Hon Chair, my apologies. I really agree with my colleagues who spoke before me, especially Hon Nqola. Hon Chair, Mr Samuel appeared before this Committee as a as a witness, and he raised those issues of victimisation and intimidation within the institution by both the PP and Mr Mahlangu. So what we expected as a Committee was for the PP’s defence to prove to us that there was no such. Unfortunately, the focus was on Mr Samuel - that he victimised, that he assaulted someone else, who then was called to appear before the Committee as a witness. So without any evidence that rebuts what was said before the Committee by Mr Samuel, then for me it seems that the victimisation and intimidation did take place. And also to say that Mr Samuel also brought in after being accused of not participating in the local inspection and all those things. He then showed us a proof of him with the PP during the loco inspection. So I want to say Hon Chair, to agree with the sentiments expressed by Hon Nqola, to say that those... The witness Mr Samuel, what he gave to this Committee stands, Chairperson. There was victimisation, there was intimidation by both the PP and Mr Mahlangu. Thank you.

Chairperson: Thank you, Hon Dlakude. Hon Lotriet?

Prof A Lotriet (DA): Thank you, Chair, and good morning to all the colleagues. Chair, I would also support what has been said. And I think it is quite clear from the evidence that was led, that even the CCMA exonerated Mr Samuel. And if I just look at some of what the Commissioner found there, that some of the charges were deemed to be hopeless, and could not constitute misconduct by any stretch of the imagination, and that the disciplinary action is a clear demonstration of anger. So that clearly to me indicates that there was indeed a case of victimisation. And also, as I think Hon Sukers said that the disciplinary charges were instituted exactly the day after Mr Samuel laid a complaint. So to my mind, I think there are clear evidence of victimisation. Thank you.

Chairperson: Thank you for your contribution. Hon Siwela?

Ms Siwela: Thank you, Chairperson. Chair, I want to concur with the other speakers. That evidence given before this Committee by Mr Samuel really indicated the issue of victimisation, most special from her side. And then the issue of saying that he was not part of the inspection which happened, where he proved by producing pictures before us, is also questionable. So again, the focus was on the assault. But if I remember very very well, the person who claimed to have been assaulted, when he gave evidence before this Committee, it was the issue of “kamina kawena”, because they beat each other, because that’s what we heard in this Committee. But the issue of victimisation to Mr Samuel was high, and the PP failed to defend that here with her team. So I’m really in support of what other Hon Members are saying, that Mr Samuel was victimised. Thank you, Chair.

Chairperson: Thank you, Hon Siwela. I remember you put the “kamina kawena” to Mr Seabi. you seem to be consistent on that. Thank you for your contribution. Any other Member on this matter, who wants to contribute? Hon Thlape?

Ms M Tlhape (ANC): Thank you, Chair, and good morning. Chair, I’m looking at the questions and what is outstanding for me was the proof to... which then brings a lot of responses that the Hon Members has brought in of victimisation, of intimidation and whatever. But the protection of the employer of Mr Samuel, I found it wanting on the issue that he fought with the client, because there’s always two sides of the story. Now you can’t just institute a disciplinary action without hearing both sides. Hence, I would speak to issues of being threatened and having DC instituted against him. So that lacked protection from those that employed. And Hon... I think it’s Hon Sukers, spoke about him always being sick – according to the CEO. That is a sign of burnout. When you look into issues of labour relations, if you’re not happy with the environment, working environment is not conducive, you are bound to such signs of burnout... Thanks.

Chairperson: Thank you very much, Hon Thlape, in adding also other elements for completeness. Thank you. Any other Member? Hon Nkosi?

Mr Nkosi: Chair, I agree broadly with what Members are saying, but I just want to note the Independent Panel did not find Mr Samuel’s evidence to raise prima facie evidence of victimisation. Therefore, in terms of our finding, it will be based strictly on what he gave evidence... I mean, on what he said in the Committee, in his evidence... to deduce from that, there was harassment by or on behalf of the Public Protector. In this regard, I think that as Members we should really use our aide-memoire to arrive at that decision, so that we’re able to reach a decision independent of the Independent Panel, ourselves. So that it must be clear that it is not the finding of the IP, but it is what we are deducing from out interaction with the witness and exercising our original responsibility. Thanks, Chair.

Chairperson: Thank you very much for bringing up that angle, Hon Nkosi. Any other Member? And is there a Member with a different view or dissenting view of what has been said so far? None. Adv Mayosi, any final remarks you want to make?

Adv Mayosi: Chair, I think there’s an aspect that Members need to speak to, which is whether or not the charges that he faced were trumped-up, which is in paragraph 34 of the questions. I think that is an aspect that needs to be spoken to.

Chairperson: Oh okay... Thank you. Any quick response to that, Members? Any Member? Hon Sukers?

Ms Sukers: Yes, Chair. My comment on that, Chair, is just the timeline, I think. The timeline speaks to … like I said, I called it a “campaign”, but I think it seemed as if the charges and the disciplinary action, all of that followed Mr Samuel’s complaint. And it is within that context that one can say that these things were brought up, because of Mr Samuel’s complaint.

Chairperson: Almost like a reaction, is that what you’re saying? Okay.

Mr Nkosi: Chair? Bheki Nkosi here. I tend to agree that the charges wouldn’t have been brought up had Mr Samuel not challenged not the authority but the decision-making process and arriving at decisions inconsistent with the requirements... I mean, with the prescripts of the PP’s Office, and be seen to be standing up to authority like that. What you call in our parlance, speaking truth to power. And I think on that basis, if now strictly not speaking in terms of what evidence is here before us, but in respect of the type of atmosphere that ensued after the appointment of the PP, it’s clear that she brooked no dissent to what she thought should happen. And therefore, these charges, for me, arise from the fact that Mr Samuel stood up to her authority and stood his ground in relation to what he knew was supposed to be done. So they were trumped-up for me. Thanks.

Chairperson: Thank you, Hon Nkosi. As I go to Hon Mileham, Maneli and Van Minnen, I’m going to ask Hon Mananiso and Thlape to drop your hands, if it’s old hands, unless it’s new hands. So that I can see who’s next... and as well as Hon Sukers. Hon Mileham?

Mr K Mileham (DA): Thank you, Chairperson. Chairperson, my only comment with regard to the charges against Mr Samuel... and I'm struggling to recall the exact nature of the charges, but the incident with Mr Seabi, Mr Samuel admitted that that altercation took place. And I think that a charge is not a guilty finding, it’s a process that has to be answered. And so I think that with regard to the altercation with Mr Seabi, I think that there may well be validity to those charges. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Maneli?

Mr B Maneli (ANC): Thank you, Chair...

Chairperson: Yes, you can switch off your video, so that you save your network.

Mr Maneli: I just wanted you to confirm, Chair, that it’s me...

Chairperson: Yes, it is Boyce Maneli. I can see.

Mr Maneli: Thank you, Chair. Of course, Chair, the other points are already covered, and I wanted to just come to the point raised by Hon Nkosi, on the timing of the charges as a reaction to what would have come. And I want to indicate, Chair, from evidence led, you would then understand that this is not just at that end point where he finally approached other authorities. But given his standing, he would be represented in forums where matters get to be engaged. And in that engagement, he would have raised these matters that make their work to be not easy, be it ability to go out and do physical engagement as investigators and so on. And those matters would be dismissed. However, there will be demand to meet the deadlines. And those deadlines would lead to what Hon Member Manketsi would have raised about being “burnout” and so on, and you’re still expected to respond. The question was whether the employer has been able to help them to do the work. And it was clear at that time that protection wasn’t there, but there was a demand for meeting deadlines. And therefore, because you can’t find anything else there, that’s why even this part about the assault could be seen as trying to find something that you can use, because on the matters before you, you can pin the person down. That’s the submission I wanted to make, Chair, in agreeing to “trumped-up”.

Chairperson: Thank you, Hon Maneli for the contribution. Hon Van Minnen, to be followed by Hon Siwela as the last speaker on the line.

Ms B Van Minnen (DA): Thank you very much, Chair. I think on the issue of the charges, I certainly think there’s an indication that the charges were... I don’t necessarily want to go as far as to say “trumped-up", but certainly massaged. But I do think the question needs to be whether or not the threshold of suitable proof is reached. I think the assault certainly did happen. I think there may well have been a defence against those charges of provocation. And I think that that goes to really strengthen the suggestion that the charges were massaged to be more than there were. But I’m not entirely convinced that the necessary threshold of proof has been reached in this regard. But I certainly think there are indications of the charges being “assisted” should we say. Thanks.

Chairperson: Thank you, Hon Van Minnen. Hon Siwela?

Ms Siwela: Thanks, Chairperson. Without waste of time, Chair, to me the timing of the charges is highly questionable, because you complain today, tomorrow you’re being charged. So to me this was a pure revenge, which was happening or occurring to Mr Samuel. The charges really wanted just to indicate or suppress Mr Samuel on his way to justice, because he complained. My belief is that the authority there, or all those who were in power, they were supposed to listen to his complaint, but because he had no powers, and that’s what happened to him. So the timing itself, it’s highly questionable, Chairperson. Thank you.

Chairperson: Thank you, Hon Siwela. Thank you, Hon Members. Any dissenting view or a different view on what has been shared in terms of the last point, 34? Thank you, there being none, we now proceed to 10.2 of the Motion. Adv Mayosi?

Para 10.2 of the Motion
Adv Mayosi: Yes. Thank you, Chair. We now move to Mr Abongile Madiba and the questions of whether there’s evidence of intimidation, harassment and victimisation in relation to him. As Members will know, Mr Madiba passed away according to the evidence of Ms Mogaladi, a month after he was found guilty on the disciplinary charges that were put to him arising from his involvement in the FSCA investigation. So he obviously wasn't... his direct evidence was obviously not part of the proceedings of this Inquiry. His evidence was... evidence in relation to him was given by Ms Mogaladi. And her evidence was she felt that Adv Mkhwebane displayed an uncompassionate attitude towards him, because he was not well and he was a good investigator, a competent investigator. And he was required to perform at certain levels were Ms Mogaladi according to her evidence, she felt he wasn’t particularly supported, given his health challenges. The evidence that Ms Mogaladi led in relation to Mr Madiba was also in regard to what the Executive Managers relayed as the unreasonable deadlines and Adv Mkhwebane’s rigid and unbending attitude to when it came to deadlines. And that’s the memorandum of the 2nd of November, where Mr Madiba explained to the PP why it is that he couldn’t deliver on the section 7(9)’s that he was required to deliver at the time... and he requested an extension. The PP’s response was to reject that request for an extension and to in fact instruct that warning letters be issued to Mr Madiba and Ms Sekele as a result of their failure to deliver on what they were supposed to deliver. So I will leave it there, Chair. The evidence is also relevant to the next paragraph, which is 11.1, about internal capacity and effective and efficient use of resources. But I’ll leave it there when it comes to Mr Madiba.

Chairperson: Thank you, Adv Mayosi. Members, there you are in terms of your responses. So that you respond to these questions, but generally to indicate whether there is established evidence from what we’ve gone through to indicate that Adv Mkhwebane intimidated and harassed, as well as victimised Mr Madiba. Whether Mr Mahlangu himself harassed, intimidated and victimised Mr Madiba? And if Mr Mahlangu did that, and if Adv Mkhwebane did that, where there any steps taken to protect Mr Madiba? I now invite Members. Hon Herron?

Mr B Herron (GOOD): Good morning, Chair. Actually, before we get into the question, and maybe it also relates to the previous question, I wonder if either Ms Ebrahim or Adv Bawa can talk about whether we’re dealing with the splitting of charges or proliferation of charges. Where the same incident does now lead to several charges. Are we in that territory where we are dealing with splitting of charges? Can we get clarity on that from a legal perspective?

Chairperson: Okay, I will ask Adv Bawa to respond to that. Did you get that Adv Bawa or Adv Mayosi?

Adv Mayosi: Sorry, Chair. Can the Hon Member Herron just clarify the question?

Chairperson: Okay. Please come back Hon Herron.

Mr Herron: I’m asking whether these questions and these charges, which certainly Mr Madiba if I remember correctly, arises out of the same incident. And the same as Mr Samuel, his disciplinary charges. Whether in the Motion the charges that are put to Adv Mkhwebane were not venturing into... or we not ourselves creating a proliferation of charges? In other words, the same incident is getting raised to several charges, and that sort of throwing everything at Adv Mkhwebane that could possibly be thrown without identifying the correct or the only charges... So I’m just asking, are we not venturing into splitting of charges here?

Chairperson: Okay, thank you. Adv Mayosi?

Adv Mayosi: Just from an evidence perspective, the incident in relation to Mr Samuel is a different one. It arose from an assault that occurred in 2011, it doesn’t intersect with what ultimately occurred as far as the evidence that’s before this Committee in relation to Mr Madiba in 2018. The Hon Member will be aware, as well as other Members, that the evidence in relation to Mr Madiba is very limited. It was really led by other people who spoke about him, including Mr Lamula who was called by the PP, who had different evidence about him. So they don’t relate to the same incidents. But the question really for the Committee is whether the evidence that is before this Committee now, in relation to Mr Madiba, really rises to the level of establishing harassment, victimisation or intimidation on the part of either Mr Mahlangu or the PP. So my answer would be the evidence relates to different incidents and different experiences of the investigators. But the question really for the Committee to answer is whether the evidence as it stands in relation to Mr Madiba rises to the level of what is required.

Mr Herron: Chair, may I just clarify? I'm not asking... I do understand that the charge relating to Mr Samuel is a different incident to the charge relating to Mr Madiba. And on both cases, I'm asking the way these questions are phrased, “Did Adv Mkhwebane intimidate Mr Madiba?”, using the same incident are we going to say that... Are we not splitting the charges if we talking about intimidation, harassment, victimisation all arising from one incident? And similar to Mr Madiba, we asked all these questions arising out of one incident, which is the proffering of disciplinary charges. So I’m asking are we not with both of these maybe, splitting charges by asking... If we were to find Mr Madiba was intimidated and harassed and victimised all arising out of the same incident, is that not a splitting of charges?

Chairperson: Adv Mayosi, over to you.

Adv Mayosi: Yes. So I think that question is a question that the Committee would need to consider in relation to Mr Madiba, Ms Sekele and Ms Mogaladi, rather than Mr Madiba and Mr Samuel, because the incidents there are different. Mr Madiba, Ms Sekele and Ms Mogaladi - disciplinary proceedings were pursued in relation to them arising from their conduct in the FSCA matter. And when the Committee deliberates about whether or not charges were trumped-up, that is where the Committee’s going to have to make that finding, that it’s a splitting of charges or not. But paragraph 10 talks about things that happened to staff in general, as well as to the particularised individuals. So I think the answer that I would give to Hon Herron is I think the question arises with Mr Madiba, Ms Seleke and Ms Mogaladi, around the splitting of charges. And there’s a debate that the Committee should have there, in relation to those individuals, but not in relation to whatever happened to Mr Samuel.

Chairperson: Okay, thank you. Thank you, Adv Mayosi. I hope that helps. Hon Members, Hon wanted clarities around the donation of the charges and whether we’re splitting them. But the questions remain on Mr Madiba. So I’m still inviting Members to respond to that. Any take from any Member on whether there is any evidence that establishes any of those harassment, intimidation and victimisation by both the PP and Mr Mahlangu on Mr Madiba? Hon Nkosi?

Mr Nkosi: Thanks, Chairperson. I think that in relation to Mr Madiba the following for me, one, he in relation to the FSCA matter, indicated that the deadline would not be met and requested an extension. That extension was refused by the Public Protector irrespective of a detailed explanation that was given, and the deadline was imposed. So not taking into consideration the circumstances that the investigator faced, the Public Protector and Mr Vussy Mahlangu seem to have insisted that this deadline be met. Just to use a different analogy, it’s a form of Fordism. You know, systems must flow; one must lead to the other in a mechanical way until you have the final product. Unfortunately, the nature of the work that it does seem the Public Protector deals with, does not respond to a mechanical factory-oriented method. Where there are, for example, we heard that there are some issues that are third-party dependent. If a department doesn’t respond, if a person affected doesn’t respond, it affects the internal deadlines. So you can’t approach it in a mechanical way. The other issue is really that at the time Mr Madiba is said to have been of ill health. So instead of addressing the ill health issues, or giving him time to recuperate, or asking him if he is coping with the issue and therefore it be shifted to another person, an insistence was made that these deadlines be met. So in my view, yes, he was intimidated, harassed and he was not given protection by the Public Protector implemented through the instrumentation of Mr Vussy Mahlangu as the Acting CEO. Thanks Chair... Chair, I'm done...

Chairperson: Hon Nkosi, I got cut out while you were speaking, are you done?

Mr Nkosi: Yes, I’m done, Chair. I was surprised I was speaking alone. I’m checking, I don’t have loadshedding now.

Chairperson: Okay, I would have missed a bit of what you said. But let’s continue. I think we treat these more as observations and not necessarily findings. But Hon Herron, your contribution?

Mr Herron: Hon Chair. Yeah, I don’t think that we had evidence that rises to the level that can find intimidation, harassment or victimisation. I think, first of all... unfortunately, Mr Madiba has passed away and was unable to give his own evidence. But the fact that an unreasonable deadline was imposed on an employee does not amount in my view to intimidation, harassment or victimisation. It may just be an unreasonable management attitude. And if I remember the evidence correctly, Mr Madiba was then given an audi letter, which would have allowed him to respond to say why he couldn’t meet the deadline, and there was no further action taken against him. So I don’t think that we’ve established evidence of harassment or victimisation or intimidation. Thank you.

Chairperson: Thank you, Hon Herron. There’s a concrete view raised there by Hon Herron, that it doesn’t amount to what we have come across, it doesn’t amount to those issues as evidence. Let me hear Hon Sukers and Hon Mileham.

Ms Sukers: Chair, I’m relying on my memory, and I think the evidence leaders can maybe respond to that. I recall that there was disciplinary action instituted against Mr Madiba, and that reference was made by the witness that in one of the meetings his son had to accompany him, because of Mr Madiba’s deteriorating health. I mentioned this in response to what was said by Hon Herron. And also, to add that in general it seems that if there was a punitive culture... we spent a lot of time on the question of the environment and the impact it had on the outputs of the organisation or the performance of the organisation, especially in relation to the judgment. So what I want to say is that there certainly was an environment where Mr Madiba – or the testimony then of his colleague, I think was his line manager at the time, indicated that the overall environment and the pressure on deadlines and the insistence on the timelines, even the reducing of timelines and the impact it had on Mr Madiba, it has to do with the culture of the organisation. And I think I just want to respond to that. And inevitably that leads to the performance outputs of an organisation, and it has an impact on the individuals in the organisation for them then to feel that either they are harassed, or they are intimidated... Yeah, I just wanted to respond to that. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. Before I go to Hon Mileham, so the point you’re making you’re not disagreeing with Hon Herron that we’re not able to establish that there would have been harassment, victimisation and intimidation by both the suspended PP and Mr Mahlangu, but rather you are arguing that we would have established a very unhealthy and unhappy environment which would impact on the performance of staff. So that’s a point I take from you. Let me proceed. Hon Mileham?

Mr Mileham: Thank you, Chairperson. I want to concur completely with what Hon Sukers has just said about the way Mr Madiba was treated, particularly during his period of ill health. But my concern arises primarily from the use of audi letters and the manner in which they were used. And it appears to me that audi letters were weaponised, in that many issues could have been resolved by simple sit down and chat with the affected person. But instead, the approach was used for doing a formal disciplinary process - you have an audi letter, you must respond, here’s a timeline and there will be consequences thereafter. So I am concerned that the use of audi letters became weaponised under Adv Mkhwebane and Mr Mahlangu. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Maneli, to be followed by Hon Nkosi.

Mr Maneli: Thank you, Hon Chair. I think the points about the environment I was going to raise, that is already raised. But I think the structure of the questions as it relates to Mr Madiba brings this difficulty, Chair. Because as I was quiet, I was trying to rely on memory and checking on my notes... is that counter to this argument of him not being treated well and so on, still having to meet deadlines, was that necessarily from a point of commitment of Mr Madiba, may his soul rest in peace, was such that he would not let go off the task, because he would want to complete what he would have started. And this was shown as a way of trying to give him the support. I'm saying the counter, and that would have been given. Now in this case when faced with that reality, Chair, is that even the supervisor of Mr Madiba, it will be relative as it is not led evidence by Mr Madiba himself given that reality. And therefore, even the counter in that regard, would have been on the basis of how they relate to Mr Madiba, and that that they call support that they were trying to give. And I'm saying then in the absence of Mr Madiba, like the other witnesses who came and presented their cases and could relate intimately with what has happened in terms of their personal experiences, it makes it difficult in that sense. So I’m just saying that as the questions are structured, would have been easy with Mr Samuel who came and the others who came. And of course, there are sensitivities; I must say that upfront, in that we are talking to a person who could not answer for himself. And I wanted to persuade on that score, Chair, that probably we do not make an expression on this part in the absence of Mr Madiba having led, except what we would have received from both sides and give the benefit of doubt on that score. Thank you, Chair.

Chairperson: Thank you, Hon Maneli for the contribution. Hon Nkosi?

Mr Nkosi: Chair, I think I do understand the contention of Members that Mr Madiba, may his soul rest in peace, may not have given evidence or be in a position to give evidence in this matter. But relying on what the other witnesses had said about him and the responses of both the PP and Mr Mahlangu it’s clear that, for example, in addition to what I said earlier, Mr Mahlangu testified that the PP does not involve herself in disciplinary measures. However, it is the PP who writes in a memo or in reports that the deadline must be met, failing which... she insists on the deadline being met and that disciplinary action be taken against Mr Madiba after issuing him with a warning. That contradicts, in my view, Mr Mahlangu’s assertion that the PP never involved herself in disciplinary measures. But otherwise, yeah, if the reliance is on Mr Madiba not being able to give evidence himself, that’s a bit persuasive. But I think the evidence before us indicates that he, like all others... Okay, okay, let’s say he faced this harassment, this intimidation and victimisation by the Public Protector weaponising Mr Vussy Mahlangu as the CEO, or Acting CEO. Thanks, Chair.

Chairperson: Thank you, Hon Nkosi. As I go to you Hon Sukers, is that your next bite?

Ms Sukers: Chair, mine is to ask the question whether we are going into the general or whether we are staying on the specific individual. I just need to ask, because there are obviously comments that I have on the general category that falls under the same theme.

Chairperson: We are on this individual.

Ms Sukers: Thank you, Chair.

Chairperson: Alright. So if I take it Members, from what your contributions are. There seems to be a general view that we don’t necessarily have a concretely established or established evidence to conclude that there would have been this harassment, intimidation and victimisation by both the suspended PP and Mr Mahlangu. And that as I think Mr Maneli would raise that we need to therefore say that we can’t express that there is emphatically that on this issue. I think the stronger points raised by Hon Nkosi have been noted, but I think he seems to also be persuaded that we could go along in saying we are not having evidence to establish this. Am I summarising you correctly on this? Thank you. Any final remark, Adv Mayosi? Before we proceed to 10.3.

Adv Mayosi: No, I don’t have final remarks, Chair.

Chairperson: Thank you. Proceed to 10.3.

Para 10.3 and 10.4 of the Motion
Adv Mayosi: Yes. Chair, I will deal with 10.3 and 10.4 together...

Chairperson: No problem. Go ahead.

Adv Mayosi: Ms Sekele and Ms Mogaladi. Members will recall that Ms Mogaladi gave evidence that related to them both. And Ms Sekele filed an affidavit confirming the contents of Ms Mogaladi’s statement. They were involved in the FSCA investigation, and they were then charged in relation their conduct in the FSCA investigation, they together with Mr Madiba. They were found guilty of some of the charges and a sanction was imposed in relation to them. The PP didn’t accept the sanction by the independent advocate who presided over their disciplinary proceedings, because she thought that what they had been found guilty of was serious enough to warrant dismissal. She sought representations from them, they then approached the High Court. And they succeeded in their approach to the High Court in terms of setting aside the PP’s decision to actually call for their dismissal, in the face of the disciplinary finding. They then served out their sanction that had been imposed on them and they returned to work. So the evidence of Ms Mogaladi under cross-examination was clear that they did not challenge the disciplinary sanction for various reasons. The whole experience had been stressful on them and so on and so on. And they took a decision that they wanted to return to work. What Ms Mogaladi felt to be victimisation in general was the manner in which audi letters were issued to her, the manner in which disciplinary proceedings were pursued against them in the FSCA matter. Her evidence seemed to be that they had not really been involved in that investigation. She had just taken over the portfolio of GGI when she had to produce a section 7(9) and the report in the FSCA matter, and she needed more time. And she had stated to the PP that she needed more time. So in essence... that was the essence of the evidence that Ms Mogaladi gave in relation to how she felt victimised... not only in the FSCA matter but other matters that she had been involved in. How she was not heard when explaining why it is that she could not meet deadlines, even those that she accepted – that she had imposed on herself. So the victimisation for her, in terms of the evidence that’s before the Committee and Ms Sekele arose from the matters that she was involved in. But when it comes to her, Ms Sekele and Mr Madiba, it then of course arose from the FSCA matter and the disciplinary proceedings that were pursued there. I'll leave it at that, Chair.

Chairperson: Okay, you’ve attended to both?

Adv Mayosi: Yes.

Chairperson: Alright. Thank you. Hon Members, I now invite you to respond to these questions. Same issues of harassment, intimidation and victimisation by both the suspended Public Protector and the former CEO. If in your view, we have established evidence that there was such on these... let’s start with Ms Sekele and then we’ll go to Ms Mogaladi. Any contributions, any takers? Hon Sukers?

Ms Sukers: Yeah, Chair. I think the evidence of Ms Sekele... when she presented her evidence, pointed to the atmosphere that resided within the Office of the Public Protector. And I think one of the previous points that we possibly did not note was that when she brought her evidence as well, she mentioned the issue of suspension of the deceased Mr Madiba. And I appreciate the sensitivity with that, so I don’t want to dwell on it. But she spoke on the suspension and the disciplinary. Again, for me, I think it painted a picture of the environment. And that I think... again, if my memory serves me right, there was mention of Mr Mahlangu being the enforcer almost, or that he was viewed as the enforcer for what the Public Protector wanted. So my comments on this are I think most of what for me stood out from the testimony pointed back to the environment that was within the organisation. It also gave us a view of what ultimately contributed to the... let's say the performance or lack of performance in some of the areas that is highlighted in the cases that was brought before the Committee. So I think from that it was very valuable to know, in terms of systems processes and the most important asset of the organisation – the people of the organisation, how they were treated under the leadership of the Public Protector, and how that contributed to their work.

Chairperson: Thank you, Hon Sukers. In terms of your response, we’re not able to point out that we have evidence, but reemphasising the issue of the environment and the culture in the organisation as the key issue that is emerging here. Any other Members?

Mr Nkosi: Chair, Nkosi here.

Chairperson: Okay. Hon Nkosi, followed by Hon Herron and Maneli.

Mr Nkosi: Chair, I agree with Hon Sukers. If you look at what ensued really in this matter. It combines both, so I'll deal specifically with the Sekele issue that it’s very difficult to differentiate from... But Chair, it’s clear that in respect of both, Sekele indicates that she came late to the FSCA matter, and that it was a complex matter. However, irrespective of the fact that it was a complex matter, something which the Public Protector or the CEO should have known, and therefore given her opportunity to familiarise herself with the issue. Instead, you need to meet this deadline. You need to meet this deadline. And on the basis of not meeting these deadlines, you’re subjected to disciplinary action and decisions were taken on them. What concerns me, Chair, is that the Public Protector in respect of the disciplinary action, differs with the decision of the chairperson, and instead institutes another process which they challenged in the labour court, without reason, without giving them the opportunity to respond. So in respect of Sekele, I do agree that there is harassment, intimidation, victimisation of Sekele. And this is in line with what atmosphere was in the office. But also remember, Chair, that the warning given by the drafter of the section 7(9), that this matter may be challenged, which eventually did happen. And we’ll come to that when we discuss Mogaladi. So, I agree that the questions are answered in the affirmative. There was intimidation, there was victimisation, there was harassment. Thanks, Chair.

Chairperson: Thank you, Hon Nkosi. Hon Herron?

Mr Herron: Thank you, Chair. Chair, I think this is where my question around splitting of charges arises. The Public Protectors refusal to accept the outcome of the disciplinary process and to proceed against Ms Sekele and Mogaladi, I don’t think we can say it amounts to intimidation, harassment and victimisation. I would say that it is victimisation, but I don’t think it can be harassment and victimisation and intimidation; that’s the question I was raising earlier. So I would say that it amounts to victimisation, but it can’t also be harassment and intimidation. Thank you.

Chairperson: Thank you, Hon Herron for your contribution. Hon Maneli.

Mr Maneli: Thank you, Chair. I'm agreeing to the point made by Hon Nkosi, that I also go on the affirmative, yes, those would have applied. And I think it can be seen also, Chair, from a point of not considering personal circumstances, that if you want this to happen it has to happen. It would not matter if you’re attending to your sick son outside the province, if something needs to happen it has to happen, that gets to a point of harassment. It won’t just be about victimisation in a disciplinary process. And of course, setting up the disciplinary process and then you do not agree with your own outcome that you should adhere to and get forced by another body to implement that that you started yourself. It’s I think, like Hon Nkosi would have said, it’s also demonstration of power, Chair, that it shall go the way I want, it doesn’t matter what other processes will say. And that’s really even about threatening jobs of people. So you’re harassing them on that scope. So I’m saying I think on this part I agree. I agree, because Chair, in the passage that has been shared, and I think that’s the reason Hon Nkosi said that the two are combined, instead of separate, because even in their affidavits they would have a lot of collaboration in terms of what really happened, Sekele and Mogaladi, on that score. That's the submission, Chair. Thank you.

Chairperson: Thank you, Hon Maneli. Before I proceed to other Members, I see your hand Adv Mayosi.

Adv Mayosi: Yes. Thank you, Chair. I think if I'm understanding Hon Herron’s reservation correctly there is merit to what he raises in the sense that in this charge what Adv Mkhwebane and/or Mr Mahlangu are said to have done is to have intimidated or harassed and/or victimised staff. The Committee just needs to be aware of the fact that the Committee can’t find harassment and intimidation and victimisation all in one, in the same action. It has to be either intimidation or harassment or victimisation. I just wanted to point that out, that the Committee should perhaps be aware of that during its deliberations on this charge.

Chairperson: Okay, thank you. Any further Members to contribute? I think from the four Members who have spoken, issues of environment and the culture at the organisation are raised by Hon Sukers. Hon Nkosi is of the view that these issues of harassment and victimisation do apply. And Hon Herron on the victimisation part that he can connect with. And the emphasis on the harassment part and the use of power by Hon Maneli. Any further inputs or comments, Members? None? Hon Siwela?

Ms Siwela: Chairperson, I’ve got a problem with my gadget. Sometimes when I try to raise my hand, I'm not seen. But I just want to concur with other colleagues, Chair, that issues of harassment really does prevail into this, so that we put it in record that that’s what we have realised. I'm really in support of what other Members have said, but I've got a problem with my hand. Sometimes I will have to shout if the Chair allows me to do that, because it deprives me to participate, Chairperson. Thank you.

Chairperson: No problem, thank you. And Hon Sukers, on some of the points you made before, especially on Mr Mahlangu, the allegations were that he was an enforcer. So I think evidence might not support that, so I think we shouldn’t carry that forward unless there’s evidence that demonstrate he was. So that use of language on how we deal with this. Any other views, any other contributions? Okay, none. So we will then record those, Hon Members. And I think Adv Mayosi was also agreeing with Hon Herron, so that we don’t package them in one, unless specified. They could be in one if there’s evidence that points that in each case this has happened, but we should just be generalising around those. Your final remark, Adv Mayosi?

Adv Mayosi: Chair, in relation to...

Chairperson: Before you proceed, you can also ask Adv Bawa not to whisper, because I can hear her. She has an opportunity to speak, because the whispering is much louder than she thinks. Hon Nkosi?

Mr Nkosi: I thought we were starting with Sekele and going to Mogaladi?

Chairperson: Yes.

Mr Nkosi: Oh, okay. No, if that’s the case, I'm covered.

Chairperson: We’re still going to Mogaladi.

Mr Nkosi: Yeah, I think in the case of the splitting, I think when you discuss the final report it should be clear whether the harassment emanates from the PP. In fact, whether intimidation, harassment, victimisation in each case arises from either the PP or Mr Vussy Mahlangu. So you may find that variously both have been involved in harassment, intimidation combined, or individually in relation to the harassment, intimidation and victimisation. I'll speak to that more maybe when we deal with the final report in draft.

Chairperson: That’s fine. We'll go to Mogaladi now. Adv Mayosi?

Adv Mayosi: No, Chair. I’ll allow... My comments were really in relation to Ms Baloyi. So I think the Committee needs to still proceed and deal with Ms Mogaladi.

Chairperson: Right. Any specific contributions and comments in relation to Ms Mogaladi, Hon Members? Hon Nkosi, I'll start with you...

Mr Nkosi: In relation to Ms Mogaladi, I think the Committee would remember that we spent a lot of time on Ms Mogaladi et cetera. And my view, Chair, is that in a nutshell, in her respect, one, that I think that she was harassed. And because in her explanations of why she’s not meeting deadlines, she gives context to what I earlier referred to as Fordism. You know, that matters will not simply follow from A to B up to Z, that there are circumstances that would impede progress. So the means towards the end should be justifiable, and that this is what she found the Public Protector not acceding to, her inflexibility in relation to the meeting of deadlines. And that comes across really as victimisation in case you do not meet those deadlines. And the conduct of the CEO, Mr Mahlangu, in relation to her also indicates the issues of harassment and victimisation. And as I said, Chair, earlier that it may help that when we finally deal with the report, we indicate in respect of each one whether there was instance of harassment, or this constitutes an instance of harassment, intimidation or victimisation. In my view, currently, I think I see all of them being positively answered. Thanks Chair.

Chairperson: Thank you, Hon Nkosi. As I invite other Members on Ms Mogaladi, just to remind you... make use of your aide-memoire. Some of these definitions are specified there, on harassment, intimidation and victimisation. It was for the purpose to assist us, so that we make proper connections. And we don’t mind, we could easily beam that up again, but I’m hoping that Members have stayed close to that memoire. Any other Members? Hon Herron?

Mr Herron: Yes, Chair. I hold the same view with regards to Ms Mogaladi as I did with Ms Sekele, that the finding should be victimisation and not intimidation, harassment and victimisation. I think if you look at the evidence Ms Mogaladi herself uses the word, that she felt “victimised”.

Chairperson: Thank you. Thank you for your contribution, Hon Herron. Any other Member? Hon Siwela?

Ms Siwela: Thanks, Chairperson. I support my colleagues, that Ms Mogaladi was victimised. Thank you.

Chairperson: Thank you. Any other Member? Hon Maneli?

Mr Maneli: Thanks Chair. I don’t know what happened; I've been trying to raise the hand. But I still maintain what I would have raised earlier, Chair, because I tried to combine the two. That if there are also personal circumstances and you have to attend to emergencies. Even if you have given an indication of why you needed to extend the time, because you’re at an emergency, you still get a direct text message that demands that certain things have to happen and you have to be recalled. I think at the time we deal with the final report, like Hon Nkosi would have said, we may want to put that test whether that is still just victimisation or harassment. Thank you.

Chairperson: Thank you. Hon Van Minnen?

Ms Van Minnen: Thank you, Chair. I don’t want to dwell on this, but I do think we need to have a serious decision or a serious discussion on the difference between victimisation, harassment and intimidation. I mean, if you look at legal definitions intimidation means compelling or deterring conduct by threat, it is an “act or a course of conduct directed at a specific person to cause that person to fear or apprehend fear. Whereas harassment is “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known as unwelcomed”. I in this particular case favour intimidation over harassment, but I think that is a conversation we’re going to need to have, because I think there are legal consequences. Thank you.

Chairperson: Thank you, Hon Van Minnen. Maybe before we wrap up or summarise this, Ms Ebrahim or Tshepo for two minutes or so, just remind Members of those three categories? As we have it in the aide-memoire that was shared yesterday. Just to off-ramp in order to just make sure that we are on the right track. Ms Ebrahim?

Ms Fatima Ebrahim, Parliamentary Legal Advisor: Thank you, Chairperson. It's on page... I think it starts on page 23 of the aide-memoire. I'm just trying to quickly open it... And so, Chair, we start with the definition of harassment. In terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, harassment is described as “unwanted conduct in the workplace which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences”. And then in terms of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, the purpose of that Code is to eliminate all forms of harassment, and it recognises various forms of harassment. And Members will recall that I said to look at the footnote, so harassment either based on somebody's gender, on someone's race. For example, your religion and so on. And then if you go down... harassment is understood, in terms of section 4.1 of that Code, as conduct that is unwanted or unwelcomed, and which impairs somebody’s dignity, creates a hostile or intimidating work environment, or is calculated to or has the effect of inducing submission by actual or threatened adverse consequences. It's related to one or more grounds in respect of which discrimination is prohibited. And it’s that footnote at the bottom there, footnote number 6, which lists all of the grounds. So one would have to show the ground on which the harassment is alleged to be based. Then in terms of intimidation, Chair, that’s also dealt with in Code as intentional behaviour that would cause a person of ordinary sensibilities - and we submit that that would be your “reasonable person” test, to fear injury or harm. And we’ve cited a case there where the court held that to constitute intimidation words need not be directed at particular persons. And further, that words are intimidatory if they are calculated to terrify or overawe someone. Victimisation... So victimisation is not defined in labour law, but the dictionary definition of victimisation is the act of treating someone in an intentionally unfair way, especially because of their race, sex, beliefs et cetera. But in terms of statutes, section 186(2) of the Labour Relations Act deals with certain unfair labour practices that could amount to victimisation. So for example, unfair conduct relating to how an employee is promoted or demoted, their probation, or training, or benefits that an employee would get. So for example, where you give one employee a raise but not somebody else without their being a valid reason... The unfair suspension of an employee or any other unfair disciplinary action short of dismissal, a failure or refusal by an employer to reinstate or reemploy a former employee in terms of any agreement, or any other occupational detriment other than dismissal in contravention of the Protected Disclosures Act, on account of the employee having made a protected disclosure defined in that Act. We of course know that employees have protections, even if they were to blow the whistle, and they can’t suffer any occupational detriment as a result thereof. Thank you, Chair.

Chairperson: Thank you, Ms Ebrahim. Back to the Mogaladi slide, Tshepo... Thank you. So that was just a reminder to refresh as we go through this, especially in light of what Hon Van Minnen would have said. But of the Members who have spoken, I think both Hon Herron and Ms Siwela are of the view that they think that victimisation applies. Hon Van Minnen... intimidation. And both Hon Nkosi and Maneli in dealing with the two Sekele and Mogaladi, about the issues that would have applied to them, think that there’s more than just one issue here but when we get to finalising the report, they would want to speak to emphasise on some of those issues. With that refreshing definitions having been done, if there’s no change of mind or comment, I'm going to proceed to the next point with Adv Mayosi. I take it there’s none. Adv Mayosi?

Para 10.5 of the Motion
Adv Mayosi: Thank you, Chair. The next named individual in the charge is in 10.5, which is Ms Basani Baloyi. Members will recall that Ms Basani Baloyi was the COO from March 2019 until October 2019, when her probationary period was not confirmed. So her contract was not confirmed, and her services then came to an end. So she was not subjected to any disciplinary proceedings or disciplinary charges. She didn’t face any of that sort of thing in the organisation. What she then did, she challenged the failure of the Public Protector to confirm her contract. And she based that on the fact that Mr Mahlangu and Adv Mkhwebane wanted to purge her from the organisation, because of the stance that she took in relation to certain investigations and because of the interest that in particular Mr Mahlangu had in some of the investigations. So she gave evidence in general also in relation to the environment that pertained in the Office, the manner in which meetings were run, the manner in which Adv Mkhwebane related to staff and wanted to be addressed. And yeah, that was the essence of her evidence. So her evidence was really in relation to the environment that she found in the Office. She herself did not say that she had herself been intimidated or harassed, but the environment in general that she described in relation to the Executive Managers that reported to her and the issuing of audi letters, and how she had to issue out audi letters. And how the Executive Managers even at some point told her rather issue the audi letters to us, otherwise you are going to have action taken against you. Yeah, so the essence of her evidence really talks to the environment in the Office of the Public Protector during the brief time that she was there... And we’ll discuss the environment more fully when we talk about the charge in 11.1, which relates to internal capacity and the management of the resources of staff.

Chairperson: Okay. Thank you, Adv Mayosi. Hon Members, your take on Ms Baloyi? Anything you want to say in relation to the journey we’ve travelled of this evidence? The fresh summation, the aide memoire. I know you want to rely on your memory; I think you need to be referring to those while you have your memory helping you. Any comments? Are we all agreed on what has been shared, with an emphasis on the environment on Ms Baloyi? Hon Siwela?

Ms Siwela: Chairperson, I think we need to agree with the sum up, because if the environment is not conducive for working you can’t call it victimisation or harassment, but it’s something which is a worrisome factor that anyone needs to be free in her own environment where she finds, or he finds himself. So I think the summary is correct and we are supposed to rely on it based on what Ms Baloyi alluded to during her testimony before this Committee. Thank you, Chairperson.

Chairperson: Thank you for your contribution, Hon Siwela. Hon Lotriet?

Prof Lotriet: Thank you, Chairperson. I think if we look at the definition of victimisation, it is quite clear from the evidence for me, specifically regarding Ms Baloyi’s probation, that there was indeed an unfair conduct by the employer regarding to probation. If we read through this in terms of that, it was six months and there was no assessment, then she had another two months. So I think there’s definitely victimisation in this regard. But there’s also to me some sense of harassment in terms of how people were treated. So that would be my understanding of this, but definitely victimisation. Thank you.

Chairperson: Thank you, Hon Lotriet, for your contribution. Any other Members? No other Members? Any different views to be expressed other than what has been shared? Or should we proceed and take these so that we reflect them in our report?

Mr Nkosi: Yes, Chair.

Chairperson: Thank you. Thank you, Hon Nkosi. We’ll proceed to the next, 10.6. Adv Mayosi?

Para 10.6 of the Motion
Adv Mayosi: Thank you, Chair. The next named individual is Teboho Kekana. He gave evidence before the Committee. His evidence related in large part to his involvement in the CIEX investigation, but he had also submitted a statement under the Protected Disclosures Act, where he wanted to bring to the attention of Parliament what he thought were the issues that he raised in his statement. And one of those in relation to this particular charge was he had a section dealing with what he thought was harassment. And that’s one of the purposes on which he made the affidavit, he felt harassed. He was then subjected to disciplinary proceedings as a result of what was said to be a breach of confidentiality or disclosure of information that he shouldn’t have had. And he... I think in his evidence he felt that the charges that he was subjected to were as a direct result of his activism within the organisation, and that was the source of his harassment. He’s not specific in his statement that it was specifically either Mr Mahlangu or the Public Protector who he felt harassed by, but the gist of his evidence in relation to the harassment aspect that these charges is concerned with was that the disciplinary proceedings that he was subjected to were as a result of his harassment. He was found guilty, he was dismissed from the organisation, and he ultimately litigated the matter in the labour court. So I think that’s the gist of the evidence in relation to this particular charge. As I said the bulk of his evidence related to the CIEX matter, but he had aspects of harassment that he spoke to as a result of his being involved in the union and just his activism within the organisation.

Chairperson: Are you done, Adv Mayosi?

Adv Mayosi: I am done. Thank you, Chair. Sorry.

Chairperson: Thank you. On Mr Kekana, Hon Members, can I invite contributions? I see Hon Nkosi, please go ahead.

Mr Nkosi: Chair, I think that on Mr Kekana I’ll focus on two things. One, is that he is the one who discloses under protection, what he views as maladministration, unfair treatment et cetera, and for that he is immediately hauled before disciplinary processes et cetera. So that for me is victimisation or harassment. Two, he raises a thorny issue in a staff meeting and disclosed to the union that this person that is Acting CEO actually doesn’t have top secret clearance to work in that environment, but also to execute responsibilities assigned to the Public Protector. And that I think raises the issues in the eye of those that are in charge. And I think, one, I do find that he was intimidated or harassed, he was victimised. Maybe intimidation, it’s very difficult to prove that. In terms of being victimised and harassed, I think he fits the bill. Thanks Chair.

Chairperson: Thank you Hon Nkosi, for your contribution and your elaboration on the matter. Any other Members? Any takers? Or do we share what has been said? Is there any dissenting view? Hon Siwela?

Ms Siwela: Chairperson, there is no dissenting view. I just want to support what Mr Nkosi has said. The fact that the official was also active in the union, and he revealed a lot of things, hence he was subject to DC. So to me, that was also harassment and victimisation at the workplace. So I’m in support of the summary, as well as what Mr Nkosi has said. Thank you.

Chairperson: Thank you, Hon Siwela...

Mr Nqola: There’s nothing wrong with an employee being part of unions, it’s their constitutional right. It's there in the Constitution. There's completely nothing wrong with that. Thank you.

Chairperson: Thank you, Hon Nqola. Any other Member? None and no dissenting view. So as explained by Adv Mayosi, harassment comes in. I think both Hon Nkosi and Siwela raised the issue of victimisation as well as harassment and agree with the summary and the context painted by Adv Mayosi. Thank you. We’ll proceed to the next one if you have no remark, Adv Mayosi?

Adv Mayosi: We can proceed to the next one, Chair.

Mr Nkosi: Chair, can we take a leg stretch?

Chairperson: Don’t worry, almost there... Adv Mayosi?

Para 10.7 of the Motion
Adv Mayosi: Yes, Chair. Thank you, Chair. The next named individual is Adv Isaac Matlawe. And for reasons stated in the summation, he was not called as a witness. He was charged... he was served with disciplinary charges in relation to the same issues that Mr Kekana was charged with, which was the leaking of confidential information. The evidence of Mr Tyelela, who’s a Human Resources Manager, was that Mr Matlawe was charged at the instance of Mr Mahlangu, but he resigned from the organisation in December. His disciplinary hearing was set down for 21st of December 2018, but it was never concluded. Nothing came of it, because he then resigned from the organisation, and he left and joined the Johannesburg Bar. There’s scant evidence in relation to Mr Matlawe, and that is pretty much all that was stated before the Committee in relation to him. He was charged, but the proceedings were not proceeded with or concluded, because he left and went to join the Bar. And that in essence, Chair, is all the evidence for the Committee in relation to Mr Matlawe. He too was a member of the union, and he as I said previously was charged in relation to the same incident that Mr Kekana was charged with, the leaking of confidential information. I'm done, Chair.

Chairperson: Thank you, Adv Mayosi. Hon Members, you take? Hon Lotriet?

Prof Lotriet: Thank you, Chairperson. I think that in this instance we do not have sufficient evidence before us to make any conclusive finding on this. So I would say that we cannot express ourselves on this particular matter. Thank you.

Chairperson: Thank you, Hon Lotriet. Any other Member? None. Are we agreeing with the sentiments raised by Hon Lotriet? Is there any dissenting view? None... Thank you. We then proceed to the next, Adv Mayosi.

Para 10 of the Motion
Adv Mayosi: Thank you, Chair. So Chair, that brings us to the end of dealing with the named individuals. The charge, of course, also talks about staff in general. And I think the Committee needs to deliberate about whether there was intimidation, harassment and victimisation of staff in general. In that regard, of course the Committee has the evidence of Mr Samuel, Ms Mogaladi, Ms Motsitsi, Ms Thejane who also described the environment in the organisation, who described various aspects of what they considered to be an intimidating or harassing or victimising environment. All of them spoke about four issues really, with the manner in which meetings were run, the unreasonable deadlines, the audi letters and just the long working hours. They agreed upfront in support of the PP that the PP is hard working. She requires high standards from her staff. They agreed upfront that the backlog is something that needed to be dealt with, and the PP’s efforts to do so were laudable. They also agreed that audi letters, in essence, are a good mechanism in order for staff to be heard. It was the manner in which these things were done that was problematic, how it was done. So I think the Committee needs to deliberate on the victimisation or intimidation or harassment of staff in general, over and above the individuals that have been discussed. That evidence of course, I say again, flows over into charge 11.1, we’ll be going into it in greater detail there. I'm done, Chair.

Chairperson: That’s fine. We're still going to go to 11.1, and maybe we can hold that until then, but I think you’re raising an important point. Members if you want to comment? We’ve been dealing with the specific named individuals, but maybe also as a general point we want to raise, as we’ve done that in wrapping that up. Some Members would have ventured into that, whether where you find there was victimisation, harassment or intimidation. And whether those would have constituted misconduct on the part of the suspended Public Protector. Let me hear you... Now that we are finishing paragraph 10, we’ll take a break... Hon Mileham? Or should I start with you Adv Mayosi before I go to Mr Mileham?

Adv Mayosi: Yes, Chair. Thank you. I think, Chair, I'm remiss in not stating that there was contrary evidence of course from Mr Futana Tebele who said he’s never witnessed intimidation or harassment or victimisation of the sort that was described by the other witnesses. As well as the evidence of Mr Lamula who too said he has never witnessed such. Ms Mvuyana also spoke of the same, as well as Mr Rodney Mataboge. So the Committee would need to consider that contrary evidence in its deliberation.

Chairperson: Okay, thank you. Hon Mileham?

Mr Nkosi: Chair, before Mileham, if I may ask, does that include what Mr Vussy Mahlangu said in contrary to what the other witnesses indicated?

Adv Mayosi: Correct, Hon Member. Mr Vussy Mahlangu also denied having intimidated and harassed anybody, or having witnessed such in the organisation.

Chairperson: Okay. Hon Mileham?

Mr Mileham: Chairperson, thank you. Chairperson, I want to just separate the victimisation, which is the singling out of individuals and... putting improper or undue influence over them. That would essentially be a way of looking at victimisation. From the intimidation of staff more generally, and in that regard, I come back to my point that I made earlier about the weaponisation of audi letters, which in my view is a form of intimidation. It's one thing if audi letters are part of a process that is transparent and fair and is part of a management process that encourages dialogue and discussion, but it’s another thing entirely when they are used as an enforcement mechanism to ensure compliance. And I have a problem that the way that audi letters were utilised in general, was an intimidatory tactic utilised by the Public Protector, and in Mr Mahlangu’s case on her behalf. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Sukers?

Ms Sukers: Yes, Chair. Chair, with your guidance, I don’t know if this would fall under the general and maybe if this would fall under 11.1, but I just want to hook on to what was said by Hon Mileham, in terms of audi letters and the use of audi letters... In the way that I'm now contextualising it, it would specifically speak to victimisation, but it would speak to mismanagement or management in general, in terms of the organisation. The issue of the audi letters was... I think Adv Mpofu asked Ms Baloyi during cross-examination if she was... and I quote here she’s saying was an “audi environment” for example. In other words, there was an environment of obeying the rule of natural justice. The issuing of audi letters is not a process that has been outlined or that is outlined in code of conduct of the Office of the Public Protector. The evidence leaders can maybe confirm that for us as a Committee. So if the audi letters and associated process does not appear in the code of conduct, then there was a systemic failure to comply with labour law and is evidence of misconduct and incompetence. And I think previously, Doc in the previous session spoke on the issue of labour law practices and such. But specifically, when it comes to the use audi letters - is it a question of mismanagement and the way staff were managed? Or was it a tool then of victimisation? I don’t know if it falls under specifically this, Chair, under staff in general or if we move to 11.1 with that.

Chairperson: Yeah, thanks. We’ll keep it, we’ll flag that. Hon Nkosi?

Mr Nkosi: Chair, I agree with what was said by Hon Sukers and Mileham. The other issue is what is flagged by Adv Mayosi, that we need to objectively assess and test the contrary view of the other witnesses that appeared before us, Mahlangu and the others. And perhaps that we must do, because we must also subject that to our tests and indicate whether we agree in full or in part of what they had said, in the wake of what we have from the other witnesses. Thanks, Chair.

Chairperson: And you still want to hold that back? I thought you getting into it.

Mr Nkosi: Yeah, no. I think we can’t do it generally. We should go to the specific evidence proffered by these. And I thought if we want to do it, we can do it immediately after lunch or we can hold it to when we finalise the report.

Chairperson: Thank you, Hon Nkosi. You're already indicating about lunch; I don’t know whether you will have lunch but let’s see when we get there. I think we’re done with this. We can now take a ten-minute break. If you want to stretch your legs, do that, have tea or whatever. And we come back and proceed to the next section. So please stay online, we’ll just take that ten-minute break. Thank you, we’ll be back at half past eleven.

[Tea break]

Chairperson: Thank you. Welcome back, colleagues. You've been given extra few minutes in our extended break. Adv Mayosi or Adv Bawa, I hand back to you.

Adv Mayosi: Thank you, Chair. Chair, are we now on 11.1?

Chairperson: Yes.

Para 11.1 of the Motion
Adv Mayosi: Alright. So the charge in 11.1, the preamble, starting from paragraph 11 is that Adv Mkhwebane has committed misconduct and/or demonstrated incompetence in the performance of her duties by failing intentionally or in a grossly negligent manner to manage the internal capacity and resources of management staff, investigators and outreach officers in the Office of the PP effectively and efficiently. I’ll start with the issue of outreach officers. And there the evidence of Mr Samuel and Ms Motsitsi is relevant and is summarised for Members, from page 67, paragraphs 251, where Mr Samuel in his initial and second statement to the Committee where he set things out in greater detail stated that due to what he described as rising litigation costs, because of the increasingly litigious environment in the PPSA’s Office. He described it as “reckless litigation”. Essential programmes such as the outreach programme then suffered and had to be reduced in terms of the allocation of funds to them. And his evidence, as of that of Ms Motsitsi was that from the 2018/2019 financial year outreach programmes then reduced drastically. There were memo’s that were put out by the CEO at the time that due to funding constraints programmes could not be pursued. But he said in his evidence that it was not only just outreach programmes that were negatively impacted by what he described as the “reckless litigation” that the Office was pursing, but in general there was also prejudice to investigations and to the administration of the PPSA, because vehicles were not available, budgets were reduced, investigations could not be conducted by going to the specific places to investigate, and investigations had to be reduced to desktop investigations, because of the lack of funds. And again, he linked that redirection of funds away from essential programmes to fund what he described as the “reckless litigation” in the Office. Ms Motsitsi then gave further evidence about the change in the strategy, about outreach, that in 2017/2018 there was a change in strategy in performing outreach and doing a more district-type of level kind of outreach in order to have a greater impact. Again, she also spoke about the funding constraints, the budgetary constraints and how management then intervened to respond to the budgetary constraints as it were. The Acting CFO at the time, who was Mr Menzelwa, I think he’s the gentleman who’d been seconded from the SSA to be the CFO at the PPSA, wrote a memo to Adv Mkhwebane explaining the funding constraints. Some of the contributors were employment costs, but rising litigation was one of the contributors to the budgetary constraints. And one of the consequences was the reduction of outreach programmes. So this charge really talks to whether or not resources – internal capacity and the resources of management were used efficiently and effectively under the tenure of Adv Mkhwebane. And then of course the issue of internal capacity talks to productivity of human resources. And again, as I mentioned earlier when we were talking about paragraph 10, the previous charge, the evidence of the Executive Managers about how their time was used. The long meetings, the audi letters, the environment that was ultimately created in the organisation, the long hours; which affected their productivity, the short turnaround times and so on, is an issue that becomes pertinent for the consideration of this charge. Again, Chair, the Committee would of course have to also be aware of the contrary evidence in this regard. And that’s the evidence of Mr Futana Tebele, Mr Lamula, Mr Mahlangu, Ms Mvuyana’s and Mr Mataboge who gave contrary evidence that such issues were not necessarily there at the PPSA. Now one of the people who gave evidence as the Committee would be aware was of course Ms Thejane. Ms Thejane, the Committee will remember was cross-examined, there was a long time between her examination chief and her cross examination, and she did not fare well under cross-examination. But what was not challenged under cross-examination was a report that she put before the Committee, where a survey had been done in the PPSA by the Deputy Public Protector across the country in the branches, looking at the reasons why the backlog projects were not being met and why deadlines were not being met. And what was not challenged during cross-examination were the reasons that were given by staff. These reasons sought to corroborate in a sense... or corroborate, if I could say, what the Executive Managers had stated about the unreasonable deadlines, the long meetings, the fact that audi letters were found to be intimidatory by staff and just how resources were not being used in a manner that sought to support staff in the achievement of their targets, and how deadlines needed to be changed to talk to the realities on the ground – the exigencies, and the difficulties and complexities of investigations and so on. So this charge in essence, Chair, really talks about the environment within the PPSA, and whether that environment was conducive to effective and efficient management of internal capacity and resources... resources of management staff, investigators and outreach officers. And I'll stop there, Chair.

Chairperson: Thank you, Adv Mayosi. As you’d have indicated that from paragraph 10 we go straight into this. And Members in their own way would have started venturing into these issues of the culture and environment in that space. And I think it’s now the time to invite Members to respond to the summary, understanding what evidence we heard, the summation and everything else. I'm inviting you Members to make your contributions. Hon Sukers?

Ms Sukers: Yes, Chair. Chair, I've already in the previous segment referred to the issue around the use of audi letters. And I want to make the point that we’ve had a number of witnesses that told us about the audi culture and that they feared it, and that it had a negative impact on the organisation. The question we have to ask is what steps did the Public Protector take to formalise the process to ensure everyone understood and shared a view that this was a form of natural justice and a responsible HR practice. There is evidence that the reliance on audi letters led to a culture of fear in the organisation. And the creation of this culture of fear impacted the functioning of Public Protector South Africa and is evidence of misconduct and incompetence. This is the second aspect of the problem of the audi letters. The first is illegality or a gross failure to follow proper labour procedures, which I've spoken of. The second is failure on a management level to address it. The third point that I want to make is the problem with the audi letters, it was used as a substitute for effective management, when this becomes a practice across the whole organisation and is promoted and when managers and staff start offering to accept audi letters to protect themselves, then there is a dysfunction in the organisation. And that in itself then demonstrates incompetence. So it becomes systemic in the organisation. Chair, that is what I’d submit. Thank you.

Chairperson: Thank you, Hon Sukers, for that contribution in answering this question of whether Adv Mkhwebane managed internal capacity and resources effectively and efficiently. Hon Nqola, followed by Hon Dlakude.

Mr Nqola: Thanks, Chair. I think it is evident even from the explanation from the summation of evidence, that there are instances where internal capacity was not managed effectively and efficiently. I think we all will recall that in a number of review applications there’s been frivolous applications on appeal up until to the Constitutional Court. And beyond that application for recission of the decisions of the Constitutional Court. That in my view, Chair, has been a reckless way of managing internal capacity and the available resources. Chair, I think we’ll all recall that one of the reasons we as Parliament always prefer or give particular preference on outstanding legal professionals when we are to start the process of firing Public Protectors, is that there is a reasonable expectation that they would have had a foresight of the prospects of the court changing its decisions or rather deciding in the advantage of the institution. So it would have been expected that such kind of a calibre of a Public Protector would have reasonably seen that the prospects of winning some of the issues upfront. I think, Chair, I think we would have all witnessed some testimonies that speak to how legal briefs were done in the Office, to an extent of some having surpassing them. The normal procurement standards, some being chopped and changed, some being hired outside the actual panel of attorneys in the PPSA. So that in my view is not an efficient and effective way of managing internal capacity and resources. Chair, lastly, until today, there is no reasonable explanation on the employment of Kim Heller, Sipho Seepe and what has been revealed as not advocate, Paul Ngobeni. So from where we are standing those appointments were evidence that the internal capacity and the internal resources are not managed efficiently and effectively. Thank you very much, Chair.

Chairperson: Thank you, Hon Nqola for your contribution. I now proceed to Hon Dlakude.

Ms Dlakude: Thank you very much, Hon Chairperson. I want to echo the same sentiments as my colleagues have already said, Hon Sukers and Nqola. Hon Chair, there was serious dysfunctionality within this organisation as per the evidence that was presented to this Committee. The working environment was not conducive for any employee to perform to their optimal level. So it’s like they were working under duress or fear of something. These audi letters were also used as something to intimidate staff to do what they were told to do. They were not motivated positively to perform their duties as they were supposed to. Then also, the resources were redirected from supporting staff to... I was saying that the limited resources within the PPSA was redirected from supporting staff to perform their duties exceptionally well to funding litigation and travelling expenses. So I think that is a call for concern, Hon Chair, which form part of the evidence that was presented to this Committee. By so saying, Hon Chair, I support and agree with the summation of Adv Mayosi. Thank you very much.

Chairperson: Thank you, Hon Dlakude. Hon Van Minnen?

Ms Van Minnen: Thank you very much, Chair. I also want to agree with my colleagues... What we’re seeing here is a culmination of a lot of things that have come up over the last couple of days. And I think that it’s very much the case that she managed the internal capacity and resources poorly, and not efficiently and effectively at all. Thank you.

Chairperson: Thank you, Hon Van Minnen. Any other Member? Hon Sukers, is that your old hand that is still hanging?

Ms Sukers: It’s an old hand, Chair.

Chairperson: Okay. Hon Maneli?

Mr Maneli: Thank you, Chair. I think most of the points would have been raised. So it was not a hand to dissent but to still affirm the points raised with regards to I think what Hon Sukers called, and some others, an incompetent way of running such an important office. I think as it relates to the other evidence given, I think I'm coming in just on that point, Chair. That we also acknowledge indeed that there were those that believed that the style introduced would have resulted in reducing backlogs and everything else that is said to be good. But that has been outweighed by everything else, which is also confirmed by the surveying as alluded to, that even general staff would have felt that these things were just unreasonable. In their argument, those that were for, one of the points raised was they learnt from every case that would have been lost, because there would be a sitting and a review process that takes place so that you make decisions on which case to litigate, which one not to. But clearly when you look at the legal costs and how the matters have been lost. In most instances it will be like repeat findings, if one were to use that. Where you are still hammocked on the same matter, having spent resources and I'm talking both human and financial, because those who come together to review these cases I think get lost and make decisions thereof. It's a sign, as I say again, of that competence that’s lacking, because you’d not repeat the same if you understood that there’s no basis to move forward. But you’d move even to the highest and the findings of those courts get to be the same as reports get reviewed. So I just thought, Chair, it shouldn’t be like those have been ignored. We've taken it into account, but they are overweighed by the inefficiencies that are seen and therefore do not hold in that regard. Thank you.

Chairperson: Thank you, Hon Maneli, for that contribution. Any other Members? Hon Hendricks?

Mr G Hendricks (Al Jama-ah): Thank you, Hon Chair. Hon Chair, I just want to make the comment that it has been before this Committee that the previous Public Protectors adopted quite a benevolent approach to the employees. And it looks like when the present Public Protector was appointed, she was concerned about the long delays in reaching decisions on matters that have been sent to the Public Protector. So I think that she decided to crack the whip and maybe she cracked it too harshly, because the idea was to have a Public Protector’s Office so that the decisions can be reached speedily. And I was shocked to hear that sometimes when a matter comes before them, it is put in a cycle that will take two years or more. And I don’t think that was the intention of having a Public Protector’s Office. People could have gone directly to the High Court, which take that time. Having said that, it’s a pity that the Public Protector did not put before this Committee many of the successful cases that she had, that went to the High Court and the High Court exonerated her. If this Committee had before it the dozens and dozens of cases where the Public Protector made decisions that were also endorsed by the High Court, and the Committee weighs it against the four complaints of the Democratic Alliance, we may have come to a different conclusion. The problem is that before us are four complaints by the Democratic Alliance and it is not weighed against the many successes that the Public Protector has had over the years, because this is not a court. The Public Protector’s Office does not have the same high standards of a High Court or an appeal court or a Constitutional Court; it’s like a tribunal, like the CCMA. I have a lot of experience in the CCMA, nearly 40 years of experience. The arbitrators that make decisions, they adopt a very informal approach, they think out of the box, they do things that sometimes, you know, you won’t do in a High Court, because of the decorum. And I think that was the idea of setting up a Public Protector’s Office so that the public can have easy access to redress their issues. I want to conclude by saying that it is maybe disappointing that the Public Protector did not take this Committee in its confidence and present to it the hundreds and hundreds of cases that she was successful with or her Office was successful with, and they even went to the High Court and they confirmed her decisions. And then one has to distinguish, Hon Chair, whether the complaints that is listed, shouldn’t those litigants have gone directly to the High Court instead of coming to the Public Protector; so indigent people, people that are much more needy, couldn’t afford it, will be dealt with and be more in front of the queue. And then of course the eventual decisions that the Democratic Alliance has now brought before this Committee seems to be to favour big business... and also very senior employees in the Public Protector’s Office who have resources to take their matters to the CCMA and even to the labour court. So these complaints by the Democratic Alliance whose name is in the box, obviously it’s the Public Protector because she is the boss. But one has to mitigate those decisions, because there is so many checks and balances along the way, even a committee that does quality control. So can one really finger the Public Protector, because the idea of the Public Protector’s Office was to have an informal, a speedy resolution, yet legal people involved. We noticed that most of the applicants for this post are legal people and I'm a bit disappointed, because you need people that can reconcile, that are strong in conciliation, like they have in the CCMA. Thank you very much, Hon Chair.

Chairperson: Thank you, Hon Hendricks. Hon Sukers, is that a new hand?

Ms Sukers: Yes, Chair.

Chairperson: Please go ahead.

Ms Sukers: Chair, we are still at 11.1, so my focus is on 11.1, I'm not responding to what has been spoken of by Hon Hendricks in this regard. I just want to add, the failure to establish appropriate corporate governance. We heard the staff being described as “whistle-inhalers” in this Committee. If a person worked in the Public Protector’s Office and believed that the Public Protector was abusing the Office, it appears that they had no means to report that other than to Parliament. If a whistleblower line did exist, it only did for a short time. Without some system like that there was no adequate protection of staff, the public and public funds against potential abuse of the Office by a Public Protector. We may require some legal guidance in terms of if this is a failure to act, can be seen as mismanagement and therefore incompetence. I think I mentioned it before. I would argue, Chair, that the Public Protector’s role is one of a kind, it’s as an apex guardian. And I think Mr Hassen before this Committee spoke in detail on how he viewed it or the ideal of that. Parliament is the upper guardian of the Office of the Public Protector. It appears that there were not adequate steps taken by the PP to ensure that methods are in place to allow staff to report abuse either internally or to a guardian institution. And if such measures are not in place, is it not a failure of the PP’s duty and a failure to follow best practice as outlined in code, such as the King Code on Corporate Governance? I do concede that the Public Protector may not be bound by such a code, but that the Office should set an example in light of what I said previously, to be beyond reproach. So my point, Chair, in terms of 11.1, is the failure to establish appropriate corporate governance to ensure that the Office is effective and run effectively. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. And thank you to Members. I have no further hands. Any final remark, Adv Mayosi? Before we proceed.

Adv Mayosi: Chair. I have nothing to add, Chair. Sorry.

Chairperson: Thank you. Can we then proceed to the next section?

Adv Mayosi: Yes, Chair. Adv Bawa is going to deal with the next, paragraph 11.2...

Chairperson: Thank you. Welcome Adv Bawa... Adv Bawa?

Para 11.2 of the Motion
Adv Bawa: Good morning, Chair. We're looking at charge 11.2 and Members need to bear in mind that charge 11 is a composite of subsections which are interlinked at various levels. So you can find something under 11.1 and then it will overlap into 11.2 and 11.3 in some way. But this component part leads to whether Adv Mkhwebane had committed misconduct and/or demonstrated incompetence in the performance of her duties by failing intentionally or in a grossly negligent manner to prevent... we need to look at “to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”. Now Members, we took out guidance in some way in ascertaining how to deal with this charge by looking at what Members had raised as some of their concerns during the hearing. And so we start looking at paragraph 11.2 at paragraph 363 of the summation note to give you some idea as to what is fruitless and wasteful and what is unauthorised... And for that we took our guidance on the Public Finance Management Act, as to what it defines as unauthorised, being overspending of a vote or a main division within a vote, and expenditure not in accordance with the purpose of a vote or in the case of a main division not in accordance with the purpose of the main division. And then fruitless and wasteful expenditure means expenditure which was made in vain and would have been avoided had reasonable care been exercised. And Members must please bear that in mind, “expenditure which was made in vain and would have been avoided had reasonable care been exercised”. Now on the face of it, Chair, a Chapter 9 institution is a different kind of entity; it gets its appropriation through the Department of Justice. And so, in our view if you take that within the letter of the PFMA then, you would have difficulty around coming to the conclusion that it can be an unauthorised expenditure. And so we make that point, and then we come to this question of how then do you look at it within a context of a fruitless and wasteful expenditure and how that can be prevented. And we must also at the back of our mind take cognisance of the fact that this Office did get three consecutive clean audits from the Auditor-General. And we mustn't take that away from this Office, because that is indeed a laudable achievement. But then there has to be some cognisance of how does a clean audit weigh up against a fruitless and wasteful expenditure. And so you must then have an understanding as to what is a clean audit. The Auditor-General regards a clean audit as being financial statements that are free from material misstatements. In other words, a financially unqualified audit opinion, that there are no material findings on reporting on performance objectives or non-compliance with legislation. So this is assessed with reference in the context of a public sector institution in the areas that they are required to be audited for and in respect of which the Auditor-General is required to provide an opinion, conclusion and findings in the audit report in terms of the Public Audit Act. And so we summarise this up into saying that when clean audit purposes, it doesn’t involve 100% audit of all transactions and account balances. It doesn’t have a consideration of precisely how the money was spent in the organisation. The Auditor-General doesn’t look at all the invoices; it doesn’t take into account the decision which underscores how funds are spent on legal costs. They look at how it’s accounted for, and in particular they do an assessment of what is the core business of the PPSA, which is its programme two – investigations, which one sees from all the annual financial reports. So effectively we point that out, that the Auditor-General's function in respect of determining a clean audit is a different process to which this Committee is looking at for purposes to see whether the Public Protector had prevented fruitless and wasteful expenditure. So that’s the one aspect we want you to take cognisance of, the second cognisance is materiality. Materiality is important when the Auditor-General looks at it in the context of the budget of the organisation in its fullest extent as opposed to whether particular funds had been fruitless or wasteful. So for example, the Auditor-General may put a cap on it and anything under that cap wouldn’t be regarded as material. So we sum that up and effectively deal with that in paragraph 374 of that. The second aspect which becomes relevant is the extent to which there is an overlap of what is expected of an accounting officer and what is expected of an executive authority. And that has relevance, Chair, because in the ordinary course of a government department, the management of its internal resources is done by the accounting officer, not the day-to-day handling by the executive authority. And that is important for 11.1, 11.2 in particular. But the Public Protector, because of its independence, impartiality and the need not to be interfered with in the carrying out of functions, is not your ordinary executive authority. And that might be something we must look at on the lessons learnt, because the head of a Chapter 9 institution is not defined as an executive authority either within the financial legislation or in their own legislation. And so you cannot have a situation where the accounting officer can direct the Public Protector how to fulfil constitutional functions, because that would be an anathema to the provisions of the Constitution. And so when you look at chapter 3 of the Public Protectors Act, it says that the Public Protector shall subject to his or her directions and control appoint what is regarded as the Chief Administrative Officer for the purposes of assisting the Public Protector in the performance of all financial, administrative and clerical functions pertaining to the Public Protector. And I'm going to come in a moment to chapter 4. So in other words, whilst the Public Protector is not the accounting officer under the PFMA, she’s definitely the head of the organisation who deals with in essence decisions that affect the day-to-day running of the organisation. And we know that when it comes to the question of legal costs this becomes an important issue, because at the end of the day whilst the accounting officer has to balance the books for purposes of the Auditor-General, the decisions as to whether to litigate, whether to oppose, whether to obtain an opinion lies with the Public Protector and not the CEO, Mr Mahlangu said he had nothing to with it. Mr Sithole indicated that it doesn’t matter which course we take and who decides on what we do, it ultimately lies with the Public Protector when she takes that decisions and we set out that evidence in dealing with that interplay. So if I take an example where an attorney’s invoice has been signed off and the mathematics on that invoice is incorrect, then one would look to the legal services department who signs off on the invoice, the CFO and the CEO for that kind of an error. There cannot be an expectation that it’s the Public Protector that’s got to check invoices. But when it comes to the big decisions as do we embark on litigation, do we pursue appeals even though there aren’t merits to those appeals, then those are the kinds of decisions with financial implications that the Public Protector makes. And one sees that if you look at... section 4 of the Public Protectors Act, in some ways assists in setting out those kinds of financial boundaries, Chair. So it’s against that background that one has to consider the charge in 11.2. Now from the evidence before the Committee there was essentially an acceptance that after the Nkandla judgment the cost of litigation increased, because the courts had found that the Public Protector’s Office was binding, or remedial action was binding. And so as a consequence of that more litigation occurred and it grew exponentially. The statistics show that even prior to the Nkandla judgment there was an increase in the litigation on a lesser extent through the Office. We then heard that the Zambian experience was of such a nature that Ms Sokoni testified that what the effect of the Zambian experience was, was that once we started being taken to court we upped our game and we made sure that we dotted our i's and crossed our t’s, and hence we didn’t have this burgeoning legal costs in Zambia. She referred to only one important case that had come up in the Zambian jurisprudence as opposed to the multitude that has occurred in South Africa. And so the second basis upon which one can see from the documents that account for the increased litigation costs other than decisions to litigate or what causes the litigation is that the decision to not submit provisional reports to complainants any longer, but to do section 7(9) notices. So previously... you gave everybody a provisional report that encompassed the remedial action, they would then make comments on that to the Public Protector’s Office and if there was any errors or mistakes or something had gone amiss that would be fixed before the final report went out. But because of leaks after the Absa provisional report that was issued, the evidence was that that practice was changed and it went into the realm of submitting section 7(9) notices only to certain implicated or affected parties and it excluded the remedy, except in the Vrede matter where it did include the remedy because Vrede was in that inter-regnum period between where a provisional report did exist even though it was styled as a section 7(9) notice. So that takes us to deciding, if you want to work out whether indeed there was a ballooning of litigation costs at the start then one needs to look at what those costs actually were, and we’ve detailed that in table 1. And so you see what the legal costs in total was for the period in question. The first column reflects the total of professional and consulting fees, and the second column the legal fees. Purely because the evidence of Mr Mahlangu was, well, you can’t blame it all on legal fees, because there were professional and other costs. And so the exercise was done and led to do that. One then looks at that in the context of what’s in table 3 in the document... which then sets out well in the context of the total budget of the Office. One takes out what its biggest costs, which is staffing costs, which remained a pretty constant percentage of the total cost as you will see from the fifth column. The last column reflects what is left over for the Office after your legal costs have been incurred. And it obviously shows you what the cost would have been had those legal costs or a portion of those legal costs not been incurred. So there are two areas that one then needs to look at the question of legal costs. And it would be remiss of us to not deal with an issue that arose during the hearing. And that was a distinction that was made between legal fees and legal costs. Right up front where it was raised that what the charge meant to refer to was not the litigation decisions taken at the PP’s Office, but the cost orders emanating from the court. And this came up during the evidence of Mr van der Merwe. And so what we did in this chapter, Chair, we looked at both the costs from the courts, both the costs that the courts ordered against the Public Protector, as well as the costs in her favour, and then we looked at what it costs the organisation to litigate, so that that is both before the Committee. So if we look at the first section which is the costs from the courts, which start off at paragraph 414. And Chair, there is a table produced in the summation. There must be a distinction between the complaints investigated by the Office, which runs into thousands of complaints versus the number of reports produced – investigative reports. It is only investigative reports that go to court. The other complaints do not go to court, that distinction is an important one to make. And so when we looked at the issue of reports that give rise to litigation costs, we looked at what the total number of reports was that produced over Adv Mkhwebane’s Office until she was effectively suspended. And it shows how many cases actually go to court in total that had been reviewed and set aside at the time. So at the time this table was produced, 36 reports had been reviewed and set aside, one was a closing report in addition. And then at that stage there was another 47 that was pending. We got an update subsequently to that, and you will know that attached to the questions and attached to this document again, we listed all the reports that were set aside in doing that. Now during Adv Mkhwebane’s evidence she referred you to an annexure BM13, which was attached to her affidavit, in which she reflected that 17 reports during her tenure from October 2016 to February 2022 had been reviewed and set aside, that being an unaudited number to do that. So that was the one aspect that had come out of annexure MB13, which didn’t correlate to the reports that we had concluded had been the case. And for that reason, so there’s no dispute about it, we created what was annexure 2B to the document, which is right at the end of chapter 2. We listed all the reports that had been reviewed and set aside during her term of office. We point out that the ones you’ll see in green highlight on the side of it are the ones that are actually reviewed and set aside outside of the BM13 period. And we also point out if you go further down in the document, the last five are those that come from the Madonsela period where Adv Mkhwebane takes a decision that these are not going to be opposed and which are then reviewed and set aside. So that’s the context of the litigation, which must be distinguished from the context of the number of investigations done... Members would also be aware of the issue of new complaints or the amount of complaints. And we draw this distinction so that there’s no confusion between what is investigated by the Public Protector’s Office and not. One of the other factors that was looked at for purposes of determining this cost was what was the workload of the Office in that regard. And annexure BM13 points to close to 60 cases that had been finalised by the Office. Now there’s a distinction between finalised and investigated. Finalised is a count of a complaint lodged and closed, and then it’s ticked off the tick box, that’s done. Investigated is if somebody’s source had been dedicated towards dealing with it. The distinction is an important distinction to be made, because if you take the tick box exercise and you deduct the ones that the PP’s Office has no jurisdiction, or referred to other institutions, or was withdrawn, or was resolved before an investigation could have been concluded, then the total that you come to in blue on the chart that’s up on the screen does not reflect the same amount of cases that are actually investigated and closed. It comes to a lesser amount, and that total comes to 40 117. So we take that lesser amount as being that which occupies the resources, but the manner of reporting on it has always been the total finalised, which in some ways inflates the workload of the Public Protector’s Office. And that manner of accounting preceded Adv Mkhwebane’s term of office. So if you take that count into a case, the total finalised... and bear in mind she is a year less than her predecessors in office. So if you look at her total amount for that period, she comes to a total of 474 100 in that period of new complaints. And her total finalised would be 54 334. Her predecessors, Adv Madonsela had 131 015, and Adv Mushwana had 110 663, and Adv Baqwa had 36 669. Now, it is not... you’re not comparing apples and apples. Even though I'm making this statement to you, I must point out to you that Adv Mkhwebane’s statistics fall short, because of her suspension period and she had the formidable task of heading this Office through a Covid pandemic, which had obviously made delivery in many respects much harder, but it also dropped the numbers of complaints that had been lodged with this Office. The flip side of that is it made dealing with backlog a lot easier or reducing the backlog, because you had so much less new cases coming to the Office. So one does see that the backlog is easier to move, because you have fewer new cases coming in. So let’s look at the actual costs. The evidence before the Committee was that austerity measures was imposed, which affected day-to-day operations across the board, and that one of the consequences of that was that certain cases or a position was adopted that we no longer giving an instruction to oppose matters, because of financial austerity. And we then looked at, well, in the financial year in question, because it overlaps with the defence of financial constraints in the Vrede matter, in particular Members will recall that the Vrede investigation was not pursued, because of financial constraints being the answer in court. So we looked at... what cases a notice of opposition was withdrawn. We had the documentation and the evidence before that, and at that stage, 13 cases were said to have been withdrawn. The instruction was reversed on a number of those and at the end of the day four matters was proceeded with. Mr Sithole’s evidence was, well, on those matters that we proceeded with we had won three. When we looked at it that was not the case, they’d only won one. The bulk of the cases on which a notice to abide had been filed related to matters that was left over from the Madonsela period in that regard. Subsequently, Chair, a number of cases were not opposed largely the run off the mill reviews in the PP’s Office. A notice to abide was filed et cetera, and it was dealt with internally by the Office. We had put up a summary, a table which may have been quite dense when we did it before the Committee. If you go to paragraph 421 and 422, it answers the question that one of the Members had just raised with the Committee, as to what were the wins and losses before the High Court. Chair, there were very few wins. I think you can see in terms of cost orders, paragraph 421 deals with the ones against, and there were several personal cost orders. But there were innumerable cost orders of the ones litigated, taken against the Office, both in respect of High Court matters and then invariably in respect of appeals, applications for leave to appeal that go to the SCA and then go to the ConCourt, which we see listed here in dealing with these cases there. And so I'm going to take you specifically to 422, which becomes important, because it shows the wins, the cost orders in favour of Adv Mkhwebane in the various cases. And in some of them the costs are in part, because they’ve won an interlocutory aspect of the case. So for example, the egregious comments made against the Public Protector in respect of which there was an application to strike out in the SARS unit matter, and then the dismissal of the counter-application... costs was ordered in favour of the Public Protector. And in the greater scheme of things that was a small interlocutory order in the total cost of litigation in that case, which exceeded over 14 million. The cost in the Nkwinti matter, which was successful both in the review and the leave to appeal, Ms Baloyi’s evidence in that, was that she had that report in hand nearly from start to finish, and they had won that case from start to finish. The Motsoeneng matter, which was left over from the Madonsela era, the Public Protector won. The interlocutory matter dealing with the Minister of Finance, they won, but they lost the review. The USAASA matter, which was settled without a judgment, they got cost orders, it was an ordinary review. The case of the Minister of Arts and Culture was settled and they got costs, without any counsel having been engaged. This will ring some bell with the Members, because it’s the evidence of Mr Nyathela. And then the Mbina-Mthembu matter, it’s the one case that they did win after there was a changing of the minds to do that. But there were a number of matters that was reviewed and set aside, where there were no cost orders made and the reports were set aside by agreement, bearing in mind that the resources of the Office would have gone into the compilation of those reports in the first instance. And so, there were at the time when this schedule was prepared, there were a number of cases pending in respect of which no external legal representative had been appointed and had yet been opposed. So that answers the question which was posed to us and which we’ve quoted in paragraph 423, by the Hon Member Holomisa at the start of the proceedings, that there was a need to balance the reviews of those that have been set aside, albeit that this motion only dealt with a few cases. We then look at, well, what the costs were of only initiated litigation during the period in which there wasn’t money to fund the Vrede litigation. We know that the two only own-initiated litigations are the impeachment proceedings. And Chair, we don’t deal much with the impeachment proceedings, even under this section, because a lot of it falls outside the time period of the mandate except for the initial 20 million and it doesn’t fall within the scope of the Motion to be dealing with it. So we only deal with it in the context of the engagement of Mr Ngobeni and on the question of fees. But you would have noted that the total costs or the cost incurred in respect of the litigation against Adv Breytenbach for the allegations that Adv Mkhwebane had been labelled as a spy was close to R 2.3 million, and quite a bit of that was incurred during the period in which there wasn’t money to deal with the Vrede matter. We then turn to the question on legal fees, which caused some acrimony in the public domain when on instructions the detail of this information was provided to the Committee, and because that detail had already been provided I don’t repeat that at this stage. But there was extensive cost incurred in respect of briefs. The matters that are before this Committee cost... made a dent into the budgets or are some of the highest costing cases that have arisen from that Office. It is the biggest spenders other than the impeachment proceedings. And contrary to the evidence that was led by Mr Sithole in this regard, almost all of them end up in some way or another with a brief having been issued by Seanego Incorporated in the Absa matter, although the litigation was dealt with by different attorneys. Ultimately when the Constitutional Court proceedings is finalised it is that firm that provides the instructions for a final opinion to be rendered at significant cost to the organisation. We’ve provided the Committee with the details of that, and then we deal specifically from 434 onwards with two cases, the Absa matter and the Vrede matter. And we do that, because of the relevance of the brief. We deal later, when we look at the others, we’ll mention the costs of the Gordhan litigation and the CR17 litigation. But because this is specifically referred to in the Motion we do deal with these costs and what these costs entailed. And we point out that the decisions to take matters on appeal, what the cost of those applications for leave to appeal are, including the decisions to change counsel. The Committee will also bear in mind that Mr Sithole gave reasons which was detailed into the note as to why in some instances they were obliged to employ additional counsel or they were obliged to change counsel. One of the issues dealt with is this question of crowd funding, whether the cost of the PPSA getting an opinion to ascertain if Adv Mkhwebane could actually receive this public contribution towards a punitive legal cost order against her, was legally feasible. The cost of the opinion comes close to the amount that she had to pay. Having said that, Chair, the flip side of this is that the Absa judgment was the first time that a personal cost order had been made in such terms against the Public Protector. They may have warranted... let’s get the jurisprudence in line, go up to the Constitutional Court, get a decision on what the Constitutional Court says about this personal cost order, which they then do – they get a majority decision which upholds the High Court decision to make a personal cost order as opposed to the minority decision of the then CJ Mogoeng that goes the other way. However, one then sees with the Vrede matter... And I must also say that at the time you take that decision to go on appeal you have no way of actually knowing that your ultimate taxation cost is going to be in line with whatever opinion you receive. So one has to balance one's consideration of that. The difficulty that then arises is that when Judge Tolmay waits for the Constitutional Court decision before she makes a personal cost order. Knowing full well that the advice you had received from the inception of the matter was that you had no merits on the Vrede matter for the prospect of success to start off with. Once the courts confirm that and make an order against you including a personal cost order, there is then applications for leave to appeal... first to the SCA and then to the Constitutional Court, which ultimately results in the total legal costs exceeding R4 million. One then looks at whether those decisions to litigate and to litigate on applications for leave to appeal can be regarded as within the definition of fruitless and wasteful expenditure. We set out the advice that was rendered for the steps taken with the Vrede matter, Chair. So that deals with the question of legal costs on both levels, and the question of financial costs. Thank you, Chair.

Chairperson: Thank you. Thank you, Adv Bawa. That would have been a comprehensive update and the creation of that context, also to refresh all of us on this. I hope it’s been helpful Members. And I now invite Members to contribute in responding to the questions that you see highlighted there, having listened to what Adv Bawa has taken us through. As you can see we want to check if Adv Mkhwebane incurred fruitless or wasteful or unauthorised public expenditure in legal costs. And in the event that it’s so, then would this have been done so intentionally, and so on as you see those three critical questions to start off. So I want to invite Members to contribute in this area. Hon Hendricks?

Mr Hendricks: Thank you very much, Hon Chair. Hon Chair, the matter of wasteful expenditure is in the Motion and that’s why we must thank the evidence leader for giving her take on the merits of the Motion. I noticed that the evidence leader mentioned that there were three clean audits. And mustn't be lightly discarded. I agree with the evidence leader, although she then goes on to rebut the auditors. If anyone is to blame for wasteful expenditure it must be the auditors. In their first audit which they gave a clean audit for, they should have picked up elements of wasteful expenditure and in their management letter asked the Office of the Public Protector to address that. But in the second audit there was no reference to wasteful expenditure. In the third audit no reference to wasteful expenditure. If this Committee finds that there has been wasteful expenditure, they should report the auditors to their regulatory body. As you know, the fines have been increased almost two times when auditors don’t do their job. I can’t understand how this Committee can be told that the auditors only take a sample. Yes, they take a sample, but the sample is representative of what has happened during that financial year. Secondly, there is a margin of error, but it is acceptable. I can tell you, Hon Chair, our political party has gone through very similar audits and it’s very stressful, it’s very onerous. The auditors go to great lengths to identify wasteful expenditure. So if the auditors and the Auditor-General and the other auditors involved, and the accounting people haven't done their job, they can’t come to this Committee and tell this Committee that there has been wasteful expenditure. That's why we have auditors; we pay lots and lots of money for auditors. Then I wanted to speak about fiduciary duty. I know that the CEO is not the director, but we’ve seen the recent Constitutional Court judgment, where only the director was suspended and not the other directors who claimed they were salary people, and they really didn’t have the powers that the other director had. So I can’t accept the position of the CEO to say that going to court has got nothing to do with him. It means he hasn’t carried out something similar to a fiduciary duty, he can’t duck responsibility. When the Public Protector decides to go to court her whole management team takes responsibility. So if they disagree with her, then obviously this Committee hasn’t seen a minute of a meeting where someone said, “Please not the objection”. You know, here in Parliament, “please note the objection of the Freedom Front”, “please note the objection of the Democratic Alliance”, people object. So why couldn’t in the Public Protector’s Office there be similar objections. So Al Jama-ah rejects the position that has been, and the evidence has been put before this Committee. We lay the responsibilities squarely in front of the doors of the auditors, and not the Office of the Public Protector and not the Public Protector itself. Hon Chair, if this Committee is going to listen to what the evidence leader has to say, it throws all our audits into disarray. No one will ever respect an audit again, because the argument is the auditor only looks at the sample and not the detail. So the DA has identified four cases out of the whole lot; they haven’t put forward cases that shouldn’t be under scrutiny. I'm sorry, Hon Chair, I don’t accept the point of the evidence leaders.

Chairperson: Thank you, Hon Hendricks. You just forgot to make example about Al Jama-ah also objecting in Parliament. But maybe before I go to the next Member, just to quickly bring in Adv Bawa. You wanted to clarify something?

Adv Bawa: Chair, yes. I must not be said to be understood that it undermined the clean audits in any way. I was seeking to draw a distinction to say that which this Committee is asked to do is not an audit exercise. And that was the reason of pointing out how an audit actually goes about it. And this goes back to the question that came very early on in the proceedings, about how we determine fruitless and wasteful before this Committee. And so I took you to what the definition was in fruitless and wasteful. You cannot disturb that audit, you’re not being asked to disturb that order and that is not your job. That it must be clarified that I wasn’t seeking to rebut an audit in any way.

Chairperson: Thank you. Thank you, Adv Bawa. Hon Lotriet?

Prof Lotriet: Thank you, Chairperson. Yes, I think Adv Bawa made that very clear and that’s also how I understood it. Chairperson, If I focus on the questions that we have to deal with, to me regardless now of the clean audits as has been explained, I am of the opinion and the evidence does lead me to believe that there was indeed fruitless and wasteful expenditure. The unauthorised, I'm not so sure, because it was also said that the final decision in terms of incurring legal costs and litigating was that of the Public Protector. And in many instances, as all the examples we have been presented with, it led to a fruitless and wasteful expenditure. I'm just thinking one of the last ones now was where the Public Protector in fact, the question of her being a spy, that is a very personal litigation, but this incurred some costs, and it is the taxpayers cost or it is their money in fact. So I think we have been presented with overwhelming evidence in terms of unsuccessful legal actions, appeals, et cetera. And I would therefore from my side, say that there is indeed evidence here that the Public Protector incurred fruitless and wasteful expenditure. I also believed that she did so intentionally, because she took the conscious decision to embark on the litigation... perhaps gross negligence is a bit of a stretch, however she did not take due care in terms of dealing with the taxpayer's money in a way that she should. Money was in fact then... or there was less money available for her to fulfil the actual function that she has to fulfil, namely protecting the public. Thank you.

Chairperson: Thank you, Hon Lotriet. Hon Sukers?

Ms Sukers: Thank you, Chair. Chair, I'm going to come at it from a slightly different angle or maybe the same. It is the focus on failure to establish proper corporate governance in terms of the aspects raised. The pattern of the appointment of lawyers appears to indicate a degree of favouritism. There appears to have been no system to ensure the fair distribution of work. A panel existed but work was not distributed to that panel fairly. The problem in particular relates to decisions to pursue appeals, did the PP seek or obtain unbiased advice from lawyers who had no interest, either financial or professional in vindicating their legal theories in court. It is not primarily needed here to establish if favouritism was practiced, or bad decisions made, but rather what mechanisms were put in place to ensure that the appeals with very little prospect were not pursued. So the failure to establish such mechanism points to incompetence to managing the resources of the Public Protector South Africa. Thank you.

Chairperson: Thank you, Hon Sukers. Hon Mileham?

Mr Mileham: Thank you, Chairperson. Chair, I want to highlight two issues. The first is that the Public Protector is the accounting officer for the entity or the Public Protector South Africa. So the individual is the accounting officer for the entity. And as such, is ultimately responsible for the financial conduct of the entity. Furthermore...

Chairperson: Sorry, did you say the PP is accounting officer?

Mr Mileham: That’s correct, Chair.

Chairperson: Yeah, she’s regarded as the executive authority. And the accounting being the CEO.

Mr Mileham: Okay, fair enough. I accept that correction. The executive authority, you are correct. But ultimately the person responsible for making the decisions and the person decides whether or not to proceed with litigation or otherwise. Chairperson, the further point in this regard is that the issue of fruitless and wasteful expenditure or... Yeah, let’s focus on fruitless and wasteful, is that it prioritised expenditure on issues that were not within the core mandate. In other words, it prioritised expenditure on litigation, it prioritised expenditure on fighting political battles, it prioritised expenditure on fighting reports that clearly the entity had no case to make or no real chance of winning. As such, it took the focus away from other areas; it took the funding away from other investigations and other activities that were within the core mandate of the Public Protector. And as such, I think the incumbent needs to be held responsible for that. Thank you, Chair.

Chairperson: Thank you, Hon Mileham for your contribution. Hon Nkosi?

Mr Nkosi: Thank you, Chairperson. I agree with what the three previous speakers has indicated. And particularly so, because during evidence placed in the Committee, it was clear that there was a shift of funding from one to other programmes... particularly outreach to legal services for whatever, whether it was for cause or whatever. But shifting funds from one programme to the other, for me, requires permission from Treasury and the ascent of Treasury in that regard. So you can’t just do a virement simply because there are pressures. Remember that the budgeting process is law, and therefore to change that, you needed to go back to Treasury and change it, and even come back to the Portfolio Committee for it to sanction you or agree with that approach. So in my view, yes Chair, overall, there was incurrence of this fruitless and wasteful expenditure, and that it was done intentionally; or if we can’t say intentionally, can we say it was negligent? I think it will be difficult to say it was negligent, because of what we know. That she went in, she said we have litigation to content or to institute... therefore shift these funds from here to here, in fact shift this fund from other programmes like outreach into legal services. Thanks.

Chairperson: Thank you, Hon Nkosi, for that contribution. Hon Maneli?

Mr Nkosi: The last point, Chair, is that we do agree that in her period she did have clean audits, you know. But if you look at the evidence of particularly Mr Mahlangu, certain information was not disclosed, both to Treasury and to the auditors, that that clean audit was obtained against practices of doing virements without seeking permission.

Chairperson: Thank you, Hon Nkosi. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. I want to start maybe on the last point. Once again, to make the point that we are indeed not discussing the audit outcomes of the PPSA. So it’s not the matter of the audit, but Chair, we are looking at what is presented before us, actions taken, whether they do past that test that as you incurred the cost could anything been done to avoid incurring those. Now I would not repeat what other Members would have said, but just to add the point, because this would have also come up on Friday as we looked at one case and its timing thereof. You are able to leave an investigation that seeks to defend the poor and the public, and that’s the Vrede case. The reason cited is that financial constraints are an issue, whilst you pursue cases on the other side where it has been clear that repetitively you have found to be on the wrong. The words I've used, Chair, at the time and I want to use that to further clarify what has been raised by another Member before. That’s a failure to defend the poor that I referred to, which is what the Office is about, public protection, and that’s why it’s Public Protector. Chair, if you have got one case of Vrede, and there are many parties in that score... the mere fact that you will go with different senior counsels on the same matter, it’s a matter that could have been avoided, and that’s fruitless and wasteful, because it’s the same matter. And in the evidence led, Chair, there was nothing convincing from a point of rationality why you’ve gone that route looking at the resources that you have available. So I just thought it’s important that it doesn’t sound out like the Committee has put the AGSA on trial on whether you did a proper job or not, that’s not the matter. It's appreciated that from what is expected from AGSA everything else could have been proven. And in my own way of simplifying the matter, I usually say, yes, indeed these are the processes I followed; these are the receipts I have. But here we’re looking at the value derived from these actions, where you could have avoided going a particular route, but you can still prove that you procured well to get there. But you could have avoided doing the same thing in a way that makes those resources that are scare to disappear. And I'm sure we’ve been given a lot of other examples, like I said, I don’t want to repeat. You cancel investigators from going out and they work probably more on desktop, and then you also cancel outreach programmes that seek to give access to the same public on the basis that they can access this through maybe your radio outreach programmes. But you are not afraid to spend money in that score. From the passage itself, it’s clear that there were decisions taken to withdraw cases, Chair, because of that money that we do not pursue. But later on you decide that, no, I’ll still do it even if there’s no money to do it. Surely, it can’t be correct. So I just thought that I should emphasise that point, Chair, in agreeing with the other speakers that indeed there is a case of fruitless that could have been avoided, and that makes it intentional that you move in that direction. Thank you.

Chairperson: Thank you, Hon Maneli, for that contribution. Hon Mananiso?

Ms Mananiso: Thank you, Chairperson. I think one is very comfortable with the emphasis of Hon Boyce Maneli. And indeed, she intentionally incurred fruitless and wasteful expenditure. The other thing, Chair, that one would want to emphasise is the fact that with the testimony that came before us and testimonies led by the evidence leaders, it really indicates that she failed to use the resources of the institution in an efficient and effective manner as expected of the holder of a public office in section 195 of the Constitution. So therefore, Chair, answering all these three questions it really shows that the PP intentionally incurred fruitless and wasteful expenditure. Thank you.

Chairperson: Thank you Hon Mananiso. Hon Siwela?

Ms Siwela: Thanks, Chairperson. I think I'm covered by Hon Mananiso, that we don’t deal with the outcome of the audit but we are basing our facts on the report which is given. So I’m really covered and I'm in support, thank you.

Chairperson: Thank you. Thank you, Hon Siwela. Any other Member? And is there any dissenting view? Except Hon Hendricks who has expressed himself. None? Any final remark, Adv Bawa, before we proceed to the next?

Adv Bawa: No, Chair, sorry. Nothing from my side.

Chairperson: Okay, thank you. We wrap up this one in the manner, I think, Members have comprehensively spoken. We proceed to the next. Over to you, Adv Bawa.

Para 11.3 of the Motion
Adv Bawa: Chair, we’re going to jump in the way our summations are done at the moment, because we want to go on to 11.3. And if you look at the charge sheet just to remind you on 11.3, you would know that at the end component of our chapter 2 of our summations we deal with certain aspects on 11.3, but we think it’s more important to take the Committee to the SARS matter first and then come back, and the CR17 matter, and then do the bits and pieces to complete on 11.3. So I want to go on the SARS matter, which deals with the misconduct or incompetence, failing intentionally or in a grossly negligent manner to conduct investigations and/or make decisions in a manner that ensures the independent and impartial conduct of investigations. And then the part of 11.4, deliberately seeking to avoid making findings against or directing remedial action in respect of certain public officials, but deliberately doing so in respect of others. Now Chair, this charge of misconduct and incompetence is specifically linked in these paragraphs to an independent and impartial conduct of investigations. So that must be borne in mind, in the back of your mind as to whether there was a lack of independence or impartiality in that which was found. Now the SARS matter is dealt with right at the end of our summations in chapter 3, part 2. Effectively in dealing with this, we took the cue from the manner in which the PP herself led evidence before the Committee, because this is one area in which – over and above the court records which show you what Minister Gordhan’s position was – you had the evidence of Mr van Loggerenberg, Mr Pillay, you had the evidence of Mr Mataboge, Ms Mvuyana, and you had the PP’s written statement as well as her oral evidence. We know that there was two complaints, one from Mr Shivambu and one from the anonymous whistleblower. And we know that the subject matter of the six allegations... or six of the 14 allegations fell into this report, the remaining was held over for a later date. So what we further know from this, Chair, is that an extensive remedy emerged as a consequence of this report. This report based part of its remedy back on what I'll call the IGI report. The Inspector-General of Intelligence had earlier on furnished a report. Then in paragraph 5 onwards we set out the extensive litigation that had ensued in this matter in a table for the Members to be familiar with it. The courts found against Adv Mkhwebane on the merits on just about every aspect of it. And then set out nine grounds on which they found her to be biased, which you see in paragraph 6. It’s to those nine grounds that the Public Protector’s evidence before the Committee was geared, because those were the grounds on which the court found her to have been biased and that dishonesty dealt with some aspects of it. It is also the basis upon which some it formed the basis of the Independent Panel’s conclusion that there was prima facie evidence of incompetence, which we detailed in paragraph 7. The Independent Panel’s prima facie evidence of misconduct was premised on the nine aspects justifying the finding of bias against Mr Gordhan and Mr Pillay listed in paragraph 290 of the High Court judgment. And it’s that paragraph of the High Court judgment that becomes important in this matter. Now just to bring the Committee up to speed, that High Court judgment was appealed right up to the Constitutional Court, and the application for leave to appeal was refused. So there's no higher court judgment than this... Chair, would you want me to do each ground in turn for the Committee to deal with, rather than all nine, because it becomes quite extensive to do it as all nine? I'm in your hands, Chair.

Chairperson: Let’s take it piece by piece, it might be smoother that way and quicker.

Adv Bawa: Okay. So the first ground, Chair, is based on a jurisdictional issue. Bear in mind that much of the facts in this matter had arisen more than nine or ten years previously. And as a matter of law in order for the Public Protector to investigate it, she must establish special circumstances before embarking on investigation thereof... The special circumstances must show that Adv Mkhwebane rationally exercised her discretion in respect of all of them, and the court found that she had not. Now we must also take care in knowing what Adv Mkhwebane said to the court, but what was also relayed at the time of the investigation. And so I'm going to deal with both as we go along, so that one can see. And there’s a third element to it... sorry, Chair, is the explanation that is then provided to the Committee. And in some instances they are not precisely the same in doing that... Minister Gordhan’s attorneys from the outset asked and said you’ve only provided generalised grounds; you need to provide us with specifics of what these special circumstances are that you rely on. So in paragraph 13 you see that Adv Mkhwebane writes to the Minister’s lawyers, and she says she had been “reliably informed” that “the surveillance equipment illegally acquired at astronomical costs is still being used to intercept communications”. But Chair, we want the Committee to be familiar with the phrases of “reliably informed” and “on good authority”, because they become materially relevant in the SARS unit reform report. In instances where the actual source or evidence is not disclosed and we make the point, because when Ms Mvuyana came to give evidence, she had no clue as to where this information came from, that the actual interception of communication was still happening. She knew about the costs, but not that it was still happening. There's then two further instances where an explanation is asked of her, in her response in her section 7(9) notice where she asks implicated parties to comment and in her report, and in both of that she goes back to the generic explanation where she doesn’t set out any specific circumstances into doing that. There is then the court proceedings that happen in which the explanation is then provided as to what those circumstances are, and they differ. We deal with that in paragraph 20, where it is said that that the “nature of the complaint involved conduct of a serving Member of Cabinet, and the issues raised for investigation were sufficiently grave to warrant exercising discretion in favour of conducting an investigation” - that is the explanation the court rejects, it has not being sufficiently special. Adv Mkhwebane then came before this Committee to provide an explanation as to why that happened, and the reasons provided to this Committee is reflected in paragraph 28 of the note, where it was told that as a responsible Public Protector there was a complaint of an incident that was still ongoing, people’s lives were being under threat, people were being monitored without the knowledge, without the approval of judge. She had seen a video of cameras that were still operational at the Director of Public Prosecutions. And then she said there was information that was sent to her. She referred to the email that we put up that said Mr Gordhan was a threat to democracy, and she indicated that she had forwarded that to the investigators to take note of, because others were saying that people were being killed and there was all this information coming forward. And she felt that responsibly, she had to look at this and do that. Chair, one of the difficulties is that at paragraph 30 we point out what the investigator didn’t know. And we point out that in the greater scheme of things, this information wasn’t put before the Committee. And in paragraph 31, we have a note from the investigator which reflects that some of the source of this information was initially given by a person identified as in the note as “JM”. And later on is referred to as Malema in the note. And none of this is disclosed in the Rule 53 or in the key sources of evidence before the Committee. And so there is no mistake about that. We provide the Committee with this note as C3F to our note... which is the handwritten notes of Ms Mvuyana before the Committee, to see... and if you go down further on the draft, on the first page you saw the EFF reference. And then if you go down to the next page... information received “SARS bugged the house in CPT”, as being the only evidence that we had before us. So if we read the note in its entirety, we see the source, which is not disclosed in it. So that is the first ground, Chair.

Chairperson: You done?

Adv Bawa: Yes.

Chairperson: One the ground one?

Adv Bawa: On the ground one.

Chairperson: Okay. Thank you, Adv Bawa. So that we can just bring in the Members to interact before we proceed to the next. Hon Members, hopefully you followed the brief context and summary. Let me note you. Hon Hendricks?

Mr Hendricks: Thank you very much, Hon Chair. Hon Chair, I know that there’s grabbers that has been responded to in the Supreme Court of Appeal... Having said that, the Minister of Police has been very open and said, yes, we do use the grabbers to gather information unlawfully. So he’s taken the nation into his confidence. As far as this particular matter is concerned, allegations are that the Public Protector is on sides of political parties... I would like to urge the Committee to carefully read her explanation... She has given a thorough explanation and I accept the explanation. Thank you very much.

Chairperson: Thank you, Hon Hendricks. Hon Mileham?

Mr Mileham: Thank you, Chairperson. I think that the issue here is the reliance of the Public Protector on unsubstantiated allegations on unprovided evidence or information that has not been included in the report or the Rule 53 record. As such, there is no basis on which to make a finding. If you have an allegation it is not factual, it’s someone saying that this is the case. And here we’ve heard from what Adv Bawa has just shown us that a lot of the so-called facts in this matter rely on emails and on allegations made by political parties, not on evidence and that is unfortunate. And it goes to the incompetence of the Public Protector in this matter. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Other Members? May I also check with Members, are you comfortable with the way I've ruled that we do it ground by ground, piece by piece, or you want everything else? Hon Nkosi?

Mr Nkosi: Chair, I’m comfortable with that, we do it ground by ground. Otherwise, we will not be able to cover everything all nine grounds. On the first ground, Chair, I think the question we need to answer is whether there were exceptional circumstances that permitted her to investigate the matter. And I think as demonstrated by the summation and the evidence before us, it’s clear that the court was correct, there were no exceptional circumstances that gave a jurisdiction on a matter on which she had no jurisdiction to investigate. And then we can speak about the reliance on emails and other information et cetera, that has not been tested and that could not be tested or could not service a ground for her to do the investigation. But the cardinal issue is whether there were exceptional circumstances, and I think there were not.

Chairperson: Thank you, Hon Nkosi. Any other contributions from other Members? Thank you. Any remarks Adv Bawa, before you proceed to the next one?

Adv Bawa: Sorry, Chair. I've been muted...

Chairperson: No, it’s fine. Let me hold you back. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. I don’t know why the gadget is slow, but my hand was really up.

Chairperson: Yeah. When we’re physical there’s no slowness...

Mr Maneli: Thanks Chair. I think one also agrees that on this point both what the courts would have said, but also the Independent Panel in terms of the prima facie. Indeed, from evidence led before the Committee, Hon Chair, we still cannot get the special circumstances applied. As Hon Nkosi said, the reliance on whether it is from good authority or not gets to be another issue. But the issue at hand now is that there’s not been articulation of those special circumstances that would have led to going back there, even when there was an indication that the predecessor would have not moved in that direction and the advice thereof, but still proceeded along those lines. Thank you, Chair.

Chairperson: Thank you, Hon Maneli. Any other Member? Is there any different take or different view? None? Adv Bawa?

Adv Bawa: Chair, on ground two, it gives rise to the issue of...

Chairperson: Okay, you're proceeding on ground two now? Okay, go ahead. Go ahead.

Adv Bawa: Yes, Chair. The issue on ground two is whether the reliance or whether giving the notice on YouTube and reliance on the media... let me give you the reference in the summations as we go along. It's paragraph 48 to 75 of the summation. But the question is whether there was misconduct and incompetence arising from the manner in which she gave notification of a section 7(9) notice publicly disclosed on YouTube that Mr Gordhan was implicated, without giving him prior notice thereof and telling the public of all the other complaints that had been lodged against him, even prior to giving him a chance to respond...

Chairperson: Just a pause. Hon Maneli, is that an old hand hanging? Or you want to have a bite?

Mr Maneli: No, Chair. It may be an old hand. I just hope you got the last point made by that old hand, that the point I was emphasising was that the Independent Panel point is substantiated. Thank you.

Chairperson: Okay. I didn’t get that, I'm getting it now. Thank you. Proceed, Adv Bawa.

Adv Bawa: Okay, Chair. So the first issue was in disclosing that you are issuing the 7(9) notice. In other words, a 7(9) notice gets issued to somebody who you say is implicated or in some sort of wrongdoing that you are investigating. The fact that she has publicly disclosed that she has issued the 7(9) notice against Mr Gordhan and telling the public of the other complaints that has been lodged against him, even prior to giving him a chance to respond. The question then arises is does she exercise her powers constitutionally, without fear or favour of prejudice, and impartially in giving a first time notification to the public that the person has been implicated and investigated. But Chair, you will know that the defence that was raised in this matter was effectively that the court got it wrong. And that in the court's judgment it had misconceived this notice as not being a notice that I'm issuing a 7(9) notice, but having said that she actually issued the 7(9) notice itself in the public domain. And they referred to a paragraph in the judgment which said that. There is another paragraph in the judgment which is paragraph 43, which says precisely that, that’s talking about the notice. So there's two paragraphs in the judgment, one Adv Mpofu relied on and not the other one. But the issue before this Committee, Chair, is whether it was appropriate to first release media releases, saying that Minister Gordhan had effectively been found an implicated party. And there were a few reasons as to how this came about. Firstly, there had been a meeting at SARS and the PP then issued a media release saying that Minister Gordhan had colluded with SARS and other implicated parties to construe answers for her. And she put that out in the media domain. Minister Gordhan had not been in this meeting, and so in response to that, his lawyers then put out all the correspondence which had ensued with the Public Protector asking her for special circumstances, which they then said was not forthcoming. Thirdly, she then indicated when she made this presentation on YouTube, that she was investigating a rogue unit, and the interpretation put to that was as if it were a fait accompli that it was a rogue unit. In other words, she was not investigating with an open mind. And then by telling the public that people had lost lives and had been threatened, when this neither appears in the report nor in the section 7(9) notice. So the explanation that is given to the Committee for doing it, is not what she says in the report. Her motivation for doing it is because she says there was this extensive negative media campaign, and it was retaliatory. We know, Chair, because the Committee has emails which the court doesn’t have that in an email on 20th of May, she attributes the Public Protector’s removal to have been at the instruction of Minister Gordhan – she says that in an email dated 20th May 2019. We also know that the position adopted in respect of this was informed by advice which she received by Mr Ngobeni, which says that she must put out into the public domain the information as she did. And during evidence, we displayed that email. So that was what informs this leg of the Inquiry, Chair.

Chairperson: Have you landed?

Adv Bawa: Yes, I’ve landed.

Chairperson: Okay, thank you. There you are, Hon Members. Let me invite you to interact with this. Hon Nqola, followed by Hon Hendricks.

Mr Nqola: Thank you very much, Chair. Chair, without many explanations, I mean it was common cause that it was inappropriate for the Public Protector to issue a section 7(9) notice through public platforms and not to the affected parties. And that... constitutes misconduct. Thank you very much.

Chairperson: Thank you, Hon Nqola. Hon Hendricks?

Mr Hendricks: Hon Chair, our take is that there was no rogue unit. However, we haven’t heard the last of this particular matter. We feel that this is one matter that the Office of the Public Protector must take responsibility for, and not necessarily the Public Protector alone. And we cannot then impeach the Public Protector, because her Office decided according to what is before the Committee to put it in the public domain before informing the lawyers. That I personally lay in front of the door of the CEO, and also the spokesperson who released that particular media release. Thank you, Hon Chair.

Chairperson: Thank you, Hon Hendricks. Hon Maneli?

Mr Maneli: Thank you, Hon Chairperson. I would like to agree with Hon Nqola, that from what has been presented it’s quite clear that you have something unprecedented that would have been done, as releasing this to the media without engaging the affected person would have not been the way the Public Protector would have worked in other investigations. Of course, before this Committee we were also made to understand that she would have done other things to ensure that there’s no leak. But it doesn’t remove, Chair, the fact that procedurally this would have been interacted with the affected person first, and that person would not hear this from the media in that regard. Therefore, would have not been the right manner of ensuring that this investigation is done properly. Again, as it relates to what the passage refers to as the rogue unit and so on it does affect, as I say, the way of being a person with an open mind. And this Committee has been reminded of this by the legal representative of the Public Protector. The Mail & Guardian was quoted many times, that you need to have an open mind and so on. And in this case, this didn’t apply. And we’re placing this, Chair, because it’s a matter of competence. We're placing this to the Public Protector given what we have dealt with in the other sections, that at the end the buck stops there, on whether to release or not, unless it gets signed off that this is the route we would take. I submit, Chair. Thank you.

Chairperson: Thank you Hon Maneli, for your contribution. Hon Mileham?

Mr Mileham: Thank you, Chair. I just want to add one point to this. And that is this is the first time in our deliberations over the past two days, where we see the direct involvement of Mr Ngobeni and his advices to the Public Protector. And we know from the evidence that we've seen, that Mr Ngobeni is not entitled to practice law in South Africa, and that the Public Protector should not have been using those as legal advisors or even for communications purposes. So I think we just need to note that, that it was brought in, in this particular matter. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Dlakude?

Ms Dlakude: Thank you, Hon Chairperson. And thanks to the evidence leader for that information, which reminded us of what exactly transpired during the evidence that was given. Hon Chair, I want to echo the same sentiments as Hon Maneli, that in any investigation the implicated party is notified. In this one, Mr Gordhan only came to know about this in the media. He was not informed by the PP of her intentions. So she decided to publicise that in the section 7(9), without notifying him, Mr Gordhan, of the consequences thereof. So I think this is not acceptable. In this way, she didn’t conduct herself in a manner which she’s supposed to. Thank you.

Chairperson: Thank you, Hon Dlakude. Hon Nkosi?

Mr Nkosi: Thanks, Chair...

Chairperson: We’re losing your network... Yes, we can’t hear you properly; I’ll come back to you. Let me come back to you. Hon Sukers?

Ms Sukers: Hi Chair. Chair, I think my point is at the next point, because I think we’re...

Chairperson: Okay, no problem... Okay, can you reposition yourself Hon Nkosi? I now come back to you.

Mr Nkosi: I've done that, Chair. Am I audible now?

Chairperson: Yes.

Mr Nkosi: I was saying I agree with the views of the Committee Members who contributed, but just to add that the Public Protector should have realised that she wields enormous power in relation to people that she investigates. And therefore, she has a responsibility to take adequate care that people don’t receive notices such as a 7(9) publicly or not directed to the legal representatives. And in this case, she failed intentionally.

Chairperson: Thank you, Hon Nkosi. Any other Member? Any further dissenting point? None? We'll proceed. Adv Bawa, can we go to ground three?

Adv Bawa: Chair, in the next section we take two of the grounds together, we look at what is three and six together. And we do so, because Members will recall that during her evidence it was indicated to Mr van Loggerenberg precisely what Adv Mkhwebane took into account in reaching a decision. And this ground is that the reliance on the KPMG report despite it having been disavowed, the Sikhakhane report despite it being widely discredited, she had also failed to engage with the findings in the Nugent report – is part of ground three. And ground six is that she had disregarded the Sunday Times apology and the Kroon apology. Now Chair, you will know that this was disputed during her oral evidence and information was put before the Committee which was not precisely the information which appeared before the courts in the affidavits, nor based on what was contained in the report necessarily in that regard. You would know, Chair, that there was an issue about whether the documents which were relied on, were actually submitted in the Rule 53 record. Ultimately, what it boils down to is whether there was an independent investigation done by Adv Mkhwebane and by the investigator – Mvuyana and Mr Mataboge, independent of what other reports had to say in that regard. And before this Committee it was said that they did independent investigations... and these reports were simply corroborative of her findings, which they came to independently. This is not necessarily what was borne out in the report, in that there was direct reliance placed on certain parts of the evidence of those reports in that. So if we possibly take them chronologically as to what came first in the line of thinking. So one goes to the Sunday Times, because this whole notion of a rogue unit is introduced by the Sunday Times, and it is on the basis of what is contained therein that the Sikhakhane Panel then says we would be remiss if we didn’t look at what the Sunday Times had to say, and then they made certain recommendations which was elevated to findings. But the Sikhakhane report made certain prima facie findings and then made recommendations that it needed to be considered further. The Sikhakhane report was relied upon by Adv Mkhwebane in her findings and conclusions, and even in her summary in the SARS unit report. So given that the preface of the Sikhakhane report was the Sunday Times articles, which was then essentially withdrawn by the Sunday Times. One of the complaints was that she had not taken that into account, even though it was raised by Mr Pillay in his submissions to her. I think before this Committee, she said that she didn’t read the Sunday Times, but it was there. The second thing was the reliance placed on the Sikhakhane Panel including the interpretation as to whether the Intelligence Act was contravened or not. And we know that as a matter of law, the court has now ruled on that. And indeed it was a case of where neither the Act nor the Constitution... was breached. And that’s a binding finding in the country. We also are aware that the panel that compiled the report was three practicing advocates. That does not constitute administrative action that can be subjected to a court of law to be set aside. It’s an opinion, it’s a recommendation, it’s not a decision of such nature that you can actually go and review. SARS on each part had made it publicly known that they were not placing any reliance on the contents of that report afterwards. So the difficulty remains is whether there was an independent investigation done, whether there was witnesses interviewed afresh, whether documents obtained was effectively authenticated, whether recordings relied upon was authenticated, and in respect of the findings of the Sikhakhane report – whether to some degree it was overstated. For the Committee, there was no dispute that the Sikhakhane report was relied upon to make a finding that Minister Gordhan had knowledge of in particular the issue of recruitment. Okay, and so we detailed a number of instances where there are difficulties in that regard. And then the third one is the reliance placed on the KPMG report, and the fact that there was no verification done on what was a desktop exercise performed by KPMG, and then... ignoring the disclaimers by KPMG specifically or not having due regard to Mr Pillay’s submissions as to why the KPMG report should be rejected. There was confirmation by Mr Mataboge that they had looked at the KPMG report as evidence, and Ms Mvuyana then referred later to tape recordings that they had used. And I'm going to come back to it in a bit, that their findings was more than just corroborative, that they used it as actually evidence for purposes of the report. The third issue is the Kroon apology, which the SARS unit report doesn’t mention directly but it mentions it in the context of the Nugent Commission report. Again, Chair, the issue was that the SARS board had almost unconditionally accepted the Sikhakhane report, and then repudiated the reliance on the Sikhakhane report, and Judge Kroon apologised for that. The issue is less one as to how you view the apology, but whether you investigated what was the implication of that policy – Did you speak to the SARS board? Did you engage with Judge Kroon? Did you make sure that what they did was actually correct in that regard? And the fact that Mr Pillay says to you on affidavit this was an apology after the board had deliberated subsequently thereto, and this retraction was done... and the Committee heard evidence that this was effectively an apology of the judge and not the board, because they hadn’t said anything. But the actual evidence before her at the time of the report and before the litigation was effectively that it was that of the board, without that having contravened. And then we come to the Nugent Commission report which was not listed as a key source in the SARS unit report, and there was some contradictory evidence as to whether they relied on it or whether they only referred to it, but it’s not reflected in the Rule 53 record. And there are a number of passages within the Nugent report which also refers to the unit and the investigation thereof, and the fact that Judge Nugent endorsed the opinion of Adv Trengove and Adv Nxumalo who actually finds that the unit is actually lawfully established. So there is this opinion which is in her possession which effectively says on the one hand that the SARS unit was lawfully established, and the nub of this is did you... properly investigate all the evidence before you to come to the conclusions you did, and if not, is that the basis for misconduct and incompetence. Thank you, Chair.

Chairperson: Thank you, Adv Bawa, whilst it’s fresh. Thank you Hon Members, your responses please? As you can see some of the relevant questions you need to respond to, but let me leave it to you. I'll start with Hon Hendricks, followed by Hon Nqola.

Mr Hendricks: Thank you, Hon Chair. Hon Chair, the evidence leader went out of her way to explain the different considerations for the Public Protector. And I come to the conclusion that she needed to have the wisdom of Solomon with so many diverse opinions that has been put before her. I think under the circumstances, Hon Chair, it is my view that the final decision by the Public Protector does not merit consideration for her to be impeached, because she was confronted, guided by decisions of the best legal eagles, I would say in the country. Advocates are all respected; their views cannot be easily discarded. And when three of them come with a position and it’s put before the Public Protector, what would you do Hon Chair? I’m just worried, Hon Chair, that those applicants for the new Public Protector post, if they hear all this they will also withdraw their nominations. We're making it very difficult. You need to have the wisdom of Solomon. Thank you very much.

Chairperson: Thank you, Hon Hendricks. I hope they also understand the importance of that Office too, thank you. Hon Nqola?

Mr Nqola: Thanks, Chair. Chair, Mr Pillay in his response to the section 7(9) notice, he does go to an extent of making serious comparisons in the Sikhakhane report, the KPMG report and the Nugent Commission report. Detail on what are the differences, and how the other ones are discredited reports, but that was not taken into consideration in the final report. Mr Pillay further goes to an extent of submitting the apology of the Sunday Times in the articles that they’ve been writing which were misinformed, which the Public Protector placed reliance on in some of her investigations in this matter. So Chair, this feeds to the narrative that the Public Protector would enter an investigation with a predetermined outcome, it really fits to that. So from where I’m seated, Chair, the Nugent Commission report was completely ignored in the matter and it was inappropriate for the Public Protector to do that. So Chair, for now that’s my contribution. Thank you... Oh Chair, lastly, I think we must note that Piet Rampedi and Mzilikazi wa Afrika are not journalists, they’re just hired guns to a particular cause. Thank you.

Chairperson: Thank you, Hon Nqola. So when you say she had predetermined outcomes, you would argue that she was not of independent mind and impartial?

Mr Nqola: Yes, Chair. Especially the fact that the investigation incident was 10 years old. In terms of section 6(9) of the Public Protector Act, it must not be more than two years at the time of the complaint. The special circumstances Adv Bawa was talking about were neither explained in court, nor in the Committee. So there was no open mind at all. Thank you very much.

Chairperson: And would the action be an intentional one?

Mr Nqola: Completely intentional.

Chairperson: Thank you, Hon Nqola. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. I think with points having been made already... just as I come after Hon Nqola. Just to say, Chair, that indeed if the investigation is open, you’d see at least some attempts made to follow-up on the articles, on the Sunday Times, including engaging editors and so on, you’d also see an interest in looking at the reports that are relied upon – such as KPMG and Sikhakhane. Once you engage it, without just taking what is there, you would have then followed it up to a point of understanding that some of these reports could not be relied upon anymore. Let's take the KPMG situation, where they themselves were taking money to do an investigation but it was not worth the paper it’s written on, and then you rely on that. Then when there’s the Nugent report, no, you can’t even use it because it’s not a binding report, because it doesn’t speak to what you want to see as the ultimate outcome. What Hon Nqola said, it’s predetermined. So there's no impartiality in that quite clearly. The intentions are clear, so it makes it intentional in that score. I think it makes the point that even when from a section 7(9) Pillay raises these issues, you still ignore them as though they’ve not been raised. And I'm saying again, Chair, in that score the investigation would have not been done in a proper manner. There's no independent conduct, because you want to see a particular outcome depending on the people you’re dealing with. And already I've spoken to it being also intentional, and there’s no impartiality in that score. And therefore, that’s a real failure grossly in that way, because there’s no way you could ignore the Nugent report when you have accepted other reports. But I think that’s also going back to some of the things we’ve raised on Friday, when there would have been evidence before the Committee that makes this understanding that you may know the legal side of things as a lawyer or attorney, but the actual practice of the law gets to be also important, because there’s reasonable assumption that if the Sikhakhane report was done by practicing advocates, you’d know that it would not need another process of court review on that score. Just from that understanding, and therefore you would not expect other people to have done something else in that regard. So I just thought, Chair, that’s my contribution to all those questions as I've responded based on evidence before the Committee, which even in the evidence led whether it is the Adv Mpofu and the legal representative or the PP in what has been compiled. There is no objection to this thing that this is how they actually approached the investigations on this matter. Thank you.

Chairperson: Thank you, Hon Maneli, for the contribution. Hon Dlakude?

Ms Dlakude: Thank you, Hon Chairperson. Just to add on the information given by Hon Nqola and Hon Maneli, is that Mr Pillay in his first affidavit... he also made mention of the investigation by the Public Protector in August 2014, where he directed that the PP can get that information from SARS, but this was also ignored by the PP. It is clear that the PP had plainly refused to have regard to any of these records and evidence, and seemingly made no effort to obtain any records from SARS. So maybe if that was taken into account to check other records, then she wouldn’t have relied on this Sikhakhane report to come to her conclusions. So that’s my additions, Hon Chair.

Chairperson: Thank you very much, Hon Dlakude, for that contribution. Hon Mileham?

Mr Mileham: Thank you, Chairperson. Chairperson, much has been made throughout this hearing process of the rules of natural justice, and in particular the rule of audi alteram partem, or hearing the other side of the debate or discussion. And I feel that in this particular case, this rule of natural justice has been ignored by the Public Protector in that she has only really considered one side. And that talks directly to her impartiality or her lack thereof. I'm also concerned, Chair, that the misunderstanding of the legislation and the Constitution talks directly to her lack of legal capacity in this regard. And it goes directly also to the quality control that has not been implemented on all these reports that have been taken on review. So throughout this process we’ve had a number of reports and we heard that the quality controls were shortcut, that reports were written late into the night, that the Public Protector would instruct people to make changes and those changes would not be quality assured. And so I think there’s a bigger issue in terms of the management of the investigative process. And so my position on this whole thing is that the investigation that was conducted on the rogue unit was not done in an impartial manner, it was not done in a manner that ensured independence, it was not done in a manner that sought to obtain all the information available and it certainly did not look at the most up to date information which differed fundamentally from the initial reports – the Sikhakhane report, the KPMG report, the Nugent report et cetera. And so I find that the Public Protector is in the wrong in this regard. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Sukers?

Ms Sukers: Thank you, Chair. Chair, my contribution is just when asked about how the investigation of Mr van Loggerenberg was conducted, the PP stated that the investigators did nothing wrong. Now it is clear that these investigators did not act competently, especially in ensuring they contacted Mr van Loggerenberg. Now it would be speculation to determine why she thought this as she has not appeared to answer our questions, but we can conclude that if she believes that this was a well conducted investigation then we need to doubt her judgment in this case, and it would lead to the conclusion of incompetence in terms of the investigations. Thank you.

Chairperson: Thank you, Hon Sukers. Hon Gondwe?

Dr M Gondwe (DA): Thank you very much, Chair. I agree with previous speakers around the fact that the manner in which the investigation into this so-called SARS rogue unit was conducted was far from being independent and impartial. So much so, Chair, that we heard evidence that supported the idea that the PP was selective in the evidence that she used. And I tend to agree with Hon Nqola when he says there was a predetermined outcome. And that is very clear, because we have the KPMG report; we have the Nugent Commission report. And as previous speakers have already stated, KPMG even backtracked on their desktop findings around the report, and the PP ignored this or ensured that this didn’t come across very clearly in the investigation. But also when looking at the investigation we heard evidence from Mr van Loggerenberg saying that he's submitted reams of evidence that was not taken into consideration. So, Chair, all of that clouds the manner in which the investigation was conducted, and suggests that there was a particular outcome that the PP would have liked to arrive at in terms of this investigation. And we also heard evidence that she was also referring to that unit as a rogue unit, even prior to the conclusion of the investigation, and that already cast aspersions on the lawfulness of that unit. And also her reliance on the report of the Inspector-General of Intelligence, I mean, a report that was classified at the time and we not even sure to this day where exactly she obtained that report. It is clear from the evidence that we’ve heard that she placed a heavy reliance on that report. Thank you very much, Chairperson.

Chairperson: Thank you, Hon Gondwe. Hon Nkosi?

Mr Nkosi: I’m saying I agree with what Members are saying. It's safe to say that, you know... the Public Protector both because of her Office but also because she is an admitted advocate, to ignore all information that is available and relevant to decision making is a serious dereliction of duty. And in this instance, in my view, she did so because it was contrary to what she believed or what she wanted to do in terms of findings on the SARS unit and whatever its activities were. Thanks Chair.

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

Ms Siwela: Thank you, Chairperson... Chairperson, I happen to support all the speakers, more specially the first and the last speaker, Hon Nqola, when he said that the outcome was predetermined even before the investigation started. So the manner in which the investigation has been conducted... So we don’t know whether it was done intentionally or it was just negligence on the part of the PP. So I’m in support with the other Members as well as the summary by the advocate. Thank you, Chair.

Chairperson: Thank you, Hon Siwela. With their being no other Member, we'll proceed having recorded all the views of the Members into our report. Adv Bawa, the next ground?

Adv Bawa: Chair, the next ground is a bit more complicated, well, the next two. But let me deal with the IGI report first. We dealt with quite extensively in our summation note as the fourth ground, because the court made a finding of dishonesty against the Public Protector with regard to this report and her insistence in the remedy to order the Minister of State Security to implement the report. And Members will recall that the issue was whether the court judgment had effectively got it right or wrong in saying that she had indicated to the court whether she had regard to it or not. So let's look at what’s the evidence before the Committee in that regard. She had received information that there was this report. And I'm taking you to the summary of what is above in our report, although there’s quite a bit more said above. She had received this information about the report; it had apparently been anonymously dropped off at the PP’s Office in early January. Adv Mkhwebane had been aware of it being a classified report that had been dropped off. And it comes in a moment to the question of its authentication. She then writes to the IGI and says she’s been “reliably informed” of this investigation. There's no mention in that letter that she's actually sitting with a copy of the report. She seeks a copy of the report. IGI tells her the Minister of State Security has got it, go and ask the Minister for it, and confirms that there was such a report done in respect of media allegations against branches of the SSA that had been finalised, not SARS, Chair. Noticeably that’s the communication that comes. Adv Mkhwebane then issues subpoenas against both the IGI and the Minister... and they are supposed to be on the 31st January 2019. There's a bit of a delay with the Minister, but the IGI comes with Adv Govender... the 31st January. And at that meeting they explained to her that it’s classified and how she should go about getting it declassified, and they offered some assistance. At no stage in that meeting, Chair, is that report which she has in her possession provided to the IGI or Adv Govender. So they don’t physically see the report that she has, they just get told she has it. She then... when asked by the Committee about it, then she says it was authenticated because the dates were exactly the same, and she had been told by the IGI and Adv Govender on the 31st January about this report, and she was satisfied that they authenticated it, because the dates were exactly the same. There's then a dispute which arises with the Minister of State Security, there’s initially a meeting. Adv Mkhwebane says she promised to give her a copy of the declassified report and they get into a spat about this, and they go on court actions against each other and the Minister of State Security’s version in court is that they did not agree that she would give Adv Mkhwebane a declassified copy. She had indicated that Adv Mkhwebane must surrender the classified possession document to her, and she would commence the declassification process. On the 20th of February, a few days after that, she then writes this letter to Adv Mkhwebane and she tells her she must surrender this report. At no stage does Adv Mkhwebane surrender this report. The Minister does tell her that the IGI didn’t have a legal mandate to investigate SARS in terms of the Intelligence Services Act, and that falls by the wayside. I pause here to point out, Chair, as you would know there are key resources listed in the report to which is referred, and all the correspondence with the IGI and the Minister is reflected in that key sources of documents and are repeated in the Rule 53 record, except for three things - the IGI report itself, and the correspondence which ensues on the 22nd February and the 27th of February is not disclosed. Now on the 22nd, Adv Mkhwebane writes to the Minister and tells her that she didn’t know, and she doesn’t know if the document in her possession is indeed the IGI report. And she wants the Minister to cooperate with her, failing which she’s going to start proceedings of contempt against the Minister for not cooperating with the Public Protector’s Office, which then indeed happens. The Minister responds on the 27th, and she notes that Adv Mkhwebane admits to being in possession of a secret document which she’s not entitled to keep – she must return, she’s not the lawful custodian and her continued unlawful possession is a crime. The Minister then goes and opens up a crime docket in this regard and she lays charges, and there’s charges laid against each other which they then both withdraw, and they resolve the matter afterwards. But the point being raised is that as at that date in February, Adv Mkhwebane then tells the Minister I don't actually know whether this report I have is the authenticated IGI report. This Committee was told that the IGI had actually authenticated the report on the 31st of January. You will recall that you received written responses to questions from Adv Mkhwebane in respect thereof. So now if we move forward... and we know, Chair, that... that effectively she goes to senior counsel to get legal advice after the Minister tells her you must return this report and you must give it back, and the senior counsels advice to her rendered on the 25th of February is to the effect, well, nobody’s actually yet told you that this is the genuine item of the IGI report, so you can’t be said to be breaching the law, because it’s not yet been authenticated. We then know further that Adv Mkhwebane is in possession of the Noseweek article, because it was sent to her by Mr Shivambu. And that effectively, Ms Mvuyana, who’s the investigator on the matter, is never given the IGI report, she never sees it, she never relies on it. And whatever instruction she’s given to put into the document emanating from the IGI report is either done by Adv Mkhwebane or Mr Mataboge. Mr Mataboge on the other hand does have top secret clearance, he was provided with the report, he was told to put it in a safe, he denied ever opening up this document to even read or glance it. He says whatever went into the report came from Adv Mkhwebane and that she instructed the remedial action relating to the IGI report, which she then confirmed. Mr Mataboge, as we know from conglomeration of his evidence, reads very little of what’s provided to him. So we question comparing the... competing documentation as to whether there was a disclosure that the IGI report had actually been provided and whether there was a disclosure at the time of the report in respect thereof. But what is of importance, both in respect of the IGI report and the Noseweek article which they both have, is that the intent of all of that is that certain findings are made against Mr Johann van Loggerenberg in that report. The remedial action which is ordered is that that report's recommendations, including the criminal proceedings, must be pursued against Mr van Loggerenberg is then incorporated into the remedial action of Adv Mkhwebane in the Public Protector’s report, without having given Mr van Loggerenberg any hearing. The declassification process is not awaited for and reliance is then placed on the IGI report, regardless of any authentication in respect thereof. The phraseology in the report is taken, such as “reliably informed” and on “good authority”. And eventually before the High Court, there’s then a concession made by her counsel that, yes, actually at the time she had the report. At the time she compiled this report, she did have the IGI report in her possession. And we’ve done that exercise, we’ve gone through the versions of what’s placed before the High Court on affidavit, where that is not stated in exacting terms. And we can see from her report that some of the information that was placed before her or which informs the findings in the SARS unit report, emanates directly from the IGI report. And it wasn’t simply corroborative of an independent investigation. So we see that several invitations offered... and this becomes important when you look at the CR17 matter as well, because the litigants in the High Court asks Adv Mkhwebane in terms whether she’s in possession of the classified IGI report, and there’s no direct answer given in the review application in respect of that. There is a response taken that it’s not up to them to come and ask her whether she’s in possession of a report or not. So Chair, those are essentially the basis upon which the findings of dishonesty are to be found. And for this Committee, the test must be was there misconduct or incompetence in the manner in which the IGI report was dealt with and does it reflect a lack of independence and impartiality.

Chairperson: Thank you. Thank you, Adv Bawa. I come back to you, Hon Members. I’ll start with Hon Xola Nqola, followed by Hon Dlakude, followed by Hon Hendricks, Lotriet, Gondwe. In that order. You kick start, Hon Nqola?

Mr Nqola: Thanks Chair. Chair, let’s first consider that in respect of the IGI report there has been a lot of inconsistent and incoherent statements. And it points to the fact that we have been misled about the IGI report throughout. The first misleading statement was the fact that the report was just dropped by an anonymous person. That's the first misleading statement, whereas the Public Protector...

Chairperson: Hon Nqola, you cut out. I can’t hear you... He seems to be frozen... Okay, he’s gone, we’ll come back to him. Hon Dlakude?

Ms Dlakude: Thank you very much, Hon Chairperson. To take from where Hon Nqola left off, we all know that the IGI report, that report was a classified report. And it can only be the Minister of SSA who can declassify that report, to allow it to be handled by anyone. So Hon Chairperson, it seems that the PP was determined to use and rely on the IGI report regardless of the obstacles in her way. So she was advised to return the document, to surrender the document to the SSA. But what is problematic is that she stated that she had the report's findings on “good authority” and used the phrase “apparently” in her reference to its existence in her report. So Hon Chair, like Hon Nqola was saying, I found that the evidence that the report was dropped off by an anonymous person to your Office, you know, I couldn’t believe that, because she had it on “good authority” that the information that is in the report she could use it and that’s why she relied mainly on that report. So while the PP told the IGI that the classified report had been dropped off at her Office, just to quote paragraph 73, she stated in her report that she had it on “good authority” what its findings were. So the IGI legal advisor Jay Govender has stated that the PP never provided their office with the report, so it could not be authenticated. This is contrary to what the PP informed the Committee, that the IGI informed her that the report she possessed was the correct report. There was no basis in law for the PP to use that report that was illegally obtained by whoever gave her the report, or by whoever dropped the report in her Office. And in the evidence that was lead before the Committee, we learned that the report was dropped off by Hon Shivambu. So it can’t be anonymously obtained, it was dropped off by the person whom the Public Protector knew dropped the report. Hence, she relied on its findings to make her own conclusions. Thank you, Chair.

Chairperson: Thank you. Thank you very much, Hon Dlakude, for your contribution. Hon Hendricks?

Mr Hendricks: Thank you, Hon Chair. Hon Chair, the evidence leader informed us that there was an agreement between the Minister and the Public Protector to settle, and also, we have heard that the Public Protector had before her the advice of a senior counsel. This matter was put before Parliament by the Democratic Alliance to impeach the Public Protector.    After now listening to the evidence before us, I don’t think it’s an impeachable matter. Thank you very much, Hon Chair.

Chairperson: Thank you, Hon Hendricks, not impeachable. Thank you. Hon Gondwe?

Dr Gondwe: Thank you very much, Chair. Chair, I agree with Hon Dlakude, that the PP’s assertion that the report was dropped off by an anonymous source is really... it’s hard to believe. Because you’ll recall that Pona Mogaladi informed this Inquiry during her evidence, that the complainant in this matter, Mr Floyd Shivambu, is the one who sent her the copy of the classified IGI report. He sent it via WhatsApp and he sent it via email. And you’ll recall, Chair, that in her evidence she stated that as soon as she saw that it was a classified report, she then closed the email. Now coming to the Public Protector, Chair, it’s worrying that as soon as she received this report knowing full well that it’s a classified report, that she never even reported the possession of her report to the relevant authorities and indicated that I'm in a possession of a classified report. Instead, she went on and placed reliance on this report. And Chair, this then makes one wonder to what lengths is she willing to go to in order to reach a particular conclusion. She's even willing to break the law, because she was in unlawful possession of a classified report. And as the Public Protector we’re expecting her, Chair, to be the first person to uphold the law, to be mindful of what the law says around the possession of classified documents and unlawful evidence. But here she is, she went ahead and relied on this report and that’s worrying, Chair. That's extremely worrying that she didn’t even make an effort on her part, instead she went so far as trying to correct her unlawful possession of the report. We heard her counsel tell us that she tried to correct this unlawful possession of the report, by then requesting a meeting with Adv Dintwe and Adv Govender. And during the course of that meeting, we heard the recording. I recall there was a part where Dintwe explained to her that the Office of the Inspector-General of Intelligence has no jurisdiction over SARS and the operations of SARS. You will know, Chair, that the Office of the Inspector-General of Intelligence has jurisdiction over your police intelligence, your crime intelligence, and then your SSA and then your defence intelligence. And he correctly pointed out to her, that look my hands are somewhat tied at this point, because she was saying why are you allowing this unit to continue with its operations et cetera. And that’s worrying, Chair. That's extremely worrying, because despite Adv Dintwe trying to explain to her that as Office of the Inspector-General of Intelligence, ideally speaking we have no jurisdiction over SARS and its operations. She was going on about the fact that you should have not allowed... why are you allowing this unit to continue with its operations, because she was insisting that despite the unit being disbanded, it was carrying on with its operations. And so, Chair, I think it’s very important that we emphasise that she did not uphold the standard of a Public Protector in terms of ensuring that, number one, the evidence that she relies upon she’s obtained it lawfully; number two, she also ignored the law, disregarded the law, and went ahead and relied on a report without even informing the relevant authorities that I'm in possession of this classified report. And I want to say this again, I tend to suspect that she got the report from Floyd Shivambu in the same manner that Pona Mogaladi got the report. And when she got the report, she went on to share it with certain people in her Office, including Nyembe, and I tend to think the gentleman Sithole who’s the legal advisor, because we saw an email where she then confirmed with them whether they had top secret security clearance. So not only was she in possession of that report, she went on and shared it with some in her Office... Not that the fact that whether or not they had top secret clearance would make their possession lawful or not, no, the fact of the matter is that you are not allowed to be in possession of a classified report, whether you’ve got top secret security clearance or not in terms of the law. Thank you very much, Chair.

Chairperson: Thank you, Hon Gondwe, for your contribution. Hon Lotriet?

Prof Lotriet: Thank you, Chair. I think Hon Gondwe covered exactly what I wanted to say, and I think that we do have evidence in this regard of acting impartially or rather not impartially, and that there was a clear evidence of gross negligence, especially because the Public Protector did not submit the classified document. So yes, I can only agree with my colleague. Thank you.

Chairperson: Thank you, Hon Lotriet. Hon Dlakude, is that a comeback hand?

Ms Dlakude: Yes, Hon Chair. Thank you very much... I think we’ve been treating this issue of the lead classified report... I think as this Committee we should recommend to the House that this matter be referred to the SSA for further investigation. We cannot have this as a country; we don’t need something like this. It was illegal, it’s unlawful... even some of the Members who serve in the Joint Standing Committee on Intelligence cannot just get this kind of reports into their hands. So there are processes to be followed. So I think we must recommend that this information, this matter of the classified report be referred to the SSA for further investigation, so that whoever is leaking these classified reports must be taken to account. Thank you very much, Hon Chair.

Chairperson: Thank you, Hon Dlakude. Hon Siwela?

Ms Siwela: Thanks Chairperson. Let me join other colleagues here, Chair, on this matter. Firstly, the issue of the document which has been dropped in the Office by an unknown person is also worrisome and is highly questionable. Secondly, I believe the PP fails to uphold the Constitution. My belief is that she needs to lead by example. I happened to support Hon Dlakude, on the issue of referring the matter to the SSA for further investigation, because we must really condemn this behaviour. So I’m in support of what other Members have said, because the documents were unlawfully received and unlawfully perused. Thank you, Chair.

Chairperson: Thank you, Hon Siwela. Hon Xola Nqola, are you back?

Mr Nqola: Yes, Chair. I'm back.

Chairperson: You had just started, so let’s allow you to continue...

Mr Nqola: Chair, I was saying, the Committee and the courts were mislead by the Public Protector on the manner of receipt of the intelligence report. And it was a deliberate misleading, until testimony in the Committee alarmed us that actually not only was the report dropped, it was even sent electronically by Mr Floyd Shivambu. I think we need to agree with Hon Dlakude that there must be a comprehensive investigation by SSA on this matter, how did the report land into the hands of people who do not have a top-secret clearance. But I think the answer is not far, Chair, the second-in-command of the South African Intelligence was part of the festivities of the EFF until yesterday. So the answers are not that far. But I think let's leave that for the investigation, it will be investigated properly. So Chair, through and through we’ve been sent from pillar to post by the Public Protector that, no, I did not see the report, no, I did not set my eye on the report, and all those things, which was the deliberate misleading of Parliament, which constitute gross misconduct from the side of the Public Protector. Chair, the use thereof is quite in the extreme. The Public Protector ought to have known that you can’t legally use an intelligence report without the concession of the Inspector-General of Intelligence and the declassification of such. This constitutes, Chair, alone, gross misconduct from the side of the Public Protector. But it equally feeds to the narrative that the Public Protector is just a hired gun of some functions within political parties and some political parties. This actually feeds to that narrative, because this actually tells one that when the Public Protector entered investigation on solving the Rogue Unit, she already had an outcome in mind. There was no open-mind approach in the investigation as she should do. Thank you very much, Chairperson.

Chairperson: Thank you, Hon Nqola, for completing what you’ve started. Hon Gondwe is that an old hand?

Dr Gondwe: No, it’s not, Chair.

Chairperson: Okay, go ahead.

Dr Gondwe: Chair, I want also to agree with Hon Dlakude. But I think we also have to involve the Office of the Inspector-General of Intelligence... I think that would be the better body to actually investigate how their report ended up in the hands of Mr Shivambu, and eventually how the PP got her copy as well, Chair, because it’s very concerning. Chair, maybe I’m jumping the gun here a bit, but they would also need to look at the general involvement of the SSA in the operations and affairs of the Office of the Public Protector. And here I'm talking about the involvement of Mr Fraser, Mr Moodley, Mr Ramabulana and the gentleman that was seconded to the Office of the Public Protector. The involvement of all these SSA officials in the Office of the Public Protector is very concerning. You cannot have an institution of that nature and that stature, securitised, and actually under the conduct and the take of the SSA. I mean, that’s exactly what was happening when you look at the scenario of Fraser. Maybe I’m jumping the gun here a bit, but I'm just saying that when we do refer these matters we should couple them all together. Thank you very much, Chair.

Chairperson: Thank you, Hon Gondwe. I would not jump the gun with you, it’s fine if you jump it, but it’s recorded, whatever you put. Thank you very much. There are no other Members. I think we have fair contributions or comprehensive contributions from Members on this. Adv Bawa, can we proceed to the next?

Adv Bawa: Chair, I'm going on to what was ground five, which I'm going to deal with as three components to it, because we had summed it up a little bit beyond what was in the court judgment. And Members will recall that twofold what was before the Committee and the court was the public references to the unit as a “rogue unit” in comments that was made in the meeting with this IGI on the 31st of January in relation to the unit being referred to as a “monster”, which contributes to a finding of bias contained in the SARS unit judgment. Secondly, the General pandering to this rogue unit narrative. We’ve already dealt with what she says on the YouTube video and in the manner that the investigation was conducted in relation to the alleged unlawful activity such as interception, procurement of equipment and unlawful recruitment. I'm going to come specifically to the equipment and the recruitment at the end, because it’s two of the things considered in the report without special circumstances. And I'm not going to deal with this aspect of it in so far as it links to what we’ve already said up above in the summation note relating to the reports that were or were not before her when she considered it. And so on the public comments of the “rogue unit” and the “monster”, Adv Mkhwebane had put up the full transcript. She had also indicated to the Committee what had been said in the YouTube video as well as what had been said at the meeting of the 31st of January. The defence was effectively that this was not a phrase I coined, but one that was out in the public domain already. But it went a little bit further, because members of the unit was implicated in murder, money laundering, poisoning, threats to her, without any basis other than historical recordings she had in her possession, the classified IGI report and the fact of its conduct, which was everywhere for anyone interested to see. That was the phraseology used before the Committee in that regard. And when I'm referring to those comments, I’m actually referring to an email, which we provide you as CH3K, which Tshepo can flight, while I continue to take you through the grounds. And so we find that that was one of the reasons. And now the defence was that she didn’t refer to individuals in the unit, but to the operations. And that the “monster” comment was magnified, it was a comment made in passing and that it must be taken in the context of a discussion that had been held with the IGI. The second issue, and Members will be aware that during the proceedings we were referred to an affidavit from Mr Moyane that was put before the Zondo Commission, and the reference was made to the recordings of the conversations Mr Moyane had with certain Messrs Lombard and De Waal, and recordings made with Mr van Rensburg, which was listed in the key sources of information in the SARS report that said “Recordings related to the intelligence unit”. Now in her oral evidence, Adv Mkhwebane in passing said that she had telephoned Mr Moyane. The full details of that telephone conversation have never been disclosed, it’s not relayed in the SARS unit report at all; it’s not referred to in the High Court. I think the first time that’s come out is before this Inquiry. But be that as it may, Chair, what did come out before the Rule 53 record was these recordings. Some of these recordings were put up and disclosed. And we explained to you in the summation that we do a comparison of recordings and compare it to the transcript. The recordings are transcribed and it’s in the Rule 53 record, and we compare those transcripts of what is attached to Mr Moyane’s affidavit and they don’t correlate, one or other of them is not correct, we don’t know which. But we also know from having followed up leads that at the time these recordings are disclosed, and what appears to have come out is that this was not the only recordings of conversations Mr Moyane has with members of the SARS unit at that stage. And that there were other recordings, because they have had subsequent meetings. And if one has regard to the excerpts of those recordings then they contradict some of the findings, which have been made premised on these recordings. And we take the Committee to some of that in the summation. And in summary, the difficulty of all of it is that there was a reliance on unauthenticated recordings, these recordings are incomplete, they appear to be spliced or from other recordings and are hence unreliable. You find duplicates on the recordings which means there couldn't have been copies of the originals, if not the originals. There persons who were in these conversations were not interviewed, they didn’t give evidence under oath before the Public Protector. So Messrs van Rensburg, Lombard, De Waal, there’s no endeavour or an attempt to communicate or speak to them. And there’s hence a selective reliance on these recordings. And we know from Ms Mvuyana, that it was the recordings on which they placed reliance in the report, apart from the other reports. The second part of the investigation component of that is the failure to find Mr van Loggerenberg, which we know that he has not received a subpoena. The difficulty with all of that is that he was an eminently traceable person. And if the investigators didn’t do their job in finding him or issuing the subpoena properly, unlike in the FSCA matter there was no steps taken against the investigators for their inability to do that. Moreover, there seems to be a difficulty in that SARS is not directly asked for the information. There's no official attempt to even ask SARS for an address, where’s Mr van Loggerenberg to be found. What they do is they have what we’re told is a senior person within SARS as a whistleblower, and they take a shortcut and they ask this whistleblower and this whistleblower comes back and gives them incorrect information. There's a dispute as to who actually makes contact with the whistleblower. Ms Mvuyana says she doesn’t, Mr Mataboge says he has no recollection, and so it was either the Public Protector or Mr Mataboge, according to Ms Mvuyana. And that’s not addressed in either the Public Protector’s oral or written statements. So we don’t even know if the address actually came from anybody credible in doing that. Certainly, basic ABC’s he would have actually been found. So it gives rise to the questions whether you’re conducting an independent impartial investigation and whether you were reasonable or negligent in not doing it in that regard. So that’s all part of pandering to the rogue unit narrative. We've put all of that under the same category. Thank you, Chair.

Chairperson: Thank you, Adv Bawa. Hon Members, there you have it. Your take on the issues that have just been raised? And your responses help us with your contribution in responding to these questions... issues of independence, impartiality and so on. Let me see, is there any Member who wants to take a bite? Or we just want to agree with what is there? Hon Mileham?

Mr Mileham: Chairperson, thank you. We've already covered a lot of what has been discussed here in earlier elements of this particular matter. But I want to highlight the fact that the Public Protector did not fully investigate this matter. She did not, or her Office did not interview all the people involved. They made findings against people without ensuring that they had an opportunity to respond. And that has severe consequences in terms of the independence and impartiality. So I think that this investigation was flawed in that regard. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Hendricks?

Mr Hendricks: Thank you, Chair. Chair, I lost you for a while. However, Chair, I want you to give us some guidance. Is this Committee allowed to make, you know, lateral decisions like inferring matters to the security authorities? I thought that we will submit our findings, it will go to Parliament. If 60% of them vote in favour of it, then it is acted upon. So I just need some guidance, because earlier on there was suggestions by two Hon Members and I respect their opinions, that the letter allegedly WhatsApped by Hon Shivambu should be referred to other authorities. I just want to know if that is the work of this Committee or isn’t our job to write a report. That could be included in the report, but it will only be effected when Parliament votes on it and 60% of Members of Parliament support the findings of this Committee. Thanks, Hon Chair.

Chairperson: Thank you, Hon Hendricks. Members were making their own, as you say you respect their views/contribution as we’re doing the report drafting, so that these matters go into our report as we’ll be signing it off. But if there are matters that... because we’re lawmakers who are in a situation. If there would be a matter as we meet here today, that there was crime committed here, that there are processes of how you deal with that, and that gets done. It might not be subject to whether the majority vote for it or not vote for it. But they were making their own contributions to the report that will be tabled to the National Assembly. And so those matters, we expect them to be recorded in our report. Hon Dlakude?

Ms Dlakude: Thank you, Hon Chairperson. I think you have responded to this matter. The Committee reports to the National Assembly, but we cannot ignore the fact that a classified report was obtained unlawfully. So that is the recommendation that we will make. We are not yet into whether the report is accepted by the House or not. But as the Committee, as lawmakers, as you have stated Hon Chairperson, it is our responsibility to recommend the matters to the House and the House will decide. Thank you.

Chairperson: Thank you, Hon Dlakude. Any other Members?

Mr Nkosi: I raised my hand... I’ve switched gadgets.

Chairperson: Yeah. Your gadget is not showing your hand, but you’re allowed to speak and alert the Chair. Go ahead, Hon Nkosi.

Mr Nkosi: My apologies, Chair. Chair, I think in answer to these questions... I think they relate first to impartiality, independence in relation to the investigation. I think we must answer in the affirmative that, yes, she was impartial, she didn’t act independently in conducting the investigation. And in relation to the decisions, indeed that flowing from that the decisions would be... would not be impartial... I mean, the decisions would be... yeah, would be impartial.

Chairperson: Would be partial?

Mr Nkosi: It would be partial, yes. And that overall, in my view, is that it was intended. So in answer to all eight I think it’s in the affirmative.

Chairperson: Thank you. Thank you, Hon Nkosi, that helps. Hon Siwela?

Ms Siwela: Thank you, Chairperson. I just want to emphasise on the issue of recommendations. As the Committee I think it’s our responsibility to digest what is before us and to come up with our views to assist, because of course this is for the first time that we’re dealing with such a matter. But where we feel we need to recommend, we need to do so, because there’s something which came across our way. So I’m trying to support what comrade Hon Dlakude has indicated, as well as Hon Nkosi, Chairperson. I don’t think that, there is no limit that we must not recommend certain things, which are coming across us as mandated by Parliament itself, we need to do such recommendations and forward them to Parliament as a package. Thank you.

Chairperson: Thank you. Thank you, Hon Siwela. Hon Dlakude is that a comeback hand?

Ms Dlakude: Thank you very much, Hon Chair. I want to support Hon Nkosi on the issue of independence and impartiality when it comes to investigation. My take is that for anyone to be impartial, Hon Chair, you must consider all the material facts that are availed before you. That's how I would say yes this investigation was impartial. But if there is information that was not taken into account, and also, there are people who produced maybe those reports or who had information and these people were left out without being interviewed, then I wouldn’t say that the investigation was impartial. I would say there is information that was left out, so that shows that there was already a decision that was taken, that a view that was taken that this will be decided this way. But impartiality, no. Thank you.

Chairperson: Thank you. Thank you, Hon Dlakude. Any other Member? Any dissenting view? Hon Hendricks is that a new hand? Okay, it’s down. Thank you, we proceed to the next... Let’s proceed to the next, Adv Bawa.

Adv Bawa: Chair, the next two are shorter ones, but the one fits into more than one heading. So the first thing has got to do with the unwarranted and slanderous attack on Judge Potterill. Chair, we’re going to come to that in a moment, but this has got to do with the interpretation of the Executive Ethics Code on which Adv Mkhwebane gave evidence and the belief effectively that the judge got it wrong. In contrast you’ll see in paragraph 630, the judge got it right, and Adv Mkhwebane on the various advices, got it wrong. But what then transpires is that in the context of having lost the matter before Potterill J, she gives an instruction as to who must be briefed in the matter going forward. The counsel gets appointed on condition that Mr Ngobeni is also engaged for purposes to assist counsel in the matter, and that instruction then goes out that he has to provide support in the background. In the course of that, Chair, you’ll see... that there is some misapprehension as to whether he’s an SC or a counsel or not...

Chairperson: Is it 236 or 637?

Adv Bawa: 637, sorry Chair. He then provides an argument on appeal which he submits directly to people in the Office of the Public Protector, the late Mr Nyembe, Mr Sithole – whom you’ll recall had no recollection of any of this. And he provides significant heads of argument which Ms Heller then provides a comment on, in which they deal with the judgment. He also then provides an article in the media, which sets out in 642 a number of statements about the judge. And we know from 644, Adv Mkhwebane endorses the article and issues an instruction... In 647, she herself forwards the email and article which she had written with an instruction that this must be incorporated into the arguments for purposes of support, presumably the heads that have been drafted. This was also raised through the evidence of Mr van der Merwe, and it’s not dealt with by the PP during her evidence. So that was the attack on Judge Potterill. Although the court asked her to apologise in respect of what she had said in her affidavits, it appears that the article that had gone out into the public domain, had gone out notwithstanding. Chair, can I just deal with the next one in the same breath, because it’s very short?

Chairperson: Sure, go ahead. Go ahead.

Adv Bawa: In ground nine, Chair, it’s this issue about whether Mr Pillay has a matric certificate or not. And essentially when the section 7(9) notice goes out, the Public Protector’s Office does accept and indicates that he’s got a matric certificate. And when the report comes out, it shows that he doesn’t have a matric certificate. And effectively it got changed the night before the report was issued. We can’t obviously see from the drafts who changes it... And so, Adv Mkhwebane, I think, testified correctly that what was under consideration by the Office was his formal qualifications and not specifically his matric certificate, which is correct. But the second part of her evidence was during an interview with Mr Pillay in the context of another complaint, which had to do with the pensions matter, they had discussed whether he had a matric certificate or not, and he had provided her with the requisite information. The evidence before the Committee was, well, that complaint was in 2016 and this was now in 2019, and it was different investigators and hence that wasn’t taken into account. The difficulty one sees, Chair, at 672 of the summations is that whilst the pension matter complaint was lodged in 2016, the interview with Mr Pillay takes place some two and a half months prior to her finalising her report, in respect of which she says he didn’t have a matric certificate... and this transcript of this meeting gets put up before the court, and it’s one of the basis upon which the court says that Adv Mkhwebane was biased in the outlook in which she dealt with the matter. And there’s no concession actually, that I’m wrong, I made a mistake, but it had to be dealt with differently. So during her evidence, Ms Mvuyana agreed that there was many... if they were not sure about it there was other independent avenues that could have confirmed the existence of this matric certificate or not. Thank you, Chair.

Chairperson: Thank you. Thank you, Adv Bawa... Tshepo, go to the questions that we must respond to as I invite Members to speak. So those five cluster of questions that we must focus on. Did Adv Mkhwebane conduct the investigation in a manner that ensured the impartial conduct of the investigation... independent in the investigation? Did Adv Mkhwebane make her decisions in a manner that ensured the impartial conduct of the investigation? If she did not conduct her investigation in a manner that ensured independence, was such failure grossly negligent on her part? Also whether these actions were intentional. Let me invite Members to give their responses, I'll start with Hon Nkosi, Hon Mileham... Hon Hendricks, Hon Nqola... Hon Maneli. In that order. Go ahead, Hon Nkosi.

Mr Nkosi: No, Chair. I think that in relation to all eight questions that on the investigation that there was no independence, that there was partiality. Flowing from that on the decisions, the same. And I do think that... I will venture into it and say that it was intentional. Thanks Chair.

Chairperson: Thank you, Hon Nkosi. Hon Mileham?

Mr Mileham: Thank you, Chairperson. Chairperson, this is the second incidence of Mr Ngobeni’s involvement with the Public Protector. And it goes directly to the impugnment of the character of judges. Now Adv Mkhwebane directly authorised, she commissioned and authorised the release of the article penned by Mr Ngobeni, which was harshly critical of Judge Potterill. And that is unacceptable in somebody who’s in the Office of the Public Protector. It is unacceptable for someone who is an admitted advocate of the High Court. And as such, she needs to be held accountable. It is gross misconduct on her part. And it was intentional misconduct on her part, because she authorised it. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Hendricks?

Mr Hendricks: Thank you, Hon Chair. Hon Chair, the Public Protector has addressed all those issues, so I'm not going to go into defence. I'm not saying that all these things are frivolous, but it is my view that it is not gross enough to be matters that you impeach a Public Protector. And with regard to criticisms of judges, it happens all the time, the judges take it on the chin. Sometimes their decisions are overturned by higher courts; they don’t have a quarrel with it. So I can’t see how we can use these incidences to impeach a Public Protector. Hon Chair, you’re scaring off all our applicants that have applied for the post, because it they’ve got to take all these things into consideration, I don’t think they’ll be able to do their job. And then the Public Protector’s Office will then not be a section 9 committee, but it will be a specialist court in terms of a Superior Courts Act. I think we’re moving in that direction. Thank you.

Chairperson: Thank you, Hon Hendricks. Worried about the new appointments, we take note of your issues that you’re raising. Hon Nqola?

Mr Nqola: Thanks Chair. We have made a lot of submissions in respect to the manner in which the investigation was carried out in respect of this report. So my answer would be, from one to four, it’s no. From five to eight, it’s yes. And Chair, I think it is quite important to note that the subject on the table now is the suspended Public Protector, Adv Busisiwe Mkhwebane, no one else. And if there are people who ought to be scared, they must be scared of doing wrong things in that Office. Actually, they really must be scared. This must be a lesson to everyone that this is how the Office must be run. Thank you.

Chairperson: Thank you, Hon Nqola. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. I hope you can hear me... Chair, I'm covered by Hon Nkosi and Hon Nqola on the specific responses to the questions as they are put. Safe to add the following, Chair. That one, indeed it should be concerning that the Public Protector would have an open mind and still agree to putting up an article that now she owns, because now it’s more from her as having taken this advice of her taking a charge, unnecessarily so. Unnecessarily so, Chair, in the sense that it is now proven from the passage we’ve looked at, that necessarily she’s the one who has misinterpreted the law in terms of what is applicable for Members of the Executive. Again, Chair, like I'm saying, it then gets to be intentional like Hon Nkosi said, as I said I agree with him. In that if you would have realised that you are wrong, you’ll accept the wrong. But if you insist you are correct, even if it’s proven that you are not correct, you have clear intentions of where you want to go and anything that seeks to stop that becomes a problem. So I’m saying, Chair, that with that in mind, it’s not just about knowing the decisions, but you have clear intentions that ‘I'd not listen to anybody’. I read the same, but I come to a different conclusion: that this is the one that’s correct, when it’s incorrect. Now the danger about that, which is what leads to real gross misconduct and incompetence is that if you use this wrong law in application, it therefore says that you prescribe remedial actions that are outside of the law, and that people would have to implement those remedial actions. In that score, that is at the core of the Public Protector’s work. And I agree therefore, as I said even with Hon Nqola, if there’s any fear about those that are coming will be to prescribe wrong remedial action based on unlawful means. That should be worrying. And therefore, if you do it accordingly with an open mind as expected of a Public Protector, you’d know that the actions have to be lawful, Chair. Maybe just the last point on the Ngobeni question. I think what comes out here, Chair, is that the instruction indeed is from the top, that you have to get this one because he’ll probably deliver what I want; maybe in terms of procurement processes I would not be able to engage directly. I'm sure you understand what I'm dealing with, Chair...

Chairperson: Yes, I do.

Mr Maneli: That, yes, you may not be engaged directly, or you’ll be engaged by another firm, but this is an instruction from the top that cannot engage you directly, because you may not qualify to do so. And then use other means to get that, but at the ultimate end as the passage would have said, you make a direct submission, and that submission gets looked at in that score. I submit, Chair. Thank you.

Chairperson: Thank you for that submission, Hon Maneli. I now recognise Hon Sukers.

Ms Sukers: Chair, mine is just to underscore the importance of the Office of the Public Protector to be above reproach. The context in which the issues of impartiality, fairness, in terms of the powers conferred to that Office, the importance thereof. I think this is just in response to what was mentioned. So it is important for the Office to be above reproach. The Office must be able to withstand scrutiny. And if it is then within that context all the more that the importance of following the proper processes, ensuring the correct systems, following corporate governance principles becomes all the more important, because of that. So mine is just to underscore what was said and to add those principles that was highlighted right at the beginning of this Inquiry by both the Zambian Public Protector and then also by Mr Hassen.

Chairperson: Okay. Thank you very much, Hon Sukers. I have all of those Members, and there would have been a different take from Hon Hendricks, which is also noted and recorded. We now proceed, Adv Bawa... I think there’s one or two that is left. I'm thinking that we can have a 30 minutes or so break, so that we come back and finish...

Adv Bawa: Chair, can I... there’s two areas that I’ll deal with in two paragraphs effectively. One is dealing with procurement, and the other one is dealing with recruitment and then we done with SARS. Except for the EMEA [Executive Members' Ethics Act], which I’ll deal with in CR17 next. So we could actually then finish off this entire section...

Chairperson: That’s in order. Let's finish those two. And after those two we’ll take that 30-minute break and come back with the CR17. Is that in order Members?

Mr Nqola: Yes, Chair.

Ms Dlakude: Agreed.

Adv Bawa: Right. So this is dealt with in the latter part of the note, but I'm only going to highlight one aspect of it, because we got different evidence on this, but it’s pretty well dealt with in the High Court judgment. The issue is that the proper procurement processes for the acquisition intelligence equipment used by the unit for gathering intelligence was not followed and hence it amounted to maladministration. The reasoning was as follows, you could not dispute that there was a covert unit. And because you’re now not disputing that there was a covert unit, it had to carry out surveillance and in order for it to carry out surveillance it’s extremely unlikely that they didn’t have equipment. And because, I wasn’t given any paperwork to show that there was such equipment, it must have been unlawfully procured. That in a nutshell was the argument... The Public Protector had a list of equipment involved. And so what the evidence showed was that actually it was a different unit in SARS headed by a Mr Collings that used this equipment. The version that Mr Pillay and Mr van Loggerenberg puts up in the High Court is undisputed. So the point is she didn’t follow the investigation to go and check this version, to see well was this equipment with Mr Collings or not. So that’s the equipment issue. The second issue deals with the recruitment, which is along similar lines. The reasoning being that I wasn’t given a policy that shows that you can recruit on a particular basis. This is a policy that would have existed more than 10 years ago. And because I wasn’t given this policy, I can’t actually ascertain whether you were permitted to headhunt or not, and I find that in accordance with that and the evidence in relating to that found that there had been non-compliance with the policy. Chair, you will also know that from this there was the issue of special circumstances as to going back and checking what Mr Pillay’s qualifications were, and relying on evidence that emanated from the previous investigation without calling those witnesses or subpoenaing affidavits in respect thereof. Those are the two issues, Chair. The SARS judgment deals with this quite comprehensively.

Chairperson: Okay. Thank you, Adv Bawa, that those two issues would conclude this section of the SARS unit. Members, your brief or quick comments and contributions? I see an old hand of Sukers, should I note it or it’s down? Any further contributions to conclude this part, Hon Members? You have no view? Indifferent? Or you agree with the summation and the summary? I need that on record.

Mr Nkosi: I agree with the summation and summary, Chair. I'm not sure if you can see my hand, but I'm just chatting in.

Chairperson: I can hear your voice, thank you. Hon Nkosi, followed by Hon Mileham, followed by Hon Hendricks... Hon Maneli, Hon Mananiso and Hon Dlakude. In that order. Hon Mileham?

Mr Mileham: Thank you, Chair. I agree with the summation.

Chairperson: Thank you. Hon Hendricks?

Mr Hendricks: Hon Chair, I don’t agree, because remember I told you earlier on, we have some special experience about grabbers. In fact, the grabber at the City of Joburg, I am a respondent although I didn’t lay the complaint. And when we took over the executive position in Joburg, I wanted to go and check this grabber but then the person with the key ran away and we couldn’t check it out. But now we have found that there is a grabber. So this grabber thing is very complicated, you know, with intelligence and with the spooks, you don’t know where you stand. So we don’t agree with the position of the evidence leader.

Chairperson: Yes, I hear your fear about grabbers. Don't go closer to them. But thank you, Hon Hendricks. Hon Maneli? Hon Maneli?

Mr Maneli: Thank you, Chair. I was also rising to agree with the summation. I want to state this, Chair, that necessarily that is a summary of what has been presented before us, as opposed to being a position of the evidence leaders. Because if we allow that to continue, it will be like we are agreeing with the position of the evidence leaders. But necessarily, it’s a representation of the summary of what has come as evidence before this Committee at different levels. So I just thought I should raise that point as I agree. That necessarily, that’s the correct understanding. Thank you.

Chairperson: Thank you, Hon Maneli, for that redirection. Hon Mananiso?

Ms Mananiso: Thank you, Chairperson. I think one agrees with the summary. And as well noting the emphasis of Hon Maneli, it is very important. Thank you.

Chairperson: Thank you. Hon Dlakude?

Ms Dlakude: Thank you, Hon Chairperson. I agree with the summation made by the evidence leader as a true reflection of what was presented before this Committee. Thank you very much.

Chairperson: Thank you, Hon Dlakude. The last hand would be Hon Gondwe and followed by Adv Bawa.

Dr Gondwe: Chair, mine is to also say that I agree with the summation. Not as a summation that, you know, the evidence leaders want to put forward, but as a reflection of what actually transpired in the Inquiry. And Chair, I think we also have to remember the letter, I think, that was written by Commissioner Kieswetter. I think it was 18 February 2021. He had written it to the Office of the Public Protector indicating that... just reminding them that they’re in possession of equipment, and that formed part of the SARS investigation. And then that SARS would be relocating and, you know, they wanted to know what to do with this equipment. And then I recall Adv Mpofu showing Mr van Loggerenberg this letter, and I think trying to infer that Commissioner Kieswetter is saying that that equipment belonged to the so-called rogue unit. And Mr van Loggerenberg disagreeing with him, and then Commissioner Kieswetter later writing to us to explain that, no, he wasn’t trying to say that that equipment belonged to... and you’ll recall that amongst that equipment, there is what you’d call surveillance equipment. Then Commissioner Kieswetter clarifying that he wasn’t trying to say that that equipment specifically belonged to the rogue unit. So I think it’s important for us to also bear that in mind. But that being said, I do agree with the summation. Thank you very much.

Chairperson: Thank you, Hon Gondwe. Adv Bawa?

Adv Bawa: Chair, I just want to be very clear. I give you a very brief summary, a snapshot story to remind Members essentially of what the subject matter was. The summation that we did, and we acknowledge that we put in quite lengthy documentation to the Members, precisely because we didn’t want to be seen to be representing only one side of an argument. And so our summaries or summation or presentation to you today must be read in context of the summation that we gave you that sets out the evidence in detail, else we’re going to be blamed for only putting one version before the Committee today, which is certainly not our intention. The reason why we’re raising something with you is to just give you a snapshot to remind you what it’s about, on the assumption that all the Committee Members have indeed got the summations and are familiar with it. And if there’s any queries on that particular, that they’ll raise it with us.

Chairperson: Okay, thank you. Thank you, Adv Bawa. Colleagues, before we get to the next, hopefully the last section or sections, you agreed we’ll take 30 minutes break and be back at five past four. Is that in order? Just to do the walkabout, refresh and fill up.

Ms Mananiso: In order, Chair.

Chairperson: Okay. Thank you. We'll resume at five past four.

[Break]

Chairperson: Welcome back, colleagues. I hope everybody’s back... We now proceed to deal with the last section. And Adv Bawa or Mayosi will just explain to us what’s outstanding, what they’re going to take us through. It should not be much longer from now. So thank you for your patience up to so far. Adv Bawa or Adv Mayosi?

Adv Mayosi: Chair, where we are, we’re having connectivity issues. I am connected, but Tshepo and Nazreen are not connected. And it’s important for Tshepo to be connected, so she can do what she does. If you can give us two minutes, please Chair?

Chairperson: Fine. I'll make it five. We'll start at twelve minutes past.

Adv Mayosi: Thanks Chair. Thanks...

Chairperson: Is Tshepo and Adv Bawa connected?

Adv Mayosi: Chair, problem solved.

Chairperson: Okay, thank you. Over to you...

CR17/Bosasa
Adv Bawa: Okay, Chair. We had completed the issues relating to the SARS matter, the SARS unit matter, except for the issues relating to the Executive Ethics Code, which we will deal with simultaneously when we deal with the issue in its entirety under the CR17 matter. So in brief, Chair, if I take you to the summation just to give you an idea of where we at. Chapter 3, part one, deals with essentially the SARS matter in the context of charge 11. And it will show you down the view on the side of the margin, the different aspects of it. And I'm going to use that as a sort of a guide of where we’re going through. So this is the report which is essentially titled a “Report on an investigation into allegations of a violation of the Executive Ethics Code through an improper relationship between the President and African Global Operations (AGO), formerly known as Bosasa”. The report is signed on 19 July 2019. Members should bear that in mind, because it has relevance for two issues we come to in a bit. The Independent Panel concluded there was prima facie evidence in respect of the findings that was made on both the grounds of incompetence as well as misconduct. And Members will recall this arose in the context of a donation of R500 000 that was made... and it was represented to Parliament that this was a donation made to the President’s son and to his trust fund. And so the complaints lodged, there were two complaints lodged with the Public Protector. One from Mr Maimane and one from Mr Shivambu. The CR17 report identified three issues or investigation, which you see in paragraph 11. And it’s to those three issues that I'm going to turn in broad terms. That the President had deliberately and inadvertently misled Parliament; that he had failed to disclose donations to the CR17 campaign; and the third issue... the prima facie suspicion of money laundering. The question then arises whether in the context of the investigation there was a lack of impartiality and independence in how that was to be conducted. So let’s start on the first issue, which is the... what I'm going to call the EMEA complaint. And in order to deal with the EMEA complaint, it’s of the same nature as the complaint made against Mr Gordhan in the SARS unit matter. The reason I put them together is because there’s an overlap in evidence... as to whether the Public Protector had used the wrong code. The concession was made in oral before the Committee that she accepts that she used the wrong code... In the context of the Gordhan matter first, which took up less than five pages of the report. There's no reference in it to either the 2007 code... it states in paragraph 5.11 of the report what the provision of the Executive Ethics Code is...

Chairperson: Just try to reposition yourself. There's continued breakup, unlike before, you were very clear throughout the day. It's only starting now. Try and reposition yourself. I don’t know why it’s breaking up...

Adv Bawa: Okay, I should be connected via that connection, which should make it easier now...

Chairperson: Thank you.

Adv Bawa: Okay, that problem is solved. So Chair, the findings against Minister Gordhan was not based on any independent investigation. Mr Mogajane or the staff of Mr Gordhan’s office was not interviewed. It was based on Mr Gordhan saying I have no recollection of any of the family members of the Gupta family being at this meeting. Mr Mogajane says he recalls them being there. And then there’s a conclusion made that I wouldn’t have expected him to have forgotten this, it doesn’t seem to be plausible. And then a finding is made that Mr Gordhan misled Parliament. That was the essence of the entire case. So if you look at the contrast with the President in respect of the code. The first point is, is that the wrong code is used. The wrong test is used. And there’s then an admission that... There’s initially not an admission that the wrong test is used. That is then occurs to come up only later. Throughout the report, there are... I think we counted something like five versions of the code located in the report at the time. And we then concluded that there wasn’t simply one version. It wasn’t just the 2000 code or the 2007 code. And then, we know that, Chair, when the... and this was the reason why we linked the two cases together, is because the litigation in the two matters ran almost side by side. And what had transpired in the CR17 matter in the High Court. Adv Mkhwebane filed an answering affidavit on the 14th of November. In which she admitted that the 2000 Executive Ethics Code was the correct code, but that the use of the incorrect code was actually immaterial to her findings, because she was basing it on deliberate misleading and not inadvertent misleading. But two days later, on 16th of November, in her answering affidavit in the SARS unit matter, she persisted in relying on the incorrect version of the Executive Ethics Code. And that was one of the difficulties one found on that reliance. When argument gets made before the High Court, there is reliance on the 2007 code in the CR17 matter, but on the application for leave to appeal there’s a concession that that is wrong. The concession says it’s wrong, the 2000 code is the correct code. An explanation is then provided that at that stage of the proceedings there was a reliance on the Ministerial Handbook, which was incorrect in doing that. That’s the position as it is. Then what transpires is the Constitutional Court judgment gets handed down on 1 July 2020 and it finds that the Public Protector had used the wrong code. Advice is then received the following day from Mr Ngobeni. And you see that advice... we have previously referred to it, it’s CH3D. As the consequence of that advice, Chair would know from the evidence that we led through Mr Sithole that the original advice and reliance was placed on an opinion from Mr Ngobeni, in which reliance was placed on the 2007 Ethics Code in this opinion which informed the report. We had led that evidence before the Inquiry. What transpires after the ConCourt hands down judgment is that there’s an application for rescission brought a few weeks later seeking to rescind the decision, because the Constitutional Court had made a patent error in its interpretation of the Executive Ethics Code. And what preceded that, Chair, is this email from Mr Ngobeni sent to Mr Sithole’s private email address – his work email address, and the Public Protector’s private email address, in which he advocates for the bringing of a rescission application. And he sets out the basis upon which such application should be brought, being a patent error being made that the court had relied on the wrong ethics code, and he points to reports that he says Adv Madonsela had handed down and the Nkandla judgment, which you will know the Public Protector led extensive evidence on in respect thereof. And Chair, we extensively address in the summation why the reliance on the Nkandla judgment is incorrect, and how it’s a misconception of the whole principle of stare decisis in saying that the judgment is binding, because there’s a reference in the footnote on it. We deal with that in the summation at length. And we also deal with this issue about what’s called touchstone decisions formed the basis of the decision which was made. The affidavit before this Committee and the court, was essentially that in the State Capture report and in the Secure in Comfort report, Adv Madonsela had relied on the 2007 code. We had put before the Committee the extracts to show that effectively that is not correct, Adv Madonsela in those reports had not relied on the 2007 code. We also point out that it is so that there are reports in the Public Protector’s Office that does rely on the incorrect Executive Ethics Code, but it is not the case as was represented that consistently from 2009 the 2007 code was relied upon. So the reliance on the 2007 code is essentially the first ground which is the material error of law. The question, the Committee must find whether that’s sufficient to show misconduct and incompetence, and in the manner in which that was dealt with during the investigation. Chair, the Committee will also know that from the written statement put before the Committee it has been alleged that... Adv Mkhwebane alleges that the 2007 code had since repealed the 2000 code, and for that reason there had been reliance put on it, and that Adv Madonsela had consistently applied the incorrect code. The second aspect is that in the report, the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members, I think you would know it as the Parliamentary Code, was invoked for purposed of this aspect. But it wouldn’t have applied, because the President was already a Member of Executive at the time he had made his representations to Parliament. So it’s against that background, Chair, the concession is made to the Committee that she had not complied with this. The minority and majority decisions of the Constitutional Court were in agreement on this issue. I then move on to the second ground... I’m going to deal with all three grounds, Chair, and then the Committee can deal with the CR17 judgment in one go, if that’s in order, Chair?

Chairperson: That’s in order. Please go ahead.

Adv Bawa: Alright, so the second issue was whether there had been a... whether the President had an obligation to make disclosures of the donations and the CR17 campaign. The two things I must point out here is that one of the issues that arise in the CR17 campaign is that in respect of the Shivambu complaint, his complaint was unsubstantiated as the court found, because his complaint was twofold, given that the 500 000 had not been paid by AGO to Andile Ramaphosa, which the Public Protector confirmed; and that the EFG2 accounts was not a trust or foundation of the son of the President Ramaphosa. The Public Protector having confirmed that both of those were incorrect, whether as such the President wasn’t entitled to a finding that the Shivambu complaint was unsubstantiated. So if you then turn to how this expanded into a CR17 campaign investigation. Chair, the Constitutional Court found that the Public Protector had no jurisdiction to be investigating the CR17 funds, and that the factual averments which were contained in the presidency response to the section 7(9) notice did not find its way into the report. And in particular, one has regard to what the allegations were in respect of how much money the CR17 campaign had effectively collected, and what was told to this Committee versus what the President had represented which didn’t find its way into the report. And that was one of the issues that had been raised. So the one was a question of... Can the Public Protector investigate it? How the answer was no. The second point is, did the Public Protector correctly reflect what was being investigated? And thirdly, if not, did the Public Protector show that there was a... The reason for it not being eligible for investigation was because the political party’s internal affairs did not constitute state affairs. And hence, the Public Protector had no jurisdiction under the EMEA, the Act or the Constitution to so investigate party affairs. The third aspect of it was that the President was not given audi in respect of a number of those issues. The motivation that the Public Protector gave for wanting to investigate this issue, Chair, was premised on what the Public Protector said was the emails I received and the dinners and the Public Protector’s evidence... Now if I just in two sentences deal with the emails. The emails were a few emails, Chair, that were shown to this Committee. And we deal with it quite extensively. It was suggested to this Committee that there were numerous emails that had been sealed. And we explained in the summation why that could not have been so, given that the emails had been discovered and the only emails that was discovered constituted seven pages, which made its way into the Rule 53 record. The sealing had only happened in respect of the private bank accounts, and the information that were obtained through the Financial Intelligence Centre much later... not much later, but after the Rule 53 process had been completed. And we take you through how that comes about from roughly 205 of the documents. And so the question is does the emails reflect that the President was constantly involved in the process and kept up to date with it. The Constitutional Court found that was not the case, because it was no indication of such being so with the three or four emails that had come out. Chair, you were also referred to newspaper articles and some of the investigations that that the journalists had conducted to verify the information on the emails was not conducted by Adv Mkhwebane, and appears to on the face of it not confirm what’s on the emails to the extent that it was taken as to that effect. Adv Mkhwebane takes the view in the litigation that the President is not open and transparent; he doesn’t share with the court the ambit of the emails. The President takes the view that Adv Mkhwebane who tells the court that she got these emails via an anonymous source who dropped a hard copy at their Offices, and hence they couldn’t trace it, because there was no metadata. And so the President refuses to respond to what he regards to be illegal emails in contravention of the Regulation of Interception and Communication Act. And Adv Mkhwebane takes the point that the President raises technical defences, because he’s refusing to be open and transparent to the court as to what the emails has to say. The court effectively concludes that the emails don’t make out the case that the Public Protector seeks to make out in respect of that. And we detail in the summation some of the investigations. We accept that it’s newspaper articles and that we not relying on it for the truth of the allegations, but we pointing out that had the Public Protector conducted an investigation into this, the information might well have come out through the Public Protector rather than the media outlet. The second question is the question of the dinners. Chair, there’s the evidence that the Public Protector puts in the report, is effectively that there was at least one dinner that Mr Watson was at that the President attended. Mr Watson goes under affidavit and effectively says that the dinner he attended was a fundraising dinner of a different nature and that he had not gone into any CR17 fundraiser dinners. And you see that at paragraph 231. So although the submissions from Mr Watson is repeated, it’s sort of a cut and paste of the whole affidavit into the report. Notwithstanding what Mr Watson said, the detail in the report says that Mr Watson attended one dinner with the President. The dinner that he says he attended was a different dinner... the dinner he attended was in 2016 or 2017, which was a “Back to School” dinner, which he then confirms in his response is the dinner that he had attended to. So those were the two bases and then the third basis was whether what the President had effectively said. The court came to the conclusion that there was undisputed evidence before the High Court which contradicted the Public Protector. The third ground related to this issue of money laundering. And on Friday we pointed to the Committee that the Public Protectors position in respect of the Vrede matter was that money laundering did not fall under her jurisdiction and she could not investigate money laundering. In the CR17 campaign matter the position is adopted that if I find something wrong, I was compelled to investigate it. Chair, you will know that although Mr Maimane makes a reference to money laundering in his complaint, there is no reference to the CR17 campaign in either complaint. The reference to money laundering stems from the fact that they payment was made from Mr Watson, via an account called Miotto Trading and then into the CR17 bank account of EFG2. The important part to note about this is that the court says, and in the founding papers of the High Court application the elements of the charge of money laundering is set out and effectively confirms that you erred in your definition of money laundering, because money laundering is not bank accounts you put the money into, it’s about the source of the funding. So you could have had ten intermediary accounts and it wouldn’t necessarily constitute or give rise to the prima facie finding of money laundering. In contrast what the Public Protector does, is she refers to the PRECCA Act, the PRECCA Act being the Prevention and Combating of Corrupt Activities Act, throughout and there are numerous references in her report as opposed to the Prevention of Organised Crime Act, the latter being the one that deals with money laundering. And effectively the court then concludes that not only is there a material error of law, nor is it an innocent reference to the incorrect Act, because the report is repeated with representations or references to that Act. And so the question then comes from was it a deliberate effort to try and make this finding, and the act in which she had jurisdiction to make a conclusion against the President... So Chair, in essence those were the three things. And then it came to the question of remedy. There were certain remedies issued, Chair, and those remedies related to interference with the prosecutorial independence and interference with the Speaker in the way the remedy was crafted. And both the fact that there was a... not only was the remedy crafted in a manner that made it binding on the National Director of Public Prosecutions to take steps, but it would have been under the aegis of the Public Protector that that was done. And in respect of the Speaker, it set out precisely what the remedy the Speaker was supposed to undertake, and that was regarded as an infringement of the powers of the Speaker. Chair, this is not a case in respect of which a personal cost order was made against the Public Protector. Instead, a punitive cost order was made against the Office of the Public Protector in this regard. So this was not a case as which the Committee was told was an instance of double jeopardy, not that double jeopardy applies in doing that. The litigation cost inclusive of legal opinions obtained, approximated to something like R6.5 million in this matter, both in its appeal to the Constitutional Court and in the rescission application in totality... So the one point that the courts noted, Chair, was that the President’s response to section 7(9) notice as to the movement of donations was completely ignored. Adv Mkhwebane made a finding that because funds was transferred to the Cyril Ramaphosa Trust, him and his family had personally benefitted without actually ascertaining who the beneficiaries to this trust was, and it wasn’t them and they were not ultimately in control of the day-to-day running of the trust. And there’s an explanation in the 7(9) notice as to how it comes about, that funds are transferred to the Cyril Ramaphosa Trust. In other words, there was a failure to investigate and a failure to consider the evidence provided in the section 7(9) notice. I think that covers the gist of it, Chair. The Members would be aware that we’ve extensively set out the evidence in chapter 3, part one of the summations that has been made, which deals with these aspects in more detail and also sets out what Adv Mkhwebane’s evidence was in respect of each of them. Thank you, Chair.

Chairperson: Thank you. Thank you, Adv Bawa. Colleagues, that’s the last presentation on those matters. I'm inviting you to respond to what has been presented, the summation and everything else that you know, as well as responding to those three questions, which relate to issues of impartiality, independence and the nature of the investigation itself and the conduct of the PP. May I invite you to make contributions? If you are still here...

Mr Nkosi: We are, Chair.

Chairperson: Okay, is that a hand Hon Nkosi? Hon Mileham, Hon Xola, Hon Gondwe, Hon Maneli. In that order, thank you. Hon Mileham?

Mr Mileham: Chairperson, I'm less concerned about the actual investigation itself...

Mr Nkosi: Sorry, sorry. Sorry, Chair, I raised my hand. I don’t know if you can see it from my gadget. I think it’s after Gondwe.

Chairperson: Okay, thank you. Thank you. I see it now, thank you. Sorry, Hon Mileham. Go ahead.

Mr Mileham: No problem, Chairperson. Thank you. So I’m less concerned with the conduct during the investigation and more the report and remedial actions that were recommended. And in particular, I think that the position of the Public Protector with regard to the EMEA matter, both in CR17 and in SARS rogue unit, as well as the PRECCA finding and her finding that there was prima facie evidence of money laundering, notwithstanding her reliance on PRECCA and her remedial action in referring that to... in fact, not referring it, in ordering the National Prosecuting Authority to take the matter further. I find those both to be bad in law and an overreach by the Public Protector, and as such it goes again to her incompetence in performing her job. So I believe that she is incompetent in that regard. I don’t want to talk to the actual investigation itself, rather focused on the report and the remedial actions. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Nqola?

Mr Nqola: Thank you very much, Chair. Chair, it’s a big “no” in all. The fact that there’s been a serious misapplicability of law, the difference between POCA and PRECCA [Prevention of Organised Crime Act / Prevention and Combatting of Corrupt Activities Act], the application of wrong laws, such that it is a “no” in all the three. The use of a wrong Executive Ethics Code and beyond that, Chair, tampering and impeding into the independence of the prosecuting authority was beyond reproach. So it's a no, Chair. Thank you.

Chairperson: Thank you, Hon Nqola. Hon Gondwe?

Dr Gondwe: Chair, I agree with previous speakers. She relied on the wrong code, on the wrong legislation. And honestly speaking, that doesn’t bode well for someone in her position and for the Office of the Public Protector. We would think that they would be able to rely on the correct legislation. But that having been said, Chair, I’m not sure if any of the Members have raised this earlier today, but the involvement of Mr Ngobeni has once again, you know, reared its ugly head in this particular investigation. And Chair, I also think we shouldn’t take his involvement lightly; the role that Seanego Attorneys played in roping him into the business of the Office of the Public Protector. And I'm not entirely sure how we should ensure that that matter is also investigated and looked into, because Chair, it cannot be right. It must not be right that someone who’s not authorised to practice law in the country is able to give advice, provide advice on such, you know, sensitive and high profile investigations at an institution such as the Office of the Public Protector. So through you, Chair, it’s just a plea that that matter also needs to be looked into, and also the role that Seanego Attorneys played in procuring his services. I don’t know whether that matter then needs to be channelled through the Legal Practice Council or how we’re going to handle it, but his, you know, his constant... the role that he continued to play in some of these investigations, insofar as advice and opinions that he used to provide is worrisome, and more so because as I indicated earlier some of these investigations are high profile and sensitive. I mean this investigation involved the President of the country, and you wouldn’t want to think that someone who’s not allowed to practice in the country and is a fugitive from justice is actually providing, you know, opinions on what is possibly the fate of the head of state of this country. So Chair, please if you can note that down that that is another matter that needs to be investigated. But like my previous colleagues, I agree, there were material errors of law; she relied on the wrong legislation. And as Hon Nqola pointed out, she relied on the PRECCA Act and not the POCA Act, and she also relied on the wrong code. Thank you very much.

Chairperson: Thank you, Hon Gondwe. Hon Maneli?

Mr Maneli: Thank you, Chair. I think the points have now been covered to justify the “no’s” on those questions. And that, I think, the points made in relation to law also with regard to the issues of personal benefit in this regard without any basis. I think it’s safe to say, Chair, that once again the issue of the Independent Panel gets to be substantiated in this regard. Thank you.

Chairperson: Thank you, Hon Maneli. Hon Nkosi?

Mr Nkosi: No, thanks Chair. I'm covered. I just want to emphasise what Hon Gondwe has indicated around a specific... we need on the basis of what has been presented on the role of external people impairing the impartiality and independence of the Public Protector to express a view. And I agree with her that we need a specific recommendation on that, particularly him as a non-practicing attorney or advocate.

Chairperson: Thank you. Thank you, Hon Nkosi. Hon Dlakude?

Ms Dlakude: Thank you, Hon Chairperson. Let me say that I echo the same sentiments as my colleagues. And also to bring this to the attention of the Committee, that the PP notwithstanding these glaring errors litigating the matter up to the Constitutional Court and further lodged a rescission application, only for her to admit to the Committee after state resources were wasted when she knew she had erred. This we believe is not a genuine admission. Had she considered this in the review application when the President pointed it out, the wasteful expenditure in legal fees could have been avoided. So I’m adding this for the Committee’s consideration with regard to her using the wrong Act, and also for continuing with litigation even though she knew she had made a mistake. Had she avoided that, state resources wouldn’t have been wasted. Thank you very much, Hon Chair.

Chairperson: Thank you, Hon Dlakude. Hon Siwela?

Ms Siwela: Thanks, Chairperson. Let me join my colleagues. Chairperson, I think here we’re dealing with a matter which affects the head of state. It needs to be considered. We all know that there is no one who is above law, but it is good for our leaders who have been given a responsibility to act according to law. The issue of employing people who do not have relevant qualifications is highly questionable, Chairperson. So I agree with my colleagues that in our recommendations we must also indicate that this matter needs to be investigated, because we’re trying to correct the situation in future. And also to learn lessons that given a responsibility you need to be yourself, and you need to play the ball, not the man. Here when we check the issue of reviewal to courts, it leaves us with questions, because once an outcome has been given on a particular matter, one will have to think twice before you continue with litigation. Hence the PP failed to avoid issues of waste of resources, and to me the use of wrong legislation is also questionable from her side. So I’m really in support with those other Members who are saying that we need also to make a special recommendation, that it be investigated why external people who are not evenly competent or relevant to that particular job were given powers to execute such execution. That's my submission, Chairperson. Thank you.

Chairperson: Thank you, Hon Siwela. Is there any other Member? Is there any dissenting view? Hon Denner?

Ms H Denner (FF+): Thank you, Chair. No, Chair, I think I was largely covered. But I do think that mention should be made of fruitless and wasteful expenditure of public resources with unnecessary court battles, where wrong legislation was being used in investigation. So I would support that we make mention of that. Thank you, Chair.

Chairperson: Thank you, Hon Denner. Maybe as we then summarise it on those three questions, I'm with you. You are saying in 130.1, that the suspended Public Protector did not conduct investigation in a manner that ensured impartial conduct of the investigation. Is that agreed?

Ms Siwela: Agreed.

Dr Gondwe: Agreed, Chair.

Chairperson: 130.2, you are saying... Did Adv Mkhwebane conduct the investigation in a manner that ensured the independent... You are saying the investigation did not show that there was independence in the investigation. Is that agreed?

Dr Gondwe: Agreed, Chair.

Mr Maneli: Agreed, Chair.

Ms Siwela: Agreed. Correct.

Chairperson: 130.3. Did Adv Mkhwebane make her decisions in a manner that ensured the impartial conduct of the investigation? Is that so?

Dr Gondwe: No.

Mr Maneli: No, Chair.

Chairperson: Thank you. And if you look at all of those three questions, would you then say she would have then committed misconduct and/or incompetence?

Dr Gondwe: Yes, Chair.

Chairperson: Hon Gondwe?

Dr Gondwe: Yes, Chair. Agreed.

Ms Siwela: Agreed.

Chairperson: In all of it? Okay. Any other Member?

Mr Maneli: No, Chair. It's misconduct and/or incompetence, because the two are intertwined on this aspect.

Chairperson: Okay.

Ms Siwela: Chair, it’s misconduct and incompetence. Thank you.

Dr Gondwe: Misconduct and incompetence. Agreed, Chair.

Mr Nqola: Misconduct accompanied by incompetence.

Chairperson: Okay. Now that you’ve done this exercise, we’ll just as we summarise try and do it in the others. Can we do the others, Adv Bawa and Tshepo?

Adv Bawa: Sorry, Chair. I lost you. Are you asking us to go on to the two other cases that are referred to in this section? The GEMS case and the subpoena case?

Chairperson: You still have that to do?

Adv Bawa: Yeah, but that’s quick, Chair.

Chairperson: Please go ahead.

SARS subpoena matters
Adv Bawa: Okay. So if you see on the... as part of the Motion there are two further cases that are referred to which we deal with in parts three and parts four. They are referred to in chapter 3, part three of it. And this is the case you’ll recall during the evidence was... where there was an agreement between the Public Protector and SARS in getting an opinion as to whether the Public Protector could issue a subpoena for private information. The High Court found against her, and the High Court found against her because... on the merits, but then also made a personal cost order against her, because there was a deal entered into between the Public Protector’s Office and SARS that effectively said SARS would jointly obtain this opinion, SARS would pay for it, because the Public Protector’s Office was suffering from financial difficulties. They set out the instructions, the officials picked the advocate, and when the opinion came from the chosen advocates the opinion was rejected and the High Court said that that was... and then Adv Mkhwebane then went out and got another opinion, and she instructed her Office to get an opinion from a counsel which will contradict that opinion. And we deal with that in the evidence. And this evidence of what we obtained from the emails or the instructions was not before the courts. The matter then goes on, application for leave to appeal to the Constitutional Court. The Constitutional Court then finds that on the merits the original opinion obtained from SARS was correct. So on the merits, the Public Protector can’t issue subpoenas for private tax people's information. But on the question of costs there’s judgment of Justice Madlanga, which was referred to at length during the argument where he sets aside the personal cost orders against the Public Protector, and he cautions courts not to hand down cost orders as easily... as personal cost orders as it seemed to have occurred in that case. And that was used as a steppingstone to say, well, by not giving a personal cost order against the Public Protector, she cannot be found guilty of misconduct. The Independent Panel report then agreed that they were not going to make a finding that there was a prima facie finding of misconduct against her on the basis that the court said she was entitled to seek another opinion. And we set out in the summation those aspects of it. The only issue that we raise in addition to that, or one of the issues that we raise in addition to that is that in paragraph 402 during the period in which SARS is told that the Public Protector’s Office doesn’t have funds to get its own opinion, they are effectively paying Mr Ngobeni sums of money to do other work, and we detail that in paragraph 402 and 403. Whether the submission was then correctly made to the courts and to SARS that effectively we couldn’t have funding to do what was core business of the Public Protector’s Office. So Chair, can I just take you quickly into GEMS, and then the Committee can deal with both together? Or separately? Up to you, Chair.

Chairperson: Go ahead.

SCA GEMS matter (Charges 3 and 4)
Adv Bawa: Okay. So this is a complainant in a dispute relating to the Government Employees’ Medical Scheme. And we set out in the summation the facts that give rise to it and the Constitutional Court and the court finding that the approach was regrettable, that they hadn't complied with constitutional values of professional ethics, accountability, transparency et cetera. The Independent Panel found that there was prima facie evidence of incompetence and prima facie evidence of misconduct. There is one difference that does come up... we didn’t hear evidence on this, Chair. And we didn’t have anything that came directly from the witness in respect of GEMS. But we do want to point out that what makes GEMS a slightly different case to the other cases, if you see in paragraph 416, Adv Mkhwebane doesn’t deal with this investigation and judgment either to the Independent Panel or in anything before the Committee. And I think we can't take issue with it, because we didn’t put up any information in respect of GEM. So that’s the first thing, there wasn’t anything for her directly to respond to besides the judgment. And although she signed the subpoenas in the matter, which she would ordinarily do, she didn’t depose to the affidavits in the litigation, nor is there an explanation of her role in the investigation or any direct instruction given or direct involvement in respect of the early stages of the investigation. There is a delegation given by her to another investigator to act on her behalf. And so we were not able to secure the cooperation of the investigator, who is no longer in the employ of the PPSA. And he did speak to us but was not amenable to providing information on the record. And so we did not put, what in our view would have been complete evidence before the Inquiry. Thank you, Chair.

Chairperson: Thank you, Adv Bawa. Is that it? You don’t have any other after this to present?

Adv Bawa: Chair, Adv Mayosi needs to deal with you on two aspects dealing with Ngobeni and the appointment of Mr Nyembe.

Chairperson: Okay.

Adv Bawa: But if you just want to deal with subpoena matters and GEMS, and then Adv Mayosi can just deal with those two aspects in the context of charge 11.3 which would then complete it, Chair.

Chairperson: Alright, thank you. Let's then Hon Members, respond to these two that have been presented here now, GEMS et cetera. Let's just go back to the questions, Tshepo, as I invite Members.

Adv Bawa: Chair, there’s no specific question on GEMS, but it’s the same questions that was asked in respect of the impartiality and independence insofar it’s applicable to the CR17 matter.

Chairperson: No problem, then. Thank you. Hon Members, your responses? You almost there, you can’t get tired now. Do I have any hands? Hon Maneli?

Mr Maneli: Thank you, Chair. I think on the latter matter of GEMS, I think matters that have not been canvassed and evidence led through the Committee, I still want to suggest, Chair, it’s difficult for us to express a specific view on the matter. Except to note, of course, Chair, that yes, it may have been a matter that would have been looked at by an Independent Panel, if it has been through the Independent Panel and made a finding. But from a Committee point of view, because this we’ve not tested, I want to submit that we do not express a view on it, Chair.

Chairperson: Thank you, Maneli. Suggestion that we have no view to express. Hon Thlape?

Ms Thlape: Thank you, Chair. Chair, I support Hon Maneli on this one. The evidence leader, she's indicating that there are no questions on this. But safe to note, Chair... on that court judgment, where they pick issues of incompetency and everything. I'm just finding a golden thread, Chair, on all investigations that have been done as alluded by my colleagues, when they were deliberating whether it’s intentional or it’s issues of incompetency, you find that golden thread of not being really... I don’t know if you rushed into taking decisions or it was intentional decisions that have been taken or what could have been the issue. But it borders on issues of incompetency and really wanting to reach such conclusions. So even if we don’t have anything on this one, Chair, I would say that the golden thread remains throughout all these investigations. Thanks.

Chairperson: Thank you, Hon Thlape, for that consistent golden thread incompetency. Thank you. Any other Member? Is there any dissenting view?

Ms Siwela: No.

Chairperson: Okay. Thank you. Summary – that we express no particular view on those issues that would have come to the Committee. But we also, I think, note as Hon Thlape makes the point that there are consistent patterns and issues standing out throughout this, as she would have mentioned. Let's proceed therefore from that, colleagues, and invite Adv Mayosi and Adv Bawa for the next deliveries.

Adv Mayosi: Thank you, Chair. Can you hear me?

Chairperson: Yes, I can hear you, Adv Mayosi.

Appointment of Mr Nyembe, Mr Ngobeni, Ms Heller and Prof Seepe
Adv Mayosi: Chair, issues relating to the appointment of Mr Nyembe first as a special advisor and then thereafter as the Chief of Staff, and the appointment of other services of Ms Kim Heller, Professor Seepe and Mr Ngobeni impact on the determination of charge 11.3, issues of impartiality, independence and so on in the conduct of an investigation. And here the impact on the Vrede investigations as well as the SARS unit investigation and litigation. Mr Neels van der Merwe was asked to give evidence on the dates of appointment of Mr Nyembe. And it seems from the evidence that was presented by him, that Mr Nyembe’s appointment dates... discussions around it occurred a year before in early 2018. So on the 8th of February, Mr Nyembe as a sole director of an entity called Lawyers for Radical Economic Transformation followed up on discussions he had had with Adv Mkhwebane in relation to his appointment. He set out in that letter of the 8th of February what Lawyers for Radical Economic Transformation would offer, the services that would be offered. He was then appointed on the 15th of February 2018. Rather more accurately, on the 15th of February 2018 Adv Mkhwebane wrote him a letter and confirmed his appointment as a special advisor, with effect from the 1st of April 2018 for a three-month period until the end of June 2018. What then occurred on the day before Adv Mkhwebane’s letter of the 15th of February, on the 14th of February she approved a policy on the appointment of special advisors to the executive authority. So this was approved on the 14th of February 2018. Mr Nyembe then assumed his position as special advisor on the 1st of April. In March 2018, Adv Mkhwebane addressed a letter to the Minister of Finance, who at the time, I think was Mr Nhlanhla Nene, because in terms of the Act section 3 of the Public Protector Act, she was required to have consulted with the Minister of Finance prior to the passing of the policy for the appointment of special advisors. So she addressed the letter on the 22nd of March to the Minister. The Minister responded to her in early June 2018, and the Minister said to her that it appeared that she had already adopted the policy that she was seeking to consult him on, and he proposed that the policy be retracted so that consultation could occur. There was also an additional requirement that the policy had to be presented to the National Assembly 14 days after the Public Protector adopted the policy, having consulted with the Minister of Finance. But earlier in May an internal advice had been obtained, a legal advice from Mr Nemasisi who was the legal manager at the time, relating to amongst other things the legality of the appointment of Mr Nyembe. Mr Nemasisi’s advice was that due to the fact that consultation had not occurred with the Minister of Finance prior to the adoption of the policy, prior to the appointment of Mr Nyembe, the policy was invalid. Mr Nyembe’s appointment should be terminated. The matter ultimately went to the portfolio committee in June. It was considered by the portfolio committee, and the portfolio committee also expressed concerns around the appointment of a special advisor, it expressed concerns around the approval of the policy, but it also noted that the term of Mr Nyembe was about to come to an end. What then occurred is that his term as special advisor came to an end at the end of June. Mr Tyelela testified that he then left the organisation, after that the position of Chief of Staff was advertised. He applied, he was interviewed, and he was then appointed as Chief of Staff with effect from the 1st of January, I think January 2019. And that appointment was for fixed-term contract of employment, which was linked to the term of office of the Public Protector. So in other words, that appointment would start from the 1st of January 2019 for a fixed term until October this year. As we know from the evidence that’s been led, Mr Nyembe passed away, I think some time in 2020. So the various roles that Mr Nyembe then played in his position as Chief of Staff were testified to by Mr Muntu Sithole, as well as to some extent by Mr van der Merwe. He played a role in for instance the SARS subpoena matter, where he was copied in on correspondence by Adv Mkhwebane. For instance, the correspondence where she rejected the advice in the opinion of Adv Maenetje and she instructed that another counsel be sought to contradict that opinion. Mr Nyembe was party to that correspondence. He was also involved in the SARS unit matter. He would advise, he would be copied in all correspondence. For instance, as Members would be aware on the 23rd of April 2019, Adv Mkhwebane issued a media statement where she granted Mr Gordhan an extension that he had sought for submitting his affidavit in response to a subpoena. She also in that media statement alluded to some kind of collusion between the implicated parties, Mr Gordhan and SARS, in framing a response to her. What she then did was the following day Mr Mataboge on the 24th of April drafted a response that was to be sent to the attorneys of Mr Gordhan. Mr Nyembe contributed to that response... and that appears on paragraph 477, Tshepo... Mr Nyembe’s proposal to that response is reflected in paragraph 477. The second sentence of that proposed response he says, “we warn the Attorneys and their principals to desist from conducting themselves this way against a Constitutional institution as our office”. 478 is also a continuation of Mr Nyembe’s proposed response where he says that the Public Protector wishes to draw PG, PG being Mr Gordhan’s, attention to the fact that despite having directed that a postponement could only be had via personal appearance before her at the PP’s Office, they violated the subpoena as they didn’t present themselves. And he says in the last sentence “I guess the point the PP wants to bring to PG’s attention is that concretely he has already shown signs of being unruly”. So this proposed response was in April 2019, during the time that the SARS unit matter was being investigated. Members would be aware that the report only came out, I think, on the 5th of July 2019. The sentiments that are reflected in this proposed response of Mr Nyembe’s, Members will be aware reflect those shared by Adv Mkhwebane in the sense that she described in her court papers what she perceived as hostility in the attitude of Mr Gordhan and his attorneys. Mr Muntu Sithole then testified that the appointment of Mr Ngobeni to offer the services that he ultimately did, came at the recommendation of Mr Nyembe. Mr Nyembe, the evidence was, was a big admirer of Mr Ngobeni’s intellectual prowess. And so it is he who then recommended that he be appointed to perform various services for the organisation. The services that he performed really ranged from... according to the evidence of both Mr van der Merwe and Mr Sithole, drafting opinions, research, drafting media articles and so on in relation to the various matters. And perhaps those services are best described in... An invoice that Mr Ngobeni submitted to Seanego. The mechanism for him to invoice the organisation was that he would not invoice the PPSA directly, but rather his invoices would be sent via Seanego. So his services and his attendance would be reflected on a Seanego invoice. The services that are stated; they’re a good reflection of what he provided at that time. And I'll just really focus on the ones that are underlined in the period from May 2019, June 2019, the dates reflected there, he received papers in the CASAC / DA Vrede judgment and provisional and final reports; final notice of appeal; all DA / CASAC papers; researched and drafted preliminary argument. On the 6th to the 10th of June, he received and researched direct access; leave to appeal; amended notes of motion and supplementary affidavit and amended notice of motion. Members will see that on the 11th and 12th June 2019, he drafted a legal opinion on the controversy on the PP’s social media section 7(9) notices. Just to take you back, the context of that was on 3 June, Adv Mkhwebane did a YouTube appearance where she announced her intention to deliver a section 7(9) notice to Minister Gordhan in the context of the so-called rogue unit investigation. And that advice there on the 11th and 12th of June appears to be an opinion in relation to that. And as you know his advice was that there was nothing wrong with these matters being done in the manner that the PP was doing, because it was important to counter the narrative that was out there at the time... If you go down, Tshepo, on page 146, just for Members to note the services that Mr Ngobeni was rendering at that time. On the 19th of June 2019 correspondence on Judge Tolmay’s proposal for “Stay Until ConCourt decides costs”, that was in the context, I think, of the Vrede matter, and then further research and so on. But Mr Ngobeni was not the only service provider whose services were used by the organisation at the time. On 18 February... Just before we leave this invoice Members, I omitted to bring your attention to the attendance of the 19th to the 20th of July 2019 where he says... Mr Ngobeni’s invoice, “PP report on Pres. Ramaphosa and researched legal challenges CR raises; jurisdictional and factual issues”. Members may recall that in her affidavits in the High Court, Ms Basani Baloyi mentioned that in the SARS unit and CR17 investigations, external consultants were used. That entry there would seem to corroborate the involvement of Mr Ngobeni, at least in the CR17 matter at that time... Going down to paragraph 530. So Mr Ngobeni then wasn’t the only service provider, on the 18th of February 2019, Ms Kim Heller of Kim Consultancy addressed an email to the personal assistant of Adv Mkhwebane requesting a meeting, that ultimately then resulted in her sending a proposal of the services that she and Professor Seepe were going to offer to the organisation. Just for a snippet of what those services would be on page 150 where a portion of the proposal is reflected. The services that they were going to offer were strategic communication services to counter the total an unwarranted onslaught by media. Further details of their communication posture and programme were provided in that proposal... And they recommended that the Office must not be seen to be preoccupied by the onslaught, rather it must use this time of heightened publicity to showcase those interventions that benefit the most disadvantaged and the voiceless majority. “Put differently there is a need to defocus the obsession with complaints involving Pravin by talking about the impact the office has had on ordinary people. It is about putting out there what the media will not cover. Over this period we will write and publish a series of articles and social media communications which correct misperceptions as well offer a convincing portraiture of the good works of the Office”. The key thought pieces are reflected there, and those key thought pieces will focus amongst other things on judicial prejudice; to the lynch mob mentality of the media, judiciary and civil society in the deliberate unsteadying of the PP; unpacking the Pravin Gordhan saga; the undone matter of the rogue unit and CIEX; profiling the people’s Public Protector. So in essence the services were described there and the costs for strategic communication services for the period were reflected there. So in response to this proposal... Members will see at paragraph 542 that in response to Ms Heller’s proposal, Adv Mkhwebane addressed that email to Mr Nyembe who was the Chief of Staff, and she says, “COS this should include Adv Ngobeni” and she requested a cost breakdown, she continued, “so all can be accommodated, ask Theo to advice (cost per article, per interview arranged etc)”. So the evidence leaders wrote to Professor Seepe and Ms Heller who responded in various ways in describing the services that they rendered. Part of their response is captured there. “For reasons that have nothing to do with the incompetence, that proposal was not concluded. Subsequently in mid-2019 and for a period on three months, strategic communication services were provided on an ad-hoc part-time basis to Adv Paul Ngobeni, who was assisting Seanego Attorneys on matters of legal services and opinions. No services were provided beyond the three months period... the invoices to support services rendered were duly submitted through Wekunene Business Services, registered in 2016”. In their letter they further stated, “It was confirmed that we provided out services, this time to Mr Paul Ngobeni, who was contracted by the Office of the Public Protector”. “We had no direct working relationship with Theo Seanego or Seanego Attorneys Inc, except for the email communication, recording regarding meetings amongst others. We were engaged by Mr Ngobeni”. So that is part of their response to the evidence leaders in the description of their services and the nature of their appointment. So as Members will have seen then Mr Ngobeni performed a range of services, he also advised on the BUSA petition for the removal of Adv Mkhwebane. I think Business Unity South Africa addressed a letter to the Speaker seeking the removal of Adv Mkhwebane. Mr Ngobeni advised on that issue, he drafted a response which he forwarded to Adv Mkhwebane. However, the evidence of Mr van der Merwe, in his evidence he was not certain whether that draft response was ever sent, but we’ve captured the snippets of what the draft response that Mr Ngobeni prepared. So Ms Heller then reported on the services that they provided... She sent an email in June 2019 to Adv Mkhwebane amongst others, Prof Seepe, Mr Nyembe, which reflected a report that was to be tabled for discussion at a meeting that they were going to hold. In the last paragraph of the report, it stated that “Our work has been oriented around high impact initiatives and interventions that influence and shape desired outcomes. We have sought and secured prime space and audience on radio and television and in newspapers. We have also pursued and delivered a high-presence social media campaign. Our media interventions have been coupled with advisory notes to the office and briefing of key influences behind the scenes. We believe we have managed to cause some disruption of the master narrative and succeeded in spearheading multiple calls by others for attacks on the Public Protector to cease". So in essence, the report described their interventions during the period that they had been performing the services. And they proposed their next steps, “We are looking into the feasibility of public televised colloquium on the deliberate manufacture of discontent and partisan Eyes Wide Shut approach of media to the truth by advocating decisive legal action against those who trade in propaganda without evidence and harm, the reputation and standing of the Public Protector is recommended”. I think Adv Bawa may have alluded to this earlier when she addressed the Committee, in May 2019, after the judgment of Tolmay J in the Vrede Dairy matter, Mr Ngobeni had authored an article entitled “Mobilising the Judiciary for Political Attacks on the Public Protector: can justice be done amid efforts to intimidate and remove our Public Protector”. So in the article it contains criticisms against Judge Tolmay, which included but are not limited to what is listed in paragraph 574.1, that she is a “white paragon of judicial virtue”, she’s “committed a plethora of legal errors in her judgment”, it continued that her judgment was biased, she is “no stranger to utilising court judgments to advance populist causes untethered to the Constitution and the rule of law”. After he drafted the article Mr Ngobeni then presented the article, the draft, to Adv Mkhwebane on the 23rd of May, and she responded that the article is good, and it could be published. So what the evidence showed of Mr van der Merwe is that Adv Mkhwebane expressed a desire for Mr Ngobeni to be appointed on more than one occasion, as will be seen in paragraph 581 where in the Mostert application she said, “Please contact Ngobeni, SC, to check his availability”. And in the DA and CASAC matter, she requested the papers which she then sent to “Adv Ngobeni” - as she called him, and she asked him if he could assist the senior junior to prepare papers for appeal. Adv Ngobeni also responded to a number of questions that was sent to him by the evidence leaders, some of his responses are reflected in paragraph 582 and its subparagraphs. Notably he denied that he had referred to himself as an “advocate” in his invoices. He is neither an admitted advocate nor an admitted attorney. He submitted that he is eligible to practice law in South Africa by virtue of a Ministerial exemption in terms of the Recognition of Foreign Legal Qualifications and Practice Act. The remainder of some of the salient features of his response are reflected there. He also stated that he, Ms Heller and Prof Seepe had an agreement with Seanego Attorneys. He denied that he’d ever received payment on behalf of Ms Heller at any time in respect of services provided by her, directly or indirectly to the Public Protector. Chair, just on this issue of impartiality in general in investigations, we also touch upon the issue I think that was raised in Mr Samuel’s testimony about Adv Mkhwebane having socialised with Mr Zwane, who was the MEC that had primary responsibility at the time for the Vrede project. He was one of the politicians against whom the PPSA made findings in the Vrede 2 report. We bring this matter, Chair, because it is as we state also an issue this Committee needs to consider in so far as Adv Mkhwebane’s ability to conduct or display impartiality or independence in the conduct of her investigations. Her evidence to the Committee was that she hadn’t invited Mr Zwane to the 50th birthday, that he had come there with an invited guest, and she could not turn him away. There's no other evidence before this Committee that is available, but the Committee will have to consider the efficiency of that explanation. So Chair... Can I take a minute, Chair, just to look at my notes before I conclude… So Chair, all of these appointments and these services that were being rendered in relation to the media interventions and the strategic communication services, the publication of the articles, all of these matters were occurring at the time when the Vrede litigation was underway; they were occurring at the time when the SARS unit matter was being investigated. And as we say we raise this as an issue on which the Committee ought to deliberate when it decides on the impartiality and independence of Adv Mkhwebane as is raised in 11.3 of the charges. Chair, I must also point out that we don’t have evidence of all the payments for all the invoices that are related to Mr Ngobeni, some of them were paid by Seanego. Mr Ngobeni said in the Gordhan matter he was paid by counsel... So in essence, Chair, we don’t want to create the impression that we had an entire paper trail of evidence in relation to all of the invoices... and some he indicated he never received payment for the services that he rendered. Thank you, Chair.

Chairperson: Thank you, Adv Mayosi... That was a comprehensive presentation on those last issues starting with Mr Nyembe. Members, may I invite you to comment on this as we go towards the end. Hon Mileham… Hon Gondwe. In that order.

Mr Mileham: Thank you, Chairperson. Chairperson, I think that the way that the evidence leaders have laid out the summation joins a lot of dots for us and it creates a clear picture of a pattern of behaviour on the part of the Public Protector. And that pattern of behaviour as I see it as having been laid out by the summation is the appointment of Seanego to act as a front for various persons and companies to provide a propaganda machinery for the Public Protector. So it’s quite ironic that Mr Ngobeni and Ms Heller say that they need to counter the propaganda of the other forces, I don’t know quite where that sits or who that might be, but when she the Public Protector is utilising their services to do exactly that, that’s the first point. The second, is that if we go back to Mr Nyembe, he tweeted, and you’ll recall that there was quite a bit of controversy when that tweet was flighted, that one of his functions at the Office of the Public Protector was to jerk up the Office politically and legally, and to provide socioeconomic inputs to the Public Protector. Now it appears that the Public Protector was pursuing a political agenda and that she was lining up resources that could help promote that particular political agenda. And thus, she used the services of a particular communication consultant, a particular... I don’t know quite what to call Mr Ngobeni, I don’t want to call him a legal advisor, because he’s not. But Mr Ngobeni, Ms Heller, Prof Seepe and then Seanego were employed to act as a front to channel funds to them in a manner that they were not employed directly by the Public Protector’s Office. So I have some real concerns that this is blatant misconduct on the part of the Public Protector. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Hon Gondwe?

Dr Gondwe: Chair, I agree with Hon Mileham that Seanego Attorneys... And I would like to implore the Committee to please take the issue of the involvement of Mr Ngobeni and Seanego Attorneys being used as a conduit for procuring his services, as well as those of Ms Kim Heller and Prof Seepe. We should take it in a very serious light, because it also has cost implications in the sense that, you know, you have the Office of the Public Protector paying for services that would ordinarily not be permissible when you look at, you know, what is permissible in terms of an institution of its nature... the cost it would have to incur. So in other words, Chair, what I'm trying to say is that the only way they could procure these services from Ngobeni and Kim Heller and Prof Seepe, was to use Seanego Attorneys as a conduit. I remember asking Mr Neels why they weren't just, you know, made service providers for the Office of the Public Protector. And he said something to the effect that, you know, it’s perhaps because the type of services that they were offering. The fact that Mr Ngobeni, as we now know, is not allowed to practice law in South Africa. That wouldn’t have ordinarily been allowed. And so, Chair, we really need to find a way to get this issue investigated and more so the involvement of Seanego Attorneys. And as I indicated earlier, perhaps we should involve the Legal Practice Council, and the Auditor-General of South Africa also needs to be involved, because these were monies that came from the Office of the Public Protector. And in certain instances where it was... articles that were put on websites et cetera, that were not necessarily legal opinions. They were passed off as legal opinions when you look at the payment that was done. So that also needs to be investigated, so that, you know, someone needs to be held accountable for the payments that were made, because in certain instances it was passed off as a legal opinion when it wasn’t a legal opinion. What Mr Ngobeni had done was to write on websites defending the Public Protector et cetera. Chair, also now coming to the issue of Mr Nyembe. It's worrying that Mr Nyembe, how he got the job, he simply wrote to the Public Protector and indicated that... I'm a lawyer, part of this Lawyers for Radical Economic Transformation. We also saw that he indicated how much he wanted to earn for his services and stuff. The Public Protector employed him without following the proper procedure in terms of his employment. And a policy was created after the effect, you know, to almost validate his appointment as a political advisor. Eventually, he was even given the position of Chief of Staff. So I think that in itself points to an element of misconduct on her part as the Public Protector. I think as Hon Mileham has repeatedly asked, why does she need a political advisor? That Office is not political in its nature. It may be charged with some investigations that are politically charged and the like, but it’s not supposed to be politically aligned to any kind of ideology. It’s supposed to serve the people of the Republic of South Africa irrespective of their political affiliation and the like. So if you have the Public Protector requiring a political advisor, you have to ask yourself for what reason would she need a political advisor when that Office is not political in its nature. It wasn’t intended to be political in its nature. Chair, just those points around the use of Seanego Attorney as a conduit for certain external parties to be paid for services that ordinarily wouldn’t be permitted in terms of what is ordinarily permissible. Thank you very much, Chair.

Chairperson: Thank you. Hon Nkosi?

Mr Nkosi: Chair, with all what Hon Gondwe has indicated, then the questions 130.4 to 130.7 would be answered as follows, that the use of external people to influence her decisions didn’t ensure her independence, so that her conduct was not independent. She sought legal advice from people who are not lawyers... in that regard she even received an opinion on how to attack a judge, which she continues to do. And on 130.5, yeah, that failure was in my opinion intentional on her part. She did not have anything to proffer, and on the basis of what this legal advice and opinions were made, she then takes a decision... And in conducting the investigation, of course, that means that she would not be independent and that is intentional. There is no impartiality; there will never be impartiality if you use those types of services. And I also think that, because there was internal capacity available, why wouldn’t she rely on internal capacity? Secondly, if there existed a panel of attorneys, why didn’t she go to that panel for legal opinions? Of course, we know that frequently Seanego is appointed, but why wouldn’t she go to Seanego for an opinion? Instead of instructing that her staff consult Ngobeni. On an unrelated but relevant issue, Chair, is the conduct of Nyembe... her conduct in relation to Nyembe, and I think that I agree with Hon Gondwe on that. Secondly, on Ngobeni, I think that the Committee may consider its final recommendations. We have this matter addressed by a body that is charged with that responsibility at institutional level or at professional level, that also goes to Seanego for attempting to or fronting on behalf of Ngobeni. In other words, putting on their letterheads and thus owning a work that doesn’t originate from them. I think it also should be referred to a professional body that deals with such. Yeah, Chair, that will be my input.

Chairperson: Thank you. Thank you, Hon Nkosi. Any other Member? I think that was the last hand. Any other Member? Or is there any dissenting or different view on what has been expressed?

Ms Siwela: Chairperson, I'm using another gadget, I'm failing to raise up my hand. If I may be allowed. I just want to support my colleagues, Chair, that here there was no issues of impartiality again. This was deliberately done, because to invite external factors or other people to influence you, it drives you to move out from independence. So I’m really in support of what my other colleagues has indicated, that here we have got a problem. More especially to invite a person who doesn’t belong to that particular institution to be your advisor and advise you even to challenge judges. To me, this really is a gross misconduct, and it was done intentionally, not unintentionally. Thank you, Chairperson.

Chairperson: Thank you, Hon Siwela. Thank you, Hon Members, I think that’s where we leave it there. Maybe any final remark, Adv Mayosi? Before I ask Tshepo to put up the charge sheet.

Adv Mayosi: No, I don’t have anything to add, Chair. Thank you.

Chairperson: Okay, Ms Morie and Ms Ebrahim?

Charge 1: Misconduct in South African Reserve Bank matter
Chairperson: Thank you. Hon Members, you have for the last two days, full two days and long days, and the team has been taking notes of the issues you have raised in detail. I have no intentions to repeat those hours. We have those details, but it’s important just as a summary and closing, even though you’ve done it, to repeat that exercise. That for example, in relation of charge 1, do you confirm or agree that the misconduct in charge 1 on South African Reserve Bank or CIEX as raised in the Independent Panel is sustained over our discussion the last two days?

Mr Nkosi: Chair, yes I agree it’s sustained. My name is Bheki.

Chairperson: Thank you, Hon Nkosi.

Ms Siwela: Hon, Chair. Agreed with the charge.

Chairperson: Hon Siwela, agrees. Is there any dissenting view on that? None? I proceed. Do we agree therefore in terms of... Ms Ebrahim?

Ms Ebrahim: Thank you, Chairperson. Chair, I just wanted to note that as the Committee’s been deliberating we've obviously been taking notes of specific subcharges where the Committee has felt that there wasn’t enough evidence to sustain a subcharge. As I indicated yesterday, the charges contain various subcharges, but we understand the general sense of where the Committee is going on each charge. So we'll make sure that that is captured, and when we get to charge 3 on the incompetence, I'd just like to make a comment as to some of how that relates to charge 1 and charge 2.

Charge 2: Misconduct in the Vrede Dairy matter
Chairperson: We’ll come there. Let’s go to charge 2, the Vrede. To ask Members if you do confirm and agree that the misconduct charge has found to be prima facie in the Independent Panel, do you agree that it is sustained?

Prof Lotriet: Agreed, Chairperson.

Ms Dlakude: Agreed, Chairperson. Agreed.

Chairperson: Hon Lotriet and Hon Dlakude, thank you.

Charge 3: Incompetence
Chairperson: We now go to 3, charges of incompetence in both 1 and 2, which is SARB and Vrede. And maybe before I ask you, maybe Ms Ebrahim to come in? This is about incompetence.

Ms Ebrahim: So Chair, you’ll recall that the first charge is a charge of misconduct in respect of SARB. The second charge is a charge of misconduct in respect of Vrede. When we come to number 3, it’s got to do with those same two cases, but now looking at incompetence as per the rules. So in respect of SARB, charges 1.1.2, 3, 4, 5 and 6 are in fact repeated word for word in 7.1.2, 3, 4, 5 and 6. So they’re mirrored for both misconduct and incompetence. So the Committee would have to make an assessment as to whether they feel that it arises to misconduct, otherwise incompetence on those ones for SARB. When it comes to Vrede, it’s slightly different; there isn’t that word for word repetition. So if I give an example, 4.1 in Vrede says that the PP narrowed the scope required by the three complaints without providing any rational or proper explanation. But under incompetence there’s a charge that says failure to conduct a lawful and meaningful investigation and the demonstration of the failure to appreciate her legal duty to come towards the aid of the vulnerable. So one could then argue on this on the same set, that the same set of facts would apply there. So the Committee would need to just give us guidance on whether you’re of the view that these charges under SARB firstly, 1.1.2 until 6, where you’ve said that that meets the threshold for misconduct, then when we draft it we're not going to repeat that under incompetence, if that makes sense. And we’ll do the same for Vrede where the Committee’s indicated that there are certain things that they believe to have been misconduct.

Chairperson: Okay, and the incompetency would include the Tshidi report, the FSCA?

Ms Ebrahim: Yeah. That’s separate, Chair. So under incompetence the Tshidi report was an additional issue. And then for Vrede under incompetence there were also some extra things. So for example, the PP’s charged with demonstrating the failure to appreciate that her investigation was wholly inadequate and grossly negligent. So this would have been about how she conducted the litigation in that she defended... if I could put it this way, doomed a report in the first place. Whereas on the misconduct it’s the fact that she perhaps gave contradictory statements. So we will do that analysis based on the comments that the Committee’s made now throughout the deliberations.

Chairperson: Thank you, Hon Mileham?

Mr Mileham: Chair, I just needed clarity. Is it not possible for it to be both misconduct and incompetence on these particular cases?

Chairperson: If you have the evidence to motivate for that. But let me hear Ms Ebrahim? It's possible.

Ms Ebrahim: So Chair, the difficulty is, is incompetence is when you don’t have the knowledge to do something or the ability or skill to perform. So I don’t know how to drive, therefore I haven’t driven properly. As opposed to I know how to drive, but I've been negligent in the way that I've driven or I've intentionally driven in a bad way to cause an accident, if that makes sense. So...

Chairperson: You’re leaving out in that incompetence this issue of it being a sustained habit that you repeat.

Ms Ebrahim: Yes... yes.

Chairperson: Okay, let me hear Hon Mileham?

Ms Ebrahim: Chair, if I can just come in again. The definition of incompetence – because it’s a lack of knowledge to carry out and the ability or skill to perform. It means that where the Committee was of the view that there was some deliberate intent... So in other words, if the Committee was of the view that the PP failed to furnish a section 7(9), not because she didn’t know that she ought to have furnished a section 7(9) notice, but she chose not to do that, then that doesn’t take you to incompetence, that then takes you to misconduct.

Mr Mileham: Chair, I'm covered... Thank you.

Chairperson: You’re covered? Thank you. Any further responses to the issues raised by Ms Ebrahim? Or are we all together? Hon Maneli?

Mr Maneli: Thanks, Chair. I take it that the issues that are raised are more to clarify us as we have been raising the issues. So it's not a very opening of a discussion we’ve had. I thought it’s important that I raise that point. For that reason, Chair, it also gets to the point where in some instances we have raised this thing that you may have the knowledge, you’re a legal person and all that, but necessarily where you even get to be unable to interpret the law correctly. Surely it is not just misconduct; it also gets to be an issue of incompetence. So I’m just saying I take it that the point has been raised just for us to know that at a point when we get the final draft, that cleansing would have been done, so that it’s justified. For that reason, I would agree. So that we move to the next point. Thank you, Chair.

Chairperson: Thank you, Hon Maneli. There's no other hand, let’s therefore move. Are you happy Ms Ebrahim?

Ms Ebrahim: Yes, Chair. That's in order.

Charge 4: Misconduct and/or incompetence
Chairperson: Thank you. And then there would have been the... as you mentioned, linked to that the Tshidi matter. And then you go to 4, which is a discussion we had where we had named individuals, and Members would have pronounced on each of those. We had a bit of a good discussion and some debate on 10.1, and then I think the team would have taken up those notes where Members would have differentiated between either this being harassment or victimisation and so on. But I want to put that to you as well, whether you in regard to those issues we discussed, in relation to the report on the Independent Panel on some of them, what your view would be. Hon Nkosi?

Mr Nkosi: Chair, I would say that we sustain that. Firstly, I want to bring in an issue I raised during the day, on different evidence given to the Committee, particularly by, I think, the doctor in the Western Cape...

Chairperson: Mr Lamula?

Mr Nkosi: Yeah, Mr Lamula. Yeah, Chair. I think that he presented quite a cogent different point in support of the PP, but that measured against the... I don’t want to use the word “overwhelming”, but the substantive and cogent evidence of all the others. It doesn’t measure. Secondly, he was very remotely related to head office as indicated and would therefore not have been in the core face of the atmosphere of head office. So he's not like there in the action and in the atmosphere of this constant pressure that is applied to people and the audis that are issued to people... in an unreasonable manner. I think that even though he thinks that the PP is a good person, which he thinks so, I think the experience and the lived experience of these others is quite different. And that will go to the other person, I can’t remember the surname, the other witness... but the issues are sustained.

Chairperson: Thank you, Hon Nkosi. Any other Member? Hon Maneli?

Mr Maneli: Thank you, Chair. Firstly, I agree on the part of noting those that would have been speaking for the PP. As well as the fact that there may be those, particularly if you were to take Madiba, took a different angle there. So I would want that when that report, I think that’s a proposal, that that is also captured, because we had agreed to take them one by one, even though there’re put in the charge as listed collectively. I think for me that’s important, so that in endorsing...

Chairperson: Just repeat. Just repeat that. Who are those?

Mr Maneli: The point I'm making, Chair, is that you have a list there of people from Mr Samuel and so on. I'm just saying that we have made... we have expressed a view individually on those. And that is why you would have others where we can’t express a view as the outcome of this Committee deliberation. So I’m just saying that in the final report, I take it that it will be understood that not making or expressing a view on those that we have indicated does not remove the fact that we agree with the charge. Thank you.

Chairperson: Okay, I get you... I was just looking at those names. Okay, it’s fine. Thank you, Hon Maneli. Any other Member? None? Ms Ebrahim any comment?

Ms Ebrahim: No. That's it. Thank you, Chair.

Chairperson: I’m just checking if you’re still there. Okay. Thank you. I think the others are fresh, we’ve just done them, which is your CR17 and the SARS. Again, just to go back to you Members, in relation to Independent Panel, what your views are. Do we sustain?

Mr Nkosi: Chair, in relation to SARS, we sustain, I propose. In relation to Bosasa, we sustain, I propose. In relation to AGO, I propose we sustain.

Chairperson: Alright. Thank you, Hon Nkosi. Any other Member?

Mr Maneli: I’m covered, Chair. Thank you... Yes, Chair. I'm saying I support, Chair. So I’m covered on the point. So I don’t want to repeat.

Chairperson: Thank you.

Mr Nqola: Supported, Chair. Supported.

Chairperson: Thank you, Hon Nqola. Is there any dissenting view? Or a differing view? Hon Mileham, is that a dissenting view?

Mr Mileham: No, Chair.

Chairperson: Okay, I thought you had your hand up. I saw wrongly, so thank you.

Ms Siwela: I support, Chair.

Chairperson: Thank you. Thank you. Am I missing out anything further Ms Ebrahim?

Ms Ebrahim: No, Chair...

Chairperson: Maybe just a small point to inquire from Members, so there’s also the issue of the party with Mr Zwane. Do we have any evidence there to indicate that the PP would have intentionally done what is reported there? Hon Maneli?

Mr Maneli: Thank you, Chair. I would want to persuade the Committee not to sustain that issue and exonerate the suspended PP on that matter. And my view is quite simple, Chair, is that we didn’t get Mr Zwane giving any version to the Committee itself. And if he came with a guest, like it was in the passage, it’s also just un-African to just say... So all I’m saying is that I think the relationship would have been understood to be professional, that it being a social gathering you’ll also keep your professionalism in that regard. So exonerate on that one. I'm not sure if you’ll go to this last point we’re discussing, Chair? Where we also talked to the GEMS one.

Chairperson: Go there.

Mr Maneli: Yes. I think also on the GEMS one, so that we are consistent, that there’s no change of view at this point. It's also not to express a view there, but of course noting that it may have been a point that has been looked at either by courts, but also the panel, but it has not really been engaged in the Committee. Hence, no expression. So that no expression does not erase that from information available, yes, there may have been those findings by other bodies. Thank you.

Chairperson: Thank you, Hon Maneli. Any other Member? No further comments?

Ms Siwela: I support Hon Maneli that we be consistent.

Chairperson: Okay, thank you Hon Siwela. Any dissenting view? None. Thank you. Any last point, Ms Ebrahim?

Ms Ebrahim: Chair, we’ll take the time to put everything together in the draft report, but that is where Members will really need to apply their mind and make sure that we’ve captured everything correctly. Of course, we’re going to use all the evidence that was before the Committee vis-a-vis the charges and the standards of conduct that I took the Committee through yesterday.

Chairperson: Okay, thanks for that. Just to... as we wrap up Hon Members, before I thank you, just to indicate that we have the intentions, so I need to still negotiate that with the team, so I don’t put them under too much pressure, because what we’re interested in is the quality of our report. I was hoping to give you that timeline now, but not in a position, but we’ll communicate that with you. The intention is for us to have that sign-off meeting for that report, and we’re looking at coming Friday, but it looks to be tight given that we were working today. It would have been good if we were working only on Friday. So it will be between that day or maybe the next Monday, because we want to make sure that when we go to that meeting, you would have applied your mind to the report. And when we get to the meeting, we’re able to have a flow of your commentary and your agreement on the issues that are emanating from your own discussion over the last two days, Friday up until quarter past eight, and today at the time now is just after six, having started from nine o’ clock. So that would be that meeting, which I call a sign-off of the report. We're also looking at having a separate day after that, where we’re having a meeting... because remember after we did the sign-off, we’re going to give the PP the last audi to comment on that report, as would have been in our terms of reference and the directives and our programme. The matter was expressed on Friday that we must maintain and keep that regardless of whether she takes the opportunity or not take the opportunity. We also looking at therefore, maybe we can combine when we receive the response or non-responses to do what we thinking as the reflections and lessons meeting, where some of the issues that have been raised here that are not having a direct correlation with the report, but getting to the realm of the kind of lessons we’re drawing out of our process, so that it benefits the next and future endeavours, it benefits the National Assembly. We need to have a dedicated meeting for that, which is not mixed with the report. The report has got to be very precise on the issues that are within our mandate and as well as the motion. So that’s part of the thinking. So basically, after today, budget for additional two to three meetings to close shops properly. But they would not be as heavy as this one. You've done the difficult work. You have sacrificed, you've maintained a discipline. Today, every time I checked you would have maintained quorum throughout the day on a Sunday, having started at nine. Truly committed to your cause of the oath you’ve taken as a parliamentarian, and the work that you’ve done under very difficult circumstances and conditions. But just to encourage Members, to indicate that we're almost there in terms of our work. We're going to be doing our work with the team in order to make sure that the ideas, the interactions, the interventions you’ve made are reflective of the report that you would have produced yourself. I wanted to make that point before I close the meeting. Hon Sukers, I see your hand.

Ms Sukers: Chair, no. I think I must possibly be out of step now, because I've just wanted to add general comments, but I think you’ve already advanced to the point of closing the meeting.

Chairperson: Those comments will still be accommodated when we meet again. So they're not forbidden. Thank you, Hon Sukers. Any last word from the evidence leaders?

Adv Bawa: No, Chair.

Ms Ebrahim: Nothing on my side.

Chairperson: Okay. Adv Mayosi?

Adv Mayosi: No, Chair. No last words from me.

Chairperson: That’s fine... Thank you. Hon Members, if there’s nothing else you want to raise or comment, we are going to be thanking you for really staying laser focused on this work. And you have given us further work with the team to go and produce a quality report on your behalf. So thank you very much. The time is twenty-two minutes past six. And please go watch netball, the Proteas against Jamaica, before it concludes. Thank you very much, the meeting is adjourned.

Meeting adjourned.