PP Inquiry day 58: Prof Madonsela appearance: discussion; Rodney Mataboge

Committee on Section 194 Enquiry

01 March 2023
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary

Video

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

The Section 194 Committee was to meet on a hybrid platform to hear the evidence of former Public Protector, Prof Thuli Madonsela, on Day 58. The programme did not follow the intended agenda despite her presence as there was an intense discussion all morning on whether or not she should testify. The Committee ultimately decided that she would not testify but it would accept her written affidavit. The afternoon session was the cross-examination of Senior Investigator Rodney Mataboge and an extensive examination of the minority judgement in the case of Public Protector v President of Republic of South Africa and Others.

Prior to the swearing-in of the intended witness for the day, the Public Protector's legal team, assured the Committee that it was not stopping the swearing-in of the witness but had watched the Committee meeting of the previous day with a great deal of pain owing to some of the things said about the Public Protector. It was unfair of the Committee to meet without the Public Protector present  because the Committee should understand the slogan of “Nothing about us without us”. The legal team had objected because the seven-day rule had not been observed in the submission of the former Public Protector’s affidavit and requested that Days 58 and 59 be set aside for the completion of the engagement with previous witness, Mr Mataboge. It was suggested that the examination of the former Public Protector could take place the following week. There was a variety of other issues pertaining to her statement, which had not been deposed by the Public Protector’s team. Although she had been called as a witness by the PP legal team which had also requested the Committee to subpoena her, the team asserted that it could not lead her evidence as the team had not deposed her. The team also stated that it was unhappy that the statement addressed only two issues, the CIEX report and the Vrede Dairy case. They wished to engage with her on several issues that had been raised by witnesses during the inquiry.

The Evidence Leader was unwilling to lead the witness as she had not called Prof Madonsela and did not see her relevance to the inquiry; she would therefore have no questions for her. The Committee discussed the matter at some length, ultimately deciding to admit the witness’s written statement into evidence. The  Public Protector’s legal team did not agree with the decision and informed the Chairperson that action would follow in that regard.

The latter part of the day saw the Public Protector’s legal team engaging with a witness who had been led by the evidence leader the previous week, Mr Mataboge. The witness had been called to respond to questions on four PP reports: CR17 Bosasa Report and judgments, Rogue Unit judgment and report, Vrede 2 and the Pillay pension matter. Previously the PP legal team restricted questions to the Bosasa CR17 matter and the Constitutional Court judgement. In this session, questions put to the witness addressed the accusations of a vendetta against the President versus the identification of a transgression by the President of the Executive Members Ethics Act as well as if it was the function of the Public Protector’s Office to find people guilty or to refer such cases to the appropriate law enforcement agencies. The PP legal team focused on the details of the CR17 case before examining the minority judgment of Chief Justice Mogoeng in detail, suggesting that the majority judgment had not understood the matter.

Meeting report

Chairperson: Let me welcome the Members of this inquiry. I recognise and welcome the Public Protector and her legal team led by veteran Adv Mpofu and the evidence leaders, led by Adv Bawa, members of the media, the entire support staff and last but not least, the members of the public on the various platforms. You are all welcome on this day, the first of March 2023, as we continue with our work of inquiry. Mr Holomisa can you hear us?

Mr Holomisa: Yes, I can hear you. The papers for court on 28 March … We are preparing for a case on load-shedding where we are challenging Eskom.

Chairperson: That is understood. So that is a court date. Thank you so much. We are about to start proceedings. I am going to recognise Ms Fatima Ebrahim;  before that I see Adv Mpofu.

Adv Mpofu: Assuming that we are about to swear in the witness, there is something I want to raise before the witness begins. It will happen. We are not stopping the swearing in of the witness. But we  do not want to interpose the issue. We received your letter - I do not know what time but sometime overnight yesterday - and  after that then we also had occasion to watch the proceedings from yesterday and therefore we have been instructed to respond to both the letter and those proceedings. Both the letter and the proceedings were received with a lot of pain by our client when watching what was being said about her in the YouTube  broadcast of the meeting from which we were, once again, excluded from the discussions. And so we were helpless as we watched the rules of the Committee and the directives being violated, left, right and centre. That is why we wanted this opportunity to respond to some of the things that have been said about the Public Protector and her team because it looks, to her, that the slogan “Nothing about us without us” does not apply because she has been discussed in her absence, and without her input, and all sorts of conclusions have been made about her, which  violated her rights as a citizen, because this is her Parliament as much as it is mine or anybody else's. She should have been allowed to participate, not so much as the subject matter of this Committee but as a person. One of the issues I wondered as all the issues that were raised both in your letter and then the meeting, except the ones that are pertinent for now for this witness. I  wanted to indicate that you effectively ruled that the seven day rule does not apply. Or if it does, you said you would have to relax it and we will address that matter more squarely after the evidence of Ms Madonsela when we have to react to it. Because we, firstly, do not agree that the seven-day rule does not apply. We are also do not agree that any good cause has been shown to relax it. And, in any event, in our view, even if that rule does not apply, then the rules are clear as to what should happen in other exceptional circumstances. But, if you allow me to kind of park that issue, as I say, because we do not want to delay your programme,

Chairperson: You can indicate how many minutes you need for now, so that I do not panic.

Adv Mpofu: Do not panic. I'll need 30 minutes, maybe 20 minutes, from now. I'll try and get to the end. That is why I am doing it like this, parking certain things so that they can be discussed at the right time. So that is the first thing. The second thing is that you personally said that the reason there was the delay in this statement of Adv Prof Madonsela was because of delays which were caused by the Public Protector and her team. We  want to demonstrate that nothing is further from the truth. And if you allow me, instead of reading from the letters, to paraphrase so unless it is something specific. As you know, in November and December, we made an application for Adv Prof Madonsela  to be called as a witness for the Public Protector. We outlined the areas where we needed her assistance in a letter dated the 14th of November 2022 and another one dated 13 December 2022. What happened was that the Committee ruled that the application would be successful. But it happened, without the knowledge of the Committee, that she had written a letter objecting to this and other points about relevance. And at that point, the Committee then basically hijacked our witness to be the witness of the Committee. That was fine; we didn't complain much because the witness was going to be called in March anyway. But in that process of hijacking the witness, the scope of what we had required was narrowed. That was fine - even that we thought we could live with because we would get, maybe not everything but, at least, some of it. But you then blamed the Public Protector when the former Public Protector wrongly blamed us for having “forbidden” the evidence leaders to consult with her, which we had not done, and in fairness to the former Public Protector, she apologised in her subsequent letter for blaming us when the Secretariat clarified the issue. We accepted the apology of the former Public Protector in that regard. We had simply said that since originally she was called by us, we would like to consult with her but, as you know, we cannot force her to consent. So, she elected not to consult because she wanted only to consult with the evidence leaders. She said there was a tradition to that effect -  we explained that that tradition did not apply here. This is an unprecedented process. It has its own rules.

Adv Mpofu: Then she wrote to us and said that the Committee had confined her evidence only to CIEX and we must indicate any other areas in which we were interested. That was about two weeks ago. We assisted her and that is what you are blaming us for. We wrote back at her invitation because she had said that she was only asked to deal with CIEX. If we had any other areas, we should please indicate. We said that, firstly, it was not just CIEX that the Committee had indicated but CIEX and Vrede Dairy. We said, in addition, and in response to her invitation, that there were other areas that we were interested in, seeing that she did not want to consult effectively - I am paraphrasing again - and we listed those areas - remember all the issues that were raised where she was specifically mentioned. So we listed those areas. We even said in that letter, as a matter of courtesy, that we wanted to indicate that there was something called seven days, so please, if she were going to be testifying on the first of March, her statement would be expected on 22 February. She then asked for an extension, which you granted and the statement  was received on the Friday, and another on the Saturday, 25 February. So how that becomes the fault of the Public Protector or her team, when all we did was to respond to the invitation by the former Public Protector to indicate what other areas were required, I do not know but the  comments were not only hurtful, but also gratuitous. So that is how that delay happened. And therefore, we could not benefit from the seven day rule. We could not even benefit from the other rule that allows us to prepare. That I will explain later, probably in the afternoon. And it was being portrayed yesterday as if the Public Protector does not want the witness. How could she not want the witness to testify when she is the one who called the witness to the stand before the witness was hijacked by the Committee? So that is another completely unfair accusation against the Public Protector.

Adv Mpofu: Then, Chairperson, you also went on to say yesterday that we had caused a double delay. We are proposing that Mr Mataboge must be subjected to some double delay because of further deferment, but it was completely unfair accusation as well, because actually what we were proposing was the first of March for Mr Mataboge. My concern was to bring him forward. So we are not proposing any delay until Friday. We had asked for two things. We said please bring him forward, making it earlier, not later, and call him on the first and second, which is today and tomorrow. So how that becomes a double delay, I do not know. And the second thing we asked for was to say that we think that we will need him for two days rather than one day. And that was not even addressed in the meeting. And the reason for that request is not because we want to delay, obviously, because we wanted to bring this forward, not to delay matters. The reason for asking for a longer time is  simple: Mr Mataboge was booked for a day but we even struggled to deal with Ms Mvuyane in one day and she was only testifying about the rogue unit report. Mr Mataboge is testifying about the rogue unit report and three other reports: CR17 Bosasa, Vrede and Pillay. From the experience of Monday, it was clear that we are not going to be able to do it in one day if we couldn't fit Ms Mvuyane in one day when she was only dealing with one report. I am going to need more time to complete my points. Not much, much but there is the second thing that you said in the meeting and again, because we were excluded from the meeting, we couldn't correct you or even make that request clear. So, it was in that context that I wanted Mr Mataboge  to move to the first and second, because we would have been bringing him forward, and also catering for the two day request. You allowed yourself, once again, to be misled by the legal services or the Secretariat, or whatever they are.

Adv Mpofu: When we raised the issue of the other witnesses that we had listed, we said: These are the witnesses that we intend to call – they are in three categories. 1. These are the witnesses we intend to call; 2. these are the witnesses that we would ask you to subpoena. Then the other witnesses, we asked for you to recall. And you told us that you had discussed the matter in October, and there was no need to revisit it. But that misses the point completely.

Chairperson: You did say we will stay on issues relating to this witness.

Adv Mpofu: No, no, I am. Okay, fine. Let me flag this one. The point was missed there - we do not have to be told that the issue was dealt with in October, or that it is part of the litigation. We know that we are in litigation. What we were saying to you was, that due to the evidence that has now arisen, for example, Ms Mvuyane has placed Mr Mataboge  squarely at the centre of this matter. Due to that, we were asking you to make a fresh decision on that point.

Chairperson: You indicated correctly at the beginning, that you would look at your time and park other issues.

Adv Mpofu: You get the point. But I am parking issues, but it is important to put the matter into that perspective of where we were coming from with that letter,  so that you know that we are not crazy. We know that you made a determination in October, we know that you made another one in November or whatever. However, we were raising it due to the obvious need for those witnesses. If you are fair, you would reconsider and say that maybe it was the correct ruling at that time but not now so could we not call those witnesses? And then come to a decision. You could have come to any decision, yes or no, it does not matter. But to refuse to entertain the issue because you made the decision on October is unacceptable. Completely.

Adv Mpofu: To deal with the specific issues to do with this witness – but you know that the level of prejudice and bias against the Public Protector, which is difficult to stomach - was supposed to come here today and tomorrow. Monday and Tuesday are not even scheduled days for this Commission of Inquiry. And we would have had the opportunity, even if the statement was late, to prepare on Monday and Tuesday, according to the original plan, but the Public Protector did, of her own volition, make the effort to meet the Committee halfway and to meet the request of the of the evidence leader that had agreed to depose Ms Mvuyane for Monday and Tuesday. That was not the plan. I do not have to go through the history, you know the fact that she did not want to make a statement and so on. And we then compromised. That was fine and the programme was not affected. It was then decided to introduce Ms Mvuyane on Monday, and as a result of that, Chairperson, the time we should have used to prepare for this witness was then used to assist the Committee in its programme. But no, that is the fault of the Public Protector! She is the cause of all the delays, and she has the cause of the legal team seeking time to prepare for the next witness. The unfairness in this is that you and your Committee are fixated with the rigidity of the programme. Yesterday, one listened with pain on YouTube, to Member after Member saying, “No, we cannot grant this request of the Public Protector to give time.” Why? Nobody mentioned the Public Protector. Nobody mentioned the issue of fairness. No. It is all about the many Committees that Members sit on.

Adv Mpofu: So, the Committee has a programme, and Members have a lot of responsibilities but the person to whom you owe a duty of fidelity is not even mentioned; it is all about you and your programmes and the Committees and your business. And you say that we are not making a reasonable request, having been denied an opportunity to prepare because we are accommodating your Committee. Can we not basically swap the witnesses? I am not saying postpone. We are not saying anything but asking to swap the witnesses and accommodate us. That is the objection that we raised and to now blame the victim and the person who's been trying to assist you with your programme, and even assist the witness, is  unpalatable. The letter I was referring to chair is that of  23 February 2023 that is from Professor Madonsela to us. And paragraph 3(f) of that letter is where it talks about whether evidence leaders are forbidden to assist her and so on. We had to show it to be false that our team has ever forbidden evidence leaders from assisting you with a statement and we asked her to indicate to us who had advised her of that. However, she says she concedes that she may have misunderstood why her plan to be assisted by the evidence leaders on Monday 20 February was scrapped. She apologised for communicating her misunderstanding and retracted that statement. And as I say, we accept both the retraction and apology. But what we do not accept is to be insulted as if it was our fault. And that therefore is the genesis of the delay and why the statement came on Saturday. In relation to the other issues that we did raise, and this is pertinent to what I am going to say in relation to the issues that we did raise to her, outside of Vrede and CIEX, she then asked a series of questions and we responded that we were not going to answer. There is no point in having the Committee writing letters up and up. We will ask whatever questions we have and she will answer them, or if she has not clear, she will answer them in Committee so that you can rule whether our questions have to be answered. And  that is where we left that issue.

Adv Mpofu: There are extra issues, but those are the pertinent issues, not even that it is a pertinent issue that we may have been  denied an opportunity to prepare because the thing came on Saturday and on Sunday we were travelling and preparing for Ms Mvuyane and the last two days. Chairperson, I am now told that there is a new statement that has just arrived electronically. It is an amended, detailed statement of Professor Madonsela that arrived whilst I was talking to you. I have not even seen it yet. So, it is those issues that were not raised for consideration by the Committee. At least those that deal with this witness’s issues. We are putting them in context so that you can deal with them in the Committee at another time. The issue is about witnesses, and, but we demand to be given a response on those issues, positive or negative, rather than the matter being brushed aside as an October issue. But as far as this witness is concerned, what we are requesting you to do is to consider the history that we have placed on the record and, at the appropriate time, to address you on our interpretation of the directives. And let me say this,  so that I am clear. It is if we have no objection, subject to this thing of the new statement. I'll ask for five minutes, maybe  more,  to consult on that new statement, but subject to that, at least when I came here this morning, we had no objection to Adv Prof Madonsela  being led. As to what happens when our time comes to question her is a matter that I will say a lot about at that point. But now, maybe we are done - if you have the new statement. Nine pages it is, so maybe that 10 minutes might not be enough.

Chairperson: Yes, I need to indicate that we will need time to look at it because I have not had a chance to look at it either.

Adv Mpofu: Can we then adjourn and when we come back, we can then address it for a few minutes one way or the other? And it is fair that the colleagues have a look at the new statement because it might make everything I have said academic.

Chairperson: I am giving you more time than you asked for. We will reconvene in 30 minutes. That is only fair.

Adv Bawa: Can I  ask for clarification that this is the addition that Adv Mpofu was going to need?

Chairperson: I am going to…

Adv Mpofu: So that we do not waste your time once we come back, the impression gained from what the evidence leader said is again blaming the victim of the hijacking. Once the witness was taken over by the Committee, then the rules were very clear that such a witness is led by evidence leader and we wanted originally to consult with the witness so that we could lead, but who can lead someone who has consulted someone else?

Chairperson: You have answered the question.

Adv Bawa: The witness was not taken over by the Committee. Adv Mpofu asked for the witness to be subpoenaed. The Committee agreed to accede to Adv Mpofu’s request for the witness to be subpoenaed. In the course of that process, the witness said we do not have to issue a subpoena as she would come willingly, pursuant to the request for her to come. We did not consult with her because she was the Public Protector’s witness.

Adv Mpofu: I am sorry, maybe Adv Bawa does not have access to YouTube. Yesterday every Member said that Adv Prof Madonsela was their witness and they had called her and therefore the other rule did not apply. Whatever, but no, it is fine. We will address that as well during the break

Chairperson: No before we come back, we must resolve the matter of Adv Prof Madonsela because I can see that she has now become an orphan. Even before she takes the stand I will  for as an apology to everybody, including our witness, who will be introduced after the delay when we make an actual start. We will take a break now.

Chairperson: We had an extended break and I hope that it has assisted us. We now need to outline what happens next and I want Members to interact on this matter, just having listened to the presentation by the Public Protector’s legal team, and to put upfront what we think should happen and then have Members engage with that and then we will conclude on it. The following issues are now placed before you for your decision, Members. You have heard and listened to the concerns that were raised by the Public Protector’s legal team which the Chair noted and welcomed, especially relating to the witness for the day. Advocate Prof Thulisile Nomkhosi Madonsela is her correct name.

Chairperson: We have already lost some time since 10 o'clock and there have been statements (from the witness) and I'll ask Ms Ebrahim (the Legal Advisor) to speak to that in terms of whether the amendments go as far as to change the substance or what the amendments are all about. But the first few issues I want Members to react to. Firstly, given all of those challenges, both those that were placed by the Public Protector’s legal team and the slight matter of the amended statement, the nature of which is going to be explained later, it would be proper, therefore, that we do not get to Adv Madonsela as a witness and her testimony stays over and not be done today or tomorrow. I have considered Saturday and Sunday when she would have been available but the Public Protector’s legal team have commitments, prior commitments, already and so the dates that we want to place here are the entire day on Monday, as well as half a day on Tuesday, meaning the 6 and 7 March are the days that we want to put to you. Secondly, we also propose that we use the time today and tomorrow, meaning that we do away with Friday this week. We would have Mr Mataboge today and tomorrow. Then there would have been an arrangement that next week, 7 March, I would have expected a statement from the Public Protector to be submitted to the Committee in preparation for the 15 March but he suggested that we give some leeway on that date and extend that date to 9 March for the submission of that statement, for Members to be ready for 15 March when we start the testimony with the Public Protector. We still have this issue with the statement, but I do want to also call upon Adv Mpofu to clarify one matter and indicate where they stand on it. We have a witness today who has been brought here at the request of the Public Protector who asked that the witness be subpoenaed and the Committee had acceded to that. Because he did take us through the issues with the witness, and he had used strong language, that is hijacking by us, which is not true. The witness remains the Public Protector’s witness and this is what I want you to confirm when I give you the chance. So, if you are saying we must adopt this witness, then we know what is happening. So that clarity will come from your side. Regarding the amended statement, I have not seen the statement as I was busy with other things. It is now nine pages and not four pages. Is that correct?

Ms Ebrahim: I think the confusion came in because the picture that was sent through contains the pictures of two affidavits - the one without changes and another one that has changes that are made by hand. There is still some further confusion, which I'll get to in a moment. But in terms of a change in the number of pages, it has not changed.

Chairperson: Okay. I shall not ask Adv Mpofu to retract and apologise. Now.

Adv Mpofu: Ms Ebrahim just explained.

Ms Ebrahim: In Adv Mpofu’s defence, we were all confused when it came in but, because we could scroll through it, we could see where the mistake came in. In terms of the changes made, they are purely grammatical or editorial-type changes. There are probably six or seven, but I'll give a few examples. So insertions of a full stop before Advocate Paul Hoffman’s name, insertion of the term “Advocate” and “Senior Counsel” at the end of his name, the use of the word “systems” instead of “system,” so it is very minor changes and nothing that affects the content. There is some confusion that I have requested Prof Madonsela to clarify for me in that changes were made on the version of 25 February, which was the version that was originally submitted to the Committee. But there appears to be another version without the changes, the content of which is exactly the same, which is dated 28 February. So I have not received that clarity, but in terms of the content, I can confirm that the content is not affected at all. They are just cosmetic changes.

Chairperson: I call on Adv Mpofu and thereafter we can invite the Members. Thank you.

Adv Mpofu: Firstly, we welcome your ruling about not proceeding with the witness today because the confusion is just immense. And if it makes you feel better, I retract and apologise for saying nine pages. But that is part of the confusion that was created by the nine pages we received while I was talking to you. There are nine pages which include the old statement and a new statement. And it is worse than the question of the new statement. Either there must be a completely new statement so that we do not have to have this kind of technical debate or something. Because what is happening now is not just confusing, it is probably illegal because not only has Professor Madonsela changed her statement, but there are now three versions of the statement. Version one is the one that you and I received on the 25th, which had some handwritten changes. Version two has those changes by hand that Ms  Ebrahim spoke about, but without changing the date so we do not know when that version was done. Version three is the one that arrived this morning, which was commissioned yesterday and that makes it even worse as it seems that version three is the typed copy of version two. But there is something fundamentally wrong and possibly illegal about that because that version says it was signed in Stellenbosch but it was commissioned in North Riding, which is a physical impossibility. So if someone has broken the law, maybe the Commissioner of Oaths, I am saying that those issues must be clarified with the witness and, if necessary, with the Commissioner of Oaths or the police. That issue will then take its own course. Now coming to the issue, again, in welcoming your ruling, hopefully after that break, we'll get Prof Madonsela sorted out and determine who is going to call her first and so on. We probably will not be able to resolve that today.

Chairperson: But I want it clarified before we leave here.

Adv Mpofu: I appreciate that. We do not come back and then be caught up in technicalities. I am also raising it in that spirit. Now, the issue is this. At least I can understand how the confusion has arisen. And I will refrain from using the word “hijack.” I think what happened is that, as I said earlier, we requisitioned the witness and you, as the Committee in a sense, adopted the witness and then changed the scope in the process. At least that was our reading of it - whether it is correct or not is another matter. Then the witness, unfortunately, caused even more confusion. Because you said in one of your letters, the letter dated 9 February 2023, that she should approach the evidence leaders for assistance. You said that if the witness should require the assistance of the evidence leaders to prepare her statement, she was to kindly contact Committee Secretary Mr Thembinkosi Ngoma, no later than close of business on the 18th, and so on. You added that the evidence leaders were extremely busy at the time. So, let us assume everyone was acting in good faith. I think that what happened was that the witness, because of what you said, then elected or accepted that she would be assisted by the evidence leaders. So, when we wrote to her, still thinking that she was our witness, to ask her to consult with us. She said she wanted to consult with the evidence leaders. But that was fine. Ultimately, she did not consult with the evidence leaders or with us; she chose to prepare an independent statement. And I think this is a result of that, without apportioning blame to anyone, because one of the results of that is this mess now of the statements. Quite frankly, whether it was the evidence leaders or us, we are professionally trained and we do this every day so the statement would have been done properly, either by us or by them. You know that as you have seen our statements, from both sides. So she deprived herself of that opportunity and that was why we had the delays and the statement came on a Saturday, and so on. But again, I am assuming she was legally advised and acting in good faith. But all that has now landed us in this mess that we are in where, quite frankly, there is no statement before this Committee, because this one is not an affidavit because of the technical legalities. So again, I am hoping that will be sorted out amicably between us as colleagues and we find a way out of that little hole. I want to address the issue of when the witness does come back. We are okay on Monday but I think we have a problem with Tuesday. Again, those were not sitting days, but the most important thing, even if we managed to make a plan, and we'll talk to you offline about the Tuesday thing, is the issue of the Public Protector’s statement because it is the real reason we were so nice and accommodating about this week. We need the time to do the Public Protector’s statement, obviously incorporating the evidence that would have come from Ms Mvuyane, Mr Mataboge and the former Public Protector. I can tell you now it is going to be physically impossible to do all that in one day. I know you like your programme, but we are going to need to find some way of accommodating that.

Adv Mpofu: So that is the practical difficulty. There was even talk of doing it over the weekend. And maybe we'll have that discussion with the evidence leaders and see which can be suitable. Assuming again that today's programme will remain intact. As far as Mr Mataboge is concerned, in all fairness, as much as we wanted to assist the Committee there must be a realisation that we are also human and we cannot be made to work like this. We suggested to you, very kindly yesterday, we wrote a letter asking to have Mr  Mataboge here today and tomorrow. You rejected that and insulted us in the process and accused us of wanting to cause a delay when we wanted to bring him forward. As a result of that, we obviously then stopped our preparations for Mr Mataboge. Even that suggestion to do him the following day was a major sacrifice on our part because we were going to have to work overnight to prepare for him. We did not do that because you rejected our proposal. Now, we are here and now you want to tell us 11:45 that must do Mr Mataboge in an hour. I do not know what to call it. I understand where you are coming from: you are also trying to accommodate us because we said we might need extra time from Mr Mataboge. That I appreciate, but to do it like this, is a bit insensitive.

Chairperson: If you can try and wrap up.

Adv Mpofu: I'll consult with my team and see if we can do anything with Mr Mataboge today, even if it means finishing him later on, or whatever, but it cannot be imposed on us. I think we can be requested to try and accommodate him. And we will, given the fact that we would have been busy with him now if you had listened to us yesterday. So the 6 and 7 March is a problem. The Public Protector’s statement obviously gets affected. And regarding the Madonsela issue, I am putting it back in your hands. But I am afraid it is not something that you can impose on us. We will try and accommodate where we can.

Chairperson: Just finally, an indication from you: are you leading Professor Madonsela, or not?

Adv Mpofu: No, no, no, we are not. She can remain where she is. She said that she preferred to deal with the evidence leaders, so they can have. And yesterday, the Members claimed that she was the Committee witness.

Chairperson: Okay, you have answered my question. Thank you, Adv Mpofu. Maybe just before I give it to Members, just to clarify and correct two things. I summarised yesterday's discussions of the Committee, and this point about the witness being the Committee witness was not part of that summary. So I really do not know where that came from. Secondly, you made the point that you were excluded but I indicated that the Committee was having its discussion and that people everywhere were free to join via YouTube or whatever channel, but it was a Committee meeting for the Members to discuss their in-house issues and nobody who was not a member would participate. So, there was no exclusion from our side. Ms Ebrahim.

Ms Ebrahim: Allow me to give some clarity on the question that I raised with Professor Madonsela before Members come, so we do not waste time on that. There was an issue that the affidavit that was dated yesterday, as Adv Mpofu said, and it stated Stellenbosch as the place of signature but then stated that the Commissioner of Oaths was based in North Riding, which is in Gauteng as I understand it. I have now clarified with Prof. Madonsela that, in fact, she was with the Commissioner of Oaths yesterday, in his presence and had signed. North Riding is his business address. Chairperson, I have just checked the regulations relating to the Justices of the Peace and Commissioners of Oaths Act and it says that below the deponent’s signature, or mark, the Commissioner of Oath shall certify that the deponent has acknowledged that he knows and understands the content of the declaration and he shall state the manner, place and date of taking the declaration and then the Commissioner’s full name and business address must be stated below. Prof Madonsela confirmed that the address is his business address. So that clarifies that confusion.

Adv Bawa: I think the issue with the evidence leaders and Prof Madonsela needs to be cleared up. We had initially been asked to assist with Professor Madonsela’s statement. We then had a backroom meeting on the 10th, which was the day after the letter had gone off. Certainly, the evidence-leading team and I have not listened to the recording at all, but we had left that meeting with a clear understanding that Professor Madonsela was the Public Protector’s witness. We assisted them by providing the contact details for them to make contact with Professor Madonsela to arrange a consultation. That was after that letter went out and that is why, although we had scheduled a meeting with Professor Madonsela for the following week, we stepped back to avoid any accusations or inferences that we were seeking to interfere with the evidence of the Public Protector. Adv Mpofu, please do not interrupt. I do not interrupt when you are speaking and you can at least have the courtesy to not interject when I am doing so.

Adv Mpofu: I'll just apologise.

Adv Bawa: So certainly, from the evidence leading side, we had certainly not contemplated that Professor Madonsela was a witness that we had brought to the Committee for two specific reasons: the Committee had entertained bringing Prof Madonsela as a witness at the behest of the Public Protector’s legal team. We had previously, when I did inquiries into witnesses in May and June (2022), before the Committee commenced, met with Prof Madonsela and made our assessment as to whether she was a witness whose evidence would be of assistance to this Committee in determining the issues on the motion. And on the basis of evaluating what other witnesses we had, we decided that we did not need to ascertain from her what she knew about Vrede and CIEX as we could get that from witnesses who would be called in respect of that and other matters. We certainly did not take the view that we needed to put evidence before the Committee of more than one person saying the same thing. That is a waste of time and defeats the purpose. If the Committee had said to us that Prof Madonsela was the witness that Members wanted to hear from, then we would have gone out and done that. But it was based on our interaction in the backroom when it was made clear to us that she was the Public Protector’s witness. Whether she wanted to consult with the Public Protector’s legal team and whether she wanted them to do a statement, is the witness's choice. I was never told by the Chairperson or the Committee that this was somebody the Committee really wanted to hear from and I should go and get a statement as I did when a name came up in the Committee. For example, over and above the list that we have put up, we have explained why we have not called certain persons after we have endeavoured to see whether there was any relevance to the motion. And that is an important fact because as evidence leader, and where we stand now, I am still not convinced of the relevance of Prof Madonsela’s evidence to this inquiry, even based on the current statement, there must be some clarity because if you are going to say that I must lead evidence, then I am going to say to the Committee that I do not see any reason she should be called for oral evidence. There was an arrangement made with us and the Public Protector’s legal team in respect of the Public Protector’s written statement. We had worked out a schedule and that the proceedings would be done by Thursday – we are a day late - and the statement would be provided by next Wednesday, for them to have had the Friday, the Monday and the Tuesday for purposes of finalising the statement. The statement was then going to come on 7 March for the Public Protector to commence evidence on 15 March on the understanding that Adv Mpofu would take a day off next week to prepare for his hearings on the 13th. So I am taken aback, given that the understanding was that they would be busy with the Public Protector’s statement on 6 and 7 March for purposes of submitting that to the Committee on 7 March, that the Public Protector’s team is now unavailable for a hearing on the 7th.

Chairperson: I think the Committee should deliberate on this, which should not be a problem.

Adv Mpofu: Apart from the unfortunate remark that was made towards the end, he had not said that the team was not available. I said we have a problem on the 7th and I will not get into details, but I did not say what is alleged. But even if I had said it, the point I am making, which I am hoping will not perplex Adv Bawa very much, is the fact that I said I was going to make a plan so I do not know why she is going on about that. But even assuming we do that, then we will be left with one day within which to draw up the statement, which is just completely unreasonable, even given the perplexed evidence leaders. The issue is that it is unfortunate that we have to do things like this. Advocate Bawa tells us that she does not even think Adv Madonsela has any relevance. The first time Adv Madonsela appeared on any witness list was on Adv Bawa’s witness list, which she gave us in July last year. I do not know why she was relevant in July last year and appeared on their list, and now suddenly she has become irrelevant. It is just completely disingenuous. So that is the first thing. The second thing was that it was not true that our meeting on the 10th negated the letter of the ninth because, in the letter of the ninth, you said the witness must contact the evidence leaders, presumably on some understanding with them. Advocate Bawa is quite correct that in the meeting, we willingly said that we were the people who had called her and therefore we would assume responsibility for her as we did with Ms Mvuyane and as we would do with any other witness that we have subpoenaed. I do not want to repeat what I have already said, but what then followed is the fact that the witness wanted to consult independently, probably following your letter. And I do not want to speculate on what was going on in her head but she wanted to consult with them. She wrote to us on 20 February, 10 days after the meeting that Adv Bawa was talking about and said: “Regarding my willingness to prepare a statement for the Committee, I am willing to do so and as indicated to the Committee would prefer to do so independently. It is my understanding that witnesses at an inquiry like witnesses in the Public Protector investigation are sourced to help to locate the truth, wherever it may be hiding and not embedded with any party. The tradition, as I understand it, is that the evidence leaders assist with the preparation of statements, which I presume, among other things, ensures the relevance and admissibility of evidence. Having been advised that your team has forbidden the evidence leaders from assisting me with my statements, I have decided to prepare the same on my own.”

Adv Mpofu: I explained that the statement was false. Prof Madonsela apologised and that is water under the bridge, so let us put that aside, but we cannot detract from the fact that 10 days after the meeting, the witness said she preferred to consult with them, or to go independently. Ultimately, she went “independently” with the results that we now know. And then she said that it appeared that she only needed to share what she knew about the CIEX investigation. We wrote back saying it was spelt “CIEX” and the Vrede Dairy Report. So, it was this letter of the 20th (February), which is only last week that this issue arose. We then wrote back saying if she wanted to go independent, that was fine, but she was reminded that there is a seven-day rule. I have already told you what happened next.

Chairperson: Adv Bawa.

Adv Bawa: I have a point of correction that I think is important in understanding the context of the evidence that is provided. As far as the witnesses are concerned, I think it is correct to say that the evidence leaders provided the list of witnesses on 1 July, on which Professor Madonsela’s name appeared, together with 28 other names, not all of whom were called. The preface to the witness list was as follows: This list is currently confidential and is only being provided to the legal representatives of Adv Mkhwebane. The evidence leaders seek to keep the identity of witnesses confidential until the evidence is provided to the Committee. If the evidence leaders determine that the written or oral testimony of a particular witness is not required for the proper assessment of the motion, they may decide to not call such person unless otherwise directed by the Committee to do so. The above witnesses may either be called to provide written or oral evidence or a combination of both. So I think that the presence of Prof Madonsela’s name on the evidence list was qualified.

Chairperson: Members, I have placed some issues on the table. Responses, please.

Mr B Nkosi (ANC): I think it is clear that we are facing the same dilemma we faced when we decided to issue the subpoena, on relevance. Remember that we were persuaded to issue a subpoena because of the belief that her evidence was going to be relevant to the issues on CIEX and whatever. And then we agreed to confine her evidence to those issues. But from what we hear now, from both sides, it is clear that nobody thinks that she is relevant, that her evidence is relevant. And I am prepared, as the Committee, to say we can take a decision not to call her. Because nobody wants to lead evidence, it is not relevant. If the evidence leader says she is not relevant and they do not want to lead it, then we do not need that evidence. We also said at the time that it was important that when we come to this witness, all other issues related to her evidence should be resolved and sorted out before she even appears. I agree with your summary and how you want it to appear. If the issue of the relevance of her evidence, including the statements and clarifications of the statement, is not resolved, either way, then we do not have to call Adv Madonsela. If it is resolved, we'll call her and then she will come and present. But if this issue is not resolved on whose behalf she is to appear, she may leave. In any case, we did not want to subpoena her.

Mr K Mileham (DA): I just want to address one issue and that is the fact that it was at the request of Adv Mkhwebane’s legal team that Professor Madonsela was subpoenaed. To put the burden on the evidence leaders to now lead that evidence is, frankly, in my opinion, unfair because they have not identified any evidence that they wish to ask for from the person called.

Ms D Dlakude (ANC): I want to fully agree with my colleagues. Professor Madonsela was subpoenaed because the Public Protector’s legal team wanted her to be subpoenaed to appear before the Committee. So now no one, neither the evidence leaders nor the Public Protector’s legal team,  wants the evidence. So as a Committee, I want to suggest that we adopt Professor Madonsela and that she addresses us as a Committee so that we can see what we'll get out of that because we want to understand the subpoena. So, if Advocate Professor Madonsela is available, then we will hear her evidence so that we can get clarity on those issues that they wanted from her. The CIEX and the Vrede Farm matter - we are interested to hear that. Concerning the statement. I think Ms Ebrahim said that the new statement does not change the content. It is only the cosmetics of it which, I understand, can be corrected. They must correct that matter and we must move forward. Then about Mr Mataboge appearing before the Committee, we discussed the matter yesterday, saying that we will have Mr Mataboge on Friday. Our understanding as a Committee is that you do not prepare at the last minute. We would have expected that the legal team will be ready. Maybe I took it for granted, but that is how we do things in Parliament. You know that you have three meetings tomorrow, so after the last meeting, you go home, refresh yourself and start preparing for those three meetings. So that is our expectation as a Committee.

Mr B Maneli (ANC): I want to start by agreeing with firstly, the summary made yesterday, which is still correct. Secondly, the summary of the discussions during the break, and the request for us as Members to still be prepared to hear the other witness, Mr Mataboge, who the Public Protector’s team said they would have asked to come even earlier as part of assisting the process. We needed to consider everything that is put before us, which is what we were doing during the break because it allows us then to review the positions that we have heard, like the Public Protector’s team would have liked to have continued with that witness, but they are unable to proceed in that regard, so they would have gone forward with Mr Mataboge, not just based on time, but, as I say, based on looking at whatever is presented to the Committee and applying our minds on that. Now, to the point of the witness to be sworn in. Unless I did not understand, the first thing is that the Committee did not come with this witness; we discussed the matter at the request of the Public Protector’s team and that discussion was meant to assist them to proceed. The Public Protector’s legal team makes it clear that they are not leading that witness anymore. She would be a witness if the evidence leaders took over, or the Committee, as discussed yesterday. That being the case, it would be correct to conclude that there would be no longer any reason to call this witness as those that you requested to have that witness are not interested in having that witness. If they were interested, it would be their witness to lead. So in this case, we do not have that witness and I would say, it is also not about the time, it is about matters as they are presented before us. The issue about time would be that in the event of that witness coming in on Monday, and Tuesday, it is taking away two extra days for preparation and  I am saying this without taking away the extra two days you said that you would give, i.e. to the ninth, so that there can be preparation in that regard. So I just thought I should agree with Mr Nkosi.

Mr X Nqola (ANC): This is not the first time we see the relevance of the evidence of Ms Madonsela. One would recall that, after having received the letter from Ms Madonsela, saying she does not believe that her evidence would be relevant to the work of the inquiry, the Committee discussed the relevance of her evidence. In that discussion by the Committee, we agreed that not only is the evidence that ought to be deposed by Adv Madonsela relevant but we also qualified it that the only evidence we require is on CIEX and Vrede Dairy. We have witnesses making serious allegations of altering information in reports, particularly in respect of the CIEX report and the Vrede Dairy Farm report. So, that forms part of the basis on which we said Advocate Madonsela still remains relevant to the work of this Committee. Now, we have said we are moving to find thematic areas where we think we'll be able to assess the work of the Committee, which in the main was Vrede and CIEX. The affidavit she deposed speaks to those particular reports. I doubt that her relevance has now diminished. I think Ms Dlakude is assisting us going forward. We, as the Committee, remain with a conviction that the evidence of Advocate Madonsela remains relevant and, therefore, we are willing to hear the evidence from Advocate Madonsela. We are taking a Committee decision here. I want to suggest that we take Advocate Madonsela as a Committee witness and that, therefore, means the evidence leaders are supposed to prepare the witness on our behalf. Now, if we check the programme adopted by the Committee, we are supposed to have the last day on Friday and then resume on the 15 March. So, the secretariat, the evidence leaders and the legal team of the Public Protector can find a suitable date between Friday and 15 March, whether they find one day or two, on which Advocate Madonsela can appear before the Committee. This is necessary because allegations have been made against Advocate Mkhwebane of having altered evidential material, particularly in those two reports. We'll need that kind of information to confirm or deny those allegations. I want to propose that we follow the proposal that the evidence leaders prepare Adv Madonsela for Members of the Committee. We cannot dismiss evidence.

Ms M Sukers (ACDP): I am in support of what was said by Mr Maneli as well as by Mr Nkosi. The context is important; the context is that the previous Public Protector was going to testify or bring evidence needed by the Public Protector’s legal team. Now, we have this situation where first we had the request for the witnesses to be changed for today and tomorrow and it is my view we discussed Adv Madonsela only because The Public Protector requested that she appear as a witness. So I just want to support the view that, if the witness is no longer owned or needed by the Public Protector’s legal team, then as a Committee, we proceed with the next witness that is before us. I have a different view on time; I think time is important. Time is having an impact on the work of the Committee in such that if you have Members who have other responsibilities as well, we need to understand the impact not only on the witnesses but on the Committee as well. So within that context, you cannot take time out of the equation because with time comes cost. The onus is on the Committee to, within a reasonable timeframe, complete this process.

Dr M Gondwe (DA): I was going to support Ms Sukers and Mr Maneli. I do agree that if Adv Madonsela now finds herself orphaned, then we should definitely do away with her being a witness. I agree that at the time, the Public Protector’s team had indicated that she would add value to the inquiry and I would like to remind us as a Committee that the purpose of this inquiry is to gather as many facts as we can to be able to make a recommendation to the National Assembly. I tend to agree that if we are finding ourselves in this situation for the sake of time, and the sake of expediency, we should actually do away with having her as a witness, and then dispense with Mr Mataboge because he is almost halfway done. And then we get the Public Protector because I think she is the subject matter of this inquiry and we really need to hear from her. I am sure she is also looking forward to giving evidence to this Committee and having her side of the story related and ventilated. So, for the sake of time, which is not on our side, I would agree with Ms Sukers and Mr Maneli that, we please proceed because I find that we are constantly getting bogged down with issues that really do not constitute the subject matter of this inquiry. It is one issue after another, and they're getting really exhausting, and we are moving away from the bigger picture of the work that we have to do as the inquiry.

Ms Dlakude: Thank you, Chairperson. Listening to my colleagues and the majority view, I want to retract my statement.

Chairperson: Okay, thank you.

Mr B Holomisa (UDM):  I was raising my hand to support the proposal by the Deputy Chief Whip of the majority party but I hear now that she is withdrawing. Nevertheless, I fully agree that we need to invite the former Public Protector to present evidence and then the evidence leaders as well as the legal representative of the Public Protector can question her. Unfortunately, there is a legitimate expectation on the part of the public since the name of Prof Madonsela was raised to hear her statements. I think it would be fair for this process that the Committee should allow the Chairperson to clarify matters for us to go ahead. We do not want to be associated with that kind of drama.

Chairperson: I have listened to all the Members and now it is my duty to summarise what I think I am hearing them say. Adv Mpofu, do you want to come in before I do that?

Adv Mpofu: Yes, please. I do not know whether it is deliberate or not that people just want to touch us emotionally. Today I have said that the Public Protector is a human being and she is the reason that you are all here and you should give her fairness and consideration, as much as you would want such, if you were facing impeachment, dismissal from office, or whatever or if it was one of your relatives or someone you know. That is all; we do not ask for anything more than that. But this kind of cruelty and vitriol is just unpalatable. The Public Protector has never said that she does not seek the evidence of Advocate Madonsela. In fact, she has said the opposite. I read it out to you this morning. When Advocate Madonsela's evidence was confined to CIEX, we pointed out to her, for which she was grateful, that the Committee had raised two issues: CIEX and Vrede Dairy. I agree with Mr Nqola, as much as I do not like to agree with him, but he is 100% correct. Those were the two issues that were identified by the Committee for Advocate Madonsela to address. Because we wanted to consult with her, not because we did not want her when she asked about the extra issues on top of the one or two that the Committee required, we responded by giving a list of the eight other issues, including the issue that Mr Nqola raised. When the old man was sitting there at eighty years old, crying tears and explaining what he had gone through. And, in the end, to try and pacify him as a member of the public, to whom, hopefully, we are all accountable, Mr Nqola noted that Mr Nchaupe Peter Seabi had raised some issues in paragraph 22 of his affidavit, and asked why there were no consequences suffered by Mr Samuel for the deeds that he did against his person. Nr Nqola told Mr Seabi that Adv Madonsela was due to appear before the Committee and he would surely ask that question on Mr Seabi’s behalf. He hoped that he would be watching to get other answers in respect of that particular specific question raised in paragraph 22.

Adv Mpofu: We raised that issue with Adv Madonsela that apart from Vrede and CIEX, there were issues such as this where people have accused her of the most horrific things and the most horrific behaviour. We told her that she needed to have her chance to clarify. She might say she had never even heard of Mr Seabi, but now people are saying we do not want to speak to Advocate Madonsela, even though we were the ones who brought those witnesses here. Mr Nyathela went on for a whole day about what he perceived to be emotional torture at the hands of Advocate Madonsela who delayed his matter for 11 years or whatever. He alleged in disbelief that Advocate Madonsela should be given an opportunity to deal with those issues, even if it were just to deny them. And so anybody who is so heartless to think that despite raising all those issues, all it means is that … oh well. More than that, we begged Advocate Madonsela only last week only to consult with us, so that we could raise those issues but she elected, as she is entitled to as any South African, to talk to the evidence leaders or her own lawyer. That is fine, but that does not take away the rights of the Public Protector to raise the issues. So Chairperson, to assist you, maybe this is what should happen: it is either Advocate Madonsela is asked to consult with us for us to raise these issues and then we present a statement. If she is averse to that, then she can consult with the evidence leaders, and they can prepare a statement on behalf of the Committee or whatever. The rules are clear as to what should happen in either one of those cases. We do not care whether we are going to lead the evidence but you must understand that we cannot lead somebody on a statement that is prepared by somebody else. That does not happen. If we take her statement, then obviously we will lead evidence during the examination-in-chief. That means I already know what that witness is going to say because I am the one who consulted with that witness. That was why when Mr Mataboge, who was also exercising his rights, chose not to make a statement, he was then told it was fine and there was nothing we could do. We cannot put a gun to his head to make a statement. He was called here and he was led by the evidence leaders who are now at a point where we are about to cross-examine him. It is a very, very simple issue, which is catered for by the rules. But this notion of saying that let us throw the baby out with the bathwater. Or, as the cruel king Solomon said, let us cut a baby into half so that we can see who the real mother is, is just unbecoming of a body like this. So the notion that this is no longer needed should be rejected. It is a question of, as I had suggested, going to the back room and talking to the Chairperson and engaging and so on to find the most practical way of doing this. I do not even think I need to address the issue of a Member saying that if there are three meetings, you prepare for all three meetings at once. What if the meeting has been cancelled? How would you prepare for meetings that are cancelled? We asked for the witness to be brought today and you decided not to. So how would you prepare for that?

Chairperson: Please wrap up.

Adv Mpofu: My constructive proposal is the following: that after you summarise the position, we leave this issue because it should not be resolved like this in the public domain. We'll leave it as to how and when Adv Madonsela should be brought in to assist the process in the Committee by whatever will lead her. And then because it is now close to lunch, we would request, and we would like to incorporate that maybe you address it in your summary, that if you are still interested in not wasting the time and maybe having Mr Mataboge, that we have that in the morning so that we have an opportunity to go and prepare because we have come here having prepared for something completely different. So that is our constructive proposal on both issues.

Chairperson: I want to summarise the Members’ discussion. But Ms Ebrahim.

Ms Ebrahim: I just wanted to place something on the record for clarity. Mr Mataboge is a ‘distinguishable’ witness. He was not requested by the Public Protector; he was not part of the list of people that they wished to summons. The Committee, having regard to Miss Bianca Mvuyane’s reasons for not wanting to come to the Committee voluntarily, decided to call her and that is how it followed that the evidence leaders led Mr Mataboge here. This is distinguishable in that the Public Protector has requested that Professor Madonsela appear because they have a list of questions which they wish to put her. If I can just please have that placed on the record.

Chairperson: Thank you, Ms Ebrahim.

Adv Mpofu: Please, I would …

Chairperson: Adv Bawa, you have the microphone.

Adv Bawa: I do feel it important to remind the Committee, and maybe to coin a phrase that Adv Mpofu has used several times in the proceedings, this is not a motion to examine the behaviour of Advocate Madonsela in any instance. So, if any way she may have treated anybody, let us assume the worst-case scenario that what was told to this Committee is true, for the purposes of the work of this Committee, the question is simply, "So what?".

Adv Mpofu: I am happy with that.

Chairperson: Thank you for that, Adv Bawa. Now let me summarise for the Committee. I will start with the issue of Mr Mataboge who was scheduled for this Committee, evidence leaders lead and at the point of the Public Protector legal team having to take over, they invoked the directives, which was accepted. At the time, we would have planned for an allocated time for Mr Mataboge. He was then scheduled for Friday for him to complete the process. In the to and froing, we received a request from the Public Protector’s legal team that he comes in today and tomorrow, basically requesting him and adding another day onto the programme. So that has to be acceded to first; it is not just automatic that we would do that as it is two days that what belonged to Adv Madonsela, not Mr Mataboge. And so I made a ruling earlier that we spend the rest of this afternoon as well as tomorrow with Mr Mataboge if the Public Protector’s team can do that. I understand from Adv Mpofu that he will speak to his team as there is no readiness for today for Mr Mataboge. That means we are left with tomorrow only with Mr Mataboge. I would have loved to have given the Public Protector’s legal team tomorrow as well as the rest of the time today, but as indicated, they do not think that they will be ready to interact with Mr Mataboge today and therefore I want to accede that we will continue with Mr Mataboge tomorrow and Mr Mataboge will end tomorrow, whatever time we end.

Adv Bawa: Chairperson, Mr Mataboge has a five o'clock restriction.

Chairperson: I know about the five o'clock limit but at least we can use the allocated time as best we can. It would have helped to spend the rest of the hours we have today, as well as tomorrow, but we will conclude Mr Mataboge tomorrow, Thursday, being the second of March. On the next two points, having listened to the Members during their discussion, I think the first issue that must be concluded is the cleaned-up statement (of Adv Madonsela) must be finalised because corrections were made to the statement.  All of the issues must be attended to so that there are no questions around that statement, even though I agree, they are cosmetic changes. By the time we close this meeting, that could be done. Having listened to Members, including Mr Nqola, Mr Holomisa and the other five Members who contributed, I have put the question to the Public Protector’s legal team and they have given me a clear response. Based on that, colleagues, the ruling I make on the matter of Advocate Madonsela who has been with us this morning and is still with us, which we appreciate, is that the cleaned-up statement would assist Mr Nqola and so we adopt that report as a Committee as she responded to the two issues we asked her to respond to in a written statement, Vrede Dairy and CIEX. The statement speaks to those issues and I am ruling that, as a Committee, we take that written evidence into the record of this Committee. That helps us to do away with a proposal for evidence on Monday and Tuesday because we will now have that on record. And I do think that the Members have accepted that the Committee must adopt the witness, Adv Madonsela. And therefore the adoption of her statement means we have her response to the issues that were required, on record and therefore we would not need to go any further with oral evidence as she has responded to those grey areas that we wanted her to respond to. So, that is how I want to conclude the matter on Advocate Madonsela. Do any of the Members have a problem with that?

Mr Holomisa: I raise my hand to completely disagree with your approach. If one of the Members of the Committee during the discussion wants to ask questions of her, are we going to write another question? Will we put another question in writing? Why are you hiding her so she does not come and answer the questions?

Chairperson: Thank you. The objection is noted. Any other members? Thank you, that is now a decision of the Committee, noting the objection of Mr Holomisa. I want to move now from this point.

Adv Mpofu: I just want to say this. I do not know, why the Chairperson and  Members of this Committee must complicate the work of this Committee and make it more difficult for us to proceed with the inquiry. Because the things that you have been doing in the last 48 hours, really, I do not know whether it is a plan to try and sabotage the Committee. Because you know that this approach of just bulldozing is not going to end well. Firstly, I just want to make a factual correction. Miss Ebrahim is wrong because we gave you a list of witnesses after you insisted that we give you a list and Mr Mataboge was on it at number three and Ms Mvuyane was number 4; number 6 was Adv Madonsela. The list includes those to be approached, including Mazzone. And then, still being traced was Mr Peter Seabi. That was the list that we sent to you and the Committee per your request. So that distinction between Mr Mataboge and Adv Madonsela is not true. It is all very well to do things here for convenience, but they're not going to withstand proper scrutiny when the crunch comes, because you just want to run roughshod when the facts are now put. And that is why I brought these letters to read them to you so that you make your decisions on an informed basis, not an emotional, or vindictive basis. So that is the that is the issue. So the comparison I was making with Mr Mataboge is completely valid. Secondly, you cannot, based on this statement, or affidavit - I do not even want to call it an affidavit - which does not even address the issues that Mr Nqola is talking about, i.e. whether there was a change or manipulation of dates or whatever by Adv Mkhwebane. Forget about all the other issues, just look at Vrede and CIEX. It does not deal with those issues at all. It does not deal with the issues raised by Mr Samuel, about what Adv Madonsela said to him about when the file was being transferred to the Free State and a whole host of issues. I do not want to bore you with the list, but it does not even scratch the surface that statement on the issues just on CIEX and Vrede. Forget anything else. So, for you to come and say those issues are addressed in the statement, is just not true. You might as well throw it into the dustbin because it does not deal with those issues at all, let alone the issues that Mr Nqola said would be dealt with. But I am happy to hear what the evidence leaders are saying about that issue, and even if she (Adv Madonsela) comes, I will not ask any questions to do with that, according to them, I must just accept the evidence of Mr Nyathela and Mr Seabi because even if it is so, so what? Great! That we will deal with the implications of that concession when we do our part. But we require the evidence of this witness. The evidence of this witness is clearly relevant. And if there is now going to be a somersault on calling the witness, then it will be a matter that will have to be resolved in another forum because now we are just being bullied into a situation of depriving us and the Committee, or at least the Public Protector -if the Committee does not want to know the truth, that is fine - but the Public Protector is being denied her right to call a witness and question about issues that are clearly relevant to this to this Committee.

Adv Mpofu: So, as far as the other matter of Mr Mataboge is concerned and this is, at least my team's view - I had forgotten about his five o'clock restriction, because I thought I had them if we were going to start with him, then we would just go on for as long as possible, either today or tomorrow. So what we propose is that we can even start with him at three o'clock. So that we do one section, at least. Hopefully,  we can start early tomorrow and see how far we can go with the other sections, given his five o'clock restriction. But I really wish you had just adopted our proposal, which we repeated many times, which was that the issue of advocate Adv Madonsela should be left to a discussion between yourself and the evidence leaders to try and resolve it. I appeal to you to do that because I think the alternative is not going to be very pleasant. So we need to get over this to accommodate and be fair to both the Committee Members and the public and Advocate Mkhwebane and, of course, Adv Madonsela herself, and try and find a solution that is not characterised by bully-boy tactics and one that is constructive and that is going to take us forward and accommodate the exigencies. So that we take into account the interests of fairness. I think Dr Gondwe has made a Freudian slip, saying we need to do this for the sake of expediency. Well, if we are going to do things for the sake of expediency, then I think we all know where that will lead.

Ms Ebrahim: Just two quick things. The one is that the Public Protector’s legal team made it clear to the evidence leaders in a meeting in which I was present that they had no intention of calling Mr Mataboge any longer. So notwithstanding that Mr Mataboge was on the witness list as submitted, the intention was clearly conveyed in much the same way that the evidence leaders over time have also conveyed the intention not to call certain persons who are on their original witness list. But anyway, be that as it may, what I want to attend to is the statement by Prof Madonsela. The statement dated 28 February already contains all of the changes that were made by hand, now in an electronic format, so there is nothing further to be done. So I just wanted to clarify that we do not need to go back to ask for anything, over and above what we have already received.

Chairperson: On the issue of Mr Mataboge. I was hoping that you would request 2 pm but you are requesting 3 pm. That is fine. I will accede to that and then we can also ask Members to be flexible, and then we'll start at nine tomorrow if that is okay with the Members. So let me repeat it again, by request, which I think is fair, there is only an hour in it. But I won't go to war for that. The request is to start at three this afternoon so we have an extra two hours with Mr Mataboge.

Adv Mpofu: Sorry to interrupt you. I am even prepared to compromise; we can make it at 2:30 pm. I need two hours just to go and fetch my notes because I have left all those files in the hotel.

Chairperson: So we will start today with Mr Mataboge and we will start at nine tomorrow. Is that in order Members?

Ms Dlakude: Thank you very much. We fully agree.

Chairperson: So that is it, Members. Let me take this opportunity to address Advocate Madonsela if you can switch on your camera.

Adv Mpofu: I am so sorry.

Chairperson: Just pause Advocate.

Adv Mpofu: I just wanted to say that maybe we will send it for you overnight or tomorrow because if you go ahead with what it looks like you want to go ahead with now, then one of two things is going to happen, which is either to take that issue to court or to make a fresh application for you to summon the witness. And maybe that is what we need to do to exhaust our remedies. In which case, you will probably have an even much longer delay on your hands. But I just wanted to say that, so you do not overpromise anything to the witness. I think we are going to see her sooner or later.

Chairperson: Well, I do not know about that anticipation. Firstly, you do not know what I was going to say and …

Adv Mpofu: I did not

Chairperson: I did not recognise you, sir.

Adv Mpofu: Thank you. I was not addressing what you are going to say, but what you have said already.

Chairperson: Thank you. Adv Nomkhosi Madonsela I want to firstly profusely apologise that we have had you here since 10 o'clock, as scheduled and directed by the Committee. It is now one o'clock. You have been patiently sitting there, waiting for the opportunity to present your testimony to this Committee. We have not even taken an oath with you because we were going to do that when we were ready to proceed with you. So I want to take the opportunity to firstly apologise that we kept you for so long and you are interacting with a discussion that you are not part of, and the discussion is about you. It must have been very difficult sitting there, so one also appreciates your self-control and discipline as you listened to us engaged in this discussion. The Members have articulated their positions, and I'll just summarise that. So, I am indicating to you that we would not be proceeding with you, as originally planned. We had a date with you today and tomorrow. We are not going to proceed with you today and tomorrow. We have made that conclusion. If there is a need for us to speak to you at a later date, I shall indicate that. But, as of today, we want to thank you for availing yourself today. In preparing for these two days and being with us for this half a day. And again, I apologise for essentially wasting your time in a way that you could have utilised somewhere else. Thank you very much. Is there anything you want to say?

Adv Madonsela: Just to say thank you, Chairperson and Members. Should there be anything relevant with which I can assist, I am always willing to assist.

Chairperson: Thank you very much. I think that helps a lot going forward. We will interact with you if there is anything relevant or new, sis Nomkhosi. Thank you. You are excused. Thank you Members. We shall now take a break for an extended lunch. The meeting is adjourned for now.`


Chairperson: We now going to start the next session with a different witness. I just need to check if we have everything sorted out. Mr Mataboge are you connected?

Mr Mataboge: Yes. I will just open my camera

Chairperson: We appreciate your time despite this short notice. We will begin immediately without wasting any time. Please be reminded that you are still under oath.

Adv Mpofu: You have been called effectively, according to the evidence leader at least, to deal with four separate reports. Those that were raised with you at the beginning of your evidence and are the CR17 Bosasa Report and judgments. And then there is the so-called “rogue unit” judgment and report. And to that extent, your evidence coincides with that of Ms  Mvuyane. And then there was an issue with Vrede2. And then, of course, the Pillay pension matter. Can you confirm that you were involved in all those matters to whatever extent?

Mr Mataboge: Yes, sir. I was involved as the chief investigator that supervised the investigators who dealt with the three matters - the Pillay pension matter, the SARS so-called rogue unit and the Vrede2 report. However, I was the lead investigator in Bosasa CR17.

Adv Mpofu: In the other three, you were supervising the actual investigators or senior investigators, and in Bosasa CR17, you were yourself the lead investigator?

Mr Mataboge: Correct.

Adv Mpofu: Perfect. Thank you, sir. I was not aware of that distinction. Well, in that case, then I am going to start with dealing with the Bosasa CR17 matter and we'll see how far we can go. And then we will deal with the other three. But before I do any of that we need to paint the context of your evidence so that even the Members know upfront where we are going. This time, evidence leaders have done most of that work of situating where you fit into the big picture, but I will ask you questions of that nature to save time in a leading fashion, either because the material is not controversial, or because in any event, some of it might have already come through from Ms Mvuyane and it was not disputed. Do you follow that?

Mr Mataboge: I do.

Adv Mpofu: Now, it has already been registered here that in terms of what I call the pecking order, in a particular investigation, ideally - we know that this does not happen with every each and every investigation - but ideally, you'd have investigator, senior investigator, chief investigator or somebody like you leading the actual investigation team, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And then above you would then be the executive manager, who reports to the CEO or has a dotted line to the CEO, and then the Public Protector, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Now we also established with Ms Mvuyane that the person who, with the exception of the Bosasa CR17 as you just told us, would be “on the ground” in respect of such an investigation would be the investigator himself or herself, correct?

Mr Mataboge: It is correct.

Adv Mpofu: And obviously, then they would report to you and check with you, as and when your intervention is necessary. And you said something quite important - I think you were asked by Advocate Bawa about the reporting line. Can you just confirm that when it comes to drafts, the investigator can sometimes interact directly with the PP without necessarily coming to you, but when it comes to a section 7(9) or a final report, then it must go through all the stages that we have already described until it is signed by the Public Protector. Is that correct?

Mr Mataboge: In fact, it works both ways in that when an investigation starts, it starts with the submission of investigation plans and documents, request letters, all of which have to be submitted with a memo that is prepared by the investigator, to the CI (chief investigator) which is me and to the manager to the PP (Public Protector) so that process flow of documentation applies for the section 7(9)’s, subpoenas and reports. It depends on the nature of the complaint.

Adv Mpofu: Yes, sorry, I forgot to mention the subpoenas because they also, as far as the legislation is concerned, are issued by the Public Protector. But as you say, they then would travel that journey until the Public Protector herself must sign the documents, the section 7(9) report, the subpoena, or whatever. Once you have made those decisions, then it travels until she has signed a subpoena, or a section 7(9) or final report. Correct?

Mr Mataboge: Correct.

Adv Mpofu: And you also made a statement in which you said, an investigation diary is the lifecycle of the investigation. I suppose that in that lifecycle, we can also include the investigation plan as the lifeblood of the investigation, or the blueprint. And Ms Mvuyane explained to us what an investigation plan is. But would you agree with that summary?

Mr Mataboge: Yes, that is correct. I agree with it.

Adv Mpofu: And for the purposes of this Committee, do you confirm the evidence of Ms Mvuyane that, in actual fact, the deadlines are the original deadlines because deadlines might change from time to time if you have, what in this Committee is called, a living document. But the original living document, if you like, is the investigation plan which is drafted by the investigator himself or herself? In other words, the first deadlines are self-imposed in that document. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: And then, of course, you have, we now know, all sorts of meetings such as dashboard, bench team, or what have you. And in all those meetings, then the deadlines might be adjusted. If I do not meet a particular deadline I might get some serious talking to but if my explanations are correct, then the deadlines get changed. Even so, now the deadlines become negotiated rather than self-imposed. Correct?

Mr Mataboge: That is correct, Adv Mpofu.

Adv Mpofu: I know that you are one of the most experienced investigators, having started working in this sector, even before 1994 when your particular office was located in a homeland. Tell us, without getting into too much detail, the various roles which you have played in this sector, up to where you are now as chief investigator.

Mr Mataboge: When I started I was a junior investigator, and then I became an investigator, around the 90s. In 1993, I became a regional manager. I moved from being a manager to managing a regional office, of which I was a manager until the office was closed and I was relocated, along with the staff, to head office in November 2012, I think, where I became a senior investigator under the DGI (which is governance and integrity). And I was a chief senior up until 2018 in June when I was appointed the chief investigator, the position that I am still holding today.

Adv Mpofu: And to cut a long story short, you have therefore been there under all public protectors from the first one: Advocate Selby Baqwa, Adv Lawrence Mushwana, Adv Thuli Madonsela and the current Public Protector, Busisiwe Mkhwebane, correct?

Mr Mataboge: Correct.

Adv Mpofu: And I want to ask you but you probably do not even know how many investigations or reports you have been involved in. But we can accept that it has been a lot in that period.

Mr Mataboge: A lot. Yes.

Adv Mpofu: And that wealth of experience must have contributed to you being identified as the lead investigator in such a big and serious matter as CR17 Bosasa.

Mr Mataboge: Correct. I believe so. I do not have to be modest as that had been happening to me even before CR17.

Adv Mpofu: You got what is sometimes called the graveyard shift so that you would get some of the heavy lifting?

Mr Mataboge: Yes.

Adv Mpofu: We will come to that particular part just now. Now, the other thing that you said, which for me really characterises the evidence in some of the issues I am going to deal with - if it were a court case and not an inquiry, after that answer, I would have just said that was it and put no further questions. But unfortunately, we are in an inquiry. So we have to inquire into the factual issues. But you said last week to this Committee, and now I am quoting you: We may fall short, but we do our best. We endeavour to be fair, and we do our best. We work without fear or favour or prejudice, notwithstanding some of the comebacks. Do you remember that?

Mr Mataboge: I remember that. Exactly.

Adv Mpofu: So, evidence both in this questioning and probably when we summarise and argue at the end of the case, will be put under that theme. Now I put to  Ms Mvuyane yesterday a proposition that if all of the horrible things that the Public Protector has been accused of concerning these reports, namely that she was deliberately dishonest, biased, out to get Mr Ramaphosa, out to get Mr Gordhan and out to whitewash Mr Magashule no matter what he had done,  which is the gist of those charges. If that were indeed the case, she could not have carried that out without, to use the word loosely, recruiting somebody like you or Ms Mvuyane into that conspiracy, if it were to be successful. Would you agree with that?

Mr Mataboge: Yes, I would. Definitely.

Adv Mpofu: And for the record, were you ever part of any such scheme, conspiracy or vendetta to target a particular person in an investigation, such as the ones mentioned, or were you ever aware of such an intention being harboured by the Public Protector?

Mr Mataboge: No, I would not have been at all, especially because when we dealt with the complaint at the beginning, we would consult with the Members of Parliament who brought these complaints, as required in terms of confirming or looking into issues, and I would be part of those meetings, or the investigators would be part of those meetings. If there were any undertones or any such, I would have picked them up as we questioned the complainants on why they were bringing such charges, why they thought we were the appropriate institution and what they were alleging against a particular Member of the Executive.

Adv Mpofu: That is quite crucial. Yes, you made that very clear. And I think Ms Mvuyane also emphasised the point that the first thing you do is to consult with the complainant, which is what you are saying now. As a lawyer, you and I know that you cannot pursue a case, whether it is a criminal case, a disciplinary hearing or an impeachment process, without hearing from the complainant. Correct?

Mr Mataboge: Right.

Adv Mpofu: I think what you are telling the Committee now is that in the case of the Public Protector’s Office, a similar process is followed. In other words, even before the Public Protector could execute her “conspiracy” she should have to contend with the fact that you have to do the screening of the complaint with the complainant, and not her. And only if you are satisfied that this complaint, does it even merit being taken any further. Is that a fair summary?

Mr Mataboge: It is a fair summary. Yes.

Adv Mpofu: So I think what you are saying, is even taking it further than what Ms Mvuyane told the Committee, is that you are saying that, not only would you have to be a member of that “conspiracy”, but you would have to be a very important one, because without you, whatever conspiracy the Public Protector might be involved in, it could not be carried out because you would have said that it was a nonsensical thing and there was nothing there so it was not there is not even a prima facie case; it is clearly just a witch hunt. And you should not waste the time of the taxpayer, or the money of the taxpayer, on it. What I am saying is that unless you were a member of the conspiracy, then you would not say to go ahead. You would not say: This is Mr Ramaphosa, the one we've been looking for, or Gordhan.

Mr Mataboge: You are correct, but if it relates to the Executive Members Ethics Act (EMEA), the Public Protector is obliged to investigate.

Adv Mpofu: Fair enough. So that question that I just asked you now would apply, obviously, to the non-EMEA complaints, such as the complaint against Pillay, but the one against Gordhan would have been an EMEA complaint. What I am saying is that the discretion for you to proceed or not to proceed applies to non-EMEA complaints. Correct?

Mr Mataboge: Yes, correct. But those that are special attention matters are complex and crucial ones, which we discuss and we hold meetings with the Public Protector to discuss them, despite them not being EMEA.

Adv Mpofu: Okay, fair enough. I think one of the earlier witnesses told us about SAM. So, for the purposes of Mr Nqola, these are the special what?

Mr Mataboge: Special attention matters.

Adv Mpofu: Right. Special attention matters, otherwise known as “SAM.”

Adv Mpofu: Thank you for that qualification. So both EMEA and SAM matters would first be discussed with the Public Protector. You have no option with EMEA matters because the legislation says you must investigate, but with the SAM matters, that decision would be taken in conjunction with the Public Protector, correct?

Mr Mataboge: Correct. Yes.

Adv Mpofu: Now I will not spend much time on this because your evidence is relevant for charges 11.3 and 11.4. To save time, I shall not read them back to you. Because I think Adv Bawa read them to you or I read them to Ms Mvuyane. But, in a nutshell, those charges relate to deliberately seeking to avoid making findings against certain people and/or deliberately avoiding making such findings against others. Do you remember that?

Mr Mataboge: Yes, I remember and I remember my response.

Adv Mpofu: Please, can you repeat it?

Mr Mataboge Which was in the negative?

Adv Mpofu: As I did with Ms Mvuyane, I have to say this, also for the benefit of the Members and the members of the public: my questions to you are not necessarily aimed at establishing, for example, the so-called retirement of Mr Pillay, which was a one-minute special where he “retired” at 12 o'clock, and then at one minute past 12, he was re-employed. It is not necessarily to show that it was a sham because I think that should be obvious to anybody. The purpose of your evidence here is to determine whether or not, in the process leading up to that so-called retirement, any legal prescripts had been breached. Do you understand that distinction?

Mr Mataboge: Correct.

Adv Mpofu: And do you agree with that? That is the emphasis. In other words, you are not here to tell us whether it was a good thing or a bad thing for Mr Pillay to retire to fund the education of his children or whatever he claimed was the reason. You are just here to check whether, as far as that retirement is concerned, and even assuming that it was warranted, it did not breach any law, the PFMA (Public Finance Managers Act) or the Constitution, the Pensions Act, the Public Service Act, and various Prescriptives. And that goes for all the other investigations, such as Bosasa. It is not for you to tell us whether it was a good thing or a bad thing for the funders of the CR17 campaign to give R1 billion or whatever amount for him to become the president of the country and the president of the ANC. Your focus is only on whether in receiving those funds, the Executive Ethics Act was breached, or any other obligation to declare that kind of thing. Correct?

Mr Mataboge: Correct.

Adv Mpofu: All right, for those people who are inclined to send you a nasty WhatsApp, they must just know that your job is much more boring than trying to accuse anybody of anything; yours is simply to look at whether the prescripts of our Republic have been followed, correct?

Mr Mataboge: That is correct.
 
Adv Mpofu: And in doing so, it does not matter if it is somebody that you like or dislike, whether you like me, the Chairperson or anyone else, once a complaint has been raised, you just have to disabuse yourself of that liking or disliking and simply look at whether I or the Chairperson followed the rules that bind upon us. And the answer is either yes or no. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: Now, I just want to address the issue of jurisdiction, both broadly speaking, but because it arose in the Bosasa matter, which I am going to start with. It is correct is it not, that apart from speaking to the complainant, one of the first things to be done, in any matter, is to determine jurisdiction. Correct?

Mr Mataboge: Yes. And we do so by checking the applicable legislation.

Adv Mpofu: Because again, if you come to the examples I was making, let us say the Chairperson has transgressed the rules, which, of course, we know he would never do, but even if he has transgressed them multiple times, it would not matter if you found that you do not have jurisdiction. Then it is a matter that falls in the hands of the police or someone else, correct?
 
Mr Mataboge: That is correct.

Adv Mpofu: The point that I am simply making is that the screening or what I think Ms Mvuyane called the preliminary investigation involves typically, but not in every case, speaking to the complainant, but also ensuring that the Public Protector has jurisdiction in terms of the legislation, as you correctly say, correct?

Mr Mataboge: It is correct.

Adv Mpofu: And the powers of the Public Protector are located in section six of the Public Protectors Act. That is really what you are doing; you are just checking a section 6.1(a) transgression - this is my favourite one - it gives the wide ambit of your powers starting from discourtesy or, you know …

Mr Mataboge: Capricious.

Adv Mpofu: Yes, from capricious conduct up to the hardcore stuff, like corruption and all that, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yes. So I was describing it to one judge, saying the powers are so wide that even if a civil servant just does not greet me, I can go and report them to the Public Protector for being discourteous. I am sure you haven't had cases like that, but just to make a point, I am saying that those powers move from the mundane to the serious, correct?

Mr Mataboge: That is correct. Right.

Adv Mpofu: And in the case of the Bosasa matter, the issue was a serious matter, ranging from the failure to declare a gift to possible criminal conduct in the form of money laundering, correct?

Mr Mataboge: It is correct as the complainant had indicated to us.

Adv Mpofu: The complainant, in that particular case, Mr Mmusi Maimane, the then leader of the DA, had in his specific complaint alluded to the criminal conduct of money laundering, correct?

Mr Mataboge: That is correct.

Adv Mpofu: So, like the Phala Phala matter, which I know you are not involved in, the most serious allegations also involved the breach of the Financial Intelligence Centre Act (FICA) and money laundering statutes of South Africa. Let us not necessarily get technical, correct?

Mr Mataboge: Right. Yes.

Adv Mpofu: And either you know this or you do not, but those matters, if proven, would have, in the case of a President of the country, in particular, then amounted to possible, impeachable conduct. In other words, if a President of the country were involved in criminality, at least, even a first-year student would tell you that that may invoke further breaches of the Constitution, such as section 89 of the Constitution, correct?

Mr Mataboge: Right.

Adv Mpofu: So the matters were serious, not only because of the seriousness of the offences but also because of the highness of the office involved, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And it is in that context that I was giving you that compliment that to be entrusted with such an investigation. I cannot think of a more serious investigation than the Bosasa one, other than maybe the Phala Phala one, so it means that you are one of the people who have demonstrated experience in this area, correct?

Mr Mataboge: Yes, but do remember, I tried to refuse it.

Adv Mpofu: She would not take no for an answer. I suppose. I am

Mr Mataboge: Yes.

Adv Mpofu: Now having laid that basis, then I think it is fair to say to the Members, to go to the specifics.
I am looking at looking specifically for the report as well as the section 7(9) letter. Can you confirm that the report was issued by you and the Public Protector on 9 July 2019? Correct?

Mr Mataboge: Yes.

Adv Mpofu: There is no page number so we'll use the paragraphs. We can go to paragraph (g) under the executive summary. Mr Maimane posed the question in Parliament about Members of the family benefiting and the receipt or something. And the President responded that he had looked his son in the eye and so on and if it turns out that there is an illegality, he will be the first one to take his son to the police and all that. But the part that I want to deal with is Mr Maimane’s complaint, which is covered in (g). Mr Maimane says in his letter attached below, stating that it is his concern that there is possibly an improper relationship existing between President Ramaphosa and his family on the one side and the company African Global Operations on the other side. The nature of the payment passing through several intermediaries does not accord with a straightforward donation and raises the suspicion of money laundering. The alleged donor is further widely reported to have received billions of rands in state tenders, often in an irregular fashion. And then what follows is the actual letter of Mr Maimane addressed to the Office of the Public Protector Adv Mkhwebane. We will not go through that letter. As I say, it is also well-known in the public domain and just after the letter, it is indicated (iv) that another similar complaint was launched by Mr Floyd Shivambu, MP and Deputy President of the EFF, as well as an anonymous complaint from a whistle-blower on 28 June 2019, who is not a Member of Parliament, and therefore precluded from lodging a complaint in terms of EMEA. I then decided to consolidate the two complaints into one investigation for administrative purposes. And then it spells out what Mr Shivambu was complaining about, which is largely similar. But the point I wanted to highlight is a point that was made yesterday with Ms Mvuyane, namely that even though there was a complaint against the President, which came from a member of the public it had to be discarded, because it did not come from a Member of Parliament, correct?

Mr Mataboge: It is correct.

Adv Mpofu: Next is the complaint letter on the letterhead of the office of the chief whip of the EFF, signed by Mr F. Shivambu, MP. So that was the second valid complaint, correct?

Mr Mataboge: It is correct.

Adv Mpofu: And I will not go into the gory details of how you got there, but just to give the Members a flavour of your findings. If you go to paragraph (aa), one of your findings was that the allegation that on 6  November 2018, during the question session in Parliament, President Ramaphosa deliberately misled the National Assembly is sustained. Correct.

Mr Mataboge: That is correct.

Adv Mpofu: And then let us just jump to (cc). One of the controversial issues, both in terms of the jurisdiction and the criticism resulting in the President lashing out at the Public Protector, had something to do with a question as to whether he personally benefited from these donations. Remember that?

Mr Mataboge: I do remember.

Adv Mpofu: I think that is one of the main issues. And again, like with Ms Mvuyane, when I say “you,” I know that the owner of the report is the Public Protector, but also I am using you in plural because you were the senior investigator, and in this particular case, also the lead investigator.

Mr Mataboge: Account, correct.

Adv Mpofu: In fact, I prefer your word even better: you are the “drafter as Ms Mvuyane explained. It is the investigating team that drafts these documents. Of course, the Public Protector has the final say and she makes the final changes as it is she who owns it. She's not trying to run away from the ownership of the report, but it is drafted by people like yourself, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Now here you say: President Ramaphosa, as a presidential candidate of the ANC political party, received campaign contributions which benefited him in his personal capacity. He was therefore duty bound to declare such financial benefits. According to him, the campaign pledges failed to disclose the exact material benefits including a donation from AGO, that is African Global Operations, I think otherwise known as Bosasa, correct?

Mr Mataboge: Right.

Adv Mpofu: Then you say that is a breach of the code, the code of ethics, correct?

Mr Mataboge: That is correct. Yes.

Adv Mpofu: And then (dd) contains another important finding where you say: I have evidence which indicates that some of the money collected through the CR17 Campaign Trust Account was also transferred into the Ramaphosa Trust Foundation account. So those are two of the crucial findings in respect of t that finding that we refer to earlier in (aa). Correct?

Mr Mataboge: Correct.

Adv Mpofu: And then, let us go to the next (aa). I'll also just read the finding, but not the rest of the narrative. There you say: The allegation that there is an improper relationship between President Ramaphosa and his family on the one side, and the company African Global Operations on the other side, due to the nature of the R500,000 payment passing through several intermediaries, instead of a straight donation towards the CR 17 campaign raising suspicions of money laundering, has merit. Do you remember that finding?

Mr Mataboge: I do.

Adv Mpofu: Yes. That finding is just to emphasise the fact that you knew your limit. You did not find the President guilty of money laundering. All you could say is that it raises some suspicion of that. It would have to be the NPA or the police or whoever has to take it forward, correct?

Mr Mataboge: That is correct.

Adv Mpofu: So even if you, even if you had a photograph of the money laundering, it would be outside of your jurisdiction to “ find them guilty.” You would have to refer the matter to the appropriate authorities. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: And that is why, if you go to the remedial action, what you recommend, having made those findings, is quite straightforward. It says: Within 30 working days of receipt of this report, the Speaker of the National Assembly - this is a remedial action directed at the speaker – should prefer His Excellency, President Ramaphosa, for violation of the Code of Ethical Conduct and Disclosure of Members Interests of Assembly and Permanent Council Members, to the Joint Committee on Ethics and Members Interests for consideration in terms of the provision of paragraph 10 of the Code. Again, my emphasis is that you could not say, for example, that the President has breached the Declaration Codes, and therefore he must be suspended in part from Parliament or whatever it is. That is not your province; yours is to send it to the appropriate structures of Parliament for consideration, as it says. Correct?

Mr Mataboge: It is correct.

Adv Mpofu: And if they find him guilty or not guilty, that is not your business as you would have referred the matter to the appropriate structure.

Mr Mataboge: That is correct.

Adv Mpofu: That is something that is not well understood by many people, for example, in the CIEX report. I know you are not involved in that, but if you are recommending Parliament to look into an Amendment of the Constitution or a statute or whatever, you are not prescribing the result. If the consideration does not pass the two-thirds majority or whatever the prescription is, then that is the end of it; you are out of it as the Public Protector and it is that institution that must then process the thing, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Yes. In the public context, I have not met people who can prescribe that the Constitution must be amended no matter what, whether it is 10% or 67%. It does not matter. It must just be amended. Yours is to propose. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: I will not read the other things about the Members and publication of the donations received by the President. To round off - you then said that: Within 30 working days of receipt of this report, the National Assembly Speaker must demand the publication of all donations received by President Ramaphosa because, as the then Deputy President, he was bound to declare such financial interest in the Members’ Register in the spirit of accountability and transparency, correct?

Mr Mataboge: It is correct.

Adv Mpofu: And then coming to the issue of money laundering and the alleged criminal activity on the part of the President - this is again to confirm what you and I discussed earlier - you said: Within 30 working days of receipt of this report, the National Director of Public Prosecutions to take note of the observations contained in paragraph 17 point 3.1, as well as the recommendations contained in paragraph 77 point 3.3 of this report and in line with section 6.4(c)(i) of the Public Protector Act, conduct further investigation into the prima facie evidence of money laundering, as uncovered during my investigation, and deal with it accordingly. Again, without sounding like a broken record, you couldn't find him guilty or take him to prison or anything like that. All you could do was to ask the NPA to investigate this further, and either charge him or decide not to charge him or whatever. Whether the court decides to convict him or acquit him or whatever, would be out of your hands, correct?

Mr Mataboge: It is correct.

Adv Mpofu: And then, lastly, you said the National Commissioner of the South African Police Services within 30 working days of receipt to investigate criminal conduct against the late Mr Gavin Watson for violation of Section 11(c) of the Public Protector Act by lying under oath. And that was in relation to the conflicting affidavit evidence of Mr Watson as to exactly who he gave money to and how many people and how many candidates of the ANC had been given money for those kinds of issues. Correct?

Mr Mataboge: It is correct.

Adv Mpofu: I am just skimming through the report to get the highlights because we are not here to review the report, but the crucial issue, I am driving to with all these findings, recommendations and what have you, is whether they were based on your conspiracy to get to Mr Ramaphosa; do you have anything against him? Or were the findings based on the evidence before you?

Mr Mataboge: They were based on evidence in the file (on my left) from which all of this that we put in the section 7(9) report was gleaned.

Adv Mpofu: I am glad you have the file with you because the rest of South Africa does not have access to that file as it has been sealed. But be that as it may, the point I wanted to make is that you and I do not even want to know whether this is true or not. Personally, might be a big supporter of President Ramaphosa and you might like him and be a member of whatever, but whether you personally like him or not, you would have to do your professional duty and follow the evidence, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Let us then get to that big bundle on your left. And unfortunately, we can’t, at this stage, deal with it in much detail. Some of the issues will be dealt with when the Public Protector testifies, which is around the corner. But for now, can you just confirm to this Committee the email evidence? You were lucky enough to be provided with email evidence that showed the movements of the money in some minute detail, correct?

Mr Mataboge: Yes.

Adv Mpofu: Maybe not emails of all the money that was donated, but you would have been able to see that there was R20 million which was transferred by somebody who is a big business person, and then that R20 million went to buy T-shirts, the other half to hire buses, and all that. I am just making it up, but you will be able to trace some of the money to that minute detail: recipient, functions, date of distribution, and maybe another donation from Mr or Miss X. Is this a fair summary of the type of evidence that is contained in those files?

Mr Mataboge: That is the type of information, if I may say, yes.

Adv Mpofu: And so this issue, as I said, was central to this question of whether President Ramaphosa benefited personally and knew of the movement of the money. The conclusions you reached, which we referred to earlier, were based on that evidence, correct?

Mr Mataboge: It is correct.

Adv Mpofu: And, more crucially, we will come to the court judgment because these proceedings here are mainly based on court judgments, the evidence showed, not only that President Ramaphosa must have known about the money movements, but that some of the money was even donated by him, so he obviously knew about that one, and also some of it went through his Trust, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And some of the people you spoke to included somebody who plays a key role called Mr Bejani Chauke who was Mr Ramaphosa’s advisor in his presidential office by day, but at times, he was the Chairperson or Manager of the “CR17 campaign”. Correct?

Mr Mataboge: I think if I may interrupt there, we met with the campaign managers and he was one of them.

Adv Mpofu: Yes, I understand that you mentioned him in that capacity as a campaign manager, but I am saying even in this documentation, he was also described as Mr Ramaphosa’s advisor, in his government capacity. You may not have known that but just for our purposes, he was described as his advisor. Correct.

Mr Mataboge: That is correct.

Adv Mpofu: That is fine, I’ll deal with the details later with the Public Protector. Just for the sake of completion, there is a long list of documents which we will not go into. You issued a section 7(9) letter to His Excellency, President Cyril Ramaphosa, MP dated 30 May 2019?

Mr Mataboge: Correct.

Adv Mpofu: We see that the section 7(9) letter was dated 30 May 2019 and the response was towards the end of June 2019. Do you remember if the President then asked for an extension, which must have been granted?

Mr Mataboge: Yes, he did ask for an extension.

Adv Mpofu: And was it granted?

Mr Mataboge: It was granted, yes.

Adv Mpofu: And who would have granted that extension - the Public Protector or yourself

Mr Mataboge: Obviously, the Public Protector.

Adv Mpofu: I shall just skim through who was interviewed: Mr Petrus Venter - I suppose he works for Bosasa; interviews with Mr Gavin Watson and Natasha Olivier on 25 March 2019; interview conducted with Messrs Benjani Chauke and James Mokgatle, another leader of the CR17 campaign; 6 March 2019 interview conducted with Ms Donné Nicol, also someone who works at the President's office in the presidency now but was also a leader of the CR17 campaign. And then interviews with some lawyers, Mr Farber and Mr Grobbler, who handled the money and then the meeting with his excellency President Ramaphosa on 1 February 2019 and 30 May 2019. Is that an indication that you had two meetings with the President himself? Is this correct?

Mr Mataboge: The first one was to discuss the initial lack of clarity on the matter and the second instance was when we took the section 7(9) report because the team felt that it was not right to send the report with a messenger so we took the section 7(9) report to the President.

Adv Mpofu: And we have the recording of that meeting but it just confirms what you have said. For the sake of completion - it was a matter of protocol. If it were me or someone who was accused of all these things, you would have just sent the section 7(9) with the sheriff or the police or whoever, but because you were dealing with the President of the country, protocol demanded that as a matter of respect, the Public Protector herself, took the documents and delivered them to the President. Correct?

Mr Mataboge: It is correct.

Adv Mpofu: And there was no legal obligation on her to do; she could have sent the sheriff or anybody like that, but it was just a courtesy, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Now coming to the meetings. Did you attend meetings with the President?

Mr Mataboge: Yes, I did, along with senior officials of the office.

Adv Mpofu: And the Public Protector.

Mr Mataboge: Yes.

Adv Mpofu:  Who else was there? I think Ms Baloyi.

Mr Mataboge: It was  Ms Baloyi, Ms Mogaladi, and others as well as the Public Protector’s PA. I think.

Adv Mpofu: You say that President Ramaphosa also stated that upon returning to his office Tuynhuis - this is now after the Maimane debacle after he answered the question in Parliament - following the question session that he was informed by one of his advisors, Ms Donné Nicol, that the account that Mr Maimane had referred to, EFG2 was an attorney’s trust account that had been used by the CR17 campaign to raise funds for the campaign to advocate for his election as President of the ANC at the organization's 54th National Conference in 2017. Remember that?

Mr Mataboge: Yes, I remember that.

Adv Mpofu: Then, according to President Ramaphosa, a deliberate decision, this is very crucial because this was the main defence put by President Ramaphosa, had been taken by himself and those leading the campaign that he would not be involved in fundraising, although he would address meetings and have a few dinners with potential funders. These meetings and dinners with potential funders were used as occasions where he would outline his vision for the ANC and the country, not just for the ANC. In other words, it was understood that his presidency of the ANC would lead to the presidency of the country. Do you remember the President saying that was his evidence?

Mr Mataboge: Yes, I do remember that.

Adv Mpofu: I shall leave out some of the details and go to 5.22. After analysing a whole lot of emails and what have you, you say at 5.2. 22. I'll just read it: President Ramaphosa received “assistance from any source other than the Member’s party, which benefits a Member in his or her personal and private capacity because as a presidential candidate for the ANC political party, he received campaign contributions which benefited him in his personal capacity. Being the Deputy President of the country and a Member of Parliament at the time, President Ramaphosa was, therefore, duty bound to declare financial benefits accruing to him from campaign activities.” That is important for two reasons. Your finding was not based on President Ramaphosa as President of the country, which he was by the time that you were investigating - we all should know that the President is not a Member of Parliament - but it was based on the time when he was only the Deputy President of the country and an MP, hence the declaration obligations applied to him, correct?

Mr Mataboge: Correct.

Adv Mpofu: So in the run-up to the ANC conference of 2017, he was the Deputy President of the country and a Member of Parliament.

Mr Mataboge: It is correct.

Adv Mpofu: This point we have already made, but just for the sake of completion,  5.2.24 said: I have evidence which indicates that some of the money collected through the CR17 Campaign Trust Account was transferred into the Cyril Ramaphosa Foundation Account. That information came from your evidence. Correct?

Mr Mataboge: Right.

Chairperson: Can we take a break?

Adv Mpofu: Can I just ask one question on the last part and I will come back and deal with the judgments? 3.10.25 says: Notwithstanding the anonymous statements, by the CR17 campaign managers to me that it had been agreed that the identities of the donors and the amounts donated by them should not be disclosed to President Ramaphosa, evidence accused has revealed the contrary. So here, you were referring to the denials by the campaign managers, evidence at your disposal that revealed that those denials were not true. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: And this is an important factor we'll deal with when we deal with the judgements and it is, as you say, evidence in the form of emails, invitations and instructions that confirm that President Ramaphosa was constantly informed of the activities of the CR17 campaign by the campaign managers who relied upon his advice and approval on specific matters and would, from time to time, be sought. Did that also come from the evidence?

Mr Mataboge: Yes.

Adv Mpofu: And then the last one says: I have therefore established that in addition to having met with potential donors during the banquet functions where he delivered keynote addresses, the evidence further confirms that President Ramaphosa had had further and broader interaction with the donors, some of whom he knew very well. So from the evidence you had, it was clear that this version that the President was shielded from knowing the donors - that is where the crux of the corruption or potential corruption charges come from, i.e. that I would donate and then because he knows that I donated to his campaign, he will “remember me” when he becomes the President. That version that he was prevented from knowing donors by this “Chinese wall” between him and the donations was actually false. Correct?

Mr Mataboge: No comment.

Adv Mpofu: Okay. Let me put it in a more palatable way. The evidence before you showed that the President, in addition to having met with potential donors where he delivered keynote addresses, that he had further productive interactions with the donors, some of whom he knew very well. That is what was revealed by your evidence, correct?

Mr Mataboge: That is correct. Yes.

Adv Mpofu: When we come back from the break, I'll just refer you to one more section and then we'll go to the judgment of the Constitutional Court. Thank

Chairperson: We shall pause there for 15 minutes.

[Break]

Chairperson: Over to Adv Mpofu.

Adv Mpofu: There is just one more aspect before we move to the judgments. In the report, we find a copy of the alleged contract between Mr Andile Ramaphosa and Bosasa. We will not go into that. I am just going to take you through some of the information in 5.3.10.61. Do you remember this part? From the evidence received by my office, I can confirm that the R500 000 payment was transferred from Mr Watson’s personal account as part of a lump sum of R2 million was moved into the account of Miotto Trading account which was eventually paid into the EFG2 trust account which was an attorney’s trust account for the CR17 campaign. Remember that part?

Mr Mataboge: Yes, I do.

Adv Mpofu: And the next one, I will not read. It is to the same effect; it is about large sums of money. Then 5.3.10.63 was about the type of amounts of money he was dealing with: From the evidence received by my office an amount of R191 482 227.43 was deposited in the EFG2 ABSA account on 6 December 2016. And on 1 January 2018, an amount of R190 108 227.00 was transferred out of this account in the same period. So this would have been over a period of about a year, correct? That is correct. And that is an example of what I was saying, almost like debit and credit. So you do have evidence of the money coming in and then obviously, the journey of the money over that period until the money is “finished” at a particular point, correct?

Mr Mataboge: That is correct.

Adv Mpofu: From the same account, I shall just take random figures - the next one was R388 million. And then R388 million, less a number of Rands and cents, was transferred out of the in the same period. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: The next one is R441 million deposited from December 2016 until 13 February 2019, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Another one is R335  million and the last one is R51 million or so. So the tracking of all those amounts was the same as I have described before, correct?

Mr Mataboge: Correct.

Adv Mpofu: I am just dealing with types of transactions so I do not deal with all of them individually. There was also a reference to some amount, which was seemingly solicited from outside of the country-  I am not sure if it was the US or the UK - by Mr Gordhan, which also ended up in the CR17 campaign, correct?

Mr Mataboge: I do not recall that one.

Adv Mpofu: Okay, that is fine. It is probably in the judgments. It had to do with something which was once called a fake Intelligence Report. That is fine. But anyway, I think we get the picture now. The matter then went into the report and your report was issued. This part every South African knows – the Bosasa CR17 report was issued and then President Ramaphosa took the matter to the High Court in Johannesburg where three judges sat in what we lawyers call a full court, chaired by Judge President Mlambo. He reviewed the review to be your report and the court found it in his favour -  just cutting a long story short, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Being the chief investigator, were you privy to the pleadings, in other words, the papers that were filed on behalf of or by Mr Ramaphosa?

Mr Mataboge: I was aware – from legal services.

Adv Mpofu: And again, just to save time, I shall not go to the correct details of the actual affidavit. But I just want to establish one fact, which is important for the Committee, which is that the gist of Mr Ramaphosa’s accusations against the Public Protector was that all this was just a figment of the Public Protector’s imagination or yours by extension and that your report was not based on the evidence that you have just shared with us but was based on some vendetta and political witch hunt. He might not have used those words, but it stated that it was not a genuine outcome. Correct?

Mr Mataboge: It is correct.

Adv Mpofu: And that is the only important thing for the purposes of this Committee. In other words, that which the judges confirmed and that which Miss Natasha Mazzone later used as part of her motion for us to be here today, the origins of those allegations of bias or political motives or whatever was Mr Ramaphosa himself. Correct?

Mr Mataboge: It is correct.

Adv Mpofu: So, like the money, it doesn't matter how many times it travels from the donor to the recipient,  the original source of the allegations that have brought us here - I think this was confirmed by Ms Mvuyane yesterday -  would be the applicant, the person who brought that matter to the court. We can't blame the court for it, as it were, and you would know that as a lawyer, correct?

Mr Mataboge: That is correct.

Adv Mpofu: We have tried to impress that on the Committee so that we get the source of the allegations that have brought us here, but we were told that that source is “irrelevant.” But there you are. And then, of course, just for the sake of conclusion, the Public Protector would have filed a respondent's answering affidavit with input from you and others who participated in this, obviously refuting those claims of bias and political motive and all sorts of things. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: There was another affidavit - by a Mr Julius Sello Malema – that supported the repudiation, coming from the party that was part of the complaint and  also participated in that litigation. Correct?

Mr Mataboge: Is it?


Adv Mpofu: That sets the scene. I will not go into those affidavits in detail as they are before the Committee. So I am jumping now from the report to those affidavits and then the attachments just to save time. So let us then go into the judgment quickly. Again, for the sake of time, I will not go into much detail as far as the first judgment is concerned, safe to say that the judgment found, among other things, that the report must be set aside. The expression that will characterise the kind of sentiment the Judges said that the Counsel for the President submitted that this case shows “a reckless determination to make an adverse finding a case the President.” So that is what the President accused you and the Public Protector of doing: a reckless determination to make adverse findings against him personally. Correct?

Mr Mataboge: Yes, and it is unfortunate, if I may say so.

Adv Mpofu: Yes. It must be hurtful. I did ask Ms Mvuyane, yesterday, how such statements make you feel after all the blood and sweat, but we'll deal with that at another stage. Let us try and be strong for now. And put the on the basis of that, of those kinds of comments  -and there are many of them - it was said
That these conclusions of yours were reached irrationally, recklessly and without an open mind and the like, and should be directed to pay the President’s costs on an attorney client scale, in other words, on a punitive scale for daring to trouble him like this. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: That is the outcome, which I have paraphrased, which then becomes the platform for Mazzone Ms and her fellow travellers to bring us here, correct?

Mr Mataboge: That is correct.

Adv Mpofu: But then the matter went to the Constitutional Court and the Public Protector appealed those findings, and some of them, which are worse than what I've just said, directly to the Constitutional Court. Do you remember that?

Mr Mataboge: I do remember.

Adv Mpofu: And again, I will not take you through the pleadings of each side but anyone would now be able to work out that the Public Protector was saying those findings were wrong and the President was saying those findings were correct and they were warranted as she and her people were determined to find a political… Well, let me not put words in the mouth of the President. I think it was Mr Gordhan who claimed specifically political motives, corruption and state capture and all those things. You remember the allegations made about the Pillay and the so-called rogue unit report which said that what motivated you was that you are part of the state capture and corruption Mongols. Correct?

Mr Mataboge: I remember.

Adv Mpofu: Okay, fine. We'll deal with those separately. The President said you have ulterior motives, but I am not quite sure if he explained, unlike Mr Gordhan, what those ulterior motives were. Then, when we get to the Concord judgment, you would be aware that, thank God, on the part of the Public Protector, Chief Justice Mogoeng found that that the judgment of the High Court was baseless and had to be rejected for various reasons, which I shall not go into now, but the majority judgment agreed with the high court. You are aware of that correct?

Mr Mataboge: Yes, I am aware of that.

Adv Mpofu: And needless to say, I asked one of the witnesses but, just for the record, of those two judgments you agree with the judgment of Chief Justice Mogoeng? Correct?

Mr Mataboge: Yes, obviously.

Adv Mpofu: This is important for the purposes of this Committee because if your findings were so outrageous as Ms Mazzone would like us to believe, then someone no less than the Chief Justice would not have agreed with you, and I know this was a minority judgment. But the point I am making is that no less than the Chief Justice agreed that yours was a good effort and that your findings had good grounds. I know you were saying that the other remarks were hurtful but I hope that the fact that the Chief Justice of the country found that you were justified made you feel slightly better. Correct?

Mr Mataboge: That is correct.

Adv Mpofu: And that goes both to this matter and the CIEX matter because in the CIEX meta, it was not only Chief Justice who dissented, but Here, it was also Judge Goliath, so two judges had a dissenting judgment. I know that you were not involved in the CIEX matter, correct?

Mr Mataboge: That is correct. I wasn't.

Adv Mpofu: But I think the same logic holds. To your knowledge, was Chief Justice Mogoeng impeached for agreeing with your report?

Mr Mataboge: No, he was not.

Adv Mpofu: To be fair, let me start with the odds that are against you. I am just taking random passages. Before I go to those passages, one of the key issues in this matter was whether the Public Protector had jurisdiction because this matter was said to concern “private political party funding” and that, legally speaking, went to the issue of whether the President had “personally benefited,” which is what the relevant quote says, from those donations made to the CR17 campaign. Do you confirm that?

Mr Mataboge: Yes, I do.

Adv Mpofu: And the other issue, about which were you lambasted by the earlier courts, and in this court, was the reference made by the Public Protector to the 2007 version of the Code of Ethics, where she was accused of having amended that Code because the applicable one was the 2000 Code. So in other words, you and she had, once again, deliberately gone out to amend the Code of Ethics. Do you remember that one?

Mr Mataboge: I do.

Adv Mpofu: And I am sure you found that even more hurtful, because that suggested manipulation on your part, correct?

Mr Mataboge: That is correct.

Adv Mpofu: I shall refer to paragraph 59 so that we can get it out of the way. This is what the Judges say: But what is more, concerning in the report is that the Public Protector changed the wording of the code by adding “deliberate and inadvertent misleading of the Legislature.” In other words, you and the Public Protector added words in the code, which were not existent. But the truth is that those were the words in the 2007 version that you employed.

Mr Mataboge: It was different. That is correct.

Adv Mpofu: It is actually from the ministerial handbook; it is not as if you manufactured these words and changed the Code, correct?

Mr Mataboge: That is correct.

Adv Mpofu: I do not want to bore you with the ins and outs of this Code, because we will attach it to the Public Protector’s statement. With your experience, can you confirm at least one factor, which is one of the issues we would have raised with Advocate Madonsela because she is involved in this in that the code that you used was the very same Code that she had used in the famous EFF Nkandla case, in respect of which President Zuma, President Ramaphosa 's predecessor, was condemned? Do you remember?

Mr Mataboge: That is correct. And then when we were finalising our report that we even had sight of the Nkandla Report.

Adv Mpofu: So if you have deliberately added those words, then it would also mean Advocate Madonsela did the same to “nail” President Zuma. Correct?

Mr Mataboge: It would look like that. Yes.

Adv Mpofu: Well, the truth is that neither she nor you had deliberately used the wrong Code says because that was the Code that had been used by everyone until the legality of the other one was established, correct?

Mr Mataboge: That is correct.

Adv Mpofu: And now a person in your position, who is a servant of the people or in the position of a Public Protector, and the former public protector for that matter, can you justifiably be faulted for using, rightly or wrongly, a version of the Executive Code which had the endorsement of the Constitutional Court in the Nkandla judgement? Is it fair to do so?

Mr Mataboge: It is not fair, especially when one has the benefit of the whole investigation behind you in the report that we issued.

Adv Mpofu: Absolutely. That is not the point really, isn't it? It doesn't matter. Let us say you got the law wrong or you looked at the wrong one. Even we, as lawyers, sometimes read an Act and you quote it and quote it only to find out from further research that it was repealed two years previously. So the point is not whether you used the wrong code and whether in doing so, you benefitted by a bona fide mistake, or whether you were out to pursue an alleged conspiracy. And I think it is the second part that you were offended by, isn't it? Because you do not suggest that you are superhuman and you do not make mistakes.

Mr Mataboge: That is correct.

Adv Mpofu: Then we can go to paragraph 70. The majority also agreed that the President did not receive a personal benefit. I suppose, even though he became the president of the ANC, and the President of the country, somehow he did not benefit personally. That is what the court found. Correct?.

Mr Mataboge: I would rather not comment on that.


Adv Mpofu: No, okay, I am not attributing it to you. I am saying that is what the court found, correct?

Mr Mataboge: Yes.

Adv Mpofu: Just so that it is clear, we are not attributing it to you. I shall just read it as it is in the attachment. because otherwise, I am sure you do not want to be associated with it. But in paragraph 91 in the judgement: In our multi-party system, being the president of a political party, apparently, such as the ANC is not a guarantee to being president of the country. That was one of the findings of the court, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Right. So, as I said, I was doing that for the sake of fairness, so that we start with the bad news for you, at least. Chief Justice Mogoeng, and I think this is one of his last judgments, and unfortunately, he is lost to the system. But they say that these judgments, the minority judgments of today are tomorrow's leading judgments, correct?

Mr Mataboge: Correct.

Adv Mpofu: In other words, there was a famous judge who fought the Apartheid bench, valiantly and alone in the 60s and 70s, and in all his minority judgments, he just dissented, knowing that he was never going to win. But all his judgments have now become the basis of some of our most progressive judgments. So you'd be familiar with that history from Constitutional Law? Correct?

Mr Mataboge: Correct.

Adv Mpofu: All right. So this is what Justice Mogoeng says - and I think it is important for me to go through this because, for some reason, when these judgments are reported, firstly, we never even get told that there is a powerful dissent. But even worse, you'll never see any medium in South Africa even covering what that contra-review, which is different, says. So I want to, both for you and the members of the public who were not aware of it, put perspective on the Mazonne motion, which suggests that your report was an outrage. I will quote some of the conclusions reached by Justice Mogoeng. I am sure you have read this, so will you confirm those that you remember or make your own comment, please? Can you do that?

Mr Mataboge: I'll do that.

Adv Mpofu: Let us start at 149 for context. That gives the order made by the majority judgement which was against you: Leave to appeal is granted; the appeal is dismissed;  no other costs in respect of the parties. There was some good news for you there in the fact that the Constitutional Court did not agree that you needed to be punished. I hope you'll take that as something positive from the majority. Correct?

Mr Mataboge: That is correct. As well as I think paragraph three relates to AmaBhungane.

Adv Mpofu: Oh, yes. paragraph three. Let me read: It says that a dismissal of AmaBhungane's claim for constitutional invalidity of the Executive Ethics Code was set aside. Yes, that was positive. But also paragraph six where no orders to cost were made. Correct?

Mr Mataboge: That is correct. Yes.

Adv Mpofu: So in other words, the only punitive costs other that remained were the High Court ones meaning the Public Protectors Office did not have to pay the cost for the Constitutional Court. But okay, fine, then let us go to the good news. Paragraph 150: Justice Mogoeng said, “I shall read the main judgment returned by my Brother Jafta J. with great interest, and thankfully ride on the facts set out in it, subject to contextual modulation.” Note that context is everything. And then he said: “Sadly, we will part ways on the approach, the reasoning and the outcome, save where the contents otherwise indicate. This case is fundamentally about at least two foundational values of our democratic State - transparency, openness and accountability – as well as our national quest for ethical leadership and the institutionalism of good governance. It is also about how dangerous to good governance apparently philanthropic gestures or sponsorship could be if the teeth of our integrity transparency, accountability and enforcement mechanism are not allowed to checkmatingly bite these potentially insidious practices.”

Adv Mpofu: He quotes the Ethics Act and all that, so let us jump to paragraph 155 which places the Public Protector in this matter: The Chief Justice says the following: “Central to the complaint was therefore money that was paid to the CR17 campaign undeniably intended to strengthen the President's prospects of becoming what he eventually became. How the Public Protector got to investigate the CR17 campaign does not seem to be a consequence of some inexplicable fishing expedition, or of being unduly or overly suspicious of the President. Honourable Maimane asked her to look into a potentially compromising donation to the President, which as stated, we now know was to the CR17 campaign and alluded albeit not in so many words, to a possible conflict between the President's official responsibilities and his private interests, by mentioning the billions of Rands received by African Global Operations in irregular State tenders.” Then he turns to the facts in the law. Remember that part?

Mr Mataboge: I do.

Adv Mpofu: We'll jump that and then he says in paragraph 158: “When a vacancy in the Presidency of the governing party, and by extension, the Presidency of the Republic, loomed large, the then Deputy President, His Excellency, Cyril Ramaphosa, decided to raise his hand. Apparently, a successful campaign for the attainment of that personal ambition, or private interest, required financial resources in abundance. And a funding mechanism for that race to the top was developed with his blessings. I say with his blessing advisedly because he too contributed his own money to the kitty, he reportedly addressed fundraising meetings attended by sponsors and interacted with some of the sponsors. He does not seem to have been oblivious to the existence and purpose of the CR17 campaign.” Do you remember that?

Mr Mataboge: I do.

Adv Mpofu: And we now know that section 96(c) of the Constitution says that members of the Cabinet must not expose themselves to a situation involving the risk of a conflict, a mere risk is enough. He says at 162: “When people or entities other than the then Deputy President's party gave him sponsorship or financial assistance for the purposes of realising his ultimate political dream, he was, by accepting help or allowing others to accept help on his behalf, exposing himself to a situation involving the risk of conflict. You are familiar with section 96?

Mr Mataboge: Correct.

Adv Mpofu: Then let us jump to paragraph 163 which was a response to the allegation that the President was insulated from knowing the donors. This is the most profound point made by Chief Justice Mogoeng, which is that even if you accept that the President was insulated from knowing the donors, the donors were not insulated from knowing him, and those would have been the corrupt ones. And then he says, at 163: “When the then Deputy President urged and allowed potential donors to sponsor his own ambition to become President of his party, he was thereby exposing himself to a situation that is an incubator of a risk of conflict. Donors knew who they were helping and if the unethical ones, assuming there are any among them, were ever to desire help or favours from the State, they would know who to go to - the Deputy President and soon-to-be President. There is an ever-abiding risk of conflict between being financed to become President of a party ( private interest) and one's position as the Deputy President and Leader of Government Business in Parliament or President of the Republic (official responsibility.) It is necessary to emphasize that there is nothing to suggest that the sponsors were somehow interdicted or legally forbidden from informing the real beneficiary of the extent of their individual contributions and even producing proof.” Remember that part?

Mr Mataboge: Yes, I do.

Adv Mpofu: We’ll jump paragraph 164 and go to 165 where the Chief Justice then says: “ it is the Deputy President who, as a matter of private interest, not only wanted to become the President of the ANC but self-evidently also desired and planned to be the President of the Republic. It requires a hair splitting exercise to seek to draw a line between the pursuit of the Presidency of the ANC and the desire to rise to the highest office of President of our country. Similarly, it would require unprecedented linguistic gymnastics, to seek to draw a line between channelling funds through the CR17 campaign to fund the race/ campaign to the top and the personal benefit to be derived by the one desirous of the resultant elevation. Do you remember that part?

Mr Mataboge: Yes, I do.

Adv Mpofu: And then in the first part of paragraph 166, the Chief Justice says: “Excusing disclosure as a result of the juristic veneer of the likes of the CR17 campaign or its trust account is a short way of enabling wrongdoing, corruption or even so-called State capture. Ascension to raw power or the supreme office enabled by funding sourced by the CR17 campaign was a quintessential personal benefit and a personal achievement or success.” Remember that part?

Mr Mataboge: Yes, I do.

Adv Mpofu: Then let us jump to 167: “That trust or entity was in reality a proverbial “middle-man” between the financial sponsorship or assistance and Deputy President Cyril Ramaphosa.”  And then in 168, he lists many things that he did: “For this reason, whatever legal personality the President and his campaign managers may have chosen to clothe the repository of his campaign sponsorship or financial assistance with, cannot detract from the naked truth that (i) he pleaded with potential sponsors to give money in and for his name - CR17 campaign; (ii) he knew that the money was being given and spent on his own ambitious campaign came from an agreed structure known as CR17 campaign to which he also contributed; and (iii) he personally benefitted from the sponsorship that propelled his campaign to its logical conclusion - the Presidency of the ANC.  Election or elevation to a position you desire is a benefit. And the benefit is personal because the targeted beneficiary gets to occupy and enjoy the position and all its accompaniments. It is perhaps necessary to state the obvious, the position is not occupied by a group but by an individual. When the sponsored one attains the desired position, people congratulate him or her because they see him or her as the winner - the successful one.”

Paragraph 169 says: “The foundational values of openness and accountability demand that we pierce through the trust veil that is capable of inadvertently or by design, frustrating the all-important disclosure in this corruption-infested country. Why would anybody not want to know who is helping them and how reasonably practicable is that anyway? And why would they want to have their benefactors unknown to Parliament or the public? It bears emphasis that the “refusal to know” in circumstances where one is under the “duty to know” and the consequential failure to disclose is a sure, albeit unintended, recipe for corruption, under the cover of facilitation of a well-structured mechanism or legal stratagem, again not intended, but having the inescapable effect of evading accountability, openness, and disclosure.” I am sure you remember the part that deals with the Code as well. Can we jump to paragraph 173, Mr Mataboge?

Mr Mataboge: Right, you can jump to 173.

Adv Mpofu: To preface this for the benefit of the Members - this is apropos the issue of where the Public Protector got those emails and all that and whether they have been authenticated. The Chief Justice then says referring to the emails: “As a matter of practice and law, the contents of an email or a document by x and y may, assuming its authenticity is not disputed, be used to contradict and discredit their own oral evidence and vice versa. This extends to the evidence of a recipient of those emails who might have asserted a contrary view. He or she may be similarly discredited. For this reason, the Public Protector ought to be understood to be saying that the oral evidence of the President and the CR17 campaign managers regarding what the happenings in the campaign with regard to the donors and their donations was effectively belied by their own exchange of emails that revealed that the President knew what they claimed, in their oral evidence, that he did not know.” Do you remember that part, Mr Mataboge?

Mr Mataboge: Yes, I do.

Adv Mpofu: But then he says about the Code, vindicating you Mr Mataboge, that: “More importantly, as the Public Protector correctly found, when he received or caused others to receive the sponsorship or financial benefit, he was still Deputy President of the Republic and a Member of Parliament, the Code applied to him fully. He cannot be exempted from the consequences of what he did then by reason only of the fact that the “personal benefit” has worked so well that he now occupies the position of President in line with his and the sponsors’ set objectives.”

Adv Mpofu: Then go back to paragraph 179. He says, in favour of the Public Protector: “The audi alteram partem rule is an integral part of a fair trial process and a fundamental element of justice. How it applies to the Public Protector must be guided by how it ordinarily applies to court proceedings - civil and criminal.” This is concerning something that was raised in a question by Ms Sukers to Ms Mvuyane yesterday about the learnings that are gained from these judgments. And I referred her to this issue of the double audi. Are you familiar with section 7(9) of the Public Protector Act, Mr Mataboge?

Mr Mataboge: Yes.

Adv Mpofu: The Chief Justice agreed with your approach. He says: “ I disagree with the views to the effect that the audi principle obliges the Public Protector to inform a party, likely to be adversely affected by the remedial action, of the remedial action she is minded to take. In civil litigation, Judges and Magistrates are never under any audi-induced obligation to inform the parties of the remedy they are most likely to give. Sometimes they do make their preliminary views on remedy known to the parties and solicit their views. But this is never done as a result of some legal obligation whose failure to fulfil could result in an injustice or unfairness which could or would then give rise to the need to vitiate the decision or order of the court. Not even in a criminal case is a court, not even in a criminal case is a court required by the audi principle to indicate in advance what sentence it is likely to impose. Justice would be sufficiently served by affording all parties the opportunity to deal with the sentence that may be imposed regard being had to the facts of the case and what that accused person would have been convicted of.“

Adv Mpofu: And then he says in 181: “The test cannot be any higher when it comes to the Public Protector who does not even have the authority to impose terms of imprisonment on those she investigates. She is therefore only required to have the parties deal with what they consider to be a possible, but not necessarily a preannounced, remedial action in the event of the complaints under investigation being established, although not precludes that to give a hint, attack preliminary views on the remedial action, she's not legally obligated to do so. And section 7(9) of the Public Protectors Act, which really is a codification of the audi principle, must be understood in this context. I am sure you would agree, Mr Mataboge.

Mr Mataboge: Yes, I agree 100% because even on the 7(9) that we issue, there is the same request for extensions and so forth, and we engage further on whatever they submit.

Adv Mpofu: This is another issue I would have raised with Advocate Madonsela and I might take advantage of your experience. It is true that during the era of Advocate Madonsela, the section 7(9) reports were called provisional reports, correct?

Mr Mataboge: That is correct.

Adv Mpofu: I am sorry, section 7(9) letters, which are now issued in the Mkhwebane era were called provisional reports in the Madonsela era, correct?

Mr Mataboge: That is correct. Yes.

Adv Mpofu: And I think that is very important, because again, in this Committee, in terms of the CIEX report, it is said that the Public Protector Advocate Mkhwebane broadened the scope of the investigation as compared to the provisional report. I mean, that just does not make sense because the provisional report is one thing, and then the actual investigation is another, but in the Vrede Dairy matter, she is accused of the opposite. I am reading from the Judge: “Here now she narrowed the scope of the investigation required by the complaints as commenced by her predecessor Advocate Madonsela (who is said to be irrelevant) without providing any rationale or proper explanation.” That is what it says in 4.4, it is also said that Advocate Mkhwebane altered the remedial action proposal in the provisional report, prepared by her predecessor Advocate Madonsela, before issuing the final report without providing any rationale or proper explanation. I just wanted you to assist the Members, by explaining that what was known as a provisional report is the same thing as a section 7(9) letter. Correct?

Mr Mataboge: It is correct.

Adv Mpofu: And then in paragraph 182, the Chief Justice says: “Had it not been for the whistle-blower who shared the emails with the Public Protector, it would most likely have never been known that the President and his campaign team presented facts known to be incorrect, to the Public Protector. And with regard to these emails, which enjoyed some attention in the preceding paragraphs, it is necessary to do a recap on the relevant background. The President and the CR17 team chose to and represented to the Public Protector that he deliberately kept himself and was intentionally and strategically kept ignorant of the donors and the extent of their contributions to the campaign as well as the operations of the campaign in relation to those financial contributors. The Public Protector subsequently got hold of and relied on emails that belie the President and the CR17 campaign managers’ shared version of the President's professed ignorance. What follows is what the President and the Public Protector said in their affidavits.”

Adv Mpofu: Then they say what the Public Protector said when they said the Public Protector could not possibly have arrived at rational conclusions, blah, blah, blah, all those things. They quoted from the Public Protector’s answering affidavit which is part of the material evidence presented by Ms Mazzone to this Committee. The Honorable Chief Justice then quotes the paragraph of the Public Protector, which is the version she will give to this Committee when she gives evidence, paragraph 183. I am not going to read it out, I just need to link it to the alleged irrelevance of the President to this process. Chief Justice Mogoeng quotes the President himself, in paragraphs 182.13.11,13.12, 38, 39, 40, 87,88, 89 and 90 of the President and then this is the response of the Public Protector. She says (183.2.10.1): “It is telling that instead of denying the contents of the email, the President complains about how I obtained the emails to which I refer. I receive many documents from anonymous whistle blowers. These emails were provided to my Office anonymously and in hard copies. It is for that reason that I have no metadata data in respect thereof. However, even if I knew the identities of the whistleblowers, I have an obligation to protect them. What the President has to do is to take this Honorable Court and the country at large into his confidence and explain the contents of this email. I deny that I obtained the emails unlawfully.”

Adv Mpofu: And the whistle blower is again, another issue we raised yesterday. And the chief justice underlines this for emphasis. Mr Mataboge, can you assist us as to how much, in your experience as an investigator, you rely on whistleblowers and what your obligation is to protect their identities?

Mr Mataboge: I would say it is almost a daily occurrence because, if anyone were to check our files, they would see that most of them are titled anonymous, whereas we know who they are but we received them anonymously so they have no names. I could not say how many times, but they are a common occurrence.

Adv Mpofu: Thank you. And how seriously do you take your duty to protect those people? In other words, if the President says that you have these emails that show that the money went here and went here instead of saying he does not know anything about such money. If he asks how you got that information, would you reveal to a person like him, or any other implicated person, that person’s name?

Mr Mataboge: No. In fact, we have often been asked to bring the anonymous source for cross-examination or for questioning in some of these interviews that we have with the respondents, and they really want to engage with the whistle blowers, but we have never allowed it.

Adv Mpofu: Yes. And isn't that one of the essential fallacies that people who do not know the type of work that you do will equate to the type of evidence you deal with that type of evidence required in a court? I can tell you now, a court would never even look at evidence that if it cannot say, accepting extremely exceptional circumstances, it cannot say where that evidence came from, that it meets the rules of evidence and so on. But in your type of investigation and inquisitorial process, that is not the case. You are entitled to rely on evidence that would be rejected in a court of law, correct?

Mr Mataboge: That is correct.

Adv Mpofu: Right, that issue we will deal with when the Public Protector testifies because that is another problem that is completely misunderstood. Okay, to save time, I shall just read two paragraphs from 187 and 188. I think it is almost the crux of what the honourable Chief Justice says. At 187, he says, about this issue of anonymous emails: “The President says repeatedly that he was not afforded the opportunity to be heard before the emails were finally relied on, that they were stolen or irregularly-obtained from the CR17 campaign computers and because they constitute improperly-obtained evidence, that irregularity alone is sufficient to vitiate the entire Report.” Well, unfortunately, here, that means he confirmed that they were “stolen” from his CR17 campaign computers. Is that what you understood by that part?

Mr Mataboge: Yes, that is what I understand.

Adv Mpofu: And then he says: “The President effectively acknowledges the existence and admits the authenticity of the emails. He confirms that they are indeed communications between him and, among others, the CR17 campaign team contained in the computers of the CR17 campaign. He demands more than once that the Public Protector should explain to him how and from whom she obtained these admittedly truthful but reputationally damaging emails. Not once does he explain why he and his team chose not to tell the truth but to rather mislead the Public Protector as they did. Instead, he says that the emails are, in any event, irrelevant to the Public Protector's findings. But that cannot be correct. For, not only are the emails relevant, but they also expose the falsehood of the version that the President and the CR17 campaign managers chose to present to the Public Protector.”  Remember that?

Mr Mataboge: I do, Adv Mpofu.

Adv Mpofu: Then the crux at 188, he says: “And it bears repetition that that false version is that there was a deliberate plan to ensure that the President does not get to know who the donors were, how much they were donated, and how the financial assistance received for his campaign was being used. The emails squarely belie this assertion. The question we should then be asking ourselves is: why did the President and his team deliberately convey a falsehood on an issue so crucial and inextricably connected to the constitutional imperative to promote and observe the high ethical standards in obedience to the demands of our democratic State’s founding values - openness and accountability. He must have known that if the truth evidenced by the emails were to be told, the obligation to disclose the names of the funders and the size of their contributions to the National Assembly, and by extension to the public, would automatically and plainly be triggered.”

Adv Mpofu: In paragraph 190, he says: “Truth or integrity is, after all, at the heart of the Office of the President of the Republic, particularly in relation to his or her constitutional obligations. Deciding to present a version known to be untrue to an organ of state whose constitutional duty it is to strengthen our democracy is conduct that is inconsistent with that high office and the obligations that the incumbent has  - to uphold, defend and respect the Constitution. And so is the failure to report the sponsorship of financial assistance from donors that he has addressed and asked to donate to the CR17 campaign.”

Adv Mpofu: Chief Justice Mogoeng continues in 191: “ Lest we forget, we are not dealing here with an average citizen, but with the bearer of specific and frighteningly weighty constitutional responsibilities, [like suspending the Public Protector who is investigating him – sorry I am adding that in myself (Mpofu)] who is expected and required to lead by example and be above reproach.  His Office demands of him to be the lighthouse, the pathfinder, the embodiment of and vessel for the enforcement of high ethical standards, particularly the foundational values of our democratic state, in this instance, transparency, accountability and the supremacy of the Constitution. Like all of us, he has rights. But unlike all of us, he does have special obligations, not imposed by courts, but by the Constitution and legislation. It is the President, the number one or first citizen of the Republic, who we are talking about here. His is a distinctive and supreme office in the land that does not permit the employment of extraordinary technicalities when issues of ethics, transparency, accountability, upholding and respecting the Constitution has to be considered and pronounced upon. It is in this context that one is constrained to keep on saying that technicalities must not be allowed to easily frustrate the fulfilment of the core constitutional obligations, and the attainment of substantive justice.”
 Do you remember that question, Mr Mataboge?

Mr Mataboge: Yes, I do, Adv Mpofu.

Adv Mpofu: And then he says, towards the end, and this is an important part for you and your findings that we went through earlier. In paragraph 192, the Chief Justice says: “It bears repetition, that the President carefully and intentionally gave a false version of what he knew to be the case to the Public Protector. It bears repetition, that the President carefully and intentionally gave a false version of what he knew to be the case to the Public Protector. [Repeated by Adv Mpofu] What he did is highly unethical, and a resounding rejection or dereliction of his key constitutional obligations. This is therefore not a question of the President and his team mistakenly putting forward a version, such as he did in the National Assembly with regard to the alleged Bosasa donation to his son, which he subsequently corrected. It is rather a case of a calculated misrepresentation of fact, by someone who is confident that the truth would never be uncovered. No wonder the President and his team have made no attempt at reconciling their own version with the emails. The two versions are mutually exclusive or destructive, and obviously incapable of reconciliation. And all the President could do and did was to keep on asking the Public Protector and I paraphrase; how did you manage to access this well-kept and closely guarded secret? Who gave you this painful who gave this painful truth to you?” That is the Chief Justice’s conclusion at the end of that summary, that all the President could do and did do was to keep on asking the Public Protector Advocate Mkhwebane: How did you manage to access this well-kept closely guarded secret? Who gave this painful truth to you?

Adv Mpofu: Then the last question relates to this thing about whether she prescribes or refers. And then he says in paragraph 194, and this is important: “It appears that she acted in terms of section 6(4)(c)(i) of the Public Protector Act to recommend to the Police and the Prosecuting Authority to pursue possible charges of money laundering against the President. The subsection reads: “The Public Protector shall be competent: (c) at a time prior to or during or after an investigation – (i) if he or she is of the opinion that the facts disclose the commission of an offence by any person to bring the matter to ‘the notice of the relevant authority charged with prosecutions’.” That is the issue we covered earlier - she cannot prosecute, but she is obliged by law to refer such criminality to the relevant authorities. Does that capture the section you were looking for or were referring to earlier, Mr Mataboge?

Mr Mataboge: Yes. Correct.

Adv Mpofu: Then the Chief Justice says finally: “And this is what she did in relation to the money laundering charge. I hasten to add that she was wrong to have been somewhat prescriptive, by couching a referral to the offence in the form of a supervisory order. Hers was simply to refer. Not to monitor and not to enforce so.” The Chief Justice criticised the Public Protector for some of the language, but he says this: “If the Public Protector “is of the opinion that facts disclose the commission of an offence,” she's empowered to notify the prosecuting authority of what, in her opinion, rightly or wrongly, constitutes the commission of an offence. Nothing in section 6(4)(c)(i) limits her to the type or class of offences that she is permitted to notify the NPA about. Even murder or robbery may be brought to their attention. The fact that she does not bear the primary responsibility to investigate criminal offences or is not expressly empowered to do so does not mean that she may not look into and subsequently refer to the relevant authority, any offence that is intertwined with allegations of unethical conduct that she is otherwise entitled to investigate.” Mr Mataboge, is that how you understood the obligations of the Public Protector in relation to criminality? And would you like to explain that referral power?

Mr Mataboge: Yes, that is our understanding. We were not being prescriptive there, except that when we do remedial action, we have to monitor remedial activities, so maybe that sounded like the Public Protector was prescribing to the NPA when insisting on the reporting back of the possible charges that profit.

Adv Mpofu: Yes, thank you. And then he says at 197: “The allegations of money laundering and the CR17 campaign are not divorced from the donation that the Public Protector was asked to investigate. It is an integral part of that investigation. This is so because the source -  the donation - is the same. They are virtually identical in nature or character. Honourable Maimane’s concern in this regard [ - and we are intending to call Mr Maimane to give a perspective of what was his complaint. But the Committee yesterday may have some views on it, but if eventually, they allow him to come, he will give a perspective of what was behind his complaint. Because isn't it important, Mr Mataboge always to remember that the people at the Public Protectors Office do not go around fishing for these things; someone complains to you. And that is how you take it up.

Mr Mataboge: Yes. We always say you must be true to the complaint when you investigate.

Adv Mpofu: And then He says: “ Mr Maimane’s concern in this regard was about how they donated money moved through several intermediaries. It was therefore during and after the investigation of the donation to the CR17 campaign that she formed an opinion that the President might have committed money laundering, and this falls squarely within her section 6(4)(c)(i) one powers.”  Then regarding this issue that I raised with your colleague, Ms Mvuyane and this is about what brings us here to what the Chief Justice called the magnification of the public protector’s errors. In other words, he understands that you and the Public Protector might have made errors, but he says that they get magnified. He says in 198: The following wisdom-laden words of caution by Madlanga J. encapsulate the concern I have about the treatment of matters involving the Public Protector Advocate Busisiwe Mkhwebane, particularly her findings and recommendations or remedial steps. Although the context was different, the message or principle is just as apposite and telling in all other cases. There Madlanga J said: “There appears to be a developing trend of seeking personal costs others in most if not all matters involving the Public Protector.”  [C]ourts must be wary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards. Whether inadvertently or otherwise, the High Court judgments in EFF  v Gordhan matter and in the instant matter are instances where the High Court fell into that trap.” Chief Justice Mogoeng continues: “I voice these words of caution because of the disturbing frequency and regularity of applications for and awards of personal costs against the Public Protector. What is particularly disturbing is that it is clear that the applications and awards are not always justified.” In paragraph 199, the Chief Justice says: “There is indeed a disturbing tendency by some of us to, presumably without intending undue harm or injustice, unduly magnify virtually every error of the Public Protector, real or mistakenly perceived. This is quite surprising, because Judges, with more experience as practitioners before their elevation to the Bench, and with more years of service as Judges than the 10 years minimum requirement as an Advocate or the mere fact of being a Judge, regardless of how long to be appointable as a Public Protector, have committed similar or more serious errors. And we are not as harsh on them, or should I say on ourselves, and rightly so.”
 
Adv Mpofu: And then, in probably one of the acts of most self-effacing Christianity, which is our chief former Chief Justice, he makes an example against his own interest, where he was castigated, rightly so by the Supreme Court of Appeal, for having sat as a Judge in a case where his wife was the prosecutor. And this is the kind of thing that he says he was never impeached for. In paragraph 200, he says: “By way of example, I presided in a matter in which my wife was appearing on behalf of the state. And that was S v. Dube. The Supreme Court of Appeal correctly and most courteously held that I should have granted the recusal application necessitated by the very appearance of my wife before me. [As an aside, in this Committee that kind of thing is not a problem - if Chief Justice Mogoeng were here, he would have been fine - Adv Mpofu] “Harms, JA’s son appeared before a Supreme Court of Appeal panel of which he (the father) was a member. And so did Chaskalson P’s son in this Court. With the benefit of hindsight, I have realised that a reasonable apprehension of bias would most likely be entertained in matters of this kind. Each of us should therefore have recused himself without the need for an application to that effect. As judges, we should therefore always be alive to the reality that that elevation to the high judicial office does not have the inherent consequence of clothing any of us with a mantle of infallibility. For this reason, when we criticise others, we will do well to be alive to our own fallibility. But more examples are necessary to drive the point home.” So what the Chief Justice was saying was “Do unto others as you'd like to be done to you,” which most people should adhere to. He says, Now this goes to a case that Ms Mazzone has presented to this Committee for castigating the Public Protector. That is, you'll find that in the charge sheet, in chapter seven, the addendum of Ms Mazzone, the case of Commissioner South African Revenue Services versus Public Protector, the High Court one is number 5.2. This is where probably the worst example where the judge insulted the Public Protector. Says the Chief Justice: “Without any basis in fact or law, or Mabusa J concluded in Commissioner South African Revenue Services versus the Public Protector that the Public Protector had a “proclivity to operate out of the bounds of the law” and “a deep-rooted recalcitrance to accepting advice from senior and junior counsel.” And this was cited as proof of her unreasonable, arbitrary and malefic conduct. He went on to other punitive costs against her in, in her personal capacity, a shocking and most unjust decision under the circumstances. Similarly, in Nkabinde, this Court held that two of its members had erred. What all this means is that the manner and the extent to which Judges and Magistrates criticise litigants, legal practitioners and witnesses should be a mirror image of the same measure of criticism they would find acceptable, under comparable circumstances were it to be meted out to them by their colleagues, the practitioners or the public. We must therefore do to others as we would have them or have others do to us.”

 In the last one, the Chief Justice says: “That said, I am also concerned about any notion that somehow that she amended the code without authority,” [This is one of the charges here - Mpofu] “ I think hers was more of giving a wrong meaning to a legal instrument than amending it. But returning to the thrust of my concern, it cannot be correct, to brand virtually everything she did in line with her constitutional and statutory duty to expose and help route out unethical conduct as shockingly wrong and worthy of strong criticism, and outright rejection. That in my view, constitutes the magnification of her errors that courts should, as a way of distinguishing themselves from the media commentators or analysts, the general public or the so-called court of public opinion, be deliberate and intentional, about steering clear of. After all, that is what fidelity to our oath of office demands of us all the time. It bears reputation repetition, that all litigants, practitioners, and witnesses deserve only the measure of criticism that we as judges and magistrates would be happy to be recipients of under similar circumstances. And that applies with equal force to the Public Protector. I, therefore, support the main judgement only to the extent that it is reconcilable with these reasons. In some, I uphold the appeal, make no others to cost and, and so on.” That is the end. Do you remember those questions, Mr Mataboge?

Mr Mataboge:   Yes, I do.

Adv Mpofu: Yes. That judgment and the two approaches - to what extent, and I want you to say this in your own words, does this judgment then at least vindicate or reflect your true approach as opposed to the one that says that you were out to get Mr Ramaphosa? The real question I want you to answer before you go, is how does it make you feel to be accused of the opposite of what the Chief Justice says you were doing?

Mr Mataboge: It was and still is disappointing. I need to take a step back and go back to the time the judgment was announced because part of the internal process is that whenever judgments are given, our legal services, meet with investigators and take us through the basis for the further review and the judgment that was passed. So when the high court judgment was passed, we kept on discussing the judgment. And my take when I was asked to respond to that, I said that can't wait for the day the Constitutional Court makes a judgement but even if it were to be in the negative, I would stick by that report. And when this judgment came out, and the minority judgment was better, I said to my colleagues that at least there was one Voice of Reason for us as investigators; one thing that has perked me up and put back my self-esteem as a chief investigator. All was not lost because somebody saw what we had done. It was not as bad as it would have been if it were not for that man. If it were not for him, I  do not know, maybe I can use the word despondent and then very discouraged.

Adv Mpofu: God bless, my friend, CJ. And were you ever, as part of this alleged (add non-existent) conspiracy and vendetta against Mr Ramaphosa charged at the institution where you are now? Did you ever face any disciplinary action? Or is it just the Public Protector who is supposed to be the only member of that conspiracy who must be removed from her office? Let me put it this way: if it were a genuine concern to assist the public, if it were not a witch hunt against a defenceless black woman to get rid of the Public Protector for ulterior purposes by powerful forces, would it make any difference to just remove her from office and leave the likes of you and Ms Mvuyane and others who are allegedly part of this nefarious conspiracy untouched? Maybe the first question is: were you ever charged with or accused of any wrongdoing?

Mr Mataboge: No, I was never charged but in the office when this happens to an investigator, you are looked down upon by your colleagues as if you know you have misled people. But I was never charged.

Adv Mpofu: And in your social life? If people who know that you are involved in such a high profile and important job for the country, how does it make you feel when you then get lambasted as some vendetta-driven conspirator?

Mr Mataboge: It affects your image and your profile in the public space, especially when you come from a background of a university and some of your colleagues are in high positions, it impacts negatively on your person.

Adv Mpofu: Thank you. So from the hateful, cruel, bigotist, and prejudiced people who want to get rid of the Public Protector, do you think that anyone cares about “collateral damage” to that mission, such as yourself, and the other people who then get socially castigated and hurt in the manner that you have expressed?

Mr Mataboge: Maybe if they had a chance, they would come for us as well, I think.

Adv Mpofu: I agree. As they say, one day they come for the communists, one day they came for these ones and I keep quiet, and lastly, one day they will come for me. So I hope they never come for you, Mr Mataboge, but I think we have the sympathies of the majority of South Africans and right-thinking persons. At least you have the sympathy and rational support of the Chief Justice of this country. Thank you, Chairperson.

Chairperson: On that note of the former Chief Justice, we are going to pause for the day. The meeting will be adjourned until nine tomorrow.

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