PP Inquiry day 30: Nelisiwe Thejane

Meeting report

Chairperson: The time is now three minutes past nine. Let me welcome the Members of the Committee, all of us being on virtual on this day, 13 September 2022. Also welcome the Public Protector, if she has joined already; welcome the evidence leaders, Adv Ncumisa Mayosi and Adv Nazreen Bawa; welcome to the PP’s legal team led by Adv Mpofu; members of the public; the media and the entire support staff. Colleagues, we were together on Saturday to conclude Witness, Ms Motsitsi, and then we started with Ms Nelisiwe Thejane. Evidence was led for just less than three hours, and we ended at just three minutes to six. Today we proceed to start the cross-examination of Ms Thejane. I just want to check if Ms Thejane is already on the platform.

Committee Secretary, Mr Thembinkosi Ngoma: Chair. I'm just checking on with her. I'll let you know as soon as she's joined. Thank you very much.

Chairperson: I will pause for a minute to allow her to join.

Adv Nazreen Bawa: Chair, good morning.

Chairperson: Morning.

Adv Bawa: The witness is in the process of joining.

Chairperson: That's fine. We’ll wait for her to join. Thank you. Adv Bawa, this process of the witness joining seems to be taking long. Is she travelling to this meeting?

Adv Bawa: Chair, we’re not sure what is happening, but we think there's a problem in endeavouring to connect. I don't know if it's a load shedding problem but we've resent the link so if the meeting could bear with us for a minute.

Adv Dali Mpofu: Chairperson? Yes, no, I thought we can start even without the witness because I need to address the Committee on an issue that doesn't concern the witness. So while they’re trying to find the witnesses and so that we don't waste time because I have a time problem.

Chairperson: I will wait for the witness to start because we’re starting with you with the witness.

Adv Mpofu: No. I'm saying I want to address something that does not concern the witness. You don't need the witness for what I'm going to do. I'm going to do an application for a postponement.

Chairperson: I'm going to wait for the witness, Adv Mpofu, then we’ll start the meeting. Mr Ngoma, is the witness on the platform?

Committee Secretary: Yes, Chairperson, the witness is on the platform. Ms Thejane is on the platform. Thank you, Chair.

Chairperson: Thank you. Ms Nelisiwe Thejane?

Ms Nelisiwe Thejane: Good morning Chair, my apologies for the delay. I had technical challenges and I apologise to you and the Members.

Chairperson: Good morning. Let's just do this. Just three things. Firstly, you are reminded that you are still under oath. Two, the meeting was set for 9:00. We started 9:03. It's now 9:18. You've eaten 15 minutes of the Committee time. Did you get the meeting link last night?

Ms Thejane: No Chair. They had to resend the link this morning. But there are a bit of technical glitches as well this side. The network has been very slow. They've had to resend it.

Chairperson: Okay. Thank you. Welcome back to the enquiry. We will proceed with your cross-examination and Members' questions thereafter. Today's meeting is set to interact with you as witness. We'll continue with the next witness tomorrow. The time is 9:20. I want to recognise Adv Mpofu to take the platform and start the cross-examination of the witness. Adv Mpofu.

Adv Mpofu: Yeah. Thank you, Chairperson. Good morning to you and everyone. Good morning, Ms Thejane. Chairperson, as I indicated to you I'm not going to start any cross-examination. I explained to you that this morning we're going to be doing an application for postponement. Unfortunately, there's another development that has happened now. The Public Protector is not here. She's not well. She's been taken to the doctor. But that's not the reason we were going to apply for this application. It just happened. I learnt about it this morning myself. So it's just an additional reason.

Chairperson: Is that an apology you are placing on behalf of the Public Protector that she’s not present today?

Adv Mpofu: No, I'm not placing an apology. I'm saying she's not here because she's just been taken to the doctor this morning.

Chairperson: No, I'm just saying if it is not an apology, how do I know because she's got to indicate that herself when she's not present in the hearing.

Adv Mpofu: Well, I'm indicating to you that she’s sick, Chairperson. I’m indicating to you on her behalf that she's at the doctor now. I don't even know where. She must be in Pretoria at the doctor somewhere. I was informed that that is the situation. So I'm just placing that on record and telling you that she's not here because she's sick. My understanding is that she has to be here anyway. But that's fine. That, as I say, that is a development that just so happened. But Chairperson, the reason why we indicated to you I think on Sunday or yesterday that we would be asking for this postponement in the letter that we wrote to you yesterday. But if you allow me just to take you back a bit Chairperson as to what has led to this situation? Fortunately, some of the issues that have led us to the application have played out in this Committee. So I'll start. On Friday, as you know, there was a judgement in the Western Cape High Court, which I indicated here, where in the Public Protector was effectively reinstated into her position, because her suspension was set aside. Around the time I indicated here, around three o’clock or so. A series of things happened, which I don't need to bore you with. But the relevant one is that that later that evening, the Democratic Alliance, which is the complainant here and a party in those proceedings, filed a notice, a multipronged notice one or two. The relevant one is the notice for application for leave to appeal directly to the Constitutional Court. In other words, asking for direct access. Now, the legal effect of that development, which happened in the evening just before 8pm, was that the judge… the decision of the court automatically becomes suspended. So if you like, the Public Protector was reinstated into her job for about five hours from about three o'clock till about eight o'clock. As she indicated, because she normally does that… she was going to go to work on Saturday. Sometimes she does it at home but this time, because we were sitting here she was going to be working from the office. And we were also going to be sitting from the office. And I think because of that the DA then sent the thing in the middle of the night, sent us an application for leave to appeal. The result of that, Chairperson, was that we literally did not sleep on Friday night as a legal team. And because unfortunately it was a Saturday when we were coming to sit here. Therefore, we didn't sleep at all and drafted the application in terms of section 18 of the Superior Courts Act, but we don’t have to get into that. The simple way to describe that application is an application that says, Chairperson, that normally if there's an appeal the judgement is suspended. But there's a provision in the law, which creates an exception to that rule where you can have the judgement executed while the appeal is pending in certain circumstances. So we made that application in terms of that section and it was served on Saturday, while we were having this session here. You will remember then, Chair, that at the end of that session I indicated to you, because it was at that point that you said we'll be sitting today and tomorrow. I indicated that we had now just been saddled with this situation, which had happened overnight. I mean, you wouldn't have known about it, nobody would have known about it, as I've explained here. But I thought that in fairness to the Members, so as to avoid any inconvenience, I should place it on record. Which I did whenever we finished on Saturday, on Saturday evening. I then said I would raise this matter in the back room with you and evidence leaders. Indeed, on Sunday, I sent a message to the evidence leaders indicating that we had been put in this situation of an urgent application, which ordinarily would have been heard this morning. But for unrelated reasons it has now been set down for Friday. The parties to it have agreed that it will be debated and it will be argued on Friday because there's a whole lot of developments, exchange of papers. I have been here since 4:00 this morning because I had a deadline for 9:00 for some of the papers, which we've just filed now. Then there are other parties that are joining in. Maybe we missed the deadline by five minutes. We've just sent out the document that we've been working on this morning. Anyway, the result of all that, Chairperson, is because of the situation that we find ourselves in, that was not of our making, but was of the making of the DA… Incidentally, the President on Sunday also joined in the DA’s application and opposed our Section 18 application, but indicated that he would send his papers yesterday, which he did. The application for appeal which mirrors the one of the DA and therefore we had to respond to the President's documents that arrived yesterday. The long and short of it, Chairperson, is that what we have said to you. It’s just been pointed out to me that some of the other developments is that other parties have now joined in. So there's papers running up and down. We've just been informed now that the ATM, the UDM and I think the PAC have indicated to our attorneys that they are going to join in. And we also got a letter from the Acting Public Protector, or the Deputy Public Protector, that she also intends to intervene in the application. So we're sitting now with something like, I don't know, eight to ten parties that are going to be part of this application. And that's understandable, Chairperson, because this is quite, this is probably one of the biggest things to happen in the legal sphere. So it's quite an understandable development that so many parties are joining in. Without getting into the merits of the matter, I can just say that this is a case that will make the Nkandla case look like a Sunday picnic. Because it's quite… it's ten times the seriousness of the Nkandla case that we've been talking about here many times as a turning point case, but that's a story for another day. The long and short of what I'm saying to you, Chairperson, is what we were predicting on Saturday and what we've been at pains to talk to you and the evidence leaders about for the past two days, is that we are not in a position to proceed with this enquiry right now. Because it's the same Public Protector who's involved in this very serious matter here, but also in the other very serious issue of her suspension, which is playing itself out in the courts. As before, Chairperson, and that's why we were disappointed with your attitude. Because previously, in July I think, when the matter ­– that is now going to court – we asked to be accommodated to be able to prepare and the Chair was kind enough to allow us, I think, three days for preparation or five days if you include the weekend. It's the same matter now but it is now coming in even more urgently and, as I say, with more far-reaching implications than even the first one. As we predicted we would either have been in court today or we would be involved in what we're involved in now, which is an exchange of papers. I mean a flurry of papers being exchanged between the parties and parties joining in and others intervening and so on. All within the next 72 hours, we’re going to be sitting in a court in Cape Town and the case will be playing itself out. So the only relevance to you, Chairperson, is that as I say we then wrote you a letter yesterday where we explained. It says in the letter we request application for adjustment of the programme. And it's not long, I'll just read it out quickly. We said, 'Dear Hon Chairperson, 1. We have this morning just received a revised draft programme of the Committee from the Committee Secretariat.' Maybe we’ll load it for the attention of the Members, but I’ll read it to save time. '2. As we indicated on Saturday and as you may be aware from the public domain, the Public Protector has been drawn into urgent litigation necessitated by the reaction of the DA and subsequently the President and the Deputy Public Protector, to the court judgment delivered last Friday setting aside her suspension. 3. Indications are that the resultant litigation will take place this week and involve numerous parties on both sides. It will be impossible for the Public Protector to consult her legal team and at the same time honour her obligation to attend to the enquiry. 4. The Public Protector and her team will therefore not be able to attend to the enquiry this week. We are deeply disappointed by the report received from the evidence leaders that the Chairperson has rejected our proposal for the adjustment of the programme to accommodate the unforeseeable clash of dates which was caused by the failure of the evidence leaders to finish their case on the first agreed date of 26 August 2022 and even on the extended date of Saturday 10 September 2022. The situation was further exacerbated by our accommodation last week of the Committee having to attend a sitting of the National Assembly and the hours spent on the unprocedural cross-examination of the witness, Mr Thembinkosi Sithole. 5. Under these circumstances it is inexplicable, unfair and unreasonable to refuse to grant the Public Protector her first request to be accommodated as a consequence of the above state of affairs. 6. We therefore appeal for you to reconsider our request. Failing such reconsideration please accept this letter as constituting a written application for a postponement of this week’s sittings as articulated in this and our previous communications on this issue'. That was a reference to the message to the evidence leaders. 'We await your urgent response hopefully by no later than one o'clock,' that's yesterday, 'so that we can consider our client’s options and advise her on dealing with her predicament'. That letter to you, Chair, was sent yesterday. It's dated 12 September and you did not meet that deadline of one o'clock. But in the evening, we received a response from you, thankfully, also dated 12 September. I’m not going to read it out, it's too long. But the long and short of it, we can also place it up. It's about four pages. The long and short of it was that you refused our request and suggested that the Committee must nevertheless sit, which already is prejudicial, because we're now sitting here and talking instead of doing the work that we were supposed to be doing, which we were trying to avoid and also to avoid inconvenience to the Members. Then in the letter you place various reasons, which I'm sure will be articulated about the need to sit even if we're not ready, as we indicated. But Chairperson, the problem is this, we can't be. You can't force us to do something which really will be prejudicial to the client, which is the Public Protector, and that is to conduct such a serious matter as her impeachment proceedings when we are placed in a situation of not being ready and attempting to assist her and the public to have a Public Protector in office, as found by the court last Friday. As it is clearly being frustrated by the latest developments that I've mentioned, it's a very serious matter that is playing out now, between last Friday and what will happen this Friday in court. As I say, I don't want to get too much into those issues now, because they're going to play out in court, suffice for you to accept that it's a very, very serious matter, indeed, which involves the life of… political life of this country and probably the life of the Office of the Public Protector. That is not to say what is happening here is not also important, in fact those two things are related. But the point is that we are human and so is the Public Protector, and so she can only attend to one thing at a time when the two things are on the scale of the two things we're talking about. We would have really expected more, I wouldn't call it empathy, because I don't think we should even talk about that. But more understanding or pragmatism or practicality from yourself and the Committee to the extent that the Committee is involved in this, because this is a situation we didn't invite upon ourselves. It's a situation that developed. It's a situation that we have warned about. It's a situation that we have written to you about, pleading for reasonableness and fairness. And you have unreasonably refused to accede to our request. Therefore, that is why then we’re left with no option out of respect for this Committee, even though it's inconvenient even to be sitting here, as I say, to come here and appeal to your sense of justice and fairness and reasonableness to allow the Public Protector to attend to her pressing problem. As I said, that was before we didn't even know, of course, that she was going to be sick today. And that just adds to the… I don't even know the nature of her illness. I just know that it's serious enough for them to have taken her to the hospital or to the doctor. I hope it's not related to the stress of your refusal to accommodate her reasonable request. But be that as it may, that's the situation. And the longer I talk, the more we are taken away from the work that we're supposed to be doing to prepare for the big matter that is coming up on Friday. So that's where we are, Chairperson. We would really appeal to you that today and tomorrow's proceedings not be scheduled or be unscheduled, or whatever the correct terminology is, so that we can attend to this matter. One of the reasons we wanted to do this matter this week was, Chairperson, exactly because we didn't want, for example, to set it for another week and then we start interfering with the programme of this Committee too much. You will remember, Chairperson, that as indicated in the letter to you, the original plan was for the evidence leaders to call their last witness on 26 August and then we would have had a two week break and then we would have started our witnesses on 8 September, I think. That programme did not materialise because for understandable reasons, the evidence leaders didn't finish their witnesses. That date was then shifted to Saturday 10 September which was last Saturday. That's one of the reasons we were sitting on a Saturday. Again, they did not finish their witnesses. We were accommodating. We sat on the Saturday. We went on. The delays, as I said, two of them were caused by the half day that was taken cross-examining Mr Sithole. Then the other half day, the Members wanted to go to the House, I think. I'm not sure it was Thursday or Friday. So without those we might have finished on Saturday. But again, we understood that because we know these kinds of things, you can’t plan them perfectly. Things happen, life happens while you do this. Witnesses become unavailable. And that's why we've been so accommodative. I indicated to you last week, that of the witnesses that we've called here, probably, I hope I'm not exaggerating, half of them we did not get the statements in the seven days that is required. But we've never complained about that because we understand that these things don't happen, you know, on paper as they happen in real life. So that's why it's disappointing for us to be treated like this now when we make what is a reasonable request, under circumstances that have been thrust upon us. But, you know, it's the kind of attitude that we've come to expect. But we hope that there'll be some level of empathy, because I don't know if any other person facing impeachment would be treated like this, to insist on going ahead even when she now is sick. And even when she is engaged in a battle for her career on two fronts at the same time, not of her own choosing, but the making of her enemies. But again, that's another story for another day. For now, we'd like to appeal to you and the Committee to allow us to go and attend to the urgent tasks that we have to attend to. Also, to find out the extent of the illness of the Public Protector. Thank you, Chairperson.

Chairperson: Thank you, Adv Mpofu. That's the time I would have given you to place on record what you have placed on record. Just a number of questions to raise before I invite anybody else to speak. Firstly, as I sit here, as the Chair, and I would have asked you this, I have no letter of apology from the Public Protector or anything. And so besides what you've just said, and I've asked you if that's an apology, you said it's not an apology. So I would regard her as being absent in this hearing today because I’ve got nothing that has been sent to this Committee, either via the Secretary or myself about her absence here today. So today she's absent. I have no apology for her not being here. I hear what you're saying. And I'm not trying to trivialise what you're putting on record. I need that if that's the reason why she's not here.

Adv Mpofu: Yes, Chair, maybe let's just kill that one quickly. Yes, you're quite right in your summary. The position, as I indicated, that she's gone to the doctor, so presumably the doctor will give us something that indicates what's the problem. I don't know what the problem is. I've just been told by a family member of hers that they've taken her to the doctor, so I'm sure the doctor will do whatever needs to be done and then you will get your apology or explanation or whatever you want.

Chairperson: Thank you, I hear that. Secondly, Adv Mpofu, the court is set to sit on Friday. By nine o'clock you would have submitted whatever you wanted to submit. Clearly, all the affected other parties have not submitted anything today, as far as I'm aware. And so the key question, perhaps I would want you to come back and respond to. Exactly and precisely, what papers are you working on for Friday that require you to be excused today and tomorrow, when you have the time to prepare for Friday? Exactly what is it because I am aware that Friday is not about the Constitutional Court, it's the Western Cape High Court. So what is it that that you're working on? I heard you're raising thousands and thousands of papers, in this regard. Just respond to that issue first, before I proceed any further.

Adv Mpofu: Okay. Chairperson. It's shocking that you’re asking me that. But let me tell you, just to indulge you; not that you will appreciate or understand some of the things I'm going to say. I’ve explained to you that we literally have not had sleep for the past three days, because this is a fast-paced litigation, which originally would have happened within a truncated period of two or one working day actually, if it had been sitting today. But for various reasons, including those that I'm not going to repeat, that various parties have joined in. That was unanticipated. In fact, when I spoke to you on Saturday or rather to this Committee on Saturday about this matter. At that stage, the parties involved in the litigation were the Public Protector and the Democratic Alliance only. Since then, between then and now, the President on Sunday served us with papers and a letter. Yesterday, the President served us with another set of papers, a different sets of papers in the Constitutional Court. Yesterday we were served with a letter from Adv Gcaleka indicating that she's going to put an application for intervention in terms of the rules of court. And this morning, we've got an indication that the UDM, and the ATM, and the Pan Africanist Congress of Azania are also going to join in. So from the position that I was talking to you on Saturday of two parties, we now have, what, three, four, five new parties that have just joined in the last 48 hours. Some of them in the last two hours or three hours. So that, if you understand it, means that there's going to be a lot of exchange of papers, which is why we agreed, even though we are the aggrieved party and would have wanted this to happen sooner rather than later. But out of realism, we had to accept the idea that the case can only take place on Friday. Because when were all these people going to file their papers and we respond to them, and then we answer? We must do heads of argument. That is a document where you explain to the court all the intricacies of this case. I don't want to bore you about the complications of this matter. But suffice to say to you, it involves section 18 of the Superior Courts Act, which is quite a complicated affair. It involves section 172 of the Constitution. It involves either section 172(1) or 172(2). It involves section 96 of the Constitution, the one about the oath of office of the President. It involves conflict of interest on the part of the President for his Phala Phala gig and all sorts of issues that were raised. Chairperson, I'm sure by now, because of our reference to it here, you must be familiar or maybe you did read the Nkandla judgement at some stage here. And I've indicated to you that this matter is ten times that in terms of its significance and perhaps its complexity. So I'm not going to sit here and tell you that I'm now writing this letter or that affidavit, because firstly, it will be meaningless. It might just be Greek to you but just take my word that it's a very involved matter. And we have to… it's happening on an unprecedented pace. Probably that courtroom is going to be full of ten or 20 or more lawyers on Friday. That's the level of the matter that we're dealing with. And we have to consult as these things are coming. In fact, I'm worried now about even this development of the health situation, because in the meantime, throughout all that we have to consult with the Public Protector. I've just told you, I don't know if you didn't hear me, that I've been drafting papers since 4:00 this morning so that I can be ready at 9:00.

Chairperson: Thank you, Adv Mpofu.

Adv Mpofu: No, don't thank me yet.

Chairperson: Adv Mpofu, I’m chairing the meeting.

Adv Mpofu: But can I finish?

Chairperson: I’m chairing the meeting. I’ve heard what you’ve said.

Adv Mpofu: No, Mr Dyantyi, even if you’re chairing let me finish talking. Let me just finish. I'm finishing now. Okay, no, I'm saying that Chairperson, that if, just to give you a practical example. Now, I'm supposed to be asking questions to Ms Thejane. Normally I would have sat this morning to prepare for that to recap her evidence of Saturday. You know, structure my cross-examination and ask her questions. But instead, from 4:00, I was sitting doing a document in response to the President's lawyers, I wish I had it here. I could flight it. We had a letter last night from the President's lawyers that said they need that document by nine come hell or high water. Because, and that's also understandable, they have to respond to it by five o'clock, I think, this evening or 9pm. So then they made it clear that they need it. I'll put it up or I'll send it to you, Chairperson. So I had no choice in the matter. How do you expect me now to ask questions to Ms Thejane and do justice when I have not even prepared?

Chairperson: Thank you.

Adv Mpofu: Hold on, Chair. I won’t be long. Just one thing, just one. This is a letter we received at about 10pm last night. It says, 'Dear Mr Seanego, as you are aware our clients have filed a notice of appeal in the Constitutional Court and in the alternative have brought an application for a direct appeal under case number CCT 252'. This is from the President's lawyers. 'This bears on your client’s application in terms of section 18. In the event that your client sits and has to supplement the founding affidavit in this application, light of further developments regarding the President's application to the Constitutional Court, we invite her to do so on or before nine o'clock on 13 September 2022'.

Chairperson: Which you have done. Thank you, Adv Mpofu.

Adv Mpofu: That’s the President’s. You asked for the details. Now giving them to you, now you are stopping me.

Chairperson: Thank you, Adv Mpofu. Let me say this to you, you are asking that you will be granted permission not to be here today and tomorrow. If that means that you've got to place Greek, Italian here or anything, that is what will be required because.

Adv Mpofu: That’s what I’ve just done.

Chairperson: Please don’t respond while I'm talking. I did not do that to you.

Adv Mpofu: Okay, no I'm just telling you that's what I’ve done. You did interrupt me.

Chairperson: The permission that I must grant to you must be based on what evidence you put here whether you think it is Greek to me and so on.

Adv Mpofu: It is.

Chairperson: You’ve got to place it here. Secondly, I now get an indication that says you are saying you are not ready for cross-examination today.

Adv Mpofu: You got that indication yesterday.

Chairperson: You are not ready for cross-examination. That seems to be what you're also placing now that you're not ready to do the cross-examination. I'm going to come back later on the issues of the letters and my response to your request. But I'm just going to pause because you’ve placed many other accusations, even on the evidence leaders. Adv Bawa, if you have got any comment you want to make? I’m going to allow you to do that.

Adv Mpofu: I didn't place accusations. Don't say that.

Chairperson: Adv Bawa. Don't tell me what to say and how to say it.

Adv Mpofu: No, you can say it about other people. You're saying it about me.

Chairperson: Adv Bawa. I'm not recognising you. I’m recognising Adv Bawa.

Adv Mpofu: Yeah, well, I'll speak in the end.

Chairperson: Thembinkosi, please mute Adv Mpofu. I'm on the platform. Adv Bawa.

Adv Bawa: Good morning, Chair. I have.

Adv Mpofu: Chairperson?

Chairperson: Adv Bawa is on the platform. I did not recognise you, Adv Mpofu.

Adv Mpofu: No, Chair.

Chairperson: Adv Bawa is on the platform. Please proceed, Adv Bawa. Please proceed.

Adv Bawa: Chair, I have three issues that I'd like to raise so that we can get clarity on what is being sought. Maybe I must place on record that dates have been…

Adv Mpofu: Chairperson, I need to raise an objection please.

Chairperson: You're going to wait for Adv Bawa to finish what she’s saying.

Adv Mpofu: I’m raising a point of order, Chairperson.

Chairperson: She's on the platform. Please respect that, Adv Mpofu. Proceed, Adv Bawa.

Adv Mpofu: It's about what she's talking about, Chairperson.

Adv Bawa: I haven’t said anything?

Chairperson: Proceed, Adv Bawa. Please stop, Adv Mpofu.

Adv Mpofu: No, you are abusing us, Mr Dyantyi. You are abusing us.

Chairperson: Proceed, Adv Bawa.

Adv Bawa: Chair, I want to place on record two issues and then seek some clarity from Adv Mpofu as to the nature of what is being sought to see if we can come to some sort of arrangement. We have, in an endeavour from the start of these proceedings, had a collegial understanding with the PP’s team in arranging dates, hearings, times and the furnishing of our affidavits. The initial affidavits, including those that came through the public submission process, were given in some cases long before the seven-day period. It is so that a number of the statements during the process was given to Adv Mpofu in less than the seven-day period. I think in all cases, but one, probably more than three days. I stand corrected if I'm wrong. In each instance, I saw to check with Adv Mpofu whether he was okay with it on the understanding that if he had found him to be prejudiced in any way, I would then seek to alleviate that in another manner. You will also recall that during the evidence of Mr Sithole, I had relied on documentation which wasn't foreshadowed in the affidavit and the cross-examination then stood over to afford Adv Mpofu an opportunity to deal with that. That cross-examination then gave rise to an extended questioning of Mr Sithole, which wasn't anticipated on our side at the time when we had agreed to sitting next week, half day Thursday, Friday and Saturday. You will also recall I expressed great reservation about being able to fit in witnesses within the period of time being afforded, given the nature of the enquiry, the way it's carried on thus far or what's occurred thus far. Despite my reservations, we agreed that we would cooperate in an endeavour to see how far we could get in finishing the witnesses knowing that we had next week Wednesday as a reserve day or tomorrow as a reserve day in catching up on the overlap and even if we were able to recall witnesses, we would then use that Wednesday if possible. I then communicated, after Friday's proceedings, that it was quite clear that even with the Wednesday in reserve, we would need to make further accommodation. After speaking to Mr Ngoma, I then contacted Adv Mpofu Saturday morning to say to him, look, Mr Ngoma has been able to secure the 9:00 to 13:00 slot for today. It was in that conversation that Adv Mpofu has indicated to me that they intended bringing an application on an urgent basis. And I must be honest, I'm haven't been keeping up to date as to the goings and comings of what transpires in the court proceedings. I must also make it clear that as evidence leaders we have been appreciative of the understanding of the PP’s legal team in respect of statements that have come within a lesser period of time and, of course, we understand that that would mean that we would show similar understanding when the shoe is ultimately on the other foot. But be that as it may, I'm trying to understand there is the High Court proceedings occurring on Friday and it appears that there is a flurry of papers in respect of the Constitutional Court proceedings, which the court may or may not give an urgent date to. We don't know. There may well be other proceedings emanating from the Section 18 on Friday, depending on which way the court rules. Is Adv Mpofu’s application today simply for time off today and tomorrow or is it for an indefinite postponement of the Committee? That may well have to be a consideration that you would need to take into account because it seems as if the events over the last few days have sparked another flurry of court litigation. That could very well impact on the Committee's work and is an important factor that should be taken into account because what is being raised with you today may very well be raised with you next week or the week after or the week after, which could effectively then result in this Committee coming to a complete standstill. So I think that is important consideration to take into account. The second thing is, I did place on the table knowing that that there may be some pressure on Adv Mpofu in having to prepare – that the cross-examination for Mr van der Merwe not take place tomorrow but that I simply lead him in direct, which means Adv Mpofu would then only need to do the cross-examination next Wednesday as a possibility. Given that he didn't envisage the cross-examination of Ms Thejane today to be very long, that we just get it done. Had the cross-examination occurred on Saturday, which was a possibility, but for the time that we were at. We were at six o'clock on Saturday, and it would have proceeded immediately after. So I would like that clarity as to precisely what is being sought? Thank you, Chairperson.

Chairperson: Thank you, Adv Bawa. I’m going to invite Adv Mpofu, if you can briefly respond to that clarity needed. Thereafter I'm going to invite very briefly Members if they want to comment before I make a ruling. Adv Mpofu?

Adv Mpofu: Okay, thank you. Thank you, Chairperson. Can you hear me?

Chairperson: Yes, we can hear you.

Adv Mpofu: Okay. No, Chairperson, I’ll start with the objection that I was raising. I was saying to you, you don't need to do the things that you are doing. You know, I think it's clear now what your attitude is to this thing. I spoke and unmuted myself and you’re saying I must be muted when I muted myself. You know, you don't have to do that – go overboard and abuse me like you normally do. But coming to the issues that are raised here. The reason I wanted to intervene, Chair, is to say that I was trying to save time, because I've indicated to you, the more this goes on is actually defeating the purpose of what I've been saying to you. I was saying you wrongly said I made accusations. That's not true. That's just completely false. I didn't make accusations. I said, if you play the recording, you'll hear I said that the evidence leaders did not finish for understandable reasons that had been discussed with us. That's not an accusation. I also said that the evidence leaders have failed to meet the seven-day deadline, as Ms Bawa has indicated. That's not an accusation, it's what happened. But I also said that was, as she correctly pointed out, discussed with me, and we agreed. So it was not even a complaint or an accusation, because it's something that I had agreed to. I was just using those examples to indicate that when accommodation was needed from us, we have been willing to grant such accommodation, not accusation. So there's no need to misrepresent me and then mute me when I'm trying to correct you.

Chairperson: Please respond to the clarity sought, Adv Mpofu.

Adv Mpofu: No, I must first respond to you.

Chairperson: Respond to the clarity sought. There's a specific question that I've given you an opportunity to respond to, not all the things that you are saying. Respond to the clarity sought.

Adv Mpofu: Okay, so you say to me I've made an accusation. You don't want me to respond. What kind of fairness is that?

Chairperson: You have already made that point. Please respond to the clarity sought, Adv Mpofu.

Adv Mpofu: You know, Mr Dyantyi, you’re going to regret this. I'm telling you now. Your day will come…

Mr V Zungula (ATM): Chairperson, on a point of order.

Adv Mpofu: Thank you, sorry.

Chairperson: I have not recognised you. I have not seen your hand too, Mr Zungula.

Mr Zungula: I’m raising a point of order.

Chairperson: What is your point of order?

Mr Zungula: Chairperson, when the evidence leader was speaking, Mr Mpofu raised a point of order. You asked the evidence leader to proceed and then Adv Mpofu had come in to raise his point of order after. Now when the evidence leader is done, you continue to ask Adv Mpofu to answer a question of clarity that you wanted. Whereas you had recognised that after the evidence leader is done speaking, you will recognise Adv Mpofu on his point of order. So it can't be that when he is now addressing his point of order, you are wanting to direct him to the point of clarity. Allow him to raise the point of order, whether you like it or not. Like you have previously stated, we will not always agree, but let's give the fairness whereby, regardless whether we agree or not, let issues be raised. After he's done raising the point of order then he can come to answer your point of clarity. Thank you.

Chairperson: Thank you, Hon Zungula. I see your hand Hon Lotriet. I'm going to first ask Adv Mpofu to conclude his input and then I'll come to you.

Adv Mpofu: Okay, thank you. Thank you, Chairperson. I was just rounding off on the point of order, but I'll finish here. I just want to say to that, you know, the only reason I'm tolerating what you are doing to me is really for the interest of the client. Otherwise, you are not entitled to abuse me like you’re abusing me. I'm senior to you in many ways, not just in age, but in many ways. You know it. So you have no right to abuse me but fine, you've got the power now. You can exercise it, but you will pay one day. But anyway, I was saying, Chairperson.

Chairperson: Are you threatening me now?

Adv Mpofu: Yes.

Chairperson: Okay. Please conclude what you wanted to say and attend to that point of clarity. I will make a ruling then.

Adv Mpofu: No, it's actually not a threat. As I said, it's a promise. I was saying, Chairperson, that you’ll remember, I'm coming now to the issues raised by Adv Bawa. Just to illustrate, Chair, the issue we were talking about, and again, I'm not making any accusations. I'm simply saying that like you, like all of us, we plan that things happen. You will remember, for example, Chairperson, that tomorrow, Wednesday 14th, that Adv Bawa has referred to – the original plan was that you were going to have a meeting of the Committee in terms of the programme. So when we see that in the programme, Chairperson, we plan other things. We know there's going to be a meeting of the Committee which doesn't involve us. Then we're told later, no, there's no longer going to be a meeting, you must now use it for cross-examination. Of course, we try and adjust our lives as well. But we expect you to be empathetic to the fact that we also have lives and diaries. And, you know, we're not here at your beck and call, as it were. But we try as much as possible to accommodate. That's really the only point I was trying to make here.

Chairperson: I think the point is covered.

Adv Mpofu: Yes, thanks. It just the questions that she asked. Is it going to be an indefinite postponement or is it going to happen every week? I don't know what the basis of that question is, but I'll try and dignify it with a response. No, it's not going to happen every week. Neither is it intended to happen every week. This is a specific situation; I've given the background. It so happened, it happened to all of us on a Friday. It was not planned. And the only implications that it has, Chair, as I've pointed out in the letter to you and to the evidence leaders, really, this is a waste of time that I was avoiding, because all these issues should have been raised in the so-called backroom between the three of us and dealt with there. I don't know why now we have to have the entire Committee and the whole country listening to our backroom. But anyway, the answer is a simple no. This is a situational thing and it's about preparation. As I said last time, Chairperson, you gave us an opportunity, and to your credit, to go and prepare for the hearing that was on 25 and 26 July. You did not ask me to give you my heads of argument or what document I'm going to be drafting on which day and all that.

Chairperson: Thank you, Adv Mpofu. I think you’ve answered the question.

Adv Mpofu: Okay, no. There's another one. Okay, I think it's covered in this. No, this is just a situational thing for this week. And I'd like to shorten it as much as possible. Thank you, Chair.

Chairperson: Thank you. Hon Lotriet and Hon Mulder.

Prof A Lotriet (DA): Thank you, Chairperson. Chairperson, I would like to place on record that I am extremely concerned regarding what was said and directed at you, Chairperson. In terms of the Powers, Privileges and Immunities Act, no Member of Parliament may be threatened to exercise his or her duty. It doesn't matter by whom and in which circumstances. So could we please place that on record, and could we also investigate the matter because this is a serious breach of that particular Act? Thank you.

Chairperson: Thank you, Hon Lotriet. Hon Mulder?

Dr C Mulder (FF+): Yes, thank you, Chairperson. I'm covered, largely, but I want to raise exactly the same point. It is absolutely unheard of what Mr Mpofu just now did. He threatens you, as a Chairperson of a Parliamentary Committee. He's an officer of the High Court, he should know better. And I want you to investigate this in terms of Powers and Privileges and take the necessary steps. Thank you.

Chairperson: Thank you. Thank you, Hon Mulder. Those were the only two hands I have noted. I want to now, the time is 17 minutes past. Hon Siwela, you're raising your hand?

Ms V Siwela (ANC): Chair, I wanted also to reflect what the two speakers have said. Our understanding, Chair, is that whatever we're doing here should be for the best interests of the country. So I'm little bit disappointed but we are mandating you to check that – because we're not here to intimidate each other. Thank you, Chair.

Chairperson: Thank you, Hon Siwela. Hon Maotwe?

Ms O Maotwe (EFF): No, thank you very much, Chair. I thought you had said that you are going to open the floor for Members and that's where I was going to come in. That's why I didn't raise my hand earlier. But I don't know if you're moving to making a ruling or you are opening the floor for us to also have a bite?

Chairperson: If you've got any issue you want to raise, please raise it Hon Maotwe and I’ll allow Hon Holomisa after you.

Ms Maotwe: Okay. Thank you very much, Chair. Chair, I also want to state that I'm disappointed in the way that you are treating Adv Mpofu. I mean, you are so impatient. You've allowed Adv Bawa to go on and on and on, and you've never interjected. This has been consistent with the way you conduct yourself in this enquiry. So I'm just saying, go home, do an introspection and really. It's not always the case that you will like what we say, all of us, but restrain yourself. You are the Chair. You should not be biased. Do not make it too obvious that you are on whose side. That’s one thing. Chair. On the issue of request for postponement, I think we need to be sensible enough and also be understanding enough and try to be as impartial as possible. There is an issue, nobody has ever thought that the case will be heard today. You didn't know, nobody knew. It's something that just came in. I mean, had we all known, I'm sure we would have planned around it. This request for the postponement would have come earlier. But it is what it is, unfortunately, for Adv Mpofu he sits here in this Committee but he's also serving the client on those matters in court, unlike Adv Bawa. We don't know how her workload is, she's always here. But I'm saying let's afford the PP an opportunity to focus fully, because she's got limited resources. She's got only Adv Dali Mpofu. She doesn't have any alternative and Adv Mpofu, and his team, must go and prepare for the court. So let us be lenient on them, let us be sensible enough to afford them that opportunity. Thank you, Chair.

Chairperson: Thank you. Hon Holomisa?

Mr B Holomisa (UDM): Thank you, Chairperson, colleagues and evidence leaders and our witness. The truth of the matter is that there have been some developments, which have tended to interrupt our proceedings. Adv Dali Mpofu has outlined the problem. What I would suggest is that the evidence leader, Adv Mpofu and yourself, Chairperson, we need to cool our heads and sit down and agree, if possible, that at least this week you grant this request by Adv Mpofu because the whole country, of course, is interested in this case. As he said, when you talk about heads of arguments, exchanging of papers, you need more time, and you need to do a little bit of research and even monitor your attempts. Lastly, there is no doubt in anybody's mind that there is a symbiotic relationship between what is taking place in this Committee and now the current challenges, which were brought after all by the DA, who complained that the Public Protector’s behaviour was not okay. Then we established this Committee. It’s the same DA which is now challenging the outcome of the court. So let us be careful. If for instance, there are parties as it has been alleged, who are involved in this litigation of late, I would even suggest, Chairperson, that we don't sit in the Committee. Those who didn't challenge it, you can sit. I don't want to be part of a thing which will be classified as having violated the rights of a citizen of South Africa. Thank you.

Chairperson: Thank you, General. Mr Zungula, you’ll be the last one.

Mr Zungula: I think the request coming from the legal representatives of the Public Protector, is not unreasonable. Secondly, it is not something that is not in a way intertwined with this particular process. At the same time, it is not by their doing as the Adv Mpofu has correctly stated about the legal processes that require preparation from his side so that his client is not prejudiced. Therefore, I do think, Chair, that given the nature of the predicament that Adv Mpofu and the Public Protector face, the postponement must be granted. It is not an indefinite postponement. It is not a postponement that is not warranted. At the same time, in the work of this Committee we must be very, very careful. It must not prejudice the rights of Adv Mkhwebane, like it has been stated by other speakers. Unfortunately, she has one legal representative that is helping her in this particular process, as well as in the other court processes. The advocate was clear to say two days. Therefore, it's not a matter of weeks and weeks and the timeline of this process being impacted. You will remember that we're even having meetings on weekends. Therefore, there's more than enough time to recover from the two days that the advocate is asking for.

Chairperson: Thank you, Hon Zungula. Hon Dlakude, you’ll be the last one.

Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. Good morning to you, Adv Mpofu, the PP’s legal team and our evidence leaders. Hon Chair, I want to concur with Hon Mulder and Hon Lotriet with what they were saying about the powers and privileges, that as Members of Parliament, we are allowed to do our work without fear or favour. I want also to say that you haven't made any ruling with regard to this matter as yet. But already there are accusations levelled at you which are not acceptable. We are sitting here quietly so, listening to the arguments as presented both by Adv Mpofu and the evidence leaders, as clarity was being sought. There were responses to that matter. So what we are pleading for, with regard to the proceedings of this Committee, there should be no threats to anyone. The Chairperson is empowered by the Rules of the National Assembly to chair the meeting. We adopted directives as this Committee directing and giving us guidance as to how to proceed with our meetings, from listening to both the evidence leader, Adv Bawa, and Adv Mpofu. I haven't heard anyone saying between them that, no, we have never agreed on anything before in the past or we are not going to agree on anything. It was both clarity seeking questions from Adv Bawa. So I want to plead with this meeting, let's allow those who are driving the meeting, the Chairperson, to drive this meeting. We cannot all of us want to be chairpersons of the meeting. And lastly Hon Chairperson, we are in this Committee of Parliament because of our rules. Also because of the decision of the National Assembly that this Committee must be established. Based on the rules and based on its terms of reference, we must conduct this. It is the work of Parliament what we are doing, no one else. We are the third arm of state. We have our own responsibilities as Parliament so let's also not try to intertwine other organs of state’s responsibilities. While it's unfortunate that Adv Mpofu says that the PP is not well, my little knowledge and understanding is that if a person is not well and is unable to attend to court, there will be a medical certificate that will follow. So we wish her a speedy recovery, but proper processes must be followed. I'm pleading with all of us sitting in this meeting that there’s no need for intimidation. No need for insults and the Chairperson hasn't ruled on anything as yet. Thank you very much.

Chairperson: Thank you, Hon Dlakude. We'll take a 15-minute tea break, and I will come back and make a ruling after that. Thank you.

[Break]

Chairperson: I indicated before the tea break I'm going to make a ruling on the issues that were placed before this Committee. Before I do that I was informed that there was a hand of Adv Mpofu. I will give you that and then make my ruling.

Adv Mpofu: Okay, thank you, Chairperson. I had my hand up, but I think you didn't see it before you adjourned. No, Chair. I wanted to address just a few things. Firstly, it's the comments made by the Members. I don't know what the problem is for the other ones here. Because they know that when there's an alleged threat, I already withdrew it. And I said it's a promise it's not a threat. So I don't know what they're going on about, but they can do whatever they are threatening to do. I think the threat is what they're doing to me, not the one that… I can’t be threatened with the Powers and Privileges Act. But they can do whatever they want to do about it. Where I come from they say, you beat the dog until the master comes out. But anyway, the second issue, Chair, is that I know that it's difficult, you know – as I've said we've been given time to prepare before. I know that since the victory of the Public Protector on Friday is difficult, it's painful. I’ve said to you before, people are in pain and so on. But we're just appealing to your mercy and also to an understanding. And the last one, Chair, is that I just want to say this as calmly as possible. I'm here to discharge my professional duty. I've said before that I tolerate some of these things because of that professional duty. But one thing that will never happen is for me to be undermined or my dignity impaired by anybody, anybody for whatever reason. If otherwise, I can go home and look after my cattle. So I think that must be understood by everyone. I'm not here to be to be trampled upon and people will only get the respect when they deserve it. But if you insult me, then don't expect that you're going to get a hug and a kiss. So that's the bottom line. If we keep it like that, we will work together in the next few months nicely. There'll be no issues. But if you asked for it, you'll get it. So that's all, the rule is very simple. I never provoke anybody. I never start any problem with anybody. But I'm here for anything that anyone wants. If they want to exchange threats, well, then we do that. If they want to insult me, then we can do that. But other than that, Chair, I think we're doing very well. We will do well if we make it mutual. Even the people who are intervening, they must not just talk about me; they must also reprimand you for telling me that I'm making accusations when I'm not; or muting me when I’ve already muted myself. I'm not here for that. I'm here to do my job. You do your job, I do mine, then we are fine. Otherwise, there’ll be trouble. Thank you.

Chairperson: Thank you. Thank you, Adv Mpofu. Hon Members and colleagues, if I can get your attention as I make this ruling.

Adv Mpofu: Sorry, I'm so sorry, Chair. I apologise. I really do. Please, Chair, just give me one minute. There's just one point I wanted to make. It's that the irony of the situation that is playing itself now is twofold. One, is that we have now stayed here for two hours when I've been trying to save time, which is what I was trying to do for the past two days. The second one is that we've been listening to evidence here and Members asking people why deadlines cannot be shifted. But now you don't want to shift your own deadlines – and I'm giving you reasonable explanations. And I think you are on the verge of everyone asking me for a pass and a special, as we say. And the last one, Chair, is just to indicate that we got a call now to say the Public Protector is still at the doctor's and in any event we would not have been able to conduct cross-examination without her being here to assist. What I wanted to emphasise is the fact that people have been criticising the Public Protector for adhering to deadlines but now the same people are wanting us to stick to deadlines that are unreasonable in particular circumstances. So I don't know who should be impeached now?

Chairperson: Thank you. Thank you, Adv Mpofu. As I say, Hon Members and colleagues in making this ruling, just to raise a few issues. Firstly, that yesterday at approximately 12pm I received a letter from the PP’s attorney of record which indicated that the PP sought a reconsideration of my decision that the proceedings are to continue. A deadline of 1pm was set for response by myself. This was not reasonable as you would know. Before that, during the course of Saturday morning, the PP’s legal team was informed that the matter would proceed on Tuesday, which is today. It was already understood that the Committee would sit on Wednesday 14 September. The situation comes about because the PP brought an agent application to the Western Cape High Court, setting her application down for Tuesday 13 September, knowing that this Committee's hearings are ongoing. It was an event created by this occurrence. It is being heard on Friday at the behest of the Western Cape High Court. I make no comment in relation to her decision to do so but to the extent that that decision impacts on the Committee's proceedings, it now arises before this Committee. This is a different position to what prevailed when accommodation was made for the High Court proceedings dealing with the suspension heard on the 26 July, as those proceedings were pending and were known about when the enquiry’s programme was devised. Based on Adv Mpofu’s submissions, it appears evident that what is being sought may have a knock-on effect, which could negatively affect the proceedings of this Committee going forward. The Committee will not sit on dates on which the court is to hear matters, as in the past. But what is now being sought is different from that. Adv Mpofu SC has indicated that he is not ready and explained the circumstances. In light of that, I am granting his request to postpone his cross-examination of the witness, Ms Thejane. To accommodate him and in the absence of the PP, I will allow the cross-examination to be deferred to Wednesday 21 September 2022 at 9:00. To allow the Committee not to be unduly delayed, the following two things will happen. The Members will proceed today to ask questions of Ms Thejane. The evidence leaders should proceed with leading the direct evidence in relation to Mr van der Merwe on Wednesday 14 September. The cross-examination of Adv van der Merwe will be deferred to Wednesday 21 September after the cross-examination of Ms Thejane. Thereafter, the Members will ask Mr van der Merwe questions. Lastly, Adv Mpofu will during the course of the day advise the secretary as to the nature of the PP’s illness. That’s the ruling, colleagues. I now proceed to Members to ask questions to Ms Thejane per the ruling that I have just made. Honourable Members I want to invite you to interact with the witness. I note Hon Gondwe. I note Hon Maotwe. Those are the two hands I've noted so far to ask questions to the witness. The ruling has been made.

Adv Mpofu: Chairperson, my hand is up?

Chairperson: Hon Gondwe?

Adv Mpofu: Chair?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: Yes, I'm sorry, Chair. I'm sorry, Hon Gondwe. Just clarity, Chair. I don't quite understand the ruling. I just need clarity. When you say you grant the request, I don't know what you mean if in the same breath you are going to continue with the meeting? Because the request was for the postponement of the proceedings. As I said, apart from everything else that I've said, which you've ruled on, the Public Protector is not here. She's sick, so the proceedings cannot continue in her absence anyway. Because whatever questions are going to be asked, we have to confer with her. That's about today. So I don't understand how you can grant the request and at the same time continue with the enquiry? That's just a contradiction. The second, about tomorrow, Chair, we've made it clear, again the request that we made, which you have granted now, is for today and tomorrow. That’s for the two days. So again, it's untenable for the witness tomorrow to be led in our absence presumably, and then we are asked to cross-examine him next Wednesday. I mean I don't know what that means. Also if the Public Protector is also not here when that witness gives evidence tomorrow, that makes it even more disgraceful conduct. It's not possible to have the person who in respect of whom the witnesses are giving evidence, is absent for reasons of sickness, but her legal representatives are also absent for reasons that have been explained and accepted by you. Then the whole thing will just be a waste of time and a joke here.

Chairperson: Thank you, Adv Mpofu. Thank you.

Adv Mpofu: I want to know at what point then are we excused in line with the first part of your ruling? And the second part is that you are continuing in our absence – that you can do that. You can feel free, but we just don't want to be accused of walking out, because the first part you said you are granting us our request.

Chairperson: Thank you, Adv Mpofu. The request to postpone the meeting is declined. That's very clear. I've granted you the request, based on you not being ready to do cross-examination today. I've granted you that and I've indicated when that will happen. For now, Members are going to continue asking their questions. For that, there is no problem that the Public Protector is not here. It can't be barred from asking their questions on the basis of that. Therefore, I want to proceed. I want to recognise Hon Gondwe to ask questions.

Adv Mpofu: Chairperson, please, please bear with me.

Chairperson: I've been with you the whole morning. I've now made a ruling, Adv Mpofu.

Adv Mpofu: No, Chairperson, I need to understand what I must do now. You understand? Please, please, just be patient.

Chairperson: You have a choice on what you want to do based on the ruling that I've made. It is your choice what you… it's not me who must tell you what to do. I can't do that.

Adv Mpofu: Chairperson, don't shout at me.

Chairperson: I’m not shouting. I’m explaining to you and allow me to proceed. I've made a ruling. I'm not discussing this ruling with you.

Adv Mpofu: No, Mr Dyantyi, please. Just listen to me for minute so that I know what the position is.

Chairperson: Please go ahead, it's your last minute. Be ready, Hon Gondwe.

Adv Mpofu: Chairperson, you know your impatience only exposes your bias. You don't have to expose your bias on a daily basis. You don't have to do it every day. I'm saying to you, Chair, that I need to understand what the implications of the ruling is, because the next thing if I… as I obviously misread what you said. You've just explained it now. And I don't want to misread you because if you are excusing us, then you are excusing us. If you are not excusing us, somebody went to jail for, you know, the lawyers leaving when allegedly they had not been allowed to leave. So I don't want that situation. I'm saying that you must explain, excuse me, whether you are excusing us. Because there's no point, we cannot participate, Chairperson, with the greatest respect, in any proceedings in the absence of the Public Protector because she's sick. You must just understand that apart from the thing about preparation and all that, I'm saying we cannot because we'll just be sitting here and doing what? So that's the first thing. The second one is that for the reasons that we have explained, we've already now lost almost three hours for something that you and I could have resolved on Sunday. And so again, for that reason as well we cannot continue to participate, I need to place those on the record. Please bear with me so that next, because next time it will be the misunderstanding, you know. Now we're here about a month or so later, it might all be misunderstood. So rather waste five minutes in clarifying what is happening so that we know what you are entitled or not entitled to do. Rather than, you know, rushing to Hon Gondwe, just for the sake of it. Are you excusing us or are you not excusing us, number one? Number two, are you expecting us to participate in anything? Because we can't do that because our client is sick. Even the, you know, in Nazi Germany they don't continue when.

Chairperson: Thank you, Adv Mpofu. I think you’ve made your point. Thank you, Adv Mpofu. Thank you. I'm going to repeat my ruling that the postponement for the meeting is declined. The meeting is continuing. You have indicated that you are not ready for cross-examination. I have granted you that request, and I've indicated when you will do that. Members are going to be asking questions and their questions are recorded. So there's nothing that is going to be unfair to the Public Protector in relation to that. I'm not going to entertain your response again, please.

Adv Mpofu: No, Chair, please.

Chairperson: Adv Mpofu.

Adv Mpofu: Just a directive, Chair.

Chairperson: Adv Mpofu, I want to indicate to you that it remains your choice what you do based on the ruling that I've made.

Adv Mpofu: Yes, no, I’ve heard that part. No, Chair. Just one second. In terms of the directives, the Members ask questions after the cross-examination. That's all I want to say. So that's why I'm confused by your ruling. It's confusing, Chair. Please bear with me.

Chairperson: Adv Mpofu, you have indicated you are not ready for cross-examination. I'm not going to delay Members from asking questions on the basis of…

Adv Mpofu: What about the directives? The directives, Chair?

Chairperson: Adv Mpofu, I'm proceeding now for Members to ask questions. Hon Gondwe.

Adv Mpofu: This is a big joke.

Ms Maotwe: Chair, on a point of order.

Chairperson: Before Hon Gondwe, let me hear your point of order, Hon Maotwe?

Ms Maotwe: Yeah, that's why I raise my hand. I didn't raise my hand to ask the witness a question. I want, Chair, I know you've made a ruling but there’s some legalities that come with your ruling. All I'm appealing to you is that let's adjourn this meeting, consult us, consult the legal team. Let's all understand what the process is now going forward because what Adv Mpofu is raising is very critical. We are going against our own directive and also we can't continue when the Public Protector is not here. She is sick. She is at the doctor. What must happen? Why must we be so insensitive to her? Why are we rushing to be so hard on her? She’s at the doctor. She's sick, Chairperson. Let's adjourn, let's be consulted and let's all of us reflect on this issue. I don't think that's unreasonable, Chair.

Chairperson: Thank you, Hon Maotwe. Hon Gondwe, you’re on the platform.

Mr Holomisa: On a point of order.

Chairperson: Yes, Hon Holomisa?

Mr Holomisa: With all due respect, particularly the last speaker, we are part and parcel of this Committee. Why don't you then adjourn for say one hour and consult the other Members of this Committee so that we may have an input to solve the problem. To Dali Mpofu, please, if you're not satisfied sir, don't waste our time. Just go and seek a remedial action. Challenge this thing in court, that you have been ill treated, because it's unheard of in the history of judicial services or in the history of justice. But we as Members of this Committee, we must be consulted. Nobody must decide on his own without consulting us. Thank you.

Chairperson: Thank you, Hon Holomisa. I’ve made a ruling and I don't have to consult on the rulings I've made. You have indicated earlier in the meeting that you would not be in favour for a Committee meeting to meet on this issue. Thank you for your input, Hon Zungula, as I go to Hon Gondwe.

Mr Zungula: Thank you, Chairperson. Firstly, I want to appeal to you, Chair, that if we can just… I know you just said you're not going to consult. But this is a process. Also, the Members of Parliament , as the Chair you may be, but it will be prudent for yourself because you're not alone. This is a Committee that includes other Members, other Members who can assist in terms of a way forward on this. The suggestion that is coming from General Holomisa is consult, let's discuss, let's find a way forward. Take the collective wisdom of all Members of this Committee, that would also help. The point I wanted to raise is that number one, we've got directives. Directives that should not be used by convenience – whereby when it's convenient directives are followed to the tee, when it's not convenient the directives are ignored. The second issue, the directives are very clear that the Members only engage with the witness after the cross-examination is done. Now, if the cross-examination is moved to Wednesday 21st, how can it be that now that process will be shifted considering the directives? Also, you will remember, Chair, previously, this was an issue that came up before with another witness: Members engaging before the cross-examination is done. That is why I want to appeal to you, Chair. The last issue, Chair, is that the Public Protector is the subject of this process. Now, it's prudent for her to be, you know, to be actively involved in this process. When she is sick, particularly if you had already stated that there must be something coming from the doctor, we've not heard anything to the contrary that they will not comply with a doctor's note. Therefore, to proceed with the Members engaging without the Public Protector, who will at a later stage need to be part and parcel of rebutting anything that is coming from that engagement. Now, if she cannot be part of the proceedings, I think it's wrong for us to continue, Chair. The fact that these proceedings are recorded, that is not reason enough. You know she needs to be present in this process and take part, raise whatever objections there may be, as they would come. If they are recorded it means she can't raise issues on the spot. Secondly, allow us an opportunity to assist the process. When this process goes to the House, when this process is scrutinised – if it were to go to the courts; when this process is scrutinised by the public.

Chairperson: Thank you, Hon Zungula, for the points you have made. I'm happy you have referred to the directives. Directives themselves do give the Chairperson discretion to impose any restriction at any point. So there's nothing that I've done in conflict with those directives. Thank you very much. Hon Gondwe, I now give the platform to you. May I check if Ms Nelisiwe Thejane is on the platform? Ms Thejane?

Ms Thejane: Chair, I am here. Thank you.

Chairperson: Thank you very much. You remain under oath. Hon Gondwe?

Committee member questions to Witness
Dr M Gondwe (DA): Thank you very much, Chairperson. Dumela, Ms Thejane. Can you hear me, Ms Thejane?

Ms Thejane: Yes. Good morning. I am well.

Dr Gondwe: Thank you. I have a number of questions for you. My first question relates to paragraph 26 of your affidavit, read together with paragraph 30, where you said that a single Dashboard meeting could last up to two or three days. And the level and style of reporting done by executive managers (EMs) during these meetings took a great deal of time away from their core function, which was to essentially guide investigations. Please confirm if you think this had a negative impact on the quality of investigations conducted and elaborate on your response.

Ms Thejane: Thank you, Hon Gondwe. Indeed, Dashboards did eventually take a longer period then what was initially intended for Dashboard. Also the process followed in preparation for Dashboard took longer as we then had to put everything aside to update in the form of the memoranda that had to be submitted as well as the spreadsheets that had to be updated. That would be done for Provincial Investigation and Integration (PII), for example, which is managing the provinces. The information would have to come from the provinces and be quality assured at various levels, which I will not repeat for the sake of a time. During that period of preparation as well as the Dashboard itself – because it takes time – it means then we are not dedicating that time to the actual cases that needed to be attended to. Not only cases in the backlog but all cases in general. So we're still working within those deadlines as well to achieve the submission of those matters which due date is coming. So it's a balancing act. Ultimately, Dashboards are not explaining why we have not achieved the deadlines. We still have to meet the deadlines assigned to those whose deadlines about to expire. That then created the urgency to meet the service standard deadlines. Why I'm saying it would have an unintended effect on the quality, especially when we come to reports and section 7(9)s or even the discretionary notices is that you still need to achieve those deadlines. So the quality will be affected based on the time spent on another activity or on Dashboard that has actually become file inspection. Those Dashboards were file inspection where you go through each and every matter, explaining what has been done and why have you not achieve certain milestones where milestones have not been achieved. Also Dashboard now included all active matters as well. That is why it was quite prolonged but had an effect on the quality of the work in some instances, unintended as it was. Thank you, Hon Gondwe.

Dr Gondwe: Thank you, Ms Thejane. Ms Motsitsi informed this Committee in her evidence in chief that whilst she was acting as COO, investigators were forced to rush through investigations, notices and reports. You've already alluded to this when you were responding to my first question. But I need you to confirm if you agree with her evidence? Also confirm if you think Adv Mkhwebane expected investigators to rush through investigations, notices and reports because she lacked the necessary investigative experience and as such, was unable to comprehend and appreciate the complex and sometimes lengthy nature of some of these investigations, more especially Good Governance Integrity (GGI) matters? Also confirm if this rushing through of investigations, notices and reports by investigators contributed towards some of these reports being taken on review?

Ms Thejane: Thank you, Hon Gondwe. I would not comment in respect of Ms Motsitsi’s tenure as COO because I was not there at the time. However, in terms of the observations and comments that relate to investigators rushing through the report, that part I would concur with in that there was a rush. I would not attribute the rush to whether the PP was incompetent to appreciate the complexity or not. Actually, I think she did, or she may have, but she was more focused on the completion and submission of those reports. That is why I did explain to the Committee that the focus was "what product; by when". When you want to explain why we were unable to complete or define what product and by when, she would in many instances not be interested in that. That is what would compromise the quality of those investigations but it would not be appropriate for me to speak on her behalf in whether she did appreciate this or not. I would have liked her to see things differently, bring the investigation before her and say the ultimate product is not ripe for us to submit for her signature as it would affect the quality thereof. Did it have an effect on the reports that have set aside by the court on review? In some instances, yes. Why I would say yes as well is that in some of those court matters that have been set aside, the Office has not challenged it further. Those court judgments stand as opposed to what was in those reports. If you don't agree with the court judgement and the impact that it has on the Office, then it must be raised with the court because it forms the precedent for our operations and how we conclude on certain matters. But yes, there are instances where, based on the rush, there would be certain instances, certainly legal aspects that would not have been thoroughly traversed as we would have wanted to had the circumstances conducive for conducting an investigation prevailed. I did indicate that in some instances the quality assurance processes would also be undermined or compromised in that rush. Certain matters would not have served before the various quality assurance processes or not done so thoroughly. Some of the cases would go straight to the Public Protector from the investigating unit, without having had the chance to be traversed at various levels. So there had been lessons learned. There are matters where we differ with the court judgments in some instances. But we have also taken note in a number of them that we could have done better and differently. Thank you, Hon Gondwe.

Dr Gondwe: Thank you. You state in paragraph 39 of your affidavit, read together with paragraph 41, that often the PP would decide that a particular report be released to the media prior to the report being finalised and in some instances, formal reports were finalised on the day of the media briefing. Please confirm why you think the PP did this and how you and others in the Office of the Public Protector would feel when this happened, and the impact that this had on the working environment?

Ms Thejane: What I indicated is that reports are identified in advance for release when we had media briefings on the last day of every month. So we would then work backwards to make sure that those matters identified for media release are then ready. Obviously those will be matters where a section 7(9) would have already been issued. Then we must start drafting the formal report while we await the s7(9) responses and then incorporate those responses. The challenge that emanated from that is that we then work fast to finalise the formal report. I did indicate that some of them would be finalised on the eve if not the day of the media briefing itself. I do confirm, as indicated in my evidence-in-chief, that if we would request for those matters to be deferred, because in some instances we will have a quick full bench or some form of quality assurance very late on the eve of the media briefing, so that any gaps or any quality assurance processes can be undertaken. Or we would actually have it on the morning of the media briefing because our media briefing will be around 12 or lunchtime. Sometimes it would be delayed a little bit while we are then finalising. Obviously at that late point one would then respect executive authority and the focus will be on conducting as much quality assurance as we can do during that limited time period and to finalise the report because already the media briefing would be upon us. But I did indicate the one matter, and it's not in isolation, when we or I have personally requested that we defer the release of the report at the media briefing, because the GGI reports were not subject to the media briefing for them to be released or finalised. They can be signed off at any point and they can become the subject of a media briefing at any point thereafter. So that for us really was not a prerequisite for us to rush reports for release at the media briefing. Those were the challenges that one had to work with but obviously with due respect to the executive authority once the decision has been made. Thank you.

Dr Gondwe: Thank you. You state in paragraph 84 of your affidavit that in early 2020...

Chairperson: Your last question.

Dr Gondwe: Thank you, Chair. You state in paragraph 84 of your affidavit that in early 2020, the DPP was requested to lead a consultative process with the investigative staff into the non-finalisation of matters within the prescribed timeframe. Please confirm if prior to this process, you and others in the Office of the Public Protector had tried to bring your challenges in relation to investigations and the punitive and repressive environment in the Office of the Public Protector to the attention of the DPP as a second in command? In your response, please describe the relationship between the PP and the DPP. I'm asking this question because we heard evidence earlier in the enquiry that at one stage or another the PP had effectively side-lined the previous DPP, Adv Malunga, and left him out of the investigative space completely, and required him to deal mainly with training. So in your response please make mention of the relationship between the PP and the DPP.

Ms Thejane: May I just say get clarity then. When you make reference to the relationship between the PP and the DPP, are we then referring to Adv Malunga or the current?

Dr Gondwe: No, the current DPP, please. I’m talking about the 2020 consultative process. The first question is, did you and others in the Office of the Public Protector try to raise your concerns around the punitive and oppressive environment as well as your challenges around investigations with her? And I want to understand the relationship between her and Adv Mkhwebane.

Ms Thejane: Yes, on raising these issues, we had continuously raised those issues in the various forums that we had as management. Be it your Dashboard meetings and any other meetings that we had that was a common concern we have raised. I have indicated the quality of the reports that I received since I joined the Office, so for me, it was the greatest concern, and I would raise it to the PP. I wouldn't want really to comment on the relationship. I would say that the two executives or leaders of the Office in the form of the PP and the DPP would actually act in unison, in most instances, in raising concerns regarding the cases that have not met their time frame. So those issues I would say were handled quite professionally, away from our view. Not that you would not have quite robust discussions, because even the issue of the audis was raised in the presence of the DPP or the current Acting PP, just to emphasise and which really gave a spotlight on the audis. There was even a time when we were requested to provide those audis and for them to make a decision whether those audis should actually be withdrawn, to what extent they should be withdrawn because of the kind of environment they were creating, and the effect on the quality of output that we were giving – also giving rise to this whole consultative process. But I wouldn't want to comment on the actual relationship between the two of them. I think there has been also a supportive function that has been provided by the DPP in making sure that we achieve the target including on the backlog matters, because she would actually be very harsh on us in the presence of the PP and in how we have dealt with the matter in the background.

Chairperson: Thank you. Thank you, Hon Gondwe. Hon Tlhape?

Adv Mpofu: Chair?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: Yes, I apologise, Chair. I didn’t want to interrupt to interrupt Hon Gondwe. I have to, if you allow me, put up the document from the doctor and then… so that we can then be excused.

Chairperson: No, no, you don't have to put it up now. It will be sent to the Chairperson via the Committee.

Adv Mpofu: No, I want to put it up.

Chairperson: I'm in the middle of questions with Members. It can’t be put up now.

Adv Mpofu: Chairperson, please.

Chairperson: No, you can't interrupt the session, Adv Mpofu.

Adv Mpofu: No, Chairperson. I’m not interrupting.

Chairperson: I’m in the middle of questions with Members and I'm proceeding to the next Member. If you have a doctor’s note it will be sent to the Committee Secretary, please.

Adv Mpofu: Chair, please, I have to be excused so I'm leading up to that, please Chairperson.

Chairperson: I have left that to your choice. How do I get it – it's not going to placed up here – it's going to be sent to the Committee Secretary. Thank you, Adv Mpofu.

Adv Mpofu: No, Chairperson, it doesn’t work like that. Chairperson, please. Just don’t shout.

Chairperson: Adv Mpofu, you can’t do that. I'm in the middle of questions with Members. You can’t just put up a document. Hon Tlhape, the platform is yours.

Adv Mpofu: No, Chair, please, this is not just about a document. Chairperson.

Chairperson: You have no permission given for you to do that. You can wait until the end. If that's what you want to do.

Adv Mpofu: I can’t. That's the point. I can't. I have to go.

Chairperson: Send what you have to the Committee Secretary.

Adv Mpofu: No, but it's not.

Chairperson: I’ve made my ruling. I don't need the document to be placed here. I’m busy with the questions of Members. Thank you, Adv Mpofu.

Adv Mpofu: Okay, forget the document. I'm raising a point of order.

Chairperson: What is your point of order?

Adv Mpofu: My point of order is that, Chair, I don't know why you are shouting at me. I'm saying to you we need to if, when we leave, which we're just about to do so now, because we don't want to.

Chairperson: You don’t need permission from me to leave. You don’t need the permission.

Adv Mpofu: But now why are you interrupting me, Mr Dyantyi? Why?

Chairperson: You are disturbing a Member on the platform.

Adv Mpofu: There's no Member on the platform. I waited until…

Ms Maotwe: Chair, relax.

Chairperson: There’s a next Member on the platform, Adv Mpofu.

Ms Maotwe: Chairperson, give Adv Mpofu a chance. Relax, we are here, Chair.

Chairperson: Please conclude what you're doing.

Adv Mpofu: No, no, no.

Chairperson: Conclude your point of order, Adv Mpofu.

Adv Mpofu: Don’t shout, relax. Take a chill pill. Relax.

Chairperson: If you don’t have anything to say I’m going to proceed to the Members.

Adv Mpofu: I’m on a point of order, Chair. You can't.

Chairperson: Then raise your point of order.

Adv Mpofu: How am I supposed to do that when you are bellowing?

Chairperson: Raise your point of order, Adv Mpofu!

Adv Mpofu: All right. Okay. Hon Chair, I'm saying that as much as we don't want to be part of this gross irregularity and inhumane treatment of the Public Protector when she is sick. But we have stayed here just to place on the record the following. We have received a note that she won't be able to participate to be at work from today for the next couple of days. We'll send the…

Chairperson: That’s not a point of order, Adv Mpofu. That’s not a point of order.

Adv Mpofu: No, it is. Don’t shout, relax.

Chairperson: Adv Mpofu, I want you to stop now. That’s not a point of order.

Adv Mpofu: Okay, let me make a different point then. The separate point is that some of the questions that are being asked about the relationship between the DPP and the Public Protector now, which I would ordinarily have objected to, are exactly the kind of thing that illustrates that we cannot do this when she's not here, because I would have consulted her about that answer and the question. But you can do whatever you want to do. All I want you to do, Chair, is formally to excuse us, because we cannot participate in this kind of thing. But at the same time, we don't want to disrespect you by, as I say, just disappearing. But we have a note from the doctors that says…

Chairperson: Thank you, Adv Mpofu. You are done with your point of order.

Adv Mpofu: If you don’t want that medical certificate, we're going to release it in the public domain anyway. The public is watching you.

Chairperson: Thank you, Adv Mpofu. Hon Tlhape.

Ms Maotwe: Chair, on a point of order.

Chairperson: Yes, Hon Maotwe?

Ms Maotwe: I think you're being insensitive and inhumane in the way you are treating the Public Protector. I had requested even before the senior counsel now comes to tell us that there's a medical certificate. I had asked let's adjourn, let's consult each other as Committee Members and then let's seek a solution to this problem. Now the senior counsel comes back.

Chairperson: Hon Maotwe, I have ruled on that.

Ms Maotwe: There’s a medical certificate to that order, to that effect. How insensitive can you be to a mother? Why are you doing this to the Public Protector? No, we can’t continue in this meeting, Chair. You are wrong and you must be told that you are wrong. Where is ubuntu here?

Chairperson: Thank you, Hon Maotwe. I have ruled on that. Hon Maotwe, I’m calling you out of order. Serjeant at arms and IT, please remove Hon Maotwe from the platform. IT, please remove Hon Maotwe from the platform. Hon Tlhape, please proceed.

Adv Mpofu: You should be recused from this thing, Dyantyi, Mr Dyantyi.

Chairperson: Hon Tlhape, please proceed. I have recognised you, Hon Tlhape.

Adv Mpofu: Hon Dyantyi.

Chairperson: Hon Nkosi, you’re next.

Adv Mpofu: Hon Dyantyi.

 Mr B Nkosi (ANC): Thank you, Chairperson, and good afternoon all Members.

Adv Mpofu: Good afternoon and goodbye.

Mr Nkosi: I wish to be off camera, Chair.

Chairperson: Go ahead, proceed.

Mr Nkosi: Okay. Thanks. My questions are as follows, your evidence is that the executive meetings stopped being strategic and were now operational. May I inquire from you what the impact of this was on the overall work of the Public Protector’s Office but in particular on the investigations themselves?

Ms Thejane: Thank you, Hon Nkosi. Indeed, our meetings became more operational in the sense that, for us as EMs, that is the time we would have used to dedicate focusing on managing investigations, for focusing on the very same project backlog, as opposed to the executive taking over the operational work that actually needed to be done by us. And indeed to be held accountable where we have not done well as an executive because we are there to assist the executive authority. Now we have dedicated that time to those meetings, and that is the time when we're supposed to be doing the actual work which is left to the afternoon or even after hours and late into the night to then still focus on the various investigations, not just on the backlog. There is a lot that is done on each investigation that needs approval at the various levels, from the provinces right up to requiring the signature of the Public Protector. Therefore, the more time that we spent in those meetings, because now they've become more operational, and we would cover even matters that are still within their timeframe and not necessarily in the backlog. We are now managing the day-to-day of an investigation where even at some point all investigators and their provincial representatives must form part of those meetings to explain matters that are still active, but not necessarily in the backlog. It then affected the very same objective of not creating a new backlog. Whereas one would have wanted to see the executive authority focusing more on the strategic objective with that oversight responsibility that your Dashboard and your leadership meetings were intended for, where we account on what has been done and also be given an opportunity to then focus on the gaps. I may mention, Hon Nkosi, that when I came and having identified those issues, I had then requested that these are the gaps, can I actually then engage with the provinces that I was responsible for? But there was no time for that. I didn't even have the time to visit the provinces, except for Gauteng that was closer to us. So that had an impact on how we then delivered, not that work stopped, but it had an impact. Thank you.

Mr Nkosi: Thank you, would you say that the need to hold media briefings, demonstrated the rush to deliver reports, irrespective of what the quality of those reports were at least, or to release reports untimely, before you actually were ready, and could be able to defend this both publicly and in court?

Ms Thejane: I will answer it in this way, in addition to the response I gave to Hon Gondwe. Indeed, there are matters at the report stage where one would have wanted to spend a little bit more time making sure that the report is properly quality assured. I have given an example of where we had to really stay throughout the night to present the Department of Health report even though the Department had actually accepted the remedial action. As investigators, we don't take that lightly in the compilation of the report itself. We do not want to rush even in instances where we have engaged with a state organ and they have agreed to our proposed remedial action. That we don't rush and that it must go through the quality assurance process, even in those instances, to check that we have covered all the legal legislation applicable, grammar, spelling, all those factors. Even where the state of organ has actually accepted our proposed remedial action where we know that there won't be a possibility of the matter being taken on review, because of that buy-in from a state of organ. But if it doesn't go through the quality assurance process, then we already have a challenge because anything else that may happen thereafter, or if the state organ picks up on anything and takes it on review, then we would not be able to justify it because we have worked fast. It is on those bases that say I have raised those concerns to the Committee. Thank you.

Mr Nkosi: Okay. Given that there were challenges of capacity and with investigators leaving, what was the impact of a lot of experience being lost in the web of investigators? Two, did you have a risk mitigation strategy for replacement of that capacity or for ensuring that in future you will be able to deliver with what you have?

Ms Thejane: Firstly, Hon Nkosi, one cannot stop people from leaving. They leave for various reasons. But the impact is immediately felt because that work is then distributed amongst those who remain behind. Indeed, the skill level, especially when it comes to your complex matters, that is where it is then felt quite a lot, when those people leave with their skill and knowledge. There has been at least an attempt to fill those positions much faster than what used to happen in the past. But when you have an existing complex investigation, you also cannot just give it to a new person who has joined the Office. So you will then have to give it to existing investigators who have also got their own matters to work on. How we are trying to mitigate that is to identify people who will be able to take over those matters quite quickly and be able to understand the issues as well. In some instances, we do pair people with other investigators. Where it's possible to allocate matters, either to investigators who do not have any backlog, because there are investigators who do not have any backlog matters. But again, when you do that, you must also consider whether they have the skill and knowledge to deal with that complex matter and understand it and take it up with speed. So those are some of the mitigating interventions that we have put in place. We have not done it obviously 100% successfully. As I indicated, the skill and knowledge lies with those people who have been with the Office for much longer who know how to deal with complex matters but are vested with other matters. It's an area that we are working on that still needs some or could use some improvement. Thank you, Hon Nkosi.

Mr Nkosi: In paragraph 78 of your affidavit, you indicate that in response to your audi letter, you made certain proposals to be implemented. Were they done or were they ignored?

Ms Thejane: The proposal that I made in terms of training, there is some level of training that has been done in collaboration with the SIU. However, even with the training, in some instances, it was actually interrupted because we had to interrupt people while they were still in training to respond to some of the reports that needed to be attended to. Some of the people ended up being recalled from the training itself. I couldn't attend the training myself, because as the training is going on away from the Office, you still have to answer on various matters, reports or the investigations, wherever they may be, to the executive authority. So I couldn’t even attend the training. However, from the training and HR side, there have been interventions in terms of training itself. On reviewing the service standards, those have not been reviewed in the sense of changing or relaxing the timeframe. As indicated before, the emphasis has really been on finalising those matters within the deadlines provided so that one has not been changed. It's an ongoing, robust discussion at some instance, or we just accept and move on. So not all of them have been implemented or viewed any differently so that they can have a positive impact on our work and the quality of our reports. Thank you, Hon Nkosi.

Mr Nkosi: My last question, Chairperson. On paragraph 105 of your affidavit, you indicate that executive managers were not consulted on litigation matters. Was it usual not to consult executive managers, and what was the impact of this on the outcomes of your cases?

Ms Thejane: Thank you, Hon Nkosi. It's the way how we do things that needs to be changed. I did indicate that it's something that I did discuss with my colleague at Legal Services, even back in 2019. We must be involved even with the Rule 53 record because the investigator is maybe delaying to provide the Rule 53 record to Legal Services. Also we were not involved in matters where the Office decides whether to oppose and finally, in providing the affidavit to the court. While matters would have gone through me as the Executive Manager to the Public Protector for signature. But when those matters are taken on review then I would not be involved. Those decisions are taken by Legal Services without much or any involvement at all. That’s why I indicated that some of the matters I only realised from the media that there has been a judgement and they are setting aside our report. That has a direct impact because one did not contribute to the affidavit that went to court or even when the Office took a decision not to participate at all in a court process. In some instances, one would be told afterwards that it was decided to leave it to the court to decide and we said but we could assist with the court case because we conducted the investigation. That has come out clearly in many of those cases where the court has set aside our report that had we at least participated it would have come out differently. Thank you, Hon Nkosi.

Mr Nkosi: Just one question, Chair.

Chairperson: You said that's your last question and said thank you.

Mr Nkosi: No, I just want to check whether she thinks that approach was not reckless – to go to court knowing that there are a lot of positives in your submissions as executive managers?

Ms Thejane: I would say it would have benefited the Office to at least participate. From where I am, when you see that court judgement, you see that maybe things could have turned out differently. Thank you, Hon Nkosi.

Chairperson: Thank you. Hon Mananiso.

Ms J Mananiso (ANC): Thank you, Chair, and good morning, Ms Thejane. My first question to you, an icebreaker, because we just had a hectic morning. How will you define the leadership style of the PP?

Ms Thejane: Thank you, Hon Mananiso. It can be quite autocratic. Coming so, because PP does not shout but if she makes a point, and you explain, she would actually even stop you, "No, I’ve heard you", that's it and she takes a decision. So it doesn't allow… When you operate, I suppose in any environment, but within a legal environment, and also holding the responsibility that we have, not only as executive management but at all levels, you want to bring to her attention the various factors that influence the investigation and even the report itself. But sometimes that style that is not too engaging or engaging only to a particular point and that is quite authoritative… because sometimes one would stop, not because you do not want to influence or raise the issues that may have an impact on the investigation and remedial action but you stop because you feel that it seems as if you are not respecting authority. Now you lose out in those places. Thank you.

Ms Mananiso: All right, ma'am. My second question is you indicated that your leadership meetings actually became more operational than strategic. I just want to check because many of you have been complaining that you had, you know, overrated meetings and that actually took from your social lifestyle and even family time. I want to check did you at some point raise this particular issue to the PP as the collective? Some of us who have been listening to all of you coming before us to some extent might feel there was some insubordination culture within the PPSA. What would you say with regards to that?

Ms Thejane: I would say, Hon Mananiso, if there was any insubordination we would never sit in meetings until 9, 10 with the PP. We respected her. However, if we are going to be in a meeting with the executive authority, having to report to her on each matter, this investigation or this complaint, was received on this date, and this is what we have done; these are the challenges; this is where we are – even on matters that are not in the backlog. I believe that that is our job as executive managers. We must report to the PP what interventions we have put in place, and I’ve done that even at Dashboard, to say these are the interventions. But then PP said, "Okay, we're going to start to do file inspections. I even said to PP, but that was what I said in my plan. She said, no, I will align you with what you have just proposed. I said no, but you are executive authority, so you take priority, but that is what I want to do. To say, don't take over, don't take over PP. That's our job. Hold us accountable. But that's our job. Because if we have to sit in a meeting, they're explaining what we have not done, but you're not giving us an opportunity to do it and hold us accountable. If we don't achieve that, then it's problematic in how we actually then perform and deliver on our duties as executive manager in holding even your PRs, and everybody else right down to the investigator, accountable. We've raised that. We have raised that in meetings. We've raised that as individuals as well. That is why when I was acting at investigations, I said okay, I'm going back to my portfolio. Let me rather be disciplined for not achieving based on what I applied for, because then you are held on those deadlines. But we have raised it Hon Mananiso. Thank you.

Ms Mananiso: I think some of the Members, Hon Gondwe, asked about what you stated in paragraph 34 on unrealistic deadlines, so I just want to check with you. Do you think that the PP has failed the OPP staff in terms of protecting them?

Ms Thejane: If you say failed in terms of protecting them and in relation to deadlines. If I may just understand a little bit more, Hon Mananiso.

Ms Mananiso: Okay, in a sense of actually giving them the support to do their work rather than giving them too much workload that people couldn't even do the job they are supposed to.

Ms Thejane: Sorry, for interjecting. Well, the issue of workload is really not dependent on the PP, because the workload is guided by the complaints that the Office receives. At some point, really, it's a question of which comes first. For me, I have indicated that when I joined there were already matters that were in the backlog. The objective would be to then put a proper intervention process in place so that we can deal with the backlog while we also attend to active matters as well. If, in that sense, you're are held to deadlines that were made even before you joined the Office, on matters that have already aged, then in that sense, you are not creating that environment where one can then change the situation, influence the situation. For me, it's on those bases that I say things could have been done differently. That is why I proposed that we actually set aside some time and maybe just stop meetings or have only critical meetings but focus on this backlog because the focus was more only on eliminating the backlog. If you focus on that, put those measures in place – because it affected the morale; it affected the quality; yes, it made people feel that they were not protected because the PP was not understanding the circumstances. You've got to accept when you have a backlog that indeed, we have a backlog. You've got to look at what caused the backlog. You've then got to put measures in place to deal with the backlog. That would have a more productive approach, as far as I'm concerned. Thank you, Hon Mananiso.

Ms Mananiso: Okay, Ms Thejane, we have learned that there's a wellness programme in the institution. I want you to indicate to us what measures are currently in place? Are they used effectively by you as staff? And do you think that there's a need for actually changing the wellness programme in the institution so that workers are able to get the necessary support as and when they need it? We got the sense that some had to be on sick long leave on the basis that they couldn't take it anymore. Do you think there's a need for changing that particular employee wellness programme? Is it effective now or not?

Ms Thejane: Thank you, Hon Mananiso. Yes, there is a wellness programme, and it is used; maybe not as much as we would want to see people using it and benefiting from it. But it is used in terms of the reports that we have received from the service provider. Our office is above industry norm in terms of the cases that have affected mental health of the employees within PPSA. We are well above the industry norm. That would then tell you, yes, one, we are happy that there is utilisation of the wellness programme. They take people who are affected in various ways, both personally and based on the work and the manner in which we are working, are utilising the service. But also, we are concerned at all levels. But also, we understand why when it comes to issues like mental health, we've been found to be even above the industry norm in the reporting of matters of mental health or wellness of PPSA staff. Is it effective? Yes, it can be even more further utilised so that we can benefit even fully on the programme itself.

Ms Mananiso: Then my last question to you is with regards to the understanding of organisational behavioural change in the institution. Do you think there's a need for that in the PPSA?

Ms Thejane: Yes, there is a need. The culture?

Ms Mananiso: Yes.

Ms Thejane: I came into a culture shock. I communicated that to my colleagues that having been here before, it was a different culture altogether. Yes, there will be challenges. Yes, there will be issues of performance, poor performance. That is ordinary, in any workplace. But I came to a culture shock because I had left a very high-profile institution, but things had changed in how we've been doing things in, how we've been operating as an office. It needs change at various levels. For each person at each level to also assume responsibility for their role and what they need to perform. Not just for the institution but for the community that we serve, because we're accountable to the Constitution and the people of South Africa.

Chairperson: Thank you, Hon Mananiso. Hon Siwela.

Ms Siwela: Thank you, Chairperson. Greetings to Nelisiwe. I’ve got few questions to ask. The first one is on paragraph 78. No, I'm sorry. This one was asked by one of our Members. I will jump it. I will come to this one, you and other executive managers have given evidence that you were required to attend Dashboard meetings that could last two to three days, which meant you needed to prepare for these meetings and it left you with limited time to do your work. Will you agree that you are not able to be effective and efficient with all the demands required? That's my first question.

Ms Thejane: Thank you, Hon Siwela. Yes, I indicated before that a meeting would give rise to a meeting. And that's how these Dashboards also unfolded. We would report to a Dashboard and then the longer Dashboard now needed preparation. We would not be effective because once the scope of the Dashboard extended then you have to drop everything because of the approval processes. From the investigator to senior investigator to provincial representative, and ultimately to COO , everybody along the chain would have to prepare for Dashboard, mindful of the fact that there are other competing activities. You could be attending a meeting, attending to a report, attending to a 7(9), because you must juggle all these different activities then you have to prepare for this Dashboard; make sure that the updates are proper updates before they get submitted to the PP. That did not make us effective because it's all a rush. It's all a rush. Some of these meetings as you engage with the COO, we’ll be sitting around 12am, just to also take him through so that he can also understand what is it that we'll be presenting at Dashboard. Mindful of the extended scope of the Dashboard, it started smaller, but then it expanded to include various cases. I won't repeat that. But the effectiveness was then reduced and affected other operations, because when you get a gap, you must attend to the other activities. Also you must still respond to a complainant who says but I want an update on my matter. Indeed, it affected the effectiveness of how we operated. Thank you, Hon Siwela.

Ms Siwela: Thank you. The next question is in relation to tools of trade. It is common cause that tools of trade create an enabling environment for optimal performance. Leadership requires foresight; this should have been known. Can you comment on this one? Why investigators did not have tools of trade? This could have allowed staff to work from home and not be constrained in the Office. Can you comment on that one?

Ms Thejane: Thank you, Hon Siwela. Tools of trade were there. Also, due to financial constraints I think at that… I can't really speak much in terms of the decisions that were made for not providing laptops and data for investigators so that they can continue working from home. The tools of trade per se, they were there. It's just that they did not anticipate the pandemic like COVID-19. Yes, maybe at that point, there was a lack of foresight, but also I cannot attribute this to the Public Protector. Even back in the days, tools of trade have been really more desktops as opposed to laptops for particular levels. COVID-19 really had to open our eyes that we need to do things differently and still remain productive. It was unfortunately a rude wake-up call.

Ms Siwela: I can't hear you any longer, maybe it's network. I don't know.

Chairperson: Ms Thejane, are you there? She seems to have frozen. Ms Thejane? Mr Ngoma, can you check what's happening with her, it might be a load shedding issue? Just take a few minutes. Pause, Hon Siwela.

Adv Mayosi: Chair, she's just sent a message saying there's load shedding. I seem to think that there is a generator at the PPSA, and can you give a few minutes, Chair, to establish that she will come back on.

Chairperson: Okay, we will do that. Thank you.

Mr J Malema (EFF): Chair, the most advisable thing would be to adjourn maybe for five minutes and then we can come back. But just stand like this like we are queuing in a grant queue, it's not going to happen.

Chairperson: The request is granted, Hon Malema. We'll take a 10-minute break.

[Break]

Chairperson: Please welcome back. We’re resuming our session. Hon Siwela and Ms Thejane, please continue.

Ms Siwela: Thank you, Chairperson. Ms Nelisiwe, I think these are the last two questions. The first one is did the Public Protector stop imposing her own deadlines and were provincial reps and investigators included in setting those deadlines?

Ms Thejane: Thank you, Hon Siwela, and my apologies for that interruption. I will finalise the last question, to give an answer to your last question first before I move to the next one. I did indicate that maybe it was an oversight in our planning and with due consideration to financial constraints in terms of the tools of trade, especially laptops and data not being provided to investigators and other key role players within the administrative section that also contributed to our investigation process under the Covid period. That has been rectified. So that was unanticipated. But yes, it could have been foreseeable as well. We could have planned differently. But I did indicate that it cannot be attributed to the current Public Protector because those decisions were made even before her time. I do believe some people provided with laptops and data was an issue that was really highlighted with the advent of Covid. Then, Hon Siwela, moving to your next question. The issue of imposing deadlines. Well, it never changed. It never changed honestly. Those matters were old, and the provincial representatives and the investigators would only form part of the decision making where they were invited to those Dashboard meetings or file inspections. It was not all of them that were invited to those Dashboard meetings. The longer ones where we then had to prepare those memos then they participated. But it was the same kind of approach. The conversation would still be "what products, by when". If a date is proposed, it was really at the behest of the Public Protector whether that date is acceptable or not. In many of those instances, it's still continuing that the PP would not accept the date and highlight that it's an old matter, and then a particular date will be imposed. It's something that we were used to. As indicated, we would work towards that date because I don't want to create an impression before the Committee that just because we were not in agreement with that date imposed on us, we then sit back because we knew that at the next meeting we would say but that date was unreasonable. We would still work towards the date and indicate why it was not achieved, where it was not achieved. In some instances, we would be able to achieve those time frames. Thank you.

Ms Siwela: Thank you. The last question is the manner in which investigations were done and concluded, which we have established was of substandard quality, do you think this may have had a far reaching impact for implicated parties that remedial action was unfair and unreasonable?

Ms Thejane: Thank you, Hon Siwela. It's quite a difficult question in the sense that when you work with what you have at the time and have to produce the product, the remedial action made in that report may seem reasonable enough. But if you are given more time to look at the matter thoroughly, that is why I was saying quality assurance was compromised at various levels. You will end up not picking up on certain issues that you should have included in the report and how you analysed the evidence. Sometimes analysing that evidence and the legal framework that you work within to arrive at that remedial action – the court would say but your remedial action is irrational. Whether you agree or not, it means something has not gone right in how it has compromised the remedial action, especially in those matters that have been before court – then indeed it has been compromised. Whether we agree with the court or not, because in some instances we may not agree with the court. But yes, it may have amounted to a different remedial action; there would have been the appropriate remedial action. Thank you, Hon Siwela.

Ms Siwela: Thank you, Chairperson. That was my last question.

Chairperson: Thank you, Hon Siwela. Hon Mgweba.

Ms T Mgweba (ANC): Thank you very much, Chair and good day Hon, Mr Mpofu and Ms Thejane. Chair, can I close my video because I'm outside at the bus stop? The first question, Ms Thejane, do you think the conduct of the PP, instructing the staff to be charged and some being issued with audi letters, if it was unreasonable to meet the deadlines of the PP, had an effect in terms of intimidating the staff? Thank you very much, Chair.

Ms Thejane: Thank you, Hon Mgweba. I would say yes to that question. I’m using myself as an example on points that have already tendered before the Committee. That if you come into the Office and there are matters that are already beyond their time frame, but you are held to that timeframe and within a very short period of time you are issued with an audi letter. To me that is now a more threatening kind of approach. You may as a leader believe that you would get results by inflating that fear and threat and you do not listen to the reasons. My position was to say, this is what I have observed; these matters are not yet ripe for a final product. When we talk "product by when", we are talking about the product that will be going to the Public Protector for her consideration and signature – whether it's a section 7(9) or a report or a discretionary notice or a closing report. All those products are going to be signed by the PP. However, if you then explain to the Public Protector that this is where we are with the investigation, we cannot produce the product yet then that discussion is halted as you have not achieved the target. Do not explain the internal issues that I referred to in my affidavit. Then an instruction will be given to the CEO or COO for audis while you’re even sitting in that meeting. Now that creates that environment of fear. It became a culture that we knew even as we were coming to this meetings that audis will be issued because we have not achieved. There will be no opportunity for PP to listen objectively to the reasons that matter has not reached that product, because of what still needs to be done in the investigation
so that we can ensure quality and that it can stand the test of the courts. I did indicate that it's not only geared for signature of the PP. That was easy because you will submit and you know that the PP will sign, but will it stand the test of the court? Now, we have a responsibility as Public Protector, including the PP, to ensure that our remedial action binding as it is, is based on fact and correct application of the law. But yes, indeed it created that culture of fear, that culture of victimisation. If I don't produce and I don't submit, I know that I will get an audi and that audi will eventually translate to being charged for not delivering on time. The first time I heard about the term 'malicious compliance' was in the Office because people will submit for the sake of submitting and they will say 'I've submitted'. Then the next level, the EM must explain why you have not submitted if your reporting line has submitted to you. The discussions were about that instead of what the quality. I would say to PP they have submitted what because the quality is so poor I have to send it back. But because you are held to the deadline, it means you have not met the deadline. Thank you, Chair, and thank you, Hon Mgweba.

Ms Mgweba: Thank you, Ms Thejane. The last question, in paragraph 98 in your affidavit, you have said there was limited time to conclude reports which impacted their quality. Do you think this had the effect of weakening the Office of the PP? If yes, why do you believe so? Thank you, Chair.

Ms Thejane: Thank you, Hon Mgweba. Yes, indeed, there was limited time. We were rushing, especially those critical, complex investigations that we know they've got so much impact. We don't trivialise any matter. It can be a simple social grant matter, but we must do a proper investigation because we also have a responsibility especially when we make adverse findings. Those adverse findings affect various people, depending on the nature of the investigation, and that remedial action is binding. We are instructing the state organ on what needs to be done, but also we want to influence in terms of good governance, holding public administration accountable, influencing change in how public administration operates and how they deliver to South Africans. When you rush, and it's embarrassing even for us, to say, yes, there are reports where you would say, what happened? We would acknowledge that indeed it's because we were rushing. There would be meetings that are called afterwards to look at why we lost this matter, what the court has said to us, what have we missed. And in some of those instances, we will accept that there is something that we missed had we done our work properly. Thank you, Hon Mgweba.

Chairperson: Thank you, Hon Mgweba, and thank you, Ms Thejane. Hon Mgweba was the last member to ask a question. Just to indicate to you that what is outstanding is cross-examination. As I indicated earlier, it will take place on 21 September. I want to thank you for coming and availing yourself for questions from Members today. On that note, Hon Members and colleagues, we are going to pause for today and resume tomorrow with a different witness at 9:00 as I indicated in my ruling earlier. Without wasting any of your time the hearing is now adjourned. Thank you.