PP Inquiry day 79: Second Recusal Application; Committee Report

Meeting report

Chairperson: Let me welcome all of you, Hon Members, those of you here at M46 and Members on the virtual platform. I also want to welcome the evidence leaders, whose role is critical for the exercise that we are doing today. I would like to welcome the members of the media that are with us; members of the entire support staff. Last but not least, the public. I hope that you can hear me on the virtual platform. Hon Herron, your hand is up?

Mr B Herron (GOOD): Yes, sorry, Chair. The sound quality is very bad from there.

Chairperson: Oh, okay. I will have to start again. Can you give me a few minutes so that we can fix it? Thank you for bringing that up. I will ask Thembinkosi [Ngoma] and Ms [Tshepo] Morie to attend to that. Hon Hermans and Hon Herron can you hear me? Is the sound better?

Ms J Hermans (ANC): Yes, Chairperson, it is better, but I think the camera must be adjusted because it looks like you are going to slide off the screen.

Chairperson: Is the sound better? We cannot hear you now.

Ms Hermans: Okay, because I am speaking.

Chairperson: Either you are far from the mic[rophone]. Let us check… Hon Herron?

Mr Herron: Chairperson, I can hear you and I could hear Hon Hermans very clearly.

Chairperson: Hon Herron is much better. You have to fix something there Hon Hermans. Let me check another Member. Hon Denner?

Ms H Denner (FF+): Chairperson, I can hear you much better now. Thank you and good morning.

Chairperson: Okay, thank you. Hon Majozi?

Ms Hermans: Chairperson?

Ms Z Majozi (IFP): I can hear you, Chair, loud and clear.

Chairperson: It looks like Hon Hermans, you need to fix that.

Mr Herron: Sorry, Chair?

Chairperson: Hon Herron?

Mr Herron: The sound quality is gone again. I think as soon as it said ‘Recording in progress’ the sound quality changed.

Chairperson: Okay. IT (Information Technology) please? I know we have not been doing this for a while now but there is no reason why we cannot get it right. We just need to quickly start.

Ms Hermans: Chair, please ask IT to adjust the angle of the camera because I do not think it looks good out there to the rest of South Africa with the screen being at an angle.

Chairperson: Oy. Camera, I do not know whose camera it is. Thank you, Hon Hermans.

The meeting adjourned to address the poor sound quality.

Chairperson: Hon Hermans, does it look better?

Ms Hermans: Chair, it seems you are going to have to be sitting at an angle today. It is still like that. It looks like you [are] going to slide off the screen.

Chairperson: Is the sound better?

Ms Hermans: The sound is better, yes.

Chairperson: Now that the recording is in progress, is the sound okay, Hon Herron?

Mr Herron: It is better. Thank you, Chair.

Mr M Mahlaule (ANC): Chair?

Chairperson: Hon Mahlaule?

Mr Mahlaule: Chair, thank you. I think it is something we can live with, from where I am looking. We can live with that.

Chairperson: That means you can see us and there is no problem? Thank you. I am just waiting for the secretary and then we [can] start.

Mr Herron: Sorry, Chair. The sound has gotten worse and the picture has gotten worse.

Chairperson: Thank you for keeping us updated, Hon Herron. I was just trying to start, but then you say the sound has gotten worse, so it is going to be difficult. Hon Herron, is both the sound and the look better?

Mr Herron: Yes, Sir. Thank you.

Chairperson: Thank you, Hon Herron. Hon Hermans?

Ms Hermans: Yes, I think we can live with it. It is still not perfect but it is fine. I do not know what is going on today.

Chairperson: It does not sound like a confident voice, but it is okay. Thank you. Okay, we will start now. Again, welcome to everybody. Good morning to Hon Members, both here at M46 and on the virtual platform. We want to welcome you. As I indicated, we are welcoming you today to the beginning of the end of our process; the media present with us. I also wanted to acknowledge and welcome the evidence leaders who have been specifically invited to present today's session to assist the Members in our exercise right through. I want to welcome the entire support staff of the Inquiry. And lastly, but not least, to also welcome members of the public in their various platforms, YouTube or 408 – whichever is available. Today is the 28th of July 2023. As we agreed on our revamped programme, we had set aside this day, to [be] the day that the Members get into deliberations and do the draft report, as mandated by the National Assembly. We have two items on the agenda, one being the item on [the] recusal application and response. And the second item, which is the main item, speaks to the entire mandate of this Committee – the issue of the draft report. That can be dealt with later. But let me start by just saying upfront, [I] appreciate everybody’s work and patience as we go through this work. I just want to get straight to the first item where you would have received a recusal application for the removal of the Chair as a chair and from the Committee. You are aware that in our meeting in June I indicated, which you also agreed to, that we will welcome that - if there will be any recusal application. And we indicated that we prefer that it be in writing and [that] we would respond in writing. I have therefore received, and I indicated in my response, from the day when it was mooted – from the day it was initially raised – it would have been about five weeks from the time I actually received the recusal application. I applied my mind, went through it, asked for further information –including recordings – and got a response that there is nothing more than what would have been sent to me. And that, as such, would have delayed to get a response from the initial date of the 21st. Having waited for those recordings and further responses, [I] finally responded on the 23rd. Today, that response to the recusal application is going to be taken as read and as presented. I do not need to repeat that as a Chair on the issues that were directed at me, I found the recusal application without any merit and have therefore declined to recuse myself, as you know by now. It is now the opportunity of the Committee to comment on that and take a decision [on] whether the Committee decides to remove or not to remove me. I am the Chair of this Committee, who would have been elected by Members. And so before we proceed to any other matter, I am now going to invite Members who wish to make comments on this matter, perhaps for a limited time, and then we will take it from there. Thank you very much. Are there any Members who want to raise anything or make any comments in relation to both the recusal application and the response to the recusal application? Thank you. I note Hon Dlakude, followed by Hon Xola Nqola. Are there any Members on the platform who wish to contribute? Hon Mananiso. Any other Member who wants to speak on the matter? I see no further hands on the virtual platform. We will proceed in that manner. And then I have a last hand here, by Hon Maneli. Okay, thank you. Hon Dlakude?

Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. Good morning to you, the evidence leaders and my colleagues, both in this Committee room and also on the virtual platform, and everyone else who graced us with their presence in the meeting. Hon Chairperson, let me start by saying that as a Committee we reject this application. The issues that are raised in the application do not belong to this Committee. We have said, many a times, that whoever have (sic) anything, evidence or anything, they must take that to the relevant authorities or to the relevant institutions. As this Committee we assist with the responsibility to deal with the Inquiry and to the fitness of the head of the Chapter Nine institution of the Public Protector. So we cannot be dragged into something that does not belong to this Committee. So I also want to say that we support the response you have given [and] we support your responses to this application and say that we cannot waste more time and deal with something that does not belong to this Committee. I submit. Thank you, Hon Chairperson.

Chairperson: Thank you, Hon Dlakude. Hon Nqola?

Mr X Nqola (ANC): Thank you very much, Chairperson. Chair, I wish to confirm that we have received the application for your recusal from the Public Protector and the response to that particular allegation. We have acquainted ourselves with the contents of the application, together with a response to such. Chair, I think it is important to note that what is said to be an evidence that is linking you to a perceived soliciting of a bribe or extortion and everything else is quite ambiguous for the Committee to make a link of your participation or your alleged participation of what is perceived to be soliciting of a bribe of something of that sort. Chair, when you analyse and see what is being submitted, in terms of the recusal application, as reasons for your recusal is that there is still… until today, we have been waiting [for evidence] that links you to having communicated and solicited a bribe from Mr Makhosana. Two, there is an allegation that a particular Member of the Committee was instructed by you to go and do those things. But until today there is nothing that proves that you have indeed issued an instruction that someone must go to a particular Mr Makhosana and go and solicit something. So from where we are seated we are saying there is no merit, there is no tangible evidence that actually links you to what is said to the public as a… Okay, sorry, Chair. The Deputy Chief Whip is giving me a note that it is Mr Skosana and not Mr Makhosana. I apologise. I sincerely apologise. So there is no tangible evidence that links you to that ambiguous submission of what is said to be the evidence of the bribing [being] solicited. Beyond that, Chair, I think it is important to note and say here that we will not allow the Committee to be deflected on calling people to address the Committee on things if they have got nothing to do with this Committee. Anyone who wishes to address issues in relation to the alleged bribe extortion and the sort must go to the relevant institutions and address them. We are not here to deal with issues of such kind. We are here, as mandated by the National Assembly, to deal with issues relating to the fitness of the Public Protector to hold office. So we will not allow anyone to come here and address us. We are proceeding with the business of this Committee without having to be deflected to issues, because the next day we may be called to address issues of electricity in Khayelitsha as the Committee; we will not be able to do that because we would have deflected from what the National Assembly has given us to do. Lastly, Chair: I hope and I wish that this closes the chapter that we want to go outside and validate our opinions using the passing of Hon Tina Joemat-Pettersson. It is un-African. It is inhumane. It is cruel. It is barbaric that we want to validate our opinions and our views using the untimely passing of a Member of Parliament, without giving regard to how their family might be feeling about that. They are still in the mourning phase and we are busy parading outside trying to make our opinions valid and on point using an untimely passing of our own colleague. So I think it seals it; it must not happen again. We are closing the chapter. Thank you very much, Chair.

Chairperson: Thank you, Hon Xola Nqola. Hon Jane Mananiso?

Ms J Mananiso (ANC): Thank you, Chairperson and good morning, colleagues. Chair, one would want to actually welcome and acknowledge.

Chairperson: I cannot hear you. Just volume, please.

Ms Mananiso: Chairperson, I am not sure why you cannot hear me.

Chairperson: Now we can hear you properly.

Ms Mananiso: Okay. Alright. Thank you, Chairperson. I was saying that one would want to acknowledge and appreciate your work in terms of responding to the allegations and your recusal. And I would want to support what has been said by two Members, who spoke before me, to say that this matter of allegation does not belong to this Committee. Let the matter be handled by law enforcers, as previously advised by Hon Maneli, to say that if there are issues of this nature they need to be referred to law enforcement agencies so that they can be taken care of. So one would want to agree that we want to reject this particular recusal because this is not the first time that we have been dealing with it. I thank you, Chairperson.

Chairperson: Thank you, Hon Mananiso. Hon Maneli?

Mr B Maneli (ANC): Thank you, Hon Chair. Greetings to Hon Members. Chair, I think because points have been taken on already, it is just to emphasise the point of thanking you for responding, because initially it was like you did not want to respond. So we must thank you for responding. And from where we are, it then closes it. If anybody wants access to be heard on the matter there are structures to go to but not this Committee. And I think in the way you have responded, Chair, you have demonstrated that you have been fair in the way you have handled the issues. Whilst Hon Nqola has indicated that we may be expected sometimes to look at some problems in Khayelitsha, which are not in the purview of this Committee, we should also thank you, Chair, that you took steps even on matters that really did not have to be dealt with by this Committee. Whether it was about non-payment [and] whether it was about getting additional funding. We knew that that belonged elsewhere, but those initiatives were informed by the fact that the work of this Inquiry should not be hampered, and that it can do its work within reasonable time, as expected by the National Assembly. So I want to thank you for that, and indicate that we still remain confident that you are in the correct position to complete the task that has been started by the Committee under your stewardship as the chairperson elected by this Committee to chair. So we reject that has been put, including any other additional request to have access to the Committee and listen to a point that has nothing to do with the work of the Committee. So we think it ends there, Chair, so that we can get to the real business of the Committee. I thank you, Chair.

Chairperson: Thank you, Hon Maneli. I now recognise Hon Majozi.

Ms Majozi: Thank you, Chairperson. Can I please keep my video off? I am experiencing load shedding.

Chairperson: Yes, please go ahead.

Ms Majozi: Okay, thank you, Chair. Good morning, all Hon Members. Firstly, let me just say we reject the application for you to recuse yourself. And I think we have raised this before, Chairperson, that these are other delaying tactics - that we must not finish with this Inquiry and it must not have a report up until a certain time. I mean, we can all see that now. And it cannot be that when the proceedings must take place, there is no money to pay the legal counsels but when letters of application are written, there is something because you must apply and then you are charged. But then, with regards to anything that was written in the application: we reject it, Chairperson. We believe that we must continue as this Committee, as we mandated. We are given a mandate: one mandate only. And let us continue on that, and focus on that only and let go of other things. If there is any letter of application, can we defer it to the relevant such as and tell them that ‘no, this must go elsewhere, it cannot come to this Committee, because here we are going to deal with one thing only’? I think I agree with every Member that has spoken before [me]. We are on the same path, we reject the application. Thanks, Chairperson.

Chairperson: Thank you, Hon Majozi. I now recognise Hon Manketsi Tlhape.

Ms M Tlhape (ANC): Thank you, Chair. And good morning to Hon Members. Chair, it is two things for me. Like Hon Members are indicating that this matter has been before the Committee. It is not the first time. And you have indicated that there is not even anything new on the submission. One, Chair, I agree with the Hon Members that this does not belong to this Committee. Two, it is not within our competency (sic), as Members who has (sic) been delegated or appointed by the Speaker for Parliament to come here and remove each other; it is not in our competency, Chair. And I would agree with Members that let us move on, reject this one and continue the work of the Committee. Thanks.

Chairperson: Thank you, Hon Tlhape. That would have been the last Member to stand up on this issue by way of comment or contributions. I do not see any other hand and I would therefore take it that Members are now indicating that they find no need for this matter to be entertained in this meeting and by the Committee. And you are also saying that you have no reason why you must remove me – if I get that properly. And therefore the decision is, as you raised, that if there is a grievance that grievance must be sent to the correct address – that Section 194 is not the right address. We should not be dragged into those issues. We must focus on our mandate. You do find it peculiar, as Hon Majozi is indicating, that sometimes there is willingness to get into the applications, but there is no response to those issues. So I think it is fair that I summarise it that way, that you reject in totality this, and you are advising that if there is going to be any other matter that has been raised here it should be channelled to where it belongs. I must not waste your time, as a Chairperson, by bringing to you issues that do not belong in this space. That is the conclusion on that matter, Hon Members. I would therefore want us to close that matter and therefore proceed to, as I indicated, the main item of today’s meeting and equally the main item of the Inquiry. We have been set up as the Committee of the National Assembly in terms of Section 194, following the adoption of the rules. The report of the independent panel that found there was prima facie evidence that Ms Mkhwebane committed misconduct and that she is incompetent. This Committee, in its very first meeting, indicated that its task is that of doing the investigation; that it was never going to be rubber stamping the report of the independent panel, because if we did so we would have long finished our work. It would not have taken us so long and up to this point. We are here on the 28th of July 2023 as a day when we need to be looking at the draft report that we must prepare to take to the National Assembly. Preceding this has been a number of processes, as part of our schedule. And having received that independent panel report, the Motion itself, we would have drawn out a programme that invited twenty-four witnesses: eighteen identified by this Committee and six by the Public Protector. We spent hours and days being led in evidence in chief, being cross-examined and Members having asked questions of each of those witnesses – all of the twenty-four witnesses, including the legal team of the Public Protector. Following that, we then received a very comprehensive response and sworn statement by the Public Protector in both Part A and B. She would have done that having had the opportunity to have listened to witnesses and witnesses being cross-examined. And we would have spent six days on part A of Ms Mkhwebane oral to amplify what would have been Part A, even though we did not have an opportunity for her to orally amplify Part B. But we have that evidence as the Committee. Following that, based on the decision of this Committee to abbreviate the process, given the challenges and the off-ramp that it has and for the Chair to have issued new amended directives, we would have outlined a process where Members asked further questions, as well as evidence leaders, that were put to the Public Protector – and timelines and dates would have been given. We would have indicated to her and given her choices, with dates, as to whether she would want to do this orally or in writing. Once all questions were collated by the Secretariat and sent to her by the 25th of June, the expectation was that by the 6th of July she would have responded to all of those questions. The suspended Public Protector elected not to challenge or respond to those questions. And therefore the questions posed to her by evidence leaders and Members remain unchallenged, even though she had an opportunity to put the other side or respond to some of those. We then proceeded to our next task, which was in our programme and schedule, where we asked the evidence leaders to do the summation of the evidence of the entirety of the work that we have done. That, they have produced and everybody else has received that – not just Members, members of the public have that. And that summation, true to their role as evidence leaders, remains a neutral summation which is not indicating whether this should be like this or like that, simply because it is going to be Members; it is Members who must make the call of what we have been asked to do. We have the summation. Members have gone through that, spent time on it. They set aside for us to deal with the draft report. So, let me say upfront, in case members of the media or members of the public or anybody else would have expected that we would present a well prepared draft report, that would not be the task of evidence leaders or legal advisors. The actual drafting of that report is the duty of the Members, which we have called this meeting for – for Members to do exactly that. And I will be giving a guide and leading the Members on that important exercise. So if you thought that we are going to say ‘Here is the draft report’, it is not going to happen. The draft report is going to be in place after the Members have done their work today. I have said this before: we do not work in dark, smoke-filled rooms where we produce reports. This is a transparent process. This is a parliamentary process. Every step of the way, you are going to follow, you are going to understand why this argument is made; why if today we are saying we sustain or not sustain the prima facie evidence of the independent panel – Members will be saying that themselves. So this is where we are going to get to now. And perhaps as a start, we thought it will be important that we refresh all of us just about the key steps and the process of where we started, where we are; and remind ourselves about some of the key important concepts in this process, the motion itself and everything else. And for that, I am going to be asking the legal advisor to assist us in that reminder. After that, the Chair will come in [and] lead the Members. In the manner we are going to do this, we are going to have to take that motion, those charges as they were agreed to, and we are going to go through this charge by charge, with Members having to pronounce, contribute on all of those. And we are going to be recording every contribution, whether it is something we agree on, whether it is a dissenting view or a minority view. All of that are (sic) going to be a part of the report that we are going to produce. And so without… Just before I call on Ms Ebrahim… Hon Nyhontso, can you mute?

Mr M Nyhontso (PAC): Chair, there is a problem: I am technologically backward here.

Chairperson: Okay, I will ask IT to mute you.

Mr Nyhontso: Please, Chair, I have been trying.

Chairperson: I will intervene on your behalf. They will mute you. IT, please mute Hon Nyhontso. He has got some challenges there. You are being muted but not because you did anything wrong – just to allow you to figure out that gadget of yours. Is he muted? Thank you very much. So when we mute people you must not think that it is a bad thing to do. We are now muting Hon Nyhontso. Let me therefore proceed and ask Ms Ebrahim to just give you context and take you through… This is the journey we have travelled. She will not be raising anything new that you do not know. It is really meant to refresh ourselves as we are about to get to the next task because the next task that I am going to lead you through, I want you to be patient. It is going to be a very tedious process. It is necessary that we do that. Those of you who have done… been in committees [where] issues of legislation are done clause by clause. This is not a fencing type of work, [a] nice to do, but it is critical where you look at everything as you do that. But before we do that, I am going to ask Ms Ebrahim to just refresh us and give us a context (sic) and remind us about certain things.

Ms Fatima Ebrahim (Committee legal advisor): Thank you, Chairperson. Good morning to yourself, Hon Members and everybody else that is present this morning. Chairperson, in preparing for the meeting I thought it might be wise to share my own notes, and this is now being done in the form of Aide Memoire that has been circulated to Members, and hopefully it can serve as a reference guide as Members proceed with deliberations today. The purpose, Chair, is not to give legal advice on the veracity of the charges or to deal with any evidence related to the charges itself. That is something that Members will deal with themselves in reaching their conclusions. I have also, Chair, in this document, tried to highlight some issues not necessarily related to the substance of the charges themselves that Adv Mkhwebane had raised – and I think it is important that the Committee considers for purposes of drafting the report. Chair, by way of background, I am not going to go into too much detail because as you said, Members would be quite familiar. But in terms of the rules, the purpose of this Inquiry was to establish the veracity of the charges and to report to the NA and to ensure that the Inquiry that is conducted by this Committee is conducted in a manner that is reasonable, procedurally fair, and within a reasonable timeframe. And of course, importantly, to afford the holder of the public office the right to be heard in his or her own defence and to be assisted by a legal practitioner. The Committee, as it knows, must report its findings and recommendations, including the reasons for that, to the NA for consideration and debate. And that debate will be scheduled with due urgency within the programme of the NA. And of course as we know there needs to be in the event that this Committee recommends removal that would need to be supported by [a] two-thirds majority. Chair, the motion that was submitted on 21 February 2020, consists of four main charges and various sub charges, so it can get a little bit confusing, but we have prepared questions just as Members. So the first one, charge one, is misconduct in the South African Reserve Bank matter. And that one consists of nine sub charges. These have to do with the PP’s (Public Protector).

Chairperson: Are you able to show them?

Ms Ebrahim: To show the report?

Chairperson: To show Members.

Ms Ebrahim: Oh, Chair, we can put it up, but it has been circulated to Members.

Chairperson: Okay.

Ms Ebrahim: The first charge – so I am not reading from the motion itself – is the one of misconduct, and that has to do with the South African Reserve Bank (SARB) matter, as I indicated, and the investigation and the litigation proceedings relating to the review of that report. Chair, Members will know that we have interchangeably referred to that report as the CIEX report, the Lifeboat matter, the SARB report. So you might see in [the] evidence… We would have seen it in the summation that it gets referred to differently but it all has to do with the same matter. Charge two was the Vrede Dairy matter, and that had five sub charges, and that had to do with Report 31 of 2017-18. Charge three was a charge of incompetence, and it alleges incompetence in relation to both the Vrede and SARB matters; so where charge one and charge two were limited to misconduct in respect of these two matters, charge three now raises incompetence in respect of the investigation, the report and the litigation in those matters. In the SARB matter there were nine sub charges and in the Vrede matter a further six sub charges. This charge three, Chair, also deals with the Financial Sector Conduct Authority (FSCA) matter, which is also interchangeably referred to as the Tshidi matter, and it has two sub-charges therein. So this one is dealt with a little bit differently and Members will see that when you go through the questions later. Charge four was a broad charge, Chair: it was misconduct and/or incompetence, so it was a mixed charge. It contained two sub-charges, paragraph ten and paragraph eleven. The first sub-charge in paragraph ten is what Members would know as the HR (human resources) issue – which I think the PP has also referred to as the HR issue – and that relates to the alleged intimidation, harassment and/or victimisation either directly or indirectly, through the CEO (Chief Executive Officer) of staff, and in particular then there were seven staff members that were named: Mr Kekana, Samuels and Mr Madiba, for example. And that is all listed from ten point one to ten point seven. So there would need to be findings made in respect of each of those persons and then the question generally as to whether there was victimisation, harassment or intimidation of staff and if so, whether that was either through the PP or via Mr Mahlangu. The second sub-charge under number four relates to misconduct and/or incompetence more generally. And, briefly, the first part is management of internal capacity and resources in the PPSA (Public Protector South Africa), the prevention of fruitless, wasteful and or unauthorised expenditure in legal costs. Members will recall that there was quite a debate in the Committee as to what the meaning of legal costs is and whether it included legal fees or it was limited to costs awarded by a court – but obviously that is already included in the summation. Part three, the failure to conduct investigations independently and impartially. And then part, four deliberately avoiding making findings against or directing remedial action against certain public officials, while on the other hand, deliberately reaching conclusions of unlawful conduct and imposing far-reaching remedial action in respect of other officials. In support of charge four, Chair, all of the evidence in the Vrede and SARB matters were included as part of the motion; so everything that would have come under charge one and charge three – all of the, in the main, court records. In addition in support of charge four, Hon Mazzone also submitted evidence in respect of the CR17 matter and the SARS (South African Revenue Services) unit matter, which has also been interchangeably been referred to as the Rogue Unit matter, and also the GEMS (Government Employee Medical Scheme) matter. That matter revolved around a complaint by a member of the public against the Government Employee Medical Scheme and litigation pursuant thereto – there was no report issued in the GEMS matter. Chair, as we know the Speaker ruled that the motion was compliant with the NA Rules; establishing an independent panel comprised of Justice Nkabinde, Adv Ntsebeza, and Adv de Waal here at the Cape Bar. Their role, Chair, was to determine whether there was prima facie evidence that Adv Mkhwebane had committed misconduct and/or was incompetent as alleged in the motion. The IP (Independent Panel) submitted a detailed report, which forms part of the record, and they found that they were was prima facie evidence of incompetence and misconduct in respect of both the SARB and Vrede matters, that is contained in charge one and two; incompetence in respect of SARB, Vrede and the Financial Sector Conduct Authority matter in charge three; incompetence in respect of the CR17, SARS Unit and the GEMS matter, that is contained in charge four; misconduct in respect of the Financial Sector Conduct Authority, CR17, Vrede Dairy and the SARS Unit matter, again in charge four. However, Chair, the IP did not make findings of prima facie evidence in respect of every single sub-charge. As I have indicated, each charge had various sub-charges. In particular, Chair, it is important to note that they found there was no prima facie evidence in support of the so-called HR matters in paragraph ten of charge four. Their findings are all summarised in annexure A of the Independent Panel report – so if Members want to quickly reference where they found that there was prima facie conduct, that can be easily found in annexure A. That report served before the NA, Chair, and as we know the NA proceeded to refer that report to this Committee, or rather the motion than the report. Chair, the Committee, you will recall, adopted a terms of reference, which set out – amongst other things – a background to the task, a format of proceedings (including the way in which evidence will be received) matters relating to public participation, transparency of proceedings, and the resources that will be availed. There was emphasis on the fact that it is a constitutional process, that it is inquisitorial in nature. And we also provided for the appointment of external evidence leaders to assist the Committee by presenting evidence and putting questions to Adv Mkhwebane and other witnesses. The purpose of using evidence leaders, Chair, was to empower Members and the Committee to perform their functions and the evidence leaders to not play a prosecutorial role in this matter. The TOR (terms of reference) further provided that Adv Mkhwebane’s audi rights would be cemented by giving her the right to make opening and closing arguments, to cross-examine witnesses and to raise any matter related to the process, subject to the reasonable timeframes as imposed by the Chair. Chairperson, the PP has indeed been provided with an opportunity to make an opening argument, which was done by Adv Mpofu. She was invited to make closing arguments either orally or in writing, but as Members would be aware from the correspondence that has been tabled, she indicated that, via her attorneys, counsel has not been briefed on the merits of the matter and therefore these deadlines have not been met and those requests were not responded to. In addition, the terms of reference also provided that Adv Mkhwebane will be afforded the right to comment on the Committee’s draft report before it gets adopted. So once the draft report is tabled, Chair, it will accordingly need to be adopted by the Committee as a draft report and then sent to the PP for comments, after which the Committee can consider those further comments before it adopts a final report for tabling in the NA. The scope of the Inquiry, Chair, this has been a contentious issue in that the IP did not find, as I indicated, that there is prima facie evidence in respect of every single sub-charge. But what Members must bear in mind is that the IP, and I have already advised on this, Chair, was not entitled to hold oral hearings and its assessment was limited to be written and recorded information that was placed before it. And it could not and did not conduct an independent investigation that could lead to a determinative conclusion on whether or not there has been misconduct or incompetence. The IP, therefore, did not have the power and could not conclude that only some charges should be investigated or determined by the Committee, or that some charges should be excluded from consideration. If there were to be such an instruction, it ought to have come from the National Assembly at the time when it referred the motion, but the Assembly referred the motion in its entirety to this Committee. And in fact, Chair, the Independent Panel noted in its report that it stresses from the outside that it is not tasked to conduct a Section 194 Inquiry for the removal from office of the PP – that task is with this Committee. Chair, is therefore duty bound to consider all of the charges and to make findings in respect of all of the charges as contained in the motion and not just the charges where the Independent Panel found that there was prima facie evidence. I have listed it as [an] easy reference for Members, but this is basically what is contained in annexure A of the report. Chair, I am going to move onto the constitutional provisions of the Public Protector, just to give Members a reminder. As we know, Section 181 establishes the Public Protector as a state institution strengthening constitutional democracy in the Republic; they are colloquially referred to as Chapter Nine Institutions. And these institutions are governed by the following important constitutional principles. One, they are independent and subject only to the Constitution and the law; they must be impartial and must exercise their powers and perform the functions without fear, favour or prejudice; other organs of state, the legislature and other measures must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. And importantly, no person or state may interfere with the functioning of these institutions. These institutions report to the NA on their activities and the performance of their functions; and of course, we know that the Office of the Public Protector also reports to the Justice Portfolio Committee in terms of the oversight responsibilities. The functions of the Public Protector, in particular, are captured in Section 182 of the Constitution. The Public Protector has the power to investigate any conduct of state affairs, or in public administration, in any sphere of government that is alleged to be suspected to be improper or to result in impropriety or prejudice; to report on that conduct and to take appropriate remedial action. Chairperson, as Members will know, that remedial action that the Public Protector may take is now binding, following a decision of the Constitutional Court. The Public Protector has additional powers and functions as prescribed by the legislation. The Public Protector may not investigate court decisions. The Public Protector must be accessible to all persons and communities. And any report issued by the PP must be open to the public unless exceptional circumstances to be determined in terms of national legislation, require that the report be confidential. Members are aware that the term is a fixed term of office of seven years, and the current PP’s term comes to an end in mid-October. Section 193 of the Constitution deals with the appointment of office bearers. The Public Protector, in particular, must be a South African citizen, and importantly, must be a fit and proper person to hold that particular office. So, the removal deals with this issue of whether the person is fit and proper, and if the person who has committed misconduct has otherwise proven to be incompetent, then it would follow that they are not fit and proper to hold office. Section 194 of the Constitution deals with removal and it states that the Public Protector may only be removed on the ground of misconduct, incapacity or incompetence. A finding to that effect by a committee of the National Assembly – and that will, of course, be this Committee – and the adoption by the Assembly of the resolution calling for that person’s removal from office. Members will recall that Adv Mpofu did argue, in his opening address, that this Committee is not that removal committee. If I recall correctly, I did advise at the time. The Constitution did not define misconduct, incapacity or incompetence; in fact, that was one of the reasons that it was then necessary for the NA to issue the removal rules. The removal rules define incompetence and misconduct; misconduct is defined as the intentional and gross negligence failure to meet the standard of behaviour or conduct expected of a holder of a public officer. And, Chair, this is important, because whilst the constitutional definition merely referred to misconduct, the rules have taken it further and said it must be gross misconduct, as it were – so the threshold in terms of the rules for removal is, in fact, slightly higher. It will therefore be necessary for Members, when establishing whether there is misconduct, to ask these important questions: what was the standard of conduct in behaviour expected of a person in the position of the Public Protector; did Adv Mkhwebane meet that standard; and if not, was her failure intentional or grossly negligent? In other words, it is possible not to meet a standard but there can still be a finding that the failure was not intentional or grossly negligent as required by the rule. Chairperson, the issue of intention is obviously subjective. And it is concerned with what that individual in question would have personally understood was happening in the circumstances. And in law intention can take one of three points. The first is what we refer to as dolus indirectus, and this is where the individual deliberately aims at causing the consequence in question. So the example cited here is when X fires with the intention of the bullet harming Y. So in other words, I know that the result of this will be that the person will be breaching. When the individual aims at causing a particular consequence but knows that another consequence would be inevitable – for example, X fires a gun at a cardboard cutout, with the intention of putting a bullet hole through the cut out, but the know that somebody is standing behind the cut out and that person is obviously then going to be injured. That would be called dolus directus. And the third type of intention is where the individual aims at causing a particular consequence, or sees the possibility that another consequence could result, but reconciles himself to that possibility and proceeds anyway. So in layman's term[s], the person takes the risk as it were. So using the same example [of] X fires a gun at a pole with the aim of hitting the pole. He foresees the possibility that the bullet could ricochet and hit Y, but he reconciles himself to the possibility that Y could get shot and fires the bullet anyway. And that is dolus eventualis. The test for negligence, Chair, is something that must be assessed objectively [and] not based on what a particular individual thought or understood, but based on what a reasonable person would have understood and done. The Public Protector would only have been negligent if a reasonable person in her position would have foreseen the possibility of certain consequences arising. The same person would have taken the reasonable steps to guard against the consequences, and the Public Protector has failed to take those steps. Again, that is the issue of the Inquiry. Gross negligence occurs where there is an entire failure to give consideration to the consequences of one's actions. In other words, an attitude of reckless disregard of such consequences. In terms of incompetence, the inner rules do not provide an exhaustive definition of incompetence. The rules, rather, define incompetence as including a demonstrated and sustained lack of knowledge to carry out and an ability or skill to perform his or her duties effectively and efficiently. Sustained, of course, Chair, is something that would have to be considered within the context – there is not a number that can be put to the meaning of the word sustained, other than to say it would have to be, obviously, more than one incident. That fact that an action may have been incompetent or even two actions may have amounted to incompetence does not necessarily make the person incompetent, which is why it would have to be demonstrated and sustained. In respect of incompetence, again, the Committee will have to consider what Adv Mkhwebane’s duties were and whether she displayed a lack of knowledge to carry out those duties effectively and efficiently; and whether she displayed a lack of ability or skill to perform those duties effectively and efficiently; and was the lack of knowledge, ability and skills demonstrated and sustained. So we are not looking for one-off examples. The test and threshold for removal… The definitions, Chair, of misconduct and incompetence in the rules must be understood purposefully. There are threshold requirements for determining whether a Chapter Nine office-bearer, who has constitutionally-entrenched independence and performs the vital function of ensuring accountability in the public sphere, should be removed from office. So people in these positions cannot be removed willy-nilly. The test and the threshold is high: it is a serious matter. Accordingly, to ensure the proper functioning and protection of Chapter Nine Institutions of a high standard should be adopted by the Committee. Incompetence or misconduct should not likely be accepted as having been established. The Committee is exercising the public power in that it is making a finding/recommendation to the NA on whether there are grounds justifying the removal of the PP, and therefore this exercise of power must be rational and not arbitrary. Rationality can be understood as a rational relationship between the measures adopted and a legitimate governmental purpose; it calls for an objective inquiry. So, Chair, whilst there has been criticism of the fact that the Inquiry is political, Members will recall that when I did – perhaps I will not – my very first presentation to the Committee, indicated that as much as it is a constitutional process, it is also a political process. That is the nature of Parliament; that you are sitting in a multi party Committee. But unlike in a situation where a Committee or Members of Parliament are deciding on a policy matter, over here, Members need to show that a decision they have reached is a rational decision. It is not a matter of preference, whether a Member feels the PP should be removed [or] whether a Member has any personal feelings on that issue. The Member must have been able to, or the Committee must have been able to establish on a facts-report and on the evidence considered, that there are rational reasons that support a finding of misconduct or incompetence. Chair, the question is how does the Member or the Committee consider or make a rational finding? The rationality entails a consideration, on the one hand, of the evidence that is before the Committee, vis a vis the standards of conduct expected of the Public Protector because, of course, you need to measure what the evidence tells us against what a person in the position of the Public Protector ought to have done [as] a reasonable person in that position. For that purpose, the Committee will recall that two witnesses were called, and I am not going to call them expert witnesses because the Committee knows that there was some debate as to whether they were experts or not, but that as it may, there were two witnesses that spoke of the roles and responsibilities and the protection that should be afforded to a position of the Public Protector. That was Mr Ebrahim and Ms Sokoni – the Ombudsman of Zambia. Mr Ebrahim proposed forty-seven obligations that a Public Protector must comply with in the discharge of their office. And this was done with reference, Members will recall from his testimony, on the applicable legal framework, including the constitutional provisions, the PP Act, the case law and so on. In terms of those forty-seven steps, and it is important that Members apply this when considering the evidence, is that a person in the position of the Public Protector must respect the supremacy of the Constitution and the rule of law. They must strengthen constitutional democracy, focus on ensuring the discharge of public functions that is accountable, responsive and open; respect the separation of powers and a legitimate sphere of each branch of government, and in so doing, respect the decision of the executive legislature and the judiciary; be independent and impartial and perform functions without fear, favour or prejudice; be dignified and effective; be dedicated and contentious; discharge functions diligently and without delay; exercise only those powers that are conferred by law; not assume the powers or functions of any the other public functionary or encroach on its integrity; be accessible; adhere to a high standard of professional ethics; ensure the efficient economic and effective use of resources; ensure that services are provided fairly and without bias; foster transparency; be accessible; cultivate good human resource management, and be capable of managing and office that comprises hundreds of personnel and numerous departments and units; exercise appropriate and effective control over the Deputy Public Protector and the staff of the Public Protector’s office; delegate power to the Deputy Public Protector to exercise; be capable of undertaking and managing numerous investigations, and of understanding and applying the Constitution and the laws that regulate the public administration and affairs of the State; maintain and office that is accessible to members of the public; discharge functions ethically and effectively; monitor the performance of the executive, which includes investigating alleged maladministration, abuse of power, discourtesy undue delay, improper or dishonest conduct, improper enrichment and improper or unlawful prejudice; work to ensure that the public administration carries out its tasks without corruption or prejudice; be the last defence for the public against bureaucratic oppression, corruption and malfeasance – in other words, to protect the public; investigate complaints from members of the public in respect of State affairs or the public administration, report on the conduct complained of, and take appropriate remedial action; decline to investigate conduct that occurred more than two years prior to the complaint, unless there are special circumstances that distinguish the complaint (and that would be in terms of the act governing the PP); consider a range of options in addressing a complaint, including mediation and negotiation; advising the complainant regarding appropriate remedies; and reporting an offence or particular conduct to the appropriate authorities; in determining appropriate remedial action, not to order an organ of state to do something that is outside of its powers; make clear rather than vague determinations; be objectively fit and proper to render the constitutional functions of office; be appropriately experienced in the law, the administration of justice, public administration, and/or the legislature; be a person of stature and beyond reproach; be suitably qualified; be scrupulously honest and have absolute personal integrity; disclose all material facts and evidence and behave with utmost good faith when litigating; not exploit loopholes, or show disregard for the law, or mislead, in any way, or make charges without supporting evidence; ensure that all statements of the law accurate, and not misconstrue the law; be a good constitutional citizen; be willing and capable of taking on sensitive investigations that might antagonise the powerful; observe the requirements of procedural fairness and confidentiality during investigations and allow potentially affected persons a proper opportunity to make meaningful representations; conduct investigations with and open and enquiring mind and follow wherever the evidence leads; discover the truth and continue digging until the true picture emerges; not extend investigations beyond the affairs of State, into the affairs of private parties; not expand an investigation without lawful justification; be cognisant of the serious consequences that can flow from an investigation; inspire confidence in the integrity and completeness of investigations; and account to the NA. So it is quite a mouthful, Chair. And perhaps will be useful for those Members that are involved in the appointment of the new PP – it could, perhaps, serve as a reference guide for them. During cross-examination, Chair, Mr Ebrahim's expertise and the relevance of his experience and expertise to the Committee’s work, were called into question – and I mentioned this earlier – however, the principles established above… rather, the principles were not established as incorrect or inapplicable. Mr Ebrahim did, however, concede that a Public Protector has the power to limit or extend the scope of an investigation provided that there are reasonable and justifiable grounds for doing so. And those questions would have been in response to the fact that parts of the Motion alleged that the PP narrowed the scope of investigations, for example, in the Vrede Dairy matter, or widened the others. Ms Zulu-Sokoni’s evidence, Chair, covered the principles and standards that an ombudsman should adhere to or uphold because she obviously spoke more generally and not in relation to South Africa necessarily. And she also spoke at great length about the protections that an ombudsman should be afforded and observations in that regard. Chair, her evidence should be read together, especially with the Oliver Tambo declaration and the Venice Principles, which she spoke to in some detail about. But some of the things she said, Chair, was – and this has been extracted, Chair, from both the evidence-in-chief and the cross-examination – “To determine whether the Public Protector has committed misconduct or has shown incompetence regard must be had to the office standards and duties, including notions of what it means to be fit and proper. A Public Protector who does not play by the rules could be subject to impeachment. The Public Protector should adhere to natural justice and procedural fairness. These principles do not just extend to the ombudsman, but to when the ombudsman is investigating, but also extends to the relationship that the ombudsman would have with Members of staff. The Public Protector’s office should be the example of par excellence. We should ensure that we are leading by example all other institutions.” This is what she said. “The Public Protector’s office must exhibit the highest tenets of integrity, professionalism, transparency, accountability, the cause of justice, the rule of law and the Constitution. The Public Protector must act in a manner that shows she is independent so that people perceive her independence. In this regard, it is a non-negotiable for a Public Protector not to be independent and impartial. The Public Protector must take responsibility for every report her office issues. The Public Protector has a special responsibility to tell the truth to courts, and to file affidavits truthfully before courts. The Public Protector’s reports should be honest and the evidence referred to in those reports should be complete. The reports should display an understanding of the law and the Public Protector should have the legal acumen of a judge. A Public Protector should not do anything to give the impression to the public that she has colluded or behaved improperly with a member of the executive branch of government. While a Public Protector must have a high standard of ethics, transparency and openness, she is also a human being – there may be lapses here and there and that is the reason why the decisions of an ombudsman can be subjected to judicial review.” And this, Chair, goes again to what I mentioned earlier about incompetence – is that incompetence is not merely the making of a mistake once or twice, it is sustained and demonstrated. “Where the Public Protector’s decision is successfully taken on judicial review, it is the duty of the ombudsman to interrogate that judgment and ensure that they do not repeat the sort of errors that were caused in that particular report. Ms Sokoni referred to this as a ‘cleansing process’ and a ‘quality control process’. And she made it clear that she would not expect the Public Protector to repeat the same mistakes once that error had been established in the court. Further, she testified that “It was not good for an ombuds’ reputation to have judgments coming up continuously on the same issue, especially on the same matter, the same error, the same mistake. A court holding an ombudsman’s decision to have been wrong is a way of ensuring excellence in the work of the ombudsman. However, an ombudsman who is aware of the principles and ethics of their job will take note of what the courts were saying and implement it in their work to ensure that the error does not happen again. The office of the ombudsman should be beyond reproach.” The Members will see that it is very much similar to what Mr Ebrahim had testified on. Then Ms Zulu-Sokoni also spent a lot of time emphasising the protections that an ombudsman should be afforded, again, with reference to the Venice Principles and the Oliver Tambo Declaration. Chair, I thought it is important that I take the Committee through these so that you understand some of these challenges that an ombudsman or a person in the position of the Public Protector would face, and also understand the protection that should be afforded to them. “The principles all emphasise the need to protect the independence of the ombudsman, as the ombudsman investigates the very office which created it, funds it, and which is supposed to pay the salaries of the members of staff and the ombudsman themself.” So we know that as far as Chapter Nine institutions are independent, in the same regard they also rely on government for their funding. To this extent, the OR Tambo Declaration states “The independence and the autonomy of these institutions must be guaranteed by the Constitution”, and indeed our Constitution does do so. The Venice Principles refer to [the] functional autonomy of the ombudsman, meaning that they should not be charged concerning the constitutional legislative administrative function. “The ombudsman must be afforded the highest level of administrative and legal support to ensure that there is procedural fairness with any issues to deal with the institution is under the purview of any of the arms of governments.” She notes that the office of the ombudsman is “inherently vulnerable” because it investigates very powerful people; so for example, the President and Ministers in our case. “The office of the ombudsman should be accountable to Parliament because through the system of checks and balances and the separation of powers, one wants to ensure that the ombudsman reports to a body which it does not investigate.” In South Africa, Chair, the PP does account to Parliament, but the PP may also investigate members of the executive, who are also Members of Parliament. The Venice Principles stress that “The protection and promotion of human rights and fundamental freedoms should also be extended to the ombudsman, the deputies and their staff. The judiciary protects the ombudsman in that where reports are tabled before the judiciary they provide ‘extra scrutiny’ and ‘independent scrutiny’. Procedural fairness requires that when a body is dealing with adverse court judgments against an ombudsman there must be equal attention given by that body that is hearing the matter to favourable judgments. Prior to being suspended, an ombudsman should be made aware of the charges that are against them and be given a fair hearing. The legislature should assist an office who is accountable to them and accord the appropriate protections if they are available. Functional autonomy requires that where investigations are carried out by the Public Protector there should not be any interference in that investigation by any arm of government or from any person.” And this also is codified in our Constitution. As stated in the OR Tambo declaration “At minimum, the office of the ombudsman must be equated to that of a judge.” And she spoke of her personal experience, saying that the classical model… Chair, just to remind Members, because it was a long time ago. The classical model is where the remedial action or the recommendations of an ombudsman are not binding. This is different from South Africa, where the Constitutional Court has found that it is binding. And Ms Sokoni was of the view that that would have been a difference from the model. Of course, that is not the case for us, and if there has to be concern and issues raised in that regard, it will not be in connection necessarily with the charges, but it is important to consider it in relation to the fact that later on she goes on to say that this is one of the reasons that they would have seen an increase in litigation. Principle eleven of the Venice Principles states that “The ombudsman shall be removed from office only according to an exhaustive list of clear and reasonable conditions established by law. These shall relate solely to the essential criteria of capacity, incapacity and inability, misbehaviour, misconduct must be narrowly interpreted.” And in fact, that is exactly what Parliament has done in its rules, because as I said, they made the threshold even higher, and as I have indicated to Members, removal is not a matter to be taken lightly and therefore Members must ensure and be certain that the evidence supports the removal if such a recommendation is to be made. “Whether an incumbent who has a short amount of time in office left should be charged would depend on the gravity of the charges that have been pressed against that particular ombudsman. An ombudsman performs officially in their office and is not carrying out the personal duty.” Accordingly, she was of the view that it compromises the independence and integrity of the office for the officer to be asked to take personal responsibility for actions that were carried out in her official capacity. And this had to do with the fact that the incumbent PP has had personal cost orders made against by our courts. “Adverse cost orders should be borne by the respondent institution and not the Public Protector personally; and if criminal charges arise out of the same set of circumstances where a personal cost order had been granted…” she said that it sounded to her like that may amount to victimisation. She reminded the Committee that an “An ombudsman is a single person who is constituted as a corporate sole and is being asked to shoulder the responsibility of an entire organisation.” And so personal costs, in her view, were a form of judicial harassment and were unacceptable. On the time limits for submitting complaints to the Office of the Public Protector, she said that this should not be read very narrowly. And this has to do with that two-year timeframe in the act, ‘because an ombudsman should have a lot of discretion’. And she cited an example saying “for poor people who come from rural areas they may not know that they can actually appeal. They may not have the money to actually reach the office of the ombudsman and it may take them within two years to bring complaints. She said “Unlawful retaliation suspension is a form of administrative or judicial harassment. The binding decision model makes the ombudsman amenable to the view of the decisions by a court of law.” And that would be because when decisions are binding people will be more inclined to want to take that on review. “The courts…” she said “also seem to feel threatened by the judicial powers of the ombudsman, and there is always a temptation by any one of the three arms of government to trim down the powers of the ombudsman.” And she said that this is evident by matters in her own country and here in South Africa. And “once the powers of ombudsman seem to overlap or to be shared by any one of the three branches, inevitably the institution of the ombudsman may have to be reined in by the arm which feels challenged.” She said that “It is very important that during the course of investigation an ombudsman has the complete cooperation of the respondent institutions, being the executive. The ombudsman is the only institution which the poor man can call upon. If a process in a particular country involves the refusal to call essential witnesses or relevant witnesses that are specifically mentioned in charges, thereby denying the accused person an opportunity to clear their names…” she said “this would not be in conformity with the fundamental principles of natural justice. A person's right first needs to be properly represented. Secondly, to properly defend themselves should be respected and upheld and in any constitutional democracy.” And then, “Lastly, that it is an unintended consequence” as I mentioned earlier, that the binding model litigation costs would shoot up because people will be more likely to challenge decisions. However, with reference to her own office, Members might recall that Ms Sokoni said that she had gone through the experience of one of her reports being taken on for review. She said that she must “confess that we have actually raised our standards very high, because whatever evidence we give, we interrogate each and every piece of evidence thoroughly, because we know that when the report comes out there is a possibility that it might be taken to court. So, it has actually made us a little bit more cautious. It takes us a little bit longer now to issue a report because we have to really do our due diligence and really integrate our cases so thoroughly.” Chair, the next section of the Aide Memoire deals with intimidation, harassment and victimisation referred to in paragraph ten of charge four – and I am not going to read that charge out. But the reason that I have included here is that these terms were not defined in the motion, so, I just thought it might be useful to give a brief explanation of what these concepts are. Harassment is defined – the dictionary definition – as “intimidation, bullying, threatening, or coercive behaviour, including manner of speech, usually by a superior towards a subordinate, and sometimes by colleagues in an organisation.” In South Africa it is dealt with in the Promotion of Equality and Prevention of Unfair Discrimination Act, which describes harassment as “unwanted conduct in the workplace – which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual conflict and adverse consequences.” The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which is issued in terms of the Employment Equity Act, aims to eliminate all forms of harassment in the workplace. And that Code recognises various forms of harassment that may amount to unfair discrimination. So whereas previously only sexual harassment was dealt with in terms of the Code, the Code now deals with harassment on many grounds – I think I even got it in a footnote there. Harassment is generally understood in terms of the Code to be ‘unwanted or unwelcome conduct, which impairs dignity, creates a hostile intimidating work environment for one or more employees, or is calculated to or has the effect of inducing submission by actual or threatened adverse consequences and is related to one or more of the grounds in respect of which discrimination is prohibited. And the grounds for discrimination are captured in the footnote, Chairperson. An example of harassment, according to the Code, includes physical and sexual abuse, but also abuse of a psychological or emotional nature. In terms of Section 4.4 of the Code, the test to determine whether conduct constitutes harassment is assessed on an objective basis from the perspective of the person who alleges the harassment. The primary focus should be on the impact of the conduct on the person who alleges the conduct, with reference to the reasonable person. In other words, would a reasonable person in the position of the complainant view the conduct as harassment?” Intimidation, Chair, the dictionary definition, is the “action of frightening or threatening someone, usually in order to persuade them to do something that you want them to do” And the Code defines intimidation as ‘intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm. Victimisation is defined in the dictionary as ‘treating someone in an intentionally unfair way, especially because of their race, beliefs, sex…” et cetera. The statutes regulating labour law do not deal directly with victimisation. However, the Labor Relations Act indirectly deals with it in terms of which certain unfair labour practices could amount to victimisation. So for example, unfair conduct by the employer relating to the promotion, demotion, probation and training of an employee, or relating to a provision of benefits. The unfair suspension of an employee or any other unfair disciplinary action, short of dismissal; a failure or refusal by an employer to reinstate or re-employee a former employee in terms of any agreement; an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, on account of the employee having made a protected disclosure defined in the Act.” Chair, the last part of the Aide Memoire deals with the general issues that I alluded to when I started, and these are issues that are raised in the PP’s part A statement, which Members are obviously familiar with and would have read. And whilst Members are going to be deliberating on the charges, in particular, I thought it is necessary to deal with these issues, the reason being that Members must be certain that the process that they followed is fair. And these are issues where the PP has indicated that the process is not fair or that point of unfairness. The way in which I have categorised it, in terms of the heading, is my own categorisation, but where possible, underneath in the sub-points, I have taken it as directly as I can from the Part A statement. Nature and flaws of the Section 194 process: the PP alleged that “The process does not represent a genuine impeachment process; it is a political process, as emphasised by the Speaker, Chair, the President and/or the DA co-operative in court pleadings and not a conventional legal process; the process is a politically motivated witch hunt; it is a vanity special project of a Democratic Alliance aimed at scoring political points, as being the first party to have caused a head of a Chapter Nine Institution to face impeachment; it is a racially motivated campaign, born out of the fear of real change which might actually benefit the poorest and most marginalised of society, who are mainly black, at the expense of those who benefit from the untransformed economic status quo, who are in the main white and the backbone of the DA constituency. The DA has falsely labelled Adv Mkhwebane as a spy and has made five separate attempts to remove her. The DA is abetted by the African National Congress. The ANC is motivated, in turn, by retaliation and the eventual exposing of corruption and wrongdoing by powerful ANC leaders, such as the President.” And she refers, by way of example, to the CR17 matter and Phala Phala, and Minister Gordhan in relation to the SARS/Rogue Unit matter and what she called the ‘fake retirement’ of Mr Pillay. “There is an unholy alliance between the DA and the ANC” and these parties will use their majority power to remove her. “The outcome is, therefore, predetermined. In addition, the PC (Portfolio Committee) Justice at its meeting of 6 March [2023] pre-judged Adv Mkhwebane. The Chairperson, who is a Member of that Committee, also made adverse remarks, such as ‘here we have budgeted for incompetence’. The process is illegal, inherently and irreparable unfair, biased, pre-determined and doomed. Adv Mkhwebane has participated under protest for the purposes of disproving the popular narrative that she was avoiding or was scared of the process. The Inquiry is a charade. The proceedings are defective as a result of the following: the refusal exclude charges in respect of which there was no prima facie findings; repeated conducting of proceedings in the absence of Adv Mkhwebane or legal team; the refusal of the Chairperson and Mr Mileham, MP, to recuse themselves; the refusal to call the President, Ms Mazzone, MP, and Minister Gordhan as witness; [the] refusal to grant Adv Mkhwebane sufficient time to prepare her evidence.” On matters of suspension, she said her “suspension is not bona fide; it is vengeful, retaliatory and an illegal act by the current President, owing to the multiple investigations that she was seized with, including CR17 and Phala Phala, to name a few.” Those were the only two that are named in there, Chair. The suspension is the real reason why we are here today. In terms of witnesses, she noted that Mr Mataboge was a helpful, co-operative and truthful witness but Prof Madonsela was hostile, uncooperative and untruthful. The Committee “refused to call key witnesses” requested by her. And the Committee refused “to recall Mr van Loggerenberg, Ms Baloyi and Mr Pillay.” On the charges, she said the charges have been concocted by Ms Mazzone. “Any objective, fair and reasonable analysis will lead to a conclusion of not guilty.” Chair, I do not like the use of that language. That language is not contained in the motion about guilty or not guilty; it is whether the Committee has found that there is misconduct and/or incompetence, even though we refer to charges. “Witnesses called by evidence leaders have effectively exonerated Adv Mkhwebane of any impeachable wrongdoing in respect of every charge. No fair court will uphold a contrary finding. The impeachment effort is therefore doomed to fail if subjected to fair judicial scrutiny. The IP recommended an inquiry in respect of matters where they found prima facie evidence only; however, the Committee illegally extended the scope by, for example, considering the Pillay ‘pension matter’ and the HR charge. The Committee failed to deal with the motion as filtered.” She said “The removal rules were crafted as a copy paste job by the DA and the rules were targeted at her and this is evidenced by the fact that it provided for a mummified lawyer to sit in the Inquiry.” There were also some, what she called, ‘glaring absurdities’. She points out that her seven-year term ends in mid-October 2023, and by the time she had drafted her statement she had said that was in six months’ time but, of course, it is far closer now. The Inquiry is estimated to cost the taxpayer approximately one million a day. Chair, this amount gets bandied about, but I think it came from a statement made by a Member very early on in the process… but nonetheless. “The cost of instability to the Office of the PPSA is incalculable. And Adv Mkhwebane has made several attempts through the courts to stop the continuation and the commencement of this illegal process, but these efforts to stop this futile and costly exercise have always been opposed by the Speaker, the Chairperson and the DA.” Chair, a lot of these issues that were raised have been considered by the Committee. Some of them we have responded to in writing. Some of it was raised in the first recusal application, so for example, issues – if I recall correctly – on the summonsing of the President and so on. So for purposes of drafting the report, we will obviously place reliance on what the decision of the Committee was, in respect of some of this and what is contained in correspondence. Chair, in conclusion, in terms of confirming the veracity of the charges, the Committee must have due regard to the evidence before it, which includes witness statements, court records, oral evidence, the statements of the PP, evidence before the independent panel, and evidence tendered as part of the record. The summation that has been done by the evidence leaders merely seeks to summarise the evidence before the Committee. But it is important to remind Members that the role of the evidence leaders is not to make findings on behalf of the Committee. The summation is based on relevant evidence and the evidence leaders, therefore, have not summarised things that may be irrelevant to considering the merit or veracity of the charges. So by way of example, you will see that the summation does not deal with evidence from Mr Nyathela because that was not directly related to any charge. What the evidence leaders also have not done, Chair, is to consider the credibility of any witness; whether it relied on evidence is either because evidence has been corroborated or because there was documentary evidence. It is for Members to decide whether the testimony of any witness was not credible and therefore calls not to be considered. However, I am reminding Members that the evidence leaders have tried to show where there is evidence to support the evidence, notwithstanding where there may be a credibility issue, but, of course, that is for the Committee to decide. Again, the Committee can only decide if there has been misconduct or incompetence by judging what the standards are against the evidence, and in that way, reach a rational conclusion. And importantly, the Committee must be satisfied that the process has met the threshold of fairness, as required in the removal rules. In this regard, the Committee is reminded of all the correspondence – and I think one of my colleagues from legal services in the first two or three weeks of the Committee, we referred to as a carnival of correspondence. And before that was a carnival at the time – I am not quite sure what to call it. But there is a lot of correspondence that has been tabled. A lot of it deals with objections and so on. Members would have obviously read it and are aware of it; and they need to apply their minds, because before moving to the issue of whether there are reasons that support or do not support her removal, Members must be satisfied that the process has been fair. Also, Chair, I just want to mention that Adv Mkhwebane’s statement was obviously drafted some time ago, and since then there has been further objection to parts of the process, and further issues raised that would not have been captured therein. She has captured those things, though, in the correspondence and it includes, for example, the second recusal application, and it includes the fact that she alleges that the Committee has proceeded despite her not having legal representation. So the Committee can consider that further. Chair, I am sorry that took a little bit longer than I expected, but I hope that helps Members as we move to the next part, which what we have there, Chair, is to make things easier – to set out these questions. We have done those definitions of incompetence and misconduct to try and assist the Committee. But because the motion deals with subject matters, like CIEX and Vrede, they do not necessarily follow the motion in order. But hopefully that will assist Members. And those questions will also reference where the summation… the summary of the evidence can be found. Thank you, Chair.

Chairperson: Thank you, Ms Ebrahim. That was a mouthful – very comprehensive, to lay this context. It is a live background and just refreshing our memories on the issues. I think, as you indicated, we will make use… Members will make use of that as we go through the next exercises. It is an important resource. I hope that we can come back to where there are doubts or lack of clarities on certain matters. There you are, Members. I think that was just the first bite to just situate you an exercise that we are going to go through, as I want to go to the next exercise. I think I have already given you a tea break when we were fixing that. So unless there is a request for that, I am hoping that we are now going to march until lunch time, especially if there is no comment or clarity on this issue; I want to immediately go into the real task and work we are going to go through, minute by minute, as an exercise. Is that in order? Should I proceed? Or do you want a five minute, ten minute break? Okay, we will allow the quick break. And then when we come back we get into the questions. It is going to be an interactive process. I will be guided by Members’ hands. At the same time, I will also point you out even without your hand, as we get into this. And I must indicate upfront that when we come back, that exercise is going to require, both here at M46 and virtually, that all night, at least nineteen Members are going to have be present for each of those questions as we answer them, because each of those is a decision of this Committee. But as things stand, we are fine – we are beyond that. Thank you. We will take seven minutes and be back at ten past twelve.

The Committee adjourned for a ten minute break.

Chairperson: Thank you. Welcome back from the short tea break. As I indicated, we are now about to start the important tedious process of us doing our work as we have been mandated. I forewarned that it is not going to be a quick and nice work, but it is an important work where we conduct everything. I will be leading you through the questions and the things that will be put up. Just to indicate that as we do this exercise, and it is the reason why we have called the evidence leaders to be here, that where you need clarity or anything, they are here to assist us with that or with some recollection that you want to make sure about, they are here to assist the process but not involve themselves. I want to proceed. I have two hands, Hon Herron as well as Maneli, Nkosi and Nqola. In that order: Hon Herron?

Mr Herron: I thank you, Chair. Chair, just before we start, I just wanted to carry it on what we are about to do, and in particular about the evidence summary that was provided to us from Sunday – quite a large volume of information was sent through from Sunday. And just going back to the question of fair process that Adv Ebrahim raised when she did her… went through her aide memoire; has the summary of the evidence been provided to the Public Protector, to assess or to invite her to comment on this summary of evidence? I am concerned that the evidence, I mean, the summary of evidence is presented in a way that answers the questions that are in the motion. And it extracts evidence that was given by witnesses. But I would imagine that if they are willing to participate, the Public Protector’s legal team may have evidence that is not recorded in that summary. So I am just wondering what the status of the summary of the evidence is, and whether the Public Protector’s team has also received it.

Chairperson: Thank you, Hon Herron. I think we can have a quick response to that, before I go to the next Members, about us whether we have shared that. Ms Ebrahim?

Ms Ebrahim: Chairperson, as I understand it, the Secretariat has indeed shared the summations, but it was not shared for comment. Members will recall that we had inserted the terms of reference, that the PP must be allowed to make an opening and closing argument. So indeed, that opportunity was provided but the PP has cited the fact that she does not have legal representation, and therefore she cannot comply with any of the deadlines that we had inserted in the new procedure. And one of those deadlines would have been to inform the Committee as to whether she would like to do a written closing argument or whether she would want to do it orally and then supplement in writing, if necessary. That would have been where one would have expected that they would have drawn together all the evidence and submitted it in a clear format for the Committee to consider, Chair, but that has not happened. The role of evidence leaders, as I said, they are not prosecutors, so what they sought to do was to capture all of the evidence before the Committee so that they could assist the Committee. And I will ask Adv Bawa to clarify, but my understanding is that includes things raised in the PP’s statement; and there is reference made to where their versions are different, so that the Committee is alerted thereto. Thank you, Chair.

Chairperson: Thank you, Ms Ebrahim. Maybe you want to come in there, Adv Bawa?

Adv Nazreen Bawa (Evidence Leader of Committee): Chair, I concur with what Adv Ebrahim says. I do not have anything to add to it, save to point out that if there is anything specific that Members think we have not touched, and we do say that in the evidence, where if there is something they thought we should have raised but we did not raise, then we are happy to go and add to it. If there is something we have inadvertently missed that we should have raised, we are happy to traverse it with the Committee. There was an endeavour on the most controversial issues to cover the evidence.

Chairperson: Okay, thank you. Maybe before I proceed to the next Members: any follow-up, Hon Herron?

Mr Herron: Thank you, Chair. Look, I mean, I do understand that and I have read that the summary of evidence invites Members to point out where there are perhaps omissions or questions that could be raised. My concern was just that the Public Protector has received the summary of evidence. And I would have hoped that she would have been invited to respond to it, because I have, since the beginning of the hearings, asked several times whether the Members are going to get a copy of the record. Now we do not have a copy of the record, we have a summary of the evidence. And then there may well have been evidence that the Public Protector would like to contradict using the evidence that has been presented before the Committee. So we do not have a record – I do not have a record of the hearing, and I am probably relieved not to have because it must be tens of thousands of pages long, but the question is… I guess my concern is that the Public Protector may have evidence that they would have liked the Committee to consider. So I heard Adv Ebrahim saying that this summary of evidence was presented or given to the Public Protector, but there was no invitation to respond to it. And I just raised it as a concern around her own point about a fair process. I take it no further than that. Thank you.

Chairperson: Thank you, Hon Herron. My understanding is that there is a record. Mr Ngoma?

Mr Thembinkosi Ngoma (Committee Secretary): Good afternoon, Chairperson, Hon Members and guests. You are correct, Chairperson, the Committee does have a record wherein we have made… we have initially even asked Members that require assistance and provided such assistance to some of the Members who have indicated as such. And that record is on Parliament’s document management system. Thank you, chairperson.

Chairperson: Right. Thank you. Hon Maneli?

Mr Maneli: Thank you, Hon Chair. I just wanted to raise the point on the presentation that was made by the legal side – not the one we are still getting to. If you allow, Chair? It is just that I could not stop that call from nature, given the time. Thanks. Chair, I think we should appreciate the presentation – I think that is from where one is sitting. And that there should be a way I think that presentation talks to putting the context in which we are proceeding as things Inquiry. And there would have been a reason to start from that foundation when Mr Ebrahim was called in. So I want to start from that point, because from time to time we are going to make a reference to that. And that when that would have been questioned there was an alternative that was put before this Committee and this Committee allowed that. And that is also captured, I think, in the report, properly, and you can see similarities. That is why I would call it the framework from which we are moving from understanding the work of the Public Protector, so that we also locate the charges, as we deal with them, around that part. But the other issue, Chair, would be: as part of that context, given the fair nature of running this Inquiry, it is important the points that have been noted about how the Inquiry would have been perceived from the side of the Public Protector. However, it should also be boldly stated that yes, you may also have heard the view of the Members that would have agreed to that, but equally, there has been quite a substantial number [of Members] of the Committee that have really objected but also clarified the matters that would have been raised; even if those are not captured, as they are not in this case, in the detail that you would have detailed – the ones that the PP would have raised. Because this will be a part of our record. So it should not be like we accepted – we engaged them. And from where we have engaged, this would have been the reason, actually, that we proceed with the Inquiry, even when those matters would have been investigated. That is because we were convinced that a number of them would not hold water in the way the Inquiry has been handled, including where there have been legal challenges on it. We have come out there successful in that we should proceed with the work that we do – so that is the second element I want to raise. But there is also an important element, Chair, [and] you raised it in your opening [remarks]. It may have not come out clear, unless it is in that break; if that is the case, I would accept, Chair. The part about, us, the Members, we did that before we started, and those were taken and those were said to be answered later on because the PP would not have been on the stand at the time – as we pick up matters from witnesses and we were made to submit, and there has been no response to that. The second was this other attempt, again, to check other matters, and giving the opportunity for the PP to answer those in a way that could refute some of the things that would have been said; at least give her own side of understanding those matters. What you called ‘unchallenged’ questions. I think in the context, it is important, because we may raise some of the points as a result of the questions we would have asked where the PP would have elected not to respond, so that we are also not blamed that we come (sic) to certain conclusions in the absence of the answers. So I just thought those three points, Chair, one needs to speak to them as part of proposing that we incorporate that that has been put as part of the report, particularly in the beginning to set the context so that whoever was not following the Inquiry, would understand as we move forward that we started somewhere. Thank you, Chair.

Chairperson: Thank you, Hon Maneli. It is not a question, but I will give you [a chance] to clarify. I think you are amplifying a lot of things and even expanding on the context of reasons. She would have indicated that on the issues, general issues raised by the PP, we would have responded to them formally either in letters or the applications, but the point you [are] making is on the spot, in sessions, Members would always have responded to those issues. So I think that is the point you are making around these kind[s] of issues, but also, the further contribution you make, I think that is welcome. Ms Ebrahim?

Ms Ebrahim: Chair, I just wanted to indicate, and Members will see it from the correspondence that has been exchanged, that Chaane Attorneys has still not briefed counsel for purposes of the merits of this matter. They have maintained the position that they are not able to brief Adv Mpofu and the two juniors, until such [time] as they familiarise themselves with the record. And if I have my dates correctly, as of third of July they had indicated it would take them approximately another month longer to do so. And the brief, two counsel was limited to bringing the recusal application. The correspondence from the Chair indicates that that is unreasonable, and the reasons are set out in some detail and I think that the recusal application response also deals with it. But as things currently stand, the PP maintains that she is not legally represented because Chaane Attorneys are attorneys of record and not her legal representation for purposes of the Inquiry, and therefore, she remains unrepresented. The Chair’s response has always been that the Committee has not denied her the right to be represented. Thank you.

Chairperson: Thank you, Ms Ebrahim. Hon Nkosi?

Mr B Nkosi (ANC): I do not want to prolong the matter, but on the Aide Memoire, point ten, which is raised by Hon Maneli as his second point. I think the fact that there were responses, firstly one, the fact that other Members did raise in the Committee, in agreement with some of these. And two, the fact that there were responses should also be recorded; otherwise an impression is created that these issues were not challenged. It should, either in the conclusion, or as a standalone paragraph, indicate that these matters were responded [and were] supported or not supported, et cetera. I think that is my point, really, otherwise the detail or I mean the Aide Memoire assists us as a tool – it is really that. It is a tool for us when we consider all these bulky documents, we always refer to it. Thanks, Chair.

Chairperson: Thank you, Hon Nkosi. You pick up that gap. I think the suggestion is [as] Hon Maneli was saying, and now Hon Nkosi, that let us fill up that gap so that there is no assumption made. Ms Ebrahim?

Ms Ebrahim: Chairperson, that will not go into the Aide Memoire  because that was not the purpose of that document; that would go into the report. So, obviously the process of the report drafting is something that happens from day one, because as Committee staff we are capturing things as they happen. So the report will certainly contain these objections of the PP and how it was responded to and where the Committee took decisions, for example, to proceed in the manner that we have proceeded and the reasons why the PP then did not participate.

Chairperson: Thank you. I hope that covers both of you, Hon Maneli and Hon Nkosi. Hon Sukers? And then I go to Hon Nqola.

Ms M Sukers (ACDP): Good morning, Chair. Good morning to my colleagues and to everyone on the platform. Chair, with your indulgence, I will keep my video off because my internet is a bit unstable.

Chairperson: Yes, go ahead.

Ms Sukers: Mine, is Chair, to just raise two issues that is related (sic) to the report and what is contained in it, and with your guidance. Chair, while we are primarily seized with determining if the Public Protector is competent to hold office, there are two other important aspects to our work. And this primarily deals with learnings and recommendations, following what has been an extremely lengthy process. These indeed should only be addressed, of course - learnings, recommendations - after the House has voted on the competence of the PP. However, [if] we fail to address them, Chair, I believe we will not be discharging our responsibilities to the public, and we will not be justifying the large amount of money spent on this process. The two issues that need to be addressed, reporting on how to improve the functioning of the Public Protector office. You made this clear when you asked witnesses who work or worked at PPSA if they had suggestions to improve the functioning of the office. It would be a total waste of taxpayer money if we do not make recommendations a[s] part of the report. Of course, however, it would not be fair for us or appropriate to make them until the House has voted, so there is this delicacy around that. But finally, we have to improve the impeachment process itself, and those learnings we need to… I believe [it] should form part of our report as well. Even though we are a young democracy, we have said over and over [that] it is a novel process, we need to learn from this process and make recommendations for improvement especially with regard to cost, protection of witnesses, and ensuring a committee has the power to compel the person impeached to appear. I think it's important, Chair, to raise this along with the other technical matters that have to do with the primary objective of the report. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. There is certainly a very good intention, not for today and not when we consider the report, to separately have a session where we deal with what we called reflections and lessons, so that we are also helping the next process, whether it will be Section 177 or a further Section 194 or whatever – there is certainly going to be that. And that might not even need for… We might not need to wait until [the] NA adopts because it is part of the work that we can do, but we have got to separate it from the discussion and the drafting of the report. So your points are well taken, Hon Sukers. Thank you. Hon Nqola?

Mr Nqola: Thanks very much, Chair. I think on the first part of the progress on the briefing of senior counsel, I got clarity from what Ms Ebrahim is saying. I am quite shocked, Chair, that until today after the work the Committee has done to ensure that we give access to resources and everything else for the Public Protector to have her legal representation intact… until today, we are still lingering on issues of legal representation, counsel not having been briefed and all that. And, Chair, from where I am standing, judging from what Ms Ebrahim is saying that they have briefed them for purposes of the recusal application. From where I am seated, Chair, this is nothing less than a dereliction of duty and abscondment. It must be on record that the Public Protector is staging an abscondment from the Inquiry. Two, Chair, I see in the Aide Memoire, Ms Ebrahim is taking us through the evidence that has already been produced in the Committee through two forms, a return affidavit and oral presentation. But if we recall, the Public Protector submitted two affidavits: it was part one and part two. In part one she has able to produce both the written and oral submission. But in part two, she has been able to submit, but not having been able to do the oral submission. In line with that, the Committee sent questions, written questions, and they were not responded to. So I want to check from the Aide Memoire that does it include the second part where there was no oral evidence adduced and questions were not answered – the written questions of the Committee were not answered? Secondly, Chair, the charges emanate from four reports, which is Vrede, SARS, CR17 and CIEX. Now, does the eight cover all the four or only cover those that which the PP was able to do the oral presentation? I just did not get that part as I was listening. Thank you very much, Chair.

Chairperson: Okay, I will ask Adv Bawa or Adv Mayosi – if you want to quickly respond?

Adv Bawa: Are you referring to the summations we have provided or are you referring to Ms Ebrahim’s Aide Memoire this morning?

Mr Nqola: The Aide Memoire.

Chairperson: Okay, the ball is passed to the backline.

Ms Ebrahim: So, Chair, my Aide Memoire does not contain any content on the veracity of the charges, that is what is contained in the summation, and indeed the summation deals with every single charge.

Chairperson: [Are] you covered, Hon Nqola? Thank you very much. We now proceed, colleagues, as I indicated, so that we start the process. We will start with charge one, it is called all those different names: The Lifeboat, the investigation report, CIEX matter, Reserve Bank and so on. And I am sure Tshepo will assist so that you follow. I would like us to start with this actual detailed work that we need to do. And I think it is also important that you understand that the issue of the charges sometimes are overlapping, and they can be overlapping on the same matter, whether it is an issue of misconduct or incompetence, and so on. Maybe as a first, inviting Members to… We are going to start with paragraph 1.11 of the Motion, as well as chapter one, part one, of the evidence summation – page twenty-six and thirty-four. And we will start with the meetings with the Presidency. And with the Presidency, the issue here is not necessarily just President Zuma himself, but officials in that… So the first question that I want to pose [to] Members: during the investigation, did Adv Mkhwebane meet with the Presidency? From the process that you have followed, the evidence that is in front of us and everything else. I am not going to proceed to the next one until you respond. So this is where I am looking for hands because you are going to have to speak to these matters. There is no assumption to be made. I am not going to think that you agree or this is your answer to it. Hon Nqola?

Mr Nqola: Thank you very much, Chair. It is just that I may recall because we have had a lot of witnesses. But in terms of the evidence that was submitted through testimonies from witnesses here, is that the Public Protector did meet with the Presidency. But where it becomes problematic is that in the report it was not covered that there was a meeting with the Presidency, so that is where it becomes so problematic for me. Thank you very much.

Chairperson: We might come back and cover that. Thank you for that. That is your response. Is there any different view to that? Maybe somebody has got a different understanding? None? I proceed to the next one [as] I do not see any hand. If so, therefore, did Adv Mkhwebane meet with the Presidency secretly, without disclosing the fact and import of the meeting(s) in the Lifeboat Report? Hon Nqola?

Mr Nqola: Thank you very much, Chair. The meeting with the Presidency is said to have happened with an objective of conducting an investigation. So if it does not appear in the report that there was a meeting [with] the Presidency, it then means that the meeting was secret. There is no other explanation. It has been a culture in PPSA that before you go to remedial actions and all and all that, you first table the form of investigations that have been undergone, and that appears in the entire report when PPSA (Public Protector South Africa) or the Public Protector delivers a report. So if it does not appear in the report itself that when you were conducting the investigation these were some of the procedures you have followed. So if it does not appear, it means that it was secret. Thank you very much, Chair.

Chairperson: Thank you, Hon Nqola. I, again, ask if there is a different view or understanding. Oh, I do not see the hand because the screen is now blocked, but they are going to help me. Hon Herron? Over to you.

Mr Herron: Thank you, Chair. Can you hear me?

Chairperson: Yes, I can.

Mr Herron: I guess my point really, is whether the meeting took place secretly and whether anything hinges on secretly, because as far as I can recall, and from the summary of evidence, there were members of her staff that attended the meeting with her. So it was not a secret meeting. It was an undisclosed meeting in the report.

Chairperson: Okay, thank you, Hon Herron. So your take is [that] because there would have been these officials, together with her, that in your understanding it is no secret but undisclosed?

Mr Herron: Yes, Sir.

Chairperson: Alright, we will record that. Thank you. And then I proceed, therefore, to the next point. So if so, did Adv Mkhwebane fail to file transcripts of the meetings with the Rule 53 Record? Any volunteer? Hon Nkosi?

Mr Nkosi: Yeah, Chair. If the meeting did take place, the question is why were the transcripts not availed? That meeting did take place, but as required by the practice in the PP’s Office, everything meeting that takes place officially, is recorded and with the record forwarded, and in this case it was not.

Chairperson: So to answer the question, therefore, did Adv Mkhwebane fail to file those transcripts?

Mr Nkosi: Yes, he failed.

Chairperson: Okay, thank you. Do I have a further hand – a different view? Or another contribution? Hon Mileham?

Mr K Mileham (DA): Thank you, Chairperson. Chairperson, it is just to expand on what has been said so far. First of all, we know that those meetings took place and the Public Protector has admitted to those meetings taking place. What we do not know was what was discussed in those meetings, what the content was, what the purpose of those meetings were. That is the part that is unclear. So we know that, firstly, that the meetings took place. We also know that the record of the meetings and the content of the meetings were not disclosed in the Rule 53 Record. And therefore, we do not know what the meetings were. What we do know is that the President was an interested and affected or an implicated party, and that they were there as part of an investigative process, and that as such, they should have been a transcript or a record of those meetings. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. As you indicated, you wanted to further amplify the issues. Hon Maneli, before I proceed to the next point?

Mr Maneli: No, thanks, Chair. I think you disorganised us a bit by moving quickly to an opposing view.

Chairperson: I will learn.

Mr Maneli: I think one agrees with that point, Chair. But the point I want to make is an understanding that there was an opportunity to deny this as this also comes from the independent panel – it is one of the areas that it looked at. And when that opportunity was before the Committee, still, there was no explanation on why those transcripts could not be put forward, including the fact that you disclose even late, about the 17th of 2017 meeting. So I just thought one needs to make the point about the IP side of things because this is then the confirmation of what was to be prima facie evidence that must be looked at. So I just thought I should raise that point. Thank you, Chair.

Chairperson: And in your view what would have been in the IP’s report would be sustained?

Mr Maneli: It is now substantiated in that score.

Chairperson: Thank you. Any further point[s] on this matter, before I proceed?

Mr Herron: Yes, Chair.

Chairperson: Yes, Hon Herron? And then followed by Hon Tlhape.

Mr Herron: Yes. I think you can call it common cause that the transcripts of the meetings with the presidency were not included in the Rule 53 Records, so they were not disclosed. But the evidence of Adv Mkhwebane was that there were no transcripts to disclose because she did not record the meetings. And so the question is, was she obliged to record the meetings. Now, Hon Mileham suggests that she was obliged to do so and I am not so sure that there is any obligation on her to record or to record in a way that can be transcribed every single meeting that she has. So the question is whether she failed to furnish something in the record that existed. And on her version, if I recall correctly and read the summation of the evidence, her evidence was that there was no record of those meetings because she did not record them. So the question is did she fail to file transcripts of the meetings? The answer, I would say is yes. But her evidence is that there was no transcript of those meetings to file.

Chairperson: Thank you, Hon Herron. I get your points. You agree that she failed to file a transcript, but you elaborate that from your own understanding she did, to the Committee, indicate that she did not do the transcripts, if I get you correctly? I think that is the elaboration that you are making.

Mr Herron: Yes, the transcripts do not exist.

Chairperson: From her evidence that she put in front of us?

Mr Herron: Yes, Sir.

Chairperson: Thank you. Hon Tlhape?

Ms Tlhape: Thank you, Chair. The last speaker is now confusing my train of thought. Chair, I was looking at…

Chairperson: Do not be confused. Please stay in the lane.

Ms Tlhape: Yes. The word ‘fail’, according to what we [are] discussing here, for me, is a bit off track. I would be comfortable if we say she omitted to file the transcripts, because if you fail, you would have made an effort; you would have tried, and you did not succeed. So like the Hon Member is saying, there were never transcripts. For me, they were excluded, like omitted, they did not come forth; there was never an effort to bring them forward. So that was my thinking, Chair. Thanks.

Chairperson: Thank you. I see why you were crying for this confusion before you spoke. We… I think all of us would agree that from the evidence, there were no transcripts that were made. And there would have been questions in the testimony as it is not normal. Normally there are transcripts made – I remember those kind of interactions. But at the end, for that there would not have been transcripts. So the question, therefore, remains that in the filing, in terms of Record 53, none of that was submitted. And you are bringing, Hon Tlhape, that you find ‘fail’ being hard and you would want to soften it. I get your points there. But maybe if there are others who want to engage further on this before I step off it? Hon Maneli?

Mr Maneli: Thanks, Chair. I think for me, the point, like I raised earlier – I took it that it is agreed – that we take the points that have been given as a framework and context in which you test that that you are dealing with. In that test, it would mean that you start from the report itself. If in the report, you did not disclose that you have met with the President, Rule 53 will be a later issue. It therefore says that you cannot withhold the information that you have, just from a part of X. So it should have been disclosed even at that level. And there is an admission that that would have not been the case, even though, later on, in the court this would have been a matter that gets raised as an admission. But even in that admission, it is only on the 17th of June, as the other Hon Member would have said, without even disclosing even the contents of that. So that is still withholding. There is no other way I could put it, Chair. So in that score, like I said, it then puts the conduct in that way; that it is there. I just thought that I should add that, so that the point is not just about the transcripts, which I also admitted is a misnomer that you will not have when all meetings get to be recorded as a way of proving that you have interacted; when you have to make follow-ups you have a point of reference. So in this case we do not. We also still do not know the real contents of such a discussion. So that is the point I wanted to raise, Chair, just to clarify where I came from on that point earlier.

Chairperson: Back to Hon Herron and then Hon Nkosi.

Mr Herron: Thank you, Chair. I want to agree with Hon Maneli. I think that is the point I was trying to make; that the meetings, if I go back to the first question, were not secret because she was accompanied by staff but they were not disclosed in the report. And the failure to file transcripts, I am not sure is sustained if there were no transcripts to file.

Chairperson: Okay, thank you. Hon Nkosi?

Mr Nkosi: As it is her practice or duty to record meetings, it would be an omission not to submit the transcript because the real issue is that there was a meeting which was not disclosed. The records of that meeting, whether written or not, ought to exist. And therefore, for me, it cannot be a simple issue of an omission, because you omit just negligently so, but the thing is there – you forget. For me, because the meeting took place, it was secret. The intention was not to disclose the occurrence of the meeting itself, so everything that flows from that means that you will conceal even the record of that meeting, if you took it. So it cannot be an omission.

Chairperson: Thank you, Hon Nkosi. Hon Mileham and Mananiso.

Mr Mileham: Thank you, Chairperson. Chairperson, I think it boils down to not so much whether the transcripts were filed or whether they existed, but whether they ought to have existed. In other words, whether they ought to have been a transcript of that meeting, and as such that should have then formed a part of the record, and that is where the problem lies; that there were no records taken, but there ought to have been records taken. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. I am going to Mananiso and van Minnen, but maybe before that, Ms Ebrahim?

Ms Ebrahim: Chairperson, I think that is correct, because the charge talks about without furnishing transcripts, not necessarily without filing transcripts. There is a difference between not filing a transcript that you have, and not filing a transcript, as Hon Herron says, that you could not have filed because such a transcript did not exist. So the question is more as to whether they ought to have been a disclosure of what occurred in that meeting.

Chairperson: Thank you. Hon Mananiso and Hon van Minnen.

Ms Mananiso: Thank you, Chairperson. I think one would want to agree with Hon Bheki Nkosi that there was no omission. But one would want to affirm that the sentence and the question is still right to say that she failed on the basis that we have been taken through in terms of what is the procedure thereof, in terms of investigations in the PPSA. That is my submission, Chair. Thank you.

Chairperson: Thank you, Hon Mananiso. Hon van Minnen?

Ms B van Minnen (DA): Thank you very much, Chair. Chair, my view is that, you know, these are people who are holding public office and having meetings accompanied by staff. So to my mind, there is a duty to ensure that there is a record of this meeting; to not have a record, I think is a huge omission. And then stemming from that, I think there is also a duty to, in fact, file such a record so that everything is a matter of public record. So that is where I come into this debate. Thank you.

Chairperson: Thank you, Hon van Minnen. Maybe before we conclude on this and go to the next point, I am going to invite Adv Bawa. And I will do this consistently as we …every point before we conclude it so that if she has got anything to clarify or to say, she would be given that opportunity – between yourself and Adv Mayosi. Over to you.

Adv Bawa: Chair, there seems to be three things that emerged from this. We clarified at the start that it was not a meeting with the President, it was a meeting with the Presidency; there was some confusion during the evidence that was led. The second aspect seems to be that she was accompanied by her officials during the meeting. The details of the meeting: no documentation, in respect of the meeting, makes its way into the Lifeboat Report. That seems to be what the gist of this is. I think that is covered. When the writers of the draft report puts into the draft report, Members can then have another look to see whether it is captured correctly.

Chairperson: Thank you for that. I said that you would be the last, but Hon Majozi, because you did indicate that you have load shedding challenges, let me give [it] to you.

Ms Majozi: No, thank you, Chair. I could not hear what Adv Bawa was saying because I wanted to get in on this item of maybe providing a clip of what transpired in the meeting between the Public Protector and the Presidency. So if I may ask, Chairperson, if that information is important for this Inquiry to have that recording of what transpired in the meeting. So could we not, if there was something that was recorded, subpoena that we get the recording? So that we are able to have that recording, instead of, I do not know… I think maybe we are putting blame on one party only. I know that it was the PP that was supposed to report about this, because she is the one that is on the Inquiry; but as well, maybe as the Committee, we do have that responsibility of having that recording in and if we did, that will then ask, what other means did we have to make sure that we get the recording besides from the PP. I do not know. I need clarity from that, Chairperson. Are we just mentioning it for the sake of reporting? Or we wanted to have that recording so that we hear what transpired within the meeting? If I can get that clarity first.

Chairperson: The clarity and the reminder is that the evidence presented here was that there was no recording. And it was seen as an anomaly because there are recordings in all meetings. There were no recordings of that, so the recording does not exist. I hope that assists Hon Majozi.

Ms Majozi: It does, Chairperson. So if there was no recording, then can I also get another clarity – why then are we emphasising that much on the issue of the recording? Or is it just an issue of wording, whether she failed to provide or she omitted to provide? I wanted to get clarity on that, because I really want us to then move to a direction where we agree, maybe, on what is it that we are doing because I need that clarity to say is it a matter of reporting to the Committee or what is happening?

Chairperson: Alright, thank you. Adv Bawa?

Adv Bawa: Chair, if I could, perhaps, assist the Member? If one looks at the charge, the charge has four components – forget about the introductory comments at the moment, that needs to be established. Firstly, the meeting of the Presidency, whether that was secret without disclosing the fact thereof in the report. And then the next component is without furnishing any transcripts of the meeting and the Rule 53 Record, filed an application of review. Now, Members will recall that based on the court rules, everything that you have regard to, for purposes of the compilation of your report, must be furnished to the court as part of the court record in the litigation. What was filed as part of the court record were handwritten notes of the meeting that took place with the Presidency, which then gave rise to the question of, well, where is the recording of the meeting or the transcript of this meeting? Because in the ordinary course the practice or operation of the PP’s office was effectively that all meetings or investigations with persons had to be recorded, and if required, there needed to be a transcript – and there was not, in this case. We do know that it was accepted that what Adv Mkhwebane had said that her discussion with the Presidency was in respect of… There were essentially two meetings, an April meeting and a July meeting. The April meeting was a meet and greet. The July meeting was a meeting in which she discussed an appropriate remedy, which she sought to give in her report. And hence the view was, well, that meeting should have been recorded, as was the practice of the office. And the absence of those details from the record is what gave rise to the charge. Chair, it might be easy if we do start – and I am sure all Members have the summations we made, and that we direct them to the relevant paragraphs of the summations upfront –which then has a sort of a concluding paragraph, which sets out the basic facts – to just refresh their memory (sic). And if we had omitted anything, then the Member would also remember that.

Chairperson: So, in other words you [are] suggesting, because I would have referred on it (sic), so that it is beamed on the screen – that part – before we get into the questions? Is that a point that makes sense?

Adv Bawa: I think, maybe, the Motion first, because the Motion is the core. As I understand what they did with the questions that were put up. Can we breakdown the Motion into those components for the Members to answer each component.

Chairperson: Okay, as you have just done now?

Adv Bawa: As I just did now in trying to answer it. If they have the summation in front of them because that is what is dealt with by… look at it from paragraphs fifteen to eighty-two, where the conclusion is, then some of the answers coming from Members will be a lot clearer.

Chairperson: Okay. Adv Mayosi?

Adv Ncumisa Mayosi (Evidence Leader of the Committee): So, Chair, I think what would assist is if the Motion goes up, because the Motion really tells us the questions that must be answered, and that the questions arise from how the Motion is worded.

Chairperson: Okay.

Adv Mayosi: So I think it would be a good idea if Members have the Motion in front of them because then it tells us why the questions are being asked.

Chairperson: Okay, we will endeavour to do that as we go to the next [point] because I think you have taken us to the Motion in your summary there, now.

Adv Bawa: Chair, I think for ease of the Members, they all have the summation on the part one right after the general index. To make it easier for them, we did put the Motion in for ease of reference.

Chairperson: Okay, that is fine. Alright. It has taken much longer than I thought, this one, but that is how we starting. We will get it flowing as we go through. It is important that we would have allowed this kind of interaction, so that all of us are clear and we clarify what is not clear in our minds – so I want to thank you for that. I just want to go to the second part, which is about the meetings with the SSA (State Security Agency). After that we will pause for lunch. Is that okay? It is just brief. Can we do that? I am now between your lunch… But we will do that and after that we [will] take lunch and come back. Hon Sukers?

Ms Sukers: Yeah, Chair, I hope I am not taking us back. But I just wanted to ask something in terms of the… what was referred to earlier by Hon Zandile. If – and I am asking the evidence leaders really – there was no record, or there was no piece of evidence like a recording, should there not have been a recollection or an affidavit then, if there is a failure or an omission to record, let us say? I think it is the interplay between the two words of omission and failure, but I am asking the question that if you do not… if you have not done the one in terms of Rule 53, then should you not then have followed that up with an affidavit to provide your best recollection of a certain meeting, if you did not record it? I am just asking the question in general. And I think I am pointing to what the Hon [Member] was asking in terms of omission and failure. But with your guidance, Chair, I do not want to labour the point.

Chairperson: No, that is understood. As long as you also know that there were handwritten notes, as part of that as well. Adv Bawa?

Adv Bawa: Chair, from a Rule 53 perspective you cannot file what you do not have. Every piece of paper that is generated in the curse of the decision-making process needs to be disclosed when you file your Rule 53 Record. So if you did not do the recording, you cannot have a transcript and you have nothing to disclose. That is the first principle. That must be a different issue from… And so when you come to court and you explain how you came about with your remedy, your answering affidavit as a decision maker will probably have to say: ‘I had this meeting and I, in consultation with the Presidency, considered the remedy of making the referral to the… That is the recordal of it, on the one hand. The second part of the recordal is when you submit the report, and you write down your key sources of information, and you detail what documents you thought was key, and what meetings you thought was key, and what people you interviewed that was key. And so the first component of the question goes, have you disclosed this in the report? And the second component of this question is do you disclose this in your Rule 53? I hope that helps.

Chairperson: Okay. Thank you, Adv Bawa. Indeed, and I am sure Hon Sukers is assisted in that regard with those clarities. Thank you, Members. Can we step off that? I just want to deal, now, [with] the next point which is the meetings with the State Security Agency. During the investigation, therefore, in your view, Members, did Adv Mkhwebane meet with [the] SSA? Just go back to the evidence. There would have been a recording played here. Any hand[s]? Hon Dlakude?

Ms Dlakude: Thank you, Hon Chair. I would say yes, the meeting did take place secretly without disclosing the facts and also without furnishing any transcripts – so they did. Thanks.

Chairperson: Thank you, Hon Dlakude. You have gone to the next question to respond to it already. But your view is that the meeting did take place. Hon Herron, I will plug your response to the next point because the next point is about asking whether the meeting with [the] SSA was secretly done without disclosing the facts, as you have just alluded [to], Hon Dlakude. Hon Herron?

Mr Herron: Chairperson, you anticipate where I was going. I mean, I think on Adv Mkhwebane’s own version she did meet with the SSA. But I think the meeting would… I would describe the meeting as undisclosed rather than secret.

Chairperson: Thank you, Hon Herron. Any other view before I proceed? Hon Nqola?

Mr Nqola: I want to get to the secret and undisclosed. I am trying to replay it in my mind. There is a meeting where staff members of PPSA were strictly instructed not to record. Is this not the same meeting? If, Chair, it is the same meeting where the staff came and testified in this Committee and said they were instructed, strictly, not to record – not to take any records of the meeting – then that meeting was not undisclosed, it was strictly secret because it goes against the practices and standards of how PPSA conducts investigations. Now, it cannot be undisclosed. I kept quiet in the other meeting and I said ‘fine, undisclosed may be a neutral wording’ but this was strictly secret because there was a clear instruction from the Public Protector that ‘do not record this’. And unfortunately, in the evidence that was adduced here there was no contradicting submission in that respect. Thank you very much.

Chairperson: Thank you, Hon Xola Nqola. Even though we know that there would have been several of those meetings with the SSA. Hon van Minnen?

Ms van Minnen: Hello. Thank you very much, Chair. Look, I want to agree with the previous speaker. The fact is that the meeting was undisclosed. There were no transcripts. This is not a case of a meeting that certainly was not reported. This was a secret meeting. It is very clear from the evidence that every effort was made to conceal this meeting. And I think that is the important point, that when someone is trying to conceal a meeting, it is a secret meeting. And that is how we have to see it. Thank you.

Chairperson: Thank you, Hon van Minnen. Your second bite, Hon Herron.

Mr Herron: Thank you, Chair. I mean, I think we could go around in circles. I cannot see how a meeting that includes other staff members can be regarded as secret because other people now know about the meeting. So it is not a secret meeting. It is an undisclosed meeting.

Chairperson: Okay, you repeat the point. The point has been made before, and that is his view. Still, he is not persuaded about the other views about it being secret, so we take that. We are not going to want to persuade and let him change his understanding – and his motives for why. Hon Maneli?

Mr Maneli: No, thanks, Chair. I was not going to persuade. This is now London, a second language or third to some of us. The point, Chair, to make, is that there is concealed information, because even this one – I think this was from the evidence of Mr Kekana – in a series of other meetings that would have been held; in that there is an instruction in this meeting when he had already started. Now, I am taking you back to the questions we asked and those questions not answered, so they make this to remain unchallenged. Let us just get that picture. He had already started taking notes and was instructed not to take notes from that point. The only reason you will do that is to keep it secret; you want to conceal the information. So their presence does not make an open meeting. They are present, yes, but they themselves cannot produce anything further than where the notes were taken and stopped. And the stoppage, as I say, is not coincidental, it is an instruction; and I am saying it has not been challenged, Chair. So I am saying we will go around, I think, London, but let us agree, Chair, at least there is evidence that the information is concealed and through an instruction it is meant to keep it that way, that it does not go outside. Thanks.

Chairperson: Thank you, Hon Maneli. Hon Mananiso and Hon Lotriet.

Ms Mananiso: Thank you, Chairperson. I do not want to be rhetoric, but I want to align myself with what Hon Maneli could have said: it was a secret meeting. Thank you.

Chairperson: Thank you, Hon Mananiso. Hon Lotriet and Hon Gondwe. Hon Herron, is that an old hand? Please lower your hand, Hon Mananiso, so that I see and I do not miss you. Thank you. Hon Lotriet and Hon Gondwe to follow.

Dr A Lotriet (DA): Thank you, Chair. Also not to go around in circles, but I also agree with the second last speaker, that it was quite clear from the evidence that there was an instruction not to take notes. And then the question is why should they not be notes and the only inference I can draw is that it was made to be kept secret. So I believe that this meeting was in secret. Thank you.

Chairperson: Thank you, Hon Lotriet. Hon Gondwe, you are welcome.

Dr M Gondwe (DA): Chair? Thank you very much, Chair. I just want to agree with Hon Lotriet, Chair, the fact that there was an instruction given that no notes should be taken, and no recording should be made of that meeting with the SSA, you know, gives the impression that it was the intention of the Public Protector for that meeting, not to be disclosed, and for no one else outside of that room to know about the meeting. Thank you. So in other words, her intention was for that meeting to be secret. Thank you.

Chairperson: Thank you. And the last question I would pose, before I go to Adv Bawa at the end, then: if so, did Adv Mkhwebane fail to file transcripts of the meetings with the Rule 53 Record? Hon Nkosi?

Mr Nkosi: Yes, Chair, she failed.

Chairperson: Thank you. Hon Lotriet?

Dr Lotriet: Yes, indeed, Chair, she failed to do that. All we had, in the end, was a page taken by the officials who were instructed not to take any notes. Thank you.

Chairperson: Thank you. Hon Gondwe?

Dr Gondwe: She failed, Chair. Thank you.

Chairperson: Thank you. I now… Is there any different view to that? None. Adv Bawa or Adv Mayosi, any points you want to raise?

Adv Bawa: Chair, we just need clarity, and we are asking [for] this clarity so that when they put the draft report together there is not some confusion on what we [are] talking [about]. So there were three meetings. The first meeting, the Lifeboat report discloses that there was a meeting with the Department of State Security on 3 March 2017, which precedes the provisional report – well, it is after the provisional report. There are then two further meetings which take place on two further dates, which is on the 3rd of May and then the 6th of June. Those are the meetings that are not disclosed. What then becomes important about the way the charge is framed is that the fact the import of such meetings is not then put in the report – and that comes back to a later charge, because that relates to the proposed amendment of the Constitution that comes out of that meeting. It is important that when the Members clarify this and when they say that the meetings were secret or undisclosed that there is a clear indication from the Members as to whether we are talking about all the meetings or some of the meetings. Are we saying that the fact and import of the meetings, precisely, was not disclosed; just so that we can get it right when it comes out? We are reticent as evidence leaders to want to suggest answers to the Members or to be later accused of unduly influencing any decision. But we do want some sort of clarity so that when Ms Ebrahim and the others look at this and they put together the draft report, that we do try and deal with it. One of the reasons which Adv Mkhwebane gave for the non-disclosure of the meeting, which we must highlight, is that it was a meeting with the SSA – which was secret. And so that needs to be dealt with, I think, by the Members, the fact that there was a meeting with the SSA, specifically with members of the SSA, warranted that the meeting not be disclosed.

Chairperson: Okay. I guess you raise that now as a general point going forward, not that there is no clarity from this in the input by Members, now?

Adv Bawa: Well, I think what the drafters must do is they must feed the facts into it and when the Members go through the facts, they must then disagree that that is a relevant fact or is not a relevant fact. I am not sure, but I think it must be clear from the floor what is being debated in respect to the facts of the case.

Chairperson: Let me go back to it: what is your actual clarity, because you are too broad? What is your actual clarity? I, as a Chair, I am sitting here [and] I seem to…

Adv Bawa: Chair, there is a summation of factual evidence in which we represented what was the evidence of the witnesses and what was the evidence of Adv Mkhwebane. In that summation we deal with – for example, in this case, we set out that there are three meetings. What will be clear for the draft report purposes is for the Members to indicate whether they disagree with what the facts have set out; if there was an additional fact that comes into it; whether they are answering the questions posed, taking into account what those facts are, so that there is some clarity in drafting. We would not want them to then draft a draft report and the Members come back say ‘Well, we answered these questions, but we did not actually, in the session, refer back to the facts. So we need to know what methodology we are using when doing that; are we assuming that we are basing this on the facts and the summation together with the facts that we heard at the hearings. I just want that clarified.

Chairperson: Any Member wants to take up and respond to that? Hon Maneli?

Mr Maneli: Thanks, Chair. I am not sure if this would assist. I think the first point, Chair, is that you look at the report; what has been the disclosure in the report. So the report gives a disclosure of one meeting on the 3rd of March. You cannot then ignore the evidence led before the Committee that says other than this 3rd of March, there were probably about two occasions when there were those meetings and those would have not been disclosed. But, again, Chair, this would have been other witnesses, but in her own way of responding, she came before the Committee, she would come and give clarity about her meet and greet with the Minister of the State Security, without referring to the name now. Then indicate, as far as the investigation is concerned, it was Mr Fraser and Ms Ramabulana… right? But still you do not have the reasons why that has not been disclosed in the report. So you would have failed to do that, and that would still make those meetings secret in the sense that you did not know the context. But even the Rule 53 part; yes submissions could be made, but you will have what we saw as evidence presented here, that ‘These are the notes I took, and that is what I can submit'. But from this point there was an instruction not to take notes.’ So I am not sure if I have confused you even more, Chair. But I just thought it was important…

Chairperson: You have not.

Mr Maneli: To understand that that is how I understand it. Thank you, Chair.

Chairperson: Thanks. Hon Nkosi?

Mr Nkosi: It is two meetings. It is the meeting of 3 March; a further meeting of 6 June. Am I right? The first meeting is fine, it took place; that meeting was acknowledged by Adv Mkhwebane that it was necessary as a follow-up because SSA was a successor to the NIA (National Intelligence Agency). It is two meetings that it is alleged were not disclosed. In respect of the first one an instruction was given 'do not record' which is a meeting of 3 March. The subsequent meeting, with a representative of the SSA, took place around 6 June.

Adv Bawa: Sorry, if I could just interrupt? There are three meetings: 3 March, 3 May and 6 June. The meetings of 3 May and 6 June are not secret.

Mr Nkosi: The 3 May and 6 June, yes. So I think to assist, Chair, it is in respect of those meetings that we are saying she has not disclosed. If it makes it clear?

Chairperson: It does. Hon Herron?

Mr Herron: Chair, I was just going to say the same thing. The 3 March was disclosed, the 3 May and 6 June were not disclosed. Thanks.

Chairperson: Thank you. You can switch off your mic, Adv Bawa. I do not know if that is helpful, in terms of those responses. And then I come back to you, as we summarise this part, Adv Bawa and Adv Mayosi.

Adv Bawa: Chair, so the facts and import was not disclosed. So the facts and import were set out in the summation, and that was not disclosed; although the meeting of 3 March was disclosed and the meeting of 3 May and 6 June were not disclosed. As I understand it there is a debate as to whether the meeting is secret, because other people attended the meeting, or whether the meeting is secret but undisclosed.

Chairperson: Hon Dlakude, before I summarise that, because I think we have generated a fuller understanding of that. There is a particular view that was raised, and only that view. Hon Dlakude and Nqola.

Ms Dlakude: Thank you very much, Hon Chairperson. Yes, the staff were there. He took some notes and he was stopped – not to record the meeting. This means that the meeting was a secret meeting. Thank you.

Chairperson: Thank you. Hon Nqola?

Mr Nqola: Chair, I do not know where we get this thing that a requirement of a secret meeting must have one person – I really do not know where we get it. It can still be a secret meeting even if it is 50 people on the other side, it is 50 people on the other side, but the meeting still remains secret. I do not know how [and] why do we want to calculate numbers of how many attended to declare secrecy. Chair, the meeting did not follow the practices and standards of an investigation of the Public Protector South Africa Office – that makes it secret. So I do not know why we should take this long discussing the numbers. I understand, Chair, that we are going to elections so numbers are important, but not for this purpose. Thank you very much.

Chairperson: Thank you, Hon Nqola. Hon van Minnen and then we go for lunch.

Ms van Minnen: Thank you. Thank you, Chair. Secret is generally defined as not known or not meant to be known or to be seen by others. It does not mean solitary. So a meeting can be secret and still be a number of people. It might be a bad secret, but it is still supposed and the intention is to be secret. Solitary is something else entirely, and I think we must not confuse language here. Thank you.

Chairperson: Thank you. Hon Herron?

Mr Herron: Yeah, Chair. I mean, I think the question really is also a legal question. The Public Protector is obliged to disclose in a report how she arrived at her decision-making, and whether she conducted a secret meeting or not, is probably irrelevant; what is most relevant is that she did not disclose those meetings. So whether you want to call them secret or not… I do not think they are secret when other people are aware of them, unless they were sworn to secrecy and told never to tell anyone, which no one testified to. But the point really is they were undisclosed, and that was her legal obligation, to disclose the meetings and how she arrived at the recommendations and the remedial action that she did. And whether the meetings were secret, or not, I mean, I do not think they constitute a secret meeting. But I do not think it is legally relevant.

Chairperson: Okay. Thank you, Hon Herron. I think we are going to leave it there, that [the] meetings were undisclosed, unknown, and secret. But I take your articulation and your views around that. And I am sure as we put the report we will be able to design that properly. Thank you. I think we now, Ms Ebrahim, have to go for lunch.

Ms Ebrahim: Chairperson, just very quickly before lunch, can I just ask that when Members make a comment that is not or that does not accord with the majority, that they please indicate very clearly if they need us to capture that as a sort of a dissenting view in the report or not. The point now about the secret meeting, as to whether it was secret or not, Hon Herron is 100% correct; that really is not the test of what the report would be looking at. So it might be unnecessary to capture a whole paragraph that there was a debate about this. So, if Members can please just clarify if there is a dissenting view that they feel must be included, that they make that clear so that we can keep notes of that. Thank you.

Chairperson: That is fine. That is in order. I do ask for a different view. Even without asking the Members we are going to have to record that, if there is a different view to what has been raised from the majority decision. So, I do not want people to… And I am sure when they feel strong about that they will do so. Can we pause there, for now, and take lunch for 30 minutes?

[Break]

Chairperson: Thank you. Welcome back, colleagues, from lunch. We now resume and then proceed from where we left. We have done just two sections or subsections; the meetings with the Presidency and SSA. We now move to the next, within that, paragraphs of the Motion. As well as chapter one, part one, of the PP’s report, pages thirty-four and forty-eight, as well as the paragraphs eighty-nine and one twenty-nine. And this is about… The question is: what was the scope of the investigation in the provisional report (in this CIEX/SARB or Lifeboat matter). We are going to have similar questions in this, because the next one is: what was the scope of the investigation in the final Lifeboat report; whether the scope changed between the two reports; if so, did that change materially broaden the scope of the investigation; if the scope materially broadened which parties were affected, thereby? And then there will just be two more other questions on this. So let us start with sixteen: what was the scope of the investigation in the provisional report. If you can assist us, Adv Bawa, because you would not be giving us a decision, it is merely to indicate what that scope is. I do not want Members to…

Mr Thembinkosi Ngoma (Committee Secretary): Mr Mileham, I see your hand is up. If you could just give us a few minutes, we are just trying to solve the technical glitches we are experiencing from the venue.

The video stream of the meeting was disrupted due a technical issue.

Chairperson: Welcome back. Let me check if… Hon Lotriet, can you hear us?

Dr Lotriet: Yes, Chair, we can hear you.

Chairperson: Thank you. Apologies, Members and everybody, we got disconnected and it seems the problem was here with the internet. So we have lost some time in that way. So I am just going to continue from where we left off. I want Adv Bawa to do what I asked her to do. We are now proceeding to paragraph 1.12 and paragraph 7.12 of the Motion, and chapter one/part one of the Public Protector, pages 24 and 48. I am just going to quickly go through all the questions we will be focusing on here and then thereafter ask the evidence leaders to just remind us about those issues of scope and so on. The first question is: what was the scope of the investigation in the provisional report? [Two] what was the scope of the investigation in the final Lifeboat report? [Three], did the scope change between the two reports; if so, did that change materially broaden the scope of the investigation? [Four], did the scope materially broaden which parties were affected; if so, did Adv Mkhwebane give notice of the broadened scope of investigation to those parties? [Five], if Adv Mkhwebane materially broadened the scope of the investigation did she fail to furnish an explanation for her conduct? We will be dealing with those, but for now I am going to ask the evidence leaders… so that you do not have to answer those questions, but we can refer to where that is and then members can respond to these questions. Adv Bawa?

Adv Bawa: Tshepo, can you get that on the screen? Right. “The factual inquiry principally focused on whether the South African government, National Treasury and the South African Reserve Bank failed to recover public funds owed to [the] Government by Absa Bank… The substantive scope of the investigation focused on compliance with the concluded contract between SARB and ABSA bank, laws and prescripts regarding a decision not to recover an alleged amount of R3.2 billion and Government bonds used as security in respect of loans made to ABSA bank, allegedly owed to the Government of the Republic of South Africa and SARB”. The second component will be… So that was what was in the provisional report. Now, we come to the final report, or what we call the Lifeboat, where the following is added. Right? “The report in the circumstances seeks also to look into reform of the Republic’s monetary system, in order to realise [the] government’s commitment in improving social inequalities in society and solicit an amendment to the Constitution in respect of the South African Reserve Bank to create inclusive economic benefits to the people of South Africa.” Chair, just so that we understand questions and the sub-questions we are asking. We are asking the questions in the context of the opening paragraph of the charges which says “Adv Mkhwebane adopted the dismissal… In that she did the following: materially broadened the investigation…” et cetera, et cetera – around those lines. Members must just bear that in the back of their minds. So those are the two provisions, and then there is a factual analysis of the evidence, which then follows on until answering the questions, paragraph 129 of the summations.

Chairperson: Okay, thank you, Adv Bawa. So we sought to make sure that we give you the background so that you do not have to think hard about that. And therefore, the questions you will have to respond to relates to whether the scope between the two reports would have changed; if it did, was the change material; and if the scope was materially broadened, which parties were affected; if so, did Adv Mkhwebane give notice of the broadened scope of the investigation to those parties; and if Mkhwebane materially broadened the scope of the investigation, did she fail to furnish an explanation for their conduct. I see the hand of Hon Mileham.

Mr Mileham: Thank you, Chairperson. Chair, the first question is about what the scope was and the scope initially excluded the role, function and mandate of the South African Reserve Bank. And the final report then included that in its scope. It materially affected the recommendations of the report, because the Public Protector made specific recommendations that addressed competency that lay with Parliament; it lay with the drafters of the Constitution. It was outside the scope of the initial complaint, and it was a very far reaching change that was proposed purely on the basis of a policy position of the Public Protector, which role she does not have – she is not the formulator of policy. So I would argue that there was a substantive change, and that it was materially affecting a number of respondents, most particularly the South African Reserve Bank, and Parliament of South Africa. Now, the kind of follow-on question to that is that were those people who were affected by it consulted in the scope change; were they brought in and asked for their opinions? And the answer is no. We have heard that the economist that was brought in was from the SSA, that the Reserve Bank was not consulted about the change in the mandate of the bank and no other economists were consulted. We heard that Mr Goodson, I do not even want to try and describe him, but he was not certainly a well regarded economist who could have given impartial advice to the Public Protector. So I think that the answer to all of those questions is that there was a scope change. It was material. The people that were affected, were not consulted, and that the Public Protector failed in her duty in that regard. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Any additional inputs? Hon Nxola Nqola, followed by Hon Lotriet and Hon Nkosi.

Mr Nqola: No, Chair, I just want to say that I agree with Hon Mileham.

Chairperson: Thank you. Hon Xola Nqola agrees with the issues raised by Hon Mileham. Hon Lotriet?

Dr Lotriet: Chairperson, I am also not going to repeat, save to say that I also agree with Hon Mileham’s position on this.

Chairperson: Thank you. Hon Nkosi?

Mr Nkosi: Chair, I agree. We just have to be specific on the parties that were affected; it is Parliament, the Reserve Bank, it is Absa and the National Treasury.

Chairperson: Thank you, Hon Nkosi. Is there any different view? I do not see any further hand. But I do want to ask if there is a different view from the three speakers that have spoken? None? It therefore means that we are of the same mind on these issues, except obviously, in the detailing of those affected parties. Thank you very much. Any remarks before we proceed on this from the evidence leaders?

Adv Bawa: Chair, there is just a fourth component to it, which is from paragraph 121 of the summation; is whether Adv Mkhwebane failed to furnish an explanation for her conduct.

Chairperson: Hon Mileham did respond to it in saying that she failed. And the Members who agreed would then have supported that. You missed just that one. Thank you.

Adv Bawa: Thanks. Sorry, Chair.

Chairperson: No, the Chair is here for that. Thank you. If there is no further comment on your part, we would like to proceed to the next. And I am going to invite you to do the same, as we do that, so that we take it step by step. We are now proceeding to paragraph 1.11 of the Motion and chapter one/part one of the evidence summation, pages 26 and 34 and paragraphs 58 up to 88… No, sorry, it is Adv Bawa who is doing this to me. We are now on paragraph 1.1.3, okay? Yes. Chapter one/part one, pages 48 to 66 and paragraphs 130 to 181. And the issues we need to be looking at, before I invite the evidence leaders, is: what was the remedial action proposed in the provisional report? What was the remedial action imposed in the final Lifeboat report? Did Adv Mkhwebane materially alter the remedial action in the final Lifeboat from what was contained in the provisional report? If so, did Adv Mkhwebane make the alternation on the instruction/advice of the Presidency, or the SSA? If Adv Mkhwebane materially altered any part of the remedial action, did the alterations require that any affected persons be afforded notice thereof and an opportunity to comment? If so, did Adv Mkhwebane fail to give such affected persons notice or an opportunity to comment? I am going to invite Adv Mayosi, so that we are also assisted around issues we might have forgotten, and then we will invite Members to respond to the questions thereafter. Adv Mayosi, with a new [hair]cut.

Adv Mayosi: Thank you, Chair. Like yours, Chair. Thank you, Chair. So Members will see that there is the charge in this paragraph, 1.1.3, called for a comparison between what was contained in the provisional report in what was contained in the remedial action that was in the provisional report and the remedial action that was in the final report. And it also calls for an inquiry into whether those changes were done on the instructions and/or advice of the Presidency and/or the SSA. And thirdly, whether those remedial… the changes in that remedial action were done without giving notice to affected parties and an opportunity for them to comment. Just to remind Members for context, the summation as to the comparisons, really, between the two reports. A proper comparison or a very useful comparison is in paragraphs 134.1 up until 134.5 of the summation. “Both reports directed that steps should be taken to recover the interest that had been approved in ABSA’s favour. The provisional report directed [the] National Treasury and the SARB to take steps to ensure that the applicable systems, regulations and policies prevented the recurrence of something similar to what had happened in the Lifeboat incident. The final report did not include such a direction. The provisional report directed National Treasury and SARB to institute legal action against ABSA to recover the accrued interest. The final report directed the SIU (Special Investigating Unit) to take steps to allow it to recover that amount of money.” The next difference between the provisional and the final report is “The provisional report directed the President to consider whether it was necessary to appoint a commission of inquiry to investigate the Apartheid corruption alleged in the CIEX Report, whereas the final report directed the SIU to take steps to investigate the alleged misappropriated public funds given to various institutions as mentioned in the report. The Lifeboat report…” that is the final report “directed that steps should be taken to amend SARB’s mandate, as set out in the Constitution, and it prescribed how the Constitution should read after the amendment.” In the provisional report there was no such stipulation. I think I have skipped 134.4, Members will see what it says there. So in short, those are the differences in the comparisons between the two reports. So the questions that the Chair then read out earlier then arise from a comparison of those two changes between the remedial actions in the provisional and the remedial actions that ultimately ended up in the final report and how it is that those remedial actions came about and whether the affected persons were notified and given an opportunity to comment. That is just for the context, Chair.

Chairperson: Thank you – I nearly said Honourable – Adv Mayosi. You [are] not there. I know there are people who have some wishes. But Hon Members, the context has been given and the summary to clarify the differences. I now want to invite Members to – and I would have gone through all of the questions because I think it helps to do that before lunch as we were starting we were settling into this, but from the last one, it looks like we can do it much better. So I am inviting [you], if there are any takers or comments on these matters. The issue of what the remedial action [was] proposing the provisional and Lifeboat has been now clarified, context given, issues of material altering – whether the alteration[s] were from an instruction of the Presidency and the SSA and so on. Any takers? Also, remember what I said, if I do not see a hand I point out. Okay, I was going to help them one by one but I see Hon Mileham. Please, go ahead. You are invited.

Mr Mileham: Chair, thank you. I did not want to be the one to talk to all of these things, but okay. So I think the issue here is…

Chairperson: No, do not worry. We are all going to talk and repeat. It is a tedious exercise. Go ahead.

Mr Mileham: So, thank you, Chair. I think the issue here is that the remedial action was vastly different in the final report compared to in the original report, in that it made specific recommendations to amend the Constitution. I think that the role of the SSA… I do not think we can go so far as to say that the President, or the SSA instructed the Public Protector to make changes to the report. I do not believe we have that evidence in front of us. But I do think that she acted on their advice and used words that were provided to her by, for example, Mr Moody, or Dr Moody at the SSA. So I think we would be stretching it to say that she was instructed. But I do think that there is sufficient evidence to show that she was working alongside them and using wording that was provided by them. And I think I would leave it there. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. The next will be Hon Annelie Lotriet.

Dr Lotriet: Thank you, Chair. I also agree with Hon Mileham in that there is a substantive change in the remedial action in the report, but I also am a bit hesitant in stretching it as to say that it was on the instruction of. But it is quite clear from the evidence that there were discussions, conversations held. If we are looking at what the court found and how Adv Mkhwebane contradicted herself, that in essence, it does come down to that there were discussions with the Presidency as well as State Security. Thank you.

Chairperson: Thank you, Hon Lotriet. You are also agreeing with Hon Mileham, including us having to refrain that the instruction comes across as hard and very definite, whereas it could have been issues of leaning towards them or conversation issues. I now recognise Hon Maneli, followed by Hon Gondwe and Hon Nkosi.

Mr Maneli: No, thanks, Chair. I also agree with what could have been the difference, including the fact that in the provisional report those that are not consulted to the change of scope were consulted earlier. I think it is important to bring [the] point that whilst there may have been a right to look at matters, extend the scope, but you need to inform the affected parties so that they also understand when you get to that remedial what then needs to happen. So without mentioning already what has been mentioned about how Parliament was affected, how the bank was affected, and so on, that principle of going back to give them an ear so that they make inputs. I think in as far as it relates to the Presidency and the SSA, I think from my point of instruction, it may be something else. But what we know, from a point of record, in as far as what has been led before us, that you will get also from [Mr] Kekana, in the main. As it related to the Presidency, it was with the legal people on that side, on the part of remedial action. As we said before, I am raising this from a point of consistency, that if the contents of the discussions with the Presidency have not been made known it will not be correct to come to an assumption that there was probably an instruction from there. So I just thought it is important to make that point. We do know – again, I am saying ‘do know’ because this has not been challenged, Chair – again from Mr Kekana’s side, is that a meeting with the SSA is such that even the wording, thereof, will be assisted from that angle. So when you talk about that part of meeting the SSA, there is also that element there, right? But, I would not say it is an instruction from the Presidency and the other. But based on what is before the Committee, at least that we know that there was a role played, including meeting certain people to even help with the wording in that regard. I thought I should raise that. Thanks, Chair.

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

Dr Gondwe: Chair, I am covered by the previous speakers, but I just wanted to impress upon the fact that we have heard evidence to the effect that there were meetings with the Presidency and the SSA and around the involvement of Mr Mahendra Moodley in terms of, you know, the crafting of the remedial action for the Absa Bankorp report. So, I think the emphasis should be on that, that there was… We do know that there were meetings with the Presidency and the SSA and we had evidence led, I think, by more than one witness to the effect that Mr Mahendra Moodley was involved in the crafting of the remedial action. And I tend to agree that indeed, the remedial action, you know, varied in the second report, as compared to the first one, and to a great extent, because now, there was, you know, the suggestion that the mandate of the Reserve Bank should be altered. But, Chair, I just want to speak also to, you know, the exclusion of certain parties in the whole investigation, and I think, Hon Mileham alluded to it earlier to say that the Reserve Bank, and I think, to some extent, Treasury, as well, should have been heard and also maybe, you know, the banking sector in terms of the remedial action: but that did not happen. And so the picture that was painted from all the evidence that we heard was that it was the voice of the SSA that came up. And there is no denying that the SSA, you will recall that it was NIA at the time [which] was also involved, you know, they played a role in the whole agreement. But what came across very strongly is that the SSA was more involved than any other party in the whole investigation. Thank you, Chair.

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

Mr Nkosi: Chair, I agree with the inputs made by colleagues; just to indicate that in doing so, in the final report, she exceeded her powers by trying to give instruction to both Parliament and the SUIT (Special Investigating Unit) [which is] something that is not premised on any legal scripts that gives her the powers to do so. Thanks.

Chairperson: Thank you, Hon Nkosi. I am now calling if there is any different view, or dissenting view on what has been expressed by the Members who have spoken. None? Thank you. I proceed and invite the evidence leaders, if there are any final comments you want to make or remarks, before I move to the next? They are well covered. Thank you very much. We now proceed to the next [questions], and that will be found in paragraph 1.1.4/7.1.4 of the Motion, chapter 1/part 1, pages 66-74, paragraphs 182-214. We will be interesting in dealing with the following questions: which persons were affected by the findings and remedial action contained in the final Lifeboat report; did Adv Mkhwebane give those persons notice of her findings and remedial action, and an opportunity to comment thereon; did Adv Mkhwebane fail to give notice to the South African Reserve Bank, and allow comments in respect of the findings and remedial action contained in the final Lifeboat report; did Adv Mkhwebane fail to give notice to the Speaker of Parliament and allow comments in respect of the findings and the remedial action contained in the final Lifeboat Report; if Adv Mkhwebane did fail to do so, were the circumstances such that they should have been afforded such opportunity; should Adv Mkhwebane reasonably have known this; if so, did Adv Mkhwebane’s conduct result in consequences that were severely damaging for the South African economy, the PPSA’s reputation? Those will be the questions. Some of the questions would have been a bit of a repeat from what Members had already said. And so, I am now going to invite [the] evidence leaders. And when Members speak, you do not necessarily have to repeat what you would have indicated, but if it is for emphasis that will be fine. Adv Bawa?

Adv Bawa: Chair, I think it was common cause from the evidence that there had not been notice given in respect of the findings and the remedial action in the Lifeboat Report, other than the consultation that had taken place with the Presidency and the SSA. So, yes, the South African Reserve Bank was not given notice about that, and that was the concession that led to the Public Protector abiding the decision to have the initial remedial action removed from the application. So that fits into the judgment that came. The court had decided that, and she had admitted that she had made changes to the provisional report without allowing the respondents to have a further opportunity to consider the draft.

Chairperson: Thank you, Adv Bawa. Hon Members, I invite you to reflect on those questions that I have just read to you. Should she have known the impact on the South African economy and the PPSA’s reputation, and whether they really should have been given an opportunity to comment – those affected parties. Your comments on those issues? I need to see hands, if there are? There are none. Further comments from the floor? Hon Lotriet?

Dr Lotriet: Thank you, Chair. I think from the evidence that we have read here and heard that it was quite clear that these different [parties], from the Speaker to the SARB, were not given the opportunity. And from my understanding, it is also clear that the Public Protector did not give them the opportunity, although she obviously should know that she should have given them [an] opportunity. And there were enough, I think, opportunities to have given them the opportunity to comment on the report. Thank you.

Chairperson: Thank you, Hon Lotriet, for your contribution. Hon Nkosi and Hon Maneli?

Mr Nkosi: No, Chair, I agree with Hon Lotriet, particularly on the fact that she would have known that she is supposed to, in terms of her own prescripts of the PPSA legislation to have given notice to these entities and individuals of the implications of the remedial action, firstly. Secondly, she would have known that from her knowledge and competency of the law, that she does not have the right to make those types of recommendations to the Constitution on amending the mandate of the Reserve Bank.

Chairperson: Thank you, Nkosi. Hon Maneli and Hon Nqola. Hon Maneli?

Mr Maneli: No, thank you, Chair. I think, as you said, let me not repeat. I would say that point of not giving notices to the affected parties is covered, but I just wanted to get to the reputation issue; that indeed it does affect the reputation of that office (PPSA), including these other role players that are never disclosed in the reports but you are able to come to a determination. But from evidence led by Mr van der Merwe, if my notes are correct, because that is where the issue of the amendment to the Constitution comes in; which is a matter raised by Hon Sukers on us looking at reflections later because if everything else said by Mr van der Merwe on where that amendment originates from a political party that was to contest an election and then use this as a private members bill, and so on. What it does…

Chairperson: You are remembering ubuntu (togetherness) now?

Mr Maneli: Yes.

Chairperson: Yes.

Mr Maneli: So what it does is that it leaves an impression of a captured office by context, when it is supposed to be a standalone office that anybody can go to. And you police that matter up until where the SSA gets involved in wording it, knowingly that it is something you should not do. But, again, from evidence led before this Committee, she herself understood that she could not make such directives to Parliament when you know you are encroaching in that space. So that has a lot to do with the reputation of that office. That is my submission, Chair.

Chairperson: Thank you, Hon Maneli. Hon Nqola?

Mr Nqola: Yes, Chair. Evidence or testimonies before the Committee show that, indeed, there was a threat to the stability of the economy of the country. And most unfortunately is that the Public Protector proceeded even at the time when qualified and seasoned economists advised otherwise, such that it should have come to her mind that this would have damning implications into the stability of the economy of the country, and in turn, the country at large. Chair, it did damage the reputation of the PPSA. Now, Chair, there is a particular reason why Parliament set up certain requirements for people to be recommended as Public Protectors. And there is a particular requirement – a particular intention, why those requirements must be strictly adhered to, because it speaks to the quality and the calibre of a holder of a public office. A person whom in the ordinary would have been expected to know and had the foresight that if I take these actions, these are the repercussions that are going to follow me. So this goes against why Parliament just undergoes that process of interviews, public participation and all that… the quality and the capabilities of the person that must be appointed by the president as the Public Protector. So, I think, Chair, in a nutshell, Chair, this has happened before, not only in the Lifeboat [matter] but we are going to get into the details of the SARS/Rogue Unit Report – there has been an encroachment there that she has done. In the Bosasa/CR17 report she has done the same, but we will get to the details of that when we arrive there. I just want to show that it is her modus operandi. Thank you very much.

Chairperson: Thank you, Hon Nqola. Any other hand? And, perhaps, before I proceed, is there any dissent or different view on what has been raised? None? Thank you. Back to the evidence leaders for any remarks. Adjust your mic.

Adv Bawa: There is one aspect that I must bring to the Members’ attention because Adv Mkhwebane provides an application in paragraph 191 of the summations, where she tells the Committee that she did not give them an opportunity to comment on the hearings because at that stage in the PPSA, they were not generally giving a secondary hearing or a second audi, where she changed the remedial action, and she had obtained an internal legal opinion from Mr Nemasisi that says those second audis were not necessary.

Chairperson: Okay, thank you. I see Hon Maneli wants to have a quick bite on that.

Mr Maneli: No, thanks, Chair. I think I might accept that at a particular level. The point that we have raised earlier on, maybe the evidence leaders might have to clarify that. The point that we raised earlier on, as you look at it there are two issues: you had the scope that produced the provisional report to make an assessment, which as I said earlier, it may be granted that you can look at the report and say ‘No, it probably needed to have been increased’. The change of scope would mean that you also have to go back to the affected parties and say ‘I am now looking at other issues which they must respond to. So it is not just really at the level of getting the final remedial action, and that is why I am saying instead of those that are really directly affected, we do hear other role players who would have been met from different times, from which there has not been disclosure in some of the engagements with them. So I am just saying probably that [you] may need, then, clarity for purposes of a final report, that: would it be proper that you are engaged in a different scope, and therefore there is no need to engage? That opinion, in my view, Chair, would be about generally as it would be practised. But where you change the scope, the investigation is taking a different direction from what was understood up until the provisional report. That is the submission, Chair. Thank you.

Chairperson: Thank you, Hon Maneli. Do you want to comment on that, Adv Bawa?

Adv Bawa: Chair, I think the Committee can look at the draft when it comes.

Chairperson: Okay. Alright. Thank you. We are now going to proceed to the next paragraph – I think we are picking up the pace now – and that will be paragraph 1.1.5/7.1.5 of the Motion and chapter 1, pages 74-77, paragraphs 215-233. And there we will just deal with two questions: was there an agreement between the PPSA and the South African Reserve Bank to provide the final Lifeboat report to the South African Reserve Bank five days before it was publicly released; and if so, did Adv Mkhwebane fail to honour the agreement? Adv Mayosi, before I go to commentary from Members.

Adv Mayosi: Thank you, Chair. This one is a fairly simple one. The relevant paragraphs in the summation of evidence are from paragraph 215 to paragraph 223. Members will recall that Adv Tshiwalule gave evidence about the existence or not of this agreement between the Reserve Bank and the PPSA in relation to the final report being given to the Reserve Bank five days before it was released. Mr Tshiwalule spoke about correspondence that was exchanged, I think in October – during September/October – 2016 when he was still employed by the PPSA, where the South African Reserve Bank made reference to an undertaking or an agreement that had been made by Adv Madonsela in 2013, that they would be furnished with the provisional report – I think they would be given a 10-day period to comment on the provisional report after the provisional report was finalised. But paragraph 1.1.5 of the Motion does not talk about the 10-day period; it really talks about a period of five days. And it relates to the report. Members will see from our summation of the evidence that the evidence that was given by Mr Tshiwalule, as well as evidence that came out from affidavits made by the South African Reserve Bank in the litigation when it was challenging the Lifeboat report, they stated in one of their founding affidavits that they asked for an undertaking from Adv Mkhwebane relating to giving them sufficient time before the release of the final report, but Adv Mkhwebane did not give them that undertaking. Adv Tshiwalule could not tell us much about the 2013 meeting, because he was not in attendance at the 2013 meeting. And in any event, the 2013 meeting speaks about some form of undertaking, a different kind of undertaking; it is a ten-day period for the provisional report. So Members will see from paragraphs 215-223 that the evidence, as we set it out, and to which Adv Mkhwebane responded. Her response in her statement is that she has no recollection of giving such an undertaking to give SARB the final report, five days before it was released. The summation of the evidence, as appears there, we could not find evidence that disputes that. But the Committee's Inquiry then will need to ask whether there was an agreement and if there was, whether Adv Mkhwebane then failed to honour it.

Chairperson: Thank you, Adv Mayosi. Back to you, Members. [There are] two issues to look at: the issue of the report being released five days before, as well as whether if there was any agreement. Hon Herron?

Mr Herron: Thank you, Chair. I thought Adv Mayosi was going to go all the way there. But I think it is clear from paragraph 223 of the summation of the evidence that there is no evidence of an agreement. And as then proposed by the evidence leaders, if there had been one concluded with Adv Madonsela, there is no reason to hold Adv Mkhwebane as being bound by that agreement. So I think this charge has not been sustained by the evidence. Thanks.

Chairperson: Thank you, Hon Herron, for making a strong point that the evidence is not able to sustain the charge. Any other comments? Is there any different view, therefore, from what Hon Herron has raised? None? There is no different…

Mr Nkosi: Although, I wonder if an institution as big as SARB would have made up an issue of there being an agreement and put it on paper that there was such an agreement to give them time. The days are important but they are not material. The issue is such an institution would not make such an error. So despite there being no evidence, I think that, for me, it is important for us to really have established whether, indeed, this agreement agreed, where did it arise in [and] in what circumstances? As this materially affects the arrival of the PP at the finding.

Chairperson: Thank you, Hon Nkosi. Adv Bawa?

Adv Bawa: Chair, maybe as a clarification. We have done an assessment of the evidence. We are not saying that… Our investigation is not the truth or the untruth of the evidence before the Committee. So to be clear there is some debate in the papers where the South African Reserve Bank asks for an undertaking, but there must be an ask and answer. And we were not convinced that the answer was that it is unequivocal that reliance could have been placed on it. So we are not sure about that aspect of it and we could not get some finality on the evidence. We did not find, on the balance of probabilities, that that could be concluded. But that does not mean that there was not anything about the five days being sought. I think there was correspondence about it, but there was never… We did not find an answer where an undertaking was given ‘Yes, you have asked for it, and I am going to give it to you.’ That puts it into some of a context of where the Reserve Bank was coming from. They certainly wanted it. We did not see that she had given it.

Chairperson: Thank you, Adv Bawa. I do not know… does it help? But as you indicated, the issue of the days [were] not material but you were curious why the Reserve Bank would have, in the first place, thought about that and asked that. But I think the points you are raising still remain. You are not necessarily disagreeing with Hon Herron, in saying that we would not have evidence to sustain what is in the Motion. Any comments? I do not think Adv Bawa is able, convincingly, to say this, and she just answered now, that they could not find, I think, what you are looking for. Hon Maneli?

Mr Maneli: No, thanks, Chair. I think we should accept that there is nothing to touch and feel as concrete evidence from a point of response. But I also do not want us to ignore that there is a response, and that response says I have no recollection. So when you do not have recollection, you are neither dismissing or accepting. I think it is an important point when you have taken over from your predecessor, because you do not know at what point that commitment would have been made. So I am just riding on a point raised by Hon Nkosi, that for an institution as big as that one, where there are serious implications of what will come out of a report, as shown when this was being cleared – concerns about financial systems and everything else. We should really take pains to make such. So I was just saying, Chair, we would have difficulties in pursuing it further than that when, actually, there is no recollection. That is what I wanted to say. Thank you, Chair.

Chairperson: Thank you, Hon Maneli, for that elaboration. It does help. I guess that we are going to leave it, and it will be recorded as such. We are now going to proceed to the next brief section. I would not mind that we just take [a] ten minute break, tea break, and then come back and do this. We are still going to be here for some time. We take a ten minute break. Thank you.

The Committee adjourned for a ten minute tea break.

Chairperson: Welcome back, colleagues. It is now 16:00. We now resume the next…and I am going to put together two small sections together, which will be paragraphs 1.1.6, paragraph 7.1.6 of the Motion, chapter 1/part 1, pages 77-82, and paragraphs 224-240; as well as paragraph 1.1 of the Motion, generally, chapter 1/part 1, pages 82-83, from paragraphs 241-242. We have put those together. And the questions that we want to attend there will be: does the Lifeboat report refer to or discuss the submissions of the South African Reserve Bank in response to the provisional report; does the Lifeboat report refer to or discuss the submissions of other interested parties who responded to the provisional report? And 39, in the next paragraph: given the conduct found to have occurred, pursuant to the above paragraphs, was Adv Mkhwebane dismissive, high-handed biased and procedurally irrational and unfair in the conduct of the investigation? That is going to become a very key question. Therefore, before I invite Members, I am going to ask Adv Bawa to do as we always do – context wise.

Adv Bawa: So, Chair, we split this up into dealing with the three main parties and we looked at each of their submissions in turn. And so the first one is the South African Reserve Bank's missions, which we deal with in paragraphs 225-226 of the submission. And we come to a conclusion, having evaluated the evidence, at paragraph 228, that from a consideration of the report, most of the Reserve Bank’s concerns, one way or another, is referenced in the document. And then we turn to the submissions made by the Minister of Finance and National Treasury, and we deal with that in paragraphs 232 onwards. And Adv Mkhwebane had explained in her affidavit to the Committee – found at paragraph 230 – that in response to input from the National Treasury, she had removed some of the remedial action previously proposed to the effect that there was a need to amend the Reserve Bank. And then she referred to the Reserve Bank Act at 230 – we quote from her statement. And then we look at the submissions made by the Minister of Finance and National Treasury insofar as it is in the report. And we do see that some of the submissions that could be material, are not reflected in the Lifeboat report – which we come to that conclusion at paragraph 233. And then we… The Lifeboat report also does not reflect the Minister of Finance’s submissions regarding the National Government’s agreement with CIEX, including whether the agreement commenced and why it was terminated; the reasons for such termination and why [the] Cabinet would not have acted on the report. And they express some expression of concern that those reasons as to why the government had terminated the agreement with CIEX does not emerge from the report. So we say that it does not deal with the Minister’s concerns regarding the extent to which the report undermined the government’s institutional integrity and its ability to promote public confidence in the administration of… That deals with those aspects. And then we looked at the ABSA submissions, and what they deal with in paragraph 238. And Absa’s submissions, in respect to the access of evidence and the remedial action, are not referenced in the report; but the substance of the submissions, even if not necessarily or satisfactorily addressed to Absa’s satisfaction, is dealt with to some degree in the report. That is a little bit of a yes and no response, Chair, having looked at all of the components of the evidence.

Chairperson: Okay, thank you. I am now going to invite Members to respond to those three questions, 37, 38 and 39. No comments on those? Does the Lifeboat report discuss the submissions of the provisional report? Does the Lifeboat refer to or discuss the submissions of other interested parties? And lastly, given the conduct found to have occurred, pursuant to the above paragraphs, was Adv Mkhwebane dismissive, high-handed biased and procedurally irrational and unfair in the conduct of the investigation?

Adv Bawa: Chair, sorry. I did not address that aspect.

Chairperson: Then please address it before I go to Members. You can take this mic above your laptop, so that Members can hear, because sometimes we lose you. That is it.

Adv Bawa: Sorry, Chair. There are… That is addressed in paragraph 241 and 242 of the written submissions and it goes to towards the question of procedural fairness and the question as to whether it, in some way, infringed on the powers of the Reserve Bank, and whether there should have been a discussion with experts of the Reserve Bank for such a recommendation has been made, and the conclusions that was reached by the full court that was then been upheld by the majority of the Constitutional Court subsequently thereto. Thank you, Chair.

Chairperson: Thank you. Thank you, Adv Bawa. Over to you, Members. Are there any takers? Hon Bhekizwe Nkosi, and Hon Nqola to follow.

Mr Nkosi: With respect to the questions, I think that as indicated in the summary, with regards to the Reserve Bank, indeed, that some of the – in the Lifeboat report – s issues are raised, so there is no issue about that. It is with respect to the Minister of Finance, at 237, where it is clear that the input of the Minister of Finance about the institutional independence of the Reserve Bank, its relationship with the government, the concerns about the integrity of [the] government processes, and the investigations that had been done on CIEX and the views of the independent panel, et cetera, et cetera, that were not factored in the Lifeboat report. And that opportunity had not been given… not an opportunity as such, but that the inputs of National Treasury had not been – or the Minister of Finance – had not been factored in the report. And also related to that is the fact of the confusion of the roles of [the] Presidency, the Minister of Intelligence and the Minister of Finance. And that overall indicates that there was unreasonableness on the side of the PP. With regards to Absa, I think the same – Absa’s concerns were not reflected in the report, irrespective of the fact that they were given. And I think that on the issue of procedural fairness, it is clear that the PP did not adhere to that requirement and the concerns raised by the bank as an active participant in that process, were not factored in that report. In that regard, then the question is answered in the affirmative to say that she did act in an unreasonable, high-handed manner… Yeah.

Chairperson: Thank you, Hon Nkosi. Hon Xola Nqola?

Mr Nqola: I agree with the Hon Nkosi; and just to add some few [comments] in respect of whether she was dismissive of this report. Chair, you would recall that I had said, even before the final report was issued, that there have been a number of inputs and a public outcry and a public discussion about what damage this will cause the economy of the country. The economists, many of them have been at the forefront in saying this would have serious repercussions in terms of the stability of the economy, but that was ignored, in terms of the approach and everything else. It does not mean that when you take consideration of something, you agree with it. But dismissive means you just say ‘no, no, I do not care what you are saying, I am proceeding, regardless.’ So I think from where I am seated, Chair, it is my view and my analysis of the evidence that has been tabled in this Committee that yes, she was dismissive and heavy-handed. You will recall, Chair, that SARS, I mean the South African Reserve Bank, actually says there was an agreement of five days or something before the actual issuing of the report, you must be notified and all that – and that was dismissed and ignored. So from where I am seated, Chair, I am saying yes. Thank you.

Chairperson: In the affirmative. Thank you, Hon Nqola. Any other Member? None? Is there any different view, or dissenting voice? Hon Lotriet?

Dr Lotriet: Chair, I raised my hand before you asked your last question. But this is just to also express my support.

Chairperson: So you do not want me to refer to you as dissenting?

Dr Lotriet: No, no, please not. I concur with what the previous two colleagues said. Thank you.

Chairperson: Thank you, Hon Lotriet. I guess there is no other further point. Any remarks from the evidence leaders? If none, then we proceed to the next point. Thank you. I take you to the next section, 40-43, paragraphs 1.2.1.1 of the Motion, chapter 1/part 1 of the evidence summation, pages 83-92, paragraphs 243-278. And those would be the questions that we want to focus on. In her affidavits in the litigation regarding the Lifeboat report, both before the High Court and the Concourt, what accounts did Adv Mkhwebane give of the meetings she held with the Presidency in the course of finalising the report? Were those two accounts to each court full, frank and honest? In her affidavits in the litigation regarding the Lifeboat Report (both before the High Court and before the Constitutional Court), what account(s) did Adv Mkhwebane give of the meetings(s) she held with the SSA in the course of finalising the report? Were those account(s) to each court full, frank and honest? So it will be in relation to the SSA, the Lifeboat and so on. I am going to ask the evidence leaders to give us a context around these and then invite Members.

Adv Bawa: Chair, maybe the context must start with the following: there are proceedings before the full bench of the High Court. That High Court rules against Adv Mkhwebane and dismisses or grants the review application and makes a personal cost order against her. There is then a direct appeal to the Constitutional Court, only against the cost order. Right? So we must understand that that is the context. There is a majority judgment handed by the Constitutional Court and then there is a minority judgment, which is a dissenting view from the then Chief Justice Mogoeng, signed on by one of the other judges. You will recall both Adv Mpofu and myself took you through those judgments right at the start, and then Mr Kekana gave evidence. Adv Mpofu took you through the minority judgment or the dissenting judgment, and we took you through the majority judgment. And so the question that is being asked is split up because the question is not just about… It says ‘litigation’, and there is two sets of litigation, one before the High Court and one before the Concourt. The High Court makes the finding as one of the precursors to the cost order they make. And we conclude that in paragraph 251 of the summations that the version of events of the June 2017 meeting remained, what the court called, ‘veiled in obscurity’ as it was not disclosed in the Lifeboat report or explained or referred to in the affidavits, and there was no transcript or minutes of the meeting. That is before the full bench. So there is that issue of the meeting with the Presidency. Then we come to the Constitutional Court judgment. When the matter comes before the Constitutional Court there are two versions. There is the version that is put up in the application for leave to appeal to the Constitutional Court, which you see there in paragraph 252, where she explains that the meeting on the 25th of April 2017 was the meet and greet and not the issue that related to the SARB meeting. And then around the 7th of June, she says that was the meeting where she was accompanied by Mr Nemasisi and Mr Kekana, and that had nothing to do with the substance of the content of the report. So that is the explanation that is given on the, shall we call it, the founding papers in the application to the Concourt. There is then a replying affidavit in the Constitutional Court. And she then explains to the Constitutional Court why she had not disclosed the meeting with the Presidency. And then she later say that it was not deliberate and what she had discussed related to – if you could go down to [paragraph] 256 – in her replying affidavit, she discussed the issue of the remedy of the SIU with the Presidency, and that it was necessary to meet with them in June 2017 at their behest. And there was then a need to discuss it because she had indicated in her High Court application that she was concerned about the issue of the draft remedial action to direct the President to establish a judicial commission and [that] they may have had similar difficulties that was being with what was then the challenges to the State Capture Report. It was in that context that there was a concern about what could have been regarded as a differing approach in the affidavits that was (sic) put before the various courts. And so, there is then a replying affidavit filed, in which she discusses that in greater detail, including… which is set out in 261. And she says that the meeting of June 2017 had nothing to do with the substance of the content of the report. So, the issue comes as to whether there is a varied version and whether she did discuss the remedial action with the Presidency, as implicated in one affidavit, and whether she did not discuss, as indicated in the other affidavit. And that is linked with Mr Kekana’s notes that he had produced at the time. And at paragraph 264, the proposition was put to Mr Kekana during cross-examination. The issue that was being dealt with at the meeting – second meeting with the Presidency – dealt with the issue of the SIU, in other words, the practicalities of the SIU proclamation. And so there is a definite difference in the way one looks at the affidavits. So it is in that context that the question is asked, under paragraph 1.2.1.1, in doing that. So that deals with the Reserve Bank, and there is a difference of interpretation that is put out between the news of the majority judgment and the minority judgment on the extent of disclosures that was (sic) made. And then when we come to the SSA, which we discussed at paragraph 271 onwards. Quite a bit of it was not before the High Court matter (in her answering affidavit) And when it came to the Constitutional Court she relied back on the High Court affidavits... There is no dispute before this Committee that the remedial action, regarding the constitutional amendment, was raised with the SSA. Adv Mkhwebane told the High Court in respect thereof. We now know… We have more information before us, as the Committee, as what was before the courts. I can take it that we have summed up the evidence in these paragraphs.

Chairperson: Thank you. Thank you. It was a bit long, but we are here for that. And therefore, Hon Members, any takers? Any responses to the listed questions there, now that you also have the refreshed background on the context? In case you would have forgotten? May I take contributions. Any different view? You have no view?

Mr Nkosi: No, we do, Chair.

Chairperson: Okay, Bhekizwe Nkosi.

Mr Nkosi: Yeah, Chair. I just want our evidence leaders to explain the salient differences, if there are, between the two affidavits. I think, generally, you get the idea that she did not disclose full information in respect of both. So if we get the salient differences and references to the paragraphs.

Chairperson: Okay. Thank you, Hon Nkosi. Before I go to Hon Maneli; Adv Bawa, did you get that? Okay. Is that too quick? Okay. Hon Maneli?

Mr Maneli: No, thanks, Chair. I want to raise it from a different angle, in that, indeed, there is a sense of difference. That on one, there might be signs of non-disclosure completely, but then when you get to the other level, it is because the counsel has withdrawn and we prefer properly to come back and say something about it, and recognise that the Presidency has got the proclamation – so you see the relevance there, which is also backed up about what Mr Kekana… I think I raised this issue before, when I said what is it that is before us as it relates to… The SSA, you may not have disclosures, but at the end you do know that the wording was to be done by the SSA. So you do find those, as far as I am concerned. But as I say, the evidence leaders may want to get to the exact points, as put in the paragraphs that were flighted. But clearly, you have that difference. I want to emphasise, Chair, these are meetings that are not disclosed in the reports – as a starting point before you talk courts. This, I think, for me, is an important aspect because as you get to the courts you are using these reports also as a source of documents to argue your case. Right? That is fine. The second issue that comes out is that whilst there is an expectation, and I am coming to the framework again, that if you had this info that you are able to raise in a court, why would you have withheld that info at the lower court? Surely, it means they would have considered something different, based on what you presented. That is not just about making those appeals, Chair; it is directly linked to the resources that go with that. And a matter that could have been handled and dealt with at a particular level, especially if you are the one debating, I think it gets to be something that is a little bit of a problem, which shows that there is a problem in that office and how the PP has handled the matter. Thank you, Chair.

Chairperson: Okay. Thank you, Hon Maneli. Any other Member? I know that Hon Nkosi will come back once Adv Bawa assists there. Is there any other Member, even with a different view? None? Okay, back to you, Adv Bawa.

Adv Bawa: I have already gone into more detail than what I wanted to do. But I think if I can direct the Hon Member to the paragraphs in the summation that sets out the different versions. If we look at how it starts, it starts with an affidavit from the applicants in the litigation, and then Adv Mkhwebane files an answering affidavit, which is dealt with in paragraph 245. Right? And then she explains that the President called for a meeting relating to the Section 7(9) Notice, and that she agreed for this meeting to happen on the 25th of April; she was accompanied by investigators; and that following the discussion at this meeting, she became concerned that the remedial action proposed in the provisional report could run into difficulties. What had previously been alleged in the affidavit before the High Court was that there was a meeting on 7 June 2017 that had taken place with the Presidency’s legal advisors; and that they found from the notes that they discovered in the Rule 53 Record, which we now know to be the notes of the investigators. Right? So we have got that, on the one hand, before the High Court. Now, we come to the Constitutional Court. We know that the affidavit before the High Court does not say anything about the meeting on 7 June; it is raised by the South African Reserve Bank. She does not answer. So now we come, and there is nothing before the High Court that says what was discussed at the meeting with the Presidency in that regard, as to the 7th of June. And so the full court reaches a conclusion, which you see in 251. Now, let us come to the Constitutional Court after that. Adv Mkhwebane then applies for direct access – you see that at paragraph 252. And in her founding affidavit, she describes the meetings with the Presidency. So she first explains that the date was wrong, and that it was only a meeting on the 25th, to do with the meet and greet. She had gotten the date wrong, and that she had previously related the 25th of April to the meeting that occurred on the 7th of June. And then she says “My meeting of the 7th of June”, look at 252.3, “had nothing to do with the substance of the content of my report. The Presidency had requested the meeting ‘in order to clarify their response’ “And then there is an answer that is put up in the Constitutional Court. And then there is a replying affidavit in the Constitutional Court. And in the replying affidavit, she explains that she has had difficulties with filing of the answering papers before the High Court because of the withdrawal of counsel, et cetera. That was, by way of explanation, as to why things had wrongly been presented to the full bench. She then explains to the Constitutional Court why she had not disclosed the meeting with the Presidency in the Lifeboat Report. And she says that “I did not disclose the meeting in the report because it is covered by the Presidency's response to the provisional report… which requested a meeting in order to clarify their response. The meeting occurred on 7 June. That is where I indicated that there is a pending judicial review about State Capture and I asked about the report of the SIU, which they did not have but clarified that if the proclamation is issued and there is no report, it remains valid. This was raised when I asked about the issuance of proclamations which is the sole preserve of the President. Hence I requested clarity on the process and not how to craft the remedial action. “But later in her replying affidavit, she also said that “The June 2017 was not deliberative as it dealt with the Presidency’s clarification, at their request, and in accordance with Section 7(9) of the Public Protector Act, of their response to the provisional report … and in respect of the status of the proclamation that had been issued to the SIU, to which no report of the SIU has been issued. So on the revised timeline set out in Adv Mkhwebane’s founding affidavit in the CC, it was called into question what another aspect of her evidence before the High Court was, because in the High Court she explained that “From the discussion during our meeting, I became concerned that my draft remedial action to direct the President to establish a judicial commission may face similar difficulties as currently faced in the State of Capture report.” That means that she had concerns about this judicial commission and the remedial action that arose after her discussion on the issue with the Presidency – that is what the High Court affidavit says. But before the Constitutional Court, the version that was put before the Constitutional Court was that she had only met with the Presidency in June 2017, at which this was raised at the prerogative in the Presidency. The other affidavit was signed in May and in May she indicated that she had concerns about it, as a consequence of the meeting with the Presidency. That is the difficulty that one had if you compared the affidavits in that regard. I hope that assists the Members.



 Chairperson: For their recollection? Let me check them. Hon Maneli and Hon Nkosi.

Mr Nkosi: Can you re-table the questions?

Chairperson: Okay, you wanted to go to the questions, Hon Nkosi – to remind you? The questions then, Hon Nkosi, are: in her affidavits, in regarding the Lifeboat report, both before the High Court and the Concourt, what accounts did Adv Mkhwebane give of the meeting and the meetings she held with the Presidency, in the course of finalising the report to the High Court to the Constitutional Court; were those accounts to each court full, frank and honest; in her affidavits, in the litigation regarding the Lifeboat report, both before the High Court and before the Constitutional Court? What accounts did Adv Mkhwebane give of the meeting, meetings she held with the SSA in the course of finalising the report? Were those accounts to each court full, frank and honest? Now, the questions should be rounded up, having connected with the context. Hon Nkosi?

Mr Nkosi: No, it is fine. In that case, Chair, I think I agree with Hon Manila's responses. I am just concerned that – it is not a big concern – that while she is not able to move, then she goes to legal counsel and there is no indication about what legal counsel provided [but] I stand to be corrected. Yeah, I think the primary thing is that the meetings were not disclosed; the reflections of those meetings, in both the High Court and the Constitutional Court, were different in what was submitted to the High Court and the CC.

Chairperson: Thank you, Hon Nkosi. You want a second bite, Hon Maneli?

Mr Maneli: Chair, just to conclude. It, therefore, means we did not have full disclosure. And, of course, once we have different versions on one matter you can only display it when answering that question. So I thought that for purposes of record that is what we read from it. Thank you, Chair.

Chairperson: Thank you, Hon Maneli. There being no other Member on the point, we will move to the next. And I will, again, put to… I now proceed to – no remarks on your side? – proceed to paragraph 1.2.1.2 of the Motion, chapter 1/part 1 of the evidence summation, pages 92-99, paragraph 279-308. In her affidavits in the litigation, regarding the Lifeboat report, what claims did Adv Mkhwebane make about relying on the evidence of economic experts, while drawing up the report, again, to the High Court and to the Constitutional Court? In those affidavits, did Adv Mkhwebane correctly represent a reliance on the evidence, or misrepresent her reliance on such evidence? I would want to conclude the other one part of 1.2.1.3 of the Motion, chapter 1/part 1 of the evidence summation 99-100, paragraphs 309-314. What accounts did Adv Mkhwebane give of the investigation of Absa’s repayment of money to the South African Reserve Bank? And lastly, were her accounts contradictory, unintelligible and obfuscating? Those are the questions, but we will start with the context first, with Adv Mayosi.

Adv Mayosi: With the allegations in paragraph 1.2.1.2, which is that Adv Mkhwebane misrepresented her reliance on the evidence of economic experts when drawing up the Lifeboat report. So, Chair, the summation, of course, as you have said, appears from paragraphs 279 to 308 of the submission document. In her affidavit before the High Court Adv Mkhwebane made a number of claims about… relating to economics and in reliance on experts. She said that she was making these claims on the basis of advice received from economic experts during the investigation of the complaint, and so on and so on. So the question then arose as to who those experts were that she relied upon. She then continued in her answering affidavit to say that after the review applications were instituted, she engaged the services of a Dr Tshepo Mokoka, who is an economist and a lecturer at Wits, to consider the true nature of the Lifeboat scheme. So on that version, then, Chair, it then becomes clear that Dr Mokoka could not… his services were not engaged during the course of the investigation, because on her own version, the Public Protector stated that he was engaged after the review applications had been launched; so that would have been after the report had been finalised. The litigation then continued, and she made an application, I think, for direct access to the Constitutional Court. And in her founding affidavit there, she then specifies that she interviewed, amongst others, a Mr Steven Goodson, whom she described as a well-known author and a former independent, non-executive director of the Reserve Bank. The Reserve Bank, in their answering affidavit, they challenged her. They said that her claims about reliance on economic experts, what she stated… the issues she stated in her affidavit actually came directly from Dr Mokoka’s investigation, which as demonstrated, Chair, she engaged Dr Mokoka’s services after the Lifeboat report was already finalised. So then in her replying affidavit, she explained her vision more clearly and zoomed in on her reliance on Mr Goodson. And then it became even clearer that Dr Mokoka only came into the picture after the review. So, Mr Goodson was the economic expert, as she described, and that she relied on during the course of the investigation. Mr Kekana’s evidence also comes into play here because he also testified about reliance on Mr Goodson. He also then testified about [the] reliance on Dr Moodley. And there, what Mr Kekana said in his evidence is, I think he attended a meeting, he said, yet in a meeting with Adv Mkhwebane and representatives from the SSA, where Dr Moodley was introduced by Adv Mkhwebane as an economist. During the cross-examination of Mr Kekana, Adv Mpofu confirmed that Adv Mkhwebane’s evidence was that Dr Moodley was presented as some sort of economist, who had also worked in the South African Reserve Bank space. So Mr Kekana then said that during this meeting, Dr Moodley produced a single page that contains a draft of proposed recommendations that were to be inserted in the Lifeboat report. And the content of that single page appears at paragraph 297. And it will be evident from that content that Dr Moodley, that the content there does not contain any economic advice, as it referred to in Adv Mkhwebane’s answering affidavit; it did not set out any detail about the role of central banks, the functions of a lender of last resort, and so on and so on… economic issues. So the expert she clearly relied on, during the course of the investigation, is Mr Goodson. She also relied on Dr Moodley, to some extent, but as the content (the content that he provided) there shows… which was ultimately inserted in the final report, does not relate to economic issues. Members will also recall that Mr Baldwin Neshunzi also talked about Dr Moodley. He described him as an expert in IT, from the SSA. He said he met Dr Moodley when Dr Moodley, Mr Frazier and Mr Ramabulana attended a meeting at the PPSA. So Adv Mkhwebane has not called Dr Moodley to testify in these proceedings. She has not qualified him, necessarily, as an expert. We do not have a statement from him describing his exact expertise and the full extent of his economic advice to her during the course of the report. So the questions that then arise in this Inquiry, which the Chair has read out to Members, seek to inquire into whether she misrepresented her reliance on the evidence of economic experts in drawing up the report. I think, Chair, if you could… I think there are three questions that arise from that. Just to point out, Chair, that the Members do have Dr Moodley’s CV, for the purposes of assessing his expertise.

Chairperson: Thank you, Adv Mayosi. Hon Members, I invite you to make your comments. I started from 44 to 47. We would repeat those questions. Let me start with Hon Mileham.

Mr Mileham: Thank you, Chairperson. Chairperson, I think it is clear from what we have seen, the evidence that we have seen and from Adv Mayosi has just reiterated for us, that there was a misrepresentation of the reliance on economic experts. And I say this because first of all, the wording of the remedial action in the report is directly… it correlates directly with the document that was provided by Mr Moodley of the SSA. So the pattern of influence is clear. However, it goes further than that; and that is the question of whether or not the persons that she relied on, namely, Mr Moodley and Mr Goodson can be quantified as economic experts; whether they are sufficiently diverse to provide an impartial recommendation to the Public Protector; whether they have adequate economic… broad economic experience, knowledge and input to give that an impartial flavour. And I would argue that they do not. I would argue that it comes from a particular ideological background, that then the Public Protector has imported into her findings and into her reliance in reaching a remedial action based on their inputs. The input of the academic from Wits, as has been pointed out, came after the fact. And you cannot then say that she relied on that input going into her final report. So I think that the evidence is clear that Adv Mkhwebane did misrepresent her reliance on economic experts. Thank you, Chair.

Chairperson: And would you say that her accounts were contradictory, unintelligible and obfuscating?

Mr Mileham: Chair, I would rather not venture an opinion on that at this stage.

Chairperson: Okay. Thank you. Hon Gondwe?

Dr Gondwe: Chair, I was just going to agree with Hon Mileham to say that she did not rely on economic experts; she relied on, you know, Mr Goodson, and the content of his book, because you will recall that I think it was Mr Kekana who said that she said he must read Mr Goodson’ book, it is a good read, you know, that type of thing. And she also relied on Mr Moodley, whose qualifications to this day, I am not sure I even know what they are; although I have seen the CV but I do not know. But she did not rely on any economic experts. Had she done that, then she would have relied on the evidence provided by economic experts in the Reserve Bank, or maybe in academia. So she did not and she misrepresented her reliance on the evidence of economic experts. And, you know, I mean, if you are going to rely on economic experts, you have to rely on people that you know, feeding into the discourse around economics and are well known. And I am sorry, Mr Goodson cannot be considered a well known, you know, economist and author, and Mr Moodley as well; you know, he worked for the SSA. I am not entirely sure why she would then, you know, rely on anything he has to say because, as far as I know, he was not working for the SSA as an economist. So, yes, I tend to agree that she misrepresented her reliance on the evidence of economic experts. She did not rely on economic experts. She relied on two individuals, Mr Goodson and Mr Mahendra Moodley, for reasons best known to her. Thank you very much.

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

Mr Maneli: No, thanks, Chair. I think the points have been canvassed and I think the conclusion to make is really that unless there was no reliance for economic experts. But I think what gets to be quite contradictory, Chair, is that almost in the same period, on one important aspect where the poor need to be protected at Vrede by an institution that is meant to protect the poor. The reason would have been that there would not have been resources to have economic experts. But in pursuance of something that is way outside of what you need to deal with, then there will be all sorts of them, with one becoming the IT, security and economics at the same time, in this score. I think it is also something that tells a lot of stories about changing the engagement, depending on what you are engaging in, even if it is the same matter. Thank you, Chair.

Chairperson: Thank you, Hon Maneli for that contribution. Do I have any further Members or Members with a different view? None? Any remarks from the evidence leaders?

Adv Bawa: Chair, there was a second component to your question, which had not been answered because I was going to address it, and that was the provided contradictory, unintelligible and obfuscating accounts of her conduct during the investigation. Now, three aspects have been dealt with thus far: the meetings for the presidency, the SSA and her version regarding the reliance on evidence of economic experts. In paragraph 311, we quote what the Constitutional Court said, that Adv Mkhwebane either failed entirely to deal with the allegations that she was irresponsible and lacking in openness and transparency. When she did address them, if she had contradictory or unclear explanations. So that assessment needs to be made in the three aspects that have already been addressed by the Committee. Then we raise the fourth aspect which relates to the payment by Absa Bank, were the Lifeboat report records that the CIEX report had alleged that the Reserve Bank had failed to recover the amount of R3.2 billion from Bankorp and/or Absa, and that the correct amount of the illegal gift was effectively 1.125, because Absa Bank had made a payment of R1.5 billion. But in the affidavit before the High Court, it was stated that Bankorp had never paid a single cent to the Reserve Bank, and then included the challenge to Absa to demonstrate and reply on what these payments were. So the report was contradictory to what was stated in her affidavit. There was no mention in the section of the affidavit which discussed the unlawfulness of the Lifeboat scheme, at all, of the amount that Absa had paid to SARB. That was the only additional aspect, apart from the three that the Committee has already considered in that regard.

Chairperson: Okay, thank you. Any comments on that last part by Adv Bawa? None? Hon Lotriet and Hon Maneli, as well as Hon Herron.

Dr Lotriet: Thank you, Chair. I think that if one goes through the evidence [that] led to my mind, it is clear that the affidavits were in a few instances contradictory and also, obfuscating the unintelligible, I will not express myself on that. But definitely there are contradictions. And then also we have different kinds of information being given as to economic experts. So I would say here that yes, her affidavits were indeed contradictory and obfuscating. Thank you.

Chairperson: Thank you, Hon Lotriet. Hon Maneli?

Mr Maneli: No, Chair, I think I am covered on the contradictions. But I think there is a point made in the paragraph, before we look at the figures, that talks about responsibility and transparency. The reasoning changed, from time to time, based on what you are asked [at] a particular level, is that voluntarily you are not transparent; that talks to the office, as I say. But if we go to the framework, it is also an expectation just even from those that are law officers who come before courts to help the courts to make a proper decision. Thank you.

Chairperson: Thank you, Hon Maneli. Hon Herron?

Mr Herron: Thank you, Chair. I agree with Hon Lotriet. I think the evidence supports the finding that is contradictory and obfuscating accounts.

Chairperson: Thank you, Hon Herron.

Mr Herron: And a…

Chairperson: Just repeat that?

Mr Herron: No, I said…

Chairperson: You got cut.

Mr Herron: Sorry, Chair. I was supporting Hon Lotriet’s point that the Public Protector had been contradictory and obfuscating; that I think it is a stretch to go to unintelligible.

Chairperson: Thank you. Point taken, Hon Herron. I think with that, there being no further points from Members, we will proceed from that and go to the next. If there are no remarks to this… The following will be dealing with the issues of incompetence still within Charge 1. As I would [have] indicated at the beginning, you have these overlaps in terms of those. And I am now going to move to paragraph 7.1.1 of the Motion, as well as chapter 1/part 1 of the evidence summation, pages 100-101, and paragraphs 315-321. We will start with… Basically, the questions will start at 50, because everything else, necessarily, just to indicate those issues that you see there. But the first question would be: did Adv Mkhwebane, by imposing the remedial action in respect of the constitutional amendment, grossly overreach and exceed the bounds of her authority, unlawfully trench on Parliament's exclusive authority and unlawfully trench on the national executive's authority to determine socio-economic policy. And did Adv Mkhwebane concede the unlawfulness of the above on review. You might have touched on some of these issues before, but we are here now. And we want that emphasised on record. Thank you. I will invite the evidence leaders… whatever context they want to provide and then invite the Members.

Adv Mayosi: Thank you, Chair. So the three issues that arise from paragraph 7.1.1 in relation to the Lifeboat report. The first is the issue of overreach and exceeding the bounds of her authority. That is the first question. The second is whether she unlawfully trenched on Parliament's exclusive authority. And thirdly, whether she unlawfully trenched on the national executive’s authority to determine socio-economic policy and did she concede the unlawfulness during the review proceedings. Just starting with the question, did she impose remedial action in respect of the constitutional amendments. Members will recall that she directed the chairperson of the portfolio committee to initiate a process that would result in the amendment of Section 224 of the Constitution and further stipulated how Section 224 should [be] read after the amendment. ‘Did she concede the unlawfulness of this during the litigation?’ In the litigation, she conceded that the remedial action she had prescribed could not stand because it conveyed a mandatory remedial action that the parties affected had to implement. She expressly conceded in the litigation that the remedial action trenches on the powers of Parliament because only Parliament has the authority to amend the Constitution, and that authority must be exercised at Parliament's own discretion. So she accordingly, agreed then that her remedial action, in respect of Section 224 of the Constitution should be set aside, and she tendered the costs of that application. So by her own confession under oath then she conceded that she had acted unlawfully in exceeding the bounds of her authority and in infringing Parliament's authority. The question of whether she infringed the national executive authority, she conceded thereto that she had no power to dictate to Parliament how to exercise its original legislative mandate. So the questions, Chair, you posed, arising from 7.1.1, are for the Committee to answer, and they arise from that context.

Chairperson: Thank you, Adv Ncumisa Mayosi. I now invite Members to make their contributions. Hon Xola Nqola, Hon Herron, Hon Mananiso, Hon Mileham. In that order. Hon Nqola?

Mr Nqola: Thank you very much, Chair. I think, Chair, the answers are obvious. One, she, as Adv Mayosi says, even in the High Court – in the review application – did concede that she has gone beyond her scope of work, as determined in the… Apologies, Chair, I am sick.

Chairperson: Somebody is sabotaging you there.

Mr Nqola: Yeah. So, the Public Protector Act clearly determines what is the role of PPSA, so we do not even really have to go beyond how far did she go in terms of overreaching. Two, Chair, because the Constitution – which is the supreme law of the country – is clear that the obligation or the duty to enact laws of the countries and Parliament; she did not only do that. She went to tell Parliament how they must construct an averment in the Constitution, that determines what needs to be said. So, Chair, it has already been said that she conceded even in the High Court. Thank you very much.

Chairperson: Thank you, Hon Nqola, for your contributions. Hon Herron?

Mr Herron: I am covered, Chair. Thank you.

Chairperson: Thank you, Hon Herron. Hon Mananiso?

Ms Mananiso: Thank you, Chairperson. I think one would want to say yes to all the questions that have been asked, affirming what Hon Nqola has said, in terms of Adv Mkhwebane overreaching her executive authority. One would want to fully agree that she actually conducted a gross [negligence] in terms of everything that she did.

Chairperson: Thank you, Hon Mananiso, for your contribution. Hon Mileham, followed by Hon Majozi.

Mr Mileham: Thank you, Chairperson. Chairperson, I agree with everything that has been said so far. I just want to add in one additional point, and that is that policy, and particularly socio-economic policy, is determined by the executive, not Parliament, although Parliament obviously plays a role. But the determinant of that is the executive. What Adv Mkhwebane did in her remedial action was to impinge on the role of the executive and to determine what policy should be. And I would go further and say that, in some of the evidence that we saw, she appointed policy advisors to give her political and strategic advice on what that policy should be, which already calls into question her impartiality. So I do agree that as far as this particular report is concerned, she did impinge on the role of the executive.

Chairperson: Thank you, Hon Mileham, for your contribution. I now recognise Hon Zandile Majozi.

Ms Majozi: Thank you, Chairperson. I think I concur with other colleagues that this part it has more clarity, in terms of how she overreached. And in terms of when you are reporting to Parliament, and at the same time telling Parliament what to do. But nonetheless, what I wanted, maybe the evidence leaders to then explain further, because I think this one goes back too far, Chairperson, and I do not know where we left off with the Public Protector in terms of the questions. And when maybe she was asked some of these questions, did she reply in that manner? Or are we now taking what is on the report and what she had submitted on an affidavit? So that we do not get another court interdict, that now she wants the recordings of the Committee. So are we in line with everything? Or is it not going to affect us in terms of when maybe she would then try to do that? But in all essence, what has been explained, it is very clear, and it is proof of what really, really transpired. But I just wanted to check there only, Chair. Thanks.

Chairperson: Thank you, Hon Majozi. There being no other Members, evidence leaders, do you want to respond? I will assist you. Adv Mayosi?

Adv Mayosi: Chair, I think the Hon Member was asking a question, asking us to assist her, But I am not sure I got the question right. So if she could please…or perhaps you got the question, Chair?

Chairperson: No, the question was whether the suspended Public Protector [Adv] Mkhwebane did respond; if she was asked this question and responded to this. The standing answer is that whatever questions that were asked by Members, and evidence leaders, in relation to all of these issues, she chose not to respond to all of them; hence, we said many of these matters remain unchallenged, from her based on that act, basically. So that will be our response to Hon Majozi.

Ms Majozi: Thank you, Chair. I am covered.

Chairperson: Thank you, Hon Majozi. We will then proceed, if there are no other Members. Any final remark[s] on this before I proceed? Hon Maneli?

Mr Maneli: No, thanks, Chair. I am not sure if this point has been raised, if it is raised in-between you will stop me because there was also a question about whether on the side of the PP she would have seen this to be unlawful. And I want to say that the understanding is that from where one understands from a court point of view, yes, there would have been that admission quite late. But you would remember that in the Committee, and this talks to the contradictions, again… In the Committee, it would have been an issue that this would not have been intended to be prescribed to Parliament because it would be illogical and unimplementable; whereas from the point of the court there has been an admission. One can then come to that conclusion that far beyond hindsight it would have been understood by herself that would have been unlawful and understanding – what Hon Nqola would have explained about the Constitution. Thank you.

Chairperson: Thank you, Hon Maneli. That covers it. I, now, proceed, still on the issues of incompetence, paragraph 7.1.7 of the Motion, chapter 1/part 1 of the evidence summation, pages 102-109 and paragraphs 326-358. And five questions, very brief and straightforward. Did Adv Mkhwebane, in the investigation and report and subsequent litigation, demonstrate the following: irrationality, forensic weakness, incoherence, confusion and misunderstanding of the applicable contractual, constitutional and administrative law principles? I hope you got those. If the evidence leaders want to put a context, I think it is straightforward. I would want to go straight to the Members. If you do need, you can do that. Thank you. I, now, invite Members. Hon Xola Nqola?

Mr Nqola: It is a yes, Chair, in all five of them. Thank you very much.

Chairperson: Repeat that.

Mr Nqola: I am saying, Chair, the answer is yes, in all five of them.

Chairperson: Okay. Thanks, Hon Nqola. Any other Member? Hon Maneli?

Mr Maneli: No, thanks, Chair. My hand was also going to say yes, Chair. But, I think on the last point, merely to indicate about this coherence and all that, it is also in relation to the understanding of interpreting the laws, which is an expectation from that office. Unfortunately, amongst the witnesses that came before the Committee, it sounded bad when this thing would have been raised. But you have to understand the law, but the application of it is another issue. And, I think, as reports get to be looked at that also does come, that sometimes it may be in the understanding of that approach, without mentioning the witnesses. Thank you.

Chairperson: Thank you, Hon Maneli, for your elaboration. I see Hon Nqola wants a second bite. Go ahead.

Mr Nqola: Yes, Chair. Just to add on the last part of Hon Maneli, that, in fact, you will find that in all the four reports where these charges emanate, there is a problem of the misunderstanding of the applicable laws. It is a general problem, and does not always resonate with this. But we will get to the details when we enter those reports. They said it is a modus operandi.

Chairperson: Thank you, Hon Xola Nqola. Any further comments? And is there any further view from what has been said? None? I proceed. I [will] go to the next paragraph. Still dealing with these issues of incompetency. Did Adv Mkhwebane, during her investigation and report in the matter that is the subject of charge one, and the ensuing litigation to review the Lifeboat report, demonstrate she does not fully understand her constitutional duty, namely: to be impartial, and to perform her functions without fear or favour or prejudice. And it indicates where that is addressed, and so on. Maybe a bit of context and emphasis there from evidence leaders, if you need to?

Adv Bawa: Chair, I think, the factual… or the evidence surrounding that has been summed up in various categories and the last couple of grounds are sort of overarching, if you look at all the evidence together from the meetings; the Rule 53 Record, the economic experts. The High Court sums it up and the Constitutional Court looks at it.

Chairperson: Thank you, Adv Bawa. Any comment, and a take from Members on that – those two issues under 53? Hon Mileham?

Mr Mileham: Chair, just to say what I said earlier, and that is that it appears that Adv Mkhwebane was importing a particular ideology or brand of social and economic development and social and economic transformation into her reports and that did not necessarily align with the Constitution. And in so doing she abrogated her constitutional responsibilities and her impartiality. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. You did make that point before, so yes, thank you for the elaboration you are making on this, where you find that there is a connection. Any other Member or any Member with a different view? None? I proceed to the next paragraph; paragraph 7.1.9 of the Motion, chapter 1/part 1 of the evidence summation, pages 109-115, and paragraphs 359-378. Did Adv Mkhwebane demonstrate a failure to appreciate the Public Protector’s heightened duty towards the court as a public litigant? I think that is going to be the last of the questions on charge 1. Any elaboration or context? If not, I go to the Members. Thank you. Hon Members, your take? Did Adv Mkhwebane demonstrate a failure to appreciate the Public Protector’s heightened duty towards the court as a public litigant? You would have been taken through what Sokoni would have said and what Mr Ebrahim would have said, as those standards. You do not have a view?

Mr Nkosi: Repeat the question. I cannot see it there.

Chairperson: Oh, okay. The question is: Did Adv Mkhwebane demonstrate a failure to appreciate the Public Protector’s heightened duty towards the court as a public litigant? Over to you, Hon Nkosi.

Mr Nkosi: Yes, in the affirmative. It is demonstrated by what is required of that office, but also the manner in which she approached litigation and not appreciating the fact that as an officer of the court, she has a particular responsibility that must reflect those ethoses. Thanks.

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

Mr Maneli: Thanks, Chair. In seconding the yes part, I just want to bring the other aspect as it relates to this charge 1, in particular, and the matter we dealt with. That those contradictions, Chair, at different courts, affidavits done by the institution, leaves must to be desired of keeping that standard. As we have raised, it is not just about the litigation that happens, but it is also the resources of the state which are supposed to go to the people that get wasted in that score when a matter you could have left it because you know I am responsible for putting the information in terms of Rule 53. And then you will come later to justify in another court why you could not do it but still not really convinced by putting any matter before the table for reconsideration, and you still get almost the same decision that you got, and you have to go back and look at that. That, again, defeats what was shared before this Committee, that from every court process there is a review process that happens within the PPSA, and they learn from that so that they do not repeat the same [mistake]. And some of these, as I say, those contradictions show repetitive actions where you do not learn as an institution. Thank you.

Chairperson: Thank you for the contribution, Hon Maneli. You can remove that, slow Tshepo, so that I could see if I got hands further from Members. Hon Majozi?

Ms Majozi: Thank you, Chair. I would respond yes, maybe on a different view altogether; that even the investigation officers that came as witnesses here; they did say that she was in other cases as well. She was not willing to listen to what they were advising. She would make that decision without taking into consideration that they have advised her that they should not proceed with other cases because they are going to lose them which then shows that as a leader, you are not competent enough to fulfill your duty as a Public Protector. So on that case only I will then respond to yes. Thank you, Chair.

Chairperson: Thank you, Hon Zandile Majozi, for your contribution. Any other comments from Members? Is there any different view from what has been shared so far? No, none. Thank you. I think this brings us to the conclusion of charge 1. We are now going to move to Vrede, but before we move to Vrede we are going to take a 30 minute light dinner and tea and be back at 18:00. We will pause for that. Thank you very much.

The Committee adjourned for dinner.

Chairperson: Thank you. Welcome back, Hon Members and colleagues. I indicated before that break that we will now change focus and get to Vrede. I am going to start this differently. We will immediately go to the evidence leaders to give us the context and a bit of a summary, and then I get into the questions with Hon Members. And with the lessons we have done so far we will try and see how we are able to pick up the pace. Thank you. Over to you, Adv Bawa or Adv Mayosi.

Adv Bawa: Chair, the Vrede matter covers two sets of charges that we just concluded in paragraph two; the incompetence charges are dealt with in the latter part of charge 3. And it is also some of the evidence that one takes into account when you look at charge 11, which is a lot broader. But what is to be borne in mind when you consider the Vrede matter is that when we get to the CR 17/SARS unit matters, there is a comparison to be drawn between explanations provided in Vrede, juxtaposed to explanations provided in the other matters, and the contrasting in how these matters are dealt with. So that is just the broad context. And there is a High Court decision on the merits in the Vrede matter. The judge then waits for the Constitutional Court to rule on the issue of costs for the Absa matter. And then she hands down a cost judgment in the Vrede matter. That then gets taken on appeal right up to the Constitutional Court and is dismissed all the way up. So the only judgments we have is the judgment on the merits, essentially from the judge in the High Court of the Vrede matter. So when we do the explanation on the grounds, we move between reports, which is important; evidence from the witnesses and the affidavits before the High Court – that assists, Chair, in the background. And then dealing with ground 1 – should I just go into ground 1, Chair or do you want to go first? Okay, so then you have to look at the grounds which is set out in ground 4.1 as the first ground, which deals with the narrowing of the scope of the investigation, which is charge 4.1. And it is dealt with in paragraph 34 onwards, which is at page 126 of the summations. The way we crafted it, which is – we are going back to 1, in terms of the numbering when you start with the charge. And the charge provides that… deals with a narrowed scope of investigation required by the complaints which had been commenced by Adv Madonsela without providing any rational proper explanation. And what makes it in some ways easier is that there were three complaints from the complaint, lodged in three different periods – which is explained in paragraph[s] 37, 38 and 39 – September 2013, March 2014 and May 2016. Within those paragraphs in the summation, we detail the contents of each of the complaints that have been lodged during that period. Right? And according to the evidence of Adv Mkhwebane and the content of the Vrede report itself, the report was issued in respect of all three complaints; there is no reservation or undertaking to further investigate any allegations not dealt with in the report. So that is the first point to be made. If you go to the report itself in paragraph 41, we record what the report says it refers to. And you see that it says that they make findings in respect to whether the Free State Department [of Agriculture] had improperly concluded the public-private partnership and whether there had been non-compliance with procurement and whether they failed to manage and monitor the Estina’s budget evaluation expenditure controls and performance. And it concludes that it was difficult to determine whether goods and services were procured at inflated prices. So the report itself lists six issues that were not investigated, and it provides the reasons for not being investigated is due to capacity and financial constraints. And the 6 issues are the causes of cattle deaths, issues arising from the 3rd complaint, the value for money obtained, the newspaper articles referred to/known as the Gupta Links, how money was spent by Estina, matters relating to beneficiaries who were intended to benefit from the project (due to a lack of information). And in her statement before this Committee – Adv Mkhwebane’s statement – she categorically denied that the third complaint was not investigated at all. And I think we must be clear that when she says at all, we accept that she is saying that there were aspects that were… So, over and above the six issues identified in the Vrede report, it also does not refer to the complaint of non-compliance with environmental prescripts, which was expressly raised in the second complaint, and it was raised in the provisional report that was there. Now, I am going to refresh your memory to put context to it. There is a draft provisional report in this matter… sorry, let me rephrase that. It is a draft report - let us not call it the provisional report. We define it as a draft report. And in the Rule 53 index it is referred to as a draft provisional report. It is the report which Adv Madonsela gave evidence on; she did not finalise [it]. That is an important recollection. That is the only report that is in the Rule 53 record, apart from the final report. So there is no finalised provisional report in the Rule 53 record, for reasons which will become apparent as we go on. And the explanation that is given to the High Court as to why the environmental prescripts was not investigated was because it was regarded as an unsubstantiated complaint, because the complainant failed to provide additional information as requested. So, now, if we go to… Chair, I do not know how far you want me to go before you turn to the Members? Must I start on the six issues that are not investigated? We then, in the report, deal with, essentially, the issues we say, which according to the report was not investigated – to consider whether they could have been investigated, and what was the impact of capacity and financial constraints. And then we reach a conclusion in the section. So the cattle deaths is an issue which arose in the second contract of 2014. And in looking at the… because of the length of time and the nature of the complaint in paragraph 51, we could not find any evidence to confirm whether the deaths could actually have been investigated after Adv Mkhwebane took office. And we reached the conclusion that we do not have the evidence to say that actually, there was a way it could be investigated. Remember, Adv Mkhwebane only comes into office in October 2016. And so, in looking at the question of [the] practicality of the investigation was also something we took account of in trying to pick out, well, could it actually have been done, given the reduction of time? The second issue, which Adv Mayosi will take you into greater detail, because it also falls under charge 4.2, is the issues arising from the third complaint. The Vrede report indicated that the issues arising from the third complaint were not investigated because the issues pertaining to the investigation were already identified in the executive summary. And it had stated that the investigation as at this advanced stage could not be investigated due to financial and capacity constraints. Bear in mind, as indicated above, the third complaint is made in May of 2016. Adv Mkhwebane comes into office in October of 2016, and the final report on the Vrede matter is issued in February 2018. So if one then goes… and I want to take you to paragraph 68 of the note, and skip over the details of what the third report is about, what steps in the investigation was taken after that. In the judgment before the High Court, the Public Protector justified her decision not to investigate the third that complaint was lodged, because she said it was too late to do so. “One must, in this regard, note that the final report was only issued in February 2018. It is inconceivable that having regard to the dates she could seriously contend that it was too late for her proper consideration.” In explaining to the Committee, in her part B statement, Adv Mkhwebane explains it as follows: “The issues raised therein largely overlapped with the first and second complaints. The exception was the issue of the shareholding of the beneficiaries. This issue was left out because the investigation was at an advanced stage and the issue had not been incorporated in the six months preceding my occupation of office. The failure must be placed at the door of Mr Samuel and Prof Madonsela. The third issue is that of value for money, and that was raised, as pointed out in paragraph 17, in the first complaint. It was in reference to the significant government expenditure on infrastructure, machinery and capital. The second complaint requested an investigation into the extent to which Estina contributed to the Vrede Project, whether it was also benefiting from the supply of goods and services, and the ‘hugely inflated costs’.” And they listed, in the second complaint, the number of items that were subjected to inflated prices that was not addressed in the NT Report, which is the National Treasury Report, which preceded the complaints of the Public Protector. And the National Treasury Report had included a number of information, which indicated that prices were, indeed, inflated in doing that. And so, if looking at the evidence that was before that, and in paragraph 74, what the High Court concluded, because one of the aspects that arose was whether or not it was a public-private partnership – the Public Protector said that it was not [but] the National Treasury said it was, and the High Court determined that the Public Protector was wrong in that regard. And then in paragraph 76, it set out the instances where the National Treasury’s report reached several conclusions regarding the values and costs, and I think the one most commonly known is the cost of the pasteurizer that would be installed for R450 000 but it was recorded as costing R60 million. And the fact that there was a recommendation by the National Treasury that the government should not continue with this project since it will not receive value for money. Now, what follows on this, which comes later, is that more money is still paid out after the National Treasury report was issued. So this report refers to evidence in respect of… [audio stream lost temporarily]. On the inflation of prices, Adv Mkhwebane had indicated that to her knowledge, the Accountant-General had dealt with the issue and she lacked the financial resources to hire experts to re-do the same exercise – and that is recorded in paragraph 11 of the Vrede report. And so there is, only to a limited extent, where some of the things were recorded and the bulk of it was not. So the next item which was not investigated, which would be the Gupta emails, paragraph 84. Now, bear in mind that we are talking about, in some ways, a comparison between the CR17 matter and the Vrede matter on one hand. The three complaints made no specific mention of the Gupta leaks. It was not investigated because it was not of concern to the complainant – it was not raised in the complaints, and it was not a part of the scope of the investigation. We summarise the issues that arise in the question of this in paragraph 117. The explanation and evidence of what the various witnesses’ views were on the Gupta Leaks as recorded. But in summary, in paragraph 117, the different views are set out. First, Adv Mkhwebane appeared to be saying that by June 2017, the Vrede investigation had been completed. But the 7(9) notice and the response process was not yet complete. So the latter may have required further investigations, and investigations are not actually completed prior to her response to the Section 7(9) notice. Second, the Vrede had ensued beyond the mid July 2017 until beyond when the Gupta Leaks were publicly disclosed and widely reported in the media, so much so that a task team was created to finish the investigation in the latter part of 2017. There is a difference of opinion between some of the members of the task team. Mr Sithole indicated that he understood it to be of quality assurance, and the other members of the task team, and the references to the task team, say that the investigation had been finalised. So the third issue was 17.3, Adv Mkhwebane did not disclose that she had been provided with the OUTA (Organisation of Undoing Tax Abuse) report, prior to the conclusion of the investigation. And since at least mid-2013, media articles alleged the Gupta family had irregularly benefitted from the Vrede project. Media articles gave rise to the NT (National Treasury) Report and were expressly addressed therein. So none of the investigators were provided with the OUTA report by Adv Mkhwebane. So the fourth, notwithstanding that the Section 7(9) notices that had been issued by the time the Gupta Leaks came to the fore, when dealing with her evidence in her Part A statement Adv Mkhwebane testified that investigators can ensue up until a report is issued and a second Section 7(9) notice may have to be issued. It follows that it can be too late to have regard to any matter that arises during the investigation up until the final report is released. Fifth, she testified in reference to CR17, but it was incumbent on her to follow where the leads led to fulfill her mandate. But the same did not apply in the Vrede investigation. Sixth, the absence in and of itself of any mention in the three components of the Gupta family and email correspondence in respect of the Gupta family did not preclude an investigation. So those were sort of the summaries. I think it is common cause it was not investigated, but some of the evidence that when you evaluate it, take it into consideration. The fifth ground is how Estina spent the money as effectively the beneficiary benefitting from the supply of goods and services or contributions from the provincial government at hugely inflated costs, et cetera. That will form part of the first and second complaint, and it was elaborated on in the third complaint. When allegations came to the surface that they had benefited under the contract provided by the Premier’s legal department at the expense of taxpayers, beneficiaries and the state, and they had received approximately R183 million for building a dysfunctional dairy infrastructure and purchasing cattle at inflated prices. And Estina was allowed to basically abscond from the project of accountability. And this is one of the issues that was not investigated extensively because the Directorate of Priority Crimes was dealing with the issue of the Hawks. And so it is stated there that in the Vrede matter, when you look at the 122 “While the SAPS (South African Police Service) Act expressly provides for the Hawks to investigate offences under Chapter 2 of PRECCA (Prevention and Combating of Corrupt Activities Act), the PP Act also provides that the Public Protector is competent to investigate alleged offences under Chapter 2 of PRECCA if they relate to public money. Adv Mkhwebane may in law therefore investigate complaints even if the Hawks has simultaneous jurisdiction.” So she did have jurisdiction to investigate but elected not to do so because the Hawks was doing so. And we do know as to what then transpires is that several arrests are made in February 2018, I think, within days after the Vrede report was released. In 2018 there was a number of arrests that had been made. So essentially that was one of the main reasons given why that was not done. There was not an evaluation done as to whether Treasury regulations have been complied with, and there was a view taken in the answering affidavit in the High Court that because Estina was a private company it did not fall under the Public Protector’s jurisdiction, even though public money was involved. There was also an allegation in the papers that she could not access documentation because they had closed shop, so that lead was not followed up any further to do that. The effect is that we set out in the following paragraphs the explanations that had been provided in her answering affidavit as to why that investigation did not ensue. What is not there is an explanation to the court as to why documents could not be obtained via a subpoena or through a search and seizure to the office and why officials in the Free State Department [of Agriculture] were not subpoenaed to answer questions under oath or to produce whatever documents had within its possession. And so we then deal with the further comparison and we say that in paragraph 140, Adv Mkhwebane makes the statement that “it cannot be disputed that monies were paid and used for purposes other than those for which they were intended.” That inclusion, although in the affidavit, is not in the report. Nor in the remedial action does it deal or give any direction to the department to take steps to recover such unlawful expenditure by Estina. There is no indication in the Vrede report that Estina was no longer in fact in existence, or if it was not in existence how that was ascertained or if any effort was made to get the bank records or accounting records. That then takes us to the beneficiaries which was raised in the first, second, and third complaint. Clearly it required a determination of who the beneficiaries were, what the benefits were meant to be, whether they had received those benefits, and if they had not, what steps could have been taken to ensure that they did receive them. And we know that the Public Protector’s office was in possession of the details of the beneficiaries, including the ID numbers, addresses and cell numbers; if not all, then most of them because it is including the Rule 53 Record. And we know how they came to be identified and the irregularities contained therein, because the Treasury Report deals with that. And so we explain what had transpired with the beneficiaries in paragraph 150 – we say that for this Committee, Adv Mkhwebane denied that there was a failure to investigate the third complaint. And the issues raised therein having largely overlapped with the first and second complaints, except for the shareholding of the beneficiaries, which was left out as the investigation was at an advanced stage and the issues had been incorporated six months preceding her occupation of the office, placing that failure at the doors of Adv Madonsela and Mr Samuel. However, without any use of additional paid resources, after the Portfolio Committee had raised, the Vrede 2 Report comes out using the beneficiary list it had already had to make contact with beneficiaries, contained extensive findings in respect of beneficiaries and audit appropriate and legal action. It appears that much of this information came from engaging directly with the beneficiaries themselves, something that could not happen with the first investigation. So it could not be because of a lack of information because they did not have any new information for the Vrede 2 report; so that is why we say that was implausible. We also know that from the evidence before this Committee that blame was laid at the door of the then leader of the DA, Mr Maimane, for not providing the evidence. When one has regard to the affidavits before the High Court then, he denies the fact. So he explains the context of his meeting and how it came about that he took a number of beneficiaries to the offices in December and what he intended. So what it does show is that there were several steps that did not happen: the beneficiaries were not interviewed, neither the CFO from Estina, the CEO from the Department, the Indian partner company. None of them were interviewed. Certain documents like the security and management agreements were not considered. And there does not seem to be any consideration given to the beneficiaries in this matter. We then go through the evidence. We set out in paragraph 80 what the High Court found as the reasons for excluding the beneficiaries, which essentially relates to correspondence. And the High Court finding in 181 was that the decision to limit the scope of investigations was so dramatic, irrational and it cites the complaints, which led to a failure to execute her constitutional duty. As I indicated earlier on, the Appeal courts did not revisit this conclusion. They both refused leave to appeal. The final issue relates to environmental issues. And the answer was that effectively that it was not done because the complainant had not provided additional information. There is a draft report that substantially raises the question of environmental compliance. This is all taken out of the report on the eve of it being finalised. So it was investigated, it is just not reported on. So it is not quite so from looking at drafts that it was not listed as an issue in the final report, because it was an unsubstantiated complaint. This is not borne out by draft reports which precede finalisation of the report. There is also a dispute before the High Court as to whether further information had been requested from the complainant. We did not see any… We were not furnished with any correspondence reflecting such to do that. Chair, the next issue on this is the issue of capacity and financial constraints. But maybe we should let the Members go to the grounds before we deal with it was justifiable to say that capacity and financial constraints had limited us.

Chairperson: Thank you. Thank you, Adv Bawa. It has been quite a dense area, so it was important that you travelled with the Members through that. Now, coming back to Members; from 58-61, just to attend to those questions. What issues did the complaints require to be investigated? Which of those issues, if any, did Adv Mkhwebane not investigate in investigating the Vrede report? Which issues identified by Adv Madonsela did Adv Mkhwebane not investigate? If Adv Mkhwebane did not investigate any of the issues in paragraphs 58 and 60 or above, did she offer a rational or proper explanation for her failure? From 62, it is just a listing of the issues that we were taken through. So I am inviting you to speak to those questions. Any takers? Hon Annelie Lotriet, you are noted.

Dr Lotriet: Thank you, Chairperson. Thanks. I think, given the evidence that we have had, as you say it is quite dense, it is clear that complaint number three was not investigated, and that refers mainly to the political…the administrative role in the province. So it is the [Free Sate] Department of Agriculture, all those issues; whereas the first two complaints, which refer to the beneficiaries and vast sums paid, were indeed investigated. And I think the reason provided by Adv Mkhwebane in terms of why the third complaint was not investigated, is not plausible, because the report was only issued, if I am correct, [in] 2018 whereas this was 2016. So she had more than time… ample time to actually do that. And I also do not think that the question at that particular point of financial and other resources that were limited. I think such an important matter could really be accepted because other measures could have been taken. So, from my side, Chairperson, I would think that in this regard, there was definitely an omission and negligence. Thank you.

Chairperson: Thank you, Hon Lotriet, for that contribution. Further views, comments, contributions? Any further Members who want to take up the issues? Is there any different understanding or view from what has been shared by Hon Lotriet? None. We are all agreed? Thank you. We will proceed from that and go to the next section. Paragraph 4.2 of the Motion, chapter 1, part 2 of the evidence summation, pages 171… Yes?

Adv Bawa: Chair, there is a second aspect to this. Before I mislead you. She narrowed the scope, which I think the Member answered. The second part of it: ‘without providing a rational or proper explanation for her failure’.

Chairperson: Oh, okay. 61? Yeah.

Adv Bawa: Yes. And I did not address the issue about proper or rational explanation. The answer given was that it was capacity and financial constraints. I must be clear so that I do not mislead Members. That is dealt with further in the notes from paragraph 191-213. Chair, and the issue arose as to whether there was a full explanation which the court found it did not. And this Committee had received evidence that that was only inserted into the report a night before. The third aspect was whether it required specialised services. In a nutshell, those were the three issues to consider whether the explanation provided was rational or not. Sorry, Chair.

Chairperson: Okay, any comments? Hon Maneli?

Mr Maneli: No, thanks, Chair. I think the difficulty about commenting is that as we deal with these matters we make comparisons earlier on, and then they come back. Maybe just to…

Chairperson: They have made the point, and I think Hon Lotriet also made reference to it. But for emphasis, please go ahead.

Mr Maneli: No, I think, Chair, what comes out clear is that whilst the reason would be financial constraints and all that. On the first matter we dealt with, we have shown that aspect there, that when you want to put something that even leads to overreach you are liable to have experts to rely on. The economists, as I said, whether they are security or ICT, it is another issue, but they are relied upon as experts and you are able to draw them in. That requires the protection of the poor, for which the office needs to look at; it is what you do not get. But, again, there is this comparison about what happens in the CR17, in the same presentation. And, again, we will come to the conclusion there that, again, it is about what you want to pursue and get your mind fixated on that and chase it at all costs. But in this case, that is not the case. Of course, there are other matters that are said to have been referred back to the time when the then Public Protector would have received those roles of politicians, and so on. Probably there, Chair, there will be some justification in that there was no provisional report that was signed-off; at least that was confirmed by Adv Khusela when she appeared. It is confirmed, the matter went back, but there was no confirmation. But on those areas, as I say, where it said it is financial constraints and that you cannot get the expert advice and so on, could not be enough reason if in the same period, you were pursuing other projects where you are able to draw in the experts and realise later that you actually went into terrains where, in terms of law you are not even supposed to be there, as [the] courts would have found. Thank you, Chair.

Chairperson: Thank you, Hon Maneli, for your elaboration. Any other Member? Thank you. We proceed. Hon Sukers?

Ms Sukers: Yes, Chair. I could not hear the evidence leader. But I am going to just add to what was said by Hon Maneli, now, around the issue of resource planning and the overall overlaps around issues. I think what is important to note is the note on the exclusion of the beneficiaries and the mentioned by the High Court that this is a blatant failure – was a blatant failure. So in terms of that is the impact on the intended, ultimately, the intended as per the, constitutional mandate of the PP, it is the poor, the most vulnerable. And so I just wanted to add that in terms of impact, the issue around resource planning, and how that relates again to a competency, and as mentioned by Hon Lotriet, negligence in that regard. Thank you.

Chairperson: Thank you, Hon Sukers. We now proceed then to the next paragraph; paragraph 4.2 of the Motion, chapter 1, part 2 of the evidence summation, pages 171-172, and paragraphs 224-231. And the question there – two questions that are important – did Adv Mkhwebane fail to investigate the third complainant at all; and if so, did Adv Mkhwebane provide a rational or proper explanation for her failure? Before Members respond, Adv Mayosi if you can bring a little bit of context there?

Adv Mayosi: Chair, Thank you. Adv Bawa has alluded to some of the context that is relevant here. It is not in dispute, Chair, that the third complaint was not investigated at all. This was one of the findings in the Vrede High Court Judgment, and that particular finding was not the subject matter of the appeals that the PP subsequently pursued. So she has given various explanations in her High Court answering affidavit for why the third complaint was not investigated. They vary from financial incapacity constraints. She said the investigation was already completed before the third complaint was received or that the investigation was not completed, but merely deferred. And she has also claimed that the allegations that there was insufficient information or that information from this were not given to them. During the cross-examination of Adv Raedani, Adv Mkhwebane’s version was that all three of the complaints were rolled into one and that most of those complaints were addressing the same thing. So her team and her, they took the decision to regard them as one thing, and then they assessed them as one thing. But this is the first time that version was raised. That is not to what was said in the affidavits in the High Court litigation. And also during the cross-examination of Mr Sithole, Mr Muntu Sithole, he said that by the time his team became involved, the three complaints that basically be rolled into – that they had been collated into one complaint, because there were overlaps, he said, between them anyway. So I think the version was that Adv Mkhwebane then produced a merged report to deal with all of these complaints. But that explanation is contradicted by the text of the Vrede report itself, which states that various issues were not investigated, including issues emanating from the complaints sent on the 10th of May 2016. As the issues pertaining to the investigation were already identified and the investigation was at an advanced stage. There are also various issues that the Vrede report plainly did not make any findings on, and Adv Bawa alluded to those issues earlier in her address. So despite it being put to Adv Raedani during cross-examination, I think what was put to Adv Raedani was that the National Assembly called on her to investigate specific issues which had not been raised in the previous complaints. This is self-evident, given that Adv Mkhwebane was to address, amongst other issues, possible prejudice that was suffered by the intended beneficiaries of the Vrede Dairy Project. And this issue was raised in all three complaints. So in cross-examination, it was also raised that the issue of the beneficiaries was a crossover issue, because it was raised even in the first cluster of complaints, but it was also part of the second investigation. So the questions that then arise from this short context are questions around whether the explanation she gave, or not investigating the third complaint was rational, or whether she then gave a proper explanation for not investigating the third complaint.

Chairperson: Thank you, Adv Mayosi. Hon Members? Hon Xola Nqola?

Mr Nqola: Well, thank you very much, Chairperson. Chair, I think from the onset there was no appetite from PPSA to investigate this matter. There was really no will. If you follow even the testimonies that we have received, in respect of the Vrede Dairy Farm Project. You know, as the summation was read here by Adv Bawa, there is a line where she is playing [the] blame game for the failure of the investigations, that the failures must be taken to the doorstep of Mr Samuel and Prof Madonsela; that is utter arrogance that which I think should not resonate with the office that has been established to protect the interests and the aspirations of the people in general. We have had stories from different testimonies of scheduled investigations or scheduled interviews with people of interest in respect of this investigation. A point in hand is an issue of the Premier of the Free State, who, by that time, was fingered to have played a role in terms of this project failure. But testimonies came here and said… witnesses came here and testified that they went to the office and the PP only spoke alone. And investigators were not allowed to ask questions from people who were suspected to have wronged the project. You have got a series of Gupta Leaks emails that point out some millions of Rands have been siphoned from the project to an offshore account. But that, as well, was said to not be sufficient enough for an investigation. Now, it tells you that there was no will to investigate, completely, the third complaint. The second asked question, Chair. Speaks about was there any rationale behind that. From where I am seated, I share the same sentiments as Hon Maneli, that from where I am seated, the non-availability of funds excuse is just blatant – it is a scapegoat. If you are able to have spiralling litigation costs, where you get clobbered in the review application, [in] the High Court; you go to the Supreme Court of Appeal, you go to the Constitutional Court and you get clobbered; you apply for a rescission in the… I mean, you do have that kind of resource, but you do not have that kind of resource to protect the interests of the poor of the poorest. These poor of the poorest, you came here to the Committee projected yourself as a paragon of protection of the aspirations of those poor people. So the point I am trying to make, Chair, is that although there was an attempt to give a rational, but from where I am seated, it was not sufficient. It was not a sufficient rationale why the third complaint was not investigated in completion. So it is a no, Chair. It is no. Thank you.

Chairperson: So in your view she failed to investigate the third complaint and there is no rationale?

Mr Nqola: Completely failed.

Chairperson: Thank you. Hon Mananiso?

Ms Mananiso: Thank you, Chairperson. I think one would say that, with the testimony that came before us, and how as well Ms Majozi has actually given us light in terms of what is before us. It really shows that the PP had all the details in her possession. However, she did not use that particular information to contact the beneficiaries. Therefore, as Hon Maneli could have, the PP has shown that [s]he had no interest or public interest to protect these particular beneficiaries. So one would say: no. Whatever the decision that she took at that particular time was not correct. Thank you.

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

Mr Mileham: Thank you, Chairperson. Chairperson, I concur with the previous speakers. I just want to add one thing in and that is, I think that the statements by the Public Protector in this regard go further than not just providing a rationale. I think she has misrepresented her reasons for not investigating this, in that at every turn she has offered different reasons and none of them actually are credible. So I think there is an element of dishonesty and misrepresentation in her reasons provided. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Do I have any further comments, Members? And do I have any different view or any dissenting view? None. Thank you. I proceed. We now get to paragraph 4.3 of the motion, chapter 1, part 2 of the evidence summation, pages 172-192, paragraphs 232-310. Perhaps to ask the evidence leaders to give us the refresher context again.

Adv Bawa: I am beginning to think that Adv Mayosi slipped all of the harder ones through to me.

Chairperson: Go ahead.

Adv Bawa: Chair, we divided this up into four categories, which you will see in the subsections under this charge, in the summation starting at 232, largely because we tried to follow some of the evidence that was before the Committee, so I am going to deal with it on that basis. But if you look at paragraph 232, it first sets out that one of the first steps taken by Adv Mkhwebane was to be apprised of investigations. You will recall from Mr Tshiwalule’s evidence, it gave a stick of the reports left behind by Adv Madonsela. So we know that this very early from her time when she took office, that he met with her on record. So what we detailed in paragraph 232, which we can see from the Rule 53 Record, is that from the time she takes office what is added onto the investigation, to do that. Then there was a bit of evidence that was before this Committee about Adv Cilliers’ involvement in the Free State and whether she was removed from office from the investigation or not. And given that the accusation was made, that she was…the reasons for her removal were important that we actually address that. And you should look at 239-240 of our statement; factually she actually remained involved quite a long time into the investigation in providing outstanding information et cetera – even after head office was seized with the investigation. So there was no evidence to establish that Adv Mkhwebane had removed Adv Cilliers from the Vrede investigation, irrespective of whether or not she believed herself to be a member of the DA or not. That is not borne out by documentation that we have. That does not mean that Adv Mkhwebane had not expressed such a concern to Mr Ndou, as to whether there was no basis on which to disbelieve his evidence in this regard. And I do not understand us to be doing that. But whether that was a reason in which it impacted on the investigation going forward, we did not see that there. Right? And then on the finalising of the investigation: what was important, if you look at 243, was that when Adv Mkhwebane accounted to the portfolio committee in March 2018, she indicated that the Vrede investigation had been close to complete by 2014. She said something similar to the High Court in her answering affidavit in 23 March 2018, that it was not feasible to appoint a forensic investigator or any expert service provider more than three years after the investigation is complete. That is a different response to ‘I did not have the money in 2018’ or 2017 ‘to do that’. That was the difference in the approach taken. And then we set out what some of the evidence was. And in 249, we looked at what the Parliamentary Monitoring Group’s report of the portfolio committee meeting in April 2018 revealed, and it showed that at that meeting, Adv Mkhwebane had indicated that the report was ready when she took office. And the evidence shows from what even the senior legal manager told her the day before the report was released – you have heard evidence and you have seen emails and draft reports and a detailed submission as to what to do that… Sorry, Chair, I just lost my train of thought. So essentially we know up to which point they were investigating and when they worked on the report and how they investigated what still needed to be done. There was an extensive memorandum provided to her January of 2017. The third aspect is finding against politicians and the varying views that came up from the witnesses as to whether or not she had provided… whether she had said she did not make any findings against politicians, and the evidence that had been relayed to the investigators and their understanding of it being relayed through Adv Ndou. And we make the point that… And her evidence in that regard is set out in which follows. We have looked at in this section. There is also the question about whether she had or had not granted… or whether permission had been sought from her to issue subpoenas – and Mr Samuel’s version was that he asked and it was refused. You will recall that his version was during the local inspection, her version was he was not at the local inspection; a photograph was produced to show that that was not so. So that was in respect of the steps taken and not taken during the investigation to do that and whether that was actually in fulfillment of her responsibilities under that, and her findings that there were no findings that could implicate politicians. And if you look at the Vrede 2 report then, they do have findings in that respect. And we detail that in 288 and 289, where the Vrede 2 report essentially, which is issued by her at the end of 2020, that the Vrede project was subject to political involvement and undue influence; that the politicians breached their constitutional obligations; that funds were improperly appropriated; and the failure by the politicians caused prejudice to the beneficiaries. All of these were based on evidence available at the time of the first investigation. And there was material to all three complaints, not because they dealt with politicians, because they dealt with improper diversion of funds to Estina and away from the beneficiaries. So there were many poor people who the project was meant to benefit did not get the benefit of the project – in a nutshell. So the Vrede 2 report does not, it was put to the Committee, that it had not yielded any reliability on the part of politicians. And that comes out in paragraphs 87 to 90 of the part B statement that she had put to it. And then we deal with the inspection of conducting interviews and the requiring of documentation. Chair, we know that, from the CR17 matter, from the get go subpoenas were issued, documentation was obtained, the Financial Intelligence Centre was engaged to obtain bank statements – we do not see that in the Vrede matter. We do not see the HOD (Head of Department), the CFO, Premier, the MEC (Member of the Executive Council) being subpoenaed to come and give evidence before the Public Protector, which we see in the SARS Unit matter and the CR17 matter. So we have six interviews conducted with a manager in the HOD’s office, the FSDC’s Chief Executive for Corporate Services, a Manager from the SA (South Africa) Holstein Breeders’ Association, the FSDC’s CFO and the FS Department’s General Manager: District Services, but we do not see the others having been interviewed. And we detail who should have been interviewed in 296 and some of them were able to be interviewed. If you have subpoena powers you can obtain cooperation in that manner. And in 297, we pointed out that Mr Nemasisi raises on the eve of the report coming out, directly in an email to the Public Protector – that is at 297 – where he sets out that the report was nonetheless finalised. And the reason why the 300 documents is set out – the documents that was, that could have been obtained but was not obtained. And then Mr Nemasisi raised that with her, as we detail in 301. And this is also raised in the judgment, which we set out in 304. And the reason given to the Committee suggested that none of this was done because there was enormous pressure from the DA to release the report. Chair, stakeholder engagements were referred to the source of the pressure, and that occurred, I think, in March or April 2017. And the only letter that was put before the Committee was the letter that was sent in October of 2017. And we know that Mr Maimane comes to the Public Protector’s office in December of 2017. There is no other… We have not found any correspondence from the DA, the complainant or Mr Maimane, in January or February where it says we want this report now and that he sits through the night on the 9th of February and finalise it. None of the investigators could shed light on why was it that that report had to be finalised then. And in some ways it is probably fortuitous that was because the warrants of 13 of the suspects was – we detail that in paragraph 307 and 308 – was issued on 15 February, and that would have made a number of the associates, the Gupta associates and family members arrested. I am not talking about the veracity of the charges they were arrested for. It seemed that it would have made it very difficult to come out with a report as it stood at that time if people who were not interviewed was (sic) arrested a week later; or if the report had come out, as Mr Nemasisi had sought, in late February, there would have been great difficulties for the PPSA because the Hawks’ investigation, at that time, was showing that imminent action was being taken. So maybe, in some ways, by coming out on the 8th of February they managed to get them without… And the documentary evidence then shows that Mr Nemasisi had highlighted a number of shortcomings. And, Chair, we know that the budget comes up. So that is essentially the issues arising out of 4.3; steps taken and more of a case of steps not taken in the investigation.

Chairperson: Thank you, Adv Bawa for clarity on that context. Hon Members, the questions that we interact with will be found from [paragraphs] 65-68. Were the complaints of a high importance and significant magnitude as alleged in the motion? In the light thereof, did Adv Mkhwebane take adequate steps during the investigation? If Adv Mkhwebane did not take adequate steps, did she offer a rational or proper explanation for her failure? And the rest, more specifically as an emphasis to Adv Cilliers finalising the investigation and so on. So your take, Hon Members. Hon Mileham?

Mr Mileham: Thank you, Chairperson. Chairperson, in response to the first question. The complaint dealt with high ranking members of government. It was a matter that had been high profile in the media. It was related to the Gupta Leaks and the broader State Capture narrative and corruption narrative that was a hot topic of conversation, both in the mainstream media and on social media. So I would argue that the first point is, yes, this was an important investigation and did need to be dealt with appropriately. With regard to the question as to whether or not it was dealt with appropriately by Adv Mkhwebane. I think that the answer to that is, quite categorically no. And we have seen a lot of evidence over the last several months as to why that would be, not least of which is that she did not even contact the beneficiaries, and she did not contact those implicated and she did not contact the heads of department that are applicable to this matter. So it was not thoroughly investigated. It was not dealt with, in a manner that addressed the complaint. And the rationale provided does not meet a standard that suggests that it has any basis in fact. It appears that this was a political motive on the part of the Public Protector to either protect or shield certain individuals from investigation. So I think that my answer to the first few questions is that it was not dealt with appropriately. I do not want to venture into the last few questions, if that is okay, Chair?

Chairperson: Thank you, Hon Mileham. Your contribution is taken. Any further Members who want to comment on the matter? Are there any further comments? None. Any differing dissenting views from what has been said? None. We then agree with what has been shared, that there would not have been any adequate steps taken during the investigation; no rationale or proper explanations for such a failure. And the first one to the affirmative. We then proceed from there. Thank you. We will go to the next paragraph, 4.4 of the Motion, chapter 1, part 2, pages 192-200 and paragraphs 311-347. Before we get to the questions, we will ask the evidence leaders to touch on the context.

Adv Bawa: Chair, Adv Mayosi has bailed on me, so you are stuck with me.

Chairperson: Go ahead.

Adv Bawa: Chair, this one is a bit complicated. So the quick answer to the question ‘Was the provisional report prepared by Adv Madonsela?’. We know that it is common cause that it was not. So it begs the question as to how the High Court comes to the conclusion, as it does, that “In February 2018 the PP published a report. It is of importance to note that the provisional report was done by the PP’s predecessor, Adv Madonsela, as these two reports have to be compared within the factual matrix of what occurred in the permutation and the execution of the project. The comparison of the findings, conclusions and proposed remedial action is inevitable.” That is what the litigants do, Chair. Part of this explanation pits into the next charge, 4.5, as well, in the following sense. In the Rule 53 Record it is represented that this is a draft provisional report prepared by Adv Madonsela. It is based on that representation in the Rule 53 Record that the litigants proceed from the position that it is her provisional report and that they in their affidavits then conduct this kind of a comparison and that the judgment then emanates from what the litigants put before court. That is part of the reason why the evidence leaders at the start of the summations tried to explain to the Committee that the court is guided by that which the litigants put before the court. And so we unpack what transpires before the court, based on the evidence and the Rule 53 that is before the court. And what is represented to Judge Tolmay and in the papers for the application for leave to appeal, that appears after that in doing that. So this November 2014 draft, which appears in the Rule 53 Record, is not the draft report which forms the basis of the Section 7(9) notice that goes to implicated parties. It seems to be a much earlier version, the genesis which we could not quite put our finger on because we were not sure if this was a report that had actually initially come from Adv Madonsela. And so we deal with all those explanations, and what we do not see is an explanation from Adv Mkhwebane before the High Court, where she tells the High Court that this is not Adv Madonsela’s report or that this is not the provisional report or that there were several draft reports, because none of it formed part of the Rule 53 Record. And so the affidavits answered by Adv Mkhwebane, premised as if this was a provisional draft report that emanated from Adv Madonsela. When one reads the affidavits then, one gets the impression that the draft status of it is not explained in doing that. In fact, she specifically refers to it in terms, and we say that in 323 of the note, ‘the provisional report of my predecessor.’ Although she explains that the provisional report is just an internal working document, with no legal status, she accredits that to the previous Public Protector. And so it is on that basis, in paragraph 328, we show the full explanation that is given in her affidavit to the Constitutional Court. And this is after the High Court judgment had come out, Chair, where she says “The provisional draft report had been completed by my predecessor, Adv Madonsela – you see that at 328 of the note. And that is the full quoted paragraph from Adv Mkhwebane’s affidavit to the Constitutional Court. Now, we know, Chair, because Mr Sithole gave that evidence that shortly after Judge Tolmay’s judgment was handed down, he went back to Adv Cilliers and he asked if there was a signed copy of the provisional report of Adv Madonsela. And Adv Cilliers says to him that there was never a provisional report. And we have this email exchange between Mr Sithole and Adv Cilliers. He did not confirm as to whether he had relayed that to the Public Protector at the time – I do not know. In the pace of the number of rejections to my questions to Mr Sithole, that is lost in the transcript, and I cannot recall whether that question had actually been answered. I do not see it on the transcript, so I may have omitted asking the question. But be that as it may, we do know from Mr Tshiwalule that he had provided the incomplete reports of Adv Madonsela to Adv Mkhwebane; so she would have known that there was no provisional report that had been finalised. She had also finalised the April provisional report, which formed the basis of the Section 7(9) notice. So, paragraph… charge 4.4, there is no provisional report for Adv Madonsela that we have. The explanation that I am providing you is explained in the paragraphs under this heading in this summation. We also see that there was (sic) significant material changes made to the draft that is discovered at court and it is explained in paragraph 341 what those changes were. And we make the point that what remains unclear is why the November 2014 draft was included in the Rule 53 Record, but the various other versions were not. Now, we also know, Chair, that Mr Sithole took responsibility for the Rule 53 Record. We said that it is the job of the officials at the office and not the Public Protector, to prepare a Rule 53 Record. In this instance, we do also know that she did finalise… did have an opportunity to peruse the index of the Rule 53 Record. And one would have thought that once the applicants had annexed this draft, the report on the founding affidavit that in the answer there would have been a realisation that the applicants had erred in understanding that to be a provisional report of Adv Madonsela. Thank you, Chair.

Chairperson: Thank you, Adv Bawa. On those three questions, Members. Maybe, even for emphasis, it does look like we already have the answers. But for what it is worth, I want you to interact, 69-71. Was the provisional report prepared by Adv Madonsela; if so, did Adv Mkhwebane materially alter the remedial action; if so, did Adv Mkhwebane provide a rational or proper explanation for the alterations? Your interactions or questions in this regard, Hon Members. Hon Maneli?

Mr Maneli: No, thanks, Chair. Maybe the first point is to accept that, yes, there may have been a draft report that has been termed the provisional report. And at the same time, a warning that says it is misleading to think there was as projected. And for that reason, I think for purposes of the Committee, now that we know that there was no provisional signed-off, it will probably be unfair, Chair, even though these matters would have been ventilated in court. But for our purposes, it would be unfair to even think of altering a report that does not exist. For that matter to be exonerated on that aspect, on all those questions; whether it is rationality or non-existent, there is really nothing there, Chair. But like I said, we do note that in court it is presented the other way around. It may be matters of misconduct, gross, in a way, because it is also misguiding the courts, for people to belabour on something – but that is for the courts. For purposes of the Committee, I think, she should be exonerated on that because there is really no alteration.

Chairperson: Thank you, Hon Maneli. Any further comments? None. Any final remarks from your side? None. Thank you. We proceed to paragraph 4.5 of the Motion, chapter 1, part 2, pages 200-203, paragraphs 348-362. What explanations did Adv Mkhwebane give under oath for her failure to investigate in the Vrede matter, were those explanations contradictory? Any take from Adv Bawa or Adv Mayosi? And then I go to Members.

Adv Bawa: Chair, I already addressed the issue of this provisional report. There is another issue that arises from, I think there are about three other issues, the judgments. One of them is that there is a statement in the judgment… The statement to the Committee is that politicians were clearly investigated. She was empowered in terms of the Act to determine how the investigation must be conducted. In this case, having determined that the procedure of the Vrede investigation, as a result of financial constraints, was to be carried out in two parts. The Committee is told that in paragraph 89 of statement part B. So the Committee is told that there was going to be a two-part investigation, and the politicians were investigated. The judgment states: “The PP, in addition stated in her affidavit that she exercised her discretion to opt out and not to investigate. The suggestion in the answering affidavit that she deferred the investigation, stood in direct contradiction with the statement that she decided to opt out.” And that is the judgment at paragraph 96. And then, in the affidavit to the Constitutional Court, on the one hand, it is set out that aspects of the third complainant dealt with and then proceed to point out aspects as to why the third complainant was not dealt with. And then that must be compared to the earlier affidavit in the High Court that said ‘I could not actually deal with the third complaint because by the time it came along, the investigation had been completed’, in respect of the first and second complaint. We have also dealt with the contradiction and the allegations relating to non-compliance with environmental legislation already, [so] I am not going to go back there. We do know, Chair, that the first step after the court application, was to take a position not to oppose the application and to file what we call a Rule 53 (1)(b) affidavit, which accompanies the record and you explain why you are binding the decision and you provide reasons. In that affidavit, the reasons given were capacity and financial constraints prevented the office from investigating certain issues. And we have dealt with that aspect already. But then subsequently, the review application was opposed in its entirety. Every aspect of the review application was opposed. And one of the things stated in that review application, is that she had utilised the statutory opt-out option not to investigate those complaints that fell within her jurisdiction. And, Chair, we, in the note, deal with the notion of a statutory opt-out and whether as a matter of law, she has such a statutory opt-out; and that is also dealt with within the judgment, which we have dealt with before. There is nothing in the report that indicates that any part of the investigation was deferred for later and until the portfolio committee took the issue up in a meeting with her. Then two aspects of those that had been left outstanding were investigated. So the evidence indicates that there was no deferment. And this is contrasted with the SARS unit investigation, where it is expressly, in the report, it is stated there was 14 complaints – I am dealing with 69, I am leaving 8 for later – that does not happen in the Vrede report. And when it comes to the appeal, Chair, in paragraph 11 she says “I have, in fact, investigated the issues that the respondents claim that I have not. I have reported on them and I have made appropriate remedial action.” So there is a bit of contradiction between opting-out and stating ‘I did not decline to investigate any complaints lodged’ – which you see identified in paragraph 366.1, which we thought was a fundamental difficulty between the various affidavits. So we have highlighted essentially three or four aspects in comparing the affidavits. Thank you, Chair.

Chairperson: Thank you. Thank you, Adv Bawa. Hon Members, that would have been the response or context to paragraph 4.5, in terms of those two questions. Any takers? You are happy? You have no view? [You] agree with what we are saying? Okay… I have raised them already. What explanations did Adv Mkhwebane give under oath for her failure to investigate in the Vrede matter, were those explanations contradictory? Any comment, Hon Maneli?

Mr Maneli: Chair, now that we have the questions repeated again. I think it is clear from what has been put in the summation that there have been contradictions, from what is being said at different levels. I start from the report, Chair, deliberately all the time because the report gets to the… So the explanations, as you were, were contradictory. To a point that you would not know if they were investigated or not, because at one point they are covered as one [and] the other time it is something else. That is what I will submit, Chair. I move to agree. Thank you.

Chairperson: Thank you, Hon Maneli. Is that agreed? Any differing view or comment? No dissent? We all agree. We proceed to the next paragraph. We now get to 7.2.1 of the Motion. And therefore, there is an important point to make here is that most of these principle failures are dealt with under other charges, so that is a bit of an overlap. And then we will speak about the investigations and the remedial action. I am going to ask the evidence leaders to touch base on that, as a context. We are almost there on Vrede. You might want to combine that with 7.2.2 of the Motion or even 7.3.

Adv Bawa: We have not… There is an overlap, so it is good that we are looking at the actual evidence to that. So what we do, we have referred to the investigation, including the failures to address a number of issues that had occurred and the absence of the interrogation of a number of the key players, the use of subpoenas, the need to get interviews and bank statements – that all falls under 7.2.1. We have dealt, under 7.2.2, with the absence of the beneficiaries involved in the investigation, which I think is not disputed. We know that there is the lack of a meeting with the Premier and the political officials. And we have, again, an incident which occurs outside of it but which corroborates earlier versions of the meetings that were held without recordings. We refer to it in paragraph 387 and 388, not because it falls into the terms of reference of this Committee. We must be very clear that the Vrede 2 report is not part of the Committee’s mandate, but it is useful to refer to it for purposes of showing what could have happened in the Vrede 1 [report]. So, that is dealt with in the ensuing paragraphs under that. And then under.. So the lack of interviews, et cetera, is dealt with. So that takes care of 7.21 to 7.23. So, one of the other aspects that I must bear with under that… Okay, so that takes care of 7.21 to 7.23, Chair.

Chairperson: Thank you. Thank you, Hon Bawa. So I would ask that we attend to three paragraphs because of the overlaps and similarities. So we will start with paragraph 7.2.1, firstly, dealing with investigations, as would have been covered. Issues of what would have been required for lawful and a meaningful investigation. Did Adv Mkhwebane demonstrate a failure to achieve that standard? And on remedial action; what would have been appropriate remedial action? Did Adv Mkhwebane demonstrate the failure to impose such action? And paragraph 7.2.2 of the Motion: what was the Public Protector’s duty to the intended beneficiaries of the Vrede Dairy Project? Did Adv Mkhwebane fail to comply with this duty? And paragraph 7.2.3. Did Adv Mkhwebane fail to investigation issues in the Vrede matter; and if so, did Adv Mkhwebane sufficiently defend this failure in her litigation challenging the Vrede report; if so, did Adv Mkhwebane demonstrate a failure to appreciate the inadequacy and negligence of her investigation? Okay, let us start with the first one. Your comment on that, so that I do not leave you behind? Unless Tshepo has become even more slow. On that, on the issues of investigations and remedial actions under that paragraph. Do I have takers? Nobody? [Are] You happy? You have no view? Hon Xola Nqola and Hon Mileham.

Mr Nqola: Chair, all government institutions, particularly the provincial governments, are governed by the Public Finance Management Act. So one would have expected the Public Protector to have done a great investigation in terms of following if the procurement processes in procurement is followed in terms of awarding the project itself; that, are the said beneficiaries of the project actually benefit. What has been [the] irregularities in the project, if any irregularities. What are the objectives of the project, because there is a use of the public funds, huge amounts of public funds. So, that would have been, in my view, an investigation that ought to have been done. But from where I am seated, Chair, I can safely say that was not done in a way that it should have been done. The second question, Chair, that speaks on… You know, there is an undisputed fact that the Vrede Dairy Farm was a failure. Having public funds used in a failed project. So, the expectation of society would have been, in terms of the remedial action, to actually provide what needs to be done; who, within the government, has been in the wrong; and what actually needs to be done. But when you check, thoroughly, the report you do not get really to that extent – if I still recall the remedial actions of the Vrede Dairy Farm. So, from where I am seated, Chair, the Vrede Farm investigation has failed. It has failed and it has failed as well. Thank you very much.

Chairperson: Thank you, Hon Nqola. Hon Mileham?

Mr Mileham: Thank you, Chairperson. Chairperson, I agree with Hon Nqola, regarding the lack of investigation. And because there has been a lack of comprehensive and lawful investigation, I feel that you are put in a position where there is no finding on which you can base remedial action. So to speculate what appropriate remedial action should be implemented, is very, very difficult. Also, we are not the Public Protector. We do not have the expertise or the experience or anything like that, of dealing with that kind of situation. And we should not try and project or speculate what remedial action might be appropriate. I think that is a stretch too far for this Committee. Chairperson, if I may, I would like to address you on 7.2.2. Can I go ahead on that?

Chairperson: Please, go ahead.

Mr Mileham: Thank you, Chair. Chair, the question of the intended beneficiaries and the failure to interview them is of great concern to me, because this Public Protector has put herself up as the protector of the Gogo Dlaminis. And if ever there was an example of Gogo Dlamini, it was the beneficiaries of Vrede Dairy Farm. So her failure to appropriately deal with this investigation, her failure to interview them, her failure to interact with them and consult them and keep them apprised of the state of her investigation, to me is utter hypocrisy when it comes to her claim to be the protector of Gogo Dlamini. Thank you, Chair.

Chairperson: Thank you, Hon Mileham. Any further Member wishing to comment? Hon Maneli and Hon Sukers.

Mr Maneli: No, thanks, Chair. I also agree with that. The investigation would have not been what would have been expected for a meaningful explanation, because from the report we have, Chair, in the categories that needed to be looked at, we have already traversed that part; where it is demonstrated that important matters were not looked at. The ones that Hon Mileham has spoken to now, about the beneficiaries. And remember with the beneficiaries there is a lot linked to that: death of the animals, in fact that is what the farm is about. So the essence of having the farm is what is not investigated as to why they just disappeared. But another thing is that [when] an investigation gets to be done, you take into account other investigations that may have been done in relation to the same matter. In this case, it is the National Treasury. And the National Treasury could not avoid that aspect of the provincial government, and the Provincial Treasury, as this would, even in the words of the PP, not comply with the Triple Ps, as promoted by the government. So that is an area that needed to be looked at, because that is where the money actually disappeared… I would say, it is the hijack of government funds intended for the poor, taken by a private company for something else. There is no consequence in that, because you would either justify that it is not an area I get into because it is private or I did not have expertise to investigate at that level. Therefore, Chair, then the remedial action surely will have those shortcomings because for those areas that have not been looked at, you cannot say anything that will be done, because they would not be part of the report that you are looking at. And it might be justifiable, therefore, for such beneficiaries, to say yes, the investigation has been done, but the interest of the public has not been protected in this regard. Of course, private companies may have the resources to get lawyers, but surely the reason why the public will continuously knock at that door is because that protection could come with ease from the Public Protector. So that will be my contribution, Chair. Thank you.

Chairperson: Thank you, Hon Maneli. Hon Sukers?

Ms Sukers: Yes, Chair. I actually just want to underscore what was said by Hon Mileham around the Gogo Dlaminis. If you look at the Estina case, what is really sad is that this, for me, is a grotesque deviation from the standard the Public Protector professed from the get go on the stand when she was delivering her, sort of, what drives her – the values that drives her. And I want to underpin what was said here by Hon Maneli, the interests of the public, the interest of the most vulnerable, and the voice of the people of Estina. And the fact that we have people or companies that can protect themselves and then the interest of the very people, the poorest of the poor, whose only defence is the Office of the Public Protector, we cannot fail to underscore that because that is to the heart of the very mandate of the Public Protector’s Office. I think it is important to note that. And as well, where the issue of resource planning, as said earlier, the values that drives that office, as given by the Constitution, those aspects are critical issues for us, as Parliament and for this Committee, when we look at the charges in terms of the impact and the failure then of the Office to ensure that proper justice is or investigations is done in order for those individuals to get justice – the poorest of the poor. Thank you, Chair.

Chairperson: Thank you, Hon Sukers. Any other Member? I think you would have covered these different areas. Maybe the last things to raise that you need to still comment on. Having said all of what you have said, it will be important to indicate whether you think that Adv Mkhwebane, therefore, demonstrated the failure to appreciate this inadequacy and negligence of her investigation; and whether she failed to appreciate her constitutional duty to conduct a lawful and meaningful investigation? Hon Maneli?

Mr Maneli: Thanks, Chair. I probably would have said it in different ways, but that is actually what you are saying once we focus on the public being protected. And once that fails, then to call it Public Protector gets to be under question. Thank you.

Chairperson: Thank you, Hon Maneli. Thank you for that emphasis. If there is any different view? If none, we proceed. Colleagues, I now want to proceed to the next three paragraphs and the last part of the Vrede. And I am going to ask Adv Bawa to lead us there or Adv Mayosi, on paragraph 7.2.4, 7.2.5 and 7.2.6.

Adv Bawa: Chair, can we do them one at a time?

Chairperson: No problem. It helps that way.

Adv Bawa: So mindful that the remedial action lies with the investigation by the Public Protector, one looks at – it is at paragraph 396 – as to the appropriate remedy or remedial action to offer. Now we know that there is a system where before a report goes out, legal services consider the rationality of a report and identify its shortcomings. Again, Mr Nemasisi identifies a number of concerns he has in respect of the Vrede Report on the eve of its release on the 8th of February. Nowhere, at any stage, before the courts and before this Committee has there been any acknowledgment by Adv Mkhwebane that there have been any inadequacies or material deficiencies in the Vrede Report – either by the High Court or before this Committee. So we start off by identifying that evidence is not before the Committee. We know that in the remedial action which was proposed in the report, mindful that this Committee does not step into the shoes of the Public Protector to propose alternative remedial action. You can only point out what is the remedial action that was proposed by her legal advisors and her investigators that was taken out in the report and what it was replaced with. And so we do that from 399, where she says that a ‘cow-reconciliation’ undertaking must be given by the Premier to assess how many cows are there. But the Premier had previously given an undertaking that he would do a value for money assessment – but that is not one of the remedial actions that is ordered in the report to make it binding to do that. While she admitted that monies were paid and used for purposes, other than what is intended, there is no remedy in there to recover or ascertain where that money has gone to, even though that has been raised. In her answering affidavit before the High Court, she removes a recommendation that has been made that the AGSA (Auditor-General of South Africa) commissioned a forensic investigation – if you look at 403. She explains that she took that out of the report because the institution does not do forensic and due diligence investigations and the PPSA cannot assign functions to the AGSA. Again, we juxtapose that with the CR17 report, but under powers of the Public Protector. In fact, she can… The AGSA personally does have auditing and reporting powers and the Public Audit Act gives it certain additional powers, which we have set out. So we do not think it is correct that the AGSA could not have done what was being sought to be done as a matter of law; it would not have amounted to an impermissible assignment to the AGSA. We also note that there was a suggestion that there be an order or a remedial action given that the Treasury report be implemented, and that they be an investigation into the funds that were paid to Estina, by the AGSA or an independent firm, with a proper assessment being done – that was removed. And the reason given for that was by the time the report was issued, the Hawks and the AFU (Asset Forfeiture Unit) was already attending to the recovery of irregular expenditure. Again, we juxtaposed that with the position in the SARS report, where we had several investigations already conducted. And so the High Court found that the omission of findings of irregular expenditure in the report was inexplicable and that it could not be justifiable, unless it was done for some ulterior purpose. But no explanation was provided, further to, on those changes that you see at the judgment of paragraph 75. One of the things that is of relevance across the board, is that Mr Nemasisi seeks to put the recordal in there that the authorities may wish to investigate money laundering, and the Public Protector, in turn, sets out in her answering affidavit that she does not have jurisdiction to investigate fraud, theft and money laundering; these would have to be referred to the Hawks as the appropriate body to investigate such allegations. Again, we know that in the CR17 matter there was an investigation conducted into the allegations of money laundering. We know that in paragraph 419, there was no direct wording to tell the Premier to take disciplinary action against any particular person – not against the CEO, not against the CFO – but to initiate and institute disciplinary action against all implicated officials. In other words, it is left to the Premier to decide who is implicated. And from what the Premier had previously told the Public Protector, he did not believe that the CEO was implicated in irregularities. So there is that difficulty with the relief that has been issued. Again, the Public Protector took the stance that under the Public Service Act, only the Premier could do that and that the MEC had no power to discipline a provincial HOD, that under the Public Service Act it is the executive authority responsible, and that can be the MEC to do that. So that comes to the end of 7.2.4. Thank you, Chair.

Chairperson: Thank you, Adv Bawa. With that background and context Members, if you could respond to those three questions. Was the remedial action contained in the final Vrede Report inappropriate; if so, was Adv Mkhwebane unable to comprehend and accept the inappropriateness of the remedial action in the Vrede Report; and if so, does that show legal ineptitude on her part? These are matters of competence as well. Any comments? Any hand, either here or in the air? Do you agree with this or you have no view to take? Yes, Hon Maneli?

Mr Maneli: Thanks, Chair. I am sure you would see it is not just about how far we have gone, but it is because as these questions come they are, like, repetitive in that we would have dealt with them before.

Chairperson: I do not mind repetitions. Switch off [your mic], Adv Bawa.

Mr Maneli: So, I think, given the passage that we have gone through, you would come to that point that there is that problem of understanding the legal side of things. At one point you understand your powers to be quite wide – that is the word we have used throughout this – and then it is limited now, when it has to really strike where it is supposed to strike. Like I initially said, if the Treasury recommendations were taken into account, also to ensure that the government does implement those, and not maybe accept that if the executive authority says ‘No, there is no reason to discipline an HOD who is an accountant, under which these things would have happened.’ Of course, as it gets… I am saying, just, on the passage we have dealt with. The part of even removing when it is put for you to consider by investigators and so on, again, goes against what the Committee has been made to believe, the respect that is given to the work of investigators, as a way of proving that there is no interference to what investigators do. But at that critical moment when those recommendations are to really bite, they can be temporary in that score, in the sense that indeed, in the attitude of the legal advisors becomes an issue. And for me, I know, Chair, we are talking to competence. But, again, not do duties and misconduct when you are supposed to do it, in that you have conducted yourself in the way you are supposed to do. But I am just saying I know it is asked from the competence point of view, but really, there are things you should not do and you know you should not do and you still do those. Thank you.

Chairperson: Thank you, Hon Maneli. Any further comments? Any different views? Are we agreed? Okay, thank you. We proceed to the last paragraph, 7.2.6. Adv Bawa?

Adv Bawa: Sorry, Chair. I am just looking for 7.2.6.

Chairperson: Part 2, pages 223-236. Is there something you are looking for?

Adv Bawa: Ah, okay. Sorry, Chair. Okay, it comes from paragraph 457 onwards. And it looks, Chair, as to the extent to which the representations to court is a reflection of the investigation that had occurred and what had taken place. And we go through the gist of the affidavits; her answering affidavit in respect to her meeting with Mr Maimane, what is said in the Rule 53 affidavit, and what she appraised the Vrede High Court and Concourt in respect of the November 2014 draft report – which we already covered at 463. And in 464 she takes responsibility for the contents of the Rule 53 Record. And we set out in 464 all the versions of the report that would have been circulated, and in existence, that did not make its way into the Rule 53 Record. And those are listed at 464, including the comments and how it reflected into the final version going in. And you will see, specifically, at 464.10, that at 20:20 on the night of the 7th of February, due to capacity and financial constraints, experience is recommended to the report. So it is not something that was at the back of the mind of the investigators at the time of the investigation or through it. And then we see a number of changes that is made at the report, and that goes through that, including Adv Raedani’s account of how the report gets changed between himself and Adv Mkhwebane at the time. So that explanation is provided on the basis of the oral evidence and the documentation. So it then sets out… None of that appears in the affidavits before, Chair, nor is there an explanation as to why certain things were left out. And if you go and just skip up one bit, because I think we have skipped over something that was in the report. If you go to page 218 and paragraph 436. I did not deal with all the aspects of conducting an investigation but this is one example of where what was in the penultimate draft was a picture of the gate that had been built, which was said, with the guardhouse, to cost R2.6 million. Mr Nemasisi points out that this was an obvious indication of overpayment. The Premier comes back and provides an explanation that actually the cost included the purchase of a guest house, which was required to house the people working in the project. This is indicated without any evidence of a title deed.

Chairperson: You are not saying that is a picture of a guest house?

Adv Bawa: No, guard house.

Chairperson: Oh, guard house. Okay

Adv Bawa: Guard house, Chair.

Chairperson: Okay. Probably R60 000?

Adv Bawa: R2.6 million.

Chairperson: Oh, wow.

Adv Bawa: But we [are] told that this guest house was prepared in the town of Vrede to accommodate individuals responsible for the implementation of the project, not the beneficiaries – there is other (sic) individuals that is there (sic) and that it is necessary to buy this property. And this appears to be accepted without any provision of evidence or any further investigation. And there was no documentation provided. So that is but one of the aspects of some of the explanations that was not provided. And that is how we come to the conclusions that we do. And you will see in paragraph 493, where Adv Mkhwebane tells the Committee that “the Vrede matter represents part of the mess and unacceptably neglected matters which I found on my desk. This investigation should never have taken four to five years to complete. I did all I could to attend to it. and there is no evidence of the alleged agenda to shield certain politicians which is at the heart of this charge.” And, Chair, we have pointed out to the Committee that it does appear that from the time the first complaint was received in October 2016, Adv Mkhwebane assumed office, and the investigation undertaken and the draft report produced appears to have inadequately with the three complaints. We do point out that the Committee is seized with determining whether there was misconduct and/or incompetence on the part of Adv Mkhwebane during her tenure as Public Protector. So you investigation is what did she do from October 2016 onwards, and whether she took the necessary and reasonable steps to address, i.e. the mess she found on her desk when she assumed office, in dealing with that. And we have, in the course of after taking you through… And I have only given you snapshots because it does not behold me to read everything that is contained in the summations as been provided to the Committee. I have highlighted certain parts of aspects what was said to the court and what else was dealt with. I hope that covers that, Chair.

Chairperson: Okay, thank you, Adv Bawa. Over to you, Hon Members. Having heard that, your response to those two questions: what was the Public Protector’s heightened duty to the court as a public litigant? Did Adv Mkhwebane fail to appreciate that duty? As you said, Hon Maneli, you would have come but I deliberately want a… You do not put zero on [the] record. Hon Maneli?

Mr Maneli: Yes, I am saying, Chair, we have already given a yes of misconduct on that part. Thank you.

Chairperson: Thank you, Hon Maneli. Any other view – a dissenting view on that? Okay, now, Adv Bawa or Mayosi, any remarks you want to make, I think, on this? Though there are overlapping matters, we might have to do that when we go to the next. But this is Vrede. And I would suggest that it is now 20:13. I think we have pushed it. Unless, Members suggest that we can go to the next one, or we pause here for the day. The plan was for us to continue if we are not finishing today, [to do so] tomorrow. So I need to get indications from Members, because I think this is a point where we want to pause so that you go and recharge. I appreciate the kind of work that you have done. And it is getting much better as we went along. But it is important work that cannot be delegated – it has got to be done by ourselves as Members. So, may I hear what Members think? If you are silent, I will indicate on your behalf. Tomorrow at 10:00 is a plan for us to reconvene, and then we can go through the FSB, SARS, Gordhan, CR17 [investigations] and those general matters; that is what is now outstanding for us to conclude. So it does mean that we do need another full day to go through that. Hon Maneli?

Mr Maneli: Thanks, Chair. I am not sure what Hon Members would say. I would have thought, Chair, that we are here and we have no guarantees of tomorrow; we can only guarantee that we are here.

Chairperson: I agree with you. Yes.

Mr Maneli: So I do not guarantee tomorrow, Chair. That is all.

Chairperson: So you suggest that what we have let us proceed?

Mr Maneli nodded his head in the affirmative.

Chairperson: Thank you, Hon Maneli. Hon Sukers?

Ms Sukers: I appreciate the sentiment of Hon Maneli, but I differ on that, Chair. I, firstly, want to say that, as you are aware, we have a constituency program as well. So my suggestion, Chair, is for Monday for us to proceed. I think we have had a long delay. And for us, coming back today, it took a bit to get our rhythm, I think in terms of the process today. But I would really implore, Chair, that we proceed on Monday for the second day. And I can see your face, but I will not try and read your face, as you said. So I differ with Hon Maneli. It is now 20:00, Chair. And I do think we must appreciate the pressure and the schedule of Members. Thank you.

Chairperson: Thank you, Hon Sukers. No, I take your point of the delays. I was just curious, you want another delay? But that is on a lighter note. Hon Lotriet?

Dr Lotriet: Thank you, Chair. I would just like to know, if you have a sense of how many items we still have to deal with, so that we can have an indication whether tomorrow is needed, the next day is needed. If we can finish it tonight, well, then we can.

Chairperson: Yes, just pause there so that we can explain what else we have so that it can determine tomorrow. I was just saying and maybe, Ms Ebrahim can assist, we are left with the Financial Services Board part of it, the CR17, the SARS, Gordhan, and then those general matters. But, Adv Mayosi?... And the first two that we have started with, in terms of their length and what we had to go through, it was important that we did what we did. And it might help us with the next ones that are coming. But I will ask them to respond and then come back to you, so you can continue with your contribution.

Adv Mayosi: Thank you, Chair. You are quite right, Chair. What remains now is the FSCA matter which falls under incompetence, I think, charge three.

Chairperson: Yes.

Adv Mayosi: And then we move onto charge four, starting with what has generally been described as the HR issues where there are allegations of harassment and so on against staff in general, but also in relation to certain named individuals in paragraph 10 of charge four. After that, we will then move to 11.1, which talks about the effectiveness or failure to effectively manage internal capacity and management resources. After that, we will then deal with the costs issue – fruitless and wasteful expenditure – which is alluded to in 11.2, paragraph 11.2, of the Motion. In paragraph 11.3, the SARS Unit matter comes in there. So we will deal with that; SARS Unit, GEMS and other related issues. And then we go to 11.4, which is the CR17/Bosasa [matter]. So that is what remains and we basically deal with it in that order.

Chairperson: Okay, Hon Lotriet?

Dr Lotriet: Sorry, Chair. Yes, it is slightly difficult to put a time on that, and these are some important matters.

Chairperson: We need a day.

Dr Lotriet: Sorry?

Chairperson: We need a day, a full day.

Dr Lotriet: Another day?

Chairperson: Yeah.

Dr Lotriet: Okay, then we will not be able to finish it this evening. So then you will have to schedule. I can also indicate that on Monday, it would not be a very good day for most of our (DA) members. But it is in your hands. Thank you.

Chairperson: Okay, what are other Members saying? Thank you, Hon Lotriet. You have tomorrow. As you said, you do not have… Hon Maneli and Hermans.

Mr Maneli: Thanks, Chair. We are trying to look at a manageable day. No, we are just saying, Chair, we are happy that you are not considering tomorrow. And that we can look at another day; of course, Tuesday, maybe, because of what Hon Lotriet would have raised? And even with other parties, Monday might be troubling.

Chairperson: Maybe as I go to Hon Herman… So the choosing of a day, and it starts with Hon Sukers, we are operating within a particular timeline, so that people do not stretch it. We have to conclude, exactly as we did today, what we must do, in order for us to send out… Because once we conclude, we are going to need to have that report cleaned, adopted formally as a draft, send it for comment by the person who is a subject of this Inquiry, and then it gets tabled to the NA. So I do not want Members to stretch as if they have time in their – we do not have. We have a programme. And we need to, as soon as possible, conclude so that we avoid the delays of [Hon] Sukers. So I am trying to hold her back from creating a further delay. Hon Hermans and Hon Mananiso.

Ms Hermans: Thank you very much, Chairperson. My surname is pronounced Hermans, not the Afrikaans way that you say it. I am not Hermaans, I am Hermans. On a lighter note, it has been a long day,

Chairperson: Thank you. Thank you for that.

Ms Hermans: Chairperson, tomorrow is, as Hon Sukers has said, I also have a programme in my constituency tomorrow. So it will… tomorrow will be difficult. I would have opted for Monday, but now we hear that there is a difficulty for Hon Members of the DA. But the rest of the week, I have Parliamentary responsibilities. But I am confident that we can continue if the majority of Members are present. Thank you, Chair.

Chairperson: Thank you, Hon JH. As I go to Hon Mananiso. You have Sunday and Monday. Hon Lotriet said if it needs to be, she will be fine with any of those. So it is not Saturday because you have programmes, we still have Sunday and Monday. We do not want to stretch this and then it gets into other commitments. Hon Mananiso?

Ms Mananiso: Thank you, Chairperson. Okay, which means mine is not relevant because I was with Hon Maneli, to say at least Tuesday, because we know some of us on Monday, already, we have commitments, as we are celebrating the last day of Mandela day. Thank you.

Chairperson: Thank you. And, yes, former President Mandela would like you to conclude your parliamentary duty. Hon Nqola?

Mr Nqola: No, thanks, Chair. Now that we have got a number of different suggestions; I want you to come with a neutral suggestion that will help the progress. I want to propose, Chair, that we sacrifice Church, and dedicate Sunday, so that the actual drafting starts Monday morning to just work on the report, so that we do not find ourselves delaying ourselves, because we have been complaining about delays. Thank you very much.

Chairperson: Thank you, Hon Nqola. There we have it, Hon Members. It is either Sunday or Monday – I do not know whether Sunday was part of your caucus, but Sunday is also brought to the picture. What is the take, Members? You cannot take this long. It is important that we conclude this work.

Ms Mananiso: Chairperson? Chair?

Chairperson: Yes, Ms Mananiso.

Ms Mananiso: Yes. Thank you, Chairperson. I think that one agrees with Sunday, so that we conclude the issue. Thank you.

Chairperson: Okay. Is that agreed by other Members as well? Hon Lotriet?

Dr Lotriet: Yes, Chairperson. I think the less time we have between today and the next session is advisable. So I have checked with our Members, it will be fine.

Chairperson: Thank you. Sunday was supported, thank you. Hon Sukers, you are the last one to support Sunday.

Ms Sukers: I am definitely not supporting Sunday, Chair, but I will have to stand with whatever the Committee has decided.

Chairperson: Thank you, Hon Sukers. Members, just to my team – you available for us to do this on Sunday? Thank you. So we agreed, therefore, colleagues, we are doing it on Sunday. And we will conclude it on Sunday. As Hon Nqola was saying, whilst we do that, we need to allow, as we do in Committees, for the cleaning up of that report. The time for Sunday, what is it? It is 10:00? Is 10:00 fine with everybody? Thank you. But being Sunday, it means we will able virtual. Is that in order, Hon Members?

Ms Mananiso: In order, Chair.

Chairperson: Those that are virtual cannot say anything because you are not here. I am referring to the ones that are here at M46. You're already virtual, so we will join you on Sunday on virtual.

Ms Hermans: No, I want to propose 09:00, Chairperson.

Chairperson: You wanted 09:00, not 10:00?

Ms Hermans: Yes, Chair. Let us get the work done.

Chairperson: Members, is that pushing it? Is 09:00 okay? What are you saying?

Ms Mananiso: 09:00 is okay, Chair.

Dr Lotriet: Yes, Chair, 09:00 is fine.

Chairperson: Thank you. We are therefore agreed on Sunday at 09:00 on the virtual platform. As Adv Mayosi took us through, you will follow those. It also gives you an extra time to just, now that you know you see this exercise, you use tomorrow and so on to make sure that you sharpen yourself around that, so that by Sunday we become much more smoother than we were today. We want to appeal that you do that. This is your work. You have done this work. Sunday is about bringing it all together. It really is a difficult task that you have been doing, so we cannot fail in the end. So thank you very much. The meeting is now adjourned. Thank you.