PP Inquiry day 27: Muntu Sithole

Meeting report

The Chairperson welcomed everyone back to the hearing after a long break since 26 August 2022.

Evidence Leader, Adv Nazreen Bawa, said that when the Committee had last adjourned, Adv Dali Mpofu was in the middle of cross-examining Mr Muntu Sithole. There was an aspect which she had not dealt with in Mr Sithole’s evidence, which related to the question of the legal costs for the litigation and court orders that had occurred during the term of office of Adv Mkhwebane as PP. By agreement with Adv Mpofu, this question would stand over to be dealt with either when Adv Neels van der Merwe, Senior Legal Manager gives evidence, or it might be better, and by agreement with Adv Mpofu to have Mr Sithole as he assisted to a large part in drafting the schedule of legal costs and people may have questions on that. She would screen this summary and explain it to the Members, so that if Adv Mpofu had any issues he wanted to raise in cross-examination then that could be done. She would give the Committee some of the costs, not all, as the evidence leaders were having to verify some figures. She would provide the remaining case costs to the Committee when Adv van der Merwe comes and gives evidence. She requested that the summary of judgments and orders be flighted.

Legal costs in judgments and orders and pending matters
Adv Bawa took the Committee through the five different folders and gave an explanation. The motion raised the legal costs incurred in paragraph 11 of the motion. It read, “Adv Mkhwebane has committed misconduct by and/or demonstrated incompetence in the performance of her duties by filing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs.” These were essentially a summary of the judgments during the period of her being in Office.

5. Judgments/Order arising from reports preceding Adv Mkhwebane's term: legal costs spill over
Folder 5 were cases which would have finished off during the period of Adv Mkhwebane’s term of office which had commenced when Adv Thuli Madonsela had been in Office. The evidence leaders had used colour coding to assist the Committee in their deliberations. Bright yellow indicates the PP was successful in the case. In the last column was the amount of funds that on a bill of costs would have reverted to the PP Office as costs earned or recovered from the litigation. It lists the attorneys engaged in the litigation matter. Sometimes private attorneys were engaged which would not necessarily be reflected, but these were the ones on record.

• No. 19 to 21 had been lost and costs were ordered to be paid.
• No. 22 to 24 were dismissed, but there had been no order as to costs.
• No. 26, 27 and 28 did not relate to reviews of reports.
• No. 29, 30 and 31: Mr Sithole gave evidence of cases in which the current PP had taken a decision that the notice to oppose would be withdrawn. Those included three matters that commenced under Adv Madonsela of reviews of State of Capture and Secure in Comfort reports. Those matters have to date not been finalised. The litigants had not done anything to further that litigation, and the PP had not opposed it, so it had just been lying there – although, Mr Sithole said that in the one matter it had reached an application for leave to appeal to the SCA and had been refused. However, there were still other applications pending.
• No. 32 and 33 were matters not of a review nature, which were still pending.

1. Reviews and related applications under Adv Mkhwebane
Folder 1 was the cases under Adv Mkhwebane and they had been grouped together as primarily dealing with the same kinds of cases.
• No. 1 and 2 is the CR 17 matter in the Constitutional Court and in the Gauteng High Court. In the cost column, if the block is not yellow, then the costs had either been not ordered by the court i.e. no costs. The other costs were for the account of the PP.
• No. 3 is the litigation in the Absa Bank / Reserve Bank / CIEX report. At number five there was an item in red, which said there was a court order or the bill was taxed in the amount of R1.5 million, which is what the PP had to pay in costs to Absa Bank, of which 15% was for the account of Adv Mkhwebane as ordered.
• No. 7 to 18 were the Gordhan cases dealing with the pension, and either relating to the IGI report disclosure as interlocutories or the SARS unit litigation.
• No. 19 dealt with the Vrede Dairy cases.
• No. 20 in blue was the cost order made against Adv Mkhwebane. The figures in red reflected the untaxed bills that had been submitted, which still have to be taxed and paid in this matter.
• No. 24 onwards was the challenge to the subpoena powers of the PP. In the High Court, there was a personal cost order made against Adv Mkhwebane that was overturned by the Constitutional Court in respect of the costs, but the matter was lost on the merits. No. 27 onwards was the case dealing with the erstwhile Premier Helen Zille and her tweets, which the SCA had ruled against the PP Office with costs.
• No. 30 onwards was the matter of the former Minister of Water and Sanitation, Gugile Nkwinti, that was the subject matter of Ms Basani Baloyi’s evidence. It was one of the reports she testified had been quality assured by her, and allegations were made that the previous CEO, Mr Vussy Mahlangu, had interfered in. That report withstood scrutiny at the courts and application for leave to appeal at the SCA was dismissed with costs in May 2022.
• No. 34 to 55 were various reports that had been reviewed and set aside either with cost orders or where there had been an order of no costs.
• No. 56 and 57 were two cases where the reports were not set aside fully and costs were ordered or by agreement customised in favour of the PP Office.
• No. 59 onwards, reports were set aside without any order as to costs. Turquoise colour-coding means Legal Services effectively dealt with the matters because no external attorneys were engaged.
• No. 73 to 97 were cases that the reviews of those reports were pending before the High Court; those reviews had not been opposed by the PP Office.

3. Appeal cases relating to reviews pending
Folder 3's first three items were three matters pending at appeal level. The first one was a judgment on application for leave to appeal in a Gordhan matter – still waiting on a ruling from the Constitutional Court. The other one, the PP Office had just gotten leave to appeal recently. The third one was the Nkwinti matter. From number four onwards were reviews of reports pending at the High Court that were being opposed either with external attorneys having been appointed with counsel or, from number 10 onwards, where external attorneys have to date not yet been appointed but was still being dealt with by the internal legal services to varying degrees.

After 27 there were six matters not related to reviews of reports which were also pending before the courts. The first one was the perjury charges that had been brought against the PP. Number three was dealt with in evidence of Mr Sphelo Samuel, which was the claim for R350 000. Number four, five and six were other civil matters also pending.

4. Other matters not involving a review of a report during Adv Mkhwebane term no longer pending
Folder 4 were matters which did not deal with the review of reports.
• No. 1, 2, and 3 are the Baloyi challenge which she won at the Constitutional Court and it was referred back. The other matters were not related to reviews of reports.
• Where yellow colour-coded such as numbers 14, 15, 16 and 17, it was where the PP Office was successful and was the recipient of cost awards.

2. Own initiated litigation
Folder 2 covered a number of judgments initiated by the PP Office to challenge to the National Assembly Rules and the various cases dealing with that. There was one judgment still pending before the Western Cape High Court. The others were cases that had been completed in either challenging the rules, interdicting the President or interdicting this Committee from proceeding.

Adv Bawa said she had asked, in total, what this amounted to for the reports for the period from Adv Mkhwebane’s inception until the end of the last financial year. It was known and in a moment she would ask Mr Sithole to confirm or disagree. 412 reports were produced as reflected [See Revised reporting data – extended NVM14 of Neels v/d Merwe affidavit]. She excluded the six month period that Adv Madonsela was in Office of the first financial year. The PP Office could indicate from taking office in October 2016 to the end of the financial year. That was a summary of the schedule. Of the 412 formal reports produced, 37 had been reviewed and set aside, one of which was a closing report, and 47 were pending before the High Courts. It was also known from the Annual Reports and from earlier evidence given, that in the annual financial statements the total cost from 2016/17 financial year to the end of 2021/22 for what was called ‘Professional and consulting fees’ came to R158 million. Those figures were reflected on annexure NVM17 of Adv van der Merwe’s affidavit. He included 2015/16. If one excludes 2015/16, then of the R158 million spent, R146 million had been spent on legal fees.

Adv Bawa would break down the biggest cost drivers of the R146 million. She would deal with three today and the others later as she has to confirm those figures.
• Absa CIEX matter, which formed the subject matter of this motion, including litigation costs, the tax bill and two opinions that had been obtained subsequent to Constitutional Court judgment totalled R14.5 million. The Absa matter involved the employment of six different law firms and several senior and junior counsel.
• DA and CASAC matters before the High Court, where there was subsequent appeals that had failed right up to the Constitutional Court plus the opinion obtained for interpretation of the court order totalled R5.6 million.
• National Assembly Rules challenge, representation to the Committee, and litigation against the National Assembly and other parties up until the end of the financial year totalled R15 million.

Adv Bawa would break down and show the other big drivers that comprised the R146 million by the following week.

Discussion
The Chairperson welcomed Mr Muntu Sithole back.

Mr K Mileham (DA) asked if the Committee could get a breakdown of which attorney firms and advocates benefited in each case because there may be some questions around that.

Adv Bawa said that the evidence leaders would endeavour to assist the Committee. However, she suggested a R1 million cap and ignore anything below that to minimise the work. To put this together, Mr Sithole could confirm, the evidence leaders had been at it for weeks to be able to disseminate it in a manner that the Committee could readily understand. Mr Sithole had put in quite a bit of work in assisting them getting to this point.

Mr Mileham nodded in agreement.

Mr B Herron (GOOD) said that he had no problem with the request but thought that the Committee had to be careful by saying which firms and advocates 'benefited' as if they did not do any work. He thought that that was wrong.

The Chairperson agreed.

Mr Herron asked if his understanding was correct that Folder 5 contained reports that were completed by Adv Madonsela, but the litigation ran and was concluded after her term of office ended. Or are some of those matters started in Adv Madonsela’s term and completed by Adv Mkhwebane? He wanted to see if it was clearly Adv Madonsela term’s work that had been challenged.

Adv Bawa replied that on this folder the litigation all for the most part commenced during Adv Madonsela’s term and was pending at the time Adv Mkhwebane came in. She thought that, in one instance, it may very well have been that judgment still had to be handed down. So one found that was there. Where the judgment end date fell post-October 2016, and it related to a cost implication that may very well have fallen into Adv Mkhwebane’s term, of what she would like to put a globular figure to the Committee, these were cases that had commenced during the Adv Madonsela period but the costs were incurred out of the R148 million budget of Adv Mkhwebane.

Mr Herron said he understood Adv Bawa; he just wanted to be clear that the report would also be a report of Adv Madonsela’s term.

Adv Bawa confirmed that was correct. From what she could understand and see, there were only two or three reports of Adv Madonsela that had been set aside during the period of Adv Mkhwebane.

The Chairperson thanked Mr Herron for his intervention as the language had to be proper. It was all those involved so that the Committee did not confine themselves to a particular narrative. He reminded Mr Sithole that he was still under oath and the Committee would we continue where it had paused with him.

Adv Mpofu interrupted to thank Mr Herron for his intervention. He wanted to put certain things on the record. One was that this evidence already, he thought, was skirting on invading people's privacy unnecessarily. He thought that perhaps it should be a concern to those who were targeted, so to speak. They did not mind the information being shared, but he was essentially saying two things. One was that there seemed to be some zeal to invade people's financial and personal issues, particularly some of the professionals whose names had been listed. For example, if it is said that there was R14 million, or whatever it is, on the CIEX, then someone is going to then go and look at Adv Smith or whoever did that matter, and then according to the narrative that was now being peddled, that person would have “benefited”. That was wrong for two reasons. One, apart from sensationalism, there was no value to be derived from it by this Committee unless one was going to drill down into what had happened in a particular case, and whether there was there an appeal or no appeal etc.

To flight numbers like this could only be directed at the appetite of those who just wanted sensationalism. The second thing was that this entire thing was actually unwarranted because the charge that Adv Bawa had spoken about, which related to so-called expenditure and legal affairs, there was no prima facie evidence of that according to the Independent Panel. He knew he had raised it at a broader level, but he was raising it now specifically to show that it was just invading people's privacy for no gain at all, because this was completely not relevant to any charge that was before the Committee. The only matter in which there was any reference to that charge was the GEMS matter which had not been dealt with here. That was the point. He was simply saying that if it was found, which he was sure it would be at some stage, that the Committee has to deal with the matter according to the Independent Panel report findings, then all this would be a completely unwarranted invasion, because they would not be able to undo the damage that they might have done to innocent people and professionals who had rendered their services, and those who could not speak for themselves.

Those who were here, like him, could volunteer to say, “You can reveal whatever you want to reveal. "However, other people, who really all they did was simply render a service for a client, were now going to be told they had benefited R14 million in total, which was also a lie until somebody could break it down into its constituent parts. There was a difference between a case that ended up in the Magistrate Court and one that went right up to the Constitutional Court, but all those details were not dealt with in this sensationalist way of dealing with this matter. He knew Parliament was immune and all that, but it did not mean that power had to be abused or that people’s rights must be abused by being associated with something that completely had nothing to do with the work of this Committee because a) it was irrelevant but b) the potential harm to others far exceeded any gain. That was easy because the gain was zero in the sense that this had nothing to do with what the Committee had to deal with. How the Committee was going deal with it going forward was up to the Chairperson, but the PP legal team did not want to be seen to be playing along with this complete invasion of people's privacy, which was a total invasion. It had started already by the kind of language – which the Chairperson had at least assisted and intervened to delay. It was known that it was ongoing, but some people could take it and others could not and should not be put through that. That was done to hardened horses like those present.

Adv Bawa said that she had two things to say. She was not going to repeat what she had said previously about the evidence leader’s view on the prime facie findings of the Independent Panel, and its role. She had dealt with that in the opening address and did not see any point. She also prefaced the schedule in saying that the name of the attorney and counsel on the schedule of the litigation matters did not necessarily reflect that they had dealt with the matters throughout. She had made the point in the Absa matter of saying that six attorney firms and several counsel had been engaged, to the extent that there was an inference being drawn that the schedule could necessarily correlate to the funds. She had made it quite clear what was reflected on the schedule with what was on record on the judgment. A good example was that the attorneys firm that may be on the record in the Absa CIEX matter, only went to note the judgment necessarily and did not have anything to do with the litigation. So they would not be party to that. Thus the two things did not necessarily read to each other in doing that. If there was an inference of the evidence leaders trying to reflect something on the schedule of judgments, that was not the purpose being sought.

Adv Mpofu wanted to put something on record. He had forgotten to mention one of the issues here that made the whole exercise completely unfair. He accepted what Adv Bawa was saying about all the qualifications that she had made at the beginning, but that was not how it worked in the real world and she knew it. Those associations were going to be made and nobody was going to say, “subject to this, subject to that.” Anyone who lived in South Africa knew how the media and its assistants all over the show operated. One key unfairness, which the Chairperson needed to consider, and which he had forgotten to mention, was the following. Already here, the Committee got a skewed picture in the way this thing was being presented. He gave an example of something that he knew directly. The Committee was told that in the litigation to do with the rules, x amount had been spent, but nobody says what had been spent by Parliament or the President or the DA and all those other people who were involved in that litigation? Secondly, what was the benefit? Here the word 'benefit' actually applies. And what was the outcome?

This was discussed in a different context, for example, that matter had resulted in the Committee and everyone being here now. Whether that was a good or a bad thing depended on where one sat. So unless the context was put into the matter as to who did what. An example in that matter was that at a particular point it would have stopped at Parliament – the DA decided to appeal. So where do you factor all those things in if you don't give the full picture? He was just using that as an example because he was involved in it but for the other counsel who were not here, they would not be able to give that perspective. He was giving it because he was involved in that matter, and so they would be painted with a brush of having abused. It was to be remembered that this charge sheet Adv Bawa noted referred to fruitless and wasteful expenditure. Already they were associating people with that kind of negativity for no particular benefit at all except to put their names on national television. It was a very serious issue that he really would like to be addressed in the seriousness that he was raising it. The PP legal team had tried to discuss it with the evidence leaders so that it was done in a sensitive way without obviously curtailing whatever work they had to do.

Mr X Nqola (ANC) thought that to make things easy, the Committee should replace the words 'attorneys and counsel that had benefited’ by ‘attorneys and counsel that had rendered services’. He agreed with the conviction that 'benefited' would seem otherwise. It would create a very conflicting narrative to the public. His second point related to the sketch that showed that there were these law firms and counsel who had rendered services, and this was how much they had cost the PP Office. In his view, there was nothing private about public funds that were used in the advancement of the obligation that was placed upon the PP Office. In his view, the proposal did not say, “Let us go to the accounts of those law firms.” It said, “Let us reveal that these are the services that were rendered by all the attorneys, and this is how much that service cost the PP Office.” That was how he took it.

Mr Nqola said that Adv Mpofu was raising a very critical question here, which was what value would that information add to the obligation placed on this particular inquiry. In his view, they added serious value because there were a number of witnesses that came to this inquiry that had spoken about legal services being rendered in a way they did not understand. Such that someone had even said that the PP chopped and changed attorneys and counsel and all those things. Those things were said in the public domain, here in these proceedings. He thought it would be correct for the Committee to understand and get that particular evidence so that they were able to confirm or not confirm what had been accused by some of the witnesses towards the Office of the PP. It was remembered that the directives allowed the Committee to lead evidence on what a particular witness had testified to in the inquiry.

The Chairperson wanted to wrap up and give a ruling. He also wanted to acknowledge Adv Mpofu as putting him on alert on two issues, which he respected and was going to adhere to. It was important for the process to him on alert so that the Committee was on the watch on invasion of private financial issues. The issue of privacy had been raised here a number of times, so he welcomed and accepted that. Secondly, the fact that the Committee had immunity and that they do not abuse that. He took that too. At this stage with that alert that he had, having to watch this, he agreed with Mr Nqola that at this stage what got to be placed here was important to assist everyone. He would be ensuring that there was no kind of a narrative – that began to demonstrate a certain narrative – which was not part of what the Committee was here for. He was going to ask that the evidence leaders proceed, and he would be intervening at any point where he felt that they were getting into those areas that had been identified by Adv Mpofu.

Evidence Leader – Witness: Mr Muntu Sithole

Adv Bawa: Mr Sithole, you had been integrally involved in most of the information that's contained in the summary of the judgments and orders that was obtained through yourself. Correct?

Mr Sithole: Correct.

Adv Bawa: And you confirm the correctness thereof?

Mr Sithole: Correct.

Adv Bawa: You've also heard the narrative that I've sought to explain to the Committee. Do you agree with the accuracy of what was relayed to the Committee in respect of the schedule?

Mr Sithole: Yes.

Adv Bawa: In respect of the legal costs, you actually have a more comprehensive summary. Do the totals which I put before the Committee accord with your information as to the costs incurred in the cases to which I've referred?

Mr Sithole: Yes, as received from our finance department.

Adv Bawa: Yes. In doing that, you also verify the number of reports which we indicated have been reviewed and set aside and those that are pending both opposed an unopposed?

Mr Sithole: Correct.

Adv Bawa: Chair, that was what we had sought to lead. Mr Sithole will assist or come back when Mr van der Merwe gives evidence on this aspect in the event there are any further questions arising on the fees. Mr van der Merwe is recently appointed as the Senior Legal Manager. Mr Sithole has been there through most of the fees incurred, save for the first two financial years he was not in the legal department, but he has extensive knowledge on that.

Chairperson: Thank you Adv Bawa.

[Break]

Adv Bawa said that she may have been very precipitous in answering Mr Mileham in suggesting a cap of R1 million for legal fees. She wanted to readjust that to say a cap of R2 million because in the context of R1 million they were going to pick up a whole lot of smaller matters which would not be of necessary relevance to the question he wanted to be answered – if that was in order?

The Chairperson agreed.

Cross-examination of Witness: Mr Muntu Sithole

Affidavit of Muntu Sithole

Adv Mpofu: Good morning.

Mr Sithole: Morning, Adv Mpofu.

Adv Mpofu: Thank you. I think let's start here with this. You saw the exchange that happened this morning, but we'll come back to it. I just want to ask you a few broad questions. You are a qualified attorney. Correct?

Mr Sithole: Correct.

Adv Mpofu: According to your statement, you were at the PP Office round about 2013, 2014, and then you left to go and do your articles. Correct?

Mr Sithole: Correct.

Adv Mpofu: And then you came back in 2017. Correct?

Mr Sithole: Correct.

Adv Mpofu: At least as someone who has been in private practice, you might be able to clear the air on some of the issues that we raised this morning. So that's the one side, the other side is that you have worked in the legal services space at the PP Office. I'm now looking at the other side of the coin, which is your work at the PP Office. There, you have mainly been in the Legal Services department. Correct?

Mr Sithole: Correct.

Adv Mpofu: And at some stage when your boss, whoever it was, at that time had resigned, when there was a vacancy, you were basically in charge of the issues that we are discussing here – the payments of persons, the briefings and so on. Correct?

Mr Sithole: Correct.

Adv Mpofu: Now you would agree with me, firstly, that they say in law, context is everything, that it is important to put some of the information that was put to you in its proper context. Correct?

Mr Sithole: Correct.

Adv Mpofu: And to your knowledge, the professionals whose names have been bandied about here or have been put up, you can exclude me, just my colleagues whose names have been put up, did they render professional services as required?

Mr Sithole: Yes, correct.

Adv Mpofu: Did you have any occasion to ever think that the expenditure used on them was wasteful and fruitless?

Mr Sithole: No.

Adv Mpofu: Thank you. All right. Now there was an example given to you last time we were here, I think it was two weeks ago, which might also assist in this. Remember, you were asked about one of the narratives in this Committee, has to do, for example, with the change of counsel in the CIEX matter I think. You remember that whole debate?

Mr Sithole: Yes.

Adv Mpofu: Now you put it into proper perspective because you said that at a particular point, the senior counsel who was in charge at that point made a request to you as Legal Services to say, “I would like this other aspect to be handled by another team or another silk.” Correct?

Mr Sithole: Correct. That…

Adv Mpofu: It was Vrede.

Mr Sithole: Yes.

Adv Mpofu: I'm just avoiding to call the name of the counsel. That person who was in charge of that case indicated to your team that they needed the services of a separate team for a particular aspect. Correct?

Mr Sithole: That's correct.

Adv Mpofu: I think your indication was that at that stage, the actual hearing date was around the corner. I can't remember the period, but it was not far off. Correct?

Mr Sithole: That's correct.

Adv Mpofu: If you had said no to that counsel who had done a lot of work on the matter at that stage, and the hearing was around the corner and you said, “No, we are refusing to your request”, what would have happened?

Mr Sithole: I think we would have run the risk of not being able to file heads and argue the CASAC side, if I'm not mistaken, or the CASAC review. I can’t remember which one he was on between the DA and the CASAC one.

Adv Mpofu: Yes, I think he remained on the DA, and he wanted another team for the CASAC one. But you are right, it doesn't matter which one, let's say on the one or the other. And would you also have run the risk of maybe even losing that counsel if you said no to his request?

Mr Sithole: Yes, that was our view.

Adv Mpofu: Yes. And would that have resulted in fruitless expenditure? You would have had to get two new teams or one new team against the work that had already been done. Wouldn’t that have resulted in fruitless expenditure?

Mr Sithole: It would have.

Adv Mpofu: Yes. So that's the point. You know, when things are just flighted here without context, it really doesn't assist anybody. But anyway, and then there's a story this morning that came, about six attorneys that were used in one matter. I can't remember which one. I think it was CIEX. Again, is it a fact that some of those attorneys had voluntarily withdrawn from the matter for whatever reasons. Correct?

Mr Sithole: On that one, Chair, I will say I only got involved when we engaged the services of Fasken. That was when we filed the leave to appeal to the ConCourt, and then the ConCourt application. I was not involved in CIEX before that stage, when the previous attorneys were changed.

Adv Mpofu: Okay, no, that's fine. Alright, fair enough, you may or may not have personal knowledge of this, or even second-hand knowledge. But do you know if the change of attorneys in the previous cases was – because that would be the evidence of the Public Protector which you may or may not be able to confirm – that some of the attorneys had withdrawn and there was nothing that the client could do about that?

Mr Sithole: Yeah, I think that was told by Mr Ntsumbenzeni Nemasisi.

Adv Mpofu: By Mr Nemasisi. Okay. Thank you very much. All right. Okay, well, this thing has made me to start where I did not want to start. But let's rather pursue this and get it out of the way. This is going to be the evidence of… please listen carefully. Okay, no, I'll do it bit by bit so that I don't overwhelm you. The evidence that we are going to lead is going to reveal that there are about seven ways in which external legal people are engaged. I'm going to take you through each one of them, and then you can just confirm if, in your own experience, you've heard of this happening. The first is that it might happen that the attorney is asked to identify counsel. Or, no, let's start here. The attorneys themselves are appointed according to the panel that is predetermined. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that panel is appointed in terms of your internal procurement measures. Correct?

Mr Sithole: Correct.

Adv Mpofu: Right. Okay. Then we go to the next stage. Now the attorney will get identified out of your list of attorneys, let's say attorney X. One of the ways in which you would engage counsel would be for that attorney to identify an advocate of their choice. Correct?

Mr Sithole: Correct.

Adv Mpofu: And in certain instances, the attorney may even come back and ask you to say, “Okay, I know I've got a right to appoint counsel, but do you have any preferred counsel?” That also used to happen. Correct?

Mr Sithole: Correct.

Adv Mpofu: That would be the second way in which this would be done? That an appointment could be made? Correct?

Mr Sithole: Correct.

Adv Mpofu: And, in fact, sorry, I just want to take you to an example of that. If you go to page 4031.

Adv Bawa: Of which bundle?

Adv Mpofu: On this bundle, on Muntu Sithole’s statement. It starts at 4011. If you can go to 4031, it’s an annexure TMS3. That's just an example. Okay, forget about the name of the attorneys. It's just an example of the kind of offer that you would give, Mr Sithole. Correct?

Mr Sithole: Correct.

Adv Mpofu: And it's called ‘Offer of Appointment – Request for Provisional Legal Opinion’. Relevant to what we are discussing now, if you go to paragraph four on 4031. In this particular case, and as I say, it's just a random case, I just happened to find it here. This would fall under what I called example one. Paragraph four says, “It is advisable that we instruct a Senior Counsel who has in-depth knowledge in pension law.” This was to do, I think, with the Pillay case which dealt with pension law. Is that in accordance with your experience?

Mr Sithole: Yes, that's correct.

Adv Mpofu: In other words, in this case, you did not say go to Adv so and so. You just said, “We need someone who has experience and in-depth knowledge of pension law.”

Mr Sithole: Correct.

Adv Mpofu: Then if you go to 4033, paragraph four, then you get what I've called the second example – category two. So what used to be a category one case where you are saying the attorney must appoint, then the attorney comes back to you and says, “Kindly advise whether we must use our discretion to appoint a senior counsel...” In other words, category one: “with the necessary experience and expertise…” Or category two: “whether you have your own preference of counsel to be briefed on this matter.” Do you confirm that?

Mr Sithole: Correct. Yes.

Adv Mpofu: So that then gave the PP Office an option – whether this will be a category one matter in which you recommend someone or a category two matter in which the attorney has a freehand to brief someone who is versed on that topic. Correct?

Mr Sithole: Correct.

Adv Mpofu: Good. Then category three would be where the legal department, and that could be you or Mr Nemasisi or whoever at that point, may identify a preferred counsel and recommend that person. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that would be from your own knowledge, as someone who has practiced law, maybe you know that Adv XYZ once did a case to do with this or the other, and you may recommend that person. Correct?

Mr Sithole: Correct.

Adv Mpofu: Good. Then we come to category four. I think it has also featured here, where you might have junior counsel, who has come into the matter by whatever means. That junior counsel may recommend a senior when a matter becomes complicated and say, “I would like to work with senior so and so because this matter has now become too complex for me. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that has happened, I think, particularly in the case of the Financial Services Conduct Authority. There was a junior counsel, and he recommended a particular senior who was unknown to you, but you hired him because of the recommendation. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then we go to category five. I'll own up to this one. It would have happened, for example, in the Pillay matter, which you might remember, where the senior counsel now recommends a particular junior to assist in that particular matter. That junior might be unknown to you, but you just go along with the recommendation of the silk. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then we come to category six, where the Public Protector may also make a recommendation because she knows someone or she has heard someone who's good in this or the other. That recommendation would also be channelled through your legal department to the attorney. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. Then we have the seventh category, which happens in practice, and I'll deal with it in more detail later, where somebody else in the PP Office, in this case it would have been the Special Adviser to the Public Protector who was also a lawyer, might know somebody and recommend that person and that person gets appointed because of particular expertise. Correct?

Mr Sithole: Correct.

Adv Mpofu: Now the mere fact that so and so was used by a particular attorney can be any of these seven different, there might even be more which I don't know about, but at least I've been instructed on these seven ones, could be any one of these seven methods. Correct? We can’t know just by looking at a name, whether it was category one, category two, category three, category four, category five, category six, or category seven. Correct?

Mr Sithole: Correct.

Adv Mpofu: Thank you. Right. Now there is evidence because I think this thing was directed at a particular brief. I don't know whether you were already there or just before your time. But are you aware of the recommendation that was made by Mr Sibusiso Nyembe, in respect of Mr Paul Ngobeni?

Mr Sithole: Yes.

Adv Mpofu: Yes. I don't want to over-put it but there was a letter here that was read in another context that showed that Mr Nyembe was a big admirer of Mr Ngobeni’s intellectual power. Can you confirm that?

Mr Sithole: Yes.

Adv Mpofu: Yes. You may or may not know this because it was between the Public Protector and Mr Nyembe, but one of the reasons for recommending him for a particular task was that, according to Mr Nyembe, he would bring legal expertise but he's also a writer in the public space at the same time. Were you aware of that?

Mr Sithole: Yes, that was Mr Nyembe’s view.

Adv Mpofu: Yes. Indeed, some of the work that he produced, some of it you could say had more legal input. But other times it did more of what you might call the communications input. Correct?

Mr Sithole: Correct.

Adv Mpofu: And as an example, if I make two examples, there was an invoice where he was paired with another advocate. Again, I don't want to mention the name of the person because that person is a judge now. But you might know the case where Mr Ngobeni had been paired with a practicing advocate at the time. Correct?

Mr Sithole: Yes, that's correct.

Adv Mpofu: And that invoice, because it had more legal input, was paid by your department? Correct?

Mr Sithole: Correct.

Adv Mpofu: And then there's another example, which you can take to the other extreme, where it was felt by the legal department that there was more of the communications consultant input than the legal input, and the legal department refused to pay that particular invoice. Correct? I don't know if you are aware of that.

Mr Sithole: I'm not sure if I get that maybe.

Adv Mpofu: Okay. Let me rephrase the question. Are you aware of another example where the legal department refused to pay the invoice because they felt that there was more of the communications input than the legal input in that particular case?

Mr Sithole: Yeah, I think I recall that. Yes.

Adv Mpofu: Okay. That's fine. But by and large, to your knowledge and to the knowledge of the legal department and the Public Protector, the services would have generally covered the legal aspects or the legal side of things; hence, it was sent through to you by Mr Nyembe. Correct?

Mr Sithole: Yes.

Adv Mpofu: Thank you. Right, now, let's move to the issue of the cost orders because that's another new area I'm going to come to. I was going to start by recapping the work we did last time with you; but as I say, I've just been forced by circumstances to start at the end. So let's go to the question of wasted costs. You know as an attorney that there are different types of legal costs that get awarded by a court of law. Correct?

Mr Sithole: Correct.

Adv Mpofu: And the kind of language that is used might be confusing to people who are not lawyers. So what we call ‘attorney and client costs’, otherwise known as punitive costs, you aware of that?

Mr Sithole: Yes.

Adv Mpofu: And the court would issue such cost if it was showing disapproval of something a particular litigant had done in a particular matter. Correct?

Mr Sithole: Correct.

Adv Mpofu: So, for example, when Mr Gordhan and Mr Pillay accused the Public Protector of being involved in state capture and all sorts of things, the court not only removed those remarks from the record, but also awarded attorney and client or punitive costs against them. Correct?

Mr Sithole: Correct.

Adv Mpofu: You were involved in that litigation?

Mr Sithole: Yes, correct.

Adv Mpofu: And vice versa, sometimes the Public Protector, if the court disapproved of whatever it disapproved of, it would also award attorney and client costs against her. Correct?

Mr Sithole: Correct.

Adv Mpofu: So that's one category of costs. Then there's the other costs, which are called personal costs, and those are awarded in the case of a particular person personally, when the court feels that the institution should not be saddled with those particular costs. You know about that category of course, as well. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. Those costs are sometimes confused with punitive costs. But those costs could be automatic costs which are not punitive, but simply awarded against a particular individual litigant. Correct?

Mr Sithole: Correct.

Adv Mpofu: Okay, so that's what we call personal costs. Then there's the ordinary costs that get awarded, which gets taxed. In other words, you only can recover from the other side. If you are the winner, you can recover from the other side only those costs that have been taxed. Correct?

Mr Sithole: Correct.

Adv Mpofu: And the distinction between those costs and punitive cost is that in punitive costs you can even recover untaxed costs that have been expended by the attorney in respect of that matter. Correct?

Mr Sithole: Correct.

Adv Mpofu: So the second category, attorney and client costs, tend to be higher than the ordinary costs. Correct?

Mr Sithole: Correct.

Adv Mpofu: Right. Now there are other types of costs, but we don't need to go to that, costs de bonis propriis and so on. There was an example, let's talk about the CIEX matter. There was an email that was put up by Adv Bawa regarding that matter, you remember? Where you expressed some views about the personal costs order that was awarded there – the punitive costs. Correct? When you disagreed with the court finding. Do you remember that?

Mr Sithole: I'm not sure if it was CIEX.

Adv Mpofu: I think it was Reserve Bank. Yeah, I think it was. Okay, but anyway, it doesn't matter. But where there was such an award and you had disagreed with the cost order. Do you remember that example that was given?

Mr Sithole: Yes.

Adv Mpofu: And, of course, various people have different views in South Africa. Some would have agreed, others would have disagreed. That was your view, other people have different views. You are all entitled to your views. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. Now I just want to use that, as I say, as an example. In that particular case, because you were involved in the case, you know sometimes where people are not involved in the case they might not appreciate these things. It was your view that the personal costs order was unwarranted. Correct?

Mr Sithole: Correct.

Adv Mpofu: And is it correct that what you were instrumental, and I might be underestimating your role, but you were quite key in the compilation of the litigation strategy that was referred to in your statement. Correct?

Mr Sithole: For which matter Chair?

Adv Mpofu: No, litigation strategy in general.

Mr Sithole: Oh, okay. Yes.

Adv Mpofu: I think it's referred to at paragraph 37 of your statement, which will be on page 4020.

Mr Sithole: That's correct.

Adv Mpofu: That's why I was saying I might be underestimating you. You say there, when you became in charge of that legal unit, “There were no documented guidelines upon which a decision to litigate must be taken.” And then you say, “I crafted a Litigation Strategy 2020 - 2023, which was approved by the PP on 2 November 2020.” So I'm saying, of course, it doesn't mean you did it on your own, but you were quite key in the crafting of that strategy. Correct?

Mr Sithole: Correct.

Adv Mpofu: That strategy is the current strategy that covers even the period now, as we speak. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. I want to link this to the question of the personal costs order and how you were aggrieved by what you saw as an unwarranted costs order against the Public Protector. One of the issues in your strategy was the fact that from that point on, some of the senior investigators and executive managers should be the ones who sign affidavits in respect of review matters. Correct?

Mr Sithole: Correct.

Adv Mpofu: That in so doing, that would in a way protect the Public Protector from having to bear the brunt basically of an investigation where maybe her involvement was minimal, but simply because she was the one who signed the affidavit, then the court would visit her with personal costs. Correct? That was one of the motivations?

Mr Sithole: Amongst other things. Yes.

Adv Mpofu: In fact, is it true that strategy of yours paid off, when I say paid off, I mean from the point of view of the Public Protector at least in the GEMS matter? Because it was not her who had done the affidavit but the investigator involved. Correct?

Mr Sithole: Yes, I think the GEMS was before the strategy was approved. If I'm not mistaken.

Adv Mpofu: Okay, but in the GEMS matter, the affidavit had been signed by someone other than the Public Protector.

Mr Sithole: Yeah, that's correct.

Adv Mpofu: And for that reason, I think the SCA specifically said that it could not mark the Public Protector with a punitive cost order, among other things. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. Thank you. And to the extent that the GEMS matter was pursued, this was obviously then with the blessings of that particular person who signed the affidavit. Correct?

Mr Sithole: Correct.

Adv Mpofu: As well as the legal department and everyone else. Correct?

Mr Sithole: Correct.

Adv Mpofu: It was not a sole decision of the Public Protector. Correct?

Mr Sithole: Correct.

Adv Mpofu: Thank you. Okay, I think then we've covered. These were the three new areas which I wanted to deal with you today, I think we have covered. One was your view that you have never experienced or felt that there was any wasteful or fruitless expenditure as far as the legal side was concerned. Correct?

Mr Sithole: Correct.

Adv Mpofu: The second one was that you felt on many occasions that the personal costs orders against the Public Protector were unwarranted and you even devised a strategy to mitigate that fact. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then the third area was the one we've covered now about Mr Ngobeni and Mr Nyembe. So we've covered those. If we can then just come back to some of the grounds that I think you and I had covered last time. It will curtail my cross-examination because I'll just give you the topics. If we agree, we agree, but if we don't, then we might get into some of the nitty gritty. This is about a dozen, 10 or 12 such issues, but we'll go through them very quickly depending on whether you combine some of them or not. It has been confirmed by other witnesses and I just want you to confirm if you are aware of this, because some of it might have happened in your time, some of it not in your time. But you can assist us because you are one of those people who served both under Adv Madonsela and Adv Mkhwebane at different times. Correct?

Mr Sithole: Correct.

Adv Mpofu: Now to your knowledge, it is true that there were successful reviews that were brought against Adv Madonsela. Correct?

Mr Sithole: Correct.

Adv Mpofu: And similarly, there were successful reviews that were brought against Adv Mkhwebane. Correct?

Mr Sithole: Correct.

Adv Mpofu: And there were unsuccessful reviews that were brought against Adv Madonsela, similarly with Adv Mkhwebane. Correct?

Mr Sithole: Correct.

Adv Mpofu: As far as the so-called scathing remarks are concerned, there were scathing remarks made by judges against reports compiled by Adv Madonsela and also against reports made by Adv Mkhwebane. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then the third point which I want to check if we agree on because these are issues that we will use when we argue at the end. Again, there's been almost consensus on this, but just for the sake of progress I want to confirm with you that the Nkandla case was a turning point insofar as introduced binding remedial action, in that it resulted in a predictable spike or avalanche of review applications. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that spike in litigation would obviously be accompanied by a predictable spike in the litigation spent. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then fifthly, would you agree with me, I'm going back to the theme of context as well, that litigation is not something you can predict? Some have called it an unruly horse. In other words, you could have a matter that you think is complex, and then it gets resolved in the first instance, or a matter that you thought was simple, but it goes all the way up to the Constitutional Court. It's not like you can look at a matter and say this one is going to cost R1 million, this one is going to cost R2 million upfront. Correct?

Mr Sithole: Correct.

Adv Mpofu: An example of that and this would have been in your experience as well, some of the appeals might have to go via Bloemfontein, as we say in the profession. In other words, they have to go to the SCA, but others go directly to Braamfontein, which is that they go directly to the Constitutional Court. That's not something you can know when you start litigation. Correct?

Mr Sithole: Correct.

Adv Mpofu: Therefore, like any other department in any company or SOE or whatever, you obviously will have a legal budget, but really how it materialises is out of your control. Correct?

Mr Sithole: Correct.

Adv Mpofu: Even whether you're going to win a particular case and be paid costs or lose a particular case and have to pay costs, is something you cannot predict upfront. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then the sixth proposition that we're going to argue is that this Public Protector, when there was this escalation, even though it was predicted even by Adv Madonsela, went out of her way to introduce austerity measures in order to control the legal spend. Correct?

Mr Sithole: Correct.

Adv Mpofu: Those austerity measures – we won't go through that because you testified about them the last time – but they included an almost blanket withdrawal of matters, except those that had set downs. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that strategy we can safely say was implemented admirably, in that, as you say, those cases that were not withdrawn which were exceptions to the rule, actually the Public Protector won those cases, except for one example, I think, out of four. Correct?

Mr Sithole: Correct.

Adv Mpofu: You identified those cases last time so I will save time by not going back to that. Those austerity measures obviously made a huge positive impact not only on the legal budget, but on the financial performance of the entity as a whole. Correct?

Mr Sithole: Correct.

Adv Mpofu: Think you also covered this, this is my eighth point. You agree that some of the cases that were then opposed or fought subsequent to that, included crucial issues of the development of the jurisprudence around the Office of the Public Protector, including Section 6(9) and Section 7(9) of the Public Protector Act. Correct?

Mr Sithole: Correct.

Adv Mpofu: In fact, if I'm not mistaken, in the Pillay matter the judges remarked that it was the first time that they had to deal with this aspect of “prescription” in Section 6(9), and they gave clarity to it. Correct?

Mr Sithole: Correct.

Adv Mpofu: And in the GEMS matter, the SCA also dealt with that section. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then similarly in the CR17/Bosasa matter, the court gave clarity on the Section 7(9) issue, which you and I canvassed the last time you were here on 26 August. Correct?

Mr Sithole: Correct.

Adv Mpofu: And these developments of jurisprudence are generally beneficial to this area of work in our young democracy. Correct?

Mr Sithole: Correct.

Adv Mpofu: And you use them. The Public Protector will testify that you, well not you personally, maybe you personally as well, but that there's a culture in the Public Protector involving her Office, the legal office, and sometimes even the CEO's Office of what we call in management terms ‘a learning organisation’. In other words, when there's a judgment, you take that judgment, analyse it, and see what lessons can be taken in order to be applied in future reports. Can you confirm that?

Mr Sithole: Yes, I can confirm.

Adv Mpofu: Right. That obviously would be more so in cases where there are novel areas that have been developed in the Public Protector space. Correct?

Mr Sithole: Correct.

Adv Mpofu: One of the cases – I've already made mention of this when I was addressing the Chair – one of the cases that have been highlighted with regard to legal spend has been the case that has brought us here – the case of the application of Section 194 of the Constitution. Correct?

Mr Sithole: Correct.

Adv Mpofu: You are aware of the evolution of that particular case, at least this happened in your era when you were already in the legal department. Correct?

Mr Sithole: Correct.

Adv Mpofu: So maybe you can assist the Committee and assist me because I can't be a witness even though I was involved in the matter. You'll forgive me, I have to use you to bring up some of the issues there. Now you would be aware that, at the beginning of the evolution of that case, there were several attempts by the DA to bring the impeachment of the Public Protector, and it brought several motions in Parliament to do so. Correct? Basically, almost since the day that the Public Protector was employed. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that went on for a number of years until the Public Protector, having received legal advice from among other people, Mr Ngobeni and others, pointed out that Parliament was making a big mistake because there were no rules which govern Section 194. There was a letter to that effect, which was addressed to the Chair of the Committee and the Speaker. Correct?

Mr Sithole: Correct.

Adv Mpofu: Thereafter Parliament wised up to that fact and started to devise the rules according to the advice of the Public Protector and her advisers. Correct?

Mr Sithole: Correct.

Adv Mpofu: Those rules were eventually passed on 3 December 2019, after several false starts and debates within the Committee about the content of those rules. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then on the 6th, three days later, Ms Mazzone, who was then the chief whip of the DA, did what they had been trying to do over the years and put the motion for impeachment. The first one. Correct?

Mr Sithole: Correct.

Adv Mpofu: And then we / I got involved, I think around that stage. You sought legal counsel at that stage because it was no longer an internal matter. It was quite a serious issue about the possible removal of the Public Protector. Correct?

Mr Sithole: Correct.

Adv Mpofu: And then you engage the services of a senior counsel and junior counsel. Correct?

Mr Sithole: Correct.

Adv Mpofu: And in January 2020, just before COVID broke out, the Speaker of Parliament announced that she had accepted the motion as “in order” and therefore she was going to action it. She did that without informing the Public Protector. Correct? She did it in a press release. Correct?

Mr Sithole: Correct.

Adv Mpofu: Okay, once the Public Protector read about this in the media, she then engaged the legal team as you have already confirmed. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then I think a week later, a letter was written to the Speaker to say, please withdraw the motion because it has all these flaws, including the fact that it did not allow for legal representation; its effect was supposed to be retrospective and all that. You remember that?

Mr Sithole: Yes.

Adv Mpofu: That was, as the Public Protector put in that letter, an effort to avoid any litigation and against the spirit of cooperative governance – Section 41 of the Constitution. Correct?

Mr Sithole: Correct.

Adv Mpofu: And the Speaker refused to avoid the litigation and basically dared the Public Protector to take whatever steps she wanted to take in order to protect her rights. Correct?

Mr Sithole: Correct.

Adv Mpofu: Therefore the Public Protector had no option but to go to court to assert those rights. Correct?

Mr Sithole: Correct.

Adv Mpofu: First, an application was brought in the High Court basically to declare some of the rules to be unconstitutional and also to interdict their implementation. Correct?

Mr Sithole: Correct.

Adv Mpofu: And the interdict application itself was unsuccessful, but the challenge to the rules was successful to a significant extent – particularly in relation to the involvement of a judge in this process as well as the issue of legal representation. Correct?

Mr Sithole: Correct.

Adv Mpofu: That success of the Public Protector was achieved at the High Court in the Western Cape, and that would have necessitated a change to the rules. Correct?

Mr Sithole: Correct.

Adv Mpofu: At that point, the National Assembly and the DA decided not to accept that success of the Public Protector, and they appealed directly to the Constitutional Court. Remember I made that example, sometimes you appeal to the SCA, sometimes to the Constitutional Court? I think in this case they did a double barrel to the Constitutional Court but conditionally to the SCA. Remember that?

Mr Sithole: Yes.

Adv Mpofu: The Constitutional Court decided to hear the matter and the Public Protector, again, was successful in respect of the assertion of the right to legal representation but unsuccessful in respect of the second issue which was the separation of powers. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then to cut a long story short, came the second round of litigation, where this Committee decided to proceed with the matter despite the fact that it was still pending before the Constitutional Court. Correct?

Mr Sithole: Correct.

Adv Mpofu: That then brought us to the current litigation which everyone knows about. Again, there was an interdict application and an application to declare both the suspension proceedings and the proceedings in this Committee to be unconstitutional. Correct?

Mr Sithole: Correct.

Adv Mpofu: Currently, as they say in the industry, the jury is still out as to whether that challenge to the suspension, as well as the continuation of this process that we're sitting in now, is constitutional or not, in the sense that we are awaiting a judgment that has been reserved in the Western Cape High Court. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that history, starting from the refusal of the Speaker to accede to the plea of the Public Protector to handle this matter amicably, is what has led us to the litigation figure that was given to you this morning. Correct?

Mr Sithole: Correct.

Adv Mpofu: One can only imagine that figure is probably twofold or threefold, if you consider that the other side had separate teams represented by senior counsel. There was a team for the National Assembly. Correct? With senior counsel. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then later on at some point there was a team – it was either one or two or three counsel depending on what stage – that represented the National Assembly and this Committee. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then the DA had a separate team also led by senior counsel. Correct?

Mr Sithole: Correct.

Adv Mpofu: Then there was a separate team also led by senior counsel for the President of the Republic of South Africa. Correct?

Mr Sithole: Correct.

Adv Mpofu: When he was participating – in fairness to him, he did not participate in the first round of those interdicts – he simply put in an affidavit. Do you remember that?

Mr Sithole: Yes.

Adv Mpofu: Thank you. We don't really know how much public money was spent by those teams, as we sit here. Correct?

Mr Sithole: I don't know.

Adv Mpofu: Yeah. Even though eventually the Public Protector’s position was vindicated at least in the first part. We don't know what will happen with the second one, about the suspension in the current process. Correct?

Mr Sithole: Yes.

Adv Mpofu: Thank you. So, I'm just curious. I was using that example to show that, you know, when you put context matters, it's easy to just mention millions or billions of zillions without putting any context to the matter. Thank you very much. Alright. Now the next issue that you and I covered last time, and again, you may or may not be able to assist directly. I think you made it clear that you were fortunate you never received an audi letter, but I just want to talk about that a little bit more. We spoke about it last time. Here it looks like, Mr Sithole. Maybe you can assist us, I don't know if I put it like this to you last time. There seem to be two schools of thought about this from the witnesses that have been called here. Some witnesses view the issuance of audi letters as something bad. others view it as something good which is linked to the new performance culture that the Public Protector was trying to instil. I appreciate that you never received one yourself. But from your experience, and having been an investigator at some stage, would you agree with me that the issuance of audi letters was directly linked to or an integral part of the new performance culture that the Public Protector was trying to inculcate in the organisation?

Mr Sithole: I'm not sure if I can comment on that.

Adv Mpofu: Yes. Okay. Let's do it step by step. Being a person who was in the privileged position of having been there before Adv Mkhwebane, and having been there after she was employed in that position, would you agree that she did her best to improve the performance culture of the organisation?

Mr Sithole: Yes. Correct.

Adv Mpofu: Yes. If you compare the two eras, particularly in respect of the output, the things that we know, would you agree that the performance culture improved significantly under her watch?

Mr Sithole: I can't say with certainty because during the time of the former PP, I was a training investigator.

Adv Mpofu: Okay, no, that's fine. So let's even not do that. Let's compare then the times that you were there. Let's say when you came back, 2017, and let's say two or three years later, 2020 or 2022. Would you say there was a progressive improvement in the performance culture?

Mr Sithole: Yes.

Adv Mpofu: Good. You would have known about or attended, I don't know which of the meetings you would have attended, but at least you know that some of the meetings that where performance was driven, included Think Tank, Dashboard, Full Bench – there were all those fancy names – but those are meetings that were meant for pushing performance. Correct?

Mr Sithole: Yes, I think it was Task Team and Dashboard more specifically.

Adv Mpofu: More specifically, yes. Right. There's evidence that's already been led that at some point, Think Tank was abolished. There was a much tighter Task Team that was located in the Office of the Public Protector, but it also did quality assurance. Correct?

Mr Sithole: Correct.

Adv Mpofu: You can confirm, this is common cause, an issue the Public Protector will also testify about is one of the weaknesses of Think Tank, although it was a good quality assurance mechanism, is the fact that it's set only quarterly. Four times a year. Correct?

Mr Sithole: Yes, that's correct.

Adv Mpofu: And then it involved a lot of costs, everyone having to fly from all over the country, staying in hotels for days. So it became a bit cumbersome, particularly in the days of austerity. Correct?

Mr Sithole: Correct.

Adv Mpofu: Right. Now the point I was really coming to is you may not be able to comment on this because you are not an HR specialist. I think Mr Gumbi Tyelela did comment on it. But to the extent that you know about management in general, you are aware that that environment is driven by deadlines. In other words, the output for the public has something to do with not just whether a report is given out, but how fast that is done. Correct?

Mr Sithole: Correct.

Adv Mpofu: Therefore, the management task that you are all seized with, from the Public Protector to the person who sweeps the floor, is to manage this tension or balance between quality, which we have just spoken about, and quantity, in other words the output and the rate of output. Correct?

Mr Sithole: Correct.

Adv Mpofu: And it's not an easy balance, because now and again you don't want to chase quality to the extent that you sit with a particular report for 10 years. But you also don't want to chase quantity to the extent that you issue it out in two weeks and it's a half page report. So it's always a balance. Correct?

Mr Sithole: Correct.

Adv Mpofu: And it’s a balance that you would say that the Public Protector was… those of us who are sitting outside, it's easy to criticise, but it's a balance that you and your team and the Public Protector always sought to strike in terms of ensuring that there is quality, but at the same time there's quantitative output. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that has resulted in unprecedented output in terms of the numbers that you have achieved as an institution. Correct?

Mr Sithole: Correct.

Adv Mpofu: It has also resulted in unprecedented financial performance, in the sense that you have achieved two successive clean audits in the process. Correct?

Mr Sithole: Correct.

Adv Mpofu: So you were not just chasing quality or even quantity, but you were also chasing good governance. Correct?

Mr Sithole: Correct.

Adv Mpofu: Well, we don't know whether you will get a third clean audit now that the Public Protector is not there for a year… I mean a fourth one; you know who was suspended round about June of this year. Correct?

Mr Sithole: Yes.

Adv Mpofu: That was after the year end of the 2022/23 financial year. Correct?

Mr Sithole: 2021/2022.

Adv Mpofu: 2021/2022, correct, yes. Which was reported recently. Correct?

Mr Sithole: Correct.

Adv Mpofu: I suppose then that's why I was saying the fourth, congratulations are in order to you and your team because under Public Protector Mkhwebane you have now achieved a third clean audit. Correct?

Mr Sithole: Thank you, counsel.

Adv Mpofu: Are you aware of that?

Mr Sithole: Yes, I was made aware of it, if I’m not mistaken.

Adv Mpofu: No, it's my pleasure. So why did you not announce it yourself? Why did you wait for me to give you accolades? When you have a third clean audit, Mr Sithole, it's not time to be modest, I seriously mean congratulations to you and Adv Mkhwebane for your third straight clean audit. Okay, as I was saying, the jury's still out whether you'll get a fourth one because she's not there now but she'll be back. Don’t worry.

Mr Sithole: Yeah, I think it's the entire PPSA staff that must take the credit not just me.

Adv Mpofu: Not just you know, yeah. There you go becoming modest again but you can take the credit for them. You will report back when you get back to the office. If you find it too hard, the Public Protector will do it herself when she comes back. Thank you, Mr Sithole. Okay. Now I wanted to just… without rubbing the point before the Chair can stop me, you can therefore agree that with the example that we gave, where the National Assembly and this Committee lost cases against the Public Protector, that the Public Protector does not have the monopoly on losing cases.; even this Committee lost cases against her. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. The last point I wanted to deal with, and again, I'm just taking advantage of you as a lawyer, is there's also findings of irrationality which have been made from time and time again against, whether it was Adv Madonsela or Adv Mkhwebane. You've already confirmed that. Correct?

Mr Sithole: Yes.

Adv Mpofu: Because sometimes these words, what they mean in legal terms and what they mean in normal English can be confusing to non-lawyers. I made an example the other day about 'relevance' and things like that. But can you assist the Committee by explaining that 'irrationality' in legal terms simply means that a particular act or decision or conduct does not conform with the rule of law, and we lawyers call that irrational. Correct?

Mr Sithole: That's correct.

Adv Mpofu: For example, the decision of the National Assembly not to allow Adv Mkhwebane legal representation was found to be irrational. That doesn't mean that Parliament was crazy. It just means that they did not conform with the rule of law. Correct?

Mr Sithole: Correct.

Adv Mpofu: Okay. Now the last point. Thank you. So those are the highlights, issues that I wanted us to deal with as far as the whole legal department is concerned, plus the three new ones that we dealt with this morning. There's just one more issue that I want to revisit. Again, I don't want to waste your time because we dealt with it the last time. But just to be sure that in your experience, you were aware of the fact that the Public Protector was one of the people who was of the view that the Gupta Leaks should be used in the Vrede report. Correct?

Mr Sithole: Correct.

Adv Mpofu: But that view, and I'm sure there were other people, again I don't want to credit her alone. But that view of hers was defeated by the other view that it was not necessary, among other things, because the Gupta Leaks were to be dealt with in the Zondo Commission. Correct?

Mr Sithole: Amongst other things, yes.

Adv Mpofu: Yes. Thank you. Then also you confirmed last time that in your experience, someone who was there at the coalface of this investigation – there was no so-called alleged narrowing of the scope of the investigation. Correct?

Mr Sithole: Yes.

Adv Mpofu: Now I don't think I've finished asking you about the issue of the audi letters. I want to ask you in your own experience or experience of others, did you see these management tools, including audi letters which were linked to performance, as something negative or did you see them as something positive which would have contributed, for example, to the three clean audits that the organisation has achieved?

Mr Sithole: I'm very much wary of commenting on the issue of audi.

Adv Mpofu: Okay, then I'll lead you like this. Have you ever had any personal or indirect experience of somebody having been given… Okay, let's start it like this, as a lawyer, you know that audi alteram partem means good giving somebody a chance to be heard. Correct?

Mr Sithole: Correct.

Adv Mpofu: And that's a good thing to give someone a chance to be heard. Inherently it's one of the rules of natural justice. Correct?

Mr Sithole: Correct.

Adv Mpofu: Now it would seem, and I don't want to overstate this, that, you know, there's a saying in English that says too much of a good thing can be bad. So even though you and I can agree that audi in itself is a good thing, it would seem that there are people who experienced it negatively. I'm just wanting to check you are not one of those persons or that it never happened in your own experience, either to you or someone that you are relating to. Correct?

Mr Sithole: Correct.

Adv Mpofu: Thank you. Alright. Okay, that's fine, then I'll put you in the other school, whether you like it or not. But it's fine. We'll develop this later when we argue. But in fairness, you must be aware that there are these two schools of thought about a particular method of management called audi letters. Correct?

Mr Sithole: Correct. I agree that you say you will develop it in argument.

Adv Mpofu: No, that's not the question I'm asking you. I'm saying you would have been aware, even not from personal experience, that there are what are called the two schools of thought about it. Correct?

Mr Sithole: Yes, that's correct.

Adv Mpofu: Thank you.

Chairperson: Adv Mpofu, I want you to wrap up.

Adv Mpofu: No, Chair. Okay, let's make a deal Chair. Let's take the tea break because that might make me not ask any further questions.

Chairperson: We’re done with a tea break. It's all up to you now. The next thing is lunch.

Adv Mpofu: When was the tea break? I must have missed it. Okay. That's fine. I thought that break was  because you couldn't hear me. But that's fine. I didn't have my tea. I must have missed the tea break. No, fine, Chair. I’ll wrap up then. Mr Sithole, there's a specific issue that you were asked about last time and it goes back to the issue of the services of Mr Ngobeni. I don't know what was being suggested but I don't want to leave anything to chance. You would be aware that… I think we've already covered the fact that Mr Ngobeni was engaged at the recommendation of Mr Nyembe. Correct?

Mr Sithole: Correct.

Adv Mpofu: You are also aware that Mr Nyembe’s mandate in the Public Protector’s Office as a Special Adviser, would be wider than just legal matters. It covered all sorts of things – communication, the economic landscape, the political landscape, the environment, in short, in which the Office operated. Correct?

Mr Sithole: Yes. That was when he was Special Advisor and also when he was Chief of Staff. I think there's evidence that was projected where he says he also provides strategic advice on litigation matters.

Adv Mpofu: Yes. I'm saying that we're not sure where that evidence came from. But to the extent that, in your own experience, you would at least accept that in both capacities his scope was wide and covered what I have described as the environment, sometimes hostile environment, in which the Public Protector operates necessarily. Correct?

Mr Sithole: Correct.

Adv Mpofu: And the hostile environment, for example, that I'm referring to, it might vary in degrees. It’s not confined to Adv Mkhwebane. Any Public Protector operates in that hostile or relatively difficult political, economic, and social environment just by the nature of the Office. Correct?

Mr Sithole: Correct.

Adv Mpofu: Now I'm saying then that the evidence will be that in that context, Mr Nyembe then was of the view that when there was a particular hostility that was perceived, whether it was real or perceived it doesn't matter, that the services of someone who's not, for lack of a better word, a straitjacketed lawyer, who's not just going to deal with the legal aspects, but also with the broader aspects. Hence he recommended a Mr Ngobeni. You may not be aware of that but that is what will be put. You can't dispute that. Correct?

Mr Sithole: Correct.

Adv Mpofu: To the extent that the attorney is, in fact at some stage, and I don't know whether you are one of these people, but at some stage Mr Ngobeni, was even referred to as a senior counsel until it was discovered that he was an ordinary advocate, not a senior counsel. Sorry to say ordinary, even senior counsel are ordinary advocates, but that he was not a senior counsel. Correct?

Mr Sithole: I don't know.

Adv Mpofu: You are not one of those people? Okay, that's fine, we’ll bring that evidence here. But in any event, using one of the seven methods that we spoke about, Mr Ngobeni’s services were then acquired through the services of whatever attorneys were involved in that particular matter. Correct?

Mr Sithole: Correct.

Adv Mpofu: You yourselves would not have been privy to, for example, if Mr Ngobeni, except for the situation where he was briefed together with a practicing advocate, you would not have been privy to what other services he would have acquired, either in terms of legal research or the communications research or whatever the brief might have been. Correct?

Mr Sithole: Yeah, my involvement would have been to the extent that it relates to obtaining an opinion.

Adv Mpofu: Yes, agreed.

Mr Sithole: I mean in respect of the evidence that we dealt with last week with Adv Bawa.

Adv Mpofu: With Adv Bawa? No, fine, that's true. That would apply even if that counsel was me or someone else. You'd ask for an opinion, if it involves any other expertise that I might acquire that would be my business. Correct?

Mr Sithole: Yes.

Adv Mpofu: All right. Then there was a specific question which was put to you, which I want to clarify, because we have evidence which might not coincide with what you were saying, or maybe it's not what you were saying. I just wanted to clarify it. In particular, there was the invoice that had gone to Seanego Attorneys, to do with an opinion done by Mr Ngobeni, which reached you on the letterhead of Mr Seanego. Remember that example?

Mr Sithole: Yes.

Adv Mpofu: In terms of that, and I don't know, maybe Adv Bawa can assist me. But you don't have to put it up. We're positively averse to this thing of putting people's accounts up there. So I'll try to ask you this question without doing so. Are you aware of that? In that particular invoice, one of the items for which Seanego Attorneys had charged was redrafting the opinion. You may remember that from memory. Otherwise, we might be forced to put it up. Remember that?

Mr Sithole: Yes.

Adv Mpofu: Yes. That also happens that an opinion can come from counsel, maybe not in the required format, and then the attorney adapts it because the attorney is a lawyer as well, and even puts some of the legal inputs, and it would then come from the attorney. But obviously, transparently, you would know that it originated from the advocate. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. In your experience as an attorney, also from where you sit, there's nothing untoward with that practice. Correct?

Mr Sithole: Yeah, in terms of formatting, I don't think there's a specific format that an opinion comes in. I think what was put to me by Adv Bawa, was why it was in that format. I responded that I'm not sure why Adv Ngobeni’s work will not appear there. I think I also indicated to Adv Bawa, she will correct me if I'm wrong, it was either during my evidence-in-chief, during the leading of evidence or when we consulted…

Adv Mpofu: Evidence in chief, I didn't ask you about it. It would have been in chief.

Mr Sithole: Yeah. Adv Ngobeni does not have a practice per se. So ordinarily, when we get opinions, they'll be on the letterhead of the bar, or the chairman at the council he is in. So I was just giving an example as to maybe that's why his opinions will be either on the letterhead of Mr Seanego or not be on a letterhead at all.

Adv Mpofu: Yes. Okay. Fair enough. Yes, there are. Okay, I don't want to go down that road. But you know that in South Africa there are advocates, like me, who belong to a particular bar, but there are also other people who are independent advocates. Correct?

Mr Sithole: Correct.

Adv Mpofu: Attorneys sometimes use us, the conventional advocates, but sometimes they use the other advocates particularly before the [Legal Practice] Act came into being, that was the practice. Correct?

Mr Sithole: Correct.

Adv Mpofu: And I don't know what the situation is now under the Act, but I think that even those independent advocates are now required to be registered with the Legal Practice Council (LPC). But before that, that was not a requirement. Correct?

Mr Sithole: Correct.

Adv Mpofu: Right. Okay. Chair, I'm trying to keep to my promise. I just want to see if there's any other specific… just bear with me one second… The issue that was being raised by my colleague was the issue of deadlines. I think in fairness, Mr Sithole, we covered that. You did acknowledge that to achieve some of these unprecedented achievements that your Office has achieved, and as you correctly say, credit to everyone, the entire team, the performance management, among other things, was driven by this issue of imposing deadlines. Correct?

Mr Sithole: Correct.

Adv Mpofu: And it was that discussion that you and I had about trying to marry quantity versus quality. Both the quality and the quantity has to be doubly driven. In other words, if you are sitting at a Think Tank or Dashboard, or whatever it is, it can’t just be a question of saying you must do this next week. You must also do it properly. Correct?

Mr Sithole: Correct.

Adv Mpofu: Otherwise anyone would comply with all deadlines if it there was no quality element to it, because you'd simply just submit whatever, show the work you have done. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes, and that offices like this which service the public in particular. I mean I know in my experience because of the space that I'm in, the judiciary, if a judge doesn't issue a judgment within three months, then the Judge President starts to put pressure on them. If they don't do it after six months, then it is regarded as misconduct. I suppose they get an audi letter or whatever the equivalent is. But you would know as a person who's involved in the courts, that there are timelines beyond which you can complain as a litigant if the judgment is not out. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. Those rules are indiscriminate in the sense that it might be that a judge has to do a judgement within three months in a simple matter where the file was 10 pages. Or it might be a complex case where there are 10 000 pages, but they still have to deliver within the timelines otherwise it's misconduct. Correct?

Mr Sithole: Correct.

Adv Mpofu: Yes. Quite frankly, and I'm now asking you as a South African, we would never be able to achieve service delivery if you don't impose deadlines, even if those deadlines might be uncomfortable. Correct?

Mr Sithole: Correct.

Adv Mpofu: Thank you, Mr Sithole. Maybe I should ask you this seeing that the Chairperson has not stopped me yet. I'll ask you one more question. As a South African would you agree that we should never reach a stage in South Africa where we punish people for performance or over performance? Leave alone those who give us load shedding, for example?

Mr Sithole: I'm not sure if I get that.

Adv Mpofu: No, it's fine, Mr Sithole. Thank you very much, Chairperson. I have no further questions.

Committee Member questions to Witness: Mr Muntu Sithole

Ms E Peters (ANC): With respect to the Vrede Dairy litigation matter brought by the DA and CASAC, you’d remember the Office of the Public Protector appointed two separate legal counsel for the same matter. Were you consulted about this by the PP?

Mr Sithole: We were consulted by counsel.

Ms Peters: You were consulted by counsel but not the PP?

Mr Sithole: If Ms Peters is referring to us employing two sets of counsel. The evidence I gave was that we were requested by Adv Vuyani Ngalwana, who was a senior silk in the matter, to get the services of an additional senior counsel to assist in the filing of Heads and the arguing of the matter in respect of CASAC. If Ms Peters is referring to that, yes, we were consulted by Adv Ngalwana who was with the junior at the time.

Ms Peters: My second question is with regards to there being a panel of attorneys in the Office of the Public Protector. I want to know from you, why does it seem like Seanego is getting the lion's share of the cases?

Mr Sithole: Yes, it may seem that Seanego gets the lion's share of cases. But the truth of the matter is that they have matters which have received a huge public coverage. That has created an impression that they are the only firm that has actually done matters for our Office. But you will see even in the schedule that the evidence leader has shared with the Committee, which we may share next week once we confirm the figures, even in the schedules of litigation, you'll see that actually there's one or two other firms that has received more work from us than Seanego. The only difference is that Seanego has received matters that have received a huge public coverage. Secondly, the matters dealt with by Seanego are matters that are interlinked. So its matters that relate to the same questions of law, or they are linked in terms of the web of facts or litigation. For example, the two Gordhan matters raise the same questions of law. Then the Speaker matter arises from the same charges that relate to Mr Gordhan matters, and CASAC matters, and I think one other matter in which Mr Seanego has been involved. That, Ms Peters, will explain why Mr Seanego is actually representing the PP now because the firm has been involved in all these matters that are now sitting before this Committee for determination. So it's not a matter of a random selection that we want this one. Otherwise, it would have been more expensive to get five sets of lawyers to deal with matters that are interrelated. It would have meant that we needed to appoint, for example, for the purposes of this exercise, more than one attorney who must now bring these files that relate to this matter. Whereas we have Seanego who already has records of Pravin Gordhan on two matters, already has records on DA / CASAC. So it's just the issue of cost effectiveness and convenience, so to speak.

Ms Peters: With regard to the CASAC matter, how does the Office of the Public Protector arrive at the point where a law firm is removed for a preferred one, in this instance being Seanego?

Mr Sithole: I can't remember exactly why we removed the previous firm. But we engaged Seanego only for the purposes of appeal. The litigation in the High Court was done by TGR. Then we engaged the services of Seanego Attorneys, I think from the appeal stage, if my memory serves me well.

Ms Peters: Has this scenario, Mr Sithole, played itself out in any other case?

Mr Sithole: Is Ms Peters referring to the one of removing an attorney?

Ms Peters: Yes, Chair.

Mr Sithole: Yes, it has. As you will recall, Adv Bawa indicated earlier today that we had Cheadle Thompson noting the judgment in the Constitutional Court. We had Fasken before Cheadle, and there was a dispute between the Office and Fasken. But the dispute came after the hearing. So we changed attorneys there. There was another instance in the matter of PP versus Breytenbach, where we changed attorneys because they were not delivering the service required. So when I joined Legal Services, I remember my senior then preparing a memo that we must terminate a certain firm for another. Thank you.

Ms Peters: Thank you, Chair.

Ms T Mgweba (ANC): Mr Sithole, in your affidavit in paragraph 18, you said that problems do arise – the investigation team cannot find documents on which they relied for a report, although it was available to them at the time they drafted the report. Mr Sithole, how so? Do you want to tell this Committee that at the PP Office there is incompetence, that your systems are questionable in keeping records from investigations?

Mr Sithole: I wouldn't say there's incompetence. I think it's just the issue of record management. I'm happy to take the pinch for the investigators in the sense that we don't have a proper filing system at PPSA. So if you are an investigator, for example, you investigated a matter in 2016, you concluded it, most likely that investigator is sitting with the box of those files, despite the fact that the matter was concluded and there's new matters that come in. So it presents problems sometimes to actually even trace some of the documents that you had in your possession. You have to look at each and every box. That's the problem that the investigators communicate to me. But even myself, having been an investigator previously, I can confirm that record management was a problem and not necessarily the issue of incompetence.

Ms Mgweba: And in paragraph 21, the Public Protector report on the Vrede Dairy matter indicated that the PP did not investigate some matters due to capacity and financial constraints experienced by the Office. Without describing the capacity or financial restraints, do you think the reasons advanced by the PP for not investigating the matters thoroughly were justifiable? If yes, why?

Mr Sithole: My view on that was, or is, that the PP was not saying, “I'm not going to investigate these matters”, but she was saying, “I'm deferring the investigation”, if my recollection serves me well. I think that's what was also filed in the papers in court where our argument was that the PP can actually opt out or defer some of the investigation to a later stage. So the recordal of financial constraints, I don't think it necessarily meant the PP is refusing to investigate at that time, but I think it meant those issues can be investigated later on.

Ms Mgweba: Last question. The evidence, Mr Sithole, before this Committee, is that the CR17 matter was prepared by Mr Paul Ngobeni and submitted under the name of Seanego Attorneys; then Seanego paid Mr Ngobeni for his work. Did you receive instructions from the PP to instruct Mr Ngobeni to do any work? And if so, in relation to what precisely?

Mr Sithole: Yes, I think I previously stated when I was here, that the instruction firstly came from Mr Nyembe, who would have in most likelihood consulted with the PP. To be specific to CR17, it was for the purposes of an opinion which was projected the last time by the evidence leader.

Dr M Gondwe (DA): Please can you confirm what Mr Ngobeni’s qualifications are and what his professional background is?

Mr Sithole: I can’t confirm that now. But I know that he has a legal qualification. He practiced as an advocate in the United States until he came back to SA. I can’t confirm out of my head what his qualifications are.

Dr Gondwe: Okay, I know you've already confirmed this in your evidence-in-chief. So you confirm that, to your knowledge, he is not a senior counsel? And neither is he registered with anybody in the country?

Mr Sithole: Correct.

Dr Gondwe: And neither is he an attorney?

Mr Sithole: Correct.

Dr Gondwe: So can you please confirm in what capacity Mr Ngobeni was engaged by the Office of the Public Protector? What did the agreement engaging him to provide service to the Office of the Public Protector stipulate? Did it stipulate that he was being engaged as counsel or a consultant by the Office of the Public Protector? And what sort of service did the agreement canvas when he was appointed? I'm asking this because I want to get clarity on the type of services that he was rendering to the Office of the Public Protector, because in your evidence-in-chief, at the beginning, you stated that he was providing a legal opinion. I want to understand the basis of his engagement.

Chairperson: So what is your question again, before he responds. You have said so much. Even the Chair gets lost about what your question is.

Dr Gondwe: I wanted him to confirm in what capacity Mr Ngobeni was engaged by the Office of the Public Protector, number one. Did the agreement that confirmed his appointment – I assume he was a service provider – stipulate whether he was being engaged as counsel or as a consultant by the Office of the Public Protector? And I want detail around the type of services he was rendering.

Mr Sithole: Capacity – he was briefed as an advocate, not as senior counsel, so he was briefed as counsel. Nature of the service – he was briefed to provide opinions on various matters. In terms of the agreement, there is no agreement put in place between the Office and the counsel or the advocate. We enter into an agreement with the attorney. In our letter, which we projected today, you see that, when we appoint an attorney to get counsel advice, we say these are the issues that counsel must provide an opinion on. So that is the nature of the engagement of counsel.

Dr Gondwe: Chair, Mr Sithole looked the other way when he's responding so I didn't catch some of his responses. Can he just repeat what he said?

Mr Sithole: Okay, sorry. Apologies, Chair and Dr Gondwe. Chair, the reason for that is that I write the questions down. I look at them when I respond. But I will respond then without looking. The first question was capacity. He was engaged in his capacity as an advocate. Nature of the service, he was engaged to render an opinion on various matters. Agreement, there was an aspect of the agreement. We don't conclude an agreement with the counsel, we conclude an agreement with the attorney which details the nature of the questions of law, which will require the counsel to render advice on.

Dr Gondwe: Can you confirm which attorneys used him in providing those legal opinions?

Mr Sithole: Seanego Attorneys.

Dr Gondwe: So I just want to get the story correct. Mr Nyembe recommended to who that Mr Ngobeni should be used? Did he make that recommendation to Seanego Attorneys or did he make it to the Office of the Public Protector?

Mr Sithole: He made it to Seanego Attorneys. Even if he communicates it to us, we then pass it on to the attorney who is appointed to assist.

Dr Gondwe: Okay, I take it then that Seanego Attorneys briefed Mr Ngobeni, knowing full well that he was not a senior counsel, and neither was he registered with any bar in the country? And neither was he an attorney?

Mr Sithole: That's correct.

Dr Gondwe: Seanego Attorneys briefed Mr Ngobeni of their own volition? They were not influenced by Mr Nyembe as Special Advisor at the time?

Mr Sithole: No, that's not correct. The choice of counsel is from our Office in one of the scenarios if we look at the seven scenarios that Adv Mpofu stated. Mr Seanego will not have on his own briefed Mr Ngobeni. That instruction would come from our Office.

Dr Gondwe: Come again, because earlier you indicated he was briefed on the advice of Seanego Attorneys.

Mr Sithole: No.

Dr Gondwe: No, okay. So please just…

Mr Sithole: Okay. Let me then try to simplify it. What happens is, let's say we want to obtain an opinion from a counsel in respect of a specific area of law or whatever. What we do, because we have a panel of attorneys, we select from the panel of attorneys who we want to appoint, and then we instruct that attorney to appoint the counsel, who will render an opinion on the questions of law which we seek clarity on. Then the attorney will on those instructions appoint that counsel to provide an opinion.

Dr Gondwe: Mr Nyembe played no role in Mr Ngobeni being briefed by Seanego Attorneys, is that what you are saying? And the Office of the Public Protector didn't play a role in that scenario?

Mr Sithole: No, he played a role. What we said is that he is the one who recommended Adv Ngobeni to render these services. So on those instructions, we communicate the instructions to the attorney to say, “Please brief so and so to render an opinion on this.” It’s the same thing with litigation. We will give an attorney an instruction to say, “ Brief so and so.” Or the attorney in some instances will say, “We prefer so and so to do the work for you.” So it's always the instruction of the client to get the choice of counsel.

Dr Gondwe: So the Office of the Public Protector requested that Mr Ngobeni be briefed by Seanego Attorneys, knowing full well that gentleman in question is not a senior counsel, he's not registered with any bar in the country. neither is he an attorney. Is that your evidence?

Mr Sithole: Correct. Yes.

Dr Gondwe: I want to be honest with you, I find it extraordinary that Mr Ngobeni was remunerated by the Office of the Public Protector to write online articles in defence of Adv Mkhwebane, under the pretence or the guise that he was, in fact, providing legal opinions. I mean these online articles were passed off as legal opinions in the various fee notes and invoices. Were you aware of the fact that he was in fact writing these online articles in defence of Adv Mkhwebane and they were being passed off as legal opinions?

Mr Sithole: No, I don't think that is correct. What I said in my evidence, which I repeat now, he was sourced to render a legal opinion. Those opinions have been provided to the evidence leaders, and I think they've been provided to the Committee. In addition, he then wrote articles which were published, I believe, in one or two media outlets. So the opinions were there, if there was a question of guise, it would have been in an instance where there is no opinion at all, then I would have said, “No, this is a guise because he never rendered an opinion.” So there was an opinion.

Dr Gondwe: But we were shown fee notes or invoices that allude to legal opinions. But in fact, it was a link to an online article. How would you explain that?

Mr Sithole: No, I don't think that's correct. The fee note you're referring to, I think the first item relates to drafting of an opinion. There's a few other items that follow and I think the last two items then relate to the articles. So the opinion is the first item.

Dr Gondwe: Just quickly. So Mr Sithole, you are denying that he was in fact remunerated by the Office of the Public Protector for those online articles?

Mr Sithole: No, I was responding to the question of the guise, that he was guising writing opinions in the place of articles.

Dr Gondwe: So he was paid for those online articles, is that what you're saying?

Mr Sithole: He was paid because those invoices were paid that were projected here. He was paid for the opinion and those items that are listed in that invoice, which included writing and publishing in particular. That's in one invoice. I'm not denying he was paid otherwise I would be lying.

Dr Gondwe: Oh, okay. You’re not denying that you signed off on the ERN1 form?

Mr Sithole: Yes.

Dr Gondwe: You are confirming that the services were in order, including the online articles. But is this not in contravention of SCM regulations?

Mr Sithole: I'm not sure in what way.

Dr Gondwe: Because there's no mention. I didn't see a mention in those fee notes of any online articles. I saw references to legal opinions. I want to understand. Was he paid for the legal opinions together with the online articles? I mean, I'm really baffled.

Mr Sithole: Yes. I've already confirmed that that was paid for.

Dr Gondwe: Alright.

Mr Herron: Mr Sithole, I want to start with your affidavit at paragraph 43 where you refer to the EFF v Speaker of the National Assembly decision. You say when Adv Mkhwebane assumed office, there were approximately 25 review applications "with it being clear that the number would increase in future". That portion where you said it would be clear that the number would increase in future, was that in relation to the findings of the EFF v Speaker? Is that what you’re saying? That you're expressing a view that the EFF v Speaker of National Assembly case would give rise to an increase in the future? Where does that come in?

Mr Sithole: The context for that, Chair, is that the EFF v Speaker judgment essentially was to the effect that the remedial action of the Public Protector is binding, meaning once the Public Protector issues a report and she takes a remedial action, the person who must implement or who is being implicated has no choice but to implement the remedial action. So the context of the rise in litigation meant each and every report was most likely to be challenged, because no one will want to sit with the report which the findings one doesn't agree with, without implementing the immediate action. So the spike is that almost everyone against whom a finding is made and a remedial action is meted, will then go to court to challenge that. Pre-Nkandla… and maybe to add extra context on the Nkandla matter, the submissions by the former President in this matter was that the remedial action of the Public Protector is a mere recommendation. It's not binding. Previously, that's how the remedial actions of the Public Protector were treated. They were treated as a mere recommendation with no significant legal consequences. So the EFF judgment effectively said no, the remedial actions of the Public Protector are as good as a judgment. If you're not happy with it, you must take it on review. Or you must implement. That's the context of what gave rise to litigation after the EFF judgment. I'm not sure if Mr Herron is covered by that response.

Mr Herron: Yes. Thank you very much. So did that line in your affidavit and that concern or observation that the judgment would change the landscape for the Public Protector, was that factored into the litigation strategy and protocol that you refer to in your affidavit and when you gave evidence?

Mr Sithole: Yes. Actually, if you look at that strategy, it actually quotes the same judgment. It was factored in.

Mr Herron: When we saw the table of legal costs over the last six or seven years, would the legal costs then have included securing or defending the report that gave rise to that judgment?

Mr Sithole: Can you please repeat?

Mr Herron: Earlier today we saw a table of legal costs. I think from the start of 2015/2016. It was just an amount that was spent in each financial year with a total of R146 million. Included in there, would that have included the securing of the EFF judgment which gave rise to remedial action is binding?

Mr Sithole: I think so Mr Herron, I must just check with Adv Bawa, if there's fees that go up to the stage of the current PP, but I think it does. Yeah.

Mr Herron: I've two more questions. I want to go back also to the appointment of Mr or Adv Ngobeni. In the process of selecting counsel or experts to give advice to the Public Protector, I mean, is there a process where Legal Services or the Public Protector would consider the appropriateness of the appointment? I say this with regards to Mr Ngobeni, because, as far as I understand, he was disbarred from practicing law in the United States of America. Was there no internal process that would say this is not an appropriate appointment?

Mr Sithole: No, I wouldn’t say there was a process for such because I think the instruction would have come after that has been given a thought.

Mr Herron: Sorry, after?

Mr Sithole: The issue of appropriateness is given a thought.

Mr Herron: I'm sorry, I don't understand the answer. My question is when you or someone is giving names to the attorneys appointed, is there no process where those names are considered for appropriateness, regardless of Mr Ngobeni’s past? Anybody? If you decided to appoint Brett Herron, as an expert on reserve banks or central banks, I would not be an appropriate appointment. Is there no process to assess the appropriateness of the appointment?

Mr Sithole: No, there's no process.

Mr Herron: So there’s just a name and if you're happy with that name that person is appointed, regardless of any assessment?

Mr Sithole: Yes. What I was trying to explain is that when the instruction comes to me, I believe the person who gives the instruction has already made an assessment whether the person is appropriate enough to actually render the service.

Mr Herron: My last question Chair. When you were last here, Mr Sithole, there was some evidence led that the Public Protector was involved in suing for defamation after she'd been called a spy. There was some uncertainty as to whether the Office of the Public Protector or the Acting Public Protector had withdrawn legal services for that case. Has that been clarified? Can you tell us whether that has happened or not?

Mr Sithole: I don't think it has happened.

Mr Herron: There hasn't been a withdrawal of legal services for that case?

Mr Sithole: No. Since Adv van der Merwe will come in, we can perhaps clarify that position.

Mr Herron: Thank you.

Mr Mileham: Mr Sithole, do you have any media or communications qualifications?

Mr Sithole: No.

Mr Mileham: Are you a communications expert in any way?

Mr Sithole: No.

Mr Mileham: Can I ask, Chairperson, that the evidence leaders flight the invoice of Seanego Attorneys, the one with the two articles listed? You'll see there that it says, “Looked at published articles.” If we scroll down a little bit more, “Researched, drafted, and published an article on Mboweni’s attack on Public Protector and judicial review.” Then if we scroll down, it says, “Researched, drafted and published articles on State Security Minister’s attack on Public Protector – constitutional mandate of Public Protector and apartheid.” And it's signed Paul M Ngobeni. I believe that's Paul Mpande Ngobeni, who is the person appointed here. Correct?

Mr Sithole: Correct.

Mr Mileham: Okay, now, where does that fit into a legal opinion?

Mr Sithole: My response to this is that we must start with item one. If they…

Mr Mileham: I'm sorry. I don't want to start with item one. I want to start with the item that's on the screen, “Researched, drafted, and published article on State Security Minister’s attack on Public Protector.” How does that fit in with a legal opinion?

Mr Sithole: Chair, I will request to go back to my answer on the context of my involvement in this invoice. I'm saying if we go to the first two items, they refer to the drafting of an opinion. That’s my response in relation to this specific invoice. If you look at item one, two, and three, those speak to an opinion, those three. Then the following ones are the ones that then relate to publishing of articles. I think it's the last two items that Mr Mileham referred to.

Mr Mileham: Okay, that's fine. First of all, with regard to what Dr Gondwe was asking, we've established that Mr Ngobeni is not an advocate. He's not an attorney. He's not registered with the legal professions council. He is in a report of the Public Protector, which has not been set aside, described as a fugitive of justice. Now that is a 2012 report of the former Public Protector. On what basis would he have been appointed to, first of all, provide an opinion and, secondly, to provide communication services to the Office of the Public Protector?

Mr Sithole: As I've stated, the instruction to appoint counsel came from the late Mr Nyembe. As far as I know, when I came into Legal Services, Adv Ngobeni had already provided an opinion on the appointment of special advisers. That was before my time. So when I came in, I knew him as Adv Ngobeni and on the instruction, it's that, “Please appoint Adv Ngobeni to provide an opinion on this and that”, and then he was appointed on that basis. But as to why perhaps Mr Nyembe believed that he was credible, I wouldn't comment or know.

Mr Mileham: Let's stop referring to him as Adv Ngobeni, because we've established that he's not an advocate. That's the starting point. But let me come back to that invoice.

Adv Bawa: Can I maybe inquire as to the starting premise as to whether he is or he is not an advocate because I don't know that, so I'm not sure how Mr Mileham has established that.

Mr Mileham: I checked on the LPC website.

Adv Bawa: Maybe as a point of clarification, not all advocates are necessarily…

Mr Mileham: Okay.

Adv Bawa: I'm not disputing whether he is or isn't. I'm just not sure.

Mr Mileham: Okay. I'll withdraw that.

Chairperson: Thank you Adv Bawa. So we have not established that yet, Mr Mileham.

Mr Mileham: Okay, fair enough.

Chairperson: You might carry a view.

Mr Mileham: Okay. That’s fine. You signed off on this invoice. Is that correct?

Mr Sithole: Yes.

Mr Mileham: And you paid Adv or Mr Ngobeni. Can we see the amount that he was billed there for those two articles? It looks like at R87 000, amongst other things, for the two articles.

Mr Sithole: No, that's not for the two articles.

Mr Mileham: I’m sorry. I'm looking at…

Mr Sithole: Okay. Sorry Mr Mileham.

Mr Mileham: So the figure that appears there is Mr Ngobeni’s fee, R87 000. Am I incorrect in that amount?

Mr Sithole: No, you're correct.

Adv Bawa: Sorry, Mr Mileham. If I can assist you. The invoice of Mr Ngobeni shows 43.5 hours which translates at the rate of R2 000 an hour into R87 000.

Mr Mileham: Okay, so it was 43 hours, which translated into 43.5 hours, which translated into R87 000. If we see how many hours were billed on those two items. It's 11 hours and 6.5 hours. That's 17.5 hours. That's 17.5 x R2 000, that's nearly R30 000 for two articles. Is that correct?

Mr Sithole: Yeah, I think that's a correct round figure.

Mr Mileham: Okay, that's a good rate for writing an article. But we've already established that you're not a communications expert. I'm still not clear what authority you have to pay for articles, not legal opinions, articles that are published in an online publication.

Adv Mpofu: I just, I mean, the questions are misleading. I'm not sure if it's deliberate or not. But can we just show the full item because Mr Mileham stopped reading at the point where it doesn't fit with his theory. Can you put up that invoice? The first one talks about… that's the one that Mr Mileham read up to the word “attacks on Public Protector”. He left out deliberately, I think the “constitutional mandate of the Public Protector and apartheid-era classification of documents issues”, which I don't know if he also says that's not a legal issue. I suspect that's why he didn't read that part. So let's ask…

Mr Mileham: Sorry, Chair. I must object Chair. I'm objecting on the basis that…

Adv Mpofu: No…

Mr Mileham: Can I please, Adv Mpofu. I’m objecting on the basis…

Adv Mpofu: Yeah but can I finish talking? Don't interrupt me.

Mr Mileham: Adv Mpofu, you interrupted me.

Adv Mpofu: I did not interrupt you. I asked the Chair.

Chairperson: Just respond Adv Mpofu.

Adv Mpofu: Thank you.

Chairperson: If you object you must allow the Chairperson to allow you to object. You can't just proceed because you're objecting. I would like you to wait for Adv Mpofu to finish and then I'll hand back over to you.

Adv Mpofu: Thank you very much Chairperson. Yes. I avoided interruption by putting my hand up deliberately. But thank you. No, I'm saying Chair, that it's important, just as a general principle, that the questions must be fair and not be deliberately misleading. My objection is based on the fact that the previous question, in my view, was deliberately misleading, insofar as it left out the full item, because there's no point in saying so many hours, but you've only read one part of the item. The witness obviously is going to say, “Yes, R30 000.” But the R30 000 is actually not for the quarter that Mr Mileham has read, but for the full thing. So let's  not mislead the witness. You still get the same truth. Thank you, Chair. I’m done.

Mr Mileham: Sorry, Chair. Can I now raise my objection? Chair, I object to the fact that my question has been referred to as deliberately misleading. I have not deliberately misled the House. I request that Adv Mpofu withdraw that. I asked a question because the invoice says, and it reads quite clearly: “Researched, drafted and published article” and then it gives a long title. Then it says at the end after the full stop, “Published at". The whole piece there is not about a legal opinion. It is about an article that was researched, drafted, and published. I would request, Chairperson, that Adv Mpofu immediately withdraws the suggestion that I was deliberately misleading this House.

Chairperson: No, Mr Mileham, I’ll attend to that. I want you to continue with your question, because the point he was raising was that you did not read the full name.

Mr Mileham: Chair, he did say I was deliberately misleading.

Adv Mpofu: No, I didn’t.

Chairperson: I got that part. But I think his emphasis is you reading completely everything else. I wouldn’t want us to spend time on this.

Mr Mileham: Thank you Chair. My question to Mr Sithole was, on what basis, what authority, does he have to sign off on communication?

Mr Sithole: As I stated, Mr Mileham, the first three or four items relate to the rendering of an opinion. If you look at the two items that you query, they relate to the opinions in which we sought Mr Ngobeni’s services. But I wouldn't want to take it to an extreme and say that that invoice only related to the publishing of an opinion. If that was the case, I would not have had any authority whatsoever to process that invoice. So for me, my response is the first three to four items relate to the rendering of an advice.

Mr Mileham: And the last two items were outside of your scope of authority?

Mr Sithole: That is not rendering of an advice. It was the publishing of articles.

Mr Mileham: I'm sorry, I didn't understand that. It was not relevant to?

Mr Sithole: So it's publishing of articles. It's not rendering of a legal opinion.

Mr Mileham: So publishing of articles is not rendering an opinion?

Mr Sithole: Yes.

Mr Mileham: So then how can you pay for it?

Mr Sithole: I paid for the opinions.

Mr Mileham: Yes, but part of that invoice was not opinions. You've just said that the last two items were not rendering an opinion, so how can you then pay for it?

Mr Sithole: Yeah, maybe let me repeat. Maybe, Mr Mileham, if I may repeat, if you check the articles that are referred to and you check the first three items, they relate to the same issues. So I will say this will be my view that that was probably a value add to him rendering an opinion. That will be my view, to say to publish those articles in relation to that will be a value add to him rendering an opinion.

Mr Mileham: If it was a value add, Mr Sithole, with the greatest of respect, if it was a value add, there would be a zero hours next to it. But the fact of the matter is that he billed 11 hours and 6.5 hours for publishing articles attacking government ministers for their statements about the Public Protector. Now again, how does that relate? How do you, you Mr Sithole, who signed off on that invoice, who paid that account? You know, if I get an invoice and I dispute something on it, I send it back and I get a corrected invoice. If these two items are outside the scope of my authority, I'm not going to sign off on it. So how do you justify signing off on two items that are not within your scope of authority?

Mr Sithole: Yeah, that's why I'm saying that was probably a value add, and value add not in the sense of monetary terms, but in the sense of an extra service that this person gives you over and above the principal service which you sourced him for. Maybe let me put it this way. I don't think you will want to appoint him to give you an opinion and then separately appoint him to draft two articles that relate to the same opinion on which he gives you an invoice. But, Chair, I must also not be difficult to Mr Mileham and say to an extent that that should have come separately, we should not have processed those specific two items, I will agree to the extent that it sits at my door because I signed off that invoice.

Ms Mananiso: I think, Chair, with regards to Mr Ngobeni’s services, I'm covered by Dr Gondwe and Mr Herron. But my follow up question to Mr Sithole is do you agree that there would have been no need to engage him through Seanego Attorneys if he was not a practicing advocate?

Mr Sithole: Please repeat.

Ms Mananiso: With what’s been said or questioned today by other Members with regards to the services of Mr Ngobeni or under Seanego attorneys?

Mr Sithole: No, I think context points to the contrary in respect of the opinion. I understand the issues that are raised by the Members about the articles, but in respect of the opinions, I wouldn't say that was wrong.

Ms Mananiso: Okay. Then, let me go to your affidavit. On your affidavit you have indicated your responsibilities or duties given to you at the PPSA. I want to ask you this question with regards to your understanding and experience on administration, governance, and leadership. Do you think that the PPSA, where it is now, there's a need for organisational behavioural change?

Mr Sithole: Maybe if you can expand on that? On the issue of organisational behavioural change.

Ms Mananiso: Okay. My explanation, it's with what has been said by other witnesses and things that have been happening, for example, you have alluded to the issue that there is no proper filing. So in an organisation like PPSA, you don't need to experience such because you've got the best human capital that would actually know the basics on putting those systems in place. Hence, I'm asking that in terms of whatever that you have listened to in this particular committee, it is it important that the organisation itself go through the process of changing some of the cultural behaviours in the organisation? That's what, actually, I was asking about.

Mr Sithole: I don't think the problem, maybe to dwell on record management. I don't think it's necessarily poor record management which will need behavioural change. But it's the issue of record keeping such as insufficient storage, such as a proper filing system that the institution has. It's an organisational administrative need, which I think the organisation is currently embarking on a process to rectify that aspect. But I wouldn't put it as poor record management individually by the investigators, or incompetence in terms of record management. As I've stated, I've given an example that the investigators actually sit with files, some of which date as far back as 2016. They sit with them in their office because we don't have storage. There are no proper filing systems if I may put it that way. So if you mean, there must be change, it’s not necessarily behavioural change, but systems must be put in place to ensure that there's proper filing and record management.

Ms Mananiso: Okay, but I think as the person who is in charge of such institution you need to explore what is the organisational behavioural change, because in your organisation there's so many things that are happening with regards to how people are being treated, and others who feel that they are mistreated because of the proximity with the PP. So in future, because you've got a bright future ahead of you… The other thing that I want to ask Mr Sithole, is if you were given an opportunity to speak about the leadership style of the PP, what would you say? Because the last thing that I've noted when you were questioned about how she is, you were so excited about telling us…

Chairperson: Let’s stay on the question. What's the question?

Ms Mananiso: … she has a sharp mind. So I just want you to tell us about how are her leadership skills. Chairperson, don't intimidate me.

Mr Sithole: I will say PP is results-driven. If she sets a target, she will go out of her way to make sure that that target is met. I've also been at the receiving end of not meeting some of her targets at Legal Services. I don't think it's something which I can say it's out of the ordinary. It's something that any PP will do, actually, especially when it comes to a highly charged environment such as ours. So for me, I would say, if there's one word that can summarise her leadership skills, is that she is results-driven and I think we all…

Ms Mananiso: My last question, Mr Sithole. In your response to the evidence leaders you took us through that actually as the Office you don't follow the normal supply chain management procurement processes. So I want to check with your that whatever you are using as the process to identify service providers, is it supported by legislation? And if not, why? Thank you. That's my last question, Chairperson.

Mr Sithole: No, I don't think we said that. I think probably the Member refers to appointment of counsel. We have a procurement process for appointment of attorneys who are on the panel of our attorneys. We don't have a procurement process for appointment of counsel, which I think the institution is currently considering putting in place. So yeah, I will say in respect of counsel there's no procurement process because we source their services through attorneys and attorneys appointed in terms of the procurement process.

Mr Nkosi: Mr Sithole, you will know that the PPSA is a Chapter 9 institution, isn't it?

Mr Sithole: Correct.

Mr Nkosi: Therefore, it can do nothing that is not in the Constitution, in your enabling legislation, in your standard operating procedures and SCM?

Mr Sithole: Correct.

Mr Nkosi: Okay, thank you. If that is the case, Mr Sithole, when you joined Legal Services, did you 1) thoroughly examine the MOU between you and Seanego Attorneys?

Mr Sithole: I'm not sure if I get. There's no MOU between us and attorneys.

Mr Nkosi: Oh when you brief them you just brief them? You don't get back an undertaking that says, “We are briefing you to do 1, 2, 3 and in 1, 2, 3 you can do only 1.”

Mr Sithole: Yeah. So in the letter that I referred to earlier, we will say we appoint them to render which service. So it will be specifically to that and not be all encompassing.

Mr Nkosi: Did you do any due diligence in respect of counsel that Seanego engaged, in this instance Adv Ngobeni?

Mr Sithole: Did we do due diligence on Adv Ngobeni?

Mr Nkosi: Yes. In other words, did you check if 1) he qualified, 2) if he has any criminal or any other record against him, 30 if he has rendered any opinions before? And as an organ of state if he appears in National Treasury’s records as a service provider?

Mr Sithole: No.

Mr Nkosi: And you proceeded to pay him irrespective of that?

Mr Sithole: We paid him for the services he rendered.

Mr Nkosi: Yes, I know, you paid him for the service he rendered. But there's a first step. The first step is to check whether this person in terms of your due diligence, 1) has the capacity, 2) is he properly qualified, 3) does he appear on the list of service providers with National Treasury?

Mr Sithole: Mr Nkosi, I think in my previous responses I’ve stated that we appoint the attorney, then the attorney appoints the counsel, in most instances on our instruction. So Adv Ngobeni, Adv Mpofu, Adv Bawa will not appear on the National Treasury list as service providers because they render a service on a third party basis. So they are appointed by attorneys to render the service. The attorneys will be on the panel of attorneys. They also will be on National Treasury's Central Supplier Database (CSD). So you will not look into that in respect of professional services.

Mr Nkosi: But despite that you continued? Despite not knowing the background of this fellow that is being used. If I'm appointed and I'm a criminal, it doesn't matter to you? Or I've got a criminal record, it doesn't matter to you as an institution of state, as an organ of state?

Mr Sithole: Well Mr Nkosi, I think that will be incorrect. But as I've already stated, when I joined Legal Services, Adv Ngobeni had already rendered one if not two legal opinions. Then when I was instructed to instruct the attorney to brief him, I came with an assumption that he is indeed an advocate. I didn't do any due diligence, as you put it.

Mr Nkosi: So it was an incorrect assumption in retrospect, isn't it?

Mr Sithole: I wouldn't say so because he did render those opinions.

Mr Nkosi: I'm not asking whether he rendered or he didn’t. I'm saying, from the onset, this person is incapacitated, he's not qualified to give you a service because of impairments that he suffers in his profession. From the onset. So it doesn't matter whether he continues to do. In fact, when you continue to use their services, you're continuing an illegality. Am I not wrong?

Mr Sithole: You are wrong Mr Nkosi. As I've already stated, he did provide legal opinions. Those opinions were made available to the Members. Then whether the opinions are correct or not, it's a question for another day. But for me, he was appointed to render an opinion. as I've stated, and I think the previous Member asked if we have a system in place where we enter into an agreement with advocates, we unfortunately do not. Therefore if maybe that process was in place, we would have then probably have terms that we put there to say if you appoint an advocate he must be someone who belongs to this bar, he must have this number of experiences and advocate and blah, blah, blah. So there was no specific criteria that binds us to the appointment of an advocate. I am not sure if Mr Nkosi is answered.

Mr Nkosi: So you appointed him despite the fact that you are not allowed by the Constitution, by your own founding legislation, and your standard operating procedures and SCM?

Mr Sithole: No, we are not restricted by any of those pieces of legislations you have mentioned.

Mr Nkosi: Alright. My next question, Chair, relates to, evidence was led here that at a particular point in the service of Adv Mkhwebane, cost-cutting measures were introduced, which resulted in other aspects of the PP where PP’s work not being achieved. These funds were then surrendered or suspended to Legal Services. Are you aware of that? In other words, your budget as Legal Services increased at the expense of other programs, particularly Outreach. Are you aware of that?

Mr Sithole: Yes.

Mr Nkosi: Were you not surprised that all of a sudden your budget is just increasing at the time?

Mr Sithole: No, Mr Nkosi, the context is incorrect. Our budget was not increasing. It's only that the institution could not commit funds to other programmes because the expenditure will then constrain the overall budget of PPSA. So it was more of a strain than it was of taking from one function and bringing it to Legal Services. I think, if my memory serves me well, we always got assistance from the Department of Justice whenever we exceeded our budget.

Mr Nkosi: But that's not the evidence of other people who came before you.

Mr Sithole: That’s their evidence.

Mr Nkosi: Yeah, it's not their evidence. Their evidence is that money was taken from other programmes to Legal Services without even asking for Treasury virements and permissions. But anyway, my next question Chair…

Adv Mpofu: No, no. Chairperson, it’s the same issue that I'm raising – we must all refrain from misleading the witness. Who is this person who said money was taken from one cost centre and put to another? There's no such person in this inquiry. Please let's not mislead the witness. Ask questions, and you can put them as biased as you like. But don't mislead the witnesses.

Mr Nkosi: Chairperson, it was Mr Samuel.

Adv Mpofu: Oh. Mr Samuel didn’t say anything like that.

Chairperson: No, Adv Mpofu please don't do that.

Adv Mpofu: Okay, Chair.

Mr Nkosi: Can I be protected from this onslaught?

Chairperson: I’m trying to do that. Please continue.

Mr Nkosi: The other question to you, Mr Sithole, is the following. Is it normal practice for you to obtain services of external service providers to prepare your inputs for this Committee?

Mr Sithole: I wouldn't say it's normal practice because it was the first time that we had to make submissions in respect of the rules.

Mr Nkosi: Sorry, in respect of?

Mr Sithole: Meaning it's for the first time that we had to start the process that leads to where we are now. So I wouldn't say it's normal practice.

Mr Nkosi: So you didn't have the capacity inside as Legal Services to do that?

Mr Sithole: We assisted in addition to sourcing external services.

Mr Nkosi: Okay. Chairperson, my last issue relates to one of the comments you make in relation to a particular case that "the judge was sitting with the DA next to them", something to that effect, before they arrived at the decision. Do you consider that as an appropriate comment to make?

Mr Sithole: No, that's a wrong comment. But it was made to the PP and it is me who made it to the PP. It would have been a different story if the PP made it to me because the impeachment is about the PP, not me.

Mr Nkosi: No, I'm asking you is it appropriate?

Mr Sithole: I’m saying it's incorrect.

Mr Nkosi: Of you to say so?

Mr Sithole: Yes.

Mr Nkosi: Okay. Thank you Chair.

Closing Remarks
The Chairperson said that the Committee would now pause. They would not be resuming in the afternoon given the three-line whip for the House session – but would convene the following day at 09:00.

Adv Bawa said that the witness had made mention of having provided her with opinions on Friday morning and she only saw this after he gave evidence. At 09:00 or afterwards, he had sent her the opinion provided by Mr Ngobeni, and she did not think she uploaded it or made it available to the Members, but she would certainly do so now. That was the only opinion of Mr Ngobeni and if the Committee was reconvening, she did not have or had not been provided with any fee notes of any other opinions that had been rendered by Mr Ngobeni. If Mr Sithole could find those for the Committee overnight, that would be good.

Adv Mpofu was just worried. He thought that Adv Bawa was going to intervene because she had a very packed programme. He wanted to check as he did not know how many Members still remained to ask questions. Is it not possible to take a few more minutes and rather finish this witness, otherwise we're never going to finish on Saturday? However, he was in the hands of the Chairperson as he knew that Members had to go to the House.

The Chairperson said that he had taken that into account. The Committee had two more Members to ask questions of the witness which they would quickly deal with in the morning. The Committee was starting at 09:00, which was much earlier than usual.

Adv Mpofu said that he was going to say the Committee should start at 08:30 but 09:00 was fine.

Mr Mileham said that he was still awaiting a ruling on his objection – his point of order that he was accused of being deliberately misleading. That was unparliamentary and he requested that be withdrawn.

The Chairperson said that he had declined that.

Mr Mileham said that the Chairperson had said that he would come back to him on it.

The Chairperson reiterated that he had declined that.

Mr Mileham said that the Chairperson had declined the fact that he was being deliberately misleading.

The Chairperson said that he had tried to explain what Adv Mpofu was trying to do. So he was not making a ruling on that. He had tried to explain to him that this is what Adv Mpofu was emphasising.

Mr Mileham reserved his right to write to the Ethics Committee, the Rules Committee or whatever was appropriate.

The meeting was adjourned.