PP Inquiry day 73: Evidence Leaders

Meeting report

Chairperson: Hon Msimang, can you hear me? Hon Gondwe, can you hear me?

Dr M Gondwe (DA): I can hear you, Chair. Good morning.

Chairperson: Okay, thank you. Thank you, welcome. So I would have spoken and not knowing that we’ve got a technical problem. I'd already done the welcome to everybody in the meeting. It's now at a point of inviting Adv Mayosi, who will be taking us through today. I did indicate that we using today as a last day to wrap up the Committee sessions that we’ve started, as I indicated on Friday. So I'm going to ask Adv Mayosi again to restart. Over to you, Adv Mayosi.

Adv Ncumisa Mayosi, Evidence Leader: Thank you, Chair. Tshepo, can you put up the motion, please? So Members will recall that in the Motion that’s the subject matter of the Enquiry, it is alleged that the PP is guilty of misconduct in charge one, in relation to the SARB/CIEX matter. Tshepo, we’re going to go through it fairly quickly, because this is just for context and the Motion is already very familiar to Members of the Committee. So in charge two, she is charged with... she’s alleged to have committed misconduct in relation to the Vrede Dairy matter. Incompetence is the charge in charge three, in relation to the SARB and the Vrede Dairy matters, as well as the FSCA matter. And then misconduct and/or incompetence are alleged in charge four, and that charge which starts from paragraph 10 of the Motion encompasses a whole range of various issues. In paragraph 10, charge four includes some of the issues that Adv Mpofu has often referred to broadly as the HR matters, and those are set out in paragraph 10. But charge four also includes in support of the misconduct and/or incompetence allegations, it includes allegations of a number of failures attributed to the PP and these are set out in paragraph 11 onwards... and they are set out in paragraphs 11.1 to 11.3 - these various failures that it is alleged the PP committed. And then there’s charge four, which alleges that the PP deliberately sought... charge 11.4, Tshepo, I just want to read that. Which accuses the PP of misconduct and/or incompetence, in relation to “deliberately seeking to avoid making findings against or directing remedial action in respect of certain public officials, while deliberately seeking to reach conclusions of unlawful conduct and impose far-reaching disciplinary measures and remedial action in respect of other officials (even where such conclusions and/or measures and/or remedial action manifestly had no basis in law or in fact)”. Members will also be aware that the Motion was then supplemented by Ms Mazzone, by means of a letter dated the 11th of December 2020, which was addressed to the chairperson of the Independent Panel. Tshepo, can you go to page 11(a) of Bundle A for that letter? That is the letter from Ms Mazzone to the chairperson of the Independent Panel, which sought to just broadly speaking, supplement the Motion. The purpose of the letter is stated in paragraph two by Ms Mazzone, who says that she hereby places before the Independent Panel “further relevant written and recorded information, pertaining to the charges contained in Annexure A to the notice of motion for the institution of a Section 194 Enquiry against the Public Protector, Adv Busisiwe Mkhwebane”, and she references the earlier date of 21st of February 2020. She says, “All of the information is in the form of further orders and judgments that pertain to the Public Protector and which were issued since my submission of the aforesaid Notice of Motion. I number the annexures in sequence of those referred to in the charges attached to the Notice of Motion”. She in paragraph 4 of her letter, she states that in relation to charges two, three and four, she attaches orders of the Supreme Court of Appeal and the Constitutional Court. She continues in that letter, and she says in paragraph 5 that with reference to charges three and four, she attaches the documents... the judgment referred to in paragraph 5.1, and that is the judgment in order of the Full Court in the High Court in the matter of the President of the Republic of South Africa and Another v Public Protector. Members will recall that that is the Bosasa/CR17 matter, which Adv Bawa covered in detail with Committee last week, with reference to the evidence given by the PP. Ms Mazzone then also says that she places before the Committee in relation to charges three and four, the documents she describes in paragraph 5.2, which is the judgment and order of the High Court in the matter of Commissioner of the South African Revenue Service v Public Protector and Others, the judgment was delivered on 23rd of March 2020, and it’s annexed as annexure 10A – and in that matter the High Court ordered Adv Mkhwebane to pay 15% of the applicant’s taxed costs de bonis propriis. It is this judgment, Chair, which I intend to deal with for the Committee today as a context. It was handed down by Mabuse J, in the North Gauteng Division of the High Court on the 23rd March, as stated in the letter. Tshepo, you’ll find that judgment in Bundle C, folder three and its item 28. We'll go there in detail later. So Chair, I intend to delve into this judgment in greater detail. Suffice to say that for the purposes of this introduction, the High Court is alluded to by Ms Mazzone in her letter – granting the SARS Commissioner the declaratory order that he sought. Mabuse J gave a costs order against the PP personally, to pay 15% of the Commissioner’s taxed costs. Noticeably, Chair, the same costs order was made against the PP in the SARS so called ‘rogue unit’ matter, where the PP was held liable for costs personally, with her liability limited to 15% of the attorney and client costs, including the cost of two counsel where two counsel were employed. Unlike the Mabuse J personal costs order made against the PP, the costs order in the SARS ‘rogue unit’ matter was not overturned by the Constitutional Court, and the Constitutional Court there refused leave to appeal in its entirety when it was sought by the PP.

But returning to this current matter, this judgment that I will delve into for the Committee today, after the High Court judgment in April 2020 the PP then launched an application for leave to appeal against the Mabuse J judgment, and she sought leave to appeal directly from the Constitutional Court in terms of rule 19 of the rules of that court. The PP sought leave to appeal against both the costs order, as well as the merits - judgment of the High Court. The Constitutional Court then delivered its judgment on the 15th of December 2020. It was a unanimous judgment of the Constitutional Court written for the court by Justice Madlanga. Tshepo, that’s also in Bundle C, but we’ll get to that one later. We'll start with the High Court one now. Chair, we mentioned this Constitutional Court judgment that was written by Madlanga J, because in these proceedings the PP has often placed reliance on the minority judgment of former Chief Justice Mogoeng Mogoeng in the Bosasa/CR17 matter. The Constitutional Court heard the CR17 matter on 26 November 2020, and judgment was handed down in that matter on 1 July 2021 – so after the Justice Madlanga judgment. In his minority judgment in the Bosasa/CR17 matter, former Chief Justice Mogoeng cited paragraph 43 from the Justice Madlanga judgment. And in these proceedings the following paragraphs of the former Chief Justice Mogoeng judgment have often been cited and repeated by both the PP and Adv Mpofu... I think, Tshepo, yes, we should go there. Bundle C, folder three, item 12. I want you to go to paragraph 198... So Members, where we are now is the minority judgment of former Chief Justice Mogoeng. And this paragraph is one of the paragraphs that should by now be quite familiar to Members, because it’s been referred to and relied upon and cited by both the PP and Adv Mpofu in these proceedings. And here the former Chief Justice addressed what he described as the “Magnification of the Public Protector’s errors”. And he said in paragraph 198, “The following wisdom-laden words of caution by Madlanga J encapsulate the concern I have about the treatment of matters involving the Public Protector, Adv Busisiwe Mkhwebane, particularly her findings and recommendations or remedial steps. Although the context was different, the message or principle is just as apposite and telling in all other cases. There Madlanga J said...” - and here, Chair, the former Chief Justice cites a paragraph, in fact various paragraphs, 42, 45 and 43, I think, in the Madlanga judgment. And there he cites what Justice Madlanga said, where he said “There appears to be a developing trend of seeking personal costs orders in most if not all matters involving the Public Protector... Courts must be wary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards. Whether inadvertently or otherwise, the High Court judgments in the EFF v Gordhan matter and in the instant matter are instances where the High Court fell into that trap... I voice these words of caution because of the disturbing frequency and regularity of applications for, and awards of, personal cost orders against the Public Protector. What is particularly disturbing is that it is clear that the applications and awards are not always justified”. And then the former Chief Justice continued in paragraph 199 to say that “There is indeed a disturbing tendency by some of us to, presumably without intending undue harm or injustice, unduly magnify virtually every error of the Public Protector, real or mistakenly perceived. This is quite surprising because Judges, with more experience as practitioners before their elevation to the Bench, and with more years of service as Judges than the ten years’ minimum requirement as an Advocate or the mere fact of being a Judge regardless of how long to be appointable as a Public Protector, have committed similar or more serious errors. And we are not as harsh on them, or should I say on ourselves, and rightly so”.

So Chair, I'm going to turn now and deal fully with the SARS judgment, starting with the judgment of the High Court in order to place these often-repeated paragraphs in the former Chief Justice Mogoeng's minority judgment in the proper context. So, Tshepo... please go to Bundle C, folder three, item 28, yes. So Chair, this judgment resulted from an application that was brought by the Commissioner for SARS against four respondents. Although there were four respondents that were cited, the only parties who actively participated in the litigation were the Commissioner and the Public Protector. The issue that was in dispute between the parties was described by the court in paragraph 3.3 where the judge said, “The real issues of dispute between the parties in this application can be determined from the relief that the Commissioner seeks. Simply the question is when faced with the subpoena issued by the Public Protector in terms of section 7(4) (a) of the PPA against him, may the Commissioner refuse to comply with the said subpoena and rely on the provisions of section 67(1)(a) and 69(1) of the Tax Administration Act (TAA)?” – that was the question before the court. The subject matter of the litigation was a subpoena that was issued by the Public Protector to the Commissioner for SARS on the 21st of October 2019. And the essence of what the subpoena contained is set out in paragraph 4 of the judgment. Tshepo, page 1007... And there the court says, “On 21 October 2019... the Public Protector, acting in terms of the provisions of the said section 7(4) (a) of the PPA, issued a subpoena to the current Commissioner of SARS, the Applicant. The said subpoena stated, inter alia, as follows: (1) You are hereby required to appear in person before the Public Protector, at the Public Protector House, Hillcrest Office Park, 175 Lunnon Road, Hillcrest, PRETORIA on Wednesday 13 November 2019, at 11:00 am to give evidence or to produce any document(s) listed in paragraph 7 below, in your possession or under your control which has a bearing on the matter being investigated... (2) PLEASE TAKE NOTICE that at the hearing, you will be required to provide and explanation, give evidence and produce any relevant documentation which may be in your possession and/or under your control such as minutes of meetings, reports, and/or correspondence which may have a bearing on the investigation, including but not limited to the extent of your involvement and participation relating to the matters under investigation...”; in paragraph 3, the PP told the Commissioner that he may be assisted and so on; paragraph 4, she continued to say please take further notice that section 113 of the PPA provides that “any person who, without just cause, refuses or fails to comply with a direction or request under section 7(4) or refuses to answer any question put to him or her under that section or gives to such a question an answer which to his or her knowledge is false or refuses to take the oath or to make affirmation at the request of the Public Protector in terms of section 7(6), shall be guilty of an offence”; she told the Commissioner in paragraph 5 that she “will not grant, without just cause, any request for postponement of your appearance or extension for submission of an affidavit or any document, unless such request is done in person, on the submission day or appearance day, before the Public Protector”; and in paragraph 6 she said “PLEASE NOTE FURTHER that section 11(4) of the Public Protector Act provides that ‘any person convicted of an offence in terms of the Act shall be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment’”. So Chair, although the subject matter of the dispute was the subpoena that was issued on the 21st of October 2019, the events that proceeded the issuing of that subpoena formed part of the factual matrix that was before the court. And the court set out those events from paragraph 5 of the judgment onwards. And the court said, “The events that led to the issue of the subpoena are common cause between the parties. Largely they are unchallenged and represent the evidence of the Commissioner and the First Respondent. It is common cause that the issue between the parties involves a legal dispute. Either on 17 or 18 October 2018 the Public Protector subpoenaed the then Acting Commissioner, Mark Kingon, to provide information. This subpoena may conveniently be referred to, for purposes of distinction, as the 2018 subpoena. This 2018 subpoena reflects that it was purportedly issued following a complaint lodged with the Public Protector by Mr Mmusi Maimane, the Third Respondent, against Mr Zuma, the Second Respondent. The said complaint was based on a book titled ‘The President's Keepers’ by a certain author, Jacques Pauw. The book seemingly advanced the allegation that, ‘during the first month of his presidency in 2009 ... the former President (Mr Zuma) earned a salary ‘as an employee' of a company (Royal Security CC), the Fourth Respondent. As the 2019 subpoena reveals the quotation from the book suggests that in 2010 a SARS auditor ‘was unable to determine whether tax had been deducted from Mr Zuma's salary and paid to SARS’ by Royal Security CC. What this essentially means is that, inter alia, the obligation of the third party, Royal Security CC, to deduct 'pay as you earn' tax was an issue. Indeed, the 2018 subpoena explicitly required the deduction of ‘the Royal Security payroll reconciliation for the tax year 1 March 2009 to 28 February 2010’”. The court continued to set out the events as part of its account of the events that preceded the subpoena that formed the subject matter of the litigation. And it says that, “Following the 2018 subpoena, SARS attended at the Public Protector's Head Office on 5 November 2018. It was represented at this meeting by, inter alia, Mr Wayne Broughton. The office of the Public Protector was represented personally by the Public Protector and her team. At that meeting SARS explained that the 2018 subpoena attempted to elicit evidence which in terms of the TAA qualified as taxpayer information. Furthermore, SARS explained that the TAA precludes the production of such information and that the Public Protector was not one of the entities identified in chapter 6 of the TAA. It is only in respect of the entities enumerated in the said chapter 6 that the applicable taxpayer confidentiality prohibition may be relaxed under the TAA”. “Notwithstanding the said explanation, the Public Protector rejected SARS' explanation of how the TAA, especially section 69(1) thereof, operates. Thereupon, and in a genuine attempt to break the impasse between them, SARS accordingly invited the Public Protector to obtain a Court Order confirming her understanding of the law. The Public Protector refused to do so and raised financial constraints as a reason. She contended that her office was financially under resourced and thereby implied that it could not afford approaching this court or even procuring legal advice vindicating her version. In response, SARS proposed that the parties should jointly seek legal advice and SARS undertook to fund the bill for such legal opinion. The Public Protector accepted the proposition” “On 14 November 2018 the officials representing the Public Protector on one hand and SARS on the other hand met to finalise a joint brief to counsel. It was agreed between the Public Protector and SARS that Cliffe Dekker Hofmeyr Attorneys (CDH) should be appointed jointly in order to instruct counsel. Although it is not so stated in the papers, I must assume that the issue on which counsel’s opinion was sought was also identified at this meeting”. It continued that, “On 6 December 2018 the officials from the Public Protector's office and SARS consulted with the instructing attorneys and requested the attorneys to recommend and instruct counsel. From a list of recommended counsel SARS and the Public Protector agreed to brief Adv Maenetje SC with Adv Ferreira, to provide them with a legal opinion on the topic that had been appropriately identified and selected by both parties. The topic jointly established by both parties and on which counsel's legal opinion was sought was: ‘... to advise whether there is any means by which the Public Protector and the South African Revenue Service (SARS) can approach a Court for relief that would allow the Public Protector to subpoena tax information from SARS’”. “In their report the two counsel pointed that: We are instructed that SARS and the Public Protector are of the view that there is a conflict between: (2.1) the Public Protector Act 23 of 1994 (PPA) which gives the Public Protector the power to obtain evidence which has a bearing on a matter being investigated; and (2.2) the Tax Administration Act 2011 (which prohibits the disclosure of SARS confidential information)”. The judge said that “There was therefore no doubt nor was there any dispute as to what counsel were expected to do”. So what then happened is that “During March 2019 Adv Maenetje SC and Adv Ferreira duly produced their opinion dated March 2019. Their opinion correctly records on its cover sheet that the opinion had been prepared ‘For the Public Protector and the South African Revenue Service’. SARS accepted that it is in the public interest and in the interest of justice to produce the opinion”. “CDH provided SARS with counsel’s opinion on 19 April 2019 under cover of a letter addressed to SARS, and in which CDH's own views were also recorded”; CDH advised that “after carefully considering your opinion and the relevant documentation and legislation, CDH can find no reasonable basis upon which to come to a contrary view from counsel”. “It would appear that CDH had also been requested for its view on the topic referred to counsel for their opinion. CDH concluded that counsel's approach is consistent with what was established in the interpretative doctrine. SARS sent a copy of the opinion to the Public Protector on 15 April 2019 under cover of a letter of even date. That letter is attached to the founding affidavit”. Go to paragraph 12, Tshepo. The content of the letter is then cited in the judgment... “Counsel's legal advice concluded by the following statement: (32.1) There is no conflict between the Public Protector's subpoena powers and the TM prohibition on disclosure of SARS confidential information and taxpayer information...” - I think the abbreviation of TM meant the Tax Administration Act. “(32.2) Properly interpreted, the Public Protector's subpoena powers do not include the power to compel disclosure of SARS confidential information and taxpayer information; (32.3) This does not undermine the effectiveness of the investigative powers of the Public Protector because the Public Protector may access such information by making an application to the High Court in terms of section 69(2)(c) of the PPA or obtaining counsel from the taxpayer.” “By way of a summary, the Public Protector was advised by Maenetje SC and Adv Ferreira that her powers to subpoena did not include the power to compel disclosure of SARS confidential information and taxpayer information. The lesson that the Public Protector should have learned from this advice is that if public power is given to a public body to use for certain purposes it may not wrongly use it to achieve other purposes...” The court then made reference to the Gauteng gambling Board & Another v MEC for Economic Development Gauteng Provincial Government 2013 and cited a paragraph that it was referring to in that case... The judgment continues, “The powers given the Public Protector to subpoena a witness to give evidence or to produce a document may not be invoked to coerce that witness to violate the law under which such a witness operates. Once she was given this advice, the Public Protector had a choice either to approach the Court in terms of section 69(2)(c) of the TAA or to approach the Second Respondent...” - being Mr Zuma; “in terms of section 69(6)(b) of the TAA for his permission to obtain his taxpayer information from SARS”. The court then continues to record what happened after the opinion had been rendered and provided to the Public Protector. And the court continues in paragraph 14 to say that what happened is that “On 24 April 2019 the Public Protector responded to the opinion by way of a letter attached to the founding affidavit... In her letter the Public Protector flatly rejected the independent legal advice of counsel and stated that: ‘2. Whilst I appreciate and know the contents of the legal opinion which accompanied the letter under reply, I do not agree with the reasons and conclusion contained therein': and without much ado dismissed the ‘unreasonable conclusion’ of counsel jointly chosen by her office. These conclusions she referred to are contained in paragraph 12. She persisted with her claim that she was entitled to access ‘taxpayer information’ in the possession of SARS and stated furthermore that the TAA's exclusion of the Public Protector among other Chapter 9 institutions ‘is intended... to create a storm in a teacup’. That being the case, her letter continued, ‘the Public Protector had already embarked on the process of sourcing a second legal opinion from a different senior counsel’. These allegations are not in dispute. Now all of a sudden she has funds to secure the second senior counsel's opinion. She was mala fide. She failed to uphold the Constitution. She was prepared to litigate recklessly. She acted improperly in flagrant disobedience of the Constitution and the law”. “Incidentally SARS was not invited to participate in the latter briefing process on which the Public Protector already had embarked. It goes without saying that SARS did not take part in the selection of the topic upon which the second senior counsel’s opinion was sought. SARS was also not informed of the subject on which second counsel's opinion would be sought. The resulting opinion was not shared with SARS. Nor was SARS even favoured with any update on the Public Protector's unilateral process to procure advice diametrically different from the opinion procured jointly by SARS and the Public Protector. The Public Protector admits these allegations. The Public Protector litigated in bad faith. She attributes her dismal failure to furnish SARS with Adv Sikhakhane SC's opinion to an oversight emanating from her busy schedule. Despite the fact that the said opinion is dated 7 May 2019, the Public Protector only furnished a copy thereof to SARS with her answering affidavit. Assuming that she received it immediately after 7 May 2019, the Public Protector sat on the opinion for the rest of May, June, July, August, September, October and November 2019 without informing SARS about it. The Public Protector was again simply mala fide in failing timeously to share the second senior counsel's opinion with the Commissioner”. Members will recall that it is already before this Committee through the evidence of Mr Muntu Sithole, on 26 August – he testified as to the manner in which the second opinion was procured. So I won't repeat that for the purposes of this exercise.

Going back to the judgment. Mabuse J continued that “The conduct of the Public Protector is inexcusable. To agree to seeking counsel’s opinion on a matter; to taking part in the identification of counsel whose opinion on the matter would be sourced; to preside over the identification of the topic; to reject counsel's opinion and to seek Adv Sikhakhane SC's opinion without involving SARS is a demonstration of negotiating, and acting, in bad faith. At the same time, it is indicative of the fact that the Public Protector did not genuinely take part in the process that led to the opinion of Adv Maenetje SC and Adv Ferreira to obtain objective and erudite opinion. She was not honest. She was opinionated already and only sought the two counsel’s opinion to support her opinion. When such opinion did not do so she rejected it. This is demonstrated by the fact that she readily accepted the opinion expressed by Adv Sikhakhane SC. She did not reject the opinion of Adv Maenetje SC and Adv Ferreira because it was flawed, as she claimed in paragraph 31 of her answering affidavit, but did so because it did not resonate with her strongly held view nor did she accept gleefully the opinion of Adv Sikhakhane SC because it was correct. She only accepted it because it resonated with her opinion. The Public Protector had also failed to put a copy of the opinion of Adv Maenetje SC and Adv Ferreira before Adv Sikhakhane SC. Again in this respect she acted in bad faith. In rejecting the legal advice of Adv Maenetje SC and Adv Ferreira, the Public Protector had, in paragraph 31 of her answering affidavit, furnished reasons why she did so. She had stated that: ‘On the one hand I found the Maenetje SC opinion to be significantly deficient more perpetually in the glaring failure to take into account the provisions of the Constitution’... The Public Protector's letter dated 24 April 2019 concluded by recording the Public Protector's arbitrary predetermination of the issue already prior to receiving any legal opinion potentially supporting her view. At the same time the letter's conclusion also reflects the Public Protector's resolve that SARS' conduct constituted a breach and a violation of section 181(3) of the Constitution as well as section 7(4) of the PPA. On this basis the Public Protector's letter repeated her threat that: “I must therefore reiterate that the consequences of failure to comply with my directives will be pursued as contained in section 11(3) of the Public Protector Act’. The allegations contained above are not disputed”. The court continued, “In the first place, as pointed out earlier, the Adv Sikhakhane SC's opinion was only disclosed to the Applicant in the answering affidavit. This was an example of litigating carelessly. For the first time in the answering affidavit, the Public Protector was of the view that: l have found Maenetje SC's opinion to be significantly deficient, more perpetually in its glaring failure to take into account the provisions of the Constitution’”. “The Public Protector attempted to criticize the opinion of Adv Maenetje SC. The criticism of the Adv Maenetje SC's and Adv Ferreira's opinion is not supported in any way by any analysis whatsoever of the opinion. Although she undertook to conduct a more detailed comparative and critical analysis of the two opinions during legal argument, this was, for inexplicable reasons, not done. Consequently, the Public Protector's case on this crucial point was wholly not pleaded. The precise questions upon which Adv Sikhakhane SC's opinion was sought were the following: 1. whether the Public Protector can subpoena taxpayer information from SARS; 2. whether the Public Protector is precluded from subpoenaing or obtaining taxpayer information from SARS in terms of the TAA vis-a-vis powers to do so in terms of the PPA; and 3. whether there are any other means available to the Public Protector to obtain the taxpayer information from SARS”. “In his report, Adv Sikhakhane SC stated that: ‘As I have already referred to above, in a case of Economic Freedom Fighters, the Constitutional Court considered whether or not the powers of the Public Protectors can be limited by national legislation... At paragraph 51 of the case the Court held that: Since our Constitution is the supreme law, national legislation cannot have the effect of watering down or effectively nullifying the powers already conferred by the Constitution on the Public Protector... It follows, in my view, that the power of compelling the provisions of information to the Public Protector overrides the secrecy provision of the TM. It is therefore trite law that the TM cannot have the power of watering down the Constitutional powers of the Public Protector to conduct an investigation into any particular state organ.” in conclusion, Adv Sikhakhane SC stated that “The powers of the Public Protector can only be limited by the Constitution. The Constitution is a superior law to the TM and the Public Protector may accordingly subpoena taxpayer records from SARS if such is in pursuance of her investigation”. “This is the view that the Public Protector preferred” - the court said. The court then continued to say that “The Public Protector is an advocate herself. She clearly had read and understood the opinion of Adv Maenetje SC and Adv Ferreira. She let a golden opportunity slip through her fingers and she could never retrieve it. There is an old adage that says; ‘He who lets an opportunity to pass, he shall never find, for an opportunity once past is bald behind'… In rejecting that opinion, the Public Protector overlooked the dispositive Constitutional Court judgment that was referred to in that opinion of Adv Maenetje SC of Ex Parte Speaker of the Kwa-Zulu Natal Provincial Legislature: in re: Certification of The Constitution of the Province of Kwa-Zulu Natal 1996 (4) SA 1099 (CC)”. The court then referred to a paragraph 24 of that judgment, which had been cited by Adv Maenetje SC in paragraph 15 of his opinion... and the contents of the paragraph 24 is set out there. The court then continued, “Adv Maenetje SC advised that the conclusion reached in paragraph 24, as quoted above, accords with the general principles of statutory construction. He advised furthermore that the specific provisions of the TAA take precedence over the general principles of the PPA”. The court said “It is not the Public Protector's case that the Constitutional Court stated the law incorrectly in the said paragraph 24 nor is it her case that the law as set out in the said judgment is not binding on the Public Protector. Furthermore, it is not the Public Protector's case that Adv Maenetje SC and Adv Ferreira misunderstood the law as set out in that paragraph; and lastly, it is not the Public Protector's case that the judgment in that case has been set aside or it is distinguishable”. The court then continued “The Public Protector's letter dated 24 April 2019 was preceded by a press statement issued on the previous day. The statement related to a different investigation demonstrating the wider effect of the conflicting legal conclusions for which the Public Protector and SARS contended. A copy of the said media statement, attached to the founding affidavit as annexure 'F', reflects the Public Protector's persistence in subpoenaing ‘records in question directly from SARS'; and applying ‘particularly contempt proceedings': The Public Protector specifically cited in her press statement sections 7(4), 7(6) and 11(4) of the PPA. In doing so she directly quoted potentially the criminative R40 000 criminal penalty and 12 months' prison sentence to which the latter provision refers”. And then “On 26 April 2019 SARS responded to the Public Protector and in its response referred to her 23 April 2019 press statement...” - and the court then proceeded to quote the contents of SARS’ response in that paragraph. And it says at the end of paragraph 22 that “Here it is important to point out that no action was taken further by the Public Protector on the 2018 subpoena. It seems that it died its natural death”. In paragraphs 23 and 24, Chair, the court then set out the Commissioners views and the Commissioners submissions. And then from paragraphs 25 onwards until paragraph 39, the court dealt with the respective party's legal arguments, regarding the proper interpretation to give to the phrase “just cause” in section 11(3) of the PPA... Go down to paragraph 39. So as I said earlier, Chair from paragraphs 25 to 39, the court dealt with the sort of respective party’s arguments about what proper interpretation to give to the phrase “just cause”, which was in section 11(3) of the PPA. And in paragraph 39 of that section of the judgment, the court then gave its own views... regarding that issue of the phrase of “just cause”. And the court said in paragraph 39, “Several factors in this matter are common cause. One of those factors is that the Commissioner instituted this application in the public interest and that not only SARS but also the entire tax base stands to benefit from an authoritative pronouncement on this legal dispute between SARS and the Public Protector. Such pronouncement would bind both SARS and the Public Protector and each of them has a direct and substantial interest in such precedent which would guide them in the lawful exercise of public power without impeding each other's competence. There is the fundamental issue of taxpayer confidentiality which the Commissioner is by law compelled to uphold for the benefit of all the taxpayers. This benefit is not limited to the Second Respondent. If one casts a final look at the path that led to the Public Protector issuing the subpoena on 21 October 2019 the conclusion is inescapable that the Public Protector was irrational, unreasonable, acted unlawfully and had very little regard to the Constitution and the law. It is therefore the duty of this court to hold the scales evenly between the Public Protector and the Commissioner and to declare invalid any practice which in the absence of the authority of an act of Parliament results in one Chapter 9 Institution trying to coerce the other Chapter 9 Institutions to act in contravention of the Constitution and the law. Any legal confrontation between the Chapter 9 institutions must be avoided at all costs and civil means to resolve their disputes, if any, should be fashioned out”. So what had happened, Chair, is that the PP in her answering affidavit had sought to incorporate a conditional counter application to be granted taxpayer information on the strength of the court order as contemplated by the applicable legislation. The court dealt with the PP’s attempt to... with this counter application from paragraphs 40 to 46 of its judgment. I’ve partly read paragraph 40. The court continued “The counter application was brought about because of what was perceived to be the concerns of the taxpayer. The taxpayer is the Second Respondent” - Mr Zuma. “It was again stated in the answering affidavit that the conduct of the Commissioner in refusing or failing to furnish the Public Protector with the information or documents required in the impugned subpoena falls foul of section 11(3) of the PPA as it is not excusable on the basis of the ‘just cause’ defence qualification”. “With regard to the counter application, the Commissioner contends that it is formally and substantially defective inasmuch as it does not satisfy the requirements of Rule 6(7) or Rule 6(11) of the Uniform Rules of Court. The argument raised by the Commissioner against the said counter application is that it does not have any notice of motion”. Go to paragraph 42, Tshepo... And this is what the court found in relation to the PP’s counter application: “Firstly, considering that the Commissioner was not the only party in the circumstances, it was fatal for the Public Protector to fail to bring a counter application without a proper notice of motion. It is not known whether a copy of the counter application was served on the Fourth Respondent. The possibility exists that if the relief sought in the counter application was specifically spelt out in the notice of motion, the Fourth Respondent might have had a different approach to the counter application. As no notice in respect of the relief sought in the counter application was served on the Fourth Respondent, or as there is no allegation in the papers before the Court that the counter application was served on the Fourth Respondent, granting the relief so sought would have meant granting the relief that directly and adversely affected the Fourth Respondent's rights. Such a relief cannot be implemented without prejudice to the Fourth Respondent. The Public Protector has also been warned by the Constitutional Court in paragraph 155 of the Public Protector v South African Reserve Bank judgment supra that she is under a ‘higher duty ... to respect the law, to fulfil procedural requirements and to treat respectfully when dealing with right’”. Paragraph 43 the court continued, “No case has been made out by the Public Protector for the relief that he seeks in the answering affidavit. The Public Protector relies entirely on the ‘tweets’ supposedly sent by the Second Respondent as a basis for seeking the relief that she sets out in the counter application”. The court then set out the statement and said that it’s clear from what the court had just said in the previous sentence is clear from that statement. And below that the court the court continues “This is all that the Public Protector relied on for her counter application – unsubstantiated ‘tweets’. There was no proof of the authenticity of the tweets. She regarded them as the taxpayer's written consent in terms of section 69(6)(b) of the TAA. She was wrong, for they are not, without much ado, admissible as evidence. In the absence of admissible evidence that the tweets originated from the Second Respondent, which, in my view, was the cornerstone of the counter application, the counter application has not been substantiated and is doomed to failure”. “Even if the Court were to decide the counter application in the favour of the Public Protector and assume that it was a proper application in terms of section 69(2)(c) of the TAA, the Court would still have a good reason to refuse to grant the order sought in the counter application. Firstly, section 69(6)(a) of the TM provides that: ‘The Court may not grant the order unless satisfied that the following circumstances apply: (a) the information cannot be obtained somewhere’”. “There is no allegation by the Public Protector anywhere in her papers that she was unable to obtain the information elsewhere. It was pointed out to Mr Mpofu that if the Public Protector seriously wanted the Second Respondent’s taxpayer information, she could have approached the taxpayer's bookkeeper or auditors with the taxpayer's consent. The taxpayer's information in the possession of the Commissioner is not only always information that was obtained from the taxpayer. Some of it might have come from other sources. Therefore, the Commissioner was not at large to disclose such information. In this regard, the Commissioner's case enjoys the unqualified support of the well-established law...” - in the case that the court referred to in that paragraph and cited a relevant portion of the case, that’s the case of Welz and Another v Hall and Others, which I'm not going to read, Chair. To conclude this section of the judgment, the court continued to state and held that “The Public Protector did not explain why she did not obtain the Second Respondent's consent in order to access his taxpayer's information either from his auditors or taxpayers or in terms of section 69(2)(c). She had an opportunity to do so. She failed to do so. She was advised to apply to Court for the proper order. She still failed to do so”. “In conclusion this Court finds that the Public Protector has not made out a good case for the counter claim. The counter claim can therefore not succeed”. In the next section of the judgment the judge makes reference to something that he had alluded to earlier in the judgment, which was an attempt to hand in an affidavit made by Mr Zuma – who is cited as the second respondent. The affidavit was styled as the second respondent’s explanatory affidavit. The court dealt with this briefly in the judgment in paragraphs 47 and 48. The court rejected Mr Zuma’s explanatory affidavit for the three reasons that it gave in paragraph 48... the court said, “For three reasons the affidavit has to be rejected, firstly, it was not properly before the Court; secondly, it was filed late, and thirdly and lastly, no purpose in the eyes of Adv Mpofu SC and of the Court would have been served by allowing it into evidence. This affidavit is therefore inadmissible”. The court then went on to deal with the issue of costs from paragraph 49 of the judgment onwards. I'll start reading from paragraph 50. Paragraph 50, the court said, “The starting point, in my view, with regards to the order of costs is paragraph 155 of the judgment of the Public Protector v The South African Reserve Bank which states that: ‘The Public Protector falls into the category of a public litigant. A high duty is imposed on public litigants, as the Constitution's principal agents, to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights’... The Public Protector is a public litigant. It is expected of her to always act with a high degree of perfection; that she will at all times act with care and respect for the Constitution and the law; that she should never show any gross disregard for her professional responsibilities or act inappropriately and in an egregious manner. She should never act mala fide or in bad faith or exhibit any gross negligence in her conduct. The Public Protector is therefore enjoined by the Constitution to observe the highest standard of conduct in litigation”. “Under certain circumstances public officials, like the Public Protector, who acts in a representative capacity may be ordered to pay the costs out of their own pockets. Some of such circumstances are where the Public Protector exhibits gross disregard for her personal responsibilities; where she acts inappropriately and in an egregious manner; or if she is guilty of bad faith or gross negligence in conducting litigation”. The court then referred to the judgment of Black Sash Trust v Minister of Social Development as well as the judgment of Gauteng Gambling Board v MEC for Economic Development, Gauteng, which is an SCA judgment... “Counsel for the Commissioner submits that the Public Protector should be ordered to pay 15% of the costs de bonis propiis. He mentioned eight reasons in support of his submission. Some of those reasons are as follows, that: the Public Protector sought the second senior counsel's opinion on a different topic. In this way she acted with bad faith; she failed to put a copy of the legal opinion of senior and junior counsel before the second senior counsel. Again, this was an instance where the Public Protector acted mala fide; she was advised to obtain a Court Order in order to gain access to the “taxpayer's information”. This advice was based on the provisions of the TAA. She failed to take advice and in the process acted with gross disregard for her professional responsibilities; she sought advice from senior counsel without involving the Commissioner. She litigated in bad faith; she insisted that the Commissioner should comply with the subpoena despite being advised that it would be unlawful in terms of the TAA for the Commissioner to do so. In this manner she litigated recklessly, failed to uphold the Constitution and the law. She was, in my view, improperly and in flagrant disobedience to the Constitutional norms; she abused her powers. She used her powers to subpoena for wrong reasons; she had been advised to seek clarity from the Court about the extent of her powers vis-a-vis the provisions of the TAA but she failed to do so. Again acting unprofessionally in the circumstances; for no valid reasons at all she insisted that she was entitled to the information she had asked the Commissioner to furnish her with. She thereby overlooked advices, failed to observe national legislation and had this wrong impression that she had unlimited powers. She failed in this regard to uphold the Constitution; she failed to seek a proper written confirmation of the Second Respondent to access his taxpayer information. This arose obviously from her failure to study the TAA, to follow the advice and from the fact that she wrongly thought that her powers in terms of section 7(4)(a) of the PPA could trump the provisions of the TAA. She also failed to acquaint herself with the provisions of the TAA. Whereas an advocate she should and could have done so. She failed dismally short of the high standard expected of an advocate”. The court then in paragraph 52 said “On the other hand, it was argued by Adv Mpofu SC that because the issue involved in this matter turned on legal issues, the Public Protector should not be made to pay the 15% of the costs de bonis propiis. I have set out above the circumstances under which the Public Protector may be ordered to pay the costs de bonis propiis. Accordingly, the nature of issues involved is not material. What is of paramount importance at this stage is whether such circumstances that support an order of costs de bonis propiis against the Public Protector do exists. In my view they do exist and no valid reason has been furnished why this Court may make such an order”. In conclusion, the High Court said “this Court is satisfied that the Commissioner has made out a good case for the relief that he seeks and that the counter application on the other hand lacks merit”. So the court then made an order granting... “The following order is accordingly made: It is hereby declared that a South African Revenue Service Official is permitted and is required under the provision of “just cause” contained in section 11(3) of the Public Protector Act 23 of 1994 read with section 61(1) of the Tax Administration Act 28 of 2001 to withhold taxpayer information as defined in section 61(1)(a) of the Tax Administration Act 28 of 2011. It is furthermore hereby declared that the Public Protector's subpoena powers do not extend to the taxpayer information. The First Respondent's counter claim is hereby dismissed, with costs. The First Respondent is hereby ordered to pay the costs of this application. The First Respondent is hereby ordered to pay de bonis propiis 15% of the Applicant's taxed costs”.

Chair, I want to turn now to the PP’s appeal directly to the Constitutional Court. But subject to what the Chair has to say. Perhaps this is a good time to take the tea break? But I can continue, Chair.

Chairperson: Okay, we’ll take an early tea break, it's a few minutes away. We'll take a tea break for 15 minutes. Thank you, we pause.

[Break]

Chairperson: Welcome back, colleagues. Over to you, Adv Mayosi.

Adv Mayosi: Thank you, Chair. So Chair, as I mentioned earlier, the judgment of the High Court was handed down on the 23rd of March 2020. And I think I may have mentioned earlier as well that in April 2020, the PP then made an application for leave to appeal directly to the Constitutional Court, in terms of the rules of that court. And she sought leave to appeal against the High Court's judgment both on the merits, as well as against the personal costs order that was given against her. Tshepo, the judgment is in Bundle C, folder three, item 17. And as I said previously, Chair, the judgment itself was handed down on the 15th of December 2020, and it was a unanimous judgment of the Constitutional Court that was written by Justice Madlanga... So the order that the Constitutional Court made was: “(1) Leave to appeal against the declarator by the High Court of South Africa, Gauteng Division, Pretoria that a South African Revenue Service official is entitled to withhold taxpayer information in terms of section 11(3) of the Public Protector Act 23 of 1994 read with section 69(1) of the Tax Administration Act 28 of 2011 is refused. (2) Leave to appeal against the High Court’s dismissal of the Public Protector’s counter application is refused. (3) Leave to appeal against the High Court order that the Public Protector must pay de bonis propriis 15% of the taxed costs of the Commissioner of the South African Revenue Service is granted. (4) The appeal is upheld and the High Court order referred to in paragraph 3 is set aside. (5) Each party must pay her or his costs in this Court”. The Constitutional Court then dealt with the merits of the PP’s application, that is, the issue of the PP’s power to subpoena taxpayer information, from paragraph 14 onwards of the judgment – from paragraph 14 to paragraph 27. In those paragraphs the Constitutional Court set out the PP’s legal submissions regarding the merits – the merits question, as well as the Constitutional Courts response to those submissions. Go to paragraph 17... In paragraph 17, Justice Madlanga wrote “The Public Protector’s argument for a direct appeal rests, firstly, on urgency. The alleged urgency is grounded in the need to finalise the investigation with expedition. The Public Protector contends that an appeal to the Full Court of the High Court or Supreme Court of Appeal before approaching this Court will take years. She contends thus without reference to the possibility of seeking leave to appeal to the Full Court or Supreme Court of Appeal by way of urgency”. “If acting expeditiously was any consideration, the Public Protector would not have gone on a power-testing expedition which could potentially – and actually turned out to be – protracted. She could have done the simple thing of obtaining the taxpayer’s written consent in terms of section 69(6)(b) of the Tax Administration Act. In its judgment, the High Court deals with the admissibility of an affidavit that former President Zuma sought to file late and out of turn in that Court. That Court refused to accept the affidavit. Of importance for our purposes is that – even though we did not have sight of that affidavit – the parties gave us to understand that it appeared from it that the former President was not averse to the disclosure of his information. It is for this reason that I say the simple thing to do was for the Public Protector to approach former President Zuma for the written consent. In the unlikely event of consent being withheld, an alternative was to seek a High Court order in terms of section 69(2)(c). Like the option of seeking the taxpayer’s written consent, this too would have been more direct. If the Public Protector’s reasons for needing the information were cogent enough, this alternative would have been better suited to delivering the desired results. And it cannot possibly lie in the Public Protector’s mouth that she did not believe in the cogency of the reasons for which she needed the taxpayer information. An approach to the High Court is a legal vehicle that exists, whereas testing whether courts will agree that the mooted power does exist is unknown, uncertain terrain. So, the urgency argument is contrived and – as it is the most important point for the direct appeal – that detracts significantly from the Public Protector’s entitlement to a direct appeal”. From paragraph 19 to 23, the Constitutional Court considered the question of the PP’s prospects of success in an appeal were she to be granted leave to appeal to that court. Chair, this is a necessary element to be determined in an application of this kind, in an application for leave to appeal. So the question was asked by the court in paragraph 19, “The Public Protector further contends that she has strong prospects of success. Does she?”. The court then in the paragraphs that followed captured the Public Protectors legal submissions in favour of her good prospects – what she said are her good prospects of success on appeal. And from paragraph 4 onwards the court then gave its judgment on the merits issue, which is a factor in whether or not she has good prospects of success on appeal. Justice Madlanga said the following, “Let me first make it clear that I will not grapple with the submission that there is some constitutional hierarchy within Chapter 9 institutions. That is not necessary for present purposes. Section 69(1) of the Tax Administration Act provides that SARS officials ‘must preserve the secrecy of taxpayer information and may not disclose taxpayer information to a person who is not a SARS official’. Thereafter, the Act creates narrow exceptions to this prohibition. The disclosure of taxpayer information in compliance with a subpoena issued by the Public Protector is not one of the exceptions. SARS officials are thus enjoined to withhold taxpayer information even in the face of such subpoena. Any other interpretation is at odds with the clear wording of section 69(1) … The interpretation advocated by the Public Protector is not viable. If that be so, we are left with the question whether the Public Protector is entitled as of right to taxpayer information based on her remaining interpretation of the Constitution. That question arises from the first three arguments, which I next deal with”. “The effect of the Public Protector’s argument is that – in the face of the constitutional power she is asserting – section 69(1) is constitutionally invalid. I use ‘effect’ because she does not argue that the section is invalid. According to her, she is entitled as of right to taxpayer information upon the issue of a subpoena. Her case is fundamentally flawed. Section 69(1) can only not have its force – which is to deny the Public Protector access to taxpayer information – if it is invalid. But – according to MEC of the Executive Council for Development Planning and Local Government, Gauteng – she is not entitled to any relief that effectively flows from the unconstitutionality of an Act which has not been declared by a Court”. The court then cited what Yacoob J held in that case. In paragraph 26, Justice Madlanga wrote “Even though the Public Protector does not expressly argue that section 69(1) is constitutionally invalid, the effect is the same. Thus the authority I have just referred to stands in her way. She cannot wish section 69(1) away. She should have brought a direct frontal challenge to the constitutionality of the section for including her office within its sweep, or to the Tax Administration Act for failing to include the office in the exceptions it creates. The Public Protector’s reliance on EFF v Speaker is misplaced. That case never suggested that there should not be a constitutional challenge where one is necessary. The course of proceeding from unconstitutionality that has not been declared proposed by the Public Protector ‘appears to be incompatible with . . . section 172(1) of the Constitution which obliges a court to declare a statutory provision which is inconsistent with the Constitution invalid to the extent of the inconsistency’. This course could also give rise to uncertainty about the status of section 69(1)”. “As a result, absent a direct frontal challenge to the validity of section 69(1), there are no reasonable prospects of success”. “In the circumstances, other reasons for seeking leave to appeal directly to this Court, like a saving in costs and time, the absence of disputes of fact, the inevitability of the matter reaching this Court and the fact that this Court is well-placed to consider the application, pale into insignificance. Leave to appeal directly to this Court falls to be refused”. Justice Madlanga then turned to deal with the issue of the personal costs order made by the High Court against the PP. Chair, you will recall that when I was dealing with the High Court judgment, I mentioned some nine reasons which formed the basis upon which that court granted the personal costs order that it did against the PP. Justice Madlanga then turned to this issue from paragraph 34 of his judgment, where he said “I must now decide whether the High Court exercised its discretion judicially in ordering the Public Protector to pay 15% of the Commissioner’s costs de bonis propriis. What led to this order were the following: in issuing the subpoena the Public Protector acted in fraudem legis (literally, in fraud of the law); in first saying she had no funds for the first opinion but later seeking and paying for a second opinion, the Public Protector’s conduct was mala fide; other facts that evinced mala fides were the Public Protector’s failure to invite the Commissioner to participate in briefing Adv Sikhakhane SC and not sharing the opinion obtained from him with the Commissioner; the Public Protector was adjudged to have acted unreasonably, arbitrarily and in bad faith because she had a ‘proclivity’ to operate outside of the law, and a ‘deep rooted recalcitrance to accept advice from senior and junior counsel’; and it was expected of the Public Protector to act with a ‘high degree of perfection’” - Chair, here Justice Madlanga is merely summarising the reasons given by the High Court for the costs order that it did. He then says, “I deal with these in turn”, and he starts to do so from paragraph 35 onwards. Firstly, he started with the issue... the finding by the High Court that the subpoena was issued in fraud of the law. Justice Madlanga wrote that “The Public Protector’s view that she was entitled to issue the subpoena regardless of the prohibition in section 69(1) is misguided. But it appears to have been a genuinely held view. Based on that genuinely held view, there is no cogent basis for suggesting that the subpoena was issued for any purpose other than the investigation the Public Protector was conducting. The High Court’s conclusion that it was issued in fraudem legis is without factual foundation and constitutes misdirection on the facts”. Going to the High Court's finding that the PP was mala fide is relating to the issue of lack of funds. The Constitutional Court found that “The Public Protector explains that the first opinion was sought and obtained in one financial year and the second opinion was sought and obtained in the ensuing financial year. She did not have funds in the first financial year and she had them in the following financial year. That sounds like a perfectly sensible explanation. The High Court’s conclusion of bad faith is thus a leap in logic and yet another misdirection”. The next reason for the costs order is that the PP was “mala fide” in not inviting the Commissioner to participate in the second opinion and in not sharing that opinion. The Constitutional Court said “An incontrovertible (or even common cause) fact is that the Public Protector did advise the Commissioner beforehand that she would seek a second opinion; she was not cagey about it. She was not required to involve the Commissioner in seeking that second opinion. And she was entitled to obtain it if she was not satisfied with the first opinion. In those circumstances, failure to share the second opinion hardly justifies a conclusion of mala fides. Had she been acting mala fide in this regard, she would not even have shared with the Commissioner the fact that she was going to seek a second opinion. Also, as the Commissioner was aware that the Public Protector was to seek a second opinion, he could have asked for it. Or, at the very least, he could have asked if the Public Protector eventually got the second opinion she was to seek. Nothing suggests that she might have withheld it; not when she had volunteered information that she was to seek it”. The next issue that Justice Madlanga dealt with is the High Court’s finding that the PP had a “Proclivity to operate outside of the law, and a deep rooted recalcitrance to accept advice from counsel”; and Justice Madlanga said “According to the High Court, a ‘proclivity’ to operate outside of the law, and a ‘deep rooted recalcitrance to accept advice from senior and junior counsel’ were proof of unreasonable, arbitrary and mala fide conduct. A dictionary meaning of ‘proclivity’ is: ‘a tendency to do something regularly; an inclination’; ‘an inclination or predisposition toward something’. What we have on the facts of this case is only the one instance of not being happy with the first opinion and, as a result, seeking a second opinion. How that becomes a proclivity escapes me. As they say, one swallow does not a summer make. Also mind boggling is the holding that the Public Protector acted outside the law in seeking a second opinion, when she was perfectly entitled to seek it. In fact, in addition to being entitled to seek the second opinion, the Public Protector acted on the basis of it. Strangely, the High Court regards the opinion of the one senior counsel as gospel and that of the other not. The reality is that the Public Protector had two conflicting opinions and she preferred one: the correct legal position could have been what was stated in the one or the other, or in neither. The conclusion that – by picking the one opinion – she acted unreasonably, arbitrarily and in bad faith thus beggars belief and is gratuitous. In fact, it was wrong of the High Court to assume that the Public Protector was obliged to take the advice of senior counsel and to conclude that failure to take it is per se reckless or mala fide”. The court went on to deal with the next basis for the personal cost order against the PP, which was the expectation that the PP must act with a “high degree of perfection”; and here, Justice Madlanga said “As stated before, the High Court held that it was expected of the Public Protector to ‘always act with a high degree of perfection’. It is one thing to expect the highest possible standard of performance from a public official within whatever set parameters at the workplace. But it is quite another to hold that the slightest deviation from that standard must result in a personal costs order in the event that the deviation leads to litigation. If the latter were true, all litigation in which public officials came second best would result in personal costs orders against them. And that would be because the slight deviation does not meet the standard of ‘perfection’. This has never been our law. It is not any deviation from the set norm that results in personal costs orders. To attract such order, the deviation must be reprehensible or egregious or it must constitute a gross disregard of professional responsibilities. That is a far cry from ordering costs de bonis propriis as a result of a dip even by a slight margin from perfection”. “If the conduct of a public official has fallen short of the required standard and given rise to litigation, it may attract a costs order against her or him in her or his official capacity. It is only where there is reprehensibility in whatever form that the punitive step of ordering costs de bonis propriis may then be taken. So, the High Court’s standard of ‘a high degree of perfection’ was yet again misdirection”. So Chair, the Constitutional Court then went on to make some general remarks from paragraph 41 to 46. In essence, in these general remarks Justice Madlanga was sounding a caution against what he described as a developing trend of seeking personal costs orders in all, if not most matters involving the PP. This he stated from paragraph 42 onwards... In the Bosasa matter, former Chief Justice Mogoeng Mogoeng when he commented about what he described as the magnification of the PP’s errors, the former Chief Justice cited these general remarks made by Justice Madlanga, in particular in paragraphs 42, 43 and 45 of this judgment. The Constitutional Court then made the order I showed before... Tshepo, it also appears in page 610... The essence of that order was to... the effect of it in essence was to not grant the PP leave to appeal to the Constitutional Court in relation to the merits, which is the PP’s entitlement to taxpayer information. And I've already read to the Committee what the court found in that regard... and the court then set aside the personal costs order that was made against the PP for the reasons that I read to the Committee, as to what Justice Madlanga said about the High Court’s finding in that regard. The PP’s leave to appeal... The High Court’s finding on the counter application was also refused. Yeah, and in relation to that application that was before the High Court, each party was to pay their own costs.

So after this judgment, which was handed down in 2020, the PP then returned to the High Court and sought leave to appeal to that court against the declaratory order that the court had granted. Members will recall that I've just mentioned now that the PP was unsuccessful in the Constitutional Court on that aspect. She succeeded on the personal costs aspect, but not on this aspect. So the PP then returned to the High Court and made an application for leave to appeal. She also applied for condonation from the High Court for the lateness of her application for leave to appeal to the High Court. The delay was caused by the fact that she first started with the direct appeal to the Constitutional Court, with the result that when she returned to the High Court with her application for leave to appeal she was outside of the timeframes, and she had to ask for condonation from the High Court for the lateness of that application. The matter came before Mabuse J once again, and in his judgment which is also in Bundle C, folder three, is it item 11? I think... Both the PP’s application for condonation and for leave to appeal were refused by Mabuse J with costs, including the costs of two counsel. Chair, that brings to the end the exercise of just placing in detail the judgments that I have just done, for the purpose of contextualising... some of the aspects of the judgment – of the minority judgment of the former Chief Justice Mogoeng, upon which reliance has been made and which have been referred to in these proceedings thus far. Thank you, Chair.

Chairperson: Thank you. Over to you, Adv Bawa.

Adv Nazreen Bawa, Evidence Leader: Chair, the Committee will recall that last week I dealt with a number of aspects in relation to the judgment dealing with the Gordhan/SARS unit matter. And there are a couple of those aspects that I have dealt with, some of them there is an overlap with evidence that’s being led. And as this exercise, we do not want to delve into the evidence specifically before the Committee – it wouldn’t necessarily be conducive to deal with those aspects without actually looking at the evidence, but there are some aspects of that that two issues that I do think we could take the Committee through, which does not have this overlap in evidence. And these are the factors that the High Court took into account when he considered that there was bias on the part of the Public Protector. And the one aspect that I do want to deal with is the statements regarding her ladyship Justice Potterill, as the one aspect. And the other one is the issue of recruitment, which we will come to. Now there was a two-fold approach in the judgment about statements being made. And so, before I go to the question of the statements regarding her ladyship Justice Potterill, I must also deal with the statements which Minister Pravin Gordhan had made against the Public Protector, because they both sort of dovetail – well not dovetail, they both appear from the judgment. And in the answering affidavit, you will also recall that there was a part A and a part B in the matter. And in the answering affidavit opposing the part A relief sought by the Minister Gordhan in the matter, the Public Protector took issue with the allegations made by him in his founding affidavit in relation to her. She then brought a strikeout application, which ones sees... at Bundle E, item seven, and you go to the PDF page 385... The Committee will recall that in the judgment of then Chief Justice Mogoeng, this fell under... I think he called the comments that he made “do unto others as you want done unto you”; and that was the part of the minority judgment that you were taken to... You will see that that is the notice that was under rule 6(15) which was the notice to strikeout certain paragraphs. And if you go down, you see the various paragraphs of Minister Gordhan’s founding affidavit on the basis that they were “scandalous”, “vexatious”, “threatening”, “irrelevant”, “speculative”, “opinionated”, “argumentative”, and/or “inappropriate”. I think I’ve summarised the argument. Go down... right. And then there’s an affidavit just after that, which is filed by the Public Protector, which doesn’t go into much detail as to why the allegations fall into the different categories, but usually this would be argued in court, so I don’t make much of this. But you will find is that... go back up to the application to the strikeout. If one groups them together then paragraphs 12 to 22 relates to general allegations that the Public Protector was part of fake news about the SARS unit, state capture, and President Ramaphosa’s directive to restore good governance. For example, that she had permitted her office and its extensive powers to be weaponised in this political war against unity and renewal. That was sort of the gist. Paragraph 41 described the courts that had been overturned in court. Paragraphs 42 and 46.3 alleged that the Public Protector had shown a consistent pattern of disregard for her Constitutional mandate, and what was described in the affidavit as “stunning incompetence”, “irrationality” and “negligence”; also alleges that the Public Protector is attempting to remove Minister Gordhan from office to achieve political objectives.... Paragraph 100 and 128 alleges that the Public Protector ignored the Kroon apology and cast an appalling slur on Mr Pillay as being unqualified. Paragraphs 228 and 233 – so it was only those two paragraphs which it then seeks to put out and it dealt with improper motive. Now I want to specifically go to 228 and 233 in the judgment. But before we do so, the last one is paragraph 234.6, the taxpayer of South Africa should have to continue to fund unlawful conduct was the statement that’s being made.

Now if we go to the founding affidavit. Go to Bundle 4; paragraph 228. Minister Gordhan states “Finally, whilst I have great respect for the Office of the Public Protector I doubt the competence, integrity, legal literacy and constitutional grasp of its incumbent of her powers, duties and functions”. “Whilst it is unfortunate that these sentiments must be expressed, I maintain that the suspension and interdict will be in the overall interests of justice because I strongly doubt the bona fides of the Public Protector in investigating and issuing the Report. The Public Protector has confirmed that I am the subject of three ongoing investigations by her office, I am not aware of anyone who has been singled out and pursued by her Office in this way”. And then he sets out certain items, but as I pointed out that it was 228 and 233 that was sought to be struck out. And he says in 233, “On the basis of the above considerations, I am entitled to have these issues adjudicated upon by a court of law in the pending judicial review before being compelled to endure the prejudicial and punitive processes required by the remedial action”. The Public Protector deals with these allegations in item four, volume 12. Just go to PDF 1304, right. And she deals with it in paragraph 11. And she essentially sets out what her complaint is in respect of each of the items. So if you just scroll down, the finding that it was fake news that the narrative of the rogue unit... in paragraph 80, the focus of the investigation appears to join this pattern. And she sets out and she explains essentially... And she in addition to that sought a declaratory order in a counter application, and one sees this in paragraph 17 of the judgment. Essentially there’s an application for a declaratory order that Minister Gordhan failed to comply with his constitutional duty to assist and protect the Public Protector, and she seeks a punitive cost order against him. If you go to Bundle C, item three, you go open the judgment... go to page 710. So in respect of the counter application, the court describes the judgment – the order in paragraph 270 that’s being sought, and that’s the counter application... a failure on the part of him to comply with his constitutional duty. Go further down... “The Public Protector alleges that Minister Gordhan violated his constitutional duties by ‘hurling insults and litigation threats’ and submits that the language used by Minister Gordhan in his founding affidavit was contemptuous and unjustified. She contends that he therefore made himself guilty of contempt. She further alleges that Mr Gordhan adopted an ‘obstructionist strategy’ during the investigation, and in so doing breached his duties in terms of section 181(1) of the Constitution and section 6(9) of the Public Protector Act by refusing to allow Public Protector the requisite information to determine whether ‘special circumstances’ existed”. And the court then says that the “declaratory order is an order by which a dispute over the existence of some legal right or obligation is resolved. The right can be existing – prospective or contingent and no specific consequential relief need be claimed. It is trite that a court has discretion whether to grant or refuse an application for a declaratory order. A court will not grant a declaratory order where the legal position has already been clearly laid down by statute”. “Minister Gordhan does not dispute that he has a constitutional duty under section 181 (3) of the Constitution to assist and protect the independence, impartiality, dignity and effectiveness of the Public Protector in the performance of her obligations. The granting of a declarator as sought by the Public Protector in paragraph 1 of the Notice of Motion would therefore serve no purpose”. “In paragraph 2 of the Notice of Motion the Public Protector seeks an order that Minister Gordhan has failed to comply with his constitutional duty to assist and protect the Public Protector as required in section 181(3) of the Constitution, during her investigation of the complaint against him”. The court then found: “Firstly, there is no doubt that Minister Gordhan complied with his constitutional duties. He has complied with the investigation by the Public Protector by submitting two affidavits when directed to, supported by documents. Secondly, Minister Gordhan is entitled to disagree with the Report and exercise his rights to challenge it in these proceedings. By challenging the report he is not in contravention of any constitutional obligation. Based on the information available, there is no evidence to support the granting of the relief claimed by the Public Protector”. “As far as the contempt allegations are concerned...” - and then they set out the provision of the Act that deals with contempt. And then it says the “Rules relating to Investigations by the Public Protector and Matters Incidental provides as follows: (1) If the Public Protector is satisfied that a person has acted in a manner that constitutes contempt of the Public Protector as envisaged in terms of section 9(1) of the Act, he or she may report the matter to the South African Police Service or apply to the High Court, by notice of motion supported by an affidavit in terms of the Uniform Rules of Court- (a) for an order that the person(s) be declared in contempt of Court/ the Public Protector; and (b) that the Court deals with him or her in terms of section 9(1)(b) of the Act in any manner in which it could have dealt with him or her if he or she had committed contempt in relation to the High Court. (2) The condition is that the person- (a) has insulted the Public Protector or the Deputy Public Protector; (b) has done an act in connection with an investigation which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court”. And then it sets out the procedure for the notice for lodging such an application in subsection 3. Go down... and it tells you what has got to be in that notice. And then “As alluded to in the striking out application above, the majority of the allegations complained about in the founding affidavit of Minister Gordhan, was directed at one of the grounds of review, namely that the Public Protector acted with an improper motive and that she was biased. But, although it was irrelevant for the purposes of this application, Minister Gordhan also thought it necessary to express his personal views about Adv Mkhwebane’s competence, integrity, legal literacy and constitutional grasp of the Public Protector’s powers, duties and functions. As stated in the striking out application, these statements are irrelevant and scandalous and are struck from the founding affidavit. There are however no contempt proceedings that have been launched against Minister Gordhan as contemplated in Rule 26, and no relief has been sought against Minister Gordhan in the Notice of Motion to find him guilty of contempt. We are therefore not at liberty to deal with the allegations of contempt”. “The counter- application is therefore dismissed”. The full bench upheld the Public Protector’s application to strikeout only paragraph’s 228 and 232 of Minister Gordhan’s founding affidavit and found costs in favour of her. Go to... And the court ordered as follows in respect of that, go to page 725. And we see that in the order... So the application to strikeout is very specific, it’s granted “in respect of paragraphs 228 and 232 of Minister Gordhan’s founding affidavit with costs”. The court did not strikeout the other paragraphs which one saw and I showed you from the application to strikeout to do that. What transpires after that is that there is an application for leave to appeal against the High Court’s ruling in respect of the paragraphs that were not struck out, and that persists as part of the application for leave to appeal to the higher courts. You will also see that the counter application is dismissed. Now on the other side of it is the Public Protector had made statements regarding her ladyship Potterill J in her affidavit in part B before the full bench of the High Court, which they had found to be objectionable and made comments in the judgment, as one will see evident from the judgment. Now the relevant parts of the Public Protector’s affidavit in that regard one sees in folder number seven, item six. Right, and then you go to page 1013 of the PDF. Right, and it’s paragraph 95... Actually, go up to 94, let’s put it into context, “Mr Gordhan’s own evidence shined a...”, okay that deals with that. Go down to 95, “The High Court further committed a gross misinterpretation of the applicable Executive Ethics Code. Section 2.3 expressly states that Members may not- (a) Deliberately or Inadvertently mislead the President, or the Premier or as the case may be; the legislature; Inexplicably the High Court close to rewrite the said provisions of the Code and adopted Mr Gordhan’s view that Code only prohibits ‘wilfully’ misleading ‘the Legislature to which they are accountable’. The High Court did so by deliberately omitting the words ‘inadvertently mislead’ from the actual code. The High Court states on paragraph 22 of the judgment that the review grounds set up by Mr Gordhan is that he did not wilfully mislead the National Assembly. I found that Mr Gordhan dishonestly concealed the fact that at the ‘Ambani meeting’ there was a Gupta present. As if to highlight its grossly misplaced interpretation of the Code, the Court went on to state on paragraphs 23 and 24 the following: ‘The EFF submitted that it matters not that Gordhan may not wilfully have misled the Legislature, an innocent mistake is sufficient. This is of course contra the wording of paragraph 2.3(a) of the Code specifying that it must be done wilfully’”. And then if you look at... So that was the one statement. And if you go to PDF 1047, which is paragraph 179, you will see that “Potterill J overlooked the legal doctrine applicable to the ‘Rogue Unit’ matter, that is when a party has concealed his misconduct, the limitations period does not begin to run until after the duped party discovers, or with due diligence should have discovered, his claim against the deceitful party...”. Sorry, Tshepo, it is paragraph... You’ve got the wrong paragraph. Just go up... “Contrary to Potterill J’s erroneous interpretation the statue does set forth a strict prescription period. Rather, the Public Protector is given unbridled discretion to permit in special circumstances a complaint not reported within the two-year period of the occurrence of the incidence. Potterill J blithely overlooks the abecedarian proposition that the Public Protector’s investigations are triggered, for the most part, by complaints filed by citizens the majority of whom are laypersons. Potterill J ignores that the time lag between a citizen’s acquisition of knowledge of maladministration sufficient to justify a complaint to the Public Protector and the actual occurrence of the incident will never perfectly fit the two-year time limits. She baldly and falsely asserts that the complaints relating to Gordhan flows from a meeting in 2010 and the establishment of an investigative unit in 2007. She concludes that the Public Protector was not entitled to entertain these complaints. Not so. It is perfectly within the encincture of her discretion to accept these matters for investigation and she needs only articulate special circumstances to do so”. It then says “By Gordhan’s own admission, the establishment of the investigation unit was secretive or at least not a matter of public knowledge. It carried out its spying functions for a considerable period of time after it was created and the equipment it purchased for such purposes are still not accounted for. The ‘continuing violation’ doctrine overrides the statute of limitations relied on by Mr Gordhan and supported by Potterill J. It is alleged that the implicated persons ran a covert unit within SARS, unlawfully revealed taxpayer information, were engaged in unlawful interception and other wrongs from the inception of the rogue unit until at least 2014. It is simply ridiculous for a Mr Gordhan as was upheld by Potterill J to assume that ordinary citizens would have sniffed out these covert activities or uncovered sufficient facts within two years from 2007”. And then it goes on. Now there are other statements made by the Public Protector about Potterill J. And the judgment doesn’t... that are couched in what one would regard as generally accepted phrases that she erred in her judgment, or she misdirected herself et cetera. And the full bench doesn’t take criticism with these comments, but in its judgment if you go to the judgment... Go to Bundle E7, item four, from page 14. It's a different reference to the judgment, but just go to item four, page 14, yes... Sorry, Tshepo, rather go to the judgment we use to using, at Bundle C, number 18. 639 PDF, paragraphs 58 to 61... And this deals with the Executive Ethics Code. And then the court says, “But what compounds the Public Protector’s misdirection is that she then makes a complete about–turn by departing from her report and now argues that an ‘inadvertent or mistaken misrepresentation violates the Executive Ethics Code’. In doing so she then shifts her focus to the judgment of Potterill J, who presided over Part A of this application. In her judgment, the judge briefly dealt with interpretation of the wording contained in section 2.3(a) of the Executive Ethics Code and made the following comments in respect of the wording in paragraph...” - to which I had taken you to, in paragraph... no, I actually didn’t. The judge quotes the section and then says, “The review grounds set up by Gordhan is that he did not wilfully mislead the National Assembly. The PP found that Gordhan dishonestly concealed the fact that at the ‘Ambani meeting’ there was a Gupta present. Gordhan sets out that until today he cannot recall that a Gupta was present, but his Chief of Staff informed him in preparation for his evidence at the Zondo Commission that there was a Gupta present at that meeting; he without an independent recollection thereof disclosed this fact to the Commission. The EFF submitted that it matters not that Gordhan may not wilfully have misled the Legislature, an innocent mistake is sufficient. This is of course contra the wording of paragraph 2.3(a) of the Code specifying that it must be done wilfully. On these facts Gordhan has established prima facie right”. “Potterill J, with reference to the express wording employed in the Executive Ethics Code thus held the view that what is required is that the misleading statement must have been done ‘wilfully’ and that ‘an innocent mistake’ will therefore not fall short of the provisions of section 2.3(a) of the Executive Ethics Code”. “In her affidavit in the proceedings before us, the Public Protector strongly disagrees with the interpretation adopted by Potterill J namely that wilfulness is a requirement for a transgression of the Executive Ethics Code. But, instead of merely recording her disagreement with the court’s interpretation, she launched into a scathing, unwarranted and personal attack on the integrity of the learned Judge. She even goes as far as to accuse the learned Judge of ‘a gross misinterpretation of the … Code’ and of ‘deliberately omitting’ words from the Code”. Then the paragraph I took you to is quoted in the judgment, I'm not going to read it again, we've been there. Go down... “Apart from the fact that the personal attack on the learned Judge is shockingly inappropriate and unwarranted, the Public Protector’s reading and interpretation of paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits members of the Executive from ‘wilfully misleading the legislature. The wording of the Code is clear and does not contain a provision that an “innocent” mistake constitutes a contravention of the Executive Ethics Code. To claim that Potterill J ‘deliberately’ omitted the words ‘inadvertently mislead’ from the actual Code, is simply astonishing. Besides being a Public Protector, Adv Mkhwebane is officer of this court owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potterill personally. What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potterill an apology. The Registrar of this Division is requested to send a copy of this judgment to the Legal Practice Council for consideration”. In paragraph 63 it says, “The Public Protector also bemoans the fact that Minister Gordhan has launched an attack on her integrity which she labels as ‘scandalous’ and made in an attempt to support a ‘political crusade’ against her to mobilise ‘political support’ for her removal from her office. Yet she has no qualm launching a blistering and personal attack on a Judge of this division”. “To summarise: The evidence presented to the Public Protector does not support a conclusion that Minister Gordhan wilfully contravened the Code. A conclusion to the contrary is incorrect and irrational”. And then if you go to paragraph 284 of the judgment, go to PDF 715. 284, it says, “The Public Protector deals with Minister Gordhan’s allegation of bias and ulterior purpose in her answering affidavit. She correctly points out that such allegations have far-reaching constitutional ramifications for the constitutional integrity, public trust and the proper constitutional functioning of the Office of the Public Protector. She, however, dismisses these allegations made by Minister Gordhan as unsubstantiated and labels it as an unconstitutional attempt by him to undermine the office of the Public Protector. She further accuses Minister Gordhan as having mounted a bad faith attack on her and the Office of the Public Protector which undermines the independence, impartiality, dignity and effectiveness of the Public Protector. She also states that these ‘insults’ have been made to harass and demean the constitutional significance of the work of the Public Protector. Although she submitted that the ‘attacks and insults are not legitimate criticism which a court would tolerate if they were directed at it [the Court]’, she herself, as already pointed out, had no hesitation to mount such an attack against Potterill J of this division”. And then in paragraph 290, the court concluded the nine grounds which I've taken you to before on which a conclusion of bias was warranted; and one of those grounds is the Public Protector’s unwarranted and slanderous attacks on Potterill J. And one of the factors that was taken into account in respect of the adverse cost order, including the personal cost in the reasoning of the full bench in this matter, which you see from paragraphs 302, 303 and 304 of the judgment, which we’ve already dealt with. So that was one of the other grounds in dealing with it.

And I'm next going to turn to the issue of recruitment. Chair, we’re almost at lunch time. Do you mind took it earlier and then I would run through the entire section after lunch or... If we could do that, Chair, rather than me starting and stopping.

Chairperson: Okay, that’s fine. All right. Thank you, for giving these early breaks, that’s fine. We'll take lunch, colleagues. Yeah, we’ll take 45 minutes. Thank you.

[Lunch break]

Chairperson: Welcome back, everybody. We will proceed with Adv Bawa. Just before you proceed, Adv Bawa. I just want to check if we’re connected. Hon Majozi, can you hear us? Hon Denner, can you hear us?

Ms Z Majozi (IFP): Yes, Chair. I'm here. I can hear you.

Chairperson: Thank you. Proceed, over to you, Adv Bawa.

Adv Bawa: So there’s two subjects that I'm going to deal with this afternoon in the Gordhan matter, and there’s two that would have to stand over. The two that would have to stand over deals with media and equipment. And the two that I'm going to deal with relates to qualifications and recruitment, right. And what I'm not going to deal with, as I've said to you this morning, is the evidential parts of it, because I can excise this. And when we do come back and we do argument on evidence et cetera, then I will take you to what the draft reports had to say on this subject matter. And for this purposes we looked at the affidavits in dealing with the matter. And if Tshepo can put it up on the screen... a table that we’ve prepared. And so, again you will recall that there is a part A and a part B in dealing with it, and that the Public Protector only dealt in part A with certain allegations. So we picking it up from a replying affidavit which Minister Gordhan files in the matter, and where he says “The Public Protector does not deny that she was incorrect in stating that Mr Pillay did not have a matric certificate. But she denies that her investigative process was flawed. Instead, she lays the blame for this inaccuracy with Mr Pillay and me. She contends that she merely summarised what we had given her, and that our failure to disclose the information resulted in her mistake”. “Again, the Public Protector fails to take responsibility for her errors. I was incorrectly recorded as having conceded that Mr Pillay had no matric – only when confronted with a transcript does the Public Protector acknowledge the error but takes no responsibility for it”. “The Public Protector fails to do the necessary due diligence to establish the true factual position, and then attributes the blame for this failure to myself and Mr Pillay. It is also unclear how I must appraise the Public Protector on Mr Pillay’s qualifications when she is tasked to investigate and has the resources to do so”. …

[Audio connection lost]

Chairperson: Hon Majozi, can you hear me?

Ms Majozi: Yes, Chair. Yes, I can hear you, Chair.

Chairperson: Okay. So we’ve picked up the audio. Thank you.

Prof C Msimang (IFP): I can also hear you, Chair. Thank you very much.

Chairperson: Thank you for that delayed response, Hon Msimang. We can hear you too. I'm going to ask Adv Bawa to start.

Adv Bawa: Chair, do you have any idea where I have to start?

Chairperson: Just start immediately after lunch... because it was not too many minutes, it was just a few minutes when we got that alert.

Prof Msimang: Thank you, very much, Chair. We can hear everything now.

Chairperson: I thank you, Hon Msimang. We'll now proceed then. Thank you. Over to you, Adv Bawa.

Adv Bawa: Right so, I'm taking you to a table and I’m dealing with the issue of Mr Pillay’s qualifications. I started before we lost sound, reading certain paragraphs from these affidavits. And the issue relates to the question as to Mr Pillay’s matric certificate, and the version or the statement in the Public Protector’s report that he has no matric certificate. And so, we go to the founding affidavit. And I don’t know if we have a screen at the moment... Okay, so...

Chairperson: Can you see what’s on the screen, Hon Members on virtual?

Ms Majozi: We can see you, Chairperson.

Chairperson: And what’s on the screen? Can you see...

Ms Majozi: Yeah, now we see a document.

Chairperson: Okay. All right. We are the only ones who can’t see anything here, but proceed, Adv Bawa.

Adv Bawa: Earlier on, I had actually started with the replying affidavit, because of the way the affidavits was structured. But it made more sense actually to start with the founding affidavit. So what Minister Gordhan says in his founding affidavit is “There is no formal qualification in law required for appointment as Deputy Commissioner of SARS. Mr Pillay, like many other South Africans who dedicated their lives to the struggle against apartheid, does not have any tertiary qualification. He has, however, proved himself to be a public servant of great skill and dedication”. “Mr Pillay joined the public service in January 1995 and served SARS for more than a decade. On 15 April 2009, Cabinet approved Mr Pillay’s appointment as one of three deputy SARS Commissioners”. We don’t need to go to the SARS media statement. And then it says, “He held various senior positions in SARS and discharged his functions with commendable success and integrity. He always excelled at his job and made a significant contribution to the establishment and rebuilding of SARS, including the building and refining of is enforcement and investigative capabilities”. “He also played a leading part in the establishment of the highly successful SARS Large Business Centre”. “These achievements, in which he participated, made SARS the highly respected organisation it was until September 2014 when it was ‘captured’ by Mr Moyane (as found by the Nugent Commission)”. “His knowledge and experience and his leadership as Deputy Commissioner were invaluable assets to the institution. Society owes him a vote of gratitude and not insult”. And it goes further, and it says, “The Public Protector’s report appears to proceed from the mistaken assumption that there is a closed, specific and dear list of qualifications for the position of Deputy Commissioner of SARS. It is only on this premise that one could dismiss Mr Pillay’s decades of public service as insufficient to qualify for appointment as Deputy Commissioner. The Public Protector indeed descends to petty, churlish and superficial criticism which is no foundation in fact”. “The Public Protector, at paragraph 5.8.26 states that ‘SARS and Mr Gordhan conceded that Mr Pillay did not possess a degree qualification or a matric certificate’. This is false. I have never made such concession. Nor could I since I know that Mr Pillay matriculated” ... The response from the Public Protector comes from paragraph 125, “First, information about Mr Pillay’s qualification should have been given to me when it was pertinently sought. The failure to cooperate with the Public Protector violated the duty to assist and protect the independence, impartiality, dignity and effectiveness of the Public Protector. Assuming that Mr Pillay or Gordhan or SARS had been candid with the Public Protector on Mr Pillay, it would be justified to criticise me if I got anything factually wrong”. “I stand by her (sic) findings on Mr Pillay, in particular it is denied that his involvement in the struggle is not a legitimate basis to find that he was qualified for appointment to a senior position at SARS”. And then 127, “It is in fact an alarming anomaly that there is no ‘formal qualification’ for appointment to a senior management of a country’s revenue collection agency. The fact that no formal qualification was created must be regarded as a deliberate attempt to create advantage for persons like Pillay – who has undeclared special skills relevant for the core work of the SARS”. … In reply, Minister Gordhan comes back and it’s quite a lengthy reply. And the first couple of paragraphs he deals with all the grounds of review. And in respect of qualifications at paragraph 70, he says the following, “The Public Protector does not deny that she was incorrect in stating that Mr Pillay did not have a matric certificate. But she denies that her investigative process was flawed. Instead, she lays the blame for this inaccuracy with Mr Pillay and me. She contends that she merely summarised what we had given her, and that our failure to disclose the information resulted in her mistake”. “Again, the Public Protector fails to take responsibility for her errors. I was incorrectly recorded as having conceded that Mr Pillay had no matric – only when confronted with a transcript does the Public Protector acknowledge the error but takes no responsibility for it” - and I'm going to come to the transcript in a bit; “The Public Protector fails to do the necessary due diligence to establish the true factual position, and then attributes the blame for this failure to myself and Mr Pillay. It is also unclear how I must appraise the Public Protector on Mr Pillay’s qualifications when she is tasked to investigate and has the resources to do so”. In respect of the specific paragraphs, Minister Gordhan denies the contents thereof, and says “I again mention that the Public Protector lacks the requisite expertise to critique the employment of a Deputy Commissioner. Her views on this aspect are sheer speculation”. It then goes further, and we find that in the supplementary founding affidavit that is then filed... And you will recall that the supplementary founding affidavit is filed after what is known as a rule 53 is filed. And a rule 53 is meant to be every piece of paper and every document to which a Public Protector would have had regard to for purposes of compilation of the report. So now the applicant or the litigant before court gets a second opportunity to amplify his case, having regard to this record that is now filed by the Public Protector in court. And he says, “There are no documents or materials in the record indicating the steps the Public Protector took to identify the necessary qualifications to occupy the position of Deputy Commissioner”. Paragraph 58:  “There are no documents or materials in the record which set out the steps the Public Protector took to determine Pillay’s qualifications. I reiterate that Mr Pillay completed matric and was out of the country for over a decade as a cadre of Mkhunto (sic) we Sizwe. He was deprived of the opportunity to gain further formal education but not of the opportunity to gain skills and experience useful to SARS” … paragraph 59, “In the report (paragraph 5.6.26), the Public Protector said that I conceded that Mr Pillay did not have a matric certificate. I deny that I made any such concession”. “The Public Protector contradicted this finding in her section 7(9) notice issued to me. In paragraph 14.6.25 of the section 7(9) the Public Protector said that I had conceded that Mr Pillay only had matric”. “When my attorneys called for any documentation in which I conceded that Mr Pillay does not have a matric certificate – the Public Protector referred to a two hour audio recording of her interview with me. At no stage in that recording do I say that Mr Pillay had no matric certificate. I, in fact, said that the expertise of SARS values stems not from qualifications, but from on-the-job experience and skills. The Public Protector thereafter undertook to obtain the nature of Mr Pillay’s qualifications from Mr Pillay directly. This transcript is attached as PG 84” ... Let’s go up to see what the Public Protector has to say... it starts by paragraph 57, “Mr Gordhan’s best point is criticising the Public Protector and not offering sensible answers to what are clearly difficult questions that the Public Protector had to investigate”. “First it is clear from the nature of the position of SARS that it would require someone with a matric certificate. I do not believe that Mr Gordhan can sensibly support the appointment of someone without a matric certificate to any strategic institution like SARS, especially the position of SARS Commissioner. Secondly, Mr Gordhan cannot seriously contend that someone without the requisite academic qualifications to head SARS should be appointed. Those in the opinion of the Public Protector should be uncontentious matters. What is clear is that the new SARS Commissioner was appointed through a process that appeared to give significant importance to qualifications which include academic qualifications”. The next paragraph, “Mr Gordhan determination to find fault with the Public Protector has certainly blinded him to the reality. The Public Protector specifically asked questions relating to Mr Pillay. That is all she (sic) could do. Mr Gordhan, SARS and Mr Pillay were in a position to assist by providing the Public Protector with accurate answers. Instead, they all engaged in obstructionist tactics by resorting to questioning the legitimacy of the Public Protector’s investigations and questioning her bona fides. It is denied that there are independent steps that the Public Protector could take outside asking Mr Gordhan, Mr Pillay or SARS to provide information on the qualifications of Mr Pillay. The first time that Mr Pillay gives a direct answer on the qualifications is when the interim interdict was launched”. “Unfortunately, SARS, Mr Gordhan and Mr Pillay failed to comply with their duties to assist the Public Protector to reach accurate decisions on this matter. They were belligerent as they are in this application-threatening the Public Protector with all sorts of name-calling and belittling her inquiries and treating them contemptuously. Mr Gordhan has not restrained his attacks on the Public Protector for issues that he could have provided to the Public Protector during the investigation stage. The opportunity to place the full facts on Mr Pillay’s qualifications was in his own hands or in the hands of the SARS. They derided the Public Protector’s good faith attempt to get to the true state of affairs”. “In any event, if there is no record as alleged by Mr Gordhan, it was his own making or the making of Mr Pillay who played fast and loose with the Public Protector. In this paragraph, and for the first time, Mr Gordhan appears to know that Mr Pillay has a matric certificate. The fact that he was out of the country for over a decade as a cadre of Umkhonto We Sizwe is irrelevant experience for the purpose of determining his suitability for the SARS Commissioner position”. “Mr Gordhan did not give direct answers to the questions of Mr Pillay’s qualifications. What he said is that ‘Mr Pillay, like many other South Africans who dedicated their lives to the struggle against apartheid, does not have any tertiary qualifications’. He repeats this point in the previous paragraph. In his own words Mr Pillay ‘was deprived of the opportunity to gain further formal education but not of the opportunity to gain skills and experience useful to SARS. This is similar to the lives of several other cadres’. What he does not say is why he believes it is unreasonable for the Public Protector to regard a tertiary qualification a necessary standard, amongst other, to judge the fitness of a candidate for the position of SARS Commissioner”. “It is the view of the Public Protector that Mr Pillay was not qualified for the position of SARS Commissioner. The fact of the matter is that even if he had disclosed that he had a matric certificate the Public Protector’s finding that he lacked the formal qualifications for the position of SARS Commissioner would be a reasonable conclusion taking into account the nature of the position and the responsibilities attached to it. ‘The fact that he was involved in the struggle for liberation in South Africa is irrelevant to determining his suitability for the position of SARS. There is nothing that he disclosed about his involvement in the liberation of South Africa as a cadre of Umkhonto We Sizwe that gave the Public Protector an indication of the kind of expertise and skills that qualified him for the position of SARS Commissioner. I therefore accordingly stand by my finding that SARS appointed him without the formal qualifications – which are necessary and relevant. What appears to be the reason for his appointment to such a high position at SARS is undisclosed skills and expertise that he claims to have acquired as a cadre of Umkhonto We Sizwe during the liberation struggle.’” ... Minister Gordhan then responds in reply, just go up to 224, and he says “I deny that the Public Protector merely summarised the evidence as presented to her. She failed in her investigative process and then sought to blame Mr Pillay and I. this inability to take responsibility for a rushed and flawed process warrants censure”. “The facts as presented to the Public Protector were that: In his response to the subpoena of the Public Protector, Mr Kingon of SARS, explains that Mr Pillay was not appointed by SARS but rather by Cabinet. No fixed criteria are set for appointment as a Deputy Commissioner of SARS. SARS utilises the Goodness of Fit model to determine succession and identify leadership traits. Mr Pillay has a matric certificate. At the time of his appointment as Deputy Commissioner, he had gained considerable skills, expertise, and experience including setting up a world-class Business Centre”. “Despite this she elected to disparage Mr Pillay and make unsubstantiated findings about his appointment as Deputy Commissioner”.

Mr Pillay files an affidavit... two affidavits which are just put down next to each other. We'll deal with the founding affidavit first and then we’ll deal with the supplementary founding affidavit. In the founding affidavit Mr Pillay says, “I also wish to point out an aspect of the Report that demonstrates the Public Protector’s failure to correctly record facts, whether as the result of extraordinary inattention to detail or an attempt to demean my dignity even more that she has already done”. “In paragraph 5.6.4 of the Report the Public Protector states that ‘SARS in their response dated 05 February 2019 did not dispute that Mr Pillay did not have a degree and that he did not possess a Matric certificate’”. “In paragraph 5.6.26 she states that ‘SARS and Mr Gordhan conceded that Mr Pillay did not possess a Degree qualification or a Matric certificate”. “I have not had sight of the SARS response dated 5 February 2019 but I very much doubt that SARS would have stated that I did not matriculate, as that would have been a false statement. I matriculated in 1970 having completed my secondary school studies at Merebank High School”. “I have carefully read Minister Gordhan’s affidavit dated 17 May 2019... Nowhere in that affidavit does Minister Gordhan state that I do not possess a Matric certificate”. “I have also read the Public Protector’s notice in terms of section 7(9) dated 3 June 2019...”. Chair, I just want you to make a mental note that the section 7(9) notice in the SARS unit/Gordhan matter goes out and is dated the 3rd of June 2019. I'm going to come to that in a bit. “...which was directed to Minister Gordhan. In paragraph 14.6.4 she states that ‘SARS in their response dated 05 February 2019 did not dispute that Mr Pillay did not have a degree and that he possessed a Matric certificate’”. And so, you see there’s a second date to take note of, and that’s 5 February 2019 when the SARS response comes in. “Minister Gordhan’s affidavit dated 20 June 2019 in response to that notice does not state anywhere that I do not possess a Matric certificate. What Minister Gordhan recorded was that ‘Mr Pillay, like many other South African’s who dedicated their lives to the struggle against apartheid, does not have any tertiary qualification”. “The Public Protector having cast the unconscionable slur upon me that I was unqualified to be appointed to the position of Deputy Commissioner of SARS simply because I hold no degree (where no such qualification is required for the position), has in the Report expanded that slur to deny even my secondary school qualification”. “Whatever the Public Protector may have had in her mind when she so cavalierly misrepresented my qualifications in her report, it does her no credit”. “In paragraph 89.8 in my affidavit dated 18 June 2019 I referred to the skills, equivalent experience and leadership experience that I have accumulated over my lifetime. I wish to record that, although I have no degree. I have completed numerous courses and received training in many relevant disciplines. I have a Diploma in Management conferred by the Gordon Institute of Business Science. I wish to stress that the Public Protector did not at any stage ask me for my curriculum vitae”. Go up and see what he says in the supplementary founding affidavit... He says, “In my founding affidavit (at paragraph 137, including its various subparagraphs) I dealt with the Public Protector’s false claim that I do not possess a Matric certificate”. “I have subsequently obtained the transcript of the evidence that I provided under oath to the Public Protector in the course of her investigation into the ‘retirement matter’”. Now you will recall that there are two reports done by the Public Protector, one is relating to the Pillay/pension matter, a complaint that had been lodged much earlier – you will recall that the Public Protector testified to that being a much earlier complaint with a different investigator. And the SARS unit report. In the first complaint the Minister and Mr Pillay was interviewed. In the second - in the SARS unit complaint, Mr Pillay was not interviewed. Right so, the transcript which is then attached to the supplementary founding affidavit is the transcript of Mr Pillay’s evidence which was only done on the 25th of March 2019 – three months before the section 7(9) notice goes out. So although the complaint in the Pillay/pension matter was lodged a lot earlier...

Chairperson: What date in March?

Adv Bawa: 25th March 2019.

Chairperson: Okay.

Adv Bawa: Right. The report in the SARS unit matter comes out early July 2019. So the “recording was made available by the Public Protector in terms of rule 53(1)(b) in the review under case number 36099/19”. So that’s what we know as the Pillay/pensions matter. And I think it’s the 3rd or 4th of July that this report that is under review comes out. And in paragraph 17 he quotes from the extract from the transcript, which I’ve set out there. The PP says to him “He will get yes, because he was over fifty-five, okay, so plus the salary, or plus the allowance. Call it that, yes. I think before you come in, it was a follow-up on the requirements, when you joined SARS in 1990 or when you promoted and I mean, you were a member of the executive, what qualifications do you have?” – the Public Protector asks Mr Pillay in March 2019. And Mr Pillay says, “I was wondering when you would get there. I have matric, I passed matric in 1970... Indian high school”. The inaudible part is how the transcript is represented. Mr Pillay then says, “Yes” to whatever question we don’t have recorded in the transcript. There is then another person attributed as Mr Hotz, but we are told later that it’s wrongly attributed to him, it’s actually another person – and he responds, and he says “Giving secrets away”. Mr Pillay says, “Yes”. “Giving his secrets away” – it’s actually Adv Laurence Hodes... that that is being attributed to. The PP then says, “Well, it’s public information”. Mr Pillay says, “And I'll give you an assessment report, SARS asked me to undergo in 1999”. “We have a bundle of documents”. And the PP says, “...yes”. “You can have it”. So the PP confirms, “So you had a matric in 1990, in fact, when you joined...”; Mr Pillay says, “In 1970”, he got his matric certificate in 1970. The PP says, “I know, but when you joined that was the highest qualification you had”. Mr Pillay says, “Yes”. And then in his affidavit he says, “I wish to point that the references in the transcript quoted above (and indeed generally in the transcript after the initial introductions) to Bernard Hotz, who is my attorney, are misattributed by the transcriber. The speaker was in fact my counsel, Adv Laurence Hodes SC”. Pillay then goes on in the affidavit, “It is clear from the extract quoted above that the Public Protector well knows that I have a Matric certificate. Her conclusion in the Report that I do not hold even that basic qualification, notwithstanding the fact that on 25 March 2019 when I testified before her on oath she plainly accepted that this was a matter of public record and was within her knowledge, is demonstrable of the lengths she is prepared to go to violate my rights. In doing this she has manifested clear bias against me and material irregularity in arriving at her findings”. And Chair, these allegations are not contested in the answering affidavit.

So now we come to the judgment... at Bundle C, number 18, PDF 696. 227. So this deals with the qualification issue. And the court says, “In relation to the Public Protector’s findings in the notice regarding Mr Pillay’s qualifications to be appointed as the Deputy Commissioner of SARS, the issue, as defined by the Public Protector was ‘Whether Mr Pillay was appointed to these positions whilst not in possession of the necessary qualifications required’. The Public Protector did not, however, state in the notice what the ‘necessary qualifications’ for ‘these positions’ in fact are”. “Whilst recognising that the appointment of a Commissioner is regulated by the South African Revenue Services Act (which prescribes no particular qualifications for the appointment) the Public Protector refers to section 195 of the Constitution and in particular that the Constitution requires that ‘a high standard of professional ethics must be promoted and maintained’ in public administration. It is not clear why reference was made to section 195 of the Constitution, but it seems as if the Public Protector equate ‘a high standard of professional ethics’ to the holding of a degree, as her analysis appears to be founded solely on the consideration that Mr Pillay does not hold a degree. This is also apparent from the conclusion the Public Protector reached in paragraph 14.5.30 of the notice where she stated that ‘It is however apparent that SARS did not take the qualifications of Mr Pillay into consideration in the appointment of Mr Pillay as Deputy SARS Commissioner’". “Firstly, there is no requirement that only the holder of a degree can be appointed as a Deputy Commissioner of SARS or hold an acting appointment as the Commissioner. Secondly, there is no rational basis for this conclusion as Mr Pillay’s qualifications for appointment as Deputy Commissioner were clearly taken into account and it was found that he was suitably qualified for the appointment. What the Public Protector presumably meant by her statement is that the fact that Mr Pillay does not possess a degree was not taken into consideration. But inasmuch as the possession of a degree is not a precondition for the appointment as Deputy Commissioner, the Public Protector’s reasoning is fallacious”. “The Public Protector then proceeded to disparage the ‘Goodness of Fit’ process that SARS carried out. Her basis for doing so is not rational. She states that ‘The argument by Mr Gordhan that the decision to appoint Mr Pillay to the position of Deputy SARS Commissioner was solely based on Mr Pillay’s previous experience and acquired skill is vague considering the level of the position’. By this single irrational sentence, the skills, equivalent experience and leadership experience that Mr Pillay has accumulated over a lifetime, including the leadership role he held during the armed struggle for the liberation of South Africa, have been dismissed and negated by the Public Protector”. “But the Public Protector, in the Report, proceeded to even deny that Mr Pillay had a school qualification. In paragraph 5.6.4 of the Report the Public Protector states that "SARS in their response dated 05 February 2019 did not dispute that Mr Pillay did not have a degree and that he did not possess a Matric certificate." In paragraph 5.6.26 it is stated that ‘SARS and Mr Gordhan conceded that Mr Pillay did not possess a Degree qualification or a Matric certificate’”. “There are three difficulties with these statements. Firstly, it is doubtful that SARS would have stated that Mr Pillay did not matriculate, as that would have been a false statement, as Mr Pillay matriculated in 1970 having completed his secondary school studies at Merebank High School. Secondly, nowhere in Minister Gordhan’s affidavit is it stated that Mr Pillay does not possess a matric certificate. What Minister Gordhan recorded was that ‘Mr Pillay, like many other South African’s who dedicated their lives to the struggle against apartheid, does not have any tertiary qualification’. Thirdly, the statements are contradictory to the evidence the Public Protector had in her possession at the time of the release of the Report. Mr Pillay was in fact questioned about his qualifications by the Public Protector during an interview with him, under oath, on 25 March 2019, when she subpoenaed him regarding an investigation into the circumstances of his retirement from SARS”. “In the course of this interview, the Public Protector also specifically asked Mr Pillay what his educational qualifications were and he stated that he had passed matric in 1970. She proceeded to specifically ask him to confirm that when he joined SARS in 1990 his highest qualification was a matric certificate. Mr Pillay confirmed that this was so. Accordingly, even before the investigation and the Report presently under review was made public, the Public Protector had ascertained directly from Mr Pillay, under oath, that he had a matric certificate. For no apparent reason, the Public Protector disregarded his evidence. In fact, she doubled down on this issue by finding that Mr Pillay possessed neither a tertiary qualification nor a matric certificate. In her answering affidavit she blames, inter alia, Mr Pillay for her coming to this wholly wrong finding and at paragraph 334 of her answering affidavit she states the following: ‘It is denied that the Public Protector made a malicious slur against Mr Pillay. The issue of the matric certificate could have simply been resolved by Mr Pillay providing that information to the Public Protector when he was asked to give information about his qualifications. He failed to do so, as SARS failed to answer questions on Mr Pillay’s qualifications. In any event there is nothing in the report of the Public Protector to support the contention that she concluded that Mr Pillay had no matric. What the Public Protector said was that it was not denied by Gordhan or SARS that Mr Pillay did not possess a tertiary education including matric’”. “Counsel for the Public Protector in addition submitted during argument that Mr Pillay: ‘In his long and verbose affidavit dated 14 April 2019, Mr Pillay does not disclose what his qualifications are except that he has some experience which amongst others come from the fact that he was in the struggle for the liberation of South Africa’”. “The contention in the answering affidavit and submissions made on behalf of the Public Protector that the Public Protector made no finding that Mr Pillay ‘had no matric’ and that Mr Pillay did not provide the information about his qualifications when he was asked to do so, is disingenuous. Firstly, the ‘conclusion’ that Mr Pillay had no degree and no matric was central to the Public Protector’s finding that Mr Pillay was not qualified to be appointed as the Deputy Commissioner of SARS. Secondly, it is an indisputable fact that Mr Pillay made a full and accurate disclosure of the extent of his academic qualifications as at the time when he first joined SARS when he testified under oath to the Public Protector on 24 March 2019. Thirdly, in the subpoena which was delivered to Mr Pillay by the Public Protector on 10 April 2019, Mr Pillay was called upon to respond to 12 complaints. Notably Mr Pillay was not required in the subpoena to deal with or to provide any information whatsoever on his qualifications”. “Accordingly, at the time of the Report, the Public Protector well knew that Mr Pillay has a matric certificate. Her conclusion in the Report that Mr Pillay does not hold even that basic qualification, notwithstanding the fact that on 25 March 2019 she accepted that this was a matter of public record and was within her knowledge, is astounding. In doing this she has manifested clear bias against Mr Pillay and material irrationality in arriving at her findings. In her answering affidavit, the Public Protector has put up no evidence supporting her findings in this regard. We submit that this further demonstrates that the Public Protector closed her mind and adopted a process of irrational reasoning”. So that concludes, Chair, the overview of the affidavits leading to the judgment findings in respect of the qualifications of Mr Pillay.

We then turn to the issue of recruitment... Right, we’re going to start at page 16. We can actually do this by taking you to the report, but that’s the paragraphs in relation to recruitment that one sees in the SARS report – the PP’s report regarding whether the SARS failed to follow the proper recruitment processes, by appointing employees who worked for the intelligence unit, and if so, whether such constituted maladministration – in other words, the recruitment procedures. It starts off by saying “The allegation that SARS failed to follow proper recruitment processes in appointing employees who worked for the intelligence unit, is substantiated”. “Although SARS failed to provide me with a Policy regulating the transfer of staff within SARS branches as well as Policy which regulates headhunting of for positions at SARS, evidence at my disposal point to some irregularity in the recruitment of personnel for the intelligence unit”. “The foregoing is supported by sufficient information provided by SARS to an investigation conducted by my office into such staff complaints as was raised by certain employees within the intelligence unit in 2014”. I won't take you back, Chair, to the closing report that occurred subsequent to the complaint in 2014. Simply to remind Members that report the Chief Investigator had closed, finding it to have been unsubstantiated. And it’s this evidence to which the Public Protector says she had regard now. “The failure to advertise positions externally is a violation of paragraph 8.7 of the SARS Recruitment and Selection Policy”. “The apparent denial of Mr Gordhan of any involvement or participation in the recruitment process of one or more of the unit’s employees is improbable. The Sikhakhane report confirms that Mr Gordhan played a role in the recruitment of Mr van Loggerenberg”. “I have also noted that Mr Magashula’s denial of the existence of the unit and recruitment of employees thereof is a foul misrepresentation. Mr Magashula, at the time the members of the unit were transferred within SARS to form the CBCU and the appointment of external staff members, he was the Chief Operations Officer: Corporate Services. He approved the memorandum submitted by Mr Pillay relating to employees of the newly formed unit”. “I have further noted that, prior to Mr Gordhan’s submission of a memo to the then Minister of Finance, Mr Trevor Manuel, Mr Pillay had already began recruiting members to partake in operations of surveillance”. “The conduct of Mr Gordhan in approving the memo for the establishment and invariably recruitment of staff for the intelligence unit in the manner described is improper and thus amounted to improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(i) of the Public Protector Act”. And then in the body of the report, the Public Protector says, “Documents provided to me, relating to recruitment of staff members of such a unit, only date back to the year 2002 in which I have established that...” - and then I'm not going to read it, but she sets out what the document said in respect of 2002. And then we pick it up from paragraph 5.4.4.2, “The identified individuals to be employed by the Revenue Unit of Compliance were...” - and you’ll remember that there’s a table in the report that contains the names. I don’t want to put those names back up, so it’s there. “The memorandum was approved by Minister Gordhan on 11 November 2002, in which he noted that such approval was ‘subject to a discussion with Ivan et al on role/functioning/reporting’...”. “The functions, roles and responsibilities of the abovementioned unit, from the evidence before me, were either transferred to or there was simple renaming of the unit, which was named the Customs and Border Control Unit...”. Now, Chair, there is an issue which I must raise. You will see there’s a dispute as to whether the Customs and Border Control Unit is actually a successor of what became known as the Special Investigating Unit or the NRG. And that’s one of the issues that the deponents take from, but I'm raising it here so that you alert to that coming up later. “It is unclear what became of the employees that were appointed in 2002 as evidence indicates that the majority of the members did not form part of the CBCU formed in 2007”. “In a response dated 26 August 2014, Mr Pillay stated that the recruitment of employees into the Customs and Border Control Unit, who would later become members of the NRG, was approved in 2007”. “In an internal memorandum, dated 08 February 2007, from Mr Pillay, the then General Manager: Enforcement and Risk to Mr Oupa Magashula, the then Chief Officer: Corporate Services, titled ‘Specialised Capability to Focus on the Illicit Economy’ the need for the employment of resources (i.e. employees) with specialised capabilities was outlined. The recommendation of twenty six (26) candidates was supported by the Chief Operations Manager”. ”On 09 February 2007 Mr Eddie Kotze of Special Projects: Office of the GM submitted a ‘motivation for transfer and salary increase of current enforcement and risk employees to increase the specialised capabilities in the customs border control unit’”. “As a background, Mr Kotze stated that the CBCU needed the services of Agent CBCU, which was a new position within SARS. The filling of the positions formed part of the Customs Modernisation Programme which was approved by EXCO. Personnel from the Enforcement and Risk Unit had been transferred to the CBCU as recommended by a panel” - and then there’s names included. “The motivation indicated that the above-mentioned employees were identified for their special skills and knowledge that would be required in the new capabilities required by the CBCU. The motivation was supported by the Senior Manager: HR, Goodness [Gadiean]; the General Manager: Enforcement and Risk, Mr Ivan Pillay; the Manager: Finance and approved by the Chief Officer: Corporate Service, Mr George Magashula”. “SARS also entered into other employment agreements with the following individuals...”, and the names were mentioned. “SARS failed to provide me with copies of the advertisements for the post, shortlisting and interview documentation for the above-mentioned employees. SARS did however provide me with a spreadsheet of all advertised posts beginning from January 2006 to December 2007”. “The employment agreements for Specialist Agent stated in paragraph 2 that ‘the Employee shall serve the Employer as Specialist Agent at such place as may from time to time be directed by the Employer, or any other employee duly authorised thereto, in this respect’”. “An email dated 16 January 2007 from Mr Kotze to Mr Pillay with subject ‘Request for Secondment’ stated that... has been evaluated and profiles as part of the Tiger team project. Their services were required as a matter of urgency for a surveillance operation pending their appointment. SARS further submitted applications for transfer forms for... from National Research Group to the Illicit Economy Research all dated 23 October 2009. Further evidence submitted indicates that Mr van Loggerenberg applied for employment at SARS on 13 January 1999...” – Chair, could you also note that... “for the position of Assistant Director: National Special Investigations subcomponent: Intelligence. He was appointed to the position of Head: Special Operations on 15 June 2007” – that’s eight years later. “SARS failed to provide Curriculum Vitae’s and recruitment documents pertaining to the appointment of all employees of the intelligence unit”. And then there’s a heading under the “Gene Ravele Dossier” and it states, “In an undated Dossier written by Mr Humbulani Gene Ravele, a former employee of SARS, stated that Mr Johann van Loggerenberg joined SARS in 1998 whilst Mr Ravele had been stationed at the Office of the Deputy Commissioner. Mr Ravele stated that he was given the Curriculum Vitae (CV) of Mr van Loggerenberg by Mr Gordhan. Mr Gordhan had received Mr van Loggerenberg’s CV from Mr Pillay when he was still at the South African Secret Service to screen and verify before he was interviewed by Mr Andy Mothibi, Manager: Labour Relations. Mr van Loggerenberg’s CV demonstrated that he had done extensive work as a Deep Cover Agent in both the SAP and the SAPS. He had worked for the South African Narcotics Bureau before joining Crime Intelligence Gathering. Mr van Loggerenberg was offered a Director position, of which he declined on the basis that the salary package being too much for him. He accepted the position of Assistant Director and was appointed as Assistant Director: Special Investigations. On 15 June 2007 he was appointed to the position of Head: Special Operations”. And then the PP concludes, “SARS failed to provide me with a Policy that applied at the relevant period, regulating the transfer of staff within SARS branches. SARS furthermore failed to provide me with a Policy regulating the headhunting of staff for positions with SARS. The failure to advertise positions externally is a violation of section 8.3.2 of the SARS Recruitment and Selection Policy. The denial of Mr Gordhan in his participation in the recruitment process of one or more of the unit’s employees is unlikely. The Sikhakhane report and the Gene Ravele Dossier confirm that Mr Gordhan played a role in the recruitment of Mr van Loggerenberg” - and we must read into that, Chair, in 1999, because that’s when Mr van Loggerenberg was recruited to join SARS, not in 2007. “I have also noted that Mr Magashula’s denial of the existence of the unit and recruitment of employees thereof is a misrepresentation. Mr Magashula, at the time members of the unit were transferred within SARS to form the CBCU and appointment of external staff members, was the Chief Operations Officer: Corporate Services. He approved the memorandum submitted by Mr Pillay relating to employees of the newly formed unit. I have further noted that, prior to Mr Gordhan’s submission to the then Minister of Finance, Mr Trevor Manuel, Mr Pillay had already begun recruiting members to participate in surveillance operations”.

So we come to the affidavits that were filed in court. And I'm going to read what Mr Gordhan said first and then deal with the PP’s answer and his reply. It points to the paragraphs of the report with alleged irregularities in recruitment of staff from the SARS investigative unit. “I was not involved in the recruitment of staff for the SARS investigative unit at all. As one would expect, the management of the SARS investigative unit were responsible for recruitment within the applicable legal and regulatory framework, and was dictated by its specific needs. Notwithstanding this, the Public Protector states in paragraphs 5.4.31 and 7.4.5 of her Report that my denial of any involvement or participation in the recruitment of the SARS investigative unit’s employees is ‘improbable’. This is a mere assertion without any evidentiary underpinning at all. The suggestion that, while and because I was Commissioner of SARS, I must have been personally and directly involved in the recruitment of employees for the SARS investigative unit, also is patently absurd. The Public Protector secondly says in the same paragraph of her findings (paragraph 7.4.5) that the Sikhakhane report and the Gene Ravele Dossier confirm that I played a role in the recruitment of the individual who became the manager of the SARS investigative unit in or about the beginning of 2007, Mr van Loggerenberg. But this is a manifest sleight of hand”. “The Public Protector states in paragraph 5.4.16 that I played a part in Mr van Loggerenberg’s recruitment in 1998 when he was appointed Assistant Director: Special Investigations at SARS. The Public Protector acknowledges in paragraph 5.4.13 that Mr van Loggerenberg was appointed Head: Special Operations almost a decade later on 15 June 2007. The Public Protector then conflates these two events that occurred a decade apart to conclude that I played a role in the recruitment of Mr van Loggerenberg for his specific role in the SARS investigative unit. This is not the truth, and the Public Protector clearly knows that. It is also worth noting as an aside that Mr Ravele described as ‘hogwash’ the ‘rogue unit’ ‘narrative’ in his evidence before the Nugent Commission”. “I approved the establishment of the SARS investigative unit. Those responsible in the Enforcement Division of SARS would then properly recruit the appropriate staff. But all of that was lawfully done for the reasons already mentioned. The current complaints are that the staff were employed by irregular procedures. I played no part in procedures. I played no part in procedures of that kind. To say that I was, responsible for any irregularities in the recruitment procedures (as set out in paragraph 7.4.8), merely because I approved the establishment of the SARS investigative unit, is patently absurd and a lie” ... Go up, to see what the Public Protector responds with. And she responds pertinently to paragraphs 118 to 124: “I stand by the findings on the recruitment violations committed in the unlawful establishment of the SARS intelligence unit. Nothing in these paragraphs impugn those findings - I deny that there is anything unreasonable, irrational or contrary to the law that impugn my findings”. Mr Gordhan then says he denies these contents and he maintains the position as set out in the founding papers about the recruitment, procurement and operations of the unit.

Go further on to see what is stated in the supplementary founding affidavit... So he lists a number of items. Tshepo, maybe we just need to go there, because this is going to get confusing. Go to... it’s the supplementary affidavit in Volume 21 PDF 920. So go to paragraph 27.1, this is Minister Gordhan’s supplementary founding affidavit... just go up a bit, 26, that makes sense, right. So what Minister Gordhan does in what is his supplementary founding affidavit, and you will recall I indicated that the supplementary founding affidavit is filed after a rule 53 record is filed. And so he says, “Finally, the record also confirms that there are no ‘special circumstances’ to justify spending the scarce resources of the office of the Public Protector on this matter. The Public Protector ignores the critical fact that the overwhelming majority of her investigation concerned the exact same subject matter that had been scrutinised by several other bodies, including her predecessor, and that those bodies had found no wrongdoing in any respect. Despite this, the Public Protector nevertheless decided to take up the old complaints without any ‘special circumstances’ to justify it”. And then he says, “The following people and bodies have investigated the same issues: During the investigation, the Public Protector was made aware that Mr Keletso Manyike, a former SARS employee, had filed a complaint against SARS to the Public Protector in February 2012. His complaint related to, amongst others, the existence, recruitment of members and operations of allegedly cover unit at SARS. The complaint is attached as PG 42”. Now this is the complaint that informs the closing report, which we had heard about during evidence. Tshepo, go back to the table. In response the Public Protector says, “It is therefore not correct that the Manyike complaint dealt with the existence, recruitment and operations of an allegedly covert unit at SARS. The complaint of Manyike as seem in PG 42 was imprecise and broadly raised the issues of ghost employees and illegal unit. It is different from the complaint that the Public Protector investigated in this matter”. So the Public Protector distinguishes it from the investigation that was done. Mr Gordhan then says, “It is disingenuous of the Public Protector to argue that the complaint of Mr Manyike and Peega are unrelated to the investigation. Mr Manyike annexed the Peega dossier to his complaint. The Public Protector quotes from the Peega dossier, albeit mistakenly, in her Report. The issues raise in this matter were considered in part by the erstwhile Public Protector, Adv Madonsela. The attempt to label them as unconnected is unfortunate. Despite how heavily she relied on the evidence of Messrs Manyike and Peega, she failed to interview them and assess the veracity of the documents provided to her by them”.

And then we come to Mr Pillay’s affidavit, his affidavit that deals with part A. Well, his affidavit and then the Public Protector’s response thereto. Mr Pillay says, “In pursuing relief against the Public Protector and Adv Mkhwebane, I associate myself with the contentions raised by Minister Gordhan in his founding affidavit. However, I intend to raise certain additional facts and contentions in support of the relief sought”. Now what he does, Mr Pillay is not initially cited in the application. And he brings an intervening application to be cited to intervene as an applicant. And in that intervening application he seeks particular relief as a litigant and he files and affidavit. The Public Protector does not pose his intervention, but she opposes the relief that he seeks in that application. So her response to paragraph 3 is, “I have addressed the allegations made in the Applicant’s affidavit which are largely repeated in the Eighth Respondent’s (Mr Pillay’s) affidavit. When I deal with part B of the application, which related to the prayer for the review and setting aside of my report, I intend to deal with the allegations in Mr Pillay’s affidavit that relates to the review application. For now, I intend to only deal with allegations in Mr Pillay’s affidavit in so far as they support the relief sought in part A”. Mr Pillay then further in his affidavit says in paragraph 15, “Minister Gordhan has annexed to his founding affidavit, and has made various references to, two affidavits that I submitted to the Public Protector in the course of her investigation”. “I set out in considerable detail in these two affidavits the facts and evidence at my disposal that are relevant first, to the Public Protector’s investigation (to the extent that she revealed the extent of her investigation to me in her subpoena; and second, to the ‘intended findings’ of the Public Protector contained in her section 7(9) notice to me”. “I confirm the truth of the contents of my two affidavits in every aspect. I also confirm that I stand by the contentions of law set out in my affidavits. I shall, in due course, deal fully with and amplify those facts and legal contentions in my intended review application”. “The Public Protector places significant reliance on what is termed the ‘Gene Ravele dossier’. For present purposes I record that Mr Gene Ravele whilst Chief Officer: Tax and Customs Enforcement Investigations at SARS, formally reported that prior to the appointment of Moyane as SARS Commissioner, that he had been approached by the then legal advisor to President Zuma, namely Adv Boniswe Makhene, and her husband, Mr Monde Gadini, a State Security Agency operative, who staled inter alia: 26.1 That they were busy ‘preparing for the appointment of a new SARS Commissioner’; That ‘part of the preparations for the new incumbent required of Ravel to provide ‘information that would lead to the removal of Mr Pillay’ and that they sought of Ravele to meet with the new incumbent prior to his appointment and ‘identify other people within SARS who would brief the new appointee”. “Ravele declined these approaches and requests and reported them to SARS”. “In 2015, after I had left the employ of SARS, while Ravele was still employed there and was reporting directly to Moyane, he explained to me and another at a private meeting the manner in which he was being unduly pressurised by Moyane, with threats of suspension or being dismissed from SARS, to provide him with some sort of ‘report’ to ‘implicate’ Minister Gordhan and me. Ravele was clearly under significant stress and trauma at this point in time and expressed concern for his family and his future. He stated that he had provided some reports to Moyane, but that Moyane was ‘never happy’ with the content and constantly requested of him to go and rewrite these. In essence, Moyane required Ravele, under great threat, to draft lies about the unit and me”. And then we deal with Mr Pillay’s affidavit... in the intervention application specifically. Now we don’t find in the record that these allegations were specifically answered by the Public Protector. We know that she did not oppose the intervention application, but she did oppose the relief sought in that application in so far as one of the aspects that Mr Pillay sought which was the same as what Mr Gordhan sought. He essentially associated himself with Mr Gordhan’s affidavit; he referred to what was annexed previously. And then he sets out... he points to that affidavit in greater detail. And then he says in paragraph 22, “It is a matter of grave concern to me that the Public Protector has paid little, if any, regard to the evidence and submissions that I made in my two affidavits, deposed to by me on 23 April and 18 June 2019. Indeed, the sole references in the report to the content of my affidavits, which run to 37 and 115 pages respectively, excluding annexures, are as follows: … a dismissive, and in my view meaningless, response to the contention in my affidavit dated 23 April 2019 that the Public Protector had previously investigated and satisfactorily resolved complaints relating to the recruitment of staff (paragraphs 5.4.21 to 5.4.24 of the Report)”. "I dealt with the severe restrictions on my ability to provide the Public Protector with certain documents and evidence relevant to the complaint being investigated by her. I informed the Public Protector that: … I informed her that I am no longer employed by SARS, having left its employ in May 2015. I therefore do not have access to records, information and witnesses at SARS. Moreover: Chapter 6 of the Tax Administration Act 28 of 2011 imposes on me stringent limitations in regard to the disclosure of confidential information in relation to SARS to any party not in the employ of SARS. Furthermore, in the course of my employment with SARS I was required to bind myself to SARS’ Oath of Secrecy... On 15 April 2019 my attorneys formally requested the co-operation of SARS in providing me with documents that would assist me in responding to the subpoena. That formal request was made subsequent to a meeting that I attended with various SARS officials on 12 April 2019 when I informed SARS of the subpoena”. - We know that from other documentation in the affidavit, I don’t want to digress, simply to point out that that request was declined. “I am, accordingly, extremely restricted in the information that I may lawfully provide to the Public Protector. As far as documentation is concerned, I am similarly restricted”. “I dealt with the fact that the Public Protector had previously conducted an investigation into various issues that now formed the subject of the complaint. In this regard I informed the Public Protector that: During August 2014, when I was the Acting Commissioner of SARS, the Public Protector (in the person of the previous incumbent of that office) addressed correspondence to SARS in which she stated that a complaint had been made to her office that SARS had established an allegedly surreptitious investigative unit, known as the National Research Group, to conduct clandestine specialised investigations against unsuspecting civilians, politicians and prominent businessmen for possible tax evasion. The Public Protector informed SARS that she had elected not to investigate these allegations and set out her reasons for making that decision... The Public Protector went on to inform SARS that her investigation would, in the circumstances, be limited to issues relating to allegations concerning irregular recruitment processes in the appointment of National Research Group officials and two other issues which are presently irrelevant. The Public Protector sought pertinent details and responses from SARS regarding the alleged irregularities in the appointment of National Research Group employees. SARS delivered a detailed response, including supporting documents, to the Public Protector which dealt comprehensively with her requests. Upon receipt of that response the Public Protector informed SARS that she would consider the response and she would revert should the need arise. There was no further communication from the Public Protector in this regard. It is accordingly clear that the Public Protector was satisfied with the responses given by SARS and that the investigation was closed”. “I also dealt with the allegation in paragraph 7.1.7 of the subpoena relating to the appointment of employees to the unit. In this regard, I reiterate that this had been the subject of a previous investigation by the Public Protector. I stated that to the best of my knowledge, the Public Protector was satisfied with the response given by SARS during August 2014, in regard to her requests for information concerning the recruitment processes involved in relation to employees who worked for the National Research Group. I invited the Public Protector to inspect her own records in this regard. Records relating to operations and employees of SARS fall within the ambit of Chapter 6 of the Tax Administration Act. I stated that I believe the relevant records will be in the possession of SARS”. “From the notice it was further apparent that the Public Protector had failed to reflect on material and relevant events, facts and evidence relating to the so-called Kroon Advisory Board. In particular I referred to: ...Testimony by Mr Gene Ravele before the Commission in June 2018 which specifically impacted on the intended or provisional findings in the notice”. “In my affidavit dated 18 June 2019 I pointed out in general that; with reference to the alleged ‘Gene Ravele dossier’, it is as striking as it is material and significant to the notice, that nowhere does the Public Protector reflect: on the testimony given under oath by Mr Ravel before the SARS Commission of Inquiry into Administration and Governance with specific reference to the unit in question, its ‘equipment’ and its establishment and functions. The testimony by Mr Ravele before the Commission of Inquiry into Governance and Administration at SARS in June 2018 is specifically relevant to the findings in the notice”. “Notably, Mr Ravele was widely quoted in the media. It was reported on national television at the time that ‘The former head of SARS enforcement Gene Ravele told the commission of inquiry into affairs at the tax agency that allegations over the so-called ‘rogue unit’ were nothing but hogwash. During an interview after his testimony, Ravele stated that the unit was ‘hurting’ people connected to those in power through their investigations”. “Ravele also testified over the role and function of the High Risk Investigations unit – the so-called rogue unit – which fell under his division. He dismissed the allegations over the unit, essentially that it conducted illegal surveillance using high-tech equipment – as ‘hogwash’”. “I want to kill some myths about the unit”, Ravele said; “They used to support investigations. Just after I joined, we busted a warehouse in Durban where they were making crystal meth. The unit identified chemicals that could be used in the production of crystal meth that were being imported from China. The unit checked the bill of lading and found those chemicals were going to this warehouse. That unit helped identify where that warehouse was”. “He then detailed that the unit did ‘reconnaissance’ on the warehouse, and the information was handed to other SARS units who conducted a search and seizure operation together with the Hawks. He said he also told Moyane that he had conducted investigations into allegations against the unit that appeared in the Sunday Times, and had not found any evidence relating to the alleged purchase of surveillance equipment, among other allegations”. “Ravele also revealed that Moyane had instructed former spokesperson Adrian Lackay not to respond to questions from the media on the unit at the time, despite Lackay’s dissatisfaction”. “Throughout the rogue unit saga, which has now been disproved, the members of the unit were instructed not to speak to the media, effectively muzzling them, and giving them no opportunity to defend themselves”. “Despite Moyane being told internally that no evidence could be found to substantiate the allegations, SARS also never publicly defended members of the unit. Ravele was instructed by Moyane to disband the HRIU following the first few articles, and to integrate the remaining members back into SARS”. “I pointed out in my affidavit that paragraph 14.3.39 of the notice, where the Public Protector stated that Minister Gordhan played a role in the recruitment of Mr van Loggerenberg, reflects a conclusion which is irrational, false, unsupported by evidence and unsubstantiated. In truth: Mr Gordhan did not participate in the recruitment process of persons employed in the SPU in March 2017. I was not an employee of SARS at the time that Mr van Loggerenberg joined SARS. I have already dealt with the Sikhakhane panel report and why it cannot be relied upon for any purpose. The Sikhakhane panel report is unreliable and materially flawed in fact and law. The alleged ‘Gene Ravele dossier’ to the extent that extracts are reflected in the notice relating to events dating back almost 20 years ago appear to be somewhat limited and incomplete”. “Mr van Loggerenberg was not an employee of the SPU between March 2007 and April 2008. He took over as manager on 1 April 2008. Mr van Loggerenberg was not an employee of the NRG and later HRIU between March 2007 and March 2008. He was their manager along with several other units for the period April 2008 to 2012. For the better part of 2012 he did not manage any units in SARS but served as advisor to Mr Gene Ravele. At the end of 2012 he returned to become group executive of one sub-division of two under Mr Ravele named SARS Tax and Customs Enforcement Investigations and five units, of which the HRIU was one”. And then it repeats a number of allegations that we’ve already gone through.

Now if we got to Mr Pillay’s supplementary affidavit, which you see in volume five, 606... Mr Pillay files a supplementary affidavit, which is in addition to the one we had already dealt with. And he sets out the purpose of the affidavit, “The Public Protector does not oppose my application to intervene as a further applicant in the review application. She does, however, oppose the substantive relief sought by me in paragraph 3 of my notice of motion dated 2 August 2019”. And then he says the rule 53 record was filed. He explains that the supplementary record was filed when he became aware of it; that he considers this record... And he then wants to supplement his founding affidavit and he deals with three issues. 1. The Public Protector didn’t have any regard to the detailed information which he provided to her office on 26 August 2014, material to her investigation. 2. The second issue relates to the Public Protector’s failure to consider the documentary evidence provided to her by Mr van Loggerenberg during August 2016, which evidence was material to her investigation. And there’s no part of that in the initial record or the supplementary record. Members will be aware, Chair, that this was the... the evidence was given that they had not found those documents at the Public Protector’s office. 9.3. The third issue relates to the slur in relating to the matric certificate. So that’s where he deals with that... I’m only going to deal with the first issue. “In the supplementary record the Public Protector has now disclosed a letter that I addressed to the Public Protector on 26 August 2014 in response to a demand made by the Public Protector on SARS for information in the course of an ‘investigation into a complaint in connection with allegations of maladministration, irregular recruitment and unlawful surveillance of unsuspecting civilians, politicians and prominent businessmen’”. “The letter refers to and attached some 23 supporting documents. The letter and its annexures now all disclosed as forming part of the record that served before the Public Protector. However, the Public Protector made no reference whatsoever to this in the Report. I submit that it is plain that the Public Protector paid no regard whatsoever to this letter and its supporting documents, despite the fact that this was clearly germane to her investigation, particularly in the light of the Public Protector’s unquestioning acceptance of the versions supposedly provided to her by Messrs Peega and Manyike”... 16 – This is where he attached the transcript of the interview with the Public Protector that takes place on 25 March 2019.

Now, Tshepo, go to item six, page 1109... So this is the Public Protector’s answering affidavit... Right, so this is the first and second respondent, which is the Office of the Public Protector and the Public Protector in her personal capacity... the answering affidavit to the affidavits of Minister Gordhan and Mr Pillay. And so, the first 325 paragraphs deals with Mr Gordhan’s affidavit. And then we come to the answering affidavit of Mr Pillay. And the Public Protector confirms that she opposes the application to review and set aside the report as contended for by Mr Gordhan and Pillay. She deals with the allegations of the record that was filed. And she denies the specific allegation that she had no regard to any of the information that Mr Pillay provided and says that the “The Public Protector carefully considered the information and found that it was unhelpful in answering the questions that were the subject of her investigation. Mr Pillay must not confuse a failure to consider relevant information and a failure to consider the information at all. The Public Protector did not fail to consider relevant information provided to her by Mr Pillay”. And then in respect of Mr van Loggerenberg, she then deals with that aspect. Go down. This deals with the qualifications that we’ve already dealt with earlier. Go down... there is one paragraph, sorry, just to go back up, so that I'm not misrepresenting it. 335, I didn’t draw your attention to the second paragraph relating to the qualifications. It says, “In any event, Mr Pillay’s employment was not done in accordance with a competitive process in line with the requirement of the law to evaluate the qualification of Mr Pillay. There are no records of such a competitive process of recruitment being undertaken when Mr Pillay was appointed – which could have assessed his qualification for the position of Acting SARS Commissioner. When the Public Protector asked for a full disclosure of Mr Pillay’s qualification, nothing was given to her. Mr Pillay had exclusive knowledge of his qualification which he failed to disclose to the Public Protector when asked”. Go down... And then she denies not having considered the documentation. And then the last bit deals with the matric certificate story again. So that is the end of the affidavit where largely a number of the allegations Mr Pillay made were not dealt with.

If we then come to the judgment, and to start the judgment off go to item number 18. Go to page 666, paragraph 144. The heading says “Notice”. That is the reference to the 7(9) notice that the judgment details. Paragraph 144 deals with the issue of employment... Hold on, this is equipment not... It’s 142. Maybe go up to 140. The court identifies four issues in 140, pertaining to equipment, employment, qualifications and recordings with individuals relating to the interception issue. So we’ve dealt with qualifications, we’re dealing with employment and we’re going to deal with equipment and interception when we have to deal with evidence. And we’ve dealt with the reports on a previous occasion. So let’s now go down to 142 of the judgment, “As far as the employment issue is concerned, the Public Protector made reference to, amongst others, the Gene Ravele dossier (more about this later), as well as employment agreements and internal SARS memorandums. In conclusion she found that SARS failed to provide her with a policy that applied at the relevant period, regulating the transfer of staff within SARS branches, as well as a policy regulating the headhunting of staff for positions with SARS. She concluded that the failure to advertise positions externally was a violation of section 8.3.2 of the SARS Recruitment and Selection Policy”. And then go to 677. So the court first deals with what’s in the notice and then it comes to... Right, go to paragraph 171, “The Public Protector in her answering affidavit stated that she was not bound by Mr Pillay’s ‘views’ on affidavit and that she was not interested in a ‘narrative’ but in ‘facts and the law’. She further stated that his complaint about access to evidence and documentation was unjustified and that the full details of what he was required to respond to were contained in the notice”. “As far as Mr Peega and Mr Manyike were concerned, she stated that it was not clear how the fact that they were discredited and/ or disgruntled SARS employees...” - Chair, there is a history that we would have to deal with in evidence on Mr Peega and Mr Manyike as disgruntled employees and the evidence being relied on. So for now I just want to take it in that context.

Chairperson: I got that.

Adv Bawa: “... would help the Public Protector determine the lawfulness of the ‘SARS spying unit’ and that it was irrelevant. She further stated that the Nugent Commission’s report was not binding on the Public Protector and that Mr Ravele’s evidence was irrelevant to the work of the Public Protector”. “The Public Protector briefly dealt with the equipment and employment issues and stated that she had sufficient evidence to come to the findings in the Report. She stated that she has ample sources of information on the establishment of the unit, its activities and the capability, its resources and equipment. She averred that the Rule 53 record amply demonstrates the vastness of these sources, which included anonymous complainants and whistle-blowers. She argued that it cannot, with reference to the Rule 53 record, be contended that the Public Protector did not have access to information on the resources of this ‘illegal spying unit’ within SARS”. That’s more general allegations. And then at paragraph 211, it deals specifically... and it states, “The Public Protector found in the Report that the ‘allegation that SARS failed to follow proper recruitment processes in appointing employees who worked for the intelligence unit, is substantiated.’ She stated that although SARS failed to provide her with a policy regulating the transfer of staff within SARS branches, as well as a policy which regulates headhunting for positions at SARS, evidence at her disposal point to some irregularity in the recruitment of personnel for the unit”. And then the court says, “The Public Protector then listed a mishmash of factors that apparently informed her findings: (i) An investigation conducted by her office into staff complaints raised by certain employees within the unit in 2014; (ii) The failure to advertise positions externally is a violation of paragraph 8.7 of the SARS Recruitment and Selection Policy; (iii) Minister Gordhan’s denial in any involvement or participation in the recruitment process of one or more of the unit’s employees is improbable as the Sikhakane report confirmed that Minister Gordhan played a role in the recruitment of Mr Van Loggerenberg; (iv) Mr Magashula's denial of the existence of the unit and recruitment of employees thereof is a foul misrepresentation, because at the time the members of the unit were transferred within SARS to form the CBCU and the appointment of external staff members, he was the Chief Operations Officer: Corporate Services. He approved the memorandum submitted by Mr Pillay relating to employees of this newly formed unit; (v) When Minister Gordhan submitted a memorandum to the former Minister of Finance, Mr Trevor Manuel, Mr Pillay had already began recruiting members to partake in operations of surveillance; (vi) Minister Gordhan’s conduct in approving the memorandum for the establishment and recruitment of staff for the unit in the manner described is improper and thus amounted to improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(ii) of the Public Protector Act”. So, the Public Protector implicates both Minister Gordhan and Mr Pillay in participating in the recruitment process. “She, however, limits Minister Gordhan participation to the recruitment of Mr van Loggerenberg”. And I've pointed out the dates between 1999 and 2007. “Minister Gordhan is not implicated in the recruitment of any other employee of the unit”. “In response Minister Gordhan reiterates that he approved the establishment of the unit but denies any involvement in the recruitment of staff for the unit. He points out that it is the responsibility of management of the unit to do so within the applicable legal and regulatory framework and was dictated by its specific needs. He argues that to find that he was responsible for irregularities in the recruitment process merely because he approved the establishment of the unit, “is absurd”. “The Public Protector dismisses the denial of Minister Gordhan on the basis that it is ‘improbable’ and relies on the Sikhakhane report and the Gene Ravele report that confirmed the participation of Minister Gordhan in the recruitment of employees”. “Apart from the fact, as already pointed out, that any reliance on the discredited Sikhakhane report is irrational, the Public Protector on the one hand relies on Mr Ravele’s evidence when it supports her findings on the employment issue, but on the other hand states that his evidence before the Nugent Commission in relation to the lawfulness of the unit, which does not support her findings, was irrelevant and not binding on her. This is a clear example of the Public Protector fallacious approach to the evidence and is indicative of the mindset with which she approached the investigation”. “In any event, Mr Van Loggerenberg was recruited in 1998; almost a decade before becoming the manager of the unit and years before Minister Gordhan even became the Commissioner of SARS”. “Mr Pillay dealt with the allegation in paragraph 7.1.7 of the subpoena relating to the appointment of employees to the unit in the first affidavit. In this regard he reiterated that this had been the subject of a previous investigation by the Public Protector. He stated that the Public Protector was satisfied with the response given by SARS during August 2014 in regard to her requests for information concerning the recruitment processes involved in relation to employees who worked for the NRG. He invited the Public Protector to inspect her own records in this regard, as he does not have access to the records. He stated that the records relating to operations and employees of SARS fall within the ambit of Chapter 6 of the Tax Administration Act, and that the relevant records must be in the possession of SARS”. “It is clear that the Public Protector had plainly refused to have regard to any of these records and evidence and seemingly made no effort to obtain any records from SARS. As with the evidence relating to the establishment of the alleged rogue unit and the equipment, the Public Protector simply ignored the evidence relating to the recruitment of SARS officials and employees. There is no rational basis for her findings in this regard”.

So, Chair, if Tshepo can just go to page 216 in Bundle 4... the report, item four, yeah. Right, so this is the report. Just go down in the report. I want to come to paragraph 5. Yeah, we will know that there is a particular methodology adopted in the structure of the report, which under paragraph 5, in most instances is “the determination of issues in relation to the evidence obtained and conclusions made with regard to the applicable law and prescripts”. Right, and so the first item in the report... and Chair, it reads into the judgment, but the report, I think, makes the point that you will see when it comes to the judgment. “Regarding whether Mr Gordhan violated the Executive Ethics Code by deliberately misleading the National Assembly in failing to disclose that he had met with a member of the Gupta family since taking office”. Now we have dealt with this at the point of an issue of law. And so, what we’re now dealing with is at the level of fact. “In his response to me dated 17 May 2019 he denied the allegation that he lied to or misled Parliament during a written response to Parliamentary question 932 of April 2016”. “He argued that it was clear from his response to Parliament that he did not have meetings with members of the Gupta family and, importantly, that he had encountered them at public engagements and in one instance at a meeting he had with the former President Jacob Zuma”. “The only encounter that was not recorded in his response to the National Assembly was a meeting held in 2010 between himself, Mr Anil Ambani of the Reliance Group, to discuss his companies’ interest in investing in South Africa. He was reminded by the former Chief of Staff at National Treasury, Mr Dondo Mogajane, that one of the Gupta brothers, possibly Mr Ajay Gupta, may have been present at the said meeting”. “At the time of the Parliamentary response on 16 April 2016, he did not recall Mr Gupta’s attendance as the only discussion he had at the said meeting was with Mr Ambani”. “He further stated unequivocally that, he had never agreed to any meeting with any member/s of the Gupta family. All interactions were either at public events or on two occasions, in the presence of Mr Jacob Zuma and Mr Ambani”. So then they published the question... the question in Parliament and the answer. And then in a statement before the Zondo Commission in October 2018, nearly two years later, Minister Gordhan said, “I had forgotten of another instance where one of the Gupta brothers may have been present at a meeting I had with billionaire Indian businessman Anil Ambani of the Reliance Group of companies in or about June 2010. I stress that I do not recall the details set out below since it proved to be a meeting of little significant at the time, but have been assisted in this regard by my former Chief of Staff, Mr Dondo Mogajane”. “I am told that the Presidency put Mr Rajesh “Tony” Gupta in touch with Mr Mogajane. Mr Gupta called Mr Mogajane repeatedly, asking for a meeting with me. However, he never advised Mr Mogajane who would be at such a meeting or what the agenda for the meeting was to be. We were even asked to attend the meeting at the Gupta family compound in Saxonwold. I refused to schedule a meeting with the Gupta family, whether at their residence or anywhere else”. “Eventually, Mr Gupta told Mr Mogajane that one of the Ambani brothers, from the Reliance Group of companies in India, wished to meet me and that it was concerning a possible MTN transaction. Bharti Airtel had called off merger talks with MTN in 2008 and again in 2009, and Reliance Communications was reported also to have been interested in pursuing the acquisition of MTN during 2009. We were advised that Mr Ambani was in South Africa for the soccer 2010 Soccer World Cup and that he would like to meet me regarding the possible MTN transaction”. “I agreed to a meeting with Mr Ambani, who had the potential to be a significant investor in South Africa. The meeting was held at a hotel in Pretoria, Villa Sterne, on a Sunday morning. I attended the meeting, together with Mr Mogajane, who advises me that: The meeting lasted less than an hour; Discussions in the meeting were between Mr Ambani and I... Mr Mogajane has advised me that he recollects that Mr Ajay Gupta was present at the meeting. I do not recall him being present; I wish to refer the Commission to Annexure 27, which is my response to a Parliamentary question from the Democratic Alliance. It is apparent in my written response that I do not make mention of the 2010 meeting with Mr Ambani of the Reliance Group, which a Gupta brother may or may not have attended. This is simply because, at the time of submitting the written response, I had no recollection of the 2010 meeting with Mr Ambani”. The Public Protector then applies what she calls the “relevant legal prescripts” being the Executive Members’ Ethics Act. Go down... sets out the incorrect paragraph 2.3(a) at 5.1.11... And then comes to the conclusion: “Mr Gordhan conceded to having not disclosed that he had actually met a member of the Gupta family and an associate thereof in June 2010. He argued that at the time of his response to the Parliamentary question he could not recall or had forgotten about the meeting in which Mr Ajay Gupta was present at such an occasion. It is apparent that he deliberately misled Parliament in responding to the Parliamentary question on 16 April 2016 in that his response is accordingly misleading to Parliament and does not seem like a bona fide mistake. Therefore, he deliberately misled Parliament and thus violated paragraph 2.3(a) of the Executive Ethics Code”. So that was the first ground. And the reason why I go back to the report is because the conclusion is not based on any other evidence that was put before the Public Protector, unlike the other grounds that we looked at, that I went back into the affidavits et cetera. We've dealt with the issue of the establishment of the intelligence unit at 5.2. We dealt with section 205 and the relevant legislation last week. So go through paragraph 2.5.2... and a lot of what’s under 5.2 also comes from the various reports that we looked at, regarding whether SARS failed to follow correct procurement procedures when procuring intelligence equipment – that's the one I've left out, which I say to you I must go to with reference to evidence. And then go to 5.4, regarding whether SARS followed proper recruitment processes – that's the one we’ve just dealt with. Go to 5.5, regarding whether the intelligence unit carried out irregular and unlawful operations – that's the second one that we must deal with, with reference to evidence, particularly Mr van Loggerenberg’s evidence. And then paragraph 5.6, and this relates to Mr Pillay’s appointment of Deputy Commissioner of SARS. And those were the six issues that was the subject matter of this report and the complaints to that. You will be aware that the other parts of the complaint had stood over and were not dealt with, Chair. So those cover essentially what was the subject matter of the judgments and the subsequent applications for leave to appeal, and the subsequent rescission applications.

Chairperson: Thank you. Thank you, Adv Bawa. We will take a tea break and come back and wrap up. Let's take a tea break, thank you.

[Break]

Chairperson: Thank you, colleagues. Welcome back. As I indicated Adv Bawa has just concluded so a couple of things to say, colleagues. Firstly, I'm still not going to be giving much or anything, except to say that... because we don’t want to destabilise any efforts that are there that are at a different level now. We’re going to pause with the Committee session of empowering Members, as we indicated that this is the point we wrap up. So next time we meet, when we resume, it will be the resumption of the Enquiry. We are done with this part. I just hope that it would have been very useful, not just to Members of the Committee, even to those that are interacting with this – it helps to give a particular context. To Members, just say that today, you’re going to be on standby for the following reasons. From the 3rd of April to the 17th of April, that period in terms of our programme was declared a constituency period. And for those who don’t know what a constituency period, in our lingo or language, is when Members like Dlakude sitting here have to spend that time in the areas where they’re deployed - if she’s in Nkangala in Mpumalanga, she’s got to be servicing the communities of that area on all the issues that are affecting that community. So that would have been a constituency period, but we all know that in this Committee we would have broken that, because we would have spent time doing this. And you will see at the end, it was worth doing this, because it’s buying us time that we would have needed at a later stage. So I'm very happy with that. This week has been set aside for what is called oversight week. In other words, committees like the one I belong to – the Justice and Correctional Services, they’re spending this whole week in the Northern Cape focusing on the courts, correctional centres or prisons – if you want to call that, as well as the masters office, which has a lot of problems. I'm told problems of delays, non-functionality and so on. So are the other committees. And next week there will be a week given to Members, for what is called a leave for Members. Now I'm raising that, in fact, let me complete this... So after next week, after that leave, when we come back it’s going to be a stampede of programmes, because we’re going to be interacting with departments on their strategic plans and annual performance plans, as well as the budget vote. And that period is going to be hectic for Parliament to do all sorts of things. I give you that background, that you know. As I say, you’ll be on standby, because we respectfully – we're going to ask you, even during your leave, or when you have to be involved in other matters of national importance. This Committee has to compete with the time and the space of all of the work that I've tried to indicate, because we have to conclude the work that we’re doing. So at the moment there is an indication that the button has been switched on, we are going to indicate that and I’m not able to give you that date now, or when we resume. So it’s going to be important that we have that in our mind, because we will ask for permission and a space in order for us to be able to spend the time to conclude this, and be freed of this in order to play our other roles, basically, in that regard. So I just wanted to make those few remarks, in not giving much, but still indicating that the different offices – higher offices that are dealing with this, the matter is still under attention. It’s a pity that I’m not able to give you that at this stage. But we’re confident about the work that is being done. There’s a very clear and definite commitment that this process we must see it through, we must conclude it. And hence it was good that we did this exercise, so it would take a week or so out of what we would have to do. So with that, colleagues, we’re going to put a slight pause today until we make that call, because Mr Ngoma, the Secretary, when he has to send you the redrafted programme, it has to be informed by that kind of information. So you’re not going to get a redrafted programme, it depends on what comes out, and so on. So that’s really where I would want us to leave it for today. Unless there’s any clarity, if none, we’ll pause there. Nothing on the platform, nothing here in the House... Thank you very much, colleagues, we leave and we hope that you agree to be on standby for the resumption and the completion of this important work that we’re doing. Thank you.

Meeting adjourned.