PP Inquiry day 55: Rodney Mataboge

Meeting report

The Chairperson welcomed everyone to the meeting. As he had indicated, Adv Nazreen Bawa, SC, would have started on Tuesday. He had indicated the previous day that she was going to continue today from 10h00 to 15h00 so that the Committee would be able to manage its time that had become very tight. Before he proceeded to Adv Bawa, Ms Fatima Ebrahim, Parliamentary Legal Advisor, had raised that Mr Mataboge wanted to just raise one or two things. He agreed to give Mr Mataboge that opportunity and invited him to address the Committee.

Adv Dali Mpofu, SC, thought it might be appropriate for him to say what he needed to say after Mr Mataboge.

Address by Witness and Adv Mpofu
Mr Mataboge said that he had requested, as Ms Ebrahim had said, to start off by addressing the Chairperson and the Committee. He was, unfortunately, going to have to take the Committee back to what was happening the previous day with the message that he had received the day before then, which was handled on the previous day by the Committee and the Chairperson. He just wanted to say upfront that he had felt compelled to share the message with the Chairperson or with the Committee, rather than with anybody else. The way it was handled, in his view, was in a way that he was not happy with, in that after he had his misgivings and his concerns, the very message that unsettled everybody else was indicting on his character. He had not even shared it with the team of the PP nor with his family – they only saw it when the Chairperson raised it in Chambers that. As a comment to say, what was intended to be an attempt to protect him exposed him more as an investigator?

The Chairperson said that Mr Mataboge seemed to be cutting off and asked Information and communication Technologies (ICT) to fix this as well as the volume. He asked Mr Mataboge to start again because there seemed to be a problem with the system.

 Mr Mataboge said that when he received the message the day before the previous day, after the session on Tuesday, he then decided to share it with the Committee, through Ms Ebrahim, to bring it to the Chairperson’s attention. He was happy that it was dealt with in the manner that had happened with the Committee. However, he was unhappy with the fact that having complained about the vulnerability and exposure as investigators, the Chairperson with the Committee then decided to share the very message that was damning to his character and as an investigator as well. This was shared with everybody else and his family got to know about the message when it was flighted in Parliament. He just wanted to put it on record that that was very exposing and very infringing on his rights as an investigator. That was the point he had wanted to raise as a first point because he thought that he was supposed to be protected by the Chairperson and the Committee, especially after his address about the fact that as investigators they were exposed, vulnerable, and likely to be targets of some people that they had investigated. That was as far as point number one that he wanted to raise was concerned.

Secondly, on Tuesday, in his opening remarks, he had talked about Section 6(8) of the PP Act 23 of 1994 (PP Act), which he wanted to read out to the House for the record if the Chairperson would allow him to. He read, “The PP or any member of his or her staff shall be competent but not compellable to answer questions in any proceedings in or before a court of law or anybody or institution established by or under any law, in connection with any information relating to the investigation which in the course of his or her investigation has come to his or her knowledge.” So this was on what he had based his concerns on Tuesday, when he had first made his opening remarks. He wanted the Chairperson and the Committee to help him going forward to say whether he is a compellable witness if one interpreted what the legislature had put here for purposes of going forward, because he was not only speaking for himself but he was also speaking for those investigators that were still currently busy with matters. If it was true that he was a compellable witness, then it had to be put on record that he was a compellable witness. He would then exercise his right in future to then review that decision that he was a compellable witness, because he had not had a chance to see legal advice because he did not want to delay the process and further inconvenience the people that were involved – including the PP in this inquiry.

Adv Mpofu said that he would be brief. The PP’s legal team just wanted to place on record their client’s objection to the manner in which this matter of Mr Mataboge was handled. There were two or three quick aspects about it. One was the issue that the PP was excluded from the discussion. Whatever the reason was, the PP’s legal team thought that maybe during the deliberations it should have been clear that they should be participating in this insofar as it concerned a witness who was testifying in the PP’s inquiry. The second issue was probably related to what Mr Mataboge had just said now. They were looking at whether it was procedural to “subpoena” him in the manner that he was subpoenaed, and they had found that the directives were silent on that question. The directives did prescribe timelines for witnesses that were called by the evidence leaders or the PP’s legal team, but not in respect of witnesses subpoenaed by the inquiry itself. However, as was known, even though there might not be specified timelines, the issue was that everything that was done in terms of Rule 129(AD) must not only be fair but must be reasonable, taking into account, of course, that the Committee must also finish its work without delay.

So the question then became whether it was reasonable or not to “summon or subpoena” Mr Mataboge to come here within 24 hours, as it were, or less. He thought that that linked up with what Mr Mataboge was saying about his expressed desire, and Adv Mpofu was taking from the Chairperson’s report to the inquiry after the Committee met in camera, that Mr Mataboge had desired to obtain legal advice. From what Mr Mataboge had just said now, he had not yet been able to obtain that legal advice on the questions that he had raised, which Adv Mpofu said that he would not repeat. But for whatever reason that Mr Mataboge required obtaining legal advice, it was the PP’s legal team’s view that he should have been given a reasonable opportunity to do so because that would have then avoided, among other things, the issues that Mr Mataboge had just raised now. The questions that Mr Mataboge was asking the Chairperson about his compellability or otherwise and so on, he obviously would have raised it with his lawyers and come here with a position one way or the other, rather than putting the Committee on the spot as to that question. Also the risk of the Committee proceeding without considering that question was obviously inherent.

Those were the issues that the PP’s legal team had wanted to raise, just to say that they were unhappy, to put it mildly, about the matter having been discussed without their involvement. They understood why it would have been done not in the public domain because of the sensitivity of the matter – in other words, the exclusion of the media and maybe reporting to the media afterwards. However, not themselves as a participant, particularly the PP, because she may have had something to say about what should happen. Also, even just as a person who was familiar with the relevant legislation that Mr Mataboge had referred to, but more importantly as the subject of the inquiry itself, he thought that she was the person most affected by this more than everyone else, and therefore she should have been given an opportunity to participate. When it became clear, particularly as he understood it, at some point the Committee felt it necessary to invite Mr Mataboge to address it while it was in camera, that kind of process should not take place in the absence of the PP or her legal representatives.

The Chairperson asked, before he made a ruling, whether there were any Members who wanted to make a remark or comment on what had been placed before the Committee both by Mr Mataboge and the PP’s legal team.

Chairperson’s Ruling
The Chairperson indicated that he would start with the presentation by Adv Mpofu representing the PP. Members knew the process and the proceedings of the Committee that had taken place the previous day in the manner that they had started, and they would have decided to do it in the Committee session. Therefore, their two plus hours in that session would have involved them as a Committee discussing collectively how they wanted to proceed from there. The subject matter and the person directly affected by that kind of a discussion would have been Mr Mataboge, who the Committee gave an opportunity to address it before the Chairperson made it a final summary in the ruling. So that opportunity was given to Mr Mataboge for the Committee to hear him, which they did. Thereafter, after calling everybody else in, he then summarised the decisions of the Committee and informed everybody in this inquiry, including the public out there, about the kind of decision they went to and he would have taken them through everything else that they had dealt with. At the end of that, he would have asked if there was anybody in the meeting who wanted to make a remark. In that regard there was none. Nobody was barred or excluded from responding after being invited by the Chair to respond to what he had tabled on behalf of the Committee.

Then to go to the issues raised by Mr Mataboge, the Committee noted what he had just raised – that he was satisfied with the manner in which they had dealt with a matter. That was point number one, because the Committee had made an intervention on the spot. Even before the meeting happened, as a Chairperson he would have instructed the Committee Secretary to interact with the person who was sending that text and for that person to desist from what he was doing. The Committee further said that whatever that person was doing must be put in writing and sent to the Committee. They then further, because he thought Mr Mataboge was raising an issue that he was not happy about the fact that in the report back of the decision of the Committee they had reflected entirely on the message that was sent to him, had done that because they felt it was important that they were transparent to everybody. Also, that was also meant to inhibit and make sure that people who do that beyond Mr Mokgele Mojaki do not do it. The Committee was of the firm view, because at some point Mr Mojaki was nameless, that Mr Mojaki had to be named and be known. So it was the view of the Committee that that kind of message which they felt impeded the work of the Committee needed to be reported back to the inquiry and everybody else so there was no hearsay about it. The Committee had done so, so in their view they thought that it was the correct way to do it.

As the Chairperson of this Committee, the Committee still believed that it was correct that they relayed that message and not just read it to be on record, but also flighted it as it was unedited. So that was a point about that. Mr Mataboge then read to the Committee what he felt the Committee should consider in terms of the PP Act. Just to indicate to Mr Mataboge again that today, as the Committee had decided the previous day, he was here being subpoenaed by this Committee. Mr Mataboge was under that process and the Committee would therefore continue in that regard, because that process that they had entered into would even supersede what would have happened within the PP Act given the fact that this was part of a constitutional task that went into a process. Therefore, that was a legislation that could not supersede what a directive of the Constitution said. That was what they would have applied themselves as this Committee. He wanted to say that, having listened to Mr Mataboge, the Committee shared the issues that he had raised. However, he did want to rule as the Chairperson that the Committee would proceed with Mr Mataboge and Adv Bawa. Indeed, if there was a further need from Mr Mataboge’s side to further seek legal advice, the Committee could not bar him from doing that. So that was certainly his ruling in relation to what had just been placed on the Committee. Any Member who is uncomfortable with that ruling?

Discussion
Mr X Nqola (ANC) said that it was in order and that the ANC supported that ruling.

Mr K Mileham (DA) also supported the ruling. He just wanted to get clarity though. Which particular section of the PP Act is Mr Mataboge referring to?

The Chairperson said that Mr Mataboge would have read it and quoted it. However, that could be repeated. He would ask Ms Ebrahim or Mr Mataboge to repeat it later, but Mr Mataboge had taken the Committee through that.

Ms V Siwela (ANC) said that she supported the ruling, because that had been the decision of the Committee. What the Chairperson had explained was what had transpired before the Committee.

Adv Mpofu said that he would not waste the Committee’s time and would be brief again. Just to place on record, one, that there was no invitation for the PP’s legal team to comment the previous day specifically. He was sure that the YouTube evidence would show that the Chairperson just closed the meeting after the report back. Then the other issue was the last input that this was a decision of the Committee was not also entirely accurate. He thought it was a proposal maybe or decision of the legal representatives or the Secretariat, who said that the media and the PP and the evidence leaders should be excluded. Now obviously, the Committee embraced that decision or endorsed it because it did not call them back. So the third issue was that what the PP’s legal team was talking about was that this was a chain reaction. Their exclusion was what led the Committee to have to report back to them and then display the message.

If they had not been excluded, they would have all seen the messages and decided at that point whether it should then be made public – which was what Mr Mataboge was complaining about. But that was water under the bridge now. The last point was that what he thought Mr Mataboge was raising concerned some of the issues that were discussed on the previous Monday about the rights of witnesses as well. Of course, the PP’s legal team had to assert their rights and the rights of the PP and the integrity of the process, but at all times one also had to watch out for the rights of the witnesses because they were citizens of South Africa. Perhaps the last point was that these deliberations were part of the work of Parliament, which by definition should happen in public unless there were compelling reasons why that should not be so.

The Chairperson noted Adv Mpofu’s discomfort on those issues and his comments. He would not want the Committee to get into a debate about the issue he was raising when he said he opened the platform for people to come in, and the issue now became whether he specifically would have called the PP or not. He would not want the Committee to go into that but he noted Adv Mpofu’s areas of discomfort that he had placed on record. He still made the point that the ruling he had just made would stand and the Committee would therefore henceforth continue from now. He invited Adv Bawa to take the platform.

Evidence Leader cross examination: Mr Rodney Mataboge
Adv Bawa: Good morning, Mr Mataboge.

Mr Mataboge: Good morning, Adv Bawa.

Adv Bawa: Mr Mataboge, as you would have heard, I'm placed under some time constraints. So I'm going to try and go through things very quickly. But if there's any issue, you think I'm going too fast, please let me know. We left off on Monday with certain information that you would come back to the committee on. I don't I don't know if you have that information already and whether you want to kick off with that or whether I should continue. Well, actually, let me do this. I will continue and we'll get back to the questions that we had left with you. Would that work?

Mr Mataboge: That will work, Adv Bawa. That will be fine.

Adv Bawa: Okay. So we had essentially, I think, left off with a complaint that had come in on the 8 November in relation to the breach of the Executive Ethics Code by Minister Pravin Gordhan, as alleged, and then the complaint then lodged on the same day a second complaint in respect of the SARS Unit. Right. I want to take you to an email which you then received on the same day from the PP, which will go to page 5 978 on the top. And it's headed “Subject: Some information for investigation BB& D”, and it's dated the 8 November. Do you see that Mr Mataboge?

Mr Mataboge: Yes, I do, Adv Bawa.

Adv Bawa: Right. And I don't want to go through the entire email but I want to pick it up at the top of page 5 979. Do you recall this email Mr Mataboge?

Mr Mataboge: Yes, I do Adv Bawa.

Adv Bawa: So if we take you through it, "South Africans must remember that it was under the watch of Coleman Andrews and Bain & Company that books were cooked whilst South African Airways (SAA) fleets were sold under the disguise of turning the airline around.” And then it says, “Pravin Gordhan like any other South African who is accused of corruption must face his day in court on the 8 November to explain.” Do you know what court proceedings were being referred to on the 8 November?

Mr Mataboge: No, I wouldn't know. Even if I knew, I wouldn’t remember, Adv Bawa.

Adv Bawa: Then there is a series of questions posed: 1. Why was Tatis customs intellectual property (IP) which is now called Interfront and owned by SARS bought by Pravin Gordhan and Trevor Manuel for R72 billion when it was actually worth R2 million? 2. Why did SARS buy an IT company (Tatis custom IP) for R 72 billion yet still spend R 8 billion on IT costs? 3. Why was the R 1.4 billion IT tender that went to Barone, Budge &Dominick (BB&D) never advertised? 4. Why was BB&D contract extended over a period of 12 years without any tender processes being followed but having relied on Barry Hore’s personal experience and ‘memos’ for the project? 5. Why was Oracle removed at SARS and replaced with Accenture and BB&D when there was no proof that Oracle was underperforming and when there was serious conflict of interest as Barry Hore, a SARS former Chief Operations Officer, was headhunted by Minister Pravin and also a shareholder of BB&D? 6. Why were 15 offices of South African Police Services (SAPS) and Scorpions illegally bugged by rogue unit members? 7. If SAPS and Scorpion offices were not bugged how did Gerrie Nel and rogue unit members obtain evidence to nail Jackie Selebi? 8. Were weekly recordings of the illegal bugging downloaded and given to Pravin Gordhan, Ivan Pillay and Gerrie Nel by rogue unit members who were paid R 1.2 million by Gerrie Nel? 10. If two former Rogue Unit members have turned state witnesses and Pillay, Loggerenberg and Andries van Rensburg are now criminally charged why not allow this process to be tested by an impartial court of law and not a commission in which Pravin had been able to brief Judge Nugent? The total disregard for the Public Finance Management Act 1 of 1999 (PFMA) and Preferential Procurement by Pravin Gordhan also permeates at SAA and its subsidiaries to which Pravin has seconded his lieutenants like Bain &Company to ensure that the national carrier is collapsed in order to legally give it to private individuals like his nephew Ketso Gordhan who enjoys the luxury of being one of the few ‘black’ owned companies which procure with SAA in a space where 98% of procurement is still enjoyed by white Companies. If such a state of affairs is left unattended South Africa is bound to turn into a mafioza state where corporations collude with politicians to undermine the rule of law in order to maximize profits. Pravin Gordhan is a threat to democracy and must be stopped before he causes more harm under the disguise of cleaning up.” You received this email from the PP on the 8 November. Correct?

Mr Mataboge: Correct, Adv Bawa.

Adv Bawa: Did you understand by “Pravin Gordhan is a threat to democracy and must be stopped.” Must be stopped in which way?

Mr Mataboge: I won't comment on that as an investigator, but what I could say is that some of the companies like BB&D and others that I mentioned here were already part of the investigation by the Office. So if an email like this one came through, it was just for alluding or attention from the PP and not necessarily for us to act on it.

Adv Bawa: Right. So, if we go back up to the numbers that I read out, a number of what is fairly put as questions arise from the complaints that had come into your office on the 8 November. Would that be correct?

Mr Mataboge: Not from the complaints, because some of the complaints, like I said Adv Bawa, the BB&D complaint is the 2016 matter that had started within the Office. So it would not have been a new file at the time as well as the one that relates to Oracle as well was part of the 2017 IMS investigation. So it would not have necessarily been for new files or new matters to be attended to by us as investigators. It was for noting, if I may say.

Adv Bawa: That is so. So some of it arises from the SAA complaint, which we covered yesterday, had already been closed. And at least, as at this point, the number three, the BB&D was still pending or had not yet commenced with investigation. Am I correct?

Mr Mataboge: You are correct, Adv Bawa.

Chairperson: Except that we did not cover it yesterday. It was the day before.

Adv Bawa: My apologies if I say yesterday, I lost a day in this.

Chairperson: Unless the two of you were doing it.

Adv Bawa: Right. You also on Monday…

Mr Mataboge: Tuesday, Adv Bawa.

Adv Bawa: So when last we got together on Tuesday you had shared with us that you had not had insight into the closing report that had been prepared by Mr Madiba.

Mr Mataboge: Yes.

Adv Bawa: And I want to take you to page 6 546, Bundle F, and it would be in 190.2, 190.3. Just hold on a sec; let me just be sure. Page 6 550, yes. Now, I had asked you a question, and maybe this was one of the questions that we had remained outstanding is whether you had had a meeting with a whistle-blower at any stage, Mr Mataboge. I'm not interested in the identity of the person. I just want to be clear about it.

Mr Mataboge: No not at all. There were emails that were sent to the investigation team but to which the team responded, but we never had a meeting with the whistle-blower that I sent the emails.

Adv Bawa: So, Mr Mataboge you would have had an opportunity to look at that. And the reason why I'm asking you this is because the whistle-blower didn't refuse to meet with the PP Office. The whistle-blower said, “I would be available in December to do so.” And I'm asking the question that, having indicated that the whistle-blower would be available in December to meet with the PP, why an appointment was not scheduled with a whistle-blower to meet?

Mr Mataboge: Unless Adv Bawa, I was to be shown the undertaking by the whistle-blower to us on his or her preparedness meet with us, I will not be able to answer because in December we met the other complainant to the matter, who was the one who wanted to meet with us, but not the whistle-blower as is referred now by Adv Bawa. Unless I'm being shown…

Adv Bawa: Sorry Mr Mataboge. I don’t want to interrupt you. I'm going to ask to put this email up. It's included in the 189 Bundle and I couldn't find it so I've taken it out separately just so that I can show it to you on the screen. I want to go down to the bottom, to the email that that’s responding to, to the email Ms Mvuyana sends. So this is on October the 19th after the complaint.

Adv Mpofu: Sorry Adv Bawa, can I have the reference again?

Adv Bawa: Adv Mpofu, it's in Bundle F 189. And you will see in 189 there's a lot of sub-number of documents and I've lost the exact sub-number Adv Mpofu because it was going to be one of the questions I asked Ms Mvuyana, and having now switch gears I've lost some of my referencing.

Adv Mpofu: Okay, fine. We can get it later. We'll use the screen for now. Thank you.

Adv Bawa: It's the letter, and I actually think it could be part of the investigative diary number 71 as well but I stand corrected. It's the email that Ms Mvuyana sends off on the 19 October after the complaint comes in. And it says, “Kindly be informed that the PP has received your complaint against SARS. The complaint has been allocated to the Good Governance and Integrity (GGI) Branch and has been assigned… You are requested to attend a meeting with the investigation team at your earliest convenience, but no later than Friday the 26 October 2018… to formulate the issues and get a better understanding of the allegations.” That's a pretty standard letter that you send out to complainants, isn't that so?

Mr Mataboge: That is correct Adv Bawa.

Adv Bawa: Now, let's look at the response from the complainant. It says, “Dear Adv Mvuyana, Thank you for your response. I am not residing in South Africa. I will only be in the country in December again. Could we schedule an appointment for then?” And so the question is, did you meet with the whistle-blower? And if not, why was an appointment not scheduled?

Mr Mataboge: We didn't meet with the whistle-blower. Now I remember because, Adv Mvuyana would be able to talk to that when she appears, but she said she made all attempts to contact the whistle-blower up until that she lost hope. And I will not talk further to that; I think she will be able to answer. Because even if you look at the email, as much as I was supervisor, I was not copied but she briefed me on that. That's why now I was remembering meeting the other complainant to the matter in December, not scared whistle-blower.

Adv Bawa: Right. Okay, so I just wanted to check if to do that. Right. Now. If we go to the document page 5854 at 190.1. Right. You said you didn't have regard to the closing report, but you did receive a copy of the closing report. Isn't that so?

Mr Mataboge: I wouldn’t have received it. Maybe Adv Mvuyana as an investigator. Like I said the previous time, even when we consulted, I've never had it and for reasons that are advanced I didn't want to have sight of it so as to proceed with the other investigation free from influence of any other that was contained in that report. And I still stick by that because I never saw it Adv Bawa. The team may have seen it. Adv Mvuyana will be appearing; she would talk to that I believe.

Adv Bawa: I want to take you through a series of emails, as soon on the 12 April. There is a request that goes around to the office in a precursor email asking about this investigation that had been completed. And then the late Mr Madiba answers and he says, “Yes, it was under my stewardship that the investigation had been completed.” And he says, “Attached hereto is a copy of the closing report on same”, and he tells you what it was being closed and he gives you a snapshot of it. And you are included in this email chain of the 12 April Mr Mataboge.

Mr Mataboge: Yes, Adv Bawa. I am included but like I said, with my conscious decision, I did not look at the report. It doesn't mean that the moment I got into my mail I would have opened it and read it.

Adv Bawa: So let's go up to the top. It says, “Dear COO”, it then goes to Ms Baloyi, “find the response… in response to your question.” And Ms Motsitsi says, “Thank you.”And then let's go up. The report is then also provided to the PP, Mr Kabinde, and Chief of Staff by the COO, you see that?

Mr Mataboge: I see that.

Adv Bawa: Right. And if we go to 6 551, 190.3. I suppose start from the bottom – 14 May. Okay. There is a request from the PP for a copy of the draft Rule 7(9) report and you tell her that you're not quite ready for it and you're going to give her a rough draft and you await her guidance but you are proceeding to draft. Would that be correct?

Mr Mataboge: That is correct Adv Bawa.

Adv Bawa: So let's go up. She then returns and she says, “Find attached with my comments”, at five o'clock the afternoon. “I am trying to get proof of the payments to suppliers and to staff (it is there in the closed file by Madiba?) Did you get hold of Bizoski? Can we do Skype interview? And Peega?”

Adv Mpofu: I’m sorry. It says, “It is not there.” The part in brackets, Adv Bawa read, “It is there.” It actually says, “It is not there.”

Adv Bawa: It says, “Is it not there?” We’re both wrong Adv Mpofu. It’s a question mark.

Adv Mpofu: Yeah.

Chairperson: Okay, that's sorted between the two of you. Proceed.

Adv Bawa: Go up on the email. Right. “Thanks madam, not yet. We have been trying Peega’s number without success but didn't try Bizoski, which we will do today. We will check again in the other arch lever file for proof of payments to the suppliers.” And then go up. And the PP says, “Rodney I perused the 2012 complaint and there is all the evidence of recruitments and payments and contracts of the people who worked for rogue unit. Include them in the notice. All these happened when PG was the AO. Will send the file back and Mvuyana should use this information.” Do you see that Mr Mataboge?

Mr Mataboge: Yes, I'm looking at it Adv Bawa.

Adv Bawa: So you still don't go to the closed report?

Mr Mataboge: Yes. Because here PP is referring to the evidence. I still don't because the closed report is a narrative. And if as an investigator you want to do your narrative, that is my personal view. You don't want it to influence how you write and how the report is being argued, which I also shared with Adv Bawa when we talked about Vrede 2 report that I was part of, or Vrede 2 investigation.

Adv Bawa: So you do go back and you look at the evidence in the 2012 file, you just don't look at the closing report?

Mr Mataboge: Yes, because the evidence file is an arch lever file and it's not even looked at alone. It’s by the investigator herself but it doesn't have the closing report. The closing report normally gets to be filed registry, and it's a separate folder from the evidence file.

Adv Bawa: So you effectively relook at the evidence that was before Mr Madiba? Would that be a fair way to put it?

Mr Mataboge: I think the one that the PP specifically directs relating to recruitments and payments, that would have been then one that the team would have focused on.

Adv Bawa: Okay. Just go up. Now, actually, not okay, Mr Mataboge. Let me be clear about this. You have all this documents which underlies an investigation that had previously been done by the PP. I'm asking you whether you considered all that evidence that was before Mr Madiba or whether you only selectively looked at the evidence.

Mr Mataboge: We wouldn't have considered all of it if that's what you’re asking Adv Bawa, because the matter that was before us related to a particular complaint.

Adv Bawa: Well how would you know that if you didn't look at all the evidence?

Mr Mataboge: The focus would have been on, like the PP’s email is saying, on the payments and the Human Resources (HR) records that would have been there. We would not have had to look at everything but like I said, I supervise the investigation. The team that dealt with it would have looked at what was viewed as important for the purposes of the report that we were drafting.

Adv Bawa: The PP says, “There is also proof of payments to these people so we can mention that because we got from SARS. I will bring some more evidence, checking the disc and will share tomorrow.” So if I take you to paragraph 5.4.23. Now we have to go to Bundle E, item 7, item 4, started at page 216 where the report begins. And we will need to be on paragraph 5.4.23. It’s page 296.

Chairperson: Yeah, there's a bit of an echo. So IT will just try and improve that.

Adv Bawa: I'm referring you to paragraph 5.4.23 of the investigation which says, “It is indeed correct that the issue relating to the recruitment of staff for the intelligence unit had been previously investigated by my office. The matter was finalised and signed off by a Chief Investigator, which means that I am able to review such report if the need arises.” Do we understand that the aspect of the SARS Unit report which deals with recruitment is effectively a review of what had previously been investigated by Mr Madiba?

Mr Mataboge: Although I'll try to answer Adv Bawa, but I think here the PP will be able to answer. But the long and short of it is that as a process, Mr Madiba, once he signs off a matter as a Chief Investigator, his report can be reviewed internally by the Executive Manager (EM) to whom he reports as well as the PP once the PAP has a satisfaction with regard to that report. So that is why this comment, because he at his level had signed the closing report.

Adv Bawa: I have no difficulty with the principle, Mr Mataboge. I think we established that yesterday already. The question I'm asking as Chief Investigator in this report, when you were doing this investigation, did you consider it to be a review of the work that Mr Madiba had previously done?

Mr Mataboge: No, not at all. That's why I was saying these matters in our view – that's why I didn’t want to think to that report – were not similar, were not related.

Adv Bawa: Now, as I understand your view in respect of Vrede 1 and Vrede 2, you similarly indicated to us that you did not have regard to the Vrede 1 report because you didn't want to have your view tainted. Is that correct?

Mr Mataboge: Yeah. Not necessarily tainted but, you know, influenced by the narrative that would come from Vrede 1, because I wanted to present my own narrative based on what would have been before me. That is correct.

Adv Bawa: And the evidence which served before the Vrede 1 team, what was your position in respect of that?

Mr Mataboge: When we dealt with Vrede 2, we had to write anew / afresh to the people that were affected, because now the complaint we were pursuing related to the involvement of the politicians, not the administrators who would have been the Director-General and others. So we were basing our engagements in Vrede 2 on the letters that we had sent to the respective members of the Free State Provincial Office, including the Premier in the Free State. So it was based on the records that we had received as a new investigation, not on the basis of the previous Vrede 1 evidence or records.

Adv Bawa: Mr Mataboge, it was simply a question to ask you did you have regard to any of the evidence which had served before. I understand that you did it on the basis of the material that you had gotten pursuant to your investigation. I'm trying to test, Mr Mataboge, what did you look at that was also before the Vrede 1 report, and there were differences in the investigation. So now let me take you, it’s 190.2 It’s page 6424. In fact, it is an instruction from the PP that you must have a look at… you must get the evidence using the Vrede report issued in 2017, and that Mr Muntu Sithole must assist you in getting the Rule 53 record.

Chairperson: Just wait for us so we can all get it.

Adv Bawa: It’s 6 July. This has got to do with the Section 7(9) of the Vrede 2 report. Do you see that Mr Mataboge?

Mr Mataboge: I'm looking at it Adv Bawa.

Adv Bawa: So the PP sends off an instruction that says the meeting must take place for the entire investigation team and evidence. Mr Mataboge, because of time constraints I’m cutting through stuff. If you think I'm misrepresenting anything on the email, jump in and I'm sure Adv Mpofu will do the same. But there's an instruction from the PP that you must get the evidence used for the Vrede report issued in 2017, Muntu to assist with the Rule 53. And I assume that's the record. It goes further and says, “The Gupta leaks copies were delivered by Organisation Undoing Tax Abuse (OUTA) to the office and were sent to GGI then Adv Fourie (let them assist with copies) were never used because their authenticity could not be verified, per discussion with Adv Fourie on other information contained in the leaks, which GGI was investigating.” Do you recall this Mr Mataboge?

Mr Mataboge: Yes, I do Adv Bawa.

Adv Bawa: Did you get the evidence from the 2017 report and the Rule 53 record from Muntu?

Mr Mataboge: I don't remember Adv Bawa. I don't remember because I’ll ask Ms Mvuyana to help me here because I still even I remember saying to the then COO to say I don't want to have sight of these records because I don't want it to influence the investigation and the outcome of Vrede 2 report.

Adv Bawa: The next thing says, “ACE to assist with the email communication on the Vrede matter. With Free State office on the Gupta leaks.” Would that be a reference to Mr Ace Magashule?

Mr Mataboge: I'm not sure, or it’s Acting Chief Executive Officer (CEO). I'm not sure what that stands for.

Adv Mpofu: It's Acting Chief Executive.

Chairperson: That was very quick. Thank you Adv Mpofu.

Adv Mpofu: I asked the same question a few days ago.

Adv Bawa: We used to have ACEO, now we’re down to ACE. Okay. “We cannot finalise this report without referring to the touchstone of the previous report for synergy (this will also assist to refer to the Accountant General finding, which was brought to the attention of the Premier, which now DA says there should be a finding of violating Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA)? The recent issue creeping.” And then there's further things that she tells you to get. So there is a clear instruction that you must look at the evidence that arose from the previous investigation. Do you see that?

Mr Mataboge: Yes, Adv Bawa. I see that and I'm going to then become a bit, sound like insubordinate. But if one were to look for purposes of the Committee or making one's own mind, the Vrede 1 report and the Vrede 2 report side by side and see any synergy or any similarities there, I'd be interested to be shown that. Because I and the team and the COO kept on desisting from looking and then synergising, as the word says.

Adv Bawa: Mr Mataboge, let me tell you at the outset, and I'm hoping I'm going to have enough time to come there, in my view in reading both reports, the second report is a much more superior, well thought out report. There are issues that I'd like to raise with you to the extent it impacts on the first report. So there is certainly a much better investigation conducted the second time around, but I'm hoping to get to that. What I'm trying to work out relates to evidence and process for the moment, right.

Adv Mpofu: I object to that evidence from Adv Bawa. She's not here to tell us which report is…

Adv Bawa: I withdraw Adv Mpofu.

Adv Mpofu: No, no, no. Thank you, but Chairperson, really, I don't want to have to do this again. The Constitutional Court made it clear that the legal representative of the PP is not here to give evidence but to elicit from the PP evidence. That applies equally to the evidence leaders. If she wants to give evidence, she must just be sworn in by Ms Ebrahim, like everyone else.

Chairperson: Thank you Adv Mpofu. I think she has immediately withdrawn Adv Mpofu.

Adv Mpofu: And I appreciate that. I was just preventing me having to jump up and down as she said earlier.

Adv Bawa: So let me move on to something. I'm going to come back to the Vrede report because I want to do a different kind of exercise. Let’s just finish this. We were told by Adv Mpofu when he was cross-examining one of the witnesses about the ‘three-strike rule’. And I think the three-strike rule within the PP’s Office, as I understand it, is that proposition was put that you don't simply issue a subpoena without asking someone to come first – that is unfair, and the PP said that might even be as far as to say illegal. So I'm going to ask you the question, on the back of that submission having been put before the Committee by the PP, what steps was taken to get Mr van Loggerenberg to come to the PP’s Office before a subpoena was prepared and signed by the PP?

Mr Mataboge: The three-strike rule is a process of investigation wherein we write a letter, and we send a reminder and we then sign the final reminder to say, if there's no response to the second reminder, the PP will invoke her powers of subpoena. That is a separate process. But it's unfortunate that when we issue subpoenas, they are being understood to be hard and harsh to other people. But the PP has said, or even the institution, we don't use subpoenas only as part of bringing people or responding to or complying with the three-strike. If we want the matter to be finalised quicker like the earlier matters, the quicker way of doing it is a subpoena. And that subpoena doesn't mean a person must appear. We request that a person must submit an affidavit as well as supporting documents, so that it may help us fast-track investigation – not necessarily to try and push and antagonise the respondent. It's a matter of trying to be expedient in the investigation process. So I want to come back to your question. The subpoena that was issued to Mr van Loggerenberg, it was not only him, it was a few senior officials of SARS that were also subpoenaed under the same date, under the same subpoena, to respond to the PP by submission of affidavit and supporting documents.

Adv Bawa: Mr Mataboge, you didn't answer the question. The question was, what steps was taken prior to a subpoena being issued to obtain Mr van Loggerenberg coming?

Mr Mataboge: There were no steps because he was not a respondent in the context of the complaint like SARS was a respondent. He was in affected party. So we wanted to, by issuing the subpoena, we wanted to offer him the choice. So the process of three-strikes would apply to the actual respondent, not the affected party.

Adv Bawa: I'm not sure I understand that. What choice do you offer him by issuing him a subpoena off the bat without giving him a choice to come? Because I am trying to compare what is being done in the Vrede matter when we're dealing with people in the Free State versus and the explanations given there versus what's done in the Gordhan matter. So maybe you could explain to me what choice was provided when you issue a subpoena from inception?

Mr Mataboge: Even the people in the Vrede 2 investigation, they were subpoenaed without having been written letters to because they were affected parties. The Members of the Executive Council
(MECs) and all those people were subpoenaed as a matter of experience.

Adv Bawa: Right. So when we do it as a matter of expedience, it's not unlawful? Because the proposition was put to us that Mr Samuel, that because if several letters were not written first before Mr Magashule was going to be summoned, then that process would be unlawful. And so I'm checking with you whether the criterion is one of expediency that informs unlawfulness?

Mr Mataboge: I would not want to comment on the unlawfulness, but it's part of the process. If one were to refer to the PP Act, the PP as you know decides on the process at her discretion that needs to be followed in an investigation. But that doesn't mean it has to be unlawful if I may answer you on that.

Adv Bawa: So if I just, on the scheduling of reports, because this becomes important, you get told ahead of time or at the stage, let's talk about 2019, when there's going to be media press briefings and when reports are to come out. The COO would inform you, and there would be like a date. In fact, you were told that the PP was desirous to have the SARS Pillay report issued by the 30 April. Do you recall that?

Mr Mataboge: Yes, I do.

Adv Bawa: It was ultimately issued on the 24 May, correct? Mr Mataboge?

Mr Mataboge: I’m here. I’m trying to check whether the date is correct.

Adv Bawa: Alright. Just assume for purposes of now that I'm correct, that it's the 24 May, that the Pension Pillay case was issued, and that the SARS Unit report was issued in the first week of July, I think the 4th or 5 July. If I'm wrong, somebody will correct me. But just for purposes of this so that we don't get bogged down in dates. Mr Mataboge, I don't expect you to remember the actual dates of it all.

Mr Mataboge: I think, if I may say, you confused me when we talked of May, because I thought we were dealing with the Rogue Unit report or the so-called Rogue Unit report, which was in July – I know exactly. I know as well that the Pillay one was in May. So I thought the date that you were referring to now is incorrect for the Rogue Unit report.

Adv Bawa: Sorry, I don't want to confuse you. I'm trying to establish that the Pension Pillay report comes out on the 24 May and that precedes the SARS Unit report that comes out in July.

Mr Mataboge: Correct.

Adv Bawa: Right. Now, if I then take you to page 5897. You raised the issue yesterday that, in fact, there is a chain of command – Investigator, Chief Investigator, EM, COO and PP. And that in respect of Bosasa you reported directly to the PP, but that in respect of the SARS Unit report the EMs had to sign off on the submissions that was then forwarded to the COO and then to the PP. Do you recall that?

Mr Mataboge: Yes, I recall that.

Adv Bawa: And I'll tell you upfront, Mr Mataboge, I do not find an indication of the EMs being involved, signing off on the 7(9)s or the actual reports. So let me take you through the documents.

Mr Mataboge: May I comment to that?

Adv Bawa: Sure.

Mr Mataboge: You wouldn’t find them because when we submit the 7(9)s and the documents that need to have approval of the PP, the EM signs on the memos, which are internal memos, they are not for outside. So if you need it, I’ll search for the memos that processed all of these investigations and have them availed to the Committee, because there's no way that when I submit, for instance for SARS matters, I would have submitted them direct to PP, whether it's the draft 7(9)and the draft report, because it has to be reviewed and quality assured by my EM who then reports to the COO who then has to also review it, and I'm sure those memos are there.

Adv Bawa: Right, so we'll add that to the list of what you would need to provide. I am going to say to you that my juniors, my co-evidence leader will find the reference in Ms Mogaladi’s affidavit and I'll read it to you. But that's before the Committee. I'm saying to you from the documents we have, you have been submitting these 7(9)s directly to the PP. And in almost all instances, neither the EM nor the COO is even included in the email chain. And I'm first wanting to take you in that regard to 5 897, and we go down to the bottom. And it starts off, Mr Mataboge, where you are asked by the COO to attend a meeting relating to the Free State website, and that was one of the reports you were charged with. Correct?

Mr Mataboge: Correct. Yes.

Adv Bawa: Right. And you asked to be excused from the meeting because you've got three deadlines, “namely 2 s 7(9) Bosasa and the Rogue Unit, as well as the final report on Pillay’s appointment all of which the PP wants tomorrow.”

Mr Mataboge: Correct.

Adv Bawa: Right. And they’re telling you, you need to come to a meeting, and your apology is not accepted.

Mr Mataboge: Yes.

Adv Bawa: Right. Now would the COO and EMs not have known that your 7(9)s and Rogue Unit and Bosasa stuff would have been due because they would have had to sign off on the Rogue Unit and the Pillay’s appointments before it went to the PP?

Mr Mataboge: I wouldn’t know but like I said, to cut a long story short, the memos that related to the SARS Unit investigation, I have them all. I’ll submit them, except for Bosasa. So I wouldn't be able to answer as to why they would not know.

Adv Bawa: Okay, go up. You then go to the CEO and you say, “May I humbly see you, if possible, for advice on the situation I'm facing regarding directives and duties in my sphere of work. The trail of emails below is an example of a dilemma I am often faced with.” And what is that dilemma that you were referring to Mr Mataboge?

The Chairperson said that Mr Mataboge had indicated that he had a small issue with his microphone, so IT was going there to assist. The Committee will take a 10-minute break while Mr Mataboge is fixing that.

[Break]

Adv Bawa: If we can just put the email back on the screen, and I asked the question, “The trail of emails is an example of the dilemma I am often faced with.” And so I asked you to articulate what that dilemma is that you're faced with.

Mr Mataboge: Yes, Adv Bawa. I said I would be getting instructions or directives from the PP, especially on Bosasa, and the CEO would want me to do something else and, like the email reads at the bottom, would not take my trying to apologise to be excused from the meeting. So that's why I'm using a word, being between a rock and a hard place, there.

Adv Bawa: Indeed, you have two reporting lines.

Mr Mataboge: I wouldn’t want to say so.

Adv Bawa: Okay, that's good on your side. There was just an echo here with Adv Bawa. So maybe IT can just assist us here. It was not with Mr Mataboge. Try again Adv Bawa.

Adv Bawa: So Mr Mataboge, I didn't finish the sentence. I was saying to you that in certain instances you end up with two reporting lines in respect of certain investigations to your EM and your CEO, and in respect of others directly to the PP. Would that be true?

Mr Mataboge: I made my response Adv Bawa. I said I wouldn't necessarily say so, because it was only in respect of Bosasa that this thing was happening.

Adv Bawa: Right. So if we go up on the email.

Chairperson: Tshepo doesn’t understand up and down, so you need to just clarify that properly.

Adv Bawa: You then, I don't think you wait for the response from the CEO. Am I correct? But you then very shortly thereafter send an email to the PP directly and you say, "I had intended to ask for CEO’s advice this morning.” I take it CEO and ACEO is the same?

Mr Mataboge: No ACEO would be an Acting, CEO would be the CEO.

Adv Bawa: Oh, so there's…

Mr Mataboge: But not at the same time. I'm trying to just unpack the abbreviations for you Adv Bawa.

Adv Bawa: So, “I had intended to ask for CEO’s advice this morning as per email. The situation that is developing with me is really concerning to me as I am now becoming unpopular with my supervisors/managers.” And that unpopularity stems from effectively your plate is full, Mr Mataboge. Would that be fair?

Mr Mataboge: Yes, yes, it would be fair. Yes.

Adv Bawa: The PP then responds and says, “Rodney attend the COO meeting. I will get the 3 tasks as soon as you are done. Send me the drafts of the report of Pillay, your Section 7(9). CEO can you make sure that COO and EM give support to Mr Mataboge, I will engage with any staff as and when I want, they must not subject them to such.” So pursuant to that you were asked to submit the drafts of your reports of Pillay and your Section 7(9) directly to the PP. Isn't that so?

Mr Mataboge: Yes, that was what was in the email below. It was just a continuation of what the PP had directed.

Adv Bawa: These reports at that stage Mr Mataboge, were these presentations to Think Tank or Task Force or I don't know what they’re called anymore, where you would go and present your report to a committee that will then provide input on it, was that is that in existence already?

Mr Mataboge: What was in existence here, if I recall Adv Bawa, was the quality assurance structure that had a Mr Mathabela as the quality assurance person.

Adv Bawa: So the only person who would look over your report for purposes of quality assurance would be Mr Mathabela?

Mr Mataboge: But after they had gone through the EMs and the COO, it would go to quality assurance before it goes to the PP, unless advised otherwise.

Adv Bawa: Okay. So you wouldn't do a presentation to the EMs and the COO of your report, as I understand from Mr Lamula’s evidence was the case at some points when he was at the Office?

Mr Mataboge: No Adv Bawa. I said only in respect of Bosasa. All other matters, today and all, I would have presented them through the normal channels. Except when there was a need for an urgent maybe media briefing coming in and the PP would have wanted to have sight of the report. But like I said I would still look for the memos to prove the fact that the Pillay and SARS Unit and 7(9)s and draft reports went through the normal channels, except for Bosasa. Even in respect of Bosasa, it didn't happen from the beginning. The week that they started, the normal channel was being followed. Only when we were going to watch that 7(9) and other things then that reporting had begun to start. I won’t comment on that. I think the PP would be the right person to talk to that.

Adv Bawa: Right. Yeah, I am going to. I just, I think in fairness I must put to you what Ms Mogaladi had said on her affidavit to the Committee. And if we go to Ms Mogaladi’s affidavit at Bundle D, item 21, in the SARS matter at 137. And if I'm just going to read it to you quickly, it's 137 and 138. “In relation to the SARS Unit investigation I met with the complainant on 8 December 2018. The investigators who were responsible for conducting that investigation were Mr Rodney Mataboge (he was the Chief Investigator) and Ms Bianca Mvuyana. To the best of my recollection I had scant involvement in this investigation. I was at the time acting as the EM: GGI. When I started acting in that capacity on 1 November 2018, I found the investigation of allegations of maladministration and impropriety of SARS already underway. I was not involved in that investigation, and as it progressed the investigators did not report to me about it. I understood that Mr Mataboge and Ms Mvuyana reported directly to the PP regarding its progress. As from 1 June 2019, Mr Mataboge and his team (which included Ms Mvuyana) reported to Ms Motsitsi, not to me.” Do you have a comment on that?

Mr Mataboge: Yes, I do Adv Bawa. I need to refer to the memos because, like I said earlier, it’s only in respect of Bosasa that I recall not going through the normal EM and COO approval lines on the memo. So I'll have to search for the memos that pertain to who was my EM because I had several EMs during the period that is alluded to here. But I'll have to check the memos. I don't recall Ms Mogaladi just attending the meeting and that was the end of it, because the memos had to go through the COO to the PP and it was first with the EM anyway.

Adv Bawa: Right. Can I take you to page 6 548. I think it's also 109.2. You say, “Dear PP Kindly receive the most recent draft proposed remedial action (yellow text) for guidance and correction as we continue to try and finalise the draft. I continue to quality assure the draft as well, madam. The challenge is still with incorporation of the 3 responses to the 7(9)s.” Those are the responses from Messrs Magashule, Pillay and Gordhan, correct?

Mr Mataboge: Yes.

Adv Bawa: Right. So you submit a draft to the PP on the 1st of July. Right? In respect of the SARS Unit matter.

Mr Mataboge: Yes.

Adv Bawa: And then we go up. She then says to you, “Noted”, and the communication is solely between you and her. “The Bosasa one also wants draft by Thursday and we can discuss it then.” Right? That's her instruction. I go up. You tell her, “I will do my utmost best to do that.” Go up. She then says, “Actually we can discuss PG today. You can indicate the time in the afternoon and the Bosasa Thursday, I get draft to share with SC before finalising if necessary.” Do you know who SC was Mr Mataboge?

Mr Mataboge: No, I wouldn't know.

Adv Bawa: Were you party to any inputs by SC in respect of the Bosasa draft.

Mr Mataboge: Bosasa draft? No. The only input by the SC was when it was legal opinion at the beginning of the investigation. But I wouldn’t know. There was no any other involvement or SC beyond that, as far as I'm concerned, because I've got all the drafts that are many that went through to my laptop.

Adv Bawa: Mr Mataboge, if an SC provided the PP with input, and she forwarded to you, you wouldn't necessarily know whether that input came from her or whether that input came from an SC. Would that not be so?

Mr Mataboge: Yes, that would be so.

Adv Bawa: Right. You say, "Thanks madam will do. I will check with Mr Kabinde for a slot after lunch today for PG’s draft. I am also in agreement with PP’s view of sharing Bosasa draft with SC.” You sure you don't know who SC is Mr Mataboge?

Mr Mataboge: I'm sure. I'm quite sure.

Adv Bawa: But you're in agreement that the draft must be shared with SC?

Mr Mataboge: Yes.

Adv Bawa: And you're also in agreement to finalise it?

Adv Mpofu: Okay. Well, I have been quiet on this all morning, but Adv Bawa is now busy cross-examining the witness. Just to say that that is not what she is supposed to do. And if she's not cross-examining, then she must accept the answers from the witness and not second guess them and interrogate them and basically just cross-examine the witness, unless if she has any other instruction from somewhere, I don't know where. So if the witnesses says he doesn't know who SC is, to say is he sure and then as if there's another evidence coming from someone pointing to the contrary. And if there is, we must be please informed about it. Thank you.

Adv Bawa: Chair, can we get a ruling on this? Because we have repeatedly had Adv Mpofu say I'm not allowed to cross-examine the witness. And I have repeatedly responded that saying in terms of the directives before this Committee, I'm entitled to ask the witness any questions. I'm not a cross-examiner. I'm going to the truth of it. I showed him two different sentences; the wording was different. In the second one he was agreeing that something should go to SC. Now I want to know that if you're agreeing that something you're working on must go to SC, then logic dictates you must know who SC is.

Adv Mpofu: No. I don't know whose logic that is.

Adv Bawa: I asked him to clarify.

Adv Mpofu: Can I come back?

Adv Bawa: But Chair, before Adv Mpofu interrupts me and we have an exchange, I want that ruling because it's been carrying on for months where I keep on getting told I'm cross-examining, and I keep on responding to say under the directives I can ask any question.

Adv Mpofu: Yeah, but you can't have the ruling having just addressed only yourself. I want to address exactly that point. Please Chair. Chair, yes, I think it's fair what Adv Bawa is raising because this might come up many times. So if there's a ruling, that will probably curtail more interjections. Now, they point I'm making Chair, it's very simple. I don't know if Adv Bawa appreciates the difference between asking questions and cross-examination. If she does not, then she must go and read the directive. The directive is very clear that the PP is entitled to cross-examine. Those words are not coming from the air. And it doesn't have a similar provision or the same provision for the evidence leaders, and that must have been deliberate. Now, this thing is simple Chair. It’s matter of fact. The question is whether or not what Adv Bawa is doing is cross-examination? If it is, then she must desist from doing it. If it is not, then she must tell us what is the difference between what she's doing and cross-examination. Or she must then confess as it were; she must own up. Sorry, maybe there's a better word. She must own up to the fact that she's cross-examining, because she feels that she's entitled to. That's fine. Then Chair, that's where the ruling is needed. So if she's entitled to cross- examine, then the Chair can rule that she is. Then we'll do with that ruling whatever we want. But it can just be this twilight zone where we don't know whether its cross-examination or putting questions or whatever. I think the time has come for this matter to be once and for all addressed squarely. So I agree with Adv Bawa on that score to avoid any further interjections. Thank you.

Adv Bawa: Chair, the directives do not allow the PP to ask leading questions. The evidence leader has specifically been allowed to ask any questions framed very widely in the directives specifically, which means you don't have to qualify it. There is a specific provision that also says the evidence leaders can ask leading questions. If the purpose of the evidence leader is to solicit the evidence and the information for this Committee, there is no logic in curbing the questions that an evidence leader can ask of any witness. It defeats the purpose. Adv Mpofu right from the start had tried to pigeonhole into a cross-examination, but the cross-examination has a different permutation when looked in the context of court proceedings, which is why I'm resisting going there. In the sense of what my task is as an evidence leader, I must ask the questions in order to ensure that the fullest picture gets put before the Committee.

Mr B Herron (GOOD): Chair, I want to take us back to when we adopted the directives. I actually raised in that Committee meeting why the PP had the power to cross-examine but the evidence leaders did not have that in the directives, and that the evidence leaders could only ask questions. The Committee adopted the directives exactly as they are, which allows the PP to cross-examine with the evidence leader to ask any question and doesn't include the power to cross-examination. So I think what has to be determined is whether Adv Bawa is now cross-examining or asking questions. But Adv Mpofu is correct that there is a distinction, and the distinction is deliberate because we just we discussed it when we adopted these directives. Thank you.

Chairperson: I think the ruling I want to make is – until the point where Adv Mpofu came in – I didn't get a sense that we had cross-examination taking place. I would like us to allow Adv Bawa to continue asking the questions, which is not cross-examination. Can we proceed in that way?

Adv Mpofu: Okay Chair, if that's your ruling, that's your ruling here. But I can assure you that what is happening is cross-examination. But as I said, that's a matter of it’s a question of fact. It's either you are right or I'm right on that. So we don’t have to revisit that. But I do want maybe just in fairness to the Committee, particularly given the background that Mr Herron has given, which means that this distinction was not just an oversight – it was deliberate. Because if it was raised with the Committee and the Committee decided to adopt the directive as it is, then it was a deliberate distinction. So which brings us back to the question of fact or what is happening is cross-examination or not, and you have ruled that it is not, I say it is. You are the Chair, I'm not the Chair. So let's put that aside here. But I just want to say that if indeed the distinction was deliberate, as has been suggested now, then the Committee must look into, or maybe not this committee, in the future, the Committee now or then must look into amending these directives so that it's very clear whether the evidence leaders have a right to cross-examine. Maybe that's where the problem is. It’s not with you or Adv Bawa or me, but with the directive itself which makes that distinction and does not grant the power to cross-examine. Maybe, I don't know what our attitude would be if that power was granted. But the whole day, and previously, we've been having this cross-examination, and “I put it to you”, and “but this", "but that”, “but that”, which is vintage cross-examination. Thank you, Chairperson.

Chairperson: Thank you Adv Mpofu. I note the points you're making. Adv Bawa, please proceed.

Adv Bawa: Chair, can we put back on the screen please? Right. Mr Mataboge, you were referring to a previous occasion was an SC, what were you referring to?

Mr Mataboge: I don't get it. Where am I referring to previously an SC?

Adv Bawa: In answering your question I asked you whether you had agreed with the PP’s view of sharing the Bosasa draft with an SC. And I asked you if you, and let me read the sentence finish, “before we finalise it, perhaps even the Rogue Unit one madam.” And I asked you whether you had a person in mind, SC, to share these reports with?

Mr Mataboge: No. I didn't have a person in mind. I was just saying initially when the Bosasa investigation started, the PP through the Legal Services had sought legal opinion from an SC. That's what I was referring to. And that went through the Office of Legal Services or Mr Sithole. We then obtain the legal opinion on that.

Adv Bawa: And was that legal opinion shared with you Mr Mataboge?

Mr Mataboge: Yes, it was.

Adv Bawa: And do you recall who the SC was that provided that legal opinion?

Mr Mataboge: Yes. We did render it because it was from Mr Seanego. Yes.

Adv Bawa: Is Mr Seanego an SC?

Mr Mataboge: I'm not sure I wouldn't know.

Adv Bawa: Do you know that Mr Seanego is an attorney?

Unknown: I don’t.

Chairperson: That’s not a voice of Mr Mataboge. That voice that says, “I don’t”, I know who that voice is and I’m asking that voice not to answer for Mr Mataboge.

Adv Mpofu: We’ll suppress the voice Chair.

Chairperson: Thank you. Please mute to protect you.

Adv Mpofu: Okay. Yes, sure Chair. Can I? I just wanted to make a point and I just want to understand maybe.

Mr B Nkosi (ANC): On a point of order Chair.

Ms D Dlakude (ANC): Thank you very much Chairperson. I just want to say that can Adv Mpofu allow the flow of these proceedings in this meeting instead of him coming in and out between Adv Bawa and the witness? Let's allow the flow of this. He’ll get his opportunity to clarify whatever he wants to clarify and cross-examine the witness. Thank you.

Mr Nkosi: I was going to make the same point that you made a ruling and the ruling was accepted by in particular the person that asked, that's Adv Mpofu, and that we should proceed on that basis. This continuous interjection disturbs the flow of the questions. Thanks.

Dr M Gondwe (DA): Chair, I was also going to ask that the PP not answer on behalf of the witness. If she wants to take the witness stand, she must come and let us know that she's ready to take the witness stand, but she must not answer on behalf of the witness. She's not on the stand; the witness is on the stand.

Chairperson: You're referring to the voice that you heard? Okay.

Adv Mpofu: No Chairperson, I object to all those three inputs, particularly the last one. We object in the strongest possible terms. How does Dr Gondwe know who was speaking? Is she now a voice expert as well? There are four or five people who are here. Please let's not just make a habit of insulting the PP, you know, at that your whim. Please, I'd like her to withdraw that statement or substantiate it.

Dr Gondwe: I'm not going to withdraw that.

Adv Mpofu: Chairperson, who is the chairperson now? Dr Gondwe?

Chairperson: Just conclude Adv Mpofu. I will attend to the issues.

Adv Mpofu: Alright. So please, I'd like that insult to be withdrawn. The other two Members from the ANC, unfortunately it is my job to raise objections. I know that there’s a view that there should not be legal representation for the PP. But unfortunately, the Constitutional Court found otherwise. And the objection that I raised earlier, I even said I'm raising it so that in the future we don't have to avoid exactly what the Members are talking about. Because otherwise, every time there's cross-examination I'm going to object. I can assure you that 1000% if there is cross-examination. I'm not going to be silenced from that. So and that's why Mr Herron’s input, my input and the Chairs input, in my view, was constructed to say that issue must be looked at holistically, and maybe even have a real look at the directives to avoid exactly constant interjections every time such a question is asked – Which will otherwise be the case, I can assure you that that's what will happen. So I don't know about me being silenced now from interjecting. In fact, you just want to blame the victim. If there are objectionable questions, you can't blame the person who's objecting, you must blame the person who's asking those objectionable questions. So maybe that's where you should direct your anger or vitriol. Yeah. So that's what’s going to happen until the end of this inquiry. If we find that there's a legitimate reason to object, we will do so because we have a right to do so. You must just deal with it.

Chairperson: Thank you Adv Mpofu. I think you have…

Mr Nkosi: No Chair, let’s deal with it. He says we must deal with it.

Chairperson: No, I did not recognise you Mr Nkosi. You have ventilated and canvassed the point Adv Mpofu. Just from the Chair, I think the issue was a request that there be a flow of this interaction between Adv Bawa and the witness. I agree with you that you have the right, when recognised by the Chair, to at any point to come in if there's an issue that you're not clear about or you object to or disagree with because that's part of the inquiry itself. So there shouldn't be any problem with that. There is no suggestion of you being silenced in playing that role. And I wouldn't allow that as a Chair for you to mute and never say anything when you feel there's something to raise. It will be wrong for the inquiry to proceed in that manner. I want us, because the request is more about limiting the interjections, especially those that would not necessarily relate to what has been raised with the witness, but there is no way that we will ask you to keep quiet and not say anything until you take the stand. So let me first make that point. The second point I want to make is, Dr Gondwe let me address you now, I have referred to an echo that was coming there in the PP and the legal team space where they are. I avoided mentioning any names even if I felt like I know this voice. It's important so that we don't get into any guesswork in that regard. So I kept on making the point that whoever that voice is, and I think you've just gone further and said the PP must, because you feel like it is the PP speaking. But I wouldn't want you to go to that level because there's a voice we're hearing – doesn't matter how similar the voice is – so that we stay on doing things proper. So I want you to refrain doing that.

Adv Bawa: Chair, as long as we’re on the same table that this is not part of my minutes?

Chairperson: You're not the Chair. The Chair is taking care of those. Thank you.

Adv Bawa: Mr Mataboge, the last question that I posed; I asked whether you were aware that Mr Seanego is an attorney.

Mr Mataboge: Not sure. I’m sure of that.

Adv Bawa: So in which context do you know Mr Seanego?

Mr Mataboge: I know Mr Seanego through our Legal Services. I don't know what context there is that Adv Bawa is referring to.

Adv Bawa: Mr Mataboge, have you prior to becoming employed at the PP’s Office, were you a practising attorney or advocate?

Mr Mataboge: No, I'm just a legal graduate. I'm not admitted.

Adv Bawa: Do you know the difference between an attorney and an advocate?

Mr Mataboge: I don't get the question. Do I know the difference between attorney and advocate?

Adv Bawa: Yes. Do you know what is the distinction between an attorney and an advocate?

Mr Mataboge: Yes, I know the difference. I think I know, yes.

Adv Bawa: And what is that?

Chairperson: Just repeat that. I didn’t get it, the last response.

Mr Mataboge: I was saying I know the difference Chairperson.

Adv Bawa: So would you know that an attorney wouldn't have an appellation SC?

Mr Mataboge: No, I wouldn't know that.

Adv Bawa: Okay. So this opinion that was obtained from Mr Seanego, this opinion was provided to you at which point Mr Mataboge?

Mr Mataboge: It was provided at the beginning of the Bosasa investigation through our Legal Services, not directly from Mr Seanego himself.

Adv Bawa: I don't have the reference to the email, but I will provide it to Adv Mpofu in the course of it. Are you aware that the opinion had been secured through Mr Seanego securing the services of Mr Ngobeni to write this opinion?

Mr Mataboge: No, that one I wouldn’t know.

Adv Bawa: Right. And to that effect, the PP had consulted with Mr Ngobeni in respect thereof?

Mr Mataboge: In my response Adv Bawa I would even ask who’s Adv Ngobeni. I may ask back the question even though I'm trying to say I don't know who he is clearly.

Adv Bawa: So the question I'm asking, you were not party to the consultation with Mr Ngobeni in the discussion of the provision of the Bosasa opinion?

Mr Mataboge: Not at all. I wouldn’t even point him out if I were to meet him.

Adv Bawa: Sorry, I didn't get that Mr Mataboge.

Mr Mataboge: I said, no, not at all. I would not even be able to point him out if I were to meet him Adv Bawa.

Adv Bawa: But I said Mr Ngobeni and you said Adv Ngobeni. So what makes you say Adv Ngobeni?

Mr Mataboge: But that’s what you said Adv Bawa, that's what you said.

Adv Mpofu: Chairperson, really, this is… If you still call this not cross-examination then…

Chairperson: No Adv Mpofu, let me immediately rule that's not cross-examination. She's asking a question. It’s not cross-examination. I want to rule on that. Let's proceed.

Adv Mpofu: Please. Can I speak please? Chairperson, that thing called cross-examination is made up of questions. Okay. It's just the type of questions. It's not whether it's a question or cross-examination, there's no such distinction. Cross-examination is by definition questions, but it's certain types of questions. So I don't know what you are trying to say. So I'm saying that what these questions that are being asked, as I agree with you, she's asking questions, but the manner in which she’s asking the questions is called cross-examination. Chairperson, this is important. This is very important. It's not your fault, as I said earlier, but you just have to allow me to make my point here. I'm saying what is happening now of interrogating the witness about some two letters, SC. SC just means Senior Counsel, and now we are into Ngobeni and this one and that one. That’s cross-examination whether you like it or not, and I'm just registering it, you can then make your ruling. Thank you Chair. Sorry.

Chairperson: Thank you Adv Mpofu. I accept that you have reached that point. I maintain that that's not cross-examination. There are a series of questions being asked and sometimes they are asked differently, and I want Adv Bawa to continue with her line of questioning.

Adv Bawa: Mr Mataboge, I asked you the last question. I called him Mr Ngobeni and you responded by saying Adv Ngobeni, and so I wanted to know what informed your calling him Adv Ngobeni?

Mr Mataboge: I did not say that Adv Bawa. You're the one who said Mr Seanego sourced the opinion from Adv Ngobeni. I didn't start by calling him Adv Ngobeni if the record would show.

Adv Bawa: Okay. We'll check the record if I heard your wrong. If I heard you wrong, Mr Mataboge, I apologise. So this opinion was obtained through your Legal Services and I just want to be sure that we're talking about the right opinion. And I'm just going to ask Tshepo to put it on the screen. It would be Bundle F. item 96. There’s one that's redacted, just take the redacted one and go to 2123.126. Right, you have to get up to the first page so that Mr Mataboge can identify whether that's the opinion he is referring to. Is this the opinion you referring to Mr Mataboge?

Mr Mataboge: Yes, that is correct Adv Bawa.

Adv Bawa: Right. I just want to, while we're on the subject so that we can save time later, I want to take you to page 126, it’s paragraph 3.23 that's where you were a second ago. Alright. And if you go down to 3.23, Mr Mataboge, we'll come to that, but there is a debate about how Section 2.3 of the Executive Ethics Code is to be phrased. We'll come to that in a moment. But just for now, we'll note that in the opinion at 3.231, the phraseology used is “deliberately or inadvertently mislead the President or the Premier or as the case may be the legislature.” Correct?

Mr Mataboge: Correct.

Adv Bawa: And then if we go to 3.4.8. It quotes the section. It's page 132. At the bottom it says, “Likewise, the South African Code states at Section 2.3 that Members may not deliberately or inadvertently mislead the President, or the Premier or as the case may be the legislature.” You see that?

Mr Mataboge: I see that yes.

Adv Bawa: Right. “But is silent as to the right to correct even inadvertent errors.” And then it adds, “It goes without saying that Ministers who knowingly mislead Parliament would be expected to resign when caught. However, inadvertent misrepresentations are likely to be treated more leniently.” Right? So now, if we can just go back to where we were, we've digressed into this opinion. I want to take you back to the report, which is at Bundle E and we're going to go to 246 onwards. Bundle E, number 7 I think it is. And for the most part Mr Mataboge, so you know where we’re going, I'm going to take you to aspects of the report, and then we will digress if there are other documents that relate to the same substance of the report. Right, so at paragraph 246 onwards, if we go to 4.4, this refers to the key sources of information that you would have had regard to for purposes of the preparation of the report. And we now in the SARS Unit report. Would you agree?

Mr Mataboge: Yes.

Adv Bawa: Right. And in that list of documents that you have, what is not listed there is the complaint from the anonymous complainant that came in during October. Is there a reason why that is omitted?

Mr Mataboge: That would have been inadvertent if it’s not. I see it’s not here. Because if you look at 4.4.1.2, there’s letters to the complainants. Not only one, it was including the other complainant as well, I believe. And the complaint from the other complainant, I believe it was an email. It was not a letter that would have come in as a complaint. So I think it was inadvertently not listed here as an email complaint.

Adv Bawa: Right. You would accept that the complaint should have been listed there?

Mr Mataboge: Yes, I agree.

Adv Bawa: What is also not listed there is the classified IGI report that had been prepared by the late Mr Radebe, would you agree with that? We can go into the whys again. Let’s just get the principle out of the way, that's not there.

Mr Mataboge: Yes, it’s not there, yes.

Adv Bawa: What is there from 4.4.1.5 downwards, Tshepo if you could just scroll it down, is the correspondence which ensued for the office of the IGI and the subpoena that had been issued to the Minister of State Security, correct?

Mr Mataboge: That's correct.

Adv Bawa: Right. Now, if we go to 4.4.1.29, you talk about further documents blurred and/or not listed due to the nature. What are you referring to here? And let me understand my phraseology correct for the record. I don't mean you personally. Me and you, Mr Mataboge, we accept that this is a report of the PP, correct?

Mr Mataboge: Yes.

Adv Bawa: Right. So I'm asking…

Mr Mataboge: Yes. I wanted to respond to that. There would have been information that relate to people's IDs and so forth, as well as things that we think were personal, then we would have to blur them and not show their personal information. And that's why I say it’s secured due to their nature.

Adv Bawa: Okay, so it's, for example, I think in the report there is equipment or things that are blurred in the report. That would be probably the documents that would be included in that. Would that be fair?

Mr Mataboge: Yes.

Adv Bawa: Right. Then you had copies of documents submitted by all the employees of SARS. If we go up again, “4.4.1.25 Copies of documents submitted by former employees of SARS (the intelligence unit).” Were those documents submitted directly to you?

Mr Mataboge: They would have been submitted to the investigation team.

Adv Bawa: They were submitted to the investigation team?

Mr Mataboge: Yes.

Adv Bawa: Okay. And how were they submitted?

Mr Mataboge: I’d have to check Adv Bawa because it would mean that they would have been brought here or emailed, because I remember some of them related to the equipment that related to the unit and so forth.

Adv Bawa: Did you have any meetings with former employees of SARS for purposes of the investigation?

Mr Mataboge: We would have had. Not with more of them, because I remember we had to get the information on the HR files. We had meetings with the current staff of SARS, not the former per se.

Adv Bawa: Right. So, if we go down, we're not talking about the members who were subpoenaed to appear which we see further down in the document – the notices that had been issued to the Minister, Mr Magashule. We don't see any meetings listed in the report with any specific people. Would you ordinarily list it if you had meetings?

Mr Mataboge: Not really, because if a person would have come to our reception and we got called to meet with him, it would not be a meeting to come and drop off documents for instance. And we would not have listed it here because it's not a formal meeting where we would have to keep the audio recordings of the meeting.

Adv Bawa: So for formal meetings you would have to keep the recordings?

Mr Mataboge: Yes.

Adv Bawa: Now in 4.4.2.1 you list the recordings relating to the operations of the intelligence unit. Were those recordings that you made or were those recordings that you got?

Mr Mataboge: No, these ones we got.

Adv Bawa: And where did you get them from?

Mr Mataboge: From the, like I said, we would have one or two former employees come in and give us information. And I wouldn’t want to say who brought them in particular. I don't remember but we had those recordings.

Adv Bawa: And what did you do to authenticate these recordings?

Mr Mataboge: We did not authenticate them. We did not do anything to authenticate them.

Adv Bawa: So you relied on these recordings that were brought into your office without any authentication?

Mr Mataboge: Yes, if that's what it means Adv Bawa, yes.

Adv Bawa: Right. Can I just, while we're on this page, I'm going to come to a… Can you just go back up? I saw something that I want to raise with him later, but we can just, while we're in the report it will save time, go to 4.4.1.21 just so that we can see. There is correspondence from SARS by Mr Mark Kingon dated 5 February 2019. If it's listed here, you would have had it. Is that correct, Mr Mataboge? Again, I mean you in the sense of the investigative unit and the PP.

Mr Mataboge: You mean what would have been listed here Adv Bawa? The recordings?

Adv Bawa: No, let me phrase it more broadly. Everything that is listed here is documentation or recordings or correspondence that you had in your possession as the PP.

Mr Mataboge: Correct. Yes.

Adv Bawa: And the investigation being conducted by Ms Mvuyana and by you as the Chief Investigator, you would also have had those in your possession?

Mr Mataboge: Yes, in the file.

Adv Bawa: Now, what you don't see here Mr Mataboge is any reference to an affidavit by Mr Lebelo.

Mr Mataboge: Yes, I don't see it either, yes.

Adv Bawa: Now was that an oversight or was that deliberate?

Mr Mataboge: I don't get it because we never had an affidavit and it was an affidavit from Mr Lebelo.

Adv Bawa: It was given to you. Can we go to page 6072? It will be the 190s. Bundle F. This is an email dated 7 December 2018 from Adv Mkhwebane to yourself and Ms Mogaladi. You see that?

Mr Mataboge: I'm looking at it. Yes.

Adv Bawa: And if you scroll down, there’s an attachment. And the attachment is a supplementary affidavit from Mr Lebelo before the Nugent inquiry. Have you not seen this before?

Mr Mataboge: I see it, yes. No, I haven't seen it. And I believe it's an oversight on my part because I look at it, unless I don't remember it, but I have not seen it.

Adv Bawa: Now, if we go, you will recall that there was a request to the PP Office, to the CEO, for documentation. And that documentation was provided and they are contained in Bundle 189. And listed in that document is the list of documentation that has been provided to the evidence leaders, at 189.45. I asked you yesterday, I mean, I asked you on whichever day it was, Tuesday, whether you had been involved in the compilation of putting together lists to the evidence leaders. Can you remind me what your answer was Mr Mataboge?

Mr Mataboge: Yes, my answer was that the investigator as well as the admin assistant were the ones involved in the compilation of the list. And my role was, when they said they were satisfied, I looked at it and submitted it through to the CEO’s office for transmission to the evidence leaders. Yes.

Adv Bawa: Right. Can we go to the last page of the document that 4984? That's 189.45, and it's the last page of that document. Number one says, “Notes on meeting with Mr Lebelo (SARS) dated 11 December 2018. Appears to relate to Pillay pension complaint and EFF complaint.” You see that Mr Mataboge? Does that ring a bell?

Mr Mataboge: It does a bit but now, I think here, there would be a problem with my memory because there were two files on the Mr Pillay’s appointment pension complaint, as well as the one relating to the unit. So when this affidavit is referred to, it would have been in the other file that is not the same as this one that relates to the unit.

Adv Bawa: You would be aware that the inquiry before Judge Nugent related to this matter and not the pension complaint?

Mr Mataboge: Yes, I would be aware.

Adv Bawa: And there was clearly an interview with Mr Lebelo dated 11 December 2018. Because there's notes of it.

Mr Mataboge: Yes, there would have been. Yes.

Adv Bawa: And do you think it would be fair to expect that that would have been referred to both in the report and in the Rule 53 record?

Mr Mataboge: It would have been fair, yes.

Adv Bawa: And in fact, at some point, do not recall Mr Lebelo’s affidavit at all?

Mr Mataboge: I'm trying Adv Bawa.

Adv Bawa: Okay. I'll give you an opportunity to maybe look over it overnight and see if you can then remember.

Mr Mataboge: Yes.

Adv Bawa: You will recall that during this process Minister Gordhan asked you to ask the PP for an opportunity to interview witnesses. You recall that?

Mr Mataboge: Yes, I think it was in a meeting with him, I think.

Adv Bawa: And he was informed that there were no witnesses.

Mr Mataboge: I wouldn't know that. I wouldn't remember that exactly.

Adv Bawa: Now, we also know, if we go back to the source documents of the opinion of the report, the SARS Unit report, there is no mention in respect of the Nugent inquiry report either.

Mr Mataboge: Yes.

Adv Bawa: Right. Does that mean you didn't have regard to the Nugent inquiry report?

Mr Mataboge: Yes, because we had a consideration of it, but it was not our source document as compared to the other report. Yes.

Adv Bawa: So what does it mean you had consideration of it?

Mr Mataboge: Well it means we knew of it. We knew what it related to but it was not the primary focus report for us.

Adv Bawa: What does a primary focus report mean? I'm not trying to be difficult Mataboge. I'm just trying to understand how you determine which reports to have regard to and which reports not to. So when you say it was not your primary focus, perhaps you can explain how that determination gets made or how the PP makes that determination?

Mr Mataboge: When we get evidence and we get to investigate, the source document that we rely on, it really is in the discretion of the PP as to what we use, and we may choose to use the KPMG report or Sikhakhane report as against the Nugent report for various reasons. For instance, the Nugent report was, in my view, it looked like it was a commission and its contents and recommendations were not like…they had no binding and effect and so forth. It was more of an opinion. But that is not the reason. I'm just answering as to why sometimes we would be taking another statement as compared to taking the other.

Adv Bawa: Okay, so one of the questions that had been posed to you, if Tshepo just goes up, on the Nugent inquiry, if we just go up. I can tell you which number it is, 3.10, “Information why Nugent report was not considered or dealt with.” The answer was, “No information. Verbal discussion with PP and investigation team.” What does that mean, no information?

Mr Mataboge: It means, because the question says, "Information why Nugent report was not considered”, and I'm saying no information. But I don't know who wrote that, because it looks like somebody wrote what I was saying. But no information means nothing was considered from the Nugent report, I think.

Adv Bawa: Okay. But we've now already established that at the very least you had the affidavit of Mr Lebelo from the Nugent inquiry before you. And then on this note it says, “Reason that the findings of the Nugent report were not binding and could not be relied on.” That accords with what you said to me earlier.

Mr Mataboge: Yeah, that's what I was getting at. Yes.

Adv Bawa: And if you had the Nugent report inquiry, and you had regard to it, would you have expected that it form part of the Rule 53 record?

Mr Mataboge: Yes, it would have.

Adv Bawa: And it's not part of the Rule 53 records. So how do you explain that Mr Mataboge?

Mr Mataboge: Can you repeat the question?

Adv Bawa: If we look at the Rule 53 record, and maybe to make it easier for you I'll tell Tshepo to go there. It's Bundle E, and it would be number 7 and it would be number 9. There was an initial Rule 53 record file and then a supplementary Rule 53 record filed. And if we go to the index of the Rule 53 record, which starts on page 6, and I'm saying to you Mr Mataboge, it follows largely your documentation as reflected in the report, and there is no reference to the Nugent Commission report, either there or in the supplementary index, which you'll find at page 1 080.

Mr Mataboge: Yes.

Adv Bawa: And I'm saying to you, should the Nugent Commission report, if you had regard to it, not have been included in the Rule 53 record?

Mr Mataboge: Yes, if we had regard to it. If we used it Adv Bawa, it would have been part of the Rule 53 report, but it was not used by the investigation team.

Adv Bawa: Did you consider it at all Mr Mataboge?

Mr Mataboge: No, we didn't consider it. We didn't consider it in the sense of us going through it and relying and reading and analysing it in that context. That is why it would not have been part of, because we put the document that we considered and even cited in our reports in the Rule 53 document.

Adv Bawa: I'm coming back to that, I just want to take you to the reference, it would be 5 935 just so that the Committee can see it. It’s the response, Minister Gordhan's response to the Section 7(9) notice on 21 June 2019. It would be the 190s. It would be one 190.1. Minister Gordhan said that he was entitled to question other witnesses determined by the PP we have appeared before in the course of her investigation in this matter. And he asked to exercise that right. Correct?

Mr Mataboge: Yes.

Adv Bawa: That would mean not only witnesses that appeared before the PP per se, but the witnesses who gave evidence to the investigator at the PP’s Office as well. Would you agree?

Mr Mataboge: Can you repeat the question because it's convoluted for me.

Adv Bawa: Okay, so the Minister comes and he says, “I want to have an opportunity to question witnesses.” Those witnesses would be witnesses from whom the PP obtained evidence that informed the Section 7(9) notice. Would you agree?

Mr Mataboge: Yes.

Adv Bawa: That would not be limited to witnesses who the PP personally interviewed. It would also include witnesses or members of the investigating team interviewed?

Mr Mataboge: Yes. I agree.

Adv Bawa: So if you interviewed Mr Lebelo on the 11 December, then Minister Gordhan should have been afforded an opportunity to question him as a matter of principle, would you agree?

Mr Mataboge: Yes, but if I may qualify that nobody was interviewed by Mr Gordhan, and consequently it was not only in respect of Mr Lebelo I think, if I recall well.

Adv Bawa: No, no. Wouldn’t Mr Gordhan have had a right to interview Mr Lebelo if the PP’s investigative team had interviewed Mr Lebelo?

Mr Mataboge: I think we need to refer to the section that relates to the subpoena as to who had brought evidence in terms of the subpoena to the PP may then be questioned by the respondent. I'm not sure about the applicable section there, it’s not everyone.

Adv Mpofu: Sorry Chairperson. Sorry Mr Mataboge. It’s Section 7(9), Chairperson.

Chairperson: Thank you for your assistance Adv Mpofu.

Adv Bawa: What is it you want to refer me to Mr Mataboge? Should I assist you by putting Section 7(9) on the screen?

Mr Mataboge: I'm looking at it. I have it in my office. I'm looking at it.

Adv Mpofu: Sorry, I don't have it in front of me but it's one of the Roman figures that relates to witnesses.

Adv Bawa: It's Section 7(9)(b)(ii) and it reads, “Such person or his or her legal representatives shall be entitled, through the PP, to question other witnesses determined by the PP who have appeared before the PP in terms of the section.”

Adv Mpofu: Yeah, thank you. It’s that one, yeah.

Mr Mataboge: So how I understand Adv Bawa, is that those people would have been the ones that also appeared before the PP under this Section 7(9).

Adv Bawa: Okay. So you're saying that the Minister is not afforded an opportunity to interview witnesses who implicates? It's only in the respect of people under 7(9) who comes before the PP, that Minister Gordhan would have been entitled to interview? Is that what you're saying?

Mr Mataboge: That's what I'm saying Adv Bawa.

Adv Bawa: So Mr Mataboge, neither the affidavit of Mr Lebelo nor the IGI report nor the Nugent report was included in the Rule 53 record. Do you agree?

Mr Mataboge: I do agree.

Adv Bawa: Now, if you then go to the meeting which then transpires with Mr Floyd Shivambu, you have not been able to find the recording of that meeting, correct?

Mr Mataboge: Yes, we have not been able to find it.

Adv Bawa: And there was no recording of that meeting of December?

Mr Mataboge: Excuse me Adv Bawa. You mean the one for December 2018?

Adv Bawa: December 2018.

Mr Mataboge: Yes, we weren’t able to get it.

Adv Bawa: Sorry Mr Mataboge, I mustn't do this because it's going to mess up the transcript. I must endeavour to speed up things and I'm talking across you. I apologise to do that. Let me ask this, this meeting of December 2018, you attended this meeting. Correct?

Mr Mataboge: Yes.

Adv Bawa: Right. There was no recording of this meeting that formed part of the Rule 53 record?

Mr Mataboge: Yes, it looks like there was no audio. I'm wondering, I can’t recall properly. I'm wondering if I had not been able to submit my notes because I normally keep notes for such meetings. Are you able to hear me?

Adv Bawa: I think your notes have been provided to us but I stand corrected. I'm not sure. Your notes are not very comprehensive Mr Mataboge. You know what you're writing and what you mean by it. But for the other party, I'm just checking on the recording. In the ordinary course this meeting should have been recorded, correct?

Mr Mataboge: Yes.

Adv Bawa: And the response that we’re given in the document which I took you to earlier, 189.45, it's written, “We are still searching for the recording as we do not recall if the meeting was recorded.”

Mr Mataboge: Correct Adv Bawa.

Adv Bawa: Now you were aware of the relevance, shall we call it the IGI report, in January already the January of 2019. Would that be so?

Mr Mataboge: Why would you call it that Adv Bawa? Why would I accept that it be called that?

Adv Bawa: No, it's the Inspector General of Intelligence report. Can we just for our purposes of interaction call a report that had been prepared by Mr Radebe the IGI report for purposes of the questions that I'm going to ask you?

Mr Mataboge: Okay, yes.

Adv Bawa: Okay. So let's just for ease do that. If you prefer calling it something else, we can. But I just, for the record purposes, let’s just stick to one name. And I'm saying to you, you were aware of the relevance of this report from January of 2019 already?

Mr Mataboge: Yes, I think because there were communications between the Inspector General and the PP on the investigation. Yes.

Adv Bawa: In fact, you were the author of this communication initially. I don't know if you were the author of all, but the initial communication you were the author?

Mr Mataboge: Which communication? Can you elaborate Adv Bawa?

Adv Bawa: Okay, let me take you to Bundle 190.2, page 6 208. This is an email you receive on the 4 January from Mr Sibusiso C. Nyembe. Do you see that?

Mr Mataboge: I see that. Yes.

Adv Bawa: And he tells you he is the newly recruited COS and he hopes to meet and greet you in person sometime the next week.

Mr Mataboge: Yes.

Adv Bawa: Right. And if we go down, he tells you that during December of 2018 the PP was informed or “received information that there’s in place a report that was issued by the Office of the IGI, dated 31 October 2014”, which I refer to as the IGI report for ease of convenience, “and signed by Ambassador Adv FD Radebe. The Office of Inspector General has jurisdiction to investigate matters relating to the State Security Agency (SSA) and its functioning.” You would accept that the SARS Unit and matters of the SSA are separate? Would you agree?

Mr Mataboge: Yes.

Adv Bawa: Right. “The report pertains the investigation that was undertaken following then media allegations relating the Special Operations Unit and/or other branches of the SSA. The information at PP’s disposal suggests the said report is relevant to the investigation currently underway regards Minister Gordhan.” And so I put it to you that you were made away in January already that this IGI report had relevance to the investigation. Do you agree with that?

Mr Mataboge: Yes.

Adv Bawa: Right. You were then asked to prepare a letter for the signature of the PP formally requesting the aforementioned report from the Office of the Inspector General and/or the SSA itself. That is why I suggested you authored this letter.

Mr Mataboge: Yes. I would have authored. I would have prepared the letters that would go through the normal channels for PP’s approval. Yes, I would have.

Adv Bawa: That's correct. Now I'm asking you, as at that date of 4th January, as far as you had knowledge, was this IGI report in the PP’s possession?

Mr Mataboge: No, I wouldn’t know and I don't think so because when we had an engagement with the Inspector General, the report had not been in the PP’s possession. Because we had a meeting, in one instance, with the PP with Dr Dintwe.

Adv Bawa: Mr Mataboge, I don't want to confuse you. So let me take this through chronologically. It's been a few years and so I want you to… We'll get to that meeting. Are you referring to the meeting of 31 January?

Mr Mataboge: Yes, according to my records here.

Adv Bawa: Did Adv Mpofu want to say something?

Adv Mpofu: Thank you. No, Chair, I wanted to just, I won't call it assisting but because I've also had this confusion in my head. There’s the issue of the so-called declassified IGI report, which is what the fight was all about. And then there's the other report which was allegedly anonymously dropped. So I'm just saying, if it will assist Adv Bawa, because I've also had that confusion many times. It's that when you just say, “the report”, I think there's the issue of whether it was the one that there was litigation over or threats of litigation over, namely the declassified report, or the one that was anonymously dropped. Thank you, Chair.

Adv Bawa: Thank you Adv Mpofu, but we now in January 2019. As far as I'm aware, the declassified report was only provided on the 9 November 2019. So I am, if it helps Mr Mataboge, I'm only referring to what is in existence in January 2019, which is a classified IGI report. And as Adv Mpofu has reminded you, it was the one that is been said to have been dropped anonymously at the PP Office. Alright. So I was asking you whether, as at the 4 January, the PP as far as you were aware had been in possession of the classified IGI report.

Mr Mataboge: No Adv Bawa. I was not aware at all.

Adv Bawa: Now, Adv Mpofu reminded us about this anonymous whistle-blower, whom we said dropped the report off at the PP’s Office. When did you become aware of this anonymous whistle-blower having dropped a report of the PP’s Office as the Chief Investigator dealing with this matter?

Mr Mataboge: I think when there was a meeting or interaction between the Office of the Inspector General as well as the Minister for SSA. That is when the conversations went as far as that. That’s when I became aware.

Adv Bawa: I want to take you to a document called… Do you want me to continue? I’m happy to continue. I'm not the Chair. I'm just going onto a section which is a discrete section.

Chairperson: Okay, no it’s fine if you want to pause.

[Break]

The Chairperson resumed the meeting with Adv Bawa. As he had indicated, she now needed to conclude, taking into account her time eaten away. She would take the Committee to 15h15/15h30 and then she would have to pause there.

Adv Bawa: Mr Mataboge, I just want to close off on two issues that I dealt with before the lunch adjournment. If I take you to 185.45 which is at 4979 of the bundle, being the information that the Office had provided me. I want to draw your attention to1.2. We saw, “Information regarding EMs and their input into reports and Section 7(9) notices relating to Pillay’s pension, the Executive Members Ethics Act 82 of 1998 (EMEA) complaint and the Rogue Unit report.” And in response we got was, “Emails and drafts provided in terms of which Mr Mataboge and Ms Mvuyana corresponded regarding inputs on the drafts (including PP’s inputs). Does not appear anything from EMs.” That's the one that I want to take you to. The second thing I want to take you to is at 2.1, which confirms what you have said to us. The “Name of the EM who at time supervised investigation and attended to quality assurance.” You had testified that there wasn't any. And then on the third category which relates to the SARS Unit reports, if I take you to 3.9, you will see that they tell us, “Memo trails and emails in Gordhan investigations on draft report/s and Section 7(9)”, and none of the documentation provided to us emanates from an EM or CEO commenting on the Section 7(9) notice and reports. I understand you said you've got something, but on the information that's been provided in the document which you had settled, there is nothing provided to us on that notice. Do you see that Mr Mataboge?

Mr Mataboge: I see that, but Adv Bawa I'm seeing this document for the first time though. But I see what he's saying there and where I disagreed with it, I'll have to go to my memos and my emails and resend.

Adv Bawa: Mr Mataboge. Just to take you to the top of this document. I don't understand how you are you telling me you're seeing this document for the first time, when earlier on you had said to me it had been compiled by the investigator, you had approved it, and then it was sent to us?

Adv Bawa: I'm saying that the document, even the heading at the top there, is not the heading that comes from our side from our office. That’s why I’m saying I’m seeing it; it doesn't look familiar to me, in short.

Adv Bawa: So in other words, Mr Mataboge, you did not, contrary to what you said to me this morning, provide input into the answers that was provided to us following the question sought?

Mr Mataboge: No, I did. I'm talking about the document itself. I did Adv Bawa. I’m talking about the look of the document, as I identify it now.

Adv Bawa: Okay, so do you know who compiled this document?

Mr Mataboge: I wouldn't know. I'll have to check. Because we normally send the document based on the Rule 53. But whoever compiled this, I’ll have to find out from the Office. Because I even thought that it may have been compiled by evidence leaders having been in an interview with me. But now, what you're saying looks like the document comes from the PPSA.

Adv Bawa: It does come from the PPSA. We addressed the letter to the CEO and this was the response we got.

Mr Mataboge: Yes, Adv Bawa.

Adv Bawa: You will recall, Mr Mataboge, and the other thing, the second thing I wanted to clarify with you, and I might have just misled you and that's why I want to take you back to it, is in the report when we were talking about the source documents at 4.4 of the report. If I take you to page 248 of the report. Right, at 4421. This recording, when we talk about an intelligence unit, are you referring to the SARS Intelligence Unit or are you talking to the SSA Intelligence Unit?

Mr Mataboge: It’s the one that related to the SARS. It’s not the SSA one.

Adv Bawa: So, just so that I can clear up because I didn't want to confuse it with the recording of the meeting of 31 January and so that's why I'm checking with you whether this was recordings that you obtained elsewhere?

Mr Mataboge: No, it was not for the meeting of the 31st.

Adv Bawa: Okay. Thank you. So if we go back, and where I left off just before the lunch adjournment, you will be aware that there was an article published in Noseweek.

Mr Mataboge: Yes. I was aware.

Adv Bawa: Right. The IGI report. And Mr Shivambu provided Ms Mvuyana with a copy of the Noseweek article?

Mr Mataboge: Yes.

Adv Bawa: On the 24 January 2019. Did she provide you with a copy of thereof?

Mr Mataboge: Yes.

Adv Bawa: And, in fact, the PP also shared it with you in an email a few months later. Do you recall that?

Mr Mataboge: Yes.

Adv Bawa: Right. Now, at the time when you got this Noseweek article, did you have the classified IGI report?

Mr Mataboge: I never had the classified or unclassified IGI report and I never had sight of it as I said to you when I consulted with you and Adv Mayosi. I had never had sight of it.

Adv Bawa: Now if one has regard to the Noseweek article, and if we can just put it on the screen, it’s 4 357. Go down. This is the article you obtained?

Mr Mataboge: Yes.

Adv Bawa: Right. And the Noseweek article, if you go down Tshepo, it refers in the article, just stop at the first page; it refers to an article in it in the third paragraph. It refers to a 62-page report that had remained classified secret. And it says that Noseweek is finally able to reveal its contents. You see that?

Mr Mataboge: I see that, yes.

Adv Bawa: Right. And it then refers, if you go up, in the third paragraph, it refers to Mr Adrian Lackay, who in 2015, SARS former spokesperson, he had resigned. Right. And then he had “put out a statement through the DA revealing the opening portion of the testimony of the controversial unit’s leader Johann van Loggerenberg to the secret investigation.” And he tells you, “Van Loggerenbeg, said Lackay, had presented 34 related instances to Inspector General Radebe, and identified over 60 individuals who he believed should be interviewed. He provided the IGI with multiple data and evidence, including a memory stick containing whatever information and data was in his possession.” Do you see that?

Mr Mataboge: I'm looking at it Adv Bawa. But why are you saying he tells me? He didn't. Why are you saying, “He tells you”?

Adv Bawa: The article tells you this. You have in your possession this article?

Mr Mataboge: Yes, I do.

Adv Bawa: This newspaper article tells you this. I'm not talking about the accuracy or the veracity of the article. There is an article that tells you here is a person who's got this information that he had provided to the Inspector General in respect of the subject matter of your investigation. Do you see that?

Mr Mataboge: Yes, I'm looking at it but I still deny the fact that you seem to suggest that Mr Lackay was telling me or telling us as investigators.

Adv Bawa: No, no, no. Sorry, the reading of the article. Sorry, let me get it right. You got this article? When you get this article, do you read this article Mr Mataboge?

Mr Mataboge: No, I didn't read it.

Adv Bawa: Why do you not read it?

Mr Mataboge: Like I was saying Adv Bawa, when I investigate, I want to focus. I don't consider many things that I would consider distractions, especially during an investigation where at the end of the day it might be driven towards a particular direction. I remember Ms Mvuyana saying she had read it. I did not look at it so much in detail or even considered it as much personally.

Chairperson: So Adv Bawa, you're referring to the reader of the article, not to Mr Mataboge?

Adv Bawa: That's right. Mr Mataboge, when the PP passes information on to you, do you read it?

Mr Mataboge: Yes. If it’s coming from PP, I do read it. Yes.

Adv Bawa: Right. So let me take you to 190.1, page 5 889. You see there on the 27 April the PP provides you with the Noseweek article?

Mr Mataboge: Yes, I see it Adv Bawa.

Adv Bawa: Did you read it Mr Mataboge?

Mr Mataboge: Not so much in detail. I read it and glanced it over and then put it in the file and left it to Ms Mvuyana. Yes.

Adv Bawa: So as part of this investigation between yourself, the PP and the other investigator, you had a Noseweek article that told you that the head of this alleged SARS Unit had all this information in his position. Would that be fair?

Mr Mataboge: Yes.

Adv Bawa: 15:24

Right. Let's go back to this article. We can put it as if you had read this article, you would reasonably have known this information, correct?

Mr Mataboge: Yes.

Adv Bawa: In fact, this article tells you that Mr van Loggerenberg is identified as the head of this alleged illegal intelligence unit. Did you know that Mr Mataboge?

Mr Mataboge: No, I didn't know that.

Adv Bawa: You conducted this investigation into this alleged intelligence unit and you didn't know that Mr van Loggerenberg was said to be the head of this unit?

Mr Mataboge: I thought you meant did I know it in respect of this article, the way that it is read. Not in the context of him being part of the investigation, being the head.

Adv Bawa: So you knew it otherwise, but you didn't know it in the context of this article?

Mr Mataboge: Yes.

Adv Bawa: If you then go to page 15 of this article, you will find going down there is a list of what is regarded as some of, in the second column, some of the Inspector General's more notable findings in the secret report. But you wouldn't have known this because you didn't read this article. Is that true?

Mr Mataboge: Yes. Even now I'm seeing it for the first time. Yes.

Adv Bawa: And the article then further goes on in the last column, “It is clear that the source for the Inspector General's report is a document circulated years ago by a controversial former member of the Coronavirus disease (COVID) SARS Unit named Michael Peega.” Do you know that name Mr Mataboge?

Mr Mataboge: Yes.

Adv Bawa: How do you know that name?

Mr Mataboge: Because it was mentioned to us at some point by the PP as the people that we needed to interview.

Adv Bawa: And did you interview him?

Mr Mataboge: No, I could not get hold of him Adv Bawa.

Adv Bawa: Did you interview anybody who belonged to this unit?

Mr Mataboge: We tried. As well there was one name that also was mentioned, a sort of a Russian name that was given, and we tried to trace him as well. I think its Bioski or Bigoski or something to that effect.

Adv Bawa: So did you interview anybody that belonged or is alleged to have been a member of this unit? Yes, no, maybe?

Mr Mataboge: No, no, no I don't think so.

Adv Bawa: Okay. The article also tells you, if you go down, you would have also known if you read this article, that Mr Pillay and Mr van Loggerenberg was facing criminal charges. Did you know that Mr Mataboge?

Mr Mataboge: No, I would not know that except when I once saw in the news reporting at the time on television or so.

Adv Bawa: So you didn't know that they were facing criminal charges?

Mr Mataboge: Yes. Until I saw it on the news coverage.

Adv Bawa: Were you the Chief Investigator in respect of the Pillay pension case as well?

Mr Mataboge: Yes, I was.

Adv Bawa: And Mr Pillay was interviewed during that period and he provided a statement, did he not?

Mr Mataboge: Yes, he was for the pension fund matter. Yes.

Adv Bawa: And would you have applied your mind and read the statement that Mr Pillay had provided?

Mr Mataboge: Naturally yes, we would have had to apply our minds to that.

Adv Bawa: I cannot put it up on the screen. I'm going to ask if it can be WhatsApped to you and to the PP’s team, and I'll tell you now why. Because attached to the affidavit of Mr Pillay is a copy of the criminal complaint against inter alia Mr van Loggerenberg and Mr Pillay, and on the front page of the criminal complaint are the addresses at which Mr Pillay and Mr van Loggerenberg could be found. And it was provided to you during the interview which Mr Pillay had on the 24 March 2019. So, you were in possession of the criminal charges against Mr Pillay and Mr van Loggerenberg because it had been given to you by Mr Pillay. Do you dispute that Mr Mataboge?

Mr Mataboge: I don't. Let them let me see the document and I don't dispute it if it was given to us like that. I don't dispute it.

Adv Bawa: It's for the sake of completion I'm going to give. It's part of the record in the case number 360992081, it’s part of the Rule 53 record, it’s part of the annexures provided in court action. But I don't want to waste my time taking you to that. Did the PP ever ask you to get hold of Johann van Loggerenberg?

Mr Mataboge: Yes, she did.

Adv Bawa: And what did you do to get hold of him?

Mr Mataboge: When she said we must try and locate him at court, we wanted to invoke the subpoena that had been returned and ask the messenger to try and serve him, but that did not happen.

Adv Bawa: Right. I'm going to come to it in a moment as to what transpired with the messenger. Okay, before we come to the messenger, you have this meeting on 31 January with the IGI Inspector and that, if you go to 5 796, you prepare the questions for the PP for that meeting, correct?

Mr Mataboge: Yes, Adv Bawa.

Adv Bawa: And initially it's anticipated that the meeting would be attended by both the Minister of State Security and the IGI. But the Minister of State Security then postpones, do you recall that?

Mr Mataboge: Yes, that's correct. Yes.

Adv Bawa: And you identify in that document, if you scroll down, that the purpose of the meeting was to request the Minister and the IGI to produce a copy of the report?

Mr Mataboge: Yes.

Adv Bawa: Right. And you prepared this without knowing anything further about the report? Correct?

Mr Mataboge: Yes, correct.

Adv Bawa: Because you would not have read it. You know nothing about it but what he has told you. Is that what I understand?

Mr Mataboge: That is correct.

Adv Bawa: And then you go to paragraph three of your note, 5.3. It says there, "I have been reliably informed that your office conducted an investigation.” Right. What do you base that reliably informed on?

Mr Mataboge: I'm the preparer of the document. But this is the questions prepared for the PP. I would say the PP would be able to answer that.

Adv Bawa: Okay, so you didn't write this?

Mr Mataboge: I write the questions for the PP to then approve and go through. But when the narrative is, if I say “I”, I am not the “I”, the “I” is the executive authority, which is the PP.

Adv Bawa: I'm aware of that, Mr Mataboge. But we've seen several of this, where the investigators prepare the questions for the PP in advance of a meeting, and they write the document as if they are writing it for the PP. Is that not what you're doing, Mr Mataboge?

Mr Mataboge: That is correct. That’s what I'm saying, to say I would not have been the “I” in that question or that preparatory document.

Adv Bawa: You are not the “I” but you are writing “I”.

Mr Mataboge: Come again?

Adv Bawa: You are writing this for the PP.

Mr Mataboge: Because thump is the one that goes through it when she addresses meetings, not myself.

Adv Bawa: Now, Mr Mataboge, sorry just stop for a moment. Let me phrase the question properly.

Chairperson: Just to ask, you are talking cross purposes. Maybe you need to patient to allow him to finish before you come in.

Adv Bawa: Mr Mataboge, I apologise. I'm trying to correct you in saying you write this for the PP, she is the “I”. But at the time you write that, you are of the view that she had been reliably informed. How do you know she had been reliably informed?

Mr Mataboge: I believe I would have consulted with PP before we prepared this thing, this document for the meeting. I would have had an engagement or an audience with her. I would not just write like that from my own thinking and volition.

Adv Bawa: Right. So now we go to 5803. This is the letter that is received in response to the two previous letters that was written on the 8th and the 14th. Right, you see that?

Mr Mataboge: I'm looking at it. Yes.

Adv Bawa: What they confirm is that the Inspector General's Office conducted an investigation into media allegations against the Special Operations Unit and other branches of the SSA in 2014. Would you agree that they are not confirming anything to do with SARS?

Mr Mataboge: I'm not sure. I would not comment on that.

Adv Bawa: Mr Mataboge, can you read paragraph two and tell me whether paragraph two relates to SARS at all? Or the Rogue Unit or anything related to SARS?

Mr Mataboge: I’m reading quietly, yes. I've read it.

Adv Bawa: Does that relate to SARS or the Rogue Unit at all?

Mr Mataboge: No, it talks about SSA, no SARS here.

Adv Bawa: Right. And then it goes down into paragraph three. It tells you in paragraph three who requested the report, and it further tells you, if you go down, that the import of it “is at the Minister of State Security, as the tasking authority is the lawful custodian of the report and the authority on its disclosure.” Do you see that?

Mr Mataboge: Yes, I do.

Adv Bawa: Right. If I go back up, just so that we’re very clear, you will agree that there's nothing about SARS in this letter?

Mr Mataboge: Yes, there isn't.

Adv Bawa: Right. You are then on the very next day, if we go to 5 805, there's an instruction given to subpoena the report from both the Minister and also the office of the IGI. Do you see that?

Mr Mataboge: Yes, I do.

Adv Bawa: And that is an instruction which comes from Mr Kabinde.

Mr Mataboge: Yes.

Adv Bawa: He would be giving that instruction on behalf, he's the personal assistant, he would be doing that on behalf of the PP, correct?

Mr Mataboge: That is correct.

Adv Bawa: Did you check the law at any stage as to whether the IGI is in a position to actually provide such a report? Before, did you advise the PP about this at all?

Mr Mataboge: I would have checked the law.

Adv Bawa: And what would your conclusions have been on the law?

Mr Mataboge: I believe the report would have been given in a redacted form according to the law.

Adv Bawa: No, no. Would the possessor of the report have been the Office of the IGI, who could lawfully provide the report to you or the Minister of SSA?

Mr Mataboge: No, it would have been the Minister.

Adv Bawa: Right. But nonetheless a subpoena without the IGI?

Mr Mataboge: Yes. It went to both the Minister as well as the IGI.

Adv Bawa: Now you’re present at this meeting on 31 January. Correct?

Mr Mataboge: Yes, I was Adv Bawa.

Adv Bawa: And there were, I think Ms Mogaladi is there and the PP is there.

Mr Mataboge: Yes.

Adv Bawa: And it is during this meeting that the PP informs the IGI about a classified report having been dropped at the PP’s reception? Correct?

Mr Mataboge: Yes, I think I remember that.

Adv Bawa: Right. Did you see the report in this meeting at all?

Mr Mataboge: Not at all. Because in that meeting, there were no reports exchanged on the day of the meeting. There were no documents exchanged Adv Bawa.

Adv Bawa: And so the PP didn't take out the report and give it or show it to the Inspector General or to Adv Govender at all in your presence?

Mr Mataboge: No, I don't remember. Yes, not in my presence.

Adv Bawa: And were you taken aback that you had not been taken into the PP’s confidence that she had this report that had been dropped off at the Office and which she was now telling the IGI about?

Mr Mataboge: I was not being taken aback because at my level I'm not the Executive Authority, I’m the subordinate to the PP.

Adv Bawa: Okay, but you're the Chief Investigator in this matter.

Mr Mataboge: Yes, I am.

Adv Bawa: Right. Then at 5 810 there is subsequently a meeting with the Minister of State Security. Were you present at this meeting? It took place on the 15 February.

Mr Mataboge: Yes, I was Adv Bawa.

Adv Bawa: And then there's a letter at 5810 of the documents. Now, it is so and I don't think it's an issue that the PP at this meeting tells the Minister that she's in possession of a copy of this report as she had done on 31 January. Do you recall that?

Mr Mataboge: I don't recall that.

Adv Bawa: Okay, let me go down in the letter. Okay, do you recall seeing this letter of 20 February 2019?

Mr Mataboge: Yes, I do.

Adv Bawa: Right. Now, that meeting with the Minister of State Security, would it have been recorded?

Mr Mataboge: Yes, it would have been recorded Adv Bawa.

Adv Bawa: And if it was recorded, should it have been part of the Rule 53 record?

Mr Mataboge: It should have been but, because sometimes the recordings are kept by the personal assistant (PA) in the PP Office, I would have had to check with Mr Kabinde for him to avail it to us because it was a meeting between the Executive Authority and the PP. But it should have been, as you correctly say, yes.

Adv Bawa: Mr Mataboge, that would have had to been checked before submitting a Rule 53 record. Correct?

Mr Mataboge: Yes.

Adv Bawa: And you knew that this meeting took place because you were in it?

Mr Mataboge: Yes.

Adv Bawa: Right. And now if you go into this letter, at paragraph three…

Adv Mpofu: Sorry Adv Bawa. Maybe I was not paying attention. Just making sure, was that last proposition was that Mr Mataboge was part of the meeting between the PP and the Minister? Is that what?

Adv Bawa: That's what I asked and he said yes. Do you have different instructions Adv Mpofu?

Adv Mpofu: Yes, I do. But your question was not clear. I think that's fine. Alright. I wanted just to check if that was indeed your question.

Adv Bawa: It was. I’ll ask him again, because I also didn’t understand him to be there.

Adv Mpofu: But then it's your duty as the evidence leader, if you don't understand him to be there, to clarify that. Not to just leave answer.

Adv Bawa: No, no, hold on. Adv Mpofu, I'm about to do that. Just I don't have any information.

Adv Mpofu: When were you going to do it if I didn’t raise it?

Adv Bawa: No, hold on Adv Mpofu. I'm going to the letter to do this. Just hold on a sec. I don't have any documentation or information or a recording or a minute of this meeting as to who was there or not. Mr Mataboge let’s go to this letter.

Adv Mpofu: I'm sorry, I'm sorry. I'm really sorry Adv Bawa. Chair, I really want to raise this issue very sharply. Adv Bawa is an evidence leader, not a prosecutor. So if she says her own understanding was that the witness was not in the meeting and she says the witness answered yes, he was there, her duty to the Committee is then to clarify that – not to want to take advantage of what might be the wrong answer, or maybe the wrong question even, you know, because that's the kind of thing that's done by someone who's pursuing a particular agenda.

Chairperson: Okay, thank you Adv Mpofu. You placed your issue.

Adv Bawa: Chair, my understanding is that it could be wrong, the witness could be right, because I get my understanding from interviews with other witnesses that we have who says they were not in the meeting but they think he was there. Who's going to know better whether he was there or not? I was going to ask him to look at the first paragraph, which I took him back up, and then I'm going to pose the question again to be sure. Adv Mpofu is a bit too quick. I was going to paragraph three and I took him back to paragraph one. So can we just go to paragraph one?

Chairperson: Okay, let's proceed.

Adv Bawa: So Mr Mataboge, I was referring in paragraph one, which is where I was taking you back to, that this was a “meeting between the PPSA and the Minister of State Security, Ms Letsatsi-Duba, concerning the report of the IGI into allegations against the Special Operations Unit and/or other branches of the SSA dated 31 October 2014” and it took place on 15 February 2019. This is the meeting I am referring to. Were you at this meeting?

Mr Mataboge: Yes. I'm no longer sure Adv Bawa, because I keep notes. I'll have to go back to my diary for that year and for that date. That would really tell me, because most of the meetings that relate to the investigations as a Chief Investigator I am always there, but I'm no longer sure with this one. I'll have to verify it.

Adv Bawa: Okay, so we'll add that to the list.

Mr Mataboge: Yes, I'm going through my notes as we speak even.

Adv Bawa: Right. Now the letter says, and this is where I took you earlier on and you were not sure about this, “The Minister confirms that during the meeting, the PPSA informed her that a copy of the Secret Report was purportedly delivered to their offices by unidentified person(s), which is therefore patently unlawful. It must be emphasised that the PPSA had not brought the unlawful disclosure of the classified information to the attention of the relevant authorities in compliance with the Protection of Information Act, 1982 (Act 84 of 1982).” Do you see that?

Mr Mataboge: Yes, I'm looking at it Adv Bawa.

Adv Bawa: And then it goes to paragraph three of the letter, which is where I was initially wanting to take you. “It must be emphasised that the former Minister of State Security, Mr D Mahlobo, requested the former IGI, Adv F Radebe, to conduct an investigation into media allegations levelled against the Special Operations Unit and/or other branches of the SSA on 26 August 2014 pursuant to media articles published in the City Press on 10 August 2014.” And then it says, “The IGI does not have a legal mandate to investigate the SARS in terms of the Intelligence Services Oversight Act, 1994 (act 40 of 1994) and SARS-related activities could therefore not have been commissioned by the former Minister of State Security.” Do you see that?

Mr Mataboge: Yes, I see it.

Adv Bawa: During your investigation did you check this legislation?

Mr Mataboge: Yes, I thought we did. But maybe at a later stage, not at the beginning when we were getting responses.

Adv Bawa: Okay. Do you agree with that as a matter of law, that IGI can't investigate SARS?

Mr Mataboge: As a matter of law, yes.

Adv Bawa: Okay. In paragraph four it then sets out the law and I don't want to waste time taking you through that. Go down. Okay. And the essence of this letter, if we go to it, is that the Minister then says that she she's not giving the PP the report and she's then says to the Acting Director-General of the SSA “to urgently conduct an investigation into the unlawful disclosure of the classified information.” And I just, in the last sentence, “The PPSA is requested to cooperate with the investigation to be initiated.” Go further down, I want to read paragraph 11. In this letter it says in the last sentence, “the Rules do not specify the security measures to be employed by the PPSA and what would constitute reasonable steps to safeguard confidentiality. In the absence thereof, it is advised that the PPSA employ the following security measures.”Go down. “11.1 the report must be handled in accordance with the standards prescribed in the MISS at all times; 11.2 the report as well as any copies thereof must be surrendered to the Minister within three days of the date hereof; 11.3 its contents must not be disclosed to unauthorised natural or juristic persons; 11.4 the identities of all persons who had access to or sight of the report at the Office of the PPSA must be furnished to the Acting Director-General of the SSA within five days of the date hereof.” You are aware of this letter at the time it came, correct?

Mr Mataboge: Yes, I was.

Adv Bawa: Right and Mr Nemasisi was at that stage the Senior Legal Advisor. Correct?

Mr Mataboge: Yes. Correct.

Adv Bawa: And you were asked to assist in the preparation of a response. Do you recall that?

Mr Mataboge: I don't recall that exactly.

Adv Bawa: Let me take you to 5 808 of the bundle. Go down to the bottom. On the 20 February, there's an email to the Chief of Staff (COS), yourself, Mr Nemasisi, Ms Mogaladi, and Ms Baloyi, and Mr Sithole. And it says, “Legal Services can you get the legal opinion from SC about this matter. They now blame PPSA for not reporting receipt of the report and violating the Protection of Information Act.” It says, "Prepare a response to Minister and inform her that she is not assisting at all in performance of my mandate. I subpoenaed the report and we agreed at the meeting that she will send the declassified report and now come with such threats? The letter is also contradictory, they say we must return the report and on the other hand advise how to store the report? All officials who had access to the report have top secret security clearance,” and then the PP says, “(Rodney, COS, PA and myself).” She asked, “Pona you have top secret security clearance right?” And then, "Mention Section 5(3) of the PP Act, immunity provision. I disclosed that we have the report instead of only informing that Noseweek published the report.” Go down. Right. Now in this email the PP says, “All officials who had access to the report,” and you’re included in that list. What is your comment on that Mr Mataboge?

Mr Mataboge: I still maintain, Adv Bawa, that I didn't see that report. I don't know what it looks like, even now.

Adv Bawa: Okay, go up on the email.There then a question from the PP, “Rodney who else had sight of the report? Did Njabulo see the report?” Who’s Njabulo?

Mr Mataboge: Njabulo was an investigator under my supervision. Njabulo, yes.

Adv Bawa: It also says, “Also did Pona see the report?”That's Ms Mogaladi.

Mr Mataboge: Yes, that would be her.

Adv Bawa: Right. There’s a response to this email, “Afternoon PP. No madam he didn't see the report, even Ms Mogaladi I am not sure if she did. Subsequent to it being given to me by Mr Kabinde a few days after the meeting, I put it in the safe.” Now what did you say you were putting in the safe Mr Mataboge?

Mr Mataboge: Now I need to check what report was referred to really here.

Adv Bawa: Mr Mataboge, whether I'm asking you a question or whether…

Mr Mataboge: No, let me finish because all along, even now, there’s a conviction that I did not see the report. But now that this is appearing like this Adv Bawa, I need to really check what report it was. Because I've been maintaining and I still maintain that. So unless I forgot what the report looks like with the passage of time, but what these emails are showing and saying, they indicate that I did see the report. Yes.

Adv Bawa: In the ordinary course, Mr Mataboge, we are talking about classified report that ordinary people wouldn't have ordinary access to it. And I have asked you on several occasions during this, did you have access to this report? And it has import Mr Mataboge because it filters into the SARS Unit report that is then issued and which is subject to review by the courts. And so I'm asking you to be very careful and to think about this and to tell the Committee whether you had this report or not.

Mr Mataboge: Now that it is appearing like this, it means I had to the report myself Adv Bawa. Because that’s why I thought that I tried to remember what it looked like really, and for me to be able to say I did see the report, but it doesn't come to my visual memory.

Adv Bawa: Mr Mataboge, I can show you what the report looks like. But I'm suggesting that you did have the report because that's what the email says.

Mr Mataboge: Yes, then I agree. I mean, this is clear now that I did have sight of the report because these emails, thread of emails, confirm that. Yes.

Adv Bawa: Right. Now, you're the Chief Investigator, there's a classified report that is provided to you by the PA of the PP. Would it be reasonable for this Committee to assume that you actually looked at this report?

Mr Mataboge: Yes, I would have.

Adv Bawa: Let me then take you to page 5 821. Actually, maybe go to 5 821. Right. Go down to the bottom. Mr Nemasisi provides on the 20 February a draft letter for the PP’s consideration. Do you see that?

Mr Mataboge: Yes, I've read it.

Adv Bawa: Okay, go up. And the PP then responds and you’re included in this mail. And she says, off the drop off, she comments on paragraph three and she says, “The allegations that I did not brought the unlawful disclosure of the classified information to the attention of the relevant authorities is incorrect, the subpoena and discussion during our meeting was to bring the matter to your attention and you said you will investigative how the report leaked.” And then she says, “as I was still awaiting a copy of the report from the Minister to verify the authenticity of the report brought to my attention.” And she tells him to delete that paragraph, do you see that?

Mr Mataboge: I see that, yes.

Adv Bawa: And then in paragraph 6.4, “The following members of my office had access or sight of the report in question and all of them have a valid op secret security clearance certificate.” And she tells him to delete those names. You see that?

Mr Mataboge: I see that. This way now, I see it.

Adv Bawa: Your name is at 6.4.4. And then she says, “I do not want to meet with her request the declassified report by 25 February. 19 April is too far?” So these are amendments being made to the letter which Mr Nemasisi drafted. You see that?

Mr Mataboge: I see it. I’m looking at it Adv Bawa. My comment would be that it confuses more now if my name is being deleted and I was not sure if I'd seen or not seen the report. So it confuses me further.

Adv Bawa: No, no, no, this is a deletion on the letter which the PP presumably does not want to disclose to the Minister of State Security. This is the letter that Mr Nemasisi drafts, if you go down at the bottom, so it's not the deletion that you haven't seen. It is the deletion to a draft letter that is in circulation at the moment.

Adv Mpofu: Chairperson. I just wanted to know what is the source of that evidence now, as to who the deletion was. I was just saying that I've been following up to now, and I think the witness has pointed out to the fact that his name was supposed to be deleted. And I don't know by who or for what, but Adv Bawa seems to know. So I wanted just to know, what is the source of the information about who was deleting what, for what reason, and all that? Because we just see the word delete there. I'm sorry Chair, maybe I'm wrong. She seems to be suggesting who was deleting what and for what reason. Maybe I'm wrong.

Adv Bawa: Okay, sorry Adv Mpofu. Adv Mpofu, after this I'll give you the references to it. But I am jumping ahead because of time, and so I'm cutting out. Let me just put it back on the screen, Tshepo. At 19:51 Mr Nemasisi provides a draft letter for consideration. Then there is a response from the PP to this letter. And what I didn't take you to is the letter itself, which I will. If you don't have it Adv Mpofu, you will then see from the draft letter it contains these paragraphs and this is an instruction on the letter to do that. Adv Mpofu, I’ll clarify with you but I'm moving off this now. So the source is the actual draft letter that contains these paragraphs that's been amended.

Adv Mpofu: Okay. Thank you Chair. I'm happy with that.

Adv Bawa: Right. There is also then, I think, just go to 5819. There is the draft letter that is provided, and if you go down… No it's not that one. Sorry, I’ll have to just find the actual reference. My apologies Adv Mpofu, I thought I'd be able to do that. Are you aware of what transpires after that in response to the letter Mr Mataboge?

Mr Mataboge: No, I'm not aware Adv Bawa.

Adv Bawa: You're not included in several emails after that. So I don't want to take you through those things that you may not have knowledge about. There is then a legal opinion received. Are you provided with a copy of that opinion?

Mr Mataboge: If I were to know which one Adv Bawa, because I’m not sure.

Adv Bawa: It was an opinion emanating from whether the Minister of State Security could do, could say to the PP, what was said in the letter of the 20 February.

Mr Mataboge: If I may have sight of it to refresh my memory. I'm not sure.

Adv Bawa: Okay. Let me just take you there. It’s Bundle F, it's item number 96 redacted. And it would be 2123.173. It says, “Dispute with SSA over secret document.” That was the heading of the opinion. Does that ring a bell?

Mr Mataboge: I’m not sure Adv Bawa.

Adv Bawa: Okay. If I then take you back. What emanated after this was a drafting of papers against the Minister of Safety and Security. You were involved in that?

Mr Mataboge: No, I don't think I was. It would be Legal Services there.

Adv Bawa: Okay. Were you involved in the drafting of a statement to open up a case against the Minister and the IGI for refusing to avail the report? Just go to 5832.

Adv Mpofu: Chair, can I take advantage of this pause to ask for that reference of the opinion?

Chairperson: Go ahead. Yes.

Adv Bawa: There’s two 96s in the bundle. The one is redacted but you've got the unredacted version as well Adv Mpofu. It’s 2123.173.

Adv Mpofu: Thank you.

Adv Bawa: Right. Okay. I then want to take you back to the report. Tshepo, go back to the SARS Unit report. Go down to 9.3. We see that that...

Mr Mataboge: Yes, Adv Bawa.

Adv Bawa: That relates to the remedy in the report. Right?

Mr Mataboge: Yes.

Adv Bawa: “The Minister of State Security must, with In 30 days from the date of the issuing of this report and for the approval of the PP, submit an implementation plan”, and that IGI… Sorry Mr Mataboge, these are not the right paragraphs just give me a second. Tshepo go to 5 832, Bundle F, 190. Go down. If you see there Mr Mataboge, on 11 March, “CEO”, which would be Mr Mahlangu, right? “Request Jonathan to assist with engaging SAPS Brooklyn to open a case against the Minister and IGI for refusing to file the IGI report which was subpoenaed (Rodney to assist in drafting the statement, as to when did we send the letter, subpoena and meetings with IGI and Minister).” Do you see that Mr Mataboge?

Mr Mataboge: Yes, I do Adv Bawa.

Adv Bawa: Okay, so you were involved in assisting in drafting of a statement? Is that so?

Mr Mataboge: Not really. I was providing the dates to the draft of the statement as to when the letters and the subpoenas and meetings took place. Just that.

Adv Bawa: Okay, so if we go down, just scroll down. Right. There’s a draft notice of motion and an affidavit, which you're not involved in drafting you tell us. Right?

Mr Mataboge: Yes.

Adv Bawa: Now go down to 9.3 of the draft provided. Right. And in the draft it states that, “During the first week of January 2019 my office received a report dated 15 February 2014, which purports to be a ‘SECRET’ document compiled”, and we know all of this. Right?

Mr Mataboge: Yes.

Adv Bawa: So PP tells them about this. Now we know that the anonymous report is coming in on the first week of January 2019 when the Office had received it. And then go down into 9.4, “Having received this document, I could not assume that the document was authentic. On 8 January 2019, I addressed a letter to the IGI, Dr Dintwe, advising him of the two complaints I had received on 8 November 2018 and requesting confirmation of the existence of the document I had received and requesting a copy of such document if it existed. I attach hereto as Annexure ‘PP1’ a copy of this letter.”Right. That was the letter of the 6 January that you had drafted Mr Mataboge. Do you recall?

Mr Mataboge: Yes, the one that was in an email from Mr Nyembe I believe, regarding the letter.

Adv Bawa: That’s right. And you will also know that at that stage you didn't know about this document at all. Correct?

Mr Mataboge: Yes.

Adv Bawa: But in 9.10 of this draft affidavit it says that the underlying reason for the subpoenas, right, “was my desire to expedite my investigation” and to “ascertain for myself whether the document submitted to my office was what it purported to be.”Do you see that?

Mr Mataboge: I see that Adv Bawa.

Adv Bawa: Right. Now, you're not aware of anybody having authenticated this document that you put into the safe. Do you recall that?

Mr Mataboge: No, I wasn't aware of anybody that authenticated it. Yes.

Adv Bawa: Okay. Now we go back to the report and we can run through this report very quickly. Now, Mr Mataboge, you will know that this report had a twofold objective. One was the violation of the Executive Ethics Code by Minister Gordhan, and two was an investigation of allegations of maladministration, corruption, and improper conduct by SARS. Agree?

Mr Mataboge: Correct. Yes.

Adv Bawa: Right. And in the report you indicate which allegations form the subject of the investigation and which do not.

Mr Mataboge: Yes.

Adv Bawa: Right. And what is included in the subject of the investigation is what I refer to as the SARS Unit and what the PP’s Office referred to as the Rogue Unit. Correct?

Mr Mataboge: Not sure about that.

Adv Bawa: You're not sure about what?

Mr Mataboge: I’m saying, PP refers to it as a Rogue Unit, you refer it as a SARS Unit. I'm not sure about that Adv Bawa.

Adv Bawa: Okay, so let's forget about that. Let's not get bogged down in the detail. The SARS Unit is the one that is the subject matter of your investigation, as I defined it to you earlier on. The one that Mr van Loggerenberg was alleged to have been the head of this unit. Do you see that? Go to V 220 of the report please Tshepo. The report starts at 216. So now you go to 220. Right. So the first part of the investigations, so that we on the same page Mr Mataboge, the first one is the investigation into Mr Gordhan misleading the National Assembly. The two is the allegation that “during his tenure as SARS Commissioner, Mr Pravin Gordhan established an intelligence unit in violation of South African Intelligence Prescripts.” Right?

Mr Mataboge: Yes.

Adv Bawa: And it's this intelligence unit that I am referring to as the SARS Unit.

Mr Mataboge: Yes.

Adv Bawa: Right. So B, C, D, E, they relate to this intelligence unit. F relates to Mr Pillay’s qualifications. Correct?

Mr Mataboge: Yes, I see that.

Adv Bawa: Right. Now, Mr van Loggerenberg was said to be the head of this intelligence unit. We discussed this earlier on. You knew this.

Mr Mataboge: Come again Adv Bawa.

Adv Bawa: Mr Mataboge, at the time of your investigation, Johann van Loggerenberg was said to have been the head of this intelligence unit that you were investigating.

Mr Mataboge: Yes.

Adv Bawa: Do you agree with that?

Mr Mataboge: Yes. Is that a question or are you telling me?

Adv Bawa: No, asking you. Did you not know that?

Mr Mataboge: Because, at the time of identify the issues we were still going to investigate that. So…

Adv Bawa: I'm not sure I understand you, Mr Mataboge.

Mr Mataboge: Because when we get the allegations, if it’s there in the allegation that he was head of the unit, it becomes obvious at the beginning of the investigation. But sometimes we uncover it as we continue to investigate it; becomes information that is the evidence material of the investigation. So I wouldn't want, because here that was when we were identifying issues for investigation.

Adv Bawa: So you knew that he was alleged to have been the head of this intelligence unit?

Mr Mataboge: If he was mentioned in the complaint, I would have known he was the alleged at the beginning. I'm not sure if it was then became known to us during the course of the investigation. That’s what I'm trying to say.

Adv Bawa: Okay. Now in this report, and if we go down, you refer to a number of reports and opinions. Right. In doing that, you refer to a number of reports and opinions. Let me list them – the KPMG report, the Sikhakhane opinion, the opinion prepared by Adv Trengove and others. Do you recall that? They all listed in your report as a source document.

Mr Mataboge: Yes. I do recall that Adv Bawa.

Adv Bawa: Did you investigate the contents of these reports? Or did you simply take what is contained in those reports?

Mr Mataboge: We did not investigate the contents when we were using them as reference and gleaning information from them. Because it would have meant that we investigate afresh what they had already investigated.

Adv Bawa: So you didn't conduct any of your own investigations?

Mr Mataboge: We conducted our own investigations, but not the investigation as per the content of the report, as I understand you to be saying. Because you said, “Did you investigate these reports?”, but we didn’t investigate the reports – we investigated matters that related to this or that would have appeared to be in those reports. Not necessarily redo or review the reports themselves.

Adv Bawa: See, so let me let me get this understanding. Did you record the Sikhakhane report, the KPMG report, and the ones you relied on as being binding on the PP?

Mr Mataboge: No, not really. What would be binding on the PP was not what we could start at the time. But we would do a look at effects, what would be proper and factual for us to be able to write the report and conclude on it.

Adv Bawa: Okay, I ask you this because in the response to whether you considered the Nugent report or not, the answer that was given was that the Nugent report was not binding on the PP. And so I'm trying to juxtapose that with the other reports as to whether those were binding on the PP and whether you regarded that to be the case?

Mr Mataboge: No, no, not really, this was not binding on the PP. But nothing precluded us from using the Nugent as well as using these reports as reference or as material for the report.

Adv Bawa: Right. That's fine. There was then a subpoena that was issued for Mr van Loggerenberg to appear before the PP under Section 7(4).Do you recall that?

Mr Mataboge: Yes, I do on the 8 April, I think.

Adv Bawa: Yeah, I'm not going to take you to the subpoena. I think we can accept and you accept that there was an incorrect address on the subpoena. Do you agree with that?

Mr Mataboge: Yes, I would then.

Adv Bawa: Right. So if you go to page 223 of the report, paragraph (x). It says, “During the investigation process I,” being the PP, “also tried to subpoena information and documentation from Mr van Loggerenberg but to no avail as his last known residence has new occupants allegedly having relocated some years ago.” Right. Now, who ascertained that that was his last known residence?

Mr Mataboge: I think the messenger was then as told by the neighbours that that was where he was last seen, but I don't think the statement is correct to say it was his last known address, if I may have a comment that we hear. I think it doesn't read well; it should have read that that was the last place where we as investigators were told you he resided by the neighbour.

Adv Bawa: Now Mr Mataboge, you sent the neighbour, you as in the PP, sent the messenger to an address. And if we're going down that road, then I'm going to have to put the subpoena up. We'll see it at Rule 53 record, which is item 9 of Bundle E, it’s at page 108. It's part of the supplementary record. Go to Bundle 7, item 9. Go to the first supplementary rule record, go to page 1 083 of the PDFs. Yes, it's a fake address so it’s fine. Mr Mataboge, there's an address on the subpoena that says No. 9 Leadhood Crescent, Moreleta Park. Now, No 9 Leadhood Crescent, as it stands here, doesn't exist. Would you agree with that?

Mr Mataboge: With hindsight, I agree with that. But when we got the address from SARS, this was the address we got from HR when we asked for the address. With hindsight I would agree that that's incorrect.

Adv Bawa: Who got it, Mr Mataboge?

Mr Mataboge: I think Ms Mvuyana. We asked for the address from SARS, from HR.

Adv Bawa: You see, Ms Mvuyana says she got it from the supervisor or from the PP. That was what she said to us.

Mr Mataboge: Then I’ll have to check as a supervisor how we got the address then Adv Bawa, because we would not just put the address there.

Adv Bawa: In fact the steps taken to trace or follow up on efforts to trace Mr van Loggerenberg as provided to us in the document which at 4 980 that you don’t know says, “Supervisor or PP called a SARS employee who provided us with the address. There was no contact for Mr van Loggerenberg as all documents removed from personnel file at SARS.” Did you make a call to anybody to provide you with an address?

Mr Mataboge: No, I don't remember.

Adv Bawa: So we'll ask the PP who she called if it wasn't you. Right. Did you have an opportunity to look at the affidavit that Mr Linda, the messenger, did?

Mr Mataboge: Come again Adv Bawa, I didn't get that.

Adv Bawa: Have you had an opportunity to look at the affidavit that was obtained from Mr Linda? Mr Linda, being David Linda the messenger at your offices.

Mr Mataboge: No, he hasn't shared it with me. I haven't seen it.

Adv Bawa: Well, Ms Ebrahim provided you with some documentation. Isn't that so?

Mr Mataboge: Yes, she did.

Adv Bawa: Did you consider the documentation at all Mr Mataboge?

Mr Mataboge: Yeah, I went through most of them. There are many Adv Bawa. I went through most of them, yes.

Adv Bawa: Let me take you to Bundle D, number 29, page 4532. This is an affidavit we obtained from the messenger and he is the messenger driver at the Office, and he was tasked to deliver the subpoena to Mr van Loggerenberg during the investigation. And he says that Ms Mvuyana enquired about the subpoena in November 22 and nobody else had asked him about it thereafter. Had you ever asked him about it afterwards, Mr Mataboge?

Mr Mataboge: I'm the one who was even asking him more about it, more than Ms Mvuyana if I may say.

Adv Bawa: At the time, Mr Mataboge, when are you referring to in the time?

Mr Mataboge: Throughout his return, I remember he, at some point was saying to me he is still having the document in his personal file because he's waiting for PMDS. PMDS is the performance management review for him to use it there. So I had been continuously asking. He’s not, to say, telling the truth by saying I was not asking about it.

Adv Bawa: Now I'm trying to ask when you asked him about it. Before he took the subpoena out or afterwards?

Mr Mataboge: The moment he came back, I kept on asking for the return of the subpoena. Then he said to me, he was keeping it for PMDS so that the moment it's done with it he’ll make it available to us. And subsequent to that, I continued asking for it up until we did the Rule 53. And that's when then I said to him, if he doesn't bring it, he’ll then have to do the affidavit. I think Ms Mvuyana will testify to that. But I was involved in pursuing Mr Linda about the return of service.

Adv Bawa: If you go to paragraph five, I don't think it's necessarily inconsistent with what you're saying. But let me not give evidence. He says, "I was requested to serve a subpoena on Mr van Loggerenberg” at that address, "Before I went out, Mr Rodney Mataboge enquired from me whether I had already served a number of subpoenas relating to the same matter hence I knew he was investigator.” Right. He then says, before I go out I verify the address and if the address is incorrect I usually tell them, but by checking this I save time. He says there was no Leadhood Crescent, but rather a Leadwood Crescent. Right. And he also says he didn't tell you about the error. He then just went to Leadwood Crescent to serve the subpoena. When he goes there he finds a complex called Camelot. And on the exterior wall was written number 9 to another number that he can't remember, reflecting the units inside the security complex. And he then describes that he speaks to a man in a wheelchair that manages the complex and who leads him to believe that Mr van Loggerenberg no longer resides there. And he goes into number 9 in the complex and he gets told that there is an Indian family living in the complex, but that he could try but not be able to find Mr van Loggerenberg and that he is left with the impression that the caretaker knows Mr van Loggerenberg very well. So he leaves and he doesn't serve the subpoena. He then goes to the Office and he goes on to the internet and he looks him up and he sees that he's a former employee of the SSA and a former employee of SARS and that he is appearing in court or would shortly be appearing in court in Pretoria. So he takes the view that he could be served with the subpoena, as he would be at court. He then says, “I orally reported that Mr van Loggerenberg was not at the address of service to the responsible investigator, Mr Rodney Mataboge. I asked him where he got this address and he told me he got it from his former employer, SARS. I told him that Mr van Loggerenberg no longer stays there. I also told him that with the information I had received it would be difficult to find Mr van Loggerenberg and that he was appearing in court that would be the best place to find him for purposes of service.” to do that. Do you agree with this, Mr Mataboge?

Mr Mataboge: I wanted to interject there to say when did he engage me on this, when did he say he did this? But I see there's no date in the affidavit, but I don't agree with it. He never engaged me even on having done the internet search and the Google Map. He never. All those I see for the first time; I hear for the first time on his affidavit.

Adv Mpofu: Sorry Chair, if I'm not imposing too much, I'd like Adv Bawa to just read the whole of that so that we don't have to go back to it because there's just one sentence that she left out – the last sentence.

Adv Bawa: Can I read the last sentence or must I go from…

Adv Mpofu: No, just the one sentence that you left out

Adv Bawa: Okay, “I was sure I found the correct place because I was told that he used to stay there.” I thought I said it earlier on when the caretaker said that. Right. Sorry, Adv Mpofu. And so, Mr Mataboge, just tell me what you disagree with.

Mr Mataboge: I disagree with the fact that he says he discussed with me, after coming back, that he did the Google maps search, he also did an internet search where he discovered that Mr van Loggerenberg was due to appear in court and that he could be served there. I never got to discuss with him that part. The only person that had told us about the court was the PP, not him. I deny what he says there.

Unknown: Yeah.

Adv Mpofu: Good.

Chairperson: Sorry, you don't have to echo if you agree or don't agree with the witness. Please mute Adv Mpofu.

Adv Mpofu: Sorry Chair, yeah.

Chairperson: There’s somebody else also who said, “Yeah.” So please, mute.

Adv Mpofu: No, I don't speak Afrikaans.

Chairperson: I know it's not you.

Adv Mpofu: Okay. Thank you.

Adv Bawa: Were you aware that Mr van Loggerenberg and Mr Pillay had been facing criminal charges.

Mr Mataboge: I answered earlier on, on that Adv Bawa. I said I became aware on the news.

Adv Bawa: Right. If you're facing criminal charges, you would be appearing in court. You would know that. Let's assume there's a difference of opinion between you and Mr Linda, but you would know that they would have had to appear in court if they're facing criminal charges. Would you agree with that?

Mr Mataboge: That is obvious Adv Bawa. But I deny the fact that he says he discussed it with me, is what I'm denying.

Adv Bawa: Right. Mr Linda, for purposes of this says, “in order to for me to have served the subpoena,” I'm going to paragraph 13 in the document, “to have served Mr van Loggerenberg the subpoena at court I would have had to have been instructed by Mr Mataboge to do so. I did not receive any such instruction.” And then he says, "I do not have any knowledge of steps that would have been taken to get hold of Mr van Loggerenberg before the subpoena was issued... My task is limited to serving the subpoena.” And he says he had no further involvement. So when did Mr Linda tell you? When did you become aware that this subpoena wasn't successfully served?

Mr Mataboge: I think Adv Bawa, my answer would be let's defer this question to Ms Mvuyana, because as my subordinate she was the one I was sending from time to time to Mr Linda's office, because what he's saying here is not correct.

Adv Bawa: Okay, but the point isn't a procedural one as to when you send Ms Mvuyana back and forth to Mr Linda’s office. When were you finally told that they didn't serve the subpoena and Mr van Loggerenberg is not at that address?

Mr Mataboge: The day after he had served it because I wanted a return of service.

Adv Bawa: Who informed you thereof?

Mr Mataboge: Mr Linda because he's the one who had gone there. And I said to him, “Can I have a return of service?”, then he said he still wants to retain it so that he may put it in his file for PMDS, which I said earlier Adv Bawa. And then that's when I started then and continued thereafter to ask for it from him to an extent that I even went to check with HR files for the year, whether indeed it was part of the evidence because we use those things as evidence in the PMDS files. Now that is becoming a big issue for us here as a Committee and as the investigation team.

Adv Bawa: So the day after the unsuccessful service, you knew that Mr van Loggerenberg could not be found at that address. Right?

Mr Mataboge: Yes, because he told me.

Adv Bawa: What did you do?

Mr Mataboge: I didn’t do anything, but normally when we get such, we just file it. We are not like the SAPS Adv Bawa, we don't look and go search for people. We then record that we were not able to serve a subpoena eventually in the report, but we alerted the PP that we could not serve the subpoena because Mr van Loggerenberg is no longer at that address purportedly. And that’s when the PP then advised about the court appearance.

Adv Mpofu: Thank you, Chair. This is just a quick one. I wanted just to check, seeing that if there's this dispute, whether Adv Bawa intends to call Mr Linda, so that we can take instructions on what to do to resolve that dispute?

Adv Bawa: I'll think about it Adv Mpofu and we can chat about it later.

Adv Mpofu: Okay. Thank you Chair.

Adv Bawa: So, in other words, Mr Mataboge, as investigators you did nothing further to find Mr van Loggerenberg.

Mr Mataboge: Yes, correct.

Adv Bawa: You didn't even look on the internet to see if he was there? You didn't look on anything other than that? You didn't consider checking through Home Affairs or the Traffic Department? Nothing, you just did nothing?

Mr Mataboge: No, we didn't, I didn't, because I remember Ms Mvuyana said she tried to search on the internet and she was unsuccessful. But she's coming; she can talk to that then Adv Bawa.

Adv Bawa: So in the document that's provided to me, or to us, the response was given, “At the time, the investigator did not have full access to methods of tracking an individual.” Do you know what that means?

Mr Mataboge: No, I wouldn't know what it means.

Adv Bawa: Okay. What methods of tracking an individual would the PP have at her disposal at that time?

Mr Mataboge: I don't know how one would be tracked except maybe like you say about internet search. But formally, I don't remember there being any way that the PP would be taking individuals except maybe through Home Affairs.

Adv Bawa: The PP has vast powers under the Act. She could access this through a number of government bodies to be able to obtain information of an individual that is required for purposes of an investigation. Do you accept that?

Mr Mataboge: Yes. About the PP powers, yes, I accept that.

Adv Bawa: Over and above that, were you aware that Mr van Loggerenberg’s attorneys had been in touch with the PP’s Office?

Mr Mataboge: No, I wasn't aware. I said that previously I was not aware.

Adv Bawa: Yes. I am aware what you said to me previously, Mr Mataboge. When an attorney represents a client, then it's reasonable to assume that that attorney is able to contact that client. Would you agree with that?

Mr Mataboge: Yes, I would.

Adv Bawa: And even if that attorney doesn't have authorisation to accept service on behalf of the client, you wouldn't know that until you ask the attorney if they can assist you in locating the client. You would agree with that?

Mr Mataboge: Yes, of course.

Adv Bawa: Right. Now, let me take you to page 5 911. It’s a document of the 14 June 2019. Are you aware that the report gets issued on the 5 July 2019?

Mr Mataboge: Is it the 5th here? The 5th or 7th of July, I’m not sure about it but it’s July.

Adv Bawa: It’s the first week of July. Somewhere there. Right.

Mr Mataboge: Yes.

Adv Bawa: On the 14 June, just go down Tshepo, there's a document that is provided – correspondence which is for the attention of the PP and it's a demand for publication of false and defamatory statements regarding Pillay and van Loggerenberg. Go up. On the 15 June you are included in this Mr Mataboge, a note attached from Webber Wentzel Attorneys on behalf of Ivan Pillay and van Loggerenberg. Do you see that?

Mr Mataboge: Yes, I do.

Adv Bawa: So you are given the correspondence from the attorneys of Messieurs Pillay and van Loggerenberg. This is three weeks before your report is finalised.

Mr Mataboge: Yes.

Adv Bawa: And if you go up, you are party to the correspondence from the PP where she instructs Seanego to respond and to deal with this letter. So, you knew full well before the report…

Mr Mataboge: Yes, I see that.

Adv Bawa: … you were in possession of the correspondence from Mr van Loggerenberg’s attorney before finalising the report by the PP.

Mr Mataboge: Yes, I see it now Adv Bawa. I see it.

Adv Bawa: So you could have, if there'd been a will to find Mr van Loggerenberg, to do it?

Mr Mataboge: I don't agree with the part about the will really. Because at the time it was in June, and the subpoena was in April. And at the time in June we had already issued 7(9)s to the parties that were directly in there. In the case of implicated parties or affected parties, they had already been served with 7(9)s, and there the subpoena was in April. We never thought and I particularly never thought that we could still be serving the subpoena even in June after April/May, which was almost three months down the line.

Adv Bawa: Did the timing matter, Mr Mataboge? He mattered enough that you issued a Section 7(4) to get him to come and give evidence to the PP’s Office. You needed his information. You had all these allegations which had been made. He was alleged to have been the head of this unit that you were going to find to be unlawful. Did it matter whether it was one month or two months or three months prior to the report being issued?

Mr Mataboge: I hear you Adv Bawa. No comment on that.

Adv Bawa: In fact, you assisted in finalising a response to the Webber Wentzel letter. Correct?

Mr Mataboge: No, I wouldn't have. I'm not sure then Adv Bawa. My memory doesn't serve me if I assisted, but I'm speaking under correction. Yes.

Adv Bawa: Yes, the reference would be 6327 at 190.2.

Chairperson: And as you go to that reference, we're now at 15h30. So please go to your reference.

Adv Bawa: Chair, I’m not going to the reference. I'm going to need a bit more time. I've got to go to the remedy in the report. I don't do this often but it's a difficult witness in the sense that I don't have a statement. So I'm going to ask the Chair for an indulgence for me to finish off the SARS Unit report and I can then maybe ask Mr Mataboge the questions relating to Bosasa in writing, but this I can't do in writing. I just wanted to show him 6327 at 190.2.

Chairperson: I'll give you an extra 10/15 minutes.

Adv Bawa: So Mr Mataboge, Mr van Loggerenberg was clearly a person of interest and he was also implicated in the remedy of this report. Do you agree with that?

Mr Mataboge: I'm not sure. I don't remember exactly on the remedy. Can we go to it?

Adv Bawa: Just let me, I'll take you there in a moment. I'm going to come back to that. I’m going to take you to remedy and I'm going to come back to the… just, I'm going to take you back to the remedy. Let me just take you up to the report first if I can or I'm going to lose something out of that. Mr Mataboge, I put to you earlier on or I said to you that there were three things that you looked at in the report. One is the legal opinion of Adv Trengove and Khumalo. The second thing was the Sikhakhane report. Right. And the third thing was the KPMG report. That's evident from the report itself.

Mr Mataboge: Yes.

Adv Bawa: Were you aware or you had been informed that the KPMG had shifted away from its report in this regard? That they had issued a media statement questioning the veracity of their own report? You were aware thereof?

Mr Mataboge: Yes. I became aware, but I'm not sure whether it was after or before our report was issued. But I was aware of that they were shifting, yes.

Adv Bawa: It was provided to you as part of the Pillay pension investigation by Minister Gordhan, if that rings a bell.

Mr Mataboge: Yes, if you say so Adv Bawa, then it means it was provided before.

Adv Bawa: Alright. And there's no mention of that made in the report. In fact, that was one of the concerns which the court had in its judgment, correct?

Mr Mataboge: Yes.

Adv Bawa: Right. If we go to paragraphs 5.2.25 at page 263 of the report, you record that the Sikhakhane recommends that the activities and functions of the SARS Unit be investigated by the IGI and it records that Dr Dintwe confirmed that such investigation had occurred and confirm the existence of the unit at the meeting of 31 January. You see that?

Mr Mataboge: Yes, I do.

Adv Bawa: Right. And then you say the PP says in 5.2.26 that she was reliably informed of the custody of the report. But I want to say to you, Mr Mataboge, and it's only fair that I put it to you as well, that having read the transcript and listened to the recording that nowhere in the recording does Dr Dintwe confirm that there had been an investigation of the SARS Unit or confirm the existence of such a unit at the meeting of 31 January 2019. Do you want to comment on that?

Mr Mataboge: I won’t comment if you say so Adv Bawa, unless I have to go and listen to it. But I'm not denying that if you say the transcript says that.

Adv Bawa: So if it's not, assume for purposes of the question I'm putting to you like that, if it's not evident from the transcript that they had provided such confirmation, where would the contents of these paragraphs have come from?

Mr Mataboge: Can you repeat the question Adv Bawa? I’m trying to digest it. I'm not getting it.

Adv Bawa: Okay, if I am correct, if assumed for purposes of the question I'm putting to you, that the minutes and the transcript of the meeting and the recording of 31 January do not bear out that Dr Dintwe had confirmed the existence of the SARS Unit or had confirmed that there had been a previous investigated allegations of the intelligence unit within SARS. If I'm correct with that proposition, then where did the information in 5.2.25 come from?

Mr Mataboge: If I need to answer you, I need first to check the transcript myself and even my notes because I was in that meeting with Dr Dintwe and then I can be able to provide a reliable answer on what you say.

Adv Bawa: Okay, we’ll make sure. We’ll give it to you.

Mr Mataboge: I don't disagree but I don't think this information will just come from us as investigators and be put here.

Adv Bawa: Right. Then if I then take you to the question on remedy that I asked you about earlier on, you see Mr Mataboge, as we see different drafts emanate, the remedy in drafts become more clearer to the investigators and the PP. Would that be a fair assessment to make?

Mr Mataboge: Yes, that is correct Adv Bawa.

Adv Bawa: Right. And so if you look at page 6428 on the 1st of July, this is a few days before the report is finalised. 6428 of 190. Right, so, this goes before it. So, let's go to 4 936. Sorry we've been there already. You prepare a report Mr Mataboge and then you have a meeting with the PP pursuant to this, and what I'm now taking you to is 4 936 is your minutes of your discussion. It’s one of the 189s. Right. Mr Mataboge, you provided some of your handwritten notes to us.

Mr Mataboge: Yes, I did.

Adv Bawa: Right. And this is a discussion of the draft with the PP in which you refer…

Mr Mataboge: No, this is not. This is Ms Mvuyana’s note. I don't write like that. My handwriting is worse than this.

Adv Bawa: Okay, I was for a moment there impressed with your handwriting. Right. So let me then not take you there because that is her handwriting notes, and take her there to do that. Can I then take you to two further questions that I'm going to ask the Chair for leave to ask you afterwards in the Bosasa matter? Right. Sorry Mr Mataboge, I must ask you this question about remedy before I do that. Chair, please bear with me, and then I've got literally three questions.

Chairperson: You have three minutes for them. Thank you.

Adv Bawa: Mr Mataboge, if I go to pages 6538. Okay, if you go to 7, go up. This is the draft of the report that's been provided to us of one of the things where the recommendations or the remedial action is, and I want to take you down to the remedial action in respect of the Minister of State Security in 7.3.1. There it says the initial relief remedy was sought that, “Within 30 days of this report acting in line with Intelligence Services Amendment Act, commission an investigation by the IGI on the current status of the unit for any continued breaches of the Act by individuals or organisations and take the necessary appropriate action as provided for by the enabling legislation.” That is not the relief that is in the final report. Do you agree?

Mr Mataboge: Yes, because this was still a draft.

Adv Bawa: It was still a draft. Right. And if you go down further, you'll see that there are two other. The only relief sought in respect of the IGI was that, “Within 30 days of this report conduct an investigation into the existence of the unit and verify its continued existence through audit of the assets and equipment which had been sourced for its unlawful activities, and cause to account all such assets for purposes of disposal thereof.” Now can you recall how the draft ended up being what it was in the final version?

Mr Mataboge: I don't recall. But in the normal circumstances there would have been perhaps comments from the PP to the team or the team would have redrafted and submitted to the PP. But I'm not recalling exactly how it would have changed but it takes a lot of to-ing and fro-ing before a final product is signed by the PP or approved. So I wouldn’t recall exactly.

Adv Bawa: Now, in respect of Bosasa, I'm going to put this to you and I'm going to ask the Chair for leave to put the question to you in writing. But I want to put this to you at the proposition. The nub of the dispute is what was the meaning of 2.3 of the Executive Ethics Code and which was the correct version. In short, that was one of the issues that arose during the litigation. Do you agree?

Mr Mataboge: Yes, I recall that. Yes.

Adv Bawa: And whether it was deliberately and inadvertently, or whether it was, what's the other word, wilfully?

Mr Mataboge: Wilfully.

Adv Bawa: Right. Now in your draft that is prepared initially on the Rule 7(9) leading up to it, wilfully is used throughout and then it gets changed to deliberately and inadvertently. And I want to know if you know how that change came about in the drafts?

Mr Mataboge: But like I just said Adv Bawa, I wouldn’t be speaking from memory. It would have come from engagements with the PP and myself as an investigator and agreeing on that perhaps. But because Bosasa was one, I can’t call it a crucial report, it was one sensitive report, it would have meant that we would have had to agree on that as investigators with PP. But I'm not sure, I'll have to check my facts on their own because before a draft becomes a final product, we exchange a lot of those with the PP. So I'll have to check my drafts, which are still in my laptop, many of those, to a point where then I’ll note when did it then become the changed version in terms of the dates.

Adv Bawa: And then, I mean, Chair I can't. There are way too many questions that I still have on the Vrede investigation. It’s going to be a pointless exercise for me to endeavour one or two.

Chairperson: Okay, we will end it there.

Adv Bawa: But I am going to ask leave to submit those follow up questions to Mr Mataboge in writing to the extent that I can’t deal with it with Ms Mvuyana when she comes.

Chairperson: Okay. Thank you, Adv Bawa. The Committee will take a 10-minute break.

[Break]

Chairperson welcomed everyone back and resumed the meeting. He said the Committee would now change gear and Adv Mpofu would interact with the witness.

Clarification by PP Legal Team (postponed)
Adv Mpofu: Thank you very much Chairperson. Chair, I was trying to catch your attention before the break but I think you were already gone. I just wanted to say that or rather to propose that Adv Bawa be given the amount of time that she needs because she has not covered three of the reports that she mentioned at the beginning. So I know how it feels, having it happened to me with Mr Pillay and Basani Baloyi that whether questions or not, I'm not finished. So I don't think it serves the purposes of the Committee just to do that. Just in the interest of fairness. But Chairperson, the other reason, and maybe the reason why I was going to make that suggestion is because, as you have now indicated, the reason why you made that restrictions on her is obviously to try and give us the opportunity to do the cross-examination. And it was to indicate that, in any event, even if Adv Bawa were to go on until 17h00 or even tomorrow or whenever, whatever time she needs, we are not in a position to do the cross-examination anyway. So it will serve no purpose to curtail her for the remaining hour. And we were going to request any way that our cross-examination be deferred to whenever it's convenient, sometime next week. And if I may finish then Chair, also because the… well, if you want me to motivate I will, but maybe let me do so just to save time. The grounds upon which we make that request are exactly what Adv Bawa is caught into now. I think for all of us, this is new territory. It's the first time that we have a witness who has not made a statement and we almost had a similar disaster last week. And while we may not force a witness, and we all tried in fairness, both ourselves and the evidence leaders I think, and even the Secretariat tried to convince this particular witness to make a statement to somebody, whether it was us or them or whatever. But he in the exercise of his rights said no, unlike Ms Mvuyana, as we know, who had actually indicated otherwise. So that's the first major obstacle. The second one is that, of course, there are now new documents that have also emerged, which in any event we would need to deal with before we do any cross-examination. There’s the document that Adv Bawa promised to WhatsApp to us. Third thing is that there is this issue of Mr Linda, who as Adv Bawa indicated, we’ll have to discuss offline me and her, because one of us looks like is going to have to call him – whether it's us or her we can discuss. But I think it's only fair that the Committee should hear from him, seeing that there's a dispute between him and Mr Mataboge, because Mr Mataboge would have had an advantage of being here and being cross examined. And therefore it means his evidence must be referred to the untested evidence of Mr Linda, which would be unfair on Mr Linda. And then the third issue is, of course, what I've already mentioned, which is that Adv Bawa has not led evidence on some of the crucial issues such as CR17 Bosasa, Pillay, and to the extent I don't think Vrede 2 is that important or relevant. So let's stick to the two that are important, which are Pillay and CR17. And then, of course, there are also, lastly Chair, there are aspects on which the witness has kept on saying he will check or bring evidence or look into this or that issue. So all in all, even if we started the cross-examination it would be seriously handicapped and not helpful to the Committee, and certainly prejudicial to the PP given these unique circumstances. So all in all Chair, I'm making two points. One is Adv Bawa, in the interests of fairness, should not be subjected to what we were subjected to, which is an unfinished witness because some of that evidence might be important. But secondly, in any event, we were going to request you to grant us a period to defer the cross-examination for later. And maybe Chair, before I sit down or move back from that, I can refer you to the relevant provision in the directive.

Chairperson: No, that's fine Adv Mpofu.

Adv Mpofu: 3.6.3. Have you got that, Chair?

Chairperson: I've got that.

Adv Mpofu: 3.6.3. I think, I know it's going to take time but let me just read it for the record. It says, “The exception to clause 3.6.2 above relates to witnesses subpoenaed to appear before the Committee as provided for in the Powers Act, who may not have rendered any sworn statement.”, such as Mr Mataboge, “In relation to such witnesses, the evidence leaders shall present the evidence from such witness through questions to the witness,” underlying questions to the witness, “whereafter, and should such be required by the PP, the latter may request that cross-examination, if any, be postponed for a period not exceeding five days.” So that's the provision of the directives that we are invoking. And also, therefore, on that basis then, Adv Bawa should be at least maybe given the remaining time for today or whatever time she needs. Thank you.

Chairperson: Thank you Adv Mpofu. Let me quickly respond to those issues. Firstly, this is how we operate and I've said this before and I will maintain it with her, Adv Bawa. We operate on time and not how much Adv Bawa has not covered. If she is not able to cover things on the set time, it becomes her challenge to deal with. I've said that to you, I’ve done that to you. She is no exception. There's this time that has been allocated to her and I would have reminded her 15h15, 15h30, and I extended that to 15h45. The fact that there were three other areas remaining, it can’t be a challenge for us stretching and making this elastic. We can't operate like that because it is not sustainable once you do that. At what point, because then it gets to be issues of propensity, the pace and so on? So if you've got somebody who takes 10 minutes on an issue that takes one minute, then you're in trouble. We don’t, we can't operate like that, whether it is Adv Bawa or Adv Mpofu. So I maintain that, that she's been given the time; in her allocated time she has gone up to that point. So I maintain that consistency and you're correctly saying it was applied to you. It's being applied to her today. I get your second… Please don't disturb me. I'm on the platform.

Adv Mpofu: Apologies. I just wanted to say two wrongs don't make a right.

Chairperson: Please don't do that. Please don't do that.

Adv Mpofu: Okay, sorry.

Chairperson: Thank you. There's a second point you're raising, which itself is very significant. When you say that either this remaining hour today or the rest of tomorrow, that you are not prepared for cross-examination, it's a different matter altogether. So that's what you’re submitting, that you're not ready for cross-examination even if I were to give you this hour, even if we will say prepare overnight, you're not ready for cross examination. And given the fact that you're not ready you’re invoking our provisions in the directive. Very fair in doing that. The directives are for that; we are not going to overlook them. But they are also very specific in terms of the period if we are to delay any matter or matters, and you have just quoted that. Today is Thursday. So if you’re talking about five days, we know that there's an immovable property on Monday and Tuesday, which is Bianca Sinqobile Mvuyana. We know that on Wednesday and the 2nd of March we have Adv Madonsela appearing and submitting a testimony here. So if you look at next week, it's only Friday, a day that you can play with, which means not doing it this Friday if we were to follow those directives. We then are going to settle for that Friday, not any other day because we wouldn’t want to stretch it anytime beyond that. I'm going to put it to Members because and for the reasons that the time that has been allocated has been exhausted, and next slot is not able to come in. If it is a view of them that we can use the remaining 30/45 minutes and allow Adv Bawa to conclude because we're not going to pack her for the next Friday. I'll hear if Members are amenable, agreeable to that. Otherwise, that's what I want to say as my first take.

Discussion
Ms H Denner (FF+): No, I think if we go with that arrangement, I think we should give Adv Bawa the opportunity to conclude, because she did mention that she still has a few questions. So I think we should go with that.

Mr B Maneli (ANC): I think I've been firstly covered on the points you’ve made earlier, and I think we should agree that it's on the basis that Adv Mpofu may not be prepared to proceed from this point, and you need to consider the directives, as you’d said, they can be reviewed now. It's a matter to look at. So I thought it's important that we support you on that. But also that Adv Bawa can continue. But I'm not sure if I heard her well Chair, that she is also not asking for few days to come. Because she has put in a provision that in case she's not able to that she's taking leave to submit further questions in writing. But that's probably something you may rule later on. But I just thought it's important to take note of that so that it's not open ended even in that regard Chair.

Mr Nkosi: Chair, I think I'm covered. Maybe just to make the point that we are taking this decision on the basis of the second proposal, not on the fact that questions have not been exhausted etc., when taking on the basis of what he submits as his second reason and without creating precedence, because I foresee that the same will happen or may happen with the next witness.

Chairperson: Thank you Mr Nkosi. I think you just clarified a matter here which I stated quite clearly. Because I was very upfront that Adv Bawa, what was initially allocated to her as time has utilised that. And the paces she was not successful to do in covering other three areas, I was not entertaining that. And so if there was not the second proposal, it was never going to be considered. She was never going to come back to complete that. Let me be abundantly clear on that. I've put it to you only because of the second proposal that says, "I'm not ready this hour and tomorrow to do cross-examination.” And therefore, because the integrity of our program therefore remains as we have revised and agreed to. It doesn't get affected in that. Are we agreed Members? Thank you.

Mr S Luzipo (ANC): No, no, no I just wanted to check whether your ruling says it’s not precedent setting?

Chairperson: Thank you for that amendment Mr Luzipo, so that it's very clear this is not how we are going to proceed. We have not been proceeding in that way in any way, as elaborated by Adv Mpofu here as well. Adv Bawa, do you want to complete?

Adv Mpofu: Thank you Chair. I don't want to, as it were, give with one hand and take with the other, now take away from Adv Bawa’s time to ask the question. So, Chair, but I think I have to clarify a few things. Not a few things, just one or two. The reason why I raised the issues conjunctively or one against the other is exactly because they are related, as you correctly point out Chair. And they basically would motivate for Adv Bawa being granted the extra time, which I appreciate. But I just want to make it clear that this, I don't want to use the wrong word, fixation, I think, is the better word here than obsession, the fixation with what you call the integrity of your timetable, if, as what I'm hearing from the Members, it is meant to override the interest of fairness, then it's a very dangerous path to follow. Because, yes, we have the integrity of the programme but we also have fairness and reasonableness. And so I was placing it on the issue of fairness and also to emphasise the point I was making that two wrongs don't make a right. So if you deprived us of a fair chance to complete witnesses, it doesn't mean that we must perpetuate it. And so this idea about precedent setting and what have you, I think it will be a sad day if this Committee wants not to set a precedent of being fair. Thank you.

Chairperson: Thank you Adv Mpofu. Adv Bawa, as I hand over to you just to summarise, I had stopped you because the time allocated to you was complete. The meeting was scheduled up until 17h00. You are being brought in so that you complete that time. It is indeed not a precedent setting. Don't expect it to happen again simply because we did it today, because there's a reason we are doing it. Thank you. Adv Bawa please complete. Go ahead.

Cross Examination by Evidence Leader: Mr Rodney Mataboge (continued)
Adv Bawa: Chair, I understand Adv Mpofu wants me to continue cross-examining. So we'll take it from there.

Adv Mpofu: No.

Adv Bawa: Chair, I may still not finish and then I would then still have to ask for certain questions to be put to the witness. But Mr Mataboge, are you still with us?

Mr Mataboge: I'm here Adv Bawa, I'm here.

Adv Bawa: Okay, I want to take you to page 6409. I'm going right to the bottom of it Tshepo. The 3rd of July is a few days before the final report in the SARS Unit is finalised and the PP appears from a different email. Can you identify it Mr Mataboge? It's a private email. Sorry, it's not there. It's the PP’s private email. Okay. And she tells you to put corrections into the report. Do you see that?

Mr Mataboge: I'm looking at it Adv Bawa.

Adv Bawa: Right. And I want to take you to the second paragraph where she advises you to “relook at Lebelo affidavit on this part and juxtapose it, all necessary and relevant information especially on Project Sunday evening must be considered. On secret purchase of equipment check Lebelo affidavit also.” And then she says to you, “And emphasise that the content of the memo to Trevor by PG and Pillay by itself is an admission that they knew that SARS does not have legislative powers but SSA, and it's not clear what they continued to form it anyway without SSA.” Go down. She then says, “All contravened the National Strategic Intelligence Act 39 of 1994 and it is a criminal conduct. Another remedial action Minister of SSA must release the declassified IGI report. Come get more comments to clean the document tomorrow morning.” Mr Mataboge, I want to make the point that here again, reliance is placed on the Lebelo affidavit for information to be put into the report. Do you see that?

Mr Mataboge: I see that Adv Bawa, yes.

Adv Bawa: And you are instructed to have a look at it?

Mr Mataboge: Yes, I see that Adv Bawa.

Adv Bawa: And in all probability you did, would you agree?

Mr Mataboge: Yes, I would have.

Chairperson: Just a pause for Members. I'm not going to be breaking for tea but tea has arrived, so you can grab it as soon as you sit down and I will in a few minutes make an announcement. Proceed Adv Bawa.

Adv Bawa: You then, if you scroll up on the email, you will see that you noted… Sorry, I'm going to read it to you because Adv Mkhwebane’s private email is on the document and we’re trying to avoid putting it up on the screen Adv Mpofu. So if I don't show it, it's for that factor. But so in view of PP’s directives today, you then asked for more time to clean up the document and she then tells you that the report is being issued on the 5 July. Do you recall that?

Mr Mataboge: Yes, I do Adv Bawa. I do.

Adv Bawa: Right. So, these are changes that are made a day or two before the report is finalised.

Mr Mataboge: Yes, that would be the case yes.

Adv Bawa: Okay. You then at 6 428, you are providing her with an earlier version in which you tell her that you are incorporating. Right. You tell her that “the most recent draft with the proposed remedial action for guidance”, and you are finalising it and you are doing a quality assurance on drafts. And she is then looking at it. Right. You don't yet, if you look at 6443 and 6444 of the draft, which if you go down, you’re busy putting in the summary of the recommendations on this version. Do you see that I see?

Mr Mataboge: Yes, I do Adv Bawa.

Adv Bawa: Right. And if you go further down, then you actually you start putting in the documents that you had regard to further on with highlighted paragraphs. So all the changes on versions that you sent back and forth between you and her, you highlight the changes that gets put into the document. Would that be a fair way of characterising the method of operation?

Mr Mataboge: Yes, that would be fair.

Adv Bawa: Right. Now after the report was taken on review, to what extent were you involved in the finalisation of affidavits?

Mr Mataboge: After it was taken on review Adv Bawa?

Adv Bawa: Yes.

Mr Mataboge: Do you mean the PP? Whose affidavits? I need to get clarity on that.

Adv Bawa: The PP’s. So let's take this so that we’re clear. The review is brought of the report, are you given a copy of the paper?

Mr Mataboge: Yes, I get a copy. Yes.

Adv Bawa: Right. The answering affidavits are then drafted for the PP by the legal team and probably the external counsel that is appointed. Are you provided with an opportunity to comment on the answering papers?

Mr Mataboge: Yes, I do. Sometimes I even get to be asked to be part of the meetings if we need to consult. Yes.

Adv Bawa: Right. Now in the SARS Unit report, if we go to 5969 on the 14 November 2019. The PP specifically asks you to give feedback into the answering affidavit into the review application. Do you see that?

Mr Mataboge: Yes. Give inputs, yes.

Adv Bawa: Right. Did you do so Mr Mataboge?

Mr Mataboge: I would not really remember, but after each time the Legal Services have already drafted, they shared with me for me to agree or add anything that I needed to add. So I wouldn’t actually remember exactly if I made specific inputs on this one. But they give me that opportunity every time it happens. Yes. So then I'll have to check what was my contribution in respect of this one.

Adv Bawa: Now, one of the issues raised when Mr van Loggerenberg came to give evidence here was that he had deposed to an extensive affidavit and no issue was taken with the contents of that affidavit. The PP did not deny it. The PP didn't deal with allegations contained in his affidavit. And he says his affidavit was undisputed before the court. Do you wish to comment on that?

Mr Mataboge: The affidavit in response to the review?

Adv Bawa: Yes, he was one of the deponents in the affidavits filed in support of the review of the application.

Mr Mataboge: Yes, I wouldn’t make any specific comment there because that was the area of the Legal Services but I didn’t make input to what he had said in response to his affidavit.

Adv Bawa: Now, so you would have read the founding papers, you would have seen the allegations made by Mr van Loggerenberg and fire remained unchallenged.

Mr Mataboge: That's what it would mean up until I see my inputs if I made any of the time Adv Bawa.

Adv Bawa: Okay. Now, let me take you to the Vrede matter. Your position had been that you didn't look at the first Vrede report.

Mr Mataboge: Yes, that has been my position. Yes.

Adv Bawa: Right.

Mr Mataboge: That is the Vrede one report.

Adv Bawa: The evidence that supported the various findings in the second report, I'm going to say to you were available and accessible to the PPSA even when they did the first report.

Mr Mataboge: I can’t comment on that. It was on the first report; I was still not involved Adv Bawa.

Adv Bawa: Right. You referred in the second report to the Organisation Undoing Tax Abuse (OUTA) report.

Mr Mataboge: Yes.

Adv Bawa: Used thatin one instance as corroborating evidence that the Guptas had paid for Zwane’s trip to India, in fact, in the report. Were you aware that the OUTA report had been available to the PP during the first Vrede report as well?

Mr Mataboge: But I wouldn't say that because we sourced that information ourselves. The senior investigator who was dealing with it sourced it herself. We didn't get it necessarily from the first evidence file, we sourced it ourselves.

Adv Bawa: The first evidence, the first report made no mention of it. They report had been provided to the PP but not it appears to the investigators during the first period. So you're saying you didn't get the report from the PP?

Mr Mataboge: Yes, because we had to engage with several people who were involved. We subpoenaed them. And I believe, even in this one, we sourced the information ourselves as investigators, not necessarily from PP.

Adv Bawa: Right. Your second investigation focused on issues such as prejudice to beneficiaries, excessive spending of government funds and undue benefits to Estina. Would that be a fair summary of it?

Mr Mataboge: I’m not sure. Because for us the primary focus was the political politicians involvement in the project and their lack of oversight and holding whoever was responsible for the project accountable. If I'm correct, if I remember it correctly.

Adv Bawa: So the political involvement and the possible prejudice to beneficiaries, those were the two things you focused on?

Mr Mataboge: Yes.

Adv Bawa: You didn't investigate and report on the excessive spending of government and the undue benefits of Estina? My apologies, Mr Mataboge. I think that's probably the correct way to put it. Do you agree with that?

Mr Mataboge: Yes, I agree with that. Yes.

Adv Bawa: Right. Now, in the first report there were six un-investigated issues that were highlighted. One was cattle deaths. Did you look at cattle deaths Mr Mataboge?

Mr Mataboge: I wouldn't say we looked at it necessarily. But we had to go and meet with the beneficiaries and they in their statements talked about the death of cattle, but we didn't even go to the project itself. So I wouldn’t say we looked into that specifically as investigators, yes.

Adv Bawa: Right.

Mr Mataboge: Sorry Adv Bawa. Our one was particularly towards the prejudice to the beneficiaries that we met on the day and to hear them out and assist them.

Adv Bawa: You see, there were six issues that stood over from the first report. The one was cattle deaths, the two was issues from the third complaint, the third was value for money, the fourth was the Gupta leaks, fifth was how Estina spent their money, and six was the beneficiaries. And it seemed of the six things that stood over from the first report, you actually only dealt with one of those issues, which is the beneficiaries. Would that be correct?

Mr Mataboge: I don't know why Adv Bawa is using the word that “stood out”, because we were not part of the initial report then. I wouldn't know why. The word "stood out” for me doesn't sound okay. Because when we started with the investigation after it was decided that we deal with the investigation, it was narrowed to the political – which had even been as a result of some committee in Parliament addressed by the PP, asking about the role of politicians in the project. So we didn't even look into the issues that may have stood out as you refer to them that way Adv Bawa.

Adv Bawa: And so you're saying that the second report emanated solely because of the intervention of the Portfolio Committee of Justice?

Mr Mataboge: Yeah. I'm not sure if I’m correct because the interaction between PP and then the committee is the one that then came with the conceptualising or the need to reinvestigate the matter.

Adv Bawa: Okay, now for purposes of your second investigation, you interviewed Mr Magashule, Mr Zwane, Ms Qabethe, Ms Rockman. So they were the former Agricultural Members of the Executive Council (MECs), the former Finance MECs, the former Agriculture Head of Department and the former Executive Mayor of Phumelela. Whether you did it or somebody in your unit did it, right. Now, the question I'm going to ask you is, did you interview the beneficiaries?

Mr Mataboge: Yes, we spent a whole day at Vrede interviewing the beneficiaries.

Adv Bawa: And did the beneficiaries come and speak to you voluntarily? Or did you need to subpoena them?

Mr Mataboge: No, we did not subpoena them. We invited them to a meeting in their own territory to go and understand their continued dissatisfaction and prejudice. So we didn't need to subpoena them.

Adv Bawa: And you held public hearings, I understand. Is that correct?

Mr Mataboge: Yes, if one were to call them public hearings, because we were in the hall with all of them. Yes.

Adv Bawa: And you used the beneficiary list that had been compiled by the municipality?

Mr Mataboge: Yes. It was provided to us by one of the beneficiaries who was a leader of the group. Yes.

Adv Bawa: And this was actually the same beneficiary list that had previously been provided to the PP during its first investigation. Do you know that?

Mr Mataboge: No, I wouldn't know that.

Adv Bawa: And you were able to obtain both oral and written submissions from these beneficiaries and their survivors. Correct?

Mr Mataboge: Yes, because those that could not write we had to write for them and those that could write made written submissions. But mostly our investigators were the ones that were taking statements from them.

Adv Bawa: How many of you went Mr Mataboge? How many of you attended to the meeting of the beneficiaries?

Mr Mataboge: I'm counting. I'm keeping quiet because I'm counting. We were four investigators that attended aside of the spokesperson and the PP. Yeah, there were four of us.

Adv Bawa: And how long did it take you?

Mr Mataboge: We spent the whole day there Adv Bawa.

Adv Bawa: One day?

Mr Mataboge: Yes, one day.

Adv Bawa: And you interviewed the beneficiaries. You didn't really speak to the complainant, Mr Jankielsohn, at all hey? I think you said that to me this morning.

Mr Mataboge: No, not at all yes.

Adv Bawa: And would you have an idea of what this exercise cost the PP’s Office financially?

Mr Mataboge: What exercise Adv Bawa?

Adv Bawa: The exercise of going to Vrede and speaking with the beneficiaries?

Mr Mataboge: I wouldn't know. I wouldn't know that.

Adv Bawa: Right. This information you sourced from OUTA, it was very relevant to them?

Unknown: No, it was not.

Adv Mpofu: Chair, I have two objects to this evidence on the basis of relevance. As I indicated when I addressed the Committee earlier, we could understand and that's why we were even pleading for Adv Bawa to be given an opportunity. We could understand the relevance of the Pillay report and the CR17 report. But she's now left with 15 minutes or so and she has spent the time going back to the Rogue Unit and now canvassing a report which is completely irrelevant to this Committee, which is so-called Vrede 2. And Chair, I'm making this remark or this objection on which you must rule on the basis that of our observation, which I will deal with when we do our cross-examination, which is that it looks like this whole exercise is not about dealing with the charges or the issues or the reports that are relevant to this Committee. It is rather an exercise that is solely aimed at the sanitisation or cleansing of Minister Pravin Gordhan in relation to the Rogue Unit or in the Catholic Church they call it beautification. We are not interested in the beautification of Mr Gordhan. We'd like to deal with the issues that are relevant to this Committee, and this is not one of them Chairperson. So please, I can't dictate to Adv Bawa how she wants to use or abuse her time. But certainly I can object to irrelevant material. Thank you.

Adv Bawa: Chair, one of the motivations given for some of the investigations that had not been done during the first report, as had been done during the second report, was precisely that one of financial constraints and an inability to be able to go out and actually deal with this beneficiaries, apart from the fact that they waited and waited and waited for somebody to provide them with these details before they go. They did this with relative ease the second time around. And I think that's materially relevant to the assessment of the investigation the first time around.

Adv Mpofu: No, I'm sorry Chair. May I come in?

Chairperson: Yeah, I have not ruled. Yes, you can come in.

Adv Mpofu: Yes, very quickly Chair. I know that time is against us her. No, I understand what Adv Bawa is saying. All I'm saying is, let's assume all what she's saying is true, that she's trying indirectly to show that two years before the beneficiaries were available. I don't know how she proposes to do that. But that's fine. That's her prerogative. Or that if there was no money in a particular year, then when there's money in another year, then you can’t do an exercise. I mean that’s just a futile exercise. But again, that's her prerogative. The point I'm making is that all that it's not relevant to the charges. The charges before, on which I understood her to be leading this witness, are 11.3 and 11.4. And that's got nothing to do with beneficiaries or whatever. It's whether the investigations were done independently and impartially and so on and whether they were done to shield certain people, blah, blah, blah, in 11.4. So it's irrelevant anyway, even if what she’s saying now is true, the Vrede 2 report. Thank you Chair.

Adv Bawa: Chair, I've responded as to where and why I was going to the second report in the context of the motion. I mean, Adv Mpofu can argue that if he wants to.

Chairperson: Okay, that's fine. I'm going to rule that we will continue and Adv Bawa continues to interact with the witness.

Adv Mpofu: Okay. Thank you Chair. We'll go with the flow.

Adv Bawa: You concluded from your interviews, public hearings, document reviews, that there was political involvement in the Vrede project. Am I correct?

Mr Mataboge: You are correct Adv Bawa.

Adv Bawa: And that politicians were unduly influenced by persons linked to the Guptas?

Mr Mataboge: I'm not sure about that narrative.

Adv Bawa: Okay. It comes from, I'll give you the reference and I won't take it there, it comes from the 2020 report, page 10 para XVI(aA)(cc). And there's a number of findings that you make in the report as to the guilt of the officials in respect of maladministration, correct? And a failure to fulfil their constitutional responsibilities.

Mr Mataboge: Which officials Adv Bawa?

Mr Mataboge: No, let's just say the ones that you investigated and in respect of whom you make findings in your report of the conduct of Messieurs Zwane, Thabethe and Qabathe.

Mr Mataboge: Yes, those were the politicians in our view. Yes.

Adv Bawa: That's right. Okay. And you also imposed a remedial action for purposes of assisting the beneficiaries. Correct?

Mr Mataboge: Correct Adv Bawa.

Adv Bawa: The PP did that?

Mr Mataboge: Yes, because we're not necessarily because as an investigation team, as we've been seeing with regard to the SARS Unit, we engaged with PP on the remedial action. She doesn't just do it on her own herself.

Adv Bawa: Now in terms of the Vrede report, during the course of this investigation the PP had said to you that you must consider certain reports. I put that you early on in the day, that emanated from the first investigation. Is it your evidence that your team didn't look at it?

Mr Mataboge: I didn't look at it. I can’t say my team did not look at it and for the reason that I advanced, yes.

Adv Bawa: Now, the complaint in the Bosasa matter, it's a question of legal interpretation. Let's deal for a moment the ambit of whether or not the PP had jurisdiction to investigate the CR17 fund or not but the question as to whether the President had deliberately, wilfully, or inadvertently, whichever version you want to put depending on the report and the judgment. It's a question of interpretation, would you agree?

Mr Mataboge: Yes, I would agree.

Adv Bawa: And one would then have to assess the facts, look at the relevant law, and come to a conclusion?

Mr Mataboge: Yes.

Adv Bawa: And it would have to be a law that is enforced. Would you agree?

Mr Mataboge: Yes.

Adv Bawa: And so there would be a fundamental difficulty if the law was not enforced?

Mr Mataboge: Yes.

Adv Bawa: And it was so Mr Mataboge, that there had been other instances in which reliance had been placed on a provision of Code, which the Constitutional Court then found was not enforced. Do you recall that?

Mr Mataboge: I recall that, but only as far as when it was said that the PP or us as the PPSA, we had inserted certain words into the Code, if I recall.

Adv Bawa: Yes. What had transpired is it turned out that there were two codes. One with the force of law and one without. Would you agree with that?

Mr Mataboge: I wouldn't agree with that. Because there was the one that was in the handbook and there was one that was in the, I think, in the Code itself that was not in the handbook. And the wording in both they were different. If I recall, yes.

Adv Bawa: And the one that had been passed and gazetted would be the one that's in law and the one that has not been done so would not be the law. Would you accept that? In fact, we've had a ruling of the Constitutional Court on this. So that is now the law. Correct?

Mr Mataboge: Yes, Adv Bawa. If you say so.

Adv Bawa: No, I’m…

Adv Mpofu: Sorry Chair. I’m sorry. I know the time is up. Two quick things Chair. I wanted just to request Adv Bawa, maybe just to make this easy, to refer to the codes by their years – the 2001 and 2007, I think is one of them. But also, Chair I just wanted to appeal because we've had some very disturbing images from the zoom from one of the Members, if something that looked like blood or whatever. So we don't know what the problem is, but it's disturbing to some of the members of my team. So if Members can just be careful not to switch on the camera if they are involved in any bloody mess. Thank you.

Adv Bawa: Right. Mr Mataboge, I'm saying to you that when you prepare your drafts, there is the Code that existed from 2007 and which the Constitutional Court relied on as the law. And then there was the 2007 Code, which we understand was at some point attached to the ministerial handbook. July 2007.

Mr Mataboge: Yes, Adv Bawa.

Adv Bawa: Yes. Right. So let's get this right. The July 2001 is the promulgated one. And the 2007 version is not the promulgated one.

Mr Mataboge: Yes.

Adv Bawa: Now, you would accept that if it's not promulgated it doesn't have the force of law?

Mr Mataboge: I would accept that. But before I accept that I would want to refer to our previous earlier reports that had been added and issued and acted upon, which in my view, as far as I recall, had used the very one that we used in Bosasa word by word, if I recall.

Adv Bawa: Yes, as Adv Mpofu had pointed out to us, two wrongs don't make a right. We accept Mr Mataboge that the 2007 version had been used in previous reports. And I don't think that is in issue here. The question I'm posing to you is I want to know when the affidavits were prepared for the Constitutional Court; did you provide input into these affidavits? And I'm referring specifically to the PP’s affidavits.

Mr Mataboge: Just like the earlier ones, I would have been asked to make inputs, and definitely I would have and if I deemed it proper and wherever there was a gap, I would have participated in that. But not necessarily that in all of them I would always have to, or that I would have been able to make inputs because they are prepared by Legal Services.

Adv Bawa: Right. And the question I asked was, did you? You say you would have but you're not sure as you’re sitting there whether you did or not.

Mr Mataboge: Yes, I'm not sure. Because there were several reviews that we had to go through.

Adv Bawa: And were you involved in the decision after the Constitutional Court judgment was handed down, to seek a rescission and reconsideration of the judgment?

Mr Mataboge: No, I wasn’t. That is the terrain of the Legal Services people and the PP there.

Adv Bawa: So I have five minutes left. Let me take you to the one other issue that arises in the report that I didn't touch on. One of the issues that arise in the SARS Unit report is whether or not Mr Pillay has a matric certificate or not. Do you recall that?

Mr Mataboge: Yes, I do recall.

Adv Bawa: Right. And there is a debate about or there's a dispute that arises about whether this information had been provided to the PP beforehand or not. Can you recall anything in respect of that?

Mr Mataboge: No, I don't recall anything that relates to beforehand.

Adv Bawa: Well, you had an interview, let me be more specific. There was an interview with Minister Gordhan and having looked at it, the transcript; it doesn't appear as if Mr Gordhan had indicated that anything in respect of Mr Pillay not having a matric certificate. Can you recall that?

Mr Mataboge: I can’t recall that but I'm not sure if what you said Adv Bawa you are sure of it yourself. Because if there’s a transcript available, can we have sight of the transcript?

Adv Bawa: Let me see if I can find this. It might be one of the questions, given the time available Mr Mataboge, that I put to you in writing with a proper reference because it does seem that it's a bit more too complicated for the time I have available to ask you that question when you do that. In respect of the investigations, did you ever encounter any third parties not employed at the Office of the PP specifically being involved in any of the investigations or in the settling of any of the reports?

Mr Mataboge: Even in the past, but that would have been when there was backlog and some investigations would have been outsourced, and some of them would have been insourced due to the backlog that was occurring in the Office. But that would have been done within the parameters of RFQs and proper allocation and proper tendering if it needed a tender. People would have also come and have briefing sessions that would have been outside investigators – other companies like SMG and others that would have been appointed.

Adv Bawa: Now, let me ask this specifically in respect of three of the reports that form the subject matter of this motion, in respect of the SARS Unit and the mere complaint in respect of the Pillay pension case, and in respect of the Bosasa matter. Other than your investigative team and the PP or any of the staff in the employ at the PP’s Office, were there any other individuals involved or providing input into the reports?

Mr Mataboge: No, not to my knowledge Adv Bawa, not to my knowledge at all.

Adv Bawa: Right. Mr Mataboge, on the last minute, we asked you certain information yesterday. Did you have an opportunity to respond to it? Or to look at it? In particular, have you found the investigation diary relating to the SARS Unit?

Mr Mataboge: Yes, I did Adv Bawa. I must start by putting it to you that there was a challenge with that file of the SARS Unit because when we were doing the Rule 53 and that, me and everybody was dealing with it, they had to go and get it from registry. And that’s why it was difficult for us to get it. So we managed to get it. Yes.

Adv Bawa: So you have the investigation diary of that. Can we arrange for you to send it through to us?

Mr Mataboge: Yes, we can arrange.

Adv Bawa: And, Chair, I’m in your hands. How would you prefer the other questions to be answered? Mr Mataboge would you prefer answering them in writing and then just confirm your answers before the end of your evidence?

Mr Mataboge: Yes, you can do that Adv Bawa.

Adv Bawa: That would be fine. Adv Mpofu would that work for you?

Adv Mpofu: No, it won't work for us and thank you for giving me the opportunity. Chair, we have a problem. Two problems. One is the immediate one that’s raised now with the state of our readiness to do cross-examination, is obviously directly proportional to the completion of the evidence by the evidence leaders. So until that information is supplied, because if it's supplied let's say one minute before the cross-examination, then we'll be having our own problems with when does the five day start to run and all that. But so I think in fixing whatever timelines for the exchange of information, and I suppose we can be guided by Mr Mataboge as to how long it will take for him to gather that information and give it to the evidence leaders who’ll obviously then immediately give it to us. So there's that one issue. The second related challenge Chair, which I was going to raise anyway, is that your intimation about next Friday is also a bit problematic. One of the reasons we had left Friday open in our backroom discussions was one of two reasons. One was the anticipation that Adv Madonsela might spill over to one of the allocated time. The second one was also that we had requested the evidence leaders for sufficient time for us to prepare the PP’s statement. So I'm just indicating that there might be a problem if we're going to have three very important witnesses next week, namely Mvuyana, Madonsela, and this witness back to back, then it will affect both of those objectives. I’m just raising it Chair for your consideration in scheduling, but I think the more immediate issue is that, obviously, our time to prepare for cross-examination will only start to run once we've received all the information or once Adv Bawa “closed her questioning.” Thank you.

Chairperson’s Closing Remarks
Chairperson: Okay, thank you Adv Mpofu. I think let's do this on this issue of Mr Mataboge, that Adv Bawa is going to from tonight and tomorrow send whatever you need him to respond to. And that we get that by Monday from Mr Mataboge, which gives ample time all the PP and her legal team to prepare. That should be how we do it. There shouldn't be any train smash on that particular issue. We're here. We are aware about the issues that were flagged, including these kinds of questions that you raised. First point in terms of how we do that. We know that Monday and Tuesday is Ms Mvuyana with the Committee, and we have signed off arrangement because the understanding and the request of the PP is that she's going to be here with them next week for those two days. Adv Madonsela is scheduled for the 1st and 2nd of March. And on behalf of this Committee, as Chair, I would have written to her and indicated the areas of focus and we are very confident that those areas of focus shouldn't really be spilling over to any other day beyond the 1st and the 2nd of March. It was very specific and tight in that regard. So I hope therefore that helps you Adv Bawa in terms of just being ready to dispatch those outstanding questions for response, and once you do that it helps also the other team which then, once that is done, concludes Adv Bawa's approach and interaction with the witness.

Adv Mpofu: Cross-examination.

Chairperson: Can you mute Adv Mpofu?

Adv Mpofu: Why do you want to mute me? I can mute myself Chair.

Chairperson: You just keep on muting him every time.

Adv Mpofu: No, but Chairperson this is wrong what you are doing. Why do you want to mute me?

Chairperson: Don't do that Adv Mpofu. This is a meeting that has a chair that runs this meeting. I don't entertain any unwarranted uncalled-for kind of disturbances that you’re doing. Just mute him please. Just make sure you mute him every time he opens that mic. So that's what I'm indicating colleagues and so with the [7:17:18 – 7:17:30 inaudible].

Adv Mpofu: Can’t hear you. You muted the Chair.

Chairperson: Thank you. They can hear me.

Adv Mpofu: No I can't hear you.

Chairperson: Now please mute Adv Mpofu. So tomorrow is therefore taken out of the system as planned and scheduled, which is something beyond our control. But we're happy to indicate that we’re still staying focused to our programme. And we'll do everything, colleagues, to stay and keep that integrity of the programme. So far, there's no reason for us to really go beyond that. But even this issue that Adv Bawa’s going to deal with, with a return date on Monday in terms of our directives, that also applies within that five-day kind of period if it can’t go beyond that. The meeting is still on. So the next point I just want to address, just as I conclude with Mr Mataboge, you are still going to be on the stand with your testimony. Unfortunately, not tomorrow. It will be indicated to you when is that last opportunity for you to do that. But as for today, this is where we are going to pause with you as a witness. We thank you so far for being with us and participate. I also, colleagues, before we wrap up to just, it's been brought to my attention that's amongst us here we've got visitors – seeing them sitting there with Ms Adhikari. These are visitors from the US, if I’m correct. They are led by the Hon. Oliver Gilbert who I’m told is the chairman of Miami-Dade County board that's in Florida. Okay. And that's a team that he is with, who are here taking this trip on a business visit as part of the city's International Cities Conference. I hope that you will share a lot of the rich experience you have, but also you will take away in this developing democracy in this country a lot of the experiences that we have – including challenging ones of how to run coalitions, which is not very much in your space, you will get that more in Italian and other areas. But you are visiting a committee that is dealing with the issue of fitness to hold office. A first of its kind in relation to what you would know as ombudsman, that we know here as the PP. It's a novel process that we're dealing with. It's not similar to your Nixon, Clinton, and Trump impeachments. But there are similarities; it's not the same. So this is, if you think about that this is the kind of committee that you're visiting here. In this country, we've never done an impeachment on a president, never done an impeachment on a judge. But we're starting a process for fitness to hold office of the holder of one of the offices that are helping us with enriching our democracy. That's the exercise that we have started in 2022 or even before that. In the next month or two we are hoping to be coming to a conclusion. Thank you for visiting us and you are welcome in South Africa. Ensure you spend as much as you can to grow this economy. And then the next point I want to make is a birthday wish for the media person of this Committee, Ms Azzakani Raja, who has her birthday today, has been locked into this room the whole day. Happy Birthday Azza. I hope now that we are concluding you will be well spoiled when you get home. Thank you for your role, your performance and everything you do not only for this Committee, for Justice, for this National Assembly, in the different areas that you get thrown into. We really appreciate the role that you play. Thank you very much.

Adv Mpofu: I want to raise a point of order Chair.

Chairperson: Only Members raise points of orders, not a person who’s not a Member. Just mute him. Thank you.

Adv Mpofu: It’s a disgrace what you are doing.

Chairperson: Members, this is the point where we wrap up this meeting. Thank you very much.

The meeting was adjourned.