PP Inquiry day 36: Public Protector legal team withdrawal: way forward

Committee on Section 194 Enquiry

28 October 2022
Chairperson: Mr Q Dyantji (ANC)
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Meeting Summary

Video

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

Terms of Reference adopted by Committee on 22 February 2022 which may be amended from time to time

Committee for Section 194 Enquiry - Parliament of South Africa

This hybrid meeting followed the Public Protector's legal team walk-out the previous day after the Chairperson’s ruling to decline the PP’s application for adjournment pending the outcome of her intended review proceedings. The Committee mainly discussed the way forward following the withdrawal of the PP legal team.

The Public Protector opened the meeting with a formal response she had prepared for the Committee about the events of the previous day. Adv Mkhwebane confirmed that she did not terminate or restrict the mandate of her legal team to being limited to only the adjournment application. She requested a 10 day adjournment to consult with her legal team and thereafter seek the services of a new legal team if necessary. She however noted that her counsel would remain Adv Dali Mpofu, SC.

Parliament's Legal Services provided legal advice on legal representation withdrawl, taking the Committee through court judgments where the SCA found it to be ‘one of the oldest tricks in the book’ when a party gets into legal difficulty, for the legal team to withdraw or to have its mandate withdrawn, to force a postponement that was refused. The SCA held that such withdrawal or mandate termination did not entitle a party to a postponement. Legal Services then took the Committee through correspondence between the Chairperson and the PP legal team wherein they provided that they were ready to proceed. Legal Services gave various options at the Committee’s disposal. Emphasis was placed on the Committee’s constitutional duty to hold the PP to account and not waste public funds.

The Committee discussed these two submissions. Most Members agreed with Legal Services and thought that the walk-out by the PP legal team was staged as there had been a constant effort to delay the enquiry. However, the EFF argued that the PP should receive enough time to sort out her legal representation.

The Committee resolved to grant Adv Mkhwebane a three-day postponement until close of business Monday to prepare for her legal presentations, thereafter the hearings will resume on Tuesday 1 November 2022. The PP would be required to provide an update to the Committee on the outcome of her consultation with her legal team before resuming with the hearing of evidence.

Meeting report

[PMG draft report]

The Chairperson resumed the hearing and welcomed everyone back. On the previous day, the Committee adjourned on the note that, given what would have happened on the latter part of the day, that himself as the Chairperson and the team would retreat a bit and then come back today, having retreated, and indicate how they would proceed. The PP, the evidence leaders and he would have had brief interactions, verbally in the meeting but also through correspondence overnight, just to indicate that they were working, as part of the instruction for them to look at certain things, and they would have exchanged correspondences on different issues. So today they were going to share, firstly, their correspondence that they would have received overnight from the PP. He said that he was going to invite the PP to speak to that correspondence, on record, for everybody else to understand the kind of issues that she would have considered. Thereafter, he was going to invite the Legal Services team to talk to the Committee. Thirdly, he would open the meeting to Members based on what would have been shared with them by the PP, as well as the guidance from the Legal Services. Then he would allow Members to engage with that. He thanked the Committee for their attention in that regard. He would have received, as discussed, very late at night, the PP’s correspondence placing on record certain matters about what would have happened the previous day and what her thinking was going forward. He thought it would be fair that as the PP took the platform, that the correspondence be flighted.

The Public Protector’s Address about legal representation
Adv Mkhwebane thanked the Committee for affording her this opportunity. She agreed that she had sent an email. This morning the Committee had said that she must come to the Committee and be here to clarify. She read out the ‘Section 194 Committee address about legal representation’ [see document for details].

She pleaded with the Committee to give proper effect to this issue as it was the decision of the Constitutional Court in February 2022. Whether she would succeed to convince her counsel, she would have to deal with that. She thought that there were records, which she had indicated the previous day, on how the counsel had indicated that, for the previous day’s meeting, which was what they were meant to deal with. So it was a concern as well, the previous day, when she was addressing the Committee, when some of the Members were just laughing as if they were not addressing a serious matter. She thought everyone would want to proceed with the matter as expeditiously as possible. She was not in the position to participate for now because of the absence of her legal representation. At this stage, she elected not to say any other thing outside of this document or out of this information which she had shared now. Unfortunately, she had just drafted this urgently so that she could share it with the Committee.

Legal Services’ Advice
Letter from Seanego Attorneys 18 October 2022 – Request for recusal response
Letter from Seanego Attorneys 18 October 2022 – Time requested to go over recusal application response
Letter to Seanego Attorneys 19 October 2022 – Response to previous 18 October letters


Ms Fatima Ebrahim, Parliamentary Legal Advisor, said that the process remained unprecedented. However, as she had been saying from the beginning, it was underpinned by procedural fairness and rationality yet with no blueprint. She had tried her best when called upon to do so to give guidance based on how these requirements should be applied. She gave her advice to the Committee today in good faith, having in the very short time she had to best try and weigh up the legal consequences and options available to the Committee. However, as novel as this process was, in rendering her advice, she did so with reference to what she believed to be accepted and binding legal authority. Also, in trying to guide the Committee, she had to take stock, as the Committee also had to do today, of the context and the facts that gave rise to what had transpired here the previous afternoon. She did not believe that the decision of the PP’s team should be considered in isolation or as an isolated event and separate from other things that have unfolded before this committee to date. As such, she wished to bring the following to the Committee's attention, much of which the Committee would know as it formed part of the correspondence that was before the Committee.

She said that Adv Mpofu had come to the Committee the previous day making it clear that, in his view, the application for adjournment was going to be refused. He said it would be no surprise. When Members were posing their clarifying questions to the PP legal team, Ms M Sukers (ACDP) noted a concern in respect of the adjournment application that the PP may withdraw from the Committee's proceedings. In response Adv Mpofu confirmed that the PP would not be withdrawing from the Section 194 Committee. He did not indicate that counsel had been instructed to withdraw by Seanego Attorneys in the event that that application would fail. The Committee had deliberated upon the application and decided not to grant the adjournment. Once the Chairperson communicated this decision, Adv Mpofu announced that his mandate did not extend beyond pursuing the adjournment application before the Committee and that it was not permissible for him to address the Committee beyond that application because to engage further would be to participate in what he termed “illegal proceedings”.

She said that Adv Mpofu, Adv Bright Tshabalala, and Adv Mohlopi Sello then walked out of the Committee, as did the associate attorney from Seanego Attorneys, Ms Nafeesa Patel, who were the instructing attorneys on the record in this matter for the PP. It had every appearance that their mandate to represent the PP in the process, to all intents and purposes, appeared to have been withdrawn. If so, by Seanego Attorneys without any instruction from the PP, given that Adv Mpofu had indicated that he had no mandate moving beyond the application, having been engaged to represent the PP for the Section 194 inquiry and the PP not knowing what was going to happen. As the PP had informed the Committee, she did not instruct her legal team to withdraw. Ms Ebrahim had noted in the context of the correspondence between Seanego Attorneys and the Chairperson in the days leading up to what transpired yesterday, she could only presume that they were acting on the instructions of the PP.

She could inform the Committee as follows: There were two letters on 18 October 2022. In the first, it was stated by Seanego Attorneys, on behalf of the PP, “We further demand that the Section 194(1) Enquiry ought properly not to proceed, as currently composed, until the outcome of the proposed review proceedings.” – that being the review for the recusal. “In the event that, notwithstanding the above, the Committee nevertheless decides to convene a sitting to deal with the issues raised herein or any other issue, then kindly give us at least one week's notice thereof so that the necessary preparations and/or logistical travelling arrangements can be made, including securing the cooperation and assistance of the Office of the PP. During that period, consideration will also be given to the legal options available to our client.” The PP ought to answer to the Committee whether that occurred – that discussion on those legal options.

In the second letter, also dated 18 October 2022, following an indication that this Committee indeed intended to sit on 20 October 2022, Seanego Attorneys indicated that the PP and her legal team were not in a position to attend Committee hearings on 20 October 2022 and sought an extension. The Chairperson granted this. That letter further stated, “Even then, it is our intention to attend for the purposes of making an application for the adjournment of the enquiry pending the envisaged court challenge. Depending on the outcome of that application, notice of which is hereby duly given, we would be available to make realistic and practical arrangements for the way forward at that stage.” In a letter dated 19 October 2022, the Chairperson responded that it appeared from the second letter that the PP and her legal team would be in a position to meaningfully participate in the enquiry by the end of the current week.

He had stated further in that letter, “There is accordingly no reason why your client’s legal team should not be ready to proceed with a cross-examination of Ms Nelisiwe Thejane and Mr Cornelius van der Merwe, given that they have had more than adequate time since then to prepare. I note that Adv Mpofu has previously indicated that he would not need more than an hour with Ms Thejane. In any event, your client ought to have been aware that, after a decision in relation to the recusal application, the hearings would resume and her legal team would have to be prepared to continue.” She continued, “It is noted from media reports that the PP legal team was able to launch three further court applications during this month alone. It also appears from your letter that your client's legal team is using the time taken by myself for consideration of the recusal application to conduct other work and failing to prepare for the Committee proceedings. It therefore appears to be of their own making that the legal team is not ready to proceed and deal with the two witnesses that have now on more than one occasion been rescheduled. It is reasonable to assume that since the Committee has not been sitting since 21 September 2022, your client has had the time previously requested to line up her witnesses. Further, the PP stated intent to institute legal proceedings in respect of the recusal should not delay the Committee's work, in the absence of a Committee decision to postpone hearings or court interdict preventing the Committee from proceeding.”That was all made very clear in the correspondence.

 More importantly the letter stated, “In the event that the Committee determines that it will proceed notwithstanding the adjournment application, the hearing will resume with either Ms Thejane or Mr van der Merwe, as the case may be. You are hereby given notice that you should be in a position to deal with either witness on 27 October 2022”, being the previous day. “The leading of evidence in respect of Mr van der Merwe will be done either by Adv Nazreen Bawa SC, if the Committee does not support the call for her recusal and/or she does not recuse herself, or by Adv Mayosi as the case may be.” At that stage, the Committee was dealing with the recusal application of Adv Bawa. “Accordingly, please treat this correspondence as notice (as per your request) that the Committee will resume its hearings on Thursday, 27 October 2022, unless the Committee, having considered the adjournment application, determines otherwise, and you are given notice to be prepared to deal with either or both outstanding witnesses on that day and the following day, Friday, 28 October 2022”, this being today. “Also please ensure that you file the affidavits of your client’s witnesses that you have completed thus far, by no later than 21 October 2022, and also confirm the number of witnesses that have been secured to date. We trust that this accommodation of your request to be afforded more time is in order.”

The PP was hence given notice that the matter was proceeding with the witness after the postponement hearing in the event that that adjournment was not granted the previous day. There was no surprise in that. A further day was even granted specifically to allow the PP legal team to prepare for that eventuality given that they were in court on Tuesday this week. Hence, the Committee did not sit on Wednesday. It then begged the question as to why the same legal team that had been instructed and on brief for the entire Section 194 proceedings, both in this Committee and in the litigation, would have that mandate retracted and then only be given a limited mandate to deal with the adjournment application. In fact, on behalf of the PP, Seanego Attorneys had responded to the Committee’s letter of 21 October 2022, making it clear that any conclusion that their legal team was not ready to proceed and deal with the two witnesses was misconceived. Further, Seanego Attorneys had said that the issue of witnesses obviously and clearly depended on which way forward, if any, would be followed, and further took issue with the Chairperson’s tone of the letter, indicating that it was an accusatory tone and that the letter contained a false accusation of the alleged unpreparedness of counsel. On the contrary, and for the Committee’s information, Mr Seanego then indicated that they were very much prepared.

All indications were that all systems were ready to go at this point, regardless of the outcome of that application, bearing in mind that the Committee had received notice that there would, in the background, be the review proceedings. It begged a further question: What changed? Adv Mpofu was aware of these letters, and in fact, he had referred to the letters in passing the previous day. Clarity must be obtained from the PP having now discussed the matter with Mr Seanego the previous night, as to how between Friday 21 October 2022 and 27 October 2022 the PP legal team got stripped of their mandates without her knowledge. At least for the sake of the record and given that this Committee had an oversight function, the PP should clearly be on record and asked to explain the foregoing change of heart, if such occurred when it occurred, if she in any way detected or narrowed the mandate, and if she did not do so who precisely did so and on what basis this was done without her knowledge and her instruction – given that the letters reflected a willingness to proceed even if the application was not granted. This was particularly so as Adv Mpofu had placed on the record in the written application that they knew the outcome of the application. He had said as much that they were sure it would not be favourable.

Yet contrary to the abovementioned correspondence and espousing view that they had made, there was no indication whatsoever in the correspondence or even in the oral submissions the previous day that they were not ready or that if it would come to the stage that it had reached the previous day that the legal team would no longer be mandated to continue or that their brief would somehow now suddenly come to an end. Indeed, the claims that the PP legal team could not participate in the legal proceedings of the Committee had been raised as early as day one when it was made clear that the PP legal team was representing her before this Committee, and that the PP was attending under protest because they believed that this process was unlawful. This was not a new position that had now arisen that would have necessitated a walkout. If anything, this was the position that they had adopted from day one.

Coming to some of the legal issues, in terms of challenging a recusal application, as a matter of law when a recusal application is refused the Committee's proceedings do not suddenly become an illegality such that the legal team could not continue their participation. The usual and reasonable route to follow if a recusal application is refused is for the tribunal to conclude its working entirely and then, if necessary, for all the decisions of the tribunal, including the refusal of the recusal application, and any other objections to be challenged collectively in review proceedings. The PP was entirely within her rights to review the Section 194 process in the event that the House resolved to remove her. The Supreme Court of Appeal (SCA) explained in a case called the Take & Save case that, “an appeal in medias res,” meaning an appeal in the middle of ongoing proceedings, “in the event of a refusal to recuse, although legally permissible, is not available as a matter of right and it is usually not the route to follow because a balance of convenience more often than not requires that the case be brought to a conclusion at the first level, and the whole case then be appealed,” meaning that you deal with all your objections and all of your grounds of review and not deal with matters piecemeal.

The Take & Save case was a civil trial about a dispute on monies owed by an individual and his surety to a bank. The evidence of the witnesses reached a crucial stage in that case, and the defendant’s legal team then suddenly withdrew without two reasons. The defendant then represented himself and applied for a postponement. The trial judge debated the merits and was concerned that the postponement application was nothing but a tactical move to gain time. Nonetheless, the judge granted the postponement. The defendant then obtained new counsel, who then applied for the judge's recusal. The judge refused the recusal and that recusal decision went on appeal to the SCA. The case was useful because of the comments on the postponement and the comments made by the SCA on the issue relating to the withdrawal of legal counsel. This court stated that the presiding officer cannot be supine – in other words, cannot lie on his back. He must actively manage the proceedings to ensure control and avoid the waste of resources.

Ms O Maotwe (EFF) raised a point of order. She asked if the Committee could be given the document that Ms Ebrahim was reading because Members wanted to follow properly. It was very difficult to follow now that Ms Ebrahim had a document that Members could not see and did not have.

The Chairperson asked if Ms Maotwe wanted the document Ms Ebrahim was going through, to be flighted.

Ms Maotwe said that it could be flighted or even emailed to Members.

The Chairperson said that it would be forwarded to Members.

Ms Ebrahim said that at the moment these were her speaking notes, as she always prepared, which were her own personal notes. She continued that the presiding officer could not be supine, i.e. lying on his back, but must actively manage the proceedings to ensure control and avoid the waste of resources. The SCA had further said that it was one of the oldest tricks in the book when a party gets into a legal difficulty for the legal team to withdraw or to have its mandate withdrawn, so as to engineer postponement because the party would then not have legal representation. However, this trick should be rejected and in appropriate circumstances the postponement should be refused. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right. The SCA then moved on to consider the defendant’s act in appealing the decision not to recuse while the trial was ongoing and evidence still had to be led.

As she had mentioned earlier, the court said that to do so in the middle of a process, although legally permissible, was not always the correct route to follow, and that the balance of convenience would more often than not favour that it be brought at the conclusion of the matter. The SCA was clearly of the view that the proper course of action was to wait to challenge the refusal to recuse until the end of proceedings. Then on the recusal application, the court also concluded that the conduct complained of would never found a well-informed or reasonable apprehension of bias. So the appeal was dismissed and the decision not to recuse was confirmed. The trial would have then continued in the High Court. The SCA relied on the Constitutional Court's decision in SACCAWU, where it had been explained that a refusal of a recusal application should not be immediately challenged in a higher court. Instead, the first stage proceedings should be concluded in the entirety and only then should the bias issue along with any other issues be raised, so as to avoid the courts being inundated with multiple applications in respect of the same process. The court said an applicant for recusal cannot be said to be entitled to prosecute and appeal immediately.

Two considerations suggested the contrary. First, though there was some early authority that a decision by an applicant for recusal to proceed with the merits of the matter instead of insisting on challenging the refusal to recuse by way of appeal may constitute a waiver of the recusal objection. It is clear from subsequent authority that waiver in these circumstances only occurs if it is unambiguous. The recusal point unless so abandoned, therefore remained good for a later appeal. There could accordingly be no question of an entitlement to proceed immediately. She had mentioned this the previous day – nothing prevented the PP from dealing with the recusal at a more appropriate time. Second, a court that has dismissed a challenge to its composition has ruled that it is properly constituted. In these circumstances the Labour Appeal Court had the power to regulate its own proceedings, including the power to direct that the party whose challenge has been dismissed should proceed with the merits of the matter before it. Generally, considerations pointed strongly against piecemeal appeals though the matters remain overridingly one of convenience. Whether a court that has dismissed as recusal application permits the applicants to bring appeal proceedings first, will depend on a range of factors. These include the nature of the matter, the nature of the objection to the court's composition, the prospects of success in the excusal, and in the case of an appellate court, the length of the record.

The decision of these factors lied with the court itself. The applicants were therefore not entitled to proceed as of right with the application for leave to appeal. The fact that Adv Mpofu believed that the recusal applications were wrongly dismissed or the postponement was refused on a basis that was not valid, were in and of itself not sufficient reasons for the PP legal team to cease participating in these proceedings. This has been confirmed by the Constitutional Court and the SCA. The committee had paid heed to the various interlocutory-type applications and objections that had been raised since the motion was adopted. In these proceedings in particular, all of these had had the effect of delaying and drawing out proceedings far beyond what would be a reasonable timeframe for the conclusion of this important work. No doubt, every failed application and objection would, if it came to that, find its way in review proceedings, and be dealt with appropriately at that time by the courts. To insist to do so now was, in Legal Services’ view, premature and it frustrated Parliament in the fulfilling of an important constitutional obligation which could only be fulfilled, as she had said the previous day, prior to the PP’s term expiring. There could be little doubt that if the Committee were to now delay its work, the work would not be completed before the PP’s came to an end.

On the issue of the withdrawal of the legal representative representatives, this invariably provided scope for the seeking of a postponement, but it was not simply there for the asking and granting. The termination of a legal representative’s mandate or their withdrawal has been recognised, as she had indicated, by the SCA as being one of the oldest tricks in the book to engineer a postponement. The settled legal position was that such termination or withdrawal does not in fact entitle a party in question to an automatic postponement. In this regard, this SCA explained the approach as follows, “A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources. One of the oldest tricks in the book is the practice of some legal practitioner, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public, and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.”

There could be no doubt in the similarities between a court and Parliament as far as Parliament too owes a duty to the public and is exercising a public function here, in the interests of the public, with public funds and public resources. Indeed, in ensuring that the process is fair, regard must be had to what such fairness entails as far as witnesses are concerned, and the public on behalf of which Members are mandated to act. This was especially so given the timing of the withdrawal, the apparent lack of knowledge of the PP as to the mandate being removed, together with Adv Mpofu’s unwillingness to indicate where the mandate arose from, who gave it, and when precisely it was given. It may well be that it was done precisely to seek the very postponement that the Committee refused. She unfortunately did not have the facts to support that. The Committee was scheduled, nevertheless, to continue its hearings today with the witness. It was made clear, as she had said, in both the correspondence and at the start of the proceedings the previous day, that if the adjournment application failed, the process would unfold with the cross-examination of Ms Thejane and the leading of evidence of Mr van der Merwe – a witness whose appearance had now been delayed for some weeks despite the evidence leaders apparently being ready to proceed. Members would have seen that Ms Thejane was in the meeting the whole of the previous day.

It appeared that the PP was now requesting a postponement, but on the grounds of lack of legal representation, and to persuade the legal team to return or worst case to get new legal representation. It was unclear what the cost implications thereof would be to the public purse. The PP had indicated that she could only consult with her legal representatives on Monday and Tuesday of the following week, and sought to revert to the Committee by 7 November 2022, if she understood correctly, which was some 10 days later. There was nothing before this Committee to indicate what these 10 days were required for and what the reason for the delay was. It was hard to believe that it would take this amount of time for her to confer with her legal team to adjudicate this postponement application. The Committee would have to now interrogate a number of issues in determining how to proceed. This included what mandate the PP gave her legal team on 27 October 2022, bearing in mind they had been well notified to continue the examination of Ms Thejane and that the Committee was proceeding with Mr van der Merwe, and had indicated they were ready to proceed. Further, this included whether the PP had instructed her legal team to withdraw from the Committee proceedings the previous day in the event that the adjournment application was dismissed or whether her attorney had acted out of his own. This was because one would think that if that was the intention or if that was the request of the PP, that such should have been included in those submissions itself. Further, it included whether Adv Mpofu or Adv Tshabalala and Adv Sello were still representing the PP in the mooted review application and other litigation of this Section 194 process but not in the Committee's proceedings. Right now she was not clear as to what the position was in respect of those review proceedings. The Committee was told that they would be served with papers fairly shortly. It was unclear whether that was still the case and whether Adv Mpofu was still on brief in respect of that portion of the matter. As the PP had indicated, she did not instruct her team to withdraw from the proceedings in the event of the adjournment. That then begged the question: Did the PP legal team withdraw to force a postponement to undermine the decision that the Committee had taken the previous day after careful consideration? Given that the legal team explicitly anticipated the adjournment being dismissed, what did the PP then anticipate doing in the dismissal? Surely one could assume that this scenario would have been discussed at length.

In fact, the correspondence had indicated that consideration thereto was given. The Committee was now told by the PP in effect that she was not privy to these conversations, notwithstanding that they acted on her behalf. It would appear that there were no answers to some of the above, and the PP was now requesting time to consult presumably on all the issues that she was raising. This then left the Committee in a very difficult position where its decision of the previous day was being undermined. For the reasons outlined, with reference to the Take & Save case, the Committee could now decide to what extent it would allow this development to scupper proceedings. The Constitutional Court had directed that the rule on legal assistance be read as follows, "The Committee must afford the holder of public office the right to be heard in his or her own defence, and to be assisted by a legal practitioner or other expert of his or her choice. Legal representation is not an absolute right and we must give consideration to what the full meaning is in the context of this Committee.” The court had specifically noted that Members may ask questions of the PP directly, even when she was not giving evidence at the time, and that the legal representative would not be allowed to give evidence on behalf of the office bearer.

These were all part of the Committee’s ordinary oversight processes. As she has said the previous day, this was the ultimate oversight process and the Committee was not to lose sight of that. Whilst there was no question therefore that the PP was entitled to her legal representation, in fact she had advised that the Chairperson take whatever necessary steps to ensure that the Public Protector South Africa (PPSA) cooperated in securing this legal representation. In fact, the Committee had done so and the PPSA had played their part. One could not ignore the context in which this issue had now arisen and the timing. She did not, in bringing this to the attention of the Committee, cast aspersions on the PP, or her legal team, are their bona fides – it was not her place to do so. However, she had to reiterate her concerns that she had raised the previous day about the Committee being duty bound to perform its constitutional functions, which remained real and valid. Those functions, as she had said, had to be performed timeously. The Committee could, she believed, do a number of things going forward, which would still be procedurally fair and meet the standards of rationality.

The first option would be for the Committee to continue if it took the view that it was simply a ploy to force a postponement, in other words if it took the approach adopted in the Take & Save dicta of the SCA and allow the evidence leaders to continue with evidence in chief of Mr van der Merwe today, followed by questions from Members. The PP could then elect whether she would cross-examine or engage other legal representatives to cross-examine Mr van der Merwe at a later date. This option would allow the evidence leaders to wrap up the witness from whom they had obtained oral evidence, and in the interim start with the preparatory work necessary in respect of putting questions to the PP, who had indicated that she was keen to give her versions of the event. She did not believe that this would be prejudicial to the PP because such evidence in chief happened in a public setting and her team, whether it was going to be the existing team that would return or her new team, would still be afforded the time to cross-examine and to deal with the evidence should the PP wish then to do so. She said that the PP could also be afforded the opportunity to respond herself if she so wished. This at least allowed some of the important work of the Committee to continue and did not render the Committee immediately incapacitated. It also meant that if Adv Mpofu returned and again insisted that he wanted a certain time period from the last witness before he is prepared to lead any other witness, then this last witness would have already been led.

The second option was to agree to allow the PP a short time to get feedback and report back to the Committee preferably by close of business on upcoming Monday, after which the evidence of Mr van der Merwe would be led, knowing that the Committee intended to proceed. What she had said in relation to the first option would equally apply. The benefit of this option was that the Committee was giving the PP herself some advanced notice. Third would be to allow her the time and space has sought to negotiate with her team to return or find a new team via the PPSA, and communicate this to the Committee by 7 November 2022 or earlier if she is able, as per her request made this morning, at which stage the way forward became a little clearer as court applications, if they were still going to be launched, would most likely have been launched by then. This option though would inevitably lead to a longer delay and would be tantamount in essence to granting a postponement, albeit on different grounds, which was previously refused, no matter how dressed up it now was. If the feedback was that there is a new team, the suggestion of allowing the evidence leaders to then at that stage continue with Mr van der Merwe was still a possibility if the Committee agreed. Though, in all likelihood that would be vigorously opposed by any new team asking for further postponements. In her assessments, this led to the likelihood of the Committee not sitting this year.

The fourth option was to say to the PP that she had until a set date and time to sort out the issues that she now find herself with, and to then report back. Depending on whether there is a new team, that additional time be granted to that team to familiarise itself with the record before reconvening. She reminded the Committee that the evidence of the panel alone was over 11000 pages. That excluded all the evidence submitted in the process to date. It included all the transcripts and the hours of proceedings that had already occurred. This could conceivably take months and would likely only allow for a resumption of proceedings perhaps by mid-year the following year. In respect of these options above, the Committee could also seek external advice on how to proceed if the PP’s team does not return and what the impact of her procuring a new team would be on the process to date. This opinion could be sought urgently, notwithstanding the Committee exercising any of the other options that she had discussed. That was as best she could do under the short timeframe that she had to deal with the matter. She would leave it to Members to deliberate and of course for the PP to be given an opportunity to respond.

Discussion
Adv Bawa raised a point of clarity on something that was raised in relation to the evidence leader’s the previous day. It was put to the Committee that the evidence leaders were not entitled to ask the PP any questions. That was not correct according to the Terms of Reference and the Directives. She did not have a question to ask but simply wanted to set the record straight.

The Chairperson said that he would also respond to that later on.

Prof A Lotriet (DA) thanked the PP and Ms Ebrahim for their presentations. She thought that it was important that the Committee focused on their own rules, Section 129 as Ms Ebrahim had referred to, in that the Committee must afford the holder of public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice. However, as was pointed out, this did not mean that the Section 194 Committee proceedings could not proceed where the PP did not have a lawyer present. It only meant that the PP had the right to choose a lawyer and have him or her assist her. Now this was much the same in our courts, where accused persons in criminal trials and parties in civil proceedings also had the right to legal representation. However, that did not mean that the courts could not proceed without such lawyers being present. In appropriate circumstances, in fact, the court could proceed with the hearings without these lawyers being present, and this frequently happened in our courts. Our courts have also warned about the right to legal representation that it did not entitle, as Ms Ebrahim had pointed out in the Take & Save Trading case, that you are entitled to a postponement merely because you do not have legal representatives and especially if they withdraw at the last minute. She thought it was very important that the Committee check and see if Take & Save Trading was referred to. The specific part of that judgment was very appropriate for the Committee’s proceedings here.

Now, in this case it was difficult to understand on what proper basis Adv Mkhwebane’s lawyers could have withdrawn. The Committee did not really know. No proper explanation was given. Those were the questions the Committee had to have answered. The attorneys and counsel for Adv Mkhwebane owed this Committee a proper explanation. Underscoring this in the letter of 21 October 2022, Seanego Attorneys recognised that the adjournment application would be heard on 27 October 2022 and then vigorously denied that the legal team and counsel were not ready to deal with the next two witnesses. Now, if this was truly the case that the mandate of the legal team only extended to dealing with the adjournment application, that point should have been made then. She was very concerned that what appeared to have happened is that when the adjournment application was refused by this Committee, the legal team then withdrew in an effort to secure Adv Mkhwebane the postponement that had already been refused by the Committee. This was what Ms Ebrahim had referred to in the SCA case, which was described as the oldest trick in the book and an abuse which should be curbed by refusing a postponement. In the circumstances, it seemed to her that the Committee should refuse the postponement, or at the very least at as was proposed as one of the options, grant it only for a very brief period – perhaps the very latest, the following Monday afternoon at close of business. Anything else would be at odds with the duty of this Committee to expeditiously and efficiently proceed with and conclude these proceedings.

Dr C Mulder (FF+) thanked the PP for the input that she had given this morning from her perspective, as well as the legal input and the advice given by Ms Ebrahim. He thought that the specific issues that Ms Ebrahim had dealt with and the case law was very helpful and very relevant. It would be recalled that on the first sitting day of this process months ago, after he had listened to Adv Mpofu on that day, he had said that it was clear to him that the intention was to keep the Committee busy until the expiring of the PP’s term. At the time, Adv Mpofu had taken very strong objection that he could say something like that. As the Committee proceeded, he was slowly but surely getting the idea that he was absolutely right. Now, the legal team had indicated to the Committee that there were some options that they needed to consider and there were four options spelt out. The problem was this: At the moment, he thought that the Committee first needed an answer from the PP herself. She was the client; she was the person that gave a mandate to her legal team. Her legal team could not revoke the mandate by themselves. They were there in terms of practicing lawyers and practicing attorneys and to keep up the profession, to act on behalf of the instructions of their client.

Now, it seemed that there was a problem. The client had indicated to the Committee that she did not give such an instruction or end their mandate. This was something that then needed to be investigated, because this institution of Parliament could not be held ransom by legal people, legal representatives, who had other agendas. In the first instance, he could not see why there was any need for even an application for an extension or for a postponement. Some weeks had gone by where the legal team of the PP had time to prepare and to be ready to proceed. Adv Mpofu found almost three hours this week to attend a press conference, not in the audience, but as part of the presentation. So Adv Mpofu had had more than enough time to be prepared and to be ready to proceed. He said that he had his views in terms of the four options and he would like to come back to that. He thought, first of all, the Committee needed a clear and direct answer from the PP now, on whether she gave an instruction to end that mandate. Once the Committee had that answer, they could proceed.

Mr B Nkosi (ANC) thought that he was going to combine a proposal with comments on what the PP had said. Firstly, he noted the input made by the Committee’s legal advisors and took into consideration the inputs that they had made and the suggestions therein. He had heard the PP say that after the Committee or the Chairperson had heard the application for adjournment, the Chairperson then ignored the requests. He just wanted to clarify that this Committee did not ignore that, because this Committee had deliberated quite extensively on the requests and motivated its decisions. In any way, to indicate that the Chairperson has a discretion which he must exercise in terms of whether he accepts or rejects a request for adjournment, this was a discretion that lied entirely with the Chairperson, advised by this Committee. He thought that the Committee had followed due process in rejecting that request. The Committee was threatened with a court challenge the previous day. Adv Mpofu had extensively spoken, and he had warned Members that for each and every sentence he would say, he would go to court if the Committee refused.

Instead of going to court or readying himself, or implementing his 40% of his 60% readiness, Adv Mpofu instead walked out in what seemed, to him, to be a very pre-planned and staged walkout – currently without the knowledge of the PP, until she clarifies whether she had given the mandate for them to walk-out. There was a decision of the Committee to proceed with the process and to consider the next steps in this process and those had been outlined. He thought that the PP had been given an opportunity to address processes within this Committee, to clarify them, and to exercise her right, and also processes outside of these proceedings, as she had done through going to court. This was an indulgence that had been given to the PP extensively. However, the indulgence was not inexhaustible. He thought that, for now, the Committee was satisfied that they had afforded the PP enough opportunity to address whatever she wanted to address, both inside and without. The Committee would not tire to continue to give her this opportunity to do so whenever she needed clarity, but this was not inexhaustible. There had to come a time when the Committee called on her to take this process seriously.

Therefore he suggested that the Committee do the following: The Committee would allow the PP the opportunity to consult with her legal team and/or seek a new legal team. In doing so, the Committee implored her to note that time had now become of the essence in this Committee. The Committee ran the risk of running this process outside of the reasonable time permitted by both the National Assembly (NA) and its own directives. Therefore, he proposed that the Committee must continue on the following Tuesday, and that the PP is given the opportunity to consult with her legal representation from now after adjournment until the following Monday afternoon. The Committee would resume the Tuesday morning with hearing the last witnesses that were scheduled to address the Committee or to give evidence to the Committee.

Mr V Zungula (ATM) started off by saying that what had happened the previous day was unprecedented. It was his view that, as it had happened the previous day, the Committee needed time to reflect and make sure that, whatever the Committee did, they did not rush their processes and they sat down to apply their minds because the process was very important. As he had stated even the previous day, this process was a first ever enquiry of this nature. Therefore, it would set the tone for other processes, both in the following year or 50 years, and in the functioning of and maturing of South Africa’s democracy. Therefore, it was very important that the Committee sought advice as much as possible from experts and from people who were not part and parcel of the proceedings in the Committee. He noted that the legal advice of Ms Ebrahim was particularly one sided, because she was inherently part of the proceedings. Therefore, her advice would always take one particular direction for that reason. Now, the Committee could not take her legal advice as a gospel truth. The Committee noted and understood and it was public knowledge that Parliament had lost cases in the past when those cases were adjudicated in the courts. In those cases, Parliament had been receiving advice from legal advisors within the institution that Parliament was on the right, but when going to the courts Parliament loses.

Now, he would propose, given the importance of this process for South Africans, the PP, and the maturing of South Africa’s democracy, that the Committee does not rush these processes and take emotive decisions. The Committee was to first ascertain or get independent legal advice from people or institutions that were not part and parcel of these proceedings. That was the only way in which the Committee could get a sober view – a view that was less political but more about the rights of the PP, justice, and fairness. That was his first proposal, that the Committee get that independent legal advice. Secondly, the process needed to be founded on the principles of justice and fairness and rights to legal representation. It would be remembered that the PP had to fight and go to the courts, so that whatever happened in this process, at no stage must she not have legal representation. Even when the rules were actually set up for this particular enquiry, in fact, the decision that was taken by Members was to ensure that the PP did not have legal representation. It was only after the courts were approached that the court ruled that, indeed, it would be a travesty to justice if she did not have legal representation.

Now, what had happened the previous day, he repeated, was unprecedented – which was due to disputes which had been long time coming. The Committee knew that almost ever since the enquiry started, there have been disputes between the Chairperson and Members, and between the Chairperson and the legal representatives of the PP. Whenever there were disputes between Members and the Chairperson, the Committee had always maintained that they need to approach a sober and independent person such as the Speaker from their side as Members of Parliament. However, in the case of the legal representation of the PP, their view would be to approach the courts because that was the best avenue from their perspective that would resolve these disputes. The disputes were natural. People always had disputes and the courts would always be approached to resolve those disputes. Now, he did not view it as threats when a person was saying, “I do not agree with you here, let us get the view of a court or let us get the court to resolve our disagreement.”It must be remembered that it was very important that in light of this process there must not be one party that will feel aggrieved, and there must not be one party that will feel as if their rights have been trampled on. That was why the courts became very important.

Therefore, the courts were still to adjudicate and resolve some of these disputes. It would be prudent for the Committee to allow the courts to adjudicate and resolve some of these disputes so that when the process is moved forward, they knew that it was a process that would not at the end, when saying they were done with this particular process, result in the courts being approached and the entire report that this Committee would have to deliberate and present in the NA being found wanting. He reminded the Chairperson that there had been couple of reports that had been adopted or agreed to by committees in Parliament and the NA. When those reports were taken to the courts for scrutiny and adjudication, some of the reports were actually overturned, even to an extent whereby Parliament had been found to have violated the Constitution in its work. That was why he proposed that the Committee not rush the PP. The PP would have been as surprised as much as the Committee had been surprised. Therefore, the Committee had to allow the PP a reasonable time to consult, ascertain the way forward, and come back to the Committee. She would consult and make a determination whether to continue with the legal representative or seek new legal representatives, and then the Committee could take it from there.

The Committee could not give the PP a time that was unreasonable by saying by the upcoming Monday. It was Friday, and chances were that the deliberations of this Committee might finish in the afternoon. Now in the afternoon, the Committee expected that a person must go and work throughout the weekend. The Committee did not know their commitments. Also, the people that she needed to consult; the Committee did not know their commitments. Now the Committee was going to force her to take rash decisions, because the deadline of the Committee was Monday afternoon. That Monday afternoon time was unreasonable. He asked that the Committee give her a reasonable amount of time, because the Committee wanted justice and they wanted this process to be fair. The Committee did not want a process whereby the PP has been compelled or forced to make urgent decisions because the Committee did not understand her position. It was to be remembered that this was an enquiry to determine her fitness – there was no guilt here, and there was no one said to be unfit to hold office or anything of that nature. That was why he strongly proposed that the Committee needed to be fair to the PP, because this was her reputation that was on the line. This was her career that was on the line. Therefore, the PP must do anything and everything in her power to salvage her reputation and her career.

Now, by being forced to make decisions over one or two days, a decision that would implicate the rest of her life, he thought it would be unfair. As Ms Ebrahim had stated, just from the panel there was over 11000 pages. Obviously, there were so many things to consider for the PP in terms of her moving forward and the way forward in this regard. That was why he wanted to appeal that the Committee not create short turnaround times for the PP, because they were going to handicap her. He asked that the Committee allow her reasonable amount of time. She was here and the Committee could ask her what amount of time she would require to consult whoever she needed to consult. He could not imagine if she wanted to, because part of the consultation would have to touch on the issues as to why the legal representatives staged a walk-out. What are the requirements or what needs to happen for that legal representation to come back if they are still hoping to come back and represent her? If the PP was going to request for new legal representation again, she would have to have the difficult task of ascertaining who is able to take on this particular case and try and catch up as much as possible so that they are able to continue doing the work of representing her. This was a very critical matter that did not need the Committee to take unreasonable demands to the PP, that by Monday afternoon she must report.

Ms J Mananiso (ANC) said that her first question was for Ms Ebrahim to just give clarity. What are the implications with the withdrawal of yesterday? She went straight to the issue of what the Committee was discussing. One wanted to note that, the previous day, the Committee had deliberated on the issue of the adjournment or any postponement. She wanted to emphasise the fact that as this particular Committee, they had agreed they were continuing with the process. One would want to indicate that actually, the previous day, some Members felt that as the Committee they had been undermined. As Mr Zungula had said, it was an unprecedented incident that could have happened. She wanted to emphasise that, actually, it was unethical that, as Members of this particular Parliament entrusted and being given a mandate to actually play oversight and accountability, they had been undermined the previous day.

The Committee hoped that people were learning that it was difficult to actually make people account when they had to, and the Committee always liked to pretend or emphasise that they were doing this on behalf of the society. She hoped that society had noted that when the Committee did this work, it was not easy. Some Members even forget themselves along the way about who they were because of things that they were exposed to, other people inciting them. They were supposed to attend to issues but were dealing with personalities. She wanted to say to the Committee that she thought they had actually exhausted all of the opportunities of giving the PP space to actually exercise her rights in terms of getting representation and everything. So far, it showed that these were delaying tactics. On the PP representation, she did not understand why the PP needed 10 days. For her it was too much. She wanted to agree with what Mr Nkosi could have said, to say that the Committee should at least get a sense by Monday or Tuesday in terms of what needed to happen moving forward but with a view that, as the Committee, they were actually continuing with their process.

She thought it would be unfair for people to want to say that they were not reasonable. The Committee had Terms of Reference, they had a program that they had been chopping and changing, when there were pressing issues that needed to be amended. The Committee had agreed when they started that, as and when there were pressing issues, that particular program would be changed. There was nothing wrong about actually agreeing on specific timeframes but going beyond 7 November 2022 was too much and it really showed that some of the people, especially from the PP’s side, were not actually ready to make sure that the Committee concluded this particular matter. One would want to as well emphasise the fact that it was important that as the Committee went through the process, they took note of what Ms Ebrahim could have said in that they needed to go and seek legal advice as well. As she concluded she wanted to say that in the following week, the Committee should start continuing with other pending witnesses that needed to come forth.

Mr X Nqola (ANC) started by echoing the views by Members in that the Committee should welcome the submission by the PP. Of course, the Committee was in an unfortunate situation, all of them. One part that he did not get, and perhaps it could be answered later, not now, was the actual timeframe. The PP kept on using Monday or Tuesday, so he did not actually capture the specific day and specific timeframes she needed. He thought even Parliament's Legal Services further said that that was how they had captured it. Perhaps later on it could clarified? He thought, in echoing his colleagues, the Committee welcomed the presentation and equally welcomed the advice by the Parliament Legal Services. He wanted to say on record that he was confident in their capabilities in that they had taken the Committee from the start of this enquiry to date and they had guided them in providing legal advice. Of course, none of the Members would have said that legal advice was the gospel truth. There was no such thing. In actual fact, according to the contract, Members had agreed in this Committee that the advisors were serving as advisors only. They were not making decisions, but they were meant to capacitate Members to arrive at a decision – having seen a number of occasions when the advice was helping them. There was no such thing as advice as the gospel truth here.

He wanted to reiterate that as per the resolution of the Committee the previous day, the enquiry must proceed. Now, the question which the Committee was posed with was how they would then proceed with the enquiry. When and how is the evidence going to be led? Who is going to lead that evidence? This had to be balanced with justice and fairness. The Committee must be fair to the PP, they must be fair to the Members, and they must be fair to the nation entirely. The Committee must serve justice. He thought, since the Committee started this enquiry, they had been elaborate in terms of how they should dispense justice, and in terms of how they were proceeding with the Committee. He wanted the Committee to say things as they were. The PP was not confirming if there was an official withdrawal of her legal team. If that was what the PP was saying, he asked that it be placed on record that the legal team had marched out. The Committee had to call it a march out because it was a march out from proceedings. Members were all engulfed with that crisis. However, he thought that part of what was important was that the Committee be allowed to work. The situation was with the Committee now after the march out.

The Committee must of course afford the PP time to secure her own legal representation and ensure that when she comes back to the Committee, she must indeed be represented in the enquiry in terms of the Constitutional Court order and the Western Cape High Court views and all that. There was no dispute about that. He wanted to move in support of whatever time on Monday, for her to secure this. However, in that time, she would definitely be in contact with the Chairperson or the evidence leaders, to advise how far she was. In the meantime, there would be constant communication until the following Monday between the PP and the Chairperson or evidence leader to advise how far the PP was going in sorting this out. He was sure that no one was disputing that the PP must be represented in the enquiry. Another thing that ought to be remembered that Members were saying was a witness was in the proceedings the previous day, all day.

Further to be remembered, there was still a pending cross-examination by the PP. He thought that this time must equally allow her to prepare for that cross-examination. Then Tuesday the following week, the Committee would resume with Witness Ms Thejane for that cross-examination, then take Mr van der Merwe so that they could complete the first leg of leading evidence. The Committee still had time that they had to offer the PP to lead her own evidence. However, Members could not ignore the fact that the NA Rules instructs the Committee to conduct this enquiry within a reasonable time and to balance the reasonable time with justice and fairness. He was proposing and supporting those who had the same view that at least on Tuesday the Committee should proceed in finishing up the first leg of leading evidence.

Mr B Nodada (DA) made three very quick suggestions. He was not going to go into all the details of things as Members had covered quite extensively, especially Prof Lotriet. The first suggestion he made was that the Committee give the PP until following Monday at 16h00 to sort out her legal representation. The second suggestion he made was that the evidence leaders proceed with the last witness – as indicated that there was only one witness that was remaining that needed to be concluded in this regard. The Committee then knew that what they would then have to deal with was the PP taking them through the cross-examination of the two outstanding witnesses and leading her own witness in this regard. The third suggestion was that they get independent legal advice from an external source as to what then transpired in a situation whereby the legal representation of the PP has been withdrawn. If they do come back, what are the implications? If they do not come back, what are the implications? These were the three main suggestions he wanted to make to ensure that the Committee continued with their constitutional obligation of running the process, but also ensuring that there is fair and reasonable time in which they do so. This was so that in terms of the mandate that had been given to the Committee, constitutionally they were able to exercise and execute within the timeframes that were set for them, so that they do not find themselves in a situation whereby they are not able to fairly conclude the process in a reasonable time.

Ms Maotwe said that it really did not matter how one looked at this issue. The public that was watching these Section 194 proceedings turning into this was very unfortunate. The Committee was here because people could not rise above misguided and misdirected parties on Monday. Members were now finding themselves in this mumbo jumbo mess that they were in. Now it looked like they all did not know what they were doing or they could not handle complex matters. It was the Chairperson’s refusal to recuse himself that had effectively rendered this whole process questionable. The Chairperson had allowed his emotions to cloud his judgment and made this about him. He would have not lost anything had he recused himself. The less said about Mr Mileham the better. His continued presence here, when his wife was going around telling black people that they were uneducated, without matric herself, something that was believed that she was telling him at home, and was likely to be the same view, just made a mockery of this whole enquiry. The Chairperson allowed it; he had already made it clear that he was not bothered that himself and Members of the ANC or the DA were going to be biased.

The decision the previous day to refuse the application to postpone the enquiry and application to challenge the Chairperson’s refusal to recuse himself just confirmed to all watching that he was not bothered by what everyone thought about his own biasness. The Committee lost nothing when making this process as fair as possible. But they were here now and it seemed that the events that had happened in the past 24 hours had been treated with a shocking attitude. People were going up and down, forgetting even the basic tenets of natural justice, supported by the Committee’s own rules of Parliament. This morning, the Committee had listened to the PP, who was given a very limited time to process what had happened the previous day, let alone prepare a response to come here this morning with an expectation that she must be coherent, clear and as practical as possible. How unreasonable can the Committee be? The PP did not withdraw her own legal representation and had said that many times. She did not understand why Members were finding it very difficult to internalise this. The PP did not withdraw her own legal representation. She was equally shocked like all Members were when they walked out. She never gave an instruction to her legal team to work out.

Now, regardless of the reasons of walking out, despite whether they had merit or not, the bottom line was that they were not here – something which the PP had no control over. It was disturbing that the legal department of Parliament and other Members of the Committee were willing to cast aspersions on the very event which she did not have control over. The least said about the Committee’s Legal Service, the better. That was why committees were losing cases in Parliament. It was surely this incompetence that the Committee was seized with today, where somebody came with all the cases that were against what they were dealing with. What about the cases that is for? Why are you presenting such a biased presentation to us as Members of Parliament? Ms Ebrahim wanted to give Members a one sided view so that they took that view as being the final view. It was wrong, and it must be condemned. The Committee had to stop wasting taxpayers' money; they were going to lose this and they were going to look like idiots here. The Committee was not part of this circus and they would not agree to this.

Ms Ebrahim behaved like she had some agenda from dark forces who wanted this process to be completed as quickly as possible. She came here with aspersions that the PP wanted to drag this thing until the end of her term. Did the Committee hear the PP saying that? Why is the Committee not being patient with the PP? She was exercising her democratic rights as a citizen of this country. Everyone had to be patient. It was a law that governed everyone, whether they liked that law or not, but they were bound by that law. Members made that law. The Committee should let the PP exercise her right – regardless of how long it took; it was justice at the end of the day. Of course, Ms Ebrahim had acknowledged that, in her speaking notes, there were a lot of facts she did not have. But even that, the legal department of Parliament, she continued and made a lot of conclusive statements. It would have been responsible for her to simply request time to consider all the facts and prepare a coherent submission and give the Committee that submission to follow. Not something that Ms Ebrahim speaks on and the Committee is now expected to be responding to it in detail or reject that.

Members must remember that they were not here to represent themselves but were here to represent the public. Her proposal was that the Committee allow the PP reasonable time. The Committee should postpone the sitting and reconvene when the PP has established her representation clearly. This issue of giving her until Monday, the Committee was already being unfair to her. It was not a challenge to the decision of the Committee to postpone the enquiry. It was not. On that one, it was clear that the Chairperson wanted to remain biased. That was fine. The Committee was okay with that and heard that. However, the PP had come here this morning and already said that the previous day she called the Director of Seanego Attorneys and they agreed on the meeting either on Monday or Tuesday. She did not know where the Members were or who they were listening to because that was what the PP said. The Chairperson could go back to the recording; that was what she said. The PP went further to say that she appealed with Members to give it until Friday the following week or the Monday thereafter. What is so difficult about accepting that? Why is the Committee being so unreasonable to the poor woman?

When the recusal application against the Chairperson was presented here, he had given himself a good two weeks to think about whether he wanted to recuse himself. Why is the Chairperson denying the PP the same opportunity? Or is it a privilege that only comes to the Chairperson and not extended to the PP? Why are Members allowing that? All Members kept quiet when the Chairperson said, “I will come back to you Members on whether I must recuse myself or not.” It had gone quiet for a good two weeks. None of the Members had said, “Chairperson, you are wasting time, we want to continue this matter.” However, today, because the PP was asking for the same thing, the Chairperson was saying that no, she could not do that. That was unfair. That was how unfair this process was, and unprocedural and biased. Finally, she went onto her last point. Whether the Committee liked it or not, the Constitutional Court had ruled, and she was going to read it word for word so that the Committee could internalise this thing and it must sink.

The Constitutional Court had made the following ruling, “Paragraph 118(a)(i) of the order of the High Court is amended to read: ‘(i) the phrase ‘provided that the legal practitioner or other expert may not participate in the committee’ is irrational, and inconsistent with the Constitution and is declared invalid. The proviso is severed from rule 129AD(3). The amended rule now provides that the section 194 committee: ‘must afford the holder of a public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice.’“ That was what the Constitutional Court had said in this matter – not in another matter, in this matter. Now, if the Committee continued without giving people the chance to get legal representation and to continue without legal representation, they would all be in contempt of court, and run the risk of being taken to prison because they are stubborn and behave stupid. So the EFF was not going to be part of the stupidity. The EFF rejected that they must continue as the Committee without the PP having legal representation. The Committee should afford the PP a chance to go understand what had happened the previous day and get the new mandate and give herself the chance to go and look for another legal firm, to get another legal representation, and come back to the Committee.

Ms V Siwela (ANC) wanted the Committee to put it on record, on the presentation by the PP there was a sentence or a clause which she did not agree with, which said that the Committee ignored or rejected or dismissed. The Committee never ignored the presentation. What they did was they deliberated the previous day accordingly, and at the end as the Committee they rejected and dismissed that application. They did not ignore it. She wanted that to be corrected. Secondly, she supported the view that the Committee give the PP a chance to liaise with her legal team. Already the Committee was running out of time. Members had other responsibilities in Parliament – they were not here only for this Committee. So that should be taken into cognisance. She thought the Committee was patient enough. To execute their duty as an organ which was doing oversight in Parliament, they were supposed to be given an opportunity to execute their responsibility at a reasonable time. She did not agree with those other stories of delaying this process again. The Committee had waited and she thought it was enough.

If she may be detained today, now, whether it was a Friday or Saturday, she was at liberty to get representation. So she did not agree with the notion of saying that the Committee needed to give the PP time. Time had been given. What was questionable now was the issue of the withdrawal of the legal team, which they were not in agreement with. The Committee sympathised with the PP, and they were not going to force her to stand on her own. The Committee was allowing her to go and consult, but it could not be long. She believed the Committee needed to proceed by the following week as per their decision the previous day that they were dismissing that application based on reasons which were tabled the previous day. So the Committee was requesting her, since she was saying she was ready to cooperate, that cooperation the Committee appreciated. However, the Committee should not delay this process for too long as one had indicated that the nation was watching them. To avoid a lot of stories and delay tactics, the Committee needed to proceed. By the following Tuesday, this Committee should proceed accordingly.

[Break]

Mr B Maneli (ANC) said it was unparliamentary for Ms Maotwe to refer to Members as stupid and idiots. He wanted that to be withdrawn as it was unparliamentary to do so. More importantly, Members should respect each other in the way they addressed each other as Members in order to value each and every Member's contribution in this Committee. He wanted the Chairperson to deal with that because surely he heard those words used by Ms Maotwe. He moved onto the real matters on the table. Firstly, he noted the presentation made by the PP. Of course, there were questions that one may want to be clarified. He was doing this, of course, mindful of the fact that, yes, there was a court decision. As the Committee looked at different clauses, they would look at them comprehensively and together as one judgment. The same judgment allowed the Committee to ask questions directly to the PP, as the right to legal representation does not prohibit Members from asking those questions.

He thought it was at the point of answering those questions where a need for legal advice would arise but other questions may need to be answered. He was only asking clarity questions based on the presentation made. The Committee may need clarification and this was important for the future, so that if the Committee had what Mr Zungula called a march-out, they should understand how to react to that. If it was said that the mandate was related to the submission of the adjournment application, does that mean that there is a mandate for every sitting of the enquiry? Or have the services been procured by the PP to deal with the entire enquiry? This was important so that the Committee knew if there were to be continuous march-outs, whether they were going to be introducing new legal representatives each time, and based on the case law quoted by the Parliamentary legal advisor, if it would then border on deliberate collapse of a process to force an adjournment. For him, it was a real issue for clarity.

Members were no longer discussing the decision taken by the Committee to reject the adjournment application. In the main, it was about finding out how the Committee proceeded to do its work, and that needed a discussion with the PP, evidence leaders, and so on, coordinated by the Chairperson, to look at the operationalisation of that continuity. He took this presentation to be about that operationalisation indicating what could be challenges in possibly proceeding or not. That was the first point. Second point on that operationalisation, was informed by the letter which indicated that in case this was rejected the Committee would have proceeded even by the previous day in the completion of the other witnesses. This was where there would also be evidence led but also where there would be a witness where the PP and her legal team would elect to cross-examine, or as they would have done before, indicate that they did not think that there was a need to cross-examine, given what the saw before them. So it was on record, as such.

In that score, it would mean that giving extra days was about really getting the Committee to first complete the other part, and as the Chairperson would have done, from time to time, as part of that fairness. Even when the Chairperson had given the timelines, he also agreed that the situation would be assessed as the Committee progressed. A determination would be made at that point on whether to allow extra time so that parties were able to exhaust all questions they still had. He had seen that happening in this Committee as part of that fairness. He agreed the Committee should indeed allow that consultation and resume on Tuesday, where they were able to get the other witnesses. Surely at that point, there would be an indication on how the next process would go of getting the witnesses if the PP should elect to bring those witnesses that would have been prepared to come and speak on what they were able to present before the Committee so that the Committee is able to make informed decisions. If that question was not answered, he was worried that the Committee convened the following week and then there another march-out.

The presentation seemed to suggest that the PP would undergo a process of persuading her legal representatives to return and in a case that that did not happen, she would have to look for new legal representatives. Once again, it still brought the point: What were the terms of reference of appointing the attorneys who then gave instructions to the counsel? Perhaps his last point was raised by Ms Mananiso about the Committee being undermined. If one had to take this submission, which confirmed the verbal submission made by the PP yesterday, that she was not aware they would walk-out. However, the second view was that at the time the Chairperson had wanted to present the Committee report, the attitude was that the PP and the legal team had already heard what the Committee had said and decided. Why was he raising this point? At that time, the PP legal team were absent from the sitting and were able to follow it [on the digital platform]. They would be able to craft a resolution immediately that they would walk-out on the basis that the decision was against what they wanted as an outcome. Therefore, it would be reasonable for anyone to say that in proceeding this week, there may not be representation, but the argument could still be raised that they were still able to follow at least on record and be able to make the review. This would speak to what Ms Mananiso about the many days that may be needed. If people had at least demonstrated the capacity the previous day that they could be out of the meeting, they did not even need to be briefed, they had made up their mind. He was raising this point because some of the inputs were saying the Committee was not reasonable, they were pushing for adherence to timelines and there was no justice in this.

The truth of the matter was that it was contrary to that. Time was afforded. Time was afforded to brief the PP legal team about the outcome decision and before even doing that, the PP legal team were ready to move on because they knew everything that was discussed. It was confirmation that nothing was hidden from the public who followed the deliberations. They were able to know where the Committee was if they had been following the discussions. At this point there was no confirmation that there would be new representation. There was nothing that said there was formal withdrawal.

Taking all that into account, the Committee should be able to proceed next Tuesday with the evidence leading. As usual, the Committee would use discretion to assess how far they go on the day. Surely, between the PP and evidence leaders, there could still be a discussion on how the second part, which was affording the PP the opportunity to state her case and convince the Committee why she should be exonerated. It was really about the actions the PP took to improve service delivery in the Office in terms of the time it took and all that. The Committee had been listening. Until the Committee had listened to the PP’s side, justice was still absent. The timeline must also be understood in that a delay in dealing with the matter, could also be construed as denying justice to the PP of having the case being heard speedily, whilst minds were still fresh and were able to bring evidence.

Ms Sukers thanked the PP and Legal Advisor for their submissions. It was very important for the Committee to not pay lip service to the issue of respecting women. She found it objectionable that Members could insult women in the way that they did, or any human being. In light of the fact that this Parliament and all parties had made it their priority and one of their key drivers to look after women, Members should not come here and then insult professional women in the manner they did. She wanted that to be noted. She wanted to apologise to the Legal Advisor, Ms Ebrahim, as she needed to hear that public representatives who spoke to support staff in that manner was not okay. Members had allowed themselves to be pushed to the barrier when it came to how they handled people within the Parliament of South Africa. It was inexcusable for the Committee to allow people to be treated in an ongoing manner where their dignity got damaged.

She had a few questions that she wanted to ask. The first was already mentioned by Mr Maneli. What was the mandate that the PP gave to her legal team? Had the PP instructed her legal team to withdraw? Lastly, is there a breakdown in the relationship of the PP and her legal team following their abandonment of their client the previous day? That certainly severely jeopardised her in these proceedings. She highlighted the issue that had been canvassed by Dr Mulder and Prof Lotriet, which was that the Committee needed to proceed. The Committee was accountable to the people of South Africa. It was not a nice thing to say; it was the reality. So was the PP. Every single cent that was being spent here actually highlighted the fact that poor people did not have recourse legally. It highlighted the gaps and inequalities that Members actually fought for or that they said they fought for. In light of that, it was not in the interest of the people of South Africa for the Committee to further accommodate delays.

She thought it was important for the Committee to remember, as was set out by the Legal Advisor, the context within which the events of the previous day had transpired. The Committee could not ignore that. All Members had already highlighted the fact, and the previous day, around the fairness of the process and the frameworks that were in place. The Committee could not ignore that. For any person to sit here and to say that the process today had not been fair would be a total misstatement. The Committee had a duty towards the people of South Africa and they could not allow themselves to become paralysed as a body that was meant to give oversight. For that reason, she thought and wanted to say that the Committee needed to proceed with speed as was said earlier, and that the Committee could not allow itself to be further delayed. Lastly, this Committee consisted of all the parties presented in Parliament. There was diversity here and a full representation that ensured balance. It was most important for the Committee to understand their obligation, not to their parties or to their interest, but to the people who actually put them here in Parliament.

Dr M Gondwe (DA) appreciated the presentation from the Legal Services team. She asked the Committee to call a spade a spade. In this instance, what had happened the previous day was clearly planned. As Mr Nkosi had said, it was clearly staged. The Committee could not deny that there had been three recusal applications and the adjournment application the previous day. So there was a concerted effort, in her opinion, to actually stall or delay the proceedings of this Committee. She thought that it was time, as a Committee, that they acknowledge that in as much as the PP had rights, they also had rights as a Committee, and they needed to start looking into exercising those rights. She thought she shared the sentiments that the Committee had been undermined in this instance. The walkout that they had witnessed the previous day was unbelievable, but it had happened, and the Committee had to exercise their muscle.

The Committee was Parliament, and the PP was ultimately accountable to them. The Committee had to hold her to account before her term of Office ended. She thought that it was really time that the Committee sought legal advice on some of the rights that they had as a Committee. She knew that they had rights in terms of their rules – they had the right to summon anyone to appear before them. So the Committee had to really start exploring their legal options because they had been bullied enough and the situation had become, honestly speaking, untenable. She wanted to repeat that the Committee was Parliament, and they could hold institutions accountable. In this instance, the Committee had been charged with doing that. They had a mandate from Parliament. These proceedings were taking place on the premises of Parliament. They were initiated by Parliament. She felt like the Committee was being pulled by the nose at the moment and she wanted them to get back their control as Parliament, and they could only do that if they exercised some of the rights that they had.

The Chairperson said that he was going to revert to the PP to give her an opportunity to respond to the areas that had been sought for clarity, and they all seemed to be centring in one or two areas. It was certainly not all over. It would help to have her put those on record, mainly in two parts or so, whether she could confirm in this meeting on record, whether she as the PP withdrew her legal representative’s mandate to act for her in this enquiry or whether it was restricted in that she issued a restricted mandate which was only limited to the previous day’s application. Mr Maneli would have gone further to indicate that clarity was needed on whether the mandate was per enquiry or per meetings so that the Committee understood if that was what the Terms of Reference indicated. That was the bulk of, at this stage, the clarity sought. There would have been others, such as the issue of the implication of the withdrawal, which he was going to ask Ms Ebrahim to speak to and clarify. Thereafter, he would try and do his summary.



The Public Protector’s response
Adv Mkhwebane said that the input by the Legal Services, she would not deal with that, as that would be dealt with by the legal team. She asked if that could also be submitted in writing, because Ms Ebrahim had raised a number of issues and insinuations, of which some of them she thought would need to be dealt with legally. On the questions by Members, she thought she would not deal with each and every Member because the Chairperson would address that. Whatever explanation which had been sought from Prof Lotriet, Dr Mulder, Mr Nkosi, Mr Zungula, Ms Mananiso, Mr Nqola, Mr Nodada, Ms Maotwe, Ms Siwela, Mr Maneli, Ms Sukers, and Dr Gondwe, she indicated that she had noted all their questions and their concerns. However, for clarity, and as she had indicated in her opening, to be told especially that she only had limited time, but it was the Chairperson’s decision. She would want the process to be fair. She was transparent and willing to address the Committee. Instead of just keeping quiet and saying, “I can't say anything, I don't have my legal team”, she addressed them. The operationalisation was mentioned by Mr Maneli on how they operationalised this. Due to the very same issues which had transpired the previous day, and the fact that she was saying that she had called the Director of Seanego Attorneys, she wanted everyone to go through all the correspondence and understand each other.

What is our standing? She was still saying the legal team had not withdrawn. So as far as she was concerned, unless they had other intentions, how could she speak on behalf of the legal team when they were not here? Hence the meeting with the attorney. After that they would meet with the legal team, the counsel team, and understand whether they were proceeding or not proceeding. She even had the very same attorney. She had said it herself that she would not want the Committee to waste State resources. Indeed, if all Members were concerned about the public, which she intended or Members intended to be protecting and saving costs, they would have to make sure that they do not create instances which would lead the process to be taken further. She would want to discuss with them. She would want to avoid a situation where what if she was told, “No, actually, I'm withdrawing as an attorney of record. PP, go ahead and get another attorney.” If that was happening, she would have to engage the PPSA Office and indicate to them in their panel of attorneys, which attorney she would be comfortable working with. Further, on that particular attorney, whether they would be comfortable if she approached the same legal counsel because she thought that was the legal counsel of her choice.

The main thing was if she could be given that opportunity to go and engage and ensure that they agreed. The PP legal team discussed as a team and they prepared accordingly all the documentation which were there. The Chairperson had even written a letter to the PP legal team that it had the whole time and why had they not done the following. It was up to the legal team to indicate if they were focusing only on this work or if they were proceeding with all their other work. She did not know if the legal team was told not to do anything else as Dr Mulder was now insinuating about Adv Mpofu. She thought that was for Adv Mpofu to answer, whether he must not do any other things. She asked if she be given the opportunity to clarify all these issues, all these letters, and everything and agree with the legal team. She was trying to avoid a situation of starting the whole process of getting a new team and proceeding with a new team. She would have to clarify all that.

The issue which Dr Gondwe was mentioning that there was something which was staged. She thought they would have to have very concrete evidence when making that insinuation. She would not have come here and wanted to be given an opportunity to meet with the legal team. She was trying by all means to make sure that the process was also not delayed any further. She would just stop there and say that she would want to make sure that there was a legal team which would represent her per the Constitutional Court judgment. She thought that it was within her right to do that. It must be very clear that the Committee was dealing with issues of the principle of natural justice here, they were dealing with issues of the fairness of the process, and the process must be seen to be fair. If she felt, as a person who was supposed to be accounting or responding to the allegations, that she did not feel the process was fair, those issues should be raised. It was not an issue of just keeping quiet and not dealing with the issues. Also, raising issues while the process was ongoing was proper – unlike waiting until the end. Why do we have to also expect the court to resolve issues when some issues can be resolved besides going to court?

The previous day she had liked what Mr Nkosi had mentioned on whether they had approached the Speaker. That was what the legal team had done, trying to avoid a situation where they must now rely on and go to court. So yes, the Committee had made their decision and, unfortunately, there were not three applications. It was the application the Chairperson considered. The legal team then requested an adjournment where they were asking whether they could then lodge an application for review. So it was purely for that. However, if the Chairperson wanted to proceed with the matter, amicably so, then they should do that because on his side, he said that he was not conflicted or biased, and on her side, she felt that she was not safe, or she felt that this process was not fair. Hence, then there were third parties who could then decide whether, out of all that had been mentioned, the Committee could then go ahead and proceed or not proceed. At the end of the day, she needed to have a legal team to be with her, so that the Committee could proceed. It was up to the Chairperson and Members if they felt that what the Legal Services was saying that there were those four options, and they might even proceed and do everything. She would not impose herself. She was only asking for those things, and she would not want a situation where she was being rushed, and then, at the end of the day, the legal team comes back to her and says, “Actually, we are no longer proceeding. Start the process afresh and get a new legal team.”

Discussion
The Chairperson asked for clarity as he would be summarising. Am I hearing you correct that you did not withdraw the mandate of the legal team?

Adv Mkhwebane confirmed that she did not.

The Chairperson asked, secondly, as she would have placed in her response this morning, whether she confirmed that, in agreeing with what would have been in the application for adjournment, that the legal team was focused on the previous day’s meeting. Further that it was only for yesterday as it would have been in the application and as she had also repeated in her response this morning. Does the PP agree with what they presented, that there was a particular focus for the previous day? Is that correct?

Adv Mkhwebane was just clarifying that the previous day that was the main focus. However, not only that. There were preparations which were done. He would appreciate that there were three counsels. The other one might be focusing on this, the other ones might be focusing on all other things. But the issue now was that she did not know what was in their mind. She would not answer for them. She might be confident that she had not withdrawn them. When she met with them and the attorneys, even the attorneys would say, “No, actually, with what I have been going through as this attorney of record, PP, I no longer proceed.” She did not want to pre-empt anything. Perhaps the Committee needed to then advise whether they were giving her that or if they insisted that on the following Monday, she must come back then she would give them an output. She had to make sure then that they, and she hoped that he was listening, he must avail himself at least by the following Monday if the Committee decided that by then she must say anything. Hopefully the legal team would be willing to continue with her.

The Chairperson said that that was fair.

Legal Services’ Response
Ms Ebrahim said that, before she started on the question, she just wanted to clarify, because there seemed to be a bit of confusion as to what her role was. She was not employed by any political party. She did not work for any Member. She was employed by the Secretary to Parliament.

The Chairperson said that he would clarify that for her at the end.

Ms Ebrahim said that the reason that she said it was because it informed the nature of her advice. Her role here was to ensure that this Committee fulfilled its mandate. That was why she was here. That was the lens from which she gave her advice. What she was seeing now was somewhat of a sinking ship; a process that was being derailed. She was doing her best on the rules and within the law, as she understood it, to assist the Committee so that it was not completely paralysed. That was where her advice came from. She had no personal interest in what the outcome of this process was going to be. In very much the same way when Legal Services advised on legislation, they had no interest in what those policy provisions were. Their advice was on the law and the process that the Committee needed to follow to get to where they needed to be. It was on that basis that Legal Services was advising.

That then led her to a difficulty and it led her to Ms Mananiso question. Ms Mananiso had asked what the effect of the walkout was. At the moment, Legal Services did not even know what the nature of the walkout was, never mind the effect of the walkout. That simple information had not been given. She did not know if it was a walkout. She did not know if it was just in relation to the adjournment application. She did not know if it included Seanego Attorneys and all the counsel or only counsel. She did not know where the instruction came from, if there was an instruction and so on. All of those were matters that would have informed their advice and they did not have access to that. It was true the Constitutional Court had guaranteed that the PP and other Chapter 9 heads must have the right to legal representation. There was no obligation on Parliament to ensure that there was that legal representation. It was a right that the PP had. So the PP came with her legal representatives. The Committee had gone as far as they could to assist in that regard. The Committee had, on various occasions, contacted the Office of the PPSA to make sure that she was supported as far as that was concerned.

If there were a question here of prejudice, that prejudice had not been occasioned by this Committee. That prejudice had been occasioned by the PP’s only legal team, which she had appointed. She thought that it was important that everyone change their perspective a little bit, and that Members understand the point from where she was trying to advise. Yes, the PP did have that tonight. Yes, the Committee was going to have to see how they dealt with matters going further. But what she was trying to say now was, in terms of the options given, that the Committee should see what they could do so that they did not completely derail things. She asked that they be allowed to do the little bit of work that they could do in the interim, and then cross that bridge when they got there and the PP came back to them with more information, and that they also get the external opinion on what the impact was going to be on the work that they had done if there was a completely new legal team now. In all of that, bearing in mind that this Committee was constitutionally obligated to perform this function within a reasonable timeframe, and that reasonableness was informed by what the PP’s period of office was. For her, it was fairly simple, but she would leave it at that.

Discussion
The Chairperson said that before he went onto the summary, he wanted to quickly have this clarity and check on the issue that was raised as he might have missed picking it up. He asked for Ms Maotwe’s attention. Did you in your contribution make remarks about Members being stupid and idiots?

Ms Maotwe said that she had said a lot of things. Perhaps the Chairperson could go to the recording to listen?

The Chairperson said that he was asking a direct question. Did you make remarks that Members are idiots and stupid?

Ms Maotwe said that she did not say that.

The Chairperson asked if it was not correct what had been alleged about her that she would have referred to them as idiots and stupid.

Ms Maotwe said that she did not say Members were idiots.

The Chairperson asked that Ms Maotwe help him and asked what she said.

Ms Maotwe said that she could not remember, but she did not say that. That was for sure. She did not say Members were stupid but she could not remember. She asked the Chairperson to help her so that she could help him. The Chairperson could go to the recording then listen, but she did not say Members were stupid.

The Chairperson said that there were two things the Committee would take out of this. He would have asked her a direct question, whether she said Members were stupid or idiots. She was clearly saying to him that she did not say that. He was going to have to verify that further for himself as somebody presiding in this. The Committee would have to come back, make a proper ruling, and if there was a need that the matter be referred to where it was supposed to be referred, that was what he was going to do. However, he first needed Ms Maotwe to help him confirm on the record, whether this was what she had said or not. He would leave it there and take her advice of going through the recordings and checking that and he would do that work.

Discussion
The Chairperson thought, firstly, as he went onto the summary, that perhaps the matter would not have been explained properly the previous day, because he wanted to start with the role of evidence leaders. When the Committee had designed this process, that they would have the rules of the NA but also have the rules that were specific to the Section 194, they had agreed on what they called Terms of Reference. Those Terms of Reference, the Committee had designed in it a hybrid process. They would have discussed whether this should be just a Member-led process in terms of just their normal oversight, and they had settled on saying they wanted that because this was Members constitutional responsibility and they were elected for that. The Committee then augmented that role with what they then called the hybrid process of having the external expertise in the form of evidence leaders. So they were part of this Committee in terms of its work. They were not prosecutors that must then relate with a defence on the other side. If somebody wanted to understand them in that way, it would be a wrong way to understand them. They were here to guide the Committee and assist the Committee to get to the bottom of everything else that they did.

That was the reason the evidence leaders would lead evidence, and it was the reason that they would ask questions on what evidence had been led. It was their role. He wanted to explain that himself and not Ms Ebrahim, based on the manner the architecture of this process had been agreed on. He was hoping that that question about the role of Legal Services and what they can say and not say was settled. From the very beginning, until the day the Committee concluded its report, they would have that role to play because it was content driven – it was about the issues and about the findings that the Committee had to do either way. He was hoping nobody had a discomfort going forward on that. He would actually want Legal Services to play that role more vigorously perhaps than they did now. He sometimes thought that they were a bit withdrawn. So he was challenging them to be even more upfront to help the Committee, especially as they got into this stage. That was the first point.

Secondly, again this issue needed to be clarified. The Committee was an institution of the National Assembly. Besides what came out of the Zondo Report, if one went to the Nkandla judgment, this institution did not come out smelling of roses in terms of its role, its integrity, and how it exercised its functions. Parliament and the NA were on a continuous roll to improve the way they did their constitutional functions of oversight. In this institution there were elected representatives who relied on that technical capacity in whatever form, be it content capacity on various subjects. They were part of the furniture of the institution – they must never be seen. He had kind of picked this up the previous day that somebody thought that the legal advisors were in opposition to the PP legal team. They were not. This had to put to bed and clarified that they represented the Committee. The Committee would want sharpness of ideas and advice.

The Chairperson and Members had confirmed they had been very impressed that since the Committee's inception they had been provided proper quality of service and advice. Committee members had never raised any concern up until today. In fact, they had been well led, well advised and guided. Members only had to look back on the process that the Committee had to navigate to understand that. It was not something he personally believed but that was what it was. It was important that Ms Ebrahim continued doing her work without fear, without favour, because her role was about ensuring that this institution was not found wanting in the advice she provided. He hoped that this was not raised again and that they had settled that matter.

He thought, having listened to the PP this morning in her presentation, the legal advice, guidance and raising sharp issues as they should be, and the contribution of Members, it was fair to summarise their discussions in this manner. One, that the Committee in their deliberations and discussions, acceded to the request presented this morning, that they should not proceed with today's meeting, in terms of what was planned. The Committee acceded to the request by the PP who would have indicated that by the following Monday she would be at a point of concluding whatever discussion that she would have. Many Members had gone for option two, to say this Committee must resume as from the following Tuesday to allow the PP that space. While it might not be the space that 100% would have expected in terms of the timeline, because she would have indicated that she would have been ready by the following Friday or in the worst-case scenario by that week. However, that by the following Monday, from her own presentation, she would have concluded that discussion with the legal team.

He thought therefore that it was fair to summarise that that was the Committee’s expectation. They wanted to go with option two in that they wanted to resume the hearings as from the following Tuesday, in relation to both issues – the cross-examination of the outstanding witness or the leading of evidence of Mr van der Merwe. As a Committee, what it meant was that there would then, after Tuesday or Tuesday and a half depending on how much time they took for the leading of that evidence, he was not going to ask that for now because somebody might be bargaining for more time, that after they had led that evidence, the Committee would be left with two witnesses then to be cross-examined thereafter. He thought that if he was hearing Members correctly, that was where the substantive and majority of views were anchoring on. Secondly, an issue had been raised that, and from the Chairperson he would have to take that responsibility with the support team he worked with, there was a further need. The PP had confirmed that she had not given a mandate for the withdrawal of the mandate. He thought that there was something hanging that he would need to understand. Dr Mulder would have suggested that the Committee needed to further investigate this possible termination or whatever it meant to understand and get to the bottom of that.

He thought Members would have also listened to a different other view, but before he got to that view, he needed to confirm that this Committee had sought legal advice and it got it in relation to these issues. There seemed to be Members who thought that they needed a different and further legal advice. This Committee had not resolved any further legal advice. They helped with the legal advice that they got in relation to these issues of refusals and so on. It did not stop any Member or party that wanted to do to satisfy itself with a further process. The issue of the reasonable time that had been requested, he thought reasonable time here had to be understood within that context of that Constitutional Court judgment, on moving with speed without delay. This was because reasonable time and fairness must not only impinge on the rights of the PP, must not impute on that Office, but also this institution as well. So the Committee had to balance all of those kinds of issues. He asked Members if they were in agreement with his summary of the Committee’s discussions.

Dr Mulder said that he agreed with the Chairperson’s summary. He thought that the Chairperson had summarised the position correctly.

Ms Maotwe said that the Chairperson had not taken the EFF’s inputs into consideration. He had spoken about everybody else except their inputs. She did not know how he had missed theirs. The EFF’s input was to say that when the Chairperson was faced with the recusal application, he gave himself two weeks. So can the Chairperson afford the same privilege, if it is a privilege, to the PP as well? This was seeing that the PP had already said that she was meeting her legal team on Monday, and that she had asked for the following Friday or the Monday thereafter. She asked that that please be taken that into account when the Chairperson made the ruling. She had not heard his ruling. However, she was just saying that in his summary he did not state any of the things that the EFF had proposed and raised. The EFF would continue to criticise the Legal Services of Parliament. Nothing would stop them from criticising it. If they felt that it was biased, they were going to state it.

The Chairperson interrupted Ms Maotwe to say that he had heard her.

Ms Maotwe said that the EFF could not be told what to say; otherwise they must be given the notes of what to say then. They could not be told what to say; they were going to say exactly what they wanted to say and the way that they wanted to say it. Legal Services was biased as it stood now, and they must be told.

The Chairperson asked Ms Maotwe to stop. He had listened to her. He thought his summary would have taken into account the points she had made because hers and Mr Zungula’s point was to emphasise on the reasonable time that needed to be given. The ruling had been made, having listened to everybody else, that this Section 194 enquiry would resumes as from the following Tuesday. That was a ruling that had been made. She might not be happy with that ruling, but it did not mean that he had ignored the points that were placed either by herself or any other Member in this regard.

Ms Maotwe asked that, for the record, the Chairperson please note the objection of the EFF to that ruling for the record.

The Chairperson noted that objection.

Adv Bawa asked for some clarity in respect of what was to happen the following week, so that everyone was on the same page. The PP had made it quite clear, and the PP was the client, that she did not withdraw her legal representatives’ mandate, which effectively meant that Seanego Attorneys, to all intents and purposes, gave Adv Mpofu a mandate which he was not authorised by his client to make. She thought that the PP had made it clear to the Committee. The PP had also indicated pursuant to the Chairperson’s question that she did not restrict the mandate of her legal representatives the previous day only to the interlocutory applications. If she got that wrong, then Adv Bawa asked that the PP please correct her. As such, the PP had indicated that if the Committee indicated that she must revert by the following Monday, she would do so. The PP had also asked that Ms Ebrahim's submission to the Committee be dealt with by the legal team. Is there a timeline by which that is to occur? Adv Bawa was not sure of the certainty of the legal team. She did not want the legal team to come back and say they needed time to deal with Ms Ebrahim submissions when the Committee did not even know what the position of the legal team was, and then the following week the Committee had another delay. She did not know if the Committee must get clarity from the PP as to precisely what she wanted.

The Chairperson said that he was slow in wanting to get that clarity because he seemed to be clear that the Committee was resuming on the following Tuesday, and on the expectation that the PP must be here when the Committee resumed. He had noted that request the PP should have made. However, Ms Ebrahim was making a presentation here to the Committee because he did not want to create new hurdles and obstacles to the Committee’s way forward starting from the following Tuesday, unless he was not getting Adv Bawa properly.

Adv Bawa just wanted that to be clear so that it was not left in the air that there was a right to reply to Ms Ebrahim’s submissions that the Committee had not heard the PP. So if the ruling was clear that that did not exist then that was fine. Finally, she asked if the Committee could get some guidance. Is the PP to revert in writing on the following Monday afternoon and the Committee is resuming in person on the following Tuesday? Is that how the following week would work?

The Chairperson did not want to go to those details again. However, he asked to hear what Members were saying.

Ms Maotwe raised a point of order. She did not know why the Chairperson had opened the floor again. He had made a ruling. Once the Chairperson’s ruling was made, the Committee moved on. Why is the Chairperson opening the floor again for Adv Bawa now to speak? Now the Chairperson was opening it for the Members. The Chairperson had made a ruling. She asked that the Committee move you. The Chairperson had said his ruling was that the Committee would be resuming on the following Tuesday. All those nitty gritty small little things, they could be discussed by his Office.

The Chairperson thanked Ms Maotwe for her point of order. He got Adv Bawa’s points. He thought that those would be matters that the Committee must attend to, to ensure that the resumption was enforced. He was just avoiding the Committee getting into those little details now in the meeting if Adv Bawa was okay with that.

Adv Bawa apologised and said it was a point of clarity so that the Committee did not leave here with some uncertainty as to what was to transpire the following week. However, if the Chairperson was happy for it to be dealt with off the record then that was fine.

The meeting was adjourned.

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