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A look into week four of Mkhwebane’s Section 194 inquiry into fitness to hold office

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The Section 194 Parliamentary inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office entered its fourth week with four witnesses testifying.

The hearing was marred by tension and surprise revelations. Four witnesses from the Public Protector’s Office, including a former executive took the stand from Monday to Thursday.

The Head of the Public Protector’s Office in the Free State, Sphelo Samuel, returned for further cross examination on Monday.

Former CEO Vussy Mahlangu, Senior Manager for executive support in the Office of the Public Protector, Simon Futana Tebele, and former Senior Manager for security and current employee in the office, Baldwin Neshundhzi, all testified on Tuesday, Wednesday and Thursday respectively.

The hearing for the week concluded with the testimony of a second former SARS executive who took the stand. Former Deputy Commissioner, Ivan Pillay testified on Friday. Pillay’s testimony follows that of former executive Johan van Loggerenberg in the first week of the inquiry which started on 11 July.

Sphelo Samuel’s return to witness stand met with tensions

When Samuel returned virtually for further cross examination by Mkhwebane’s legal representative Dali Mpofu on Monday, he had already testified in person for three days from 27 to 29 July.

The proceedings ahead of Samuel’s cross examination saw chaos erupting as the EFF and the ATM challenged Committee Chairperson Richard Dyantyi over the recall of Samuel to continue to be cross-examined.

The EFF and ATM accused the Dyantyi of being bias as Mpofu had to cross examine Samuel only after committee members had engaged him on his testimony on Friday 29 July.

They argued that the directives of the committee were shifted as MPs were only allowed to question the witness after cross examination by Mkhwebane’s legal team.

ATM Leader Vuyo Zungula was kicked off the virtual platform after raising the issue.

He accused Dyantyi of taking instructions from “somewhere else” which ultimately led to Samuel being recalled. Some the scenes played out with these interactions after Dyantyi reminded Zungula that his time was up:

Zungula interjects:“I’m not done with my submission.”

Dyantyi responds: “You don’t have to be done; I have imposed a time limit honourable Zungula.”

Zungula disagrees: “Why only me, why not all other honourable members who spoke?”

Dyantyi: “Ok thank you I have done my part, IT please mute honourable Zungula.”

Zungula refuses “I am going to continue chairperson, we can’t allow you to treat us in a way that is not consistent, if you were consistent this…That is why I am going to address you.”

Dyantyi pleads: “IT, I am asking you now to remove honourable Zungula from the platform.”

Zungula asks: “Remove me for what?”

Dyantyi pleads again and instructs: “Please remove honourable Zungula from the platform.”

EFF Leader Julius Malema entered the fray also  from the virtual platform to rise on a point of order, coming to the defence of Zungula

“Chair you did not give honourable Zungula an opportunity to conclude his point and that is going to be our biggest problem today here. Allow members of Parliament to speak because this thing that you can sit at the corner alone and when you are being challenged you remove people from platforms, it’s not going to happen. You are not going to preside over an unfair meeting and think that we are all going to allow you to do that. Allow us to discuss this matter and stop interrupting us,” Malema emphasised.

However, Dyantyi defended his decision to remove Zungula from the virtual platform and for the rest of the day explaining that he implemented National Assembly Rule 70.

“And for completeness I’m going to read the rule and it says: if the presiding officer is of the opinion that a member is deliberately contravening the provision of these rules or that a member is disregarding the authority of the chair,  or that a member’s conduct is grossly disorderly, he or she may order the member to leave the chamber for the remainder of the day’s sitting. The rules of the NA apply to what we are doing (in the Committee). I have even said honourable Zungula I’m warning him. I have even requested that he be muted. He disregarded the authority of the chair as I’m presiding and so for that, – honourable Zungula is removed from the platform. He is not going to be returned for the rest of the day,” Dyantyi concluded.

Continuation of Samuel’s cross examination

As Mpofu continued with cross examining Samuel, the inquiry was also taken through an interview between SABC News Anchor Peter Ndoro and after he had submitted an affidavit to former National Assembly Speaker, Thandi Modise, to blow the whistle against Mkhwebane.

In the interview with Ndoro, Samuel gave reasons why he submitted the affidavit to Parliament.

He said that the atmosphere was safe, especially after Modise had considered the complaint by one of the political parties, namely the DA in Parliament against Mkhwebane.

He told Ndoro that Mkhwebane blocked them from communicating with anyone.

Ndoro: “In broad strokes, what concerns have you raised in your affidavit to the Speaker of the National Assembly?”

In response: “Peter thanks, I have raised concerns with the Speaker mainly because Parliament is a(n)oversight institution to which the Public Protector as an institution, reports for its budget expenditure as well as its operations. So, given the fact that the Speaker agreed to entertain the complaint lodged by one of the political parties, namely the DA in Parliament, I felt that the atmosphere is safe for myself and other colleagues of mine to come forward and raise the issues that are happening mostly within the institution. We are taking Parliament into our confidence, mainly the Speaker and raising these issues because the Public Protector Adv Mkhwebane has access to the media and she has blocked all of us staff from communicating with anyone. And the impression out there is that the staff is fine with whatever is happening, you know, and (that) the organisation is running smoothly, when in fact it is not.”

Meanwhile, Mpofu branded Samuel a liar following some of his revelations in the interview with Ndoro which he used for his cross examination

“So, Mr Samuel this exposes you as a liar and a perjurer that I said you are. Do you accept that now?”, asks Mpofu

Samuel: “No, I do not.”

Mpofu:“Ok, contrary to what you have been telling us since last week that your initial affidavit was not directed at this process, you said that under oath, correct?”

Samuel: “That is correct.”

“And you stick by it, now under oath as well?”, Mpofu asks further.

Samuel: “Yes I do.”

Mpofu seeks clarity: “Alright, so what then were you referring to when you said, so given the fact that the Speaker agreed to entertain the complaint lodged by one of the political parties, namely the DA in Parliament, were you referring to something else or to the process in the impeachment of the Public Protector?”

Samuel: “Chair, I have testified that when I drafted that affidavit to the Speaker it was to initiate an investigation, and so, when I got the acknowledgment from the Speaker’s office, it said the matter has been referred to  the (Justice) Portfolio Committee and that is the committee I thought was going to determine given the fact that we report to that committee, that was the committee that I thought was being referred to by the Speaker and the media that was covering the issue at the time. I did not up until you know it came out that a separate committee was actually going to determine that, which should be preceded by a panel. I had no reason to believe that there would be any other committee except the one that I knew we’re reporting to.”

 

Vussy Mahlangu accused of intimidating staff during his CEO stint

A day after Samuel’s testimony, Mahlangu followed on Tuesday. He resigned as CEO in January 2020.

Mahlangu was fingered for his alleged role in intimidating and threatening staff when he was still CEO.

Samuel and the dismissed senior investigator Kholofelo who had also testified, mentioned Mahlangu in their testimonies.

Mahlangu told the inquiry that his decision to testify was prompted by the evidence given against him by previous witnesses:

“There was so much that was said about me when I was an accounting officer, so it became important that I come and clarify to this committee those issues that were raised about me,” he told evidence Leader Nazreen Bawa.

Bawa: “And although you had no desire to come and give evidence before the parliamentary committee, you provided and affidavit and you indicated that if you were called, you would come to do so, correct?”

Mahlangu: ‘Yes, I was always flexible. The intention was not to come but I made it clear to evidence leaders that if needs be I am flexible to come, hence I’m here”

During the question and answer session with members of political parties, Mahlangu was quizzed about the alleged confiscation of laptops of senior managers in the office of the Public Protector.

He was also asked whether proper disciplinary procedures were followed against some staff members.

ANC MP Xola Nqola sought clarity after previous witnesses fingered Mahlangu and Mkhwebane in a “witch-hunt” against those who challenged the suspended Public Protector:

“If Mr Mahlangu can take us into his confidence, that as much as some of the staff was suspended some of them, I would use some chair, – has the office followed all the due processes of suspending and charging and investigating those particular staff members? The last chair is that it is alleged that Mr Mahlangu and his office has confiscated laptops of some of the managers in the office of the Public Protector, such that there is information that we would have required as the committee that we can’t find which would have been lost in that process” said Nqola.

In response to Nqola, the former CEO denied the claims that laptops were confiscated adding that all disciplinary processes were followed:

“The investigators in the leak of information, they didn’t confiscate the laptops, but they had to take the laptops in order to determine certain information that (s) the movement of the information. And you will know chair that those people will also have been vetted. It’s not just people that can take the information of the organisation without proper procedures. Yes, honourable chair, all the disciplinary cases followed legal way of doing things, a procedural way of doing things. We heard earlier about how Matlawe resigned and then the letter of suspension came thereafter, which I am not privy to that. But again, you would very well that if there were some of any procedural unfairness in the process of disciplinary process the person will have recourse in that, he will bring to the attention of the Chairperson about how he has been treated and all that stuff”, Mahlangu told the hearing.

Mahlangu had praises for Mkhwebane when he was asked about her competency by UDM Leader Bantu Holomisa:

“Mr Mahlangu the charges levelled against the Public Protector was that she is incompetent. As a person who worked closely with her office, would you agree with those who accuse her of being incompetent?”

Mahlangu: “Subject to whether the PP (Public Protector) is incompetent or not, I will say straight it’s no. Me in my administrative duties I would leave investigations, I got guidance, I learnt a lot from PP, I got guidance. She is a hard worker. I don’t even know that she sleeps, because I would look at e-mails, things that needs to be done and then we would just work. Work-work-work. I think she is a hard worker. And maybe without going far, If I have to make an example, the fact that under her supervision we managed clean audits, it should send a message that at least she was there”

Mkhwebane may not have trusted Simon Futana Tebele?

A text message emerged on Wednesday during Tebele’s testimony. He only became aware of it on the day of the hearing.

Tebele was taken by surprise about a sms revealing that Mkhwebane may not have trusted him. The message which was screened during the inquiry was revealed by Evidence Leader Ncumisa Mayosi.

The sms was revealed soon after Tebele had also confirmed that he knew Mkhwebane before he joined the Public Protector’s Office and has known her since their university days.

Mayosi told Tebele that the sms will form part of the testimony of the former Chief Operations Officer (COO) in the Office of the Public Protector Basani Baloyi:

“She will testify that on the 18 of February 2019 soon after she started at the PPSA, she received a text from the PP that reads as follows – COO careful of what you hear from Pona and Tebele. But you are an adult be wise. She will of course say she interpreted that to mean that she should not trust you. But my question to you – do you know any reason why the PP would issue such a warning about you, do you know what this related to?”, Mayosi asked after reading the text message.

While taken by surprise, Tebele still insisted that Mkhwebane trusts him:

“Well it’s for the first time that I see the note (sms) and throughout my working in PPSA and working with Public Protector Adv Mkhwebane, I have never created an environment where I believe that I would have been not trusted, but I will leave it up to the Public Protector, because I wouldn’t know why she said what she said, if it’s her who said what she said. I always believe (d) that she trust(s) me and even today I still do believe that she trust(s) me and not only her, but even the CEO that I’m serving under. So, I see myself as a person who can be trusted in the institution”, stresses Tebele.

Tebele was also asked to explain the role of the private office of the Public Office the Public Protector versus the CEO’s office.

He told Adv Mayosi that as senior manager for executive support, he is reporting to the CEO who is the accounting officer in the Office of the Public Protector Thandi Sibanyoni. He says his role in the office is to assist the CEO in the management of the institution. Tebele had to explain how the Private Office differed from the CEO’s office in the PPs office:

“Mayosi:“ Who does the Private Office consist of?”

“The Private office within the Public Protector South Africa refers to the office where the Executive Authority sits, – that is the Public Protector and the Deputy Public Protector, and it refers to the staff that is responsible to support that office. So, we have an office of Private Office which is almost distinct from the office of the Accounting Officer. All the staff supporting the Public Protector and the Deputy Public Protector, – they are part of Private Office. I found the name there, then I got to know it as such,” Tebele explained.

“Can you explain to the committee why Mr Neshundzhi was moved from Security to Customer Services,” asks Mayosi.

Tebele: “What I will say is what I know, not that I actively participated in it. When Mr Neshundhzi came back from, I would call it from the suspension, there was a report that I did not have preview to. And apparently in that report there was recommendation that he be moved.  I haven’t seen the report. But I was approached by the former CEO Mr Mahlangu. He said to me because of the roles that Mr Neshundhzi is playing within security and the current cloud  that is there in terms of leaking information, he deemed it best that he be moved out of that portfolio, so that somebody may come and manage that portfolio, because he is saying that  information security that  he is responsible for, he could not handle it the way it needed to be  handled”

Baldwin Neshundzhi’s 2019 telephone date with Arthur Fraser mixed up

In his testimony on Thursday, Neshundzhi told the inquiry that his working relationship with Mkhwebane may have deteriorated after an investigation into leaked documents that were sent by the Presidency.

He testified that this was the second alleged security breach he had to investigate.

The other probe related to the leave system which allegedly reflected that some staff were at work while they were on leave.

His investigation found no evidence of any leave fraud. Neshundzhi told the inquiry that when he was tasked to investigate the leak in relation to the documents from the Presidency, he found that the leak did not happen from the Public Protectors Office but could have been that the Presidency had released a statement about the documents that were submitted to the PPs Office.

Evidence Leader Adv Nazsreen Bawa wanted to know more from Neshundzhi:

Bawa: “You then in paragraph 18 say that after that, after that it appeared that your relationship with the Public Protector had been deteriorating. Can you perhaps elaborate on that?”

Neshundzhi:“Part of the activities or responsibilities that I would perform and interact with the PP, I have realised that they were no longer required, or you will see via the gesture that things are not the same as they used to be. And I started realising that perhaps it’s these two episodes that have already occurred that had an impact because part of the brief that I got when I got there (when I was employed) from the PP was that she was concerned about the information leakages. When I joined, there was serious leakages that happened, I think it was around CIEX or any of those matters that were investigated at that time.’

Tension emerged after a question by the DA was posed to Netshundzhi about the security system in the office of the Public Protector.

DA MP Kevin Mileham asked Neshhundzhi: “What protocols  are in  place in the Public Protectors Office and  I’m talking about the broader institution of  the  Public Protector to handle  and store confidential  information?”

Neshundzhi: “I think I would say that maybe headways, because in the procurement security problem that I developed then, we insisted that for us to be able to implement classification of information, we would require lockable cabinets that are steel in nature, that can resist fire, although it is not comprehensive because we would  have like the biometric system to be attached to the filing cabinets of this classified information. I would say in terms of that protocol of ensuring that at head office the project has been completed and those cabinets are available. I hope with the current arrangement they would be able to introduce a biometrics system, so that those that have you know to limit access to people that are not authorised. We do have camera system.”

Mpofu interjects: “Chairperson…”

Neshundzhi continues to speak unaware of any interjection: “CCTV…”

After being recognised by Dyantyi, Mpofu said: “I’m just once again wanting to raise this. What’s the relevance of this? Is it necessary now to have to reveal the systems of security at the Public Protector’s Office to all who may want to hack those systems? For what, what has that got to do with the motion, honestly?”

Dyantyi had to intervene in the security details controversy. But Mileham resisted:

“Now wait, thank you Adv Mpofu, you do have a valid point, and hoping that Mr Neshundzhi and Mr Mileham, because the intention is not to do that. I hope you (Mileham) get the gist of your question? It would be good to have a response that says there are the systems that are now existing. To go the way, he (Neshundzhi) is going, it’s a security risk,” Dyantyi rules.

Mileham interjects: “Chair I’m not happy this is committee of Parliament, and we are not bound by any confidentiality obligations here. That’s the first thing. The second is that the security and confidential information has been raised on several occasions in this hearing and  the need for the securitisation of the Office of the Public Protector. So, I’m trying to determine what protocols have been put in place”

But Neshundzi was also put under the spotlight by Dyantyi for incorrect dates about his interaction with former State Security Agency (SSA) Director General Arthur Fraser.

Neshundzhi told the inquiry that he was placed on what he called “garden leave” after dissatisfaction with the way he had handled a security breach following an investigation.

He says at some point, he was called to the office of Fraser. He told the inquiry that Fraser told him that the Public Protector had complained about his performance.

Neshundhzi further told the committee that he was told he will receive training from the SSA.

He claimed that he received a call from Fraser after 2019 and insisted that Fraser was still with the SSA at the time of the call. But Dyantyi reminded Neshundhzi that Fraser was already with Correctional Services by 2018 where he was appointed national commissioner:

“I am not so sure about that. I would have to check my information. But when he called me, he was still the head of SSA”, stressed Neshundzhi.

Dyantyi: “So it would not be correct that he called you in 2019?”

Neshundzhi: “Ya, it could be end of 2018 but you are saying at end of 2018 he was not there.”

Dyantyi: “Yes. I am also saying at the end of 2018 he was also at Correctional Services as the national commissioner.”

Nshundzhi: “I will have to confirm but it was shortly before he left because I drove to the security…errr Musanda in the evening”

Ivan Pillay went on early retirement just to access his pension and to be rehired

Pillay faced questions about his retirement, his rehiring at SARS and the so-called rogue unit. When Adv Bawa led evidence, she questioned him about allegations that Mkhwebane’s report on SARS targeted a specific cabinet minister:

Bawa: “In paragraph 8 of your affidavit before this committee, you refer to the (PPs) report on the investigation into violations of the Executive Ethics Code by Mr Pravin Gordhan, as well as allegations of maladministration, corruption and improper conduct by SARS. This is the report that was issued on 5 July 2019, and which is the subject matter of this judgment, correct?”

Pillay: “That is correct”

Bawa: “Now, it was suggested to this committee that Minister Gordhan was the primary target of this report. Would You agree with that categorisation of the report?”

Pillay: “Comrade Chair, it is difficult for me to say exactly, but if I understand it that the term came from an earlier discussion. I have always felt that there were bigger issues at play and that it was actually the capture of SARS. And that is the reason why so much pressure was brought to bear on us in SARS and many other people in the country. So, I’ve never felt that I was a personal target. I don’t know whether that answers the question. Thank you”

As Pillay concluded with Bawa ahead of his cross examination by Mpofu, he made a statement about how an investigation by the Inspector General of Intelligence (IGI) ended up focusing on SARS. He mentioned that a media article was the basis for the initial investigation by the IGI:

“A City Press Investigation has revealed the existence of the special operations unit of the SSA where a rogue agency used state resources to conduct dirty trick campaigns, smuggle cigarettes and disgrace top civil servants. It is following such an article on the 10th of August (2014) that the then Minister of Intelligence asked for that investigation. And the terms of reference was around what was in the City Press article, but in the end, actually the investigation focussed on SARS”, Pillay stated.

The existence of the rogue unit and its operations were probed by Office of the Inspector General of Intelligence (OIGI).

There was also an Independent investigation conducted by a three-member panel led by Adv Muzi Sikhakhane, commissioned by Pillay who was acting SARS commissioner at the time.

When he started with cross examination, Mpofu took Pillay though the various investigation into the so-called rogue unit:

“Let’s just start with the IGI story since you ended with it, so that we don’t have to come back. You have placed it to the 10th of August 2014 City Press, then the Minister investigated, then is it that correct that shortly thereafter you appointed the Sikhakhane Panel”, Mpofu asks.

Pillay: “That is correct, through you chair.”

Mpofu “Yes, and that would be well run about September the same year?”

Pillay: “Yes, I’ll get the exact date but its September of the same year”

Mpofu: “Yes, 2014.  And that was to investigate the conduct of Mr van Loggerenberg?”

Pillay: “Yes, it is so”

Mpofu: “And that panel was made up of three advocates. Advocate Sikhakhane leading the team, Advocate Nazreen (Rajab-)Budlender Rajab and Advocate Patrick Ramano. Correct?”

Pillay: “Correct”

Mpofu: “And in a nutshell they found that the activities of the so-called rouge unit were unlawful?”

Pillay: “Yes that is what they found”

Mpofu continued to take Pillay through the Inspector General of Intelligence (IGI) report into the rogue unit.

“And the IGI report which you referred to earlier had also found, – it was stronger than the Sikhakhane report, it had found the activities of the so-called rogue unit were criminal?”

Pillay: “I believe that’s so.”

Mpofu: “Yes, and that it (the IGI report) recommended that you, Mr van Loggerenberg and Mr Gordhan be charged criminally?”

Pillay: “I believe it said so”

Mpofu: “And you were indeed charged criminally, when?”

Pillay: “I can’t remember”

Mpofu: “Ok, neither can I (remember) I think it was 2016/2017 run about then?”

“It was you Mr Van Loggerenberg and who,” Mpofu asked further.

Pillay: “Andries van Rensburg.”

Mpofu: “And Mr van Rensburg? And what were the charges?”

Pillay: “I can’t remember the specific charges, but it is to… that allegedly we set up an unlawful unit and we carried out unlawful activities”

After cross-examination, MPs had an opportunity to ask questions and interact with the former SARS executive. Pillay said that he took early retirement just to access his pension and asked to be rehired.

Zungula was one of the MPs who questioned him. One of Mkhwebane’s investigations into SARS related to Pillay’s retiring and rehiring by SARS. This was Pillay’s confirmation:

“What I know is that I wanted to access my money in the pension fund, so I wanted to retire from the fund. And I asked to be rehired. And it’s there apparently. And that’s the key decision, if the early retirement is agreed to, then what kicks in is that the penalty is then paid by the employer,” said Pillay.

Zungula: “Did I hear you correctly? You said you wanted to retire because you wanted access to your funds, and you wanted to be rehired?”

Pillay: “Yes.”

Zungula: “So, it was something that you were in discussion with the then bosses that the purpose of you retiring, it is basically to get the lump sum, however you want to be rehired. So, it is something that was well planned? So, as they are accepting you retiring, you knew that there was a plan to rehire you?”

Pillay: “Well, I don’t know about a plan to rehire me. It’s a request I made. SARS could have said “no, you retire, and you go”. It’s a decision that SARS had to make.”

Zungula: “Okay, let’s move. So, in this retire matter, did the court sanction you and Mr Gordhan with punitive costs for accusing the PP without evidence of working with state capture operators?”

Pillay: “Yes, there are certain paragraphs that were struck out and there are certain costs that we landed with.”

 

Whispering

Pillay also had to apologise after people were whispering in the background while he was answering questions.  Mpofu and GOOD party MP Brett Herron claimed they heard how someone was whispering as Pillay was testifying.

This was the interaction between Mpfou, the committee chairperson, Herron and Pillay before he apologised:

Pillay: “I have my family around chair. So, I apologise”

Mpofu: “Chairperson no no no chair. I am not talking about the House. I say there are people whispering information to him and you are saying there are people in the House. The people whose whispering to him, you (Chair) must ask him about that, because that’s wrong. It’s illegal”

Dyantyi: “Honourable Herron?”

Herron: “Chair I think we have to acknowledge that when I was asking questions, someone was whispering to Mr Pillay about Sunday times”

Dyantyi: “Mr Pillay?”

Pillay: “Yes my spouse is here and you know she whispers to be sometimes, working also in the House, but I apologised for that”

Dyantyi: “Apology accepted.”

The Section 194 inquiry will resume on Wednesday.

Legal analyst Modidima Munnya explains outcomes from Friday’s session and how it feeds into the bigger impeachment case: 

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