Parliament, Wednesday, 1 March 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, today resolved to use the written evidence of Prof Thuli Madonsela and not call her for oral evidence.

The decision follows a debate by both the PP’s legal team and evidence leaders as to who should lead Prof Madonsela in her testimony. Adv Dali Mpofu, SC, indicated that the PP-team does not intend to lead the witness. Evidence leader Adv Nazreen Bawa, SC, made it clear that Prof Madonsela was called as a witness after a request was made by the PP’s legal team for the committee to subpoena her on their behalf.

Yesterday the committee received a request by the PP’s legal team to have the evidence of Prof Madonsela stand over until another date as they indicated they received her statement late. They suggested to have the evidence of Mr Rodney Mataboge, Chief Investigator at the PPSA that was scheduled for Friday, today and tomorrow instead. The committee declined the request.

Moments before Prof Madonsela could be sworn in, the Committee was informed that she had submitted an amended statement. Adv Mpofu said this was creating confusion. Committee Chairperson, Mr Qubudile Dyantyi agreed to adjourn the meeting so that the matters raised could be considered. Parliament legal advisor, Ms Fatima Ebrahim confirmed that the amended statement contained only cosmetic changes that did not affect the content or substance of the statement.

Mr Dyantyi said Prof Madonsela was due to testify today after the committee received a list of witnesses from the PP’s legal team that they needed the committee’s assistance with in summoning.

He stated that the majority of members, who participated in the discussion, were of the view that in the instance where no one wants to take ownership of the witness that the committee must accept the written statement as allowed by the rules of the committee and that oral evidence would not be required. Mr Dyantyi went on to say that Prof Madonsela’s statement speaks to the Vrede Dairy and CIEX/South African Reserve Bank investigations, as per the committee’s instruction to her, and the committee takes this as written evidence.

Adv Mpofu, unhappy with the committee’s decision, said Prof Madonsela’s affidavit does not scratch the surface on Vrede and CIEX. He says if there is a “summersault”, it will have to be resolved in “another forum”. He said they will go to court or make a fresh application to summon Prof Madonsela.

Later in the day the committee heard the cross-examination of Mr Mataboge. The committee heard that he was the lead investigator in the CR17/Bosasa investigation and supervised the South African Reserve Bank Investigating Unit, Vrede-2 and Pillay Pension-matter investigations. Adv Mpofu’s questions to him revolved mostly around the CR17/Bosasa investigation.

Adv Mpofu spent the bulk of the afternoon referring to the Constitutional Court's minority judgment of former Chief Justice Mogoeng Mogoeng in the Bosasa/CR17 matter. Adding, that “no less than the Chief Justice” validated the investigation. Adv Mpofu wanted to know to what extent the minority judgment reflected on the true approach, as opposed “the one that said you were out to get Mr Ramaphosa”.

Mr Mataboge said after the Constitutional Court judgment came out, he said to his team “at least there is one voice of reason for us”. He said if it was not for the minority judgment he would be despondent and very discouraged as an investigator.

The hearings continue tomorrow with the cross-examination of Mr Mataboge. The committee was established by the National Assembly (NA) on 16 March 2021 to conduct a constitutional inquiry into the Public Protector’s fitness to hold office and is expected to provide the NA with a report by the end of April 2023. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa


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