Former Public Protector Thuli Madonsela during an interview on 4 October 2018 in Stellenbosch. Picture: Gallo Images / Esa Alexander
Former public protector Thuli Madonsela’s testimony at the Section 194 Inquiry on Monday was clouded by alleged discrepancies pointed out in her statement.
Madonsela appeared before the parliamentary inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office, where she was set to give evidence regarding the Vrede dairy farm and CIEX-Absa investigation.
Last week, the Section 194 Committee had resolved not to call Madonsela to testify after Mkhwebane’s legal team weren’t prepared to lead her evidence.
The committee accepted Madonsela’s statement as written evidence, but later reversed its decision after Mkhwebane’s lawyer, advocate Dali Mpofu, threatened that they would either go to court, or submit a fresh proposal to the committee to call her as a witness.
On Monday, Madonsela, who testifed virtually, told the committee that she was appearing before the inquiry “reluctantly” because the two Public Protector reports that she is being asked to testify about have been dealt with “extensively” by the courts.
“It was because of apprehension that I’ll be put in a situation where we are rehashing what the courts have decided about the CEIX and also the Vrede dairy matter,” she said.
The former public protector explained the reason for the delay in her giving evidence was because Mkhwebane’s lawyers sent her a “litany” of questions that she did not believe to be relevant to the inquiry.
“When I looked at the charge sheet, I couldn’t find a reason why I should answer those questions. I responded accordingly, asking for relevance and also indicating that I’m not the person who has the information [they need].”
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Madonsela had previously informed the committee that any information sought was with the Public Protector’s office.
“I do have access to the investigative reports,” the former public protector continued.
She stressed that she repeatedly questioned the relevance of the questions put to her by Mkhwebane’s lawyers.
“Is this my impeachment process? Because if it is, then this is the wrong forum. This is a forum about my successor.”
The former public protector said if Parliament wants to question her, there should be separate process.
“We can’t turn an investigation into a parallel investigation and in any event, I do not think Parliament still has jurisdiction to question me over those matters.”
Mpofu proceeded to question Madonsela about her statement after she finished reading it out.
Madonsela’s statement was the centre of dispute in last week’s proceedings, as she had attached two different affidavits, both of which contained minor “grammatical and editorial type” changes.
This created confusion, with Mpofu arguing that there were three versions of Madonsela’s statement.
But Madonsela on Monday disputed Mpofu’s suggestion.
“As far as I know, there is only one version of the statement,” she said.
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“If you want to make an issue out of this and we use taxpayers’ money to quibble about it then be my guest sir,” the former public protector told Mpofu.
Madonsela pointed out that Mpofu was raising issues that were dealt with and resolved last week.
She also said she understood from the start that only Mkhwebane wanted her as a witness and reminded Mpofu that she was representing herself at the inquiry.
“I am a witness owned by no one or any particular group.”
The former public protector agreed with Mpofu that she was not prepared to do a statement with Mkhwebane’s legal team.
“It didn’t seem to me that I am a witness who would give evidence that would assist your client to explain herself to Parliament.
“The questions I was sent were accusing me of certain things and how are you going to have your statement be prepared by somebody who appears like they trying to throw you under the bus? Why would you do that?”
Madonsela again stressed that “this is not an inquiry into my conduct”.
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She quickly shut down Mpofu’s assertion that she has made multiple statements.
“Are we trying to play with words here, sir? Again, every minute is wasting taxpayer’s money?”
Mpofu, however, accused Madonsela of improperly changing her affidavit by hand after it was commissioned.
“Once it has been signed by the commissioner of oaths you can’t then change the date on your own. Do you know that is illegal,” he said.
Madonsela argued that she made no changes to the original affidavit by hand, saying she only made handwritten changes on an electronic copy.
She further claimed that Mpofu was accusing her of criminality and then she requested for legal representation.
“If advocate Mpofu wanted to put me on trial for how the changes happened between the statements, he should have indicated last week Monday that he wants me criminally charged for that, in which case it changes the complexity of this event today.
“I should then have a lawyer to come and represent me because I’m now being accused of criminality,” Madonsela said.
In his response, Mpofu said the legal team had offered to assist Madonsela so that “these illegalities” would not occur because she was not a practising lawyer.
Madonsela once again stated that there is one statement, “in three articulations”.
She explained to the committee that she initialled the pages, as did the attorney who witnessed the statement.
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“Now not only advocate Mpofu has insulted and criminalised me, he has now criminalised a fellow member of the bar by simply failing to read documents he is paid to read,” she said.
“To fabricate lies here and suggest that those signatures only appeared during the corrections is shocking to say the least.”
Following a 15-minute break, Mpofu told the committee that he was of the view that Madonsela’s statement was “not an affidavit”.
He said the committee was being presented with illegally signed statements.
Mpofu claimed that the Justices of the Peace and Commissioners of Oaths Act requires a commissioner of oaths must sign every page of an affidavit.
“Under that there are regulations,” he said.
But evidence leader, advocate Ncumisa Mayosi said this Act and the Regulations Governing the Administering of an Oath of Affirmation had no requirement that a commissioner must initial every page.
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