PUBLIC PROTECTOR IMPEACHMENT INQUIRY
Dali Mpofu drops mental health and criminal conduct bombs during Van Loggerenberg’s cross-examination
The impact of a lawyer cross-examining and preparing future defences emerged in Thursday’s parliamentary impeachment inquiry of suspended Public Protector Busisiwe Mkhwebane. And it’s changing how parliamentary inquiries unfold – moving the focus from MPs’ oversight questions to legal sparring.
That the now-suspended Public Protector Busisiwe Mkhwebane has the right to full legal representation was confirmed by the Constitutional Court on 4 February. After about two years of legal challenges to the parliamentary Section 194 removal from office proceedings, processes and rules, this was the victory.
Parliament traditionally requires those who are the subject of an inquiry, and others who appear before its committees, to speak for themselves, even if their lawyers are close at hand with guidance, advice and even hastily scribbled notes. That’s because those officials, ministers and others – such as heads of constitutionally established Chapter 9 institutions like the Public Protector – account to Parliament for their conduct in office.
That held true in the 2016 SABC inquiry and the 2017 Eskom State Capture inquiry where evidence with legal assistance flowed on direction of evidence leaders and, crucially, MPs’ questions.
In contrast, at the Section 194 impeachment proceedings, Mkhwebane has sat quietly while her chosen counsel, Advocate Dali Mpofu SC, led the charge with the abrasive courtroom conduct he’s become known for.
And on Thursday, the M46 committee room in Parliament’s Marks Building was turned into a courtroom to traverse old reports and panels dealt with in the courts – and various retractions.
“It’s almost as if we are going back in time and re-litigating things,” was how former South African Revenue Service (SARS) official Johann van Loggerenberg put it on Thursday just before the lunch break.
It all goes back to 2014 when SARS found itself at the sharp end of State Capture with the appointment of Tom Moyane as tax boss , whom EFF leader Julius Malema in 2016 described as a “nanny” to then president Jacob Zuma’s children while in exile.
It involves lawyer Moeti Kanyane’s report of August 2014, advocate Muzi Sikhakhane’s November 2014 report, an April 2015 report from a panel chaired by retired judge Frank Kroon, a September 2015 KPMG report and an Inspector-General for Intelligence (IGI) investigation report dated October 2014.
All have been nixed.
But while this saga was central to State Capture, as the State Capture commission’s report shows, it’s triggered by a romance gone sour and allegations made in the wake of a breakup.
Johann van Loggerenberg. (Photo: Gallo Images / Netwerk24 / Deaan Vivier)
Van Loggerenberg, the current witness before the Section 194 impeachment inquiry, had a seven-month or so romantic relationship with Belinda Walter, Fair Trade Independent Tobacco Association chairperson at the time – and spook.
On Thursday, Mpofu said he and his team are looking for Walter. And she came up again in this part of the cross-examination when Mpofu asked Van Loggerenberg about his medical condition, and was told of a number of procedures on his jaw that are underway.
Mpofu: “You have not had a mental problem?”
Van Loggerenberg: “What do you mean?”
Mpofu: “Do you have a psychiatric condition?”
Van Loggerenberg: “Yes, I’ve been born with one.”
Mpofu: “Ms Walter will deal with that, when we find her.”
Van Loggerenberg: “It’s unlikely Ms Walter will know. It is my affliction.”
Mpofu: “I have no intention to breach your confidentiality … Let’s leave it at that.”
Van Loggerenberg: “I’ve written a book about it.”
In a country where mental health remains stigmatised, such an exchange could be regarded as problematic. It was returned to later in the day.
The African Christian Democratic Party’s Marie Sukers urged the Section 194 committee chairperson, Richard Dyantyi, to ensure the dignity of witnesses was maintained.
“It was extremely uncomfortable, the issue about the whiskey and him needing to explain his medical condition … I humbly call on the chairperson to re-establish that boundary.”
The whiskey reference relates to EFF MP Omphile Maotwe earlier claiming that Van Loggerenberg was drinking whiskey while testifying, saying she saw him with a glass when the committee broke for lunch on Wednesday. In response, Van Loggerenberg raised, not a whiskey tumbler, but a tall glass, saying this was his medication.
At one stage, Dyantyi asked Mpofu to take into account the witness’ discomfort with the line of questioning, but it was back to grinding out the details with linguistic hair-splitting.
Sukers’ appeal goes back to day one of this S194 inquiry when evidence leader Advocate Nazreen Bawa SC told MPs, “We as evidence leaders are asking the committee to treat them with dignity. We have encountered a number of fears, concerns and cynicism in this process.”
However, Mpofu was going to have the last word: “The witness was insisting. He was insisting. I don’t know about the whiskey issue.”
Throughout the day, Mpofu sidestepped the chairperson’s direction to return to asking questions rather than making statements.
MPs did raise concerns about Mpofu’s “aggressive tone”, as DA MP Kevin Mileham put it, and misrepresentations like claiming Van Loggerenberg left SARS because of “his criminal activities”, according to Freedom Front Plus chief whip Corné Mulder.
“The committee is not a court of law and it is not a quasi legal proceeding … From my perspective, if Advocate Mpofu and the Public Protector are under the impression we are going to do the work that’s already been done by the courts, they are mistaken,” said Mulder.
“We are not the court of Parliament.”
Mpofu objected, arguing it was he who had been insulted. “The only person who has been insulted is me (with comments of) speaking at rallies and dragging this until the end of the contract and all sorts of things…”
Earlier in the day, Mpofu cautioned MPs that this process would go well beyond the end of September as set out in the official Section 194 inquiry deadline.
“You wanted an inquiry. We are here. It will not be what you suspect it would be … [The State Capture Commission chaired by Chief Justice Raymond] Zondo, that process was meant to take six months. It took four years and the report took longer,” Mpofu told MPs.
“If this process is to be fair, you will never finish this in September.”
The EFF’s whiskey interjection, like the insistence on President Cyril Ramaphosa testifying before the inquiry – dismissed by the Presidency – hints at the politicking yet to come.
On Thursday, Mpofu defended his line of questioning aimed at Van Loggerenberg, arguing that it arose directly from his affidavit and testimony.
Busisiwe Mkhwebane. (Photo: Gallo Images / Sunday Times / Simphiwe Nkwali)
A day earlier, Van Loggerenberg had testified how Mkhwebane had failed to hear his side – or give him and other implicated persons the opportunity to respond to claims made in her July 2019 report that effectively resuscitated the so-called SARS rogue unit.
Read in Daily Maverick: Eight years of whistle-blower trauma – former SARS executive Johann van Loggerenberg
But the reports used to re-traverse this ground, from Sikhakhane to KMPG, have all been nixed.
The IGI October 2014 report was set aside by the courts on 8 June 2020 following a review application by Van Loggerenberg.
At the end of January 2018, KPMG repaid SARS R29-million for its report that the auditor had withdrawn by mid-September 2017, according to Business Day at the time.
Retired judge Frank Kroon, in his testimony before the Nugent Commission in September 2018, withdrew the report, saying it had been based solely on information provided by Moyane. He also apologised.
On 16 November 2020, SARS Commissioner Edward Kieswetter wrote to Sikhakhane to say the tax collector would not do anything with the report in any way, but was not empowered to withdraw it as that is something only the author, as owner of the report, could do.
A day after the leaked letter, on 17 November 2020, SARS, in an official media statement, regretted the leaking of that letter, confirming “SARS has made a decision that it will not use these reports for any purpose as it cannot place reliance on them”.
In line with the Nugent Commission of Inquiry, the tax authority was in the process of implementing recommendations, including paying reparations to those SARS officials who were negatively impacted as a consequence of the reports over the period 2014 to 2018.
“Given the trauma experienced by many, as a result of the unfortunate events during that period, a process of reflection and healing is necessary for SARS as an institution as well as for the individuals concerned,” said that statement.
The one report that remains under litigation is the July 2019 report by Mkhwebane on what was described as the unlawfully established SARS “intelligence unit”. Courts had declared that report invalid and set it aside in December 2020, but Mkhwebane has pursued her appeal application after every other court had dismissed this, all the way to the Constitutional Court.
Van Loggerenberg is expected to complete his stint before the impeachment inquiry on Friday, followed by ex-SARS deputy commissioner Ivan Pillay.
Both are among the 24 witnesses the inquiry is apparently planning to call. But after just four days, and only two witnesses, the inquiry is already running behind schedule. DM
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Dali Mpofu is a theatrical puppet of RET,follow the money and see where most of his cases come from!!!
There is a line for professional conduct, doing what lawyers do and then down right being cheap. I was not expecting much from Dali but what I did not realise that he could actually lower the standard. Ground level was not enough, he digs through to the basement to drop the standard p. Clutching at straws, snide remarks and most of all sarcasm has to be the lowest form of wit. He appears more qualified at that than being a legal professional.
The court should Mpofu As little room to manoeuvre as possible
He is an unprincipled
Gun for hire
Mpofu is being paid by the hour, I assume, some excessive fee that has no relation to his paltry success rate. If his fee was connected to performance, he should actually be paying his client. No, let me rephrase, because ‘performance’ is what he does best. If his fee was connected to winning…
Good comment!
Mkhwebane and Arthur Fraser are like peas from the same vrot pod.
“Dali Mpofu”, living proof that having an education does not preclude idiocy. With an army of the aggrieved corrupted knocking on his door, his only strategy is to drag each case out for as long as possible, Stalingrad-style. Just like his chief, Jacob Zuma.
And SARS, hang your head in shame. Where is Tom Moyane’s court case for tipping-off his employee? FIC regulations bind everyone else with up to a R20m fine and or 10 years in prison. Represented by your Commissioner, Edward Kieswetter, you have the temerity to ignore this, expecting SA to regard yourselves as a prudent organ of state. As long as this issue remains unaddressed, your attempts at collecting taxes will be seen only as a rabid exercise funding a corrupt and self-serving political elite. In other words, another corrupt & illegitimate state entity despite your pitiful, hand-wringing pleas of innocency and honesty.
Mpofu knows no boundaries, why is the inquiry chairman allowing this line of personal questioning which has no bearing on the Public Protector’s actions. – “Mpofu skirted around” – is clear indication of his disrespect and own self importance perception.
He once said in an interview on TV – “I don’t chose my clients” but if you are to be measured by the company you keep, or the clients you continually accept to represent, then we should expect nothing less than the total disrespect he displays for the judicial system.
Yet again Dali Mpofu’s conduct falls far short of that expected from a competent attorney, yet again seeking almost childishly to play the man rather than the issues. He is a large component of the nearing R70 million of tax-payers that Ms Mkhwebane has frittered away on legal fees, not to defend herself – she well knows it is indefensible – but rather to delay, delay, delay, drawing on the Stalingrad defence as well tested by Mr Zuma.
This large bill should be re-directed, given to the pair of them to settle; they have absolutely no right to so abuse state funds to avoid the consequences of the own incompetencies, short-comings and criminality.
And if this continues beyond her end of contract date, any bonuses, pensions, or other forms of recompense should be cancelled.
Looks from here as though there could be a clear case for defamation against Mpofu. Unless some form of privilege applies, which I doubt.
Don’t pevert justice. Don’t show favouritism to either the poor or the great. Judge on the basis what is right. What a disgrace!
It sounds to me that the chairperson of this committee should lay down the law to Mpofu, and makes it clear that he (Mpofu) should keep to relevant issues and not waste the committee’s time. First it was the suspension issue, which has nothing to do with the question under investigation (whether Mkhwebane is fit to hold the position as PP); now it seems to other irrelevant issues. It was the same with his conduct at the Zondo commission when Zondo had to reprimand him, which happened more than once. And I believe that he misbehaved more than once in other cases too. I am not saying that he should not interrogate the witness robustly, but it should be focused on the issue at hand, and his conduct should always be respectful of the SA Constitution and the committee in this case, or the court of law or commission or wherever he is representing a client. And if he is representing a client, it is as a lawyer and he should refrain from making political points too; the politicians can make the political points, even if he is a member of the EFF, these roles in which he is behaving himself like that are that of a lawyer, not a politician. If a political point is to be made, he can call a witness that is a politician, that can then make the political point, but also only if it is relevant to the case. And the chair should calll him to order if he does not want to do it.
Which is more, I wonder why he has not been reported to the “balie” already for all this malbehaviour. An advocate is in a powerful position in these proceedings and should not be allowed to abuse it. Just the very fact that he is subtly threatening Stalingrad tactics by implying that he will see that the committee will not keep to its deadline is already such an abuse and defying of the authority of the commission. It is precisely the allowing of such behaviour that will eventually damage the very longstanding credibility of our system of law. It is time that the procedures be enforced far more narrowly (without of course denying robust interrogating of witnesses on relevant issues). If the person he represents (like Mkhwebane for instance) wants to say something that is improper to the court or committee/commission, he must call that person as a witness and get him/her to say it for him/herself, so the court etc. can see where it comes from. I can in any case not see why clients allow him as their representative to do this; I would say that it is more damaging to their cases than beneficial.
The Chairperson needs to take control of this enquiry, stick to timing and remonstrate grandstanding.
Thanks heavens for Mpofu. This case is sure to go south.