C O M M I S S I O N O F I N Q U I RY I N T O S TAT E C A P T U R E H E L D AT PA R K T O W N , J O H A N N E S B U R G 10 2 6 F E B R U A RY 2 0 2 0 D AY 2 1 9 FINAL 20 26 FEBRUARY 2020 – DAY 219 P R O C E E D I N G S R E S U M E O N 2 6 F E B R U A RY 2 0 2 0 C H A I R P E R S O N : G o o d m o r n i n g M s N o r m a n , g o o d m o r n i n g e v e r y b o d y. ADV THANDI NORMAN SC: Good morning Mr Chairman. CHAIRPERSON: Are you ready? A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u C h a i r. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Chair this morning we are going to lead the evidence of Ms Lulama Mokhobo. Chair in – her evidence is contained in Exhibit CC21. 10 C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Chair that exhibit was – is already …(intervenes). CHAIRPERSON: Was previously admitted. ADV THANDI NORMAN SC: It was previously admitted. C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: But what we did was to take all of her statements and put them in one file and remove them from the 21 which contained all the other statements belonging to other witnesses so as to make it easy to lead her on the later statement of hers. 20 CHAIRPERSON: I wonder whether you should not just have made copies and not take them out of the …(intervenes). ADV THANDI NORMAN SC: Of the others. CHAIRPERSON: Other one. ADV THANDI NORMAN SC: Alright – no, no by that I mean Chair they are still there is that one. Page 2 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : T h e y s t i l l – o h o k a y. ADV THANDI NORMAN SC: Ye s , y e s b u t f o r t h e p u r p o s e s o f t o d a y ’s hearing. C H A I R P E R S O N : Yo u m a d e c o p i e s . A D V T H A N D I N O R M A N S C : Ye s , y e s . CHAIRPERSON: Okay no that is fine. ADV THANDI NORMAN SC: No they are still there yes. Thank you C h a i r. CHAIRPERSON: So – but it remains as Exhibit …(intervenes). 10 ADV THANDI NORMAN SC: It remains CC21. CHAIRPERSON: 21? ADV THANDI NORMAN SC: That is correct Chair yes. CHAIRPERSON: But there is something you have added I would imagine? ADV THANDI NORMAN SC: The supplementary – the latest s u p p l e m e n t a r y. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Which she is going to testify to. C H A I R P E R S O N : Ye s . B u t n o w t h e – w h a t y o u w o u l d h a v e a d d e d . 20 A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Would be something that was not there when it was admitted? ADV THANDI NORMAN SC: When it was admitted. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: That is correct Chair yes. Page 3 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: So we should keep Exhibit CC21 as it was when it was admitted. ADV THANDI NORMAN SC: That is correct. CHAIRPERSON: So …(intervenes). ADV THANDI NORMAN SC: Or – and then make this 21A and B. C H A I R P E R S O N : Ye s m a y b e w h a t w e s h o u l d d o i s y o u c a n k e e p 2 1 t o be just a duplicate. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: Of what was admitted. 10 A D V T H A N D I N O R M A N S C : Ye s , y e s . CHAIRPERSON: And then have whatever you have added. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: As Exhibit 21A or something. A D V T H A N D I N O R M A N S C : W e w i l l d o t h a t C h a i r. CHAIRPERSON: But let it be separate exhibits. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: So that …(intervenes). A D V T H A N D I N O R M A N S C : I t i s c l e a r. CHAIRPERSON: 20 Somebody who looks at Exhibit 21 and sees that it was remitted on a certain. A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : D o e s n o t s e e a s t a t e m e n t t h a t w a s s i g n e d a f t e r. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: Ja. ADV THANDI NORMAN SC: We will do that yes. Thank you. Page 4 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : J a o k a y. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. C h a i r … ( i n t e r v e n e s ) . CHAIRPERSON: The – how much has been added? Is it a supplementary statement only or are there …(intervenes). ADV THANDI NORMAN SC: There is two supplementary statements Chair but the one supplementary that was added it is her evidence which she submitted to the SIU. So from folder 2 that did form part of her first statement but what is new in this bundle …(intervenes). C H A I R P E R S O N : Yo u t a l k a b o u t f o l d e r 2 y o u m e a n B ? 10 ADV THANDI NORMAN SC: B – I beg your pardon. Divider B. CHAIRPERSON: Ja. ADV THANDI NORMAN SC: That formed part of her evidence because s h e – i t w a s a t t a c h e d t h e r e a s a n a n n e x u r e . S o s o r r y. CHAIRPERSON: Her evidence before the Commission. ADV THANDI NORMAN SC: Before the SIU. C H A I R P E R S O N : T h a t i s h e r e v i d e n c e – t h a t i s h e r a ff i d a v i t b e f o r e t h e SIU? ADV THANDI NORMAN SC: That is correct Chair yes. CHAIRPERSON: Alright. 20 ADV THANDI NORMAN SC: But today what she is talking about is what is under folder C. C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: So that is the …(intervenes). A D V T H A N D I N O R M A N S C : T h e s e c o n d s u p p l e m e n t a r y. Page 5 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: So what falls under divider C was not in Exhibit 21? ADV THANDI NORMAN SC: That is correct. CHAIRPERSON: What about what falls under Exhibit B? ADV THANDI NORMAN SC: It was. CHAIRPERSON: It was. ADV THANDI NORMAN SC: Because that was before she testified in S e p t e m b e r. C H A I R P E R S O N : O h o k a y. A D V T H A N D I N O R M A N S C : Ye s , y e s . 10 CHAIRPERSON: So what we need to do then is just admit her s u p p l e m e n t a r y a ff i d a v i t t h a t i s u n d e r C a s a s e p a r a t e e x h i b i t ? A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: And then later on or during the break you can take it o u t a n d p u t i t o n a d i ff e r e n t f o l d e r. A D V T H A N D I N O R M A N S C : Ye s a n d m a r k e t i t – t h a n k y o u C h a i r. CHAIRPERSON: Ja. So that when we say this is Exhibit 21 it is exactly the same as …(intervenes). ADV THANDI NORMAN SC: As it was. CHAIRPERSON: It was and then there is Exhibit 21A. 20 A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: Which is the addition. ADV THANDI NORMAN SC: We will do that. CHAIRPERSON: Which is – will be separate. A D V T H A N D I N O R M A N S C : W e w i l l d o t h a t C h a i r. T h a n k y o u . C H A I R P E R S O N : O k a y. D o y o u w a n t m e t o a d m i t t h i s ? Page 6 of 157 26 FEBRUARY 2020 – DAY 219 ADV THANDI NORMAN SC: Thank you Chair could you – the s u p p l e m e n t a r y a ff i d a v i t o f M s M o k h o b o b e a d m i t t e d a s E x h i b i t C C 2 1 A . C H A I R P E R S O N : T h e s u p p l e m e n t a r y a ff i d a v i t d e p o s e d t o b y M s L u l a m a Mokhobo on ...(intervenes). A D V T H A N D I N O R M A N S C : O c t o b e r. CHAIRPERSON: What is the date? ADV THANDI NORMAN SC: y o u r p a r d o n C h a i r. The date appears it is October – I beg It appears at page 89 that will be on the 16th of O c t o b e r. 10 CHAIRPERSON: On the 16th of October 2019. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Is admitted and will be marked together with its annexures as Exhibit 21A. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. C H A I R P E R S O N : Ye s o k a y. ADV THANDI NORMAN SC: T h a n k y o u C h a i r. Ye s t e r d a y C h a i r w e referred to the Exhibit CC43 which is of Ms Theresa Geldenhuys but it was not admitted formerly into the record. Could that be admitted? M a y I j u s t m e n t i o n C h a i r t h a t C h a i r ’s b u n d l e i s n o t b e f o r e t h e 20 Commission we omitted to ask the Protectors to bring that one but with your leave we shall make use of the witness which will become the C h a i r ’s o n e a n d t h e n w e w i l l c h a n g e i t w h e n w e g e t i t . CHAIRPERSON: Are you going to need that one for …(intervenes). A D V T H A N D I N O R M A N S C : F o r t o d a y. C H A I R P E R S O N : F o r M s M o k h o b o ’s e v i d e n c e . Page 7 of 157 26 FEBRUARY 2020 – DAY 219 A D V T H A N D I N O R M A N S C : Ye s C h a i r t h e r e i s t h e r e f e r e n c i n g t h a t w e have make relating to this. C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : Ye s C H A I R P E R S O N : Yo u s a y a t t h i s s t a g e y o u d o n o t h a v e m y b u n d l e ? ADV THANDI NORMAN SC: We do not have yours at this stage Chair but we made provision. W e t o o k t h e w i t n e s s ’s b u n d l e w h i c h i s c l e a n a n d w e w e r e g o i n g t o u s e i t f o r C h a i r t o d a y. CHAIRPERSON: Ja. 10 ADV THANDI NORMAN SC: And then we have a separate copy that we have given to the witness. CHAIRPERSON: Ja. MS MOKHOBO: And with your leave we will use – Chair will use – will have reference to the witness bundle and then it will be replaced before t h e e n d o f t h e d a y. CHAIRPERSON: Okay A D V T H A N D I N O R M A N S C : Ye s . T h a n k y o u . C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: 20 No, no it is already there. It is – we p l a c e d i t t h e r e a l r e a d y. S o r r y. J u s t i n f r o n t o f y o u – t h e r e t h a n k y o u . CHAIRPERSON: The rest of the contents of this lever arch file except M s G e l d e n h u y s ’ a ff i d a v i t – o r i s i t a n a ff i d a v i t ? A D V T H A N D I N O R M A N S C : I t i s – r i g h t C h a i r. C H A I R P E R S O N : A r e t h e r e t w o a ff i d a v i t s b y h e r ? A D V T H A N D I N O R M A N S C : Ye s t h e o n e – y e s C h a i r w o u l d r e c a l l t h a t Page 8 of 157 26 FEBRUARY 2020 – DAY 219 s h e i s t h e o n e w h o r e s p o n d s t o M i n i s t e r C a r r i m ’s e v i d e n c e . We mentioned it yesterday and …(intervenes). CHAIRPERSON: One has not been deposed to. A D V T H A N D I N O R M A N S C : Ye s b u t t h e d e p o s e d o n e a p p e a r s a t p a g e 8. CHAIRPERSON: Ends at page 8? A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: Ja. A D V T H A N D I N O R M A N S C : T h e 2 7 t h o f J a n u a r y. 10 CHAIRPERSON: What is the status of the one that has not been deposed to? ADV THANDI NORMAN SC: She sent the one that was not deposed to first and then she subsequently commissioned with her ID number redacted in the one that appears from pages 1 to 8. CHAIRPERSON: Is there any need for the one that is not deposed to? ADV THANDI NORMAN SC: N o C h a i r, n o b u t b e c a u s e i t h a s a l r e a d y been sequenced and paginated. C H A I R P E R S O N : Yo u d i d n o t w a n t t o … ( i n t e r v e n e s ) . ADV THANDI NORMAN SC: No we did not want to take it out because 20 i t w i l l l e a v e t h a t g a p . T h e a ff i d a v i t o f M r T h e r e s a V i c t o r i a G e l d e n h u y s deposed to on the 16th of February 2020 and the annexures thereto will be marked as – will be admitted and marked as Exhibit CC43. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. A n d l a s t l y C h a i r m a y I also ask to introduce another exhibit which Ms Mokhobo is going to make – we are going to ask her to refer to that is CC42. Page 9 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: Before that. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: In this one that is the CC43. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: T h e r e i s n o o t h e r a ff i d a v i t i n i t w h i c h i s n o t a n a n n e x u r e t o M s G e l d e n h u y s ’ a ff i d a v i t ? ADV THANDI NORMAN SC: No Chair she only annexes minutes of meetings. C H A I R P E R S O N : J a o k a y. 10 A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Alright. ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: Ja. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: And what do you say about this other one? ADV THANDI NORMAN SC: T h a t o n e C h a i r i s a n a ff i d a v i t f r o m M s Lindiwe Viola Bayi who is the Company Secretary at the SABC – Group Company Secretary at the SABC and her signature appears Chair at p a g e 2 a n d s h e d e p o s e d t o t h a t a ff i d a v i t o n t h e 2 1 s t o f F e b r u a r y. A l l 20 that she does Chair is to authenticate the minutes that she attaches together with the original agreement – with a copy of the agreement b e t w e e n M u l t i C h o i c e a n d S A B C . Ye s . CHAIRPERSON: And the other documents are annexures to her a ff i d a v i t ? A D V T H A N D I N O R M A N S C : T h e y a r e a n n e x u r e s t o h e r a ff i d a v i t t h a t i s Page 10 of 157 26 FEBRUARY 2020 – DAY 219 c o r r e c t C h a i r. CHAIRPERSON: T h e a ff i d a v i t o f M s L i n d i w e V i o l a B a y i a n d t h e annexures thereto are admitted and will be marked as Exhibit CC42. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. T h a n k y o u C h a i r. M a y the witness be sworn in Chair? C H A I R P E R S O N : Ye s . P l e a s e a d m i n i s t e r t h e o a t h o r a ff i r m a t i o n . REGISTRAR: Please state your full names for the record? MS MOKHOBO: I, Lulama Mokhobo. REGISTRAR: Do you have any objection to taking the prescribed oath? 10 MS MOKHOBO: No. REGISTRAR: Do you consider the oath to be binding on your conscience? M S M O K H O B O : Ye s . REGISTRAR: Do you swear that the evidence you will give will be the truth; the whole truth and nothing else but the truth, if so please raise y o u r r i g h t h a n d a n d s a y, s o h e l p m e G o d . MS MOKHOBO: So help me God. ADV THANDI NORMAN SC: Thank you. Thank you Ms Mokhobo. C H A I R P E R S O N : S o r r y. 20 A D V T H A N D I N O R M A N S C : S o r r y C h a i r. CHAIRPERSON: Thank you for coming back Ms Mokhobo M S M O K H O B O : T h a n k y o u C h a i r. CHAIRPERSON: Thank you. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: I just want to make sure I have got the pronunciation Page 11 of 157 26 FEBRUARY 2020 – DAY 219 of your surname correctly because somehow I think I have been saying – I have been pronouncing it as if the first O is A so if you can just – is it Mokhobo? MS MOKHOBO: It is Mokhobo. CHAIRPERSON: Mokhobo. M S M O K H O B O : Ye s . Ye s C h a i r. CHAIRPERSON: Okay alright. A D V T H A N D I N O R M A N S C : O h t h a n k y o u C h a i r. MS MOKHOBO: Thank you. 10 ADV THANDI NORMAN SC: Thank you Chair I have also been pronouncing at Mokhobo then not Mokhobo? MS MOKHOBO: That is correct. Mokhobo ADV THANDI NORMAN SC: Mokgobo. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: Ja so do not pronounce like IsiZulu or IsiXhosa. ADV THANDI NORMAN SC: That is what I am doing. I apologise. T h a n k y o u C h a i r. C H A I R P E R S O N : I t i s M o k h o b o . J a o k a y. 20 ADV THANDI NORMAN SC: Thank you. Ms Mokhobo you have in front of you Exhibit CC21 but your – the statement that you are going to make reference to today appears from pages 70 onwards and they will be under a divider marked C. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: And that statement has now been admitted Page 12 of 157 26 FEBRUARY 2020 – DAY 219 as Exhibit CC21A. So that is the only one that we will refer to and other documents that we may make reference to. Could you please t a k e a l o o k a t p a g e 7 0 a n d d o y o u i d e n t i f y t h a t a s y o u r a ff i d a v i t ? MS MOKHOBO: I do. ADV THANDI NORMAN SC: Okay if you go to page 89. CHAIRPERSON: I am sorry I wonder whether that microphone is not t o o f a r. A D V T H A N D I N O R M A N S C : F r o m h e r. CHAIRPERSON: But I could hear you but maybe you might bring it – I 10 see it is pointing skywards as well. MS MOKHOBO: It was. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Maybe it should – I do not know who interfered maybe bend it a little bit. A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: Thank you. ADV THANDI NORMAN SC: 20 Thank you. At page 89 is that your signature? M S M O K H O B O : Ye s . A D V T H A N D I N O R M A N S C : A n d d i d y o u d e p o s e t o t h a t a ff i d a v i t o n t h e 16th of October 2019 M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: Thank you. And that the contents of that Page 13 of 157 26 FEBRUARY 2020 – DAY 219 s u p p l e m e n t a r y a ff i d a v i t t r u e a n d c o r r e c t ? M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: Thank you. Yo u r e c a l l t h a t C h a i r h a d i n v i t e d y o u t o s u b m i t a s t a t e m e n t t h a t d e a l s w i t h t h e D i g i t a l M ig r a t i o n Project and that is what you have done, is that correct? M S M O K H O B O : Ye s . A D V T H A N D I N O R M A N S C : Yo u d i d t e s t i f y b e f o r e t h e C o m m i s s i o n o n the 4th of September 2019? M S M O K H O B O : Ye s . 10 A D V T H A N D I N O R M A N S C : Ye s . W h a t I w o u l d l i k e t o d o i s t o t a k e y o u to page – to paragraph 44 that appears at page 83 because in terms of sequence I believe that is where you should start about your role in the SABC Digital Migration Program. Could you just tell Chair briefly what was your role in this program? MS MOKHOBO: Chair I …(intervenes). CHAIRPERSON: That is the Digital Migration Program. ADV THANDI NORMAN SC: Migration Program that is correct Chair yes. MS MOKHOBO: Are you looking at – from point 45? 20 ADV THANDI NORMAN SC: 44 – page 83. MS MOKHOBO: 44. ADV THANDI NORMAN SC: Page 83. MS MOKHOBO: Chair I thought it was important to locate where I was coming from as a Member of the SABC charged with running that institution. And in this paragraph I table my experience. Page 14 of 157 I had been 26 FEBRUARY 2020 – DAY 219 o n e o f t h e i n d u s t r y p l a y e r s i n t h e 1 9 8 0 ’s t o b e p r e c i s e s t a r t i n g f r o m 1982 as the Head of the now defunct Bop TV edutel which was an educational radio and TV section of Bop TV and I was there for 10 years. And I go on to say having experienced the power of instructional and educational TV and radio technology and content in education in rural development particularly in poverty stricken communities and having seen teachers with poor qualifications and learners whose chance at bright futures were severely threatened by their lack of access to quality education blossom as a result of the TV 10 and radio technology interventions. I could therefore grasp the vast opportunities that DDT with STB Control enabled technology could provide. I was during the phase when the Broadcasting Digital Migration Policy was being developed one of the people who were invited to give input. I was also a Member of the Sentech Board and was intimately aware of the possibilities that were at hand. I therefore view the SABC as possibly the best placed organ of state to be at the forefront of preparing nation to becoming a citizenry filled with hope and determination to learn and apply its learning for the greater good of family community and nation. The participation of the marginalised 20 in the digital dividend and knowledge economy would indeed help make South Africa a better place for all who live in it. At a practical level the S A B C Te c h n o l o g y D i v i s i o n r e p o r t e d t o m e . I w a s t h e r e f o r e i n v o l v e d i n providing strategic insights and playing the critical oversight role of ensuring that approved plans were implemented and budget utilisation was focussed on critical measurable deliverables. The most critical of Page 15 of 157 26 FEBRUARY 2020 – DAY 219 which was the digitising of all areas of the SABC critical to digital migration. I was thus able to share in the strategies research and d e v e l o p m e n t a c t i v i t i e s t h r o u g h t h e c r e a t i o n o f t h e S A B C ’s o w n S T B e n c r y p t e d l a b o r a t o r y t e s t i n g f a c i l i t y a n d t h e s h o w c a s i n g o f S A B C ’s capabilities. And the showcasing Chair was done at a big convention which focussed on DTT and there were internationals who came in with all manner of equipment and the SABC actually won I think it was a silver award for what they showed. T h e s h o w e d t h e i r i n t e r a c t i v i t y. They almost went as far as to show even gaming as one of the options 10 t h a t c o u l d b e i n c l u d e d i f t h e S e t To p B o x w a s e n c r y p t e d . A D V T H A N D I N O R M A N S C : Ye s . A n d y o u s a y y o u w o r k e d t h e r e w i t h – you mentioned Mr Sipho Masinga? M S M O K H O B O : Ye s . A D V T H A N D I N O R M A N S C : Ye s . A n d w h a t r o l e d i d h e p l a y ? M S M O K H O B O : M r M a s i n g a w a s t h e G r o u p E x e c u t i v e f o r Te c h n o l o g y. A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: A very well trained engineer with numerous related qualifications and he showed an astuteness and creativity that if harnessed even after I had left the SABC would have led the 20 organisation into going beyond its traditional broadcasting role and becoming a non-linear hub of knowledge through technological possibilities provided by Digital Broadcasting and User Receiver Te c h n o l o g y a n d h e r e I m e a n t h e S e t To p B o x e s . A D V T H A N D I N O R M A N S C : Ye s . M S M O K H O B O : E n c r y p t e d S e t To p B o x e s . Page 16 of 157 26 FEBRUARY 2020 – DAY 219 ADV THANDI NORMAN SC: So if then with that background that you have given the Chair when then the whole proposal about how this relationship between MultiChoice and the SABC was going to work you had the best appreciation of what would have – what would benefit the SABC? M S M O K H O B O : I n d e e d C h a i r. A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: I did. ADV THANDI NORMAN SC: 10 And then I am going to take you back ma’am to page 72 now because there you just highlight the events that led up to that led to the signing of the agreement between MultiChoice and the SABC. CHAIRPERSON: I do not know whether I got this from reading statements or whether it was evidence that you did cover in your – or it was something that you did cover in your evidence previously but I do recall – I seem to recall that in your evidence you did say that this agreement was signed on a day when you were away from work – you were on leave or something. So the only reason why I am mentioning that is obviously that we do not need to cover what you have already 20 covered before. But Ms Norman would be alive to that. M S M O K H O B O : Ye s . CHAIRPERSON: Ja. M S M O K H O B O : Ye s C h a i r. C H A I R P E R S O N : O k a y. A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u C h a i r. Page 17 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: But obviously it might be necessary to go back a little b i t s o a s t o c o n n e c t t h e s t o r y p r o p e r l y. M S M O K H O B O : Ye s C h a i r. A D V T H A N D I N O R M A N S C : Ye s C h a i r. MS MOKHOBO: Thank you. CHAIRPERSON: Ja. ADV THANDI NORMAN SC: 10 Ye s . It just goes back by I think a day Chair and \ then …(intervenes). CHAIRPERSON: That is fine. That is fine. A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u . O n t h e 1 5 t h o f M a y c o u l d you just tell Chair what – summarise what happened on the 15th of May 2013? MS MOKHOBO: Chair I make a statement here which is very aligned to statements that the Chair has heard from the Minister yesterday and from other members of his team who have testified here. And here I say on the 15th of May 2013 when MultiChoice wrote a set of proposed provisions to Mr Motsoeneng that would form the basis of the 20 MultiChoice and SABC Multi Channel Agreement, MultiChoice had seen a n o p p o r t u n i t y t o c a u s e a m a j o r p o l i c y s h i f t i n t h e D i g i t a l Te r r e s t r i a l Tr a n s f o r m a t i o n P r o j e c t . ADV THANDI NORMAN SC: Ye s a n d y o u r e f e r t o A n n e x u r e 1 w h i c h appears at page 90 which was a letter addressed – are you there? M S M O K H O B O : Ye s . Page 18 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: What page? A D V T H A N D I N O R M A N S C : P a g e 9 0 C h a i r. C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: That is a letter that was addressed to Mr Hlaudi. Who wrote that letter to him? MS MOKHOBO: It was …(intervenes). ADV THANDI NORMAN SC: Hlaudi Motsoeneng I beg your pardon. M S M O K H O B O : Ye s t h e l e t t e r w a s w r i t t e n b y M r I m t i a z P a t e l t h e t h e n CEO of MultiChoice. 10 A D V T H A N D I N O R M A N S C : Ye s . A n d t h e n i f y o u g o t o t h e – w e l l w e do not have to deal with all of those because they are – they form part of some of the terms of the agreement but I will take you to the crucial terms which you are here to talk about. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: To d a y. And then could you just tell the Chair then what happened on the 6th of June according to your statement because it is where …(intervenes). CHAIRPERSON: I am sorry Ms Norman. A D V T H A N D I N O R M A N S C : Ye s C h a i r. 20 CHAIRPERSON: If no other witness has dealt with the contents of the …(intervenes). A D V T H A N D I N O R M A N S C : T h e l e t t e r. CHAIRPERSON: The letter it might be important that even if Ms M o k h o b o d o e s n o t r e a d t h e w h o l e l e t t e r. A D V T H A N D I N O R M A N S C : Ye s C h a i r. Page 19 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: She highlights the main features of the letter as she says it here. A D V T H A N D I N O R M A N S C : T h a n k y o u . T h a n k y o u C h a i r. W o u l d y o u proceed to do so Ms Mokhobo? M S M O K H O B O : I s h a l l C h a i r. A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: The letter begins with a thanking of the SABC I guess Mr Motsoeneng for the meetings – constructive meetings and open dialogues that they had regarding the development of a mutually 10 beneficial agreement between SABC and MultiChoice. He goes on to say: “As you are aware it is our intention that a wider partnership between the SABC and MCA has developed over time. We appreciate that the SABC has to fulfil its mandate as Public Broadcaster in South Africa but at the same time it is the leading and most diverse free to a b r o a d c a s t e r o p e r a t i n g i n t h e c o u n t r y. M C A b e l i e v e s t h a t building a partnership with the SABC will be beneficial to b o t h o r g a n i s a t i o n s . M C A’s p r i m a r y b u s i n e s s i s c o n t e n t , 20 …(indistinct), technology and platform development. MCA has an active subscriber base of some 4.5 million digital satellite households and provides access to some 20 million viewers in South Africa. We believe that MCA can assist SABC in enhancing on its mandate as Public Broadcaster and immediately expand its free to air Page 20 of 157 26 FEBRUARY 2020 – DAY 219 broadcasting operations. DTT in South Africa is currently in a mess with risk for the all existing broadcasters. free to air broadcasters are faced with the challenge of advertising reviews being diluted over a number of free to air channels. Pay TV broadcasters on DTT have limited capacity available which reduces the a b i l i t y t o p r o v i d e a n a t t r a c t i v e m u l t i - c h a n n e l p a y o ff e r i n g to subscribers. The SABC will have to invest in the content for its DTT platform with advertiser revenues 10 only being generated much later once the free to air DTT platform and base has been established. We propose that the SABC and MCA work together to develop their respective DTT and or digital satellite platforms. This can and take the form of cooperation agreements channel supply agreements. This will provide the SABC immediate access to M C A’s subscriber base with an active digital opportunity to satellite generate guaranteed channel revenue and advertising revenue from day one. This presents the SABC with substantial 20 potential upside for success of its operations and the free to air DTT platform.” ADV THANDI NORMAN SC: Can I just take you then directly to the proposal at page 91? M S M O K H O B O : Ye s . A D V T H A N D I N O R M A N S C : Ye s . Page 21 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: “The Channel Supply Proposal. 1.1 The SABC will provide MCA with the following channels, an exclusive entertainment channel, SABC Premium and a 24 hour news channel SABC News. In the return for the delivery of the channels listed above by SABC MultiChoice will pay the SABC a flat fee of R500 million payable over a period of five years. The SABC will bear the full costs for the production of the channels. 10 generated The on SABC these shall retain channels. all The advertising Entertainment Channel will be exclusive to MCA and MCA will be authorised to distribute the Entertainment Channel on its distribution platforms. The SABC News channel will be exclusive to MCA satellite platform and MCA will be authorised to distribute the SABC News channel on all its distribution platforms. The SABC will however be allowed to distribute the SABC News channel on its own f r e e t o a i r D T T p l a t f o r m s u b j e c t t o p o i n t s 9 b e l o w. ” I suppose I should go directly to point 9 below? 20 CHAIRPERSON: Ja. A D V T H A N D I N O R M A N S C : Ye s p l e a s e . M S M O K H O B O : “ T h e o ff e r p r e s u p p o s e s t h a t a l l S A B C c h a n n e l s on its DTT platform will be made available to the public unencrypted, without a conditional access system and thereby incidentally receivable Page 22 of 157 by the MCA DTT 26 FEBRUARY 2020 – DAY 219 d e c o d e r. ” ADV THANDI NORMAN SC: Ye s t h a n k y o u . And that becomes the issue that you raise at the meeting of the 6th of June 2013? M S M O K H O B O : Ye s C h a i r. ADV THANDI NORMAN SC: Could you just quickly go to paragraphs 11 . 1 a n d 11 . 2 w h e r e y o u d e a l w i t h t h e p r o p o s e d t e r m s o f t h e a g r e e m e n t that you canvassed largely at the meeting that would – we are now at page 72 – back to page 72. M S M O K H O B O : B a c k t o p a g e 7 2 . Ye s C h a i r. 10 ADV THANDI NORMAN SC: Thank you. MS MOKHOBO: What would you like me to …(intervenes). A D V T H A N D I N O R M A N S C : Ye s i f y o u t u r n t h e p a g e . M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: This is where you discuss the terms that were contentious. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: That were discussed points 9 and point 10 of the draft agreement that was submitted I believe at the meeting – that was debated at the meeting. 20 M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: Thank you. Could you just quickly tell the Chair what – why did you have a problem with those particular clauses? MS MOKHOBO: Chair I had a very serious problem with points 9 …(intervenes). C H A I R P E R S O N : I a m s o r r y. Page 23 of 157 26 FEBRUARY 2020 – DAY 219 A D V T H A N D I N O R M A N S C : S o r r y. CHAIRPERSON: M s N o r m a n w i l l t h a t c o v e r p a r a g r a p h 11 o f h e r …(intervenes)? A D V T H A N D I N O R M A N S C : T h a t i s p a r a g r a p h 11 C h a i r. CHAIRPERSON: Okay alright. A D V T H A N D I N O R M A N S C : Ye s . P a r a g r a p h 11 . C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Are you there? M S M O K H O B O : Ye s . 10 A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u . M S M O K H O B O : P a r a g r a p h 11 s h o u l d I r e a d p a r a g r a p h 11 ? A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : Ye s y o u c a n r e a d j a . A D V T H A N D I N O R M A N S C : Ye s , y e s . M S M O K H O B O : O k a y. “ O n 6 J u n e 2 0 1 3 t h e S A B C I n t e r i m B o a r d a n d M C A’s Chairman Mr Lidela, CEO Mr Imtiaz Patel together with Mr Greg Humbaga met to discuss the substance of the future multi-channel agreement as a follow up to the 20 letter referred to in point 9 above. Of particular contention as maybe gleaned from the verbatim minutes o f t h e s a i d m e e t i n g w e r e t w o p r o v i s i o n s t h a t e ff e c t i v e l y d i c t a t e d t h e S A B C ’s 2 0 0 8 d i g i t a l m i g r a t i o n b r o a d c a s t p o l i c y b a s e d s t r a t e g y o n S e t To p B o x e n c r y p t i o n . ” They state Point 9: Page 24 of 157 26 FEBRUARY 2020 – DAY 219 “ T h e o ff p r e s u p p o s e s t h a t a l l S A B C C h a n n e l s o n i t s D T T Platform will be made available to the public and encrypted without a conditional access system and t h e r e b y i n c i d e n t a l l y r e c e i v a b l e b y t h e M C A D T D e c o d e r. ” Point 10 states: “MCA, the SABC, Sentech is required work together to promote coverage of all the SABC free to air channels on t h e S A B C f r e e t o a i r. M u l t i p l e x w i l l b e m a d e a v a i l a b l e t o M C A S a t e l l i t e P l a t f o r m s u b j e c t t o a v a i l a b l e c a p a c i t y. 10 This is in order to enable the SABC to generate revenue from day one.” Point 12. This is where I began to explain why the two clauses were problematic. “I was joined by SABC Board Member Mr Mavuso in categorically stating that points 9 and 10 were not enforceable through the future Multichannel Agreement and entirely depended on the Department of Communications and Governments deciding to amend the 2008 BDM Policy to reflect the change. 20 Moreover the DOC had begun a Must Carry Regulations review process which could ultimately lead to the SABC being paid for any channels that were broadcast through MCA and other satellite platforms.” So essentially Chair we were sitting with people with very s e r i o u s c o m m e r c i a l i n t e r e s t s w h o e ff e c t i v e l y w a n t e d t o d o m i n a t e t h e Page 25 of 157 26 FEBRUARY 2020 – DAY 219 market by hook or crook and they saw the SABC as probably the most critical organisation which could lend credence to their attempt at basically taking the entire market over and shutting out anybody who tried to be a decentre. The BDM Policy of 2008 Chair as far as I was concerned as the person who had been placed in that organisation to not only run it, but safeguard its duty in the current state and in the future and ensure the – that from all perspectives of its mission and vision that it covered them and the core mission of the SABC was to empower the citizenry of 10 South Africa and how do you empower the citizenry if you do not do it via information. Best placed organisation to provide on the spot information throughout the country without filters. Now the citizens would at the time and I think it is worse now Chair with the losses of jobs that we are seeing in the country with the deepening of employment crisis and t h e d e e p e n i n g o f p o v e r t y. T h e y d e s e r v e d t o b e g i v e n a n o p p o r t u n i t y t o have access to any piece of information that they would need. An encrypted DT box would enable a return path that would enable a citizen sitting anywhere in the country for as long as they had 20 a TV set. Even the old black and white box would be able to work t h r o u g h t h e S e t To p B o x . Would be able to search for information on the internet using that box. provision and I do We had also and this was also a policy c o v e r t h a t l a t e r, b u t i f y o u will allow …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . Yo u c a n d e a l w i t h i t n o w. Page 26 of 157 me 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Advocate. A D V T H A N D I N O R M A N S C : C e r t a i n l y. MS MOKHOBO: We had also been enjoined through the BDM Policy to e n s u r e t h a t t h e S e t To p B o x e s w o u l d h a v e a r e t u r n p a t h a n d t h a t r e t u r n path would enable a telephone capability whether it would be via a cord or if with the sophistication that we have in the country now – via B l u e t o o t h o r w h a t e v e r m e a n s a n d w i t h Te l k o m a l s o b e e n a S t a t e E n t i t y coming on Board as a provider of telephony countrywide to enable also over and above its core function of enable people to talk to each other 10 via the phone, but to enable access to their internet network that would c o m e t h r o u g h t h e S e t To p B o x . S o e ff e c t i v e l y o l d p e o p l e , y o u n g p e o p l e i n f a r a w a y p l a c e s would not have to travel the distances that they would need to travel to get to any place where they would require help. Whether it would be f o r r e g i s t e r i n g a c h i l d ’s b i r t h , f o r r e g i s t e r i n g a n o l d l a d y t o r e c e i v e p e n s i o n a n d f o r a l l m a n n e r o f t h i n g s t h a t I c a n n o t o ff t h e t o p o f m y h e a d m e n t i o n r i g h t n o w. T h e l i s t i s t o o l o n g . CHAIRPERSON: That would include internet cafes and so on? M S M O K H O B O : Ye s . 20 CHAIRPERSON: They would not have to – young people would not have to try and go and – distances to look for those. MS MOKHOBO: Indeed Chair …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: And the beauty of it all …(intervenes). CHAIRPERSON: H’mm. Page 27 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: I s t h e y w o u l d n o t h a v e t o s p e n d a p e n n y, b e c a u s e they would have their own internet café at home. They would be able to go in and do their research. I am very passionate about education C h a i r. I come from an educator background. I a m v e r y, v e r y passionate about education and we know how in trouble our schooling system is. How we – our children continue to not to do well and not very long ago there was a research document that was published which suggested that the standard of education in our country seems to be 10 g o i n g l o w e r i n s t e a d o f g e t t i n g b e t t e r. CHAIRPERSON: I would not be surprised if that is true. M S M O K H O B O : I n d e e d C h a i r. CHAIRPERSON: I would not be surprised. I watch celebrations about Matric results and I think that the families whose children celebrate their achievements are entitled to celebrate. That is good, but I think we do not put enough emphasis on many learners who did not make it up to Matric and I think that recently it was said that in terms of Africans that figure is about half – if I am not – or even more than half. If you look at those who started together at Grade 1. That by 20 the time that class reaches Matric and passes it is not less than half who did not go up to Matric. They drop out or stop at some stage and when we celebrate those who have achieved we need to worry about those as well who have been lost in the system. passion for education. M S M O K H O B O : T h a n k y o u C h a i r. Page 28 of 157 So I share your 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: H’mm. H’mm. ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: So you were saying that there is so much of value that the SABC would have been able to give to the citizenry if the e n c r y p t e d S e t To p B o x e s h a d b e e n c o n t i n u e d w i t h i n t e r m s o f t h e Digital Migration and what MultiChoice and Naspers wanted to do was t o e ff e c t i v e l y s t r e n g t h e n t h e i r m o n o p o l y o f – t h e i r d o m i n a n c e o f t h e m a r k e t , b u t i n e ff e c t t h e c o n s e q u e n c e s a n d e ff e c t s o n t h e c i t i z e n r y were far reaching? 10 M S M O K H O B O : I n d e e d C h a i r. CHAIRPERSON: H’mm. H’mm. MS MOKHOBO: Indeed. I saw how children and their teachers would – they would actually glow at how much they could understand concepts b e t t e r, b e c a u s e t h e y w o u l d h a v e s o m e b o d y w h o k n o w s t h e s u b j e c t m a t t e r b e t t e r. Te a c h i n g t o t h e m v i a t e l e v i s i o n . T h e y w o u l d b e a b l e t o see experiments. A lot of these schools do not have laboratories and yet we decry the fact that we do not have enough children trained in science and mathematics. How do you get trained – how do they get trained in those 20 when they do not have laboratories and secondly when the teachers themselves do not have the appropriate qualifications or ability to impart the knowledge. So you would be able to get almost a distance learning program running throughout the country with the best teachers and the children would be able to watch those programs and if they could not watch them at the time when they run and that is where the Page 29 of 157 26 FEBRUARY 2020 – DAY 219 PVR functionality is so important. They could set their PVR to record the program for themselves. So when they get home at the time when they are studying they could switch on and watch it. The same case goes for the teachers themselves who would be able to use the information they get to better match the information and learning requirements of their c h i l d r e n , b u t a s w e k n o w t h e c h a l l e n g e d o e s n o t g o a w a y. A t l e a s t n o t r i g h t n o w. C H A I R P E R S O N : S o e ff e c t i v e l y o n e o f t h e p o i n t s y o u m a k e i s t h a t o n e 10 of the advantages would have been that when for example we talk about challenges about maths and science teachers and maths and science as subjects in very many schools in our country and talk about the fact that very many schools do not have qualified maths and science teachers. This could have resulted in a situation where a teacher who is very well qualified could actually be accessed in a way by millions in the country if he or she was teaching maths or science. So that even though you might not have a qualified teacher in maths and science. Yo u c o u l d b e n e f i t q u i t e a l o t f r o m t h i s t e a c h e r w h o m i g h t b e – t h e s e 20 teachers who might be providing lessons through this program. M S M O K H O B O : I n d e e d C h a i r. CHAIRPERSON: Ja. Ja. ADV THANDI NORMAN SC: Thank you. MS MOKHOBO: And I know that MultiChoice will probably argue that they do have a learning channel on their platform and that learning Page 30 of 157 26 FEBRUARY 2020 – DAY 219 channel provides for that. Remember the facts of the matter is a lot – millions actually of South Africans cannot a ff o r d to pay those subscription fees. C H A I R P E R S O N : E x a c t l y. Ye s . MS MOKHOBO: They cannot and what happens is …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: If they fail to pay …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: They are unplugged. 10 C H A I R P E R S O N : Ye s . M S M O K H O B O : T h e y a r e s w i t c h e d o ff . C H A I R P E R S O N : Ye s . Ye s . MS MOKHOBO: So the whole argument that the SABC or people like myself …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: Who wanted encryption …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: W a n t e d t o b e a b l e t o s w i t c h c i t i z e n s o ff . m o s t n o n s e n s i c a l a r g u m e n t e v e r, e v e r C h a i r. 20 It was the There is no way that a n y b o d y w o u l d s w i t c h a n y b o d y o ff , b u t p e o p l e w o u l d b e a b l e t o g e t access to their education at zero cost to themselves. All they needed to have …(intervenes). CHAIRPERSON: H’mm. M S M O K H O B O : I s t h e e l e c t r i c i t y t o r u n t h e T V. C H A I R P E R S O N : Ye s . Page 31 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Is to be able to connect to the port. It is to be – you know the PVR …(intervenes). CHAIRPERSON: Ja. MS MOKHOBO: Functionality would enable them. CHAIRPERSON: H’mm. H’mm. M S M O K H O B O : T h a t i s a l l C h a i r. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Thank you. C H A I R P E R S O N : Ye s . Ye s . 10 A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: Thank you. ADV THANDI NORMAN SC: Thank you and then on the 2nd of July whilst you were on leave the – it is now common cause the agreement was signed? M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: Ye s a n d I j u s t w a n t t o t a k e y o u t o t h a t agreement. Chair that agreement appears in Exhibit CC42. CHAIRPERSON: Just before …(intervenes). A D V T H A N D I N O R M A N S C : I a m s o r r y. 20 CHAIRPERSON: We go there. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Prior to M u l t i C h o i c e ’s letter addressed to Mr Motsoeneng arriving. Had you been aware of any discussions that might have been taking place prior to that between anybody from SABC and MultiChoice about any possible cooperation? Page 32 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: C h a i r, discussions around cooperating with MultiChoice began at the time when I had just begun at the SABC …(intervenes). C H A I R P E R S O N : Ye s . MS MOKHOBO: In 2012. C H A I R P E R S O N : Ye s . MS MOKHOBO: When the – Parliament – Members of Cabinet were getting very upset with the SABC for not establishing the 24-hour news channel. 10 C H A I R P E R S O N : Ye s . MS MOKHOBO: There were elections coming up. There was so much pressure on the SABC to create space for a lot of news and in particular …(intervenes). C H A I R P E R S O N : Ye s . M S M O K H O B O : T h e c o v e r a g e o f d i ff e r e n t p o l i t i c a l p a r t i e s a n d e t c e t e r a and the SABC on its own could not create the channel, because there was a ruling that all the space that was available was going to be used for the future and we could not touch it and therefore we could not create a new channel on the SABC and so the only other alternative 20 was to then go to MultiChoice and discuss the possibility and it turned out that many people had already been lobbying MultiChoice for the possibility of having a 24 …(intervenes). C H A I R P E R S O N : Ye s . MS MOKHOBO: Hour news channel. C H A I R P E R S O N : Ye s . Page 33 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: So our discussions began then Chair and in my previous admission I did state that nothing came of those initial discussions and contract, because the money that MultiChoice was willing to pay was too little. C H A I R P E R S O N : Ye s . I t h i n k I r e m e m b e r t h a t , j a . MS MOKHOBO: The critical thing Chair is that the contract did not have any of these very strange clauses that became a bone of contention for many of us. C H A I R P E R S O N : O k a y. T h a n k y o u . 10 A D V T H A N D I N O R M A N S C : T h a n k y o u . T h a n k y o u C h a i r. I f I m a y j u s t take you to CC42 – Exhibit CC42 which is Ms ...(indistinct) – Ms …(indistinct) at page 161. the a ff i d a v i t of That agreement begins from page 153, but I would like to draw your attention to 161. Are you there? M S M O K H O B O : Ye s A d v o c a t e . Ye s . I a m t h e r e . ADV THANDI NORMAN SC: Oh. Thank you. Thank you. Could you please just read – there are two clauses I would like you to place on record and the one is clause 2.1.3. Has Chair found it? Page 161 C h a i r. S o r r y. 20 CHAIRPERSON: I am at page 161. A D V T H A N D I N O R M A N S C : O n e , y e s C h a i r. J u s t f o r r e f e r e n c e . C h a i r may want to have a look at page 153. CHAIRPERSON: Is that where it starts? ADV THANDI NORMAN SC: Where it starts for the witness to identify what that agreement is. Page 34 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : Ye s . I t i s i m p o r t a n t f o r u s … ( i n t e r v e n e s ) . A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : To b e a b l e t o s a y t h e … ( i n t e r v e n e s ) . A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: The agreement starts from page so and so …(intervenes). ADV THANDI NORMAN SC: 150 …(intervenes). CHAIRPERSON: And goes up …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . 10 C H A I R P E R S O N : To p a g e s o a n d s o . A D V T H A N D I N O R M A N S C : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: Then we can go to the particular page. ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: H’mm. ADV THANDI NORMAN SC: It goes up to page – it has got a lot of annexures. Page 199. C H A I R P E R S O N : Ye s . O k a y. A D V T H A N D I N O R M A N S C : Ye s . T h a n k y o u . CHAIRPERSON: Alright. 20 ADV THANDI NORMAN SC: Could you identify what that agreement is just on page 153? MS MOKHOBO: On page 1 …(intervenes). ADV THANDI NORMAN SC: 153. MS MOKHOBO: 153. A D V T H A N D I N O R M A N S C : Ye s . Page 35 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Agreement It is a Commercial and Master Channel Distribution between MultiChoice (Pty) Ltd and South African Broadcasting Corporation …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: SOC Ltd. ADV THANDI NORMAN SC: Thank you and then may I just refer you to page 161. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: 10 Could you please have a look …(intervenes)? CHAIRPERSON: And that is a separate agreement from the other one that we have been – we were discussing yesterday with Mr Carrim? A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: That is a – this one is the same …(intervenes). ADV THANDI NORMAN SC: It is the same. CHAIRPERSON: From that one or is it the same agreement? A D V T H A N D I N O R M A N S C : I t i s t h e s a m e C h a i r. CHAIRPERSON: Oh. M S M O K H O B O : I t i s t h e s a m e a g r e e m e n t C h a i r. 20 A D V T H A N D I N O R M A N S C : Ye s C h a i r. C H A I R P E R S O N : O h . O k a y. A l r i g h t . ADV THANDI NORMAN SC: Ye s . It is the same agreement. Thank you. C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: Thank you. Page 36 of 157 Could you just read 26 FEBRUARY 2020 – DAY 219 paragraphs 2 – clauses 2.1.3 and 2.15? MS MOKHOBO: 2.1.3 states: “MCA will pay the SABC an annual fee of R100 million e x c l u d i n g VAT d u r i n g t h e t i m e i n c o n s i d e r a t i o n o f t h e rights granted and obligations undertaken by the SABC. Increase by 5% per annum during each year of the term as from the anniversary of the start date with an amount of R30 million being payable within 30 days of the start date as a refundable advance in part payment of the 10 annual fees for the first year of the agreement pending the launch of the pay TV channels.” A D V T H A N D I N O R M A N S C : Ye s a n d t h e n 2 . 1 . 5 . MS MOKHOBO: “The channel signals for the S A B C / F TA Channels as transmitted in South Africa would at all times be available to and receivable on the M-Net DTT S e t To p B o x e s d i s t r i b u t e d i n S o u t h A f r i c a . The SABC a g r e e s t h a t t h e S A B C F TA C h a n n e l s w i l l n o t a t a n y t i m e be encrypted or allowed any conditional access system to be applied in respective of the channel signals for the 20 S A B C F TA C h a n n e l s t r a n s m i t t e d o n t h e S A B C D T T Platform in South Africa. So that viewers are able to v i e w S A B C F TA C h a n n e l s w i t h o u t r e q u i r i n g a n y t h i n g o t h e r t h a n t h e i n s t a l l a t i o n o f t h e M - N e t D T T S e t To p Box.” ADV THANDI NORMAN SC: Ye s . Would I be correct to say that that Page 37 of 157 26 FEBRUARY 2020 – DAY 219 was similar to what clause 9 was in the proposal? M S M O K H O B O : I n d e e d C h a i r. ADV THANDI NORMAN SC: Ye s , b u t t h e n i f y o u g o t o t h a t f i n a l agreement and you go to clause 9. Yo u w i l l f i n d t h a t i t d e a l s w i t h s o m e t h i n g d i ff e r e n t . c l a u s e 9 w i l l b e a t p a g e – I b e g y o u r p a r d o n C h a i r – would be at page 173. M S M O K H O B O : I a m t h e r e C h a i r. ADV THANDI NORMAN SC: Are you there; and then it deals with SMS …(intervenes). 10 M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: And that is not what was in the proposed – original proposed one which you objected to? What I am saying it was not clause 9 then. MS MOKHOBO: No. It was not …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: Clause 9 then. A D V T H A N D I N O R M A N S C : Ye s . T h a n k y o u . CHAIRPERSON: Well let us hear first what clause 9 says. ADV THANDI NORMAN SC: 20 Ye s . clause 9 – could you just read quickly what clause 9 says? MS MOKHOBO: “MCA shall provide or cause to be provided Subscriber Management Services (“SMS”) in the performance benchmark MCA shall …” S o r r y. I t h i n k I h a v e s k i p p e d a p a g e . I d o a p o l o g i s e . C H A I R P E R S O N : Ye s . Page 38 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Let me read it again. CHAIRPERSON: H’mm. MS MOKHOBO: “MCA shall provide or cause to be provided Subscriber Management Services (“SMS”) in the channels as maybe included by MCA on its television platforms as generally accepted and understood in the industry at the date of signature hereof. The SABC acknowledges that all proprietary and intellectual property rights rising 10 from conduct by MCA of the SMS shell is between the SABC and MAC rests exclusively in MCA.” ADV THANDI NORMAN SC: Ye s . Thank you and in – maybe in fairness just to balance up whatever we are going to deal with in the end …(intervenes). CHAIRPERSON: There was a point you made. I did not get it …(intervenes). A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: About whether this captured something that was in the proposal or something. 20 A D V T H A N D I N O R M A N S C : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: Ja. Will you just deal with that again? I did not …(intervenes). A D V T H A N D I N O R M A N S C : Yo u d i d n o t g e t t h a t o n e C h a i r ? CHAIRPERSON: Ja. A D V T H A N D I N O R M A N S C : N o . C h a i r, I h a d r e f e r r e d t h e w i t n e s s – I Page 39 of 157 26 FEBRUARY 2020 – DAY 219 had asked the witness Ms Mokhobo to read paragraph 2.1 – clause 2.1.5 …(intervenes). CHAIRPERSON: Huh-uh. ADV THANDI NORMAN SC: And the question that followed was because this dealt with whatever was going to be furnished would not be encrypted. CHAIRPERSON: H’mm. H’mm. ADV THANDI NORMAN SC: So I asked her whether that was similar to the clause 9 that she objected to and then she said yes. 10 C H A I R P E R S O N : O k a y. A D V T H A N D I N O R M A N S C : Ye s … ( i n t e r v e n e s ) . MS MOKHOBO: H’mm. ADV THANDI NORMAN SC: But she could – just repeat what you said in reference to clause 2.1.5? M S M O K H O B O : C h a i r, i f I m a y j u s t c l a r i f y … ( i n t e r v e n e s ) . C H A I R P E R S O N : Ye s . M S M O K H O B O : S o m e t h i n g q u i c k l y. CHAIRPERSON: H’mm. MS MOKHOBO: 20 The letter was a proposal and out of propose or the proposal they then drafted the agreement. C H A I R P E R S O N : Ye s . MS MOKHOBO: Therefore you will find clause 9 appearing in a d i ff e r e n t c l a u s e o n t h e c o n t r a c t i t s e l f . C H A I R P E R S O N : Ye s . Ye s . A D V T H A N D I N O R M A N S C : Ye s . Page 40 of 157 26 FEBRUARY 2020 – DAY 219 M S M O K H O B O : Ye s . C H A I R P E R S O N : Ye s . MS MOKHOBO: So there is nothing that has been removed. What has rather happened …(intervenes)? CHAIRPERSON: Oh. It was substantial and not captured? M S M O K H O B O : Ye s C h a i r. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: What was in the letter in substance found its way to the agreement? 10 M S M O K H O B O : Ye s . C H A I R P E R S O N : O k a y. T h a n k y o u . MS MOKHOBO: All of what was in the letter …(intervenes). C H A I R P E R S O N : A l l o f w h a t w a s i n t h e l e t t e r. MS MOKHOBO: Plus there were some additional clauses. C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: Such as the SMS clause …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: Which was not in the original …(intervenes). 20 C H A I R P E R S O N : O k a y. M S M O K H O B O : P r o p o s a l l e t t e r. C H A I R P E R S O N : O k a y. A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: Thank you. Page 41 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: Thank you. ADV THANDI NORMAN SC: T h a n k y o u C h a i r. So in essence then when this then was signed then one would have expected that there must have been agreement now between MultiChoice and SABC to say keep your nine – clauses 9 and 10. We are happy with them. M S M O K H O B O : S e e m i n g l y C h a i r. ADV THANDI NORMAN SC: Ye s a n d i n y o u r d i s c u s s i o n s w i t h u s a n d when we went through the minutes which I had asked you to go through them. Did you manage to get hold of a minute that would show that on 10 the – at the meeting of the 2nd of July 2013 which you did not attend there was approval of that agreement? MS MOKHOBO: C h a i r, t h e r e i s a v e r y s t r a n g e s e t o f m i n u t e s . Advocate could you please …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: Guide us to the exact …(intervenes). A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. MS MOKHOBO: Pages in the files? A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. M a y I t a k e y o u C h a i r t o exhibit …(intervenes)? 20 CHAIRPERSON: Maybe while you are looking Ms Norman. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: Can I just ask this? A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Ms Mokhobo, prior to your going on leave and I am talking about the leave when in your absence the agreement was Page 42 of 157 26 FEBRUARY 2020 – DAY 219 signed. Had you been informed or where you aware that the interactions between SABC and MultiChoice had reached a stage where an agreement could be signed anytime? MS MOKHOBO: C h a i r, t h e l a s t m e e t i n g t h a t w e h a d w i t h M u l t i C h o i c e was the meeting where myself and other Board Members, notably Mr Mavuso, raised very sharply our discomfort with the two clauses and the fact of the matter was that they were going to be reviewed or removed, because there was no way that I could have sat there and agreed that the law be broken. 10 P o l i c i e s , s t a t e m e n t s f r o m G o v e r n m e n t b e c o m e s l a w. There was no way I could have been party to that happening. So that meeting had discussed quite intensely – it was – shall I say there was a little bit of camaraderie in that meeting. There was a little bit of joking backwards and forwards. CHAIRPERSON: Between MultiChoice and SABC? MS MOKHOBO: And SABC …(intervenes). CHAIRPERSON: Huh-uh. MS MOKHOBO: But there was absolutely clarity on things that should not have been in discussion …(intervenes). 20 C H A I R P E R S O N : Ye s . MS MOKHOBO: As being included in the contract. C H A I R P E R S O N : Ye s . MS MOKHOBO: Therefore it was quite surprising …(intervenes). CHAIRPERSON: H’mm. M S M O K H O B O : W h e n I r e a d t h e l e t t e r. Page 43 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: H’mm. MS MOKHOBO: That they sent to Mr Motsoeneng. That those clauses were still there. CHAIRPERSON: H’mm. MS MOKHOBO: Those suggestions were still there. CHAIRPERSON: H’mm. MS MOKHOBO: Which they had been tabled as conditions precedence. CHAIRPERSON: H’mm. M S M O K H O B O : Yo u c a n n o t h o l d a n e n t i t y l i k e t h e … ( i n t e r v e n e s ) . 10 CHAIRPERSON: H’mm. MS MOKHOBO: SABC to ransom like that but …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: There was a veiled threat. That it is either you agree t o t h e s e c l a u s e s o r w e w a l k a w a y. C h a i r, I m a y b e c r i t i c i s e d f o r t h i s , but I would rather have walked away …(intervenes). CHAIRPERSON: H’mm. MS MOKHOBO: From the contract. CHAIRPERSON: H’mm. H’mm. MS MOKHOBO: 20 Than to compromise the SABC in this way …(intervenes). CHAIRPERSON: H’mm. H’mm. MS MOKHOBO: And Chair I think it is very important that I bring to your attention that following my submission at the previous sitting where I presented. CHAIRPERSON: In the Commission? Page 44 of 157 26 FEBRUARY 2020 – DAY 219 M S M O K H O B O : Ye s . C H A I R P E R S O N : Ye s . MS MOKHOBO: In the Commission. I got a call from a Star Newspaper journalist who said to me there were people who were saying I had lied and I think it actually made its way to a lead story in o n e o f t h e – i n t h e S t a r. W h e r e i n w h o e v e r s e n t t h e m t h a t l e t t e r – t h e letter of my response to MultiChoice when I was acknowledging that we h a v e r e c e i v e d t h e l e t t e r. However there have to be discussions that will look at 10 arriving at – how did I put it? Arriving at terms that will be agreeable to b o t h p a r t i e s a n d t h a t w a s v e r y c l e a r. Yo u c a n n o t c o m e t o m e a n d s a y this is what I want and we agree that we will discuss and arrive at t e r m s t h a t w e c a n b o t h a g r e e o n a n d y o u g o o ff a n d c r e a t e w h a t y o u – sorry Chair to be saying you. So what the journalist then did was to write that story and then without bringing focus to the fact that I had said categorically on terms that will be agreed. They made it seem like I was lying. I had written that letter to MultiChoice which meant that I agreed with those terms. When it was totally untrue and I remember Chair the following 20 day there was a further thing that said Mokhobo lied and this had to do with the TNA breakfast or our relationship with the Guptas. It is scares me what the media can do, because my reputation was essentially thrown into the toilet. Over a matter as crucial as this t h a t s h o u l d n o t h a v e b e e n t r i f l e d w i t h i n t h a t w a y. should bring it up too. Page 45 of 157 I just thought I 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : N o . T h a t i s f i n e . Yo u j u s t n e e d t o m a k e s u r e t h a t t h e letter that you wrote that if it is not already with the Commission that it is with the Commission, so that would be important. Now so just in terms of sequence of events the meeting that SABC had with MultiChoice where you say you and Mr Mavuso made it quite clear that these two points were not going to be agreed to as far as you are concerned, that meeting – did that meeting take place prior to the letter from MultiChoice to Mr Motsoeneng that we saw earlier? MS MOKHOBO: 10 CHAIRPERSON: Ye s C h a i r t h e d i s c u s s i o n c a m e u p . Yo u c a n ’ t r e m e m b e r t h e d a t e o r w e m i g h t b e a b l e t o f i n d t h e d a t e , w e d o n ’ t h a v e t o l o o k f o r i t i f w e – o h y o u c a n j a o k a y. ADV THANDI NORMAN SC: I c a n y e s C h a i r, t h e l e t t e r t o M o t s o e n e n g is the 15th of May 2013. CHAIRPERSON: Ye s . ADV THANDI NORMAN SC: And the meeting that Ms Mokhobo referred to is the meeting of the 6th of June 2013. MS MOKHOBO: Thank you for triggering my memory there Advocate, indeed that meeting was discussing the contents of ...(intervenes). CHAIRPERSON: 20 MS MOKHOBO: CHAIRPERSON: MS MOKHOBO: CHAIRPERSON: MS MOKHOBO: CHAIRPERSON: In that time, so the meeting was after the letter? T h e m e e t i n g w a s a f t e r t h e l e t t e r. Ye s , o k a y. Ye s . Now did Mr Motsoeneng attend that meeting? Ye s h e d i d . He was there. Page 46 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: CHAIRPERSON: Ye s . Do you remember what his stance was on the issue if inclusion if he articulated any view at all? MS MOKHOBO: Chair ...(intervenes) CHAIRPERSON: It might be just ...(intervenes). MS MOKHOBO: It would be hard for me to remember verbatim what he said but I do know that he mentions that those clauses were a nonissue. CHAIRPERSON: 10 Ye s . ADV THANDI NORMAN SC: MS MOKHOBO: Ye s . I am not sure whether he said that at that meeting or ...(intervenes). CHAIRPERSON: Or at another meeting. MS MOKHOBO: At a subsequent meeting, but to him those clauses w e r e a n o n - i s s u e a n d c o u l d b e d r o p p e d , o r s o r r y, s h o u l d b e o r c o u l d b e included. CHAIRPERSON: Oh he was saying they were non-issue as far as the SABC was concerned from his point of view? MS MOKHOBO: 20 Ye s . CHAIRPERSON: S o h e w a s t a k i n g a v i e w t h a t w a s d i ff e r e n t f r o m yours and Mr Mavuso? MS MOKHOBO: Ye s . CHAIRPERSON: Because you were feeling very strongly that they should be dropped. MS MOKHOBO: Indeed. Page 47 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: But you say that the meeting was characterised by a positive spirit. MS MOKHOBO: CHAIRPERSON: Ye s . In the sense that it was not fighting as such, everyone was taking or rather you and Mr Mavuso were taking a very firm view on these two points and from MultiChoice side from what you said I infer that they didn’t seem to be very opposed to dropping them, they didn’t seem to be too emphatic at that meeting at least? MS MOKHOBO: 10 Chair they were very emphatic. CHAIRPERSON: They were emphatic that they ...(intervenes). MS MOKHOBO: T h a t ’s w h e r e t h e w o r d s c o n d i t i o n p r e c e d e n c e c a m e from. CHAIRPERSON: MS MOKHOBO: Ye s , y e s . That it is either those clauses were included or nothing. CHAIRPERSON: O h , o k a y, s o M u l t i C h o i c e o n t h e o n e s i d e a n d y o u and Mr Mavuso on the – well MultiChoice on the one side and Mr Motsoeneng they were quite firm that these clauses should be part of the agreement. 20 MS MOKHOBO: CHAIRPERSON: Ye s . Yo u a n d M r M a v u s o w e r e q u i t e f i r m t h a t t h e y s h o u l d not. MS MOKHOBO: CHAIRPERSON: They shouldn’t be yes. Ye s , o k a y. S o t h e m e e t i n g – d i d t h e m e e t i n g e n d o n the basis that there seemed to be an impasse on these two points or Page 48 of 157 26 FEBRUARY 2020 – DAY 219 how did the meeting end, was there to be a follow up meeting or was there just to be a letter that would be sent. MS MOKHOBO: have to be The meeting ended up on a note that there would a thorough review of these matters, Advocate ...(intervenes). ADV THANDI NORMAN SC: Maybe I could direct Chair to the resolution. CHAIRPERSON: Ye s . ADV THANDI NORMAN SC: 10 We’re talking the meeting of the 6th am I correct? Is Chair still asking about the meeting of the 6th? CHAIRPERSON: The meeting between MultiChoice and SABC ...(intervenes). ADV THANDI NORMAN SC: CHAIRPERSON: Ye s , t h a t ’s c o r r e c t . Subsequent to the letter for MultiChoice ...(intervenes). ADV THANDI NORMAN SC: Ye s C h a i r s o t h i s i s t h e m e e t i n g o f t h e 6 t h C h a i r, t h a t a p p e a r s i n B u n d l e C C 4 2 . CHAIRPERSON: Ye s . ADV THANDI NORMAN SC: 20 That – the minutes will begin from page 15 and ...(intervenes). CHAIRPERSON: Yo u s a y E x h i b i t C C 4 ? ADV THANDI NORMAN SC: CHAIRPERSON: O k a y, d o w e h a v e t h a t h e r e o r n o t ? ADV THANDI NORMAN SC: CHAIRPERSON: CC42. Ye s w e d o h a v e C h a i r. O h , o k a y. Okay now I am confused, CC42, it Page 49 of 157 26 FEBRUARY 2020 – DAY 219 sounded like 64, okay right, what is the page? ADV THANDI NORMAN SC: T h a n k C h a i r, t h e p a g e w h e r e y o u w i l l f i n d there is this what we’ve got there is no resolution per se but I think I will direct Chair to what the chairman says in the end. CHAIRPERSON: Ye s . ADV THANDI NORMAN SC: The Chair – sorry Chair – you were chairing the meeting Ms Mokhobo am I correct? MS MOKHOBO: Ye s I w a s c h a i r i n g t h e m e e t i n g . ADV THANDI NORMAN SC: 10 Yo u w e r e c h a i r i n g t h e m e e t i n g y e s , I a m j u s t l o o k i n g f o r w h e r e y o u s a y, b u t a n s w e r t h e q u e s t i o n t h a t t h e C h a i r h a d a s k e d f i r s t a b o u t w h a t M r M o t s o e n e n g ’s a t t i t u d e w a s , C h a i r w o u l d find that at page 19, if I may just quickly read that. “ T h a n k y o u C h a i r, a s f a r a s I a m c o n c e r n e d t h i s i s n o t an issue anymore from where I am sitting because the Minister pronounced herself about this m a t t e r. Remember the eTV and us and so on, that case, the issue here is we are not going to go that route as far a s I a m a w a r e p e r s o n a l l y. T h e c o n d i t i o n a l a c c e s s , t h e way we call it technically is not going to be because 20 now but the DOC is reviewing the policy to deal with t h i s m a t t e r. E v e n i n P a r l i a m e n t d u r i n g t h e b u d g e t speech now I remember the Minister did highlight this i s s u e , s o I d o n ’ t t h i n k i t i s a n i s s u e n o w, w h e t h e r w e – and then there is a space – both of us I think for me Chair I think for now it is a non-issue because it is a Page 50 of 157 26 FEBRUARY 2020 – DAY 219 policy that even government is reviewing because f r o m o u r s i d e w e l l w e h a v e d i ff e r e n t v i e w s , t h i s i s n o t o ff i c i a l w h a t I a m s a y i n g . The views was that as SABC we can’t allow people to by law we can’t switch o ff p e o p l e ’s T V l i c e n s e i f t h e y d o n ’ t p a y T V l i c e n s e , that is the standpoint they took, but not as a collective b u t d i ff e r e n t v i e w s a n d t h a t d i ff e r e n t v i e w s i n f l u e n c e d the DOC to review the policy to check whether really this 10 is necessary for SABC. So that is our standpoint.” And Chair – I beg your pardon? Ye s , a n d t h e n p a g e – a n d t h e n – t h i s i s w h a t M s Ts h a b a l a l a s a y s o n t h e s a m e p a g e : “Thank you Mthias for giving us that feedback. I think you know all relationships we have got to find a way of a win-win situation. I think if I may reign or if other Board Members would really like your input on this maybe through your Chairperson since you have presented this condition if you can just give a day to bounce it to the Minister because you know we have 20 as Mr Mavuso mentioned we have an unclear position on the matter and then we can approve all others except for that one, and we can revert back to you but of course we have to agree to all others, so I would like CO to go to the other clauses, thank you.” And then Ms Mokhobo says: Page 51 of 157 26 FEBRUARY 2020 – DAY 219 “Okay yes so we hold clause 10, clause 9 in abeyance while we get absolute clarity because what we need is a written confirmation of the stance and we cannot presuppose a relationship on the basis of what is not written. A statement is a statement until it is c o m m i t t e d t o p a p e r. T h a n k y o u f o r t h a t C h a i r. The second clause, which is clause 10 ...” And then she goes on to deal with clause 10, and then in the end it is decided if we could – are you there Ms Mokhobo? 10 Are you finding where ...(intervenes)? MS MOKHOBO: CHAIRPERSON: I a m s t r u g g l i n g t o f i n d t h e p a g e s , I ’ m s o r r y. Oh is that so. ADV THANDI NORMAN SC: O h , w e ’ v e l e f t y o u , i t ’s C C 4 2 , o n t h e spine of the file. MS MOKHOBO: Oh! Which one? ADV THANDI NORMAN SC: CHAIRPERSON: MS MOKHOBO: It should be written CC42. O h , o k a y. ADV THANDI NORMAN SC: 20 I t ’s C C 4 2 . Oh, I beg your pardon, I thought you were on there. MS MOKHOBO: My apologies. ADV THANDI NORMAN SC: MS MOKHOBO: Ye s t h a n k y o u , c o u l d . . . ( i n t e r v e n e s ) . And it is ...(intervenes). ADV THANDI NORMAN SC: I was reading from page 19, this appears to be a transcript of the minutes, am I right? Page 52 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Ye s , c o r r e c t . ADV THANDI NORMAN SC: CHAIRPERSON: When you saying the end on what page are you? ADV THANDI NORMAN SC: CHAIRPERSON: And then in the end this is what is stated. Then the end Chair would be page 24. Ja. ADV THANDI NORMAN SC: Ye s , a n d t h e r e – s o r r y m a y b e b e f o r e w e get to 24 I just want to get to where Ms Mokhobo concludes the m e e t i n g , i t g o e s o n , I b e g y o u r p a r d o n C h a i r, I j u s t n e e d t o f i n d i t . A n d t h e n o k a y – t h e n a t p a g e 2 3 , t h i s i s w h a t M s Ts h a b a l a l a s a y s y e s , t h i s 10 is the one I was looking for because I did direct, ja Chair we can just t o w a r d s t h e e n d o f t h a t p a g e C h a i r, I t h i n k f i v e l i n e s t o w a r d s t h e e n d . “Ja, Chair we can just give you the comfort that we are taking the matter there and we are also expressed urgency into the meeting so when you go to the Board on the 12th there is a resolution. Well thank you very much, thank you.” So from the documents that we referred Minister Carrim to yesterday there was an indication that there was going to be a Board Meeting on the 12th of June 2013. 20 MS MOKHOBO: Ye s , y e s C h a i r. ADV THANDI NORMAN SC: And according to your understanding at this meeting which you had with MultiChoice was the issue about clauses 9 and 10 resolved? MS MOKHOBO: No. ADV THANDI NORMAN SC: Ye s , t h a n k y o u . A n d t h e n i f I m a y t a k e Page 53 of 157 26 FEBRUARY 2020 – DAY 219 y o u t o t h e n e x t m i n u t e w h i c h a p p e a r s C h a i r a t p a g e 11 2 o n t h e s a m e bundle, CC42, this is the minutes of a special finance investment procurement and technology meeting. Or maybe before we go there, I b e g y o u r p a r d o n , l e t ’s d e a l w i t h t h e o n e b e h i n d a f t e r t h a t w h i c h i s t h e 12th of June, because there was going to be a Board Meeting on the 12th of June. MS MOKHOBO: Ye s . ADV THANDI NORMAN SC: CHAIRPERSON: 10 Now if that ...(intervenes). Maybe before that Ms Norman there is something that I find strange in that meeting, is it 6th of June? ADV THANDI NORMAN SC: CHAIRPERSON: 6 t h o f J u n e y e s C h a i r, y e s . Ja, about the fact that those representing the SABC are not speaking with one voice, one expects normally that if you have a meeting like that with another organisation there would have been discussions among those from SABC who would attend such a meeting a n d t h e r i g h t p e r s o n t o s t a t e t h e S A B C ’s p o s i t i o n w o u l d b e t h e o n e t o s p e a k a n d s t a t e t h e S A B C ’s p o s i t i o n , i s t h i s n o r m a l t h a t i t h a p p e n e d this way because you now have yourself and Mr Mavuso stating how y o u s e e t h e m a t t e r s , y o u h a v e M o t s o e n e n g t a k i n g a v i e w t h a t ’s 20 d i ff e r e n t f r o m y o u r v i e w. I d o n ’ t k n o w w h e t h e r M s Ts h a b a l a l a w a s taken any view at that stage, but you were the CEO so something says to me how does the COO come to a meeting like that and express his own view? MS MOKHOBO: CHAIRPERSON: Chair ...(intervenes). But maybe my way of looking at it is not the right Page 54 of 157 26 FEBRUARY 2020 – DAY 219 w a y, m a y b e t h e p o s i t i o n i s m a y b e w h y n o t a l l t h e p e o p l e a r e s u p p o s e d to be at the meeting representing SABC afraid to express their own d i ff e r e n t v i e w s a s o p p o s e d t o e x p r e s s i n g t h e v i e w o f t h e o r g a n i s a t i o n . MS MOKHOBO: C h a i r t h i s w a s a v e r y, v e r y s a d t i m e a t t h e S A B C where there was literally a chasm between the group executives, those led by Motsoeneng and those led by myself and myself not being the most liked person by the Chair of the SABC. She mentions – I do not have the minutes and perhaps Advocate you would be able to find exactly where she talks about clandestine meetings. 10 CHAIRPERSON: I think there was a reference to clandestine meetings ...(intervenes). ADV THANDI NORMAN SC: C h a i r t h a t ’s . . . ( i n d i s t i n c t ) CHAIRPERSON: Ye s . MS MOKHOBO: There was a reference to clandestine meetings where she held these meetings with Hlaudi and his team and they made their own conclusions about what needed to happen DTT and neither myself n o r t h e G r o u p E x e c u t i v e o f Te c h n o l o g y, S i p h o M a s i n g a , w e r e p r i v y t o t those meetings, they were held entirely in secret, so we were all taken a b a c k w h e n t h e y c a m e w i t h a p o s i t i o n t h a t w a s c o n t r a r y, b e c a u s e I 20 believed, and so did other people within the organisation who worked with me, that we are an organ of state and are governed by the rules, the laws and policies of the State and that unless there is a change in a rule or a policy we cannot deviate from it. And for me it really didn’t matter how other people could see the future unfolding without government being involved. For me it was Page 55 of 157 26 FEBRUARY 2020 – DAY 219 important that we stay within the law and maybe I am very pedantic and in fact it was said at some point that I was a WWW …(indistinct, African language) or something like that, meaning that I plodded – I refused to make critical decisions on things that when I felt that I could not take a decision on a matter because it was unlawful I said that and some people didn’t like it, so this was one of those instances where people went away and managed to convince the Chair that what they were proposing was a better deal and it had nothing to do with me, I was not involved, I was not privy to it 10 So it was not surprising that at that meeting there were two camps the Mavuso Lulama Camp that said no and then there was this other camp that Hlaudi was running with. CHAIRPERSON: I am very interested and maybe this can be dealt with at a later stage, but I am very interested in understanding how that came about because as I hear evidence relating to the SABC part of what I am trying to understand is, were there forces outside of the S A B C t h a t w e r e e ff e c t i v e l y d i c t a t i n g w h a t w a s h a p p e n i n g w i t h i n t h e SABC or what certain people within the SABC were doing and if so who were the people involved in doing that? 20 Because normally if you are the leader of an organisation you are the head, everybody needs to accept that you are the head and you have the right to pronounce on certain issues as between the GCEO and the Board there would be the separation of where the Board comes i n , w h e r e t h e e x e c u t i v e c o m e s i n b u t y o u k n o w t h e l e a d e r, t h e h e a d o f the organisation on certain issues you know must pronounce and before Page 56 of 157 26 FEBRUARY 2020 – DAY 219 he or she does so she or he may consult with his or her colleagues and h e a r d i ff e r e n t v i e w s a n d t h o s e c o l l e a g u e s a r e s u p p o s e d t o a c c e p t t h a t their views might not consult with her views or his views but that she or h e b e i n g t h e h e a d w i l l m a k e t h e j u d g m e n t c a l l , a n d t h a t ’s i t , b u t n o w you have a situation where in a meeting with an organisation from outside about what agreement could be reached you have the GCEO a n d a B o a r d M e m b e r t a k i n g o n e v i e w, y o u h a v e a C O O i n t h i s m e e t i n g taking a view that is contrary to that articulated by the GCEO and the M e m b e r o f t h e B o a r d , i t j u s t l o o k s v e r y, v e r y u g l y, y o u k n o w. So if in terms of your evidence today there is something that 10 you might be able to configure it in getting me to understand how the SABC came to that and to understand whether there were people from outside the SABC who were responsible for this, that would help, because one wants to see whether the SABC was captured by s o m e b o d y o r w h a t , o k a y. MS MOKHOBO: I’m not sure if Chair wants me to respond to some of this? 20 CHAIRPERSON: If there is something you can say now you can do so. MS MOKHOBO: Chair the SABC had been contested terrain for years prior to my going there – in there. There were people who reported to other people in powerful places and they would try to throw their weight around and impose their will. I think the former Minister yesterday articulated how he was told by Mr Motsoeneng in no uncertain terms about certain issues that Mr Motsoeneng had no right knowing about. He boasted to me many times how he was close to the President, how Page 57 of 157 26 FEBRUARY 2020 – DAY 219 h e h a d b e e n a t t h e P r e s i d e n t ’s u n t i l t w o a m , h o w t h i s o r t h e o t h e r, President, President, and I think I mentioned in the previous session when I said in front of you Chair that there would be Ministers coming to see Mr Motsoeneng and not me, which was strange as the head of the company if you have the high ranking individual you would expect them to see you, but there were agendas and sub-agendas, we certainly didn’t the serve the same agenda. For me the agenda was very simple, it was go in make the organisation work, make it deliver on its mandate, make sure that 10 everything it does is lawful and ultimately make sure that it is profitable. But there were other sub-agendas and Chair speaks of culture, certainly the interest of MultiChoice became paramount to Motsoeneng to the detriment of the organisation. Ye s , h e c l a i m s t h a t he succeeded in bringing R500 million into the organisation, it was R 1 0 0 m i l l i o n p e r y e a r. There is somewhere where I do very roughly c a l c u l a t i o n s a b o u t d i ff e r e n t s c e n a r i o s f o r t h e S A B C , t h a t w a s v e r y l i t t l e compared to what the SABC was forced to concede as a result of this man. Chair the SABC had a history of Boards not agreeing with each 20 o t h e r a n d j u s t a s t h e y s a y t h e t o n e g e t s s e t a t t h e t o p y o u k n o w, i f t h e top being the Board itself was not agreed on certain principles and we had Board Members siding with this person and others siding with the other there is no way that the organisation could work as a healthy organisation, and as I say this had been going on for years. I am not sure what will fix that organisation, other than to Page 58 of 157 26 FEBRUARY 2020 – DAY 219 ensure that people who are brought in are people of real integrity who are ethical, who are totally committed to what is good for the organisation and do not forget at any given time what their true purpose in the organisation is, but sadly it was not to be. ADV THANDI NORMAN SC: CHAIRPERSON: Thank you. Well Ms Norman you have heard what I am very interested in, not that I am not interested in other things but I am very interested in the issue that I have raised because it is a very strange situation. Mr Carrim testified yesterday that before he took his policy 10 amendment to Cabinet on the 2nd of December 2013 he had a meeting with the President who was happy with the amendment, what he was coming with. The President was part I assume of the meeting of Cabinet that approved, and he made it clear that the President never e x p r e s s e d a n y d i s a g r e e m e n t t o h i m a b o u t t h e p o l i c y, a n d y e t y o u h a v e a n o ff i c i a l o f t h e S A B C , a h i g h - r a n k i n g o ff i c i a l w h o s e e m s t o h a v e pursued an agreement that would be contrary or pursued a position that would be contrary to that of the SABC and that of government and as Ms Mokhobo says then she says there were many times when he claimed to have had meetings with the President, so it is important to 20 try and understand if there is any link. ADV THANDI NORMAN SC: CHAIRPERSON: Ye s C h a i r. Ja. ADV THANDI NORMAN SC: T h a n k y o u C h a i r, w e h a v e g o n e p a s t t h e tea time would it ...(intervenes). CHAIRPERSON: O k a y, l e t u s t a k e t h e t e a a d j o u r n m e n t , i t i s t 2 5 p a s t Page 59 of 157 26 FEBRUARY 2020 – DAY 219 n o w, w e w i l l r e s u m e a t 11 : 4 0 . ADV THANDI NORMAN SC: CHAIRPERSON: REGISTRAR: T h a n k y o u C h a i r. We adjourn. All rise. I N Q U I RY A D J O U R N S I N Q U I RY R E S U M E S CHAIRPERSON : I am s orry, I ha ve h a d a f ive min ute s d elay beca use o f some urgent issues relating to the Commission. Let us continue. ADV THA ND I NORMAN SC: 10 Th an k y o u C h a i r. M s M o k h o bo m a y I p l e a s e refer you to page 117, same bundle that you were dealing with before we a d j o u r n e d , C C4 2. M S M O K H O B O: 117? ADV THA ND I NORMAN SC: 11 7, yes. Sa me b u nd le C hair, C C 4 2 a t p a g e 11 7. CHAIRPERSON : 117? ADV THA ND I NO R M A N SC: CHAIRPERSON : I s th at t he min ute s o f th e . ADV THA ND I NORMAN SC: CHAIRPERSON : 20 Th e min u tes of th e 12 t h o f J u n e 2 0 1 3 . J a , I got t ha t. ADV THA ND I NORMAN SC: M S M O K H O B O: Yes Chair, th an k y o u . Th an k yo u. I fou nd it . ADV THA ND I NORMAN SC: Th is wa s t h e m i n u t e s – t h e m e etin g t ha t M s Ts h a b a l a l a r e f e r r e d t o . I h a v e r e a d w h e r e s h e s a i d t h e r e w i l l b e a Board Meeting on the 12th of June. M S M O K H O B O: Yes Chair. Page 60 of 157 26 FEBRUARY 2020 – DAY 219 ADV THA ND I NORMAN SC: I w o uld simply like to ta ke yo u – wi t h – wi t hout ta k ing t oo m uc h time , t o w h e r e t h a t r e s o l u ti o n o f t h a t m e e t i n g i s and that appears at page 120, but before the resolution there is a paragraph which I would like you to read where the Acting COO reported s o m e t h i n g . C o u l d y o u j u s t g o t h e r e , t o t h a t p a r a g r a p h p l e a s e ? I t s t a rt s with, it begins with t h e A C O O p o i n t e d o u t . M S M O K H O B O: O h o k a y. “The ACOO pointed out that the pre v i o u s B o a r d h a d a p p r o v e d t h e M ul t i C h o i c e p r o p o s a l a n d t h e o n l y 10 outstanding issue had been that of funding. The key i s s u e f o r t h e I n t e r i m B o a r d w a s t o .. .(in terve n es) . ” CHAIRPERSO N: I am s orry, I am so rry. I s it rea ding at ? ADV THA ND I NORMAN SC: CHAIRPERSON : Sorry, page 120 Chair. 120 Chair, yes. Where about? ADV THA ND I NORMAN SC: We said, where you have resolutions n u m b e r C h a i r, i t i s t h e p a r a g ra p h p r e c e d i n g t h a t . CHAIRPERSON: Yes , ok ay, alright. ADV THA ND I NORMAN SC: M S M O K H O B O: 20 Yes , thank y ou Chair. O k a y. “The ACOO pointed out that the previous Board had a p p r o v e d t h e M u lt i C h o i c e p r o p o s a l a n d t h e o n l y o u t s t a n d i n g i s s u e h a d b e e n t h a t o f f u nd i n g . T h e k e y i s s u e f or t he In te rim Boa rd w as t o ensu re th e sustainability of such funding. The Board pointed out t hat it a ck no wle d ge tha t the p reviou s Bo ar d did Page 61 of 157 26 FEBRUARY 2020 – DAY 219 approve the proposal and was not about to reinvent t he w he el . H ow eve r, the In terim Bo ard ne e d e d t o u n d e r s t a n d th e c o n t e x t o f t h e m a t t e r a n d w h e t h e r t h e initial MultiChoice proposal which had been approved by the previous Board had been changed. t he i ns t ruc t ion s b et we en Through Ma n ag e me nt an d MultiChoice, it was evident that the commitment had i n c r e a s e d a s t h e r e w as m o re m o n e y b e i n g o ff e r e d t han 10 o rigi nal l y progress and discussed was to w hich the show e d advantage goo d of the Corporation.” ADV THA ND I NORMAN SC: If we , ca n we pa u se th ere? Are you a wa re, because this is now the 12th of June 2013? M S M O KHOBO : Yes . ADV THA ND I NORMAN SC: And the minutes you dealt with, was the minutes of the 6th of June 2013. Are you aware of any Board previously t hat had app rov e d the Mult iCh oice pro posa l, a s if yo u a re t a lkin g a b ou t t he s am e propos a l? M S M O K H O B O: 20 Th at wa s a d i ff erent proposal. ADV THA ND I NORMAN SC: M S M O K H O B O: Which did not have any contentious clauses. ADV THA ND I NORMAN SC: M S M O K H O B O: Yes . Yes , but it did not relate to the DTT one? No. ADV THA ND I NORMAN SC: Yes , thank y ou. resolu t ion o f …(i n t e r ve n e s ). Page 62 of 157 And then what was the 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON : So, let us just make sure we get that clear. ADV THA ND I NORMAN SC: CHAIRPERSON : Yes . What the Acting COO is talking about there is the MultiChoice proposal that was contained in the letter that we talked about e arlier from Multi Choice to Mr Motsoeneng, is that right? M S M O K H O B O: CHAIRPERSON : 10 I beli ev e so C ha ir. Th at i s wh at h e is talkin g a bou t? M S M O K H O B O: Yes Chair. CHAIRPERSON : Are you – a n d y o u a r e s a y i n g t h a t i t i s n o t t r u e t h a t t here h ad by t h i s t i m e b e e n a n y B o a r d of th e SABC wh ich h ad ap prove d t hat prop os al ? M S M O K H O B O: Th at was t he pre viou s prop osal C hair. It wa s no t und e r t hi s B oard. T hi s w as in 201 2 . CHAIRPERSON : M S M O K H O B O: plan. Yes . Th ere ha d be e n a – we h a d c o m p l e t e d t h e b u s i n e ss I t wa s a p p r o v e d b y t h e B o a r d a n d i t w a s s i g n e d a s a n a p p r o v e d c o n t r a c t , b u t i t w a s d i ff e r e n t t o t h i s n e w c o n t r a c t . CHAIRPERSON : So t hat is wh at I wa nt t o b e clear ab out , tha t ha ving l o o k e d a t t h e s e m i n u t e s , a r e y o u s a t i s f i e d t h a t t h e A c t i n g COO in this 20 p a r a graph is t alk i ng about the MultiCh o ice prop osal tha t wa s co nt ained i n t he l et t er f rom M ult i Choice t o Mr Mo tsoe nen g t h a t we re f er red t o e a rlie r on? M S M O K H O B O: CHAIRPERSON : M S M O K H O B O: Chair. Or are you not sure? Chair I think that pe rhaps we can unpac k t h i s a l i t t l e b i t . Page 63 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON : M S M O K H O B O: Yes , we c an unpac k , j a . I n t he f irst in sta nce , he t alks ab out the Mu ltiCh o ic e proposal that then resulted in the contentious agreement that he signed. CHAIRPERSON : M S M O K H O B O: Yes . And t hen he go e s o n – t h e n t he s t a t e m e n t g o e s o n n o w t o ta lk abo ut th e pre v ious ag reemen t t hat h a d be e n co n clu d ed . CHAIRPERSON : M S M O K H O B O: CHAIRPERSON : 10 M S M O K H O B O: CHAIRPERSON : M S M O K H O B O: CHAIRPERSON : Yes . Which was not very attractive .. .(in terve n es) . I n is s ue I n te rms o f t he mon e tary gain . Yes . From M u l t i C h o i c e . Yes . M S M O K H O B O: So it is two different …(i n t e r v e n e s). CHAIRPERSON : He is talking about two proposals? M S M O K H O B O: Yes . It is a propos al – t h e r e i s a p r o p o s a l a n d t h e n t here i s a prev i ous c o nt r a c t. CHAIRPERSON : Yes . No w d o w e – d o t h e M i n i s t e r s u p p o s e to t ell u s what the item was that was being discussed here, and at page 119 the 20 i t e m i s s a i d t o b e M u l t i C h o i c e p r o p o s a l . I t s a y s t h e C h a i r: 2 . 1 “Th e Ch airman p oin te d out t h at th e Board had p r e v i o u sl y met with MultiChoice where they presented their proposal to the SABC in respect o f t h e 2 4 -h o u r N e w s C h a n n e l . In the ensuing discussions there was disagreement concerning Page 64 of 157 26 FEBRUARY 2020 – DAY 219 c l a u s es 9 and Agreement. 10 The of the Board Memorandum of undertaken to had d i s c u s s t he c o n c e r n s w i t h t h e M i n i s t e r a n d t hereaf t e r t o re ve rt to Mult iC hoice .” Th at f a r – i t i s q u i t e c l e a r t h a t t h e C h a i r p e r s o n t h e r e i s t a l k i n g about the latest proposal at the time, which was contained in the M u l t i C h o i c e l e t t e r t o M r M o t s o e n e n g , t h a t p a r t i s c l e a r. M S M O K H O B O: Yes . CHAIRPERSON : 10 So that one it would be fair to say th e it e m fo r discussion was that proposal, is that right? M S M O K H O B O: Yes . Yes Chair, that is c orrec t. CHAIRPERSON : I t wa s th eir lat e st pro po sal n o t t h e e a r l i e r o n e t h a t h a d been finalised? M S M O K H O B O: Yes Chair. CHAIRPERSON : So, M s Norman you might be able to take it from there. I j us t w ant t o s ee wh et he r an y misrepre sent a t io n s we re ma d e to – a b o u t t hi s m ee ti ng ab ou t wheth er t he prop osal – t h e l a t e s t p r o p o s a l, a t t h e time, had been approved by the Board or not. ADV THA ND I NORMAN SC: 20 CHAIRPERSON : Th at i s wh at I a m trying to un derst and . ADV THA ND I NORMAN SC: correct, it deals Yes Chair, thank y ou. Th an k yo u C ha ir. with his latest proposal C h air you a re qu it e because th e p re ce d in g p a r a g r a p h s d e a l w i t h c l a u s es 9 a n d 1 0 . I b e g y o u r p a r d o n C h a i r. CHAIRPERSON : No, it is me. ADV THA ND I NORMAN SC: O h i s i t y o u ? S o r r y. Page 65 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON : Alright. ADV THA ND I NORMAN SC: And then maybe M s M o k h o bo t h e r e i s a n o t h e r p a r a g r ap h where you see, because I would like to .. .(in terve n es) . CHAIRPERSON : Maybe Ms Mokhobo can check if she did have a chance t o ref res h her mem ory of the previo us p ara g raph . ADV THA ND I NORMAN SC: CHAIRPERSON : Yes . She can con firm wh et he r t he o t her p aragrap h s t h a t I have not read. ADV THA ND I NORMAN SC: 10 CHAIRPERSON : Yes After reading the first one under this item, whether they t al k ab out th e lat es t proposa l. M S M O K H O B O: CHAIRPERSON : Yes they do Chair. Th ey d o, ye s. ADV THANDI NORMAN SC: CHAIRPE RSON : Yes . So, to the extent that in the paragraph that you read earlier on, the Acting COO may be talking about any proposal other than t he lat es t p rop os al , then he w ould b e talking ab o ut a m at t e r t ha t wa s really not on the tab l e ? M S M O K H O B O: 20 Chair, h e s p e a k s a b o u t – h e s p e a k s – o h I s e e , s o r r y. I d i d n o t r e a d i t p r o p e r l y. He speaks about the previous MultiChoice proposal. CHAIRPERSON : M S M O K H O B O: Yes . Th e k e y issue f or – s o h e i s c o m p a r i n g t h a t o l d c o n t r a c t , t he p ropo sal p e r t a i n i n g t o t h e o l d c o n t r a c t a n d t h e a c t u a l c o n t r a c t , h e i s comparing it to this new contract that he is now wanting to be signed. I Page 66 of 157 26 FEBRUARY 2020 – DAY 219 d o n o t k n o w i f I a m m a k i n g m y s e l f c l e a r. CHAIRPERSON : Well, I am – I u n d e r s t a n d w h a t y o u s a y, y o u s e e t h e s e m i n u t e s a s I un d e r s t a n d t h e m , i f y o u g o b a c k to p ag e 119 , un de r 2 i t s a y s approvals, and I take it that what that means is, items that require approvals. M S M O K H O B O: CHAIRPERSON : Yes Chair. So the next 2.1, the first item that requires approval is t he M ul t iChoi c e p r o p o s a l a n d f r o m t h a t f i r s t p a ragraph we know what – wh i c h M u l t i C h o i c e p r o p o s a l t h a t r e f e r s t o . A n d b o t h y o u a n d M s Norman 10 have told me that the next few paragraphs talk about the latest proposal; a t t h e t i m e o f M u l t i C h o i c e , b u t w h e n w e c o m e t o t h a t p a ra g r a p h j u s t b e f o r e r es o l u t i o n n u mb e r 1 2 / 0 6 / 1 3 , t h e A c t i n g C O O y o u s a y, t a l k s a b o u t both the previous proposal that had been finalised as I understand the position as well as the latest proposal, is that correct? M S M O K H O B O: CHAIRPERSON : M S M O K H O BO : Yes Chair. I s t h a t y o u r u n d e r s t a n d i ng ? M y u n d e r s t a n d i n g i s t h i s C h a i r. T h i s p a r a g r a p h t h a t w e have been looking at, the ACCO talks about an approved MultiChoice proposal which was done under the previous Board, but that proposal 20 which subsequently b e c a m e a c o n t r a c t w a s n o t t h e s a m e …(i n t e r v e n e s). CHAIRPERSON : M S M O K H O B O: Th at wa s d on e an d d uste d? Wa s n o t t h e s a m e a s t h e o n e w h e r e t h e r e i s c l a u s e 9 and 10 that is in disagreement. CHAIRPERSON : M S M O K H O B O: Yes . So, I am not sure what the value of h i m r a i s i n g t h i s w a s , Page 67 of 157 26 FEBRUARY 2020 – DAY 219 b u t I t hin k h e j u s t w a n t e d t o s a y w e l l t h e r e i s a b e t t e r d e a l . T h e r e w a s a bad deal with the previous one now there is a better deal, I cannot think o f i t a n y o t h e r w a y. I d o n o t w a n t t o c o n c l u d e t h a t . CHAIRPERSON : Tw o p a r a graphs earlier o r t h r e e p a r a g r a p hs e a r l i e r, y o u are said to have said – you are said to have cautioned the Board that whatever decision was taken, if there was an intention by the DOC to c h a n g e t h e c u r r e n t B r o a d c a s t i n g D i g i t a l M i g r a t i o n P o l i c y, i t h a d t o b e i n writing for the SABC’s own p ro t e c t i o n . So it is quite clear that at that point you are speaking to the issue on which a decision is required. 10 M S M O K H O B O: CHAIRPERSON : Yes Chair. Th en af te r you h ad said tha t, th e Acting C OO is sa id t o h a v e c o n f i r m ed t h a t h e h a d e n g a g e d w i t h t h e DO C’s policy division where it advised him that the Minister would address a formal letter to the Chairman of the Board, addressing both c l a u s es 9 a n d 1 0 . In essence c l a u s e 9 w o u l d n o l o n g e r b e a p p l i c a b l e a s t h e m a t t e r o f c on t r o l l e d a c c e s s was no longer an i s s u e a n d t h e r e f o r e w o u l d b e r e m o v e d f r o m t h e MultiChoice proposal, I wonder if that is correct? The Board requested t he Ac t ing C OO to fo llow up w it h the DOC t o e n su re t ha t t h e M in ist er ’s l e t t e r w a s r e c e i v e d b y t h e S A B C , a n d t h e n i n r e s p o n s e t o M r L u b i s i ’s 20 e n q u i r y, t h e G C E O p o i n t e d o u t t h a t t h e S A B C ’s l e g a l Department h a d b e e n f u l l y i n v o l v e d i n t h e m a t t e r, t h a t t h e y w o u l d a d v i s e a n d d r a f t t h e contract if the matter was approved. At that stage it seems that e v e r y b o d y i s t a lk i n g a b o u t t h e i s s u e o n w h i c h a d e c i s i o n i s r e q u i r e d . M S M O K H O B O: Yes Chair. CHAIRPERSON : And that is the latest MultiChoice proposal. Page 68 of 157 26 FEBRUARY 2020 – DAY 219 M S M O K H O B O: Yes Chair. CHAIRPERSON : And then it is – t h e n n e x t p a r a g r a p h , t h e A c t i n g C O O p o i n t e d o u t t h a t t h e p r ev i o u s B o a r d h a d a p p r o v e d t h e M ul t i C h o i c e p r o p o s a l a n d t h e o n l y o u t s t a n d i n g i s s u e h a d b e e n t h a t o f f u n d i n g. M S M O K H O B O: CHAIRPERSON : Yes . On the face of it that sentence seems to be out of place. M S M O K H O B O: I t is Chair b eca use I am n o t sure wh y h e b ro u g h t t h i s matter to the table. 10 CHAIRPERSON : M S M O K H O B O: Yes . Except maybe to drive his point that the new proposal a n d c o n t r a c t s h o u l d b e a p p r o v e d a n d s i g n e d o ff . CHAIRPERSON : M S M O K H O B O: CHAIRPERSON : Yes . I thi nk it w a s me rely to drive th at poin t. Yes a n d t h en h e s a y s t h e k e y i s s u e f o r t h e I n t e r i m Board was to ensure the sustainability of such funding. Again, that is t al ki ng ab out s om et hi ng t hat is n o t wh a t is be ing d iscu sse d. M S M O K H O B O: CHAIRPERSON : 20 Yes . Th e B oa rd p oin te d o u t h e i s t a l k i n g a b o u t t h e p r e v i o u s Board I a s s u m e ? M S M O K H O B O: CHAIRPERSON : Yes . Pointed out that it acknowledged that the previous Board, oh no he must be talking about the current Board at the time. The Board pointed out that it acknowledged th at th e p reviou s Board di d a p p r ov e t h e p r o p o s a l a n d w a s n o t a b o u t t o r e i n v e n t t h e w h e e l . Page 69 of 157 Let us 26 FEBRUARY 2020 – DAY 219 pause there. To t h e e x t e n t t h a t h i s r e f e r e n c e t o t h e p r o p o s a l i n t h a t sentence may be said to be a reference to the then current proposal from M u l t i C h o i c e , would he have been correct to say th at t he Boa rd tha t w a s current at the time had approved the MultiChoice proposal? It cannot be because this was still being discussed. So it must be the – he must be t al ki ng ab out t he p rev ious on e. M S M O K H O B O: CHAIRPERSON : Th e p r e v i o u s . But aga i n y o u c a n n o t u n d e r s t an d why it would be relevant to talk about that approval is it not? 10 M S M O K H O B O: CHAIRPERSON : Th at i s ho w his min d w orke d. Yes . And then – s o h e s a y s t h e B o a r d d i d n o t w a n t t o reinvent the Whe e l , s o i t i s d i ff i c u l t t o u n d e r s ta n d , t h e n h e s a y s h o w e v e r, t he I nt erim B oard n e e d e d t o u n d e r s t a n d t h e c o n t e x t o f t h e m a t t e r a n d whether the initial MultiChoice proposal now he says the initial which has b e e n a p p r o v e d b y t h e p r e v i o u s B o a r d h a d b e e n c h a n g e d th ro ug h the i n t e r a c t i o n s b e t w e e n t he ma na ge me n t a nd Mu ltiC ho i c e i t w a s e v i d e n t t h a t t he c om mi tm en t h ad i nc rea sed as the re w a s m or e m on e y b e ing o ff er ed t hen orig ina l di s c us se d wh ich sho we d g o od p ro gr ess a n d was t o t h e a d v a n t a g e o f t h e c o o p e r a t i o n . We l l , I d o n o t k n o w a b o u t y o u b u t I c a n no t 20 m a k e h e a d o r t a i l a b o u t what he is seeking to contribute to the question whether there should be an approval of the proposal – t h e l a t e s t p r o p o s a l of MultiChoice at the time. I am not able to say exactly what the releva n c e o f t h e c o n t r i b u t i o n i s . M S M O KHOBO : J a , h e w a s c o n f l atin g th e tw o. CHAIRPERSON : Yes . O k ay. Alright. Ms Norman y ou might be able to Page 70 of 157 26 FEBRUARY 2020 – DAY 219 clarify anything that seems unclear to me. ADV THA ND I NORMAN SC: Yes , no , n o i n f a c t i t i s i n f a c t c o n f u s i n g Chair that is why I wanted M s M o k h o b o t o b e c a u s e t h e i m p r e s s i on c r e a t e d t h e r e i s t h a t t h e r e w a s a Board Meeting when this proposal was a p p r o v e d a n d s a y i n g t o t h i s In te rim Bo ard b u t w h a t a r e y o u e v e n d e a l i n g with here. CHAIRPERSON : Yes , y es . ADV THA ND I NORMAN SC: Th is wa s ap p rove d alre a d y a n d i f t h a t B o a r d u n d e r s to o d i t t h a t w a y o n e w o u l d h a v e b e l i e v e d t h a t t h e r e w a s i n f a c t a n 10 approval that was in existence when there was not such an approval. Yes , thank y ou Chair. Could y ou then go to the res olutio n ? What was t he res ol ut io n? M S M O KHOBO : Th e res o lu tio n wa s th a t s u b j e c t t o t h e r e c e i p t f r o m t h e Minister making pronouncements on the issues relating to clause 9 and 10 of the proposed MultiChoice Memorandum of agreement. The Board h e r e b y a p p r o v e s t h e M u l t i C h o i c e p r o p o s a l f o r G r o u p Exco to d elibe rat e t he oper at io n a l m a t t e r s i n c l u d i n g i n c l u d e d i n t h e p r o p o s e d m e m o r a n d u m o f a g r e e m e n t . S o , t h i s w a s t h e Board saying well, Group Exco y o u c a n start working, deliberating on operational matters but it does not say it is 20 approved. I t s a y s s u b j e c t t o t h e l e t t e r f r o m t h e M in i s t e r c o n f i r m i n g t h e change. CHAIRPERSON : Th at w ould b e a let ter tha t wo u ld sh ow a p p ro va l f o r dropping encryption? M S M O K H O B O: CHAIRPERSON : Yes , Chair. Yes . O k ay. Page 71 of 157 26 FEBRUARY 2020 – DAY 219 ADV THA ND I NOR M A N SC: And that is the one that Chair had read referred to in the th i r d p a r a g r a p h f r o m t h e r e s o l u t i o n s ? CHAIRPERSON : Yes . ADV THA ND I NORMAN SC: Yes , thank y ou. And then the s ec ond resolution? M S M O K H O B O: Th e A C O O fo llo ws up w ith th e D OC in re sp ec t o f th e d e l i v e r y o f t h e l e t t e r o f th e Min ist e r ad visin g th e SABC on t h e pronouncements relating to clauses 9 and 10 as included in the proposed M e m o r a n d u m o f a g r e e m e n t s . Ye s . 10 ADV THA ND I NORMAN SC: And according to your understanding was t hat let t er ev e r received? M S M O K H O B O: No. ADV THANDI NORMAN SC: CHAIRP ERSON: Th e M i niste r a t tha t t ime w as it Mr C arrim? ADV THA ND I NORMAN SC: It w as M S M O K H O B O: No, no. it was M s Dinapule M S M O K H O B O: I t was M s Dinapule. CHAIRPERSON : I t w as M s Dinapule. Oh okay. ADV THA ND I NORMA N SC: 20 Th an k yo u. Th an k yo u. Th a t i s t h e m i n ute o f t he 1 2 t h o f June. M S M O K H O B O: Yes . ADV THA ND I NORMAN SC: Now I would like to take to you to the m i n u t e …(i n t e r v e n e s). CHAIRPERSON : Well, it will also be importan t I kno w th at y o u h a v e been interviewing or the Commissioner has been interviewing her or Page 72 of 157 26 FEBRUARY 2020 – DAY 219 t al ki ng t o h er it wi l l b e i mpo rtan t tha t she we he a r wh a t sh e h a s t o sa y about what Mr Motsoeneng exactly said at this meeting. ADV THA ND I NORMAN SC: CHAIRPERSON : Yes , Cha i r. He had been in touch w i t h t h e – a d i v i s i o n i n t h e Department of Commun i c a t i o n s o r h e m i g h t e v e n h a v e s a i d h e h a d b e e n i n t o u c h w i t h t h e M i n i s t e r. ADV THA ND I NORMAN SC: CHAIRPERSON : So we need to find that, J a . ADV THA ND I NORMAN SC: 10 Yes . So we need to find that out. Thank y o u Chair. We will do. Thank you, Chair. And th e n t he minu te s o f the seco nd t he me et ing o f t he 2 n d o f J u l y w a s a d a y e a r l i e r t h a n t h e s i g n i n g o f t h e a g r e e m e n t i t w a s s i g n e d o n t h e 3 r d o f J u l y 2 0 1 3 . I s t h a t c o r r e c t? M S M O K H O B O: Yes , Chair. ADV THA ND I NO RMAN SC: Now, that you will find the minutes y o u w i l l f i n d a t pa ge 11 2. M S M O K H O B O: Th ank y ou , Ch air. ADV THA ND I NORMAN SC: Th an k you an d I wou ld like t o ta ke you t o what some of the things that are said by so m e o f t h e B o a r d M e m b e rs which maybe you c o u l d j u s t s h e d s o m e l i g h t ? C o u l d y o u p l e a s e h a v e a 20 l o o k a t p a g e 11 3 ? M S M O K H O B O: Yes , Chair. ADV THA ND I NORMAN SC: And Mr Mavuso was Chairing that meeting? You were not pres ent at this meeting? M S M O K H O B O: Ye s , C h a i r. ADV THA ND I NORMAN SC: Th is i s t h e o n e w h e r e y o u h a d t a k e n l e a v e ? Page 73 of 157 26 FEBRUARY 2020 – DAY 219 Now in p a r a g r a p h 2 . 2 , c o u l d y o u j u s t r e a d 2 . 2 t h e f i r s t p a r a g r a p h ? M S M O K H O B O: M r M o t s o e n e n g requested that this item be removed? Oh okay let me just read the title. ADV THA NDI NORMAN SC: M S M O K H O B O: Yes . Th e t i t le says: “Terms of the M u l t i C h o i c e Agreement i n R e s p e c t o f 2 4-h o u r n e w s c h a n n e l. Mr Mo tso en en g requested t hat t hi s i te m be re mo ved f rom t he a g end a be ca use t he M ult iC ho i ce an d SABC L e g a l Te a ms w e r e s t i l l i n 10 t he p ro c e s s o f f i n a l i z i n g t h e n e g o t i a t i o n s . T he Chairman stated that this special meeting ha d b e e n urgently convened to give particular attention and approval to items 2.1 and 2.2. He raises concerns t hat t he re were no supporting documents in respect o f t hes e urg ent it e ms t o en a ble t he M e m b e rs to discuss, deliberate and make correct decisions. Motsoeneng responded that where Mr supporting documents were not submitted the items should not be considered at the meeting.” 20 ADV THA ND I NORMAN SC: Yes . And th e j u s t t o – j u s t f o r t h e r e c o r d t hi s m e e t i n g w a s n o t a Board Meeting ? M S M O K H O B O: I t was a Sub -Committee m e e t i n g . ADV THA ND I NORMAN SC: M S M O K H O B O: Yes , what is it c alled? Th e Fi n an ce I nve stmen t – i t i s F i n a n c e I n v e s t m e n t Procurement and Technology m e e t i n g . Page 74 of 157 26 FEBRUARY 2020 – DAY 219 ADV THA ND I NORMAN SC: Yes , an d t h e n t h e n t h i s m e e t i n g p r o g r e s s e s b u t t h e r e i s i f y ou l o o k t h e l a s t p a r a g r a p h w h i c h b e g i n s w i t h M s Nepfumbada ? M S M O K H O B O: Yes . ADV THA ND I NORMAN SC: M S M O K H O B O: Could you just read that paragraph? M s Nepfumbada s t a t e d t h a t : “MultiChoice had pointe d o u t t h a t t h e S A B C B o a r d h a d a g r e e d o n e a c h i s s u e r a i s e d b y t h e S A B C ’s Legal 10 Te a m including clause 9. The o ff e r presupposed that all SABC channels on its DTT platform would be made available to the public u n e nc r y p t e d w i t h o u t a c o n d i t i o n a l a c c e s s s y s t e m an d t hereb y i nci d enta lly re ceivab le by th e MCADTT d e c o d e r. S h e e x p r e s s e d c o n c e r n t h a t t h i s m e a n t t h a t t he SA BC ’s con te nt will be a cce ssible to a ll in sund ry i n c l u d i n g t h o s e w i t h o u t r i g h t s t o t h e S A B C ’s c o n t e n t . MultiChoice had stated that this clause was a deal b r e a k e r a n d u n l e s s t h e S A B C a g r e e d t o t h i s c la u s e t here wo uld b e n o con tra ct be tw een t he pa rt ie s. M r 20 M o t s o e n e n g ’s a d v i c e t o t h e L e g a l Te a m h a d b e e n t hat t hi s c lau s e w as not n ecessa rily a d eal bre aker as only the DUC could make a pronouncement on the M a s c a r a regulation i s s u e s a n d t h e r e f o r e c l a u s e 9 ha d been reinstated in the contract.” ADV THA ND I NORMAN SC: And then the clause where there were Page 75 of 157 26 FEBRUARY 2020 – DAY 219 c o n c e r n s h a d t h e r e f o r e b e e n r e i n s t a t e d i n t o t h e d r a f t c o n t r a ct a s fo llo w s , c o u l d y o u j u s t r e a d t h a t t h e b ul l e t p o i n t s ? M S M O K H O B O: “The contract was for a p e r i o d o f five y e a r s i t i n c l u d e d t h e o ff e r t h a t a l l S A B C ’s c h a n n e l s o n D T T w o u l d be accessible or available unencrypted to MultiChoice meaning without any p r o t e ctio n conditional access system. a nd also w itho u t a M ul t i C h o i c e w o u l d d e t e r m i n e t he v alu e f or m o n e y i n t e r m s o f t h e c o n t e n t i n r e s p e c t o f t he ente rt ai nm ent ch a nne l and in te rms o f t he re venu e derived from advertised advertisements on the news and 10 e n t e r t a i nm e n t c h a n n e l s . The SABC would be entitled to t hat rev enue. ” ADV THA ND I NORMAN SC: Yes , then th er e is so meth in g th at th e Chairman says Mr Matthews talks about the launch so I may not detain t he C hai r w i t h t h o s e . O h s o r r y, M r M otso e ne ng t he re is a p ara gra p h a f t e r which you have read one, two, three , t he th ird p ara gra p h Mr Mo tso e nen g agreed. M S M O KHOBO : Mr Motsoeneng perhaps just to contextualize that Advocate m a y b e w e s h o u l d r e a d t h e p r e c e d i n g p a r a g r a p h f i r s t ? 20 CHAIRPERSON : Yes , I think that is importa n t . ADV THA ND I NORMAN SC: M S M O K H O B O: Th an k yo u, ye s. Yes , bec aus e the Chairman s tated that “Th e B o a r d h a d a d v i s e d M u l t i C h o i c e t h a t i t was n o t created a prohibited mechanism. It had also been agreed t o lea ve t he f i ne r de ta ils of th e a g ree me n t t o t he L e g a l Page 76 of 157 26 FEBRUARY 2020 – DAY 219 Te a ms t o r e s o l v e . T h e a g r e e m e n t h a d r e f ereed to two c h a n n e l s n a m e l y N e w s a n d E n t e r t a i n m e nt a nd d id no t include all channels. T h e B oa rd ’s a s s u m p t i o n h a d b e e n, was there had been a common understanding in this regard and that this should not stop the p roceedings whatever matter had been agreed in te rms of t he mon et a ry g a i n s s h o u l d n o t b e c o n f i ne d t o w h a t w a s o n t h e t a b l e a s t he va lue propo s it ion had t o be b e nef icial to bo t h p ar ties. Mr Motsoeneng agreed that MultiChoice should also 10 b e n e f i t f r o m t h e a g re e m e n t h o w e v e r I b e l i e v e t h a t t h e issues surrounding clause 9 was a simple one. He stated t ha t t he S A BC‘ s co nt en t w as p rote cted by th e Ma sca ra regulations and until this was changed no one had the right to use SABC’s content. Mr Motsoeneng did not think t hat t he s ec ond c ha n nel shou ld b e part of th e a g r e e m e n t a n d t h e f o c u s s h o u l d b e p l a c e d o n t h e 2 4 -h o u r n e w s c h a n n e l. H e pointe d o u t th at if th e n eg o tia tion s with M u l t i C h o i c e were not to the SABC’s benefit the agreement s h o u l d b e a b a n d o n e d .” 20 ADV THA ND I NORMA N SC: O k a y. N o w t h i s a n a l y s i s o f t he o n e t h a t h e s a y s b e c a u s e t h e r e w a s t h e M a s c a r a r e g u l atio ns a nd th e re fo re n o o ne could use the content of the SABC was that correct? M S M O K H O B O: I nc orrect . I th ink h e was jumbled up here. ADV THA ND I NORMAN SC: M S M O K H O B O: Yes . Because the M a s c a r a regulations allowed for satellite Page 77 of 157 26 FEBRUARY 2020 – DAY 219 c a r r i e r s i t i n c l u d e d To p T V a t t h e t i m e t o c a r r y S A B C c h a n n e l s . S o , I a m not sure what he was on about here. ADV THA ND I NORMAN SC: Yes . Could y ou jus t read then in r e s p o n d i n g t o Mr M ot s oe nen g’s c o m m e n t s ? M S M O KHOBO : “Ms Ts h a b a l al a was comfortable with the legal viewpoint provided and requested that the legal division c a u t i o n e d t h e Te a m o n w h a t s h o u l d b e c h a n g e d t o e n s u r e t hat t he S A BC maximi z e on their advantage and opportunities available. She emphasised that she did not 10 want the SABC to enter into the agreement for pur p o s e s o f u r g e n c y. M r Ne p f u m b a d a a d v i s e d t h a t s h e w o u l d p r e f e r t hat t he N ew s C han ne l be dea lt wit h s e p a r a t e l y f r o m t h e Entertainment Channel i n o r d e r t o a v o i d a n y f u r t h e r issues. Mr Matthews responded that it had been agreed in p r i n c i p l e t h a t w h i l s t t h e co n t r a c t i n c l u d e d b o t h c h a n n e l s t he lau nc h dat e cou ld b e st agg e red .” ADV THA ND I NORMAN SC: And t h e r e i s a p a r a g r a p h t h a t b e g i n s w i t h i n respo n d i n g t o M r M o t s o e n e n g ’s t h e s e c o n d t h e t h i r d o n e a f t e r t h a t . M S M O K H O B O: 20 “In responding to Mr Motsoeneng’s comm e n t, th e Chairman stated that there was consensus to proceed with t he agree men t s o th ere wa s n o d i s p u t e , h o w e v e r i t w a s important for a s e n i or legal advisor to review the mechanism of the agreement as a safety measure in terms i f t h e f u t u r e . M r M o t s o e n e n g requested that in the GCO’s absence a mandate be provided for him and Mr Olivier to Page 78 of 157 26 FEBRUARY 2020 – DAY 219 sign the contract. M s Ts h a b al a l a c o n c u r r e d w i th M s Solubisi’s request that the agreement be reviewed by a senior legal advisor and that such review notes must be p r o v i d e d t o th e Boa rd fo r comment an d a p pro va l.” ADV THA ND I NORMAN SC: M S M O K H O B O: And then what was th e re so lut ion ? Th e res o lu tio n w a s o n e , t h e t e r m s o f t h e M u l t i C h o i c e agreement be and I hereby approved subject to the following: “A dispute resolution m e c h a n is m b e i n c l u d e d i n t h e MultiChoice agreement. 10 The terms of the MultiChoice a g r e e me n t b e r e v i e w e d b y a n i n d e p e n d e n t s e n i o r l e g a l a dv i s o r t o e n s u r e t h a t i t w a s i n t h e b e s t i n t e r e s t s o f b o t h parties and the outcome of the review of the MultiChoice agreement mu s t be submitted to the Board for i n f o r m a t i o n. ” Which is a bit concerning because i n t h e p a r a g r a p h a b o v e i t s a i d: “T h e B o a r d m u s t be p r o v i d e d t o t h e B o a r d f o r c o m m e n t a n d a p p r o v a l. ” I do not kn ow w hy th en th e re solut ion rea d s : “F o r i n f o r m a t i o n i t s h o u ld b e f o r a p p r o v a l .” 20 ADV THA ND I NORMAN SC: MS MOKHOBO: And then the last paragraph two . “Mr Motsoeneng and C Olivier be and are hereby mandated to sign the MultiChoice agreement on behalf of the SABC.” A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Ja but this does not make sense. Page 79 of 157 How does this 26 FEBRUARY 2020 – DAY 219 Committee, even assuming that it had the authority to give the approval, how does it mandate people to sign the MultiChoice agreement on behalf of the SABC in circumstances where there are outstanding issues on which they need to satisfy themselves? MS MOKHOBO: Absolutely Chair and to take it even further in terms of the delegation of authority framework this was not an approving Board. CHAIRPERSON: H’mm. MS MOKHOBO: Their task was to interrogate and take a recommendation to the Board. 10 C H A I R P E R S O N : To t h e B o a r d , y e s . MS MOKHOBO: And the Board could then approve. C H A I R P E R S O N : Ye s . MS MOKHOBO: But in addition to that the approval had also to be e s c a l a t e d t o b o t h t h e N a t i o n a l Tr e a s u r y a n d t h e D e p a r t m e n t o f Communications because it was dealing with fundamental shifts from p o l i c y f r o m t h e B r o a d c a s t D i g i t a l M i g r a t i o n p o l i c y. Now they had no right to say it can be signed when the upward approval had not been garnered. CHAIRPERSON: 20 But also, at this stage as I understand the position, they still did not have the letter from the Minister that had been d i s c u s s e d e a r l i e r. A n d I a m s u r e s o m e o f t h e m w o u l d h a v e b e e n p a r t o f t h e m e e t i n g w h e r e i t w a s s a i d t h e r e w o u l d b e a l e t t e r f r o m t h e M i n i s t e r. MS MOKHOBO: Yo u k n o w C h a i r t h e r e i s a p h r a s e t h a t I l i k e w h i c h s a y s , m a k e h a s t e s l o w l y. Which means yes, you can be quick but be s l o w a n d i n r e v i e w i n g a n d e n s u r i n g t h a t e v e r y t h i n g i s o k a y. Page 80 of 157 This 26 FEBRUARY 2020 – DAY 219 should have been a make haste slowly assumption. CHAIRPERSON: H’mm. M S M O K H O B O : N o t y e s , l e t u s d o t h i s v e r y q u i c k l y. C H A I R P E R S O N : Ye s . MS MOKHOBO: There was really no need for that. CHAIRPERSON: But also, when they discussed they ought to – when they discuss an item, they ought to be alive to whatever discussions have preceded that meeting around the same item to say the history of this item is the following. At such and such a meeting this is what was 10 said and such and such a meeting this is what was said to the extent that certain things were outstanding. Have they been sorted out now? M S M O K H O B O : I n d e e d C h a i r. I h a v e n o . . . ( i n t e r v e n e s ) . CHAIRPERSON: That does not seem to have happened in so far as the letter is concerned. MS MOKHOBO: Chair I would really implore your honour to invite Mr Mavuso. C H A I R P E R S O N : Ye s . M S M O K H O B O : To c o m e a n d g i v e y o u h i s p e r s p e c t i v e . C H A I R P E R S O N : Ye s . 20 MS MOKHOBO: Because this was his meeting. C H A I R P E R S O N : Ye s . MS MOKHOBO: And I am sure he has got better insights than myself and a whole lot of other people. C H A I R P E R S O N : Ye s . O k a y, t h a n k y o u . A D V T H A N D I N O R M A N S C : Ye s . T h a n k y o u , C h a i r. T h a n k y o u , I t h i n k Page 81 of 157 26 FEBRUARY 2020 – DAY 219 that is all on the ...(intervenes). C H A I R P E R S O N : Yo u w i l l g i v e a t t e n t i o n t o t h a t . A D V T H A N D I N O R M A N S C : W e w i l l d o C h a i r, y e s . CHAIRPERSON: Ja. ADV THANDI NORMAN SC: Thank you very much, yes. C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: So, then your conclusion is that this body as you have answered to the Chair had no authority ...(intervenes). M S M O K H O B O : N o , i t h a d n o a u t h o r i t y. 10 A D V T H A N D I N O R M A N S C : To a p p r o v e . MS MOKHOBO: And Chair I have provided Advocate Norman the delegation of authority framework of the SABC that shows in very clear terms the levels of approvals. ADV THANDI NORMAN SC: Ye s . And you have attached it ...(intervenes). MS MOKHOBO: Even if – I am sorry Advocate. ADV THANDI NORMAN SC: I beg your pardon. MS MOKHOBO: So even if I was told to sign it, it would have still been i m p r o p e r. 20 C H A I R P E R S O N : Ye s . MS MOKHOBO: At this level. C H A I R P E R S O N : Ye s . MS MOKHOBO: I t w o u l d h a v e s t i l l b e e n i m p r o p e r. have gone ahead and signed. C H A I R P E R S O N : Ye s . Page 82 of 157 So, I would not 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Unless all the approvals had been received. l e t t e r f r o m t h e M i n i s t e r. The P o s s i b l y a l e t t e r f r o m N a t i o n a l Tr e a s u r y because of the policy shifts. CHAIRPERSON: Ja. MS MOKHOBO: And ja and Board approval. CHAIRPERSON: But you may or may not be able to comment on this. Was it not – Mr Mavuso was chairing this meeting of this Committee, the same Board Member who stood with you at that meeting with MultiChoice? 10 A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Is it the same Board Member? M S M O K H O B O : I t i s t h e s a m e B o a r d M e m b e r. C H A I R P E R S O N : Ye s . B e c a u s e I w o u l d h a v e e x p e c t e d t h a t b e c a u s e o f the position he took at that meeting, he would have been more circumspect and he would have checked much more than anybody else to see whether everything that was supposed to happen sorted out first before there could be approval. So that I would suggest the letter that you talked about. But of course, I cannot remember – the letter might not have 20 been discussed at that meeting because the discussion of the letter might have been at a Board Meeting. But if he was at the Board Meeting which discussed the letter where Mr Motsoeneng said there would be a letter from the Minister then I would have expected him here t o h a v e s a i d , w h e r e i s t h e l e t t e r. M S M O K H O B O : Ye s C h a i r. Page 83 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: Yo u m a y o r m a y n o t b e a b l e t o s a y a n y t h i n g . I am just making an observation. MS MOKHOBO: I would propose that that question be put to him. CHAIRPERSON: Be put to him, ja. Thank you. A D V T H A N D I N O R M A N S C : T h a n k y o u . T h a n k y o u C h a i r. T h a t i s a l l then on the minutes. Could we go back to the statement? Chair I am going to refer the witness to a letter that she referred to in answering one of your questions earlier before we adjourned for tea. Where she made mention of a letter that she had written where a journalist that 10 m i s q u o t e d h e r. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: That letter Chair appears under folder B. It is – it was an Annexure to the previous statement at page ...(intervenes). CHAIRPERSON: Exhibit CC21? A D V T H A N D I N O R M A N S C : C C 2 1 C h a i r, y e s . CHAIRPERSON: Ja, under folder B. ADV THANDI NORMAN SC: Under folder B and then that would be page 51. 20 C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: Thank you. Could you deal with that letter Ms Mokhobo? Or maybe let us start with the one before that is the one that you have read. The 15th of May letter that you have read into the record. M S M O K H O B O : Ye s C h a i r. Page 84 of 157 26 FEBRUARY 2020 – DAY 219 ADV THANDI NORMAN SC: And then could you just tell Chair at page 51 you were responding to Mr Patel. What did you say to him? M S M O K H O B O : C h a i r, i t i s v e r y i m p o r t a n t t o t a b l e t h e r e t h e c o n t e x t o f t h i s l e t t e r. C H A I R P E R S O N : Ye s . MS MOKHOBO: Was in the same spirit as the discussions, the numerous discussions we had had at the previous meeting. CHAIRPERSON: At the meeting of the 6th ...(intervenes). ADV THANDI NORMAN SC: 6th of June. 10 MS MOKHOBO: The meeting of the 6th with MultiChoice and SABC. C H A I R P E R S O N : Ye s . MS MOKHOBO: Where indeed there was a lot of excitement that, “ P h e w, f i n a l l y w e w i l l h a v e a 2 4 - h o u r n e w s c h a n n e l ” . E v e n t h o u g h w e do not agree on certain serious principles that I express there. So, this letter was in the same spirit. And I was asked by the Board to write the letter to Mr Imtiaz. C H A I R P E R S O N : Ye s . MS MOKHOBO: So, it reads and it was address to Mr Imtiaz Patel. “The 20 Board considered and Executive MultiChoice as Management proposal have regarding duly the S A B C ’s 2 4 - h o u r n e w s c h a n n e l a n d t h e e n t e r t a i n m e n t channel. And we are pleased to inform you of the decision to proceed in accordance with the proposal. Ve r y i m p o r t a n t l y C h a i r, o n t h e t e r m s t h a t w i l l b e a g r e e d between the SABC and MultiChoice. We look forward to Page 85 of 157 26 FEBRUARY 2020 – DAY 219 a mutually rewarded relationship for the coming 5-year period.” T h a t c a v e a t i s v e r y i m p o r t a n t C h a i r. T h a t t h e t e r m s h a d t o b e a g r e e d . A t t h i s p o i n t t h e t e r m s h a v e n o t b e e n a g r e e d . A n d c e r t a i n l y, saying we look forward to a mutually rewarded relationship would still ride on whether or not we agree on the terms. So, this was certainly nothing approving the terms of the proposal at all. A D V T H A N D I N O R M A N S C : Ye s , t h a n k y o u . CHAIRPERSON: From what I heard earlier on, was there not a Board 10 Meeting just before or just after that date? MS MOKHOBO: Of the 19th? CHAIRPERSON: Of the 19th June? ADV THANDI NORMAN SC: The 19th of June, yes. M S M O K H O B O : Ye s C h a i r. T h e r e w a s a B o a r d M e e t i n g . ADV THANDI NORMAN SC: It was on the 12th of June. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: It was on the 12th. CHAIRPERSON: There was one on the 12th of June? ADV THANDI NORMAN SC: On the 12th of June. 20 M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: Which is the one we dealt with. CHAIRPERSON: Is that the one where Mr Motsoeneng talked about a l e t t e r. ADV THANDI NORMAN SC: Correct. C H A I R P E R S O N : F r o m t h e M i n i s t e r. Page 86 of 157 26 FEBRUARY 2020 – DAY 219 A D V T H A N D I N O R M A N S C : N o , n o , C h a i r. Ye s , t h a t i s t h e o n e w h e r e Chair has just – sorry ...(intervenes). CHAIRPERSON: The one where I read a number of well ...(intervenes). ADV THANDI NORMAN SC: As to why Mr Mavuso did not pay attention because the letter had been mentioned. CHAIRPERSON: Oh, that we just dealt with. A D V T H A N D I N O R M A N S C : Ye s , t h a t i s c o r r e c t C h a i r. CHAIRPERSON: But I thought that was a Committee meeting – a SubCommittee meeting rather than Board. 10 ADV THANDI NORMAN SC: C h a i r, I a m t h e o n e w h o i s c o n f u s e d . I beg your pardon. CHAIRPERSON: Ja. A D V T H A N D I N O R M A N S C : Yo u a r e q u i t e r i g h t . T h e o n e t h a t s h e j u s t r e f e r r e d t o i s t h e 2 n d o f J u l y. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: The 12th of June is where Mr Motsoeneng t a l k s a b o u t t h e l e t t e r. CHAIRPERSON: And that was a Board. ADV THANDI NORMAN SC: That was a Board Meeting, yes. 20 CHAIRPERSON: A Board Meeting. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: Was there another Board Meeting just around 19, 20, 21 June or just before that after the 12th? ADV THANDI NORMAN SC: I could just ...(intervenes). MS MOKHOBO: Chair there was a Board Meeting. Page 87 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : Ye s . M S M O K H O B O : W h e r e I w a s m a n d a t e d t o t h e n w r i t e t h i s l e t t e r. C H A I R P E R S O N : Ye s . MS MOKHOBO: But we will have to find ...(intervenes). ADV THANDI NORMAN SC: I will have to find the minutes Chair ...(intervenes). MS MOKHOBO: The minutes. ADV THANDI NORMAN SC: And ...(intervenes). C H A I R P E R S O N : Ye s . 10 ADV THANDI NORMAN SC: Because the Board – whilst Ms Resvichele is looking Chair may we proceed and deal with something else in the meantime? C H A I R P E R S O N : O k a y, t h a t i s f i n e . ADV THANDI NORMAN SC: if you agree. Thank you. CHAIRPERSON: That is fine. ADV THANDI NORMAN SC: And at the meeting ...(intervenes). C H A I R P E R S O N : A n d – I a m s o r r y. A D V T H A N D I N O R M A N S C : S o r r y C h a i r, y e s . CHAIRPERSON: Ms Mokhobo, I am trying to understand this letter in 20 the context of what you said was alleged by journalist or by certain people through a journalist about your position and what you have said. It is quite clear that you are saying that the SABC will proceed but that you talk about terms that will be agreed. M S M O K H O B O : Ye s C h a i r. CHAIRPERSON: So, you are not saying that it is on terms that have Page 88 of 157 26 FEBRUARY 2020 – DAY 219 already been agreed? M S M O K H O B O : I n d e e d C h a i r, t h a n k y o u . CHAIRPERSON: Ye s . But within that context it seems to me that maybe the letter should be read to simply mean that the – you are saying the Board is quite happy – the decision that the Board had made was really to proceed with the discussions. M S M O K H O B O : Ye s . CHAIRPERSON: With a view to an agreement being reached on terms that have not been finalized. 10 M S M O K H O B O : Ye s C h a i r. CHAIRPERSON: It is just that I think if you – the way it says, inform you of the decision to proceed in accordance with the proposal. At that stage it is like you are accepting the proposal as is. MS MOKHOBO: H’mm. CHAIRPERSON: But as you emphasize it says, on the terms that will be agreed. M S M O K H O B O : Ye s C h a i r. CHAIRPERSON: That that is the pro vice, so you emphasize. M S M O K H O B O : Ye s C h a i r. 20 CHAIRPERSON: Ja. Okay alright. ADV THANDI NORMAN SC: T h a n k y o u , C h a i r. Thank you. Do you have any recollection of a Board Meeting which when you – or rather let m e p u t i t t h i s w a y. W h e n t h e B o a r d m a n d a t e d y o u t o w r i t e t h i s l e t t e r t o Mr Patel, was – did you convey to Mr Patel the decisions of the Board or did you simply draft the letter in your own terms? Page 89 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: No, it was the decision of the Board. ADV THANDI NORMAN SC: So would the ...(intervenes). MS MOKHOBO: The Board of the Executive Management. CHAIRPERSON: And the minutes which have got that decision are somewhere in the bundle as far as you know? M S M O K H O B O : Ye s . T h e y s h o u l d b e t h e r e . A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: They should. ADV THANDI NORMAN SC: I just need to get the date of that meeting. 10 It would come before the 19th of June – 12th of June or because the only one I have is the 12th of June. I do not have any – the 6th of June, the 9th, the 12th so I do not have any Board Meeting minutes. We do not have them between the 12th and the 19th. C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: It is only those of the 12th. CHAIRPERSON: Well what we – do you recall Ms Mokhobo whether you did see them? It is a question of locating them or you are not sure whether they are there. MS MOKHOBO: I would have to ...(intervenes). 20 C H A I R P E R S O N : Yo u w i l l h a v e t o c h e c k . M S M O K H O B O : To t r y a n d l o c a t e t h e m . C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Okay no, that is fine. ADV THANDI NORMAN SC: Thank you. Page 90 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: What will – if they are ...(intervenes). M S M O K H O B O : H e r e i t i s C h a i r. CHAIRPERSON: Uh-huh. MS MOKHOBO: The ...(intervenes). CHAIRPERSON: What page? MS MOKHOBO: Boards Indorsements. This is on the bundle – Ms Geldenhuys bundle. A D V T H A N D I N O R M A N S C : O h o k a y. M S M O K H O B O : Ye s . E x h i b i t C C 4 3 C h a i r. 10 C H A I R P E R S O N : O k a y. W h a t p a g e ? MS MOKHOBO: Page 055. CHAIRPERSON: Okay so 55. ADV THANDI NORMAN SC: 55. 12 June. MS MOKHOBO: And this was on the 12th of June. C H A I R P E R S O N : Ye s . MS MOKHOBO: It was a special Board Meeting. C H A I R P E R S O N : Ye s . MS MOKHOBO: Right at the top, the first paragraph. CHAIRPERSON: What paragraph? 20 MS MOKHOBO: The first paragraph, right at the top. C H A I R P E R S O N : Ye s o k a y. MS MOKHOBO: Alright, 055. CHAIRPERSON: H’mm. MS MOKHOBO: “The GCO pointed out that what had been agreed at the previous meeting was the matter that was Page 91 of 157 26 FEBRUARY 2020 – DAY 219 currently being pursued. been required to The Boards indorsement had enable management to send a c o n f i r m a t i o n l e t t e r t o M u l t i C h o i c e t o t h e e ff e c t t h a t t h e SABCs engagement with MultiChoice would preclude clauses 9 and 10. Clause 9 propose that the SABC must etcetera. It was confirmed that until there was a clear pronouncement from the Minister in this regard the SABC could not commit to clause 9.” So, Chair in keeping with the Chairs reading of the letter it 10 should certainly have included instead of making a wild a broad statement that says on terms that will be agreed. C H A I R P E R S O N : Ye s . MS MOKHOBO: I should have been more specific. C H A I R P E R S O N : Ye s . MS MOKHOBO: And said, to exclude clause 9 and 10. C H A I R P E R S O N : Ye s . MS MOKHOBO: I should have been more specific. CHAIRPERSON: MS MOKHOBO: 20 Ja, no, no. But then I approached it from a very broad perspective. C H A I R P E R S O N : Ye s . N o , n o , n o . ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: It – ja I think you should have been more specific but you do say on terms to be agreed. M S M O K H O B O : Ye s . Page 92 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: does cover it. And as long as 9 and 10 have not been agreed, it It is just that it might have been better if it was more specific. MS MOKHOBO: And they knew crystally clear what had not been agreed. C H A I R P E R S O N : J a . Ye s . O k a y, t h a n k y o u . A D V T H A N D I N O R M A N S C : T h a n k y o u . T h a n k y o u C h a i r. T h e n i f y o u go back to the statement. Yo u h a v e c o v e r e d m o s t o f y o u r e v i d e n c e when you were dealing with the benefits of having encryption and 10 towards the latter part of your statement you deal with the tensions b e t w e e n y o u r s e l f a n d M s Ts h a b a l a l a . And they are recorded there, I am not sure that it is ...(intervenes). MS MOKHOBO: What page are you on? A D V T H A N D I N O R M A N S C : I a m n o w o n p a g e – s o r r y, g o b a c k , p a g e 85. MS MOKHOBO: This is on ...(intervenes). ADV THANDI NORMAN SC: On – sorry CC ...(intervenes). MS MOKHOBO: The Geldenhuys bundle? ADV THANDI NORMAN SC: No, I beg your pardon. Exhibit CC21. 20 M S M O K H O B O : O k a y. ADV THANDI NORMAN SC: The folder that has your statement and then we are looking at the 21A which will be under divider C. MS MOKHOBO: So that would be page? ADV THANDI NORMAN SC: That would be page 85. MS MOKHOBO: Page 85. Page 93 of 157 26 FEBRUARY 2020 – DAY 219 A D V T H A N D I N O R M A N S C : Ye s . B u t m a y b e b e f o r e w e g o t h e r e , t h e r e are the three scenarios that you put just to close this your topic about the disadvantages of the – of this deal for the SABC. Could you just tell the Chair about you have arrived at those scenarios? I am going to take you to the page where you deal with scenario one, two and three. I b e g y o u r p a r d o n , s o r r y. Yo u w i l l – b e f o r e w e g e t t o t h i s - s o r r y, I b e g y o u r p a r d o n C h a i r. I j u s t w a n t t o d i r e c t y o u t o t h e e x a c t p a r a g r a p h . A c t u a l l y, I t h i n k y o u d e a l t w i t h t h e m i n t h e p r e v i o u s s t a t e m e n t . Yo u w e r e t a l k i n g a b o u t t h e 5 0 0 m i l l i o n a n d y o u s a i d t h a t t h e 5 0 0 m i l l i o n 10 is way too little as compared to the benefits that the SABC would have derived had it taken its time and looked at the contract properly and to make sure that it benefits it. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: And what informs that view that you have? MS MOKHOBO: The view is informed by a fax that was in fact m e n t i o n e d b y t h e M i n i s t e r a s w e l l y e s t e r d a y. A D V T H A N D I N O R M A N S C : Ye s . M S M O K H O B O : T h e f o r m e r M i n i s t e r y e s t e r d a y. W h e r e h e s p o k e o f t h e amount of viewership that SABC had at the time. It was a completely 20 dominant player while MultiChoice had a smallish audience profile. The SABC boasted quite a substantial audience – I think at that time the SABC alone was responsible for I think it was 65%, I may be wrong but anything between 60% and 70% of the audience profile of South Africa. ADV THANDI NORMAN SC: Ye s . In fact, you deal with that in the statement that you made to the SIU. Page 94 of 157 26 FEBRUARY 2020 – DAY 219 M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: That appears under B. I beg your pardon, page 37. Those are the scenarios. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: But could you just summarize them? M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: There are two scenarios where you say that as a result there has been huge losses to the SABC. M S M O K H O B O : Ye s . 10 A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: The whole stance that the SABC should not have attempted to get – to enter into the direct to home perspective which is Pay TV perspective was very sad in the sense that it was saying to the SABC, do not even try this commercial venture whereas the SABC c o u l d h a v e d o n e i t v e r y s u c c e s s f u l l y. A n d i n t h i s I i l l u s t r a t e w h a t t h e possibilities could have been. Now if you just look at the 2019 Abridged Annual Report of MultiChoice Africa. A t t h e t i m e w h e n I l o o k e d a t i t , i t w a s l a s t y e a r, which had to do with the last year figures. MultiChoice had an active 20 subscriber base of 7.4 million households and this was up from 4 million. I n 2 0 11 t h e y h a d o n l y 4 m i l l i o n a n d b y 2 0 1 9 t h e y h a d 7 . 4 million. Now I give a scenario where if the SABC were to come up with – n o b e f o r e I g o i n t o t h a t C h a i r. I a m s o r r y. The average and this contained in their report. The base average that they use to calculate Page 95 of 157 26 FEBRUARY 2020 – DAY 219 their revenue is R322 per month per subscriber because they take from their most superior bouquet to the lowest bouquet and come up with a round figure. Its total revenue came up to 40.4 billion Rands over its 2 0 1 9 f i n a n c i a l y e a r. T h a t i s v e r y s u b s t a n t i a l . Now I argued that if the SABC through its vast footprint and high audience attraction value did go head to head with MCA but o ff e r i n g i t s s u b s c r i b e r s a l o w R 4 0 s u b s c r i p t i o n f e e w h i c h w o u l d c u t across R40 subscription per month. And if it only had 4 million s u b s c r i b e r s w h o s a i d , y e s , w e w o u l d b e a b l e t o a ff o r d R 4 0 p e r m o n t h , i t 10 could raise monthly revenues of almost 160 million Rands per annum and annually 1.920 billion. These figures are obviously very conservative. It is really going right down to the lowest levels. I know t h a t M u l t i C h o i c e ’s l o w e s t l e v e l i s s o m e t h i n g l i k e R 2 9 i f I a m n o t mistaken. But MultiChoice we thought the SABC bouquet running on it would probably not have those kinds of audiences. Now I am saying if we come down to a much smaller subscriber base and I know that the subscriber base could actually be much higher e s p e c i a l l y n o w w h e n a ff o r d a b i l i t y l e v e l s a r e s o l o w, w e c o u l d m a k e m u c h m o r e m o n e y. I a m s a y i n g w e a s t h o u g h I a m s t i l l t h e r e , e x c u s e 20 m e . T h e S A B C c o u l d m a k e m u c h m o r e m o n e y. S o , I w a s j u s t p a i n t i n g a scenario of the – what did not make sense to me with people saying, no you cannot go into that space because you will not be able to m a n a g e i t o r a ff o r d i t o r w h a t e v e r, i t j u s t n e v e r m a d e s e n s e t o m e a n y w a y. ADV THANDI NORMAN SC: Thank you. Page 96 of 157 26 FEBRUARY 2020 – DAY 219 M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: And then may we lastly then we just deal with the fact that you have already mentioned that the relations b e t w e e n y o u a n d t h e C h a i r p e r s o n o f t h e g r o u p B o a r d M s Ts h a b a l a l a were not so good. M S M O K H O B O : Ye s . ADV THANDI NORMAN SC: Ye s , a n d y o u h a v e a t t a c h e d m i n u t e s t o show the altercations during the meetings of 2013 – September 2013. M S M O K H O B O : Ye s m a ’ a m . 10 ADV THANDI NORMAN SC: Okay thank you. And then ...(intervenes). CHAIRPERSON: Is there something to be highlighted about those altercations or not really? A D V T H A N D I N O R M A N S C : N o t r e a l l y C h a i r, i t i s a b o u t – b u t o f c o u r s e Ms Mokhobo feels that her integrity was being attacked. But for the purposes of the Commission it does not really deal with – it does not relate to the ...(intervenes). CHAIRPERSON: It does not throw a light on ...(intervenes). ADV THANDI NORMAN SC: how I look at it. 20 It is just a relationship kind of – that is But unless I am wrong Ms Mokhobo, do you think it goes deeper than that? M S M O K H O B O : C h a i r, I t h i n k y e s o n t h e s u r f a c e t h a t i s w h a t i t i s b u t i f you go deeper it all had to do with attempts for me to be removed because there were – as I said earlier there were agendas. A D V T H A N D I N O R M A N S C : O k a y. CHAIRPERSON: H’mm. Page 97 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: There were things that people wanted done which I was not doing. So, the undermining was just incredible. But things got v e r y, v e r y b a d a t t h e p o i n t w h e r e w e w e r e a t t h e M i n i s t e r ’s r o u n d t a b l e discussion and I called Mr Mavuso to ask him to just confirm with me whether there had indeed been approval. N o w t h i s i s a t a d i ff e r e n t level, it is now past the MultiChoice agreement which has been signed with the clauses that should not have been there. It is now at a level where the Minister is now trying to have DTT roll out but he has to r e s o l v e t h e q u e s t i o n o f t h e S e t To p B o x . A n d i n t h a t m e e t i n g a t t h a t 10 point the SABC had still not taken the position that there will be no Set To p B o x c o n t r o l . R e m e m b e r t h e c o n t r a c t w a s s i g n e d , i t w e n t o ff a n d the Board just went quiet about it. I think everybody was just shellshocked and decided not to pursue the matter anymore because it was done. Now here is an opportunity for the SABC to get back its power a n d t h a t o p p o r t u n i t y i s s i t t i n g a t t h e r o u n d t a b l e – t h e M i n i s t e r ’s roundtable with other industry players and establishing that we actually a s t h e S A B C b e l i e v e t h e r e i s v a l u e i n h a v i n g t h e S e t To p B o x c o n t r o l . And then she stands up and she says the SABC has agreed that there 20 w i l l b e n o S e t To p B o x c o n t r o l . And no such agreement had been reached. C H A I R P E R S O N : A n d w h o i s s a y i n g t h a t n o w, t h e M i n i s t e r ? MS MOKHOBO: The Chairperson. C H A I R P E R S O N : T h e C h a i r p e r s o n , M s Ts h a b a l a l a ? M S M O K H O B O : Ye s . Page 98 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : Ye s . MS MOKHOBO: And at that point I was in shock and incidentally our relationships had become so cold and distant at that point that they sat on the other side of the room and I sat on the other side of the room. I w a s l i k e t h e l o n e s o l d i e r t h e r e y o u k n o w. A n d t h e y w e r e s i t t i n g t h e r e a n d t h e y d e c i d e d t h a t i s w h a t t h e y w e r e g o i n g t o s a y a b o u t t h e S e t To p Box control. I was obviously shellshocked and I called Mr Mavuso to check if indeed that was true and Mr Mavuso confirmed for me that no, the Board never ever arrived at that conclusion. 10 That there was a contract with MultiChoice which agreed with them on that one could regard as an expediency to get the contract going. But there was never a f u n d a m e n t a l a g r e e m e n t t h a t t h e S e t To p B o x c o n t r o l w o u l d n o t b e supported by the SABC. The SABC needs it. We need the – that Set To p B o x c o n t r o l . A n d t h e n I s u b s e q u e n t l y i n f o r m e d t h e M i n i s t e r a n d t h e DG that here are people who are now almost reverse engineering things to meet the MultiChoice agreement. They are now saying the SABC has taken and we had never taken that position. So there was an urgent Board Meeting that was called where the Chairperson proceeded t o a t t a c k m e o n t h a t . S h e s a i d I h a d b r e a c h e d c o n f i d e n t i a l i t y. H o w d o I 20 breach confidentiality when I speak to a Board Member of the organisation that I come from you know? And obviously I had to let it be known by my superiors that here was something patently wrong that was being conducted. If I did not do that then I would not be delivering on my fiduciary duties. ADV THANDI NORMAN SC: Thank you. Page 99 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: It speaks to the issue that I said I want to hear more about. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: come before the There are people – there are witnesses who have Commission and said in the context of the organisations where they were employed that there were attempts by certain people or certain forces to remove from Government Entities, G o v e r n m e n t D e p a r t m e n t s , S O E ’s p e o p l e w h o d i d n o t o r w e r e n o t prepared to do wrong. And it is necessary to explore the validity of this 10 proposition wherever there may be matters that may suggest that maybe certain people were being pushed out. Now one cannot get to the point of saying whether this was so or not in the SABC without h e a r i n g m o r e a b o u t t h e s e c h a l l e n g e s . Yo u h a v e j u s t s a i d t h a t y o u h a d to speak to the DG and say this is what is happening. So it becomes i m p o r t a n t t o e v e n k n o w w h a t w a s t h e D G ’s a t t i t u d e t o t h i s k i n d o f s i t u a t i o n . W h a t w a s t h e M i n i s t e r ’s a t t i t u d e b e c a u s e b a s e d o n w h a t M r C a r r i m t o l d m e y e s t e r d a y o n e e x p e c t e d t h a t t h e M i n i s t e r ’s b o s s , t h e President, was in support of the position that Mr Carrim took which is the same position that Mr Mokhobo took. 20 But here was a situation where certain people within SABC seemed to go completely against that a n d a t t h i s s t a g e I a m – I h a v e n o t h e a r d t h a t t h e M i n i s t e r o r o ff i c i a l s within the Department of Communications came in and said, what are y o u d o i n g ? Yo u k n o w o r t h a t k i n d o f t h i n g . O r s h o w c l e a r s u p p o r t f o r what should be the correct position as far as government is concerned. S o g e t t i n g a l l o f t h a t m i g h t h e l p o n e u n d e r s t a n d e v e n w h a t w a s g o in g Page 100 of 157 26 FEBRUARY 2020 – DAY 219 on and – but also might help one understand the people if there were any who were behind some of these things and to identify what was the agenda? Was the agenda part of State Capture? Was the agenda something else? Was the agenda corruption? A D V T H A N D I N O R M A N S C : Ye s . T h a n k y o u . CHAIRPERSON: Okay thank you so …(intervenes). A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: So I say again Ms Mokhobo after today if you have more information to share with the Commission in relation to this 10 p l e a s e f e e l f r e e t o c o m m u n i c a t e w i t h t h e L e g a l Te a m . want to try and understand. Because I do This is very strange for me that things were happening the way I am hearing were happening within the same organisation. M S M O K H O B O : T h a n k y o u C h a i r. T h a n k y o u . C H A I R P E R S O N : O k a y. ADV THANDI NORMAN SC: T h a n k y o u C h a i r. Yo u h a d d e a l t M s Mokhobo last – on the last occasion with the appointment of Mr Motsoeneng. M S M O K H O B O : Ye s . 20 ADV THANDI NORMAN SC: That is when you testified before the Commission and then it – but what you did not deal with is what you deal with in – at paragraph 59 when you – because of his – according to what you say here – according to – because he was disruptive you had suggested that he should be removed. Could you just tell the Chair about that at paragraph 59 page 88? Page 101 of 157 26 FEBRUARY 2020 – DAY 219 MS MOKHOBO: Ye s C h a i r. I have been suggesting and in fact I got into very serious trouble for that initial suggestion the first which I had made much earlier after I had started there. I think it must have been around March or thereabouts and I got into serious trouble for having suggested that. But then on the 26th of February …(intervenes). CHAIRPERSON: Yo u m a k e t h e s u g g e s t i o n a t a B o a r d M e e t i n g o r something? MS MOKHOBO: I made it to Board Members. C H A I R P E R S O N : To B o a r d M e m b e r s j a . 10 M S M O K H O B O : Ye s . C H A I R P E R S O N : O k a y. MS MOKHOBO: And not in a formal meeting. CHAIRPERSON: Not in a formal meeting? M S M O K H O B O : Ye s . B e c a u s e y o u k n o w f o r m e t o m a k e t h a t s t a t e m e n t I would have had to do it correctly via the HR Department. C H A I R P E R S O N : Ye s . MS MOKHOBO: And submitted it to the Human Resource Division and then it would go to the Sub-Committee to be discussed and then go to the Board. I was feeling this sense of urgency and serious frustration 20 b e c a u s e h e w a s m a k i n g i t v e r y d i ff i c u l t f o r m e t o d o m y w o r k . B l o c k i n g t h e s t a ff f r o m s u b m i t t i n g d o c u m e n t s . I m e a n i f y o u w e r e t o r e a d t h e r e was a – I am trying to recall the name – Sizwe …(indistinct, African name) evaluation that was done of the SABC and in there they spoke of t w o c e n t r e o f p o w e r. T h e r e w a s t h e c e n t r e w h i c h w a s t h e C E O a n d t h e centre which was the COO. And they spoke of how haphazard things Page 102 of 157 26 FEBRUARY 2020 – DAY 219 were in terms of submitting documents to the Board. getting things done. In terms of The cause was simply because at that point the acting CEO felt he needed me out of that organisation and he frustrated everything that I did so that ultimately the Board would declare me incompetent and fire me. I remember in 2013 I had not been there long when I heard the rumour that by August of the same year I would be gone. And I was due to have an interview with one of the magazines and the journalist called and say we heard your CEO has been suspended. In the meantime I was at my desk. So there were a lot of 10 attempts to discard me. So now eventually the Board woke up to the fact that there was something very seriously wrong with the acting CEO. And that happened when he suggested to them that they were all i m p l i c a t e d i n s o m e w r o n g d o i n g o r t h e o t h e r. And only that some of t h e m t h e y w e r e t h o s e w h o k n e w t h a t t h i s m a n w a s n o t o k a y. B u t s o m e continued to support him until at that point where he said that then they w o k e u p t o t h e f a c t t h a t h e w a s a c t u a l l y v e r y, v e r y d a n g e r o u s a n d w a s going to have them fired when he said they were all implicated. And that is the point where they then suggested that he be removed. So on the 26th of February in 2013 Chair the Board unanimously agreed to 20 remove Mr Motsoeneng from his position as acting COO. This move was however frustrated when it emerged that the Board did not have the powers to remove Mr Motsoeneng as he had been appointed by the then Minister of Communications Ms Dina Pule. Doctor Ngobani and the Deputy Chairman Mr Thami Ka Plaatjie resigned soon thereafter followed by the remainder of the non-executive Board Members in Page 103 of 157 26 FEBRUARY 2020 – DAY 219 March 2013. Having being reinstated Mr Motsoeneng continued with his disruptive style of management. A D V T H A N D I N O R M A N S C : Ye s . A n d y o u s a y t h a t y o u w o u l d n o t h a v e recommended his appointment? MS MOKHOBO: Absolutely not. Absolutely not. CHAIRPERSON: H’mm. Now why was what you referred to as I think disruptive conduct on his part why was that not being addressed? Was that because you would have needed the support of the Board and unless you had that support there was nothing you could do or there 10 was very little you could do or what was the position? MS MOKHOBO: The position Chair was that as acting COO any matter that had to do with his discipline had to go to the Board. It could only b e d e a l t w i t h b y t h e B o a r d n o t b y m y s e l f d i r e c t l y. appetite for that. And there was no As I said I had even suggested that he should be removed and be made to go either back to his former position or whatever but I was very clear that I could not work with this man. A COO is such a critical Member of a top management structure because that is the person who oversees the daily nitty gritty operations of where the delivery needs to happen. So the channels making sure that 20 t h e c h a n n e l s d e l i v e r o n t i m e , n e w s d e l i v e r o n t i m e . Yo u k n o w a l l t h o s e critical areas that would talk to immediate delivery whereas the CEO d e a l t w i t h a l l t h e o t h e r m a t t e r s t h a t a ff e c t e d t h e o r g a n i s a t i o n w i d e issues. And the fact that he did not understand the fact of the power relations that I was indeed his superior and he had to take my word and he instead preferred to be friends with the Chairpersons of the Board to Page 104 of 157 26 FEBRUARY 2020 – DAY 219 take his instructions from them, to go to them and instruct them on how to deal with me and the organisation just made it impossible for me. Absolutely impossible. And Chair I am sure the Chair may have heard at the Parliamentary Portfolio Committee Commission I think it was called a commission as well on the SABC that was chaired by the Honourable Vincent Smith. CHAIRPERSON: It was an ad hoc Committee I think it was. MS MOKHOBO: Ad hoc Committee yes. CHAIRPERSON: Ja. Ja not commission 10 A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: Where both Chairman Ngobani and Chairperson Ts h a b a l a l a t o l d M r S m i t h t h a t i f t h e y h a d h a d t h i n g s t h e i r w a y t h e y would – I would never have been appointed at the SABC. Now how bigger a vote of no confidence do you want than that? By the time – a n y w a y I h a d l e f t s o i t h a d n o f o r c e o r e ff e c t o n m e . And this was despite the fact of the hard work I had put into that organisation. Tu r n i n g a r o u n d t h e f i n a n c e s . G e t t i n g a w h o l e l o t o f t h i n g s d o n e . D T T r o l l o u t t h e t e c h n o l o g y r o l l o u t h a d s t a l l e d c o m p l e t e l y. movement and it was critical and urgent. 20 There was no And just ensuring that the broad spectrum of stakeholders who had something to do with the SABC understood what we were doing and where we were going. But in retrospect I was happy that they said they would never have chosen me b e c a u s e I c l e a r l y w a s n o t t h e r i g h t c a n d i d a t e f o r t h e m . To o p e d a n t i c . A D V T H A N D I N O R M A N S C : T h a n k y o u . T h a n k y o u C h a i r. CHAIRPERSON: That is the end of your questions? Page 105 of 157 26 FEBRUARY 2020 – DAY 219 A D V T H A N D I N O R M A N S C : Ye s , y e s t h a n k y o u . CHAIRPERSON: Ye s . Ms Mokhobo you think you might have quite something to share with the Commission on the issues that I have raised or you will need to reflect? MS MOKHOBO: Chair I think it is very important that I reflect. C H A I R P E R S O N : Ye s o k a y. MS MOKHOBO: So that I do not come. C H A I R P E R S O N : Ye s . MS MOKHOBO: With half baked. 10 CHAIRPERSON: No, no that is fine. MS MOKHOBO: Stories. CHAIRPERSON: That is fine. MS MOKHOBO: What I do know for sure Chair is the SABC is a microcosm of the country so the political climate of the time in the country had a direct impact on the SABC. D i ff e r e n t p o l i t i c a l p a r t i e s , d i ff e r e n t i n t e r e s t s , d i ff e r e n t e x p e c t a t i o n s a n d h a v i n g t h e i r o w n p e o p l e within the organisation. That was the first problem. Secondly people who were overly ambitious without understanding the job content and relying on the highest levels of the country for them to be given space 20 to do as they liked. That was a big problem. The third one was the lack of a shared vision between those who would be placed in I will say v e r y b r o a d l y S O E ’s b e c a u s e w e h a v e s e e n t h i s p l a y i t s e l f o u t t h o u g h t t h e S O E ’s . Lack of a clear vision and agenda and agreed modus operandi between the people who would be appointed in this. Another very big problem. Because if there is no agreement and I think this Page 106 of 157 26 FEBRUARY 2020 – DAY 219 goes to even how the Board Members are appointed. The Board M e m b e r s a r e a p p o i n t e d b y d i ff e r e n t M e m b e r s o f P a r l i a m e n t w h o b e l o n g e d t o d i ff e r e n t p o l i t i c a l a ff i l i a t i o n s a n d h a v e d i ff e r e n t a g e n d a s and those people who would come in carrying the agendas of those who have appointed them. And those agendas as you know our political parties do not see eye to eye on anything. So immediately you have – ja – you just need a matchstick to light the fire. The SABC did not have – has not had a stable Board. I think this one is probably – there is somewhere where I have analysed that and maybe I should send it to 10 you. C H A I R P E R S O N : Ye s p l e a s e j a . MS MOKHOBO: But it also goes to the Ministers as well. CHAIRPERSON: H’mm. MS MOKHOBO: Somewhere in my documents I do outline. CHAIRPERSON: Ja there is …(intervenes). M S M O K H O B O : T h e d i ff i c u l t i e s . C H A I R P E R S O N : T h e r e i s a p a r t w h e r e t h e r e i s a l i s t o f M i n i s t e r. A D V T H A N D I N O R M A N S C : Ye s . MS MOKHOBO: The list of Ministers and how long they were actually 20 there. CHAIRPERSON: Within a very short space of time. A D V T H A N D I N O R M A N S C : Ye s . M S M O K H O B O : Ye s . CHAIRPERSON: They were about ten or more Ministers quite a few of them spent less than or around a year and a half. Page 107 of 157 26 FEBRUARY 2020 – DAY 219 A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Then moved out then others came in. It must have been quite unstable. MS MOKHOBO: And in each instance the people would be removed because they did not satisfy an agenda. C H A I R P E R S O N : Ye s y o u s e e t h a t i s w h a t I a m – I w a n t t o k n o w m o r e about in case that agenda is something that falls within the terms of the Reference of the Commission to try and get to understand whether all of this or most of it arose from something that we are looking at. 10 M S M O K H O B O : Ye s . CHAIRPERSON: And who were the role players who were contributing to this situation? MS MOKHOBO: But Chair I would even propose to the Chair that perhaps have in camera discussion with each one of those Ministers. C H A I R P E R S O N : Ye s MS MOKHOBO: Because each one of them …(intervenes). C H A I R P E R S O N : Ye s . MS MOKHOBO: Will have a story to tell. C H A I R P E R S O N : Ye s . 20 MS MOKHOBO: And then form your reports and opinion based on that. C H A I R P E R S O N : Ye s . MS MOKHOBO: The same as with the Board Members of the SABC. C H A I R P E R S O N : Ye s . MS MOKHOBO: Each one of them has a story to tell. C H A I R P E R S O N : Ye s . Well it might be something to think about it is Page 108 of 157 26 FEBRUARY 2020 – DAY 219 j u s t t h a t i n c a m e r a h e a r i n g i s n o t s o e a s y y o u k n o w. M S M O K H O B O : O k a y. CHAIRPERSON: To d o e x c e p t y o u k n o w c l e a r c i r c u m s t a n c e s . One wishes that people – that there would be a fair number of people who may have been in those positions Board Members and senior managers w h o w o u l d s a y t h i s i s a b o u t t h e c o u n t r y. A s y o u s a y i t i s n o t j u s t S A B C i t i s a l o t o f S O E ’s y o u k n o w. This is about the country and this Commission is the forum at which everyone can make a contribution to s a y, I k n o w a b o u t t h e f o l l o w i n g a n d o n m y a n a l y s i s t h i s i s c o n n e c t e d 10 with that and that and that and that. And then the Commission can come up with recommendations aimed at ensuring that whatever wrong may have happened does not happen again. So it is – it would be important – it would be good if more people who have got this knowledge, former Board Members, senior you know executives could just come forward and share. But do reflect and see what further contribution you could make. Because it would be a pity if one ends up not having understood the full picture before making recommendations because one did not get all the information. M S M O K H O B O : Ye s C h a i r. 20 C H A I R P E R S O N : Ye s . T h a n k y o u . ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: Thank you very much Ms Mokhobo. M S M O K H O B O : T h a n k y o u C h a i r. CHAIRPERSON: We thank you for coming to – again to the Commission to give evidence. We appreciate it but for now you are Page 109 of 157 26 FEBRUARY 2020 – DAY 219 excused. MS MOKHOBO: Thank you. CHAIRPERSON: Thank you. M S M O K H O B O : L e t i t b e f o r a l o n g t i m e C h a i r. I – h a v i n g t o r e l i v e m y experiences. C H A I R P E R S O N : Ye s . MS MOKHOBO: Every time is – it is still very traumatic. C H A I R P E R S O N : Ye s . MS MOKHOBO: The pain is intense. 10 CHAIRPERSON: No I can understand. M S M O K H O B O : T h a n k y o u C h a i r. CHAIRPERSON: Okay thank you. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. A f t e r l u n c h C h a i r t h e n t h e L E A’s w i l l c o n t i n u e y e s . CHAIRPERSON: Law Enforcement Agency work stream? A D V T H A N D I N O R M A N S C : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: We will hear the evidence of Advocate Mlotshwa I think, is that correct? A D V T H A N D I N O R M A N S C : C o l o n e l D u P l o o y. 20 CHAIRPERSON: Oh Colonel Du Plooy okay thank you. We are going to adjourn then we will resume at 14:05. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: We adjourn. REGISTRAR: All rise. I N Q U I RY A D J O U R N S Page 110 of 157 26 FEBRUARY 2020 – DAY 219 I N Q U I RY R E S U M E S A D V W I L L I A M N I C H O L S O N : G o o d a f t e r n o o n C h a i r. CHAIRPERSON: Good afternoon Mr Nicholson. Are you ready? A D V W I L L I A M N I C H O L S O N : I n d e e d I a m C h a i r. C H A I R P E R S O N : Ye s . ADV WILLIAM NICHOLSON: The witness …(intervenes). CHAIRPERSON: We have not started with Colonel Du Plooy previously? ADV WILLIAM NICHOLSON: No. We have not …(intervenes). 10 CHAIRPERSON: We have not started. A D V W I L L I A M N I C H O L S O N : C h a i r. CHAIRPERSON: O k a y. A l r i g h t . evidence will connect to? Do you want to just tell us what his Just so that everybody understands where w e a r e m o v i n g t o n o w. ADV WILLIAM NICHOLSON: I n d e e d C h a i r. C h a i r, t h e w i t n e s s I a m c a l l i n g i s P e t r u s J o h a n n e s D u P l o o y. H e i s a C o l o n e l i n t h e H a w k s . H e i s g o i n g t e s t i f y. H e i s t h e i n v e s t i g a t i n g o ff i c e r i n t h e I n t a k a m a t t e r s w h i c h i s – w h i c h h a d b e e n t e s t i f i e d a b o u t b y M r Tr e v o r W h i t e f r o m P w C . M r Tr e v o r W h i t e d e a l t w i t h t h e f a c t u a l i s s u e s . 20 The – Colonel Du Plooy is going to deal with the issues – will corroborate some of those issues and will also deal with the issues as he is interaction with the National Prosecuting Authority and how it came about that this matter was withdrawn. CHAIRPERSON: two contracts. M r W h i t e ’s e v i d e n c e r e l a t e d t o – i f I r e c a l l c o r r e c t l y Maybe more. One contract relating to the Department Page 111 of 157 26 FEBRUARY 2020 – DAY 219 which had as its political head at the time Mr Mabuyakhulu in KwaZulu-Natal and the Department of Health when it was – it had Ms Nkonyeni as its Political Head. Was it two contracts or was it – or those were two separate contracts and then there was the Amigo case? ADV WILLIAM NICHOLSON: There are two separate contracts and the A m i g o c a s e . T h a t i s c o r r e c t C h a i r. C H A I R P E R S O N : Tw o s e p a r a t e c o n t r a c t s p l u s t h e A m i g o c a s e ? A D V W I L L I A M N I C H O L S O N : T h a t i s c o r r e c t C h a i r. C O L O N E L D U P L O O Y : Ye s . O k a y. A l r i g h t . 10 CHAIRPERSON: And he will give evidence in regard all – to all three or only the two contracts or only the Amigo case? A D V W I L L I A M N I C H O L S O N : O n l y t h e A m i c o c a s e C h a i r. C H A I R P E R S O N : O h . O k a y. ADV WILLIAM NICHOLSON: The Intaka matters as well. The media h a d d u b b e d t h e A m i g o m a t t e r. C H A I R P E R S O N : J a . O k a y. A r e y o u r e a d y t h a t h e s h o u l d b e s w o r n i n ? ADV WILLIAM NICHOLSON: Let the witness be sworn in. C H A I R P E R S O N : Ye s . O k a y. A D V W I L L I A M N I C H O L S O N : W i t h l e a v e – w i t h t h e C h a i r ’s l e a v e . 20 C H A I R P E R S O N : O k a y. REGISTRAR: Please state your full names for the record. C O L O N E L D U P L O O Y : P e t r u s J o h a n n e s D u P l o o y. REGISTRAR: Do you have any objection to taking the prescribed oath? COLONEL DU PLOOY: No. I do not. REGISTRAR: Do you consider the oath to be binding on your Page 112 of 157 26 FEBRUARY 2020 – DAY 219 conscience? COLONEL DU PLOOY: I do. REGISTRAR: Do you swear that the evidence you give will be the truth, the whole truth and nothing else but the truth? If so please raise your right hand and say so help me God. COLONEL DU PLOOY: So help me God. ADV WILLIAM NICHOLSON: C h a i r, t h e w i t n e s s h a s p r e p a r e d a n a ff i d a v i t . T h e a ff i d a v i t i s m a r k e d E x h i b i t R R 5 . W i t h t h e C h a i r ’s l e a v e may the exhibit be handed in? 10 CHAIRPERSON: The rest of the documents in the lever arch file are t h e y s i m p l y a n n e x u r e s t o h i s a ff i d a v i t ? A D V W I L L I A M N I C H O L S O N : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: A r e t h e r e o t h e r a ff i d a v i t s o r s t a t e m e n t t h a t a r e n o t a n n e x u r e s t o h i s a ff i d a v i t i n t h e f i l e ? ADV WILLIAM NICHOLSON: T h e r e i s o n l y o n e a ff i d a v i t a n d t h i s C o l o n e l D u P l o o y ’s a ff i d a v i t i n t h e f i l e . CHAIRPERSON: O k a y. O k a y. C o l o n e l P e t r u s J o h a n n e s D u P l o o y ’s a ff i d a v i t a n d i t s a n n e x u r e s a r e a d m i t t e d a n d a r e m a r k e d a s E x h i b i t RR5. 20 A D V W I L L I A M N I C H O L S O N : I a m i n d e b t e d C h a i r. CHAIRPERSON: H’mm. ADV WILLIAM NICHOLSON: C o l o n e l D u P l o o y, h a v e a l o o k a t p a g e 1 of the documents in front of you. Can you identify that document? C O L O N E L D U P L O O Y : I d o . I t i s a s w o r n a ff i d a v i t f r o m m y s e l f . A D V W I L L I A M N I C H O L S O N : A n d d o e s t h a t a ff i d a v i t g o f r o m p a g e s 1 t o Page 113 of 157 26 FEBRUARY 2020 – DAY 219 10? COLONEL DU PLOOY: That is correct. ADV WILLIAM NICHOLSON: And the annexures thereafter to your a ff i d a v i t w h i c h i s p a r t o f y o u r a ff i d a v i t g o f r o m 11 t o 1 3 0 ? COLONEL DU PLOOY: That is correct. ADV WILLIAM NICHOLSON: If you have – if you look at the bottom right hand corner of each page. Are those your initials? C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. A D V W I L L I A M N I C H O L S O N : A n d a t p a g e 11 i s t h a t t h e C o m m i s s i o n e r 10 of Oath Certificate? C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. ADV WILLIAM NICHOLSON: Do you confirm the contents of the a ff i d a v i t a r e t r u e a n d c o r r e c t ? C O L O N E L D U P L O O Y : I d o C h a i r. CHAIRPERSON: Well at the bottom of each page there appears to be two people who initialled. Is it you and the Commissioner of Oaths? C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. C H A I R P E R S O N : Ye s . O k a y. ADV WILLIAM NICHOLSON: 20 And the Commissioner of Oaths or both you and the Commissioner of Oaths have initialled the annexures as well? C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. ADV WILLIAM NICHOLSON: Now Colonel Du Plooy where are you currently employed? COLONEL DU PLOOY: I am currently employed at Serious Corruption Page 114 of 157 26 FEBRUARY 2020 – DAY 219 Unit the DPCI Durban. ADV WILLIAM NICHOLSON: What is the DPCI? C H A I R P E R S O N : S o r r y. Yo u w i l l j u s t h a v e t o r a i s e y o u r v o i c e C o l o n e l . Maybe the mic also bring it closer – ja. Ja. COLONEL DU PLOOY: As I said I am currently employed DPCI D u r b a n . I t i s t h e D i r e c t o r a t e o f S e r i o u s O ff e n c e s . I a m c u r r e n t l y t h e Provincial Coordinator for the serious corruption cases. ADV WILLIAM NICHOLSON: What is the DPCI? COLONEL DU PLOOY: Directorate of Priority Crimes. 10 ADV WILLIAM NICHOLSON: And it is also known as the Hawks? C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. ADV WILLIAM NICHOLSON: How long have you been in the South African Police Services? COLONEL DU PLOOY: I have completed 36 years. ADV WILLIAM NICHOLSON: And can you take us through your career very briefly in the South African Police Services. COLONEL DU PLOOY: I joined the SAPS in December 1983. I have performed duties in the uniform section at Johannesburg – well in Johannesburg. I joined the Detectives in 1991. I lately became part of 20 t h e – w h a t w e c a l l t h e G o v e r n m e n t F r a u d Ta s k Te a m . T h a t w a s f o r m e d in 1995. T h e m a i n f u n c t i o n o f t h a t t a s k Te a m w a s t o l o o k a t Government fraud in KZN. It subsequent – I subsequently perform duties in Syndicate Fraud Unit Commercial Branch and then what we had is Anti-Corruption Ta s k Te a m o r i t i s a l s o k n o w n b y – a s t h e A C T T a n d c u r r e n t l y I a m i n Page 115 of 157 26 FEBRUARY 2020 – DAY 219 the Serious Corruption Investigation Unit. ADV WILLIAM NICHOLSON: Okay and what other qualifications do you have? COLONEL DU PLOOY: I have got a National Diploma and I have done v a r i o u s c o u r s e s i n C o m m e r c i a l L a w. ADV WILLIAM NICHOLSON: Currently the units where you are working what matters do you investigate? COLONEL DU PLOOY: We investigate matters that emanate from the PFMA, MFMA. We are looking at corruption, fraud, money laundering, 10 r a c k e t e e r i n g a t p r i v a t e s e c t o r a n d i n p u b l i c s e c t o r. ADV WILLIAM NICHOLSON: Okay and do you only work with policeman in these units? COLONEL DU PLOOY: No. We have what we call the multidisciplinary approach that have other stakeholders. Our stakeholders are like f o r e n s i c a u d i t o r s , N a t i o n a l Tr e a s u r y, t h e N PA , A s s e t F o r f e i t u r e t o n a m e some of them. ADV WILLIAM NICHOLSON: Colonel if we can look at paragraph 7 at p a g e 2 . Yo u r e f e r t o t h r e e p o l i c e C A S n u m b e r s . COLONEL DU PLOOY: That is correct. 20 ADV WILLIAM NICHOLSON: Do these CAS numbers refer to the Intaka matter? COLONEL DU PLOOY: That is correct. ADV WILLIAM NICHOLSON: And we have confirmed that you are the i n v e s t i g a t i n g o ff i c e r o f t h e s e m a t t e r s ? C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. T h e s e c a s e s a r e k n o w n Page 116 of 157 26 FEBRUARY 2020 – DAY 219 to me as – the main person being Dr Savoi or his company Intaka. So they all relate to each other in terms of Dr Savoi. ADV WILLIAM NICHOLSON: Okay and starting at paragraph 7.1 who is the complainant in that matter? COLONEL DU PLOOY: This case was registered after Dr Savoi himself came forward and gave information to the then Commercial Branch in 2009. ADV WILLIAM NICHOLSON: So we have the unusual situation where Dr Savoi is both the complainant and the suspect – and the accused? 10 COLONEL DU PLOOY: T h a t i s c o r r e c t C h a i r. At the time the Scorpions and the Commercial Branch in SAPS were not one unit. was before the disbandment of the Scorpions. It So what happened is D r S a v o i h a d r e p o r t e d t h e m a t t e r. W e t h e n r e g i s t e r e d t h e c a s e a n d w e started investigating. The Scorpions on their side having done a raid in N o r t h e r n C a p e a n d C a p e To w n w h e r e t h e y h a v e s e i z e d D r S a v o i ’s s t u ff . So when we merged Colonel Jones – that was the main person in the Scorpions dealing with that issue then become my C o m m a n d e r. A s a – h e i s a f u l l C o l o n e l . I w a s a L i e u t e n a n t - C o l o n e l . So – and he then named this investigation – we call it Crisscross. 20 A p o l o g y. C r i s s c r o s s a t t h e t i m e a l t h o u g h t h e p r e s s b r a n d e d t h i s w h o l e t h i n g a s t h e A m i g o ’s . So from 153-8 the initial case that Savoi reported we then had the other case as the investigation progressed and we had forensic a u d i t o r s o n B o a r d a t P r i c e w a t e r h o u s e o r M r Tr e v o r W h i t e t h a t a s s i s t e d us with those three investigations. Page 117 of 157 26 FEBRUARY 2020 – DAY 219 ADV WILLIAM NICHOLSON: O k a y. D i d M r Tr e v o r W h i t e a b o u t t h e s e three case numbers? C O L O N E L D U P L O O Y : Ye s h e d i d . A D V W I L L I A M N I C H O L S O N : A t p a r a g r a p h 11 a t p a g e 3 y o u m e n t i o n a m e m o f r o m t h e N PA . T h e m e m o i s a t p a g e 1 2 . C a n w e g o t h e r e ? COLONEL DU PLOOY: T h a t i s c o r r e c t C h a i r. This memo is a letter that Advocate Anton Steinberg – at some state he was the prosecutor in this matter before he went to The Hague. He was at that stage Deputy D i r e c t o r o f t h e N PA . S o h e p e r u s e d a n d h e w a s p a r t o f t h e O r g a n i s e d 10 Crime Division in Durban. So what happened is he perused the matter with Appelsbosch and Rietvlei. That is purification plants. PMB CAS 626/01/2010 to do with the water 10 million for the two hospitals and then after he perused the docket he then – it is sort of a decision that he made that we are going to proceed and then he wrote this letter to me. I then replied to this letter as well. In this letter he says in paragraph – I – if I just take you to paragraph 2. He said: “Having perused the above-mentioned docket. I am satisfied 20 that a prima faci case of fraud alternatively conspiracy to commit fraud has been made out in respect of the following individuals.” He then names seven individuals. Now the individuals there will be the Intaka portion of it and then the Department of Health O ff i c i a l s w i t h t h e H O D , D r N y e m b e z i o f t h e D e p a r t m e n t o f H e a l t h . At this stage we knew of the other issues in terms of the Oxy Intaka where Page 118 of 157 26 FEBRUARY 2020 – DAY 219 Professor Mbhele was involved. This was the first portion that was completed. So we were investigating it simultaneously in terms of that. So he is – basically was happy and he predicted at that stage that once this whole thing is done we will be able to do racketeering or r a c k e t e e r i n g p r o s e c u t i o n i n t e r m s o f t h e I n t a k a m a t t e r. A D V W I L L I A M N I C H O L S O N : O k a y. I f w e c a n j u s t g o t o t h e n e x t p a g e . It is the second paragraph from the top. If you can just read that out. COLONEL DU PLOOY: He said: 10 “As discussed at our previous meetings in connection with this project there appears to be a good prospect of charging most if not all of the above with racketeering, but this will be dependent upon the finalisation of investigation in respect of the remaining matters. In particular the DO – Department of Health Oxy Intaka matter and the K Z N D e p a r t m e n t o f L o c a l G o v e r n m e n t Tr a d i t i o n a l A ff a i r s a c q u i s i t i o n o f W a t a k a U n i t s . ” The Wataka is the water purification plants from Intaka. 20 So in there he mentioned the three cases, because he was aware of all three cases, but the first case that was ready was this 626 with the Appelsbosch and Rietvlei issues. ADV WILLIAM NICHOLSON: And he also alludes to a racketeering c h a r g e s h e e t a t t h e e n d o f t h e d a y. C O L O N E L D U P L O O Y : Ye s . T h a t a s w e l l . T h a t w a s h i s s u b p o e n a a n d Page 119 of 157 26 FEBRUARY 2020 – DAY 219 I think that is what we were work – walking – working towards. ADV WILLIAM NICHOLSON: O k a y. So you have mentioned that the author of these documents was Advocate Steinberg. At page 15, if you can just have a look at that. COLONEL DU PLOOY: That is correct. He was a Deputy Director of Public Prosecutions Organised Crime Division Durban. ADV WILLIAM NICHOLSON: And at page 12 what is the date of the memo? C O L O N E L D U P L O O Y : 1 7 J u n e 2 0 1 0 C h a i r. 10 ADV WILLIAM NICHOLSON: O k a y. Can you just briefly explain what was the purpose of this memo? COLONEL DU PLOOY: The purpose of this memo is basically to say we are ready to prosecute. I think after this memo they start drafting charge sheets in terms of – to place this matter on the roll and he then also sort of gave me …(intervenes). CHAIRPERSON: I a m s o r r y. I thought what you were looking at just n o w w a s a l e t t e r. N o w y o u t a l k a b o u t a m e m o . W h e r e i s t h e m e m o ? ADV WILLIAM NICHOLSON: The document he is referring to is a m e m o . I a p o l o g i s e C h a i r. 20 CHAIRPERSON: H’mm. ADV WILLIAM NICHOLSON: At page 12 is the memo. CHAIRPERSON: T h a t i s a l e t t e r. Not a memo. Not at least what I have got on page 12. A D V W I L L I A M N I C H O L S O N : T h a t i s c o r r e c t S i r. CHAIRPERSON: That is a letter written Advocate Steinberg Page 120 of 157 to 26 FEBRUARY 2020 – DAY 219 C o l o n e l D u P l o o y. ADV WILLIAM NICHOLSON: That is correct. I t i s a l e t t e r. I apologise. C H A I R P E R S O N : O k a y. I j u s t w a n t e d t o m a k e s u r e t h a t w e a r e t a l k i n g about the same document. It is a letter …(intervenes). ADV WILLIAM NICHOLSON: That is correct. CHAIRPERSON: As I see it there. It is written in the format of a letter a n d I d o n o t s e e a n y t h i n g t h a t s a y s m e m o . J a . O k a y. We are talking a b o u t t h e s a m e t h i n g , b u t i t i s a l e t t e r. 10 A D V W I L L I A M N I C H O L S O N : I n d e e d C h a i r. C H A I R P E R S O N : J a . O k a y. COLONEL DU PLOOY: T h a t i s c o r r e c t C h a i r. Advocate Steinberg wrote. It is a letter that He basically told me that I have to do certain things and he said he is basically ready to proceed with the Oxy I n t a k a ’s . P i e t e r m a r i t z b u r g C A S 6 2 6 . ADV WILLIAM NICHOLSON: Okay and he refers to project Crisscross. Where does that come from? COLONEL DU PLOOY: As I said. That is what Colonel Jones from the Scorpions that when we amalgamated. He called that Crisscross. 20 ADV WILLIAM NICHOLSON: Did you reply to this memorandum? COLONEL DU PLOOY: Chair I did reply to this memorandum. ADV WILLIAM NICHOLSON: And is that ...(intervenes)? C H A I R P E R S O N : To h i s l e t t e r. A D V W I L L I A M N I C H O L S O N : To t h i s l e t t e r. I a p o l o g i s e C h a i r. C O L O N E L D U P L O O Y : S o r r y C h a i r. To t h e l e t t e r C h a i r, s o r r y. Page 121 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: But this counsel is confusing you. C O L O N E L D U P L O O Y : Ye s . C H A I R P E R S O N : Yo u a r e n o t – y e s . ADV WILLIAM NICHOLSON: Did you reply to this letter and is the reply at page 70? COLONEL DU PLOOY: T h a t i s c o r r e c t C h a i r. I wrote a letter to Advocate Steinberg and also to my Provincial Commander at that stage Commercial Branch Brigadier Lategan and in this letter I basically i n f o r m e d h i m a n d t h e P r o v i n c i a l C o m m i s s i o n e r ’s O ff i c e o f t h e – g i v e 10 more detail and – about what this was about and also where I note the instructions that he had given me, because paragraph 6 of that letter I said I have taken note of your queries with regards to the following matters and then I mention if there – I also then for sake of that we h a v e r e c o r d – t h a t h e h a v e r e c o r d o f t h i s m a t t e r. If you go to paragraph 7. I have made an index in terms of what was the contents of the docket at this stage. hear what you are saying. So it was both I I w i l l d o – I w i l l c o m p l y, b u t f o r r e c o r d keeping this is what we are dealing with. When our investigations and reports were finalised the whole lot was then scanned when it came to 20 give further particulars to the defence. So it was like 250 000 pages. So for the sake of the – Advocate Steinberg I just mentioned what was in the case, because this i s P i e t e r m a r i t z b u r g C A S 6 2 6 c o n t e n t s . I f I c a n s a y. ADV WILLIAM NICHOLSON: At paragraph 12 at page 3 you mention cases from the Northern Cape. Can you just explain that very briefly? Page 122 of 157 26 FEBRUARY 2020 – DAY 219 COLONEL DU PLOOY: C h a i r, t h e N o r t h e r n C a p e – w h e n t h e e x h i b i t s were seized from Dr Savoi in Intaka and we looked at it. We realised t h a t t h e O x y I n t a k a ’s a n d W a t a k a i s s u e w a s a l s o p e r t a i n i n g t o t h e Northern Cape. They have a similar problem to us, but we only had one set of documents to work with. So we call it the Northern Cape leg and a KZN leg and so w h e n M r Tr e v o r W h i t e r e p a i r e d – p r e p a r e d h i s r e p o r t s g o t f i v e r e p o r t s and I think they have got four reports and I think he did nine reports all together for both provinces. 10 When Asset Forfeiture was done it was done for both of these provinces as well, because they could only take his money once. So that is where the Northern Cape play the important role in us and also the exhibits that or the evidence that we are going to use in KZN will also then have to be used in the Northern Cape. ADV WILLIAM NICHOLSON: If you go to paragraph 13 you mention five forensic reports by PwC, PricewaterhouseCoopers. COLONEL DU PLOOY: T h a t i s c o r r e c t C h a i r. Just to mention it is a b o u t 3 5 0 l e v e r a r c h f i l e s t h a t t h a t w e b r o u g h t f r o m C a p e To w n . For KZN Mr White prepared five forensic audit reports. Now if you look at 20 paragraph 13.1 Pietermaritzburg CAS 151 is to do with the Oxy Intaka or the self-generating oxygen plants. Pietermaritzburg CAS 626 have the water purification plants for Department of Health and Durban Central CAS 153-8 had to do with the water purification for Local G o v e r n m e n t a n d Tr a d i t i o n a l A ff a i r s . Then there was a report prepared Page 123 of 157 specifically for 26 FEBRUARY 2020 – DAY 219 Ms Peggy Nkonyeni and that is why the case reference number is the same, because Oxy Intaka is 151, but is the supplementary report in t e r m s o f h e r. I f y o u g o t o p a r a g r a p h 1 3 . 5 P i e t e r m a r i t z b u r g C A S 1 5 1 i s again and that is to do with Professor Green-Thompson. It was also at some stage the Head of Department of Health …(intervenes). CHAIRPERSON: Hang on. COLONEL DU PLOOY: In KZN and is also a ...(intervenes). CHAIRPERSON: Hang on. Hang on. I am not sure where that is. I w a s t h i n k i n g y o u a r e s t i l l t a l k i n g a b o u t C o l o n e l D u P l o o y ’s r e s p o n s e , 10 but it does not have paragraph 13. ADV WILLIAM NICHOLSON: That is it. CHAIRPERSON: So it cannot be that response. ADV WILLIAM NICHOLSON: It is at page 3 paragraph 13 of the C o l o n e l ’s a ff i d a v i t . CHAIRPERSON: Page 3? ADV WILLIAM NICHOLSON: Page 3 paragraph 13. C H A I R P E R S O N : T h a t i s i n h i s a ff i d a v i t ? ADV WILLIAM NICHOLSON: That is correct. C H A I R P E R S O N : O h . W e m o v e d f r o m t h e l e t t e r. O k a y. A l r i g h t . O k a y. 20 Continue. COLONEL DU PLOOY: So Chair there was in total five forensic reports, but it is pertaining to three case numbers. reports. So in total five Tw o o f t h o s e r e p o r t s a r e s u p p l e m e n t a r y r e p o r t s t h a t w a s r e q u e s t e d b y t h e N PA . ADV WILLIAM NICHOLSON: If we go now to paragraphs 14 and 15 of Page 124 of 157 26 FEBRUARY 2020 – DAY 219 y o u r a ff i d a v i t a t p a g e 4 . W h o w a s t h e l e a d p r o s e c u t o r ? COLONEL DU PLOOY: left to The Hague. The lead prosecutor after Advocate Steinberg It became Advocate Nledile Dunywa. He worked f r o m t h e D P P ’s O ff i c e i n P i e t e r m a r i t z b u r g . ADV WILLIAM NICHOLSON: H’mm. COLONEL DU PLOOY: He reported to the – at that stage the Acting DPP Advocate Simphiwe Mlotshwa. ADV WILLIAM NICHOLSON: Now you make the point that Advocate Mlotshwa was very hands on. Why do you say so? 10 COLONEL DU PLOOY: This is quite …(intervenes). C H A I R P E R S O N : I a m s o r r y. W a s w h a t ? ADV W ILLIAM NICHOLSON: Was very hands on. CHAIRPERSON: Well let him give the evidence. Ja. Te l l u s a b o u t Advocate Mlotshwa as Acting DPP in terms of matters that he had to deal with. COLONEL DU PLOOY: C h a i r, A d v o c a t e M l o t s h w a h a d – I u s e t h e w o r d s h a n d s o n , b e c a u s e h e p l a y e d a b i g r o l e i n t h i s m a t t e r. For instance he was part of the meetings. He knew what was the evidence about. 20 Although the lead prosecutor is Advocate Dunywa. Advocate Mlotshwa was on par what is happening and he signed all the warrants of arrest. When I arrested all the people to appear in his court. It is his s i g n a t u r e a n d n o t A d v o c a t e D u n y w a ’s s i g n a t u r e . So he is the most senior at that stage in KZN to sign those warrants. So he was happy that everything was in order when he signed this. Page 125 of 157 26 FEBRUARY 2020 – DAY 219 C H A I R P E R S O N : O k a y. Yo u m a y c o n t i n u e . A D V W I L L I A M N I C H O L S O N : A t p a r a g r a p h s 1 6 a n d 1 7 o f y o u r a ff i d a v i t at page 4 you speak of arrest. Eight suspects were arrested including Savoi. COLONEL DU PLOOY: T h a t i s c o r r e c t C h a i r. On the 25th of August that was when – they initially were arrested for fraud and the first appearance was for that and then later on the racketeering indictment and certificates were done. That was signed by Advocate Simelane. T h e N D P P. 10 ADV WILLIAM NICHOLSON: And who signed the warrants of arrest? C O L O N E L D U P L O O Y : I t w a s A d v o c a t e M l o t s h w a . T h e A c t i n g D P P. ADV WILLIAM NICHOLSON: Now if we go to paragraphs 18 and 19 of y o u r a ff i d a v i t w h i c h i s a t p a g e 4 o f t h e b u n d l e . C O L O N E L D U P L O O Y : Ye s . ADV W ILLIAM NICHOLSON: Was there a draft charge sheet? C O L O N E L D U P L O O Y : Ye s . I f y o u l o o k a t m y A n n e x u r e P D P 3 . W h a t the prosecutors have done. There was not a racketeering charge sheet, but when they placed these matters on the role. They drafted a charge sheet for these two individuals specifically and they would then 20 forward it to us to see whether it is in line with what the evidence is. Now if you go to Annexure PDP3. A D V W I L L I A M N I C H O L S O N : T h a t i s a t p a g e 2 4 o f t h e b u n d l e C h a i r. COLONEL DU PLOOY: I have received this and I have saved this on m y c o m p u t e r. I h a v e w r i t t e n w i t h p e n o n t o p i n 2 0 11 / 0 7 / 0 4 . ADV WILLIAM NICHOLSON: If we can just …(intervenes). Page 126 of 157 26 FEBRUARY 2020 – DAY 219 COLONEL DU PLOOY: Ye s . This is a draft charge sheet that I received …(intervenes). A D V W I L L I A M N I C H O L S O N : O k a y. C o n t i n u e . COLONEL DU PLOOY: And in this is the draft sheet for this matter where it is written by Peggy Nkonyeni would then be placed on the role w h i c h w o u l d t h e n l a t e r b e c o n v e r t e d i n t o a r a c k e t e e r i n g m a t t e r. The charge sheet itself explains what the allegations against the two accused is. A D V W I L L I A M N I C H O L S O N : A t p a r a g r a p h 2 0 o f y o u r a ff i d a v i t w h i c h i s 10 page 4 you refer to a racketeering certificate. C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. I j u s t w a n t t o p o i n t o u t t h e r e i s t y p i n g e r r o r. A d v o c a t e S i m e l a n e w a s t h e N D P P. He was not t h e D P P. T h e r e s h o u l d b e a n N b e f o r e t h e D . A d v o c a t e D u n y w a w o u l d have – and I supposed Advocate Mlotshwa would have made presentations to the NDPP whereas he responds listening to them issued the racketeering certificate and also approved the indictment for racketeering charges. ADV WILLIAM NICHOLSON: Let us go to page 40 of the bundle which i s A n n e x u r e P D P 4 o f y o u r a ff i d a v i t . 20 COLONEL DU PLOOY: C h a i r, t h i s i s t h e r a c k e t e e r i n g c e r t i f i c a t e t h a t was signed on the 31st of July by Advocate Menzi Simelane and in this he agreed to prosecute 23 or 23 suspects. If I can call it and it is listed here in terms of Section 2(4) of the Prevention of Organised Crime Act. ADV WILLIAM NICHOLSON: Are there certificates at pages 40 and Page 127 of 157 26 FEBRUARY 2020 – DAY 219 41? COLONEL DU PLOOY: That is correct. It is two pages. ADV WILLIAM NICHOLSON: And if you can just confirm at page 41 who signed the racketeering certificate? COLONEL DU PLOOY: It is Advocate Menzi Simelane the National – at that stage the National Director Public Prosecutions. ADV WILLIAM NICHOLSON: Now in your evidence so far you have stated that no less than three Senior Prosecutors were of the view that the evidence suggested racketeering. Is that correct? 10 COLONEL DU PLOOY: That is correct. ADV WILLIAM NICHOLSON: And these are Advocate Steinberg, Advocate Simelane and Advocate Dunywa. COLONEL DU PLOOY: That is correct, but I believe Advocate Mlotshwa also as Acting DPP in KZN also believed the same. A D V W I L L I A M N I C H O L S O N : O k a y. I f w e g o t o p a r a g r a p h s 2 3 a n d 2 4 o f y o u r a ff i d a v i t w h i c h i s a t p a g e 5 o f t h e b u n d l e . Yo u s t a t e : “The matter was transferred to the High Court.” CHAIRPERSON: Mr Nicholson. I would like his evidence to flow from him and for him to only look at the statement if he needs to refresh his 20 m e m o r y. That is what I would like. I would like him to, because he probably knows the – what he deals with here. He has had this for q u i t e s o m e t i m e o n d i ff e r e n t t o p i c s . I k n o w w e s a y y o u l e a d h i m , b u t I would like him to give his evidence in a way that shows that he only l o o k s a t t h e d o c u m e n t s w h e n h e n e e d s t o r e f r e s h h i s m e m o r y, b u t otherwise he can deal with the issues. Do you want to try that? So Page 128 of 157 26 FEBRUARY 2020 – DAY 219 A D V W I L L I A M N I C H O L S O N : T h a n k y o u C h a i r. CHAIRPERSON: So maybe not so much drawing his attention to any paragraph before he can talk about it, because there would be certain events he got involved. Started some investigation. There was Mr White. At a certain stage he dealt with Mr Dunywa and Mr Mlotshwa over a certain period. This is what happened, after that this is what happened so that the evidence as it unfolds is seen as coming from him r a t h e r t h a n j u s t f o l l o w i n g t h e a ff i d a v i t . ADV WILLIAM NICHOLSON: 10 I n d e e d C h a i r, I s h a l l t r y. W h a t b e c a m e of the circuits hearing indictment or the certificate? COLONEL DU PLOOY: Sorry I didn’t follow? ADV WILLIAM NICHOLSON: Do you know what became of the circuits hearing certificate? COLONEL DU PLOOY: It would be part of the High Court bundle of documents together with the indictment that goes with the certificate. ADV WILLIAM NICHOLSON: Let me rephrase that, was the suspects or the accused ever indicted for ...(intervenes). C O L O N E L D U P L O O Y : Ye s t h e y a p p e a r e d , w e h a v e J u d g e M c L a r e n a retired Judge. 20 C h a i r t h i s i s n o t a s i m p l e c a s e , t h i s i s n o t – i t ’s a complicated case like Mr White have testified it took him three days on a high level to explain to you, more or less what just the KZN issue is. T h e N PA t h e n t h o u g h t , w e c a n ’ t g o t o a n o r m a l H i g h C o u r t a n d t h a t J u d g e t h e r e h a v e o t h e r w o r k s o l e t ’s g e t t h e s e p a r a t e C o u r t w i t h a retired Judge. He was then appointed – Judge McLaren was appointed and we got him to do the trial in a period of three months so it was Page 129 of 157 26 FEBRUARY 2020 – DAY 219 quite a voluminous tedious thing that we had to do. The accused then ...(intervenes). CHAIRPERSON: Well I don’t want what you say to be understood in a manner which you probably don’t mean. The fact that the case was going to be heard over a long period doesn’t necessarily speak to its c o m p l e x i t y, i t m i g h t s p e a k t o t h e f a c t t h a t t h e r e a r e m a n y w i t n e s s e s which need – who need to be called and there may be a lot of documentation because a case can be complex even if it takes two days. So getting Judge McLaren, who I think was probably retired by 10 then would have been more for the fact that the case required a Judge who was not going to be involved in other cases for the duration of that case and a retired Judge would therefore be more suitable because he would have the time. COLONEL DU PLOOY: Ye s , C h a i r, m a y b e t o j u s t s a y i t i n a d i ff e r e n t w a y, i f y o u l o o k a t r a c k e t e e r i n g c h a r g e s a n d y o u h a v e a t r i a l , y o u d o n ’ t want to have a week now and a week six months later because racketeering in its own right is not a simple thing and it was a time issue to do with how many witnesses were going to be lead, how many d o c u m e n t s t o b e h a n d e d i n b u t t h e c a s e w a s d i ff e r e n t i n t h e s e n s e t h a t 20 it wasn’t a simple case. CHAIRPERSON: Ye s n o , n o b u t w h a t I m e a n i s , y o u d o n ’ t s u g g e s t o r do you suggest that those Judges that are not retired could not handle because it was complicated? COLONEL DU PLOOY: Any Judge would ...(intervenes). Page 130 of 157 26 FEBRUARY 2020 – DAY 219 CHAIRPERSON: T h a t ’s n o t w h a t y o u h e a r, w h a t y o u m e a n i s i t n e e d e d a Judge who had time. COLONEL DU PLOOY: CHAIRPERSON: T h a t ’s c o r r e c t . J a a n d a r e t i r e d J u d g e w o u l d h a v e t i m e , o k a y. COLONEL DU PLOOY: T h a t ’s c o r r e c t C h a i r a n d w h a t h a p p e n e d i s , the accused all appeared in the – we took the case from the Pietermaritzburg Regional Court and then they decide that Durban is going to be the best place to have it, so the High Court in Durban was used. They appeared on the racketeering charges and it was remanded 10 for various time but at the time when the withdrawals was made in this case, it was in High Court, in front of the Judge in terms of the racketeering charges that was put to the accused. The – it took a while t o d o t h i s i n v e s t i g a t i o n , C h a i r a s I s a y i t ’s a l o t o f d o c u m e n t s , N a t i o n a l Tr e a s u r y f o r t h e i r t i m e , i n o r d e r t o a s s i s t u s , t h e y s p e n t o f R 1 0 0 0 0 0 get professional people that scanned all the evidence, the reports, the docket. So that is – and in my statement, paragraph 25, they typed 2500 pages which is actually 250 000 pages so it wouldn’t have been possible to make 23 sets of all of this. So it was scanned, National Tr e a s u r y p a i d f o r i t a n d w e o n l y g a v e t h e a c c u s e d a l e g a l d i s k t o s a y, 20 t h e r e ’s t h e c a s e . S o i t h a d i t s b e n e f i t s f o r u s a n d t h e n a l s o w e d o n ’ t have to carry all those boxes around whenever we had a meeting to discuss something. At – I just want to – during March 2012, we then received an invite to attend, now at that stage as far as I’m concerned the investigation was complete we should prepare for trial. Page 131 of 157 So in 2012 26 FEBRUARY 2020 – DAY 219 Advocate Dunywa then sent us an invite and if I can just refer you to PDP6 – Annexure PDP6 ...(intervenes). ADV WILLIAM NICHOLSON: T h a t ’s a t p a g e 1 2 7 o n t h e C h a i r ’s bundle. CHAIRPERSON: Ye s , 1 2 7 ? ADV WILLIAM NICHOLSON: CHAIRPERSON: 127. O k a y. COLONEL DU PLOOY: A Chair we were invited to a meeting, if you l o o k a t t h e i n v i t e , i t ’s a n e - m a i l t h a t w a s f o r w a r d e d t o m y s e l f , Tr e v o r 10 White, Colonel Jones and then Advocate Malodgwa was cc’d. Advocate Dunywa was the author of this e-mail and he invited us to a meeting t h a t w a s t o b e h e l d o n t h e 2 3 r d o f M a r c h 2 0 1 2 , 2 0 t h F l o o r, S o u t h e r n L i f e B u i l d i n g , t h a t ’s t h e N PA’s b u i l d i n g i n D u r b a n a n d h e s a y s : “Which will be attended by the National Head of SSCU a n d t h e N a t i o n a l H e a d o f O r g a n i s e d C r i m e o f t h e N PA . ” At that stage the National Head of the SSCU was Advocate Mrwebi and Advocate Mosing was the Head of Organised Crime. They – we looked at the invite and they request me to do something and I r e q u e s t , M r Tr e v o r W h i t e , o u r F o r e n s i c A u d i t o r t o p r e p a r e d o c u m e n t s . 20 We didn’t really know what this meeting was going to be about, I would s a y, w e d i d n ’ t g o p r o p e r l y p r e p a r e d t o t h e m e e t i n g i n a s e n s e t h a t w e knew exactly what was going to be discussed. So in this meeting they r e q u e s t e d m e t o m a k e a s u m m a r y o f i n v e s t i g a t i n g d i a r y, a l i s t o f e x h i b i t s t h a t w a s h a n d e d i n f r o m d i ff e r e n t G o v e r n m e n t D e p a r t m e n t s a n d chain statements. C h a i r r e m e m b e r, a t t h i s s t a g e t h e y a l r e a d y h a v e Page 132 of 157 26 FEBRUARY 2020 – DAY 219 everything, the whole docket was scanned, so it – there was nothing I c a n t a k e t o m a k e t h e m w i s e r, t h e y a l r e a d y h a v e i t . The Forensic A u d i t o r, M r W h i t e , w o u l d t h e n – h a d t o d o t h e f l o w o f f u n d s f o r M b e z i Rowmoor Analysis, Intaka flow of funds, those things are already in the report you don’t have to ask for it separately if you can go and read it yourself ...(intervenes). ADV WILLIAM NICHOLSON: If I may just ask, at the point of this meeting, were the five forensic reports that you have testified about, were they already completed? 10 COLONEL DU PLOOY: Ye s t h a t ’s c o r r e c t C h a i r. ADV WILLIAM NICHOLSON: COLONEL DU PLOOY: Continue. If you – and Chair what is – which I can’t understand about this e-mail if you look at point 3 which doesn’t make sense to me, it says: “Colonel Jones to submit a report on a mammogram case indicating, amongst other things why the case was withdrawn and a complete docket.” N o w C h a i r, j u s t t o e n l i g h t e n y o u , t h i s w a s t h e c a s e a g a i n s t M s P e g g y N k o n y e n i a n d M k w a n a z i w h i c h a l s o n o w a p p e a r i n m y m a t t e r. 20 There was a Maritzburg Department of Health to do with a mammogram m a c h i n e , A d v o c a t e H e i n v a n d e r M e r w e w a s t h e p r o s e c u t o r, C o l o n e l J o n e s w a s t h e i n v e s t i g a t i n g o ff i c e r, I t h i n k i t w a s s t i l l i n t h e d a y s o f t h e Scorpions. Why they want to see this docket which has got nothing w i t h I n t a k a , I d o n ’ t k n o w. On the day itself, we did not discuss point n u m b e r 3 , I d o n ’ t k n o w w h y A d v o c a t e D u n y w a p u t t h i s i n t h e l e t t e r, i t Page 133 of 157 26 FEBRUARY 2020 – DAY 219 doesn’t make sense, him being my prosecutor it doesn’t make sense. I’m not sure if he was told to put it there, I don’t know but as far as I know that all the above-mentioned items Advocate Dunywa had full knowledge of it, he had it on a disk. It was available for anybody to look at it. CHAIRPERSON: Would this be an indication, maybe that he might not h a v e r e a d c e r t a i n t h i n g s t h a t h a d b e e n f u r n i s h e d t o h i m o r t o h i s o ff i c e ? COLONEL DU PLOOY: N o C h a i r, y o u c a n ’ t m a k e – k n o w i n g h o w w e did the investigation, Advocate Dunywa had one case it was Intaka, he 10 w a s g i v e n a n o ff i c e i n D u r b a n a n d h e o n l y h a d t o d o t h i s a s f a r a s I k n o w, I o n l y d e a l t w i t h h i m a n d t h i s w a s d a y - t o - d a y, t h i s w a s n ’ t l i k e , I ’ l l see you next week or next month, this was day-to-day and he was not t h e o n l y p r o s e c u t o r, h e h a d a t e a m o f p r o s e c u t o r s . T h e r e w a s n o w a y that Advocate Dunywa will send me this letter and then me thinking he didn’t know what the contents of the case is, I can never come to that conclusion. CHAIRPERSON: Had the discussions that you had, had with him prior to him sending you this e-mail, had those discussions included discussions with him of some of the things that I was asking you for or 20 t h a t h e w a s a s k i n g M r W h i t e f o r, s o t h a t y o u s a y t h a t , I k n o w f o r s u r e that he had – he was aware that such and such a report was already w i t h t h e N PA b e c a u s e w e d i d d i s c u s s i t , i s i t t h a t k i n d o f s i t u a t i o n o r i s it not that situation? COLONEL DU PLOOY: person can’t say Chair you can’t say that Advocate – or a that Advocate Dunywa Page 134 of 157 d i d n ’ t k n o w, y o u must 26 FEBRUARY 2020 – DAY 219 r e m e m b e r t h e r e ’s a r a c k e t e e r i n g c e r t i f i c a t e , t h e r e w a s r e p r e s e n t a t i o n s t o t h e N D P P, y o u d o n ’ t j u s t g e t a c e r t i f i c a t e i t ’s q u i t e a t e d i o u s j o b . Advocate Dunywa, in order to draft an indictment, he had to know the contents or the merits of the case, he had to know the facts, he would have confirmed with us, but he had to know the case inside out. That, I k n o w i t ’s q u i t e d i ff i c u l t t o g e t a r a c k e t e e r i n g c e r t i f i c a t e b e c a u s e t h e y make – they went more than once to Pretoria to make a proposal to Advocate Simolani. CHAIRPERSON: 10 So you just can’t understand why he was asking for these things from you and Mr White? COLONEL DU PLOOY: But besides the point if you look at the h e a d i n g i t s a y, h e i n f o r m s u s w h o ’s g o i n g t o a t t e n d t o t h i s , n o w t h e r e ’s role players that had nothing to do with. Advocate Dunywa works under Advocate Malodgwa , DDP – acting DDP at KZN, Advocate Lawrence Mrwebi is a commercial crime ...(intervenes). CHAIRPERSON: National. COLONEL DU PLOOY: Ja but National – but Commercial Crime Head, Advocate Mosing, Organised Crime Head, it had nothing to do with my c a s e a n d t h a t i s w h y I d i d n ’ t r e a l l y u n d e r s t a n d w h a t ’s h a p p e n i n g n o w, 20 what are we going to do this for because I found it strange that Mbhele would send me an e-mail like this and then I had to bring these things, so I don’t know where he got this from, whether he got told I’ve got no idea, Chair we’ll have to ask him about that. CHAIRPERSON: And you never – you have never had the chance to hear from him, why he asked for these things? Page 135 of 157 26 FEBRUARY 2020 – DAY 219 COLONEL DU PLOOY: Chair I never – because the meeting that took place if – maybe if I continue you will understand then I made up my own mind what is the reason for this. CHAIRPERSON: J a f r o m M r W h i t e ’s e v i d e n c e I t h i n k I k n o w h o w t h e meeting was handled and the pressure to – the restriction what you could talk about. COLONEL DU PLOOY: That is correct Chair but the thing is that we attended this meeting Chaired by Advocate Mrwebi on the 23rd of March 2012, in my statement I mention who was present. Now if you look at 10 A d v o c a t e D u n y w a , Ve m a n i , A d v o c a t e M a k o s i M t h e m b u a n d t h e r e w a s another Advocate, I can’t remember him, but another person present. M y s e l f C o l o n e l J o n e s a n d t h e n M r Tr e v o r W h i t e a n d t h e n t h e r e w e r e t h e two Advocates, Mosing and Lawrence Mrwebi. They came through the door there was a problem – it was very hot that day and they couldn’t find either the aircon was not working or they couldn’t find a room where we were going to sit and discuss. N o w a t t h a t s t a g e w e d i d n ’ t k n o w w h a t ’s g o i n g o n . T h e y c a m e t h e y s i t d o w n i t ’s t h e f i r s t t i m e I m e t t h e s e p e o p l e I d i d n ’ t w o r k i n t h e S c o r p i o n s I d i d n ’ t k n o w w h o i s L a w r e n c e , A d v o c a t e M r w e b i o r w h o e v e r. 20 He introduced himself to us, he said hello, he said that – at some stage he said I’m withdrawing against Mr Mike Khulu what evidence we have against Peggy Nkonyeni. He put it straight to the point, not like the invite, the invite they didn’t speak of that in the way that it happened in that meeting. I just want to maybe explain to you Chair that I was also p a r t o f t h e c o m m e r c i a l s e t u p , t h e c o m m e r c i a l N PA a n d i n v e s t i g a t i n g Page 136 of 157 26 FEBRUARY 2020 – DAY 219 o ff i c e r s i s w h a t w e c a l l , p r o s e c u t o r g u i d e d . I t ’s a c l o s e r e l a t i o n s h i p i n terms of – we have our own Court, we have special – we have our own C o m m e r c i a l C r i m e s C o u r t s i t ’s m u c h m o r e h a n d s - o n , m u c h m o r e p e r s o n a l r e l a t i o n s h i p t h a t y o u ’ l l n o r m a l l y h a v e w i t h a p r o s e c u t o r. T h e y a e m o r e i n v o l v e d , t h e y k n o w w h a t w e a r e d o i n g a n d t h e y – i t ’s a b e t t e r way of dealing with cases because the cases get more attention, that was the whole purpose of this Commercial Court. This meeting – so if I go to a meeting that was chaired by a prosecutor at the SSCU, its – everybody interacts, everybody will have 10 a say and then eventually there will be a conclusion and what is the way forward. This meeting didn’t – this was like, I ask you questions, you tell me what, the prosecutors came in they sat on my left I sat next t o t h e m , t h e y k e p t q u i e t , w h e t h e r i t ’s b y i n s t r u c t i o n o r n o t t h e q u e s t i o n s w a s d i r e c t e d t o m e b e c a u s e I ’ m t h e i n v e s t i g a t i n g o ff i c e r, M r W h i t e w a s sitting across the table and I was trying to explain – now I just want to go one step back, in racketeering the prosecutors have, as I see it, how they’re going to approach this matter in Court, they have their own s t r a t e g y t h e r e ’s c e r t a i n t h i n g s t h e y w a n t t h e C o u r t t o d r a w i n f e r e n c e on, so they have their own – racketeering in itself has its own benefit in 20 terms of prosecution. I can’t say I’m a layman but I’m not a specialist in the charges, t h i s w a s i n 2 0 11 a n d 2 0 1 2 s o i t ’s a w h i l e a g o a n d w h a t h a p p e n e d i s , w e did not have the same interaction. The prosecutors kept quiet, we got answered, when Mr Mrwebi – he wasn’t happy with our answers, I also sort of got a little bit uptight because this meeting wasn’t going well in Page 137 of 157 26 FEBRUARY 2020 – DAY 219 terms of my view and at a point Mr White said to him, you have to give me ample time so I can prepare and then I can come and present it over three days, give me three days I’ll present the reports to you, you can then go through it and we can satisfy your questions that you have but in the way that this meeting took place it wasn’t – I at one stage s a i d t o t h e m , y o u a s t h e N PA i t ’s y o u r j o b t o m a k e t h e d e c i s i o n , m a k e the decision, I’m not going to be a party to what you’re saying here because my prosecutors are keeping dead quiet they’re not interacting, which is unusual for me. I said, please notify the DPCI and myself in writing what you 10 want to do. Up till today I don’t know what is the reasons for the withdrawal, I don’t know why they came there what was the reasons, t h e N PA c a n a n s w e r t h a t b e t t e r I d o n ’ t k n o w t h a t . I told Advocate Mrwebi, maybe not correctly but I told him, you are just here to tick a box, they used those words consultation. If you consult with the police i t ’s f i n e t h e n e v e r y b o d y i s h a p p y. CHAIRPERSON: But you are articulating what you were feeling about t h i s w h o l e m a t t e r. COLONEL DU PLOOY: 20 I w r o t e a l e t t e r t o m y H e a d , G e n e r a l M o o d l e y, well is now General he was Brigadier it could be Moodley in charge of t h e A n t i C o r r u p t i o n Ta s k Te a m a n d I k n e w I h a d t o e x p l a i n t o G e n e r a l D r a m a t ’s o ff i c e a s t o w h y t h e s e t h i n g s t o o k p l a c e . E v e r y b o d y i s u n d e r the impression t h e r e ’s this racketeering case and now t h e r e ’s withdrawals all of a sudden but at a stage the withdrawal didn’t take place the next week or the week thereafter it took some months before Page 138 of 157 26 FEBRUARY 2020 – DAY 219 it happened. This was a consultation in order – whether we have to persuade them or change their minds, whether they had meeting with t h e p r o s e c u t o r s b e f o r e t h e y c a m e i n t o t h a t r o o m , I d o n ’ t k n o w. He didn’t discuss any evidence about Mr Mike Khulu, only about Peggy Nkonyeni. Chair so ...(intervenes). CHAIRPERSON: Okay yes, Mr Nicholson you might be feeling left out r i g h t n o w, y o u c a n c o n t i n u e t o l e a d h i s e v i d e n c e j a . ADV WILLIAM NICHOLSON: I n d e e d C h a i r, C o l o n e l d u P l o o y y o u mentioned that at the commencement of the meeting Advocate Mrwebi 10 s t a t e d t h a t h e ’s w i t h d r a w i n g a g a i n s t M r M a b u y a k h u l u a n d h e w a n t s t o hear about miss – the evidence against Ms Nkonyeni, were these charges ever withdrawn? COLONEL DU PLOOY: The charges were withdrawn against the two accused there were other accused as well that the charges were withdrawn in High Court. ADV WILLIAM NICHOLSON: The other accused do you have their names? CHAIRPERSON: But before we get to the point where they are withdrawn, Colonel du Plooy are you done telling me what occurred at 20 that meeting what was the – how did that meeting end? COLONEL DU PLOOY: Chair maybe I must refer you to PDP7 I’m n o t s u r e , i t ’s p a g e 1 2 9 , I w r o t e t h i s l e t t e r i n 2 0 1 2 , 2 1 s t o f A u g u s t t o Brigadier Moodley then, this letter basically explains ...(intervenes). CHAIRPERSON: I t ’s a d d r e s s e d t o t h e N a t i o n a l C o o r d i n a t o r. COLONEL DU PLOOY: N a t i o n a l C o o r d i n a t o r, t h e A C T T s t a n d s f o r – i t Page 139 of 157 26 FEBRUARY 2020 – DAY 219 w a s t h e A n t i C o r r u p t i o n Ta s k Te a m t h a t t h e P r e s i d e n t p u t i n p l a c e i n order to address Government fraud and corruption. CHAIRPERSON: O k a y. COLONEL DU PLOOY: So Brigadier Moodley was the Head of that, he w a s t h e B r i g a d i e r, h e ’s n o w a G e n e r a l t o d a y b u t h e w a s t h e h e a d o f that. CHAIRPERSON: O k a y. COLONEL DU PLOOY: So we had to inform him that we had this m e e t i n g , s o h e ’s n o t s u r p r i s e d b y – i f h e r e a d s i n t h e n e w s p a p e r t h e r e ’s 10 these withdrawals. So what happened is Advocate Mrwebi told us what h e ’s g o i n g t o d o , I d i d n ’ t k n o w – I k n e w w h a t h e w a s g o i n g t o d o a b o u t Mr Mabuyakhulu but he didn’t make up his mind or didn’t tell us what h e ’s g o i n g t o d o w i t h M s P e g g y N k o n y e n i a t t h a t m e e t i n g , s o w e l e f t . I then wrote this letter because on the 16th of August 2012 the press t h e n p h o n e d m e , I t h i n k t h e – i t w a s t h e M e r c u r y, i f I r e a d m y o w n paragraph one, of my letter and they are saying that there is going to be this withdrawal so they’ve got a letter or they got a letter from the accused they knew there was going to be a withdrawal. I said I don’t k n o w b e c a u s e w e w e r e n e v e r f o r m a l l y i n f o r m e d t h a t t h e r e ’s g o i n g t o b e 20 a withdrawal and on the – I’m just looking for a date. ADV WILLIAM NICHOLSON: If we can just look at page 129 the first paragraph, you say – if you’re going to see that paragraph. COLONEL DU PLOOY: Sorry which paragraph are you referring to? ADV WILLIAM NICHOLSON: COLONEL DU PLOOY: Paragraph 1 on page 129. Ye s , t h i s i s o n t h e 1 6 t h o f A u g u s t w h e r e t h e Page 140 of 157 26 FEBRUARY 2020 – DAY 219 press are now asking us questions about the withdrawal against certain accused and they apparently have letters that were signed by the Acting Director of Public Prosecutions, I think at that stage it was the D i r e c t o r, I t h i n k A d v o c a t e N o k o w a s a p p o i n t e d a f t e r A d v o c a t e – I t h i n k t h i s m i g h t h a v e b e e n , t h e w o r d A c t i n g , s h o u l d n o t b e – I t h i n k i t ’s Advocate Noko because Advocate Noko signed letters that was to the accused where it says intention of withdrawal. In other words, the accused knew that the cases against them were going to be withdrawn before myself. 10 I’ve actually asked – when I found out about this I a s k e d A d v o c a t e D u n y w a t h e p r o s e c u t o r, h e s a i d h e ’s n o t a w a r e o f t h i s , h e d o e s n ’ t k n o w a b o u t t h i s w i t h d r a w a l , h e ’s s a y i n g h e w a s n ’ t i n f o r m e d , s o I t a k e h i s w o r d f o r t h a t . T h e N PA a l s o r e l e a s e d – i n p a r a g r a p h t w o , t h e N PA a l s o h a d a p r e s s r e l e a s e t h e f o l l o w i n g d a y w h e r e t h e y ’ r e indicating that these charges are going to be withdrawn and then paragraph three I talk about who it is going to be withdrawn against which then took place. Subsequently then the withdrawal took place against those accused, against Peggy Nkonyeni, Mike Mabuyakhulu, Lindiwe Nkomazi Pendile Thule Ndosi, those three were the Khuboni Attorneys that took over from Sandile Khuboni. 20 ADV WILLIAM NICHOLSON: The other four names that you mentioned, you mentioned Ms Nkonyeni, Mr Mabuyakhulu, the other four names that you mentioned there, were you consulted about the withdrawal of those Members? COLONEL DU PLOOY: No. ADV WILLIAM NICHOLSON: Of those accused. Page 141 of 157 26 FEBRUARY 2020 – DAY 219 COLONEL DU PLOOY: No we only spoke about – the only person that was discussed is Peggy Nkonyeni. He said I’m withdrawing Mike M a b u y a k h u l u b u t t h e M k w a n a z i ’s a n d t h e o t h e r t h r e e n o t a w o r d mentioned about them. ADV WILLIAM NICHOLSON: And if we can just turn to the r a c k e t e e r i n g c e r t i f i c a t e w h i c h i s a t p a g e 4 0 o f t h e C h a i r ’s b u n d l e . COLONEL DU PLOOY: That is correct. ADV WILLIAM NICHOLSON: All six people that you have mentioned, are they part of this racketeering certificate? 10 COLONEL DU PLOOY: That is correct, they are part of the certificate. ADV WILLIAM NICHOLSON: COLONEL DU PLOOY: If you can just say where they are? Accused 3 – accused 4 is Peggy Nkonyeni, accused 13 is Mike Mabuyakhulu, accused 15 is Lindiwe Mkwanazi, then accused 16 Pendela, accused 17 Thuzi and accused 18 is Nozi, the three attorneys. ADV WILLIAM NICHOLSON: Now you’ve testified that three days w e r e a l l o c a t e d f o r t h i s m a t t e r i n C o u r t , w h a t ’s t h e s t a t u s o f t h i s m a t t e r currently? 20 COLONEL DU PLOOY: We have ...(intervenes). ADV WILLIAM NICHOLSON: Three months, I beg your pardon. C O L O N E L D U P L O O Y : S o r r y I d i d n ’ t h e a r. ADV WILLIAM NICHOLSON: I said you mentioned that three months w a s a l l o c a t e d f o r t h e h e a r i n g , f o r t h e p r o s e c u t i o n o f t h i s m a t t e r, w h a t ’s t h e s t a t u s o f t h i s m a t t e r p r e s e n t l y. Page 142 of 157 26 FEBRUARY 2020 – DAY 219 COLONEL DU PLOOY: As we speak today the 5th and the 6th of May i s a p e r m a n e n t s t a y a p p l i c a t i o n t h a t ’s g o i n g t o b e h e a r d i n H i g h C o u r t , w h i c h D r S a v o i b r o u g h t o r I n t a k a b r o u g h t i t ’s g o i n g t o b e a r g u e d – t h e main issues that they’re raising is, you withdraw charges against Peggy Nkonyeni and Mike Mabuyakhulu yet you still charge Dr Savoi for the s a m e t h i n g s , h o w d o e s t h e e v i d e n c e c h a n g e i t d i d n ’ t g o a w a y i t ’s s t i l l the same, how does that fit. They want an answer for that and t h e r e f o r e t h e y s a y, w h e n t h e N PA d e a l t w i t h t h i s i s s u e t h e y d i d n ’ t f o l l o w t h e i r p r o c e d u r e s , i t ’s b a s i c a l l y a n a b u s e o f p o w e r a n d t h a t i s w h a t t h e 10 d e f e n c e i s a r g u i n g i n t h e i r p a p e r s , i t ’s g o i n g t o b e h e a r d o n t h e 5 t h a n d 6th of March. ADV WILLIAM NICHOLSON: Now if we can just return to the withdrawal of the charges, were you in court when the charges were withdrawn. C O L O N E L D U P L O O Y : T h a t i s c o r r e c t C h a i r. ADV WILLIAM NICHOLSON: Are you able to say what transpired in Court? COLONEL DU PLOOY: Advocate Dunywa stood up he said, as per my instructions I’m withdrawing the charges, he didn’t say (indistinct) I 20 d o n ’ t t h i n k t h e r e ’s a c a s e I ’ m w i t h d r a w i n g , h e s a i d , a s p e r m y instructions and then he further – he ended up with saying: “As the accused were already notified in writing of the intention to withdraw by Advocate Noko.” So he didn’t have a choice but to withdraw it because the DPP of KZN already made the decision for him in writing by notifying the Page 143 of 157 26 FEBRUARY 2020 – DAY 219 accused then the charges were withdrawn, he actually placed it on record on the High Court. ADV WILLIAM NICHOLSON: Now you’ve made the point that ACTT Act was never provided with reasons for the charges being withdrawn. W a s t h e S o u t h A f r i c a n P o l i c e S e r v i c e s a s t h e w i d e r b o d y, w e r e t h e y ever provided with reasons for the charges being withdrawn? COLONEL DU PLOOY: Nobody from the investigation side was ever informed of the reasons. So I – up till today I don’t know what is all the reasons, I’ve never seen a presentation or representation in terms of 10 w h y. C h a i r i f y o u i n t e n d w i t h d r a w i n g c h a r g e s a n d y o u a s a p r o s e c u t o r will come to me and say listen, we have to withdraw or we short the following items because we need to prove intention or whatever the facts is, we will then see whether the investigation can reveal or cover that potions that you are lacking or that you require as a prosecutor to t h e n c o m p l e t e a p r o p e r c h a r g e s h e e t o r t o p r o s e c u t e . I n t h i s c a s e i t ’s j u s t w i t h d r a w a l a n d a c a s e , s o r t o f , g o a w a y. We never had the opportunity to fix – if we did something wrong, we never got that o p p o r t u n i t y. the other portion as well is that if you withdraw against people, it doesn’t mean they can’t become a witness because these 20 people played a role in this – in the actions in terms of how this thing played out, I don’t know whether they’re going to be called or whether they just disappear especially Mr Mike Mabuyakhulu, Peggy Nkonyeni, those people. There was a period that there was a lot of High Court a p p l i c a t i o n s , D r S a v o i a n d h i s L e g a l Te a m b r o u g h t a l o t o f a p p l i c a t i o n s a n d i t w a s d e a l t w i t h b y t h e H e a d O ff i c e , n o t t h e D u r b a n o ff i c e b y t h e Page 144 of 157 26 FEBRUARY 2020 – DAY 219 H e a d O ff i c e o f t h e N PA a n d w i t h – a m o n g a l l t h o s e y e a r s I ’ m t a l k i n g a b o u t s i x , s e v e n , t h i s t h i n g s t a r t e d i n 2 0 0 9 s o t h e c a s e i s o n h a n d 11 y e a r s b u t l e t ’s s a y t h e l a s t s i x y e a r s , I ’ v e n e v e r h e a r d o f t h e r e a s o n s o r n e v e r g i v e n t h e o p p o r t u n i t y t o s e e w h a t c a n w e d o t o s a t i s f y t h e N PA not to withdraw charges, that never happened. CHAIRPERSON : O n e s e c o n d . Ye s M r Nicholson? ADV WILLIAM NICHOLSON : So, if I hear y o u c o r r e c t l y, t h e s t a t u s o f t h e investigation and the withdrawal of the charges as you have stated in y o u r – i s t his a let t er or memo ra n d u m ? T h i s i s a l e t t e r a t p a g e 1 2 9 . T h a t 10 is just the, that is just your understanding of how the matters were withdrawn a n d t h e s t a t u s o f t h e m a t t e r s ? M R DU PLOOY : Ja, at that stage. That was 2012. That was my u n d e r s t a n d i n g o n i t . T h a t l e t t e r I d r a fte d I actu a lly e xp lain in p arag raph 8 who these people are that i s go i n g t o b e w i t h d r a w n . I f y o u l o o k a t – a t t he se c ond p a g e – o r 130 p a r a g r a p h 8 , I a c t u a l l y e x p l a i n w h o t h e s e people are, because I am telling my bosses what is the names that I am s a y i n g t o y ou h ow th ey invo lved in t he matt er, an d t he n if y o u l o o k a t p a r ag r a p h 11 o f t h a t s a m e l e t t e r I s a y t h e r e , I h a d n o d e a l i n g s , t h e p e o p l e t hat wit hdr ew t he ma tt er up t ill to day I ne ve r m et Ad voca t e Noko . I kn o w 20 s h e w a s i n K Z N , I n e v e r m e t h e r pe r s o n a l l y. T h e m a t t e r w a s w i t h d r a w n . I n e v e r m e t , I t h i n k h e r, a t t h i s s t a g e t h e N D P P w a s A d v o c a t e J i b a . I n e v e r m e t h er. I do not k n ow; I d o n ot know h er. I o n ly d e alt wit h Ad vo cat e M l o t s h w a , A d v o c a t e Nledile , an d cu rre ntly Advo ca te Vimbani i s m y l e a d prosecutor with Advocate Makhosi Mthembu, and I just want to use, by way of u s i n g a n e x a m p l e C h a i r, a b o u t t h e r e l a t i o n s h ip t h a t t h e Page 145 of 157 26 FEBRUARY 2020 – DAY 219 I nv es ti gat i ng Off ic e r that I ha d in t his matt er, we – t h e l a s t p e r s o n t h a t w e withdrew the case against was Professor G reen Thompson. We went – m y s e l f a n d t h e t w o Advocate s , w e w e n t , we c o n s u l t e d v arious witnesses. We realised that as they s a i d i t t h e n i t s – we w e r e n o t h a p p y w i t h i t a s i t is now and if we withdraw against Professor Thompson we can always put i t l a t e r b a c k o n t h e r o l e i f t h e r e i s o t h e r i s s u e s t h a t w a s c l a r i f i e d . I wa s a p a r t o f t h at dec i s ion , I pl aye d a ro le, as In ves tig at ing Office r I p layed a role in that, not the way that Advocate M o g w e b e tre a te d u s in t h a t m e e t i n g . We w e r e n o t – we, it was not a p a r t i c i p a t i n g t h i n g i n t e r m s o f 10 where my Prosecutors can come i n a n d s a y w a i t , t h i s i s w h a t w e d e c i d e d i n t e r m s o f o u r s t rat egy, wh at th e Pro secu t ors ke pt quie t. It is like t he y got told to keep quiet. And then we had – and when we asked for an e x t e n s i on , l e t u s p r o p e r l y i n f o r m y o u i n t e r m s o f t h e f a c t s a s t h e m e r i t s o f t hat , h e s ays n o I d o n o t h a v e t i m e , m y h o u r i s u p . ADV WILLIAM NICHOLSON : O k a y, i f w e g o t o – j u s t o n e a n n e x u r e t h a t we have not dealt with, is at page 49 of the Chair ’s bundle, and i t go e s al l t he way th rou gh t o pa ge 1 25 . Are you able to id e nt if y th at d ocu men t? M R DU PLOOY : Th is is th e in dict me nt th a t g oe s with th e ra ckete ering c e r t i f i c a t e . I t w a s f o r w a r d e d t o m e . I t i s a d r a f t i n d i c t m e n t to myself as 20 I nv es ti gat i ng Off i cer. T his is the in d ictmen t wh ich th e y the n lat e r on a p p e a r e d i n C ou r t f o r r a c k e t e e r i n g c h a rg e s , t h e a c c u s e d . ADV WILLIAM NICHOLSON : If we g o t o p a g e 9 2 , wh o ’s n ame a ppe ar s t here? CHAIRPERSON : A lot of Colonel d u P l o o y ’s e v i d e n c e i s c o r r o b o r a t i v e , s o we m i g h t n o t h a v e t o g o t h r o u g h e v e r y t h i n g f o r p u r p o s e s o f Page 146 of 157 26 FEBRUARY 2020 – DAY 219 c o r r ob o r a t i o n b e c a u s e a l o t o f th o se th in g s a re d ifficu lt to t h i n k a n y b o d y would dispute them but there are those which may well be disputed and t heref or e i t wi l l b e importa nt to cover, so I ju st m e n t i o n e d t h a t y o u b a r e t hat in mi nd, I a m n ot s aying do this, do n o t d o t h a t a s l o n g a s yo u b a r e t hat i n mi nd be c aus e a l o t o f i t l i k e t h a t m e e t i n g t h a t w e h a v e t a l k e d a b o u t , M r W h i t e t a l k e d a b o u t i t e x t e n s i v e l y, b u t i t i s i m p o r t a n t t o h a v e c o r r o b o r a t i o n f or w ha t tran sp ire d a t th at mee ting , th at is imp ort a nt b e c a u s e th a t c o u l d w e l l b e d i s p u t e d o r c e r t a i n a s p e c t s o f t h e i r e vi d e n c e may well be disputed, but keep an eye for those that are unlikely to be 10 disputed. ADV WILLIAM NICHOLSON : In d ee d C ha ir, I a m a b o u t t o w r a p u p C h a i r, t here i s j ust one poi nt t hat I wa nt to ma ke ema na tin g f rom th is. CHAI RPE RS ON: Ja. ADV WILL I A M NICHOLSON : At page 92 of the Chair ’s bundle, whose name appears there? M R DU PLOOY : I t i s A dv o ca t e Mlot shw a. ADV WILLIAM NICHO LS O N: And was Advocate Mlotshwa at the meeting o f t h e 2 3 r d o f Ma r c h ? M R DU PLOOY : 20 No, he was i n v i t e d , o r h e w a s c c ’ d , b u t h e n e v e r attended. CHAIRPERSON : O k a y, …(i n t e r v e n e s). ADV WILLIAM NICHOLSON : CHAIRPERSON : Do you know. O h , I a m s o r r y, j u s t a s k , j a . ADV WILLIAM NICHOLSON : Do you know if h e wa s c o n s u l t e d ? A r e y o u a b l e t o s p r e a d a n y l ig h t o n t h a t ? Page 147 of 157 26 FEBRUARY 2020 – DAY 219 M R DU PLOOY : No, I cannot re m e m b e r. ADV WILLIAM NICHOLSON : CHAIRPERSON : O k a y. Wa s i t n o t q u i t e s t r a n g e t h a t h e w a s n o t i n v i t e d to th e meeting if that is what happened? In circumstances where he was the a c t i n g h e a d o f t h e N PA i n t h e p ro v i n c e a n d h ad b e e n v e r y i n v o l v e d t hr ough out th is matt er up to tha t st age ? M R DU PLOOY : I agree with you Chair in a sense that Advocate M o g w e b e t old us he i s review ing t he m at t er. N ormally an out sid er fr om t hat s ec t ion c a nn ot c om e an d bu tt into an inve s t i g a t i o n, p ro se cu tion from 10 somebody else because they have to do their own thing, but if he was s e n t b y t h e t h e n A c t i n g N D P P t o c o m e a n d r e v i ew this matter, whatever t he re aso ns f or t ha t i s, I w ou ld e xpect A d v o c a t e M l o t s h w a t o b e t h e r e , b e c a u s e y o u m u s t re m e m b e r t h e P r o s e c u t o r s h a v e t o d e f e n d t h a t racketeering charge it and that indictment. It was not the Investigating O ff i c e r s , S A P S o r M r W h i te t h a t d r a f t e d t h a t . We g a v e t h e m t h e i n f o r m a t i o n e v i d e n c e , t h e y d r a f t e d t h a t . I f t h e y b e l i e v e s t r o n g l y i n t h e ir c a s e t o t ak e i t t o t he Hig h C ou rt, th en sure ly M r M lot sh wa a n d t h e Prosecutors can defend that. I cannot talk on behalf of them, but I would expect Mr Mlotshwa to be there. 20 CHAIRPERSON : O k a y, t h a n k y o u. You sa id some thin g e arlie r in yo ur e v i d e n c e w i th r e g a rd t o M r M o g w e b e ’s Unit i n t h e N PA v i s-à -v i s t h i s t y p e o f c a s e , I u n d e r s t o o d y o u t o b e s a y i n g t h a t M r M o g w e b e ’s, t ha t t his typ e o f c a s e f ell out s ide of t he Unit th a t Mr M o g w e b e was heading. Did I u n de r s t a n d y o u c o r r e c t l y ? M R DU PLOOY : Although thi s c a s e i s o f c o m m e r c i a l c o n t e n t , i n o t h e r Page 148 of 157 26 FEBRUARY 2020 – DAY 219 words it will be similar to what he is dealing with it, but it was not his responsibility, the DPP KZN, it was his responsibility. Mr M o g w e b e i s t h e h e a d o f c o m m e rc i a l w h i c h s i t s a t t h e , a l t h o u g h t h e v a r i o u s C o u r ts e x i s t i n t he c ount ry, he i s m anaging t h e Prose cuto rs f o r th a t , t h ose Co u rt s f ro m t he N at io nal Off i ce , t hat is wh ere h is o ff ice is. So , we n e v e r h a d o n e m e e t i n g w i t h h i m o r A d v o c a t e M o s i n g , o r M o s e n g. The r e s h o u l d n o t h a v e b e e n a n y i n t e r a c t i o n w i t h t h e m n o r m a ll y. T h e y w o u l d n e v e r b e i n v o l v e d , b u t w h e n h e c a m e , h e s a i d I a m r e v i e w i n g t h e m a t t e r. I n m y l a n g u a g e i t means somebody is sending them to have a look at what we are dealing 10 with. That is why I s ort o f w an t to ag ree w ith you Ch air t hat I t hin k Ad v o ca t e M l o t s h w a a n d a t l e a s t t h e P r o s e c u t o r s s h o u l d h a v e o n t h e d a y t hat we had th i s me et i ng sa y t heir say in fron t of u s. I f I sa id so me t h i n g t hey d id n ot ag ree w it h th e n t he y ha ve t o sa y t ha t b ut , b e c a u s e o f t h e strategy of prosecutions which they play a vital role, I could not give t hos e an s we rs to A dvo cat e M o g w e b e. I d id n ot de cide to pro secu t e, th e y s i t t i n g w i t h , I h a v e g o t a l l t h e s e Advocates, we went – we a t t e n d e d m e e t i n g s i n P r e t o r i a i n V G M w h e r e t h e , a t M r S i m e l a n e ’s o ff i c e w h e r e D r Ramaite t here a l l , l i k e 2 0 , 3 0 Advocates sitting, and they were aware of t hi s . So i t i s n o t l i k e t h i s c a s e , a n d t h i s c a s e w a s w e l l p u b l i c i s e d i n t h e 20 n e w s p a p e r s . I t w a s a n i m p o r t a n t c a s e i n a s e n s e t h a t o f t he p e o p l e t h a t was involved, it was important because reme m b er we did as a forfeiture s o w e c e a s e d D r S a v o y ’s a s s e t s . We w a n t t o g e t o u r g o v e r n m e n t m o n e y b a c k …(i n t e r v e n e s). CHAIRPERSON : So y o u w e r e n o t m a k i n g a p o i n t a l o n g t h e l i n e s t h a t t hi s c a s e , t h a t t h e r e w a s s o m e b o d y e l s e a t t h e H e a d O ff i c e o f th e NPA Page 149 of 157 26 FEBRUARY 2020 – DAY 219 u n d er whom this case fell and it was not Mr M o g w e b e. T ha t is no t t he p o i n t w e a r e m a k i n g , w e a r e s i m p l y m a k i n g t h e p o i n t t h at yo u ha d ha d n o i n t e r a c t i o n s w i t h h i m , t h e p e o p l e y o u h a d h a d i nte ra ction s with , we re th e p e o p l e i n t h e K Z N o ff i c e o f t h e NPA, Mr Mlot s h w a a n d M r D u d l a. M R DU PLOOY : But for prosecution purposes Mr M o g w e b e i s n o t i n t h e Department t hat dea ls wi t h th is m a t t e r. T h e o n l y p e r s o n t h a t c a n a c t u a l l y s e n d h i m t o c o m e a n d review a case a full side outside of his office, is Advoc a t e J i b a , t h e NDPP, or the Acting NDPP at the time. 10 CHAIRPERSON : Who was Acting NDPP at the time. M R DU PLOOY : Because I th ink in th e N PA Act the re is cert a in issues t hat g o v e r n s i n a w a y t h a t r e v i e w s t a k e p l a c e . I am not sure exactly what, but you cannot just wal k i n t o a n o t h e r g u y s o ff i c e a n d s a y I w a n t t o review your …(i n t e r v e n e s). CHAIRPERSON : Unless of course A d v o c a t e M o g w e b e a n d A d v o c a t e M o s i n g h a d g o n e t h e r e w i t h t h e b l e ss i n g o f t h e A c t i n g N a t i o n a l D i r e c t o r o f Public Prosecutio n s ? M R DU PLOOY : I di d not t h i n k A d v o c a t e M l o t s h w a w o u l d h a v e a l l o w e d t hem . 20 CHAIRPERSON : Yes M R DU PLOOY : To d o t h a t i f t h e r e w as n o t a b l e s s i n g s o m e w h e r e . CHAIRPERSON : I f t he re wa s? M R DU PLOOY : I f t here w as n o t a b lessin g f rom Ad voca t e Jiba. CHAIRPERSON : Yes , j a , s o M R DU PLOOY : Because what were they doing there in his place? CHAIRPERSON : Yes , s o y ou think the re must have been a blessing from Page 150 of 157 26 FEBRUARY 2020 – DAY 219 t he ac t ing, as y o u s e e i t . M R DU PLOOY : Chair I cannot see that Advocate M o g w e b e wake up one m o r n i n g a n d t h i n k s I a m g o i n g to ch e ck o ut th a t mu mmy boy’s ca se and see what is happening there. CHAIRPERSON : Yes , ye s, o kay. M R DU PLOOY : I do not t hin k it h a pp en e d like t hat . CHAIRPERSON : Th ank you . ADV WILLIAM NICHOLSON : Just one more issue before I conclude, Colonel Du P l o o y y o u m e n t i o n e d t h a t – I want to stay away from l a b o u r e d 10 c o m p l a i n a n t s . T h e f i r s t a ff id a v i t i n t h e – i n CAS 1 5 3 8 / 1 / 2 0 0 9 , t h a t i s a Durban Central CAS, w a s o b t a i n e d f r o m D r S a v o y. M R DU PLOOY : Th at i s co rrect y e s . ADV WILLIAM NICHOLSON : How did it co m e a b o u t t h a t h e r e p o r t e d t h i s matter? M R DU PLOOY : Dr Savoy made a donation, well in te rms of what he is s a y i n g h e m a d e a d o n a t i o n t o t h e A N C o f 1 , 0 5 3 mi l l i o n . was paid over into Sandile Kabone’s tru st a cco un t. Those monies He issues, Sa nd il e Kabone i s s u e d a – c a l l i t a n i n v o i c e w h e r e h e s a i d i t i s f o r l e g a l f e e s . D r Savoy then realised th e n a t s o m e s t a g e t h a t , b e c a u s e h e c l a i m e d VAT o n 20 i t , h e t h e n r e p orted it to say, I never had any dealings with Mr Kabone, s o i n o t h e r w o r d s t h a t i n v o i c e f o r w o r k d o ne i s f i c t i t i o u s . H e th en p aid ba c k t he VAT in t erm s of th at in voice, tha t cove re d t h e d o n a t i o n t o t h e A N C . So what happened is, when he reported i t I t h i n k h e a l s o g o t a d v i s e d t h a t t hi s m ig ht be c orrup t ion in a w ay b eca use t he mo ne y t h at w as u tilise d f r o m Ka b o n e , t h e n w e n t t o M r Ts h a b a l a l a a n d h i s w i f e f o r t h e i r d e b t . S o Page 151 of 157 26 FEBRUARY 2020 – DAY 219 Advocate – M r Ka b on e p a i d o f h i s , w h e r e v e r h e h a d d e b t fo r h is farm, hi s t r a c t o r s , w h a t e v e r. S o i f y o u f o l l o w t h e m o n e y t h e m o n e y n ev e r – t h a t s p e c i f i c m o n e y i n t e r m s o f a s i t c o m e i n t o th e b an k a cco u n t a nd h ow i t was spent d i d n o t r e a c h t h e A N C i n t e r m s o f t h a t m i ll i o n o r t h a t 1 , 0 5 3 m i l l i o n . D r S a v o y r e a l i s e d i t w a s , I s u p p o s e i t i s a p o i n t fo r leg al a dvic e a n d r e p o r t e d t h e m a t t e r. So I took a – h e reported it, I then went back a n d w e t ook a S ec ti o n 2 04 stat ement fro m him in C ap e To wn . So he was g o i n g t o b e o u r pe r s o n t o e x p l a i n t h i s f r o m t h e c o m m e r c i a l b r a n c h , b u t not a person for the Scorpions. The Scorpions did their own thing, and 10 t hen w he n we m erg ed i t was t h en decid ed t ha t Dr S a v o y a c t u a l l y i s t h e m a i n p e r p e t r a t o r i n t e r m s o f w h e r e a l l t h e m o n e y w e n t , i n t erms of the p r o c u r e m e n t p o r t i o n s . T h a t i s w h e n w e t h e n c o m b i n e d ev e r y t h i n g . T h e Northern Cape and KZN. ADV WILLIAM NICHOL SON : O k a y. T h o s e a r e m y q u e s t i o n s C h a i r, …(i n t e r v en e s ). M R DU PLOOY : I j us t wan t to, sorry I just wa nt to ad d t here C hair t ha t I f i n is h up he re wh ere I say a nd th is w as a ls o o n e o f m y p rob lem s th a t I h a d . T h e r e w a s a s u b m i s s i o n m a d e t o t h e H i g h C o u rt, and I saw it was l i k e a s t a t e m e n t a n d w h a t a n d n ot. 20 And I sa w tha t th ey men t ion th a t Advocate Dhunia is not a Prosecutor anymore, a n d i t w o r r i e d m e b e c a u s e h e i s m y P r o s e c u t o r I a m d e a l i n g w i t h , I p ho ne d h im, a n d he said to me h e i s s t i l l t h e P r o s e c u to r, I s a i d n o N a d i l e y o u a r e n o t , y o u h a v e b e e n remov e d . T h e r e i s s o m e b o d y e l s e n o w b u t i t i s n o t y o u . H e t h e n a s s u r e d me he did not know about this, so he was removed as Prosecutor for the e n t i r e m a t t e r, K Z N . K i m b e r l y h a d i t s o w n P r o s e c u t o r, b u t f o r t he K Z N Page 152 of 157 26 FEBRUARY 2020 – DAY 219 m a t t e r, t h a t i s a l l t h a n k s . CHAIRPERSON : So wa s t h e p o s i t i o n t h a t y o u t h o u g h t h e h a d b e e n removed but actually he had not b e e n r e m o v e d o r w a s t h e p o s i t i o n t h a t h e had been removed but he did not know he had been removed? M R DU PLOOY : Th at i s c o r r e c t C h a i r. He did not know he was not …(i n t e r v e n e s). 10 CHAIRPERSON : And he had been removed? M R DU PLOOY : He did not know tha t, j a . CHAIRPERSON : And around about when was that when you had tha t discussion with him about being removed or not, do you recall? M R DU PLOOY : I c anno t re ca ll t he d at e, b ut i t i s a t t h e e n d . T h e r e a f t e r he was not involved in the matter anymore. CHAIRPERSON : Yes . So i n t h e e n d h e w a s n o t r e m o v e d , h e j u s t di d n o t k n o w ? H e w a s r e m o v e d b u t h e d i d n o t k n o w, u n t i l th e y c a l l e d h i m . M R DU PLOOY : He was removed but he did not k n o w, t h e y d i d n o t t e l l him I am going to remove you. 20 CHAIRPERSON : Yes . M R DU PLOOY : Th at d id no t h ap p en . CHAIRPERSON : O k a y, o k a y, t ha nk yo u . N ow Mr N icho lson, if t h ere a r e i m p o r t a n t m at t ers t ha t yo u t hin k have n ot be e n covere d an d sh ould b e c o v e re d , f e e l f r e e t o c o v e r t h e m . I do not want you to feel that I restricte d y o u t o o m u c h , I j u s t d i d n o t w a n t u s t o c o v e r t h i n g s t h a t a r e u n l i k e l y t o b e c o n t r o v e r s i a l e s p e c i a l l y b e c a u s e w e – o u r t im e i s p r e c i o u s , but anything that is important that you feel you have not had a chance to c o v e r, f e e l f r e e t o c o v e r. Page 153 of 157 26 FEBRUARY 2020 – DAY 219 ADV WILLIAM NICHO LS O N: Chair from my side I have covered all, everything that I have prepared on. I do not think there is anything else. CHAIRPERSON : Colonel Du Plooy is there something that you fe e l we h a v e n o t – we o v e r l o o k e d , t h a t y o u t h i n k i s i m p o r t a n t f o r y o u t o me n t i o n ? M R DU PLOOY : No Chair that is all I have to say. CHAIRP ERSON: You think it is c ov ered? M R DU PLOOY : I thi n k i t i s c o v e r e d C h a i r. CHAIRPERSON : O k a y, a l r i g h t , t h a n k y o u v e r y m u c h C o l o n e l D u P l o o y f or c omi ng t o g i v e ev i dence, we a p pre ciate i t v e r y m u c h . F o r n o w y o u a r e 10 excused. M R DU PLOOY : Th ank y o u C h a i r. CHAIRPERSON : Th ank you . ADV WILLIAM NICHOLSON : Chair, the other witness who is only a v a i l a b l e t o m o r r o w i s Advocate Mlotshwa. So he will be here tomorrow. I s e e t h a t w e s ti l l h a v e s o m e t i m e b u t u n f o r t u n a t e l y t h e r e i s n o o t h e r witness. CHAIRPERSON : Yes . How long is he lik ely to be? ADV WILL I A M NICHOLSON : CHAIRPERSON : 20 And then do you have somebody else? ADV WILLIAM NICHOLSON : CHAIRPERSON : Not, two hours, not more than three. Th er e i s n o b o d y e l s e . Th ere is n ob od y e lse . ADV WIL LI AM NICHOLSON : Unfortunately, we had intended calling Advocate Manyathi however s h e was only available on the 1 s t , Mo nda y a n d Tu e s d a y. CHAIRPERSON : Yes . Page 154 of 157 26 FEBRUARY 2020 – DAY 219 ADV WILLIAM NICHOLSON : He was n o t a v a i l a b l e f o r t h e l a t t e r p a r t o f t he week . CHAIRPERSON : Yes , o k a y a n d t h e n a r r a n g e m e n t s w i l l b e m a d e f o r another – for him to come on another day? ADV WILLIAM NICHOLSON : CHAIRPERSON : To c o n c l u de h i s e v i d e n c e y e s . J a , o k a y t h a t s h o u l d b e d o n e w i t h o u t d elay so t ha t w e are done with this part of the evidence. ADV WI LL IA M NICHOLSON : CHAIRPERSON : 10 In d ee d Ch air. Th e reports – M r White’s report or reports and whatever reports relates to t he se ma tt ers th a t e ma n at e fro m t h e i n v e s t i g a t i o n t h a t M r W h i te c o n d u c t e d . Do we know whether they have been presented to persons who are implicated and that they have been g i v e n a n op p o r t u n i t y t o i n d i c a t e w h e t h e r t h e y s e e k t o g i v e a n y e v i d e n c e b e f o r e t he Co mm is s i on to challe nge tho se re p ort s a nd t h at e vid e nce a nd wh e t h e r t h e y s e e k l e a v e t o c r o s s-e x a m i n e a n y b o d y ? ADV WILLIAM NICHO L S O N: and t his wi tn es s, Mr As far as I understand with Mr Trevor White Trevo r W hite , th e re wa s o nly t wo le ga l representativ e s w h o c a m e f o r w a r d t o s a y t h a t t h e y m a y d o a n a p p l i c a t i o n f or c ros s -e x a m i n a t i o n . 20 CHAIRPERSON : Yes , oh there was c ouns el fo r, oh n o – n o I a m t h i n k i n g a b o u t s o m e t h i n g e l s e C o m m is s i o n Ngobeni . ADV WILLIAM NICHOLSON : Yes th at is co rrect, ye s, th ere w as a counsel for that. CHAIRPERSON : Ja. ADV WILLIAM NICHOLSON : And th er e wa s Page 155 of 157 ano t he r co un se l he r e 26 FEBRUARY 2020 – DAY 219 p r e s e n t w hi l e M r Tr e v o r W h i t e t e s t i f i e d . CHAIRPERSON : But nobod y c a m e w h o r e p r e s e n t e d f o r e x a m p l e M s Nkonyeni and Mr Mabuyakhulu, as far as you recall? ADV WILLIAM NICHOLSON : If I ma y ju st s p e a k t o – m y u n d e r s t a n d i n g is that they have made representations and they have asked for the reports a n d t h e y h a v e b e e n gi v e n t h e m . CHAIRPERSON : Yes , ok ay may be, may be after we hav e adjourned I c o u l d b e b r i e f e d fu l l y o n t h a t s o t h a t w e s e e w h a t p l a n s n e e d t o b e m a d e t o hear what t he y ha v e to sa y to g eth er w ith a n yon e e l s e i n c l u d i n g p e o p l e 10 l i k e t h e H O D f or Heal th , of co u r s e D r S a v o y a n d w h o e v e r e l s e s o t h a t w e c a n – we k n o w w h e t h e r o n e, th e y d esire to g ive e viden ce, th ey d e sire t o d o w h a t e v e r o r w h e t h er they are saying well because there is a criminal t r i al c om ing w e a r e e l e c t i n g n o t t o c h a l l e n g e t h e e v i d e n c e . ADV WILLIAM NI CH OL SO N: In d ee d C ha ir, wh a t I ca n sa y is th a t w e a r e i n t h e p r o c e s s b e c a u s e t h a t – t h e D S f or 3 . 3 ’s h a v e e x p i r e d . We a r e i n t he p rocess of inviting, of writing letters to invite them to make s u b m is s i o n s a n d t h e n w e w i l l m a k e a d e c i s i o n a s t h e L e g a l Te a m i f w e n e e d t o t a k e a n y f urt her s te p s. CHAIRPERSON : 20 O k a y, b u t a f t e r w e h a v e a d j o u r n e d p l e a s e c o m e t h r o u g h s o t h a t I c a n b e up d a t e d . ADV WILLIAM NICHOLSON : CHAIRPERSON : In d ee d Ch air. Th ank y o u v e r y m u c h . We a r e g o i n g t o a d j o u r n t h e p r o c e e d i n g s f or t he day a nd t omorrow w e will resu me a t no rm a l t im e, n a m e l y 1 0 : 00 . We a djo urn . I NQ U I RY A DJ OUR NS TO 28 FEBRUARY 2020 Page 156 of 157 26 FEBRUARY 2020 – DAY 219 TRANSCRIBER’S CERTIFICATE FOR COMMISSION OF INQUIRY INTO STATE CAPTURE HELD AT PARKTOWN, JOHANNESBURG DATE HELD : 2020-02-26 DAY: : 219 TRANSCRIBERS : B KLINE; M NETTA; D STANIFORTH; B DODD; D BONTHUYS Audio’s are typed verbatim, as far as audible/possible Page 157 of 157