COMMISSION OF INQUIRY OF THE PUBLIC INVESTMENT CORPORATION HELD AT TSHWANE, PRETORIA 10 24 APRIL 2019 DAY 32 20
COMMISSION OF INQUIRY OF THE PUBLIC INVESTMENT
CORPORATION
HELD AT
TSHWANE, PRETORIA
10
24 APRIL 2019
DAY 32
20
24 APRIL 2019 – DAY 32
Page 2 of 170
PROCEEDINGS HELD ON 24 APRIL 2019
CHAIRPERSON: Good morn ing , everybody.
ADV JANNIE LUBBE SC : Good, Commiss ioner and members .
CHAIRPERSON: The room appears empty.
ADV JANNIE LUBBE SC: Yes . Mr Commiss ioner, we are ready to
p roceed. The ev idence w i l l be led by my co l league, Advocate
Monnahe la and the w i tness and she w i l l be tes t i f y ing on a w ide range
o f top ics . I t w i l l p robab ly take the day. I t i s the re ins ta ted secre tary o f
the P IC, Bongan i Mathebu la .
CHAIRPERSON: Yes , I see a face tha t we have no t seen fo r a wh i le .
Mr Monnahe la . Your fu l l names, p lease, Ma ’am.
MS BONGANI MATHEBULA : My fu l l names Bongan i Lou isa Mathebu la .
CHAIRPERSON: I d id no t take the second name?
MS BONGANI MATHEBULA : Lou isa .
CHAIRPERSON: Lou isa?
MS BONGANI MATHEBULA : Mathebu la .
CHAIRPERSON: Yes . Do you have any ob jec t ions to take the
prescr ibed oa th?
MS BONGANI MATHEBULA : No, I do no t .
CHAIRPERSON: Do you swear tha t the ev idence you are about t o
g ive , w i l l be the t ru th , the who le t ru th and no th ing e lse bu t the t ru th?
Ra ise your r igh t hand and say, so he lp me God.
MS BONGANI MATHEBULA : So he lp me God.
BONGANI LOUISA MATHEBULA : (d .s .s . )
CHAIRPERSON: Thank you very much. You may be seated .
MS BONGANI MATHEBULA : Thank you.
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ADV ISAAC MONNAHELA : Thank you, Mr Commiss ioner. Ms
Mathebu la , you have made a s ta tement wh ich you w i l l p resent as par t
o f your ev idence before th is Commiss ion . May I ask y ou to s ta r t
read ing your s ta tement f rom paragraph 1?
MR EMANNUEL LEDIGA: Jus t a ques t ion . Jus t a qu ick one. Ms
Mathebu la , i t i s go ing to be a long journey today. I t i s a long
s ta tement . So, p lease fee l f ree to d r ink water. You know, i t i s go ing to
be a long, long journey and we – I am sure we w i l l t raverse i t we l l , a l l
r igh t?
Thank you . Some co f fee i f you , you know, you fee l to have
some co f fee , a l l r igh t? Ja , somewhere there . Ja , a l l r igh t . Thanks .
Thank you .
MS BONGANI MATHEBULA : Thank you, Advocate . Where do I s ta r t?
ADV ISAAC MONNAHELA : Paragraph 1 .
MS BONGANI MATHEBULA : Okay. A l l r igh t .
“ I am an adu l t female , cur ren t ly employed by the
Publ ic Inves tment Corpora t ion SOC L imi ted as
company secre tary.
Save where the con tex t ind ica tes to th e cont ra ry o r
where i t i s o therw ise s ta ted , the fac ts conta ined in
the s ta tement a re w i th in my persona l knowledge and
to the bes t o f my be l ie f , bo th t rue and cor rec t .
I con f i rm tha t I made th i s s ta tement vo lun tar i l y
w i thout any coerc ion to ass is t the work o f the
Commiss ion o f Inqu i ry.
I was reques ted by the ev idence team to address
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spec i f i c mat te rs , wh ich I w i l l do in the subsequent
paragraphs .
As a governance p ro fess iona l and an o f f i cer o f the
cour t , no t on ly i s i t necessary fo r me, as reques ted by
the ev idence team, to ass is t th is Commiss ion , bu t I
have a lega l ob l iga t ion to ass is t th is Commiss ion o f
Inqu i ry, by address ing some o f the key issues
env isaged in the Commiss ion ’s te rms o f re fe rence…”
CHAIRPERSON: As a government…
MS BONGANI MATHEBULA : P ro fess iona l .
CHAIRPERSON: Pro fess iona l .
MS BONGANI MATHEBULA : Ja .
CHAIRPERSON: What i s tha t? Can you jus t e labora te on i t?
MS BONGANI MATHEBULA : I am a company secre tary. I am a lso
a f f i l i a ted w i th the Char te red Secre tary o f South ern Af r i ca .
“My educat ion background and a f f i l i a t ion w i th
p ro fess iona l bod ies :
I ho ld a BProc Degree f rom the Un ivers i t y o f L impopo,
the then Un ivers i t y o f the Nor th .
In 2008 I ob ta ined an LLM Degree f rom the Un ivers i t y
o f South A f r i ca w i th spec ia l i sa t ion in Commerc ia l Law.
I a lso possess a Cer t i f i ca te in Advanced Corpora te
And Secre tar y Law, a lso f rom the Un ivers i t y o f South
A f r i ca .
I am an admi t ted a t to rney and conveyancer and was
admi t ted as such in the year 2000 and I then became
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a member o f the Law Soc ie ty o f South A f r i ca , now the
Lega l Prac t i ce Counse l .
I am a lso a member o f the Char te red Secre tary
Southern A f r i ca .
In 2017 I wro te and passed Leve l 5 Regu la tory
Examinat ion fo r Representa t i ve in te rms o f the FAIS
Ac t .
My work exper ience :
Before jo in ing the PIC, I worked fo r the f o l low ing
organ isa t ions :
- Mankwe Magabane A t to rneys as a cand ida te
a t to rney, where I served my ar t i c les o f
c le rksh ip . . . [ in te rvenes ] …”
CHAIRPERSON: I s tha t in Pre tor ia?
MS BONGANI MATHEBULA : In L impopo. In Po lokwane.
“ - Mankwe Incorpora ted as a d i rec tor a f te r my
admiss ion as a prac t i c ing a t to rney and conveyancer.
- The Un ivers i t y o f L impopo as a lega l adv isor.
- Rose Agency, L impopo as Lega l Serv ice and
Company Secre tary. Th is i s where I deve loped a
keen in te res t in corpora te governance, as I was s ing le
hand i l y respons ib le fo r es tab l i sh ing the company ’s
Secre tar ia t Bus iness Un i t , w i th the coming to l igh t o f
the Compan ies Ac t 71 o f 2008, wh ich made
i t . . . [ in te rvenes ]…”
CHAIRPERSON: Jus t as a mat te r o f in te res t . As a lega l adv isor a t the
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Univers i t y L impopo, what d id your work en ta i l ?
MS BONGANI MATHEBULA : My work en ta i l ed… I was ac tua l l y
work ing very c lose ly w i th the Vice -Chance l lo r and the Execut i ve
Management . So, i t en ta i led adv is ing the un ivers i t y in mat te rs o f lega l
adv isory, labour mat te rs and… Ja , so i t was bas ica l l y lega l serv ices ,
bu t I was work ing very c lose ly w i th the Vice -Chance l lo r, then Pro fessor
Magalo . Ja .
“ I was s t i l l on the Rose Agency, L impopo as Lega l
Serv ice and Company Secre tary. Th is i s where I
deve loped a keen in te res t in corpor a te governance ,
as I was s ing le hand i l y respons ib le fo r es tab l i sh ing
the Company Secre ta ry Bus iness Un i t w i th the coming
to l igh t o f the Compan ies Ac t 71 o f 2008, wh ich made
i t compulsory fo r s ta te owned ent i t ies to appo in t a
company secre tary.
- Also L impop o Economic Deve lopment
Agency, as group company sec re tary ; and
- I then jo ined South A f r i can Express A i rways ,
SAX as the company secre tary. Whi ls t I was a t SA
Express , I was par t o f a team in the Depar tment o f
Pub l i c Enterpr ises , wh ich was tasked to rev iew the
pro toco l on corpora te governance in the pub l i c sec tor,
dur ing 2015.
My ro le a t the P IC :
I p roud ly jo ined the PIC in Augus t 2015 in the pos i t ion
o f Company Secre tary.
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At the t ime o f my appo in ted , CEO was Dr Dan ie l
Mat j i l a and the cha i rman o f the boar d was Mr Mceb is i
Jonas . . . [ in te rvenes ]…”
ADV ISAAC MONNAHELA : I f I may in te rvene there? How d id you jo in
the PIC? Was the pos i t ion adver t i sed or what happened?
MS BONGANI MATHEBULA : As I unders tand i t , the pos i t ion was
adver t i sed bu t the way I was – I was ac tua l l y approached by a
consu l tan t , an HR consu l tan t , f rom De lo i t te . They reques ted fo r my
CV. Then I submi t ted my CV.
ADV ISAAC MONNAHELA : You may proceed.
MS BONGANI MATHEBULA : Thank you.
“My ro le a t . . . [ in te rvenes ]…”
CHAIRPERSON: No. Were you i n te rv iewed?
MS BONGANI MATHEBULA : Yes , I was in te rv iewed. I went th rough
the rec ru i tment p rocess , Commiss ioner.
“My ro le as company secre tary i s to :
- Oversee and prov ide a company secre tar ia t
serv ice to the board , in l ine w i th the Prov is ions o f
Sec t ion 86 o f the Compan ies Ac t , amongs t o thers ,
wh ich are to ensure compl iance w i th the prov is ions o f
the Compan ies Ac t and the company, MOI .
- To a lso ensure induc t ion o f new board
members in to deve lop ing a mechan ism fo r p rov id ing
cont inuous deve lopment o f the board .
- To sa feguard the organ isa t ion ’s in tegr i t y, as
wel l as p romot ing e th ica l behav iour.
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In 2016, I championed, together w i th my team, the
es tab l i shment o f a code o f e th ics w i th a task wh ich
compr ised representa t i ves f rom a l l the d iv is ions in the
PIC.
The board approved code o f e th ics po l i cy. I t was
approved by the board on the 27 t h May 2016. A f te r
the approva l o f the po l i cy, th is i s someth ing tha t was
rea l l y a h igh l igh t fo r us as a team.
A f te r the approva l o f the po l i cy, the po l i cy was then
workshopped(?) a t board leve l . One o f the key th ings
tha t happened was tha t , a t the imp lementa t ion o f the
po l i cy, was tha t a l l board members was reques ted to
s ign an oa th and p ledge to ab ide by the po l i cy, wh ich
they d id .
I am a lso . . . [ in te rvenes ]…”
MR EMANNUEL LEDIGA: A ques t ion . Ja . Sor ry, sor ry. Jus t a
ques t ion here . What i s the d i f fe rence be tween a board secre tary and a
company secre tary? You know, Wi lna(?) does someth ing e lse . You so
someth ing e lse . What a re the d i f fe rences there?
MS BONGANI MATHEBULA : So , the – I am not go ing to dwe l l much on
the ac tua l d i f fe rence. So, Wi lna does the admin is t ra t i ve par t o f i t ,
be ing the board sec re tary. I am the company secre tary, appo in ted in
l ine w i th the Compan ies Ac t . So , Wi lna repor ts to me.
MR EMANNUEL LEDIGA: Okay. Oh, a l l r igh t . Okay, thank you.
MS GILL MARCUS : Sor ry. Jus t wh i le you are on your po in t o f 11 .3
and you ind ica te tha t the board members were requ i red to s ign a
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p ledge to ab ide by the po l i cy. I am assuming tha t th is was no t on ly the
board tha t had to s ign the po l i cy. Management wou ld have to . I t went
th rough the organ isa t ion . I s tha t cor rec t?
MS BONGANI MATHEBULA : Cer ta in ly, Ms Commiss ioner.
MS GILL MARCUS : Okay. And then, can I take you back to 11 .1? And
the ques t ion o f compl iance w i th the prov i s ions o f the Compan ies Ac t
and the company MOI , bu t we had heard be fore th is Commi t tee tha t the
MOI , in fac t , has been breached by non – by no t hav ing a CIO, a COO.
What s teps d id you take , i f any, in re la t ion to the board in – w i th regard
to compl iance w i th the MOI?
MS BONGANI MATHEBULA : Okay. So, the i ssue o f the MOI non -
compl iance in te rms o f the execut ive s t ruc ture was done in 2015, jus t
p r io r my appo in tment . So, bu t immedia te ly a f te r my appo in tment , I
ac tua l l y quer ies whether the MOI was amended to ensure tha t i t was in
l ine w i th the cur ren t s t ruc ture a t the t ime.
And I was to ld tha t submiss ions were made, wh ich I ac tua l l y
a lso saw to the min is te r then, bu t fo r some reasons , those
recommendat ions were never s igned by the min is te r, bu t I a lso dea l ,
Madam Commiss ioner, w i th the o ther i tems to t ry and amend the MOI ,
la te r in my subsequent paragraphs .
MS GILL MARCUS : The ques t ion i s two - fo ld . Amend ing the MOI to
cover the breaches , i s one th ing . The ques t ion o f the breaches
themse lves and how appropr ia te they were , was there any d iscuss ion
about why the CIO, COO pos i t ions were done away w i th , and was there
any d iscuss ions in the board , as to accep tance or o therw ise o f tha t?
I t i s no t jus t whe ther the MOI was amended to make i t
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compl ian t . I t i s whe th er, in fac t , those th ings ought to have been done
away in the f i r s t p lace , and whether the board d iscussed tha t .
MS BONGANI MATHEBULA : Okay. Ja , I be l i eve there was . As I sa id ,
tha t was pr io r my appo in tment to the company. I be l i eve there were
those d i scuss ions and I th ink we can ascer ta in , you know
what . . . [ in te rvenes ]
MS GILL MARCUS : No, I do no t want to go back in tha t . I want to ask
in re la t ion to when you and the company secre tary, because the breach
cont inued and there fore , i f there was ne i ther an amendment to the MOI
or there were proposa ls to amend to make tha t acceptab le , o r the fac t
tha t i t was s imp ly a l lowed to cont inue by the board , i s what I am
look ing a t .
There was no d iscuss ion dur ing the per iod tha t you were there
about th is , i f you l i ke , non-compl iance and the fac t tha t i t was e i ther
approved or no t approved or d isagreed w i th by the board .
MS BONGANI MATHEBULA : There were no d iscuss ions , Madam.
MS GILL MARCUS : Thank you.
MS BONGANI MATHEBULA : Ja . I am a lso now a t paragraph 11.4 .
Paragraph 11.4 :
“ I am a lso respons ib le fo r governance admin is t ra t ion ,
wh ich en ta i l s :
- Deve lop ing an annua l board p lan and o ther
s t ra teg ic i ssues o f governance admin is t ra t ion , wh ich
inc ludes , bu t i s no t l im i ted , to keep ing , p roduc ing ,
d isseminat ing minutes o f board and commi t tee
meet ings .
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- Also , th i s inc lude, p rov id ing company
secre tar ia t to suppor t Exco and i t s sub -commi t tees .
A t the t ime o f my appo in tment , I was a lso respons ib le
fo r the func t ion ing o f p rocess ing and imp lementa t ion
o f the appo in tment o f PIC rep resenta t i ves to board to
inves tee compan ies , in l ine w i th the governance
po l icy…”
MS GILL MARCUS : On th is mat te r, you do dea l w i th tha t much la te r in
your s ta tement . I s there any th ing you want to b r ing to the a t ten t ion
here or wou ld you dea l w i th i t la te r when you dea l w i th i t towards the
end o f your s ta tement?
MS BONGANI MATHEBULA : I f i t p leases the Commiss ion , I wou ld l i ke
to dea l w i th i t la te r on in my subsequent paragraph . Thank you.
“On 17 Apr i l 2018, I was suspended by the PIC on the
a l legat ion tha t I caused d is t r ibu t ion and or copy ing o f
conf ident ia l in fo rmat ion to unauthor ised persons .
The a l lega t ions aga ins t me is tha t I leaked dra f t board
minutes , wh ich re la ted to a l legat ions o f impropr ie ty
aga ins t the fo rmer CEO, Dr Dan ie l Mat j i l a ’s
fac i l i t a t i on o f payment by a P IC inves tee d i rec tor to a
th i rd par ty.
I w i l l i n my subsequent paragraphs dea l w i th how tha t
par t i cu la r aspec t o f the minutes were subs tan t ia l l y
de le ted , thereby san i t i sed f rom the or ig ina l d ra f t o f
the minutes .
I w i l l a lso dea l w i th th e fu l l par t i cu la rs o f my charge
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sheet la te r, in de ta i l .
My d isc ip l inary hear ing commenced on the
11 t h September 2018 and was conc luded on the
18 t h February 2019. ’
I w i l l a lso dea l w i th what t ransp i red be fore , dur ing
and a f te r the d isc ip l inary hear ing in th e subsequent
paragraphs .
In t roduc t ion :
The ev idence team reques ted me to ass is t the work o f
th is Commiss ion o f Inqu i ry w i th spec i f i c mat te rs ,
re la t ing to the fo l low ing :
- How the board dea l t w i th the anonymous
a l legat ions ;
- The process fo l l owed and ac t ions ta ken on
the AYO and Sagarmatha t ransac t ions ;
- The preva i l ing MOI ;
- How employee func t ions are co inc identa l l y
changed a t the P IC; and
- The lack o f t ransparency when imp lement ing
such ;
- The De legat ion Of Author i t y Rev iew Process ;
- Approva l o f incent ives .
The manner in wh ich the board dea l t w i th the wh is t le -
b lower a l l egat ions :
The wh is t le -b lower a l legat ions tha t were sent v ia
emai l on the 5 t h Sep tember 2017:
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On or about the 5 t h September 2017, an anonymous
emai l f rom one James Nogu was sen t to var ious
peop le w i th in the PIC, w i th the t i t le : P IC CEO Funds
G i r l f r iend.
I have no idea who James Nogu is , s ince I had made
no i r regu lar d isc losures to any person or any o f the
in fo rmat ion ment ioned in tha t emai l .
I am not respons ib le fo r the leaks tha t in fo rmed the
emai l . I re fe r to the au thor o f the emai l as the
wh is t le -b lower because i t i s c lear f rom the de ta i led
conten t o f the emai l , tha t th i s person is l i ke l y an
employee o f the P IC, mak ing d isc losure or a l l egat ions
o f ser ious wrongdo ing , a lbe i t i t i n a h igh ly unor thodox
and sca th ing mat te r…. ”
MR EMANNUEL LEDIGA: A ques t ion . Ja , jus t a ques t ion there . Some
peop le have specu la ted tha t th is person cou ld be ins ide the PIC, bu t a
d i rec tor o f the P IC. Not an employee. Sor t o f a d i rec tor leve l person.
Board leve l person.
MS BONGANI MATHEBULA : Ja , thank you, Commiss ioner. I th ink , f o r
me, the way I have made an assessment , tha t i s my own persona l
assessment . I be l i eve i t i s an employee, i f you look a t the conten t o f
the two emai ls , in te rms o f what the a l legat ions were ab out . I t cou ld be
board members , bu t I be l i eve they worked w i th employees , i f i t was
board members . Ja .
MR EMANNUEL LEDIGA: And bes ides , be labour ing the po in t . Cou ld i t
be f rom the inves tment s ide , the IT s ide? You know.
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MS BONGANI MATHEBULA : I do no t want to come to tha t specu la t ion ,
Cha i r. Bu t I th ink i t i s an employee. I f you look a t the na ture o f i t , i t
covers inves tments . I t covers the f inanc ia l , re la t ing to sa la r ies . I t
covers v ic t im isa t ion . So, i t i s a who le range o f aspec ts . So, i t cou ld
have been anyone. Ja .
MR EMANNUEL LEDIGA:
MS BONGANI MATHEBULA : Okay.
“ I mus t a l so exp la in why I th ink the a l l egat ions were
f rom a person who is l i ke ly a P IC employee.
The a l l ega t ions make re fe rence to an in te rna l p rocess
o f the fund ing app l i ca t ion and CSI app l i ca t ion by MST
and the payment reques t o f R300 000,00 by the CEO
to an inves tee company d i rec tor.
They a lso spoke about v ic t im isa t ion o f employees by
the CFO, Ms Matshepo More and the d ispar i t ies in
sa la ry inc reased. Th is , in my v iew, cou ld on ly have
been d i rec t l y known by PIC o f f i c ia ls .
The emai l o f the 5 t h September 2017 was brough t to
my a t ten t ion by Ms L ind iwe Toy i , a board member,
th rough an emai l .
She reques ted me to ask IT to check whether the
emai l she rece ived was no t a scam. I then fo rwarded
the emai l to the then Execut ive Head o f IT, Ms
Vuyokaz i Menye and reques ted her to address the
concerns ra ised by Ms Toy i .
I t was a t th is s tage tha t I learn t f rom Ms Menye tha t
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she had a l ready been ins t ruc ted by the CFO, Ms
Matshepo More and the Execut ive Head o f HR, Mr
Chr is topher Po lwane to b lock the emai l , as i t had
been sent to a l l P IC employees .
On the 6 t h September 2017 , Dr Xo lan i Mkhwanaz i , the
Deputy Cha i rman o f the board , reques ted me to meet
w i th h im in my o f f i ce , where he dra f ted the le t te r to Dr
Mat j i l a regard ing the a l l egat ions o f cor rup t ion by the
PIC CEO.
In the le t te r, Dr Mat j i l a was reques ted to respond to
ser ious a l l egat ions conta ined in the emai l .
The mat te r was in i t ia l l y schedu led to be d iscussed a t
the D i rec tor ’s A f fa i rs Commi t tee meet ing wh ich was
schedu led to be he ld on the 14 t h September 2017.
However, i t was la te r agreed tha t g iven the
ser iousness o f the a l legat ions , the mat te r be re fe r red
to a fu l l board s i t t ing fo r speedy reso lu t ion .
The meet ing was meant to be cha i red by Dr Xo lan i
Mkhwanaz i as cha i rman. Mr S f iso Buthe lez i , a t the
t ime, was ou t o f the count ry.
I t shou ld be no ted tha t the cance l la t ion o f the DAC
a t t rac ted a lo t o f negat ive med ia a t ten t ion . The issue
o f change the DAC meet ing in to a board meet ing was
a lso ques t ioned by Dr Mat j i l a and some board
members , who wanted an exp lanat ion why the DAC
meet ing was changed to a board meet ing .
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The cha i rman gave an exp lanat ion tha t due to the
ser iousness o f the a l legat ion and to ensure tha t the
mat te r i s reso lved speed i l y, i t was deemed pruden t to
dea l w i th the mat te r as a fu l l board .
The query o f why the DAC was changed to a fu l l
board was no t war ran ted , as the DAC mat te rs a re
de legated to i t by a board and d iscuss ions o f any
mat te rs de legated to a commi t tee by a board , ma y be
d iscussed by a board , i f i t deems prudent . Th is was
exp la ined by the cha i rman.
The wh is t le -b lower a l legat ions were then tab led in
tha t board meet ing on the 15 t h September 2017.
As the company secre tary, I was in the i n camera
meet ing and was respons ib le fo r tak ing the minutes a t
tha t meet ing .
A t the s ta r t o f the meet ing , I was ins t ruc ted to swi tch
o f f the tape record ing . The board was adamant tha t i t
d id no t want the in camera meet ing to have a vo ice
record ing .
I then dec ided to take no te o f a l l the d iscuss ions , in
o rder to enab le me to p repare the m inutes , wh ich
wou ld be presented to the board fo r approva l .
I t mus t be no ted tha t a l l meet ings tha t re la tes to the
a l legat ions aga ins t the CEO and the CFO were no t
recorded a t the behes t o f the board .
The board proceeded w i th the meet ing , a l though i t
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was h igh l igh ted f rom the onset tha t a le t te r reques t ing
a cance l la t ion o f the meet ing was rece ived f rom
FEDUSA.
Such a le t te r was never made ava i lab le a t the
meet ing , as par t o f the o f f i c ia l record…”
ADV ISAAC MONNAHELA : I f I may in te rvene. D id the board exp la in
to you why you were asked not record the meet ings , concern ing the
mat te rs invo lv ing Dr Mat j i l a?
MS BONGANI MATHEBULA : Yes , the board fe l t tha t the d iscuss ions
were h igh ly conf iden t ia l and they then r eques ted tha t I mus t sw i tch o f f
the record ing . In fac t , I was the on ly one le f t . A l l the management
were recused f rom the meet ing a t tha t s tage.
ADV ISAAC MONNAHELA : In tha t paragraph tha t you have jus t read,
you re fe r red to FEDUSA. Who is FEDUSA?
MS BONGANI MATHEBULA : I am not so sure what FEDUSA is , bu t I
be l ieve i t i s a un ion . The federa t ion – i t i s a un ion . Some sor t o f a
un ion , wh ich… I do no t know. I t i s a un ion .
ADV ISAAC MONNAHELA : Okay.
MS BONGANI MATHEBULA : That i s a l l I know.
ADV ISAAC MONNAHELA : Does FEDUSA have any au thor i t y to
reques t tha t the meet ings o f the board be cance l led?
MS BONGANI MATHEBULA : No, they do no t .
ADV ISAAC MONNAHELA : You may proceed a t paragraph 24.
CHAIRPERSON: No. Can I jus t ask . Are you prepared to te l l u s who
in the meet ing d i rec ted you to swi tch o f f the record ing? I f you do no t
want to ment ion the name. Was i t a non -execu t ive members or an
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execut ive member?
MS BONGANI MATHEBULA : I t was a non -execut ive member, bu t a t the
end o f the day, the en t i re boar d agreed tha t there shou ld no t be any
record ings . So, i t was… Ja .
ADV ISAAC MONNAHELA : I f I may ask . I s there any po l i cy tha t
g ran ts the board a d isc re t ion to ask you no t to record the meet ings?
MS BONGANI MATHEBULA : There i s no such a po l i cy. In fac t , we do
have an SOP, wh ich is a S tandard Opera t ing Procedure wh ich requ i res
us as the company secre tary to record a l l meet ings o f the board and
commi t tee meet ings .
ADV ISAAC MONNAHELA : So , what you are say ing is tha t , the board
asked you to do what you w ere no t supposed to do?
MS BONGANI MATHEBULA : Yes .
CHAIRPERSON: O f course , you cou ld record by handwr i t ing .
MS BONGANI MATHEBULA : O f course , I cou ld repor t by handwr i t ing ,
wh ich is what I d id . Yes , Commiss ioner. Ja .
ADV ISAAC MONNAHELA : You may proce ed a t paragraph 24.
MS BONGANI MATHEBULA : When asked. . . [ in te rvenes ] .
MR EMANNUEL LEDIGA: Can I jus t – jus t a ques t ion . Jus t to come
back on James Nogu. Do you th ink tha t emai l came because there was
some bu i ld up o f , you know, angs t about the P IC, th in gs a t the P IC?
Or, i t jus t came out o f the b lue and jus t somebody jus t wro te the emai l?
MS BONGANI MATHEBULA : I th ink I am go ing to speak ou t o f
ignorance here , Mr Commiss ioner and I do no t th ink there was a bu i ld
up o f some sor ts . Maybe i t i s ou t o f my own ignorance. I th ink i t was –
i t came ou t o f the b lue . I th ink i f you look – i f you read a t i t , i t ac tua l l y
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says tha t peop le who are now fed up in how the PIC was run .
So , i t was someth ing wh ich was brewing a t the P IC. I be l i eve ,
you know. So, i t i s no t someth ing tha t jus t was… I th ink i t was
someth ing tha t those employees , whoever they are , they fe l t tha t , you
know what , maybe i t was the r igh t t ime now to vo ice the i r concerns .
Ja .
CHAIRPERSON: I t cou ld have caused a reason as a resu l t o f
d issa t is fac t ion re la t ing to bonuses no t be ing pa id o r no t be ing
su f f i c ien t and so on . And peop le th ink ing tha t the execut ive peop le are
ge t t ing the i r bonuses , whatever the s ize was .
MS BONGANI MATHEBULA : Ja , i t… Mr Commiss ioner, yes . I t cou ld
have been . Now tha t I am th ink ing about i t . I t was dur ing tha t t ime
tha t the sa la ry inc reases were jus t imp lemented. So, i t cou ld be a lso
tha t those who were vo ic ing those concerns , were those employees
who were a f fec ted in te rms o f those sa la ry inc rements . Ja .
Paragraph 24 :
“When asked, I s ta ted to the board tha t my v iew was
tha t the mat te r was a wh is t le -b lower a l l egat ions and
ought to be t rea ted as such.
However, th is p roposa l was re jec ted by the major i t y o f
the board . There was a c lear d ivergence o f use in the
board in dea l ing w i th the wh is t le -b lower a l legat ions .
Th is I say due to the fo l low ing :
- One v iew sugges ted tha t the board be
prudent and er r on the s ide o f ques t ion and thus fo r
the mat te r to be dea l t w i th by an independent person.
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This v iew was in fo rmed by the fac t tha t the CEO and
the CFO were bo th imp l ica ted in the a l legat ions and
tha t as execut ive members o f the board , po ten t ia l
assoc ia ted conf l i c t o f in te res t a rose fo r the board as
we l l .
Accord ing to th is v iew, an independent ob jec t i ve fac t
f ind ing process needed to be embarked upon. The
mat te r was in the pub l i c in te res t , as i t had a l ready
been repor ted in the med ia tha t there were p lans by
the board to remove Dr Mat j i l a .
- Another v iew was tha t the board shou ld seek
a lega l op in ion , whether an ex terna l in ves t iga t ion was
no t war ran ted in o rder to ensure tha t the board i s
p roper ly adv ised on how to dea l w i th the mat te r.
The major i t y o f the board d id no t agree w i th th i s
p roposa l and the mat te r was then abandoned.
When reques ted to adv ise the board , the Head o f
In te rna l Aud i t , Mr Nemagovhan i took the board
th rough the process , o rd inar i l y fo l lowed in ins tances
where a l l egat ions are leve l led aga ins t any P IC
o f f i c ia l .
Mr Nemagovhan i ind ica ted tha t the in te rna l aud i t lack
o f fo rens ic exper t i se to dea l w i th the inve s t iga t ion
in te rna l l y and h is d i scomfor t to inves t iga te the CEO
whom he repor ted to .
- Another i ssue ra i sed by the In te rna l Aud i t
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was, tha t the CEO wi l l be requ i red to s ign o f f fo r any
procurement p rocess , per ta in ing to the mat te r and i t
wou ld no t be idea l fo r the CEO to s ign o f f on
pecurement , wh i l s t the inves t iga t ions per ta ins to h im.
In te rna l Aud i t recommended tha t the board appo in ts a
company w i th fo rens ic inves t iga t ion exper t i se wh ich
the board agreed to .
The board then took a reso lu t ion to appo in t an
ex terna l fo rens ic inves t iga to r to inves t iga te the
a l legat ions .
In te rna l Aud i t wou ld work in consu l ta t ion w i th Ms
Sandra Beswick , a member o f the Aud i t and R isk
Commi t tee , s ince the cha i rperson o f the R isk and
Aud i t Commi t tee , Ms Tantaswa Fubu was a lso
imp l ica ted in the a l legat ions o f the emai l , c i r cu la ted
on the 13 t h September 2017.
I w i l l dea l w i th th is . . . [ in te rvenes ]…”
CHAIRPERSON: I am t ry ing to keep up . I am t ry ing to read w i th you ,
bu t you are too fas t fo r me. Are you ab le to s low down a l i t t l e?
MS BONGANI MATHEBULA : I w i l l s low down, Mr Commiss ioner.
Apo log ies .
“ In te rna l Aud i t recommended tha t the board appo in ts
the company w i th fo rens ic inves t iga t ion exper t i se ,
wh ich the board agreed to .
The board then took a reso lu t ion to appo in t an
ex terna l fo rens ic inves t iga to r to inves t iga te the
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a l legat ions .
In te rna l Aud i t wou ld work in consu l ta t ion w i th Ms
Sandra Beswick , a member o f the Aud i t and R isk
Commi t tee , s ince the cha i rperson o f the R isk and
Aud i t Commi t tee , Ms Tantaswa Fubu was a lso
imp l ica ted in the a l legat ions o f the emai l , wh ich
c i rcu la ted on the 13 t h September 2017.
I w i l l dea l w i th the emai l a l legat ions in the paragraphs
to fo l low.
S t i l l a t the 15 t h September 2017 meet ing , the board
then ca l led the CEO and CFO back in to the meet ing
and communica ted the reso lu t ion o f the board to
appo in t an ex terna l fo rens ic inves t iga tor who w i l l
i nves t iga te the a l l egat ions .
The CEO and CFO pro tes ted aga ins t the dec is ion o f
the board . They argued tha t the a l lega t ions aga ins t
them were no th ing bu t ma l ic ious .
They had d i f f i cu l t y why the board w i l l reso lve to
conduc t an inves t iga t ion on a l legat ions wh ich were
d i rec t a t tacks on them and were no t rece ived th rough
the normal PIC wh is t le -b lowing channe ls .
They a lso to ld the board tha t they had prepared
responses to a l l the a l legat ions . So, why was the
board no t cons ider ing the i r responses and dec id ing to
conduc t an inves t iga t ion?
The CEO then s ta r ted to compla in about the leaks and
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the suspec ted hack ing o f P IC IT Sys tems and sa id the
board needed to look in to those issues , ra ther than
those mal i c ious a l l egat ions .
I t was a f te r the presenta t ion by Dr Mat j i l a and Ms
More tha t the board then changed i t s o r ig ina l
reso lu t ion to conduc t an independent inves t iga t ion
in to the a l l egat ions .
I was reques ted to reca l l the head o f In te rna l Aud i t ,
who was adv ised by the board tha t the or ig ina l
reso lu t ion to conduc t a fo rens ic inves t iga t ion had
been resc inded.
He was fu r ther adv ised tha t the board excepted the
exp lanat ions g iven by the CEO and CFO. In te rna l
Aud i t was now requ i red to embark on a rev iew and
ver i f i ca t ion process o f the documents wh ich were
submi t ted by management and the board spec i f i ca l l y
emphas ised tha t the rev iew process shou ld no t be an
independent fo rens ic inves t iga t ion exerc ise , as they
had in i t ia l l y reso lved .
In te rna l Aud i t was spec i f i ca l l y reques ted to tes t the
va l id i t y accuracy comple teness o f the documents
submi t ted by management , wh ich ac tua l l y bas ica l l y
en ta i led an in te rna l rev iew o f whether app l i cab le
po l i c ies procedures were compl ied w i th in approv ing
fund ing to MS T.
In te rna l Aud i t was to be prov ided w i th a scope o f
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work , wh ich was de legated to be s igned o f f by Ms
Beswick . As I have a l ready ind ica ted , the cha i rperson
o f the Aud i t and R isk Commi t tee was conf l i c ted in the
mat te r.
In te rna l Aud i t was there fore requ i red to repor t to the
board a t a subsequent schedu led meet ing o f the
board wh ich was schedu led to be he ld on the 29 t h
September.
I was a lso asked. . . [ in te rvenes ]…”
MR EMANNUEL LEDIGA: Le t us check someth ing here . I t was qu i te
d i f f i cu l t , you know, in the sense tha t the board i s here and the CEO and
the CFO say : Before you take i t to ou ts ide par t ies , we have some
answers we can g ive to you.
You know, and I know you do d isagree w i th how the board d id
th is , bu t I mean, i f you are accused and the board says : Lo ok , we want
to g ive you a chance to s ta te your case and i f we are no t happy w i th
what you say, then we can take th is to ou ts ide bod ies and a l l tha t .
So , I guess i t was qu i te a d i f f i cu l t s i tua t ion . But what do you
th ink abou t tha t?
MS BONGANI LOUISA MATH EBULA: Mr Commiss ioner, my v iew i s
tha t I be l ieve tha t a t tha t s tage even when the board took the
reso lu t ion to appo in t an ex terna l person the board hadn ’ t made – d idn ’ t
reach any v iew on the mat te r and I say i t was cor rec t approach
because then the board i s no t c louded – i t was must mere ly
a l legat ions , no execut ive was sa id to have done any th ing wrong a t tha t
s tage and I th ink one o f the c r i t i ca l aspec ts i s the fac t tha t the
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execut ives themse lves are par t o f a board , they a lso board members so
i t wou ld have been c ruc ia l to ge t an ex terna l person to have a v iew f i r s t
be fore wh ich is I th ink i s was one o f the adv ice tha t was a lso g iven by
one o f the board members to say tha t the board has no t taken a v iew,
no one is go ing to be suspended a t th is s tage, we ju s t want to
somebody to tes t , you know, independent ly the a l legat ions . So I th ink
tha t i s the v iew tha t I a lso fe l t wou ld have been cor rec t .
ADVOCATE ISAAC MONNAHELA : I ’m jus t t r y ing to f ind ou t because
I ’m th ink ing i f there ’s a p rob lem in te rna l l y wou ldn ’ t i t work be t te r to
g ive the peop le a chance in te rna l l y f i r s t and then see whether you are
happy, i f no t , then rea l l y take i t to ou ts ide par t ies . I ’m not sure I ’m
get t ing you there .
MS BONGANI LOUISA MATHEBULA : So Commiss ioner, i f you look a t
the to ta l i t y o f the a l l egat ions there were a l legat ions tha t dea l t w i th how
the process was fo l lowed in approv ing the fund ing , tha t par t
management had responded to and I be l ieve the board was g iven those
responses , they had looked a t those responses .
There were o ther a l legat ions the na ture o f wh ich – and
cor rec t l y in te rna l aud i t had a l ready adv ised the board tha t these k ind o f
a l legat ions , we don ’ t have the capac i t y in te rna l l y to look a t . So i t was
qu i te p rudent fo r the board to have, you know, sought independent , you
know, inves t iga t ion on those a l legat ions . So remember management
a l ready had been g iven an oppor tun i t y to submi t the i r responses wh ich
they d id , so there were two a l l egat ions , i f you th ink about i t .
ADVOCATE ISAAC MONNAHELA : Yes , yes , so there were par ts wh ich
cou ld be done in te rna l l y maybe and there were par ts wh ich cou ldn ’ t be
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done in te rna l l y, i s tha t what you ’ re say ing? No?
MS BONGANI LOUISA MATHEBULA : What I ’m say ing is tha t the
management were g iven the oppor tun i t y to respond fo r the par ts in
te rms o f documenta t ion and every th ing wh ich they submi t ted and the
o ther a l legat ions wh ich re la ted to – wh ich needed a fo rens ic
inves t iga tor were to be then be inves t iga ted ex terna l l y. I s t i l l be l ieve
tha t by the v i r tue o f the fac t tha t in te rna l aud i t ha d a l ready adv ised the
board , in te rna l aud i t repor ted to the CEO, s igned h is ba lance score
card , i t wou ldn ’ t have been p rudent fo r the board to expec t in te rna l
aud i t to be inves t iga t ing h is own boss . The execut ives a lso are
members o f the board so i t wou ld have been qu i te , fo r me, the cor rec t
approach to ge t an ex terna l person to ve r i f y. Whether i t ’s to ver i f y the
documenta t ion tha t were submi t ted or to even embark on a fu l l - sca le
fo rens ic aud i t o f the a l legat ion .
ADVOCATE ISAAC MONNAHELA : A l igh t , thanks , I ge t i t , ja .
MS BONGANI LOUISA MATHEBULA : Okay, I ’m on paragraph 28, Mr
Commiss ioner. I
“ I was tasked to p repare the scope o f work in consu l ta t ion w i th
Ms Beswick wh ich was eventua l l y s igned o f f . I t i s impor tan t
fo r th is Commiss ioner to know tha t the a l legat ion regard ing
the poss ib le re la t ionsh ip be tween the CEO and Ms Louw was
exp l i c i t l y exc luded f rom the scope o f work . A lso to be
exc luded was whether the CEO ins t ruc ted a d i rec tor o f an
i nves t ing company to pay the debts o f Ms Louw’s s t rugg l ing
bus iness .
MS GILL MARCUS : Jus t on tha t ques t ion , were these mat te rs
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d iscussed in the board i t se l f , those two po in ts tha t were exc luded?
MS BONGANI LOUISA MATHEBULA : A t tha t s tage, Madame
Commiss ioner …[in te rvenes ]
MS GILL MARCUS : There had been no d iscuss ion on i t a t a l l ?
MS BONGANI LOUISA MATHEBULA : There were no d iscuss ions
…[in tervenes ]
MS GILL MARCUS : they were jus t exc luded f rom the inves t iga t ion
w i thout the board d iscuss ing them a t a l l?
MS BONGANI LOUISA MATHEBULA : Cor rec t , Ma ’am, ja .
ADVOCATE ISAAC MONNAHELA : Can I ask you fo r purposes o f the
record when you have an annexure to jus t ment ion i t?
MS BONGANI LOUISA MATHEBULA : I w i l l do so , Commiss ioner,
thank you . And the scope o f work , Mr Commiss ioner, i s ac tua l l y
annexure BM5 in the index . I ’m on paragraph 29.
“The sudden about tu rn o f the board a f te r thorough ly debat ing
the mat te r and coming to a conc lus ion to fo rens ica l l y
inves t iga te the mat te r seemed ques t ionab le to me espec ia l l y
s ince the about tu rn came a t the ins tance o f ind iv idua ls
aga ins t whom a l legat ions had been made and in the face o f
i n te rna l aud i t ’ s ta ted lack o f fo rens ic capac i t y to p roper ly
pursue the inves t iga t ion . The board adopted a ho l i s t i c
approach and in te rna l aud i t was fu r ther tasked to conduc t the
same rev iew and ver i f i ca t ion p rocess w i th spec i f i c re fe rence to
o ther emai l w i th a new se t o f a l legat ions wh ich was c i rcu la ted
on the 13 September 2017, tha t i s annexure BM6. A l l
imp l i ca ted par t ies were to submi t the i r responses to in te rna l
24 APRIL 2019 – DAY 32
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aud i t by the 22 September 2017 accord ing t o the board
reso lu t ion . The in te rna l aud i t repor t on the a l l ega t ions da ted
the 13 September was to be submi t ted to the board by the 22
October 2017. I t i s perhaps impor tan t fo r th is Commiss ion to
know tha t there was a d issent ing v iew by a board Ms
S ibus is iwe Zu lu on record who d id no t agree w i th the board ’s
reso lu t ion on the mat te r. Ms Zu lu ’s reason fo r her d issent ing
v iew were due to the fo l low ing :
The process be ing fo l low ing by the board in conduc t ing the
inves t iga t ion was f lawed and s tood to be cha l le nged. The
head o f in te rna l aud i t had expressed h is reserva t ions tha t the
mat te r i s no t the type o f the inves t iga t ion tha t i s conduc ted
in te rna l l y. He had recommended tha t th i s be conduc ted by an
ex terna l independent fo rens ic inves t iga tor. Desp i te th i s
adv ise and d iscomfor t by in te rna l aud i t the board s t i l l i ns is ted
fo r in te rna l aud i t to conduc t the rev iew process . I t was
i ncor rec t fo r the board…”
I ’m s t i l l con t inu ing in te rms o f the d issent ing v iews.
“She a lso ra ised the issue tha t i t was incor rec t fo r the board
no t to inves t iga te the mat te r p roper ly and comple te ly on the
bas is tha t i t does no t cons ider i t as a wh is t le b lowing repor t .
The repor t , accord ing to her, was a wh is t le b lowing and
requ i red p roper inves t iga t ion by the board in o rder fo r the
board to make an in fo rmed dec is ion . The par t i c ipa t ion o f
execut ive d i rec tors in some o f the board de l ibera t ions and/o r
ob ta in ing the i r v iews pr io r to the board mak ing i t s f ina l
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dec is ions on the mat te r was an i r regu lar p rocess wh ich s tood
to be cha l lenged and the board cont rad ic ted i t se l f and cou ld
no t have conc luded tha t i t i s sa t i s f ied tha t the CEO prov ided
de ta i led documentary ev idence and was sa t is f ied tha t the
process fo l lowed was in accordance w i th a l l po l i c ies ,
p rocedures and de legat ion o f au thor i t y o f t he P IC wh i ls t a t the
same t ime re fer r ing the mat te r to in te rna l aud i t fo r rev iew. Ms
Zu lu a lso ques t ioned the board tha t the a l legat ions were broad
and the board needed to be seen to be ac t ing on the
a l legat ions . A f te r the meet ing o f the 15 September 201 7 the
board i ssued a med ia s ta tement ind ica t ing tha t i t has accep ted
the representa t ions made by the CEO. Th is caused to
ques t ions why the board went ahead w i th in te rna l aud i t rev iew
i f i t had a l ready accepted representa t ions by the execut ive
d i rec tors . Th is appears to me to be jus t one o f number o f
examples where the board fe l l in l ine w i th the CEO’s
ins is tence on exonera t ion when the board ’s overs igh t du t ies
c lear ly demanded more pro fess iona l scept ic ism. I t cou ld be
sa id to be cont rad ic to ry as one cann ot come to such a
conc lus ion in the absence o f ve r i f iab le ev idence. ”
I ’m go ing to now dea l w i th the wh is t le b lower.
MR EMMANUEL LEDIGA : Ja , le t ’s check someth ing here . Jus t to ge t
a v iew f rom you, we heard f rom one board member some t ime back tha t
th is was the t ime o f s ta te capture and tha t the board had to suppor t the
CEO because, you know, they were wor r ied tha t the s ta te capture
peop le wanted to f i re the CEO. Do you have any v iews about tha t?
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Can you reca l l the events dur ing tha t t ime?
MS BONGANI LOUISA MATHEBULA: Mr Commiss ioner, what I reca l l
a t the t ime was tha t there were a lo t o f med ia ar t i c les about poss ib le
s ta te capture o f the PIC and a l l sor t o f th ings , you know? Negat ive
pub l ic i t y fo r the P IC. I don ’ t have any persona l knowledge o f any iss ue
o f s ta te capture , maybe tha t was jus t beyond, you know, my pay grade ,
but I don ’ t reca l l any sor t o f o f f i c ia l d iscuss ion on s ta te captu re . I f tha t
was done i t wou ld have been done maybe unof f i c ia l l y ou ts ide , you
know, o f f i c ia l d iscuss ions , ja .
MR EMMANUEL LEDIGA: To fo l low up, when I asked some t ime back
tha t there was – i t appears tha t there was a meet ing where Min is te r
Gordhan to ld the board or some peop le tha t they must be aware o f
s ta te capture bu t I cannot reca l l whether i t was a board meet ing o r
someth ing e lse . Can you reca l l tha t , I mean you were in board
meet ings .
MS BONGANI LOUISA MATHEBULA : Yes, Mr Commiss ioner, there was
– tha t was in 20… I t was the AGM, i t was Annua l Genera l Meet ing o f
2015 or ’16 , I need to check my records cor rec t l y, i t was no t in 2017
when tha t happens . M in is te r Gordhan as the shareho lder
representa t i ve a t the t ime, he d id , you know, make tha t k ind o f
p ronouncements when he was open ing in h is open ing remarks and the
fac t tha t we need - the P IC needed to be mindfu l o f s ta te capture bu t ,
as I sa id , i t was no t in 2017 when th is who le i ssues were happen ing , so
I can ’ t l i nk the 2015/ ’16 d iscuss ion w i th M in is te r Gordhan a t the t ime to
what was happen ing a t th is per iod in 2017.
MR EMMANUEL LEDIGA: So broad ly, accord ing to yo u, you a re say ing
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you are no t aware and th is i s beyond your pay grade rea l l y about these
issues .
MS BONGANI LOUISA MATHEBULA : Real ly in 2017, Mr
Commiss ioner.
MR EMMANUEL LEDIGA: Okay, a l r i gh t , okay.
MS GILL MARCUS : Bu t perhaps jus t a po in t o f c la r i f y t here , M in is te r
Gordhan ’s s ta tement was a pub l i c s ta tement , i t wasn ’ t in a c losed
meet ing .
MS BONGANI LOUISA MATHEBULA : I t was in the Annua l Genera l
Meet ing o f the P IC.
MS GILL MARCUS: I t was an open meet ing .
MS BONGANI LOUISA MATHEBULA : Yes, open ing rem arks , yes . So
I ’m go ing to dea l – can I con t inue? Okay. In paragraph 34:
“The w ide - rang ing a l l egat ions f rom Le ih lo la Le ih lo la conta ined
in the emai l o f 13 September 2017 imp l ica ted the CEO, the
CFO, fo rmer Cha i rperson o f the aud i t and r i sk , execut ive he ad
o f HR. The a l l egat ions ra ised concerns about …[in tervenes ]
MS GILL MARCUS : Can you jus t remind us who the fo rmer
Cha i rperson o f ARC tha t i s be ing re fe r red to here .
MS BONGANI LOUISA MATHEBULA : I t ’s Ms Tan taswa Fubu.
“The a l l egat ions ra ised concerns a bout remunera t ion and
bonus incent ives , cor rup t dea ls , inves tments , v ic t im isa t ion and
i l l - t rea tment o f the s ta f f members , nepot ism and buy ing o f f .
The a l legat ions a lso ca l led fo r a l i f es t y le aud i t o f the CEO,
CFO and some members o f exco. A p lea was a lso made fo r
the board to have a pro tec ted meet ing w i th s ta f f members in
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the absence o f the CEO, CFO and execut ive head o f HR.
In te rna l aud i t was a lso mandated by the board dur ing the
meet ing he ld on the 15 September 2017 to conduc t the same
rev iew process w i th spec i f i c re fe rence to a l l egat ions f rom
Le ih lo la Le ih lo la conta ined in the emai l da ted the 13
September 2017. As the company secre tary aga in , i t was
unc lear to me how the board in tended fo r those type of
a l legat ions to mere ly go th rough a ver i f i ca t ion process by
in te rna l aud i t . Th is , in my v iew, requ i red an inves t iga t ion and
fo r employees to be g iven room to d isc lose a l l the i r concerns
and gr ievances re la t ing to incent ives , v i c t im isa t ion , e tce tera .
This v iew is suppor ted by what I ’ ve seen th rough th is
Commiss ion tha t fo r the f i r s t t ime employees have been ab le
to come out and s ta te the i r concerns in re la t ion to employee
mat te rs and a l l egat ions o f v ic t im isa t ion . I t appears to me tha t
the board was c lear l y no t keen to make th is remedy ava i lab le
to employees to enab le them to a i r the i r v iews and compla in ts
about the conduc t o f imp l ica ted execut ives . In fac t , th is was
conf i rmed by the reso lu t ion o f the board on the 6 October 2017
where the board reso lved to te rmina te the in te rna l aud i t
p rocess wh ich was v er i f y ing the a l l egat ions . The board ’s v iew
at the t ime was tha t these a l legat ions were base less and
mal ic ious . ”
MS GILL MARCUS : Sor ry, can I jus t fo r purposes o f c la r i t y t r y to j us t
unders tand the sequenc ing . So in the f i r s t ins tance the board agrees
fo r an ex terna l inves t iga t ion , i t resc inds tha t and asks the in te rna l
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aud i t to a ver i f i ca t ion process .
MS BONGANI LOUISA MATHEBULA : Yes .
MS GILL MARCUS: And then resc inds tha t ver i f i ca t ion process on the
grounds tha t th is i s s imp ly mal i c ious?
MS BONGANI LOUISA MATHEBULA: Yes.
MS GILL MARCUS: So there were th ree s teps o f chang ing the mind by
the board .
MS BONGANI LOUISA MATHEBULA : Yes.
MS GILL MARCUS : Whether tha t was unan imous or no t i s – i t was the
major i t y dec is ion so tha t was what car r ied – was i t – these were no t
unan imous dec is ions or were they, in the boards?
MS BONGANI LOUISA MATHEBULA : O f course there were d issent ing
v iews and d i f fe ren t op in ions bu t a t the end o f the day the major i t y o f
the board took the reso lu t ions .
MS GILL MARCUS: So tha t in tha t , jus t to be c lear, there were th ree
d is t inc t ac t i v i t ies by the board tha t changes i t s mind .
MS BONGANI LOUISA MATHEBULA : Yes bu t th is , remember, i t ’s no t
happen ing in one meet ing . I t ’s ta lk ing …[ in te rvenes ]
MS GILL MARCUS: No, no , I ’m say ing th ree d i s t inc t t imes , ja .
MS BONGANI LOUISA MATHEBULA : Yes . Yes , cer ta in ly, Madame
Commiss ioner.
MS GILL MARCUS: Thank you.
MS BONGANI LOUISA MATHEBULA : Yes .
ADVOCATE ISAAC MONNAHELA : I f I may ask you, who was the
Cha i rperson o f the board in September and October 2017?
MS BONGANI LOUISA MATHEBULA : I t was Mr S f iso Buthe lez i , he was
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a lso the Deputy Min is te r o f F inance a t the t ime.
ADVOCATE ISAAC MONNAHELA : Okay, can I ask you aga in , d id the
board or the major i t y o f the board g ive any reason why they were
te rminat ing the in te rna l aud i t p rocess?
MS BONGANI LOUISA MATHEBULA : Yes one o f the reason they gave
was tha t they wanted to res tore s tab i l i t y and I dea l w i th i t as we l l la te r
on in my subsequent paragraphs bu t a lso the fac t tha t those a l legat ions
were ma l i c ious and base less .
ADVOCATE ISAAC MONNAHELA : You may cont inue a t paragraph 37.
MS BONGANI LOUISA MATHEBULA : Okay, thank you.
“Dur ing the same board meet ing o f 15 September 2017 the
i ssue o f in fo rmat ion leaks was de legated to the In fo rmat ion
Communica t ion , Techno logy Governance Commi t tee , tha t i s
the ICTGC. Th is commi t tee however d id no t take charge o f
the mat te r. Ins tead the same execut ive management tha t were
to some ex ten t imp l i ca ted in the N ogu and Le ih lo la a l legat ions
was tasked to dea l w i th the in fo rmat ion as a mat te r o f
u rgency. Th is had the e f fec t o f invo lv ing the management in a
manner where they were c lear ly conf l i c ted . ”
ADVOCATE ISAAC MONNAHELA : I f I may in te rvene, who de legated
the issue to the In fo rmat ion Communica t ion , Techno logy Gov ernance
Commi t tee?
MS BONGANI LOUISA MATHEBULA : The board on the 15 September.
ADVOCATE ISAAC MONNAHELA : Then when the execut ive
management took over was the board in fo rmed o f th is?
MS BONGANI LOUISA MATHEBULA : I w i l l be l i eve the board was la te r
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i n fo rmed because on the 29 September the CEO repor ted back to the
board on the fac t tha t they had now appo in ted an IT company to look
in to in fo rmat ion leaks .
ADVOCATE ISAAC MONNAHELA : Okay, you may cont inue.
MR EMMANUEL LEDIGA : Okay, le t ’s jus t check your v ie w broad ly
about these issues . Do you th ink tha t i f the board had taken the rou te
o f an ex te rna l inves t iga t ion , a l l these issues abou t the f i r ings o f the
Menye ’s and the May ise la and you a lso cou ld have been avo ided i f i t
was a d i f fe ren t p rocess to the one wh ich preva i led?
MS BONGANI LOUISA MATHEBULA : I hones t ly be l ieve i t wou ld have
been so much d i f fe ren t , i t wou ld have been hand led d i f fe ren t ly because
f i r s t o f a l l management wou ldn ’ t have been par t o f the process and a l l
the conf l i c ted par t ies inc lud ing some, you know, members o f
management , the HR manager – the HR execut ive as we l l was
imp l ica ted . The HR execut ive was a lso one o f the peop le who was , you
know, s teer ing a l l these d isc ip l inary hear ings , so I t ru ly, t ru ly rea l l y
be l ieve tha t i f i t had been taken out o f the P IC p rocess i t wou ld have
been hand led much bet te r.
MR EMMANUEL LEDIGA : So i t cou ld have been a d i f fe ren t P IC by now
i f James No gu emai l cou ld – I mean, th is Commiss ion probab ly wou ldn ’ t
be here , i s tha t what you ’ re say ing?
MS BONGANI LOUISA MATHEBULA : Look , Commiss ioner, fo r me, I ’m
ta lk ing about the spec i f i c a l l egat ions . Look , there are i ssues a t the
P IC wh ich I be l ieve the Commiss ion is hand l ing a t the moment wh ich I
don ’ t be l ieve is l inked to th is par t i cu la r i ssue. I mean, w i thout – the
fac t tha t the hear ings wou ld have been hand led d i f fe ren t ly, I don ’ t th ink
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there were – they were cer ta in i ssues a t the P IC wh ich were happen ing
in te rms o f v ic t im isa t ion , sa la r ies and a l l those o ther th ings wh ich I
be l ieve tha t the fac t tha t the Commi ss ion o f Inqu i ry, we are cur ren t ly
s i t t ing here now, i t a lso shows tha t , you know, there were cer ta in th ings
tha t a lso needed to be dea l t . Whether the inves t iga t ions wou ld have
dea l t w i th those issues I don ’ t know but on the aspec t o f the hear ings I
be l ieve tha t th ings wou ld have been hand led d i f fe ren t ly. Ja .
MR EMMANUEL LEDIGA : Thank you.
ADVOCATE ISAAC MONNAHELA : Ms Mathebu la , can I jus t take you
back to paragraph 33 o f your s ta tement? You ment ioned there tha t the
board a f te r the meet ing o f the 15 Se ptember the board shou ld have
made a s ta tement ind ica t ing tha t i t had accepted the representa t ions
made by the CEO, r igh t? And then in paragraph 36 r igh t a t the end you
say :
“The board ’s v iew a t the t ime was tha t these a l legat ions were
base less and mal ic i ous . ”
What was the bas is o f tha t now because a f te r they had accepted the
exp lanat ions or representa t ions the board was okay w i th the
cont inuat ion by the IA in ver i f i ca t ions , am I cor rec t?
MS BONGANI LOUISA MATHEBULA : Mr Commiss ioner, so yes , you
are cor rec t par t l y, there are two se ts o f a l legat ions . The f i r s t
a l legat ions o f the 5 September wh ich the board dea l t w i th in tha t
meet ing on the 15 September where the board a f te r tha t meet ing they
had reso lved fo r in te rna l aud i t to conduc t the ver i f i ca t ion proce ss . That
was when the board i ssues the med ia s ta tement on the 15 September.
ADVOCATE ISAAC MONNAHELA : That ’s in re la t ion to the James
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Nogu.
MS BONGANI LOUISA MATHEBULA : To the James Nogu a l legat ions .
The o ther par t in paragraph 36 re la tes to the o ther a l legat ions o f the 13
September, the a l legat ions by Le ih lo la Le ih lo la . Ja . I ’m on paragraph
38, Mr Commiss ioner.
“A f te r the James Nogu emai l the CEO s tar t ing inves t iga t ing the
source o f the leak o f in fo rmat ion . Ms Menye and Mr
Nemagovhan i were a lso ins t ruc ted to have a c r im ina l case
opened in re la t ion to the leak . I became aware o f th is
ins t ruc t ion because they came to my o f f i ce to reques t tha t I
fu rn ish them wi th a purpor ted ly c lass i f ied document w i th
respec t to the MST t ransac t ion . I cou ld un for tunat e ly no t
ass is t them as the or ig ina l l y submi t ted submiss ion f rom the
inves tment team was not c lass i f ied in the f i r s t p lace .
MS GILL MARCUS: Sor ry, I don ’ t unders tand tha t and i t jus t m igh t be
l ack o f apprec ia t ion o f the process because i f i t was no t a c las s i f ied
document sure ly they wou ld have had access to i t anyway. They d idn ’ t
need you to p rov ide i t , i t wou ld have been someth ing tha t they cou ld
have ob ta ined f rom you or anybody e lse because i t was no t a c lass i f ied
document . So d id they ge t the document o r no t?
MS BONGANI LOUISA MATHEBULA : Madame Commiss ioner, no , they
never go t the document .
MS GILL MARCUS: Why not i f i t wasn ’ t – was i t someth ing tha t was
then re fused to them by somebody? You cou ldn ’ t – i f I unders tand your
sentence there i s tha t y ou cou ld no t he lp them because i t was no in
your documenta t ion as c lass i f ied .
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MS BONGANI LOUISA MATHEBULA : Yes , Madame Commiss ioner.
MS GILL MARCUS: But i t was ava i lab le e lsewhere in the organ isa t ion .
MS BONGANI LOUISA MATHEBULA : I t was no t ava i lab le e lsewhere in
the organ isa t ion . Maybe jus t to a lso to pu t contex t , Madame
Commiss ioner. So what happened is tha t the CEO had then ins t ruc ted
– I la te r learn t tha t the CEO had ins t ruc ted Ms Menye and Mr
Nemagovhan i to go and open a case a t the South A f r i can Po l i ce
Serv i ces . When they go t there the po l i ce reques ted tha t they cannot
open a case i f they don ’ t have a c lass i f ied document per ta in ing to the
mat ter hence they came to my o f f i ce and tha t – tha t document they
never found, i t was never the re , the P IC s o hence they cou ldn ’ t open
tha t case. I don ’ t unders tand the SAPS process bu t i t looked tha t ’s
what the SAPS wanted f rom the PIC fo r them to open tha t .
MS GILL MARCUS: But there are two e lements here then to
unders tand tha t .
MS BONGANI LOUISA MATHEBULA : H’m.
MS GILL MARCUS: In o rder to open up the case o f documenta t ion
misuse the SAPS has to say you have a taken a document tha t was
c lass i f ied .
MS BONGANI LOUISA MATHEBULA : Yes .
MS GILL MARCUS: Al r igh t because the document was no t c lass i f ied
they cou ld no t open the case.
MS BONGANI LOUISA MATHEBULA : Cer ta in ly.
MS GILL MARCUS: But what you ’ re a l so say ing is there was no such
document .
MS BONGANI LOUISA MATHEBULA : Cor rec t , Madame Commiss ioner.
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MS GILL MARCUS: Okay.
MS BONGANI LOUISA MATHEBULA : Okay, m ay I con t inue? Okay.
Paragraph 39:
“ I a lso l i s tened w i th surpr ise and d ismay to the tes t imony o f
Ms Menye before th i s Commiss ion s ta t ing tha t the CEO took i t
upon h imse l f to f ind the ident i t y o f the wh is t le b lower and in
the process ins t ruc ted en t rus ted ex terna l serv ice p rov iders to
spy on cer ta in execu t ives inc lud ing myse l f . As ide f rom breach
o f IT p ro toco ls wh ich Ms Menye has h igh l igh ted in tes t imony to
th is Commiss ion i t seems i r regu lar tha t the CEO wi l l so c lose ly
d i rec t an inves t iga t ion in to mat te rs in wh ich he was
imp l i ca ted . ”
MS GILL MARCUS: Jus t coming back to the ques t ion o f – and we ’ve
had th i s ev idence before bu t i f you cou ld jus t ind ica te when i t i s
ins t ruc ted – ex te rna l serv ice prov iders to spy on cer ta in execut ives ,
does tha t mean there wer e record ing dev ices , how was the spy ing to
take p lace or how d id i t take p lace?
MS BONGANI LOUISA MATHEBULA : I be l ieve in my mind tha t ,
Commiss ioner, i t wou ld have been record ing peop le , you know, look ing
at the emai ls o f the peop le . I th ink I ’m a lso ta l k ing on the bas is o f
what I ’ ve heard be fore th is Commiss ion o f Inqu i ry tha t the emai ls - fo r
ins tance, my emai ls were a lso sp ied upon wh ich , you know, was
someth ing wh ich was no t the r igh t th ing to do w i thout me g iv ing
permiss ion fo r such to happen.
MS GILL MARCUS: Adv Lubbe, can we jus t look a t th is subsequent to
th is and have jus t a b i t o f a d iscuss ion because th is i s qu i te – to me
24 APRIL 2019 – DAY 32
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qu i te a b reach. I f there i s someth ing w i th in the PIC tha t say g iven the
na ture do they have r igh t to look a t s ta f f emai ls o r whether th is was
ac tua l l y l i s ten ing dev ices or emai l communica t ion , what au thor isa t ion
to an en t rus ted ex te rna l serv ice prov ider wou ld have been requ i red to
enab le them to do tha t .
ADV JANNIE LUBBE SC : I t i s no ted .
MR EMMANUEL LEDIGA : Can I add? I th i nk i f I reca l l Ms Menye
d idn ’ t ment ion record ings , she spoke about the emai ls and tha t I th ink
the hard d r ives or someth ing they were taken or someth ing , you know,
there was someth ing about the emai ls tha t they were be ing accessed
w i thout you peop le knowin g about i t . Are you say ing there cou ld have
been record ings a lso wh ich is a comple te ly d i f fe ren t mat te r to record
phone ca l l s and a l l tha t?
MS BONGANI LOUISA MATHEBULA : We l l , my v iew is tha t i f they were
spy ing on emai ls maybe they cou ld have been. I ’m not say ing there
was, I ’m say ing maybe there cou ld have been even , you know, l i s ten ing
dev ices bu t what i s be fore th is Commiss ion cer ta in ly i s the fac t tha t
emai ls were sp ied upon.
MR EMMANUEL LEDIGA : Yes , okay, a l r igh t .
CHAIRPERSON : That f i r s t par t o f tha t paragraph, i t seems to me tha t
you are say ing th is i s what Ms Menye tes t i f ied to in th is Commiss ion ,
am I cor rec t o r no t?
MS BONGANI LOUISA MATHEBULA : Yes . Paragraph 40,
Commiss ioner.
MS GILL MARCUS: No, sor ry, jus t on tha t . Was th is the f i r s t t im e you
were aware tha t you were among those be ing sp ied upon?
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MS BONGANI LOUISA MATHEBULA : To be hones t , Madame
Commiss ioner, I had heard the rumours tha t I was a lso be ing sp ied
upon.
MS GILL MARCUS: Sor ry, jus t say tha t aga in?
MS BONGANI LOUISA MATHEBULA : I had heard the rumours tha t I
was be ing sp ied upon.
MS GILL MARCUS: You’d heard rumours bu t th is was the f i r s t t ime
you saw the ev idence?
MS BONGANI LOUISA MATHEBULA : Bu t th is was the f i r s t t ime. Yes ,
th is was the f i r s t t ime. Paragraph 40:
“That such a pro found conf l i c t o f in te res t w i l l a r i se I submi t
shou ld have been obv ious to the board and Dr Mat j i l a and
ought to have been mi t iga ted aga ins t . The resc ind ing or ig ina l
board reso lu t ion in my op in ion was an overs igh t as i t had the
un in tended conseque nce o f ta rge t ing o f ind iv idua ls tha t were
randomly ident i f ied as poss ib le leakers o f in fo rmat ion .
ADVOCATE ISAAC MONNAHELA : I f I may in te rvene, you say in the
f i r s t sen tence o f tha t paragraph:
“That such a pro found conf l i c t o f in te res t w i l l a r i se I submi t
shou ld have been obv ious to the board and Dr Mat j i l a and
ought to have been mi t iga ted aga ins t . ”
Was the board aware tha t Dr Mat j i l a was inves t iga t ing the source o f the
leak o f the in fo rmat ion?
MS BONGANI LOUISA MATHEBULA : O f course the board wou ld have
been aware because the board de legated to i t s commi t tee and the
commi t tee then de legated management to do those inves t iga t ions .
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ADVOCATE ISAAC MONNAHELA : Okay. You, ear l i e r in your
s ta tement , you sa id Ms Fugu cou ldn ’ t dea l w i th a cer ta in i ssue because
she was a lso imp l ica ted . D id the board express any concern about D r
Mat j i l a be ing conf l i c ted in the inves t iga t ion o f the source o f the leaks
o f the in fo rmat ion?
MS BONGANI LOUISA MATHEBULA : Surpr is ing ly the board d idn ’ t
pronounce any d iscomfor t fo r Dr Mat j i l a who was conf l i c ted . However,
the board then cou ld see tha t the Cha i r o f aud i t o f r i sk was imp l ica ted
was conf l i c ted hence she was no t go ing to par t i c ipa te in any o f those
inves t iga t ions , so tha t fo r me a lso i s another i ssue.
ADVOCATE ISAAC MONNAHELA : You may cont inue a t paragraph 41.
MS BONGANI LOUISA MATHEBULA : Okay. The CEO repor ted to the
board dur ing the meet ing he ld on the 29 September tha t BCX and
Te lkom were appo in ted to inves t iga te in fo rmat ion leaks and to ass is t
w i th IT secur i t y. I t was c lea r tha t the board had permi t ted the CEO to
take charge o f the inves t iga t ion in to the source o f leak ing o f
in fo rmat ion . Th is was done w i thout hav ing regard to the ev iden t
conf l i c t o f in te res t by the CEO and o ther imp l ica ted execut ives
espec ia l l y the execu t i ve head o f HR who was la te r tasked w i th runn ing
w i th d isc ip l inary mat te rs l inked w i th the leakage o f in fo rmat ion .
ADVOCATE ISAAC MONNAHELA : Mr Commiss ioner, i t ’s e leven
o ’c lock , i s a conven ien t t ime to take the ad journment?
INQUIRY ADJOURNS
COURT RESUMES:
CHAIRPERSON : Ms Mathebu la , you ’ re s t i l l under oa th .
MS BONGANI LOUISA MATHEBULA Yes , Commiss ioner.
24 APRIL 2019 – DAY 32
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CHAIRPERSON : You may con t inue.
ADVOCATE ISAAC MONNAHELA : Yes , you may s ta r t a t paragraph 42
on page 14.
MS BONGANI LOUISA MATHEBULA : Okay, thank you.
MR EMMANUEL LEDIGA : Ms Mathebu la , be fo re you proceed, jus t
another ques t ion be fore we leave th is a rea .
MS BONGANI LOUISA MATHEBULA : Okay.
MR EMMANUEL LEDIGA : Jus t in te rms o f the two paths – you know,
we sor t o f agreed tha t there was the in te rna l pa th and the ex terna l pa th
wh ich was supposed to be taken and the board dec ided to take the
in te rna l rou te . Do you th ink when the board took tha t dec is ion was i t
jus t a mis take? Sor t o f w i th h inds igh t was i t jus t an i ssue o f m is takes
or there was jus t – the board was l i ke conf ident tha t i t s tak ing the r igh t
dec is ion? I don ’ t know whether I ’m c lear bu t I mean do you th ink i t was
an hones t dec is ion , hones t mis take w i th h inds igh t in some ways or
someth ing d i f fe ren t?
CHAIRPERSON : I f you are ab le to answer tha t qu es t ion .
MS BONGANI LOUISA MATHEBULA : Mr Commiss ioner, I can answer
bu t th is i s my own persona l v iews. I do no t be l ieve tha t i t was an
hones t mis take , the board was ques t ioned on severa l occas ions on ,
you know, the appropr ia te rou te to take in tha t respec t . F i rs t o f a l l , the
board d is regarded the fac t tha t i t was a wh is t le b lowing repor t , they
d idn ’ t wan t to heard tha t .
Second o f a l l , the board was a lso ques t ioned to say le t ’s jus t
s t ick lega l adv ice or lega l op in ion on th is mat te r, i t wou ld have been
much more appropr ia te and hav ing been a t the board as a company
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secre tary I ’ ve seen ins tances where the board took reso lu t ions to go
fo r lega l op in ions and I be l ieve tha t tha t wou ld have taken ou t any sor t
o f sub jec t i ve , you know, ins tances(?) wh ich I observ ed as a company
secre tary so my hones t v iew, I do no t be l ieve i t was an hones t mis take ,
I th ink there were in f luences . Where those in f luences were coming
f rom, I cannot te l l .
MR EMMANUEL LEDIGA : And so you th ink tha t the board – the bes t
the board cou ld have done is to ge t a lega l , you know, adv ice on what
to do and then fo l low f rom there?
MS BONGANI LOUISA MATHEBULA : Prec ise ly, Commiss ioner, the P IC
does have a mechan ism where the board can seek adv ice and the PIC
pays fo r those and i t has happened qu i t e a number o f t imes . Where
the board i s no t sure or cer ta in on the rou te to take I be l ieve ge t t ing an
ex terna l op in ion w i l l be be t te r approach.
MR EMMANUEL LEDIGA : Ja, thank you very much .
MS BONGANI LOUISA MATHEBULA : Can I s ta r t? Okay. I ’m on
paragraph 42:
“The in te rna l aud i t repor t , tha t i s annexure BM7, regard ing the
a l legat ions on the loan prov ided by the PIC to mob i l i se
Sate l l i t e Techno log ies was p resented by Mr Nemagovhan i
dur ing a board meet ing he ld on the 29 September 2017. I t
shou ld be no ted t ha t there was no pack prepared fo r th is
meet ing and the mat te r to be d iscussed by the board was fo r
me not a run -o f - the-mi l l . I was in a t tendance a t tha t meet ing
tak ing minutes so i t was prudent fo r me to capture the t rue
proceed ings o f the d iscuss ions a t the meet ing . I a lso d id no t
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want to second -guess the d iscuss ions o f the board and conf ine
the minutes to on ly the reso lu t ions taken a t tha t meet ing .
Dur ing the presenta t ion o f the in te rna l aud i t repor t i t was
ev ident tha t the in te rna l aud i t d id no t cond uc t an eva lua t ion
and aud i t o f the conduc t o f Dr Mat j i l a in reques t ing Mr
Lawrence Mulaudz i to make a payment o f 300 000 to se t t le the
debt o f Ms Pre t ty Louw’s company. Th is was due to the fac t
tha t th is aspec t was spec i f i ca l l y exc luded by the board in th e
in te rna l aud i t scope o f work to tes t the va l id i t y, accuracy and
comple teness o f the document submi t ted by management . I
had d i f f i cu l t y w i th the board ’s approach tha t a l though the CEO
had prepared a response to the a l l egat ions wh ich the board
accepted. Those responses d id no t dea l w i th the i ssue o f h im
reques t ing 300 000 to be g iven to Ms Louw. Dr Mat j i l a ’s
submiss ions to the board on ly re f lec ted the in te rna l p rocess
fo r loan in approv ing the MST loan and CSI a l loca t ion . I t
there fore meant tha t the CEO had not fu l l y responded to a l l
the mat te rs o r conf i rmed the accuracy o f some o f the
a l legat ions and the board s t i l l accepted th is , h is responses ,
and dec la red the a l legat ions base less w i thout independent ly
tes t ing the same. Th is was one o f the i ssues tha t had
a t t rac ted pr ice coverage and pub l i c c r i t i c i sm a t the t ime. Th is
was because Mr Mulaudz i i s bus inessman who had rece ived
s ign i f i can t fund ing f rom the P IC in the pas t and whom one
cou ld reasonab ly say was dependent on fu tu re fund ing . Mr
Nemagovhan i was excused f rom the meet ing and reques ted to
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i n te rv iew both the CEO and Mr Mulaudz i on th is l im i ted aspec t
o f the James Nogu a l legat ions . Mr Nemagovhan i repor ted
back to the board on th is d iscuss ions he ld w i th the CEO and
te lephon ic d iscuss ions w i th Mr Mu laudz i . He repor ted tha t Mr
Mulaudz i had conf i rmed tha t Ms Louw and her bus iness
par tner were in t roduced to h im by the CEO who in i t ia l l y
reques ted h im to ass is t the lad ies w i th bus iness oppor tun i t ies
wh ich he cou ld no t do . La ter, accord ing to the vers ion o f Mr
Mulaudz i , as repor ted by in te rna l aud i t in the meet ing the CEO
reques ted h im to ass is t the lad ies se t t le the i r bus iness deb t
wh ich Mr Mulaudz i d id by pay ing an amount o f 300 000 in two
equa l ins ta lments to the co l lec t ing a t to rneys . ”
MS GILL MARCUS: Sor ry, can I jus t in te r rup t you there fo r a second?
Again i t ’s a po in t o f c la r i f y. From your tes t imony here i t wou ld look as
i f t here were then two d is t inc t approaches to Mr Mulaudz i . The f i r s t
was to see whether he cou ld he lp them wi th the i r bus iness ac t i v i t ies
and the second one was abou t a payment t ransac t ion o f ask ing h im to
pay the – and ass is t the 300 000. Two d is t inc t t imes .
MS BONGANI LOUISA MATHEBULA : Cor rec t , Madame Commiss ioner.
MS GILL MARCUS: Thank you.
MS BONGANI LOUISA MATHEBULA : Paragraph 47.
ADV JANNIE LUBBE SC : Sor ry, Mr Commiss ioner, jus t fo r the record
– and I th ink i t ’s re levant to the ques t ion asked, tha t was exac t ly the
ev idence o f Mr Mulaudz i .
MS GILL MARCUS: Yes but i t wasn ’ t the ev idence about how they f i r s t
met Ms Louw.
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ADV JANNIE LUBBE SC : That i s cor rec t .
MS BONGANI LOUISA MATHEBULA : Paragraph 47.
“When th is feedback was g iven to the board and the Cha i rman
asked the d i rec to rs i f th i s cou ld no t be regarded as
impropr ie ty. Some d i rec tors jumped in the de fence o f Dr
Mat j i l a . They went as fa r as …[in tervenes ]
MS GILL MARCUS : Sor ry, who was the Cha i rman a t tha t po in t in t ime?
MS BONGANI LOUISA MATHEBULA : I t was Mr S f iso Buthe lez i .
MS GILL MARCUS: Buthe lez i .
MS BONGANI LOUISA MATHEBULA : Ja .
“They went as fa r as say ing t hey were proud o f what he had
done. I t showed tha t he was a thought fu l and se l f less CEO
who was w i l l i ng to rescue a s t rugg l ing en t repreneur. One
d i rec tor even re fe r red to h im as a Good Samar i tan . There was
an immedia te heated debate and pushback to th is response.
The deputy cha i rman a t the t ime, Dr Mkwanaz i , ques t ioned h is
co l l eagues f rom defend ing the indefens ib le . He expressed
shock tha t there were some d i rec tors who were w i l l i ng to
jus t i f y the ac t ions o f the CEO. Ms Zu lu then s ta ted tha t i f th is
was the board ’s response to the mat te r she cha l lenged the
board to make a pub l i c p ronouncement to th is e f fec t to see
how the reasonab le pub l i c w i l l rece ive such a s tance. I t was
tha t po in t tha t the Cha i rman p leaded w i th the board members
to be hones t w i th t hemse lves and not be seen to be promot ing
what cou ld be seen as uneth ica l behav iour. The board then
accepted the Cha i rman ’s adv ice then reso lv ing tha t the soc ia l
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and e th ics commi t tee shou ld fo rmula te a po l i cy wh ich shou ld
have been meant to avo id s i tua t io ns where the CEO or any o f
the management s ta f f can be compromised and to ensure tha t
i f the CEO wants to make such in i t ia t i ves he can do so wh i ls t
accompan ied by o ther P IC o f f i c ia ls and tha t such meet ings
shou ld be done in a fo rmal and recorded manner. E ven a t tha t
po in t the major i t y o f the board s t i l l he ld a v iew tha t the CEO
had done noth ing wrong and he jus t needed to be ques t ioned
about how he hand les such mat te rs in the fu tu re so tha t there
i s no percept ion tha t he uses h is in f luence to ass is t the
par t ies . Such a po l i cy was never deve loped accord ing to my
knowledge . My unders tand ing o f the way the board
de l ibera ted on the impropr ie ty was tha t the major i t y o f the
board d id no t regard i t war ran t ing fo r fo rmula t ion to be taken
aga ins t the CEO but accep ted the CEO’s ac t ions , r i sk ,
engender ing the percept ion tha t he had used h is pos i t ion o f
in f luence to improper ly benef i t another person. Aga in a med ia
s ta tement was issued …[in tervenes ]
MR EMMANUEL LEDIGA : Paragraph 47 and I don ’ t ’ know whether you
can answer th is , i f you can ’ t p lease te l l me. The ques t ion i s who
defended the CEO? You sa id some peop le jumped in to the de fence o f
the CEO. Can you reca l l the names the peop le and a l l i f you can
answer tha t?
MS BONGANI LOUISA MATHEBULA : Okay. Mr Commiss i oner, can I
no t ment ion names? I can g ive the names to the ev idence leader.
ADVOCATE ISAAC MONNAHELA : That ’s f ine , tha t ’s f ine .
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MS BONGANI LOUISA MATHEBULA : Sor ry, I ’m on paragraph 50.
“Aga in a med ia s ta tement was issued a f te r the board meet ing
of the 15 September 2017. ”
That i s annexure 8 .
“Th is med ia s ta tement made no ment ion tha t the CEO’s
conduc t engendered r i sk and was i r regu lar and ou t o f l i ne in
any way. Th is fac t wou ld however have been apparent f rom a
perusa l o f the minutes o f the meet ing tha t I w i l l dea l w i th in
subsequent paragraphs . ”
A l l med ia - re la ted s ta tements and newspaper a r t i c les are a lso a t tached,
Commiss ioner under BM8A.
“A l legat ions no t tho rough ly inves t iga ted . The sudden dec is ion
to s top any fu r ther inves t iga t ion . On the 6 Octobe r 2017 in
annexure 9 the board he ld an urgent spec ia l board meet ing .
Th is was immedia te l y a f te r the board s t ra teg ic sess ion wh ich
was he ld in Maga l iesberg be tween the 5 and 6 October 2017.
Aga in I was in a t tendance and I was the one tak ing the
minutes a t tha t meet ing . Aga in I was a lso to ld no t to record
the d iscuss ions . The board took a reso lu t ion no t to pursue
any fu r ther inves t iga t ions o f the a l l egat ions o f the 13
September 2017 a t tha t meet ing . G iven the na ture and
ser iousness th is s t r i ked me as a f a i lu re by the board to
d ischarge i t s f iduc ia ry respons ib i l i t i es in the in te res t o f the
PIC. ”
MS GILL MARCUS: Sor ry, can I jus t ask you. When the board took
tha t reso lu t ion were any reasons g iven?
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MS BONGANI LOUISA MATHEBULA : Yes .
MS GILL MARCUS: Reasons to say we ’ re no t go ing to pursue any
fu r ther inves t iga t ions . What were the reasons g iven?
MS BONGANI LOUISA MATHEBULA : Madame Commiss ioner, the
reasons g iven by the board was tha t the a l l egat ions o f the 13
September 2017 were mal i c ious and base less bu t a lso the board was
say ing tha t they wanted to res tore s tab i l i t y in to the PIC. So those
…[in tervenes ]
MS GILL MARCUS: Same reason ing as you had g iven be fore .
MS BONGANI LOUISA MATHEBULA : Yes .
MS GILL MARCUS: But they s t i l l d id no t have any in fo rmat ion , they
had not go t a resu l t o f any inves t iga t ion .
MS BONGANI LOUISA MATHEBULA : P rec ise ly.
“…espec ia l l y s ince pub l i c sc ru t iny on the PIC, espec ia l l y the
CEO was he igh ten ing . Log ic wou ld have de tec ted tha t the
board a l low in te rna l aud i t p rocess the board ha d i t se l f
commiss ioned on the 15 September 2017 to be comple ted and
not to c lose th is – and to c lose th is mat te r p roper ly.
Surpr is ing ly the reason g iven…”
Aga in these are the reasons .
“…to s top a l l fu r ther inves t iga t ions was to res tore s tab i l i t y a t
the P IC and to focus on the imp lementa t ion o f the mandate o f
the P IC. What i s cont ra ry i s tha t the v ic t im isa t ion by
management aga ins t those who were fa l l ing ou t o f l i ne w i th the
CEO was cont inu ing . I need to ment ion tha t i t was dur ing the
board meet ing o f the 15 September, Commiss ioner, 2017, and
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a l l subsequent meet ing dea l ing w i th the a l legat ions aga ins t
the CEO where there were ser ious tens ions in the board , the
board was c lear ly d i v ided on th is mat te r. S imp ly pu t i t became
very c lear tha t there were d i rec to rs who were prepared to
de fend the CEO and immed ia te ly exonera te h im wi thout
a l low ing any due process . There were o ther d i rec tors in the
minor i t y who re jec ted th is approach. These d i rec tors he ld a
s t rong v iew tha t th is mat te r, i f no t p roper ly dea l t w i th posed a
ser ious reputa t iona l r i sk on the board and the PIC as a who le .
A l though i t was on ly Ms Zu lu who ins is ted tha t her d issent ing
v iew to what she regarded as a f lawed process by the board
be recorded. There were s t rong d i f fe rences o f op in ion dur ing
the debate on the mat te r. However, the major i t y o f the board
suppor ted Dr Mat j i l a and even re leas ing med ia s ta tements
endors ing h im pub l i c ly. ”
ADVOCATE ISAAC MONNAHELA : I f I may in te rvene there . In the las t
sentence o f paragraph 52 you say :
“What i s cont ra ry i s tha t the v ic t im isa t ion by management
aga ins t those who were fa l l ing ou t o f l i ne w i th the CEO was
cont inu ing . ”
Who were those peop le in management who were v ic t im is ing
employees?
MS BONGANI LOUISA MATHEBULA : I be l i eve to my unders tand ing i t
was the CEO, i t was the execu t ive head o f HR. The CFO – the head o f
HR repor ts to the CFO and I do no t be l ieve tha t the HR head was
ac t ing ou t o f l i ne w i thout tak ing ins t ruc t ions or consu l ta t ion w i th the
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CFO.
ADVOCATE ISAAC MONNAHELA : Okay, when you say they v i c t im ised
employees , what you mean, how d id they v ic t im ise them?
MS BONGANI LOUISA MATHEBULA : I ’m go ing to ta lk – thank you, I ’m
go ing to ta lk fo r myse l f . A t the t ime the board took a reso lu t ion o f 6
Oc tober, i t was the t ime when a l l the fo rens ic inves t ig a t ions have
s ta r ted . A l though I d id no t rea l i se a t the t ime the grav i t y and the
na ture and the de terminat ion to t ry and f ind who the leakers o f
in fo rmat ion were , i t was dur ing tha t t ime when Na led i had been
appo in ted and I had a l ready underwent in te rv iews w i th Na led i and then
I then rea l i sed now tha t i t was the t ime when the CEO had jus t s ta r ted
th is , you know, w i tch hunt to t ry and f ind who the leakers o f in fo rmat ion
were . So I myse l f was the one who was a t tha t t ime now be ing
v ic t im ised.
ADVOCATE ISAAC MONNAHELA : Okay, you may proceed.
MS BONGANI LOUISA MATHEBULA : I ’m go ing to ta lk …[ in te rvenes ]
MR EMMANUEL LEDIGA : Jus t to unders tand someth ing . So in te rms
o f the board func t ion ing , you know, o r func t ion ing we l l , i t l ooks l i ke we
have a pre -Nogu board and a pos t -Nogu k ind o f board . Was the board
func t ion ing we l l be fore the Nogu mai ls , the emai l s , i f you can reca l l?
Was i t no t d iv ided, was i t func t ion ing very we l l? We know pos t -Nogu
there were prob lems.
MS BONGANI LOUISA MATHEBULA : Mr Commiss ioner, the board was
func t ion ing qu i te we l l . Even a f te r the Nogu emai ls I mus t in te rms o f
s t ra tegy – I mean, s t ra tegy sess ions were he ld , s ta tu to ry mat te rs were
a t tended to by the board . There was a t ime when there was a vacuum
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af te r the depar tu re o f the then Min is te r Gordhan and h is deputy
min is te r a t the t ime, Mr Mceb is i Jonas , be fore the appo in tment o f the
new deputy min is te r who then la te r became the Cha i rman. There was a
t ime when, you know, we were s t i l l wa i t ing fo r the Cha i rman to be
appo in ted , I th ink i t was about th ree months a t tha t t ime. But the board
was func t ion ing qu i te we l l in te rms o f approv ing , s t ra teg ic document ,
corpora te p lans were submi t ted , th ings tha t were supposed to be
at tended to were a t tended to . So I don ’ t want to say the board was no t
func t ion ing . I t was on ly when the issues o f the a l l egat ions were
d iscussed at the board where there was ser ious d iv is ions and
d isagreements in the board .
MR EMMANUEL LEDIGA : Ja . Thank you .
MS BONGANI LOUISA MATHEBULA : Okay, can I con t inue? Thank
you. Paragraph 54.
“The meet ing be tween the ers twh i le Min is te r G igaba and the
board . On the 26 September 2017, annexure 10 , Min is te r
G igaba met w i th the board to address severa l concerns in l igh t
o f the pers is ten t negat ive med ia pub l i c i t y tha t was con f ron t ing
the PIC. The min is te r spec i f i ca l l y reques ted fo r the meet ing to
be recorded. What p rompted the min is te r ’s meet ing was an
ar t i c le te rmed “Dan Mat j i l a , they are look ing fo r the keys to
the b ig sa fe” wh ich was da ted the 24 September 2017. O f
concern about the ar t i c le was tha t the board had taken a
dec is ion p r io r to the ar t i c le tha t any communica t ion w i th the
med ia shou ld be sanc t ioned by the board . However, the CEO
had taken i t upon h imse l f to be in te rv iewed about mat te rs
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which wou ld ass is t w i th t he board ou ts ide the board . The
t ranscr ip t o f the meet ing w i th the Min is te r, Mr Commiss ioner,
i s a lso annexed, i t ’s a lso a t tached. The t ranscr ip t w i l l se t the
fu l l con tex t o f what t ransp i red dur ing the meet ing . I was a lso
by the way in a t tendance a t the meet ing and I was a lso then
reques ted to a lso take the minu tes . ”
Okay, tha t ’s annexure 11 .
“Min is te r G igaba, a shareho lder representa t i ve , was concerned
tha t he was be ing dragged in to P IC mat te rs wh ich he had no
knowledge o f and he was be ing pa in ted as in te r fe r ing in to the
governance a f fa i rs o f the P IC wh ich he den ied . The min is te r
sa id he had rece ived - in th i s open ing the min is te r sa id tha t
he had rece ived a Whatsapp tex t on the 13 Sep tember 2017
f rom a Cape Town bus inessman and he read the tex t ou t in to
the record . The tex t read, I quote :
“H i Ma lus i , can you ca l l me urgent ly. My ed i to rs have p icked
up a s to ry on the remova l o f Dan Mat j i l a as P IC CEO at a
spec ia l board meet ing on Fr iday. I am not sure i f you are
aware , th is w i l l be ca tas t roph ic and w i l l se t us back . P lease
in te rvene to s top th is s ince i t i s no t good fo r you and the
pro jec t . I have a lso sent S f iso a tex t . I am ava i lab le to chat
any t ime. ”
ADVOCATE ISAAC MONNAHELA : I f I may in te rvene, do you have any
idea who th is Cape Town bus iness man cou ld be?
MS BONGANI LOUISA MATHEBULA : I do no t have any idea bu t I
be l ieve a name was ment ioned and I th ink i t was Mr Iqba l Survé . And
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the min is te r ’s response was :
“ I am not on the PIC board , ch ie f , I canno t in te rvene on th is as
th is i s a mat te r the board has no t fo rmal ly repor ted to me. My
deputy has no t to ld me they have suspended the CEO. I am
sure you wou ld unders tand, I have to respec t governance. ”
And then the bus inessman responded:
“Of course , I ’m jus t t r y ing to he lp so tha t i t does no t
embar rass you, the DM and the government . I t w i l l a lso undo
a l l the good pub l i c i t y you have been get t ing . I leave i t in your
hands . ”
MS GILL MARCUS: Thanks , can I jus t perhaps go back to the or ig ina l
tex t and perhaps Adv Lubbe, i t wou ld be poss ib le to ask f o rmer Min is te r
G igaba about th is and whether who i t was f rom so tha t we can
authent ica te the source o f th is ca l l i f i t ’s poss ib le?
ADV JANNIE LUBBE SC : I t w i l l be fo l l owed.
MS GILL MARCUS: I th ink the second ques t ion f rom me was tha t i f
M in is te r G igaba i s say ing the PIC ’s been dragged in to mat te rs , i t ’s
c lear ly be ing dragged in to mat te rs f rom th is by the bus inessman not by
the PIC or the med ia , the bus inessman is d ragg ing the person in and
there fore the ques t ion fo r me wou ld be aga in to fo rmer Min is te r
G igaba, how d id he then dea l – apar t f rom the tex t here , you know, how
wou ld somebody be tha t fami l ia r to be ab le to do tha t .
I th ink the th i rd ques t ion tha t I wou ld have wh ich re la tes to
th is i s to unders tand “ i t ’s no t good fo r you and the pro jec t ” , what
p ro jec t? Do we have any idea what p ro jec t he was re fe r r ing to?
And the four th ques t ion i s , i s tha t i f i t i s an issue fo r the P IC
24 APRIL 2019 – DAY 32
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and I ’m assuming tha t S f iso re fe rs to Deputy Min is te r Buthe lez i who
would have been the Cha i rperson o f the P IC a t the t ime . I t i s qu i te
ex t raord inary tha t a bus inessman can contac t m in is te r and a deputy
min is te r and a cha i r ask ing them to look in to th is mat te r. So I do th ink
there needs to be fo l low -up perhaps by you, Adv Lubbe, un less you are
ab le , Ms Mathebu la , to ind ica t e what your unders tand ing o f the pro jec t
was and whether the re was any e labora t ion o f tha t in the meet ing and
whether any board member ac tua l l y asked h im, you know, w i th any
d iscuss ion in the board what p ro jec t a re your re fe r r ing to tha t i s be ing
pu t a t r isk g iven tha t th is was read in to the tex t and I ’m assuming then
you have i t as a vo ice record ing as we l l , so th is i s the ac tua l tex t
because he d id ask you to record tha t meet ing , i s tha t cor rec t?
MS BONGANI LOUISA MATHEBULA : Madame Commiss ioner, yes , i t
was recorded, we a lso have i t on record ings . The mat te r was never
d iscussed fu r ther a t tha t meet ing so I do no t know what p ro jec t he was
re fe r r ing to .
MS GILL MARCUS: Jus t fo r c la r i t y, a l though th is was pu t in to the
meet ing w i th the board , the board d id no t ask h im to e labora te on any
leve l .
MS BONGANI LOUISA MATHEBULA : Cor rec t , Ma ’am.
ADVOCATE ISAAC MONNAHELA : Mr Commiss ioner, i f I may re fe r the
members o f the commiss ion to annexure BM11, page 2 o f annexure
BM11, f rom l ine number 19 , the min is te r sa id :
“ I do no t know how is i t no t good fo r me and I do no t know
how. ”
What p ro jec t was he ta lk ing to , was he re fe r r ing to?
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MS GILL MARCUS: The min is te r i s i nd ica t ing tha t he d id no t know
what he was re fe r r ing to .
ADVOCATE ISAAC MONNAHELA : That i s what i s rec orded.
MS GILL MARCUS: Thank you.
MS BONGANI LOUISA MATHEBULA : Paragraph 56.
“The Min is te r was angry tha t he was be ing dragged in to P IC
i n te rna l mat te rs . He reques ted to be prov ided w i th answers on
spec i f i c mat te rs . ”
CHAIRPERSON : Sor ry, d id you pu t tha t las t quote on record?
MS BONGANI LOUISA MATHEBULA : I d id bu t I can read i t aga in fo r
the record .
CHAIRPERSON : I don ’ t th ink you d id , I ’m not sure .
MS BONGANI LOUISA MATHEBULA : Okay, le t me read i t fo r the
record .
“Of course , I ’m jus t t r y ing to he lp s o tha t i t does no t
embar rass you, the DM and the government . I t w i l l a lso undo
a l l the good pub l i c i t y you have been get t ing . I leave i t in your
hands . ”
CHAIRPERSON : And the DM is Deputy Min is te r.
MS BONGANI LOUISA MATHEBULA : I s the Deputy Min is te r.
“The Min is te r was angry tha t he was be ing dragged in to P IC
in te rna l mat te rs . He reques ted to be prov ided w i th answers on
spec i f i c mat te rs . Those were a l legat ions aga ins t the Min is te r
tha t he and the then Cha i rman, Mr Buthe lez i and the two newly
appo in ted board members , a t the t ime Dr Mkhwanaz i and Ms
Mokoka were par t o f a g roup o f ind iv idua ls dep loyed to captu re
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the P IC and fac i l i t a te the remova l o f the then CEO. ”
I mus t say, Commiss ioner, tha t the ar t i c le tha t I read ou t tha t says they
are ou t to ge t the b ig sa fe a lso ment ioned the aspec t o f the s ta te
capture . Th is was one o f the ar t i c les wh ich a lso ment ioned the issue
o f the s ta te capture .
“The min is te r a lso wanted responses on how the board had
hand led the a l legat ions aga ins t the CEO, how the board has
dea l t w i th the a l legat ions about the hack ing o f the P IC IT
sys tem, how the board wou ld dea l w i th the misquot ing o f the
s ta tement made by the CEO in h is in te rv iew wi th the Sunday
Times, eNCA and any o ther newspaper, a l legat ions o f
in te r fe rence by the min is te r in the governance o f the P IC and
he reques ted to be prov ided w i th regu lar repor ts on these
mat te rs . Fo l low ing the meet ing w i th the board Min is te r G igaba
wro te a le t te r on the 9 October 2017, tha t i s annexure 12 , to
the board as a fo l low -up and reques t ed the board to a t tend to
severa l i ssues fo l low ing h is meet ing w i th the board on the 26
September. Two o f the …[in tervenes ]
MS GILL MARCUS: Sor ry, can I jus t ask a ques t ion in re la t ion to tha t?
So can I jus t have the f i le . I jus t want to re fe r to somet h ing in tha t f i l e .
As you can see, these two f i les a re the annexures , sor ry i t ’s a l i t t l e b i t
unwie ldy bu t I jus t want to come to the re fe rence tha t you have there
on 12 wh ich is , i f I remember cor rec t l y. Th is i s the le t te r to the Cha i r
and how the board – the in te res t ing ques t ion fo r me or the impor tan t
ques t ion fo r me wou ld be how the board has responded to a reques t o f
th is na ture and I w i l l j us t pu t i t in to – no t the who le le t te r bu t jus t an
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aspec t o f tha t .
“For t ransparency purposes in the pub l i c in t eres t to ensure
tha t the P IC ’s depo l i t i c i zed and to pu t a l l s takeho lders a t ease
about P IC inves tments have dec ided and now reques t you to
do the fo l low ing :
D isc lose a l l P IC t ransac t ions l i s ted , un l i s ted and conc luded in
the pas t th ree years , the amounts o n each t ransac t ion
conc luded , the t ransac t ion adv isers , the amounts pa id by P IC,
d isc lose a l l the BEE consor t iums in those t ransac t ions ,
spec i f i ca t ion s ta ted each ind iv idua l lega l en t i t y and par t i c ipa te
in the consor t ium, fu rn ish me wi th a l i s t o f t ransac t ions you
have conc luded w i th par t ies tha t a re prominen t in f luent ia l
persons and d isc lose de ta i l s o f ind iv idua ls o f compan ies who
have been funded by the PIC or par t i c ipa ted in a P IC
t ransac t ion more than once in the pas t th ree years . ”
How d id the board res pond to such an ex tens ive reques t because I
wou ld have thought tha t tha t – i t m igh t be ava i lab le bu t i t wou ld be
pre t t y vo luminous to be do ing tha t . Was there d iscuss ion by the board
about th is reques t? Was i t tab led a t the board?
MS BONGANI LOUISA MATHE BULA : Yes , Madame Commiss ioner,
there was a d iscuss ion abou t the le t te r o f the Min is te r a t the board
meet ing tha t was on the 16 October 2017 to d iscuss how the board w i l l
respond to such a w ide , you know, rang ing reques t f rom the Min is te r
and I w i l l a lso dea l w i th tha t , i t ’s on paragraph – f rom paragraph 60.
Okay, paragraph 58:
“Two o f the board members , Ms Dudu Hla tshwayo and Dr
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Claud ia Mann ing , subsequent to rece ip t o f the Min is te r ’s le t te r
approached a D i rec tor and Cha i rman a t ENS in the i r persona l
capac i t y to seek lega l adv ice . The Board Char te r and
D i rec tors Code o f Conduc t exp l i c i t l y s ta ted tha t NEDs are
en t i t led to seek p ro fess iona l adv ice wh ich inc ludes lega l
adv ice a t the company ’s expense sub jec t to the board
pro toco ls and app l i cab le po l i c ies . ”
MS GILL MARCUS: So why wou ld they have had to do tha t in the i r
persona l capac i t ies g iven tha t i t was w i th in the i r mandate as board
members?
MS BONGANI LOUISA MATHEBULA : To be hones t when there was –
we never go t an answer to tha t i ssue. I t was someth ing wh ich was
h igh ly debated in the meet ing o f the 16 October as we l l bu t , you know,
a t the end o f the day the d i rec tors jus t , you know, sa id they were
en t i t led to seek the i r own adv ice in the i r persona l capac i t y on mat te rs
wh ich were , you know, be longed to p ub l i c inves tment corpora t ion and
on issues tha t happened when they were board members in tha t
capac i t y.
Paragraph 61 :
“On the 16 t h Oc tober 2017, ( I have annexed the
minutes o f tha t meet ing under BM13) the board met to
d iscuss the min is te r ’s le t te r and dec i ded to so l i c i t a
lega l op in ion , whether the m in is te r was en t i t led to
i ssue d i rec t i ves to the PIC…”
One o f the i ssues , p rec ise ly, Madam Commiss ioner, was the fac t tha t
i ssues tha t the min is te r wanted were w ide rang ing and the board
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wanted to unders tand how they can dea l w i th those th ings .
“ENS was appo in ted to p rov ide the op in ion fo r the
PIC. These are the same lawyers who were in i t ia to rs
dur ing my d isc ip l i nary hear ing…”
Th is , aga in , Madam Commiss ioner, were the same lawyers
whom Ms Hla tshwayo and Ms Mann i ng went to seek lega l adv ice in
the i r persona l capac i t y. I mus t say, there was a debate in the board ,
regard ing whether there were no conf l i c t o f in te res t , shou ld the board
employ ENS.
And the major i t y o f the v iews, a l though there was a minor i t y
wh ich fe l t tha t the P IC canno t appo in t the same lawyers whom, you
know, the two lad ies had gone to seek lega l adv ice in the i r persona l
capac i t y, the major i t y o f the board ’s v iew was tha t , because they
approached a d i f fe ren t d i rec tor, the P IC is en t i t led to appo in t another
d i f fe ren t d i rec tor o f the same law f i rm.
So, hence, the board u l t imate ly conc luded to appo in t ENS.
Paragraph 61 :
“The lega l op in ion was verba l l y p resented to the
board on the 19 t h Oc tober 2017. ( I have a lso
a t tached those minu tes o f the meet ings . ) . The wr i t ten
lega l op in ion was la te r emai led to me. The lega l
op in ion conf i rmed tha t the m in is te r was en t i t led to
i ssue d i rec t i ves to the PIC wh ich is confer red by
Sec t ion 6(4) i f i t i s in the pub l i c in te res t in l ine w i th
the P IC Ac t 23 o f 2004…”
MS GILL MARCUS : Sor ry. Can I jus t take you back a second to the
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ques t ion o f the board appo in t ing a lega l team and the two d i rec tors . In
tha t meet ing d id the board approve or condone or take any v iew on the
fac t tha t Ms H la tshwayo and Dr Mann ing had been to o r seek lega l
adv ice in the i r persona l capac i t y?
Because tha t wou ld have been fo r me a t ime to say : You have
done tha t . That i s f ine . I t i s w i th in the keep ing o f the ru le tha t app ly.
Or was there any d i f fe rence o f v iew there?
What was the v iew o f th e board on the two ind iv idua ls hav ing
sought lega l adv ice , i f any?
MS BONGANI MATHEBULA : The board d id no t th ink they a re go ing in
the i r persona l capac i t y was so much an issue. The b igges t i ssue was
the fac t tha t P IC wou ld now appo in t the same lawyers . Yes . Ja .
ADV ISAAC MONNAHELA : Okay. Can I take you back to paragraph 55
o f your s ta tement , where you dea l w i th the repor t by the min is te r. Tha t
he had rece ived a Whatsapp tex t on 13 t h September f rom a Cape Town
bus inessman.
I t i s c lear f rom tha t tex t , tha t the bus inessman was aware tha t
the board w i l l be s i t t ing on Fr iday. My ques t ion to you is . Are the
da tes o f the meet ings o f the board made pub l i c?
MS BONGANI MATHEBULA : The da tes o f the meet ing o f the board are
no t made pub l i c .
ADV ISAAC MONNAHELA : The agenda fo r the meet ings , a re they
made pub l i c?
MS BONGANI MATHEBULA : No, they a re no t .
ADV ISAAC MONNAHELA : The reason I am ask ing you th is i s tha t a t
… And i f I may take the Commiss ion back to Annexure BM11. Page 3
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of paragraph… I mean, page 3 o f Annexure BM11.
MS GILL MARCUS : Cou ld you jus t read i t ou t?
ADV ISAAC MONNAHELA : The min is te r i s recorded to have sa id the
fo l low ing f rom l ine 12 :
“How is i t supposed to embar rass me? 1 . I d id no t
know there was a spec ia l board meet ing on Fr iday,
the 15 t h . 2 . I d id no t know what the agenda o f tha t
meet ing was…”
So, i s i t poss ib le…? The m in is te r who is the shareho lder
representa t i ve was no t aware tha t the board w i l l be s i t t ing on the 15 t h .
He was no t aware o f what the agenda wou ld be .
I s i t poss ib le tha t someone w i th in the PIC gave the in fo rmat ion
re la t ing to the meet ing and the agenda to the Cape Town bus inessman?
MS BONGANI MATHEBULA : Yes , i t i s poss ib le tha t someone in te rna l l y
cou ld have communica ted the meet ing and the agenda to the
bus inessman.
CHAIRPERSON: Wel l , i t mus t be so . I t i s no t tha t i t i s poss ib le . I t
mus t be so tha t , tha t happened.
MS BONGANI MATHEBULA : Yes , Mr Commiss ioner.
ADV ISAAC MONNAHELA : Yes , you may cont inue .
MS GILL MARCUS : Sor ry. Can we jus t go to the da tes a secon d?
Because you are re fe r r ing to Fr iday the 15 t h and i f we go to the
paragraph tha t we were on , i t says the 16 t h . The minutes o f the 16 t h .
Was the 16 t h o r the 15 t h the Fr iday?
ADV ISAAC MONNAHELA : I t was . . . [ in te rvenes ]
MS GILL MARCUS : Or i s i t a d i f fe ren t month? I jus t want to see what
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re la tes to what .
ADV ISAAC MONNAHELA : In Annexure BM11 a t page 3 , the min is te r
re fe rs to Fr iday the 15 t h and the tex t was sent on the 13 t h December.
That i s two days be fore the meet ing .
MS GILL MARCUS : Okay, ja . So, we are in September there . Thank
you.
ADV ISAAC MONNAHELA : You may proceed a t paragraph 62.
MS BONGANI MATHEBULA : Okay.
Paragraph 62 :
“So, on the 12 t h Oc tober 2017, the fo l low ing d ra f t
m inu tes were emai led by myse l f to the board . Tha t
was the board me et ing he ld on the 28 t h Ju ly ; The
board meet ing he ld on the 4 t h Augus t ; The spec ia l
board meet ing he ld on the 15 t h ; The spec ia l board
meet ing he ld on the 29 t h September ; The spec ia l
board meet ing he ld on the 6 t h October. . ”
I mus t ind ica te , Mr Commiss ion er, the reason was tha t we
c i rcu la ted the minutes , so tha t the members can make comments , bu t
a lso , because there was an e lapse o f t ime before we cou ld a lso have a
normal schedu led meet ing where the board can then approve. So, I
wanted the board to a lso h ave s igh ts o f those minu tes as we l l .
“So, the on ly board member who ind ica ted a comfor t
wi th the minutes , save fo r a few grammat ica l e r ro rs ,
wh ich he p romised to p rov ide was Ms L ind iwe Toy i . ( I
have a lso annexed her emai l in BM16, where she
conf i rmed he r comfor t w i th the minutes . )…”
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MS GILL MARCUS : D id any o f the o ther d i rec tors comment on any
aspec ts o f the minutes , p r io r to the board meet ing?
MS BONGANI MATHEBULA : I d id no t rece ive any comments , save
f rom Ms Toy i .
MS GILL MARCUS : And in the normal p rocedure i f you sent ou t
minu tes and d i rec to rs do no t respond, you take i t tha t they agree w i th
the minutes?
MS BONGANI MATHEBULA : O f course , Madam Commiss ioner.
Because a lso one o f the key issues tha t we a lso was t ry ing to in t roduce
was the aspec t o f ta k ing long to cor rec t m inu tes in meet ings .
There fore , when you c i rcu la te them v ia emai l , i t i s much qu icker to
cor rec t them, pr io r to the meet ing i t se l f .
“On the 17 t h November 2017, there was a board
meet ing . Th is was now a normal board meet ing . The
minutes o f the 15 t h September, 29 t h September, 6 t h
Oc tober, 16 t h Oc tober, 19 t h Oc tober were tab led fo r
adopt ion by the board .
The minutes were never cons idered bu t subsequent l y
submi t ted to the board meet ing o f the 24 t h November
2017.
Ins tead, the board requ es ted tha t the minutes be
rev ised and be conf ined to mat te rs under d iscuss ion
and the end po in t reso lu t ion on ly.
I he ld a d i f fe ren t v iew in tha t a l l m inu tes o f the board
shou ld be a t rue re f lec t ion o f the d iscuss ions o f the
meet ing . Th is w i l l be no ted f ro m the t ransc r ip t
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d iscuss ions o f the meet ing o f the board on the 24 t h
November 2017, wh ich I have a lso a t tached as BM18.
How does one prove tha t the board d ischarged i t s
f iduc ia ry du t ies , i f m inu tes jus t captures reso lu t ions
on ly? Sec t ion 73(8) o f the Comp an ies Ac t s ta tes tha t :
“Any minu tes o f a meet ing o r a reso lu t ion s igned by
the cha i r o f the meet ing or by the cha i r o f the nex t
meet ing , i s ev idence o f the proceed ings” .
My own emphas is o f tha t meet ing…”
MS GILL MARCUS : Aga in , jus t as a po in t o f c la r i ty. So , be tween sor t
o f m id -September and mid -November, be ing the las t meet ing , be ing the
24 t h November, there were seven board meet ings?
MS BONGANI MATHEBULA : Yes , and those were jus t spec ia l board
meet ings .
MS GILL MARCUS : A l l spec ia l board meet ings?
MS BONGANI MATHEBULA : A l l spec ia l board meet ings f rom then and
then the normal o rd inary meet ing was the 17 t h November, where I
submi t ted the f i r s t d ra f t and tha t i s when I was ins t ruc ted to on ly s t i ck
to reso lu t ions and then I was ins t ruc ted to submi t the m inutes aga in on
the 24 t h November.
Paragraph 66 :
“The Compan ies Ac t does no t make any d is t inc t ion
between minutes o f a normal meet ing or an i n camera
meet ing . M inu tes are minutes and ought to capture a
t rue re f lec t ion o f the proceed ings .
The a l te ra t ions o f the minutes o f the 29 t h September
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2017:
Th is happened dur ing the meet ing o f the
24 t h November 2017 and is annexed as Annexure
BM19.
On the 24 t h November 2017, the minutes as or ig ina l l y
dra f ted . . . [ in te rvenes ]…”
MR EMANNUEL LEDIGA: Jus t a ques t ion be fore you go fo rward . I jus t
want to check someth ing wh ich is someth ing comple te ly d i f fe ren t , bu t
see ing you are the company secre tary, you might know. In some
count r ies , I th ink the US and some s ta tes there , they ac tua l l y do no t
keep board meet ings .
They des t roy them a f te r tha t , and because main ly fo r law su i t s
and you know o ther th ings . I s tha t how, you know, l i ke how d i f fe ren t
a re we here versus those coun t r ies? Or do you know about tha t?
MS BONGANI MATHEBULA : Mr Commiss ioner, I am not c lear ly
conversed w i th tha t the US is do ing , bu t I can ta lk fo r South A f r i ca .
So, in South A f r i ca i ssues o f the board proceed ings are governed by
the Compan ies Ac t and the Compan ies Ac t i s very c lear.
In fac t , in te rms o f record keep ing and in te rms o f t he
Compan ies Ac t , m inu tes o f a company – because remember a company
is a lega l person and as a lega l person, i t ou t l i ves a l l o f us and the
reason to have minu tes to be kept i s fo r h is to r ic purposes as we l l .
So , you need, in te rms o f the Compan ies Ac t , you need to
ac tua l l y keep minutes fo r l i f e , bu t there i s a p rov is ion tha t now has no t
adduced, tha t i t has to be kept fo r seven years .
But you know, fo r purposes exac t ly o f law su i t s and o ther
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th ings , because remember, m inu tes be long to the company and i f
somebody was to su e a company, even i f I am no longer there , they
need to be ab le to ver i f y the ac t i v i t ies o f the company, whether the
company secre tary who took the minutes a t the t ime is s t i l l t he re .
Whether the d i rec to rs who took reso lu t ions are s t i l l t here . So ,
in te rms o f the South A f r i can Law, i t i s ac tua l l y the reason why you w i l l
keep minu tes , because minutes be long to a company wh ich is a lega l
person. So, the Compan ies Ac t i s very c lear to say tha t you need to
keep those records as a h i s to r ic record .
MR EMANNUEL LEDIGA: A l l r igh t , g rea t s tu f f . Thank you.
ADV ISAAC MONNAHELA : Wi th your permiss ion , Commiss ioner. I f I
may take the w i tness back to Annexure BM11? A t page 4 o f tha t
annexure . From l ine 4 .
The min is te r i s recorded to have sa id the fo l low ing . Tha t i s fo rmer
Min is te r G igaba:
“A f te r wh ich I rece ived the ca l l f rom a genera l
secre tary o f a cer ta in un ion , who accused me o f
lead ing a p lo t to unseat the CEO, in o rder to loo t t he
P IC. Of course , the s to ry came out in the newspapers
the fo l l ow ing day. No w re la ted to tha t i s then the
a l legat ion tha t I a t tend appo in t ing Br ian Mole fe as the
CEO of P IC. Aga in , someth ing I am no t even aware
of…”
You know, what i s your op in ion th is th ing the min is te r
rece iv ing messages or ca l l s f rom peop le who are ou ts iders , ask ing h im
about the runn ing o f the P IC?
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MS BONGANI MATHEBULA : Commiss ioner, tha t was comple te ly
unca l led fo r. I t i s exac t ly wha t had t ransp i red dur ing the meet ing when
there was a repor t tha t FEDUSA was t ry ing to cance l the board
meet ing .
And fo r tha t t o be happen ing in an ins t i tu t ion such as the PIC,
where un ions seems to be in te r fe r ing in the processes o f the PIC, i t i s
de f in i te ly tha t someth ing tha t shou ld never ever happen fo r an asse t
manager such as the PIC.
MS GILL MARCUS : Bu t your re f lec t ion on tha t and obv ious ly f rom what
you have sa id , there i s no ind ica t ion who the genera l secre tary o f tha t
un ion was or wh ich the un ion was .
But i s the assumpt ion or can you f ind ou t , whether tha t i s par t
o f the same core by FEDUSA to cance l the meet ing , and wh ether they,
in fac t , were the peop le who sent tha t message to the min is te r?
MS BONGANI MATHEBULA : Hav ing now heard tha t , I th ink i t wou ld
have been the same and I th ink we can f ind – we can ascer ta in tha t ,
Madam Commiss ioner. Ja .
ADV ISAAC MONNAHELA : Yes , Mr Commiss ioner. We wi l l fo l l ow i t
up . You may proceed w i th your s ta tement .
CHAIRPERSON: Can I jus t ask someth ing? Do you have any d i f f i cu l t y
o r d id you have any d i f f i cu l t y w i th i t be ing sa id to you, you shou ld
re f lec t reso lu t ions on ly in the minute s?
MS BONGANI MATHEBULA : Yes , I d id , Commiss ioner. So, i f you look
at… What annexure i s tha t? Under Annexure BM18… So , i f you go
th rough Annexure BM18, Cha i r… I t i s jus t tha t I rea l i sed tha t there are
no page numbers on tha t annexure .
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I am jus t look ing a t the po in t where I adv ised the board tha t I
cannot conf ine the minutes to the reso lu t ion , in tha t annexure . Okay,
so le t me jus t maybe read the pages , one by one, because the pages –
apo log ies , Commiss ioner – they are no t numbered.
So, i t i s the f i r s t , second, th i rd , four th , f i f th , s ix th , seventh ,
e igh th , n in th , ten th , e leventh… So, i f you look a t page 12, wh ich is no t
numbered, i t s ta r ts w i th the sentence tha t says : So, I th ink we must
s imply say, accept the repor t…
I f you go down where I say – where i t says Bongan i . I say :
“But Cha i r, can I jus t d i f fe r a l i t t l e b i t ? Because fo r
me, what i s impor tan t i s tha t we must a lso
demonst ra te tha t the board in ge t t ing to a par t i cu la r
reso lu t ion a t a commi t tee meet ing or i n camera
meet ing…:
And then I was d is rup ted . And then I sa id :
“You need to demonst ra te tha t the board app l ied i t s
mind and when you do no t have any documenta t ion , i t
i s impor tan t to demonst ra te tha t the board…”
For me, i t wou ld be very reck less fo r me and I am us ing tha t
word to say the board d iscussed and then reso lu t ions .
“ I th ink I need to a l so pro tec t the board in a sense
tha t I need to demonst ra te tha t the board in ge t t ing to
a par t i cu la r reso lu t ion , i t app l ied i t s mind…”
So , tha t i s what I sa id to the board .
ADV ISAAC MONNAHELA : Mr Commiss ioner, i f I may make a
cor rec t ion . I t shou ld be page 23, because th is document i s doub le -
24 APRIL 2019 – DAY 32
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s ided. You may proceed.
CHAIRPERSON: Bu t o f course , you do no t mean by tha t , tha t you
shou ld record tha t so and so sa id th is and then so and so then sa id
th is .
MS BONGANI MATHEBULA : O f course , Cha i r. I have a lso h igh l igh ted
in my s ta tement , tha t you need to be – you need to have a ba lance o f
you know captur ing the mater ia l i ssues , bu t de f in i te ly, i f someone was
to p ie rce the corpora te ve i l a t some s tage, you need to rea l l y –
because how do you?
For board members who are no t employees o f any ins t i tu t ion ,
how do you demonst ra te i f they, you know, qua l i ta t i ve ly, i f they are
tak ing reso lu t ions wh ich are in the in te res t in the company?
We need to rea l l y asce r ta in how they ar r i ved a t a par t i cu la r
dec is ion . Ja . But o f course , you do no t need to , you know, t ranscr ibed
the d iscuss ions . Hence, to have record ings wh ich are t ranscr ibed, bu t
we a lso then take minutes .
But in th is ins tance, I mus t say, there was n o record ing in the
f i r s t p lace on the 29 t h September. F i rs t l y, there was no record ing tha t I
cou ld re ly i f I had to backup.
Second ly, there were no documenta t ion tha t was submi t ted ,
because the in te rna l aud i t repor t was brought to a meet ing and was
on ly g iven to the board members . I d id no t have a copy o f i t .
So , hence, I sa id tha t th is was no t the run o f the m i l l meet ing ,
where you ge t a pack . L ike , fo r ins tance, in a t ransac t ion where they
are prov ing an inves tment , the inves tment p ro fess iona ls w i l l g ive you a
pack and they w i l l have the i r own recommendat ions .
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I t i s much eas ie r to do the minutes in tha t sense, bu t th is was
no t a normal meet ing , where I cou ld even have a pre -meet ing minute
prepared fo r i t . So , I went in to the meet ing b l i nd ly w i thou t knowing
what was go ing to happen a t tha t meet ing .
Paragraph 67 :
“On the 24 t h November 2017, minu tes as or ig ina l l y
d ra f ted were aga in submi t ted fo r adopt ion by the
board . The board made changes to the minutes . A
cons iderab le number o f de le t ions were made to the
minutes o f the 29 t h September 2017. I t i s Annexure
BM20.
Dur ing tha t meet ing , as the board fe l t tha t th is
minu tes por t ray a negat ive p i c tu re . I remember th is
c lear ly as when some board members were g iven
ins t ruc t ions on how por t ions o f the minu tes shou ld be
de le ted .
There was one board member who fe l t tha t
d iscuss ions he ld dur ing the meet ing be re ta ined . I
had adv ised the board on th is aspec t on
comprehens ive cap tur ing o f m inu tes and ba lanc ing
be tween b rev i t y and fu l l con tex t , wh ich in fo rm how
cer ta in dec is ions were ar r i ved a t .
The board dec ided tha t the minutes o f the
15 t h September, 29 t h September and 16 t h Oc tober be
adopted v ia Round Rob in Reso lu t ion .
Th is was unor thodox , as normal ly the board w i l l
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normal ly cor rec t the minutes . I f there are sub s tan t ia l
cor rec t ions , the board w i l l s t i l l adopt the minutes bu t
reques t tha t the f ina l m inu tes be c i rcu la ted fo r the
board to no te tha t a l l the cor rec t ions have been taken
in to account be fore the cha i rman s igns the f ina l
m inu tes .
The Round Rob in Reso lu t io n was prepared on the
28 t h November 2017 . That i s Annexure BM21. And
c i rcu la ted to the board fo r approva l .
The minutes were eventua l l y approved v ia Round
Rob in and the Round Rob in on ly conf i rmed in a
meet ing o f the 2 n d February 2018…”
I mus t say, Commis s ioner th is was long a f te r the d iscuss ions
o f the meet ings in September, tha t th is minu tes were adop ted by the
board .
“ I t was ou t o f the ord inary to cor rec t the minutes by
de le t ing the c r i t i ca l d iscuss ions he ld dur ing the
meet ing .
In approv ing dra f t m inu te s o f p rev ious meet ings , the
board ord inar i l y embarks on cor rec t ing the minu tes
and no t de le t ing conten t , wh ich c lear ly and cor rec t l y
re f lec ts the t rue na ture o f the d iscuss ions in the
meet ing .
Wi thout th is contex t and conten t , i t i s imposs ib le to
eva lua te whether d iscuss ions taken by the board ,
ra t iona l l y f lowed f rom the mater ia l d iscuss ion on
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which these d iscuss ions were based.
Th is depr i ves any in te res ted par ty lega l l y en t i t led to
have access to the minutes and the r igh t to access
the propr ie ty and lega l i t y o f such dec is ions , g iven the
law o f Perpetu i t y govern ing a lega l persona l .
A lso in te rms o f es tab l i sh ing governance prac t i ce and
as no ted in the book by Rob Robson et a l on E f fec t i ve
Minute Tak ing , wh ich h igh l igh ts tha t m inu tes needs to
s t r i ke a ba lance be tween be ing br ie f and
comprehens ive ly re f lec t ing the t rue and accura te
record o f what t ransp i red and mat te rs tha t in fo rm the
dec is ion taken by the board .
One o f the e f fec ts o f th is ed i t i ng o f the minutes down
to the reso lu t ions taken was , tha t c r i t i c i sm by the
board o f the CEO’s invo lvement in secur ing fund ing
fo r Ms Pre t ty Louw’s company was e f fec t i ve ly
exerc ised f rom the record , thereby, san i t i z ing the
minutes .
A t no po in t , the board h igh l igh t tha t the minutes d id
no t capture the t rue na ture o f the d i scuss ions he ld .
The board was ra ther concerned tha t the minu tes
re f lec ted a negat ive p ic tu re .
My own assessment i s tha t I fe l t ou t o f favour w i th the
CEO, as I was the one who respons ib le fo r d ra f t ing
the minutes , wh ich pa in ted a negat ive p ic tu re abou t
h im….”
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ADV ISAAC MONNAHELA : Okay, i f I may in te rvene. So, f rom what
you are say ing – what you are say ing is tha t the board was concerned
about whe ther what you were asked to de le te was d iscussed a t the
meet ing?
MS BONGANI MATHEBULA : Cor rec t .
ADV ISAAC MONNAHELA : They on ly wanted you to de le te those par ts
o f the minutes because they presented a negat ive p ic tu re and no th ing
e lse?
MS BONGANI MATHEBULA : Cor rec t .
ADV ISAAC MONNAHELA : You may proceed.
CHAIRPERSON: Bu t the reso lu t ion remains the same. I t was re f lec ted
cor rec t l y in the minu tes . I s tha t cor rec t?
MS BONGANI MATHEBULA : Yes , cor rec t , Cha i rman.
CHAIRPERSON: Or the conc lus ion o f d iscuss ions on tha t aspec t , were
cor rec t l y re f lec ted and remained re f lec ted .
MS BONGANI MATHEBULA : The f ina l l y s igned, th rough you,
Commiss ioner. The f ina l l y s igned minutes , in te rms o f what was
de le ted , the reso lu t ion was cor rec t l y re f lec ted . I t i s sa fe to say tha t o f
course , those d iscuss ions were exc ised comple te ly f rom those minutes .
CHAIRPERSON: Bu t there was no change as i t were , o ther than the
de le t ion? There was no de le t ing th is and pu t t ing someth ing tha t was
no t there?
MS BONGANI MATHEBULA : Not accord ing to my knowledge.
ADV ISAAC MONNAHELA : Okay, can I ask you th is ques t ion? Before
the minutes o f tha t mee t ing , had you ever been asked by the board to
de le te th ings f rom the minutes?
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MS BONGANI MATHEBULA : No.
ADV ISAAC MONNAHELA : You may proceed a t paragraph 76.
MS BONGANI MATHEBULA : Okay.
“Repor t back by Na led i Adv isory Serv ices :
Mr Frans Lekubo had prese nted a pre l im inary repor t
on the progress o f the inves t iga t ion to the board a t
the meet ing he ld on the 17 t h November 2017.
He repor ted tha t he had es tab l i shed dur ing h is
inves t iga t ion tha t a case was opened w i th the SAPS
to pursue a cor rup t ion case aga ins t Dr Mat j i l a and
h igh l igh ted tha t he contac ted SAPS to unders tand
SAPS processes .
Since the SAPS’ inves t iga t ion was in to the a l leged
un lawfu l conduc t o f an ind iv idua ls , I am not sure on
what bas is the PIC appo in ted inves t iga to r was used to
in te rac t w i th the SAPS and whose in te res t th i s
inves t iga tor was ac t ing .
The board agreed tha t a jo in t meet ing be tween the
Aud i t and R isk Commi t tee and the ICTGC be
schedu led urgent ly to dea l w i th th is mat te r.
The jo in t meet ing took p lace on the 17 t h November
2017. I have no knowledge o f the conten ts and o r
d iscuss ions he ld in those meet ings .
Th is jo in t board commi t tee meet ings were he ld
w i thout secre tar ia t . I do no t know who took minutes
dur ing those meet ings and whether o f f i c ia l record o f
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the meet ings are kept o r what re so lu t ions , i f any,
were taken.
Whether p roper governance p ro toco l o f ensur ing tha t
the minutes are u l t imate ly p reserved as o f f i c ia l
company record were fo l lowed is unknown.
Th is k ind o f p rac t i ce does no t re f lec t good
governance prac t i ce . The Compan ies Act i s very
c lear, in par t i cu la r ly on how minutes wh ich are lega l
records o f the company are to be kep t , as I have
a l ready e luded above…”
ADV ISAAC MONNAHELA : Okay, i f I may ask? Were you made aware
o f tha t meet ing tha t you re fe r red to in paragraph 76?
MS BONGANI MATHEBULA : Yes , o f course , I was made aware o f the
meet ing , because i t was the board , dur ing the meet ing o f the 17 t h wh ich
took a reso lu t ion to have tha t jo in t commi t tee meet ing , bu t wha t
t ransp i red in tha t jo in t commi t tee meet ing is unknown to me, because I
was no t requ i red to be in tha t meet ing .
ADV ISAAC MONNAHELA : Were you g iven any reason why you were
no t requ i red to be in the meet ing?
MS BONGANI MATHEBULA : No, no th ing . No reasons .
MS GILL MARCUS : Sor ry. Jus t on tha t same. Wh i le you may n ot have
been, was the secre tar ia t asked in any way to prov ide secre tar ia l
serv ices to tha t meet ing?
MS BONGANI MATHEBULA : Not a t a l l , Cha i r. In fac t , I wanted to a lso
to address tha t , Madam Commiss ioner. That even i f the board was
d iscuss ing someth ing w h ich a f fec ted me persona l l y, secre ta r ia t wou ld
24 APRIL 2019 – DAY 32
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s t i l l have been ava i lab le to ass is t the commi t tee in tak ing minutes .
ADV ISAAC MONNAHELA : Bu t i f the board was to d iscuss someth ing
a f fec t ing you, wou ld they no t have been ob l iged – o r no t ob l iged –
shou ld no t they have to ld you tha t you are the sub jec t o f the meet ing .
So, you cannot a t tend the meet ing to record them, the minu tes o f the
meet ing .
MS BONGANI MATHEBULA : So , norma l ly the board or the commi t tees
w i l l te l l me i f there i s someth ing tha t i s be ing d i scussed tha t a f fec ts me
and then they w i l l ask me to be excused f rom tha t meet ing .
CHAIRPERSON: Jus t fo r the record . You ment ioned ICTGC. For the
record . I t i s In fo rmat ion Communica t ion Techno logy and Governance
Commi t tee . Cor rec t?
MS BONGANI MATHEBULA : Cor rec t .
ADV ISAAC MONNAHELA : You may proceed a t paragraph 77.
MS BONGANI MATHEBULA : Okay.
Paragraph 77 :
“AYO Transac t ion :
The sequence o f events re la t ing to th i s t ransac t ion
and how governance processes were f lou ted w i th
exped iency to approve the t r ansac t ion has been fu l l y
d isc losed to th is Commiss ion and I w i l l con f ine my
s ta tement to what had occur red be fore the PMC
L is ted meet ing on the 20 t h December 2017.
I a lso be l ieved tha t my suspens ion was as a resu l t o f
the leakage o f the m inutes and suppor t ing
documenta t ion regard ing th is t ransac t ion dur ing the
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beg inn ing o f 2018, wh ich I den ied to have been par t
o f .
On the 15 t h December 2017, Ms Merc ia Monye la ,
Commi t tee Secre tary, rece ived a te lephon ic reques t to
seek approva l v ia Round Rob in f rom the Por t f o l io
Management Commi t tee L is ted Inves tment .
For the l i s ted inves tment team to proceed to the due
d i l igence phase, tha t i s PMC1, fo r poss ib le
par t i c ipa t ion by P IC and AYO’s pr iva te share
p lacement , ahead o f i t s p lanned l i s t ing on the JSE on
the 21 s t December 2017.
Dur ing the t ime o f the te lephon ic reques t , Ms Monye la
and I who a t tended a Soc ia l and Economic
In f ras t ruc ture and Env i ronmenta l Sus ta inab i l i t y SEISS
FIB. I t i s a sub -commi t tee o f the IC.
Ms Monye la was to ld in an emai l f rom Mr Vic to r
Sean ie tha t she shou ld leave the SEISS FIB meet ing
to u rgent ly a t tend to the AYO t ransac t ion .
Th is sugges ted tha t Ms Monye la was taken minu tes
fo r SEISS FIB a t the t ime. She w i l l l eave the meet ing
to u rgent ly a t tend to the AYO t ransac t ion .
Ms Monye la prepared the req ues t fo r Round Rob in
wh i l s t in a t tendance a t the SEISS FIB meet ing and
ac t ioned th is reques t 09 :52 a .m. on the 15 t h
December 2017. Annexure BM22 is tha t Round Rob in
reques t . Th is she d id because o f course she was to ld
24 APRIL 2019 – DAY 32
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tha t the c los ing da te fo r the pr iva t e p lacement was on
the 15 t h .
None o f the members o f the PMC responded to her
emai l . Dur ing the course o f the day on the 15 t h
December 2017, Ms Monye la and Ms Wi lna Louw, the
Board Secre tary, were summoned to the CEO’s o f f i ce ,
af te r he reques ted and urge n t meet ing to d iscuss our
re luc tance to p roceed to PMC2 wh ich is now to
reques t fo r a PMC meet ing to approve the meet ing ,
be fore the approva l fo r PMC1 wh ich had been
c i rcu la ted ear l ie r.
A t the t ime, I was ou t o f the o f f i ce and I was d ia l led
in to the meet in g the CEO. The CEO was not p leased
tha t I d id no t agree w i th her v iew to p roceed to PMC2
wi thout PMC1. Desp i te the fac t tha t PMC1 was not
ye t sanc t ioned, the CEO wanted the reso lu t ion to
wa ive PMC1 because due d i l i gence had a l ready been
done and to reque s t fo r f ina l approva l to par t i c ipa te in
AYO’s pr iva te p lacement .
I knew be t te r no t to d isagree w i th the v iews o f the
CEO, who was no t on ly the cha i rman o f the PMC, bu t
a lso the cha i rman o f Exco wh ich wou ld have been the
fo rum to vary the powers o f the PMC.
I t shou ld be no ted tha t PMC d id no t have any
de legated powers to wa ive i t s own agreed inves tment
process…”
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ADV ISAAC MONNAHELA : I f I may in te rvene? You say tha t the CEO
wanted – in tha t paragraph 81 – you sa id the CEO wanted the
reso lu t ion to wa ive PMC1 , because due d i l igence had a l ready been
done. Had due d i l igence been done? Was the CEO cor rec t , i f you
know?
ADV ISAAC MONNAHELA : F rom my unders tand ing , the due d i l igence
a t tha t t ime was done, bu t I unders tand i t to have been a desk top deed
wh ich was done on the same – on the 15 t h . Ja .
MS BONGANI MATHEBULA : I f I may ask , i s desk top due d i l igence
enough when dea l ing w i th a t ransac t ion?
ADV ISAAC MONNAHELA : Mr Commiss ioner, look , I am not an
inves tment p ro fess iona l . I be l ieve tha t cer ta in t ransac t ion s wou ld
war ran t a desk top DD. Cer ta in t ransac t ions w i l l war ran t a deep -d ive
DD, i f you want to ca l l i t tha t . Ja , so I do no t know i f th is par t i cu la r
t ransac t ion war ran ted a desk top DD or no t .
Bu t I a lso know tha t in te rms o f a desk top DD, i f i t i s
war ran ted , i t a lso save as we l l as a sav ings fo r the P IC.
ADV ISAAC MONNAHELA : Okay. The second sentence o f paragraph
81. You say : The CEO was not p leased tha t I d id no t agree w i th the
v iew to p roceed w i th PMC2 wi thout PMC1. D id you no t agree w i th tha t
v iew?
MS BONGANI MATHEBULA : Yes , I d id no t agree w i th the v iew.
Hence, I was ca l led in to the meet ing when the CEO was s i t t ing w i th Ms
Monye la and Ms Louw.
I ac tua l l y reca l l the CEO say ing tha t : Bongan i , why are we
f igh t ing? And I responded to say : I am not f igh t ing w i th you , Dr Dan.
24 APRIL 2019 – DAY 32
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You know. So, he was no t p leased.
ADV ISAAC MONNAHELA : What were your reasons fo r no t agree ing
w i th the v iew to p roceed to PMC2 to PMC1?
MS BONGANI MATHEBULA : Because i t wou ld have been a v io la t ion o f
an inves tment p roces s .
ADV ISAAC MONNAHELA : Okay, you may proceed a t
paragraph . . . [ in te rvenes ]
MS GILL MARCUS : And jus t fo r c la r i t y on the same ques t ion . You
were abso lu te ly c lear tha t Dr Mat j i l a knew tha t a due d i l igence, a t leas t
a desk top due d i l i gence, had been done as par t o f PMC1, even i f i t had
no t been fo rmal ised?
MS BONGANI MATHEBULA : Yes , i t was . Because I be l ieve Vic to r
a lso had sent an emai l a t tha t s tage, to say tha t DD has now been
done.
MR EMANNUEL LEDIGA: Can I jus t add? I th ink we heard f rom one
w i tness tha t when you do a DD fo r a l i s ted company, i t i s ve ry d i f fe ren t
to a DD fo r an un l i s ted company because a l i s ted company, there i s a
lo t about i t and there i s no need to v is i t the company. You jus t do
desk top research , bas ica l l y.
MS BONGANI MATHEBULA : Prec ise ly, Commiss ioner. You are qu i te
cor rec t , ja .
ADV ISAAC MONNAHELA : You may proceed a t paragraph 82.
MS BONGANI MATHEBULA : Okay.
Paragraph 82:
“So, a reques t fo r f ina l approva l fo r the t ransac t ion
was c i rcu la ted because the CEO ins is ted tha t we
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proceed w i th the t ransac t ion on the 15 t h . Aga in , no
one responded to the reques ted .
Eventua l l y a PMC l i s t was reques ted he ld on the
27 t h December 2017. The s igns were tha t PMC
members were no t comfor tab le to approve the AYO
t ransac t ion .
I t ought to be no t ed tha t I was no ted tha t I was no t a t
the meet ing . That i s the 20 t h December, as I was on
leave and on ly became aware o f the i ssues when
there were numerous med ia ar t i c les regard ing the
same.
To th is day, I s t i l l do no t unders tand how the CEO
cou ld have s pecu la ted tha t I was respons ib le fo r
l eakages in the AYO t ransac t ion…”
ADV ISAAC MONNAHELA : Okay, d id Dr Mat j i l a te l l you why he
suspec ted tha t you were respons ib le fo r the leakages?
MS BONGANI MATHEBULA : I t on ly became apparent to me when I
was handed my suspens ion le t te r. That the CEO sa id he was wor r ied
tha t were minutes o f the board and management minutes wh ich were
c i rcu la ted .
I t i s on ly then a f te r on the day tha t I was suspended tha t I
rea l i sed . I am s ta t ing th is on a f te r now, you know, hav ing g one th rough
what I went th rough . I s t i l l d id no t unders tand how he cou ld have
conc luded tha t I was the one tha t leaked the management minutes .
ADV ISAAC MONNAHELA : You may proceed.
MR EMANNUEL LEDIGA: Ja , a l l r igh t . Le t me ask a broader ques t ion.
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I th ink you do address i t somewhere probab ly, bu t le t me t ry. In te rms
o f the leakage o f the minutes , . You are the cus tod ian o f the minutes .
I s i t no t? You are the f ina l cus tod ian , bu t do you th ink , how cou ld
o ther peop le sor t o f leak the minutes? And you know, what i s your ro le
in te rms o f be ing the cus tod ian o f the minutes .
MS BONGANI MATHEBULA : Commiss ioner, I am the cus tod ian o f the
minutes , the P IC, bu t I am not the on ly person in possess ion o f the
minutes o f the P IC. M inu tes o f the meet ing are made ava i lab le , fo r
ins tance, to the board as a who le . To management . To secre tar ia t .
We had a t the t ime an S -dr ive where a l l m inu tes were s to red in tha t
ne twork , in tha t d r ive .
M inu tes were c i rcu la ted v ia emai l to the board . So, the re
cou ld have been o t her minutes , you know, fo r m inu tes to have been
leaked and as a cus tod ian , I do no t have cont ro l . I con t ro l what I can
cont ro l w i th in the secre tar ia t . I cannot cont ro l what o ther peop le do ,
you know, i f I g ive them the minutes .
MR EMANNUEL LEDIGA: And so mean ing tha t they do no t co l lec t a f te r
tha t and pu t in the minute book or whatever? I mean, peop le s t i l l have
access to the minutes? How do they ge t sor t o f sa feguarded,
somehow? Do they ge t sa feguarded by any chance?
MS BONGANI MATHEBULA : Ja , we do t ry to sa feguard i t , bu t there
was and s t i l l i s an issue a t the P IC cur ren t ly in the new bu i ld ing , where
we do no t have a s t rong room, where i t wou ld ord ina l l y a f te r the
minutes have been pas ted in the minute books , w i l l be then s to red .
But be fore tha t ha ppens , minu tes are s t i l l c i r cu la ted . E i ther
fo r comments , you know, o r… Ja , fo r va r ious reasons be fore you cou ld
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bas ica l l y ge t the f ina l m inu te and s to re i t in the minute book . Ja .
MR EMANNUEL LEDIGA: These minutes , were they sor t o f the f ina l
m inu tes or they were jus t the ones s t i l l be ing cor rec ted? Were they the
f ina l ones . The leaked minutes .
MS BONGANI MATHEBULA : The leaked minutes f rom my hear ing were
the dra f t m inu tes . So, these were the minutes wh ich were no t the f ina l
m inu tes .
MS GILL MARCUS : And the minutes are d is t r ibu ted e lec t ron ica l l y as
we l l to the members?
MS BONGANI MATHEBULA : Yes , yes . Ja .
ADV ISAAC MONNAHELA : You may proceed a t paragraph 84.
MS BONGANI MATHEBULA :
Paragraph 84 :
“The Sagarmatha Transac t ion :
The ac t ions o f the CEO in the Sagarmatha
Transac t ion appears sub jec t o f cause to what th is
Commiss ion w i l l f i nd no t be in l ine w i th regu lar
inves tment p rocess .
The CEO reques ted me to fo rward to the Inves tment
Commi t tee members an emai l s wh ich were rece ived
f rom var ious po l i t i c a l fo rmat ions on the eve o f the
Inves tment Commi t tee meet ing to cons ider the
Sagarmatha Transac t ion…Annexure BM23”
ADV ISAAC MONNAHELA : Okay, i f I may… I t i s annexure . You were
about to say Annexure BM23. Can we p lease go to Annexure BM23?
CHAIRPERSON: Mr Monnahe la , be fo re we car ry on there . Do you
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have any v iew as to what shou ld happen to minutes , d ra f t m inu tes tha t
you d isseminate a f te r they have been conf i rmed and you have the f ina l
m inu te? I mean, a re you comfor tab le w i th the fac t tha t there are
peop le wa lk ing around w i th m inutes , whether in bags or b r ie fcases?
Whether they are dra f t s o r no t?
MS BONGANI MATHEBULA : F i rs t o f a l l , I was qu i te concerned myse l f
and th is i s someth ing tha t I to ld even Dr Dan a t the t ime, to say tha t I
am a lso wor r ied t ha t minu tes , you know, f ind the i r way to the pub l i c
domain .
What… You see the prob lem, Mr Commiss ioner i s , I can on ly
cont ro l what I have cont ro l over. And one o f the process fo r approv ing
minutes , fo r ins tance, i s to c i rcu la te d ra f t m inu tes to the pe op le who
are supposed to approve the m inutes .
And I do no t know how I can curb i ssues . M inu tes are emai led
to the board , wh ich as you cou ld te l l , wh ich was done as we l l . So , I do
no t know how one cou ld cont ro l what i s beyond my cont ro l , bu t i t i s
someth ing wh ich a lso wor r ied me and maybe, perhaps one needs to
th ink abou t th ings to imp lement to t ry and curb such f rom happen ing .
I do no t know what tha t w i l l be , bu t one can th ink o f some
innovat ive ways .
CHAIRPERSON: No, I am jus t th ink ing fo r ins tance o f s topp ing to send
them out , e lec t ron ica l l y. Send ing board packs ra ther. You know, in
hard copy. And then a f te r the approva l o f the m inutes , those cop ies
are co l lec ted and taken away f rom the board members or whoever has
them. I am jus t t r y ing to th ink a t the top o f my head.
MS BONGANI MATHEBULA : Ja , tha t cou ld he lp , Mr Commiss ioner.
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But in the area o f techno logy tha t we l i ve in one. So, one o f the th ings
tha t we do is , we do no t necessar i l y g ive the board members packs in
paper.
So, we ac tua l l y g iv e them iPads and packs up loaded in those
iPads . And you know, those iPads – those packs , one can emai l – you
can fo rward . You can emai l those th ings to whoever. So, ja . One can
th ink o f – maybe IT peop le can ass is t . I do no t know.
CHAIRPERSON: Yes , I know. I know peop le are t ry ing to ge t away
f rom paper, as we l l .
MS BONGANI MATHEBULA : Ja , tha t i s ac tua l l y p rob lem because
every th ing is done e lec t ron ica l l y.
MR EMANNUEL LEDIGA: Bu t to be c lear, I am not sure tha t the
minutes shou ld be top secre t , you know. I th ink the prob lem wi th these
minutes , they are jus t d isputed minutes . You know, I am not we are
speak ing as i f m inu tes must be top secre t .
They ac tua l l y shou ld no t be , you know. As fa r as I am
concerned . I t i s jus t tha t we have a p rob lem here in the sense tha t
those minutes were h igh ly d i sputed and a l l tha t . I s tha t cor rec t? Do
you th ink I am cor rec t there?
MS BONGANI MATHEBULA : Okay, I w i l l par t l y agree w i th you ,
Commiss ioner. To say tha t minu tes are a conf ident ia l record o f the
company, bu t I agree tha t the fac t tha t these par t i cu la r minu tes were
h igh ly d isputed , because remember, th is was no t the f i r s t t ime.
Even pr io r to my jo in ing the PIC, i t was no t the f i r s t t ime
conf ident ia l documenta t ion , m inu tes found themse lves in the pub l i c
domain . So, ja . I t i s because prec ise ly tha t th is were h igh ly d isputed
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minutes .
MR EMANNUEL LEDIGA: Conf ident ia l , bu t no t necessar i l y rea l l y top
secre t tha t you go t to go to ex t raord inary lengths to keep them.
MS BONGANI MATHEBULA : Ja , we l l . For ins tance , you cou ld argue
tha t i f the cour t o rders tha t you d isc lose minutes , you have to d isc lose
them a t the end o f the day. So, conf ident ia l , yes . But you know, there
are o ther means . I f one rea l l y wants to know, they cou ld have means
to know. They cou ld go t to a cour t and say : We want th is th ing to be
d isc losed. Or i f the re were d iscuss ions o f persona l na ture , once cou ld
a lso ask th rough a process fo r those th ings to be d isc losed . So, ja .
L im i ted conf ident ia l .
MR EMANNUEL LEDIGA: Bu t no t top secre t , c l ass i f ied and a l l o f tha t ,
you know.
MS BONGANI MATHEBULA : Okay. They are con f ident ia l records o f a
company.
MS GILL MARCUS : I am not su re tha t , I mean, fo r my own
c la r i f i ca t ion . The ques t ion o f m inu tes l i ke an en t i t y l i ke the PIC a t a
board leve l , mean s you cou ld be d iscuss ing and you may we l l be
d iscuss ing dea ls tha t a re in the p ipe l ine .
So , tha t i f you ge t a minute tha t i s look ing a t a t ransac t ion tha t
migh t be coming up , tha t wou ld be o f in te res t to o ther peop le . So, the
conf ident ia l i t y and the in tegr i t y o f the minutes , bo th in the record ing
and in the d is t r ibu t ion , i s someth ing tha t shou ld be sa feguarded and as
a pr io r i t y.
Th is i s no t about whether they need to be c lass i f ied , top
secre t because o f o ther i ssues . I t i s the work o f the organ isa t ion ,
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which can be o f in te res t .
And there fore , fo r me, the ques t ion wou ld be , a method by
wh ich you ensure tha t board members or peop le invo lved in p repara t ion
fo r boards o f fo r any o ther commi t tee , i t i s no t jus t boards . I t i s a lso
the work o f the commi t tee , the inves tment commi t tee . Who is taken
what v iews and so a re conf ident ia l to the organ isa t ion .
And there fore , the secur i t y o f those records becomes
someth ing tha t i s rea l l y impor tan t fo r the in tegr i t y o f p rocess .
MS BONGANI MATHEBULA : That i s cor rec t , Madam Commiss ioner.
So, o f course minutes are conf ident ia l as we l l . Ja .
ADV ISAAC MONNAHELA : I asked you to go to Annexure BM23. You
say tha t the CEO reques ted you to fo rward to Inves tment Commi t tee
members , emai ls wh ich you have rece ived f rom var ious po l i t i ca l
fo rmat ions . Who are those po l i t i ca l fo rmat ions .
MS BONGANI MATHEBULA : So , the emai ls tha t we rece ived, there
was a le t te r tha t came f rom FEDUSA, s ighed by the genera l secre tary.
MS GILL MARCUS : And can you g ive the names when you are do ing
tha t as we l l?
MS BONGANI MATHEBULA : Okay. So, i t was s igned by Denn is
George. That i s the Genera l Secre tary o f FEDUSA a t the t ime. I am
not so sure i f he i s s t i l l t here .
Then there was COPA and another one was Kopano Ke Mat la
Inves tment Company, wh ich I b e l ieve is an inves tment a rm o f COSATU.
I am not sure . I t was s igned by S teven Th ibed i , the CEO.
There was a le t te r f rom PGC which was s igned by Zwel i Nkos i .
There was a lso an emai l s ta tement f rom the EFF.
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MS GILL MARCUS : Sor ry. On the PCG. That i s the inves tment a rm o f
POPCRU.
MS BONGANI MATHEBULA : Oh, okay. And then there was a lso a
s ta tement f rom the EFF as we l l . In fac t , there was a lso an emai l f rom
Mr Survé . That i s there ema i l to Dr Dan w i th the a t tachment o f the
EFF.
ADV ISAAC MONNAHELA : I f you look a t tha t copy o f the emai l f rom
Dr Survé . At the top there , i t i s COSATU le t te r. Was tha t the
a t tachment?
MS BONGANI MATHEBULA : That was the a t tachment , ac tua l l y, yes .
Of the COSATU le t te r. Kopano Ke Mat la , I th ink . Ja . But those were
in essence the ema i ls tha t the CEO reques ted me to fo rward to the
Inves tment Commi t tee in an e f fo r t to t ry and show suppor t fo r the
inves tment in Sagarmatha.
ADV ISAAC MONNAHELA : So , a re you say ing tha t the COSATU le t te r
d id no t come d i rec t l y f rom COSATU, bu t f rom Dr Survé?
MS BONGANI MATHEBULA : Yes , i t was an a t tachment w i th an emai l
f rom Dr Survé .
MS GILL MARCUS : Can I ask a ques t ion on tha t? G iven the issues ,
how much… G iven tha t th is was sent to the Inves tment Commi t tee , d id
the Inves tment Commi t tee a c tua l l y d iscuss these le t te rs as par t o f i t s
de l ibera t ions?
MS BONGANI MATHEBULA : They never d iscussed those le t te rs . IN
fac t , there was a lso a reques t wh ich I dea l w i th la te r in my s ta tement
about when Dr Dan reques ted me to schedu le a te lephone confere nce
jus t be fore the Inves tment Commi t tee sa id the n igh t be fore , to reques t
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fo r a te lephone con ference be tween the Sagarmatha Leadersh ip and
the Inves tment Commi t tee members .
And the Inves tment Commi t tee was no t p leased w i th tha t .
They were no t happy tha t the i r inves tment p rocesses now wi l l i nc lude
management o f compan ies or poss ib le inves tee compan ies to come and
make representa t ion , wh ich is no t a p rocess a t the P IC.
MS GILL MARCUS : Bu t when you come to tha t , can you a lso re fe r t o
the a t tachments? I th ink i t i s in the a t tachments .
MS BONGANI MATHEBULA : There i s an a t tachment , yes .
MS GILL MARCUS : Because o f the quer ies members o f the Inves tment
Commi t tee were mak ing w i th Dr Mat j i l a . So , i f we cou ld ac tua l l y have
tha t in to the record . Because what i t wou ld seem to me f rom what you
are say ing is tha t , Inves tment Commi t tee quer ied the Sagarmatha dea l .
As a consequence , le t te rs were sent to the Inves tment
Commi t tee and the reques t to you to se t up a meet ing w i th Sagarmatha
in re la t ion to the Inves tment Commi t tee ’s concerns .
MS BONGANI MATHEBULA : Okay.
MS GILL MARCUS : And wou ld tha t be a s tandard procedure tha t i f the
Inves tment Commi t tee has quer ies , bu t you then look a t ways f rom
ex terna l par t ies , inc lud ing the company concerned , to come and meet
d i rec t l y w i th the Inves tment Commi t tee . Had tha t occur red be fore?
MS BONGANI MATHEBULA : Not my knowledge, Madam Commiss ioner.
I t i s no t a normal p rocess fo r the P IC when i t ge ts in to an inves tment .
For norma l ly what happens , i s the inves tments teams are t here do the i r
due d i l igences and to make recommendat ions .
They are the ones , the inves tment teams, who wou ld have
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those meet ings w i th the inves tment company to t ry and ascer ta in
whether there i s an inves tment case in tha t par t i cu la r company, bu t no t
the management o f tha t inves tee company coming to an IC meet ing .
So, our inves tment teams a re the ones who re ly on the
s t rength on , to say whether there i s an inves tment case or no t to a
par t i cu la r inves tment .
MS GILL MARCUS : Th is wou ld be over r id ing in many ways , the
Inves tment Commi t tee and the in te rna l team work ing on tha t
inves tment , coming to the Inves tment Commi t tee . You wou ld then say,
they wou ld normal l y g ive the i r v iews and the Inves tment Commi t tee
wou ld have debate w i th them, no t w i th ex terna l par t i es .
MS BONGANI MATHEBULA : Not w i th ex terna l par t ies . I t wou ld a l so
be an in te rna l p rocess a t a l l t imes .
ADV ISAAC MONNAHELA : Was there ever any occas ion be fore th is
one when you were asked by the CEO to fo rward emai ls f rom outs iders
to members o f the c ommi t tees o f the P IC?
MS BONGANI MATHEBULA : No, there was never such.
ADV ISAAC MONNAHELA : You may proceed. We are on paragraph 84
and you may proceed w i th the sentence tha t s ta r ts w i th the purpose…
MS BONGANI MATHEBULA : Okay.
“The purpose o f the emai l s was in favour o f the
t ransac t ion and the purpose o f the i r d isseminat ion
seems to have to in f luence the Inves tment Commi t tee
to approve the Sagarmatha Transac t ion .
The in te r fe rence by the un ions and po l i t i ca l
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fo rmat ions in board in inves tment p rocesses
fac i l i t a ted by the CEO is no t in l ine w i th the
inves tment and the governance processes a t the P IC.
In te r fe rence or in te rvent ions o f th is na ture wou ld , I
be l ieve , shock those whose mon ies are supposed ly
inves ted respons ib le .
I t caused despa i r and cyn ic i sm amo ngst those whose
app l i ca t ions fo r inves tments a re tu rned down fo r a
lack o f po l i t i ca l lobby ing enab led by the CEO and
poten t ia l l y even expose the PIC to unwarran ted lega l
r i sk .
Th is go ings -on are cause o f g rave concern , wh ich
hopefu l l y th is Commiss ion can address in i t s f ind ings
and recommendat ions…”
ADV ISAAC MONNAHELA : I f I may ask . When Dr Mat j i l a sent you an
emai l o r the emai ls , had the Inves tment Commi t tee sa t o r i t had no t
sa t , when i t was i t go ing to s i t?
MS BONGANI MATHEBULA : Thank you . The Inve s tment Commi t tee
had not sa t a t tha t t ime when I was reques ted to send those emai ls t o
the Inves tment Commi t tee members . I th ink the Inves tment Commi t tee
– I am go ing to have to check .
The meet ing was , I th ink , was go ing to happen e i ther the day
or two days a f te r because the emai ls was sent on the 9 t h Apr i l . I can
conf i rm tha t to ev idence team.
ADV ISAAC MONNAHELA : Okay, they were sent to you by Dr Mat j i l a
on the 10 t h Apr i l .
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MS BONGANI MATHEBULA : Oh, yes . I t was the 10 t h Apr i l . Sor ry, I
am look ing a t the o ther one f rom Mr Survé . Ja , i t was sent on the 10 t h
Apr i l i n the even ing jus t be fo re seven, bu t those emai ls i t appeared
were a lso fo rwarded to those peop le to Dr Mat j i l a on the 9 t h . Some o f
them. But tha t was be fore the IC meet ing .
CHAIRPERSON: You ta lk o f fac i l i t a t ion by Dr Mat j i l a . Of course , you
do no t know, do you? Whether Dr Mat j i l a s imp ly rece ived tha t
cor respondence f rom the var ious par t ies and s imp le asked you to
fo rward i t to the Inves tment Commi t tee . I f tha t had happened, wou ld
you f ind any th ing wrong w i th tha t?
MS BONGANI MATHEBULA : Abso lu te l y, Commiss ioner. There was
every th ing wrong w i th i t . I th ink I have a l ready e luded to the fac t tha t
the inves tment p rocesses a t the P IC is a c losed mat te r, in te rms o f f i r s t
o r in i t ia l inves tm ents .
I t i s no t someth ing tha t a l though the inves tment teams w i l l
engage as I have sa id w i th the compan ies . Such engagements are no t
happen ing a t Inves tment Commi t tee leve ls w i th the poss ib le inves tee
compan ies or compan ies tha t the P IC wou ld in tend to i nves t on .
And Dr Mat j i l a was qu i te aware , I be l ieve , o f tha t p rocess , tha t
i t was jus t ou t o f the ord inary, to be qu i te f rank .
CHAIRPERSON: And i f you had fo rward them to the t ransac t ion team,
wou ld you have a d i f f i cu l t y w i th tha t?
MS BONGANI MATHEBULA : I cannot hear any th ing .
CHAIRPERSON: I f you had fo rwarded those or tha t cor respondence to
the t ransac t ion team, the team tha t dea l t w i th the t ransac t ion , wou ld
you have had any d i f f i cu l t ies w i th tha t?
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MS BONGANI MATHEBULA : I t wou ld s t i l l have been prob l emat i c
because the t ransac t ion teams, to my unders tand ing , they w i l l engage
d i rec t l y w i th the company i t se l f , no t w i th po l i t i ca l fo rmat ions .
MR EMANNUEL LEDIGA: Ja , and jus t to check too is tha t , once you
have th is g roup ings i t in t roduces a PEPS e lement . You know, the
PEPSS and a l l o f tha t and tha t now changes the DD comple te ly. I s i t
no t?
MS BONGANI MATHEBULA : I t wou ld to a cer ta in ex ten t and I am
t r y ing to th ink now, because even i f you in t roduce the PEPS… In fac t ,
every th ing wrong about i t i s ac tua l l y tha t .
Because even i f i t i n t roduces a PEPS, a t what s tage wou ld you
then have a process where you then do your enhanced DD, when th i s
k ind o f communica t ions are send d i rec t l y to the IC wh ich is supposed
to s i t on an inves tment , the fo l low ing day.
Because then aga in , you need to have ample t ime to look in to
those th ings . But these I s t i l l say, Mr Commiss ioner, was no t supposed
to have happened.
MS GILL MARCUS : Sor ry. As you proceed, i f you can jus t look a t your
annexures . There i s a lso a no te in the annexure f rom Dr Mat j i l a about
the in te rac t ion w i th Sagarmatha around the share pr ice o f R1,00 and
coming to a…
Can we read tha t in to the record as we l l? Because tha t has
been come up be fo re when Dr Survé was appear ing be fore us , about
the mat te r tha t h e sa id he d id no t know any th ing about .
ADV ISAAC MONNAHELA : Mr Commiss ioner, the w i tness te l l s me
tha t , tha t emai l does no t fo rm par t o f the annexures to her s ta tement .
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MS GILL MARCUS : I t does . I jus t read i t . I d id no t see i t anywhere
e lse . I t i s the re .
MR EMANNUEL LEDIGA: I t i s annexure . . . [ in te rvenes ]
MS BONGANI MATHEBULA : Okay. No, you are r igh t , Commiss ioner.
MR EMANNUEL LEDIGA: Ja , BM23, r igh t?
MS BONGANI MATHEBULA : I t i s 23 .
MR EMANNUEL LEDIGA: 23 . Las t page, I th ink .
MS BONGANI MATHEBULA : Okay.
MR EMANNUEL LEDIGA: Or second las t page. No , th i rd las t page.
MS BONGANI MATHEBULA : Okay. Madam Commiss ioner, I be l i eve
you are ta lk ing about the emai l tha t Dr Mat j i l a sent to the IC Commi t tee
members wh ich says :
“Dear L ind i . . . [ in te rvenes ] .
CHAIRPERSON: Date , da te .
MS BONGANI MATHEBULA : The da te i s the 11 t h Apr i l 2018. I t was
sent a t ten pas t one o ’c lock . Ten pas t one. 13 :11 . I t reads :
“Dear L ind i . You can res t assured tha t we w i l l no t
do…”
Okay. I t was ac tua l l y sent a t 16 :00 p .m. by D r Mat j i l a . I t
says :
“Dear Cha i rman. We have a t tempted to f ind a dea l
tha t b r ing us c loser to our bu l l i sh(?) case R20,00 per
share . Unfor tunate ly, the PLS pr ice cannot be pr ice .
However, we negot ia ted a dea l where we w i l l desc r ibe
fo r 3 b i l l i on wor th o f share made up o f 50% of the
shares a t R39,09 per share and the o ther 50% at
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R1,00 per share , together w i th downs ide pro tec t ion .
Best Regards , Dan…”
And o f course there were responses to th is emai l . So , I am
go ing to read the responses as I see them. T here was a response as
we l l f rom Ms H la tshwayo.
MS GILL MARCUS : I th ink we on ly need the response f rom the
Inves tment Commi t tee , i f there i s one. And Dr Mat j i l a does no t re fe r
anywhere as to who he d id the negot ia t ions w i th to ge t to tha t p r ice .
MS BONGANI MATHEBULA : Yes . Okay, so there was the response
f rom Dr C laud ia Mann ing , tha t says :
“Dear Dan. Th is p r i ce averages ou t a t a round R20,00
per share . Three t imes what management b rought to
the IC today as your base case. I am a f ra id I fa i l to
see the ra t iona l fo r inves t ing a t a p r ice th ree t imes
h igher than what your team has adv ised w i l l be a
good dea l fo r our c l ien ts i .e . R7,00 per share…”
And then there was a lso a response f rom Ms Toy i tha t says :
“Dear Co l leagues . I w i l l l i ke to express my concern
tha t we are ignor ing the s tunn ing work tha t the teams
have done and repor ted on the t ransac t ion . The
d i f fe ren t teams have a lso ident i f ied very c lear ly the
r i sk posed by th is t ransac t ion . The numbers and the
fac ts p resented to IC do no t suppor t go ing ahe ad w i th
the t ransac t ion . My humble assessment i s tha t th is i s
tan tamount to gambl ing w i th pens ion funds when you
have no f igures and fac ts to suppor t economic mer i t
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i n the t ransac t ion…”
And then Dr Dan responded:
“Dear L ind i . You can res t assured tha t w e w i l l no t do
a dea l tha t i s no t suppor ted by our IC . We t r ied to
seek comfor t f rom IC today. I t was very c lear tha t IC
was no t and is s t i l l no t comfor tab le . So, fa r we have
no t found an appropr ia te so lu t ion tha t makes the dea l
work . There fore , we are not p roceed ing…”
Those are the…
MS GILL MARCUS : Thank you. That i s f ine .
MS BONGANI MATHEBULA : Okay. So, there was a lso… Sor ry.
Before , there was a lso a response by Ms H la tshwayo tha t says :
“Dear Dr Mkhwanaz i . I had ser ious prob lems w i th
connec t ing in to the meet ing . (She was ca l l i ng in to
the meet ing) th rough your te lephone th is morn ing and
towards the end o f the meet ing , I go t cu t o f f and had
to red ia l . I f the dec is ion was tha t management must
exerc ise the i r de legated powers and no t i f y the IC,
thereaf te r, cou ld I a l so ask tha t management no t i f ies
GPF as a cour tesy, l i ke we normal ly do , espec ia l l y i n
sens i t i ve t ransac t ions l i ke th is one. So, tha t the
GEPF Trus tees do no t read about th is t ransac t ions in
the med ia…”
So , those were the i r responses .
ADV ISAAC MONNAHELA : You may proceed a t paragraph 85.
CHAIRPERSON: Wou ld th is no t be a conven ien t t ime to take the lunch
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ad journment?
ADV ISAAC MONNAHELA : That w i l l be f ine .
CHAIRPERSON: A l l r igh t . I t i s sugges ted by my co l leagues tha t we go
on to parag raph 88.
ADV ISAAC MONNAHELA : Thank you, Commiss ioner.
MS BONGANI MATHEBULA : Okay.
Paragraph 88:
“The CEO a lso reques ted me to a r range a meet ing
between the IC and the Sagarmatha Leadersh ip
regard ing the dea l on the 10 t h Apr i l 2018. However,
the IC re fused to meet w i th Sagarmatha . Th is aga in ,
i s no t in l ine w i th the inves tment p rocess .
Ev idence has a l ready been p laced before th i s
Commiss ion o f Inqu i ry tha t the CEO s igned a sa le o f
shares and c la ims agreement on beha l f o f the GEPF
wi th Sagarmatha on th e 14 t h December 2017 before
the t ransac t ion was approved.
Th is , aga in , to my knowledge is no t in l ine w i th the
inves tment approva l p rocess and the dec is ion taken
on the 6 t h December 2017 by the Pr iva te Equ i ty
Pr io r i t y Sec tor in Smal l and Med ium Enterpr ises .
(That i s our PEPSS FIP. I t i s a lso a sub -commi t tee o f
IC . ) where the PIC ’s ex is t f rom Independent News
Media was submi t ted fo r approva l .
The PEPSS FIP had made i t c lear in the i r approva l
tha t the i r o f fe r ex is t Independent News Med ia SA and
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Sekun ja lo Independent Med ia , shou ld be separa ted
f rom the o f fe r to acqu i re a s take in Sagarmatha.
The PIC ’s ex is t f rom Independent News Med ia shou ld
no t be cond i t iona l upon the PIC ’s par t i c ipa t ion in the
l i s t ing o f Sagarmatha. ( I have a lso a t tached an
ex t rac t o f tha t reso lu t ion o f the PEPSS FIP. )
Communica t ion o f the reso lu t ion o f the PEPSS FIP
was c i rcu la ted to management , as i s normal p rac t i ce
af te r each meet ing , inc lud ing the CEO…”
CHAIRPERSON: I jus t want , be fore my co l league asks a ques t ion , I
jus t want to make i t c lear in paragraph 85. There are two th ings there .
You were reques ted by the CEO to ar range a meet ing be tween the IC
and Sagarmatha Leadersh ip and then, however, IC re fused to meet w i th
Sagarmatha.
Th is , aga in , i s no t in l ine . I t i s easy fo r one to say or ra ther
one to acqu i re What i s no t l ine? I s i t the re fusa l o r i s i t the reques t?
Shou ld you no t ra ther amend tha t to say tha t the reques t by the CEO
aga in i s no t…?
MS BONGANI MATHEBULA : You are cor rec t , Commiss ioner. I t was
the reques t . I w i l l co r rec t tha t in the s ta tement .
MR EMANNUEL LEDIGA: Ja , jus t another ques t ion . I th ink two
ques t ions on Sagarmatha. I f you reca l l , was th is dea l approved by the
management? Because i t seems i t moved f rom the IC back to the
de legate management p rocess .
And so , the f i r s t ques t ion : Was th is dea l approved? And i t
on ly co l l apsed because the JSE d id no t want to l i s t the company. Jus t
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as the f i r s t ques t ion . The second one. Was the – when i t was
approved, d id i t inc lude the INMSA as par t o f the t ransac t i on or no t?
MS BONGANI MATHEBULA : Okay. So , th is f i r s t l y was , a round the
10 t h , 11 t h Apr i l and I was suspended on the 17 t h Apr i l . As fa r as I know
the dea l was no t approved befo re my suspens ion and I unders tand tha t
because there were cer ta in compl iance a spec t tha t were no t compl ied
w i th the JSE. I do no t know whether i t was approved a f te r my
suspens ion , bu t be fore my suspens ion i t was no t approved, bu t I can
check fo r the Commiss ion .
CHAIRPERSON: Does i t no t fo l low tha t i f i t eventua l l y went to the
JSE, i t wou ld have been approved?
MS BONGANI MATHEBULA : I th ink , I am go ing . . . [ in te rvenes ]
CHAIRPERSON: I f you know.
MS BONGANI MATHEBULA : I am go ing to base my response on the
emai l f rom Dr Mat j i l a , where he sa id , i f the dea l i s no t suppor ted , they
are no t go ing go t approve. So, I th ink based on tha t , I do no t th ink
they wou ld have because in the f i r s t p lace , the dea l fe l l w i th in the
de legat ion o f management .
So , maybe i t was because o f the r i sk e lement to i t , tha t the
management dec ided to go to IC and by v i r tue o f the fac t tha t the IC
d id no t suppor t the t ransac t ion , I do no t th ink i t wou ld have been
log ica l fo r management to then approve someth ing wh ich is in the f i r s t
p lace they brought to the a t ten t ion o f the i r p r inc ipa ls and i t was no t
suppor ted by the i r p r inc ipa ls .
MR EMANNUEL LEDIGA: I th ink we can doub le check tha t , bu t i f I can
reca l l . One w i tness sa id tha t i f i t was no t o f the JSE th is cou ld have
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gone th rough, bu t we can doub le check tha t .
Ma in ly because, a lso there were some put op t ions tha t were
worked ou t be tween Dr Dan and the o ther par ty, the sponsor. But , ja .
I t i s someth ing wh ich we need to doub le check , whether i f i t was no t o f
the JSE, cou ld th is R3 b i l l i on ac tua l l y have been spent .
MS BONGANI MATHEBULA : Okay, Commiss ioner. We wi l l doub le
check tha t .
ADV ISAAC MONNAHELA : I f I may. The ev idence p laced before th is
Commiss ion by employees o f the P IC is tha t Dr Dan Mat j i l a s igned the
i r revocab le subscr ip t ion fo rm re la t ing to the Sagarmatha Transac t ion
on the 14 t h December 2017. Are you aware o f tha t?
MR EMANNUEL LEDIGA: The AYO. I s i t no t?
ADV ISAAC MONNAHELA : Yes , i t i s AYO.
MR EMANNUEL LEDIGA: I t i s no t Sagarmatha.
ADV ISAAC MONNAHELA : No , no . I am ask ing about AYO.
MR EMANNUEL LEDIGA: Oh, okay.
CHAIRPERSON: We were ta lk in g about Sagarmatha here , bu t you
know.
ADV ISAAC MONNAHELA : No, there i s a fo l l ow up ques t ion to the
ques t ion tha t I have jus t asked .
CHAIRPERSON: Oh, okay. I ge t you.
MS BONGANI MATHEBULA : Yes , I am aware . I have heard about tha t
in the ev idence befo re th is Commiss ion .
ADV ISAAC MONNAHELA : So , tha t wou ld mean, accord ing to your
s ta tement a t paragraph 86, tha t Dr Mat j i l a a lso s igned the Sa le o f
Shares and C la ims Agreement re la t ing to Sagarmatha on the same
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day?
MS BONGANI MATHEBULA : Cor rec t .
ADV ISAAC MONNAHELA : Do you know i f any due d i l igence was done
before Dr Dan s igned the Sa le o f Shares and C la ims Agreement
re la t ing to Sagarmatha?
MS BONGANI MATHEBULA : I do no t know i f there was any due
d i l igence tha t was done, p r io r to the s ign ing o f the Sa le o f Shares
Agreement .
MS GILL MARCUS : I th ink g i ven the ques t ion , le t us jus t look a t your
paragraph 86 and ask you jus t to , no t necessar i l y now, bu t jus t to
reconf i rm tha t in fac t tha t the inqu i ry tha t the Sa le o f Shares and
C la ims Agreement on beha l f o f the GEPF wi th Sagarmatha was s igned
by the CEO on the 14 t h December, long be fore the t ransac t ion was
approved. That i s co r rec t?
MS BONGANI MATHEBULA : That i s cor rec t .
MS GILL MARCUS : That i s cor rec t . And tha t i s Sagarmatha we a re
ta lk ing about .
MS BONGANI MATHEBULA : That i s Sagarmatha, Madam Cha i r. Yes .
MS GILL MARCUS : Thank you.
ADV ISAAC MONNAHELA : Mr Commiss ioner, I con f i rm. I have a copy
o f the agreement in my possess ion and we w i l l p lace i t be fore the
Commiss ion . I t was s igned on the 14 t h .
MS GILL MARCUS : Of December 2017.
ADV ISAAC MONNAHELA : O f December by Dr Dan. And on the 13 t h
by the representa t i ve o f Sagarmatha.
CHAIRPERSON: We wi l l be happy i f you hand up cop ies o f tha t
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agreement .
ADV ISAAC MONNAHELA : I w i l l do so , Mr Commiss ione r.
CHAIRPERSON: Thank you.
MR EMANNUEL LEDIGA: Then the fo l low up ques t ion i s . My second
ques t ion . Those t ransac t ions were l inked. So, the Independent News
Med ia i ssues versus Sagarmatha. Do you know what happened to tha t
i ssue? Mr Monnahe la or Ms M athebu la .
There was a lways a l ink tha t the P IC w i l l i nves t in Sagarmatha
and then there w i l l be a takeout o r buy -out o f the Independent News
Media by Dr Survé ’s company.
ADV ISAAC MONNAHELA : Mr Commiss ioner, I do no t know i f I
unders tand the ques t ion , bu t the agreement tha t we have, i s no t what i t
purpor ts to be . I t i s re fe r red to as a Sa le o f Shares and C la ims
Agreement , bu t there was no sa le o f shares . Can I jus t t r y to f ind
whether I have i t w i th me, Mr Commiss ioner.
MR EMANNUEL LEDIGA: I t i s f ine . We can ta lk about i t and then
a f te r the b reak and a l l tha t . Ja , there i s no issue.
CHAIRPERSON: Yes , I th ink we w i l l ad journ now fo r lunch un t i l quar te r
pas t two.
MEETING ADJOURNS :
MEETING RESUMES :
CHAIRPERSON: R igh t , Ms Mathebu la . You are s t i l l under oa th .
MS BONGANI MATHEBULA : Yes , Commiss ioner.
BONGANI LOUISA MATHEBULA : ( s .u .o . )
ADV ISAAC MONNAHELA : Yes , thank you, Mr Commiss ioner. I jus t
want to make the Commiss ion aware tha t we managed to ge t a copy o f
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the Sagarmatha Agreement . We have made ava i lab le to the secre tar ia t
to make cop ies .
CHAIRPERSON: Ja .
ADV ISAAC MONNAHELA : We are on page 27 and a t paragraph 88.
MR EMANNUEL LEDIGA: And jus t to check . The cop ies do conf i rm
what Ms Mathebu la . I s tha t what you are say ing?
ADV ISAAC MONNAHELA : Yes , the copy conf i rms tha t the agreement
was s igned by Dr Mat j i l a on the 14 t h December 2017. And I rea l l y
wou ld l i ke to have a copy, because there are someth ings tha t I want t o
po in t ou t to the Commiss ion , regard ing the agreement .
MR EMANNUEL LEDIGA: Okay, a l l r igh t .
CHAIRPERSON: You mean, you have g iven us cop ies and you d id no t
keep one?
ADV ISAAC MONNAHELA : No, we were g iven a so f t copy o f the
agreement . That i s why we made i t ava i lab le to the secre tar ia t to make
cop ies , bu t i f I maybe a l l owed maybe to open i t on emai l and re fe r to
the c lauses tha t I want to b r ing to the a t ten t ion o f the Commiss ion .
CHAIRPERSON: I am sure you can do tha t . Cou ld no t Ms Mathebu la
car ry on the meant ime, wh i l s t you…?
ADV ISAAC MONNAHELA : I have managed to open i t , Mr
Commiss ioner. I am jus t wa i t ing fo r i t . . I jus t want to go to the
re levant c lauses . I w i l l re fe r to C lause 5 o f tha t agreement .
CHAIRPERSON: No, then we were ta lk ing passed each o ther.
ADV ISAAC MONNAHELA : Oh .
CHAIRPERSON: We do no t have a copy o f the agreement ye t .
ADV ISAAC MONNAHELA : Okay, then Ms. . . [ in te rvenes ]
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CHAIRPERSON: Bu t you can read i t in to the record .
ADV ISAAC MONNAHELA : Yes .
CHAIRPERSON: Whatever you want to re fe r to , you can read i t in to
the record .
ADV ISAAC MONNAHELA : Yes . C lause 5 .1 reads as fo l l ows :
“The purchase pr ice i s R1 533 881 920,00 a l l oca ted as
fo l lows :
- R334 mi l l i on in respec t o f the ord inary shares ;
- R474 462 266,00 in respec t o f the pre ference shares .
And then C lause 5 .1 .3 :
- R261 784 387,00 in respec t o f the co mpany c la ims
5 .1 .4 :
- R466 635 207,00 in respec t o f the same c la ims.
5 .2 :
On the e f fec t i ve da te , the purchase pr ice sha l l be
d ischarged by the purchaser a l lud ing an issu ing to the
se l le r the purchaser shares c red i ted as fu l l y pa id up a t
the pr ice equa l to the o f fe r p r ice .
So, the purchaser here was supposed to be Sagarmatha and
the se l le r be the GEPF, represented by the PIC and i t i s c lear f rom tha t
c lause tha t the amount – and the R1.5 b i l l i on tha t i s re fe r red to i s the
amount tha t was owed to the PEIC.
MR EMANNUEL LEDIGA: By what? By IMSA?
ADV ISAAC MONNAHELA : Yes .
MR EMANNUEL LEDIGA: The Independent Med ia?
ADV ISAAC MONNAHELA : Yes . And the agreement a lso… Yes , I am
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t r y ing to f ind the c lause dea l ing w i th the share p r ice because i t a lso
dea l t w i th the share pr ice and i f I remember cor rec t l y, i t s ta ted tha t the
share pr ice was R39,62. Yes , tha t i s C lause 2 .4 .16 .
I t says : Offe r p r ice means R39,62 per o rd inary share o f the
purchaser. And the Commiss ion w i l l remember tha t was the same pr ice
a t wh ich the shares were o f fe red to the PIC.
And the da te on wh ich Dr Mat j i l a s igned the agreement i s on
the las t page. I th ink i t was s igned by Mr T Hove on the 13 t h .
MS GILL MARCUS : Dan Mat j i l a on the 13 t h and fo r Sagarmatha, Mr
Hove on the 14 t h . I f you l ook a t tha t .
ADV ISAAC MONNAHELA : Oh, ja . Ac tua l l y I made a mis take . I t was
s igned on the 13 t h . May I cor rec t my ear l ie r s ta tement tha t i t was
s igned on the same day? I t was on the 13 t h .
MR EMANNUEL LEDIGA: So , there was a t ransac t ion then? There
was a t ransac t ion l ink ing Sagarmatha and the Independent News Med ia
SA and a l l tha t?
ADV ISAAC MONNAHELA : Yes . And there are cop ies o f emai ls tha t I
asked the secre tar ia t to make ava i lab le to the Commiss ion . I do no t
know i f the members o f the Commiss ion rece ived cop ies o f those
emai ls? I t w i l l be c lear f rom those emai ls tha t communica t ion
regard ing the Sagarmatha Transac t ion began in m id -November 2017,
when they were d iscuss ing the non -d isc losure agreement .
And the Commiss ion reca l l tha t accord ing to Mr Vic to r Sean ie ,
he rece ived an ins t ruc t ion f rom Mr Madavo , i f I remember cor rec t l y,
about the same t ime regard ing the AYO Transac t ion .
MR EMANNUEL LEDIGA: Ja , I th ink we can read th is . We can have a
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l ook a t th i s . Ja , I th ink i t i s f ine . Thank you. We can make a move on.
CHAIRPERSON: I am t ry ing to th ink what numbers can we g ive as
annexures . Can we use as annexures to the w i tness ’s s ta tement?
ADV ISAAC MONNAHELA : Mr Commiss ioner, I do no t know i f we can
use them as annexures . But we can use… Becau se there i s re fe rence
to tha t agreement a t paragraph 86. We can mark i t Annexure BM24A.
MR EMANNUEL LEDIGA: Ja , tha t i s f ine .
ADV ISAAC MONNAHELA : Ms Mathebu la , you can cont inue w i th your
s ta tement f rom paragraph 89.
MS BONGANI MATHEBULA : Okay.
Paragraph 89:
“Sequence o f events wh ich lead to my suspens ion :
My encoun ter w i th Frans Lekubo f rom Na led i Adv iso ry
Serv i ces :
On the 4 t h Oc tober 2017, the o f f i ce o f the CEO
ar ranged a meet ing be tween myse l f and Mr Frans
Lekubo o f Na led i Adv isory Serv i ces .
The manner in wh ich the meet ing was ar ranged was
s t range. The meet ing was ar ranged by the o f f i ce o f
the CEO and so I had prepared fo r a meet ing w i th the
CEO and not anyone e lse .
A l though, I was no t p repared fo r a meet ing w i th Mr
Lekubo and the manner in wh ich i t was ar ranged in
has te by the CEO’s o f f i ce , I coopera ted and
proceeded w i th the in te rv iew.
Mr Lekubo adv ised me tha t they were sub -cont rac ted
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by BCX to inves t iga te in fo rmat ion leaks w i th in the P IC
and wou ld l i ke to unders tand how in fo rmat ion is
hand led w i th in company secre tar ia t . I took them
through tha t p rocess .
I am concerned about the tes t imony o f Mr Lekubo who
tes t i f ied be fore th is Commiss ion , bu t when the fo rmer
CEO found out tha t he was under po l i ce inves t iga t ion ,
the inves t iga t ions scope (That i s Na l ed i ’s
i nves t iga t ion scope. ) was ex tended to p rov ide the
CEO wi th in fo rmat ion re la t ing to the po l i ce
inves t iga t ion .
Execut ion Na led i ’s ex tended scope and in te rms of
re fe rence, I submi t , cannot occur o r cou ld no t have
occur red w i thout ident i f y ing poss ib le s ta te w i tnesses ,
ob ta in ing in fo rmat ion about the na ture ex ten t and
loca t ion o f the ev idence they possess in an ongo ing
c r im ina l inves t iga t ion and or p lac ing a po ten t ia l
c r im ina l suspec t in possess ion o f in fo rmat ion tha t ,
g iven h is power over w i tnesses , enab les an
obs t ruc t ion w i th jus t i ce .
I have s t rugg led in p repara t ion fo r th is s ta tement to
f ind any b ind ing e th ica l codes or regu la t ions ,
concern ing how fo rens ic inves t iga tors shou ld conduc t
themse lves when ins t ruc ted by persons imp l ica t ing in
wrongdo ing , so as no t to become ins t ruments o f
cover -ups , work p lace bu l l y ing or in t im ida t ion .
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I am ab le to tes t i f y tha t in my case , the boarder
be tween a leg i t imate app l i ca t ion o f workp lace
d isc ip l i ne and harassment o f an employee by person
w i th someth ing to h ide has rep eated ly been beached.
I am a lso sure the way tha t I have been dea l t w i th w i l l
have a ch i l l i ng e f fec t on wh is t le -b lowers coopera t ing
or th ink ing o f coopera t ing w i th au thor i t ies in the
fu tu re .
On the 28 t h February 2018, I had a meet ing w i th the
CEO in h is o f f i ce a t quar te r to two. On the 28 t h
February 2018, the CEO ind ica ted to me in a meet ing
in h is o f f i ce tha t , he does no t t rus t me anymore and
asked me how I have been a t the P IC.
I responded tha t i t was two and a ha l f years . He
proceeded to say tha t the f i r s t twe lve months were
okay, bu t he no t iced changes in the second twe lve
months .
I was taken aback by what the CEO sa id , as i t was
the f i r s t t ime we ever had such a d iscuss ion .
He ra ised. . . [ in te rvenes ]…”
ADV ISAAC MONNAHELA : I f I may in te rvene. D id he m ent ion what
those changes were tha t he no t iced?
MS BONGANI MATHEBULA : No, he d id no t .
Paragraph 93 :
“He ra ised the fac t tha t he had not ye t s igned my
ba lance score card fo r 2017/2018 f inanc ia l year. I
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responded tha t de lays in f ina l i s ing my ba lance score
card were due to the fac t tha t Exco had dec ided tha t
the Modera t ion Commi t tee sha l l f i r s t d iscuss and
f ina l i se the pr inc ip les app l i cab le to a l l BSCs fo r
execut ive heads and sen ior management , be fore any
cont rac t cou ld be inc luded, in o rder to ensure tha t t he
BSCs are a l igned w i th the corpora te BSC.
None o f the execut ive heads BSCs were f ina l i sed a t
tha t moment . The Human Resources and
Remunera t ion Commi t tee o f the board had a lso
reques ted s igh t o f my BSC to agree on my CPI ’s ,
before any cont rac t cou ld take p lace .
He ind ica ted tha t he d id no t know what I was do ing
and who I repor ted to . I responded tha t I was do ing
what I had a lways been do ing in the pas t two years ,
s ince I jo ined the PIC.
I fu r ther s ta ted tha t I wou ld have thought the CEO
shou ld have ra ise d these concerns much ear l ie r. On
the issue o f t rus t , I expressed my shock tha t the CEO
was on ly hav ing th is d iscuss ion w i th me on ly now and
I assured h im tha t I was loya l to the PIC and tha t he
shou ld no t have any reasons to d is t rus t me.
The d iscuss ion t ook me by surpr ise , a lso because,
the CEO s igned my BSC and recommended a
modera ted score o f 4 .264 in the 2016/2017 f inanc ia l
year to the board…”
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ADV ISAAC MONNAHELA : I f I may s top you there . In the f i r s t
sen tence o f tha t paragraph, you say : He ind ica te d tha t he d id no t know
what you were do ing and who you repor ted to . Who had you been
repor t ing to fo r the two and a ha l f years tha t you had been a t the P IC?
MS BONGANI MATHEBULA : I have been repor t ing to the CEO.
ADV ISAAC MONNAHELA : So , he sa id tha t he d id no t know who you
were repor t ing to when he knew tha t you were repor t ing to h im?
MS BONGANI MATHEBULA : Yes .
MS GILL MARCUS : Bu t sure ly, the imp l ica t ion i s f rom tha t s ta tement ,
i f i t was used in those words is tha t , he does no t know who you
repor t ing to , mak ing the a l legat ion or sarcas t ic remark tha t you are
repor t ing to somebody ou ts ide o f h is l ine o f au thor i ty.
That i s the way I wou ld in te rpre t tha t . I f he i s ask ing . He is
no t ask ing to whom e lse you a re repor t ing to in the PIC. I am not sure
how you wou ld in te rp re t tha t , Ms Mathebu la?
MS BONGANI MATHEBULA : Madam Commiss ioner, maybe he was
mak ing a sarcas t ic remark , bu t I was genu ine ly surpr ised tha t he d id
no t th ink tha t o r he d id no t know tha t I was repor t ing to h im a l l a long,
because maybe I was – i t was ou t o f ignorance f rom my s ide or there
was someth ing tha t I d id no t know a t the t ime tha t was happen ing .
Shou ld I p roceed? Ja .
“On the way fo rward , the CEO ind ica ted tha t he wou ld
schedu le a meet ing w i th myse l f , h imse l f and HR in
due course to d iscuss the mat te r.
Cor r idor ta lk a t tha t t ime was tha t I was nex t in l ine
fo r suspens ion , fo l low ing the suspens ion o f severa l
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others be fore me. That i s Ms Vuyokaz i Menye, Mr
Pau l Magu la and Mr S imph iwe May ise la .
I t was a f te r th is meet ing tha t I had r eason to be l ieve
tha t the rumours were t rue , g iven the behav iour o f the
CEO towards myse l f f rom the beg inn ing o f 2018…”
ADV ISAAC MONNAHELA : Okay, may I in te rvene. There i s a ques t ion
tha t I fo rgo t to ask you. Was there ever a t ime when Dr Survé v is i ted
the o f f i ces o f the P IC?
MS BONGANI MATHEBULA : Yes , I reca l l there was a t ime when Dr
Survé made a presenta t ion to – wh ich I cannot reca l l i s whether i t was
the IC Commi t tee or the F IP Commi t tee . They were mak ing a repor t o r
p resenta t ion on the per fo rman ce o f the INMSA which a t the t ime was
no t per fo rming qu i te we l l .
So , ja to t ry and present how they were go ing to in te rvene to
ensure tha t i t per fo rms. I cannot reca l l whether i t was 2016 or ear ly
2017. I need to check my records . Ja .
ADV ISAAC MONNAHELA : Okay. What in te rvent ion was he re fe r r ing
to?
MS BONGANI MATHEBULA : INMSA was not per fo rming. So, what
normal ly happens in tha t ins tance. The IC or the F IP w i l l then inv i te…
Then the PMV Team wi l l then ident i f y the inves tments wh ich are no t
per fo rming .
INMSA was one o f those and he was then – the management o f
INMSA were then requ i red to come and present fo r the IC o f F IP - as I
have sa id I mus t con f i rm tha t – to come and present how they want to
tu rn around the i r inves tment . Can I p roceed?
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ADV ISAAC MONNAHELA : D id he spec i f i ca l l y ment ion what the
in te rvent ion wou ld be?
MS BONGANI MATHEBULA : I am go ing to have to go and ver i f y my
records , bu t I be l ieve tha t there was made ment ion in tha t meet ing o f a
poss ib le in t roduc t ion o f an IT – I reca l l they sa id a Goog le o f A f r i ca o f
some sor t , tha t they were go ing embark upon and coming to th ink o f i t
now, I th ink tha t was re fe r r ing to AYO or Sagarmatha.
ADV ISAAC MONNAHELA : You may proceed a t paragraph 97.
MS BONGANI MATHEBULA : Okay.
Paragraph 97 :
“On the 2 n d March 2018, I had a meet ing w i th the CEO
and Execu t ive Head o f HR in the CEO’s o f f i ce . That
i s Annexure BM27. That i s the inv i te to the meet ing .
I had another meet ing w i th the CEO on the 2 n d March .
The CEO br ie fed Mr Pho lwane, the Execut ive Head o f
HR, who was a lso present about th is meet ing o f the
28 t h February 2018 w i th me.
The CEO ind ica ted tha t the meet ing was to exp lo re
a l te rna t ives . I assumed a l te rna t ives to be ing
demoted o r d ismissed and reques ted Mr Pho lwane to
p rov ide adv ice on ava i lab l e a l te rna t ives .
Mr Pho lwane reques ted me to respond to the i ssues
ra ised by the CEO. Desp i te my uneas iness , I to ld Mr
Pho lwane tha t I was surpr ised by what the CEO had
to ld me, espec ia l l y the fac t tha t he sa id tha t he does
no t t rus t me w i thou t p rov id ing m e wi thout reasons
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why.
The CEO s ta ted tha t he d id no t want me to dea l
d i rec t l y w i th the Board anymore . Th is rea l l y shocked
me and I asked h im whether the Board is aware o f
th is and he responded tha t he w i l l communica te same
to the Board .
I was surp r ised how a CEO wou ld have taken such a
dras t i c dec is ion on a mat te r wh ich requ i red the board
w i thout the board hav ing any knowledge on the
mat te r.
I t ought to be no ted tha t the PIC MOI makes i t very
c lear in paragraph 16 tha t the appo in tment o f the
company sec re tary i s a mat te r reserved fo r the board .
Sec t ion 89(2) o f the Compan ies Ac t a lso regu la tes
the remova l o f the company secre tary.
Mr Pho lwane adv ised tha t in s i tua t ions such as th i s
there are two a l te rna t ives . F i r s t l y, mutua l separa t ion
or re loca t ion to another pos i t ion .
I ind ica ted tha t I needed t ime to th ink about our
d iscuss ion and we agreed to meet on Monday, 12 t h
March 2018 when the CEO was back f rom h is t rave l . I
reca l l he was t rave l l ing tha t week .
I mus t no te tha t a t no t ime d id Mr Pho lwane, an H R
prac t i t ioner, showed any cur ios i t y about any
subs tan t ive reasons the CEO might have had to
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j us t i f y h is behav iour towards me. Indeed, the CEO
presented no reasons a t a l l , except h is sub jec t i ve
fee l ings , jus t i f y ing my remova l and Mr Pho lwane
appeared to co nten t to enab le my remova l on scan ty
bas is .
On the 5 t h March 2018, I had another meet ing w i th
Pho lwane. Noth ing resu l ted f rom the meet ing w i th Mr
Pho lwane, as he d id no t p resent any concre te
in fo rmat ion , jus t i f y ing my remova l o r make any o f fe r
to me.
Dur ing our b r ie f d iscuss ion he made a comment tha t
i f the organ iza t ion wanted to ge t r id o f an employee
they a lways do because they w i l l f i nd someth ing to
charge an employee as no one is c lean.
He a lso ind ica ted tha t he was there to suppor t the
execut ive d i rec tors . I fe l t d isempowered as I came to
the rea l i sa t ion tha t I cou ld no t even re ly on an HR to
be neut ra l , fa i r and ob jec t i ve when dea l ing w i th my
mat te r.
We agreed to meet on the 7 t h March 2018 fo r a
fo l low-up meet ing bu t tha t meet ing never took p lace .
On the 6 t h March 2018, tha t i s the day a f te r my
meet ing w i th Mr Pho lwane, I had a meet ing w i th the
Head o f In te rna l Aud i t , Mr Nemagovhan i , who
in fo rmed me tha t he was reques ted by the CEO and
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Audi t and R isk Commi t tee to aud i t a l l d i rec tors
emoluments .
I was surp r ised as the aud i t was no t a p lanned aud i t .
I was no t in fo rmed why the aud i t was commiss ioned.
My depar tment has jus t gone th rough to a p lanned
governance compl iance aud i t , wh ich I have annexed
here a t Annexure BM28. That was conduc ted shor t l y
be fore the in te rna l aud i t was reques ted to conduc t
the aud i t on d i rec to rs emoluments . I was no t su re
why the sudden tu rn o f events , bu t my thought
tu rned to Mr Pho lwane ’ s comment , tha t those in
power were in tend to f ind fau l t in what I was do ing .
I in fo rmed my team about the eminent ad hoc aud i t
and reques ted them to ass is t In te rna l Aud i t w i th the i r
work . Th is desp i te the pressure I was under a t the
t ime. The aud i t was eventua l l y conduc ted and
f ina l i zed and i t i s a t tached as Annexure BM29.
On the 12 t h March 2018, I had a meet ing w i th Dr Dan
and Mr Pho lwane. The purpose o f the meet ing on the
12 t h March 2018 was to p rov ide feedback to the CEO
regard ing my pos i t ion on the proposed to
a l te rna t ives , p resented by HR, tha t i t i s the mutua l
separa t ion or to be p laced in an a l te rna t i ve pos i t ion .
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I h igh l igh ted to the CEO tha t there was no feedback
as I had no t been prov ided w i th the de ta i l s o f the
a l te rna t ives fo r my cons idera t ion by HR.
The CEO reques ted HR to u rgent ly p rov ide me w i th
the de ta i l o f the two a l te rn a t ives . So, I immedia te l y
a f te r tha t meet ing , a t ha l f pas t th ree , I had a meet ing
w i th Mr Pho lwane in h is o f f i ce .
Mr Pho lwane presented to me an a l te rna t ive . The
f i r s t a l te rna t ive , he o f fe red me a pos i t ion o f Sen ior
Manager regu la tory in the Lega l Govern ance and
Compl iance Bus iness Un i t . Th is I re jec ted ou t r igh t ,
as i t was tan tamount to demot ion .
For the second a l te rna t ive , Mr Pho lwane adv ised tha t
he w i l l
. . . [ in te rvenes ]…”
MR EMANNUEL LEDIGA: Jus t a ques t ion there . Were th is w i th in the
same payment g r ades , your ro le in the Sen ior Lega l Adv iso ry?
MS BONGANI MATHEBULA : Mr Commiss ioner, i t i s no t in the same
payment g rade, bu t Mr Pho lwane d id ind ica te tha t i f I accept the
pos i t ion , I am not go ing to lose my cur ren t sa la ry wh ich is a t a genera l
manager lever.
MR EMANNUEL LEDIGA: Okay, a l l r igh t . Which is F… Which is E
someth ing . E…
MS BONGANI MATHEBULA : Ja , I th ink i t i s be tween E. I th ink upper
E .
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MR EMANNUEL LEDIGA: The upper E fo r someth ing .
MS BONGANI MATHEBULA : Yes , yes .
MR EMANNUEL LEDIGA: Okay, a l l r igh t .
MS BONGANI MATHEBULA : And then the second a l te rna t ive .
“Mr Pho lwane adv ised tha t he w i l l do the ca lcu la t ion
wi th respec t to the proposed amount fo r mutua l
separa t ion .
On the 13 t h March 2018, I had a meet ing w i th Mr
Magu la who was the Exe cut ive Head o f R isk a t tha t
t ime. Mr Pho lwane fac i l i t a ted th is meet ing be tween
myse l f and Mr Magu la , who was the Execut ive Head
o f R isk .
Mr Magu la in fo rmed me tha t he was suspended fo r
misconduc t ing re la t ing to an a l leged non -
per fo rmance. The charge re la ted to submiss ion o f
document to board . He reques ted me to be a w i tness
on h is beha l f about the process o f submiss ion o f
documents to the board , wh ich I agreed to do .
I eventua l l y tes t i f ied dur ing Mr Magu la ’s hear ing , who
was subsequent ly d ismissed. I be l i eve tha t my
agree ing to tes t i f y ing dur ing Mr Magu la ’s d isc ip l i nary
hear ing inqu i r ing might have a lso cont r ibu ted to my
suspens ion .
I persona l l y d id no t see any th ing wrong w i th me
ass is t i ng a fe l low co l league, espec ia l l y s ince my
par t i c ipa t ion was fac i l i t a ted by HR and as my
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tes t imony wou ld dea l w i th p rocess issues and noth ing
more .
On the 13 t h March , tha t i s in the a f te rnoon a f te r my
meet ing w i th Mr Magu la , I met w i th Mr Pho lwane. Mr
Pho lwane presented to me two proposed se t t lement
fo r mutua l separa t ion .
The f i r s t p roposa l wh ich i s Annexure BM30 was
payment o f four months o f my to ta l cos t to company,
and the second proposa l wh ich is Annexure BM31,
was payment o f s ix months .
He adv ised me tha t th is was a no fau l t se t t lement .
When he sa id th is , i t d rove home to me what was
happen ing to me, w i thout a t a l l be ing a t fau l t , I was
be ing depr ived o f a job tha t I fe l t a t tha t t ime I
competent ly per fo rmed.
I to ld Mr Pho lwane tha t I cou ld no t accep t e i ther o f fe r
p roposed. He asked me how much w i l l be acceptab le
and I ind ica ted my p lan was to s tay w i th the PIC fo r
f i ve years and tha t f i ve years w i l l be acceptab le…”
Th is , Mr Commiss ioner, was my way o f say ing I rea l l y jus t
wanted to do my job .
“A l l these ac t ions , I submi t , were obv ious ha l lmarks o f
at tempts to cos t me so much f rus t ra t ion tha t res ign .
The CEO’s a t tempts work ing w i th Mr Pho lwane d id no t
succeed.
Cance l la t ion o f my month ly meet ings w i th the CEO:
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CEO had in i t ia ted month ly meet ings be tween myse l f
and the CEO which were p laced in my ca lendar. I fe l t
tha t tha t was a good in i t ia t i ve as i t ensured tha t
regu lar updates and d iscuss ions cou ld take p lace
be tween myse l f and the CEO.
I no t i ced tha t towards the end 2017, these meet ings
were a l l cance l led w i thout any pr io r no t ice . Th i s
s t ruck me an a t tempt to s ide - l ine and f rus t ra te me
and I have annexed some o f those cance l la t ions as
Annexure BM32…”
I am now go ing to ta lk about my suspens ion .
“On the 17 t h Apr i l 2018, I had a meet ing w i th the CEO
and the Execut ive Head o f HR in the CEO’s o f f i ce .
About a month a f te r I tu rned down Mr Pho lwane ’s
of fe r o f a no fau l t te rminat ion , I was presented w i th a
le t te r o f p recaut ionary suspens ion fo r poss ib le
misconduc t re la t ing to recent ly leakages and
d isseminat ion o f con f ident ia l documents , tha t i s P IC
board minutes and Manage ment Commi t tee minutes .
I s t i l l do no t unders tand how the CEO and Mr
Pho lwane cou ld have conc luded tha t I was the one
tha t was respons ib le fo r such leakages .
I read the le t te r, Commiss ioner, wh ich is annexed as
Annexure BM33 and rea l i sed tha t the le t te r s t a ted
tha t I was g iven an oppor tun i t y to make
representa t ions be fo re a f ina l dec is ion to suspend me
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was made, wh ich was no t the case.
I was con t ra ry to P IC d isc ip l inary po l i cy, spec i f i ca l l y
paragraph 4.1 .4 .2 (a ) (b ) , no t a f fo rded the oppor tun i t y
to make any representa t ions .
I h igh l igh ted tha t to the CEO and Mr Pho lwane and
reques ted tha t the le t te r be amended.
The le t te r was amended and I s igned. The one tha t I
s igned is Annexure BM33. I handed my PIC lap top ,
ce l l phone and iPad to Mr Pho lwane who escor ted me
out o f the bu i ld ing .
A l though I was log ica l l y one o f severa l persons who
cou ld have leaked the management minutes and dra f t
P IC board minutes wh ich were la te r de le ted
subs tan t ia l l y, I w ish to p lace on record tha t I am no t
the one who d id so .
I cannot he lp bu t connec t my be ing charged w i th a
d ismiss ib le o f fence to my re jec t ing the ers twh i le
CEO’s and Mr Pho lwane ’s e f fo r ts to demote me or t o
separa te me f rom the PIC.
The per iod dur ing my suspens ion :
Dur ing my suspens ion , there were newspaper a r t i c les
w i th expanded a l legat ions o f impropr ie ty w i th in the
PIC, spec i f i ca l l y a l legat ions tha t the board ’s minutes
o f Mu laudz i ’s payment to Ms Pre t ty Louw had been
doc tored .
There were a lso newspaper a r t i c les wh ich pa in ted me
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i n a negat ive l igh t , sugges t ing tha t I was respons ib le
fo r leak ing conf ident ia l in fo rmat ion o f the P IC.
I need to s ta te ca tegor ica l l y tha t I d id no t leak any
in fo rmat ion o f the P IC.
I t was dur ing the same per iod tha t a cour t app l i ca t ion
was brought by the leader o f the UDM, Honourab le
Bantu Ho lomisa , mak ing a l legat ions o f wrongdo ing
emanat ing f rom the James Nogu emai l and tha t o f
Le ih lo la Le ih lo la .
My in te rv iew wi th S izwe Ntsa luba Gobodo :
On the 5 t h of Ju ly 2018 a t 14 :00 , I was ins t ruc ted by
Mr Pho lwane to meet w i th representa t i ves o f another
fo rens ic inves t iga t ion team. Th is t ime f rom SNG. I t
was Mr Tshepo Nyat lo and Mr Nkos ina th i Lo the .
The proceed ings o f the in te rv iew were recorded. Mr
Nyat lo ind ica ted tha t SNG was appo in ted by the PIC
to inves t iga te in fo rmat ion tha t was leaded.
The inves t iga t ion en ta i led a rev iew o f lap tops . They
were prov ided w i th my lap top and tha t o f o ther s ta f f
members w i th in the secre tar ia t .
I asked them to address pre l im inary i ssues be fore we
proceed w i th the in te rv iew…”
And th is , bas ica l l y, Mr Commiss ioner, becaus e i t was no t the
f i r s t t ime I was sub jec ted to a fo rens ic aud i t by the PIC.
“So, I wanted to unders tand whether there were
poss ib le conf l i c t o f in te res t by the SNG, whether any
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s ta tement I made to them wi l l count as d isc losures
under the Pro tec ted D isc lo sure Act and the issues o f
p r i v i lege.
That i s the s ta tus o f the answers tha t I made to them,
what wou ld be the s ta tus to those answers .
I wanted to a lso unders tand the powers tha t they had ,
who gave them the au thor i t y and the t im ing o f the i r
inves t iga t ions .
In my emai l , wh ich i s annexed as Annexure BM34 w i th
SNG inves t iga tors , I spec i f i ca l l y reminded them tha t
as serv ice prov iders to the PIC, they were u l t imate ly
respons ib le to car ry ou t ins t ruc t ions tha t were in the
in te res t o f the P IC as a who le and to f u r ther persona l
in te res t o f wh ich ever execut ive might have ins t ruc ted
them, as aud i t p ro fess iona ls .
Th is i s a theme the Commiss ion may w ish to exp lo re
in i t s recommendat ions , whether the PIC has been
we l l served by serv i ce prov iders such as a t to rneys
and fo rens ic inves t iga tors whose ac t ions have
u l t imate ly served to de lay the exposure o f wrong -
do ing a t the P IC and persecu te those suspec ted o f
b r ing ing such to l igh t
An aud i t o f the lega l and fo rens ic op in ions g iven and
ac t ions taken by lawyers and inves t iga tors w i l l revea l
whether these f lowed f rom ins t ruc t ions in the in te res t
o f the P IC as a who le or whether due d i l i gence
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measures wou ld have revea led the l i ke l i hood tha t
these ins t ruc t ions were i l l eg i t imate .
I submi t tha t i f we expec t PR agenc ies and aud i to rs to
tu rn down ins t ruc t ions tha t appear con t ra ry to good
governance, HR bes t p rac t i ce , the PFMA and o ther
app l i cab le s ta tu tes , po l i c ies and va lues , a t to rneys
and fo rens ic inves t iga tors shou ld a lso no t be exempt
f rom th is expec ta t ion as we l l .
SNG a lso posed wr i t ten ques t ions to me, g iv ing me
unworkab ly t igh t t imef rames to respond . I ac tua l l y
d id rep ly to the i r ques t ions to the bes t o f my ab i l i t y a t
the t ime.
Fo l low ing my meet ing w i th SNG, I was served w i th
no t ice to appear be fore a d i sc ip l i nary hea r ing and
th is i s Annexure BM35….”
I am go ing to ta lk about my coopera t ion w i th the SAPS.
ADV ISAAC MONNAHELA : [ Ind is t inc t ] .
MS BONGANI MATHEBULA : Okay. Annexure BM35. Apo log ies .
“ In Apr i l 2018, jus t a f te r my suspens ion , I rece ived a
ca l l f rom SAPS i nves t iga t ing o f f i ce r Sergeant .
Mpho lo . I met w i th Sergeant Mpho lo on the 25 t h Apr i l
2018 who reques ted me to ass is t SAPS wi th an
inves t iga t ion .
I t appears tha t the SAPS had opened an inves t iga t ion
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i n to the conten t o f the James Nogu emai l .
Notw i ths tand in g i t s anonymous nature and scur r i lous
conten t , i t appears tha t the c r imes a l l eged there in
were deemed c red ib le enough to war ran t such an
inves t iga t ion .
I was asked by the inves t iga t ing o f f i cer to ass is t i n
h is inves t iga t ion , wh ich I agreed to do . My ro le was
l im i ted to au thent ica t ing the two d i f fe ren t se ts o f
m inu tes wh ich had apparent ly been made ava i lab le to
the SAPS.
I cons idered myse l f ob l iga ted to co -opera te w i th the
SAPS as an o f f i cer o f the cour t . I d id no t d isc lose
th is to the PIC, as I took th e v iew tha t i t m igh t
jeopard ise any inves t iga t ions be ing under taken by the
po l i ce .
My coopera t ion w i th the po l i ce was in l ine w i th the
f raud, co r rup t ion and neptun ium po l i cy wh i ch
preva i led a t the P IC a t the t ime.
My lap top was a lso se ized by SAPS f rom the PIC to
per fo rm an imag ing o f my lap top as par t o f the i r
inves t iga t ions , in par t i cu la r to au thent ica te the two
se ts o f the minutes .
My d isc ip l inary inqu i r y :
The PIC e lec ted to . . . [ in te rvenes ]
MR EMANNUEL LEDIGA: Ja , ja . Jus t a ques t ion here . When th e
po l i ce are inves t iga t ing the company or peop le w i th in the company, i s
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i t r igh t fo r the company to know and the peop le , you know, the
company to know when peop le are coopera t ing w i th the po l i ce , such
tha t the lega l depar tment o f tha t company can ac t accor d ing ly and a l l
tha t?
Do you th ink i t i s p roper to so r t o f to h ide or no t to te l l the
company tha t you are coopera t ing w i th the po l i ce?
MS BONGANI MATHEBULA : Commiss ioner, i t depends what the po l i ce
are inves t iga t ing . I f the po l i ce are inves t iga t ing mat t e rs o f persona l
na ture wh ich does no t re la te to the company, I do no t th ink the
company has a r igh t to know.
But i f the inves t iga tors re la te to the PIC as a company, then
maybe perhaps the lega l depar tment has the r igh t to know in te rms o f
p rocesses . But as I unders tand i t , they were no t inves t iga t ing o f f i c ia l
i ssues o f the P IC.
MR EMANNUEL LEDIGA: So , you reckon tha t they were jus t look ing
a t the person? They were no t look ing a t the prob lems w i th in the
company?
MS BONGANI MATHEBULA : They were de f in i te ly inves t iga t ing a
person.
MR EMANNUEL LEDIGA: A person.
MS BONGANI MATHEBULA : Ja .
MR EMANNUEL LEDIGA: Okay, a l l r igh t .
MS BONGANI MATHEBULA :
My d isc ip l inary inqu i r y :
The PIC e lec ted to use ou ts ide lega l counse l in my
hear ing and ins t ruc ted the i r long -s tand ing f i rm o f
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at to rneys , Edward Nathan Sonnenbergs , to in i t ia te
the PIC 's case.
Th is e f fec t i ve ly imposed upon me the need to acqu i re
ou ts ide lega l ass is tance. To da te , the lega l fees I
have incur red in my case compute to over
R750 000,00 as the ca se ran to approx imate ly 20
days o f appearance, p repara t ion and argument .
I was fo r tunate enough to be o f fe red fund ing ,
cover ing ha l f my lega l cos t f rom an NGO tha t ass is t
wh is t le -b lowers , ca l led PPLAAF.
Before he lp ing me, PPLAAF ass is ted the Nenegate
wh is t le -b lower and o thers , v ic t im ised fo r d isc losure o f
e l i c i t payments f rom Eskom and Transnet to Tr i l l i an .
The i r suppor t fo r me, however, was on the bas is tha t
even though I d id no t re ly on a wh is t le -b lowing
de fence in my d isc ip l i nary mat te r, I was be ing
persecuted on susp ic ion tha t I was one.
I w ish to s incere ly express my gra t i tude fo r the
ass is tance , s t ra teg ic adv ise and inva luab le suppor t .
I be l i eve tha t the suspens ion and d isc ip l inary ac t ion
taken aga ins t me, as we l l as the assoc ia ted f inanc ia l
and reputa t iona l cos t apar t f rom a genera l pa t te rn o f
v ic t im isa t ion o f employees a t the P IC suspec ted o f
hav ing a hand in b r in ing wrongdo ing a t the P IC to
l igh t .
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When the fo rmer CEO in fo rmed tha t he no longer
t rus ted me and wanted me out , what I be l i eve was
ac tua l l y be ing communica ted to me is tha t I was no t
t rus ted to keep qu ie t about i r regu lar occur rences a t
the P IC, such as what I have ou t l ined above.
Wh i le I am gra te fu l tha t the board so f i t to b r ing an
end to the fas t o f my d isc ip l inary hear ing , i s gu i l t y
verd ic t and sanc t ion o f d ismissa l passed upon me, I
wou ld u rge the Commiss ion to cons ider
recommending tha t I be recompensated fo r my proven
f inanc ia l losses .
The PIC had vas t f inanc ia l resources to th row a t
v ic t im is ing me and a l though I am back a t work , I am
deep in debt . I w ish to make br ie f submiss ions on
the conduc t o f my hear ing .
The po in t i s to show how d isc ip l inary ac t ion coup led
w i th suspens ion was used a t the P IC as a too l o f
v ic t im isa t ion aga ins t person suspec ted o f be ing
wh is t le -b lowers .
I wou ld hope tha t the Commiss ion wou ld cons ider
recommendat ions to ensure tha t fu tu re lega l adv ise
ob ta ined by the P IC on d isc ip l i nary mat te rs i s
ob ta ined f rom person and f i rms unta in ted by the
go ing-ons here a t the P IC the las t few years .
I f my exper ience is any th ing to go by, d isc ip l i nary
ac t ion was under tak ing on scant ev idence w i thou t
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proper p rocedure to e i ther demora l i s ing employees
in to tak ing a f inanc ia l se t t lement , to leave or e lse to
ru in them in the i r p rospec t ive employment
oppor tun i t ies .
Th is cannot jus t and equ i tab le and the present
p layers in the lega l and HR spaces a t the P IC have
proven, in my v iew, unequa l to the task o f p lac ing the
in te res t o f the P IC as a who le above those o f the
execut ives , imp l ica t ing in the wrongdo ing .
I do acknowledge tha t an emplo yer ’s r igh t to
d isc ip l i ne in ins tances where there i s a pr ima fac ie
case o f m isconduc t . However, ind iv idua ls in h igh
pos i t ions can abuse tha t power, as was the s i tua t ion
in my case and numerous o thers who presented
be fore th is Commiss ion .
In te rms o f the no t ice to a t tend a d isc ip l inary inqu i ry,
da ted the 14 t h Augus t 2018, tha t i s Annexure BM35, I
was charged w i th a l l egat ion one.
I t i s a l leged tha t you breached your du ty
of . . . [ in te rvenes ]…”
MS GILL MARCUS : Sor ry. That wou ld need to BM36, I wou ld th ink .
MS BONGANI MATHEBULA : 36 . Ja .
“ I t i s a l l eged tha t you breached your du ty o f good
fa i th and conf ident ia l i t y as an employee and in your
pos i t ion as company secre tary o f the P IC, in tha t you
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caused the d is t r ibu t ion and or copy ing o f conf ident ia l
P IC in fo rmat i on .
My lega l representa t i ves reques ted to be fu rn ished
w i th fu l l par t i cu la rs o f the charge, as i t appeared to
be ex t remely vague, in tha t no de ta i l s o f the charge
was se t ou t in the no t ice .
I was fo rced to en te r b l ind ly in to the f i r s t day o f the
inqu i ry, a f te r the cha i rman o f the d isc ip l inary hear ing
re fused to g ran t us a pos tponement to a l low us to
p repare thorough ly.
I wou ld even go as fa r as to say tha t i t fe l t l i ke an
ambush th roughout the proceed ings , as i t tu rned ou t ,
there were mul t ip le charges encom passed w i th in the
s ing le charged re f lec ted on the no t ice , as I w i l l se t
ou t hereunder.
As a resu l t o f the charge be ing who l ly devo id o f any
par t i cu la r i t y and to ta l l y ambiguous and in the l igh t o f
the P IC ’s re fusa l to p rov ide or answer a reques t fo r
fu r ther par t i cu la rs be fore the commencement o f the
proceed ings , i t was agreed a f te r I was coerced tha t
the in i t ia to r in i t s open ing address w i l l p rov ide the
par t i cu la r i ty.
From h is open ing address , i t then appeared tha t I
was charged w i th , f i r s t , the download ing o f a PST
fo lder in to an ex terna l hard dr ive , p rov id ing Mr
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Simphiwe May ise la w i th spec ia l board minutes o f t he
P IC.
That I exp lo i ted my pos i t ion as company secre tary to
ob ta in ex t remely sens i t i ve in fo rmat ion , be long ing to
the PIC and p lace th is in fo rmat ion on insecure
p la t fo rms.
The charge was then fo rmula ted in a le t te r da ted
18 t h September 2018 , a f te r the f i r s t s tage o f the
hear ing se t ou t by the PIC ’s lega l representa t i ve .
This w i l l then be Annexure MB37, I be l ieve .
So, the le t te r read : The charge re la t es , amongs t
o ther th ings , to the fo l low ing :
1 . The leak ing o f conf ident ia l m inu tes o f board
meet ings to Mr S imph iwe May ise la .
2 . The d is t r ibu t ion and d isseminat ion o f conf ident ia l
in fo rmat ion , be long ing to our c l ien t .
3 . Expos ing our c l ien t to r i sk and undermin in g the
safe ty and secur i t y o f our c l ien t ’s conf ident ia l
i n fo rmat ion .
4 . Plac ing our c l ien t ’s conf ident ia l in fo rmat ion on
unsecure p la t fo rms; and
5 . The copy ing o f backup PST. \
Desp i te the w ide ambi t o f the charges aga ins t me, I
was b lamed in essence fo r two th in gs , bo th o f wh ich I
den ied . The f i r s t i s tha t w i thout lawfu l excuse or
au thor isa t ion I d isseminated the o r ig ina l d ra f t
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minutes o f the board de l ibera t ion on the conduc t o f
the fo rmer CEO when he preva i led upon Mr Mulaudz i
to donate R300 000,00 to a th i rd p ar ty.
In the or ig ina l m inu tes , as s ta ted above, the board
was c r i t i ca l o f the CEO’s in te rvent ion , a l though he
d id no t fo rmal ly censure h im. The f ina l m inu tes
exerc ised a l l these c r i t i c i sm.
The second charge f low f rom the fac t tha t a lap top
computer I was ass igned had in i t PST f i les tha t t o
my unders tand ing , wh ich was la te r exp la ined to me,
were ema i ls , cop ied on to an ex terna l hard dr i ve ,
wh ich hard dr ive was la te r a lso accessed by Mr
S imph iwe May ise la .
I had ind ica ted f rom the onset dur ing the hear ing t ha t
I d id no t know to t rans fer a PST fo lder, s ince I have
never done so in my l i fe .
From the onset o f the hear ing , Mr Pho lwane
acknowledged tha t many o ther peop le had access to
bo th the o r ig ina l d ra f t and f ina l m inu tes .
I was adv ised by my lawyers tha t any dec is ion to
p rosecute must be made w i th pr ima fac ie ev idence o f
wrongdo ing , no t mere specu la t ion .
The sum to ta l o f the fac ts led in ev idence aga ins t me
was tha t I had access to bo th vers ion o f the minu tes .
C lear ly I shou ld no t have been charged s imp ly on the
bas is o f the emergence o f bo th se ts o f m inu tes ,
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because numerous o ther peop le a lso had such access
and cou ld have leaked the minutes .
The vexa t ious na ture o f the charge is a lso so
re f lec ted in the incomple te SNG forens ic repor t . NO
o ther ev idence l in k ing to the leak o f the or ig ina l d ra f t
m inu tes were presen ted.
The SNG repor t , Annexure BM38, s ta ted in the
conc lus ion tha t due to the l im i ted na ture o f the
add i t iona l fo rens ic inves t iga t ion conduc ted , we
cannot conc lude whether any o f the four teen
ind iv idua ls whose computers were rev iewed, leaked
the in fo rmat ion in ques t ion or no t .
P IC shou ld cons ider add i t iona l and more
comprehens ive inves t iga t ion as s ta ted in the
recommendat ion .
That those runn ing my hear ing pers is ted w i th the
second a l l egat ion aga ins t m e, i s every more wor ry ing .
Th is i s the a l l egat ion tha t I a l lowed copy ing o f PST
f i les f rom my computer wh ich months la te r ended up
on a hard dr ive , used by Mr May ise la .
A f te r runn ing the hear ing fo r severa l days and the
PIC c los ing i t s case, i t took me to appo in t my own IT
fo rens ic inves t iga t ion f i rm, Cyanre , the D ig i ta l
Forens ic Lab. I t i s a lso annexed as Annexure BM39
and ca l l ing as w i tnesses the PIC ’s on ly IT personne l
to d iscover the e lementary fac t tha t the lap top on
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which the PIC fo rens ic inves t iga t ors found PST f i l e
t rans fer on the 1 s t September 2017, had on ly been
issued to me on the 24 t h Oc tober 2017. The IT repor t
conf i rm ing th is aspec t i s a lso a t tached as Annexure
BM40.
A t a l l mater ia l t imes , dur ing wh ich the supposed
suspec t t ransac t ion o f PST f i le was made, the lap top
was in possess ion o f IT.
Any competent and good fa i th inves t iga t ion
conduc ted by th is pass ionate fo rens ic inves t iga tors
wou ld have d iscovered th is fac t .
E th ica l lega l p rac t i ce wou ld have compel led tha t th is
fac t shou ld be known t o me. I t was w i thhe ld f rom my
lega l team and I had to pay my own fo rens ic exper ts
in tens o f thousands o f rands to d iscover the obv ious .
Th is i s a t the r i sk o f repet i t ion tha t I cou ld no t have
made the PST f i le t rans fer to the suspec ted d ig i ta l
dev ice as the lap top was no t mine or under my
cont ro l a t the t ime the t rans fer was made.
I t shou ld be no ted tha t the conten t o f the PST f i le
tha t was supposed ly t rans fer red f rom the lap top to
the suspec ted hard dr ive were never d isc losed to me.
Aga in , conf i rm ing t ha t the charge wh ich pro f fe red
aga ins t me was pure ly specu la t i ve . No a l legat ion and
or p rove was pu t tha t the conten t o f the PST f i les
were my emai ls .
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In add i t ion to conf i rm ing the PST f i le t rans fer, the IT
Forens ic Repor t conduc ted by Cyanre a lso conf i rm ed
tha t they cou ld no t es tab l i sh the user who cop ied the
backup PST f i le on the 1 s t September 2017, be fore
the lap top came in to my possess ion over a month
la te r.
In h is s ta tement to th is Commiss ion o f Inqu i ry, Mr
Pho lwane s ta ted tha t :
Background :
A . The genes is o f the d isc ip l i nary hear ing conduc ted
in the PIC, emanated f rom a repor t tha t imp l ica ted
severa l employees in sen ior management in ac ts
o f m isconduc t , p red ica ted by a fo rens ic Aud i t
Commiss ion by the P IC.
B . A Forens ic Aud i t Commiss ion by the PIC wh ich
es tab l i shed the company secre tar ia t cur ren t ly on
suspens ion and undergo ing a d isc ip l i nary hear ing
had in her lap top a f te r i t was imaged, ind ica t ing a
use o f a removab le dev ice tha t conta ined
in fo rmat ion and backup f i les o f the emai ls as pe r
the SNG repor t . T he same dev ice was used and
accessed by sen ior manager in the IT Depar tment .
Th is may ind ica te the two employees may have
exchanged in fo rmat ion fo r purposes unknow to the
PIC.
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The ev idence o f Mr Pho lwane is devo id o f the
t ru th in tha t f i r s t ly, he w i thhe ld c ruc ia l in fo rmat ion
to th is Commiss ion , tha t the P IC on ly i ssued me
wi th a lap top in ques t ion on the 24 t h Oc tober
2017.
I was never in possess ion o f the sa id lap top in the
per iod o f September 2017.
In su f f i ce dur ing my d isc ip l i na ry hear ing tha t the
sa id lap top was purchased by the PIC on the 24 t h
Augus t 2017 and was s to red by the IT Depar tment
un t i l i t was handed to me in Oc tober 2017.
I have no knowledge o f whatever emai l backup
opera t ions tha t were per fo rmed on tha t compute r
be fore i t was g iven to me.
Mr Pho lwane a lso d id no t d isc lose to th i s
Commiss ion o f Inqu i ry the very c ruc ia l fac t tha t
the fo rens ic repor t the P IC commiss ioned and
re l ied upon to a t tempt to d r ive me out o f the
organ isa t ion d id no t f ind tha t I commi t ted any
misconduc t and i t was incompl ete…”
CHAIRPERSON: I s there some documenta t ion tha t ind ica tes you
s igned fo r acceptance o f the computer o f on such and such a da te?
MS BONGANI MATHEBULA : Yes. So, i f Commiss ioner… I jus t need
to… There cou ld be bu t the IT repor t wh ich I re fe r red to in Annexure
BM39, shows Commiss ioner tha t the f i r s t t ime I logged onto tha t
lap top , and th is repor t was per fo rmed by P IC in te rna l IT personne l tha t
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I locked onto my new lap top on the 18 t h Oc tober 2017. So , th is was
per fo rmed by P IC IT personne l .
ADV ISAAC MONNAHELA : Mr Commiss ioner, tha t w i l l be a t page 3C
o f tha t annexure .
MS BONGANI MATHEBULA : So , Commiss ioner, the very same aspec t
was a lso conf i rmed by my own fo rens ic IT company tha t I had to
appo in t to conf i rm the very fac ts .
ADV ISAAC MONNAHELA : The or ig ina l annexure number i s BM39.
CHAIRPERSON: Which w i l l now be 40 , bu t i t i s 39 on the documents .
ADV ISAAC MONNAHELA : Yes , Mr Commiss ioner.
CHAIRPERSON: A t what page do we f ind tha t?
ADV ISAAC MONNAHELA : That w i l l be page 4 o f the annexure ,
paragraph 3C.
MS GILL MARCUS : We wi l l j us t need to sor t ou t these annexures
a f te rwards , okay?
ADV ISAAC MONNAHELA : I w i l l do so . Mr Commiss ioner, may I jus t
reques t to make my own page ava i lab le to the Commiss ion?
CHAIRPERSON: Cer ta in ly.
ADV ISAAC MONNAHELA : I t i s 3C.
CHAIRPERSON: C reads : Mar t in Theun issen and Phe lo Mato lo
l ogged on to the lap top named PTAL Mathebu la to es tab l i sh… I
supposed tha t i s es tab l i shed. The f i r s t Bongan i Mathebu la logged onto
the computer and the da te i s 18 October 2017.
ADV ISAAC MONNAHELA : That i s cor rec t , Mr Commiss ioner.
CHAIRPERSON: That i s the document you are re fe r r ing to?
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ADV ISAAC MONNAHELA : Yes . Her ev idence i s tha t she d id no t
access – she d id no t use the computer in September 2017 because i t
had no t ye t been g iv en to her.
CHAIRPERSON: Now can we take th i s o r do we make cop ies o f th i s
and g ive i t back to you?
ADV ISAAC MONNAHELA : You can take i t , Mr Commiss ioner.
CHAIRPERSON: Thank you. You may p roceed.
MS BONGANI MATHEBULA : Okay.
Paragraph 153:
“Mr Pho lwane a lso d id no t d isc lose tha t the two
fo rens ic inves t iga t ions conduc ted by the PIC d id no t
inves t iga te the conten t o f the backup PST.
I f th is was done, i t was w i thhe ld f rom my lawyers .
Th is c ruc ia l aspec t was ra ised by my lawyers dur ing
my hear ing bu t never was cons idered by the
appo in ted cha i rperson o f the hear ing .
My lawyers in fo rmed me tha t the case has caused the
PIC about R3 mi l l i on , ye t here I s i t s t i l l an employee
o f the P IC, a f te r th is was te fu l and d is rup t ive
exerc ise .
I am adv ised by my lawyers tha t the se lec ted
cha i rperson ignored v i ta l ev idence tha t c lear ly
exonera ted me and ye t a t the same t rue drew
conc lus ions based on specu la t ion .
A t one s tage dur ing the course o f the hear ing my
counse l had to remind the cha i rperson o f the hear ing
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tha t the PIC w as lega l l y represen ted when he
appeared to in te r fe re on beha l f o f the P IC.
The cha i rperson den ied me an oppor tun i t y to
thorough ly prepare fo r my hear ing , when i t became
c lear upon adv ise f rom my lawyers tha t the charge
leve l led aga ins t me by the PIC lacks par t i cu la r i t y…”
I need to emphas ise th is Commiss ioner, because i f I was
g iven the oppor tun i t y o f fu l l par t i cu la r i t y dur ing the open ing , I be l ieve
tha t I wou ld have taken the dec is ion much ear l ie r to appo in t fo rens ic IT
personne l , bu t we had to go th rough the hear ing w i thout the fu l l y
d isc losed par t i cu la r i t y and i t was towards the end when we then
rea l i sed what the ac tua l charge was .
That I had to know take i t upon myse l f to say I a lso needed to
appo in t my own IT fo rens ic inves t iga tors because there were s o many
c ruc ia l i ssues tha t I be l ieve were w i thhe ld f rom us dur ing the hear ing .
Hence, we had to now es tab l i sh the var ious aspec t o f my
lap top – o f the new lap top haven been g iven to me in Oc tober wh ich
the PIC w i thhe ld f rom us f rom the onset .
“ I am a lso a dv ised of the case law on how the
conduc t o f a supposed ly independent d isc ip l inary
cha i rperson can cons t i tu te b iased is to be found in
the case ca l led Surg ica l Innovat ion (P ty ) L td v
Commiss ion fo r Conc i l ia t ion , Med ia t ion and
Arb i t ra t ion and Others…”
I am not go ing to g ive the fu l l c i ta t ion . The fu l l c i ta t ion i s
there in the s ta tement .
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“ In th is case the lega l cour t made the fo l low ing
adverse fac tua l f ind ings aga ins t a cha i rperson o f a
d isc ip l i nary hear ing fo r conduc t in a hear ing tha t
c lose ly resembled wh at I exper ienced in my own
hear ing :
“A s tudy o f the record o f the d isc ip l i nary p roceed ings
gave a s t rong ind ica t ion tha t Hutch inson had in some
or o ther manner been pre -br ie fed in th is mat te r and
h is manner o f par t i c ipa t ion in the proceed ings gave
an uncomfor tab le sense o f undue invo lvement . The
re fusa l o f the pos tponement reques t to jus t enab le
the th i rd respondent to p roper ly p repare in my v iew
cer ta in ly added to th is percept ion . The manner in
wh ich Hutch inson chose to in te rvene in and s teer t he
d isc ip l i nary p roceed ings equa l l y added to th i s
percept ion o f p re -determinat ion ”
CHAIRPERSON: Can you jus t read the f i r s t sen tence aga in , p lease?
MS BONGANI MATHEBULA : The f i r s t sen tence.
CHAIRPERSON: O f tha t quota t ion .
MS BONGANI MATHEBULA : Okay. I t says :
“A s tudy o f the record o f the d isc ip l i nary p roceed ings
gave a s t rong ind ica t ion tha t Hutch inson had in some
or o ther manner been pre -br ie fed in th is mat te r and
h is manner o f par t i c ipa t ion in the proceed ings gave
an uncomfor tab le sense o f undue invo lvement .
CHAIRPERSON: Jus t tha t quo ta t ion i s no t se t ou t fu l l y here .
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MS BONGANI MATHEBULA : Oh, okay.
CHAIRPERSON: The f i r s t sen tence in the s ta tement tha t we have is a
s tudy o f… I supposed i t m igh t have been in her la te r s ta tement .
ADV ISAAC MONNAHELA : Mr Commiss ioner, may I jus t po in t ou t
someth ing? She ind ica ted in the morn ing tha t she had added
someth ing to the quota t ion . That wou ld mean tha t the updated
s ta tement was no t made ava i lab le to the Commiss ion .
CHAIRPERSON: Wel l , to be fa i r. I mus t say i t w as brought to us in
the room tha t we occupy, bu t s ince we had read th is s ta tement we d id
no t hand i t – i t was g iven to us th is morn ing . So, we d id no t go th rough
to tha t la te r s ta tement .
ADV ISAAC MONNAHELA : Okay.
CHAIRPERSON: Bu t you say tha t i t has be en cor rec ted . I t now
cor rec t ing the las t ve rs ion .
ADV ISAAC MONNAHELA : Yes .
CHAIRPERSON: Okay, thank you.
MS BONGANI MATHEBULA : Mr Commiss ioner, inc identa l l y the
cha i rperson so co i t i zed by the labour cour t in the case tha t I have
ou t l ined above the cha i rperson who rendered the PIC ’s own mat te r
aga ins t me is the same person .
“Throughout my hear ing , we t r ied , in va in , to
ascer ta in . . . [ in te rvenes ]
CHAIRPERSON: Sor ry, sor ry. Are you say ing the cha i rperson who is
be ing co i t i zed or has been co i t i zed in th is case, i s the same
cha i rperson who cha i red your d isc ip l i nary hear ing?
MS BONGANI MATHEBULA : Cha i r ing my d isc ip l inary hear ing . Yes ,
24 APRIL 2019 – DAY 32
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Commiss ioner.
“Throughout my hear ing , we t r ied , in va in , to
ascer ta in who ins t ruc ted the PIC 's a t to rneys to
cont inue my hea r ing . They re fused to p rov ide the i r
le t te r o f au thor isa t ion .
In the contex t o f CEO and the board en masse
res ignat ions , i t may we l l have been tha t the person
dr iv ing my d isc ip l inary ac t ion i s ac tua l l y now
imp l ica ted in ser ious misconduc t o f the i r own.
I be l i eve the a t to rneys fo r the P IC shou ld be g iven the
oppor tun i t y to exp la in f rom whom exac t ly they took
the i r ins t ruc t ions dur ing the hear ing in the contex t o f
an inquora te board and an execut ive in d isar ray.
Sure ly, the respons ib le th ing wou ld have be en to
a l low the work o f the Commiss ion to comple te be fore
proceed ing w i th my d isc ip l i nary mat te r.
I no te espec ia l l y tha t , on the execut ive s ide , the
peop le who were in charge o f my d isc ip l i nary enqu i ry
a f te r the res ignat ion o f the fo rmer CEO, Dr Mat j i l a ,
have a lso been imp l ica ted in the a l legat ions ,
conta ined in the anonymous wh is t le -b lower emai ls ,
tha t i s the execut ive head o f HR, repor ts to the CFO,
who is a lso imp l ica ted in those emai ls .
I no te tha t the fo rmer ac t ing CEO, CFO has recent ly
a lso been susp ended a l leged ly fo r thwar t ing the work
o f th is Commiss ion o f Inqu i ry.
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I a lso w ish to f lag , in genera l te rms, the danger
posed to the s tand ing o f the lega l p ro fess ion when i t
becomes assoc ia ted w i th enab l ing the capture o f
s ta te ins t i tu t ions .
I wou ld urge an aud i t be conduc ted by the
Commiss ion o f lega l ins t ruc t ions g iven to law f i rms by
the PIC, so tha t a v iew may be expressed on whether
the PIC as a who le has been we l l - served by those
earn ing mi l l i ons in lega l fees .
I am fa i r l y conf iden t tha t an ob jec t i ve eva lua t ion o f
the conduc t o f my own hear ing wou ld de termine tha t
i t was run no t to d iscover the t ru th o f the a l legat ions
bu t to rush a predetermined outcome.
Go ing fu r ther, perhaps the t ime has come, as i t i s in
the aud i t ing pro fess ion , to requ i re a r o ta t ion o f law
f i rms so tha t persona l re la t ionsh ips be tween
longs tand ing a t to rneys and execut ives who are under
f i re does no t c loud the adv ice the fo rmer p rov ides to
keep the la t te r in p lace .
Th is w i l l a lso c rea te an a tmosphere fo r lega l f i rms
depr ived o f access to b ig corpora tes to have such
access….”
MR EMANNUEL LEDIGA: Jus t a qu ick ques t ion f rom my s ide . We had
supp l ied cha in management peop le here . I th ink one w i tness . And
they sa id tha t they do change compan ies . They do no t s tay w i th one
company fo r a long, long t ime. Are you say ing th is i s no t the case?
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MS BONGANI MATHEBULA : Commiss ioner, I am speak ing f rom my
exper ience and my observa t ion o f how one lega l f i rm has cons tan t ly
been used by the PIC in a l l the mat te rs and tha t law f i rm is ENS.
ENS were used fo r a l l the d isc ip l i nary hear ings and i f you go
back , the lega l op in ions tha t were g iven, i t was a lso ENS. So, I am
speak ing on tha t bas is .
MR EMANNUEL LEDIGA: Yes , okay. Sor t o f w i th in jus t the Human
Resources mat te rs .
MS BONGANI MATHEBULA : P rec ise ly.
“The verd ic t by the cha i rman o f my hear ing :
The verd ic t o f gu i l t was handed down on 13 March
2019. ( I t w i l l now become Annexure BM41 but i s now
in the documents as Annexure BM40. )
I w i l l no t repeat what I have a l ready sa id about the
uncontes ted ev idence showing tha t I was no t i n
possess ion o f my lap top a t the t ime the hard d r ive
was mounted to i t . IT had cont ro l over the lap top .
The sanc t ion by the Cha i rman o f my hear ing :
The inev i tab le sanc t ion o f a summary d ismissa l
recommendat ion was i ssued on 20 March 2019. ( I t
w i l l be Annexure BM42) .
On the 26 t h of March 2019 1 rece ived a phone ca l l
f rom Mr Pho lwane ind ica t ing tha t he is about to ema i l
me a le t te r (Annexure BM43) .
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I rece ived the le t te r wh ich ind ica ted tha t I was to
repor t fo r du ty on 27 March 2019. I t appeared as per
the le t te r tha t the board dec ided no t to upho ld the
sanc t ion o f the cha i rman o f the hear ing .
I was ins tead g iven a f ina l wr i t ten warn ing fo r the
ac ts o f m isconduc t fo r wh ich I was found gu i l t y by the
cha i rperson. I am pro found ly g ra te fu l tha t my
d isc ip l i nary o rdea l has been brought to an end by the
board .
Hav ing sa id tha t , and w i th respec t , I regard the
impos i t ion o f the f ina l wr i t ten warn ing as unwar ran ted
in the law and fac ts . I am cons ider ing my lega l
op t ions on the ou tcome o f the d isc ip l i nary hear ing
and the consequent f ina l wr i t ten warn ing . . . ”
And th is I am do ing fo r the sake o f my repu ta t ion as a
pro fess iona l person.
ADV ISAAC MONNAHELA : I f I may in te rvene. Were you g iven any
reason why ins tead o f be ing d ismissed, you were g iven a f ina l wr i t ten
warn ing?
MS BONGANI MATHEBULA : I was no t g iven any reasons . The le t te r
i s there . There were no reasons g iven. I a lso do no t know what the
board cou ld have exp lored to a r r i ve to tha t dec is ion .
ADV ISAAC MONNAHELA : You may proceed on paragraph 68.
CHAIRPERSON: Sor ry. Are you say ing – d id you say any th ing about a
le t te r?
MS BONGANI MATHEBULA : Yes , Commiss ioner.
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CHAIRPERSON: Which le t te r?
MS BONGANI MATHEBULA : The le t te r tha t no re ins ta ted me. A lso
ind ica t ing tha t the board dec ided no t to upho ld the recommendat ion o f
the cha i rman, bu t ins tead they are i ssu ing me wi th a f ina l wr i t ten
warn ing .
CHAIRPERSON: Ja , we l l i t does no t mean tha t they d id no t upho ld the
f ind ing o f gu i l t . I t i s jus t tha t the sanc t ion was changed. I s i t no t?
MS BONGANI MATHEBULA : The sanc t ion was changed, yes .
CHAIRPERSON: Yes . Okay. I suppose the minutes o f the
board . . . [ in te rvenes ]
MS BONGANI MATHEBULA : Wi l l ass is t . . . [ in te rvenes ]
CHAIRPERSON: Cou ld ass is t .
MS BONGANI MATHEBULA : May I p roceed?
ADV ISAAC MONNAHELA : Yes .
MS BONGANI MATHEBULA : Okay.
“The pas t year has been d i f f i cu l t fo r me and my
fami ly. I have been hosp i ta l i sed fo r s t ress . I have
a lso los t inves tments to pay fo rced lega l and IT
fo rens ic fees . My sav ings are dep le ted and I am
indebted to var ious c red i to rs . My reputa t ion has been
impugned even w i th the f ina l wr i t ten warn ing . In
sp i te o f th is , I remain commi t ted to serv ing the PIC
as company secre tary and am hopefu l tha t the
Commiss ion and o ther good fa i th ro le -p layers can se t
th ings r igh t fo r the o rgan isa t ion . I w ish to rea f f i rm my
comple te devot ion to the PIC and i t s s takeho lders .
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MR EMANNUEL LEDIGA: A l l r igh t be fore we fo rward , two ques t ions .
G iven tha t the board go t your back in to the company, wou ld the
company pay back some o f the fees tha t you spent on your lega l f igh t?
Do you th ink so?
MS BONGANI MATHEBULA : The company, as I unders tand i t , the
d isc ip l i nary codes s ta tes tha t i f one is to used lega l representa t ion ,
they use tha t a t the i r own cos t . My p l ea to the Commiss ion is tha t ,
f i r s t o f a l l , my who le d isc ip l i nary hear ing was unwar ran ted .
I t was so le ly and I have demonst ra ted in my s ta temen tha t i t
was based on un founded a l l egat ions aga ins t myse l f . Hence, I am
imp lor ing upon the Commiss ion o f Inqu i ry to cons ider tha t aspec t .
MR EMANNUEL LEDIGA: Second ques t ion . I t seems l i ke you are
away f rom the PIC fo r about a year o r so , a round there . L ike how
d i f fe ren t i s i t now? I mean, you know, when you le f t there was a lo t o f
i ssues and s ince then there i s a Commiss ion o f Inqu i ry, peop le have
come, some have come back . How is the – how are you fee l ing abou t
the P IC? How is the env i ronment cur ren t ly f rom the t ime you le f t up
un t i l now? Jus t b road ly. Jus t s imp le and br ie f l y, you know. I f you can.
CHAIRPERSON: Which o f course , w i l l be your v iew.
MR EMANNUEL LEDIGA: Yes .
CHAIRPERSON: Because o thers may th ink o therw ise .
MS BONGANI MATHEBULA : O f course , i t i s my v iew, Commiss ioner.
Yes . Aga in , my v iew. The pr io r – there was a s t ree t (? ) o f fear a t the
P IC, you know, bu t a f te r I came back now and I do no t know whether i t
i s because o f the Commiss ion o f Inqu i ry, I fee l tha t employees are
much f reer to speak the i r m inds as we l l and I th ink even w i th the
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cur ren t leadersh ip , the cur ren t CEO, I be l ieve , he i s rea l l y t r y ing h is
bes t to ensure tha t there i s a lso fu l l par t i c ipa t ion .
And one o f the th ings – I am go ing to g ive you an example
now. One of the th ings I have observed is , p r io r my suspens ion be fore
we cou ld amend the te rms o f re fe rence o f fo r ins tanc e the PMC and
Exco, they were c lauses in those te rms o f re fe rence tha t sa id tha t no
meet ing w i th have a quar r ion in the absence o f the CEO and the CFO.
I f bo th o f them are no t in the meet ing , there was never a
quar r ion . Even i f the who le Exco is there . We then changed those
th ings . So, what i s happen ing cur ren t ly r igh t now is tha t , because the
PIC is qu i te a busy en t i t y, i t takes dec is ions on a da i l y bas is .
So, the cur ren t CEO has c rea ted a mechan ism where you
cou ld have an Exco meet ing o r you cou ld have a board meet ing , a t the
same t ime you cou ld have a PMC meet ing , where the one o f the
execut ives cou ld be chare tha t meet ing .
So, I be l i eve tha t there i s in a way t ry ing to decent ra l i se the
power, you know, o f one par t i cu la r ind iv idua l . So , tha t i s m y
observa t ion f rom a p rocess and inves tment p rocess po in t o f v iew.
MR EMANNUEL LEDIGA: You can proceed.
MS BONGANI MATHEBULA : Okay. I am go ing to ta lk about the
preva i l i ng MOI .
“Ev idence had been presented be fore th is
Commiss ion about non -compl iance w i t h the
prov is ions o f the MOI , as i t re la tes to the execut ive
s t ruc ture a t the P IC, wh ich I fu l l y agree w i th and
imp lore the Commiss ion to ensure tha t th is i s
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addressed . There i s a rea l ex t reme urgency to
address the concent ra t ion o f power wh ich is ves ted in
the CEO and the CFO in the cur ren t execu t i ve
s t ruc ture .
I t i s undes i rab le to have inves tment , opera t ions ,
f inanc ia l , execut ive and assurance func t ions to be a l l
cen t red around two Execut ives .
I mus t s ta te tha t a t tempts were made to amend the
MOI in March 2017. The proposed amendments were
in i t ia ted th rough a le t te r f rom Min is te r Gordhan dated
24 March 2017. ( I t i s now Annexure BM44. I t w i l l be
Annexure BM45. )
On 29 March 2017 (Annexure BM45 wh ich w i l l change
to BM46) the board met to d i scuss the le t t e r o f the
min is te r.
Subsequent to the meet ing o f the 29 March 2017, a
reso lu t ion was c ra f ted to the min is te r to imp lement
the reso lu t ion o f the board and spec i f i ca l l y the
d i rec t i ve o f the M in is te r. (Now the reso lu t ion i s
Annexure BM47) .
The rev ised MOI w as f i led w i th CIPC on 30 March
2017 and endorsed on 19 Apr i l 2017. ( In Annexure
BM48 we w i l l ta lk about tha t . ) . . ”
And then we a lso then rece ived la te r on… I need to ind ica te
Commiss ioner tha t a t the t ime Min is te r Gordan wro te the le t te r to the
PIC, jus t a f te r tha t , when there were changes a t Nat iona l Treasury and
24 APRIL 2019 – DAY 32
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then we rece ive the le t te r da ted f rom Min is te r G igaba on the 19 t h Apr i l .
The le t te r… I jus t want to read i t fo r the record .
The le t te r f rom Mr G igaba was regard ing the amendments to
the MOI o f the P IC. I t i s da ted 19 t h Apr i l 2017 and i t says :
“ I have been adv ised tha t the CIPC has approved
the i r amendments on the MOI as per the board
reso lu t ions o f 30 t h March , resu l t ing in the PIC hav ing
a new MOI . K ind ly ensure tha t th is MOI i s no t
a f fec ted and urgent ly re f i l l ed the o ld MOI w i th the
CIPC fo r approva l , wh ich w i l l remain in ex is tence
un t i l I have we l l -acqua in ted myse l f w i th the PIC and
be in a pos i t ion to make an in fo rmed dec is ion any
amendments to the o ld MOI…”
I mus t say Commiss ioner tha t so me of the amendments
re la ted to the s t ruc tu ra l i ssues , the fac t tha t i t now, i t was tak ing away
the pos i t ion o f CIO, COO and CRO and hence I was say ing , there were
a t tempts dur ing my t ime to change those as we l l .
Bu t then based on the ins t ruc t ion f rom Min is te r G igaba who
had to now re f i l l ed the o ld MOI . So, we are now back w i th the o ld MOI
wh ich now, in te rms o f s t ruc ture , a lso requ i res the PIC to have a CIO,
COO and CRO.
“ I t shou ld be no ted tha t p r io r to those abovement ioned
processes there was a lega l t ha t was sought on these
aspec ts…”
MR EMANNUEL LEDIGA: Can I jus t ask someth ing , bu t I am not sure
whether you might have an answer, bu t do you know tha t the CIO
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pos i t ion across the board i s no longer a b ig pos i t ion , genera l l y,
g loba l l y?
MS BONGANI MATHEBULA : I t i s no longer…?
MR EMANNUEL LEDIGA: The CIO pos i t ion i s no longer as b ig as i t
was l i ke the ten years ago and a l l tha t . Do you know tha t?
MS BONGANI MATHEBULA : No, I do no t know tha t .
MR EMANNUEL LEDIGA: I am jus t say ing g loba l asset managers an d
loca l l y here , tha t pos i t ion i s no longer as b ig as i t was . You do you no t
know tha t?
MS BONGANI MATHEBULA : I do no t know tha t , Mr Commiss ioner.
MR EMANNUEL LEDIGA: Okay, a l l r igh t .
MS BONGANI MATHEBULA : My bas is i s on ly based on the PIC and
the fac t tha t the P IC is an asset manager. I do no t know the g loba l
t rends in tha t .
“Employee ins tab i l i t y :
I se t ou t hereunder how the company exper ienced
func t iona l ins tab i l i t y, caus ing ins tab i l i t y among s ta f f
members and w i l l use my own exper ience as an
example :
The res ignat ion o f Ms Pet ro Dekker :
A f te r the res ignat ion o f Ms Dekker in 2016, the
fo rmer Execut ive Head o f Corpora te Serv i ces , the
func t ions o f the Corpora te P lan and Records
Management were added to my depar tment w i thou t
add i t iona l Human Resources ac company ing the
func t ion .
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Dur ing an Exco meet ing o f 2017, the func t ion to do
the Corpora te P lan was removed f rom the company
secre tar ia t to the execut ive ass is tan t in the o f f i ce o f
the CE.
I t i s common prac t i ce fo r func t ions to be moved f rom
one depar tmen t to another w i thout fo l l ow ing a sound
t rans i t iona l p rocedure . Th is was in my v iew
exacerbated by the lack o f a p roper success ion p lan
a t the t ime.
The Board dec ided dur ing the s t ra tegy sess ion he ld
in Oc tober 2017 tha t the func t ion o f records
management cannot be per fo rmed by the Off i ce o f the
Company Secre tar ia t to ensure tha t the company
secre tary devotes a t ten t ion to the func t ion ing o f the
board and not per fo rm management func t ion .
Appo in tment o f P IC representa t i ves to inves tee
compan ies :
The PIC makes recommendat ions to nominate and/o r
appo in t non -execut ive d i rec tors to inves tee
compan ies in cer ta in inves tments .
Th is func t ion was per fo rmed by the Company
Secre tar ia t team unt i l the fo rmer CEO through an
Exco reso lu t ion took a dec is ion to remove the
func t ion f rom company secre ta r ia t and moved i t to a
pos i t ion wh ich he had inc luded in the o rgan iza t iona l
24 APRIL 2019 – DAY 32
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s t ruc ture o f Execut ive Head of Inves tment
Management .
I persona l l y was no t averse to such an Exco dec is ion
however th is was done w i thout p roper gove rnance
processes and lack o f communica t ion w i th re levan t
s takeho lders espec ia l l y inves tee compan ies
themse lves and the board . Some inves tee compan ies
cont inued to communica te w i th Company Secre tar ia t
Depar tment , desp i te my reques t tha t inves tee
compan ies be in fo rmed o f the changes .
The appo in tment o f PIC non -execut ive d i rec tors in to
the boards o f inves tee compan ies may have overs igh t
mer i t s . However, th is p rac t i ce poses po ten t ia l o r
perce ived conf l i c t o f in te res t wh ich needs to be re -
assed. The conf l i c t o f in te res t wh ich app l ies i s no t
on ly conf l i c t in te rms o f the Compan ies Ac t bu t a l so
conf l i c t in te rms o f the FAIS Ac t .
The in te res t o f the inves tee company and the c l ien t
has to be ba lanced but cer ta in ly a l igned as we l l . The
concept o f checks and ba l ances has to app ly.
One remedy to cure th is wou ld be to appo in t a mix tu re
o f in te rna l and ex terna l cand ida tes .
CHAIRPERSON: Sor ry, sor ry. When you ar r i ved a t the PIC what
sys tem was used w i th the appo in tment o f represen ta t i ves on inves tee
compan ies? Was i t the CEO who dec ided on i t o r was i t in someone
e lse?
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MS BONGANI MATHEBULA : Oh, you mean the process . Okay, so in
te rms o f the process , Mr Commiss ioner. The employment o f in te rna l
employees was a mat te r tha t was de legated to the CEO. However, the
appo in tment o f ex terna l cand ida te or P IC non -execut ive d i rec tors was a
mat te r wh ich was de legated to the D i rec tors A ffa i r s Commi t tee o f the
board .
So, bu t however, i f there were agents appo in tment tha t requ i re
the CEO to s ign o f f , those w i l l be made by the CEO and then we w i l l
then go to the DA fo r cer t i f i ca t ion , because somet imes , there cou ld be
agent in appo in t ing board members .
We a lso had in p lace a d i rec to rs da tabase wh ich we kept a t my
of f i ce o f CV’s o f po ten t ia l cand ida tes tha t we cou ld ident i f y to be
appo in ted to those inves tee compan ies , compr is ing o f ex terna l
cand ida tes .
We a lso , we are do ing i t in l ine w i th the governance po l i cy a t
the t ime wh ich I am go ing touch on i t b r ie f l y, on some o f the aspec t
tha t i t sought to address .
CHAIRPERSON: Why a re you sugges t ing tha t i t i s be t te r fo r i t to be
done by the secre tar ia t?
MS BONGANI MATHEBULA : I am not say ing i t i s be t te r to be done by
the secre tar ia t , Commiss ioner.
CHAIRPERSON: What i s your v iew? What d id you say about the
secre tar ia t?
MS BONGANI MATHEBULA : Sor ry?
CHAIRPERSON: What d id you say about the secre tar ia t?
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MS BONGANI MATHEBULA : I am say ing , Commiss ioner i f you look a t
paragraph 182, I am say ing tha t th is func t ion was per fo rmed by the
Company Secre tar ia t Team un t i l the fo rmer CEO and Ex co reso lu t ion
took a dec is ion to remove the func t ion f rom the company secre tar ia t
and moved i t to a pos i t ion wh ich he had inc luded in the organ isa t iona l
s t ruc ture o f the execut ive head o f inves tment management .
I persona l l y was no t averse to such an Exco dec is ion , because
i t i s a management func t ion .
CHAIRPERSON: So , when you ar r i ved there , i t was a l ready done?
MS BONGANI MATHEBULA : When I a r r i ved , i t was someth ing tha t was
per fo rmed by my d iv is ion , bu t then i t was la te r moved to another
d iv is ion wh ich i s okay. I mean, i t i s a management func t ion i f you th ink
about i t .
CHAIRPERSON: You do no t want to see i t come back to your d iv is ion .
I am say ing tha t because you sa id i t i s a management func t ion anyway
or shou ld be .
MS BONGANI MATHEBULA : We l l , i t i s a management func t ion i f you
th ink about i t because - a l though i t i s a func t ion tha t has a lo t o f
governance aspec ts to i t , i t i s about appo in tment o f bo th the inves tee
compan ies . Where was I?
ADV ISAAC MONNAHELA : Paragraph 185.
Paragraph 185 :
“Some o f the in i t ia t i ves tha t I presented to the DAC
(And my presenta t ion i s the re in Annexure BM51
wh ich w i l l be BM52) wh ich hope may ass is t th is
Commiss ion o f Inqu i ry, were the fo l low ing :
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The in tegra t ion o f p rov is ions o f ro ta t ion o f nominee
d i rec tors , tha t i s th e tenure sha l l no t exceed th ree
years and be sub jec t to annua l rev iew…”
I am go ing to t ry to expand a l i t t l e b i t on th is , Commiss ioner
because a t the t ime, there were a lso concerns tha t the tenure o f some
o f the d i rec tors o f non -execu t ive d i rec tors tha t w e have sent to those
inves tee compan ies , seemed to have been qu i te long.
So, they were no t be ing ro ta ted . So, we are t ry ing to
in t roduce tha t aspec t o f ro ta t ion as we l l , wh ich a lso , you know, I th ink
i t a lso ass is t in te rms o f independence.
Because somet imes when a d i rec tor has been s i t t ing in the
board o f a company fo r qu i te some t ime, the i r independence tends to
ques t ioned. So, tha t was an aspec t tha t were in t roduced.
“We have a lso in t roduc ing a qua l i ta t i ve measure o f
ef fec t i veness o f the board and in d iv idua l nominee
d i rec tors to ach ieve a des i red ou tcome and we
wanted a 360 degree independent annua l
assessments to be done….”
So , a t the t ime when I came to the PIC, those were no t done
and I fe l t tha t i f tha t – those cou ld be done, i t wou ld g i ve the PI C a
p ic tu re o f whether those – the peop le tha t were sent to those boards
were add ing va lue in te rms o f what they were do ing in those inves tee ,
and fo r us to assess tha t , w i l l be based on those assessments , tha t the
inves tee compan ies w i th the PIC.
“We a lso wanted the remova l o f re fe rence to a
t rans i t iona l per iod…”
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A t the t ime o f my appo in tment , the preva i l ing po l i cy s t i l l was
hav ing a t rans i t iona l per iod and th is t rans i t iona l per iod was on the
issue o f appo in t ing a d i rec to r to e l i c i t inves tee company in So uth
A f r i ca .
So, one o f the th ings to t ry and to avo id compet i t ion law and
ant i - compet i t i ve behav iour, the recommendat ion was tha t we cannot
appo in t d i rec tors to inves tee company in l i s ted en t i t ies , where the
pr imary l i s t ing i s in South A f r i ca .
So, when they were t ry ing to do away w i th tha t , there was a
t rans i t iona l per iod and I fe l t tha t the t rans i t iona l per iod a t the t ime
before me was a year and I fe l t tha t I am in 2017. I am s t i l l s i t t ing w i th
tha t t rans i t iona l per iod .
I fe l t tha t we needed to do awa y w i th tha t t rans i t iona l per iod
and you know, t ry and imp lement tha t , because there was a rea l r i sk o f
hav ing to have to dea l w i th compet i t ion i ssues .
I f , fo r ins tance, a d i rec tor i s s i t t ing in a l i s ted en t i t y in South
A f r i ca where the compet i t ion commiss ioner may ra ise i ssues o f
compet i t ion laws, fo r ins tance, o r ins ider t rad ing .
“We were a lso ta lk ing about the i ssue o f inc lus ion o f
sampled D isc losure and Representa t ion Permiss ion
Agreement as an annexure to the po l i cy…”
So , one o f the th ings aga in was t he issue o f the – how do you
dea l
w i th in fo rmat ion when you are appo in ted to an inves tee company where
a t the same t ime you are an employee o f the P IC. How do you dea l
24 APRIL 2019 – DAY 32
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wi th in fo rmat ion tha t you ge t in your capac i t y as a d i rec tor o r as a non -
execut ive d i r ec tor in an inves tee company.
And we wanted to in t roduce a mechan ism where the inves tee
company and the PIC cou ld then en ter in to tha t d isc losure and
representa t ion permiss ion agreement , so tha t when spec i f i c i ssues o f
in fo rmat ion are to be d isc losed, the re i s an agreement to tha t e f fec t .
So tha t those d i rec tors a re no t found want ing to have
d isc losed to the PIC in fo rmat ion wh ich they were no t supposed to have
d isc losed.
“The remova l o f except ions w i th respec t to the
proh ib i t ion o f non -execut ive d i rec tor s and employees
f rom serv ing on boards o f inves tee compan ies l i s ted
i n South A f r i ca…”
I have a l ready ta lked about th is .
“The inc lus ion o f c r i te r ia w i th respec t to ca tegor ies o f
employees who can serve on boards o f inves tee
compan ies based d i f fe ren t fac tors tha t wou ld have
been the va lue o f the inves tment and the s t ra teg ic
nature o f the inves tment…”
Because one o f the th ings there was , fo r ins tance, i f you have
a b ig inves tment in – I am jus t go ing to g ive an example o f an
inves tment tha t i s coming to mind now.
In Kenya, fo r ins tance, where you have inves ted in Cayan.
What – do you send a sen ior execut ive or do you send and a jun io r
execut ive?
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So, those were some o f the th ings tha t we wanted to do and
you want to tes t the exper ience o f tha t par t i cu la r person tha t you are
send ing to tha t par t i cu la r company, g iven the fund ing tha t wou ld have
prov ided the s t ra teg ic na ture o f tha t par t i cu la r inves tment fo r the P IC.
So, those were some o f the th ings and hopefu l l y i t w i l l ass is t
th is Commiss ion to come to a c onc lus ion and then I am go ing to ta lk
about the de legat ion o f au thor i t y rev iew process .
“Dur ing 2017, there was a process to rev iew the
Delegat ion o f Author i t y and company sec re tar ia t was
respons ib le to ensure fac i l i t a t ion w i th a l l bus iness
un i t s and to e nsure tha t i t i s imp lemented . T
here was a need to rev iew the DOAs as the las t t ime
tha t was done was 2015.
Engagements were he ld w i th a l l re levant bus iness
un i t s and subsequent to tha t a l l inpu ts f rom the
bus iness un i t s and proposed changes to the
Corpora te DOA and the inves tments DOAs were
incorpora ted in the p roposed DOAs.
The proposed DOAs were submi t ted to respec t ive
PMCs and Exco. Exco made a recommendat ion to
submi t to board fo r approva l v ia a Round Rob in
Reso lu t ion…”
The reason why i t was done v ia a Round Rob in , I be l ieve i t
was submi t ted to Exco on two d i f fe ren t occas ions and there was the
sense o f fee l ing tha t there was de lay in do ing tha t . Hence, Exco had
to u l t imate ly s ign o f f a Round Rob in Reso lu t ion .
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“So, d ur ing the SEISS FIP meet ing o f 2 3 Augus t
2017, the proposed DOA for un l i s ted inves tments was
submi t ted fo r recommendat ion to the board fo r
approva l . The commi t tee d id no t approve the
proposed DOA, as management was reques ted do a
wr i te -up on the proposed changes and to p rov ide
reasons f o r the changes , wh ich management
under took to do .
A f te r the SEISS meet ing , the CEO ca l led me to h is
o f f i ce and was very upset . He asked me who gave
me permiss ion to submi t the p roposed DOA.
Th is gave an impress ion tha t I on my own in i t ia t i ve
dec ided to submi t the document . I was taken aback
by th is query s ince Exco had made recommendat ions
to submi t the rev ised DOAs to the board fo r approva l
wh ich the CEO h imse l f s igned o f f .
A f te r our b r ie f meet ing I then wro te an emai l to h im to
c la r i f y and a lso ind i ca te my concerns in te rms o f the
process . ( I have annexed tha t emai l . )…”
I am go ing to ta lk about the incent ives .
“The approva l and annua l sa la ry ad jus tments fo r Tie r
1 and Tie r 2 to management o f the PIC fo r the
f inanc ia l year end ing 31 March 2017. ( Annexure
BM53)
The min is te r wro te to the cha i rman o f the board on
6 t h November 2017, ra is ing i ssues regard ing the
24 APRIL 2019 – DAY 32
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process fo l lowed to ob ta in approva l fo r the incent ives
o f Tie r 1 and Tie r 2 and h igh l igh ted amongs t o thers
the fo l low ing…”
And I am go ing t o quote f rom h is le t te r. He sa id :
"The submiss ion reques ted sa la ry ad jus tment o f
average o f 33% inc rease w i th e f fec t f rom 1 Apr i l
2017, bu t records shows tha t in 2015/2016 f inanc ia l
year. P IC 's execut ive d i rec tors and execut ive heads
rece ived sa la ry ad jus tment o f be tween 30% and 32%
and w i l l rece ive 7% inc rement in 2016/2017 and 0%
inc rease in 2017/2018 and the submiss ion d id no t
have re levant s ignature f rom the board cha i rman and
the cha i rperson o f the Human Resources and
Remunera t ion Commi t tee .
The submiss ion on ly has the CEO's s ignature , who
a lso s igned on beha l f o f the CFO. "
The min is te r then h igh l igh ted the communica t ion
pro toco l , wh ich i s fo l lowed by a l l o ther en t i t ies under
h is por t fo l io , when mak ing submiss ions fo r h is
cons idera t ion , where in sub miss ions are submi t ted by
the board cha i rperson th rough the Company
Secre tar ia t o f f i ce to the min is te r…. ”
And then, I have a lso a t tached tha t the cor respondence
min is te r.
I w i l l l i ke to imp lore to th is Commiss ion when mak ing
recommendat ion to make a de term inat ion on a
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cent ra l i zed communica t ion o f f i ce be tween the
shareho lder and the PIC. …”
I do a lso be l ieve , Commiss ioner tha t th i s one area wh ich a lso
cause a a lo t o f confuss ion a t the P IC where cer ta in d iv is ions w i l l be
communica t ing d i rec t l y to the Nat io na l Treasury, you know.
I th ink there shou ld be a cent ra l mechan ism to communica te
be tween the Nat iona l Treasury and the PIC.
MR EMANNUEL LEDIGA: Jus t a ques t ion on paragraph 189. The
sa la ry inc reases o f 33%. Were th is par t o f the res t ruc tur ing
programme in 2015? D id they ar ise because o f tha t?
MS BONGANI MATHEBULA : Unfor tunate ly, Commiss ioner. I was no t
there when the res t ruc tur ing happened. I be l ieve so , f rom the
communica t ion f rom the min is te r. Ja .
MR EMANNUEL LEDIGA: Yes , i t wou ld be . . . [ in t e rvenes ]
MS BONGANI MATHEBULA : Because i t re fe r red to 2015/2016
f inanc ia l year.
MR EMANNUEL LEDIGA: So , i t i s qu i te l i ke ly tha t because o f the
changes o f the s t ruc ture , peop le then go t more money and w i th
d i f fe ren t bends . Ja?
MS BONGANI MATHEBULA : Yes .
MR EMANNUEL LEDIGA: Okay, a l l r igh t .
MS BONGANI MATHEBULA : Shou ld I p roceed?
ADV ISAAC MONNAHELA : Yes .
MS BONGANI MATHEBULA :
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“The wh is t le -b lowing and recommendat ions to th is
Commiss ion o f Inqu i ry :
I f the Commiss ion is so minded, I wou ld urge i t to
make recommendat ions concern ing the c rea t ion o f a
t ru ly i ndependent wh is t le -b lowing po l i cy and
procedure a t the P IC. I t was no t idea l tha t the
tens ions wh ich bu i l t up the conduc t o f the prev ious
CEO and some board members found express ion in
the scur r i lous a l l ega t ions o f James Nogu.
But w i th channe ls fo r au thor ized wh is t le -b lowing
b locked by a cu l tu re o f v ic t im iza t ion , the abuse o f
fo rens ic inves t iga t ions and lega l p rocesses .
These symptoms a re bound to emerge aga in . I t i s
na ïve to assume tha t the po l i t i ca l and o ther fo rces
tha t sought to cap ture P IC dec is ion mak ing w i l l
s imp ly des is t in fu tu re .
In tha t con tex t , i t needs to be made as easy, sa fe and
non-s t igmat is ing as poss ib le fo r persons w i th
knowledge of wrongdo ing even a t a sen ior leve l to
b r ing th is to the a t ten t ion o f the board , the
shareho lder, the execut ive or a t ru ly independent
ombud.
Cur ren t ly, the P IC wh is t le -b lowing po l i cy i s
inadequate and leaves a lo t to be des i red when i t
comes to d isc losures about sen ior execu t ives w i thout
such a wh is t le -b lower expos ing themse lves to the
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har rowing exper iences I have undergone . The cu l tu re
o f repor t ing on e th ica l b reaches is no t embedded.
The leakages o f in fo rmat ion is a c lass ic example
where employees a re no t f ree to repor t uneth ica l
conduc t .
Hence the cu l tu re o f comply ing w i thout ques t ion ing
the leadersh ip fo r fear o f v ic t im iza t ion and
persecut ion i s p reva len t a t the P IC.
A l though there i s a cer ta in leve l o f independence to
the po l i cy inso far as repor t ing i s concerned, the
po l i cy a l so says tha t In t e rna l Aud i t mus t then repor t
to the CEO any wh is t le -b lowing mat te r tha t has come
to the i r a t ten t ion .
The po l i cy does no t dea l w i th the fac t tha t the CEO
h imse l f may be imp l ica ted . I t there fore goes w i thout
say tha t employees who w ish to repor t cor rup t ion ,
i r regu lar i t ies and impropr ie ty aga ins t management
wou ld fear to do so .
Hence i t i s poss ib le tha t emp loyees may resor t t o
o ther means .
E th ics and Eth ica l Cu l tu re :
The PIC requ i res an au thent ic e th ics management
func t ion tha t opera tes in earnes t a l l ow ing employees
to ques t ion and o f fe r d ivergent v iews to those o f
management , whereby issues a re debated ins tead o f
be ing imposed to employees by v i r tue o f sen io r i t y.
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Not one tha t i s the re as t i ck box exerc ise bu t one
wh ich is func t ion ing .
The Execut ive Hea d o f R isk i s the e th ics o f f i ce r in
te rms o f the E th ics Po l i cy and the func t ion i s no t
per fo rmed f rom an e th ics management perspec t ive .
The Eth ics R isk Assessment remained an ou ts tand ing
agenda i tem in the Soc ia l E th ics Commi t tee s ince
2016 unt i l my suspe ns ion .
The board shou ld se t the tone a t the top and prov ide
a c lear s t ra teg ic d i rec t ion on the management o f the
company 's e th ics , bu t as au thors Pete r Rea et a l
sugges t :
“Corpora te e th ics cannot be reduced to compl iance .
One o f the un in tended and more un se t t l i ng
consequences o f a focus on e th ics as a compl iance
issue, they say, i s tha t t i ck ing a l l the boxes c rea tes
the i l l us ion o f reduc ing r i sk w i thout ac tua l l y do ing so .
The te rm tone a t the top has been in popu lar use ever
s ince the corpora te fa i lu res o f the ear ly 2000…”
That i s Enron, Wor ldCom and the l i ke . Th is led to the
board o f d i rec tors to accept tha t they needed to lead
by example by se t t ing the r igh t tone th rough the i r
own behav iour, bu t as management i s charged w i th
the respons ib i l i t y fo r l i v ing by and oversee ing the
imp lementa t ion o f the code of e th ics w i th in the
company, th is was o f ten where th ings came uns tuck .
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Ul t imate ly accord ing to the Greek ph i losopher
Ar is to t le , mora l v i r tue i s learned, no t inher i ted and
exce l lence is no t an ac t , bu t a hab i t learned over
t ime. Leaders are a l ready teachers o f the i r cu l tu re ,
whether they are aware o f i t o r no t . The t ru th i s
un less the tone a t the top is t rans la ted as the tone in
the midd le , imp lementa t ion o f e th ics i s un l i ke ly to
f low to lower leve ls in th e company…”
And a l l ow me Commiss ioner, in my c los ing remarks , to say a
quote f rom an unknown author, wh ich resonates pro found ly w i th me
w i th me. I t says :
"Your l i f e has purpose. Your s to ry i s impor tan t . Your
d reams count , Your vo ice mat te rs . You were born to
make an impac t . . . "
I a lso want to thank the Commiss ion fo r g iv ing the PIC
employees a p la t fo rm to ta lk about the i r exper ience a t the P IC. Thank
you.
CHAIRPERSON: You sound a b i t emot iona l a t the end there .
MS BONGANI MATHEBULA : [No aud ib le rep ly ]
CHAIRPERSON: Mr Monnahe la , i s there any th ing e lse?
ADV ISAAC MONNAHELA : Mr Commiss ioner, may I jus t inqu i re
whether members o f the Commiss ion have ques t ions fo r the w i tness . I f
there are no ques t ions , tha t w i l l be the ev idence o f the w i tness and
tha t conc ludes the bus iness o f the day.
MR EMANNUEL LEDIGA: I jus t have one ques t ion , wh ich is jus t a b i t
d i f fe ren t . I f you go to paragraph 18. I t i s a s imp le ques t ion . Ja , the
24 APRIL 2019 – DAY 32
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f i r s t paragraph. Paragraph 18 on James Nogu. We are back to James
Nogu. The las t l i ne . I f you can jus t read i t fo r us? I t s ta r ts w i th the
p ic mak ing…
MS BONGANI MATHEBULA : Okay. The one tha t w i th , I re fe r to the
au thor?
MR EMANNUEL LEDIGA: Ja .
MS BONGANI MATHEBULA : Okay.
“The PIC mak ing d isc losures or a l legat ions o f ser ious
wrongdo ing , a lbe i t i t i n a h igh ly unor thodox and sca l l y
manner…”
MR EMANNUEL LEDIGA: Exp la in to me, why are you say ing th is? I
mean, I a lso found those le t te rs qu i te sca l l y, you know. So , can you
p lease exp la in why you f ind them sca l l y and unor thodox?
MS BONGANI MATHEBULA : Okay, I am go ing to say unor thodox ,
because i t – o f course i t d id no t fo l low the process wh ich one wou ld
have expec ted i t to fo l low, bu t then there were reasons g iven fo r tha t ,
why they d id no t fo l low the processes tha t they were supposed to have
fo l lowed in mak ing those a l legat ions .
Sca l l y in the sense tha t – and I th ink aga in , i t then war ran ts
my v iew tha t i t needed to p robed fu r ther, because i f you look a t i t , i t
was l i ke i t was touch and go . I t was no t de ta i l ed in te rms o f what
exac t l y a re the a l l egat ions .
For ins tance, i t ta lks about sa la ry ad jus tments . I t i s no t
spec i f i c , you know, in te rms o f what sa la ry ad jus tments . What p rocess .
What a re the spec i f i c i ssues tha t re la tes to those a l legat ions .
So, I fee l i t was a b i t sca l l y. H ence, aga in my conf i rmat ion i t
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war ranted an independent inves t iga t ion .
MR EMANNUEL LEDIGA: Thank you.
CHAIRPERSON: I t has been a long day, Ms Mathebu la and I no t i ced
tha t you d id no t seem to be t ie r ing . You were jus t car ry ing on and fo r
tha t we are rea l l y, rea l l y g ra te fu l . Gra te fu l fo r the t ime you have spent
here . I t i s a long day indeed. I can fee l i t . And the courage tha t you
have and tha t you have shown in coming to g i ve ev idence and g ive us
a l l the in fo rmat ion tha t you have done.
I t has gone in to the issues tha t we are there to inves t iga te and
fo r tha t we apprec ia te your e f fo r ts . Jus t one th ing , o r ra ther, le t me
s ta r t o f f – o r end o f f by say ing .
I t may very we l l be tha t one o f these days be fore the end o f
the l i f e o f th is Commiss ion , we might ca l l you back to come and g ive
more exp lanat ion or en l igh ten us on cer ta in aspec ts and I hope tha t
you wou ld s t i l l make yourse l f ava i lab le , i f tha t were to happen.
MS BONGANI MATHEBULA : I w i l l make myse l f ava i lab le ,
Commiss ioner.
CHAIRPERSON: You w i l l m ake yourse l f ava i lab le . Thank you, once
aga in . Wi th regard to… Where was I look ing? I th ink in paragraph
167 o f your a f f idav i t , you ment ioned tha t you are cons ider ing – the las t
sentence o f tha t paragraph:
“ I am cons ider ing my lega l op t ions on the ou tc ome o f
the d isc ip l inary hear ing and the consequent f ina l
wr i t ten warn ing…”
Somewhere , I th ink , you are imp lor ing us as we l l to dea l w i th
your d isc ip l inary ou tcome and so on . I mus t say – and you are ta lk ing
24 APRIL 2019 – DAY 32
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about , you know, mon ies tha t you had expended t ha t you wou ld l i ke to
be compensated on .
Regre t tab ly, we do no t have the mandate or au thor i t y to o rder
whoever to pay money and so on , bu t I wou ld say to you what you say
in paragraph 167: That i s the r igh t course to fo l l ow. That i s
cons ider ing your leg a l op t ions in respec t o f tha t .
We do no t have the power to se t as ide a d isc ip l i nary
commi t tee dec is ion . We do no t have tha t au thor i ty. What we maybe to
say – we maybe ab le to say someth ing about i t , bu t we cannot se t i t
as ide .
So, your on ly op t ion i s w hat you re fe r red to in paragraph 167 .
So, thank you very much. For now you are excused.
MS BONGANI MATHEBULA : Thank you.
CHAIRPERSON: And you sa id tha t i s the bus iness fo r the day?
ADV ISAAC MONNAHELA : Yes , Mr Commiss ioner.
CHAIRPERSON: A l l r igh t . T he Commiss ion w i l l then ad journ aga in
unt i l ten o ’ c lock tomorrow morn ing .
MEETING ADJOURNS UNTIL 25 APRIL 2019