C O M M I S S I O N O F I N Q U I RY I N T O S TAT E C A P T U R E H E L D AT PA R K T O W N , J O H A N N E S B U R G 10 03 DECEMBER 2019 D AY 1 9 5 20 03 DECEMBER 2019 – DAY 195 PROCEEDINGS RESUME ON 3 DECEMBER 2019 CHAIRPERSON: Good morning Ms Norman. ADV THANDI NORMAN SC: Good morning. C H A I R P E R S O N : G o o d m o r n i n g e v e r y b o d y. ADV THANDI NORMAN SC: Good morning Mr Chairman. C H A I R P E R S O N : Ye s . W e a r e g o i n g t o s t a r t w i t h … A D V T H A N D I N O R M A N S C : W i t h t h e a p p l i c a t i o n s C h a i r. CHAIRPERSON: Applications for Leave to Cross-examine. A D V T H A N D I N O R M A N S C : Ye s C h a i r. T h a n k y o u . 10 CHAIRPERSON: Ye s . I am going to take each one of these here I think there are about six of them. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: And announce my decision in regard to each one of them. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: I – are – do you know whether there are any lawyers representing any of … ADV THANDI NORMAN SC: There are for Mr Agrizzi. CHAIRPERSON: Oh let us get them. 20 A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u . CHAIRPERSON: Or maybe what we will do is as I call the matter if there are lawyers representing anyone they will come forward, place themselves on record. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Before I announce the decision. Page 2 of 218 03 DECEMBER 2019 – DAY 195 A D V T H A N D I N O R M A N S C : Ye s C h a i r. T h a n k y o u . C H A I R P E R S O N : Ye s . O k a y. I a m g o i n g t o s t a r t w i t h t h e a p p l i c a t i o n o f Mr Mbulelo Babalo Gingcana who seeks Leave to Cross-examine Mr Richard Le Roux. A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u . C H A I R P E R S O N : T h e r e i s n o b o d y. ADV THANDI NORMAN SC: There is no representation here but I can confirm that Mr Gingcana and everyone else who is involved in the matter they were all notified. 10 CHAIRPERSON: They were all notified? A D V T H A N D I N O R M A N S C : Ye s . Ye s t h a n k y o u . I n f a c t t h a t a p p l i e s t o a l l t h e a p p l i c a t i o n s C h a i r. C H A I R P E R S O N : Ye s o k a y a l r i g h t . A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u . CHAIRPERSON: 1. In regard to this matter Mr Mbulelo Babalo Gingcana is hereby granted Leave to Cross-examine Mr Richard Le Roux. That is one. 2. The amount of time that will be allowed for the cross-examine of 20 Mr Richard Le Roux by Mr Gingcana or his counsel will be determined at a later date. ADV THANDI NORMAN SC: As Chair pleases. CHAIRPERSON: O k a y. The next one is – this is an Application by Brigadier Nyameko Xaba. A D V T H A N D I N O R M A N S C : Ye s . Page 3 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Who has applied for Leave to Adduce Evidence in response to the evidence of Mr Innocent Khuba. He has not applied for Leave to Cross-examine Mr Khuba. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: The decision is that Brigadier Nyameko Xaba is hereby granted Leave to give evidence. ADV THANDI NORMAN SC: As Chair pleases. CHAIRPERSON: Hm. 1. This is an application by Ms Navaranjeni Munusamy for Leave to 10 give evidence and to cross-examine Colonel Naidoo. The decision is that Ms Munusamy is granted leave to give evidence and to cross-examine Colonel Naidoo. 2. The time to be allowed for the cross-examination of Mr Naidoo will be determined at a later date. ADV THANDI NORMAN SC: As Chair pleases. CHAIRPERSON: The next application is an application by Mr Sedrick T h o m a s F r o l i c k f o r L e a v e t o g i v e e v i d e n c e t o d e a l w i t h M r A g r i z z i ’s evidence but he does not seek Leave to Cross-examine Mr Agrizzi. A D V T H A N D I N O R M A N S C : M r A g r i z z i i s r e p r e s e n t e d C h a i r. 20 CHAIRPERSON: Hm. ADV THANDI NORMAN SC: Mr Agrizzi is represented. C H A I R P E R S O N : I s h e ? Ye s . ADV DANIEL WITZ: Morning Chair Advocate Witz. C H A I R P E R S O N : Ye s . ADV DANIEL WITZ: Instructed by Witz Incorporated. I am on behalf Page 4 of 218 03 DECEMBER 2019 – DAY 195 of Mr Agrizzi. C H A I R P E R S O N : Ye s . ADV DANIEL WITZ: And we are here to get the judgment. Thank you C h a i r. CHAIRPERSON: Thank you. Thank you. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: Mr Sedrick Frolick is hereby granted Leave to give e v i d e n c e i n r e a c t i o n t o M r A g r i z z i ’s e v i d e n c e . ADV THANDI NORMAN SC: As Chair pleases. 10 ADV DANIEL WITZ: As the Chair pleases. CHAIRPERSON: Thank you. The next one is an application by Mr Gwede Samson Mantashe for Leave to give evidence, call witnesses and to cross-examine Mr Agrizzi. 1. The decision is that Mr Gwede Samson Mantashe is hereby granted leave to give evidence, to call witnesses and to crossexamine Mr Agrizzi. 2. The time to be allowed for the cross-examination of Mr Agrizzi will be determined at a later date. ADV THANDI NORMAN SC: As Chair pleases. 20 ADV DANIEL WITZ: As the Chair pleases. Thank you. CHAIRPERSON: Thank you. The next one is an application by – also by Mr Gwede Samson Mantashe for Leave to give evidence, to call witnesses and to cross-examine Mr Richard Le Roux. The decision is that Mr Gwede Samson Mantashe is hereby granted leave to give evidence, call witnesses and to cross-examine Mr Richard Le Roux. Page 5 of 218 03 DECEMBER 2019 – DAY 195 ADV THANDI NORMAN SC: As Chair pleases. ADV DANIEL WITZ: As the Chair pleases. I confirm I also appear on behalf on Mr Le Roux. C H A I R P E R S O N : Ye s . ADV DANIEL WITZ: Same attorney and I accept it and we have noted the judgment. CHAIRPERSON: Thank you. A D V D A N I E L W I T Z : T h a n k y o u C h a i r. CHAIRPERSON: 10 Thank you. I have got two other files here Ms Norman. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: And I am not sure whether they – notices were issued in regard to them. One is for Brigadier ADV THANDI NORMAN SC: Ramela. CHAIRPERSON: Ramela. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: I did not deal with that one ne? A D V T H A N D I N O R M A N S C : W e d i d n o t C h a i r. CHAIRPERSON: I did not deal with that one a few minutes ago? 20 A D V T H A N D I N O R M A N S C : N o y o u h a v e n o t , n o . N o C h a i r. C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : Yo u h a v e n o t d e a l t w i t h t h a t o n e . CHAIRPERSON: There is – there is that one. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Hm. Page 6 of 218 03 DECEMBER 2019 – DAY 195 A D V T H A N D I N O R M A N S C : H e i s s i m p l y p l a c i n g h i s v e r s i o n C h a i r. CHAIRPERSON: He just wants to place. ADV THANDI NORMAN SC: Ja. CHAIRPERSON: His version. ADV THANDI NORMAN SC: He is not asking to lead evidence. CHAIRPERSON: He is not – yes. ADV THANDI NORMAN SC: He is not even asking to cross-examine. C H A I R P E R S O N : Ye s . A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u C h a i r. 10 CHAIRPERSON: Ye s . In regard to Mr – or Brigadier Thabo Ramela who applied for leave to simply place his version before the commission t h e o r d e r I m a k e – t h e d e c i s i o n I m a k e i s t h a t h i s a ff i d a v i t i s a d m i t t e d a n d s h o u l d t h e C h a i r p e r s o n o r t h e c o m m i s s i o n ’s l e g a l t e a m c o n s i d e r i t necessary to have him called to give evidence he will be called. ADV THANDI NORMAN SC: As Chair pleases. Thank you. CHAIRPERSON: And then I have the application of Lieutenant General Yo l i s a M a t a k a t a . . A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: Who seeks leave to give evidence. 20 A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: But not to cross-examine. ADV THANDI NORMAN SC: No to cross-examine. C h a i r. CHAIRPERSON: At least provisionally he says. A D V T H A N D I N O R M A N S C : Ye s , y e s C h a i r. Page 7 of 218 That is correct 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: She wants to be given a chance to reconsider her election at a later stage. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: And she is – she seeks to give evidence in regard to General Johan Booysens’ evidence. ADV THANDI NORMAN SC: T h a n k y o u C h a i r. And she also sought c o n d o n a t i o n C h a i r f o r t h e l a t e f i l i n g o f h e r a ff i d a v i t . C H A I R P E R S O N : Ye s . I t h i n k I a m g o i n g t o p o s t p o n e t h i s o n e . A D V T H A N D I N O R M A N S C : Ye s C h a i r. 10 CHAIRPERSON: Because it is not very clear to me that there is any material – serious material dispute. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Of – of fact in their versions. But I may have missed something. A D V T H A N D I N O R M A N S C : I n f a c t C h a i r. CHAIRPERSON: I was under the impression that I had asked somebody to read it. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: And – before we could deal with it but I am – I am not 20 sure. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: What is your recollection? ADV THANDI NORMAN SC: Chair – Chair my recollection – we – in respect of this one we are going to apply for that order Chair – for the reasons that General Matakata Chair would recall she makes reference Page 8 of 218 03 DECEMBER 2019 – DAY 195 t o a p a r t i c u l a r a ff i d a v i t t h a t w a s g i v e n t o h e r b y G e n e r a l B o o y s e n b u t t h a t a ff i d a v i t i s n o t a t t a c h e d . And for those reasons we were of the view that you did not have all the information and would have asked – w e w e r e g o i n g t o a s k t h a t y o u – t h i s o n e b e p o s t p o n e d . Ye s t h a n k y o u . CHAIRPERSON: Okay so this one will be postponed. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: And –and sometime not later than end of this week I would like to have it back. A D V T H A N D I N O R M A N S C : To d e a l w i t h i t . 10 CHAIRPERSON: Have it back so that one can look at the issues. Maybe somebody in the legal team could. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: Make short submissions on what should happen to it. A D V T H A N D I N O R M A N S C : W e w i l l g o s o C h a i r. CHAIRPERSON: Ja. A D V T H A N D I N O R M A N S C : T h a n k y o u . Ye s . CHAIRPERSON: Ja. ADV THANDI NORMAN SC: Thank you. CHAIRPERSON: There is also an – an application by Ms Redi Tlhabi 20 for leave to give evidence and to cross-examine the former President Mr Jacob Zuma. ADV THANDI NORMAN SC: Chair just to… C H A I R P E R S O N : Ye s . ADV THANDI NORMAN SC: For the record I have just – the secretariat is seated behind me. That – that particular matter did not form part of Page 9 of 218 03 DECEMBER 2019 – DAY 195 the list of the matters that were furnished for decision today and for that reason I believe that she had notified the parties – yes. C H A I R P E R S O N : Ye s , n o , n o , n o , t h a t i s f i n e . I a m a w a r e i t w a s n o t – I am not going to give an outcome but I want to issue directions. A D V T H A N D I N O R M A N S C : Ye s . T h a n k y o u C h a i r. CHAIRPERSON: In this matter the former President did not file any a ff i d a v i t t o o p p o s e t h e a p p l i c a t i o n b u t s i m p l y f i l e d a n o t i c e t o o p p o s e . I do not see it here but I think I have seen – seen it. The directions I am going to issue are as follows: 10 A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: 1. If the former President Mr Jacob Zuma has anything to say in o p p o s i t i o n t o M s R e d i T l h a b i ’s a p p l i c a t i o n f o r l e a v e g o g i v e evidence and to cross-examine him he must deliver written submissions on or before Monday the 9th December and thereafter I will deal with the matter in a manner that I will decide after seeing whether he has filed written submissions and depending on the contents of the submissions. So I think I am going to rephrase the direction so that… 20 A D V T H A N D I N O R M A N S C : Ye s C h a i r – i t i s c l e a r. C H A I R P E R S O N : O k a y. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: 1. If the former President Mr Jacob Zuma wishes to say anything in o p p o s i t i o n t o M s R e d i T l h a b i ’s a p p l i c a t i o n f o r l e a v e t o g i v e Page 10 of 218 03 DECEMBER 2019 – DAY 195 evidence and to cross-examine him he must deliver written submissions to the secretary on or before Monday 9 December 2019. 2. Once or rather if no written submissions are delivered to the acting secretary of the commission on or before Monday the 9th, 2019 the Chairperson will deal with the application in the manner he will deem appropriate including making a decision thereon. 3. If the former President Mr Jacob Zuma does deliver within the timeframe indicated written submissions in opposition of Ms 10 T l h a b i ’s a p p l i c a t i o n t h e C h a i r p e r s o n w i l l t a k e a c c o u n t o f t h e written submissions and either announce the outcome thereof as soon as possible thereafter or invite Mr Tlhabi if necessary to respond to those written submissions in which case the matter will be decided at a later date. ADV THANDI NORMAN SC: As Chair pleases. CHAIRPERSON: Thank you. A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u C h a i r. CHAIRPERSON: I would like you to make sure that the directions in regard to this matter of Ms Redi Tlhabi. 20 A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : A r e s e n t o u t t o d a y. A D V T H A N D I N O R M A N S C : Ye s C h a i r w e w i l l … CHAIRPERSON: Because – ja – ja. ADV THANDI NORMAN SC: May we just approach you around teatime? C H A I R P E R S O N : Ye s . Page 11 of 218 03 DECEMBER 2019 – DAY 195 ADV THANDI NORMAN SC: So that Chair would have [indistinct]. CHAIRPERSON: That is – that is fine. A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. CHAIRPERSON: That is fine. A D V T H A N D I N O R M A N S C : Ye s t h a n k y o u . C h a i r m a y I t h e n … CHAIRPERSON: Ja. ADV THANDI NORMAN SC: If that is the end of the applications may we then be excused and … C H A I R P E R S O N : Ye s , n o b e f o r e t h a t I t h i n k I m u s t j u s t s a y. 10 A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: That with regard to applications for leave to cross- examine I just want to say because there will be representatives of parties who are in – in the hearing or there may be others watching or listening that it is possible that in all of them or in some of them I may direct that the implicated person who has applied for leave to crossexamine. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: A witness should give evidence first. A D V T H A N D I N O R M A N S C : Ye s . 20 CHAIRPERSON: And subject himself or herself to questioning by the c o m m i s s i o n ’s l e g a l t e a m b e f o r e e m b a r k i n g o n c r o s s - e x a m i n a t i o n . A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: And if anyone of the persons who have been granted l e a v e t o c r o s s - e x a m i n e t o d a y h a s a n y o b j e c t i o n o r d i ff i c u l t y w i t h s u c h a procedure they must indicate that they have such an objection by no Page 12 of 218 03 DECEMBER 2019 – DAY 195 later than Friday next week. receive due consideration. In which case their objections would But if there are no objections it will be t a k e n t h a t t h e y h a v e n o d i ff i c u l t y w i t h t h a t a p p r o a c h . A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: The approach simply would seek to make sure that as far as possible the legal team is and the Chairperson are aware of how wide the disputes of fact between the versions of the witness and the implicated persons are before the implicated person cross-examines the witness. 10 It is hoped that that could help shorten the cross- examination if both the witness and the implicated person have given evidence and subjected themselves to questioning. A D V T H A N D I N O R M A N S C : Ye s . CHAIRPERSON: By the legal team. A D V T H A N D I N O R M A N S C : Ye s C h a i r. CHAIRPERSON: So it is not final but that is what is envisaged could happen in some of the applications or in all of them. A D V T H A N D I N O R M A N S C : Ye s . C H A I R P E R S O N : B u t a n y o n e w h o m a y h a v e d i ff i c u l t y m u s t g i v e n o t i c e as indicated. 20 A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. C H A I R P E R S O N : T h a n k y o u . Yo u a r e e x c u s e d . A D V T H A N D I N O R M A N S C : T h a n k y o u C h a i r. T h a n k y o u C h a i r. C H A I R P E R S O N : Ye s t h a n k y o u . ADV DANIEL WITZ: Thank you Chair may I also be excused at this [indistinct]? Page 13 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : Ye s y o u a r e e x c u s e d . ADV DANIEL WITZ: Thank you. CHAIRPERSON: Thank you. Will you manage without any adjournment? A D V K AT E H O F M E Y R : I t h i n k w e w i l l C h a i r. C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : W e a r e p r e t t y p r e p a r e d . C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : 10 Ms Oliphant is going to be our first witness t o d a y. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : S h e i s j u s t g e t t i n g h e r s e l f s e t u p a t t h e … C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : W i t n e s s t a b l e . CHAIRPERSON: Okay thank you. A D V K AT E H O F M E Y R : C h a i r i f I m a y j u s t i n t h e i n t e r i m d e a l w i t h o n e or two procedural aspects? CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : M s O l i p h a n t ’s a ff i d a v i t y o u w i l l f i n d i n t h e f i l e 20 before… CHAIRPERSON: Just one second. A D V K AT E H O F M E Y R : C e r t a i n l y C h a i r. CHAIRPERSON: I do not know whether it is the – something technical but you not as audible as you ought to be. I do not know if it is the air conditioner also. So let us continue I think they will – they will check Page 14 of 218 03 DECEMBER 2019 – DAY 195 what it is. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : Chair our first witness today is Ms Oliphant. H e r a ff i d a v i t i s c o n t a i n e d i n t h e f i l e b e f o r e y o u u n d e r t h e t h i r d t a b . May I request that we enter it into the record as Exhibit NN3? CHAIRPERSON: T h e – t h e a ff i d a v i t o f M s N e l i s i w e M i l d r e d O l i p h a n t will be admitted as NN3 together with the annexures attached to it. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. I f I m a y t h e n r e q u e s t t h a t M s 10 Oliphant be sworn in? C H A I R P E R S O N : P l e a s e a d m i n i s t e r t h e o a t h o r a ff i r m a t i o n ? REGISTRAR: Please state your full names for the record. MS OLIPHANT: Mildred Nelisiwe Oliphant. REGISTRAR: Do you have any objections to taking the prescribed oath? MS OLIPHANT: No. REGISTRAR: Do you consider the oath to be binding on your conscience? M S O L I P H A N T : Ye s . 20 REGISTRAR: Do you swear that the evidence you will give will be the truth; the whole truth and nothing but the truth; if so please raise your r i g h t h a n d a n d s a y, s o h e l p m e G o d . MS OLIPHANT: Nkosi Ngisize. CHAIRPERSON: Thank you. Ms Oliphant I heard that you said Nkosi Ngisize. Are you going to give evidence in Isi-Zulu or in English? Page 15 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: I can – I can mix Chairperson. CHAIRPERSON: Okay alright. MS OLIPHANT: Thank you. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. M s O l i p h a n t j u s t t o o r i e n t a t e y o u . I n f r o n t o f y o u s h o u l d b e a f i l e c o n t a i n i n g y o u r a ff i d a v i t , h a v e y o u located that? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : T h a n k y o u . W e w i l l b e f o c u s i n g i n t h e m a i n o n t h a t a ff i d a v i t t o d a y b u t w e w i l l a l s o b e d e a l i n g w i t h a n o t h e r f i l e w h i c h 10 should be in front of you and on the spine it is marked NN5. Do you have that readily to hand? M S O L I P H A N T : Ye s I d o . A D V K AT E H O F M E Y R : Thank you. Ms Oliphant in advance of today towards the end of last week you were sent some of the documents to which I propose to make reference today from NN5. Can you confirm receiving those documents? M S O L I P H A N T : Ye s I d i d . A D V K AT E H O F M E Y R : Thank you. Ms Oliphant if you could then p l e a s e g o t o E x h i b i t N N 3 w h i c h c o n t a i n s y o u r a ff i d a v i t ? 20 M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : A n d c a n y o u c o n f i r m t h a t t h i s i s a n a ff i d a v i t y o u provided to the commission? If you go to page 9 it indicates that it was signed on the 7 October 2019, is that correct? M S O L I P H A N T : Ye s t h a t i s c o r r e c t . A D V K AT E H O F M E Y R : A n d w h y d i d y o u p r o v i d e t h e a ff i d a v i t t o t h e Page 16 of 218 03 DECEMBER 2019 – DAY 195 commission? MS OLIPHANT: It is because I received a letter from the Chairperson s a y i n g I m u s t c o m e a n d g i v e t h e e v i d e n c e o n t h e m a t t e r. A D V K AT E H O F M E Y R : Thank you. I would like to pick it up at paragraph 3 on page 1 of Exhibit NN3. Because there you start to give the background of your time in public service. Can you please tell the Chair about that? M S O L I P H A N T : Ye s . I w a s e l e c t e d a s a m e m b e r o f t h e L e g i s l a t u r e i n 1994 to 1999 and from 1999 I was elected as the member of the 10 National Assembly up until 2004. And from 2004 to 2009 I was elected as a member in the National Council of Provinces. And from 2009 up u n t i l 2 0 1 4 I w a s a m e m b e r o f t h e N a t i o n a l A s s e m b l y. A n d w h i l e I w a s i n the National Assembly in 2009 I was elected as – or I was appointed as the House Chair on International Relations up until the 1 November 2 0 1 0 w h e n I w a s d e p l o y e d a s t h e M i n s t e r o f L a b o u r. A D V K AT E H O F M E Y R : A n d f o r h o w l o n g d i d y o u h o l d t h e p o s i t i o n o f Minister of Labour? MS OLIPHANT: Since 2010 until 2019. A D V K AT E H O F M E Y R : 20 Thank you. I think in paragraph you say until May of 2019, is that correct? M S O L I P H A N T : Ye s M a y 2 0 1 9 . A D V K AT E H O F M E Y R : T h a n k y o u . I w o u l d t h e n l i k e t o m o v e o v e r t h e page to page 2 of Exhibit NN3 because at paragraph 4 there you start t o r e c o u n t y o u r a p p o i n t m e n t a s M i n i s t e r o f L a b o u r. M S O L I P H A N T : Ye s . Page 17 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : T h e r e i s o n e p o i n t o f c l a r i f i c a t i o n I j u s t n e e d t o a s k y o u . Yo u r p a r a g r a p h 4 t h e r e b e g i n s : “On Saturday 29 October 2010.” Do you see that? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : I have gone back and looked at a diary from 2 0 1 0 a n d S a t u r d a y w a s a c t u a l l y t h e 3 0 O c t o b e r. S o c a n y o u j u s t c l a r i f y for us is what occurred at paragraph 4, something that occurred on the Saturday in which case we would need to make a correction to the date 10 to bear 30 October or was it something that happened on the preceding Friday which would have been the 29 October? MS OLIPHANT: Maybe we have to change the dates to the 30 October because I arrived on Saturday from China where there was a delegation of Parliament led by the speaker of Parliament then Mr Sisulu. A D V K AT E H O F M E Y R : Thank you. Chair if I may then make the suggestion that we simply change the date on paragraph 4 to be the 30 October and then Ms Oliphant there would be a consequent change it seems to me also at paragraph 5. M S O L I P H A N T : Ye s . 20 A D V K AT E H O F M E Y R : B e c a u s e a t p a r a g r a p h 5 y o u t a l k a b o u t S u n d a y a n d w e w o u l d n e e d t o c h a n g e t h a t d a t e t o t h e 3 1 O c t o b e r. M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : D o y o u c o n f i r m t h a t a s c o r r e c t ? M S O L I P H A N T : Ye s . C H A I R P E R S O N : O k a y. T h a t i s f i n e . Page 18 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. CHAIRPERSON: Of course we not change it on the thing but I am just making a note. A D V K AT E H O F M E Y R : I n d e e d . I n d e e d . C H A I R P E R S O N : S o w e c a n h a v e a s u p p l e m e n t a r y l a t e r. A D V K AT E H O F M E Y R : C e r t a i n l y. W e w i l l a t t e n d t o t h a t . C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : B u t f o r t h e p u r p o s e s o f t o d a y ’s e v i d e n c e w e can take it Ms Oliphant that the story about your appointment as 10 Minister of Labour starts on the Saturday? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : T h e 3 0 O c t o b e r. Can you tell us what happened then and the following day? MS OLIPHANT: On Sunday I was called by President Zuma to say as t h e P r e s i d e n t o f t h e A f r i c a n N a t i o n a l C o n g r e s s s a y i n g t h e o ff i c i a l s o f the ANC have decided to deploy me as the Minister of Labour and then he said I must come on a Monday for swearing in. After that I was phoned by Ms Lakela Kaunda to make the arrangements to come to Presidential Guesthouse - that was known as Presidential Guesthouse 20 then. So when I arrived on Monday morning I was picked up by the - b y t h e o ff i c e - I m u s t s a y b y t h e O ff i c e o f t h e P r e s i d e n c y, b e c a u s e they were the ones who arranged all the logistics for travelling and t h e n w h e n I a r r i v e d a t t h e g u e s t h o u s e t h e r e w e r e o ff i c i a l s f r o m t h e Presidency where I was asked to look at my name in the attendance Page 19 of 218 03 DECEMBER 2019 – DAY 195 register and then sign next to my name. That is what I did on that day and then I was taken to the hall where we were - we were going to be sworn in as Ministers. A D V K AT E H O F M E Y R : Thank you. I - I would like to go into some more detail about those events in a moment, but if I may just ask one or two things in background. I n a d v a n c e o f t o d a y ’s e v i d e n c e Ms Oliphant have you had an occasion to look at the transcript of or watch the evidence of Mr Manyi or Mr Maseko that has previously been received by the Commission? 10 MS OLIPHANT: No. I have not seen their - their evidence. A D V K AT E H O F M E Y R : Thank you and just in terms of background again can you assist us with your understanding of how heads of departments are appointed under the - in the Public Service? What is your understanding of how that takes place? MS OLIPHANT: My understanding is that when particularly the Director-General when is he going to be appointed. There will be an advertisement and then - but that will happen in consultation with the Minister for Public Service and Administration. I am raising that based on what I did when I was supposed to employ the Director-General - not 20 t o e m p l o y, b e c a u s e i t i s t h e P r e s i d e n t t h a t e m p l o y s , b u t t h e M i n i s t e r o f that department will constitute the panel of Ministers that will interview those - those candidates and then after the interviews then we will recommend to the Minister for Public Service and Administration, because he is the custodian - he or she is the custodian of Public Service Act and then after that he - he will submit that proposal to the Page 20 of 218 03 DECEMBER 2019 – DAY 195 Cabinet and then the approval will be done by Cabinet based on the recommendations by the Minister for Public Service. A D V K AT E H O F M E Y R : And the transfer of a DG how does that take place on your understanding? MS OLIPHANT: Also in my understanding is that based on the delegated powers to the Minister for Public Service and Administration. He is the one who will be - he or she will be the one who will be responsible for that process. A D V K AT E H O F M E Y R : 10 A n d 2 F e b r u a r y 2 0 11 w a s a W e d n e s d a y o f t h e w e e k a n d i t w a s - t h e r e w a s a C a b i n e t m e e t i n g o n t h a t d a y. I t w a s t h e day on which the announcements of the transfers of Mr Maseko and Mr Manyi took place. Do you recall that? MS OLIPHANT: Even if I cannot say exactly say this is what has happened, but because it is the process I do believe so and also because the announcement was made by the Spokesperson of the Cabinet. Of course that issue should be decided by Cabinet on that p a r t i c u l a r d a y. A D V K AT E H O F M E Y R : Do you recall whether you were actually in a t t e n d a n c e a t t h a t m e e t i n g ? T h e W e d n e s d a y, 2 F e b r u a r y 2 0 11 . 20 MS OLIPHANT: I cannot exactly recall that. That is why I said it is either I was there or not and the only way that I can find out if the Commission can request the attendance of the - the Cabinet Members … A D V K AT E H O F M E Y R : Ye s . MS OLIPHANT: From the Cabinet Secretariat. Page 21 of 218 That is when it will 03 DECEMBER 2019 – DAY 195 prove whether I was there or not, because it is - it was happen - it happened in 2010 and it is a long time ago. A D V K AT E H O F M E Y R : W e l l i n 2 0 11 . M S O L I P H A N T : I m e a n i n 2 0 11 . A D V K AT E H O F M E Y R : T h a n k y o u . M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : Now I fully understand that, but for the p u r p o s e s o f t o d a y ’s e v i d e n c e . Can I take it that you do not have a clear recollection of being present at that meeting? 10 MS OLIPHANT: For now I really do not recollect that. A D V K AT E H O F M E Y R : transfers of DGs. Thank you. We spoke a moment ago about Do you understand - what - what is your understanding of any other requirements for a transfer of a DG? Are you aware of any other requirements that have to be met? MS OLIPHANT: As I have said the - the person who should be responsible is the Minister for Public Service and Administration and that Minister can be able to give you the details on how the processes are done, because he or she is the one who leads that process. A D V K AT E H O F M E Y R : 20 And what if the particular Director-General is moving from a particular department to another department. Does the Minister of either of those departments play a role in the transfer on your understanding? MS OLIPHANT: It - it depends, because the Minister for Public Service and Administration particularly if that Minister has requested for the transfer of that particular person and also probably the receiving Page 22 of 218 03 DECEMBER 2019 – DAY 195 Minister they will - the Minister for Public Service will be able to say what is it that has happened and what were the reasons for that. He is the one who can outline the details of that particular process. A D V K AT E H O F M E Y R : C e r t a i n l y. W e u n d e r s t a n d t h a t . W e t h a n k f u l l y have Mr Baloyi who was the former Minister holding that position also g i v i n g e v i d e n c e t o d a y. course. So we will ask about that process in due What we will come to in your evidence is your particular involvement insofar as the transfer of Mr Manyi is concerned, because he was - that was a transfer from your ministry to the Government 10 Communication and Information Service. Yo u a r e a w a r e o f t h a t a r e you? M S O L I P H A N T : Ye s . I w a s t h e M i n i s t e r t h e n w h o w a s j u s t a p p o i n t e d , but when I arrived in the department Mr Manyi was not there. I found the Acting Director-General which was Minister Sam Morotoba and then I was not even aware during the briefings by the department that the the DG was dismissed. When I was trying to approach - when I was thinking of approaching the Director-General of - in the Cabinet then I received a call from Mr Jimmy Manyi, because I just received a call f r o m a n u m b e r. 20 So I asked who this is and he said he is Jimmy Manyi and he said he is intending to appeal or taking the Department of Labour to court and then I asked what the reasons are for that. He said it is because he was dismissed unfairly and then I said well unfortunately I am still new in the department. I am still getting briefing - briefings by t h e s e n i o r o ff i c i a l s . Page 23 of 218 03 DECEMBER 2019 – DAY 195 Can he wait up until I - I get the full briefing, because in that particular time Parliament was also dealing with the MTEB - I think - S no R. I t i s M i d - Te r m B u d g e t R e v i e w - E s t i m a t e B u d g e t R e v i e w. So I had to get that briefing, because I was supposed at a later stage to respond to those issues in Parliament and immediately after getting that call I approached for Minister Baloyi to say I have received this call and I am new in the department particularly when it comes to the M i n i s t e r. Can he assist me on the matter? Since he is the Minister for 10 P u b l i c S e r v i c e a n d A d m i n i s t r a t i o n a n d I - I d i d t h a t i n f o r m a l l y, b e c a u s e we were just having - we part of the meeting of the Cabinet. So I informally asked him if he can look at the matter and he said he was going to look at the matter and then after getting the briefings from the o ff i c i a l s . Then at a later stage I decided after having the discussions with Minister Baloyi. He advised that probably I may get some information from Mr Manyi. have a meeting. So that I can have a full understanding on what exactly has happened. 20 That is when I called him to say can we We had a meeting and then he said he was dismissed unfairly and he briefly said these are the reasons for that, but even … A D V K AT E H O F M E Y R : M s O l i p h a n t … M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : I a m - I a m s o s o r r y t o i n t e r r u p t y o u . D o y o u mind if I - I would like to take this a little bit slower if I may? Page 24 of 218 03 DECEMBER 2019 – DAY 195 M S O L I P H A N T : O k a y. A D V K AT E H O F M E Y R : B e c a u s e t h e r e a r e a s p e c t s o f t h e e v i d e n c e t h a t we have already received from Mr Manyi. MS OLIPHANT: Huh-uh. A D V K AT E H O F M E Y R : That occurs in the timeline that you are describing. So if I may just ask we were in … CHAIRPERSON: Maybe - maybe before you do that … A D V K AT E H O F M E Y R : I n d e e d . C H A I R P E R S O N : M s H o f m e y r. M s O l i p h a n t y o u r e f e r r e d t o - w h e n y o u 10 referred to Minister a few seconds ago with your hands you seemed to put that in quotation marks. I just want that to be on record. Do you want to explain that so that we know exactly why you are saying that or are you simply referring to doing that because he was Minister then, but is not Minister now? MS OLIPHANT: I was referring to him as the - that is what I believe. Ye s b u t , b e c a u s e h e w a s n o l o n g e r t h e M i n i s t e r a n d h e w a s n o w t h e A m b a s s a d o r. M a y b e I h a v e t o r e f e r t o h i m n o w a s a n A m b a s s a d o r, b u t t h e n h e w a s t h e M i n i s t e r. C H A I R P E R S O N : Yo u - y o u a r e r e f e r r i n g t o ? 20 M S O L I P H A N T : To M i n i s t e r B a l o y i . C H A I R P E R S O N : O k a y. A l r i g h t . M S O L I P H A N T : Ye s . C H A I R P E R S O N : O k a y. N o . N o . I j u s t w a n t e d t o m a k e s u r e , b e c a u s e when you do that with your hands that does not go into the record. That does not and yet you maybe attaching a certain meaning to it. Page 25 of 218 03 DECEMBER 2019 – DAY 195 M S O L I P H A N T : O k a y. CHAIRPERSON: So that - that is reason. So - so he - he was Minister at a certain time. Then later he became Ambassador … M S O L I P H A N T : Ye s . CHAIRPERSON: And you just wanted to clarify that? MS OLIPHANT: Maybe I must withdraw that what I was - I was doing with my hands. CHAIRPERSON: No. As long as we understand. M S O L I P H A N T : Ye s . H e w a s t h e M i n i s t e r t h e n … 10 C H A I R P E R S O N : J a . O k a y. N o t h a t i s f i n e . MS OLIPHANT: For Public Service and Administration. CHAIRPERSON: That is fine. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. I w o u l d l i k e t o j u s t t a k e y o u back in time … MS OLIPHANT: Hm. A D V K AT E H O F M E Y R : M s O l i p h a n t , b e c a u s e y o u r e v i d e n c e a s I h a v e it thus far was. Yo u w e r e c o n t a c t e d o n t h e S u n d a y 3 1 O c t o b e r b y former President Zuma and you notified about your deployment as M i n i s t e r o f L a b o u r. 20 M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : And then your evidence moved to the travel arrangements that were made. I understand you to say that happened on the Monday 1 November … MS OLIPHANT: Huh-uh. A D V K AT E H O F M E Y R : 2 0 1 0 . I s t h a t c o r r e c t ? Page 26 of 218 03 DECEMBER 2019 – DAY 195 M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : A n d t h a t i s w h e r e I n e e d t o p i c k i t u p , b e c a u s e we have had evidence in the Commission from Mr Manyi that he in fact met you at the airport when you touched down in Johannesburg on 1 November 2010. Do you recall that? MS OLIPHANT: No. I did not meet with him. I did not - I did not meet with Mr Manyi at the airport. A D V K AT E H O F M E Y R : S o w h e n h e s a i d h e m e t w i t h y o u a t t h e a i r p o r t and he had a conversation with you at the airport and he was waiting 10 around for you. Do you say that that was false? MS OLIPHANT: No. I - yes. I can say it is false, because I did not meet with him at the airport. CHAIRPERSON: There was a reference to him congratulating you. I just cannot remember whether he said he did that - excuse me. Whether he said he did that at that - when ye met you at the airport or whether he said he did that on a - in a telephone conversation. Do you have any recollection about … MS OLIPHANT: If … CHAIRPERSON: Maybe him doing that in a telephone conversation? 20 MS OLIPHANT: If I recall Chair he - he congratulated me when he was saying to me he is intending to appeal or to take us to court in terms of his dismissal. CHAIRPERSON: And that was on the Monday or much later? M S O L I P H A N T : N o . I t w a s n o t o n a M o n d a y. C H A I R P E R S O N : Ye s . Page 27 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: I think it was - it is either two or three weeks after the appointment. He only person who phoned me when I was just arriving at the airport was the Acting DG Mr Sam Morotoba who congratulated me and also indicated that if I need any help particularly about the transport I must just call him. C H A I R P E R S O N : Ye s . M S O L I P H A N T : Ye s . C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : 10 Ms Oliphant that call that you received from M r M a n y i y o u d e a l w i t h i n y o u r a ff i d a v i t a n d I w i l l n o t t a k e y o u t h e r e i m m e d i a t e l y, b u t c e r t a i n l y y o u r a ff i d a v i t ’s c h r o n o l o g y s u g g e s t s i t w a s a b o u t t w o o r t h r e e w e e k s l a t e r. M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : I s t h a t y o u r r e c o l l e c t i o n ? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : B e c a u s e t h e r e i s a l e t t e r w h i c h y o u w e r e s e n t a t t h e e n d o f l a s t w e e k w h i c h I w i l l t a k e y o u t o n o w. I t i s a l e t t e r t h a t w a s w r i t t e n b y M r M a n y i ’s a t t o r n e y s o n 3 N o v e m b e r a n d i t w a s s e n t t o yourself and to Mr Baloyi and that letter refers to the fact that Mr Manyi 20 h a d a l r e a d y m e t w i t h y o u b y 3 N o v e m b e r. N o w 3 N o v e m b e r w a s a f e w d a y s l a t e r. It would have been the Wednesday of the week that you came up on the Monday and you went to the Presidential Guesthouse to be sworn in. Was that also false? MS OLIPHANT: I think they - they - it is either he - he misled his Page 28 of 218 03 DECEMBER 2019 – DAY 195 attorneys, because I did not meet with him, because after swearing in I went back to KwaZulu-Natal. I have seen that letter from his attorneys a n d a l s o i s t h a t M i n i s t e r B a l o y i r e c e i v e d t h a t l e t t e r. W h i l e I w a s g e t t i n g the briefing in the department firstly I did not immediately deal with the correspondence, because I said they must take me through on all things that are being happening in the department. A D V K AT E H O F M E Y R : D i d y o u e v e r c o m e t o s e e t h i s l e t t e r ? MS OLIPHANT: It was for the first time for me to see it in this evidence. 10 A D V K AT E H O F M E Y R : Let us go there if we may? Chair it is - and Ms Oliphant it is in EXHIBIT NN5 and you will find it at page 2-9-7. CHAIRPERSON: That is the letter dated 3 November 2010 from Lana Attorneys? A D V K AT E H O F M E Y R : I n d e e d C h a i r. CHAIRPERSON: Addressed to the Honourable Ms Mildred Oliphant Minister of Labour as well as Honourable Mr Richard Baloyi Minister of Public Service. That is the letter? A D V K AT E H O F M E Y R : I n d e e d C h a i r. C H A I R P E R S O N : Ye s . O k a y. 20 A D V K AT E H O F M E Y R : Ms Oliphant is it your evidence that until you received this last week from the Commission you have no recollection of receiving this letter? M S O L I P H A N T : I r e c e i v e d t h i s - t h i s c o p y y e s t e r d a y. A D V K AT E H O F M E Y R : Ye s t e r d a y ? M S O L I P H A N T : Ye s . Page 29 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : A n d y o u d o n o t r e c a l l s e e i n g i t i n 2 0 1 0 ? MS OLIPHANT: No. I do not recall seeing it in 2010. A D V K AT E H O F M E Y R : If I can just direct you to where this point is made … MS OLIPHANT: Huh-uh. A D V K AT E H O F M E Y R : I n t h e l e t t e r. Yo u w i l l f i n d i t a t p a g e 3 - 0 - 1 . I t i s t h e l a s t p a g e o f t h e l e t t e r. M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : 10 Yo u will see there is a heading “Reinstatement”. M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : D o y o u s e e t h a t ? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : T h e l a w y e r s f o r M r M a n y i r e c o r d t h e r e : “Mr Manyi has advised us that he met with the new Minister of Labour and they had a cordial interaction and Mr Manyi is excited at the prospect of working under the guidance and instruction of Minister Oliphant.” 20 MS OLIPHANT: As I have said it is either Mr Manyi misled his attorneys, because I did not … A D V K AT E H O F M E Y R : Yo u h a d h a d n o i n t e r a c t i o n ? MS OLIPHANT: I did not meet Mr Manyi on the 3rd. CHAIRPERSON: Is …? A D V K AT E H O F M E Y R : O r - o r p r i o r t o t h e 3 r d ? Page 30 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: Or prior to the 3rd. A D V K AT E H O F M E Y R : B e c a u s e h i s e v i d e n c e w a s o n t h e M o n d a y w h e n y o u f l e w u p t o O R Ta m b o h e m e t y o u a t t h e a i r p o r t . Yo u s a y t h a t i s false? MS OLIPHANT: No. I did not. CHAIRPERSON: Well it is - it is a long time ago. Just make sure you your recollection is fine. MS OLIPHANT: My recollection is that I met Mr Manyi after having discussions with Minister Baloyi and we met at Sheraton where I was 10 booked for accommodation. C H A I R P E R S O N : Ye s . M S O L I P H A N T : Ye s . CHAIRPERSON: But is - is your recollection so clear that you - you are certain it did not happen or is there a room that it might have happened? I am just thinking - wondering whether he might have - you k n o w t h i s l e t t e r w a s w r i t t e n i t w o u l d a p p e a r o n 3 N o v e m b e r. H e w o u l d have met you - would it have been the previous day if - if that had h a p p e n e d - o n S u n d a y ? Yo u a r r i v e d o n S u n d a y o r … ? MS OLIPHANT: I arrived on Monday morning at the airport. 20 CHAIRPERSON: Was the 3rd Monday? A D V K AT E H O F M E Y R : N o , t h e - t h e … MS OLIPHANT: It was no the 1st. A D V K AT E H O F M E Y R : F l i g h t u p w a s t h e 1 s t . M o n d a y. MS OLIPHANT: (Intervenes) was on the 1st. C H A I R P E R S O N : Ye s . Page 31 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : 1 N o v e m b e r. C H A I R P E R S O N : Ye s . Ye s . A D V K AT E H O F M E Y R : T h a t i s w h e n M r M a n y i ’s e v i d e n c e i n d i c a t e d h e met with Ms Oliphant … C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : A t t h e a i r p o r t . C H A I R P E R S O N : Ye s . Ye s . A D V K AT E H O F M E Y R : T h i s l e t t e r d a t e d 3 N o v e m b e r … C H A I R P E R S O N : J a . Tw o d a y s l a t e r. 10 A D V K AT E H O F M E Y R : I s t w o d a y s l e t t e r t h e W e d n e s d a y o f t h a t w e e k . C H A I R P E R S O N : Ye s . Ye s . T h e r e a s o n w h y I a m j u s t a s k i n g t h a t y o u try and make sure that you - you are certain whether you are saying no such encounter happened at all or you say it may have occurred. It is s i m p l y t h a t m a y b e i t m i g h t b e d i ff i c u l t t o t h i n k w h y h e w o u l d m a k e t h a t story up that he met you at the airport and two, the letter is written two d a y s a f t e r. So maybe his memory would have been much fresher when he spoke to his attorneys, but I just wants to make sure that you - you are able to say maybe it did happen. 20 I cannot remember because it has been a long time or you say no, no, no. I know it did not happen. If that is the position. M S O L I P H A N T : T h a n k y o u C h a i r. C h a i r, I - I d o n o t r e a l l y r e m e m b e r m e e t i n g h i m o n t h a t d a y, b e c a u s e w h e n I a r r i v e d w e f i n d p e o p l e w i t h the boards with our names and we just whisked to the cars. So I do not know when I can meet Mr Manyi that particular period. If I recall very Page 32 of 218 03 DECEMBER 2019 – DAY 195 well I did not meet with him, but may … CHAIRPERSON: He might not have - he not be talking about a formal meeting. He might be talking about seeing you coming through and then going to you. Greeting you, shaking hands and walking with you and talking a bit while you are on your way to your transport or w h a t e v e r. MS OLIPHANT: I do not recollect that Chairperson. C H A I R P E R S O N : Ye s . Ye s . MS OLIPHANT: I do not recall. 10 C H A I R P E R S O N : Yo u - y o u d o n o t r e c a l l ? MS OLIPHANT: No. C H A I R P E R S O N : O k a y. T h a n k y o u . A D V K AT E H O F M E Y R : M s O l i p h a n t i s y o u r e v i d e n c e t h a t t h e f i r s t t i m e you spoke to Mr Manyi after becoming Minister of Labour when he called you? M S O L I P H A N T : Ye s . T h a t - t h a t i s w h a t I r e c a l l , b e c a u s e t h a t i s w h e n he told me about intending to take us to court based on his dismissals. A D V K AT E H O F M E Y R : Was there any debate in your mind when you had that conversation with him that he understood that he had been 20 dismissed as the DG of Labour? MS OLIPHANT: That is what he said to me and that is why he was intending to take us to court or make an appeal. A D V K AT E H O F M E Y R : And your evidence as I understand it is that that occurred about two to three weeks … M S O L I P H A N T : Ye s . Page 33 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : A f t e r y o u b e c a m e M i n i s t e r. I s t h a t c o r r e c t ? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : Yo u b e c a m e M i n i s t e r a n d r e p l a c e d f o r m e r Minister Mdladlana. Is that correct? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : d o y o u … ? CHAIRPERSON: Just - just before you … A D V K AT E H O F M E Y R : Ye s . CHAIRPERSON: 10 M s H o f m e y r. That discussion that you have given evidence about between yourself and Mr Manyi about two/three weeks after your appointment. I think you said first it was in a telephone conversation. He called you and then later there was a meeting at the Sheraton Hotel. Is that correct? M S O L I P H A N T : Ye s C h a i r p e r s o n . CHAIRPERSON: Now you - you have said that he said he had been dismissed and he was going to take the department to court or - or was there some - somewhere else also there which he talked about? Was going to take you to court or where? A D V K AT E H O F M E Y R : 20 MS OLIPHANT: He said it is either he was going to make an appeal or take … CHAIRPERSON: Oh yes. MS OLIPHANT: The department to court. C H A I R P E R S O N : Ye s . M S O L I P H A N T : Ye s a n d t h a t i s w h y I i m m e d i a t e l y a f t e r t h a t d i s c u s s e d Page 34 of 218 03 DECEMBER 2019 – DAY 195 the matter with Minister Baloyi … C H A I R P E R S O N : Ye s . M S O L I P H A N T : To a d v i s e m e o n t h e m a t t e r, b e c a u s e I w a s j u s t n e w i n the department. C H A I R P E R S O N : Ye s . Mr - Mr Manyi gave evidence and said that he did not know that he had been dismissed. I think until he got correspondence from the Commission? A D V K AT E H O F M E Y R : C o r r e c t C h a i r. C H A I R P E R S O N : S o i n o t h e r w o r d s u n t i l t h i s y e a r. A r e - a r e y o u - a r e 10 you certain that that is what he said to you? d i s m i s s e d u n f a i r l y. That he had been I think that is what you said earlier on. That he said he had been dismissed unfairly and that he was going to take the department either to court or he was going to appeal. Are you certain that that is what he said? M S O L I P H A N T : Ye s C h a i r p e r s o n . T h a t i s w h a t h e s a i d . C H A I R P E R S O N : Ye s . MS OLIPHANT: And then also after that I asked the Acting DG … CHAIRPERSON: Hm. M S O L I P H A N T : To t e l l m e w h a t e x a c t l y h a s h a p p e n e d … 20 CHAIRPERSON: Hm. MS OLIPHANT: And he said the best people to - to brief me … CHAIRPERSON: Hm. M S O L I P H A N T : W a s t h e L e g a l S e r v i c e s Te a m … CHAIRPERSON: Hm. MS OLIPHANT: From the department … Page 35 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Hm. MS OLIPHANT: And he said he - he was going to arrange a meeting … CHAIRPERSON: Hm. M S O L I P H A N T : F o r m e w i t h t h e L e g a l S e r v i c e s Te a m … CHAIRPERSON: Hm. M S O L I P H A N T : A n d I m e t w i t h t h e L e g a l S e r v i c e s Te a m t h r e e - t w o o r three days after … CHAIRPERSON: Hm. MS OLIPHANT: Meeting with the Acting DG then … 10 CHAIRPERSON: Hm. MS OLIPHANT: A n d t h e - t h e L e g a l S e r v i c e s Te a m w a s l e d b y Advocate Baja (?)- Pascha (?). CHAIRPERSON: Hm. MS OLIPHANT: Who was the - who was the - the Head of the Legal Services … CHAIRPERSON: Hm. MS OLIPHANT: But there was also the - I think it was also A d v o c a t e To k o t a w h o w a s p a r t o f - h e w a s a l e g a l c o u n s e l … CHAIRPERSON: Hm. 20 MS OLIPHANT: And - and then they briefed me on what has happened, but also they did not give me the full briefing. That is why I had to go back to Minister Baloyi as well. C H A I R P E R S O N : I t h i n k M r To k o t a w a s s e n i o r c o u n s e l a l r e a d y. S o … A D V K AT E H O F M E Y R : I n d e e d . Ye s . C H A I R P E R S O N : I t i s - i t i s l i k e l y t h a t M r P a s c h a l e d t h e L e g a l Te a m . Page 36 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: Mr Pascha was leading the … CHAIRPERSON: Ja, but … M S O L I P H A N T : T h e L e g a l Te a m b a s e d o n … C H A I R P E R S O N : Ye s . MS OLIPHANT: The - the legal services of the department. CHAIRPERSON: No. No. No. That is fine. I know you are not a l a w y e r. S o I a m j u s t m e n t i o n i n g . M S O L I P H A N T : O k a y. C H A I R P E R S O N : Ye s . 10 MS OLIPHANT: Thank you. CHAIRPERSON: Ja. At least that was your understanding of the situation? M S O L I P H A N T : Ye s . C H A I R P E R S O N : J a . Yo u - y o u m a y p r o c e e d M s H o f m e y r. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. I f I c a n j u s t g o b a c k w a r d s a bit to Minister Mdladlana and your replacement of him. Were you given any explanation for why he was removed as Minister of Labour and you were to replace him? MS OLIPHANT: No. It was not my call, because my understanding is 20 that it is the ANC that deploys and redeploys. So I was under that principle in terms of understanding. A D V K AT E H O F M E Y R : Indeed. Just to be clear though. Did anyone ever tell you - give you a reason why he might have removed as Minister … MS OLIPHANT: No. Page 37 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : O f L a b o u r ? MS OLIPHANT: No. A D V K AT E H O F M E Y R : Ms Oliphant I - I understand your evidence to be that letter dated 3 November 2010 did not come to you at the time and you saw it for the first time when you were given it by the Commission. M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : I s t h a t c o r r e c t ? M S O L I P H A N T : Ye s . I t i s c o r r e c t . 10 A D V K AT E H O F M E Y R : T h e r e i s a n o t h e r r e c o r d a l i n t h a t l e t t e r … MS OLIPHANT: Huh-uh. A D V K AT E H O F M E Y R : A b o u t M r M a n y i ’s u n d e r s t a n d i n g o f w h y M r - Minister Mdladlana was removed. Yo u w i l l f i n d t h a t a t p a g e 2 - 9 - 9 i n EXHIBIT NN5. CHAIRPERSON: Did say why Mr - Minister Mdladlana was removed? A D V K AT E H O F M E Y R : Ye s a n d r e p l a c e d b y … CHAIRPERSON: Oh. Oh. A D V K AT E H O F M E Y R : M i n i s t e r O l i p h a n t . CHAIRPERSON: 20 O k a y. No. I thought you - it - I thought it was a mistake. A D V K AT E H O F M E Y R : O h . C H A I R P E R S O N : Yo u a r e l i n k i n g i t t o … A D V K AT E H O F M E Y R : A r e f e r e n c e t o … CHAIRPERSON: A dismissal of Mr Manyi? A D V K AT E H O F M E Y R : N o . Page 38 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : O k a y. A l r i g h t . A D V K AT E H O F M E Y R : W e a r e n o w a t - w h a t I w o u l d l i k e t o u n d e r s t a n d … CHAIRPERSON: What - what page did you say? A D V K AT E H O F M E Y R : 2 - 9 - 9 C h a i r. C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : It is the same letter we were looking at p r e v i o u s l y a n d M s O l i p h a n t j u s t t o b e c l e a r. I am - I am probing now what if anything you knew about the reasons for Mr Mdladlana being 10 removed as Minister of Labour and I understand your evidence to be you were not given a reason at the time. MS OLIPHANT: No. I did not know anything about that. A D V K AT E H O F M E Y R : There is a recordal here that I would just like your comment on then as to whether you have any knowledge about it a t a l l . Yo u w i l l s e e i n p a r a g r a p h 5 . 1 o n p a g e 2 - 9 - 9 w h a t t h e l a w y e r s f o r Mr Manyi there record is that - let me read it for the record: “Honourable Ministers, on 28 October 2010 …” Being the date of the hearing. Ms Oliphant that is a reference to the disciplinary hearing that Mr Manyi was involved at the 20 time. Just for context. The letter goes on and reads. “ T h e f o r m e r M i n i s t e r i n s t r u c t e d t h e D e p a r t m e n t ’s lawyers and the State Attorney to withdraw and abandon the charges against the DG as he had d e c i d e d t o t e r m i n a t e M r M a n y i ’s e m p l o y m e n t w i t h t h e d e p a r t m e n t w i t h e ff e c t f r o m 3 0 N o v e m b e r 2 0 1 0 . ” Page 39 of 218 03 DECEMBER 2019 – DAY 195 And then it goes on – and this is the relevant sentence: “Simply put the former Minister should have known that he was going to be axed as there was no other plausible reason for find in his favour for uncharacteristically withdrawing and abandoning charges against the DG only to accelerate his premature determination of the probation period which was o n l y d u e f o r r e v i e w 4 4 d a y s l a t e r. ” Do you see that? MS OLIPHANT: 10 Ye s . A D V K AT E H O F M E Y R : Did Mr Manyi every discuss with you that he thought Minister Mdladlana had been axed because of his conduct in firing Mr Manyi? MS OLIPHANT: No we did not discuss that. A D V K AT E H O F M E Y R : Would it be unusual to you to learn that a Minister would be removed because he had taken a decision to remove a DG? MS OLIPHANT: No I do not know that. A D V K AT E H O F M E Y R : But your understanding I have from your evidence previously is that the ANC as an organisation makes decisions 20 about deployments of Ministers, is that correct? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : Have you known the ANC ever to take a decision to remove a Minister and replace him because of the decision the former Minister took to fire a DG? MS OLIPHANT: That is the responsibility of the President. Page 40 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : MS OLIPHANT: Thank you. To d i s c u s s t h a t m a t t e r w i t h t h e A N C o ff i c i a l s , b e c a u s e h e i s a l s o t h e A N C o ff i c i a l . A D V K AT E H O F M E Y R : Thank you. M s O l i p h a n t l e t ’s t h e n m o v e t o the place that you were when the Chair was asking you questions, because that was when you started finding out what had happened with Mr Manyi when he was in the Department. So can we just go back to get the chronology right. Yo u f i r s t g e t a c a l l f r o m M r M a n y i , i s t h a t correct, and that is two or three weeks after you have taken up the 10 position of Minister of Labour? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : Until that point who is occupying the position of Director General? MS OLIPHANT: It was the Acting DG Mr Sam Morotoba. A D V K AT E H O F M E Y R : And then please tell us what you did after you received that call from Mr Manyi. MS OLIPHANT: I a s k e d M r S a m M o r o t o b a t o b r i e f m e o n t h e l e t t e r, a s the Acting DG, and he said the best people to give me the briefing is t h e L e g a l S e r v i c e Te a m f r o m t h e D e p a r t m e n t . 20 A D V K AT E H O F M E Y R : Thank you, and then I understand we can pick i t u p i n y o u r a ff i d a v i t a t p a g e 4 , p a r a g r a p h 11 , y o u s a y a t t h e e n d o f t h a t p a r a g r a p h 11 y o u s a y a t t h e e n d o f t h a t p a r a g r a p h p r e c i s e l y w h a t you have indicated in the evidence, you called Mr Morotoba, and he s a i d h e w o u l d a r r a n g e a m e e t i n g w i t h t h e D e p a r t m e n t ’s L e g a l S e r v i c e s who were familiar with the issues. Page 41 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: Hmm. A D V K AT E H O F M E Y R : And then you go on at paragraph 12 to indicate t h a t t w o o r t h r e e d a y s l a t e r y o u m e t w i t h t h a t L e g a l S e r v i c e s Te a m , correct? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : And just to go back for us if you will and tell us what was conveyed to you at that meeting? MS OLIPHANT: I n t h a t m e e t i n g t h e y d i d n o t – t h e L e g a l Te a m d i d n o t give me the full information, except that they said Mr Manyi was 10 dismissed, and one of the reasons was that he didn’t respect the M i n i s t e r. A D V K AT E H O F M E Y R : And at that point did you ask to see any files relating to Mr Manyi, did you ask for a disciplinary file to be provided to you? MS OLIPHANT: Advocate Pascha said all the files are with the Department for Public Service and Administration. A D V K AT E H O F M E Y R : Did you have occasion to obtain those files at any point? MS OLIPHANT: 20 No I did not precisely because when he was saying he is intending to appeal or go to court, of course he was not going to appeal to the Minister of Labour then because he was dismissed by the Minister of Labour so he had to appeal, his appeal was supposed to go to the Public Service and Administration. A D V K AT E H O F M E Y R : H o w d o y o u c o m e t o t h a t v i e w, t h a t t h e a p p e a l had to go to the Department of Public Service and Administration? Page 42 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: It is because you cannot appeal to the very same Department that has dismissed you and the Public Service and Administration they do have Public Service Commission, ja that was my v i e w a n d t h a t i s w h y I h a d t o a p p r o a c h M i n i s t e r B a l o y i o n t h e m a t t e r. A D V K AT E H O F M E Y R : Thank you. Manyi this and receiving In your course of dealing with Mr information from the Legal Services Department did you ever have occasion to consider the charges that Mr Manyi faced in his disciplinary proceedings? MS OLIPHANT: 10 No I did not because Mr Manyi – when we met with Mr Manyi at Sheraton he brought three big files and I said no since he wants to appeal the only way that he has to do is to appeal to the Minister for Public Service and Administration and because I had the information on how the processes are done, then I further requested Minister Baloyi to say can you look at the procedures whether they were done properly or not, because he is the custodian of Public Services Act. A D V K AT E H O F M E Y R : Thank you. S o j u s t t o b e c l e a r, y o u d i d n o t ever obtain his disciplinary file and look at it yourself? MS OLIPHANT: 20 No. A D V K AT E H O F M E Y R : Yo u d i d n o t e v e r o b t a i n i n f o r m a t i o n a b o u t t h e charges that he faced, correct? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : And you didn’t obtain information about his responses to those charges correct? MS OLIPHANT: No. Page 43 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : No you didn’t obtain information of his responses? MS OLIPHANT: Ye s b e c a u s e w h e n I m e t w i t h h i m h e i n d i c a t e d t h a t there are issues that he is concerned with, particularly because, one, in terms of any decision that he was supposed to take the approval was d o n e t h r o u g h s u b m i s s i o n s a n d t h e n t h a t ’s w h y h e w a s s a y i n g h e w a s going to take us to court or appeal the decision because everybody was involved in that and I said therefore if he appeals then they have to deal with all those issues through the Minister for Public Service and 10 Administration. A D V K AT E H O F M E Y R : And when he brought the three files to your meeting you did not take them from him? MS OLIPHANT: No I did not take any file from him. A D V K AT E H O F M E Y R : Thank you. I would then like to move a little b i t f u r t h e r o n i n t h e c h r o n o l o g y, b e c a u s e t h e r e w a s a l e t t e r t h a t M r Baloyi wrote to you at the end of November 2010, it is a letter that you have also been provided by the Commission, you will find it in EXHIBIT NN5 at page 216. MS OLIPHANT: 20 Ye s I s e e t h e l e t t e r. A D V K AT E H O F M E Y R : Do you recall receiving this letter in November of 2010? MS OLIPHANT: Even if I can’t recall but what I can recall is that I discussed the matter informally as well, I think we were in the National Assembly with Minister Baloyi before the letter came, because he told me that he has written a letter but I said there is no letter that I have Page 44 of 218 03 DECEMBER 2019 – DAY 195 received and then he briefed me that well based on what I briefed him about and also to look at whether the procedures were followed properly then he has decided and also he wants to advise me that I must write a letter for withdrawal and then put him on a special leave a n d t h a t ’s w h a t I d i d , b u t I d i d t h a t a f t e r a l s o f u r t h e r d i s c u s s i o n t h o s e i s s u e s w i t h t h e L e g a l Te a m o f t h e D e p a r t m e n t . A D V K AT E H O F M E Y R : R i g h t s o l e t ’s j u s t g o t o t h i s l e t t e r i t s e l f i f w e m a y, y o u s a y y o u a r e n o t c e r t a i n t h a t y o u r e c e i v e d t h i s l e t t e r i s t h a t correct? 10 MS OLIPHANT: Probably I may receive it but I think I received it, it is either at a later stage not before we further discussed the matter because Minister Baloyi told me in the National Assembly before it rises t h a t , o n e , h e h a s w r i t t e n a l e t t e r, o f w h i c h I s a i d I h a v e n o t y e t r e c e i v e d t h e l e t t e r, b u t h e b r i e f e d m e o n w h a t i s i t t h a t w e h a v e t o d o i n t e r m s o f the procedures, so that is why at a later stage I wrote that letter that was withdrawing the dismissal and the I said I am putting Mr Manyi on a special leave until further notice. A D V K AT E H O F M E Y R : Well let us look at what is contained as Mr B a l o y i ’s a d v i c e i n t h i s l e t t e r, y o u w i l l f i n d t h a t i n t h e c o n c l u d i n g , w e l l 20 the penultimate paragraph on page 217. MS OLIPHANT: Hmm. A D V K AT E H O F M E Y R : And page 217 in paragraph 3 he says: “In light of my observations in paragraph 2 above you are advised to ...” And then there are four things set out there. Ms Oliphant did you have Page 45 of 218 03 DECEMBER 2019 – DAY 195 occasion to read this letter when you received it from the Commission? MS OLIPHANT: Ye s I d i d . A D V K AT E H O F M E Y R : What did you understand the advice to be that was reflected in the previous paragraphs of the letter? MS OLIPHANT: Firstly was to give enough time for Minister Baloyi to look whether the matter was done procedurally and secondly to give h i m e n o u g h t i m e t o d e a l a n d f i n a l i s e t h e m a t t e r, s o t h a t ’s w h y a s w e l l because if you look at C under paragraph 3 it says I must place him on two weeks special leave to allow us space to find a suitable solution to 10 t h i s m a t t e r. I decided not to give him only two weeks based on my experience as a shop steward, as a former shop steward because when you deal with the cases when it comes to disciplinary hearings in the work place it does not take two weeks, so I decided to say this is special leave until further notice. A D V K AT E H O F M E Y R : L e t ’s j u s t g o b a c k a m o m e n t b e c a u s e m y question might not have been entirely clear and I apologise for that, what – in paragraph 2 of the letter which starts on the previous page. Minister Baloyi sets out there certain observations that he makes, as I understand your evidence because he has been looking into this for 20 you, is that correct? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : And what did you understand him to have determined in relation to the dismissal of Mr Manyi? MS OLIPHANT: To m e i t w a s s a y i n g f i r s t l y t h e p r o p e r p r o c e d u r e s w e r e not followed, precisely because if you recall or if I recall, but I believe Page 46 of 218 03 DECEMBER 2019 – DAY 195 all of us we can recall that, around 2000 there was a court case between the Minister and the DG, I was still a member of Parliament at that particular time, and everybody knew about it, where the Court made a ruling to say the Minister does not have powers, one, to discipline or to dismiss, without the authority from the President, and everybody knew about that particular issue at that particular time. A D V K AT E H O F M E Y R : MS OLIPHANT: What time was that Ms Oliphant? I think it was around 2000, if I am not mistaken. A D V K AT E H O F M E Y R : 10 Oh, is it not the decision involving the Director G e n e r a l o f H o m e A ff a i r s ? CHAIRPERSON: Mr Apleni A D V K AT E H O F M E Y R : MS OLIPHANT: Mr Apleni. No, it was the decision dealing with the issue of the Minister for – it was for Intelligence then. A D V K AT E H O F M E Y R : MS OLIPHANT: O h , t h e M r M a s e t l a ’s d e c i s i o n . Masetla, yes, yes. A D V K AT E H O F M E Y R : Right, no indeed, that is a particular provision governed by its own legislation but is that the one of which you were aware? 20 MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : Thank you. So you understood his observations to be that proper process had not been followed, is that correct? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : And part of that related to the issue of who Page 47 of 218 03 DECEMBER 2019 – DAY 195 has the power to appoint or dismiss, is that correct? MS OLIPHANT: Ye s . A D V K AT E H O F M E Y R : Do you accept that Mr Masetla as the Head of the National Intelligence Agency is not necessarily in the same position as a Director General in the Ministry of Labour or was that not something you considered? MS OLIPHANT: The reason why I left it and also take the advice or took the advice from Minister Baloyi is precisely because he understand very clearly the Public Service Management Act. 10 A D V K AT E H O F M E Y R : Indeed. Chair I see we are just at quarter past eleven, it may be a convenient time to take the break. CHAIRPERSON: Ye s , w e w i l l t a k e t h e t e a a d j o u r n m e n t a n d w e w i l l resume at half past eleven. We adjourn. REGISTRAR: All rise. I N Q U I RY A D J O U R N S I N Q U I RY R E S U M E S CHAIRPERSON: Okay let us proceed. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. M s O l i p h a n t I w o u l d s t i l l l i k e 20 us to spend a bit more time on that letter that we were looking at before the break. But before we go back there can I just ask what at this stage was your attitude to having Mr Manye come back into the Department of Labour as Director General? MS OLIPHANT: I must say based on – I did not have a negative attitude but based on the – the letter that I received immediately from Page 48 of 218 03 DECEMBER 2019 – DAY 195 t h e R e p o f N E H AW U i m m e d i a t e l y t h e r e w a s a – a r e d l i g h t r e f l e c t i o n that says - i t m e a n s t h e o ff i c i a l s a r e d i v i d e d i n t h e d e p a r t m e n t . So there was instability and also based on what Advocate Dakota said that particular time so I just requested that I will be very happy if he can be transferred to any other department wherever there are positions in – in any other department so that I create the stability in the department. A D V K AT E H O F M E Y R : I n y o u r a ff i d a v i t … C H A I R P E R S O N : J u s t o n e s e c o n d M s H o f m e y r. A D V K AT E H O F M E Y R : A p o l o g i e s C h a i r. 10 C H A I R P E R S O N : M a y b e t h e a i r c o n d i t i o n e r c a n b e e i t h e r s w i t c h e d o ff for now or I will – it can be lowered a bit. I think it may be interfering with me hearing what the witness is saying. But if it becomes hot we w i l l – w e w i l l p u t i t o n a g a i n . Ye s t h a n k y o u . A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. M s O l i p h a n t i n y o u r a ff i d a v i t a n d y o u w i l l f i n d t h a t i n E x h i b i t N N 3 a t p a g e 6 p a r a g r a p h 1 7 . Yo u d e a l there with your attitude to having Mr Manyi return to the Department of L a b o u r. I f y o u p i c k i t u p m i d w a y d o w n t h a t p a r a g r a p h y o u s a y : “I then requested Mr Baloyi to please transfer Mr Manyi to another department for the following two reasons. 20 a. The fact that he was dismissed by the Department of Labour and b. Because I wanted to create stability within the department.” I w o u l d l i k e t o f o c u s o n a t h e r e . W h a t d o y o u m a n w h e n y o u s a y, o n e of the reasons you wanted him transferred out of the Department of Page 49 of 218 03 DECEMBER 2019 – DAY 195 Labour was that he had been dismissed by the Department of Labour? MS OLIPHANT: I think that was not the permanent attitude because Minister Baloyi indicated after having discussed with him if he can be transferred to another department. He said, if he is able to get any other Minister who will allow Mr Manyi to be transferred to that particular department then it will be fine but if he does not get any positive results then he will be forced to transfer Mr Manyi back to the department. So I was not going to have any choice if that is what happened. 10 A D V K AT E H O F M E Y R : M s O l i p h a n t j u s t h e l p m e t h e r e . H e w o u l d n o t have been transferred back to the department. If you withdrew his termination he would have been reinstated as the Director General of t h e D e p a r t m e n t o f L a b o u r, i s t h a t c o r r e c t ? M S O L I P H A N T : Ye s b u t t h a t i s w h y I p u t h i m o n a s p e c i a l l e a v e s o t h a t the processes by Minister Baloyi should be finalised before. A D V K AT E H O F M E Y R : W h a t w e r e t h o s e p r o c e s s e s ? MS OLIPHANT: In procedurally or not. terms of whether the dismissal was done As I have indicated that I requested Minister Baloyi to look at the procedures whether they were implemented 20 correctly or not. A D V K AT E H O F M E Y R : B u t M s O l i p h a n t a s I u n d e r s t a n d y o u r p r e v i o u s evidence Mr Baloyi had already done that exercise. He determined that the procedures were not followed and that is why he recommended that you consider withdrawing the termination, is that correct? M S O L I P H A N T : Ye s . B u t I d i s c u s s e d t h e i s s u e o f t r a n s f e r a t a n e a r l y Page 50 of 218 03 DECEMBER 2019 – DAY 195 stage not only after the – the process was finalised. A D V K AT E H O F M E Y R : Well that is inconsistent with what you say at p a r a g r a p h 1 7 o n p a g e 6 . Yo u s e e a t p a r a g r a p h 1 7 o n p a g e 6 y o u s a y : “ I n o r a r o u n d J a n u a r y 2 0 11 M r B a l o y i i n f o r m e d m e that he had finalised the process regarding Mr Manyi. He further informed me that in accordance with procedures Mr Manyi would either have to return to the Department of Labour or be transferred to another department. 10 Yo u s a y M r B a l o y i d i d n o t inform me of what procedures were followed nor of their outcomes.” And then you say: “I requested Mr Baloyi to transfer Mr Manyi to another department.” And the first reason you give for that is the fact that he was dismissed b y t h e D e p a r t m e n t o f L a b o u r. So what did you mean when you said here you wanted him transferred out of the Department of Labour because he had been dismissed by that department? MS OLIPHANT: It is based on – or based on the information that was 20 given to me by Advocate Dakota to say he did not respect the Minister t h e n a n d t h e r e f o r e a l s o b a s e d o n t h e – t h e d e m a n d b y N E H AW U s o I saw that if he will be returned to the department then there is going to b e i n s t a b i l i t y. A D V K AT E H O F M E Y R : H m . MS OLIPHANT: And in fact when I was given this evidence initially we Page 51 of 218 03 DECEMBER 2019 – DAY 195 started with that statement that says I have requested even Minister Baloyi to consider transferring him to another department. A D V K AT E H O F M E Y R : Do you accept that if that transfer had not taken place though you would have had him back as your DG? MS OLIPHANT: Of course I was not going to have any choice. A D V K AT E H O F M E Y R : Hm. And would your concerns about stability have remained? MS OLIPHANT: I was going to get for example the advice also from Minister Baloyi through the Public Service Commission because that is 10 what – I have learnt that that is what the Public Service Commission a l s o d o t o a s s i s t t o c r e a t e t h e s t a b i l i t y w i t h i n d i ff e r e n t d e p a r t m e n t s . A D V K AT E H O F M E Y R : R i g h t s o i f w e g o b a c k t o t h a t l e t t e r w h i c h M r Balyoi wrote at the end of November you will find that in Exhibit NN5. We were looking at it before the break. MS OLIPHANT: Hm. A D V K AT E H O F M E Y R : A n d a t p a g e 2 1 7 o f t h a t E x h i b i t . M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : Mr Baloyi sets out in paragraph 3 there his advice based on his observations. 20 M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : We have dealt with a the withdrawal of the M i n i s t e r – t h e f o r m e r M i n i s t e r ’s l e t t e r w h i c h t e r m i n a t e d t h e D G ’s services. I will come back to that in a moment. I would like to look at b. H e a d v i s e s y o u t o e x t e n d t h e D G ’s p r o b a t i o n f o r a n o t h e r f o u r months. Did you do that? Page 52 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: When I put him on a special leave it also covered that particular four months. A D V K AT E H O F M E Y R : H o w d i d i t c o v e r t h a t ? M S O L I P H A N T : B e c a u s e t h e w i t h d r a w a l o f t h e d i s m i s s a l w a s e ff e c t i v e as from the 1 December of which the – the dismissal was supposed to s t a r t o n t h e 1 D e c e m b e r. A D V K AT E H O F M E Y R : So were you aware that Mr Manyi was on probation before he was dismissed? MS OLIPHANT: I think – I cannot recall but I think I did not have the 10 full information about that because it was said he was the Director General. A D V K AT E H O F M E Y R : Yo u s e e – b e c a u s e t h e d i ff i c u l t y I h a v e w i t h your answer is the probation that Mr Manyi was on ceased on the 30 November 2010. That is why Mr Baloyi and we will query him on this w h e n h e c o m e s t o g i v e e v i d e n c e l a t e r. B u t i f h e h a d l o o k e d i n t o t h i s h e w o u l d h a v e e s t a b l i s h e d t h a t M r M a n y i ’s p r o b a t i o n e n d e d o n t h e 2 0 November 2010 and that is why he is saying to you, you need to extend that probation for another four months. Do you see that? M S O L I P H A N T : Ye s . 20 A D V K AT E H O F M E Y R : So what action did you take to extend his probation? MS OLIPHANT: The letter that was written by Minister Baloyi he wrote i t o n t h e 2 9 t h N o v e m b e r. A D V K AT E H O F M E Y R : H m . MS OLIPHANT: And then according to the dismissal Mr Manyi was Page 53 of 218 03 DECEMBER 2019 – DAY 195 supposed to leave the department as from the 1 December and therefore based on that advice that is why I said I withdrew the dismissal and automatically it reinstated Mr Manyi and that is why I had to put him on a special leave. A D V K AT E H O F M E Y R : Ms Oliphant special leave is something d i ff e r e n t t o p r o b a t i o n , d o y o u a g r e e w i t h t h a t ? MS OLIPHANT: N o i t i s n o t d i ff e r e n t f r o m p r o b a t i o n b e c a u s e h e w a s part of the – the institution as the Director General. So even the probation my understanding was that when I give him this special leave 10 automatically even the probation was going to be included in that. A D V K AT E H O F M E Y R : But why then does Mr Baloyi deal with probation and special leave as two separate aspects in paragraph 3? MS OLIPHANT: Unfortunately I cannot respond on behalf of Mr Baloyi. I think it will be better of – for Minister Baloyi to respond on but not me. A D V K AT E H O F M E Y R : S o w h a t d i d y o u u n d e r s t a n d t h e d i ff e r e n c e t o be between probation of four months and special leave of two weeks? MS OLIPHANT: The reason I have indicated that – the reason why I said I put him on the probation until – I mean on the special leave until 20 further notice it was because I was of the view and also after discussing the matter with the legal services in the department that will give enough time for Minister Baloyi to deal with the procedural issues and then to have enough time to deal with those particular issues. Rather than to say it is going to be just for two weeks and in fact I even i n d i c a t e d t o h i m t o s a y, i f w e g i v e h i m t w o w e e k s i s i t n o t g o i n g t o b e a Page 54 of 218 03 DECEMBER 2019 – DAY 195 shorter period of time? A D V K AT E H O F M E Y R : W h a t i s t h e – y o u r u n d e r s t a n d i n g o f t h e r e a s o n t h a t D G ’s a r e p u t o n p r o b a t i o n ? MS OLIPHANT: T h e r e a s o n s f o r D G ’s t o b e p u t o n p r o b a t i o n i s i n terms of the Public Service Management Act because one in that particular time the DG must perform according to the government programs and then the – while they are doing probation if there are weaknesses then the Minister must also guide the Director General on how he or she has to perform in terms of the role of that particular 10 department. A D V K AT E H O F M E Y R : So would it be fair to say that probation is there to enable the employer to test the performance of the DG? M S O L I P H A N T : Ye s i n t e r m s o f t h e L a b o u r R e l a t i o n s A c t t h a t i s w h a t h a p p e n s e v e n b e y o n d t h e P u b l i c S e r v i c e e v e n i n t h e p r i v a t e s e c t o r. A D V K AT E H O F M E Y R : H m . MS OLIPHANT: When you put a – when you employ a person you put that person in a probation period of time and then while that person is on probation it is the responsibility of for example when it comes to the D G ’s o f t h e e x e c u t i n g a u t h o r i t y t o m a k e s u r e t h a t h e o r s h e p e r f o r m s 20 according to the – the strategic plan or the – the role of the department including the – the performance agreement that the Director General has signed. A D V K AT E H O F M E Y R : H o w c a n y o u t e s t o r m o n i t o r t h e p e r f o r m a n c e o f a DG who is on special leave? M S O L I P H A N T : Yo u c a n n o t t e s t t h a t b e c a u s e i f h e h a s b e e n p u t o n a Page 55 of 218 03 DECEMBER 2019 – DAY 195 special leave it is because there is something that is happening for example on this one there was an investigation of whether the processes were done correctly or not. A D V K AT E H O F M E Y R : M s O l i p h a n t y o u s e e m y d i ff i c u l t y i s I understand your evidence to be you did not put him on probation because you thought this special of an indefinite nature would take care of the need for probation, is that your evidence? MS OLIPHANT: I cannot say that per se but I must say my understanding is that when I withdrew the dismissal immediately 10 whatever it was supposed to be happening it was part of that. So even the issue of probation. So what was going to happen was that: 1. When he comes back because I was not there for a long time in t h e d e p a r t m e n t I w a s j u s t n e w. S o I w a s e v e n g o i n g t o r e q u e s t Minister Baloyi to further deal with that particular issue particularly because that was going – in fact when it comes to the interviews whether it is under the – the performance when it comes to monitoring Public Service Commission assists the various departments. So even if I was going to have that then we were going to have the interview of him assisted by the Public 20 Service Commission. A D V K AT E H O F M E Y R : B u t y o u n e e d t o e x t e n d t h e p r o b a t i o n i n o r d e r for there still to be a need for Mr Manyi to pass his probation period, do you not? MS OLIPHANT: Then Minister Baloyi was going to advise me on the m a t t e r. Page 56 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : W e l l h i s a d v i c e … MS OLIPHANT: That is why I am saying when I put him on a special leave it was based on the advice and also based on the issues that were being investigated whether the – his dismissal was done procedurally or not. A D V K AT E H O F M E Y R : summarises as I Ms Oliphant this letter as we have read it understand it and you can tell me if your u n d e r s t a n d i n g i s d i ff e r e n t t h o s e i n v e s t i g a t i o n s t h a t M r B a l o y i m a d e a n d his determination that Mr Manyi had been unfairly dismissed, is that 10 your understanding of this letter? MS OLIPHANT: Well I think Minister Baloyi can explain that because he did not give me the full details on what exactly has happened but accordingly based on the advice it was clear that the proper procedures were not followed. A D V K AT E H O F M E Y R : Ye s . S o I a m i n t e r e s t e d i n y o u r u n d e r s t a n d i n g . I am not interested in what Mr Baloyi thought when he was writing this. Because I am interested in the decisions that you took after you got t h i s l e t t e r. M S O L I P H A N T : Ye s . 20 A D V K AT E H O F M E Y R : So the first thing he advises you to do is to w i t h d r a w t h e f o r m e r M i n i s t e r ’s l e t t e r w h i c h t e r m i n a t e d t h e D G ’s services, correct? M S O L I P H A N T : Ye s i t i s c o r r e c t . A D V K AT E H O F M E Y R : The second thing he advises you to do is to e x t e n d t h e D i r e c t o r G e n e r a l ’s p r o b a t i o n f o r a n o t h e r f o u r m o n t h s . Page 57 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: Hm. A D V K AT E H O F M E Y R : W h a t w a s y o u r r e s p o n s e t o t h a t a d v i c e ? MS OLIPHANT: During our discussions with Minister Baloyi we talked – because as I have said we – we discussed the matter informally b e f o r e I r e c e i v e d t h e l e t t e r. 1. Was to withdraw the letter that terminated the DG and also to put him on a special leave and that is what was the main discussions with the two of us. And then later – I mean the letter probably came later after we have finalised everything. 10 A D V K AT E H O F M E Y R : S o d i d y o u n e v e r t a k e a d e c i s i o n n o t t o e x t e n d his probation? MS OLIPHANT: No I did not because I was not going to do that precisely because I – I had not worked with him. CHAIRPERSON: Ms Hofmeyr you must remember that from my point of v i e w M s O l i p h a n t ’s e v i d e n c e i n r e l a t i o n t o – a c t u a l l y a n y w i t n e s s ’ evidence with regard to Mr Manyi is only important as I see it insofar as it may throw light on the reasons for the transfer of Mr Maseko or the particular decision to replace him with Mr Manyi. If there is something else that you have picked up you can let – let – you can tell me. But 20 whatever – whatever irregularities may have been there in how – whether it is Mr Baloyi or Ms Oliphant dealt with Mr Manyi if it does not throw – if they do not throw light on those issues there – there might be d i ff i c u l t y. But if you have in mind certain issues that might have escaped me you can mention them. So I – I would not like us to take too long with her unless it becomes clear that her evidence does throw Page 58 of 218 03 DECEMBER 2019 – DAY 195 light on – on why Mr Maseko was transferred or why the replacement was Mr Manyi. Ja. A D V K AT E H O F M E Y R : C h a i r i f I m a y j u s t t a k e a m o m e n t i n r e l a t i o n t o that concern of yours? C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : What I propose to pursue with Ms Oliphant is not only the selection of Mr Manyi as the replacement but the terms on which he joined GCIS. Because Chair you will recall he was in a probation period. 10 C H A I R P E R S O N : Ye s , y e s . A D V K AT E H O F M E Y R : W h e n t h e d i s m i s s a l d e c i s i o n w a s t a k e n . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : Which means that there had not yet been a determination as to whether he met the standards of performance. C H A I R P E R S O N : W h e t h e r h e w a s s u i t a b l e . Ye s , y e s . A D V K AT E H O F M E Y R : I t i s r e l e v a n t a s t h e f a c t s d e v e l o p e d . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : I t i s m y s u b m i s s i o n . C H A I R P E R S O N : Ye s . 20 MS OLIPHANT: That when he is moved on the 2 February to GCIS. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : H e g o e s t h e r e w i t h o u t a n y p r o b a t i o n p e r i o d . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : A p p l i c a b l e . C H A I R P E R S O N : Ye s . Page 59 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : H e g o e s t h e r e w i t h o u t a n y c h a r g e s w h i c h h a v e not previously been – been withdrawn. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : B u t a r e e x t a n t . C H A I R P E R S O N : Ye s , y e s . A D V K AT E H O F M E Y R : I n e s s e n c e h e g o e s t h e r e w i t h a b s o l u t e l y c l e a n bill of health. C H A I R P E R S O N : Ye s , y e s . A D V K AT E H O F M E Y R : To s e r v e o u t t h e r e m a i n i n g y e a r a n d a b i t o f h i s 10 contract of employment. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : A n d s o i t w i l l b e o u r s u b m i s s i o n i n d u e c o u r s e not only that the selection may be relevant. CHAIRPERSON: Hm. M S O L I P H A N T : To t h e e v i d e n c e . CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : B u t t h e t e r m s o n w h i c h h e w e n t t h e r e . CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : 20 And it was as I understand the legal position M r O l i p h a n t ’s r o l e t o d e t e r m i n e w h e t h e r t o e x t e n d t h e p r o b a t i o n . CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : A s I u n d e r s t a n d h e r e v i d e n c e s h e d i d n o t t a k e a decision in that regard. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : Which means as a consequence of these Page 60 of 218 03 DECEMBER 2019 – DAY 195 events. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : M s M a n y i m o v e s t o G C I S o n t h e 2 F e b r u a r y. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : With no probation in terms of which his performance will be assessed. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : A n d f u r t h e r m o r e w i t h n o c h a r g e s a g a i n s t h i m . CHAIRPERSON: Hm. 10 A D V K AT E H O F M E Y R : S o t h a t i s t h e b a c k g r o u n d f o r w h y t o p r o b e t h i s at all. CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : C h a i r. CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : submissions will be It is the full context which in due course our of whether there was irregularity in this appointment. CHAIRPERSON: Hm. I take what you say to mean that you are saying that whatever irregularities there may have been in the withdrawal of 20 his dismissal and his transfer you want to say in the end they t r a n s f e r r e d i n t o M r M a s e k o ’s p o s i t i o n s o m e b o d y w h o w a s i r r e g u l a r l y transferred or somebody who was unsuitable to put in there. Now that may be – that may be so I think the question would still arise that appointment that transfer and so what in relation to the transfer of Mr M a s e k o ? A w r o n g d e c i s i o n a n d s o o n . Yo u s e e i t i s o n e t h i n g i f – i f Page 61 of 218 03 DECEMBER 2019 – DAY 195 w h a t w o u l d e m e r g e i s a c o n c e r t e d e ff o r t – m a y b e t h a t i s n o t t h e c o r r e c t term. M a y b e a c o n c e r t e d e ff o r t t o p u t i n t o M r M a s e k o o r t o G C I S a particular individual as opposed to just somebody who may be needing to be transferred to some other department and GCIS happens to be – t o h a v e a v a c a n c y. Of course there might be a lot of things that you and other members of the legal team might have to say later on about that. I just want you to be alert that I am trying to keep an eye that we – we remain focused on – on the important aspects. So I think continue but I would like us not to take too long before we finish if possible. 10 A D V K AT E H O F M E Y R : I n d e e d C h a i r. C H A I R P E R S O N : To f i n i s h w i t h h e r. J a . A D V K AT E H O F M E Y R : Indeed. It will in due course be our submission. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : T h a t t h e r e a r e v a r i o u s – t h e r e i s c o n d u c t t h a t n e e d s t o t a k e p l a c e i n o r d e r f o r s t a t e c a p t u r e t o o c c u r w i t h i n a s o c i e t y. CHAIRPERSON: Hm. ADV K AT E HOFMEYR: And irregular removals appointments. 20 CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : M a y b e p a r t o f t h a t p r o j e c t . CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : C h a i r w e f u l l y a c c e p t . CHAIRPERSON: I think that – that may be so. Ja. A D V K AT E H O F M E Y R : T h a t y o u w o u l d n e e d i n a d d i t i o n . Page 62 of 218 and irregular 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : C e r t a i n f u r t h e r f a c t s . CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : B u t t h o s e a r e t h e f a c t s t h a t w e a r e s e e k i n g t o probe. C H A I R P E R S O N : Ye s . O k a y. A D V K AT E H O F M E Y R : A n d w e a d d r e s s e d w i t h M r M a n y i p r e c i s e l y t h e role that he played in relation to spend with TNA. CHAIRPERSON: Hm. 10 A D V K AT E H O F M E Y R : A f t e r h e j o i n e d G C I S . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : I – b u t C h a i r. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : But mindful of that concern Ms Oliphant if I may then go to D – 3D on page 217 because you have dealt with C which was the special leave and you have explained why you placed him on indefinite special leave and not two weeks. But D says during that two weeks that he is on special leave you should decide whether or not to pursue misconduct charges against Mr Manyi. What decision did 20 you take in that regard? C H A I R P E R S O N : W a i t I a m s o r r y. I a m s o r r y M s H o f m e y r. I m a y h a v e missed this but you did deal earlier on with the question of probation. Did you – did you know or appreciate at the time of deciding to w i t h d r a w M r M a n y i ’s d i s m i s s a l t h a t w h e n h e w a s d i s m i s s e d h e w a s s t i l l on probation? Page 63 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: I must say Chairperson I – I think I did not look at the issue of – of Mr Manyi being on probation on that particular time. Because I – I was just relying on the advice of Minister Baloyi precisely because he was dealing with the whole issues as I have requested him to do so. CHAIRPERSON: Well you – you – you said earlier on in response to a q u e s t i o n b y M s H o f m e y r t h a t y o u d i d n o t a s k f o r M r M a n y i ’s d i s c i p l i n a r y file and you understood that either the file or certain files relating to Mr M a n y i w e r e i n M r B a l o y i ’s d e p a r t m e n t , i s t h a t r i g h t ? 10 M S O L I P H A N T : Ye s t h a t i s w h a t t h e l e g a l s e r v i c e s t e a m C h a i r p e r s o n told me. C H A I R P E R S O N : Ye s . MS OLIPHANT: That already the files. C H A I R P E R S O N : Ye s . MS OLIPHANT: A r e w i t h t h e o ff i c e o f M i n i s t e r B a l o y i i n t h e P u b l i c Service. C H A I R P E R S O N : Ye s . MS OLIPHANT: And Administration. CHAIRPERSON: Well I must just say that I am concerned by the fact 20 that you come into the department – into a department, you are a new M i n i s t e r, y o u u n d e r s t a n d t h a t t h e D G h a s b e e n d i s m i s s e d b u t y o u d o not seem to want to fully inform yourself of the reasons why he was dismissed. Particularly when 1. He has said to you the same DG he is going to take the department to court. He is going to lodge an appeal because Page 64 of 218 03 DECEMBER 2019 – DAY 195 that means it is somebody who still wants to come back to your department and I would have thought that you would want to fully inform yourself so that you can take a view whether what to do with him. Even if you are going to get advice from somebody else because you are the Minister of the department he wants to be back in this department as DG. MS OLIPHANT: T h a n k y o u C h a i r. was just new in this deployment. Chair as I indicated earlier that I I have not been appointed as the Minister before and that is the reason why I have requested Minister 10 Baloyi to act on the matter so that he can be able to advise me on what h a s h a p p e n e d w h e t h e r e v e r y t h i n g w a s d o n e p r o c e d u r a l l y. S o i f h e w a s going to be redeployed to the department or reinstated to the department of course that is when I was going to take through the issues on why firstly he was dismissed to have the full reasons. Now as part of understanding that he has already lodged the appeal no was going to take us to court my understanding was that since the files were with the Public Service and Administration so there was no need for me to get the full details. Probably that was my mistake. C H A I R P E R S O N : Ye s I t h i n k – I t h i n k i t – i t w a s b e c a u s e I t h i n k w h a t 20 he is expected of a Minister who comes into a department and he or she understands that the DG of the department has been dismissed. There is an acting DG but that DG wants to come back. What is expected is that the Minister would say I want his file. I want to read the documentation. I want to find out exactly what did he do. Because y o u m i g h t n e e d t o t a k e a v i e w. Page 65 of 218 03 DECEMBER 2019 – DAY 195 If he says he is going to take you to court - you might need to take a view to say as the new Minister of Labour I fully endorse the d e c i s i o n t h a t w a s t a k e n b y m y p r e d e c e s s o r. It was correct. It was justified. So I will defend it or you might say I have studied the file. I have looked at all the documentation. I know what he - why - why he w a s d i s m i s s e d , b u t I t a k e a d i ff e r e n t v i e w. So if he wants to take us to court. My approach would be maybe to negotiate and reach a settlement, because I think we are going to be - we will have challenges in court defending this decision. 10 Even if somebody else is going to advise you, because in the end that other person cannot impose their advice on you. They cannot make the decisions for you. Yo u a r e t h e M i n i s t e r o f L a b o u r. Yo u m u s t d e c i d e w h e t h e r your attitude is we will defend this decision or we will take him back. So - so I think that is what would be expected. So I think to the extent that you might not have thought it necessary to fully inform yourself of that. That might have been a mistake. MS OLIPHANT: I do understand that Chair … CHAIRPERSON: Hm. 20 MS OLIPHANT: But since I requested the Minister for Public Services and Administration as the custodian of Public Service Management Act. I thought I have to wait for the investigation on whether the procedures were followed correctly and then after that that is when I was going too b a s e d o n a l s o t h e a d v i c e o f b o t h M i n i s t e r B a l o y i a n d t h e L e g a l Te a m i n the department. Page 66 of 218 03 DECEMBER 2019 – DAY 195 I w a s g o i n g t o t h e n s t a r t t o l o o k a t t h e m a t t e r. F o r e x a m p l e i f he was reinstated to the department. That is when I was going to make sure that I get the full information and then also if there were decisions to - to - it is either to charge him. I was going to also work together with the Minister for Public Service and Administration in terms of the delegated power to the Minister for Public Service and Administration. CHAIRPERSON: Ja. No. I understand what you are saying, but I - I think you must put - you should have put yourself in the position where you could say to Minister Baloyi when he gives you advice. I actually 10 do not agree with you - this advice and you cannot say that unless you are fully informed. Let us assume that he was dismissed for fraud and Minister Baloyi says withdraw his dismissal. If you are fully informed yourself you would say how can we do that. This man was dismissed for fraud, but if you have not fully informed yourself you might end up withdrawing the dismissal and everybody else says how she could do that. This person was dismissed for fraud, but we - we can move on. I understand your - your explanation, but you understand what I - what I am saying as well. Is that right? 20 M S O L I P H A N T : I d o u n d e r s t a n d C h a i r, b u t a l s o b a s e d o n t h e b r i e f i n g b y t h e L e g a l S e r v i c e s Te a m w h e n t h e y s a i d h e w a s d i s m i s s e d b e c a u s e he did not respect the Minister without giving me other full details. So that is why I had to wait up until Minister Baloyi finalises due processes. CHAIRPERSON: Ye s , b u t w h a t i f y o u r o ff i c i a l s w e r e n o t t e l l i n g y o u Page 67 of 218 03 DECEMBER 2019 – DAY 195 something else in the documentation that you would regard as i m p o r t a n t w h i c h t h e y d i d n o t a s i m p o r t a n t ? Yo u s e e . S o t h e r e - t h e r e i s w i s d o m i n s a y i n g I h e a r y o u w h a t y o u s a y, b u t I w a n t t o b e f u l l y informed, but I think you have - you have put your - your side of how you saw it. M S O L I P H A N T : Ye s C h a i r. T h a n k y o u v e r y m u c h a n d a l s o C h a i r p e r s o n I think I relied on the information, because it was led by the Senior C o u n s e l A d v o c a t e To k o t a . C H A I R P E R S O N : Ye s . 10 MS OLIPHANT: So I thought that that is the information that I have to work on. C H A I R P E R S O N : Ye s . M S O L I P H A N T : Ye s . C H A I R P E R S O N : O k a y. T h a n k y o u . M s H o f m e y r. A D V K AT E H O F M E Y R : M s O l i p h a n t y o u r e c e i v e d t h a t b r i e f i n g p r i o r t o receiving this letter from Mr Baloyi. Did you not? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : And at paragraph 3D on page 2-1-7 Mr Baloyi to whom you have gone to for advice says at D3: 20 “During the two week period of special leave you need to decide whether or not to pursue the misconduct charges against the Director-General.” Did you take that decision? MS OLIPHANT: No, because my understanding is that when you advice - when you are advised you have to look at the advice and further get Page 68 of 218 03 DECEMBER 2019 – DAY 195 t h e c l a r i t y. So since Minister Baloyi was dealing with those issues I said he must finalise everything before I deal with the matters. So … A D V K AT E H O F M E Y R : W h e n … MS OLIPHANT: If he was reinstated to the department of course I was going to probably consider that also based on the outcome of that investigation. A D V K AT E H O F M E Y R : Ms Oliphant what is your understanding of a decision to withdraw the termination of a Director-General? MS OLIPHANT: 10 The withdrawal was based on - on that the proper procedures were not followed. Firstly that the Minister was not supposed to dismiss him, because that role is - is for the President to d o . N o t t h e M i n i s t e r. A D V K AT E H O F M E Y R : A n d w h a t i s t h e e ff e c t o f w i t h d r a w i n g a t e r m i n a t i o n o f a D G ’s d i s m i s s a l ? MS OLIPHANT: Well what - what - the reason why I withdrew is because I was correcting the situation where it was not done procedurally and that is why I - I requested Minister Baloyi to further deal with the issues. So that is why everything was that, because he is t h e l e a d e r. 20 In terms of the implementation of the Public Service Management Act is clear on how to deal with the issues. A D V K AT E H O F M E Y R : B u t M s O l i p h a n t t h e q u e s t i o n w h e t h e r t o p u r s u e the misconduct charges against the Director-General was your decision to take. Correct? MS OLIPHANT: Can you repeat the question? A D V K AT E H O F M E Y R : W h e t h e r t o p u r s u e m i s c o n d u c t c h a r g e s a g a i n s t Page 69 of 218 03 DECEMBER 2019 – DAY 195 Mr Manyi. That was your decision to take. Correct? MS OLIPHANT: Even that I cannot just take a - a decision as an individual. I have to report that to the Minister for Public Service and Administration and - and guide me in terms of the Public Service Management Act. A D V K AT E H O F M E Y R : B u t M s O l i p h a n t M r B a l o y i w a s t e l l i n g y o u h e r e that you needed to make that decision. Did you understand what he w a s s a y i n g t h e r e d i ff e r e n t l y ? MS OLIPHANT: As I said it is either this letter came at a later stage 10 after we have discussed on how we have to deal with the procedures. A D V K AT E H O F M E Y R : Is your evidence that you never considered whether to pursue misconduct charges against Mr Manyi? MS OLIPHANT: Because he was on special leave. If - if the whole process was finalised probably that is when I was going to consider depending on the outcome of that investigation. A D V K AT E H O F M E Y R : S o b e t w e e n N o v e m b e r 2 0 1 0 a n d F e b r u a r y 2 0 11 did you at no stage in that period try to understand what charges were levelled at him and whether you should pursue those charges? MS OLIPHANT: 20 No. I did not take that, because I was saying Minister Baloyi is still investigating the matters whether everything was d o n e p r o c e d u r a l l y. A D V K AT E H O F M E Y R : Ms Oliphant I - I do not want to belabour the p o i n t , b u t d o y o u a c c e p t t h a t w h e n h e w r o t e t h a t l e t t e r. He had concluded those procedures and he had determined that he had not been fairly dismissed. Page 70 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: What has happened he sent the letter on 29 November o f w h i c h I a m n o t s u r e w h e n i t l a n d e d t o - t o m y o ff i c e , b e c a u s e a s I have said we discussed the issues informally in a session in Parliament. So the date of the letter … A D V K AT E H O F M E Y R : H m . MS OLIPHANT: Does not mean that that letter immediately come to my o ff i c e . A D V K AT E H O F M E Y R : No. I accept that, but you had that c o n v e r s a t i o n b e f o r e t h e r i s i n g o f P a r l i a m e n t i n D e c e m b e r. S o a t w o r s e 10 for us you got this information in December 2010. Did you not? MS OLIPHANT: Well during that - that briefing session of which - of which we - we had the discussion on how we should deal with the issues procedurally particularly in terms of writing a letter of withdrawal and putting him on special leave. We discussed that informally in a parliamentary session before the Parliament - the Parliament rise and immediately when the Parliament rises in most cases even the Cabinet does not take time and we all - we will all go to leave. That is what has happened and I - I think that is why even the l e t t e r t h a t I - I w r o t e f o r t h e w i t h d r a w a l w a s a r o u n d J a n u a r y. I t h i n k a t 20 t h e e n d o f J a n u a r y. A D V K AT E H O F M E Y R : Do you remember having a meeting with M r B a l o y i o n 11 J a n u a r y 2 0 11 a t w h i c h t h e s e i s s u e s w e r e d i s c u s s e d ? M S O L I P H A N T : I c a n n o t c l e a r l y r e c a l l t h a t . I m u s t s a y. A D V K AT E H O F M E Y R : I - I w i l l t a k e y o u t o t h a t i n a m o m e n t . L e t u s g o t o - b a c k t o y o u r a ff i d a v i t . N N 3 a t p a g e 7 . Page 71 of 218 03 DECEMBER 2019 – DAY 195 M S O L I P H A N T : O k a y. A D V K AT E H O F M E Y R : Yo u s a y t h e r e a t p a r a g r a p h 1 8 t h a t : “Mr Baloyi advised you according to the procedures that ought Mr Manyi. to be followed in the transfer of Yo u m u s t w r i t e a l e t t e r w i t h d r a w i n g M r M a n y i ’s d i s m i s s a l i n t e r m s o f S e c t i o n 5 - 7 o f t h e Public Services Act and place him on special leave.” Do you see that? 10 M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : What does Section 5-7 of the Public Services Act empower you to do? MS OLIPHANT: It empowers the Minister to correct the situation where there is something that was done wrongfully and that is why I had to consider that based on also the advice by Minister Baloyi that certain p r o c e d u r e s w e r e n o t f o l l o w e d p r o p e r l y. A D V K AT E H O F M E Y R : Did you have - did you look at the section in the Act before you took the decision? MS OLIPHANT: 20 W e d i s c u s s e d w i t h t h e L e g a l S e r v i c e s Te a m i n t h e department. A D V K AT E H O F M E Y R : S o d i d t h e y … ? CHAIRPERSON: Ye s , b u t t h e q u e s t i o n i s w h e t h e r y o u l o o k e d a t t h e section yourself? MS OLIPHANT: I think yes. A D V K AT E H O F M E Y R : L e t u s g o t o i t t h e n . I t i s a f i l e a l s o a v a i l a b l e Page 72 of 218 03 DECEMBER 2019 – DAY 195 to you. Called the NN6 Legislation bundle and if you open it up at page 35. CHAIRPERSON: Bring it to me. A D V K AT E H O F M E Y R : A t p a g e 3 5 . M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : Yo u w i l l f i n d S e c t i o n 5 - 7 . MS OLIPHANT: Huh-uh. A D V K AT E H O F M E Y R : I t r e a d s t h e r e : “A functionary shall correct any action or omission purportedly made in terms of this Act by that 10 functionary if the Act or omission was based on an error of fact or law or fraud and it is in the public interest to correct the action or omission.” Do you recall looking at this section at the time? MS OLIPHANT: I think so, because if I am not mistaken the - the Advocate Pascha even further explained on this particular clause and that is why we ended up drafting a letter based on 5-7. A D V K AT E H O F M E Y R : W h i c h p a r t o f 5 - 7 d i d r e l y o n ? M S O L I P H A N T : I s t h a t i f t h e a c t i o n w a s b a s e d o n a n e r r o r. 20 A D V K AT E H O F M E Y R : W h i c h o f t h e m , b e c a u s e i t i s a n e i t h e r a n a c t o f fact or law or fraud. Which was the one you relied on? MS OLIPHANT: Is the - is an error of fact, because as I have said previously Minister the does not have powers to dismiss the Director-General. A D V K AT E H O F M E Y R : A n d w h a t d e t e r m i n a t i o n d i d y o u m a k e a b o u t t h e Page 73 of 218 03 DECEMBER 2019 – DAY 195 public interest? MS OLIPHANT: The public interest was that a - the Public Service and Administration Minister was going to investigate. No, no, no. Based on the facts that were given to me. That the former Minister did not act in terms of the - of the Public Service Act and therefore I was correcting that mistake and I believe that it was based on the public interest. A D V K AT E H O F M E Y R : T h o s e a r e t w o d i ff e r e n t t h i n g s M s O l i p h a n t . I fully understand your evidence to be you understood that you were correcting something … 10 MS OLIPHANT: Huh-uh. A D V K AT E H O F M E Y R : But there is a second requirement in this section. It is that there be a public interest in correcting the decision. So what was your understanding of the public interest that was going to be pursued? MS OLIPHANT: The public interest was that we were going to save one, the - the money from the department rather than to allow a situation where the matter should - will be taken to court and at the end of the day it was going to be the public that will be footing that bill in terms of the budget of the department that has been allocated to the 20 department. That was my understanding. A D V K AT E H O F M E Y R : When you took the decision to withdraw the termination you also placed Mr Manyi on indefinite special leave. Is that correct? M S O L I P H A N T : Ye s . I s a i d s p e c i a l l e a v e u n t i l f u r t h e r n o t i c e . A D V K AT E H O F M E Y R : Indeed. So no end point to the special leave Page 74 of 218 03 DECEMBER 2019 – DAY 195 was stipulated. Correct? MS OLIPHANT: Can you repeat the question? A D V K AT E H O F M E Y R : There was no end to the special leave. Yo u said until further notice. Correct? M S O L I P H A N T : Ye s . I s a i d u n t i l f u r t h e r n o t i c e . A D V K AT E H O F M E Y R : When a person is on special leave are they paid a salary? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : B u t t h e y a r e n o t r e n d e r i n g a n y s e r v i c e s t o t h e 10 department. Are they? M S O L I P H A N T : Ye s , b e c a u s e t h e y a r e o n s p e c i a l l e a v e . A D V K AT E H O F M E Y R : S o w o u l d i t h a v e b e e n i n t h e p u b l i c i n t e r e s t t o reverse the decision on the termination of Mr Manyi, continue to pay him a salary for an indefinite period and not have him render any services to the Department of Labour? M S O L I P H A N T : Ye s , b e c a u s e w a n t e d t o f i n a l i s e t h e i n v e s t i g a t i o n a n d all processes precisely because if we did not do that then we were going to be taken to court and what was going to happen if Mr Manyi win that court case. 20 A D V K AT E H O F M E Y R : M s O l i p h a n t w i t h d r a w i n g t h e t e r m i n a t i o n p u t t h e prospect of the court case aside. Do you accept that? MS OLIPHANT: What was going to happen is that when - when we spoke Minister Baloyi was that he wants to finalise these issues within three months. So that is when probably I was going to consult him if that matter was not yet finalised. Page 75 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : But it was not about a risk of going to court. Was it? MS OLIPHANT: If - if we went to court - if we went to court it is either that process was going to be delayed and then it is either - say for example if we take the case that happened between the Minister for for Intelligence then. The - the Director-General won the case and then the department had to foot that particular bill. A D V K AT E H O F M E Y R : M s O l i p h a n t w h e n y o u d e c i d e d t o w i t h d r a w t h e t e r m i n a t i o n o f M r M a n y i ’s d i s m i s s a l h e w a s t h e n r e i n s t a t e d i n t h e p u b l i c 10 service. Correct? M S O L I P H A N T : H u h - u h . Ye s . A D V K AT E H O F M E Y R : H e c o u l d n o t h a v e g o n e t o c o u r t t o f i g h t a b o u t anything then. Could you? MS OLIPHANT: No. He was not going to fight. A D V K AT E H O F M E Y R : R i g h t . S o m y q u e s t i o n t o y o u w a s . I s i t i n t h e public interest to bring someone back into the public service, to place them indefinite special leave, to pay them a salary and not have them render any services to the department and I understood your answer to be yes it is, because we needed time to investigate and to ensure that 20 there was an approach to the courts. Did I understand your evidence correctly? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : But my point to you Ms Oliphant on which I would like your response is once you have withdrawn the termination there is no risk at all that Mr Manyi was going to go to court. Page 76 of 218 Wa s 03 DECEMBER 2019 – DAY 195 there? MS OLIPHANT: No. There was no risk. A D V K AT E H O F M E Y R : S o d o y o u m a i n t a i n t h a t i t w a s s t i l l i n t h e p u b l i c interest to bring him back, pay him a salary and have him sit at home? MS OLIPHANT: Because we are going to finalise … CHAIRPERSON: Oh maybe - maybe you need to leave out the bringing back part, because that is the part that takes away the risk of litigation. So once you had brought him back by way of withdrawing, the dismissal there was no risk of him taking you to court. Is that right? 10 M S O L I P H A N T : Ye s C h a i r. CHAIRPERSON: M s H o f m e y r. If you then - and I am probably going ahead of you If you then decided to pursue charges or to act on the understanding that by the way he still needed to complete his p r o b a t i o n a r y p e r i o d t h e n t h a t w o u l d b e a d i ff e r e n t i s s u e . T h e r e w o u l d be no litigation that ought to arise at that stage in regard to that. At least until you had made a decision whether charges should be pursued and the outcome thereof. M S O L I P H A N T : Ye s C h a i r p e r s o n . C H A I R P E R S O N : Ye s . M s H o f m e y r. 20 A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. Yo u i n d i c a t e d t h a t y o u s p o k e to Mr Baloyi about the prospect of transferring Mr Manyi out of the D e p a r t m e n t o f L a b o u r. I s t h a t c o r r e c t ? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : W h y d i d y o u h a v e t h o s e d i s c u s s i o n s w i t h h i m ? MS OLIPHANT: With Minister Baloyi? Page 77 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : H m . MS OLIPHANT: As I have - as I have indicated that based on the r e p o r t b y t h e L e g a l S e r v i c e s Te a m a n d a l s o b a s e d o n t h e d e m a n d t o r e i n s t a t e h i m b y N E H AW U . S o i t - i t s h o w s t h a t t h e r e w a s g o i n g t o b e an instability in the department. So I was trying to make sure that there is stability in the department. A D V K AT E H O F M E Y R : What is your understanding of who has the power to transfer a Director-General? MS OLIPHANT: 10 My understanding is that the Minister for Public Service and Administration has to make recommendations, because he has powers delegated to him by the President and then probably that issue will be further submitted to the Cabinet. If I am not mistaken. A D V K AT E H O F M E Y R : So do you - is your understanding that Mr Baloyi does not have the final decision to make. It is either Cabinet or the President who makes that decision? MS OLIPHANT: In terms of the Public Service Act the President employs the Director-Generals. So since there is that delegated power through the Minister for Public Service and Administration and Minister Baloyi knew how to deal with those issues, but he cannot take 20 a decision as an individual. In most cases whatever relates to the Director-Generals he will present that to Cabinet for the Cabinet to take a decision, because even when Director-General by the President. the - the employment of the He employs them through the Cabinet. A D V K AT E H O F M E Y R : Yo u t o o k t h e d e c i s i o n f i n a l l y t o w i t h d r a w Page 78 of 218 03 DECEMBER 2019 – DAY 195 M r M a n y i ’s t e r m i n a t i o n o n 3 1 J a n u a r y 2 0 11 . I s t h a t c o r r e c t ? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : W h o d i d y o u c o m m u n i c a t e t h a t d e c i s i o n t o ? MS OLIPHANT: We had a discussion with Minister Baloyi and Minister Baloyi is the one that has to lead the processes on what processes are related to that. It is his call to do. Not me. A D V K AT E H O F M E Y R : Do you recall when you communicated that decision to him? MS OLIPHANT: Which decision? 10 A D V K AT E H O F M E Y R : The decision to withdraw the termination of M r M a n y i ’s d i s m i s s a l ? MS OLIPHANT: It … A D V K AT E H O F M E Y R : W i t h d r a w h i s d i s m i s s a l . A p o l o g i e s . MS OLIPHANT: It was based on his advice. So that is why we had to discuss that and that is why I entered up withdrawing that and I copied M i n i s t e r B a l o y i i n t h a t l e t t e r. A D V K AT E H O F M E Y R : And did you have any conversations with him after that Monday 31 January about your decision to withdraw it? MS OLIPHANT: Immediately after I have written that letter I submitted 20 a copy to him and then he - after that he said he was going to finalise t h e m a t t e r. I t h i n k - I c a n n o t r e m e m b e r w h e n e x a c t l y d i d w e h a v e t h a t discussion. A D V K AT E H O F M E Y R : And did you communicate your decision to former President Zuma? M S O L I P H A N T : N o . I d i d n o t , b e c a u s e i t i s n o t m y r e s p o n s i b i l i t y. I t i s Page 79 of 218 03 DECEMBER 2019 – DAY 195 the Minister for Public Service and Administration who has delegated powers by the President. A D V K AT E H O F M E Y R : D i d y o u c o n s e n t t o t h e t r a n s f e r o f M r M a n y i t o GCIS? MS OLIPHANT: I was not informed to which department he was going to be transferred to, but Minister Baloyi just said he is going to be transferred to another department. A D V K AT E H O F M E Y R : So when he was transferred on Wednesday of t h a t w e e k 2 F e b r u a r y. Yo u h a d n o t c o n s e n t e d t o h i s t r a n s f e r t o G C I S a t 10 that stage? MS OLIPHANT: No. I did not have those powers. A D V K AT E H O F M E Y R : N o . I a m a s k i n g a q u e s t i o n o f f a c t . D i d y o u a s a fact consent to his transfer to GCIS between Monday and Wednesday? MS OLIPHANT: I m u s t s a y I d o n o t h a v e t h o s e p o w e r s p r e c i s e l y, because the processes are led by Minister for Public Service and Administration and he is the one who made the recommendations to the Cabinet, because my understanding was that that issue was reported to the Cabinet, but I cannot exactly say whether it was reported or not. 20 That is why I even said to the Secretariat previously the best person to respond on that matter is Minister Baloyi and also probably the Cabinet Secretariat can assist the Commission through your request as the Commission, because Cabinet matters are confidential. A D V K AT E H O F M E Y R : H m . CHAIRPERSON: Well you say you had not powers to consent, but is Page 80 of 218 03 DECEMBER 2019 – DAY 195 the position not that you had made it clear to Minister Baloyi prior to that date that you wanted Mr Manyi to be transferred to another department? Not to come back to your department. MS OLIPHANT: Chairperson, maybe if you can further clarify for me the consent, because my understanding when I was supposed to … C H A I R P E R S O N : Ye s . N o , n o , n o . M S O L I P H A N T : To g i v e t h a t . I w a s s u p p o s e d t o … CHAIRPERSON: Forget about the consent. M S O L I P H A N T : O k a y. 10 CHAIRPERSON: No, no. M S O L I P H A N T : O k a y. CHAIRPERSON: Forget for now about the consent. That was as prior q u e s t i o n b y M s H o f m e y r. M S O L I P H A N T : Ye s . CHAIRPERSON: Just focus on mine. Mine is - is the position not that p r i o r t o t h e t r a n s f e r o f M r M a n y i i n t o - t o t h e D e p a r t m e n t o f G C I S . Yo u had made it clear to Minister Baloyi that wanted Mr Manyi to be t r a n s f e r r e d t o a n o t h e r d e p a r t m e n t . Yo u d i d n o t - y o u d i d n o t w a n t h i m in your department or you would prefer not to have him back in your 20 department. MS OLIPHANT: I have preferred Chairperson that if Minister Baloyi can transfer him to another department. C H A I R P E R S O N : Ye s . M S O L I P H A N T : Ye s . CHAIRPERSON: Ye s . Yo u h a d c o m m u n i c a t e d t h a t t o M i n i s t e r B a l o y i Page 81 of 218 03 DECEMBER 2019 – DAY 195 p r i o r t o M r M a n y i ’s t r a n s f e r t o G C I S ? MS OLIPHANT: When I had the discussion before anything started. I said if probably there are issues particularly when it comes to the implementation of the procedures I will be happy if he can be transferred to another department. C H A I R P E R S O N : Ye s . O k a y. M S O L I P H A N T : Ye s . CHAIRPERSON: So Mr Baloyi knew that? M S O L I P H A N T : Ye s . H e k n e w i t . 10 C H A I R P E R S O N : Ye s , b u t d i d y o u s i g n a n y d o c u m e n t s a t a n y s t a g e t o say you are consenting or you support the transfer of Mr Manyi from the position of DG in the Department of Labour to the Department of GCIS? M S O L I P H A N T : N o . I d i d n o t s i g n a n y l e t t e r. CHAIRPERSON: Did anybody ever ask you to indicate your position in writing in anyway about that transfer? M S O L I P H A N T : N o . I d o n o t k n o w, b u t I t h i n k M i n i s t e r B a l o y i w i l l b e able to respond on that one, because I informally discussed that with him. C H A I R P E R S O N : Ye s , b u t n o . W e a r e n o t a s k i n g w h a t h e s a i d . W e a r e 20 asking whether anybody ever said to you - you wold have to …? MS OLIPHANT: No. There is no one … (intervenes). CHAIRPERSON: Give us a document indicating that you agree or release Mr Manyi to be transferred somewhere else? MS OLIPHANT: No Chairperson. C H A I R P E R S O N : Yo u d o n o t . O k a y. Page 82 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: No. A D V K AT E H O F M E Y R : I u n d e r s t a n d y o u t o s a y t h a t y o u d i d n o t k n o w that Mr Manyi was going to GCIS until the announcement by the Cabinet Spokesperson. Is that correct? M S O L I P H A N T : Ye s , b e c a u s e w h e n M i n i s t e r B a l o y i b r i e f e d m e h e s a i d he is going to be transferred to another department, but he - he was not specific to which department. A D V K AT E H O F M E Y R : And that notice by the Government Spokesperson as we have the evidence before the Commission came 10 out on 3 February which was the Thursday of the week after the C a b i n e t m e e t i n g o n t h e W e d n e s d a y. Does that accord with your recollection? MS OLIPHANT: Even if I cannot remember the exact date, but all the announcements are made immediately after the sitting of the Cabinet. A D V K AT E H O F M E Y R : S o y o u w i t h d r e w t h e t e r m i n a t i o n o n t h e M o n d a y and then there was a Cabinet meeting on the Wednesday where Mr Manyi was transferred to GCIS, but in that period you were not alerted to the fact that he was going to GCIS. Is that correct? M S O L I P H A N T : Ye s . I w a s n o t a w a r e t h a t h e w a s g o i n g t o G C I S . 20 A D V K AT E H O F M E Y R : When you learnt that he was going to GCIS were you concerned that some of those decisions that you still needed t o m a k e b a s e d o n M r B a l o y i ’s a d v i c e a b o u t t h e m i s c o n d u c t c h a r g e s a n d probation had not yet been taken? MS OLIPHANT: I - I took that Minister Baloyi will be able to deal with all the issues that are relevant in terms of the Act. Page 83 of 218 So when he was 03 DECEMBER 2019 – DAY 195 transferred I was not even consulted at that particular time that now we are transferring him. A D V K AT E H O F M E Y R : D i d y o u e v e r m a k e i n q u i r i e s a s t o t h e n a t u r e o f the charges that Mr Manyi faced while he was at the Department of Labour? MS OLIPHANT: No. A D V K AT E H O F M E Y R : Were you aware that around the time of his dismissal those charges were leaked to the Sunday Times? MS OLIPHANT: Sometimes I do not read newspapers. 10 A D V K AT E H O F M E Y R : So did you not know that one of the charges that he faced was that he had pursued private interests in a meeting that he had had with the Norwegian Ambassador? MS OLIPHANT: No. I did not have that information. A D V K AT E H O F M E Y R : And were you also not aware that one of the c h a r g e s h e f a c e d w a s h a v i n g i n s t r u c t e d o ff i c i a l s t o w r i t e o ff a d e b t i n the department? MS OLIPHANT: No. A D V K AT E H O F M E Y R : But I understand your evidence to be you thought that those matters would be taken up by Mr Baloyi. 20 Is that right? M S O L I P H A N T : Ye s . A D V K AT E H O F M E Y R : I s t h a t d e s p i t e t h e f a c t t h a t h e i n d i c a t e d t o y o u in that letter or maybe in December that you needed to make a decision on the charges? MS OLIPHANT: W e l l I - I c a n n o t r e a l l y s a y y e s I k n e w, b e c a u s e I Page 84 of 218 03 DECEMBER 2019 – DAY 195 cannot recall getting this letter prior our meeting with Minister Baloyi which was an informal meeting of which he informed me that the letter h e h a s w r i t t e n a l e t t e r. P r o b a b l y I a m g o i n g t o r e c e i v e t h a t l e t t e r, b u t we discussed the - the matters informally as I have said. A D V K AT E H O F M E Y R : J u s t s o m e c l e a r i n y o u r e v i d e n c e . D i d y o u t h e n have an informal discussion at which Mr Baloyi conveyed to you that you will need to make a decision about whether to pursue misconduct charges against Mr Manyi? MS OLIPHANT: 10 No. We talked about only two. That was the withdrawal and also the special leave. A D V K AT E H O F M E Y R : T h a n k y o u a n d c a n I a l s o j u s t g e t c l a r i t y. Between that Monday when you withdrew the termination and the Wednesday when the transfer was announced in Cabinet you had no interactions with former President Zuma? MS OLIPHANT: No. I did not have. A D V K AT E H O F M E Y R : T h a n k y o u . C h a i r t h o s e a r e o u r q u e s t i o n s . CHAIRPERSON: Thank you very much. I think other questions may wait for Mr Baloyi. Thank you very much Ms Oliphant. If we need you to come back we will ask you to come back, but for now you are 20 excused. MS OLIPHANT: Thank you very much Chairperson. CHAIRPERSON: Thank you. MS OLIPHANT: Am I also excused to leave, because I have the flight to catch? C H A I R P E R S O N : Ye s . O k a y. T h a n k y o u . J a . Page 85 of 218 03 DECEMBER 2019 – DAY 195 MS OLIPHANT: And that also as a Christmas present. CHAIRPERSON: Hm. MS OLIPHANT: During Christmas Day can you please read Johan 27. CHAIRPERSON: Huh-uh. M S O L I P H A N T : F r o m v e r s e 11 … CHAIRPERSON: Huh-uh. MS OLIPHANT: And also Exodus Chapter 1 from verse 13. CHAIRPERSON: Oh. MS OLIPHANT: That is your Christmas present. 10 CHAIRPERSON: Is that my Christmas present? M S O L I P H A N T : Ye s . CHAIRPERSON: O h o k a y. Well has somebody written down those versus? M S O L I P H A N T : T h a n k y o u C h a i r. CHAIRPERSON: Just repeat the verses. MS OLIPHANT: I t i s J o h a n 2 9 v e r s e 11 - f r o m v e r s e 11 a n d t h e n Exodus Chapter 1 … CHAIRPERSON: Huh-uh. MS OLIPHANT: From verse 13. 20 CHAIRPERSON: Up to - up to the end? MS OLIPHANT: Up - up until the end. C H A I R P E R S O N : O h , o k a y. T h a n k y o u . MS OLIPHANT: Thank you very much. C H A I R P E R S O N : T h a n k y o u . Ye s . A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. Page 86 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : O u r n e x t w i t n e s s i s M r B a l o y i . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : Is it convenient for us to use the time before they lunch adjournment? CHAIRPERSON: Well I was thinking if we - maybe if you need about five minutes. A D V K AT E H O F M E Y R : H m . CHAIRPERSON: We could take five minutes and then start with him. 10 A D V K AT E H O F M E Y R : C e r t a i n l y. CHAIRPERSON: So that maybe by 1 o’ clock we will have got rid of … A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: Preliminary issues. So that after lunch we can go into the meet of his evidence. A D V K AT E H O F M E Y R : I n d e e d C h a i r. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : W e w i l l i n d e b t e d f o r a f i v e m i n u t e b r e a k . MS OLIPHANT: C H A I R P E R S O N : Ye s . S o w e w i l l t a k e a f i v e m i n u t e s a d j o u r n m e n t . W e 20 adjourn. REGISTRAR: All rise. I N Q U I RY A D J O U R N S I N Q U I RY R E S U M E S C H A I R P E R S O N : Ye s , a r e y o u r e a d y ? A D V K AT E H O F M E Y R : I n d e e d , t h a n k y o u C h a i r. C h a i r M r B a l o y i w h o Page 87 of 218 03 DECEMBER 2019 – DAY 195 will be our next witness is legally represented, may I ask that that his lawyers place themselves on record? CHAIRPERSON: Ja, thank you. ADV PETER MAKE: As the Chairperson pleases, I am Peter Make, I am instructed by Correia de Ramoda Incorporated. C H A I R P E R S O N : Ye s t h a n k y o u . A D V K AT E H O F M E Y R : T h a n k y o u C h a i r, a n d t h e n j u s t i n t e r m s o f t h e e x h i b i t c o n t a i n i n g M r B a l o y i ’s s t a t e m e n t s , y o u w i l l f i n d t h e m i n t h e m a i n f i l e b e f o r e y o u u n d e r u n d e r Ta b 4 , a n d i f I c o u l d a s k t h a t , t h o s e 10 s t a t e m e n t s , I ’ l l i d e n t i f y t h e m s h o r t l y, b e i n t r o d u c e d a s E x h i b i t N N 4 . Chair just to take you through what is contained in NN4, Mr Baloyi has given a series of statements to the Commission. The first of those commences on page one it concludes on page 102 and it was – it is a c t u a l l y a n a ff i d a v i t d e p o s e d t o o n t h e 11 t h o f O c t o b e r 2 0 1 9 . I t I m a y just be permitted to list all of them for the purposes of the record and then we can enter it as an Exhibit with your leave. The second statement begins at page 107 it itself is undated but it appears with the C o m m i s s i o n e r ’s s t a m p o f t h e 7 t h o f N o v e m b e r 2 0 1 9 a n d t h a t c o n c l u d e s at page 124. There is then a set of Annexures which are required to be 20 read with that second statement they commence at page 125 and they run to page 149 and then there is a document entitled, supplement which commences at page 105 and concludes at page 151 that bears a s t a m p o f a C o m m i s s i o n e r o f O a t h s o f t h e 11 t h o f N o v e m b e r 2 0 1 9 a n d thereafter there is a letter and an Annexure all of which conclude at page 159. Page 88 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: And what is at 160 or is that part of 159? A D V K AT E H O F M E Y R : Ye s s o r r y t h e f i n a l A n n e x u r e w h i c h i s a n Annexure to the letter is an Annexure which commences at 159 and concludes at 162. CHAIRPERSON: Mmm the documents which appear under divider four will be admitted as Annexure NN4 they include two statements by Mr B a l o y i a n d v a r i o u s o t h e r d o c u m e n t s , t h a t ’s f r o m p a g e o n e u p t o p a g e 162, is that right? A D V K AT E H O F M E Y R : 10 T h a n k y o u C h a i r, i n d e e d . A D V K AT E H O F M E Y R : Thank you, Mr Baloyi in addition to providing these statements to the Commission there were a set of documents that w e r e m a d e a v a i l a b l e t o y o u a f e w a g o i n a d v a n c e o f t o d a y ’s e v i d e n c e , is that correct? CHAIRPERSON: Remember we haven’t – he must still be…[intervenes]. A D V K AT E H O F M E Y R : Apologies Chair we have not sworn the witness in, please can we do so. CHAIRPERSON: P l e a s e a d m i n i s t e r t h e o a t h o r a ff i r m a t i o n . REGISTRAR: Please state your full names for the record. 20 MR BALOYI: REGISTRAR: Makarenge Richard Baloyi. Do you have any objections to taking the prescribed oath? MR BALOYI: REGISTRAR: No. Do you consider the oath to be binding on your conscience? Page 89 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Ye s . REGISTRAR: Do you swear that the evidence you will give will be the truth, the whole truth and nothing but the truth, if so please raise your right hand and say so help me God. MR BALOYI: So help me God. MR MAKARENGE RICHARD BALOYI: CHAIRPERSON: (duly sworn, states) Thank you, Mr Baloyi before Ms Hofmeyr puts any q u e s t i o n s t o y o u I j u s t w a n t t o s a y t h a t I a m a w a r e t h a t y o u r a ff i d a v i t s deal with various matters in quite some detail and there may be – some 10 of the matters may be quite important to you to be placed before the Commission but I just want to say that the areas in which I’m interested are very narrow so, we’ll allow you to say something about your background and your commencement in Parliament and highlight here and there but it won’t be a long time, I don’t want it to take more than five minutes. The areas which I’m interested in are very narrow but they are very important. So I just don’t want you to feel bad if we don’t d e a l w i t h a l o t o f t h i n g s w h i c h y o u h a v e p u t o n t h e a ff i d a v i t , t h e y a r e t h e r e i t ’s j u s t t h a t w e w a n t t o u s e o u r t i m e a s f r u i t f u l l y a s p o s s i b l e . S o you’ll find that the questions will be directed really to very limited 20 a r e a s . C e r t a i n l y f r o m m y s i d e i t ’s v e r y m u c h o n t h e i s s u e o f w h a t y o u know and what your role may have been in regard to the transfer of Mr Maseko from GCIS to your department and ultimately how he left your department and then with regard to Mr Manyi what you know and what your role was in having him transferred to or him being transferred to G C I S b u t a s y o u m a y h a v e h e a r d e a r l i e r o n e v e n w i t h r e g a r d t o t h a t i t ’s Page 90 of 218 03 DECEMBER 2019 – DAY 195 not necessarily the full scope that we are looking at, you understand? MR BALOYI: I understand, thank you very much. CHAIRPERSON: Ye s y o u c a n k e e p y o u r m i c o n t h r o u g h o u t , y e s j u s t – ja thank you, Ms Hofmeyr? A D V K AT E H O F M E Y R : T h a n y o u C h a i r. M r B a l o y i I d o a p o l o g i s e f o r commencing my questions before you were under oath. The question just related to a set of documents that you were sent, if I recall it, in t h e m i d d l e o f N o v e m b e r b y t h e C o m m i s s i o n i n p r e p a r a t i o n f o r t o d a y ’s evidence, can you confirm having received those documents? 10 MR BALOYI: Thank you very much, I’d received them only on Tu e s d a y. A D V K AT E H O F M E Y R : MR BALOYI: Tu e s d a y t h i s l a s t w e e k ? Last week. A D V K AT E H O F M E Y R : Have you had an opportunity to consider them? MR BALOYI: I glanced through, luckily some of them are documents I k n o w t h e c o n t e n t s o f i t ’s n o t i n i t i a l . A D V K AT E H O F M E Y R : Indeed, if at any point in the evidence you’d like a bit more time, please let us know and we can make arrangements 20 for you to be able properly to consider them. MR BALOYI: I will. A D V K AT E H O F M E Y R : Mr Baloyi I went through in the introduction, the set of statements that are contained in Exhibit NN4, as I mentioned, sometimes they are stamped by a Commissioner of Oaths but not dated where you have signed them. Can I ask you whether you are Page 91 of 218 03 DECEMBER 2019 – DAY 195 comfortable as you sit there to confirm the contents of all of those statements that I referred to as being true and correct? MR BALOYI: I confirm. A D V K AT E H O F M E Y R : Thank you. Chair in the course of this morning I was given a further statement from Mr Baloyi, it was really a r e p e t i t i o n o f m a n y o f t h e s t a t e m e n t s h e ’s a l r e a d y g i v e n a n d m y arrangement with his legal representatives is that I will simply ask him q u e s t i o n s b a s e d o n t h e s t a t e m e n t s t h a t w e ’ v e s e e n t h e r e ’s n o t h i n g n e w in what was handed up this morning but certainly I indicated to Mr 10 B a l o y i ’s l a w y e r s t h a t a t t h e c o n c l u s i o n o f m y q u e s t i o n s , i f t h e r e ’s s o m e t h i n g t h a t ’s b e e n o m i t t e d t h a t h e r e g a r d s a s p e r t i n e n t I w i l l certainly indicate to him if he would like to make mention of those aspects with your leave. C H A I R P E R S O N : J a t h a t ’s f i n e . A D V K AT E H O F M E Y R : Than you. Mr Baloyi if we can then start with t h e C a b i n e t m e e t i n g o f t h e 2 n d o f F e b r u a r y 2 0 11 , t h e C o m m i s s i o n h a s received evidence previously that you did not attend that meeting, is that correct? CHAIRPERSON: 20 Well Ms Hofmeyr I know I’ve just said a few minutes ago that probably Mr Baloyi would like to say a little bit about his background. A D V K AT E H O F M E Y R : CHAIRPERSON: S o l e t ’s g i v e h i m t h a t c h a n c e . A D V K AT E H O F M E Y R : CHAIRPERSON: Of course. C e r t a i n l y. But I like the idea of going straight to the issues. Page 92 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : CHAIRPERSON: Of course. But I promised him a few minutes for him to say the background to give us his background that he considers to be important. MR BALOYI: Okay thank you very much Chairperson. I’m Makarenge Richard Baloyi [indistinct] documents referring to me before I’ll be r e f e r r e d t o a s M a s i y a n e R i c h a r d B a l o y i i t ’s s t i l l m e , I c h a n g e d m y n a m e in the process. I joined the National Assembly because I want to talk a b o u t t h i n g s t h a t a r e r e l a t e d t o t h e s u b j e c t m a t t e r, I j o i n e d t h e N a t i o n a l 10 Assembly when I was elected to be a member of Parliament on the ANC P r o v i n c e To u r N a t i o n a l L i s t i n J u n e 1 9 9 9 a n d t h e n I b e c a m e i n v o l v e d i n activities in Parliament having been a whip serving in various portfolios I became a whip both the portfolio committee on Public Service and A d m i n i s t r a t i o n , I b e c a m e i t ’s C h a i r p e r s o n , I s e r v e d i n p a r l i a m e n t s adhoc committees, quite a few of them including the adhoc committee that was dealing with looking at, one the Public Protector and the other t h a t w a s l o o k i n g t h e A f r i c a n P e e r R e v i e w M e c h a n i s m t h a t ’s w h e n t h e c o u n t r y, S o u t h A f r i c a w a s g o i n g t h r o u g h a p e e r r e v i e w p r o c e s s f o r t h e first time. Dealing with issues of good governance, I was a Chair of that 20 sub-committee. S o I t h e n b e c a m e a M i n i s t e r, a p p o i n t e d a s a M i n i s t e r for Public Service and Administration in 2008. I served in that position f r o m 2 0 0 8 t i l l O c t o b e r 2 0 11 , I w a s a p p o i n t e d t h e n a s a M i n s t e r f o r C o r p o r a t e G o v e r n a n c e i n Tr a d i t i o n a l A ff a i r s a n d t h e n a f t e r t h a t I w a s posted as a Diplomat representing South Africa in the central African s t a t e o f C o n g o B r a z z a v i l l e a s a n A m b a s s a d o r. Page 93 of 218 03 DECEMBER 2019 – DAY 195 I have to indicate my background academically is that I hold a degree in Political and Administrative Sciences specialising in Public Administration and Political Science. I was one of the team members t h a t w e r e s e n t j u s t a f t e r w e a s a r u l i n g p a r t y, t h e A N C , a f t e r a d o p t i n g the document in 1992 ready to govern. Sent for training in as far as issues of a Senior Management Leadership. S o t h a t ’s w h a t I c a n actually indicate except that in related to the subject matter of the Commission, in my position even before I became Minister I got involved in dealing with quite a number of issues that have to do with 10 us upholding the constitution in as far as Chapter 10 is concerned which deals with Public Administration making sure that the three main aspects of that chapter are actually respected, which one is in terms of Section 195, the values and principles of our Public Administration and Section 196 Commission the issues and then around 197 the the role Public of the Public Service Service which is the implementation mechanism for whatever we’ll see is Government functions. So I developed an interest in those and I want to thank the Commission, what Chairperson, I would have said, in my statement as I requested is firstly to place on record thanking the Commission for the 20 a s s i s t a n c e g i v e n t o m e b e c a u s e y o u s e e i t i s a b o u t 11 y e a r s s i n c e I was a Minister for Public Service and Administration I moved on after that, dealing with quite a number of things and having to be expected t o r e s p o n d b a s e d o n r e c a l l i s a d i ff i c u l t t a s k . I t w a s m a d e e a s i e r, o n the first day I had with investigators, Chairperson it was a very interesting issue, I even said to them, but look I said I need some Page 94 of 218 03 DECEMBER 2019 – DAY 195 documents, I’m coming in here and now you ask me quite a lot of things but that was basically – it was not to be like un-cooperative but was b a s i c a l l y t o s a y, y o u k n o w, i n t h e c r a c k s o f o b l i v i o n o v e r a p e r i o d exceeding ten years, and when a person has not been static, you’ve moved on to other things and you are not actually idling at the moment, you are busy with other things as well, it is just – you meant to actually not recall some of the things. We battled with investigators more specially when it came to dates, when did this happen, I said, oh no t h a t ’s a s e r i o u s i s s u e b u t t h e n h a v i n g s a i d t h i s , I ’ m s a y i n g t h a n k y o u 10 but if I were to raise, and I’ll come specifically to those things, if the questions will direct to some of the issues where I may request is a situation where I then said, having noted that the Commission assisted me to get documents, the question may be asked, have I got all the documents because I know which documents to look for but those documents are there in government they are in files they are in C a b i n e t , y o u k n o w, I k n o w w h e r e t o l o o k f o r b u t t h e i s s u e i s b e i n g outside of that you may appear like you’re not giving full support to the I n q u i r y, s i m p l y b e c a u s e y o u d o n ’ t h a v e t h o s e . So 20 we relied on the Commission, the question is, my two statements and the addendum if I got some of these documents, some o f w h i c h I g o t l a s t w e e k o n W e d n e s d a y, i f I g o t t h e e a r l i e r w o u l d t h e r e h a v e b e e n a d i ff e r e n c e i n c o n t e x t i n t e r m s o f w h a t I a c t u a l l y s u b m i t t e d under oath, the answer I will give is there could be some adjustments, like I wouldn’t like to ask a question – to answer a question, the C o m m i s s i o n a s k s m e a q u e s t i o n a n d t h e y t h e n s a y, I a s s u m e , I Page 95 of 218 03 DECEMBER 2019 – DAY 195 p r e s u m e , m a y b e , f o r m e t h a t ’s n o t e n o u g h . I w i l l t h e n s a y, I f a c t u a l l y dealt with this issue but if you don’t have information there is nothing that you can do. I even had to say Chairperson, so that when you pick this up, it wouldn’t appear like I’m being contemptuous I know that the – I don’t have to refer to my communication with the Commission to any other person, I have to deal directly – but in certain areas I had to say to my employer at the time, the ANC, I mean look, I was a government representative in all what I did, what is going to be asked here is not a s k e d i n m y p e r s o n a l c a p a c i t y i t ’s a s k e d t o m e b e c a u s e I w a s a 10 Minister and these records are there, is it possible that some of these i s s u e s y o u c a n f a c i l i t a t e m e t o h a v e a c c e s s s o t h a t ’s t h e s i t u a t i o n t h a t [indistinct] but I have to place on record the Commission did indeed assist me, so to the extent that the Commission assisted, I’m here ready to respond to the questions. CHAIRPERSON: N o t h a t ’s f i n e , t h a n k y o u M r B a l o y i i f , I m e a n o n e , a s with all witnesses as you give your evidence we will be mindful of the fact that a lot of time has lapsed since the events to which you will be – on which you will be giving evidence and - number one, number two we will bear in mind that you no longer have the kind of access to 20 documents that you would have had if you were still Minister and number three to the extent that there might be documents that are, to you knowledge, not within the Commission that would have assisted you on giving evidence – in giving evidence and assisting the Commission on certain issues, do feel free as we go along and you are asked questions, do feel free to specify that there is a particular Page 96 of 218 03 DECEMBER 2019 – DAY 195 document which might assist and – so that to the extent that the Commission might not have received that or might not have been aware of it then attempts can be made to get it. MR BALOYI: Thank you Chairperson, thank you very much. CHAIRPERSON: M a y b e M s H o f m e y r l e t ’s g o t o q u a r t e r p a s t a n d t a k e the lunch break. A D V K AT E H O F M E Y R : Thank you Chair if I may then move immediately to that Cabinet meeting on the 2nd of February I indicate, M r B a l o y i t h a t t h e r e ’s b e e n e v i d e n c e b e f o r e t h e C o m m i s s i o n p r e v i o u s l y 10 that you weren’t in attendance at that meeting, is that correct? MR BALOYI: I’m not sure but that can be verified through Cabinet minutes. A D V K AT E H O F M E Y R : So as you sit here today you’re not sure whether you were or weren’t there? MR BALOYI: I’m not sure whether I was there or not. A D V K AT E H O F M E Y R : Thank you, can I ask, just in terms of background Mr Manyi and Mr Maseko gave evidence before this C o m m i s s i o n i n t h e f i r s t w e e k o f N o v e m b e r o f t h i s y e a r, d i d y o u e i t h e r watch their evidence or have you read the transcripts of their evidence? 20 MR BALOYI: No I didn’t watch that I – when I got a directive from the Commission to say I need to respond in particular to what Mr Maseko said to me, I approached the Commission, and I said, give me that statement I want to read it and I got that statement, I only got it the time the Commission gave it to me and I had received feedback from o t h e r c o l l e a g u e s , t h e r e ’s o n e s e n i o r c o m r a d e w h o c a l l e d m e t o s a y, Page 97 of 218 03 DECEMBER 2019 – DAY 195 Maseko was speaking and he was saying something and luckily there is nothing bad about you that was the end of it but when I saw his a ff i d a v i t t h a t I g o t f r o m t h e C o m m i s s i o n i t b e c a m e c l e a r t h a t t h e – t h e r e is something that really I have to have interest in. So in as far as Mr Manyi is concerned also I never watched that. The only time I watched Mr Manyi is the latest, I think he was appearing for the second time. A D V K AT E H O F M E Y R : Ye s . MR BALOYI: J a t h a t ’s w h e n I w a t c h e d t h a t b u t i f y o u – I m e a n h i s appearance before, I didn’t and I had no record what he told the 10 Commission. A D V K AT E H O F M E Y R : So my question related to the evidence that t h e y g a v e i n N o v e m b e r o f t h i s y e a r, d i d y o u w a t c h t h a t e v i d e n c e o f M r Manyi? MR BALOYI: In November of this year? A D V K AT E H O F M E Y R : MR BALOYI: Ja…[intervenes]. A D V K AT E H O F M E Y R : MR BALOYI: Ye s . A few weeks ago. Ja part of it and with Mr Maseko I watched when he was – but it was not on the Commission thing, although they would bring 20 clips of what happened in the Commission when he was talking, I think i s F r a n k Ta l k o n e p r o g r a m m e o f T V a b o u t t h a t s o t h a t ’s e x a c t l y t h a t . A D V K AT E H O F M E Y R : T h a n k y o u , i t ’s j u s t h e l p f u l f o r m e t o k n o w what extent of knowledge you may have of their testimony so I a p p r e c i a t e t h a t . W h e r e i t ’s r e l e v a n t I w i l l m a k e r e f e r e n c e t o w h a t t h e y said and I will ask for your comment on it. Page 98 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: No problem. A D V K AT E H O F M E Y R : Thank you. Mr Baloyi can you assist us with your understanding of who takes the decision to transfer a Director General? MR BALOYI: If I were to sing a song about answering that question I ’ l l s a y c o n s e n t , c o n c u r, c o n c u r, a p p r o v e , m e a n i n g t h a t w h e n t h e r e h a s to be a transfer of a Director General there must be an initiator and there must be the – and the initiator meaning that concurs that I’d like t o s e e t h i s D i r e c t o r G e n e r a l t r a n s f e r r e d . E i t h e r i t ’s t h e r e c e i v i n g o r t h e 10 releasing then the Director General himself has to give consent and t h a t C a b i n e t h a s t o c o n c u r a n d t h a t t h e P r e s i d e n t h a s t o t r a n s f e r. S o t h a t ’s w h y I ’ m s a y i n g i s c o n s e n t , c o n c u r, c o n c u r, c o n c u r, a p p r o v e o r t r a n s f e r. A D V K AT E H O F M E Y R : T h a t ’s h e l p f u l t h a n k y o u . W e w i l l u s e t h a t a s a g u i d e t o y o u r e v i d e n c e t o d a y. Can I ask you to pick up your first statement to the Commission it is in Exhibit NN4 and I’d like to…[intervenes]. CHAIRPERSON: I ’ m s o r r y, I ’ m s o r r y M s H o f m e y r, y o u s a i d t h e r e h a s to be an initiator? 20 MR BALOYI: Ye s . CHAIRPERSON: Before there can be a transfer of a Director General m a y b e o f a n y o ff i c e r o r e m p l o y e e b u t a D i r e c t o r G e n e r a l . MR BALOYI: Ye s . CHAIRPERSON: MR BALOYI: Who could qualify as an initiator of a transfer? The Director General…[intervenes]. Page 99 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Or in other words who may initiate, who may be an initiator? MR BALOYI: Thanks Chairperson, the Director General himself/herself may initiate if he or she initiates his or her Minister n e e d t o c o n c u r. T h e M i n i s t e r w h e r e t h i s p e r s o n i s b e i n g t r a n s f e r r e d t o h a s t o c o n c u r. C a b i n e t h a s t o c o n c u r t h e n t h e P r e s i d e n t s i g n s a Presidential minute which is co-signed by the Minister of Public Service a n d A d m i n i s t r a t i o n t o e ff e c t t h e t r a n s f e r b u t t h e M i n i s t e r, o n e M i n i s t e r c a n a l s o i n i t i a t e a t r a n s f e r. S o i f t h a t M i n i s t e r i n i t i a t e s a t r a n s f e r h e o r 10 s h e m u s t g e t t h e c o n s e n t o f t h e o ff i c i a l t o b e t r a n s f e r r e d a n d h e o r s h e must have actually have found an alternative as to where this person is being transferred to and he or she must actually make sure that when t h i s p e r s o n g e t s t r a n s f e r r e d t h e r e h e ’s n o t g o i n g t o b e w o r s e o ff . So i t ’s e i t h e r a t t h e s a m e l e v e l j u s t l i k e t h a t , s o t h o s e a r e t h e p e o p l e w h o initiate but there are certain circumstances where the Minister of Public Service and Administration may initiate. So if – Chair we have in as far as Executive Authorities we have what we call Line Function Ministers a n d a L i n e F u n c t i o n M i n i s t e r i s a M i n i s t e r f o r a p a r t i c u l a r M i n i s t r y. S o a one Line Function Minister may initiate a – or the Executive Authority 20 of DPSA may initiate but that is under certain circumstances that I may refer to. CHAIRPERSON: So if I’m a DG I can initiate my transfer and then I need the consents, concurrences and approval that you talked about. If I a m t h e M i n i s t e r, i f I ’ m a M i n i s t e r a n d I w a n t t o h a v e m y D G transferred I can initiate that transfer and similarly I would need the Page 100 of 218 03 DECEMBER 2019 – DAY 195 consents and concurrences and approval that you talked about? MR BALOYI: Ye s s i r. CHAIRPERSON: And under certain special circumstances the Minister of Public Service and Administration may initiate the transfer of the DG of another Minister not necessarily his or her own, is that right? MR BALOYI: I t ’s r i g h t C h a i r. CHAIRPERSON: MR BALOYI: T h a t ’s w h a t I ’ m s a y i n g . CHAIRPERSON: 10 T h a t ’s w h a t y o u ’ r e s a y i n g ? Apart from being able to initiate the transfer of his or her own DG he or she can also initiate the transfer of the DG of another Minister? MR BALOYI: Ye s C h a i r p e r s o n . CHAIRPERSON: Every initiator of a transfer needs the various consents and concurrences and approvals that you talked about? MR BALOYI: Exactly Chairperson. CHAIRPERSON: Ye s o k a y t h a n k y o u . A D V K AT E H O F M E Y R : T h a n k y o u C h a i r, j u s t b e f o r e t h e b r e a k t h e r e ’s o n e a s p e c t o f M r B a l o y i ’s a ff i d a v i t I ’ d l i k e t o g o t o a n d t h e n h a n d u p two documents because I think it will be useful for Mr Baloyi to look at 20 t h e m o v e r l u n c h , i f w e m a y. CHAIRPERSON: Ye s o k a y. A D V K AT E H O F M E Y R : before we adjourn. So if we could just conclude those two aspects Mr Baloyi I ask you to turn to page 12 of Exhibit NN4. MR BALOYI: I’m there. Page 101 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : Thank you and this is in relation to this broad question about your guidance on the process that is followed to t r a n s f e r D G ’s b e c a u s e i f y o u p i c k i t u p a t p a r a g r a p h F F o n t h a t p a g e , y o u s a y, “ B e c a u s e m y o ff e r w a s a g r e e d t o ” , I’m going to come back to that in a moment but you there d e s c r i b e a p r o c e s s , y o u s a y, “I manage the transfer process and I think it should be in the records of DPSA and/or GCIS that due process was managed through, namely”, 10 And then I’m interested in this list right, can you tell us what these documents are that are required in the process? MR BALOYI: The first one madam mentioned there is a written consent of the releasing of the Executive Authority because FF talks about a situation where I as Minster for Public Service and Administration then initiated and then I then said, “having initiated this then the due process was managed”, And what I’m saying in terms of that document is that if this due document is managed if I was keeping record of all these files I will 20 t h e n s a y, t h i s i s o n e , t h e c o n s e n t l e t t e r, t h i s i s t w o , t h e C a b i n e t m e m o r a n d u m , t h i s i s t h r e e t h e P r e s i d e n t ’s m i n u t e c o - s i g n e d a n d I ’ v e listed those document there. A D V K AT E H O F M E Y R : MR BALOYI: Thank you. In the process those documents are very important. A D V K AT E H O F M E Y R : T h a n k y o u i n p r e p a r a t i o n f o r t o d a y ’s e v i d e n c e Page 102 of 218 03 DECEMBER 2019 – DAY 195 w e w e r e a b l e t o d o w n l o a d o ff t h e i n t e r n e t , t h i s m o r n i n g a c t u a l l y a – what appears to be a standard form Cabinet memorandum which is the m e m o r a n d u m w h i c h m u s t b e f i l l e d i n w h e n e v e r a p p o i n t m e n t s o f D G ’s are made in the Public Service and Mr Baloyi, given your extensive knowledge of the Public Service, I wonder if I could, make available to you that form, it is together with an Annexure which is a protocol document on the principles and procedures to be followed for the recruitment and filling of posts of Heads of Department and Deputy Director Generals at National level, are you aware of those documents 10 as you sit here? MR BALOYI: Madam you can make that document available or you can ask a question on that document I can actually respond. A D V K AT E H O F M E Y R : Thank you, my suggestion Chair is that I make it available to Mr Baloyi now and to yourself and then we take the lunch adjournment and then I can traverse questions with him afterwards. CHAIRPERSON: Ye s , n o t h a t ’s f i n e l e t ’s d o i t t h a t w a y. A D V K AT E H O F M E Y R : CHAIRPERSON: Thank you. Do you have a copy he can give the witness, you can give this to Mr Baloyi. 20 MR BALOYI: Thank you very much. CHAIRPERSON: N o t h a t ’s f i n e , t h e n w e ’ l l t a k e t h e l u n c h a d j o u r n m e n t , we are going to take the lunch adjournment and we will resume at quarter past two, we adjourn. A D V K AT E H O F M E Y R : REGISTRAR: T h a n k y o u C h a i r. All rise. Page 103 of 218 03 DECEMBER 2019 – DAY 195 I N Q U I RY A D J O U R N S I N Q U I RY R E S U M E S CHAIRPERSON: Okay let us proceed. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. Mr Baloyi before the break we were at page 12 of Exhibit NN4 and you had provided us with the list thereof the documents that comprise the process for a transfer of a D G . I w o u l d j u s t l i k e t o p i c k u p o n t h e f i r s t o n e l i s t e d t h e r e . Yo u l i s t t h e r e t h e w r i t t e n c o n s e n t o f t h e r e l e a s i n g e x e c u t i v e a u t h o r i t y. Is that something that will be placed before cabinet? 10 MR BALOYI: No it is not placed before cabinet. It is placed with the Minister for Public Service and Administration. CHAIRPERSON: I am sorry I missed that what is not placed before cabinet? A D V K AT E H O F M E Y R : T h e w r i t t e n c o n s e n t o f t h e r e l e a s i n g e x e c u t i v e a u t h o r i t y. C H A I R P E R S O N : O h o k a y. A D V K AT E H O F M E Y R : B u t t h e r e i s a c a b i n e t m e m o r a n d u m . MR BALOYI: But I – can I – can I continue there? A D V K AT E H O F M E Y R : C e r t a i n l y. 20 MR BALOYI: But the cabinet memorandum when it is written to cabinet it will indicate that Minister so and so has given consent to. A D V K AT E H O F M E Y R : R i g h t b u t t h e a c t u a l w r i t t e n c o n s e n t i t s e l f w i l l not be attached to that memorandum? MR BALOYI: No. A D V K AT E H O F M E Y R : And you list then the cabinet memorandum Page 104 of 218 03 DECEMBER 2019 – DAY 195 itself requesting cabinet to approve the transfer and then the third document is the co-signed cabinet Minister of the Minute of the Minister o f D P S A a n d t h e P r e s i d e n t . C a n I j u s t s t o p t h e r e ? Yo u r e f e r t o i t h e r e as a cabinet minute but in your evidence earlier you referred to it as a Presidential Minute and you later in your statements refer to it as a Presidential Minute? MR BALOYI: It is a Presidential Minute. A D V K AT E H O F M E Y R : O k a y s o t h e r e i s a c o r r e c t i o n t h a t i s r e q u i r e d a t the top of page 13. 10 MR BALOYI: That is fine. A D V K AT E H O F M E Y R : I t i s a P r e s i d e n t i a l M i n u t e . A n d t h e M i n i s t e r o f D P S A y o u w e r e t h a t M i n i s t e r a t t h e t i m e o f M r M a n y i a n d M r M a s e k o ’s transfers, is that correct? M R B A L O Y I : Ye s i t i s c o r r e c t . A D V K AT E H O F M E Y R : A n d w h y i s i t c o - s i g n e d b y t h a t M i n i s t e r ? MR BALOYI: Come again? A D V K AT E H O F M E Y R : W h y i s t h e P r e s i d e n t i a l M i n u t e c o - s i g n e d b y t h e Minister of DPSA? MR BALOYI: 20 Is the initiating Minister – if you look at it it is then Cabinet Minister – it is a requirement. A D V K AT E H O F M E Y R : R i g h t . MR BALOYI: It is a requirement to be like that. CHAIRPERSON: It might be something in the Constitution. I am not sure certain things when the President signs if they concern the department of another – if a Minister is required. Page 105 of 218 03 DECEMBER 2019 – DAY 195 M R B A L O Y I : C h a i r. CHAIRPERSON: The Minister to sign. It might be or it might not be. But there is a requirement like that in regard to certain decisions taken b y t h e P r e s i d e n t t h a t m a y a ff e c t a d e p a r t m e n t w h e r e t h e r e i s a M i n i s t e r. MR BALOYI: Certainly Chairperson it is Chapter 5 of the Constitution. CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : T h a n k y o u . I – I d o h a v e a c o p y o f i t a v a i l a b l e I will get it in a moment just so that we can check that up. Thank you. So those are the relevant documents and then before the break I – I 10 handed to you what appears to be a – a template. I called it a sort of proforma for the type of Cabinet Memorandum that will serve before cabinet when there is an appointment of a Director General. Have I understood the document in accordance with your understanding Mr Baloyi. M R B A L O Y I : Ye s i t i s a p r o f o r m a C a b i n e t M e m o r a n d u m . A D V K AT E H O F M E Y R : R i g h t . A n d t h e n t h e r e i s a l s o a n n e x u r e B w h i c h I handed to you which is a protocol about the principles and procedures to be followed for the recruitment and filling of posts of heads of department. Do you see that? 20 MR BALOYI: I see that. A D V K AT E H O F M E Y R : W a s t h a t o p e r a t i v e a t t h e t i m e t h a t M r M a s e k o and Mr Manyi were being transferred? MR BALOYI: The document – I think it is… CHAIRPERSON: I think the question is whether at the time of Mr M a s e k o ’s t r a n s f e r a n d M r M a n y i ’s t r a n s f e r t h i s t y p e o f p r o f o r m a Page 106 of 218 03 DECEMBER 2019 – DAY 195 memorandum would have been what was used normally in such a case? MR BALOYI: Exactly Chairperson. C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : T h a n k y o u . I f w e l o o k a t a n n e x u r e B i t s e t s o u t in the first line of the table that the purpose of the document is to c o n f i r m t h e p r i n c i p l e s o r p r o c e d u r e s t h a t a p p l y i n a p p o i n t i n g H O D ’s a n d D D G ’s a t n a t i o n a l l e v e l a n d a t p o i n t 2 i t i n d i c a t e s t h a t a l t h o u g h H O D ’s a n d D D G ’s a r e a p p o i n t e d b y t h e E x e c u t i v e A u t h o r i t i e s C a b i n e t a l s o plays a role in their appointment. 10 And then there is a reference to cabinet having adopted a protocol document. Are you aware of that document? M R B A L O Y I : Ye s I a m a w a r e . A D V K AT E H O F M E Y R : Right. And then if we go over to what is the second from last page of that document under item 17. 17 records… CHAIRPERSON: I a m s o r r y M s H o f m e y r. We have not – I have not admitted these. A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: And I realised when you referred to them that it is awkward because… 20 A D V K AT E H O F M E Y R : W e m u s t – i n d e e d . CHAIRPERSON: Do you want to attach them to the end of Exhibit NN4? A D V K AT E H O F M E Y R : C h a i r I t h i n k t h a t m a k e s s e n s e . I w i l l a s k … CHAIRPERSON: Ye s t h e n t h e n u m b e r i n g c a n – t h e p a g i n a t i o n c a n continue. Page 107 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : C a n b e p a g i n a t e d a c c o r d i n g l y. C H A I R P E R S O N : Ye s . Ye s . A D V K AT E H O F M E Y R : S o i f w e c a n s t a r t i t j u s t f o r t h e r e c o r d ? CHAIRPERSON: Then maybe we do not – we do not make them separate exhibits. A D V K AT E H O F M E Y R : N o . I n d e e d . CHAIRPERSON: Ja. Even though also making them separate exhibits would be no problem. A D V K AT E H O F M E Y R : H m . 10 CHAIRPERSON: We can either do that or just attach them at the end as part of Exhibit NN4. A D V K AT E H O F M E Y R : I t h i n k i t u s e f u l j u s t f o r f u t u r e p u r p o s e s t o k e e p them in NN4. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : I f I m a y m a k e t h a t s u g g e s t i o n ? CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : And then if I can suggest we start with annexure B. C H A I R P E R S O N : Ye s . 20 A D V K AT E H O F M E Y R : A n d i t w o u l d b e p a g i n a t e d f r o m p a g e 1 6 3 t h e n because that was our last existing page of Exhibit NN4? CHAIRPERSON: Ye s . Will somebody do the same for the witness there? A D V K AT E H O F M E Y R : W e w i l l i n d e e d . I f I m a y b e g l e a v e t o h a v e m y learned friend. Page 108 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : J u s t a p p r o a c h t h e w i t n e s s f o r t h a t p u r p o s e ? C H A I R P E R S O N : Ye s t o a s s i s t h i m j a . O k a y. A D V K AT E H O F M E Y R : O n m y c a l c u l a t i o n C h a i r t h e n a n n e x u r e D w h i c h is the second document. CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : W i l l c o m m e n c e a t p a g e 1 6 8 . CHAIRPERSON: The first one goes up to 167. A D V K AT E H O F M E Y R : C o r r e c t . 10 CHAIRPERSON: That is fine. Is the last page 174? A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: So I will just place on record that with the addition of two documents one being annexure B another one being annexure D or rather one marked annexure B the other one being marked annexure D Exhibit NN4 now goes up to page 17 – 174. So 163 to 167 is a document marked annexure B and written Protocol Document on the Principles and Procedures to be followed for the recruitment and filling of posts of Head of Department and so on. And then the next one is marked annexure D and it is written Ministry for the Public Service and 20 Administration. Ja. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r w e a r e i n d e b t e d . I w a s a b l e to just look at the Constitution in the break while we were doing that exercise. And I think the section you had in mind is Section 1012 of The Constitution. It provides that a written decision by the President must be countersigned by another cabinet member if that decision Page 109 of 218 03 DECEMBER 2019 – DAY 195 c o n c e r n s a f u n c t i o n a s s i g n e d t o t h a t o t h e r c a b i n e t m e m b e r. I s t h a t t h e section that you were referring to in Chapter 5 Mr Baloyi? M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : T h a n k y o u . T h e n w e w e r e c o n c e r n e d w i t h t h e document commencing at page 163 of Exhibit NN4 which in entitled annexure B and I had asked us to look at item 17 which you will find on paginated 166. And at paragraph 17 there or item 17 it is recorded that: “In order to allow the MPSA” – what is that Mr Baloyi? MR BALOYI: Minister for Public Service and Administration. 10 A D V K AT E H O F M E Y R : T h a n k y o u . “ To a d d v a l u e a n d t o f a c i l i t a t e t h e appointment of nominated candidates to posts of HOD and DDG in n a t i o n a l d e p a r t m e n t s N a t i o n a l E A’s ” – w h a t a r e t h o s e ? MR BALOYI: Executive Authorities. A D V K AT E H O F M E Y R : “Are required to forward information on these candidates to MPSA which I understand to be the Minister of Public Service and Administration.” And then it says “for this purpose a proforma letter and a Cabinet Memorandum containing all relevant information should be forwarded to the MPSA at least four weeks before the Cabinet Meeting.” 20 Do you see that? MR BALOYI: I see that. A D V K AT E H O F M E Y R : For practical reasons departments must deal with only one appointment per Cabinet Memorandum. M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : And then there is a note that certain things must be attached and that includes a Curriculum Vitae, is that correct? Page 110 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: It is correct Ma’am. A D V K AT E H O F M E Y R : And then at 19 it is recorded that after C a b i n e t ’s c o n c u r r e n c e h a s b e e n o b t a i n e d t h e r e l e v a n t E A w h i c h y o u have indicated is Executive Authority will issue an appointment letter to the successful candidate. Is that in accordance with your understanding of the procedure? M R B A L O Y I : Ye s M a ’ a m . A D V K AT E H O F M E Y R : N o w M r B a l o y i I a m m i n d f u l o f t h e f a c t t h a t t h i s a protocol about the appointments of Head of Departments and we are 10 not dealing with appointments at the moment. We are dealing with t r a n s f e r s f r o m o n e d e p a r t m e n t t o a n o t h e r. CHAIRPERSON: It is right. A D V K AT E H O F M E Y R : Is it your understanding that the same procedure is followed? MR BALOYI: Ma’am even when it comes to appointments practical I am not talking about theoretical I am talking about in practice what I experienced. Depending on the situation you will find documentation referred to the Minister for Public Service and Administration giving a time that is sometimes far less than the four weeks. It depends on the 20 situation. T h a t i s e x a c t l y. And if you can go and dig into Cabinet Memorandums the documents referred to Ministers of Public Service and Administration you will find that. A D V K AT E H O F M E Y R : H m . CHAIRPERSON: So you – the material condition prevalent dictate what happens. Page 111 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : But can I establish what are not negotiable elements of the process? Must there be a Cabinet Memorandum? MR BALOYI: There must be a Cabinet Memorandum yes Ma’am I agree. A D V K AT E H O F M E Y R : Must the consent of the releasing authority have been obtained? M R B A L O Y I : I n a s f a r a s t r a n s f e r s o k a y. A D V K AT E H O F M E Y R : I s t h e a n s w e r y e s ? M R B A L O Y I : Ye s . 10 A D V K AT E H O F M E Y R : A n d m u s t C a b i n e t m a k e a d e c i s i o n a b o u t t h a t transfer? MR BALOYI: Okay – it is correct. A D V K AT E H O F M E Y R : T h a n k y o u . CHAIRPERSON: Well you probably do understand that when Ms Hofmeyr ask these questions starting with must. M R B A L O Y I : Ye s . CHAIRPERSON: She means that she expects you to make a distinction between situations where a certain requirement is a must, is obligatory and circumstances where there may be departures and that particular 20 r e q u i r e m e n t i s n o t m e t . Yo u a p p r e c i a t e t h a t ? MR BALOYI: Ja with that clarification Chairperson I indicated that the material condition prevalent dictate what happens and I have indicate that practically that there will be situations where you will get documents calling on you to act and that comes outside the prescribed timeline. Page 112 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : C h a i r ’s q u e s t i o n . Ye s . Ye s . But just to follow up from the I understood that evidence and for example I think you gave that four weeks that we saw referred to in the protocol may be shorter in a given situation. Is that correct? M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : B u t w h a t I u n d e r s t a n d … CHAIRPERSON: I a m s o r r y. Just articulate your response clearly so t h a t i t w i l l b e c a p t u r e d b y t h e r e c o r d s . Yo u d i d s a y y e s b u t I t h i n k i t might not have been captured. Did you say yes? 10 MR BALOYI: Ja I said yes. I said yes Chairperson because when I say material condition I am saying it depends on factors at play when a consideration is done for the appointment. A D V K AT E H O F M E Y R : I n d e e d . MR BALOYI: So you do not – you do not necessarily have to say on technicality you are sending this back. For as long as – because the issue here it is in order to give enough time for the MPSA to do the necessary check check. So it is possible to do that within a short period of time so – so it should be. A D V K AT E H O F M E Y R : 20 Ye s . But then just to be clear on your evidence. I then moved on to what has to be the case? What must be the case? In any circumstance and I understand your evidence to be what must be the case on your understanding of transfers? t h e r e i s t h e c o n s e n t f r o m t h e r e l e a s i n g a u t h o r i t y. Is that There is a Cabinet Memorandum and there is a Cabinet decision on the transfers. those three things required for a transfer? Page 113 of 218 Are 03 DECEMBER 2019 – DAY 195 MR BALOYI: They are required. A D V K AT E H O F M E Y R : T h a n k y o u . MR BALOYI: And the fourth one a Presidential Minute. A D V K AT E H O F M E Y R : T h a n k y o u . I d i d o m i t t h a t . S o t h o s e a r e t h e four requirements. They must be there. M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : In order for the transfer to be lawful. Is that correct on your understanding? MR BALOYI: That is correct Ma’am. 10 A D V K AT E H O F M E Y R : Thank you. transfer of Mr Maseko himself. I would then like to go to the Yo u d e a l w i t h t h a t i n s o m e d e t a i l i n y o u r a ff i d a v i t s . A n d i f I c a n p i c k t h a t u p i n E x h i b i t N N 4 a t p a g e 6 ? MR BALOYI: I am there. A D V K AT E H O F M E Y R : A n d I w o u l d l i k e t o s t a r t f o r n o w a t p a r a g r a p h D. C H A I R P E R S O N : M a y b e b e f o r e y o u s t a r t M s H o f m e y r. M r B a l o y i I j u s t want to say to you before you – we get into this part of your evidence. M R B A L O Y I : Ye s C h a i r p e r s o n . CHAIRPERSON: That this is a very important part of your evidence. 20 M R B A L O Y I : O k a y. CHAIRPERSON: I know that you did say at the beginning of your evidence that it has been a long time. M R B A L O Y I : Ye s . CHAIRPERSON: And without having access to documents within g o v e r n m e n t i t m a k e s i t d i ff i c u l t t o r e m e m b e r c e r t a i n t h i n g s . Page 114 of 218 So I just 03 DECEMBER 2019 – DAY 195 want you to know that when it comes to this it is quite important and it is quite important that we know if what you are telling us is something that you have a clear recollection of and we must know if you are not sure and so on. Okay? MR BALOYI: Thank – thanks Chairperson. CHAIRPERSON: Alright. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. about being approached. At paragraph D you talk Can you tell us who approached you and what was said when that approach was made? 10 MR BALOYI: Come again? A D V K AT E H O F M E Y R : A t p a r a g r a p h D o n p a g e 6 . M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : Yo u t a l k a b o u t b e i n g a p p r o a c h e d o n t h e m a t t e r concerning Mr Maseko. Do you see that? M R B A L O Y I : Ye s , y e s . A D V K AT E H O F M E Y R : Can you please tell the Chairperson who approached you about Mr Maseko and what was said when that approach was made? MR BALOYI: 20 The – the Executive Authority of GCIS who was the Minister in the Presidency responsible for performance monitoring and evaluation at the time is the one who approached me. A D V K AT E H O F M E Y R : Thank you. And just to be clear the person who occupied that position at the time was the late Minister Chabane. Is that correct? MR BALOYI: Well you mentioning it. Page 115 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : Ye s I w a n t t o k n o w i f m y u n d e r s t a n d i n g o f t h e facts is correct. M R B A L O Y I : Ye s . CHAIRPERSON: Was it Mr Chabane – Minister Chabane? MR BALOYI: It was – it was Chairperson. CHAIRPERSON: It was? MR BALOYI: It was Chairperson. It is just that one if not comfortably in a habit of singing names but it was. CHAIRPERSON: Oh ja. It is quite important in this case at least. 10 MR BALOYI: Ja. CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : Ye s a n d i t m a y b e i m p o r t a n t f o r t h e r e c o r d i n d u e c o u r s e C h a i r. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : S o I w i l l a s k f o r t h a t c l a r i f i c a t i o n . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : W h e r e i t i s r e q u i r e d . C H A I R P E R S O N : Ye s , y e s . A D V K AT E H O F M E Y R : S o t h e l a t e M i n i s t e r C h a b a n e a p p r o a c h e d y o u 20 and what did he say? MR BALOYI: What he said I think I wrote it in – it is there is the – in t h e a ff i d a v i t . A D V K AT E H O F M E Y R : I n d e e d . MR BALOYI: That a decision has been taken that Mr Maseko should exit. Page 116 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : T h a n k y o u . I w o u l d l i k e t o p r o b e t h a t f u r t h e r i n a moment but can I just ask you do you have a recollection of when late Minister Chabane approached you for this conversation? MR BALOYI: No it is around the time that is what I have indicated that I cannot remember exactly when that was. A D V K AT E H O F M E Y R : W e l l c a n I – c a n I r a i s e t h i s w i t h y o u ? T h e r e has been evidence before the commission that former President Zuma w a s o v e r s e a s b e t w e e n t h e 2 5 J a n u a r y 2 0 11 … CHAIRPERSON: 10 Oh do you want to say – I do not know if it is overseas or out of the country? A D V K AT E H O F M E Y R : O u t o f t h e c o u n t r y i n d e e d . CHAIRPERSON: Maybe out of the country is neutral. A D V K AT E H O F M E Y R : I s m o r e a c c u r a t e . A D V K AT E H O F M E Y R : N e u t r a l e n o u g h j a . A D V K AT E H O F M E Y R : I n d e e d . I n d e e d . H e w a s o u t o f t h e c o u n t r y. MR BALOYI: Ja. A D V K AT E H O F M E Y R : F r o m t h e 2 5 J a n u a r y 2 0 11 u n t i l t h e 1 F e b r u a r y 2 0 11 . And there is also been evidence from a number of witnesses before the commission that there were interactions between former 20 P r e s i d e n t Z u m a a n d M i n i s t e r C h a b a n e a b o u t M r M a s e k o ’s e x i t f r o m G C I S w h e n h e w a s o u t o f t h e c o u n t r y. S o c a n I a s k d o y o u h a v e a n y certainty as to whether these interactions you had with late Minister C h a b a n e o c c u r r e d i n t h a t w i n d o w p e r i o d b e t w e e n t h e 2 5 J a n u a r y 2 0 11 a n d t h e 1 F e b r u a r y 2 0 11 ? MR BALOYI: I a m d e f i n i t e l y n o t s u r e e x a c t l y. Page 117 of 218 I cannot remember 03 DECEMBER 2019 – DAY 195 exactly the date and – and I am not privy to the information of the P r e s i d e n t – f o r m e r P r e s i d e n t ’s m o v e m e n t s . S o I w i l l – d i d n o t r e a l l y b e factually correct in terms of that. A D V K AT E H O F M E Y R : H m . B u t c o u l d i t h a v e o c c u r r e d i n t h a t w e e k ? MR BALOYI: It is the same question Ma’am. I have indicated that I – I cannot remember exactly when that happened. C H A I R P E R S O N : W e l l m a y b e l e t u s p u t i t t h i s w a y. Yo u w i l l r e m e m b e r that I have just – I just said this is a very important part of the evidence you are going to give. So it is important that we understand. 10 M R B A L O Y I : E x a c t l y. CHAIRPERSON: What you recall and what you know and what you do n o t k n o w. Yo u – y o u h a v e o f c o u r s e b e e n a p p l y i n g y o u r m i n d t o t h e issue of the – to the circumstances surrounding the transfer of Mr Maseko. M R B A L O Y I : Ye s C h a i r p e r s o n . CHAIRPERSON: From GCIS to your department. C H A I R P E R S O N : Ye s C h a i r. CHAIRPERSON: And the transfer of Mr Manyi from the Department of Labour to GCIS. 20 M R B A L O Y I : Ye s . CHAIRPERSON: So you – you – you have an idea of some of the – of those events maybe not everything because you did not have certain documents. M R B A L O Y I : Ye s . CHAIRPERSON: So – and you would know – you do know that that Page 118 of 218 03 DECEMBER 2019 – DAY 195 t r a n s f e r o c c u r r e d o f b o t h o n t h e 2 F e b r u a r y – F e b r u a r y 2 0 11 . Yo u r e m e m b e r t h a t ? Yo u r e m e m b e r t h a t f r o m t h e d o c u m e n t s y o u h a v e b e e n looking, is that right? MR BALOYI: Ja it has been made clear to me by the commission. C H A I R P E R S O N : Ye s . MR BALOYI: Referring to a Cabinet meeting. C H A I R P E R S O N : Ye s . MR BALOYI: Around there. C H A I R P E R S O N : Ye s . 10 MR BALOYI: So in as far as that is concerned. C H A I R P E R S O N : Ye s . MR BALOYI: I am aware. C H A I R P E R S O N : Yo u a r e a w a r e . MR BALOYI: But through my recollection. C H A I R P E R S O N : Ye s . MR BALOYI: I cannot attest to that. C H A I R P E R S O N : Yo u w o u l d n o t r e m e m b e r. M R B A L O Y I : Ye s . C H A I R P E R S O N : Ye s . 20 M R B A L O Y I : Ye s . CHAIRPERSON: Okay now would you be able to say that even though you might not remember exactly on what date Minister Chabane approached you but it was before this – the date on which Mr Maseko was transferred or would you not be able to say that? MR BALOYI: I would be able to say Chairperson. It was before. Page 119 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: It was before? MR BALOYI: It was before because it was that discussion I had with M r – w i t h t h e M i n i s t e r c o n c e r n e d w h e r e I i n i t i a t e d h i s t r a n s f e r. C H A I R P E R S O N : Ye s . MR BALOYI: I did not get – become aware. C H A I R P E R S O N : Ye s . MR BALOYI: I initiated it. C H A I R P E R S O N : Ye s . MR BALOYI: The advice that was required of me. 10 CHAIRPERSON: Hm. MR BALOYI: Was to then say how do we deal with exit management? C H A I R P E R S O N : Ye s . MR BALOYI: Then I advised on two options. C H A I R P E R S O N : Ye s . MR BALOYI: And I – and out of those options I recommended one. C H A I R P E R S O N : Ye s . MR BALOYI: So it was definitely before. C H A I R P E R S O N : I t w a s b e f o r e . N o w I t h i n k o n M r M a s e k o ’s e v i d e n c e before this commission the announcement to cabinet that he was to be 20 transferred from GCIS as to your department was made during the meeting of the cabinet or at the end of the meeting of the cabinet on W e d n e s d a y t h e 2 n d F e b r u a r y 2 0 11 . MR BALOYI: Hm. CHAIRPERSON: So – but the Presidential Minute might have been signed I think the following day I am not sure or the transfer in terms of Page 120 of 218 03 DECEMBER 2019 – DAY 195 t h e P r e s i d e n t i a l M i n u t e m i g h t h a v e b e e n t o t h e e ff e c t t h a t t h e t r a n s f e r w o u l d t a k e e ff e c t o n e d a y a f t e r t h e s i g n i n g o f t h e P r e s i d e n t i a l M i n u t e . So when you say – when you say before it was before would you say before the – the 2nd the day of the meeting of that cabinet or you are saying before the 3rd? Or could it have been on the 2nd on the day of t h e a n n o u n c e m e n t t o c a b i n e t ? O r i s i t d i ff i c u l t t o s a y ? M R B A L O Y I : N o i t i s n o t d i ff i c u l t C h a i r p e r s o n . C H A I R P E R S O N : J a o k a y. MR BALOYI: The Presidential Minute normally is signed after cabinet. 10 CHAIRPERSON: After cabinet yes. MR BALOYI: Because the President exercises his executive responsibility as the Executive Authority of the National Executive in c o n s u l t a t i o n w i t h a M i n i s t e r. A n d M i n i s t e r s i n a c o l l e c t i v e b o d y c a l l e d cabinet. So cabinet has to concur first. After cabinet concurrence then the President signs the… CHAIRPERSON: Presidential Minute. MR BALOYI: The Presidential Minute. CHAIRPERSON: Hm. MR BALOYI: So the announcement. 20 CHAIRPERSON: Hm. MR BALOYI: In a statement by the GCIS is a statement that get issued immediately after cabinet. CHAIRPERSON: Hm. MR BALOYI: After the cabinet that took that decision. CHAIRPERSON: Hm. Page 121 of 218 03 DECEMBER 2019 – DAY 195 M R B A L O Y I : S o i t i s e i t h e r o n t h e s a m e d a y o r t h e f o l l o w i n g d a y. CHAIRPERSON: Hm. MR BALOYI: And then before the cabinet take a decision there has to be a Cabinet Memorandum that serve in cabinet. And then that is the C a b i n e t M e m o r a n d u m t h a t r e c o m m e n d t h e t r a n s f e r. And that is the Cabinet Memorandum that ignite a discussion in cabinet that decide to c o n c u r. C H A I R P E R S O N : Ye s . MR BALOYI: And it is that concurrence that then gives the President 10 the authority to sign the President Minute. I think in that sequence. C H A I R P E R S O N : Ye s . MR BALOYI: But before Minister Chabane – because when I had a discussion and I have indicated it there. When we had a discussion and I proposed that Mr Maseko should be – we should consider two options. Either to re-determine his contract and allow him to go and I was not for that. It was actually my – not my liking that at the slightest situation or slightest moment or caring we should kick a DG out of place. I then said, let us look at if we have the only route is re- determination. If we can we can – we can transfer him. And when we 20 discussed that we agreed with Minister Chabane that that will only happen if there is consent – if he agrees himself which is what I a d v i s e d . A n d w e a g r e e d t h a t b o t h o f u s s h o u l d c o n s u l t h i m i n d i v i d u a l l y. So I can imagine that when the decision – if the decision of cabinet was on the 2nd it is a decision that should have preceded having preceded by this interactions. Page 122 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: The consultation? MR BALOYI: The consultations. CHAIRPERSON: Now are you able to say the approach to you by Minister Chabane was or would have been a few days before the cabinet meeting where the announcement was made? Or would you say it may have been weeks before? It may have been months before. What are you able to say in that regard? MR BALOYI: I cannot remember Chairperson exactly as to when. C H A I R P E R S O N : Ye s . 10 MR BALOYI: I cannot – I cannot recall as to exactly when. C H A I R P E R S O N : Ye s , y e s . MR BALOYI: That actually happened. C H A I R P E R S O N : Ye s . B u t … MR BALOYI: There is a letter that Minister Chabane wrote. C H A I R P E R S O N : Ye s . MR BALOYI: And which letter I got from – from the commission and which letter will be helpful to deal with such issues. CHAIRPERSON: I think Ms Hofmeyr will take you to that letter at the right – at the right time. 20 M R B A L O Y I : O k a y. CHAIRPERSON: Are you able - would the date of that letter assist you to - to say maybe it was a few days before or - when we get to it we … M R B A L O Y I : Ye s . CHAIRPERSON: We might not have to get - go - get to it, but Ms Hofmeyr might decide let us go to it immediately if that is going to Page 123 of 218 03 DECEMBER 2019 – DAY 195 help. Would you think it might help you in terms of estimating? MR BALOYI: I - I think so Chairperson. C H A I R P E R S O N : I t m a y. O k a y. M s H o f m e y r. A D V K AT E H O F M E Y R : C h a i r a n d M r B a l o y i y o u w i l l f i n d i t i n E X H I B I T NN5 … MR BALOYI: NN5. A D V K AT E H O F M E Y R : A n d y o u w i l l f i n d i t a t p a g e 4 3 - 4 - 3 . CHAIRPERSON: Did you say 4-6? A D V K AT E H O F M E Y R : 4 - 3 . 10 CHAIRPERSON: 4-3. M R B A L O Y I : N N 5 y o u s a y. CHAIRPERSON: Have you got NN5? MR BALOYI: I am - I am … CHAIRPERSON: Have you got NN5? Just go and assist … A D V K AT E H O F M E Y R : A n d i t i s p a g e 4 3 . CHAIRPERSON: Assist him to … MR BALOYI: Hm. C H A I R P E R S O N : Yo u - y o u n e e d t o l o o k a t t h e s p i n e o f t h e f i l e t o s e e whether it is NN5 or not and then … 20 A D V K AT E H O F M E Y R : M r B a l o y i I t h i n k y o u m i g h t b e i b n N N 1 t o f o u r. The other file - the large file in front of you … M R B A L O Y I : T h i s o n e ? O h . Ye s . A D V K AT E H O F M E Y R : I s p r o b a b l y N N 5 . MR BALOYI: Five. A D V K AT E H O F M E Y R : T h a n k y o u . Page 124 of 218 03 DECEMBER 2019 – DAY 195 M R B A L O Y I : Ye s . O k a y. A D V K AT E H O F M E Y R : A n d t h e n i f y o u g o t o p a g e … M R B A L O Y I : S o r r y. A D V K AT E H O F M E Y R : 4 3 - 4 - 3 . MR BALOYI: Page 43? A D V K AT E H O F M E Y R : Ye s . T h a t i s t h e l e t t e r I t h i n k y o u a r e r e f e r r i n g to, but you can tell me if I am in correct. M R B A L O Y I : Yo u s a y i t i s p a g e ? A D V K AT E H O F M E Y R : 4 - 3 - 4 3 . 10 CHAIRPERSON: Page 43. Page 43. Yo u l o o k a t t h e - f o r p a g e numbers you look at the red numbers at the right hand corner at the top. MR BALOYI: Oh. The red numbers? CHAIRPERSON: Ja. The red numbers at the top. M R B A L O Y I : O h , o k a y. CHAIRPERSON: Look for - when you say - when you say 43. It is 0-43 but we … M R B A L O Y I : O h , o k a y. CHAIRPERSON: But we do not - we do not say zero. 20 MR BALOYI: I am there. CHAIRPERSON: Yo u a r e t h e r e . O k a y. Ms Hofmeyr do you want to take it from there? A D V K AT E H O F M E Y R : Mr Baloyi is that the letter you were referring to? MR BALOYI: That is the letter I am referring to. Page 125 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: T h a t l e t t e r i s d a t e d 2 F e b r u a r y 2 0 11 w h i c h w o u l d b e the Wednesday of the Cabinet Meeting. Can you see that? MR BALOYI: I - I see that Chairperson. C H A I R P E R S O N : Ye s a n d i t i s a d d r e s s e d t o y o u . MR BALOYI: It is addressed to me. CHAIRPERSON: By Minister Chabane? M R B A L O Y I : Ye s . CHAIRPERSON: It says: “ I c o n c u r s u b j e c t t o t h e P r e s i d e n t ’s a p p r o v a l w i t h 10 the transfer of Mr T J Maseko the Director-General of the Government Communication and Information System - GCIS - in terms of Section 12(3)(a) to the post of Director-General of the Department of Public Service and Administration - DPSA.” MR BALOYI: Hm. C H A I R P E R S O N : “ T h e p r o p o s e d e ff e c t i v e d a t e o f t h e t r a n s f e r namely the President date signs following the the President date that the Minute is also supported.” 20 M R B A L O Y I : O k a y. C H A I R P E R S O N : I t i s - i t i s - h e - h e s i g n e d i t o n 2 F e b r u a r y. M R B A L O Y I : Ye s . CHAIRPERSON: The same date of the Cabinet Meeting. MR BALOYI: Ja. CHAIRPERSON: When then do you think he approached you? Page 126 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: I think it - it could be that week before … CHAIRPERSON: During that week? MR BALOYI: Before - ja. Before the 2nd. C H A I R P E R S O N : Ye s . MR BALOYI: Ja. CHAIRPERSON: And - and you are fairly confident that it must be during that week? MR BALOYI: Hm. CHAIRPERSON: I am not saying you are certain. 10 M R B A L O Y I : O h . Ye s . I a m - I a m … CHAIRPERSON: Ja. I am just saying you are fairly confident. MR BALOYI: I am - I am fairly confident Chairperson. C H A I R P E R S O N : Ye s . Ye s . M R B A L O Y I : Ye s . C H A I R P E R S O N : O k a y. A l r i g h t . T h a n k y o u . M s H o f m e y r. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. Mr Baloyi if I can then ask y o u t o g o b a c k t o y o u r a ff i d a v i t w h i c h i s i n N N 4 w h i c h i s t h e o t h e r f i l e you had in front of you a moment ago. M R B A L O Y I : T h e o t h e r f i l e . O k a y. 20 CHAIRPERSON: We are going to NN4? A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: Oh. A D V K AT E H O F M E Y R : Chair and if you - if I can suggest Mr Baloyi just to keep NN4 available to you, because we will keep going back into it. Page 127 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: NN5? A D V K AT E H O F M E Y R : N N 4 . CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : For the moment, because Mr Baloyi put that away when he moved to NN5. C H A I R P E R S O N : O h . O k a y. A D V K AT E H O F M E Y R : S o m y s u g g e s t i o n i s j u s t t o k e e p i t a v a i l a b l e … CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : 10 Because we will be working with your statements and then on occasion we will have to go to NN5 … MR BALOYI: No problem. A D V K AT E H O F M E Y R : F o r a d o c u m e n t . MR BALOYI: No problem. C H A I R P E R S O N : O k a y. A D V K AT E H O F M E Y R : S o I a s k e d y o u t o g o b a c k t o N N 4 a n d t h e n i f we could pick it up at page 14 - 1-4, because here you start to give more details about that interaction that you had with Minister Chabane. MR BALOYI: Ja. I am there. A D V K AT E H O F M E Y R : A n d y o u h a v e g i v e n e v i d e n c e o n t h i s a m o m e n t 20 a g o i n y o u r t e s t i m o n y. If you could pick it up at paragraph B on that page. MR BALOYI: B, yes. A D V K AT E H O F M E Y R : Yo u s a y t h e r e : “It was in that discussion …” And you are describing a discussion between yourself and Page 128 of 218 03 DECEMBER 2019 – DAY 195 Minister Chabane. “…where I made a proposal for M r M a s e k o ’s transfer to the Department of Public Service and Administration after it came to light that there was a decision for his exit.” M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : W h a t - w h a t d o e s t h a t m e a n M r B a l o y i ? W h a t was communicated to you about Mr - from Minister Chabane? M R B A L O Y I : I t c o m m u n i c a t e s t h a t t h e r e w a s a n E x e c u t i v e A u t h o r i t y ’s 10 p o s i t i o n t h a t a - a - M r M a s e k o ’s e x i t s h a l l b e m a n a g e d a n d t h a t i s t h e a d v i c e h e w a s c o m i n g t o m e f o r. A D V K AT E H O F M E Y R : A n d c a n I j u s t b e … M R B A L O Y I : ( I n t e r v e n e s ) C h a i r. CHAIRPERSON: Before we go further was this discussion over the phone or in a meeting between the two of you? MR BALOYI: It - it was not over the phone. C H A I R P E R S O N : Yo u w e r e - y o u … MR BALOYI: But I - I - I mean I cannot remember exactly where we were. So … 20 CHAIRPERSON: But - but it was not over the phone? MR BALOYI: No. It was not. C H A I R P E R S O N : Yo u s e e t o g e t h e r ? M R B A L O Y I : W e w e r e t o g e t h e r. C H A I R P E R S O N : J a . O k a y. A l r i g h t . T h a n k y o u . A D V K AT E H O F M E Y R : And as I have your testimony he said it is a Page 129 of 218 03 DECEMBER 2019 – DAY 195 d e c i s i o n o f t h e E x e c u t i v e A u t h o r i t y. I s t h a t c o r r e c t ? M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : And what did you understand that to mean? Did you understand it to mean it is a decision of Minister Chabane or it is a decision of the Presidency? MR BALOYI: Minister No. and The Executive Authority who is a line function Principal of Mr Maseko is Mr Chabane - was Minister Chabane. A D V K AT E H O F M E Y R : S o h e c o n v e y e d t o y o u i t w a s h i s d e c i s i o n ? 10 MR BALOYI: No, no, no. He - what he said there - there is a decision. As to with who he consulted because remember madam their - their responsibility to appoint and to decide - to appoint and to transfer and to facilitate - to - to initiate exit has to be supported by the President. So - so I did not ask details as to whether you as Minister did you approach the - the President. He then said there is a definite decision that Mr Maseko has to - to leave and as Minister of Public Service can you assist us with exit management. That is when then I came in. CHAIRPERSON: 20 B e f o r e y o u p r o c e e d M s H o f m e y r. Mr Baloyi as far as you can. I wonder whether Yo u c a n j u s t t e l l m e t h a t c o n v e r s a t i o n between the two of you as you remember it. This is what Mr Chabane said. This is what you said until you finalised the issue in that discussion. MR BALOYI: Thanks Chairperson. The - the initial point was that I am being informed there is a decision. Mr Maseko - he has to leave and Page 130 of 218 03 DECEMBER 2019 – DAY 195 then … CHAIRPERSON: Huh-uh. MR BALOYI: The advice we need from is on the exit management and then we discussed about that, because my input in the discussion was that who took - is it him who initiated the decision and the answer was no. It is not Mr Maseko. When I say him Chair I mean … C H A I R P E R S O N : Ye s , y e s . J a . Yo u m e a n M r M a s e k o ? MR BALOYI: Ja. It was not Mr Maseko who initiated the move. So and I understood what that means and then I gave an advice in our 10 discussion and what - what transpired in that discussion was when I indicated that I - I personally have a problem, because it is a bad reflection of our - our - for our Public Service to have DGs kicked out at - at any opportunity that we feel like doing that. Does not augur well for stability in the Public Service and and then the - the route that we can do, but if we have - there was nothing that we can do, because if - if you get to understand there is there is what is referred to as irretrievable breakdown of - of trust and which is a common thing. Yo u h a v e t o t h e n m a n a g e t h a t - t h a t o n e , because I asked is there anything wrong that he did and the - and the 20 issue was no. There is nothing wrong that has been done, but the time is the decision is that he needs to - to exit and then that is the discussion Chairperson. CHAIRPERSON: So is my understanding correct that what you are saying is that he approached you. That is Minister Chabane and said Page 131 of 218 03 DECEMBER 2019 – DAY 195 that a decision has been taken that Mr Maseko should leave GCIS. Is that right? MR BALOYI: That is correct Chairperson. C H A I R P E R S O N : Ye s a n d t h a t h e w a s s e e k i n g f r o m y o u a n a d v i c e o n how to manage that exit. MR BALOYI: Correct Chairperson. CHAIRPERSON: Is that right and that you asked him the question whether it was Mr Maseko who had initiated the - the - his departure from GCIS. 10 M R B A L O Y I : Ye s C h a i r p e r s o n . CHAIRPERSON: Is that right and the answer was no? M R B A L O Y I : Ye s C h a i r p e r s o n . CHAIRPERSON: Ye s a n d - a n d y o u - y o u t h e n s a y y o u u n d e r s t o o d that. MR BALOYI: Huh-uh. CHAIRPERSON: Is that right? M R B A L O Y I : Ye s C h a i r p e r s o n . CHAIRPERSON: So then from then you began to give advice. Is that right? 20 M R B A L O Y I : Ye s . C o r r e c t C h a i r p e r s o n . C H A I R P E R S O N : O k a y. M s H o f m e y r. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. I f w e c a n t h e n g o t o p a g e 7 o f E X H I B I T N N 4 . T h a t i s s t i l l i n y o u r a ff i d a v i t . MR BALOYI: I am there. A D V K AT E H O F M E Y R : A t “ g ” o n t h a t p a g e y o u s a y : Page 132 of 218 03 DECEMBER 2019 – DAY 195 “I discussed with is Principal …” T h a t i s a r e f e r e n c e t o M r M a s e k o ’s P r i n c i p a l . “…and obtained concurrence.” Do you see that? MR BALOYI: That is correct. A D V K AT E H O F M E Y R : W h o i s t h e P r i n c i p a l y o u a r e r e f e r r i n g t o t h e r e ? M R B A L O Y I : M i n i s t e r i n t h e P r e s i d e n c y. A D V K AT E H O F M E Y R : T h a t w o u l d b e M i n i s t e r C h a b a n e a t t h e t i m e ? M R B A L O Y I : Ye s . Ye s . 10 A D V K AT E H O F M E Y R : A n d t h e n a t “ h ” y o u s a y : “I discussed with Mr Maseko and got his consent.” Do you see that? MR BALOYI: That is correct. A D V K AT E H O F M E Y R : M r B a l o y i , M r M a s e k o ’s e v i d e n c e b e f o r e t h e Commission is that you did not obtain his consent prior to the announcement of the transfer in the Cabinet Meeting on 2 F e b r u a r y 2 0 11 . A r e y o u a w a r e t h a t t h a t i s h i s e v i d e n c e ? CHAIRPERSON: In fact he says he had no discussion with you on his transfer before the transfer - before the announcement of the transfer 20 of his transfer in Cabinet. M R B A L O Y I : Ye s . T h a n k s C h a i r p e r s o n . T h a n k s M a d a m . I - I b e c a m e a w a r e o f t h a t v e r s i o n w h e n I r e c e i v e d t h e - t h e a ff i d a v i t f r o m t h e Commission and as I have indicated there. I became so surprised to to get to understand that, because as far as I am concerned from my recollection I had a discussion with him. Page 133 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : Well Mr Maseko in - in answer to some of the C h a i r ’s q u e s t i o n s w h e n h e g a v e e v i d e n c e l a s t m o n t h - i n N o v e m b e r s a i d t h a t h e t h o u g h t y o u m i g h t h a v e b e e n c o n f u s i n g t w o d i ff e r e n t discussions. He said that he recalls a discussion with you when he was in DPSA after he had been transferred and he was coming to talk to you about exit and he said in the course of that meeting he discussed the fact that he wanted to leave Public Service and he says his assumption is that you may have concluded that - confused that later conversation w i t h a c o n v e r s a t i o n t h a t o c c u r r e d p r i o r t o h i s t r a n s f e r. 10 CHAIRPERSON: Or - or … A D V K AT E H O F M E Y R : D o y o u h a v e a c o m m e n t o n t h a t ? MR BALOYI: I will - I will … C H A I R P E R S O N : O r m a y b e t h a t d i d n o t o c c u r. A D V K AT E H O F M E Y R : T h a t d i d n o t o c c u r i n d e e d . CHAIRPERSON: Ja. Ja. He - he said - he said he never had a discussion with you about his transfer from GCIS to DPSA prior to the day when he called you to tell you he was your new DG. He says prior t o t h a t h e h a d h a d n o d i s c u s s i o n w i t h y o u w h a t s o e v e r, b u t h e s a y s a f t e r spending some time in your department as DG. 20 He did have some discussion with you around the possibility of him leaving the - your department … MR BALOYI: Hm. CHAIRPERSON: And he says some of the things that you say in your a ff i d a v i t - m a y b e i t i s o n e . I a m s a y i n g s o m e o f t h e t h i n g s . MR BALOYI: Hm. Hm. Page 134 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Maybe it is one thing. He says no, no, no. That is something we discussed at the meeting when I was about to leave DPSA. It is not something I discussed with Minister Baloyi before my transfer from GCIS. He said I think the former Minister may have been genuinely confused about which discussion happened when. MR BALOYI: Thanks - thanks Chair and ma’am, because you raised it that you said I could be confusing these things. I - I would not use that strong word … (intervenes). CHAIRPERSON: 10 Well maybe we must - maybe we must - my understanding of - of his use of that word was - was that he did not mean anything bad. He was simply saying it has been a long time … MR BALOYI: I see. CHAIRPERSON: And I think that - that is what he - he meant. That is my understanding. MR BALOYI: In - in that context Chairperson, because I thought I would use the very same word, but it was so strong to me. I cannot r e f e r, b u t i n t h a t c o n t e x t I c a n a c t u a l l y s a y m o s t p r o b a b l y - b e c a u s e that is his version. Most probably if there was any confusion it could be honest, but I am quite clear Chairperson that I had a discussion with 20 h i m a n d - a n d o u r d i s c u s s i o n w e n t v e r y f a r. We talked about quite a number of things. He indicated to me, because there was not a lot of time remaining for the expiry of the contract and this where I committed that on chief. If - if we - we look at this and if it may so happen that the time of your contract come to expire and you are still here and I am still here. I am even ready to - Page 135 of 218 03 DECEMBER 2019 – DAY 195 to extend that. We discussed that about a lot of things. So I did had a discussion with him. I am not confused about that. CHAIRPERSON: Well would there be other aspects of that discussion that you recall that you can tell me about? Obviously … M R B A L O Y I : Ye s . C H A I R P E R S O N : S o m e t h i n g t h a t i s - t h a t y o u - y o u m a y s a y. J u s t t o to - to indicate you - you recall that discussion with him quite well. MR BALOYI: 10 In our discussion Chairperson we even went to a point where I then said if you think maybe as a - as a DG you know at - at a slightest opportunity that the Minister decides to then say go. y o u a r e a c t u a l l y v u l n e r a b l e a n d s t u ff l i k e t h a t . Yo u - I mean we discussed e v e n a b o u t t h e p o s s i b i l i t y o f h i m b e c o m i n g m y a d v i s o r. I raised this thing with him and the other thing Chairperson was that he then said no look. Even if I come and work with you I have made up my mind I am not going to - to be long in the Public Service. options to pursue. I have got other That was part of the discussions that we had, because - because I was trying to prevent a situation where under a 20 cloud he then leaves, because if - if you - you redetermine the contract. I mean - in - in public eyes there is nothing else other than that that DG has been fired and it does not augur well for stability in o u r P u b l i c S e r v i c e . T h o s e a r e t h e t h i n g s t h a t w e - w e o ff e r e d t o . S o honestly speaking I am not confuse Chairperson about - about this thing. These are discussions that took place between us - the two of Page 136 of 218 03 DECEMBER 2019 – DAY 195 us and it was part of the agreement I had with Minister Chabane. To t h e n s a y l e t u s c o n s u l t h i m i n d i v i d u a l l y a n d w h e n Minister Chabane wrote this letter it - it was - it was I having given him feedback of the consent that was there. So well it is upstream. That is his nature. C H A I R P E R S O N : Yo u a r e q u i t e c l e a r ? MR BALOYI: Come again. C H A I R P E R S O N : Yo u a r e q u i t e c l e a r ? MR BALOYI: I am quite clear Chairperson. 10 C H A I R P E R S O N : Ye s a n d w a s t h i s d i s c u s s i o n w i t h h i m o v e r t h e p h o n e or you had a meeting with him? M R B A L O Y I : N o C h a i r. I t - i t w a s n o t o v e r t h e p h o n e . I - I … C H A I R P E R S O N : Yo u h a d a - a m e e t i n g w i t h h i m ? MR BALOYI: I had a meeting with him. CHAIRPERSON: Ye s a n d w o u l d y o u r e c a l l w h e t h e r t h a t m e e t i n g m a y have been the day before the Cabinet Meeting? MR BALOYI: That was the day before I gave feedback to Minister Chabane. C H A I R P E R S O N : Ye s . 20 MR BALOYI: He … C H A I R P E R S O N : Ye s . MR BALOYI: And - and he … CHAIRPERSON: So - so … M R B A L O Y I : I a m n o t s u r e . S o r r y C h a i r. CHAIRPERSON: So it - it would have been before the Wednesday Page 137 of 218 03 DECEMBER 2019 – DAY 195 when the announcement of his transfer was made to Cabinet? MR BALOYI: What … C H A I R P E R S O N : Yo u r m e e t i n g w i t h h i m . MR BALOYI: What can also help is access to the Cabinet Memorandum … C H A I R P E R S O N : Ye s . MR BALOYI: Because the Cabinet Memorandum as the pro forma indicates … C H A I R P E R S O N : Ye s . 10 MR BALOYI: Has a date. C H A I R P E R S O N : Ye s . Ye s . MR BALOYI: And - and the Cabinet Memorandum can be only developed when you have satisfied this … C H A I R P E R S O N : Ye s . MR BALOYI: This requirement. Ja. C H A I R P E R S O N : Ye s a n d y o u t h i n k i n t h a t m e m o r a n d u m y o u m a y h a v e referred to the fact that you had a discussion with him or something like that or not necessarily? M R B A L O Y I : J a C h a i r. I n - i n t h e t r a n s f e r … 20 CHAIRPERSON: Hm. MR BALOYI: If it is a transfer in the Cabinet Memorandum Cabinet will l i k e t o s e e i f t h e r e i s c o n s e n t f r o m t h e r e l e a s i n g M i n i s t e r. If there is consent from the receiving Minister and actually if there is concurrence f r o m t h e t w o M i n i s t e r s a n d i f i t i s c o n s e n t f r o m - f r o m t h e o ff i c i a l t o b e transferred. It - it has to be indicated in the Cabinet Memorandum. So Page 138 of 218 03 DECEMBER 2019 – DAY 195 if we can have to access to that. C H A I R P E R S O N : Ye s , b u t … MR BALOYI: It might be actually clarify that thing. CHAIRPERSON: But I - I am not sure whether anything in such a memorandum if we find it saying that there was consent from his side would help, because I think that my understanding of his evidence is that ultimately the transfer did happen with his consent, but the point is w h a t g a v e r i s e t o t h e n e e d f o r h i s t r a n s f e r. Who initiated? 10 Where did this idea that he should be transferred come from? Who did it come from and why? So - so if - if if your memorandum would reflect that he has consented without saying that the consent - without saying that there was a discussion between the two of you. It might not help on this particular issue … MR BALOYI: Hm. CHAIRPERSON: But if it were to say that you had a meeting with him or you had a discussion with him maybe that might help, but you - you might not be able to remember whether it would say anything like that. M R B A L O Y I : J a . N o C h a i r. Ye s . T h a n k s . C H A I R P E R S O N : Ye s . 20 MR BALOYI: I - I maybe not be able to … C H A I R P E R S O N : Ye s . M R B A L O Y I : To r e c a l l a n d o n t h e - o n t h e d e c i s i o n w h i c h i s t h e r e a s o n for the exit like I have indicated. That is surely outside the position the mandate of the Minister … C H A I R P E R S O N : Ye s . Ye s . Page 139 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: For Public Service and Administration. C H A I R P E R S O N : Ye s . Ye s . Ye s . MR BALOYI: All what the Minister for Public Service and Administration was to do … CHAIRPERSON: Hm. MR BALOYI: Was to advice or facilitate the exit. CHAIRPERSON: The exit. MR BALOYI: And - and I had to find a comfortable exit … C H A I R P E R S O N : Ye s . 10 MR BALOYI: And - and for me at the time the comfortable exit was exactly around … C H A I R P E R S O N : Ye s . MR BALOYI: Not taking him out of the - of the Public Service. Keeping him within. C H A I R P E R S O N : H m . M s H o f m e y r. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. There are a few aspects of your recent answer I would like to pick up on … M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : M r B a l o y i . 20 M R B A L O Y I : Ye s m a ’ a m . A D V K AT E H O F M E Y R : A s I u n d e r s t o o d y o u r t e s t i m o n y y o u s a i d w h e n you were recounting for the Chair what occurred in this discussion with Mr Maseko. MR BALOYI: Huh-uh. A D V K AT E H O F M E Y R : Yo u s a i d y o u w e r e d i s c u s s i n g h o w t h e r e w a s Page 140 of 218 03 DECEMBER 2019 – DAY 195 not much longer left on his contract. Do you recall that? MR BALOYI: How the what? A D V K AT E H O F M E Y R : There was not much time left on his contract. Do you recall saying that? That is contract was coming to an end fairly shortly when you had the discussion. M R B A L O Y I : I t h i n k I m e n t i o n e d t h a t w h e n I - I t a l k e d a b o u t m y o ff e r. A D V K AT E H O F M E Y R : Ye s . MR BALOYI: To t h e n s a y e v e n i f i t w a s t o b e - b e c a u s e h i s c o n c e r n was that no it is the same. I take you in - you take me in. In no time 10 my contract expires or at no time you also decided I - I leave. So what is the use? That is when i then said no, no. We can - we can look at this thing. It was a decision I took to have him was looking at the value that he can actually add in the department. A D V K AT E H O F M E Y R : Ye s a n d a s I u n d e r s t a n d y o u r t e s t i m o n y t h a t i s part of what you recall about the discussion that you recall occurring b e f o r e h i s t r a n s f e r. M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : I s t h a t c o r r e c t ? M R B A L O Y I : Ye s . 20 A D V K AT E H O F M E Y R : N o w w h a t w o u l d h a v e h a d t o h a v e b e e n - t h a t c o n v e r s a t i o n - t o w a r d s t h e e n d o f J a n u a r y 2 0 11 ? Do you accept that based on the time that we have worked out with you in your evidence? M R B A L O Y I : Yo u a r e s a y i n g i t w i l l b e ? A D V K AT E H O F M E Y R : The conversation prior to Mr Maseko being t r a n s f e r r e d o n 2 F e b r u a r y. Yo u r e v i d e n c e p r e v i o u s l y w a s i t c o u l d h a v e Page 141 of 218 03 DECEMBER 2019 – DAY 195 happened in that week before. Do you recall saying that? MR BALOYI: Madam I have responded to that and - and keeping and harping on the same issue. A D V K AT E H O F M E Y R : Ye s . MR BALOYI: Is to push me to a point where I will have to - to - to then say look yes or - I have responded to that question. CHAIRPERSON: No. No. Mr Baloyi she is not pushing you to anything. She is just wanting to make sure. She has a question that she wants to ask you, but before she asks you she wants to make sure 10 t h a t s h e u n d e r s t o o d y o u c o r r e c t l y. S h e j u s t w a n t s y o u t o c o n f i r m t h a t you said that the consultation between you and Minister Chabane happened during that week. M R B A L O Y I : Ye s . CHAIRPERSON: Which is what you said. All you need to say is yes. It had during that week. M R B A L O Y I : E x a c t l y. CHAIRPERSON: And then she asks the next question. MR BALOYI: Exactly madam. A D V K AT E H O F M E Y R : 20 I n J a n u a r y 2 0 11 t h e r e w a s s t i l l 1 8 m o n t h s l e f t o n M r M a s e k o ’s c o n t r a c t . A r e y o u a w a r e o f t h a t ? M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : S o w h y w o u l d h e b e s a y i n g i n t h a t c o n t e x t t h a t there is a very little bit of time left? MR BALOYI: 18 months is a short period of time compared to three years, compared to four years, compared to five years. Page 142 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : S o i n t h a t c o n t e x t y o u u n d e r s t o o d 1 8 m o n t h s t o be a short period of time? MR BALOYI: No. No. I - I did not raise it myself. It was in our d i s c u s s i o n . Ye s . A D V K AT E H O F M E Y R : I s i t n o t p o s s i b l y m o r e l i k e l y t h a t w h e n h e w a s d i s c u s s i n g w i t h y o u h i s e x i t f r o m D P S A w h i c h w a s l a t e r i n 2 0 11 a r o u n d J u l y. M R B A L O Y I : J u l y. Ye s . A D V K AT E H O F M E Y R : A s I u n d e r s t a n d h i s e v i d e n c e . 10 M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : When there was less than a year left on his contract. MR BALOYI: Hm. A D V K AT E H O F M E Y R : That that is when you might have had the discussion about there not being much more time left on the contract? MR BALOYI: No. No. That is not. I mean that - that is exactly not. CHAIRPERSON: Can I ask you? As I did with regard to your discussion or conversation with Minister Chabane. Can I ask you to just take me through your conversation with Mr Maseko as it happened? 20 Yo u - y o u - t h e t w o o f y o u m e t . C a n y o u j u s t t a k e m e t h r o u g h … M R B A L O Y I : O k a y. CHAIRPERSON: That conversation as far as you are able to in the l i g h t o f t h e l a p s e o f t i m e ? T h i s i s h o w t h e s u b j e c t w a s i n t r o d u c e d . Yo u - you must have introduced the subject yourself … MR BALOYI: Oh, yes. Page 143 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: And then the discussion up to the end as you remember the discussion. M R B A L O Y I : Ye s . T h a n k s C h a i r p e r s o n . A s I r e m e m b e r i s I i n d i c a t e d to him that your Principal has indicated to me that when we need to manage your exit and I then introduced the option. I then indicate that in our discussion I proposed to him that there - there are two routes to deal with that. Either we take the route of redetermination. In which c a s e I w i l l g e t o ff i c i a l s f r o m t h e d e p a r t m e n t t o c a l c u l a t e a s t o w h a t t h e - the separation package is going to be. 10 Is a fair mechanism of exit if that has to be, but I indicated that - but I also identified that we can also look at the other - the other option. That of retaining you within the broader Public Service through - through transfers. That is - that is how I introduced the matter and that is when we discussed up to and … CHAIRPERSON: And what was his response? MR BALOYI: His response was I indicated to him that if I would prefer the one of – I recommended to him the one of transfer and he gave c o n s e n t , h e s a i d i t ’s o k a y l e t ’s w o r k o n i t b u t d o k n o w t h a t t h e – I h a v e got other options, my stay in the public service I have been around and 20 of course it is true, I have been around, I was a member of Parliament, so I have been around, I don’t think I still have more time in here and I have got options that I am considering. So that is the discussion but ultimately I got his consent. CHAIRPERSON: Did he raise any questions with you as to why he was required to leave GCIS, did he say anything, did he raise any question Page 144 of 218 03 DECEMBER 2019 – DAY 195 or did he express any unhappiness to you about him having to leave GCIS and so on, I just want to get as full a picture of that discussion between the two of you as possible. MR BALOYI: Chair he did not indicate to me why or what he was told as the reasons for his exit, because he was aware also because when I indicated to him I said no my Minister has informed me about that, so he didn’t go in and I didn’t enquire more than that. In as far as whether he was happy about that or he was worried about that normally I mean for a contract employee to have his contract having to come to the end 10 not initiated by him for obvious reasons, I mean it can be expected that – it is a cause for concern. C H A I R P E R S O N : Ye s M s H o f m e y r. A D V K AT E H O F M E Y R : C h a i r i f I m a y p i c k u p o n t h a t M r M a s e k o ’s evidence was that he was informed that he would need to move from GCIS by Minister Chabane over the weekend prior to the meeting of c a b i n e t o n t h e 2 n d o f F e b r u a r y. I understand your evidence to be when you had this conversation with him he had already been told by Minister Chabane that he needed to move, is that correct? MR BALOYI: 20 Ja, he said he was already told and ...[intervenes] A D V K AT E H O F M E Y R : Do you recall if you met him on a weekend or a weekday? MR BALOYI: No. A D V K AT E H O F M E Y R : MR BALOYI: Yo u d o n ’ t r e c a l l . No. A D V K AT E H O F M E Y R : O k a y b u t i f M r M a s e k o ’s e v i d e n c e i s c o r r e c t Page 145 of 218 03 DECEMBER 2019 – DAY 195 and he got informed on that weekend I think his evidence might have been the the Sunday but we can confirm that it was definitely at some p o i n t o f t h e w e e k e n d , t h a t w o u l d h a v e l e f t t h e M o n d a y a n d t h e Tu e s d a y before the cabinet meeting on the Wednesday to have had this meeting with him, do you accept that? MR BALOYI: If he? A D V K AT E H O F M E Y R : If he had only been informed that he was going to be moved from GCIS on the weekend prior to the meeting on Wednesday then the weekdays left during which you could have met 10 with him to have this discussion were either Monday the 31st of J a n u a r y o r Tu e s d a y t h e 1 s t o f F e b r u a r y, d o y o u a c c e p t t h a t ? MR BALOYI: Well I have no comment on that, it is his version, it is n o t m y v e r s i o n t h a t h e w a s t o l d o n t h e S a t u r d a y a n d s t u ff l i k e t h a t . A D V K AT E H O F M E Y R : Indeed but you don’t dispute that it might have been that the meeting you recall happened on the Monday or the Tu e s d a y ? MR BALOYI: I cannot dispute or confirm that. A D V K AT E H O F M E Y R : Thank you. M r M a s e k o ’s e v i d e n c e w a s t h a t during those two days of the week prior to a cabinet meeting he – I 20 forget what he said, he said he sort of goes underground because he needs to prepare for that cabinet meeting being the cabinet spokesperson and so he goes through all the memoranda that are before cabinet etcetera, and he said it was for that reason again highly unlikely that he would have had a meeting with you in those two days. Do you still say that that evidence before the Commission of Mr Maseko Page 146 of 218 03 DECEMBER 2019 – DAY 195 was false? MR BALOYI: I n e v e r s a i d M r M a s e k o ’s e v i d e n c e w a s f a l s e , I n e v e r said, I said I respect his version, in as much as he to respect mine. So I can’t respond there madam and say I am saying it was false, I am not saying that, I never said that, I will not say it, because for me you can only say false if you know that this person is saying something deliberately knowing that that is not the truth, so I am not at that space, and it is not my version, it is his. 10 A D V K AT E H O F M E Y R : Mr Baloyi I am not asking that you take a view on Maseko whether what Mr said was deliberately false, as I understand your evidence it is that you are certain that you had to discuss a meeting with him prior to the 2nd of February at which you discussed his move to DPSA and in which he gave you consent to being transferred to DPSA, is that your evidence? MR BALOYI: T h e p o i n t I s a i d i s t h a t i n m y d i s c u s s i o n w i t h M i n i s te r Chabane we agreed that both of us should consult him individually and then you say it was on a Saturday that he was informed and I am saying I cannot remember when was it that I actually had a discussion with him. 20 A D V K AT E H O F M E Y R : And Mr Baloyi that is why when I asked the m o s t r e c e n t q u e s t i o n I d i d n ’ t p u t a t i m e o n i t , b e c a u s e i t ’s v e r y important for this Commission to get your evidence absolutely clear on t h i s b e c a u s e M r M a s e k o ’s e v i d e n c e i s a b s o l u t e l y c l e a r o n t h i s , s o ...[intervenes] MR BALOYI: And I think mine also, sorry to interrupt, I think mine Page 147 of 218 03 DECEMBER 2019 – DAY 195 a l s o i s c l e a r, t h e d e c i s i o n m a y b e y o u r s t o d e c i d e , n o t . . . [ i n t e r v e n e s ] A D V K AT E H O F M E Y R : MR BALOYI: I n d e e d , n o t m i n e s i r. N o t t o a c c e p t i t a s c l e a r, i n a s f a r a s I a m c o n c e r n e d m y e v i d e n c e i s c l e a r. A D V K AT E H O F M E Y R : CHAIRPERSON: And that is to be ...[intervenes] Maybe do you think Mr Maseko must be mistaken in saying or in saying that he had no discussion with you about his transfer before the announcement to cabinet? MR BALOYI: 10 What I am stating clearly Chairperson is that I had a discussion with him C H A I R P E R S O N : Ye s . MR BALOYI: So you have two versions here. C H A I R P E R S O N : Ye s . MR BALOYI: R i c h a r d B a l o y i ’s v e r s i o n . C H A I R P E R S O N : Ye s . MR BALOYI: A n d T h e m b a M a s e k o ’s v e r s i o n . C H A I R P E R S O N : Ye s , . MR BALOYI: They are not aligned. C H A I R P E R S O N : Ye s . 20 MR BALOYI: But if they are not aligned there is no suggestion that this one is more correct than the other one, I am speaking about what I know Chairperson and I never lied. C H A I R P E R S O N : Ye s , y o u c a n s a y n o m o r e , y o u s a y t h i s i s w h a t y o u know to be the truth. MR BALOYI: T h a t ’s w h a t I k n o w C h a i r p e r s o n , e x a c t l y. Page 148 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: But you – I think the question that Ms Hofmeyr was asking and also the one I was asking is just to see whether you have a n y r e a s o n t o t h i n k h e h a s a d i ff e r e n t v e r s i o n b e c a u s e o f a n y t h i n g other than maybe a bona fide mistake of what happened because of the l a p s e o f t i m e , m e m o r y, o r i s i t p o s s i b l e t h a t y o u t h i n k t h e r e m i g h t b e some other reason why – whether you might be thinking that he knows what the truth is, he knows that the truth is what I am saying but maybe he has another reason for not saying the same thing as I – which I am putting forward because it is the truth, or you say look I believe that if 10 he says he had no discussion with me before the announcement to to Cabinet I have no reason to believe he is deliberately misleading the Commission. It must be that in good faith he thinks there was no discussion but from my side I am saying there was a discussion and t h a t ’s w h a t y o u a r e a b l e t o s a y. MR BALOYI: Exactly Chairperson, that is what I am saying. C H A I R P E R S O N : T h a t ’s w h a t y o u a r e s a y i n g . MR BALOYI: I mean me and Maseko are coming to talk about these t h i n g s n o w, s o m e p e r i o d l a p s e d , I n e v e r – i n f a c t t h e r e w a s n e v e r a n y bad blood anything between us. 20 CHAIRPERSON: Ja, I think he says the same thing if I am not mistaken. MR BALOYI: He says the same thing, I think it is right, I mean I never – that is why I was surprised about other things I’m sure we will come to those questions, so it could be the fact is and I want the Commission to accept that I am not fabricating this position that I had a discussion Page 149 of 218 03 DECEMBER 2019 – DAY 195 with him. So that is the thing, and that is why I am sure the investigators may have indicated on the first day when I came to me the i n v e s t i g a t o r s I s a i d b u t i s i t p o s s i b l e t h a t w e c a n m e e t a n d r e a l l y, I w a s s o s u r p r i s e d a n d I a m a s s u r p r i s e d a s i t i s n o w, b u t a s y o u s a i d Chairperson the possibility is the cracks of oblivion that I spoke about e a r l i e r o n m a y n o t o n l y b e a ff e c t i n g o n e p e r s o n , i t m a y b e a ff e c t i n g both of us so if there is a way of establishing, you might find that or maybe the truth is more or the reality is more on his side, or the reality is more on my side, so there is no malice, there is no malicious intent, 10 it is the question of recall and when you deal with a call over a period of time your ...[intervenes] CHAIRPERSON: Ye s , y e s , d i ff e r e n t p e o p l e m i g h t h a v e d i ff e r e n t recollections. MR BALOYI: D i ff e r e n t , u n f o r t u n a t e l y t h e r e i s n o f i l e y o u c a n g o a n d look at because we are not taking minutes of our discussions, so that is t h e i s s u e . S o y o u a r e r i g h t C h a i r p e r s o n t h a t i s e x a c t l y, I a m n o t s a y i n g he is lying, that is why I even said I did not use a strong word to him. I can use a strong word to any other person, but I must have a reason, and there is no reason that I can use to him because there was really 20 no bad blood. C H A I R P E R S O N : O k a y, M s H o f m e y r ? A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. I would like to go to the process again for transfers which you have outlined for us. Mr Baloyi t h e r e h a v e b e e n e n g a g e m e n t s b e t w e e n t h e C o m m i s s i o n a n d t h e O ff i c e o f t h e P r e s i d e n c y i n r e l a t i o n t o t h a t 2 F e b r u a r y 2 0 11 c a b i n e t m e e t i n g Page 150 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Mmm. A D V K AT E H O F M E Y R : This was made known at the evidence of Mr M a s e k o b u t a t t h a t s t a g e w e h a d n o t y e t o b t a i n e d a n a ff i d a v i t f r o m t h e o ff i c e o f t h e P r e s i d e n c y, w e h a v e s u b s e q u e n t l y o b t a i n e d t h a t , a n d i t h a s b e e n a d d e d t o N N 5 , I w i l l t a k e u s t h e r e i n a m o m e n t i f I m a y, b u t the evidence of the Presidency is that they have gone back and c h e c k e d t h e m i n u t e s o f t h e C a b i n e t m e e t i n g o f t h e 2 n d o f F e b r u a r y. MR BALOYI: O k a y. A D V K AT E H O F M E Y R : 10 And there was no Cabinet Memorandum that served before Cabinet on that day about the transfers of Mr Manyi or Mr Maseko, are you aware of that? MR BALOYI: No, no I am not aware, you remember I requested that some of the documents they are with the investigators, some of the documents that I requested was please let me have a copy of the Cabinet Memorandum, I didn’t remember that and if that is what the P r e s i d e n c y i s s a y i n g l e t u s l e a v e i t a s t h e t e s t i m o n y o f t h e P r e s i d e n c y, it is not mine. A D V K AT E H O F M E Y R : Right, but I understood your evidence earlier was that you can’t recall whether you were in fact present at that 20 meeting of cabinet on the 2nd of February is that right? MR BALOYI: Ja, maybe – yes I answered that question, I said it is right, maybe because you see the Presidency has indicated referring to the minutes have they indicated I was present? A D V K AT E H O F M E Y R : That we are following up with them over the break, because I had understood that it would likely be common cause Page 151 of 218 03 DECEMBER 2019 – DAY 195 that you weren’t at that meeting. When you raised it in your evidence e a r l i e r w e h a v e b e e n m a k i n g e ff o r t s – c a n I j u s t e x p l a i n w e h a v e n e v e r r e c e i v e d t h e m i n u t e s o f t h e 2 n d o f F e b r u a r y b e c a u s e t h e w a y, i f w e h a d we would quickly be able to check the attendance, right, but the processes of the Commission are such that Cabinet minutes are generally classified, so we have to engage a process to request declassification and in order to do that we need to identify the items in the minutes in respect of which we require declassification. MR BALOYI: 10 O k a y. A D V K AT E H O F M E Y R : So what happened is we engaged with the P r e s i d e n c y, w e s a i d g o t o t h e m i n u t e s o f t h e 2 n d o f F e b r u a r y 2 0 11 a n d declassify so that we can receive the minutes anything dealing with the transfers of Mr Manyi and Mr Maseko. The consequence of that is that t h e y w e n t a n d c h e c k e d , I w i l l t a k e y o u t o t h e a ff i d a v i t n o w, t h e r e i s n o recordal of any discussion whatsoever in Cabinet on that day nor the decision taken by Cabinet on that day relating to the transfers of the Mr Manyi and Mr Maseko, nor any Cabinet memorandum in relation to those transfers. The consequence of that is we don’t get the minute, because 20 what we identified for declassification doesn’t exist, I just want you to understand the process. MR BALOYI: I see, I see. A D V K AT E H O F M E Y R : Right, so the evidence of the Presidency ...[intervenes] MR BALOYI: Maybe I should comment there, if the evidence you have Page 152 of 218 03 DECEMBER 2019 – DAY 195 is that there was not Cabinet but there was an announcement then t h a t ’s a q u e s t i o n t h a t t h e C h a i r o f C a b i n e t d e f i n i t e l y h e c a n t a l k , i t i s something that falls outside, even if I am there if things happen like that it means it would have happened like that but like I said I don’t recall, but I think the Chair of Cabinet will then do, because it will be something that I am not sure is unheard of, that appointments are done through announcements and not done through the necessary processes. CHAIRPERSON: Well you see Mr Baloyi I was very keen from the beginning to hear what you had to say about this transfer and originally 10 what I was interested in is what Mr Maseko had testified about because i n e ff e c t s a i d m y t r a n s f e r t o – f r o m G C I S t o D P S A w a s u l t i m a t e l y rushed so much that Minister Baloyi, who was not at the Cabinet Meeting, had to hear from me for the first time that I was his new DG, because on the day of the Cabinet Meeting, which was the 2nd of F e b r u a r y, h e s a y s i t c a m e t o h i s a n d M i n i s t e r C h a b a n e ’s a t t e n t i o n t h a t E-News or ENCA was running the story that he was being replaced by Mr Manyi as CEO of GCIS and he alerted Mr Chabane about this and they realised that a decision about where he was going needed to be done immediately because otherwise if there is a delay about that the 20 impression out there to the public would be like he has been fired, because if it simply says he has been replaced by Mr Manyi and there is no, nothing about he has gone to another department and then apparently Minister Chabane then approached the President and had a discussion during the – with him – or whispered something into his ear while the meeting was on and then before the end of the Cabinet Page 153 of 218 03 DECEMBER 2019 – DAY 195 Meeting the announcement was made, so he was – he then says, he says Minister Baloyi was not at that meeting of Cabinet on that day but now we had to – this whole thing had to be rushed and when I phoned him he was surprised and he said he was not aware of the transfer or s o m e t h i n g t o t h a t e ff e c t s o I w a n t e d t o k n o w t h a t ’s w h y i n i t i a l l y I wanted to hear your evidence how did this come about that you are the M i n i s t e r o f D e p a r t m e n t , y o u ’ r e g e t t i n g a D G , y o u d o n ’ t k n o w, i s t h a t something normal, is that how it happened blah-blah-blah-blah so when you say if there was an appointment or a transfer that happened by 10 announcement and there was no memo, Cabinet Memo and so on, it would be very strange. I am just saying part of what I found strange was that a M i n i s t e r o n M r M a s e k o ’s v e r s i o n a M i n i s t e r w o u l d h a v e a D G i m p o s e d on him like that, what was so urgent about that. So I am just giving you the background because you hinted on this being strange if the Cabinet would not have had any discussion, would not have made any decision but just an announcement would have been made, so you can understand, ja. MR BALOYI: 20 I do understand Chairperson and that is why I am saying if the due process was not followed, because a Presidential Minute is there, I got it from the Commission, a Presidential Minute is signed and co-signed. What needs to be established is whether there was a Cabinet Memorandum and what I am getting now is that it is like there was no Cabinet Memorandum to that e ff e c t , it was just an announcement, because it does happen, it happened a lot that due to Page 154 of 218 03 DECEMBER 2019 – DAY 195 commitments I will not be in Cabinet when appointments have to be done but always there will be a Minister who on my behalf will deal with t h a t , s o i t n e v e r a r o s e I m e a n i f i t w a s b e c a u s e o f t h e u r g e n c y, I t h i n k i t was an extraordinary urgent occurrence not in keeping with ...[intervenes] CHAIRPERSON: How things normally happened. MR BALOYI: How things normally happened because I will be duty bound sometimes to not be in Cabinet and then, but if I am out of the country there will be a Minister acting. 10 CHAIRPERSON: Who would be acting? MR BALOYI: And that Minister was acting as the one who is going to present the Cabinet Memorandum. If I am in the country but not in cabinet there will be a minister who will do the same, so honestly speaking it is just that we need – these are some of the things Chairperson that raised my frustrations when I indicated to then say this is a State process, and as a State process that has a government, and it is not a new government, it is the same government. Now if we have to have access to records an there has to be a merry-go-round I mean really we are not helpful to the public and I 20 think something needs to be established. I there is no Cabinet Memo recommending an appointment and there is an appointment it is s o m e t h i n g t h a t m a y b e w e m a y n e e d t o s e a r c h f u r t h e r. Like I indicated in my opening statement that I approached my employer all the time to then say they may be in a position to facilitate. I m e a n t h e r e c o r d s o f D P S A y o u w i l l f i n d t h e r e ’s d o c u m e n t s Page 155 of 218 03 DECEMBER 2019 – DAY 195 there, it will be simple to do that. CHAIRPERSON: Mmm, well Ms Hofmeyr you can take forward, I do know as you know that some documents that you have been given come f r o m D P S A , t h e C o m m i s s i o n ’s L e g a l Te a m a n d i n v e s t i g a t o r s w e r e i n touch with the DPSA and certain documents were obtained, but Ms Hofmeyr can deal with that. MR BALOYI: O k a y. C H A I R P E R S O N : M u c h b e t t e r. A D V K AT E H O F M E Y R : 10 T h a n k y o u C h a i r. Mr Baloyi if we can go to p a g e 1 8 o f E X H I B I T N N 4 , t h a t ’s p a g e 1 8 , I w o u l d l i k e t o p i c k u p o n what you say there about what transpired at the Cabinet Meeting on the 2nd of February but before we go there we have as we have been s p e a k i n g C h a i r a n d M r B a l o y i h a d a r e s p o n s e f r o m t h e O ff i c e o f t h e P r e s i d e n c y, t h e y h a v e c h e c k e d t h e m i n u t e s f o r u s a n d i t i s c o n f i r m e d t h a t M r B a l o y i w a s n o t p r e s e n t o n t h e 2 n d o f F e b r u a r y, t h e y v e r y k i n d l y c o m e b a c k t o u s u n d e r g r e a t u r g e n c y. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : W e w i l l a s k f o r a n a ff i d a v i t c o n f i r m i n g t h a t C H A I R P E R S O N : Ye s , o k a y. 20 A D V K AT E H O F M E Y R : And just also in relation to Ms Oliphant they did confirm that she was present, so those were the two items from this m o r n i n g ’s e v i d e n c e w e w a n t e d t o f o l l o w u p o n . C H A I R P E R S O N : Ye s , o k a y. A D V K AT E H O F M E Y R : But Mr Baloyi at paragraph F on page 18 you state there: Page 156 of 218 03 DECEMBER 2019 – DAY 195 “For me everything was above Board and it was confirmed when the transfer memorandum served before Cabinet as t h e r e w a s n o i s s u e r a i s e d a b o u t t h e t r a n s f e r. ” Where did you obtain that information from? MR BALOYI: I co-signed the Presidential Minute with the President. That comes after a Cabinet Meeting and ought to come after the Cabinet Memorandum. T h a t s t a t e m e n t I w r o t e t h e r e i s c u t o ff t h o s e t h a t a r e t h e n s u p p o s e d l y, I t h i n k t h e p r o c e s s , t h e d u e p r o c e s s w a s followed. 10 T h i s i s w h a t b e c a u s e y o u m a y n o t h a v e a P r e s i d e n t ’s M i n u t e signed without the processes that are to come, if that was the case so to answer your question I am getting this from them, because it is my signature that is on the P r e s i d e n t ’s Minute as co-signing the P r e s i d e n t ’s M i n u t e . A D V K AT E H O F M E Y R : CHAIRPERSON: So did you ...[intervenes] I ’ m s o r r y, d o y o u h a v e a n i n d e p e n d e n t r e c o l l e c t i o n that there was a Cabinet Memorandum or are you saying you think that there was a cabinet memorandum because you can’t think of how there can be a presidential minute signed without there being a cabinet m e m o r a n d u m o n t h e m a t t e r. 20 MR BALOYI: Exactly Chairperson, the latter part. CHAIRPERSON: T h e l a t t e r, y e s , s o y o u d o n ’ t h a v e i n i n d e p e n d e n t recollection that you did see the memorandum? MR BALOYI: I don’t have. C H A I R P E R S O N : Yo u d o n ’ t h a v e y e s . MR BALOYI: E v e n t h e P r e s i d e n t ’s m i n u t e I g o t i t f r o m t h e Page 157 of 218 03 DECEMBER 2019 – DAY 195 Commission. C H A I R P E R S O N : Ye s , y e s o k a y. MR BALOYI: And I then said can we get the Cabinet Memorandum C H A I R P E R S O N : Ye s . MR BALOYI: Because that cabinet memorandum will assist a lot. C H A I R P E R S O N : Ye s , a n d o r d i n a r i l y t h e k i n d o f C a b i n e t M e m o r a n d u m we are talking about here if it does exist or did exist, would have been prepared by your Department for you? MR BALOYI: 10 Exactly Chairperson. CHAIRPERSON: Ye s , o k a y b u t a s t h i n g s s t a n d y o u d o n ’ t h a v e a n independent recollection that there was such a memorandum, you just think it – you think it probably was there because all the time whenever t h e r e ’s a P r e s i d e n t i a l M i n u t e t h e r e t h e r e w o u l d h a v e b e e n a C a b i n e t memorandum before. MR BALOYI: Ja, there would have been concurrence by Cabinet. C H A I R P E R S O N : Ye s . MR BALOYI: And Cabinet during my turn has never given concurrence to a verbal announcement. C H A I R P E R S O N : Ye s , y e s . 20 MR BALOYI: So that is exactly what I – I mean I can’t base on what o n e o ff i c i a l i n G C I S i n d i c a t e d t h a t n o I s a w a C a b i n e t M e m o r a n d u m b u t I am saying it can’t be but ...[indistinct] I am basing on the due process so I cannot imagine that something like that would happen that cabinet takes a decision based on an announcement and or no submission of t h e C a b i n e t M e m o r a n d u m , i t ’s s o m e t h i n g t h a t w e w o u l d n e e d t o a c t u a l l y Page 158 of 218 03 DECEMBER 2019 – DAY 195 maybe Chairperson to agree that the Commission continue to get the information because that is where I get it from them, or my former e m p l o y e r, b e c a u s e I w a s a n e m p l o y e e b y t h a t t i m e , t h a t i s w h y a s y o u said Chair in the opening remarks that I wrote quite a lot of things, s o m e o f t h e m a r t i c u l a t e t o w h a t n o r m a l l y o c c u r. C H A I R P E R S O N : Ye s , y e s . MR BALOYI: So I would also use my own ...[intervenes] CHAIRPERSON: Contacts. MR BALOYI: Contacts formally to actually look at that. 10 C H A I R P E R S O N : Ye s . M R B A L O Y I : B e c a u s e t h e – t h e g o v e r n m e n t I w a s w o r k i n g f o r. CHAIRPERSON: Hm. MR BALOYI: Is still there. It exists. CHAIRPERSON: Hm. MR BALOYI: And there is no way that I have to be left – it has to be left on my own to keep records. CHAIRPERSON: Hm. MR BALOYI: Because when Ministers leave you do not take a b r i e f c a s e o f d o c u m e n t s . Yo u l e a v e t h e m t h e r e . 20 CHAIRPERSON: Hm MR BALOYI: I am convinced if something is like that there was no Cabinet Memorandum I will be so surprised. I will be so surprised Chairperson. CHAIRPERSON: Hm. MR BALOYI: Actually worryingly surprised as to how does Cabinet. Page 159 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Hm. MR BALOYI: Concurs to a non-existing issue. CHAIRPERSON: But remember I think Ms Hofmeyr told you earlier on that I think Mr Maseko said what happened was that there was no discussion of the issue of his transfer by cabinet. And there was no decision taken by cabinet. MR BALOYI: Oh. CHAIRPERSON: There was simply an announcement to the cabinet that Mr Maseko was being transferred from GCIS to DPSA and Mr 10 Manye was being transferred from Department of Labour to GCIS or simply that Mr Manye would replace him. That is my recollection of what his evidence was. So – so on – on his version and he was there according to him. MR BALOYI: Hm. CHAIRPERSON: Cabinet was simply told that this is what is going to happen. They were not required to make any decisions. So if that – if that – if those facts are correct. MR BALOYI: Ja. CHAIRPERSON: Would you not therefore understand why there would 20 be no Cabinet Memorandum? MR BALOYI: Ja if those facts are correct really I will – I will – I will then understand why – why no but I definitely I am not sure how it will then be possible for a President Minute to be addressed. That is why Chair my submission if – if it so pleases – my submission is that we – we – we would do a lot more search on this to establish as to whether… Page 160 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : Ye s . MR BALOYI: We may not come with something like that. C H A I R P E R S O N : Ye s . MR BALOYI: It will be surprising if such a situation happened. CHAIRPERSON: Would – would you – would you remember whether o ff i c i a l s w i t h i n y o u r d e p a r t m e n t w h o m a y h a v e h e l p e d t o p r e p a r e s u c h a memorandum? Who they would have been and whether maybe they might remember that no we definitely prepared a memorandum or maybe they might also not know with the passage of time. Would you 10 r e m e m b e r o r – w h o t h e y m a y h a v e b e e n o r t h a t i s t o o d i ff i c u l t t o s a y after so many years? M R B A L O Y I : J a s o d i ff i c u l t a f t e r s o m a n y y e a r s a n d – a n d I w i l l t h e n say if now I approach my employer about that. CHAIRPERSON: Ja. \MR BALOYI: It has to be a formal thing. C H A I R P E R S O N : Ye s . MR BALOYI: I will not do behind. CHAIRPERSON: Ja. M R B A L O Y I : T h e d o o r. 20 C H A I R P E R S O N : O k a y. MR BALOYI: The front doors. C H A I R P E R S O N : Ye s . MR BALOYI: Just to look at – let us see as to whether this is what happened. C H A I R P E R S O N : Ye s . O k a y. Page 161 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Because if really that is what has happened there was no Cabinet decision. CHAIRPERSON: Hm. MR BALOYI: There was no submission in cabinet. There was an announcement it will definitely have been too strange an issue to think about. C H A I R P E R S O N : Ye s . O k a y. A D V K AT E H O F M E Y R : M r B a l o y i c a n w e g o b a c k t o y o u r c o - s i g n i n g o f the Presidential Minute? 10 M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : B e c a u s e y o u – y o u r e v i d e n c e i s a s I h a v e i t i s t h a t y o u d i d s o o n t h e 3 F e b r u a r y, i s t h a t c o r r e c t ? MR BALOYI: It is correct Ma’am. A D V K AT E H O F M E Y R : So before you signed that what enquiries did you make about what had happened at the previous days’ cabinet meeting? MR BALOYI: Ma’am I think if – if – we can agree that my proposal that will get more – more information on this matter will deal with that question. 20 A D V K AT E H O F M E Y R : M r B a l o y i y o u s e e t h e o n l y p l a c e t h a t h o l d s t h e records of cabinet are the – is the Presidency and we have engaged the Presidency on the records of cabinet. And I mentioned to you p r e v i o u s l y w e o b t a i n e d t h e a ff i d a v i t o f t h e D i r e c t o r G e n e r a l i n t h e Presidency Doctor Lubisi. He has looked at those – the minutes of the 2 F e b r u a r y. H e h a s c o n f i r m e d t h a t t h e r e w a s n o C a b i n e t M e m o r a n d u m Page 162 of 218 03 DECEMBER 2019 – DAY 195 serving before Cabinet. He has confirmed that there was no discussion reflected and he has confirmed that there was no decision taken about the transfers of Mr Manyi and Mr Maseko. So that is where the evidence would lie and those are investigations that the commission h a s u n d e r t a k e n . M y q u e s t i o n t o y o u w a s a d i ff e r e n t o n e . B e f o r e y o u signed on the 3 February do you have a recollection of what you had before you or what questions you asked before signing it? MR BALOYI: But Ma’am let me put it clear that the department the employing department will have records. 10 A D V K AT E H O F M E Y R : B u t n o t i f t h e r e w a s n o t a C a b i n e t M e m o r a n d u m that served before Cabinet on the 2 February? MR BALOYI: Memorandum. I am not convinced that there was no Cabinet I want to be convinced that there was no Cabinet Memorandum. A D V K AT E H O F M E Y R : B u t h o w w o u l d a r e c o r d o f D P S A c o n v i n c e y o u if the people who have looked at the minutes say it does not reflect there being a memorandum? MR BALOYI: Well people are people I mean I do not think – unless if – if we then say that in an inquiry like this the evidence of a witness is 20 not taken so serious to warrant that we actually look at that because I am saying as far as I am concerned. But – but is it possible that we can actually look at that? CHAIRPERSON: Well… MR BALOYI: Well then if we come back here and there was really no – no – no Cabinet Memorandum, there was no Cabinet discussion then on Page 163 of 218 03 DECEMBER 2019 – DAY 195 t h e b a s i s o f w h a t w a s t h e t r a n s f e r e ff e c t e d ? CHAIRPERSON: Am I right Mr Baloyi to think that if in fact after all the checking and the investigation that you think may still be done. If in fact after all that you were to find that what Doctor Lubisi says in the a ff i d a v i t t h a t t h e r e w a s n o C a b i n e t M e m o r a n d u m a n d t h e r e w e r e n o – no minutes? MR BALOYI: Hm; CHAIRPERSON: That there were – that there was no discussion or decision taken by cabinet about these two transfers. 10 MR BALOYI: Hm. CHAIRPERSON: Of Mr Maseko and Mr Manyi am I right to think that that would shock you? MR BALOYI: That will shock me Chairperson. CHAIRPERSON: That would shock you? MR BALOYI: That will shock me. CHAIRPERSON: It should not be like that? MR BALOYI: Come again? CHAIRPERSON: It should not be like that? MR BALOYI: It should not be like that. 20 CHAIRPERSON: Hm. MR BALOYI: It should definitely not be like that. C H A I R P E R S O N : H m . H m . Ye s . O k a y. W e l l I – I – I t h i n k i t i s – i t i s open to the commission to reflect on what else it can still do. MR BALOYI: Hm. C H A I R P E R S O N : To g o b e y o n d w h a t w e h a v e . I a m n o t s u r e . B u t I d o Page 164 of 218 03 DECEMBER 2019 – DAY 195 not want you to get the impression that we are saying nothing further can be done. MR BALOYI: Hm. CHAIRPERSON: It is possible that we can apply our minds and – and do – and do further but on – on the face of it and thinking that bearing i n m i n d t h a t t h i s i s q u i t e a s e n i o r o ff i c i a l t h e D i r e c t o r G e n e r a l i n t h e P r e s i d e n c y. MR BALOYI: Hm. CHAIRPERSON: 10 D e p o s i n g t o a n a ff i d a v i t t o s u b m i t t o a c o m m i s s i o n such as this having been asked to check one would think that he would h a v e t a k e n t r o u b l e t o c h e c k p r o p e r l y. MR BALOYI: Hm. CHAIRPERSON: So – but I am not saying that nothing further can be done to try and check that. So certainly we can reflect and take it from there and – and from your side you might – you might also have suggestions or having been Minister you might have Minister of DPSA having dealt with these things you might have ideas of what else could – could be done. MR BALOYI: Hm. 20 C H A I R P E R S O N : W e a r e n o t c l o s i n g t h e d o o r. J a . M s H o f m e y r. A D V K AT E H O F M E Y R : Thank you. Mr Baloyi I understand your evidence to be that former President Zuma did not consult you before the transfer of Mr Maseko and Mr Manyi took place, is that correct? MR BALOYI: It is correct Ma’am. A D V K AT E H O F M E Y R : Thank you. And if the evidence as the Chair Page 165 of 218 03 DECEMBER 2019 – DAY 195 has indicated establishes that there was no Cabinet Memorandum that served before cabinet about those transfers on the 2 February and no decision of cabinet in relation to that. How then would the President h a v e k n o w n w h e t h e r M r M a s e k o ’s c o n s e n t t o t h e t r a n s f e r h a d b e e n obtained? MR BALOYI: The letter that was written on – on consent by Minister Chabane was written addressed to me. A D V K AT E H O F M E Y R : Ye s . MR BALOYI: So – so but then the issue is if the question is how would 10 if there has been no cabinet how will the President have known? I think these are things that the – what we are going to establish with the further work that has to be done here will actually inform that. Because the question will not only be how he would know – how will he have known but then the issue would be how he will have got his signature on the – on the Presidents Minute. A D V K AT E H O F M E Y R : Ye s h e m i g h t h a v e p u t h i s s i g n a t u r e t h e r e without knowing whether Mr Maseko had consented or not. Is that not a possibility? MR BALOYI: He – I take it as – as the – the Executive Authority of the 20 National Executive he knew what had to happen. So – and again I also co-signed that President Minute. So I think it is something that when we look at why his signature there what will have informed his – same q u e s t i o n t h a t t h e n s a y, w h a t w o u l d h a v e i n f o r m e d m y s i g n a t u r e t o b e there? And I think it is through what we are going to establish when we d o f u r t h e r r e s e a r c h o n t h e m a t t e r. Page 166 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : I u n d e r s t a n d . . C H A I R P E R S O N : I s i t – I a m s o r r y. I s i t p o s s i b l e t h a t y o u c o u l d h a v e co-signed the Presidential Minute even though there was no Cabinet Memorandum simply because on what you have told me to have been y o u r r o l e i n t h i s t r a n s f e r. MR BALOYI: Hm. CHAIRPERSON: Simply because 1 . Yo u k n e w t h a t a d e c i s i o n h a d b e e n t a k e n t h a t M r M a s e k o s h o u l d leave GCIS. Minister Chabane told you as much. 10 2 . Yo u k n e w t h a t y o u w e r e a s k e d t o a d v i c e o n m a n a g i n g t h e e x i t . 3 . Yo u h a d o n y o u r v e r s i o n y o u h a d h a d a d i s c u s s i o n w i t h M r Maseko and verbally he had consented to a transfer and 4 . Yo u m a y h a v e b e e n t o l d t h a t l o o k w e h a v e g o t t h e c o n c u r r e n c e o f Minister Chabane. General Mr Maseko. We have got the consent of the Director We have got your consent as Minister of DPSA if you need to give consent. The President has no problem with the transfer to say the least. He has no problem. Now ENews has got this – is running the story and let us – let us sign a n d t h e p a p e r w o r k w i l l b e f i x e d l a t e r. 20 MR BALOYI: No Chairperson if – if there was such a move to then say l e t u s s i g n p a p e r w o r k w i l l b e f i x e d l a t e r. W e w i l l b e t r a c i n g t h a t i n d e e d paperwork was – was done but for me Chairperson it is just unthinkable that such a thing can happen. C H A I R P E R S O N : Ye s b u t m y q u e s t i o n i s a d i ff e r e n t o n e . I t i s w h e t h e r what I have just tabulated now if this was told to you or being aware of Page 167 of 218 03 DECEMBER 2019 – DAY 195 t h e s e t h i n g s w h e t h e r t h a t w o u l d h a v e p e r s u a d e d y o u t o s a y, o k a y e v e n if there is – the paperwork is not there because we know this to be the position nobody is objecting to this thing and we do not want the impression to be created out there that Mr Maseko has been fired – let – I will sign. I am asking whether knowing all of those things may have been enough to persuade you to co-sign the Presidential Minute even though the paperwork was not there. MR BALOYI: No Chairperson. What will then – what I would have done was to expedite. I mean – but make sure that they due processes 10 i s f o l l o w e d . T h a t i s w h y I – t h a t i s w h y I r e s p o n d e d e a r l i e r t o s a y, I w i l l b e s h o c k e d i f t h e r e i s n o C a b i n e t M e m o r a n d u m t o t h a t e ff e c t . CHAIRPERSON: So – but in this case when you – okay when you say you would have wanted to make sure that due process was followed. Do you include in terms of due process cabinet discussing the issue and making a decision? M R B A L O Y I : Ye s C h a i r p e r s o n . C H A I R P E R S O N : Yo u – y o u – a r e y o u s a y i n g t h e r e f o r e y o u w o u l d n o t – you would have been opposed to co-signing the Presidential Minute if there had been no due process including a discussion of the transfer 20 and decision by cabinet. MR BALOYI: Exactly Chairperson. Because the signing of a Presidential Minute. CHAIRPERSON: Hm. MR BALOYI: Is – is the last step. CHAIRPERSON: Hm. Page 168 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Is the approval of the action. CHAIRPERSON: Hm. MR BALOYI: But before that cabinet concurrence has to be in place. CHAIRPERSON: Hm. MR BALOYI: And that is my – that is the process – that is the due process that I will – I will insist that it happens. CHAIRPERSON: Hm. MR BALOYI: That is why I am saying. CHAIRPERSON: Hm. 10 MR BALOYI: I will really be shocked. CHAIRPERSON: Hm. MR BALOYI: If we sitting in a situation where the appointment – I m e a n t h e t r a n s f e r i s a ff e c t e d . CHAIRPERSON: Hm. MR BALOYI: But the transfer is not facilitated. CHAIRPERSON: Hm. MR BALOYI: It – because that is exactly what it will mean. CHAIRPERSON: What if your understanding I am not saying it was so but what if your understanding was that the President was happy that 20 the Presidential Minute be signed and paperwork would be deal with later because there was some urgency as he saw it? Would you still have been opposed to signing without the paperwork? MR BALOYI: I would be disappointed with myself Chairperson if that was the case. CHAIRPERSON: Hm; Page 169 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Because I am not the type of a person who because somebody decide this has to be done even if it is not correct it must be done. CHAIRPERSON: Hm. MR BALOYI: I – it is quite a lot of things that I – I… CHAIRPERSON: Ja you do not operate like that. MR BALOYI: Ja I do not operate like that. That is why I am saying I will not only be shocked about what cabinet would have done I will also be shocked by my own actions. 10 CHAIRPERSON: Hm. Hm. MR BALOYI: So that is the position Chairperson. For me that is why if I were to say I mean in our discussion with Minister Chabane that is what I indicated there when I then say transfer to another – you are t h e n s a y i n g a r e y o u s u r e t h a t – d o e s i t s a y, n o t h a t i s w h a t I n e e d t o d o a n d I s t a r t e d i n t h e b e g i n n i n g r i g h t o n t h e d a y. The date was announced that I was to be a Minister even before I was sworn in. Immediately after the adjournment of Parliament where it was a n n o u n c e d t h e o n e M i n i s t e r a p p r o a c h e d m e t o t h e n s a y, o h n o w I s e e you there we are going to deal with these issues. 20 And I then said, because we have as a Portfolio Committee been opposed to this arbitrary exist of Heads of Department. That was my conviction. So I will not only be dis – be shocked and disappointed by that disappoint b y – b y t h e d e c i s i o n f o r t h e t r a n s f e r t o h a v e b e e n e ff e c t e d w i t h o u t a Cabinet Memorandum. I will also be disappointed by myself having a p p e n d e d m y s i g n a t u r e o n t h e P r e s i d e n t ’s M i n u t e b e c a u s e f o r m e i t i s Page 170 of 218 03 DECEMBER 2019 – DAY 195 not who says what but for me it is what is right. CHAIRPERSON: And you think it would – it would have been wrong to have a transfer without that due process and without cabinet discussing and making a decision on it? MR BALOYI: It would have been wrong. CHAIRPERSON: Hm. MR BALOYI: I mean even the Department would have then said but w h e r e i s t h e d u e p r o c e s s . I m e a n w h a t – r e a l l y. C H A I R P E R S O N : Ye s . 10 MR BALOYI: Really I – it will be something very wrong. C H A I R P E R S O N : Ye s . O k a y. A D V K AT E H O F M E Y R : C h a i r I n o t e . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : T h a t w e h a v e j u s t p a s s e d f o u r o ’ c l o c k . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : I d o n o t h a v e a g r e a t d e a l m o r e b u t t h e r e a r e a f e w a s p e c t s j u s t t o c o n c l u d e o n M r M a s e k o ’s t r a n s f e r a n d t h e n a f e w o n Mr Manyi but we have traversed a lot. C H A I R P E R S O N : Ye s , y e s . 20 A D V K AT E H O F M E Y R : Of what has happened on the 2 February so that will not be long. CHAIRPERSON: No I am… A D V K AT E H O F M E Y R : W o u l d i t p o s s i b l e t o s i t a b i t l a t e r ? CHAIRPERSON: Ja we can continue because I would like us to finish with him. Page 171 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : I n d e e d . C H A I R P E R S O N : B e c a u s e t o m o r r o w I t h i n k I a m s t a r t i n g e a r l y. A D V K AT E H O F M E Y R : C e r t a i n l y. CHAIRPERSON: Ja so… A D V K AT E H O F M E Y R : T h a n k y o u . CHAIRPERSON: Is it fine if we continue a bit? MR BALOYI: I am available Chairperson. CHAIRPERSON: Okay alright thank you. A D V K AT E H O F M E Y R : T h a n k y o u M r B a l o y i . I w o u l d l i k e t o t a k e y o u 10 t o t h e a ff i d a v i t t h a t w e r e c e i v e d f r o m t h e P r e s i d e n c y. Yo u w i l l f i n d i t i n Exhibit NN5 and it starts at page 319. M R B A L O Y I : 11 ? A D V K AT E H O F M E Y R : 3 1 9 . M R B A L O Y I : 3 1 9 o k a y. A D V K AT E H O F M E Y R : R i g h t a t t h e e n d o f t h a t f i l e . CHAIRPERSON: Did you say 219? A D V K AT E H O F M E Y R : I n d e e d C h a i r. MR BALOYI: Thank you. A D V K AT E H O F M E Y R : Ye s M a ’ a m I a m t h e r e . 20 A D V K AT E H O F M E Y R : T h a n k y o u . S o a t 3 1 9 i s t h e f i r s t p a g e o f t h e a ff i d a v i t a n d i t i s a n a ff i d a v i t d e p o s e d t o b y D o c t o r L u b i s i w h o i s currently the Director General in the Presidency and who is also the secretary of Cabinet. Mr Baloyi I would like you to have the benefit of what he says about his personal studying. M R B A L O Y I : O k a y. Page 172 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : Of the minutes of the 2 February because I want to understand from you what possible further investigations could be done in the light of what is contained here? M R B A L O Y I : O k a y. A D V K AT E H O F M E Y R : S o i f I c a n j u s t t a k e y o u t h r o u g h t h e a ff i d a v i t . If you go over the page to page 320. M R B A L O Y I : O k a y. A D V K AT E H O F M E Y R : Yo u w i l l s e e t h e r e t h a t D o c t o r L u b i s i t a l k s about – well itemises there what specific requests were made by the 10 c o m m i s s i o n i n r e l a t i o n t o t h e 2 F e b r u a r y 2 0 11 C a b i n e t M i n u t e s . A n d h e records there that the commission responded. This was to a request for particularity as to what we were looking for in the minutes. And he says: “The commission responded seeking those parts of t h e 2 F e b r u a r y 2 0 11 m i n u t e s t h a t r e f l e c t e d . ” And then there are four items there at 5.1 to 5.4. “The commission requested any and all noting by cabinet of the decision to transfer Mr Maseko from GCIS to the DPSA. Any and all noting by cabinet of 20 the decision to transfer Mr Manyi to GCIS. Any and all decisions of cabinet relating to the transfers of Mr Manyi and Mr Maseko and any recordal of any memoranda that were placed before cabinet at its m e e t i n g o f 2 F e b r u a r y 2 0 11 i n r e l a t i o n t o t h e t r a n s f e r of Mr Manyi and Mr Maseko.” Page 173 of 218 03 DECEMBER 2019 – DAY 195 If you go over the page you will find what Mr Lubisi says after he personally studied the minutes and you will find that at paragraph 9. Doctor Lubisi there says? “I have personally studied the Minutes of the Cabinet m e e t i n g o f 2 F e b r u a r y 2 0 11 a n d c a n c o n f i r m t h a t t h e minutes do not record any Cabinet Memorandum dealing with the transfers of Mr Maseko and Mr Manyi or indeed transfers of the Directors General of GCIS, DPSA or Labour having served before cabinet a t t h e m e e t i n g o f 2 F e b r u a r y 2 0 11 . ” 10 He says: “I can also confirm that the minutes do not reflect any discussion of or decision taken in relation to these transfers.” So Mr Baloyi what other possible investigations could be done other than asking the secretary of cabinet to look at those minutes and tell us what they contain? CHAIRPERSON: Maybe I could just say before Mr Baloyi responds. As I w a s r e a d i n g t h r o u g h t h i s a ff i d a v i t w h i l e s h e w a s a l s o l o o k i n g I n o t e d 20 that for the best part the Director General in the Presidency seemed to t a l k a b o u t o t h e r o ff i c i a l s h a v i n g p e r u s e d t h e m i n u t e s b u t w h e n I c a m e to the last paragraph, paragraph 9 where he says he personally studied the minutes then I thought okay well if he – if he personally studied t h a t m a k e s a b i g d i ff e r e n c e . I t h o u g h t h e w a s g i v i n g u s a n a ff i d a v i t b a s e d o n w h a t o t h e r p e o p l e – o t h e r p e o p l e ’s o b s e r v a t i o n s . Page 174 of 218 I thought 03 DECEMBER 2019 – DAY 195 he had not studied the minutes himself. I thought I must – I must just give you what I was thinking. M R B A L O Y I : Ye s . C H A I R P E R S O N : To w h a t I w a s l o o k i n g f o r t o s a y b u t i t i s n o t e n o u g h i f h e j u s t t e l l s u s t h a t o ff i c i a l s i n h i s o ff i c e h a v e l o o k e d a t t h e d o c u m e n t s . This is what they have told him. But then I came to this paragraph where he says he personally studied the minutes. But you – you may – you may respond. I think the import of the question is, what were – what I – what were you thinking of, what do you have in mind of – that 10 could go beyond this to try and – and establish whether indeed what he is saying here is true? MR BALOYI: Chair what – what I had in mind and it is what I have in mind still making a submission is that the receiving department which is… C H A I R P E R S O N : Yo u r d e p a r t m e n t ? MR BALOYI: Which is DPSA. CHAIRPERSON: Hm. MR BALOYI: regard. 20 Definitely should be having records in this – in this Because even the Presidential Minute – the Presidential Minute when it has to be done it is initiated in the department. And the M i n i s t e r s i g n s a n d t h e n r e f e r s t h a t t o – t o t h e P r e s i d e n c y. S o I w i l l b e surprised and to have these things in – that is why I am saying suppose what Doctor Lubisi has indicated here that is the final position and DPSA has no – no record about that, that is where I have indicated what my position will be. That of serious disappointment. Page 175 of 218 I cannot 03 DECEMBER 2019 – DAY 195 imagine what would have happened to actually get to a situation like this. CHAIRPERSON: I think I can – I think I do get the sense Mr Baloyi that really when you look at the situation of a trans – such a transfer happening without discussion of cabinet the paperwork being before cabinet and a decision being taken by cabinet you – you really cannot imagine how that could happen? MR BALOYI: I cannot imagine Chairperson. C H A I R P E R S O N : Ye s . 10 MR BALOYI: I cannot imagine how that can happen. It would be – that is why I am saying I will – I would be so disappointed about the p r o c e s s a n d a l s o a b o u t m y o w n s i g n a t u r e i n t h a t p i e c e o f p a p e r. CHAIRPERSON: Hm. MR BALOYI: Because really the requirement is. CHAIRPERSON: Hm. MR BALOYI: That there has to be a Cabinet Memorandum. CHAIRPERSON: Well you see in the end after hearing everybody including what the former President has to say although he has already started giving evidence and has said put has given his version in 20 r e g a r d t o t h i s t r a n s f e r. In the end being the person who must make decisions and findings I have to ask myself various questions. Now even with this ENCA – with the ENCA or ENews having got wind that – of the news that Mr Maseko was to be replaced by Mr Manyi. MR BALOYI: Hm. CHAIRPERSON: I d o n o t k n o w w h e t h e r t h a t w o u l d b e a s u ff i c i e n t Page 176 of 218 03 DECEMBER 2019 – DAY 195 justification for things not to be dealt with in the normal course. Why could not - why - why could not - why could a media statement not be issued which would indicate something without having to rush anything? I am - I am not sure that the mere fact that a news channel got wind of p a r t o f t h e n e w s w o u l d - w o u l d b e e n o u g h , b u t t h e - M r M a s e k o ’s evidence included this Mr Baloyi which you may have picked up from his statements and his transcript. He says he was told by Mr - Minister Chabane - he was called by Minister Chabane who said to him that he had received a call from 10 the former President. MR BALOYI: Huh-uh. C H A I R P E R S O N : W h i l e t h e f o r m e r P r e s i d e n t w a s o u t o f t h e c o u n t r y. MR BALOYI: Hm. CHAIRPERSON: out of G - GCIS. W h o s a i d t h a t h e n e e d e d t o i n e ff e c t g e t M r M a s e k o I think he put it as - he put it on the basis that Mr Maseko had to be removed or fired from GCIS or transferred or put somewhere, but that he - that is the former President according to Mr Maseko relaying what Minister Chabane relayed to him. The former President had said that by the time he arrived back in the country 20 Mr Maseko should no longer be in GCIS. MR BALOYI: Hm. CHAIRPERSON: Now the information that - that is my recollection. I hope I am right. Ja. I think Ms Hofmeyr nods. So I think that is her recollection too. So Mr Maseko said Minister Chabane said you know the President said by the time he arrives back he must not be in GCIS, Page 177 of 218 03 DECEMBER 2019 – DAY 195 but that he went on to say to him, because I know you are a good civil servant or public servant I will not throw you into the street. I will try and find a place for you. That is - that is what he said and I think the information the Commission has suggests that the P r e s i d e n t a r r i v e d b a c k i n t o t h e c o u n t r y. H e w a s o u t o f t h e c o u n t r y o n some State business. I think he had gone to a BRICS meeting if I am not mistaken and then to an AU meeting. If I am not mistaken. When h e a r r i v e - h e a r r i v e d b a c k o n 1 F e b r u a r y. I t h i n k t h a t i s - t h a t i s - t h a t is my recollection. I do not know if it is the 31st. 10 A D V K AT E H O F M E Y R : C h a i r i t w a s o n t h e 1 s t a c t u a l l y. C H A I R P E R S O N : O n t h e 1 s t . Ye s . A D V K AT E H O F M E Y R : S o i t i s t h e Tu e s d a y o f t h e w e e k b e f o r e C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : B e f o r e t h e C a b i n e t M e e t i n g … C H A I R P E R S O N : B e f o r e t h e m e e t i n g . Ye s . A D V K AT E H O F M E Y R : O n t h e 2 n d . CHAIRPERSON: So he arrived on the - on - on the 1st. The Cabinet Meeting was to be on the 2nd. MR BALOYI: The 2nd. 20 CHAIRPERSON: So obviously arrived while Mr Maseko was still at GCIS and then we - we - we have been told what happened on the 2nd. So a question that one cannot avoid is to say if what Mr Maseko says he was told by Mr Chabane is true. MR BALOYI: Hm. CHAIRPERSON: Then maybe the E! News factor added to some Page 178 of 218 03 DECEMBER 2019 – DAY 195 u r g e n c y t h a t w a s t h e r e a n y w a y. I a m n o t s u r e , b u t t h a t i s - t h a t i s t h e background … MR BALOYI: Hm. CHAIRPERSON: That Mr Maseko gave - gave. MR BALOYI: Ja. CHAIRPERSON: Is that something that you - you heard of at any stage while you were still Minister or is that something you - you heard for the first time after Mr Maseko had gone public about …? MR BALOYI: 10 Ja. I - I heard about it after Mr Maseko had said something about - about this and I - I agree with you Chairperson that … CHAIRPERSON: Hm. MR BALOYI: In - in - in the procedure that obtains which I was presiding over as in - in DPSA. There will be no - the ENCA announcement will not have actually necessitated a departure from the normal practice, because a statement could easily be issues to - to c l a r i f y t h a t a n d t h e n w e - w e d e a l w i t h t h e i s s u e s a c c o r d i n g l y. S o t h a t is why I am saying if - if the Commission would I know because from t h e P r e s i d e n c y w i l l a l r e a d y h a v e a n a ff i d a v i t . 20 I - I c a n s e e t h a t i t - i t m i g h t b e d i ff i c u l t t o g o t h e r o u t e o r trying to establish, but I will submit - I will submit that my - my request be accepted. I want to satisfy myself … C H A I R P E R S O N : Ye s . MR BALOYI: Chairperson. C H A I R P E R S O N : Ye s . Page 179 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: That something amiss went on in our judgment or - or - or something. It is - it is a - it is a … CHAIRPERSON: Ja. MR BALOYI: I will not be surprised. C H A I R P E R S O N : Yo u j u s t c a n n o t u n d e r s t a n d h o w y o u … MR BALOYI: I - I just … C H A I R P E R S O N : Yo u d o a n y t h i n g l i k e t h i s … MR BALOYI: Just … CHAIRPERSON: Without process - due process. 10 MR BALOYI: Ja. I just cannot understand. CHAIRPERSON: Well if - you - you said that your - your department one would expect it to have documents including such a memorandum if it does exist. Is that right? M R B A L O Y I : Ye s C h a i r p e r s o n . I - I s a i d t h a t . CHAIRPERSON: Ye s . Would - do you think it might help if arrangements were to be made with the Director-General of the Department of Public Service and Administration maybe for you in the company of maybe an investigator or a member of the legal team from the Commission to - to be allowed to go to the department and see 20 whether that visit can help in anyway in terms of trying to look where there could be information? Do you think that is something that can help or is it something that you - you would like to do on your own? MR BALOYI: We can combine both Chairperson. CHAIRPERSON: Ja, but - but that is one of the things you - you are thinking of? Page 180 of 218 03 DECEMBER 2019 – DAY 195 M R B A L O Y I : Ye s . C H A I R P E R S O N : J a . To t r y a n d e s t a b l i s h r e a l l y w h a t … ( i n t e r v e n e s ) . M R B A L O Y I : Tr y a n d e s t a b l i s h , b e c a u s e r e a l l y I - I c a n n o t e s t a b l i s h a s to - I mean I cannot - I cannot … CHAIRPERSON: Imagine that. MR BALOYI: Imagine how things like those could have happened. C H A I R P E R S O N : C o u l d h a v e h a p p e n e d . Ye s . MR BALOYI: Ja. C H A I R P E R S O N : Ye s . O k a y. M s - M s H o f m e y r. 10 A D V K AT E H O F M E Y R : Chair there have been engagements with DPSA. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : P r e c i s e l y i n r e l a t i o n t o a n y r e c o r d s t h e y h a d … CHAIRPERSON: Hm. A D V K AT E H O F M E Y R : O n t h i s t o p i c … C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : A n d a m o n g s t t h e r e c o r d s w e d i d r e c e i v e … C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : 20 Is a document entitled an explanatory memorandum … C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : And I would like to take Mr Baloyi there in fairness. C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : M r B a l o y i i t i s i n E X H I B I T N N 5 a n d i t i s a t p a g e Page 181 of 218 03 DECEMBER 2019 – DAY 195 42 - 4-2. Chair while Mr Baloyi is finding that page - NN5 page 42. Certainly it will be our submission that whatever might exist in the records of DPSA unless there is a basis to go behind what Dr Lebasi h a s s a i d o n a ff i d a v i t . I t d i d n o t f i n d i t s w a y t o C a b i n e t . CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : T h e r e c o r d s o f t h a t m e e t i n g i n d i c a t e n o C a b i n e t Memorandum before, no discussion of and no decision on, but there is this document. W e h a v e t r a v e r s e d b o t h D e p a r t m e n t o f L a b o u r, D P S A and GCIS for all possible documents related to these transfers and 10 Mr Baloyi will tell us afterwards if he thinks there is still further investigations that need to take place, but Mr Baloyi amongst … CHAIRPERSON: Have you found that document Mr Baloyi? M R B A L O Y I : Ye s C h a i r p e r s o n . I h a v e f o u n d i t . C H A I R P E R S O N : Ye s . A D V K AT E H O F M E Y R : memorandum. Now that is a document entitled explanatory Before we go there Mr Baloyi the usual process for Cabinet Memorandum placed before Cabinet. We understood from Mr Maseko there is a whole process involved. It is prepared. It then goes to the relevant subcommittee and then it is served before Cabinet 20 at a particular meeting. Are you aware of that process? MR BALOYI: Chair if - if I can talk to this document. It is one of the documents that was given to me. C H A I R P E R S O N : Ye s . M R B A L O Y I : O n W e d n e s d a y. CHAIRPERSON: Ye s . Have you had a chance to - I assume you … Page 182 of 218 03 DECEMBER 2019 – DAY 195 (intervenes). MR BALOYI: Clearly I had no chance to - to actually look at - at this and it comes in as an … CHAIRPERSON: If course if you got it on Wednesday last week you s h o u l d h a v e r e a d i t . Yo u d i d h a v e a c h a n c e . Yo u m i g h t n o t h a v e r e a d it, but you did have a chance. MR BALOYI: Chairperson, I - it was sent to me electronically … C H A I R P E R S O N : Ye s . MR BALOYI: And I - I actually read it on … 10 CHAIRPERSON: On the screen. MR BALOYI: On - on Thursday and I sent a message to the Commission through a - an email. C H A I R P E R S O N : Ye s . MR BALOYI: Requesting for some more document … C H A I R P E R S O N : Ye s . MR BALOYI: About - about that … C H A I R P E R S O N : Ye s . MR BALOYI: And of course this having not been introduced exactly as to what it is all about. 20 C H A I R P E R S O N : Ye s . MR BALOYI: One did not include, but it is the part of the things that if - if I am given a chance we - we could actually look at - at these things. I even requested Chairperson … CHAIRPERSON: Hm. MR BALOYI: To - t o h a v e d o c u m e n t s a s s i s t i n g m e t o w o r k o n t h i s Page 183 of 218 03 DECEMBER 2019 – DAY 195 thing. It is - it is really a problem to look at that. So I am hearing that this document is - was obtained in DPSA, but there was no - it was never referred to Cabinet. CHAIRPERSON: Well maybe let us take it step by step. I think Ms Hofmeyr wants to ask you some questions … M R B A L O Y I : O k a y. C H A I R P E R S O N : A n d m a y b e M s H o f m e y r I k n o w t h e r e i s a n a ff i d a v i t b y the DG of DPSA somewhere. Maybe we - we should start there, b e c a u s e I d o n o t k n o w w h e t h e r i n t h a t a ff i d a v i t h e m a y b e s a y i n g t h e 10 documents he is sending you are all the documents that have something to do with the transfer or not, but you - you would - you would be more familiar with that. A D V K AT E H O F M E Y R : I n d e e d C h a i r. I w i l l g o t h e r e i n a m o m e n t i f I m a y. C H A I R P E R S O N : Ye s . O k a y. A D V K AT E H O F M E Y R : Whether this is everything or not is not pertinent for my present questions. My present questions are just dealing with this document. M R B A L O Y I : Ye s . 20 A D V K AT E H O F M E Y R : So if we could focus on 42. signature on that page. Is that your signature Mr Baloyi? M R B A L O Y I : Ye s m a d a m . A D V K AT E H O F M E Y R : A n d d o y o u r e c a l l t h i s d o c u m e n t ? MR BALOYI: Come again? A D V K AT E H O F M E Y R : D o y o u r e m e m b e r t h i s d o c u m e n t ? Page 184 of 218 There is a 03 DECEMBER 2019 – DAY 195 MR BALOYI: I - I saw it as it came. A D V K AT E H O F M E Y R : Ye s . MR BALOYI: As you sent - as - as I got it on - but - but I - I do not remember like to then say verbatim this is what we were discussing, w h e r e a n d s t u ff l i k e t h a t . A D V K AT E H O F M E Y R : Well do you remember drafting this memorandum? MR BALOYI: The - the drafting of documents in a Government d e p a r t m e n t i s d o n e b y o ff i c i a l s a n d - a n d h e r e f e r r e d t o - t o M i n i s t e r s 10 … A D V K AT E H O F M E Y R : T h a n k y o u . MR BALOYI: And - and a document like this coming as one page. Definitely should be part of a - a submission or a file I referred to earlier on that some of these documents that we were supposed to comment on. The information is readily available in the - in the Government department. So to - to really then single out this document t o t h e n s a y 1 0 / 11 y e a r s a g o t h i s i s t h e d o c u m e n t s e n t . Do you r e m e m b e r i t ? R e a l l y. I t i s a p r o b l e m . A D V K AT E H O F M E Y R : N o . I f u l l y u n d e r s t a n d t h a t a n d I - I a m g r a t e f u l 20 o r y o u r e v i d e n c e t h a t d r a f t i n g t a k e s p l a c e b y o ff i c i a l s . M a y I t h e n j u s t ask as you sit here today do you remember receiving this document around the time of the transfers and feel free to say you do not remember? I just want to be clear on what your recollection is. CHAIRPERSON: In other words does it ring a bell. Do you say no I - I remember this document? Page 185 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: It - it rings a bell Chairperson … C H A I R P E R S O N : Ye s . MR BALOYI: And my signature is there … C H A I R P E R S O N : Ye s . MR BALOYI: But it is part of what? C H A I R P E R S O N : Ye s . MR BALOYI: That is the issue. CHAIRPERSON: What would that signature - what would your signature there on the document signify? When you signed it - what 10 would it have signified approval of the document? Would it have signified that you have had had sight of the document or what would it signify? MR BALOYI: Normally the signatures come at the bottom of a document. C H A I R P E R S O N : Ye s . MR BALOYI: It means that the - the totality of the document. C H A I R P E R S O N : Ye s . Ye s . MR BALOYI: Yo u c o n c u r w i t h a n d t h e n h e r e m y s i g n a t u r e c o m e s o n the side of … 20 CHAIRPERSON: Ja. MR BALOYI: Paragraph 2. CHAIRPERSON: That is what I do not understand. MR BALOYI: I do not understand. C H A I R P E R S O N : Ye s . M R B A L O Y I : A s t o w h a t w a s - m a y b e I w a s t h e n s a y i n g o k a y. I n o t e Page 186 of 218 03 DECEMBER 2019 – DAY 195 that they say the P r e s i d e n t ’s Minute proposes a transfer of Mr T J Maseko the Director-General, but then all what - what it means. I t m e a n s t h e p a r a g r a p h 2 i t - i t t h e n c l a r i f i e s w h a t I s a i d e a r l i e r o n . To s a y t h e P r e s i d e n t ’s M i n u t e w a s - w a s d r a f t e d a c c o r d i n g t o p a r a g r a p h 2 . W a s d r a f t e d a t t h e P r e s i d e n c y. Proposing the transfer of Mr Maseko to DPSA and then talking about the post in DPSA is vacant and then all that like that. So my signature there is on the side. It - it could mean that this is an explanatory memorandum to which the C a b i n e t - I m e a n t h e P r e s i d e n t ’s M i n u t e w a s a t t a c h e d . 10 It could - it could be that. It - it - when I read it like that. It - it could mean - that t h a t i s e x a c t l y. A D V K AT E H O F M E Y R : M r B a l o y i y o u m i g h t b e h a p p y t o - t o l e a r n t h a t when I read this I had the similar view about it. MR BALOYI: Hm. A D V K AT E H O F M E Y R : That it may have been an explanatory memorandum attached to the Presidential Minute … M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : Presidential Minute. 20 Because it reads as though it talks about the It talks about what it proposes, but what I am really interested in today is whether this is a Cabinet Memorandum. MR BALOYI: No. This is not a Cabinet Memorandum. I have indicated that a - I - I have not applied my mind fully on this document. It comes i n a s a l o s e p i e c e o f p a p e r. F o r s u r e i n t h e f i l e i n D P S A t h i s d o c u m e n t is not standing alone idly there. It is a - it is - it is a document that is attached to some other documents that will be key for us considering Page 187 of 218 03 DECEMBER 2019 – DAY 195 that … A D V K AT E H O F M E Y R : H m . MR BALOYI: Because when - when you look at paragraph 2 which is what I am - I am actually picking up. Is that it talks about the - the P r e s i d e n t ’s M i n u t e h a v i n g b e e n d r a f t e d . A D V K AT E H O F M E Y R : H m . MR BALOYI: So - and then calling for - for DPSA to then - to then work on it. A D V K AT E H O F M E Y R : W h a t I w o u l d l i k e t o f o l l o w u p o n t h o u g h i s o n e 10 other point in this memorandum at paragraph 3, because we have been trying to locate it in time. I should be fair and say the documents we have received from both DPSA and Department of Labour are in a state o f d i s a r r a y. C e r t a i n l y m a y b e a t y o u r t i m e M r B a l o y i t h i n g s w e r e k e p t i n an orderly fashion, but we - we have not been fortunate enough to find that in our investigations, but nonetheless at paragraph 3 you will see there it is recorded: “The responsible Executive Authority for GCIS the Minister of Performance Monitoring Evaluation and Administration in the Presidency concurs with the 20 proposed transfer of Mr Maseko.” And then it says: “See herewith a copy of his letter to the Minister for Public Service and Administration in this regard.” Do you see that? MR BALOYI: I see it. Page 188 of 218 03 DECEMBER 2019 – DAY 195 A D V K AT E H O F M E Y R : A n d y o u w i l l r e c a l l t h a t p r e v i o u s l y w e l o o k e d a t a letter from Mr Chabane addressed to you. M R B A L O Y I : Ye s . A D V K AT E H O F M E Y R : D a t e d 2 F e b r u a r y 2 0 11 . MR BALOYI: Hm. A D V K AT E H O F M E Y R : D o y o u a c c e p t t h a t t h i s m e m o r a n d u m t h e r e f o r e must have been produced after receipt of that letter from Minister Chabane on 2 February? MR BALOYI: I mean from what - what the document is saying. 10 A D V K AT E H O F M E Y R : I n d e e d . MR BALOYI: We - we can conclude that. A D V K AT E H O F M E Y R : I n d e e d . I t h i n k t h a t i s f a i r. CHAIRPERSON: Well there is something else in this memorandum that is interesting. If you look at the last sentence of paragraph 4. It says: “The proposed transfer was discussed with Mr Maseko and he is in agreement.” Yo u r e m e m b e r y o u a n d I h a d a d i s c u s s i o n a n d I w a s s a y i n g that if such a memorandum - if a Cabinet Memorandum exist or existed a n d i t s a i d M r M a s e k o h a d c o n s e n t e d t o t h e t r a n s f e r. T h a t m i g h t n o t b e 20 helpful enough. MR BALOYI: Hm. CHAIRPERSON: Where it might be helpful is if it indicates that you had a discussion with him … MR BALOYI: Hm. C H A I R P E R S O N : B e c a u s e y o u s a y t h e r e w a s a d i s c u s s i o n . Yo u h a d a Page 189 of 218 03 DECEMBER 2019 – DAY 195 discussion with him. He says there was no discussion between the two of you about his transfer before the announcement to Cabinet. Yo u r e m e m b e r t h a t ? Yo u r e m e m b e r t h a t d i s c u s s i o n b e t w e e n t h e t w o u s ? MR BALOYI: I - I remember - I remember Chairperson. CHAIRPERSON: The - this last sentence there do you know whether that is a sentence that you might have had something to do with or you do not remember? MR BALOYI: I - I d o n o t r e m e m b e r. The - paragraph 4 I say the p r o p o s e d e ff e c t i v e d a t e o f t h e t r a n s f e r i s a d a t e f o l l o w i n g t h e - t h e d a t e 10 … (intervenes). CHAIRPERSON: No. It is the last sentence that I am looking at. MR BALOYI: The last - ja. The last sentence. C H A I R P E R S O N : Ye s . MR BALOYI: Hm. C H A I R P E R S O N : Yo u d o n o t r e m e m b e r ? M R B A L O Y I : I s t h e d a t e - n o - n o I d o n o t r e m e m b e r. C H A I R P E R S O N : Ye s . O k a y. A l r i g h t . L e t m e j u s t a s k s o m e t h i n g e l s e before I forget. Ms Hofmeyr referred you to the letter from Mr Chabane to you that we looked at earlier … 20 M R B A L O Y I : Ye s . CHAIRPERSON: And at the beginning of that letter Mr Chabane says h e c o n c u r s t o t h e t r a n s f e r. I f I r e c a l l c o r r e c t l y. W h a t p a g e i s i t a g a i n ? A D V K AT E H O F M E Y R : I t i s t h e n e x t p a g e C h a i r. W e l l … CHAIRPERSON: Oh. A D V K AT E H O F M E Y R : Ye s . N e x t p a g e - 4 3 . Page 190 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : Ye s . Ye s . H e - h e s a y s : “ I c o n c u r s u b j e c t t o t h e P r e s i d e n t ’s a p p r o v a l w i t h the transfer of Mr T J Maseko.” Yo u k n o w t h e r e i s t h i s q u e s t i o n o f w h e r e t h i s - w h o i n i t i a t e d the transfer? Where did the idea come from? One way of looking at I concur maybe that somebody else has made a suggestion or proposal a n d y o u t h e n c o n c u r. Okay and I am wondering whether there is any significance to be attached to him saying that. Is there any - have you got any comment? 10 M R B A L O Y I : To … C H A I R P E R S O N : To h i m s a y i n g I c o n c u r. M R B A L O Y I : I c o n c u r. CHAIRPERSON: He is writing to you. M R B A L O Y I : Ye s . C H A I R P E R S O N : H e s a y s I c o n c u r. MR BALOYI: Hm. CHAIRPERSON: And I am saying one - one interpretation might be as if you had suggested something and he is concurring to it. MR BALOYI: Exactly Chairperson. I suggested to him the transfer of 20 Mr Maseko in the meeting I referred to. CHAIRPERSON: Hm. MR BALOYI: He approached me about exit management … CHAIRPERSON: Hm. MR BALOYI: And I - I introduced two proposals to him - two options … CHAIRPERSON: Hm. Page 191 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Redetermination and transfer … CHAIRPERSON: Huh-uh. MR BALOYI: And I - I suggested the best one is that of transfer … CHAIRPERSON: Hm. MR BALOYI: And we agreed that we need to approach him both of us … CHAIRPERSON: Hm. MR BALOYI: I n d i v i d u a l l y. If he gives consent then we should the m a t t e r f u r t h e r, b u t o f c o u r s e t h a t w i l l s t i l l b e s u b j e c t t o c o n c u r r e n c e b y 10 Cabinet and approval by the President. CHAIRPERSON: Now you had a discussion with Minister Chabane about this transfer and you have already said that he made it clear that a d e c i s i o n h a d b e e n t a k e n t h a t M r M a s e k o s h o u l d i n e ff e c t l e a v e G C I S . Is - is that how he put it? I am not saying word for word, but did he put it in that way that a decision had been taken. Is that how he put it? MR BALOYI: That - that is how he put it Chairperson and that is why e v e n i n m y a ff i d a v i t I i n d i c a t e d t h a t I - I t h e n s a i d - w h e n h e s a i d e x i t management. I said in a situation where the initiator is - is not the DG. We will need to - to get the DG concerned, because I - I - the exit for 20 him was exit from GCIS, but the issue of transfer came with me. The issue of redetermination came with me. CHAIRPERSON: Yo u s e e i t d o e s n o t s t r i k e m e a s a n o r m a l w a y o f speaking if I have made the decision and - and I am asking you for advice and I say a decision has been taken instead of saying. k n o w, b e c a u s e y o u w e r e h i s c o l l e a g u e … Page 192 of 218 Yo u 03 DECEMBER 2019 – DAY 195 MR BALOYI: Ja. CHAIRPERSON: And he was asking for advice from you on the management of the exit. Does it strike me as normal - a normal way of speaking for me to say a decision has been taken. saying. Instead of me Yo u k n o w I h a v e t a k e n a d e c i s i o n t h a t I c a n n o t w o r k w i t h Mr Maseko anymore. He needs to leave. MR BALOYI: Hm. CHAIRPERSON: Can you help me with how to manage his departure. MR BALOYI: Hm. 10 CHAIRPERSON: Have you got any comment on - on what I am saying in terms of how it came across to you? Did you have the same feeling as I do? That I would expect you to say to me as your colleague if you want advice. anymore. Say I cannot work - continue working with my DG I have made the decision that he needs to go, but I need your advice. In other words I will disclose that I am the one who has made the decision. Is - is - have you got anything you are able to say about what you thought of this way of putting things to you on his part? M R B A L O Y I : C h a i r, I - t h a n k y o u v e r y m u c h . I - I c o n s i d e r t h a t i n t h e 20 context of a report that speech. CHAIRPERSON: Hm. MR BALOYI: Where it may not be ordinary straightforward communication language … CHAIRPERSON: Huh-uh. MR BALOYI: But it is not - it is not unheard of in - in reported … Page 193 of 218 03 DECEMBER 2019 – DAY 195 CHAIRPERSON: Hm. MR BALOYI: Situations. CHAIRPERSON: Hm. MR BALOYI: That a person may say a decision has been taken. CHAIRPERSON: Hm. MR BALOYI: Even referring to that decision having been taken by that person. That was my understanding Chairperson. CHAIRPERSON: Hm. Hm. Hm. M R B A L O Y I : I t - i t m a y - i t m a y d i ff e r w i t h a g e n e r a l n o r m i n t e r m s o f 10 … CHAIRPERSON: Hm. MR BALOYI: Understanding communications … CHAIRPERSON: Hm. MR BALOYI: But in a reported form. CHAIRPERSON: Hm. MR BALOYI: I - I took it like that. CHAIRPERSON: Hm. MR BALOYI: That is why in my statement. CHAIRPERSON: Hm. 20 MR BALOYI: I said I understood what it means, but of course I understood that he cannot take a decision like that even if it is him without consulting his Principal, because the - the responsibility … CHAIRPERSON: Hm. M R B A L O Y I : To t h e - t o t r a n s f e r … CHAIRPERSON: Hm. Page 194 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: Or the authority … CHAIRPERSON: Hm. MR BALOYI: First with the - the President. C H A I R P E R S O N : Ye s . MR BALOYI: So - so him working in that establishment. CHAIRPERSON: Hm. MR BALOYI: It was then - you would say the Presidency has taken a decision. CHAIRPERSON: Hm. Hm. 10 MR BALOYI: And - and the Presidency as an establishment … CHAIRPERSON: Hm. MR BALOYI: Has a got a Minister in the President … CHAIRPERSON: Hm. MR BALOYI: Or Ministers in the President. CHAIRPERSON: Hm. Hm. MR BALOYI: Then - and then and then the President. CHAIRPERSON: Hm. MR BALOYI: So that is my understanding … CHAIRPERSON: Hm. 20 MR BALOYI: And - and I did not - I did - it did not come to me. CHAIRPERSON: Hm. MR BALOYI: My - my only interest Chairperson was who initiated that … C H A I R P E R S O N : Ye s . MR BALOYI: And it was clear that it was not initiated by Maseko … Page 195 of 218 03 DECEMBER 2019 – DAY 195 C H A I R P E R S O N : Ye s . Ye s . MR BALOYI: And - and having not been initiated by - by Maseko that is when then it - it came to me that … C H A I R P E R S O N : Ye s . M R B A L O Y I : W e n e e d t o m a n a g e i t i n a p a r t i c u l a r w a y. CHAIRPERSON: Ye s . So - so your - your understanding was that in saying a decision has been taken he was not necessarily excluding himself … MR BALOYI: Exactly Chairperson. 10 CHAIRPERSON: From the decision? A D V K AT E H O F M E Y R : MR BALOYI: Exactly Chairperson. CHAIRPERSON: But your understanding was that what he meant was that the President had been consulted because your understanding was that such a decision can’t be finalised without the President, that was your understanding? MR BALOYI: That was my understanding Chairperson. CHAIRPERSON: MR BALOYI: 20 Mmm. That was my understanding because I mean even when, in the point madam referred to earlier on, referral of document for appointment purposes, even when Ministers will short-list and come with three possible candidates, before referring that to the Minister of Public Service and Administration they will have to touch base with the Authority that is the President to then say – then it means any of these candidates are employable and then they come to me, you’d then would Page 196 of 218 03 DECEMBER 2019 – DAY 195 deal with the rest, the necessary checks in terms of the requirements. So the move taken is always taken in consultation. CHAIRPERSON: Ye s , y e s o k a y. A D V K AT E H O F M E Y R : C h a i r i f m a y, b e c a u s e I t h i n k t h i s i s q u i t e a n i m p o r t a n t p a r t o f M r B a l o y i ’s e v i d e n c e , I t o o k v e r y c a r e f u l n o t e M r Baloyi when the Chairperson asked you earlier to take your mind back and actually try and tell us what was said in the conversation between you and Minister Chabane. As I wrote it down, you said that Minister Chabane had said to you, 10 “I have been informed there is a decision that Mr Maseko must leave”, Do you remember recounting that earlier? MR BALOYI: I think that Minister Chabane said I had been informed. A D V K AT E H O F M E Y R : Ye s w h e n t h e C h a i r a s k e d y o u , t a k e y o u r s e l f b a c k t o t h a t c o n v e r s a t i o n a n d y o u w e r e a n s w e r i n g t h e C h a i r ’s q u e s t i o n when you gave what Mr Chabane said as I wrote it down at the time you said Mr Chabane said, “I’ve been informed that there is a decision that Mr Maseko must leave”, 20 MR BALOYI: No, no, no that really – that is what I said, what I said is that I was informed by the Minister that a decision has been taken, not that the Minister was informed. A D V K AT E H O F M E Y R : I understand thank you for the clarification. Mr Baloyi if we may then go to …[intervenes]. CHAIRPERSON: Maybe just to finalise an aspect, so going back to Page 197 of 218 03 DECEMBER 2019 – DAY 195 initiating, once you knew that Mr Maseko had not initiated the transfer or his move departure from GCIS, on your understanding was there only one other person who could initiate that, namely Minister Chabane or could it have been initiated by anybody else, leaving you aside because you said that in certain circumstances you could as well but I think you are not including yourself here? MR BALOYI: Ye s C h a i r p e r s o n e x a c t l y l i k e I s a i d , t h e M i n i s t e r c o u l d h a v e i n i t i a t e d t h a t o r t h e D G c o u l d h a v e i n i t i a t e d t h a t , t h a t ’s e x a c t l y – if you say could there be any other person, the answer is yes the 10 M i n i s t e r c o u l d i n i t i a t e t h e t r a n s f e r o r t h e e x i t i f w e p u t i t t h a t w a y. CHAIRPERSON: MR BALOYI: It was just an exit. CHAIRPERSON: MR BALOYI: Ja because initially it was just the exit. An idea of a transfer came…[intervenes]. The transfer came with me. CHAIRPERSON: J a o k a y. A D V K AT E H O F M E Y R : T h a n k y o u C h a i r. Mr Baloyi I’d like now to m o v e t o M r M a n y i v e r y b r i e f l y b o t h h i s d i s m i s s a l a n d h i s t r a n s f e r. T h e evidence before the Commission of Mr Manyi and some of the documents we’ve been able to source indicates that Mr Manyi engaged 20 you very shortly after his position was terminated by former Minister Mdladlana, does that accord with your recollection? MR BALOYI: In the documents I received on Wednesday there is reference to written exchange of communications between me and him, after Minister Oliphant requested my intervention, so the answer is yes. A D V K AT E H O F M E Y R : Thank you there was also, amongst the Page 198 of 218 03 DECEMBER 2019 – DAY 195 documents sent to you, what appears to be every alternate page of a type of memorandum that you may have written at the time. I’d like to t a k e y o u t o i t s o y o u c a n a s s i s t u s w i t h i t , i t ’s i n E x h i b i t N N 5 a n d i t ’s a t page 208. MR BALOYI: I’m there. A D V K AT E H O F M E Y R : Thank you. Mr Baloyi this is a document that appears to comprise, at least here, three pages it runs from 208 to 210 do you see that? MR BALOYI: 10 Ye s I s e e t h a t . A D V K AT E H O F M E Y R : It does seem to indicate at page 210 that you had some involvement in this document, do you recall this document? MR BALOYI: Ye s a l t h o u g h i t h a s m y n a m e a n d i t i s n o t s i g n e d b u t t h e content sounds familiar to me. A D V K AT E H O F M E Y R : Okay as I understand the content, in paragraph 1.1 on page 208 it records a request for intervention that had been received. Can you tell us what you recollect about that request for intervention? MR BALOYI: I was refreshed to this issue when I received this document on Wednesday and clearly approached in that fashion would 20 be in writing and clearly these are some of the documents that, had I r e c e i v e d t h e m e a r l i e r, I w o u l d h a v e r e s e a r c h e d m o r e i n t e r m s o f w h a t i s i t t h a t ’s i n t h e r e b u t h a v i n g c o m e o n W e d n e s d a y, h o n e s t l y s p e a k i n g i t ’s a – I didn’t do a lot in terms of establishing what is going on there. A D V K AT E H O F M E Y R : As you sit here today do you have any memory o f r e c e i v i n g a r e q u e s t f r o m t h e o ff i c e o f t h e P r e s i d e n t o f t h e R e p u b l i c Page 199 of 218 03 DECEMBER 2019 – DAY 195 o f S o u t h A f r i c a t o i n t e r v e n e i n t h e m a t t e r i n v o l v i n g M r M a n y i ’s dismissal? MR BALOYI: I’m not challenging what is contained in the document, the issues I’m raising is that if received in time, I would have done f u r t h e r r e s e a r c h t o e s t a b l i s h t h i s m a t t e r. A D V K AT E H O F M E Y R : MR BALOYI: And what would that research have involved? Yo u k n o w w h e n I d e a l w i t h t h e s e i s s u e s I e s t a b l i s h – well these things happened a long time ago it involved thinking about it, it involved trying to engage with some of the people I was working 10 with just to try to have that recollection and it also involves something that I’ve indicated, it also involved, like I said, I was not doing these t h i n g s a t a p e r s o n a l l e v e l t h a t ’s w h y I w r o t e t o p r i n c i p a l s o f m y employment at the time to assist me to get to this thing because surely i f t h e r e w a s a r e q u e s t t o i n t e r v e n e a n d i t ’s i n w r i t i n g i t s h o u l d b e t h e r e in the records and to expect me to run around look for these documents where will I find it. A D V K AT E H O F M E Y R : Indeed, Chair this is the appropriate point – I d o n ’ t s u g g e s t w e g o t h e r e b u t y o u a s k e d e a r l i e r a b o u t t h e a ff i d a v i t f r o m the Director General of DPSA. 20 CHAIRPERSON: Oh yes, yes. A D V K AT E H O F M E Y R : Because this is amongst the documents that we obtained from DPSA. Mr Baloyi just to satisfy you in relation to any further investigations which you may wish to make, what this document as contained here is the only version of it that we have managed to obtain from DPSA, they provided us with a full file of everything they Page 200 of 218 03 DECEMBER 2019 – DAY 195 h a d r e l a t i n g t o M r M a n y i ’s d i s m i s s a l t h a t ’s s e t o u t i n a n a ff i d a v i t t h a t a p p e a r s a t p a g e 1 6 2 a n d s o c e r t a i n l y t h e C o m m i s s i o n ’s e ff o r t s suggests that there are no further documents but I understand your evidence to be you don’t dispute that you may have received such a request. MR BALOYI: E x a c t l y, b u t I m a y n o t g o i n t o d e t a i l s w h e t h e r i t c a m e telephonically or it came in writing. A D V K AT E H O F M E Y R : Understood, you indicate in – over the page in that memo at page 209 that you’d looked into the question of Mr 10 M a n y i ’s d i s m i s s a l a n d t h a t y o u h a d m a d e s o m e r e c o m m e n d a t i o n s t o Minister Oliphant, you’ll see that at 4.5. Mr Baloyi were you present for the evidence of Ms Oliphant, today? MR BALOYI: Come again? A D V K AT E H O F M E Y R : Were you present when Ms Oliphant was testifying? MR BALOYI: Ye s I w a s p r e s e n t y e s . A D V K AT E H O F M E Y R : Then you would have seen that I took her to a letter that appears to have been written by you to her on the 29th of November 2010, do you recall sending that letter to her? 20 MR BALOYI: Ja I thought that letter was – I also received in on W e d n e s d a y, t h a t ’s m y s i g n a t u r e n o d o u b t a b o u t i t , i t i s m y l e t t e r. A D V K AT E H O F M E Y R : Thank you and you gave her four pieces of a d v i c e i f y o u ’ l l r e c a l l i n t h a t l e t t e r, y o u ’ l l f i n d i t a t p a g e 2 1 7 . MR BALOYI: Ye s . A D V K AT E H O F M E Y R : We went through it earlier I won’t take a lot of Page 201 of 218 03 DECEMBER 2019 – DAY 195 t i m e w i t h i t b u t I d o w a n t t o j u s t g e t y o u r c o m m e n t o n M s O l i p h a n t ’s e v i d e n c e . Yo u ’ l l s e e a t p a g e 2 1 7 y o u a d v i s e d h e r o f f o u r t h i n g s . MR BALOYI: Ye s . A D V K AT E H O F M E Y R : Yo u a d v i s e d h e r u n d e r 3 A t o w i t h d r a w t h e f o r m e r M i n i s t e r ’s l e t t e r w h i c h t e r m i n a t e d t h e D G ’s s e r v i c e s , y o u a d v i s e d h e r t o e x t e n d t h e D G ’s p r o b a t i o n f o r a n o t h e r f o u r m o n t h s , C ) t o place him on special leave to allow space to find a suitable solution and D) during this two-week period to decide whether or not to pursue the misconduct charges against the DG, do you see that? 10 MR BALOYI: Ye s I s e e t h a t . A D V K AT E H O F M E Y R : C a n y o u c o n f i r m t h a t ’s t h e a d v i c e y o u g a v e a t the time? MR BALOYI: Ye s . A D V K AT E H O F M E Y R : N o w M s O l i p h a n t ’s e v i d e n c e i s t h a t s h e d i d n ’ t ever actually consider whether to pursue the misconduct charges, did you hear her give that testimony? MR BALOYI: I h e a r t t h a t a n d o f c o u r s e i t ’s o n t h e s a m e N N 5 p a g e 2 11 , a h a n d w r i t t e n n o t e o f a d i s c u s s i o n b e t w e e n t h e t w o o f u s . A D V K AT E H O F M E Y R : 20 W e l l h e l p u s w i t h t h a t i s 2 11 – C h a i r i f y o u ’ l l g o t o A n n e x u r e – s o r r y E x h i b i t N N 5 p a g e 2 11 i s t h a t a n o t e y o u t o o k ? MR BALOYI: N o , n o , n o t h i s w a s w r i t t e n b y o ff i c i a l s i n t h e d e p a r t m e n t reporting about a meeting we had and informing about the decision, it was my advice was exactly as indicated there and it was an advice a d e c i s i o n w a s t o b e t a k e n b y t h e M i n i s t e r. A D V K AT E H O F M E Y R : Ye s a n d – s o a r e y o u , w h e n y o u l o o k a t p a g e – Page 202 of 218 03 DECEMBER 2019 – DAY 195 t h e n o t e t h a t a p p e a r s a t 2 11 , i s t h a t a n o t e o f a m e e t i n g y o u h e l d w i t h Minister Oliphant? MR BALOYI: The contents reflected there, according to my recollection is the content of our discussion. A D V K AT E H O F M E Y R : Right because what is reflected there at the handwritten note 1.2 is that disciplinary action against Mr Manyi will not be pursued, do you see that? MR BALOYI: I see that. A D V K AT E H O F M E Y R : 10 Is that your recollection of what Ms Oliphant communicated to you? MR BALOYI: Ye s . A D V K AT E H O F M E Y R : B e c a u s e M s O l i p h a n t ’s e v i d e n c e t o d a y b e f o r e the Commission was that she didn’t make a decision on the charges and whether to pursue them because she’d never seen them, she didn’t know what they were? MR BALOYI: Well I heard that madam, I heard her say that but you’ll r e c a l l t h a t t h e c h a r g e s w e r e d r o p p e d a t t h e h e a r i n g , I ’ m s u r e t h e r e ’s o n e d o c u m e n t t h a t t a l k s t o t h a t , w h e n o n e o ff i c i a l s a i d , n o l e t s n o t continue with the hearing because in any case the probation period is 20 coming to an end. S o – b u t t h e n t h e a d v i c e I g o t , I t h i n k t h e r e ’s another document I think comes from DPSA that the advice that we got from the legal team, which I agreed with is that, that decision does not necessarily – does not necessarily say the charges were withdrawn, h e n c e m y l e t t e r. A D V K AT E H O F M E Y R : Indeed, so your understanding was that a Page 203 of 218 03 DECEMBER 2019 – DAY 195 decision still had to be taken whether to pursue those charges, is that right? MR BALOYI: I n t h e i n t e r e s t o f t h e M i n i s t r y. A D V K AT E H O F M E Y R : Indeed and your evidence is that it was communicated to you by Ms Oliphant that she was not going to pursue charges, is that correct? MR BALOYI: T h a t ’s c o r r e c t . A D V K AT E H O F M E Y R : If she hadn’t communicated that to you would you have been concerned about the transfer of Mr Many on the 2nd of 10 February when that question was still left open? MR BALOYI: The – in running a professional Public Service if you have allegations towards somebody you run the allegation to the end i t ’s n o t – a n a l l e g a t i o n i s n o t e n o u g h t o s u g g e s t t h a t a p e r s o n i s g u i l t y of what you suggest, you have to put a person through a process. A D V K AT E H O F M E Y R : MR BALOYI: Indeed. In this case you have a situation where, in this case somebody indicate both to the left and both – and to the right, firstly to s a y t h a t w e h a v e c a s e s o f m i s c o n d u c t p r o ff e r e d a g a i n s t y o u a n d t h e n some say then no but then we are taking a decision no longer to 20 p r o c e e d b e c a u s e t h e p r o b a t i o n p e r i o d h a s c o m e t o a n e n d , i t ’s r e a l l y problematic. A D V K AT E H O F M E Y R : Indeed if I can them move fairly swiftly to Mr M a n y i ’s t r a n s f e r. Yo u d e a l t w i t h i t f a i r l y b r i e f l y i n y o u r s t a t e m e n t I f u l l y u n d e r s t a n d y o u r d i ff i c u l t y w i t h r e m e m b e r i n g b a c k s o m a n y y e a r s a n d not having all that many documents available to you but Mr Baloyi what Page 204 of 218 03 DECEMBER 2019 – DAY 195 you have learnt today in the course of the questions is what is contained in Dr L e b e s e ’s a ff i d a v i t that there was no Cabinet memorandum in relation to either of these transfers, there was no decision taken by Cabinet on the 2nd of February and there was no discussion by Cabinet at that meeting. If those are the facts, Mr Baloyi would you accept that the transfer of Mr Manyi also did not follow regular process? MR BALOYI: The shock that I initiated I will express serious shock will apply to both cases because the procedure is the same, there is no 10 procedure for one person which does not apply to the other person. A D V K AT E H O F M E Y R : Indeed, and then Mr Baloyi I’d like your comment on the following. Do you accept that State Capture can occur within a society by removing people from positions who aren’t willing to do the work of the captures, is that something you’ve given consideration to? MR BALOYI: I t ’s a h y p o t h e t i c a l c a s e . A D V K AT E H O F M E Y R : It is and I’m not asking – I will ask in due course whether you think that occurred here, based on what you know t o d a y, b u t I ’ m s a y i n g h y p o t h e t i c a l l y w h a t i s y o u r u n d e r s t a n d i n g o f S t a t e 20 Capture? MR BALOYI: Well my understanding of State Capture is a situation where the organs of State – we’re talking of organs of State as to the r u l e o f t h e s e p a r a t i o n o f p o w e r s c o m i n g t o t h e J u d i c i a r y, t h e E x e c u t i v e , the Legislature and also the structures of Government. Don’t avoid taking certain decisions or take certain decisions clearly informed by Page 205 of 218 03 DECEMBER 2019 – DAY 195 t h e i n t e n t i o n t o [ i n d i s t i n c t ] , I m e a n t h a t ’s t h e g e n e r a l d e f i n i t i o n I c a n give. A D V K AT E H O F M E Y R : A n d i t ’s M r M a s e k o ’s e v i d e n c e b e f o r e t h i s Commission that he was removed from the position of GCIS because he was unwilling to direct certain spend within GCIS to the New Age n e w s p a p e r o f w h i c h t h e o w n e r s w e r e t h e G u p t a ’s a n d I t h i n k t h e e v i d e n c e t o d a y, a n d I ’ d l i k e y o u r c o m m e n t o n t h i s , h a s e s t a b l i s h e d t h a t if the facts deposed to by Mr Lebese are correct, both the transfer of Mr Maseko to DPSA and the transfer of Mr Manyi into GCIS were 10 i r r e g u l a r, d o y o u a c c e p t t h a t ? MR BALOYI: Well I can’t second-guess the decision of Executive A u t h o r i t i e s , n e v e r i n m y i n v o l v e m e n t w a s t h e i s s u e o f t h e G u p t a ’s o r any other thing raised with me when I interacted with all those. So I can’t, then say the move by Minister Chabane the move by the President was informed by anything. Mine was to assist the process as far as procedure is concerned and even it will be established that the d o c u m e n t s t h a t w e d o n ’ t h a v e n o w, e v e n i f i t w o u l d b e e s t a b l i s h e d t h a t they are not there, it will not be, for me because of anything that has to do with State Capture. 20 There has been never any person who mentioned my name as having been suspected of involvement in either benefitting or promoting this triple challenges of State Capture, corruption and fraud as a manifestation of corruption. So I was dealing w i t h t h i s a s a p r o c e s s o f t r a n s f e r r i n g o ff i c i a l s a t t h e i n s t a n c e o r a t t h e request of the Ministers I provided support to. A D V K AT E H O F M E Y R : Chair just one follow-up question if I may Page 206 of 218 03 DECEMBER 2019 – DAY 195 before our questions are concluded. CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : Mr Baloyi, do you accept, given what your understanding of State Capture is though, that irregular removals of persons and irregular transfers of persons may be a way in which it is facilitated? MR BALOYI: But firstly we need to prove that there has been irregular t r a n s f e r s , i t ’s n o t i n g e n e r a l t e r m s s o t h e i s s u e s – a n d w e h a v e t o prove, I mean or to establish beyond reasonable doubt that this is 10 irregular transfers they’re not errors in administration, so I think dealing with applying hypothetical questions on particular issues may not be very helpful. A D V K AT E H O F M E Y R : Mr Baloyi I wanted to give you an opportunity to make comment on that because we will make submissions in due c o u r s e a b o u t h o w t o p u t a l l o f t h e s e e v e n t s t o g e t h e r. F o r t h e r e c o r d n o p a r t o f t h e C o m m i s s i o n ’s p r o c e s s e s r e q u i r e s t h i n g s t o b e e s t a b l i s h e d beyond a reasonable a doubt. MR BALOYI: Come again? A D V K AT E H O F M E Y R : 20 We don’t have to establish things beyond a reasonable doubt in this Commission we need to probe and it is my comment to you for your comment that in the course of today we have established that the transfers of Mr Manyi and Mr Maseko were i r r e g u l a r, d o y o u h a v e a c o m m e n t o n t h a t ? MR BALOYI: I have requested that we will look at certain documents that may lead us to come to even inform a decision on a balance of Page 207 of 218 03 DECEMBER 2019 – DAY 195 probabilities because the issue is – I raised those things, I’ve expressed my surprise on what appeared to have been and I’ve submitted that we’ll look at these things and had I received this document earlier I would have definitely within my means tried to e s t a b l i s h w h a t ’s g o i n g o n . So to then say based on what we have c o n c l u s i v e l y w e c a n t h e n s a y w e h a v e s u ff i c i e n t g r o u n d s t o d e c i d e o n the balance of probabilities that these things are – well I can’t say that the Commission should not reach that stage but the Commission should u n d e r s t a n d t h a t i t ’s w r i t t e n t h a t s t a t e s I h a v e n ’ t r a i s e d a r e q u e s t . 10 A D V K AT E H O F M E Y R : CHAIRPERSON: T h a n k y o u , t h o s e a r e o u r q u e s t i o n s C h a i r. Those are your questions okay thank you. Mr Baloyi I d o n ’ t r e m e m b e r t h a t y o u g a v e a v e r s i o n w i t h r e g a r d t o M r M a s e k o ’s evidence that he called you after his transfer had been announced to Cabinet, he called you, I don’t know whether he said the same day or the following day but I think he said that was before he went to start or assume his duties at DPSA. Do you remember receiving a call from him where he was telling you that he was your new DG at all? MR BALOYI: Chair I don’t remember that and in my earlier evidence I i n d i c a t e d t h a t t o t h e e x t e n t o f m y r e c o l l e c t i o n I i n i t i a t e d t h e t r a n s f e r. 20 CHAIRPERSON: Do you – so you have no recollection of the call, you are not saying it did not happen but you say you have no recollection of receiving a call from him where he said that he told you that he was your new DG? MR BALOYI: I have no recollection of that Chairperson. CHAIRPERSON: Ye s a n d y o u w o u l d s a y i n t e r m s o f w h a t y o u r e c a l l Page 208 of 218 03 DECEMBER 2019 – DAY 195 i t ’s n o t i n l i n e w i t h y o u r r e c o l l e c t i o n o f h o w t h i n g s h a d h a p p e n e d , i s that what you would say? MR BALOYI: Ye s t h a t i s w h a t I s a i d , w h e n I i n d i c a t e d t h a t I i n i t i a t e d when I got the message from his principal I advised on what needed to be done. CHAIRPERSON: Ye s I j u s t c a n ’ t r e m e m b e r w h e t h e r h e s a i d h e m a d e the call on the afternoon – in the afternoon of the day of the Cabinet meeting because if he made the call after the 3rd you probably wouldn’t have been surprised because you had signed the Presidential minute by 10 that time therefore you would definitely know that he was – he had been transferred to your department, is that right? MR BALOYI: I t ’s r i g h t C h a i r p e r s o n b e c a u s e f o r m e i t ’s – p r i o r t o m e signing the Presidential minute would be a consideration by Cabinet of that move, something that I then said, I thought in the records of government we do have such information, something that is being reported to me, such information was not there. CHAIRPERSON: Ye s a n d h e ’s p a c k a g e t h a t h e g o t w h e n h e l e f t D P S A , my recollection is that there was some portion of that – of the package which might have been considered to be more than what he would 20 ordinarily be entitled to but that when he gave evidence in November the second time he appeared here, he seemed to suggest that there was a portion that was included in his package on the basis that it was being recognised that he – the manner in which he had been transferred from GCIS there was something not good about it. I’m putting it in my own words, or some unfairness so as a way of giving Page 209 of 218 03 DECEMBER 2019 – DAY 195 recognition to that there was some amount there. I may not be putting as accurately as he himself put it, but you recall anything along the lines that in that package he got, there was something that was meant to convey the message to him that we know that in the way in which you left JCIS might not have been the best way or might not have been fair and therefor we are adding something on your package that you taking home. MR BALOYI: Ye s , i n f a c t , w h e n h e e x i t e d D P S A , i t w a s i n i t i a t e d b y him. It was not initiated by the Executive Authorite. 10 CHAIRPERSON: MR BALOYI: Ye s . And in a situation like that, the exit management is done that this person is resigning. Now the pay out who is resigning and the pay out to a person who is contract is re-determined is not the same. S o , I h a v e i n d i c a t e d t h a t I , I t o o k t h e d e c i s i o n t o t h e n s a y, l o o k I d i d not initiate his departure. The fact that his departing was, it was six or seven months after coming into the DPSA, I took a decision to then say f o r h i m n o t t o d o w o r s e o ff , l e t u s c o n s i d e r t h a t w h a t e v e r m o t i v a t e s h i s departure could be part of the package of where he is coming from. And I agreed that we will work on the determination and that is what he 20 a c t u a l l y w e l c o m e t o s a y t h a t i s a f a i r w a y, a f a i r w a y o f , I m e a n e x i t m e c h a n i s m f r o m P u b l i c S e r v i c e . S o , i t i s i n t h e m a n n e r, t h e q u a n t u m i s informed by the manner of exit. Yo u r e s i g n , y o u g e t a l e s s p a y m e n t . Because it is your decision to do that. But if you have your contract pre-determined, it is not your decision to do that, then there is a formula that is actually used to take care of that. Page 210 of 218 So I took that 03 DECEMBER 2019 – DAY 195 d e c i s i o n t o t h e n s a y, r e a l l y i f w e r e m o v e t h e p a c k a g e o f w h e r e i t i s coming from, there is really nothing that explains why he had to leave. If he then says I had to leave like that, I will then say to him okay it is a resignation we will pay you at this level. So that is what explains the d i ff e r e n c e . I t i s i n t h e e x i t m e c h a n i s m C h a i r p e r s o n . CHAIRPERSON: But from what you are saying as I understand you, you are saying that there was something, but it was based on the fact that he was departing from DPSA, not from JCIS. MR BALOYI: 10 Hmmm. CHAIRPERSON: As a result of a redetermination of his contract. So first are you saying that the package that he got when he left DPSA had nothing to do with how he left JCIS, or was there that consideration as well? MR BALOYI: The, by inference to manage a fair exit on his part, I t o o k t h a t d e c i s i o n t o t h e n s a y, l o o k I h a v e n o t t a k e n a d e c i s i o n t o t h e n say you need to go, you are taking a decision that you are going. I think lwt us work on this, to then say it is part of the package of your disappointment, where you left before the end of the contract. So, we calculated it. And use a redetermination route, and not a resignation 20 route. Just to make it, to address his exit, Chairperson. CHAIRPERSON: So are you therefor saying that in part, how his package, how his package was formed was also influenced by how he had left JCIS in part. MR BALOYI: Ja chairperson I am saying the, my decision was that here is the Director General I am leaving, and he is leaving. Page 211 of 218 He is 03 DECEMBER 2019 – DAY 195 resigning. He is definitely going on a lessor package, and it happens, it would not have been like this, it would not have landed with me, it would not have landed with the DPSA if it was not manner of exit from h i s p r e v i o u s p o s i t i o n . S o I t o o k a d e c i s i o n t o t h e n s a y, l e t u s w o r k o n this, that we treat it not as a resignation but we will treat it as redetermination. CHAIRPERSON: S o t h a t d e c i s i o n o n y o u r p a r t w a s i n f l u e n c e d b y, i n part how he left JCIS. MR BALOYI: 10 Ye s C h a i r p e r s o n . CHAIRPERSON: MR BALOYI: That is right. Ye s C h a i r p e r s o n . CHAIRPERSON: And the fact that he was now leaving DPSA as well, but he had said he was resigning and you conceded a number of factors including how he had left JCIS, and said let us do this as a redetermination so that he would not get a lessor amount. Is that right? MR BALOYI: That is right, Chairperson. CHAIRPERSON: Ye s . N o w h e h a s s a i d , a s I u n d e r s t a n d h i s e v i d e n c e , he has also said after he came to DPSA, his relationship with you really 20 d i d n o t t a k e o ff . T h o s e a r e m y w o r d s . D i d n o t t a k e o ff , a n d h e s a y s h e w a s n o t e v e n i n t r o d u c e d t o s t a ff . I d o n o t k n o w w h e t h e r h e p u t s i t a s h e w a s n o t i n t r o d u c e d a t a l l , o r h e w a s n o t i n t r o d u c e d p r o p e r l y t o s t a ff , a n d s o m e s t a ff m e m b e r s w o u l d s a y t h a t t h e y h a v e j u s t h e a r d f r o m t h e media about his, that he was now the new Director General, and he s a y s w h a t d r o v e h i m t o d e c i d e t o l e a v e , t o t a l k t o y o u a n d s a y, y o u Page 212 of 218 03 DECEMBER 2019 – DAY 195 know he would like to leave, was that, he felt unwelcome. And he says you as Minister were having meetings with members of his team, and decisions were being made without him being part of those decisions a n d y e t h e w a s t h e a c c o u n t i n g o ff i c e r a n d h e s a y s h e t h i n k s t h i s w a s happening because of the manner in which he came to the Department namely as he puts because he was imposed on you. On the day of a Cabinet meeting which you did not attend and because of how he came to the Department you never warmed up to him. The relationship b e t w e e n t h e t w o o f y o u n e v e r w a r m e d u p a n d u l t i m a t e l y, h e d e c i d e d 10 look he should go. Now you put a version that says, actually you are the one who came with the idea that he should be transferred to your department. MR BALOYI: E x a c t l y. CHAIRPERSON: Now let me ask the question. What do you say about h i s c o n c e r n , o r h i s e v i d e n c e t h a t i n e ff e c t t h e r e l a t i o n s h i p b e t w e e n t h e t w o o f y o u r n e v e r t o o k o ff . What do you say about his evidence you would meet with members of his team and decisions would be taken in meetings where he was not included and yet he was the accounting o ff i c e r. D i d t h a t h a p p e n , d i d t h a t n o t h a p p e n ? 20 MR BALOYI: Mr Chairperson I would not have initiated that he be be transferred to DPSA if I did not like him. I would not have talked with him and then say if he is worried in his hesitation, if he is worried that m a y b e a t s o m e s t a g e h e m a y h a v e t o l e a v e o r t h e c o n t r a c t m a y, I m e a n the period maybe short, I would not have said Director General I am even prepared to extent the contract. I would not have said that Page 213 of 218 03 DECEMBER 2019 – DAY 195 Chairperson. CHAIRPERSON: MR BALOYI: Ye s a t . . . [ i n t e r v e n e s ] . CHAIRPERSON: MR BALOYI: Because he says you never said any of those things. At least prior to him coming to DPSA. I agree Chairperson. I have seen that, and that surprised me. He is saying that, and I am saying this. CHAIRPERSON: I interrupted you. Please feel free to continue to make your point. MR BALOYI: 10 Ye s I w a s s a y i n g w e d i d n o t h a v e d o n e t h o s e t h i n g s , I would not have even then said when he was insisting to leave, I would n o t , b e c a u s e i n m y d i s c r e t i o n C h a i r, I i n d i c a t e d i n t h e b e g i n n i n g t h a t when I was talking to him, he indicated that he might not be long in the public service. And then when he decided like that, it was just, I would o f o w n d e c i s i o n t o t h e n s a y b u t f i n e , h e c a n n o t l e a v e w o r s e o ff i n a situation like that. I took that decision. There was no stage Chairperson where I sidelined him in the Department. I do not know of such. And to my re-collection I never like deliberately took a decision. I treated him like any other Director General. By the time I was w o r k i n g w i t h h i m , t h e r e w e r e o t h e r D i r e c t o r G e n e r a l ’s . 20 I think four to five of the other sections of the DPSA. And my treatment to all of them were the same. So, I never did that. CHAIRPERSON: Are you saying you never had meetings with members of his team where important decisions were taken without him, for which he would be required to account as an accounting o ff i c e r. Page 214 of 218 03 DECEMBER 2019 – DAY 195 MR BALOYI: I cannot remember that, and I cannot imagine that such could happen. I am not that bad a person who can do that Chairperson. I would not have done that. So that is why I was so surprised when I saw what he indicated in the submission. So honestly speaking Chairperson, the relation between me, and him were a normal relationship. CHAIRPERSON: Well let me make this point. My understanding of his evidence is not that the says you had anything personal against him. That is not my understanding of his evidence. My understanding of his 10 evidence is that he says you may have done things the way you did them, and your relationship between the two of you might not have t a k e n o ff s i m p l y b e c a u s e o f h o w h e w a s i m p o s e d o n y o u . So we go back to that version about whether he came to DPSA because you wanted him to come to DPSA, you came with the idea that he must be transferred to your department, or whether he was imposed in circumstances where a decision was taken hastily that your department is the one to which he should go, because the ENCA had got wind of his move from JCIS. MR BALOYI: 20 C h a i r, I i n i t i a t e d M r M a s e k o ’s t r a n s f e r t o t h e d e p a r t m e n t . He was imposed on me. ...[Indistinct] would be imposing, would be a person which I talk to, and that is when I agreed on the approach to do all those things. He was not imposed on me. So, and I initiated that, those things would happen. So Chair I am stating that the Commission should consider that my version, as far as I am concerned is my version reflect what happened at the time. I have indicated that in the crux of Page 215 of 218 03 DECEMBER 2019 – DAY 195 your past, you might find that when I objected to the use of a strong w o r d o f b e i n g c o n f u s e d a n d s t u ff l i k e t h a t , b u t w i t h y o u r c l a r i f i c a t i o n t h a t i n a p o s i t i v e l i g h t t h a t m a y m e a n t h a t . I t a c t u a l l y a ff e c t b o t h o f u s . And it might polluting our judgment. Including his. That is why he is saying what he is saying and I am saying what I am saying. Think at it as way of, a proving what I am saying, that will be something that will c o m e o u t c l e a r. T h a t i s w h y e v e n i n t h e l e t t e r o f M i n i s t e r C h a b a n e , h e would not have said, I concur if somebody has not traced it. So, that is the whole situation. 10 CHAIRPERSON: Ye s . J u s t t h e l a s t q u e s t i o n . S o o n y o u r v e r s i o n w h a t is it that made Mr Maseko to stay so short a period at DPSA if otherwise the relationship between the two of you was normal, was fine. Because he was there for a very short time. I think from February to July of the same year if I am not mistaken. Am I right about the short period? MR BALOYI: Yo u a r e r i g h t C h a i r p e r s o n . CHAIRPERSON: MR BALOYI: Hmmm. And I have indicated in my statement that that was an issue and I have sketched out ...[intervenes]. 20 CHAIRPERSON: MR BALOYI: A possible, possibilities or scenarios about that. CHAIRPERSON: MR BALOYI: Ye s . Ye s . I n m y, i n m y s t a t e m e n t . CHAIRPERSON: MR BALOYI: Ye s . Ye s , y e s . Tr y i n g t o a r t i c u l a t e m y s e l f o n , o n t h e s u r p r i s e o f h i s Page 216 of 218 03 DECEMBER 2019 – DAY 195 early exit. CHAIRPERSON: MR BALOYI: Hmm. Included in what I said was that when I discussed with him about that he, about the transfer to the department, he hinted on his decision to not stay long. CHAIRPERSON: MR BALOYI: Ye s . So when it came out that he then says he is leaving ...[intervenes]. CHAIRPERSON: 10 MR BALOYI: O k a y. A n d I c o u l d n o t s t a n d o n h i s w a y . . . [ i n t e r v e n e s ] . CHAIRPERSON: MR BALOYI: Maybe it is part of what he said. Ye s . And, and if was to be proven it would actually be established that I said, if that if he is not interested in being a Director G e n e r a l , l i n e f u n c t i o n t h i n g , w e c o u l d e v e n w o r k t o g e t h e r. Yo u w o u l d b e a n a d v i s o r. T h i s a r e C h a i r p e r s o n t h a t I h a v e s a i d . A n d I c o u l d n o t do all this things, if there was anything. But the issue is, he was not deposed on DPSA. I initiated it. CHAIRPERSON: Hmmm. Thank you. Anything arising. A D V K AT E H O F M E Y R : N o C h a i r. 20 CHAIRPERSON: b e e n a l o n g d a y. Thank you. Mr Baloyi thank you very much. But we have come to the end. it has If we do need you come back, we will ask you to come back. I would say that in so far as you believe some further investigation may be required to try and see whether there further documents that may be obtained from the Department of Public Service and Administration or from the Cabinet Page 217 of 218 03 DECEMBER 2019 – DAY 195 S e c r e t a r y, p l e a s e f e e l f r e e w i t h y o u r l e g a l a d v i s o r s t o d o t h e n e c e s s a r y. T h e l e g a l t e a m w i l l r e f l e c t o n y o u r, o n y o u r r e q u e s t t h a t t h e c o m m i s s i o n s h o u l d c o n s i d e r d o i n g s o m e t h i n g f u r t h e r. T h e y w i l l r e f l e c t a n d t h e y w i l l let me know after they have reflected. But from your side, do not wait for the Commission if you believe if there is something that you can do to try and get the information, so that should the commission that what it has done is more than enough. If you find something, certainly come and share it with the Commission. But they will reflect, and I think they probably would need give you an indication of where they stand on the 10 issue. Is that all right? MR BALOYI: Thank is fine thank you. Thank you very much. CHAIRPERSON: CHAIRPERSON: T h a n k y o u v e r y m u c h y o u a r e e x c u s e d . M s H o f m e y r. You have been standing there. A D V K AT E H O F M E Y R : CHAIRPERSON: No that is fine, I am getting used to it. Thank you very much and we are going to adjourn. I think tomorrow we are starting at nine o’ clock with the evidence of Mr C h a b i . O k a y w e a r e g o i n g t o a d j o u r n f o r t h e d a y. W e a d j o u r n . I N Q U I RY A D J O U R N S T O 4 D E C E M B E R 2 0 1 9 Page 218 of 218