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 0 7 F E B R U A RY 2 0 2 0 D AY 2 0 9 FINAL 20 07 FEBRUARY 2020 – DAY 209 HEARING RESUMES C H A I R P E R S O N : G o o d m o r n i n g M s H o f m e y r, g o o d m o r n i n g e v e r y b o d y. A D V K AT E H O F M E Y R : G o o d m o r n i n g C h a i r. CHAIRPERSON: Are we ready? A D V K AT E H O F M E Y R : W e a r e i n d e e d C h a i r s u b j e c t t o o n e a s p e c t t h a t I would like to raise with you. Ms Memela is here to give evidence t o d a y. S h e h a s r a i s e d w i t h m e h o w e v e r a f e w m o m e n t s a g o w h e n s h e arrived that she would like an opportunity to consider the bundles of d o c u m e n t s t h a t h a v e b e e n p r e p a r e d f o r h e r e v i d e n c e t o d a y. T h e L e g a l 10 Te a m o f t h e C o m m i s s i o n c e r t a i n l y h a s n o d i ff i c u l t y w i t h t h a t . A s I h a v e explained to Ms Memela the bundles comprise initially a statement that she submitted, I think it was last week, after many months of e n g a g e m e n t w i t h t h e C o m m i s s i o n ’s i n v e s t i g a t o r s a n d L e g a l Te a m a n d a position that she took in January that she did not want to provide an a ff i d a v i t n o r d i d s h e w a n t t h e a s s i s t a n c e o f t h e C o m m i s s i o n i n preparing one. So her bundle comprises the statement that she then d i d s u b m i t w h i c h s h e m a k e s c l e a r i s n o t a n a ff i d a v i t i n t h e s t a t e m e n t a s well numerous documents that came through with it. We were not certain how to arrange them because they were not identified a 20 annexures to the statement but we have put them in as best an order as we can and then beyond that in the bundle as is usually the case in these proceedings there is an additional document section which comprises documents that have been discovered in the course of the investigation and which Ms Memela will be referred to in the course of h e r e v i d e n c e t o d a y. S o i t w o u l d b e o u r s u b m i s s i o n t h a t w e s h o u l d t a k e Page 2 of 188 07 FEBRUARY 2020 – DAY 209 an adjournment just to facilitate Ms Memela familiarising herself with the bundle. I d i d d i s c u s s w i t h h e r e a r l i e r a h a l f a n h o u r t o a n h o u r ’s adjournment. She seemed to indicate that that would be adequate but possibly she would like to make some representations in relation to that. CHAIRPERSON: Ms Memela good morning. M S M E M E L A : G o o d m o r n i n g C h a i r. CHAIRPERSON: Yo u c o n f i r m t h a t y o u w o u l d l i k e t o h a v e s o m e opportunity to go through the bundle? 10 MS MEMELA: Ye s C h a i r g i v e n t h e f a c t t h a t t h e r e a r e a d d i t i o n a l documentation that I might not have seen. C H A I R P E R S O N : O k a y. M S M E M E L A : Ye s . CHAIRPERSON: I think just bring the microphone closer to you I cannot hear you very well. M S M E M E L A : Ye s C h a i r. C H A I R P E R S O N : Ye s y o u s a i d s o m e t h i n g I j u s t w a n t y o u t o r e p e a t t h a t . M S M E M E L A : Ye s I h a v e r e q u e s t e d l i k e m a y b e t h i r t y m i n u t e s o f y o u r t i m e t o – f o r m e t o g o t h r o u g h t h e f i l e s t h a t I h a v e j u s t r e c e i v e d n o w. 20 And then given the fact that like there are additional documentation that maybe I have not seen. So I just want to go through that and then I will be – I think I will ready and then I will have three requests before we start. C H A I R P E R S O N : Ye s . MS MEMELA: After – ja I do not know if I can make the requests now Page 3 of 188 07 FEBRUARY 2020 – DAY 209 or afterwards – after I have sworn in. CHAIRPERSON: Well let us deal with the other issue first. Would thirty minutes be adequate for you to look at the bundle? MS MEMELA: I believe so because like I mean most of the information here is coming from me. C H A I R P E R S O N : O k a y. MS MEMELA: But I mean I just wanted to check the additional information. C H A I R P E R S O N : Ye s . 10 MS MEMELA: So that I familiarise myself with it. CHAIRPERSON: Okay alright. Maybe you should mention now your other requests and then I can see whether we should deal with them now or we should deal with them later when you – after the adjournment. MS MEMELA: Oh the requests? CHAIRPERSON: Ja. MS MEMELA: Okay the first request Chair is that since I had mentioned on my e-mail to the Commission that my lawyer is not available. 20 She will be in Cape To w n until Monday so I am u n r e p r e s e n t e d r i g h t n o w. S o I w a s g o i n g t o r e q u e s t t h e C h a i r p e r s o n t o protect my rights, guide me and – so that like maybe I do not end up like I am self – implicating myself without even realising. And then the second one will be – I will ask for your guidance like in answering certain questions that like maybe people have not been given notice which is the rule of the Commission. Where people have not been Page 4 of 188 07 FEBRUARY 2020 – DAY 209 given the Notice 3.3 that I am going to mention them. So like I mean there I will need your guidance as well if like I am obliged to answer to those questions. CHAIRPERSON: H’mm. Well the – was that one – you said you had three requests, is that right? MS MEMELA: Ja I think I have ...(intervenes). CHAIRPERSON: What is the other one? MS MEMELA: Ja no I think I have mixed the two. Like I mean where it looks like the question seeks to ...(intervenes). 10 CHAIRPERSON: Protection and ...(intervenes). MS MEMELA: Ja like I may end up like incriminating myself. CHAIRPERSON: And about 3.3 Notices. MS MEMELA: Ja. C H A I R P E R S O N : W e l l t h e L e g a l Te a m w o u l d h a v e s e e n y o u r s t a t e m e n t . M S M E M E L A : Ye s . CHAIRPERSON: And if the names that you are talking about are in your statement they will have had a look at that and I think during the adjournment if need be they can apply their minds further to that. M S M E M E L A : O k a y. 20 CHAIRPERSON: To t h e q u e s t i o n w h e t h e r a n y b o d y s h o u l d h a v e b e e n g i v e n a R u l e 3 . 3 N o t i c e o r n o t . S e c o n d l y t h e r e m i g h t b e d i ff i c u l t y – I mean I would give you like anybody whatever “protection” that I can give. But I would want you to complain later that you answered questions which maybe you should not have answered because you would incriminate yourself. Page 5 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: H’mm. CHAIRPERSON: And I did not protect you. So I am concerned about t h a t . B u t f r o m w h a t I h a v e s e e n y o u a r e a l a w y e r, i s t h a t r i g h t ? M S M E M E L A : Ye s C h a i r. CHAIRPERSON: But I do know that even lawyers do need lawyers. M S M E M E L A : E x a c t l y. CHAIRPERSON: For advice. M S M E M E L A : Ye s . CHAIRPERSON: So I think it is something that you may wish to reflect 10 on during the adjournment as well. M S M E M E L A : O k a y. CHAIRPERSON: A n d t h e L e g a l Te a m M s H o f m e y r w o u l d b e h a p p y t o talk to you insofar as you may wish to talk to her to ascertain their position. MS MEMELA: Alright. CHAIRPERSON: We do the best we can to make sure that everyone w h o a p p e a r s h e r e i s t r e a t e d f a i r l y. B u t w h e r e i t n e e d s t o – w e n e e d t o be firm we will be firm. But I just do not want you or your lawyer later on to complain that the Chair should have said, do not answer that 20 because all I know is what is here. MS MEMELA: Ja. CHAIRPERSON: I do not know anything else whereas your lawyer w o u l d k n o w w h a t e v e r e l s e y o u m a y h a v e t o l d y o u r l a w y e r. So Ms Hofmeyr do you want to say anything about the requests? A D V K AT E H O F M E Y R : C h a i r j u s t i n r e l a t i o n t o – i f I c a n p i c k u p t h e Page 6 of 188 07 FEBRUARY 2020 – DAY 209 second one first which I think is the one you dealt with first. The question about Rule 3.3 Notices. C H A I R P E R S O N : Ye s . MS MEMELA: H’mm. A D V K AT E H O F M E Y R : Chair Ms Memela was quite clear in her statement provided to the Commission right at the end that she was not i m p l i c a t i n g a n y o n e . T h a t h a s b e e n M s M e m e l a ’s c o n s i s t e n t p o s i t i o n i n h e r i n t e r a c t i o n s w i t h t h e C o m m i s s i o n . A n d i t w a s o ff t h e b a c k o f t h a t t h a t w e c o n s i d e r e d t h e s t a t e m e n t i n i t s t o t a l i t y. 10 She does refer to people of course as she must tell the story but given her clear indication that she was not implicating anyone no Rule 3.3 Notices have been sent out pursuant to receiving her statement. It is another matter as we always encounter in the course of evidence. 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 w e c o u l d – m y p r o p o s a l i s t h a t w e a d d r e s s that if and when it arises. C H A I R P E R S O N : J a . O k a y. O k a y. A D V K AT E H O F M E Y R : In relation to the second aspect insofar as legal representation is concerned until yesterday I think we understood 20 t h a t w e w o u l d r e c e i v e a n a p p l i c a t i o n f r o m M s M e m e l a ’s l a w y e r f o r h e r n o t t o a p p e a r. S h e h a s c l e a r l y b e e n e n g a g e d w i t h l a w y e r s i n t h e l e a d up today insofar as she indicated to the Commission on Wednesday that we would be receiving that. So it would be our submission that we continue with the evidence. Ms Memela is a lawyer and admitted Advocate and if at a point a question is asked and Ms Memela believes Page 7 of 188 07 FEBRUARY 2020 – DAY 209 that her answer would self-incriminate her in any criminal conduct she should alert us to that and we can take it from there. That would be our proposal. CHAIRPERSON: What do you think of that? make yourself available. Yo u g i v e e v i d e n c e . Namely you continue to Yo u a n s w e r q u e s t i o n s . But if there are questions where you feel that your answer might incriminate – you might incriminate yourself then you indicate that you have – you believe that giving – answering the question would result in that. And then we can take it from there. 10 M S M E M E L A : Ye s C h a i r I c o n f i r m t h a t I a m r e a d y t o s t a r t l i k e p r o v i d e d that there are no like ...(intervenes). C H A I R P E R S O N : Ye s . MS MEMELA: I am comfortable answering certain questions. C H A I R P E R S O N : Ye s , y e s . MS MEMELA: And I just want to touch on the statement part where I a c t u a l l y i n s i s t e d t h a t l i k e i t w i l l n o t b e a n a ff i d a v i t . C H A I R P E R S O N : Ye s . MS MEMELA: It was because during like I mean the two meetings that I h a d w i t h t h e t e a m – t h e C o m m i s s i o n Te a m t h e y d i d n o t h a v e s p e c i f i c 20 questions for me. They actually like relied on what I was putting on the table and I said – I even said like in one of the e-mails like I will not be d o i n g t h e i r j o b . Yo u u n d e r s t a n d l i k e I m e a n m y u n d e r s t a n d i n g i s t h a t like if they are maybe see some sort of like I mean possible wrongdoing from other people they should like I mean try and prove that and then like maybe I might collaborate that. But like now I was called to Page 8 of 188 07 FEBRUARY 2020 – DAY 209 discuss like in general like the items that are going to be discussed t o d a y. A n d I d i d a s k f o r t h e s p e c i f i c w r i t t e n q u e s t i o n s s o t h a t I k n o w that I am addressing the questions coming from them. So like that is the reason why I actually insisted on the statement. Because like it was something that was coming from me. C H A I R P E R S O N : Ye s , y e s . MS MEMELA: Explaining the items because they just like listed the items that they wanted to talk to me about and in the meeting like I m e a n t h e y a l l o w e d m e t o a c t u a l l y s t a r t g i v e a b a c k g r o u n d a n d s t u ff a n d 10 then jump in a ask certain questions. So I felt it is fair to me to a c t u a l l y n o t w r i t e a n a ff i d a v i t b e c a u s e l i k e I m e a n i t m a y f e e l a s i f I a m here to implicate somebody and as it is known right now that people are k e e p o n s i n g i n g p e o p l e ’s n a m e s l i k e s o m e t i m e s u n i n t e n t i o n a l l y s o a n d s t u ff l i k e – s o I d i d n o t w a n t t o b e s e e n a s I a m p o i n t i n g f i n g e r s a t people for something that I do not know what they have done. Like in terms of like the wrongdoing. CHAIRPERSON: B u t i s y o u r p o s i t i o n a l s o l i k e M s H o f m e y r ’s p o s i t i o n that she understands that your position is that in your statement that y o u s u p p l i e d y o u a r e n o t i m p l i c a t i n g a n y b o d y. 20 M S M E M E L A : Ye s . C H A I R P E R S O N : Yo u m a y b e m e n t i o n i n g s o m e n a m e . MS MEMELA: I mention – yes. CHAIRPERSON: But you are not – you do not intend to implicate a n y b o d y. MS MEMELA: No but I – that statement Sir it sounds like I mean I do Page 9 of 188 07 FEBRUARY 2020 – DAY 209 not intend to tell the truth. I do intend to state the facts. C H A I R P E R S O N : Ye s , y e s . MS MEMELA: Like to a certain extent. C H A I R P E R S O N : Ye s . MS MEMELA: That like they do not – like I mean I do not seem as if I am process – like I mean I am pointing fingers at people. CHAIRPERSON: Ja. MS MEMELA: I want – like I came here because like I want to take accountability for any other decision ...(intervenes). 10 C H A I R P E R S O N : Ye s . MS MEMELA: That was taken by myself. C H A I R P E R S O N : Ye s . MS MEMELA: And like also to justify where there are certain ...(intervenes). C H A I R P E R S O N : Ye s . MS MEMELA: Decisions that like I mean the Commission thinks ...(intervenes). C H A I R P E R S O N : Ye s . MS MEMELA: Were not in line with the processes and whatever ja. 20 C H A I R P E R S O N : Ye s . Ye s . O k a y n o t h a t i s f i n e . W e l l I w i l l n o t s p e a k for the team that consulted you but in the course of investigation sometimes you do want somebody who you believe may have i n f o r m a t i o n t h a t i s r e l e v a n t t o s a y, t e l l u s w h a t y o u k n o w a b o u t t h i s without any other specific questions and after you have been told then sometimes you might have specific questions. So sometimes you just Page 10 of 188 07 FEBRUARY 2020 – DAY 209 w a n t t o t a l k t o d i ff e r e n t p e o p l e w h o s e e m – w h o m i g h t h a v e i n f o r m a t i o n that is relevant and arising out of that discussion. Sometimes you then have specific questions. MS MEMELA: Ja. CHAIRPERSON: So I thought I would just clarify that for them. M S M E M E L A : O k a y. C H A I R P E R S O N : O k a y. O k a y w e a r e a t a b o u t 1 0 : 1 w e c o u l d r e s u m e a t 10:40 if we want to make it more or less thirty minutes. A D V K AT E H O F M E Y R : I t h i n k t h a t w o u l d b e 1 0 : 5 0 C h a i r. 10 C H A I R P E R S O N : J a 1 0 t o I a m s o r r y. A D V K AT E H O F M E Y R : N o t a t a l l . CHAIRPERSON: 10 to. A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: 10 to – 10;:50. Shall we do it that way? 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 : O k a y. W e w i l l t h e n a d j o u r n M s M e m e l a a n d t h e n w e will resume at 10:50. We adjourn. A D V K AT E H O F M E Y R : T h a n k y o u . REGISTRAR: All rise. 20 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: Are we ready? A D V K AT E H O F M E Y R : W e a r e i n d e e d C h a i r. CHAIRPERSON: Ms Memela, did the 30 minutes was it enough? M S M E M E L A : I t w a s e n o u g h C h a i r. Page 11 of 188 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: O k a y. Alright. Thank you. O k a y. Let us proceed t h e n . I t h i n k 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 MEMELA: I am Nontsasa Memela. REGISTRAR: Do you have any objection to taking the prescribed oath? MS MEMELA: No. REGISTRAR: Do you consider the oath to be binding on your conscience? M S M E M E L A : Ye s . 10 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. MS MEMELA: So help me God. CHAIRPERSON: Thank you. M s H o f m e y r, do you know what a r r a n g e m e n t s t h e t r a n s c r i b e r s m i g h t b e h a v i n g w i t h t h e L e g a l Te a m t o ensure that if there are words that – for which they need spelling. That they get to be told afterwards whether they get the statement to see the – t h o s e w o r d s o r n a m e s o r w h e t h e r. I s t h e r e a n y e x i s t i n g a r r a n g e m e n t , because otherwise I think we do not always give the spelling 20 ...(intervenes)? A D V K AT E H O F M E Y R : H ’ m m . CHAIRPERSON: And do you know if there is any existing arrangement? A D V K AT E H O F M E Y R : C h a i r, I a m n o t a w a r e o f a n a r r a n g e m e n t . C H A I R P E R S O N : Ye s . Page 12 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : T h a t d o e s m e a n o n e d o e s n o t e x i s 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 : I a m j u s t n o t p r i v y t o i t . W h a t I d o k n o w t h o u g h is that shortly after the evidence is completed as possible the statement is uploaded onto the website which is of course available to everyone including transcribers, but I can ask at some inquiries be made just as to what the nature of that arrangement is, because it might then obviate the need for us repeatedly to give spellings ...(intervenes). 10 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 r i t m i g h t i n d i c a t e t h a t w e n e e d t o g i v e s o m e more than we have been. C H A I R P E R S O N : Ye s . Ye s . Ye s , b e c a u s e I w o u l d i m a g i n e t h a t m a y b e i f t h e y w e r e t o h a v e a c c e s s t o a w i t n e s s s t a t e m e n t s o o n a f t e r. A D V K AT E H O F M E Y R : H ’ m m . CHAIRPERSON: They could pick up. A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: The spelling ...(intervenes). A D V K AT E H O F M E Y R : I n d e e d . 20 CHAIRPERSON: For certain names. Otherwise we would need to give spelling ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . CHAIRPERSON: Each time. 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 : W h i c h h a s n o t b e e n e a s y. Page 13 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : N o . N o a n d o n e d o e s f o r g e t a n d I a m c e r t a i n l y ...(intervenes). CHAIRPERSON: Because ...(intervenes). A D V K AT E H O F M E Y R : I n c l u d i n g m y s e l f i n t h a t . CHAIRPERSON: Because we are focusing on the substance. 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 . CHAIRPERSON: So, I guess they are hearing what I am saying ...(intervenes). A D V K AT E H O F M E Y R : Ye s . 10 CHAIRPERSON: And Reverend Stemela is hearing what I am saying. Something needs to be done. In the meantime maybe we will try and do that until we are told that there is an arrangement. A D V K AT E H O F M E Y R : Ye s . CHAIRPERSON: We will try and give spelling for names that we think they might – that are not English. We think they might have a problem spelling, but some like certain surnames might be English, but might be d i ff i c u l t t o s p e l l . 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 – o k a y. A l r i g h t . L e t u s t r y t h a t . 20 A D V K AT E H O F M E Y R : T h a n k y o u . CHAIRPERSON: Maybe the – we will start with spelling her name. A D V K AT E H O F M E Y R : H ’ m m . C H A I R P E R S O N : M s M e m e l a ’s n a m e . A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: Do you want to do that? Page 14 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : L e t m e d o t h a t j u s t i n t h e c o u r s e o f r e q u e s t i n g that we enter into the record ...(intervenes). 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 : bundles containing As Exhibit DD25A and 25B. M s N o n t s a s a M e m e l a ’s Those are the statement and N-o-n-t-s-a-s-a and the surname is Memela, M-e-m-e-l-a. that is The first bundle, A, comprises her statement and additional documents she supplied to the Commission. As well as in the remainder of Bundle A and into Bundle B certain additional documents that the Commissioned 10 has assembled. CHAIRPERSON: M s M e m e l a ’s s t a t e m e n t a n d a n n e x u r e s i n t h e f i l e which contains the statement will be marked – admitted and marked DD25A. That is Exhibit DD25A and the annexures that are in the other file that will be Exhibit DD25B. 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 n a d d i t i o n t o t h o s e t w o f i l e s we have made reference in the course of the week to the fact that the – Ms Memela Ms Sambo has and put in two Mr Human. applications We have to cross-examine prepared cross-examination files that are usually handed up. 20 those in both the So if I may beg leave ...(intervenes). 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 : To h a n d t h o s e u p t o y o u . CHAIRPERSON: Huh-uh. A D V K AT E H O F M E Y R : M s M e m e l a h a s b e e n g i v e n h e r c o p y a l r e a d y. C H A I R P E R S O N : O k a y. Page 15 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Thank you. Ms Memela, if we can just again with some housekeeping aspects. If you turn to Exhibit DD25A at page 1. What is that document? MS MEMELA: (Indistinct). A D V K AT E H O F M E Y R : J u s t p a g e 1 . I f y o u s t a r t a t p a g e 1 . C a n y o u identify that document for us? MS MEMELA: (Indistinct). CHAIRPERSON: Page – please put on your mic. When she refers to page numbers she will be referring to the red numbers on the top right10 hand corner of each page ...(intervenes). M S M E M E L A : O k a y. CHAIRPERSON: But she will not mention zero-zero. MS MEMELA: Alright. CHAIRPERSON: She will say page 1 ...(intervenes). M S M E M E L A : O k a y. C H A I R P E R S O N : A n d t w o a n d s o o n . O k a y. M S M E M E L A : A l r i g h t . O k a y. S o t h i s i s m y s t a t e m e n t t h a t I m a d e a f t e r t h e v o l u n t a r y m e e t i n g t h a t I h a d w i t h t h e I n v e s t i g a t i n g Te a m a n d t h e L e g a l Te a m o f t h e C o m m i s s i o n . 20 A D V K AT E H O F M E Y R : T h a n k y o u . MS MEMELA: So I reduced the discussion that we had to writing. A D V K AT E H O F M E Y R : And if you go to page 26 in the same file. Exhibit DD25A. Is that your signature on the page? Apologies. Did I say 26? MS MEMELA: 26 will be ...(intervenes). Page 16 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : P a g e 2 6 . 2 6 . MS MEMELA: Oh. Page 26? A D V K AT E H O F M E Y R : Ye s . M S M E M E L A : O k a y. T h i s i s m y s i g n a t u r e . Ye s . I t i s m y s i g n a t u r e . A D V K AT E H O F M E Y R : Thank you and do you confirm as true and correct the contents of the statement? MS MEMELA: I confirm. A D V K AT E H O F M E Y R : Then in relation to your statements accompanying your applications to cross-examine. I would like to do a 10 similar thing. If you can first take up the application to cross-examine Ms Sambo. That is indexed as SEQ04/2020. Do you have that available to you? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : A n d i f y o u t u r n t o p a g e 3 i n t h a t f i l e . C a n y o u identify that document for us please? MS MEMELA: That is my statement. A D V K AT E H O F M E Y R : And if you go over to page 10. Can you identify the signature on that page? MS MEMELA: That is my signature. 20 A D V K AT E H O F M E Y R : A n d d o y o u t o d a y c o n f i r m u n d e r o a t h t h a t t h e contents are true and correct? M S M E M E L A : Ye s . I c o n f i r m . A D V K AT E H O F M E Y R : T h a n k y o u a n d l e t u s d o t h e s a m e i f w e m a y f o r the application to cross-examine Mr Human. That is indexed as 05/2020 and again if you will turn to page 3 of that file and identify the Page 17 of 188 07 FEBRUARY 2020 – DAY 209 document. M S M E M E L A : Ye s . I t i s m y s t a t e m e n t . A D V K AT E H O F M E Y R : A n d i f y o u g o t o p a g e 8 . C a n y o u i d e n t i f y t h e signature on that page please? M S M E M E L A : Ye s . I t i s m y s i g n a t u r e . A D V K AT E H O F M E Y R : And finally do you confirm under oath today that the contents of that statement are true and correct? MS MEMELA: I do. A D V K AT E H O F M E Y R : T h a n k y o u . 10 CHAIRPERSON: I see Ms Memela that you have already dealt with the r e a s o n w h y y o u r s t a t e m e n t i s n o t a n a ff i d a v i t . We had occasion yesterday I think or the day before to discuss that issue of statements that are not under oath, but your applications for leave to crossexamine. I see they are also supported by statements that are not u n d e r o a t h o r t h a t a r e n o t a ff i r m e d d e c l a r a t i o n s . P l e a s e t a k e s t e p s t o m a k e s u r e t h a t t h o s e a r e – a t l e a s t t h o s e a r e a ff i d a v i t s . So later on you could do that to make sure they comply with the Rules. M S M E M E L A : W i t h t h e R u l e s . O k a y. 20 C H A I R P E R S O N : J a . J a . S o y o u c o u l d d o a n a ff i d a v i t a n d c o n f i r m t h a t that statement – those statements are true and correct. your applications comply with the Rules. M S M E M E L A : I a m p r e p a r e d t o d o t h a t C h a i r. C H A I R P E R S O N : O k a y. A l r i g h t . MS MEMELA: Thank you. Page 18 of 188 Just so that 07 FEBRUARY 2020 – DAY 209 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 C h a i r. Ms Memela, you are a l a w y e r. I s t h a t c o r r e c t ? M S M E M E L A : Ye s . I a m . A D V K AT E H O F M E Y R : A n d w h e n d i d y o u o b t a i n y o u r l a w d e g r e e ? MS MEMELA: 2006. A D V K AT E H O F M E Y R : A n d y o u h a v e a l s o i n d i c a t e d i n y o u r s t a t e m e n t , I am picking it up now at page 2 of Bundle DD25A. MS MEMELA: H’mm. 10 A D V K AT E H O F M E Y R : T h a t y o u d i d a p o s t g r a d u a t e d i p l o m a a f t e r y o u r law degree. What was that in? MS MEMELA: It is a Post Graduate Diploma in Drafting and Interpretation of Contracts. A D V K AT E H O F M E Y R : A n d w h e n d i d y o u c o m p l e t e t h a t ? MS MEMELA: 2010. CHAIRPERSON: And for the sake of completeness. Yo u c a n j u s t confirm that your law degree is an LLB Degree? M S M E M E L A : Ye s C h a i r. C H A I R P E R S O N : O k a y. 20 A D V K AT E H O F M E Y R : Thank you and you are also an advocate. that correct? M S M E M E L A : Ye s . CHAIRPERSON: A D V K AT E H O F M E Y R : A n d w h e n w e r e y o u a d m i t t e d a s a n a d v o c a t e ? MS MEMELA: In 2012. Page 19 of 188 Is 07 FEBRUARY 2020 – DAY 209 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 t o y o u r p o s i t i o n a t S A AT, b e c a u s e I u n d e r s t a n d f r o m y o u r s t a t e m e n t w h i c h h a s now been confirmed under oath. If we go to paragraph 6 on page 2. That you were in an acting position as HOD of Procurement. Is that correct? M S M E M E L A : O k a y. C a n y o u r e p e a t y o u r q u e s t i o n ? A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Ja. A D V K AT E H O F M E Y R : I w a s i n t e r e s t e d i n t h e p o s i t i o n s y o u h a v e h e l d 10 a t S A AT. M S M E M E L A : S A AT. A D V K AT E H O F M E Y R : S A A Te c h n i c a l . . . ( i n t e r v e n e s ) . M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : And I had picked up at paragraph 6 that you held an acting position in the role of HOD Procurement at a particular point. When did that start? MS MEMELA: If I remember correctly I started in September – between S e p t e m b e r a n d O c t o b e r 2 0 1 3 w h e n t h e C h i e f F i n a n c i a l O ff i c e r o f S A AT resigned and procurement at that time it was reporting to him. So then 20 it was divided between myself and the person who was acting as CFO after Mr Zulu. So that I was acting from 2013. I am not sure about the m o n t h b u t l i k e b e t w e e n S e p t e m b e r / O c t o b e r. A D V K AT E H O F M E Y R : A n d w h e r e w e r e y o u b e f o r e t h a t ? MS MEMELA: Before acting? A D V K AT E H O F M E Y R : Ye s . Page 20 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: O k a y. I j o i n e d S A AT a s a S e n i o r L e g a l a n d C o n t r a c t s Management Specialist. A D V K AT E H O F M E Y R : A n d w h e n w a s t h a t ? MS MEMELA: That was in – on the 15th of April 2013. A D V K AT E H O F M E Y R : A n d b e f o r e j o i n i n g S A AT ? MS MEMELA: B e f o r e j o i n i n g S A AT I w a s a t t h e D e v e l o p m e n t B a n k o f Southern Africa, DBSA, as the Contracts Procurement Specialist and l a t e r b e c a m e G r o u p L e g a l A d v i s o r. A D V K AT E H O F M E Y R : 10 And for what period were you at the Development Bank? M S M E M E L A : C h a i r, I d i d n o t f a m i l i a r i s e m y s e l f l i k e I m e a n o n m y C V, but ...(intervenes). C H A I R P E R S O N : Ye s . M S M E M E L A : I t h i n k i t w a s b e t w e e n 2 0 11 t o 2 0 1 3 . A D V K AT E H O F M E Y R : R i g h t . CHAIRPERSON: H’mm. MS MEMELA: I am not sure about the ...(intervenes). CHAIRPERSON: The months. The months. MS MEMELA: Ja. The months, ja. 20 A D V K AT E H O F M E Y R : S o b e f o r e y o u j o i n e d S A AT. Yo u h a d c o m p l e t e d that Post Graduate Diploma in Drafting and Interpretation of Contracts and you had been admitted as an advocate. Is that correct? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : Thank you. If we can talk about then your progression from acting position to a permanent position, because I Page 21 of 188 07 FEBRUARY 2020 – DAY 209 understand that you then were appointed in a permanent position around November 2015. Is that right? MS MEMELA: No. I think it is 2014. A D V K AT E H O F M E Y R : O h . MS MEMELA: Ja. I think 2014. The position was then revived back to the structure. There was a position of an HOD Procurement before in t h e S A AT s t r u c t u r e , b u t l i k e I m e a n w h e n I j o i n e d i t w a s n o t t h e r e . I t was reporting directly to the CFO. So the position was advertised and then like I went through the recruitment and selection process. 10 Then I got the position. So I was now permanent from 2014 as HOD Procurement. A D V K AT E H O F M E Y R : A n d w h e n d i d y o u l e a v e S A AT ? M S M E M E L A : W h e n d i d I l e a v e S A AT ? A D V K AT E H O F M E Y R : H ’ m m . M S M E M E L A : O h . I l e f t S A AT – o k a y. C h a i r, I a m n o t s u r e h o w t h i s question is related to the evidence. Maybe I will find out later or maybe if ...(intervenes). CHAIRPERSON: Ja. Well it is just to understand ...(intervenes). M S M E M E L A : To u n d e r s t a n d w h e r e I a m ? 20 CHAIRPERSON: Ja. Ja. M S M E M E L A : O h . O k a y. CHAIRPERSON: There are innocuous ...(intervenes). M S M E M E L A : Ye s . CHAIRPERSON: Questions just to give us a picture about where you h a v e b e e n i n t e r m s o f w o r k . H o w l o n g y o u w e r e w i t h S A AT. Page 22 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : O k a y. CHAIRPERSON: H’mm. MS MEMELA: Because like I mean I signed like some sort of an agreement like which has got a provision – confidentiality between S A AT a n d m y s e l f , b u t . . . ( i n t e r v e n e s ) . CHAIRPERSON: Well ...(intervenes). MS MEMELA: Then I will ...(intervenes). CHAIRPERSON: All she wants is when did you stop being an employee o f S A AT. 10 M S M E M E L A : O f S A AT. CHAIRPERSON: Ja. That is all she wants. Ja. M S M E M E L A : O k a y. L e t – b u t t h e r e a r e m o r e i n f o r m a t i o n t h a t l i k e t h a t h o w d i d I l e a v e S A AT a n d t h e n l i k e I m e a n I w a s s u s p e n d e d i n 2 0 1 8 , May for certain charges like I am including some of them like I mean being the items here. Then I went through the disciplinary hearing like which was chaired by Advocate Cassim. In his outcome he did propose like I be moved from Procurement to Legal Division, but like we did not like really agree, because like I mean from my side I did not think he had the terms of 20 reference like to actually propose that. So then like he proposed like t h a t o k a y. T h e n d i s m i s s a l i s f a i r a n d a p p r o p r i a t e . Then I went to the CCMA and applied for arbitration and I won the case on the 18th of October 2019. I was supposed to start – go back to work on the 1st of November 2019. Then when it was just one day like for me to go back. Then I received an e-mail that like I mean Page 23 of 188 07 FEBRUARY 2020 – DAY 209 t h e y w o u l d l i k e t o r e v i e w a n d s t u ff l i k e t h a t , b u t t h e n t h e d i s c u s s i o n s about like settlement followed after that. So we have just settled. I think we signed at the beginning of J a n u a r y t h i s y e a r. C H A I R P E R S O N : O h . O k a y. MS MEMELA: A separation and mutual agreement. CHAIRPERSON: S o u n t i l y o u w e r e a n e m p l o y e e o f S A AT u n t i l sometime in January this year? M S M E M E L A : Ye s . Ye s . 10 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 p i c k i t u p a t p a g e 2 o f y o u r s t a t e m e n t i n D D 2 5 A . Yo u w i l l s e e a t p a r a g r a p h 6 t h e r e . Yo u s t a r t t o talk about some of your responsibilities in your role as Head of Department. MS MEMELA: H’mm. A D V K AT E H O F M E Y R : Can you tell us what those responsibilities were? MS MEMELA: O k a y. In 2015 – okay – when I was confirmed as the HOD Procurement I was only heading Strategic Procurement and 20 Operational Purchasing. Strategic procurement consist of the long term tenders from three years to five years. Where I mean we go out on a tender process and then operational purchasing are a day to day buying of spares. So like I was responsible for that from 2014 to 2015 and then f r o m 2 0 1 5 t h e r e w a s a r e s t r u c t u r i n g t h a t t o o k p l a c e a t S A AT a n d t h e n Page 24 of 188 07 FEBRUARY 2020 – DAY 209 l i k e m y s e l f a n d o t h e r t h r e e H O D ’s . responsibility and then my Like I mean had an additional position was changed from HOD Procurement to HOD SEM and that is where then like I am – I was stating my portfolios there. Like I had senior managers reporting to me which is Legal and Contracts Management, BEE and Supplier Development, Materials Management, Logistics and Inventory and I do not know if I forgot the other one. Ja. CHAIRPERSON: I think you have covered them. 10 A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Ye s . So like those were the like portfolios that I was responsible for and like I mean there were senior managers there that were responsible for that and reporting to me. A D V K AT E H O F M E Y R : Ms Memela, I have picked up from this statement and your others that you appear to have had quite an important role to play in Supplier Development. Is that a fair comment? MS MEMELA: That is a fair comment. Ye s , b e c a u s e C h a i r S u p p l i e r Development and BEE – B-BBEE was part of my job description. Other than that it was also part of the strategy enterprise development and 20 a l s o p a r t o f t h e b u s i n e s s s c o r e c a r d o f t h e c o m p a n y. I will – I do not know if maybe you will come back to this, but like I would like to go in d e t a i l a b o u t l i k e I m e a n t h e r o l e t h a t l i k e I w a s e x p e c t e d t o p l a y. A D V K AT E H O F M E Y R : I n d e e d . P l e a s e d o . MS MEMELA: started. O k a y. So on the Supplier Development Chair why it W h e n I t o o k o v e r S A AT a s H O D P r o c u r e m e n t t h e r e w a s n o Page 25 of 188 07 FEBRUARY 2020 – DAY 209 BEE suppliers in our database. They were buying directly from the multinational companies and if like it was like I mean the local c o m p a n y. I t a l l w a s l i k e I m e a n w h i t e o w n e d c o m p a n i e s . So - because of the Supplier Development that was in place at that time and the fact that B-BBEE required all – also the State Owned Companies to actually have a certain level of BEE status. When I joined procurement. S A AT w a s s i t t i n g a t L e v e l 6 w h i c h i s t h e w o r s t f o r a S t a t e O w n e d C o m p a n y. I t m e a n s t h a t l i k e I m e a n t h e y w e r e n o t involved. 10 The national agenda like I mean transformational agenda. So then like I started like I mean proposing and of course from SAA they had drafted like Enterprise Supplier Development Strategy in 2014 which allowed us like I mean as from like Procurement, HR and whoever is responsible for like I mean making sure that like the company adheres to B-BBEE and then like one of the elements there says that the local suppliers should – we should promote the local supplies to join franchise with multinational companies. So Chair remember like when the – when I took over HOD Procurement position as I mentioned. 20 There was no black owned companies and like I mean they knew companies that came forward after the – this – the workshop that took place like I mean about S u p p l i e r D e v e l o p m e n t a n d s t u ff . T h e y d i d n o t h a v e t h e k n o w l e d g e i n t h e a v i a t i o n s e c t o r. So like I had to open doors for them and like I mean in doing that like work closely with them. Guiding them and asking also …(indistinct) from Page 26 of 188 07 FEBRUARY 2020 – DAY 209 S A AT t o g u i d e t h e m . M a k i n g s u r e t h a t l i k e I m e a n w h a t e v e r p a r t s f o r i n s t a n c e t h a t t h e y b u y o n b e h a l f o f S A AT a n d n o t a l l t h o s e p a r t s a n d a l l those kind of things and then I listed – I came up with a list of suppliers. I r e m e m b e r t h e f i r s t o n e w a s a r o u n d l i k e m a y b e 11 o u t o f 3 000 like I mean suppliers on the database. Ms Sambo was actually o n e o f t h o s e s u p p l i e r s t h a t l i k e I m e a n I o p e n e d d o o r s f o r a t S A AT. I t w a s n o t a n e a s y j o u r n e y. L i k e I m e a n o f c o u r s e I h a d r u ff l e d f e a t h e r s , b e c a u s e S A AT P r o c u r e m e n t h a d b e e n j u s t d o i n g t h e i r t h i n g o n t h e i r 10 own and just dealing with multinational companies and not giving any opportunities to the black companies in South Africa. S o l i k e I m e a n I w a s t h a t i n v o l v e d . Ye s . S o a s – l i k e I m e a n as we go on you will see how much I was involved like in guiding some o f t h e m . Ye s . A D V K AT E H O F M E Y R : Would the N I P, the National Industrial Development Program, program have applied at the time to those multinational companies? MS MEMELA: There was – the NIP obligation was supposed to start applying as far back as 1999. 20 A D V K AT E H O F M E Y R : C o r r e c t . M S M E M E L A : F o r i n s t a n c e l i k e I m e a n f o r a t y r e c o n t r a c t . L i k e S A AT entered into a tyre contract in 1999. It is one of those Chair Evergreen c o n t r a c t t h a t S A AT h a d a n d t h e n t h e r e w a s l o g i s t i c c o n t r a c t . T h e r e w a s a components contract also which I think started in 2008 with Air F r a n c e a n d S A AT. Page 27 of 188 07 FEBRUARY 2020 – DAY 209 Before that I think it was Lufthansa, but like I mean remember the NIP obligation is managed and controlled by the DTI. Not by the c o m p a n y. S o l i k e I m e a n I c a n n o t s p e a k o n b e h a l f o f t h e D T I , b u t l i k e I am just saying they were supposed to have enforced ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: And make sure that like these multinational companies are giving something back to the country instead of just taking these huge contracts and not doing anything like in terms of maybe t r a n s f e r r i n g s k i l l s b a c k t o t h e c o u n t r y. 10 Like I mean technology and k n o w - h o w. S o l i k e a f t e r I h a d l e a r n t a b o u t t h e d i ff e r e n c e b e t w e e n N I P obligation requirements versus Supplier Development. Then we find out that actually Supplier Development is part of the NIP obligation. Yo u c a n n o t l i k e r e a l l y a p p l y b o t h o f t h e m . S o t h a t i s t h e r e a s o n t h e n l i k e t h a t I w a s p u s h i n g f o r S u p p l i e r D e v e l o p m e n t t o b e a p p l i e d a t S A AT, because like that way we will have control and we will be able to manage the relationship between multinational companies and local companies. A D V K AT E H O F M E Y R : 20 And what is supposed to be achieved by Supplier Development? MS MEMELA: Chair like this. It is a long list. It could be training from multinational companies. For instance I will make an example. If there is a five year contract and one of the multinational companies like have j o i n t v e n t u r e s w i t h t h e l o c a l s u p p l i e r. In a contract they would agree that. They will be transferring skills. Page 28 of 188 07 FEBRUARY 2020 – DAY 209 They would be training them. They will be transferring technology and know-how and then like I mean the purpose of that is to ensure that like when the tender goes out again the local supplier is able to actually compete with these guys. Yo u u n d e r s t a n d ? Like I m e a n S A AT a s a n M R O . They buy mostly from multinational companies and like local suppliers did not have that knowledge and they needed as much guidance as possible. A D V K AT E H O F M E Y R : A l l o f t h e o b j e c t i v e s t h a t y o u h a v e l i s t e d t h e r e 10 t r a i n i n g s k i l l s t r a n s f e r, e x p o s u r e t o t e c h n o l o g y s u g g e s t s t o m e l o n g e r t e r m d e v e l o p m e n t o f t h e s e l e c t e d s u p p l i e r. I s t h a t a f a i r c o m m e n t ? M S M E M E L A : I g u e s s t h a t i s y o u r v i e w. L i k e I m e a n i t i s r e l e v a n t , b u t like I mean it could ...(intervenes). A D V K AT E H O F M E Y R : S o r r y. It is relevant or irrelevant? I just did not hear that. MS MEMELA: I am saying it is relevant. A D V K AT E H O F M E Y R : R e l e v a n t . T h a n k y o u . MS MEMELA: It is relevant like, but just depending on how you interpret your long term. 20 A D V K AT E H O F M E Y R : I n d e e d . MS MEMELA: Long term could be five years. A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Within five years like multinational companies if they are working closer together and there is a watertight contract in place. They could like really transfer these skills and then like you know that Page 29 of 188 07 FEBRUARY 2020 – DAY 209 okay by the end of that contract they are able either to go with these ones or they have the freedom to actually approach others or maybe bid on their own with partnership like with other – like the new multinational companies. A D V K AT E H O F M E Y R : S o g r o w t h e s e l e c t e d s u p p l i e r s o t h a t t h e y c a n ultimately compete on their own terms. Is that a fair summary? M S M E M E L A : O k a y. R e p e a t t h a t . A D V K AT E H O F M E Y R : The idea of Supplier Development is to grow the supplier ...(intervenes). 10 MS MEMELA: Ja. A D V K AT E H O F M E Y R : So that at some point they can compete on their own terms. MS MEMELA: That is one of them. Like I mean it could be a list of things that like I would like to get out of Supplier Development. A D V K AT E H O F M E Y R : A n y t h i n g e l s e t h a t c o m e s t o m i n d n o w ? MS MEMELA: Maybe it could be creation of work in South Africa where m a y b e – I w i l l m a k e a n e x a m p l e C h a i r. S o t h a t l i k e y o u h a v e a c l e a r picture. For instance with the tyres I will say like the current contract now is with Bridgestone and they are based in Brussels. 20 So Bridgestone will have a part – site like where they are supposed to actually ship the tyres to South Africa and then like when the tyres get t o S o u t h A f r i c a , I m e a n t h e c o n t a i n e r. There could be an agreement maybe between the multi – like I m e a n B r i d g e s t o n e a n d t h e l o c a l c o m p a n y t h a t o k a y. Yo u w i l l b e p l a y i n g t h i s r o l e . Yo u w i l l – a s s o o n a s t h e s h i p g e t s t o D u r b a n – i f i t Page 30 of 188 07 FEBRUARY 2020 – DAY 209 g e t s t o D u r b a n o r w h e r e v e r. Yo u w i l l t h e n t a k e o v e r t h e t r a n s p o r t a t i o n o f t h e t y r e s f r o m D u r b a n t o S A AT. Yo u s e e . Like so that is where maybe they would ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Actually agree. So like I mean it is about that. I can remember out of that phase there would be people who are employed and that is creation of jobs. A D V K AT E H O F M E Y R : Thank you. Ms Memela, I would then like to move to page 3 of your statement in Exhibit DD25A. 10 Yo u h a v e a heading there. CHAIRPERSON: M s H o f m e y r, I s e e w e a r e a t 1 9 m i n u t e s p a s t ...(intervenes). A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: But we had some adjournment ...(intervenes). A D V K AT E H O F M E Y R : Ye s . CHAIRPERSON: E a r l i e r. Maybe we should take the tea break at 11 : 4 5 . 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 P E R S O N : Ye s . O k a y. A l r i g h t . 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 P E R S O N : O k a y. A D V K AT E H O F M E Y R : I will just need somebody to remind me when we get there. 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 : R i g h t . Page 31 of 188 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: Will that be fine with you Ms Memela? M S M E M E L A : T h a t i s f i n e C h a i r. 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 : T h a n k y o u C h a i r. M s M e m e l a , w e a r e a t E x h i b i t DD25A at page 3 and you have a heading towards the bottom of that page. “Swissport” in bold. Do you see that? MS MEMELA: Ja. A D V K AT E H O F M E Y R : And then you start at paragraph 9 below that heading to say: 10 “What I recall during this time was that the Board decided who should act as the CPO after the departure of Dr Dahwa at SAA.” Do you see that? MS MEMELA: Ja. A D V K AT E H O F M E Y R : D o y o u k n o w a n y t h i n g a b o u t t h e c i r c u m s t a n c e s s u r r o u n d i n g D r D a h w a ’s d e p a r t u r e a t S A A ? M S M E M E L A : O k a y. Yo u r q u e s t i o n i s q u i t e – w h e n y o u a r e a s k i n g l i k e that do I know the circumstances surrounding his departure. Do you m e a n d o I k n o w t h e c h a r g e s a g a i n s t h i m l i k e w h a t h a p p e n e d a n d s t u ff ? 20 A D V K AT E H O F M E Y R : Ye s . MS MEMELA: I do not. A D V K AT E H O F M E Y R : Yo u d o n o t k n o w ? MS MEMELA: No. A D V K AT E H O F M E Y R : M r – D r D a h w a , h a s g i v e n e v i d e n c e b e f o r e t h i s C o m m i s s i o n p r e v i o u s l y. A r e y o u a w a r e o f t h a t ? Page 32 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: I am aware, but I was not watching. A D V K AT E H O F M E Y R : Right. His evidence included the following. I am going to just reference it, because I do want to ask you some q u e s t i o n s , b e c a u s e y o u w e r e r e s p o n s i b l e f o r p r o c u r e m e n t i n S A AT a t a similar time that Dr Dahwa was responsible for procurement at SAA. Is that correct? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : Right. S o M s – D r D a h w a ’s t e s t i m o n y b e f o r e this Commission was that on the 2nd of October 2015 he was forced 10 during the course of eight hours on a day to sign certain letters of award to Swissport and Engen and he was placed under great pressure to do so by the then Members of the Board of SAA, Ms Kwinana and Ms Myeni that was pursuant to the SAA 30% set aside policy are you aware of that policy? MS MEMELA: I’m aware of the policy 30% set aside but I never a p p l i e d i t u n d e r S A AT c o n t r a c t s . A D V K AT E H O F M E Y R : R i g h t w e l l n o r d i d D r D a h w a , h i s e v i d e n c e w a s that he regarded that 30% set aside policy as unlawful and so he refused to sign agreements that would have applied it. 20 His evidence was also that during that meeting he was threatened that on the M o n d a y, t h e f o l l o w i n g M o n d a y t h e E F F w o u l d b e p r o t e s t i n g a t S A A a n d they wanted all Zimbabweans out of SAA and Dr Dahwa Zimbabwean and so he feared for his safety at the time. was He was s h o r t l y, t h e r e a f t e r c h a r g e d a n d w e n t t h r o u g h a d i s c i p l i n a r y p r o c e s s . D i d y o u h o l d a v i e w, a t t h e t i m e a b o u t t h e l a w f u l n e s s o f t h e 3 0 % s e t Page 33 of 188 07 FEBRUARY 2020 – DAY 209 aside policy? MS MEMELA: Chair with regard to a 30% set aside from a legal point of view it was not in line with the relevant legislations that I’m abiding the procurement process in the State Owned Companies. H o w e v e r, without defending the Board I believe that the reason maybe they wanted to apply such a percentage was to make sure that they are giving as much opportunity to black owned companies as possible because I remember during that time they started with the workshop and going around the country and introducing the tenders and letting 10 the local companies to know that they don’t have to be scared to play a r o l e i n t h e A v i a t i o n S e c t o r i t ’s n o t a s d i ff i c u l t a s i t l o o k s . S o t o a n s w e r C o u n s e l ’s q u e s t i o n , f r o m S A AT ’s s i d e I ’ v e n e v e r o r m y t e a m h a v e n e v e r applied 30% set aside instead we actually used 10% like from the BEE point of view depending on the price like for instance 90/10 or 80/20 we actually followed that. The actual certain things that like we kept on maybe just putting …(indistinct) Supply Development as we were moving along. So I remember the Board that was following – the previous Board of Ms Myeni had asked myself as the Head of Supply C h a i n f o r S A AT a n d S A A t o l i s t t h e c o n t r a c t s t h a t w e h a d e n s u r e d t h a t 20 they adhered to the 30% set aside and like they actually – they thought t h e r e w a s t h a t 3 0 % s e t a s i d e a l s o a t S A AT a n d l i k e I m e a n w e p r o v e d to them that we never applied that until it was actually included in the l e g i s l a t i o n P P FA i n 2 0 1 7 . A D V K AT E H O F M E Y R : A n d w h e n . . . ( i n t e r v e n e s ) . CHAIRPERSON: So just to get clarity on your answer to the question, Page 34 of 188 07 FEBRUARY 2020 – DAY 209 the question was, whether your view at the time was that the 30% set aside was unlawful and I think you have said that you believe that it was not in line with ...(intervenes). MS MEMELA: The legislation. CHAIRPERSON: MS MEMELA: Ye s , s o y o u b e l i e v e d i t w a s u n l a w f u l ? Ye s C h a i r. CHAIRPERSON: J a o k a y. A D V K AT E H O F M E Y R : A n d w e r e y o u a w a r e t h a t N a t i o n a l Tr e a s u r y t o o k a similar view in 2015 – late 2015? 10 MS MEMELA: Ye s I h e a r d t h a t t h e y h a d s e n t a l e t t e r f r o m N a t i o n a l Tr e a s u r y t o t h e t h e n A c t i n g C E O , M s T h u l e M s h e , I t h i n k s h e h a d s h a r e d i t w i t h p r o c u r e m e n t a n d s t u ff s o I a m a w a r e o f t h a t l e t t e r f r o m N a t i o n a l Tr e a s u r y. A D V K AT E H O F M E Y R : Thank you, we don’t need to go there for present purposes because your recollection is a good one Ms Memela, with respect but Chair just for the record it is in Exhibit DD25B at page 648, we’ve referred to it previously in the evidence of Dr Dahwa and t h a t w a s t h e l e t t e r o f t h e C h i e f P r o c u r e m e n t O ff i c e r o f N a t i o n a l Tr e a s u r y, a s y o u i n d i c a t e d t o M s M s h e i n d i c a t i n g t h a t t h e r e s o l u t i o n o f 20 t h e B o a r d t o s e t a s i d e t h e 3 0 % i n i t ’s c u r r e n t f o r m i s n o t s u p p o r t e d b y procurement – by any procurement legal framework and must be s t o p p e d w i t h i m m e d i a t e e ff e c t . Ms Memela with that background in place I’d like to move to the two transactions that the Commission is focusing on in its hearings at the moment. The first is the sale of the S A AT G P U ’s a n d t h e s e c o n d i s t h e a w a r d o f t h e c o m p o n e n t s t e n d e r t o Page 35 of 188 07 FEBRUARY 2020 – DAY 209 the joint venture of JM Aviation. These are the two aspects that you have focused on in your statement because they were the two t r a n s a c t i o n s t h a t y o u r e n g a g e m e n t s w i t h t h e L e g a l Te a m a n d t h e C o m m i s s i o n ’s i n v e s t i g a t o r s m a d e c l e a r t o y o u , w e r e o f r e l e v a n c e t o o u r proceedings. So I’d like to give you an opportunity at the outset if we c a n t a k e t h e s a l e o f t h e S A AT G P U ’s t o s t a r t w i t h t o e x p l a i n t o u s w h a t your role was in relation to that sale. MS MEMELA: Chair to answer that question, I had no role nor did I i n i t i a t e t h e s a l e o f t h e G P U ’s I h a v e a l s o p r o v e n t h a t a t t h e C C M A . T h e 10 s a l e o f G P U ’s w a s w i t h i n t h e d e l e g a t i o n o f a u t h o r i t y o f t h e B o a r d a n d t h e s u b m i s s i o n t o s e l l t h e G P U ’s w a s d o n e b y t h e p r e v i o u s A c t i n g C E O o f S A AT. Based on the contract between Swissport and SAA. So it went to the Board and the Board approved based on the contract that was in place, my understanding is that. I did attach the minutes of the Board like on my answer just to show that who was there and how was it discussed and like I mean on what basis did the Board reach their decision. So you asked about my role the only time I got involved was when like I was asked by the Acting CEO to sit in the negation, I mean he actually received the proposal ...(intervenes). 20 CHAIRPERSON: MS MEMELA: Was that Mr Zwane? No, no it was not Mr Zwane, it was Mr Arson Malola- P h i r i w h o w a s a c t i n g a t S A AT a t t h a t t i m e . CHAIRPERSON: MS MEMELA: O k a y. Ye s . A D V K AT E H O F M E Y R : C h a i r j u s t f o r c l a r i f i c a t i o n – i f I m a y j u s t c o m e Page 36 of 188 07 FEBRUARY 2020 – DAY 209 in there because i t ’s part of this majeure at that stage, our investigations have been revealed, and I think there has been evidence o n t h i s a l r e a d y, M r Z w a n e w a s i n a C E O p o s i t i o n a t S A A a n d y e s , t h i s did come out in previous evidence and Mr Phiri was in the Acting CEO r o l e a t S A AT, t h a n k y o u . MS MEMELA: Ja. A D V K AT E H O F M E Y R : A p o l o g i e s M s M e m e l a . CHAIRPERSON: Of course there – part of the problem is that when w e t a l k a b o u t S A AT i n t h e c o n t e x t o f t h e s e S A A k e e p s c o m i n g i n s o i t ’s 10 important to understand when you refer to an Acting CEO or CEO w h e t h e r y o u ’ r e t a l k i n g a b o u t S A AT C E O o r S A A C E O s o j a , o k a y a l r i g h t . MS MEMELA: A l r i g h t C h a i r. CHAIRPERSON: MS MEMELA: Ye s . Ye s , s o t h e A c t i n g C E O o f S A AT w r o t e a s u b m i s s i o n after – I don’t know like after he received an instruction maybe to sell t h e G P U ’s b u t I d o u n d e r s t a n d t h a t t h e s u b m i s s i o n w a s l i n k e d t o t h e contract between Swissport and SAA. Ye s , a n d t h e n h e d i d , t h e s u b m i s s i o n a f t e r h e h a d r e c e i v e d a n e - m a i l p r o p o s i n g t o b u y t h e G P U ’s f r o m S A AT a n d t h e n h i s r e s p o n s e t o t h e e - m a i l h e s a i d – h e s t a t e d t h a t , 20 okay like I mean, he still has to go to the Board and have the approval by the Board and then before he can go back to them and negotiate. So after – and he did exactly that he went to the Board and then it was discussed and then the Board approved and as the CEO, my role, let m e g i v e c l a r i t y o n t h a t C h a i r, m y r o l e w a s r e p o r t i n g t o t h e C E O . J a , s o he gave me an instruction to sit and negotiate the proposal that was Page 37 of 188 07 FEBRUARY 2020 – DAY 209 already sent to him yes and like it was not just me I had other c o l l e a g u e s t h a t w e r e t h e r e , a l t h o u g h , l i k e I m e a n s o m e l i k e n o w, I t h i n k out of fear they say they did not attend and of course I don’t have much p r o o f t o s a y, o k a y y o u w e r e t h e r e . . . ( i n t e r v e n e s ) . CHAIRPERSON: MS MEMELA: CHAIRPERSON: But if they were there you say they were there. Ye s t h e y w e r e t h e r e o k a y I h a d . . . ( i n t e r v e n e s ) . T h e r e m i g h t n o t b e a r e g i s t e r, a t t e n d a n c e r e g i s t e r but if you know they were there, then you say they were there. MS MEMELA: 10 Ye s s o I h a d M r C h e l e M a k a l e n g w h o w a s t h e o w n e r o f t h e G P U ’s l i k e h i s d e p a r t m e n t w a s t h e o w n e r o f t h e G P U ’s a n d t h e n w e h a d S t a n Vo s l o o w h o w a s r e s p o n s i b l e f o r M a t e r i a l s M a n a g e m e n t a n d then I had also invited Leon Roberts who was the Logistics and I n v e n t o r y M a n a g e r, h e c o u l d n ’ t m a k e i t , h e ’s t h e o n l y o n e t h a t I remember that couldn’t make it. So like we were joined by the two Members of the JM, Mr Jules – no it was Mr Jules, I don’t remember who the other one was but I think it was two of them. So like we discussed based on the proposal that they had sent to Mr Malola-Phiri before he wrote the submission to the Board. So we started based on that, you know and we asked them, what was their basis of the price 20 that they had put forward and then, like I mean, you’ll see like there was an e-mail written back to me by Ms Sokhulu saying okay this – like t h a n k y o u f o r t h e m e e t i n g t h i s i s t h e a m o u n t l i k e t h e G P U ’s o r c u r r e n t G P U ’s a r e g o i n g f o r a t t h a t t i m e . S o t h a t ’s w h e r e m y i n v o l v e m e n t started like from the negotiation up to the time when the invoice was signed by the CEO and myself. Page 38 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : T h a t m e e t i n g t h a t y o u ’ r e d i s c u s s i n g , I j u s t w a n t t o b e c l e a r, y o u ’ v e m e n t i o n e d M r J u l e s A i r e s , C h a i r r e m i n d i n g m y s e l f o f o u r u n d e r t a k i n g t h i s m o r n i n g t h a t ’s J - u - l - e - s A - i - r - e - s w a s h e p r e s e n t ? MS MEMELA: Mr Jules? A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Ye s h e w a s i n t h e m e e t i n g . A D V K AT E H O F M E Y R : A n d y o u ’ v e m e n t i o n e d a M s S o k h u l u , w a s s h e present in the meeting? MS MEMELA: 10 I don’t remember if she was present but I think she was ...(intervenes). A D V K AT E H O F M E Y R : But you mentioned an e-mail that she sent to you that said thank you for the meeting, does that help you recall. MS MEMELA: Ye s , y e s I t h i n k s h e w a s b e c a u s e I k n o w i t w a s t w o o f them. A D V K AT E H O F M E Y R : R i g h t a n d t h a t ’s S - o - k - h - u - l - u , a n d t h e n w h o e l s e w a s i n t h e m e e t i n g y o u s a i d a M r Vo s l o o , i s t h a t V- o - s - l - o - o ? MS MEMELA: Ye s . A D V K AT E H O F M E Y R : A n d a M r M a k a l e n g i s t h a t M - a - k - a - l - e - n - g ? MS MEMELA: 20 Ye s . A D V K AT E H O F M E Y R : A n d w a s t h a t t h e m e e t i n g t h a t o c c u r r e d o n t h e day prior to you receiving the e-mail from Ms Sokhulu referring to the meeting? MS MEMELA: Referring to the meeting yes. A D V K AT E H O F M E Y R : A n d i s t h a t t h e o n l y m e e t i n g y o u h a d t o d i s c u s s pricing with JM Aviation? Page 39 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: That was the first meeting that we had because it was followed by the Board Resolution so we were following the Board Resolution and the instruction from the CEO to sit with them. A D V K AT E H O F M E Y R : A r e y o u s u r e a b o u t t h a t c h r o n o l o g y ? MS MEMELA: Chronology I mean like in terms of ...(intervenes). A D V K AT E H O F M E Y R : T h a t t h e m e e t i n g p r e c e d e d t h e d e c i s i o n o f t h e Board. MS MEMELA: Ye s I ’ m s u r e . A D V K AT E H O F M E Y R : O k a y t h a n k y o u . 10 CHAIRPERSON: I wasn’t sure earlier on whether you meant the resolution of the Board came first and then the meeting so – but you have just confirmed that the meeting happened before. MS MEMELA: Ye s C h a i r t h e B o a r d M e e t i n g h a p p e n e d b e f o r e a f t e r t h e submission by Mr Malola-Phiri to the Board it was discussed and then like we negotiated after the Board Meeting. CHAIRPERSON: O k a y. A D V K AT E H O F M E Y R : Sorry then there was some confusion because I thought that you just said that you had that pricing meeting before the B o a r d ’s d e c i s i o n . 20 MS MEMELA: No it was afterwards because it was ...(intervenes). CHAIRPERSON: O h t h e n t h e r e i s c o n f u s i o n o k a y s o l e t ’s g e t t h a t . The meeting that you have just talked about. MS MEMELA: Ja. CHAIRPERSON: Yo u s a y h a p p e n e d a f t e r t h e B o a r d h a d , h a d a meeting and made a resolution. Page 40 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Ye s C h a i r. CHAIRPERSON: O k a y. A D V K AT E H O F M E Y R : A n d t h e n j u s t t o b e c l e a r s o t h a t w e ’ r e n o t a t cross-purposes was that the only pricing meeting at which the sale p r i c e b e t w e e n S A AT a n d J M A v i a t i o n w a s d i s c u s s e d . MS MEMELA: Ye s a n d a c c o r d i n g t o t h e m e e t i n g , l i k e p h y s i c a l m e e t i n g that was the only meeting, afterwards it was just, like I mean e-mails from – and yes. A D V K AT E H O F M E Y R : 10 Ye s , t h a n k y o u , I j u s t w a n t t o b e c l e a r a b o u t t h a t . R i g h t t h e n I ’ d l i k e t o m e e t t o t h e c o m p o n e n t s t e n d e r. M s M e m e l a you will know that, and we have spent two days dealing with the various versions of this components tender because it starts as early as – the first one was in 2013 and there is version one, and two and three and f o u r. F o r t o d a y ’s p u r p o s e s I ’ d l i k e t o h o n e i n o n t h e o n e s t h a t a r e really of most relevance to the Commission but at any point that you feel that you need to give some reference backwards, please do so. What I’d like you to explain to the Commission now if you will, was your r o l e – l e t ’s s a y f r o m a b o u t 2 0 1 4 i n r e l a t i o n t o t h e c o m p o n e n t s t e n d e r. MS MEMELA: 20 O k a y. A D V K AT E H O F M E Y R : Ye s , a n d j u s t f o r a r e f e r e n c e f o r y o u , y o u s t a r t your explanation of that at page 6 of DD25A, the reason why I gave the introduction I did a moment ago is because a great deal of your initial discussion of this components tender does go through the history and all that I am saying to you is we have traversed the history over the last two days, so I would like to pick it up if we may in about 2014 to Page 41 of 188 07 FEBRUARY 2020 – DAY 209 understand your role in relation to it, but you must not feel limited if there is some aspect of what happened previously that you need to go to please tell us that. MS MEMELA: Okay are you going to ask a question on your one question? A D V K AT E H O F M E Y R : Well what your role was, could you start with that, what was your role? MS MEMELA: From 2014? CHAIRPERSON: 10 From 2014. A D V K AT E H O F M E Y R : MS MEMELA: From 2014. O k a y. CHAIRPERSON: W e l l y o u m i g h t m i s s o ff o r y o u m i g h t w i s h t o m e n t i o n some headings relating to 2014 and after that might help her to focus on which she might, you might wish her to focus. A D V K AT E H O F M E Y R : CHAIRPERSON: I n d e e d , l e t m e d o t h a t C h a i r. Ja. A D V K AT E H O F M E Y R : L e t ’s s t a r t i n O c t o b e r o f 2 0 1 4 , b e c a u s e October of 2014 is when the second five year tender was advertised, is that correct? 20 MS MEMELA: Ye s 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 : S o l e t ’s m a y b e t a k e i t f r o m O c t o b e r 2 0 1 4 a n d t h e n y o u c a n t r a c k f o r u s f o r w a r d w h a t y o u r r o l e i n S A AT w a s r e l a t i v e to that procurement process. MS MEMELA: Okay Chair in terms of the role – I am trying to understand like the question like when ...(intervenes). Page 42 of 188 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: Okay let me assist you, what Ms Hofmeyr would like you to tell me is if you look at that particular tender you would know obviously the steps that need to be taken normally for a procurement process and you would know what process, if any was followed in regard to that one and she then wants you to say out of this process this is where I got involved, this is where I got involved, I did this, I didn’t do that, that is what she wants you to talk about for that tender and throughout the process from the time the RFP would have been issued to the time it was withdrawn or cancelled or whatever the 10 position. MS MEMELA: O k a y C h a i r, I w i l l t r y a n d b e a s b r i e f a s p o s s i b l e . I would like first to highlight the hierarchy or how things work in procurement. CHAIRPERSON: MS MEMELA: Ye s . And how until the Board level like when we run the process, so ...(intervenes). CHAIRPERSON: And I’m sorry in answering the question feel free to say as Head of Procurement this is what your role normally would be. MS MEMELA: 20 E x a c t l y. CHAIRPERSON: MS MEMELA: And this is what it was in this particular case. Ye s , t h a t i s w h e r e I a m g o i n g . S o I a m t r y i n g t o e x p l a i n t h a t , t h e t e n d e r a n d e v a l u a t i o n v o t i n g a n d s t u ff i s d o n e b y t h e C F S T, i t i s C r o s s F u n c t i o n a l S e c t i o n Te a m , i n o t h e r c o m p a n i e s i t i s c a l l e d B E C or you know the people that are actually responsible for the evaluation, so the evaluation – the CFST is usually managed by a person from Page 43 of 188 07 FEBRUARY 2020 – DAY 209 p r o c u r e m e n t w h o i s n o w c a l l e d t h e P r o j e c t M a n a g e r, w h o i s a c t u a l l y running with the whole process and then when they are done evaluating and coming up with the highest scoring bidder they then make it a recommendation to myself and then explain why that one, of course like my role is to make sure that I am as independent as possible, I don’t intervene or interfere with their decision, because remember they are the ones who was sitting there making the decision like after they have voted and looked at all the elements that are applicable. So like from then, from the recommendation by the CFST 10 through the project manager then it will come to me and then I will have certain questions, maybe to say okay have you checked that, e s p e c i a l l y, I w o u l d l o o k e s p e c i a l l y o n t h e S u p p l y D e v e l o p m e n t , t h a t okay are you sure that Supply Development is aligned and everything is o k a y a n d s t u ff l i k e t h a t , a n d B E E a s w e l l , s o a f t e r t h a t l i k e I w o u l d t a k e t h e i r r e c o m m e n d a t i o n t o E x c o , E x c o t h e n c o m p r i s e s o f G M ’s . CHAIRPERSON: Sorry before you talk about the first call the first c o m m i t t e e , C F S T. MS MEMELA: C F S T y e s C h a i r. CHAIRPERSON: 20 Yo u s a i d t h e p r o j e c t m a n a g e r w o u l d b e s o m e b o d y within procurement, is that right? MS MEMELA: Ye s , y e s . CHAIRPERSON: Would the project manager be the same person all the time or it would depend on each tender? MS MEMELA: Chair it is ...(intervenes). CHAIRPERSON: Is somebody in charge of the department which Page 44 of 188 07 FEBRUARY 2020 – DAY 209 needs that particular service or product or is it just one person all the time? MS MEMELA: Actually when I took over it was like as you have raised it, it has always been one person, like for component it will be a certain person, like for logistics it will be a certain person, for tyres it will be a certain person, so like I mean those are the things that I changed because like I mean we also had a problem of like them knowing so much like they are able to give from inside yes. CHAIRPERSON: 10 MS MEMELA: Ja, so that I mean ...(intervenes). CHAIRPERSON: MS MEMELA: O k a y. But you changed that? I changed that. CHAIRPERSON: MS MEMELA: So it was during your time it became one person. It became like I mean it will be that person who is r e l e v a n t t o t h a t c o m m o d i t y a t t h a t t i m e , y e s c h a i r, w h o i s t h e – e i t h e r s p e c i a l i s t o r a m a n a g e r. CHAIRPERSON: Okay now the people who make up the CFST would they be under you, would they fall under your department, procurement or some would others would not? 20 MS MEMELA: Some would Chair and others would not. For my department it will be the person that I am talking about who is project m a n a g e r, m a y b e w i t h o n e s p e c i a l i s t o r m a y b e o n e b u y e r t o h e l p w i t h t h e a d m i n a n d t h e n a l l o t h e r s w i l l r e p r e s e n t i n g d i ff e r e n t d i v i s i o n s , l i k e from operations, like 2A Finance, Legal and all. CHAIRPERSON: O k a y a l r i g h t , n o t h a t ’s f i n e . Page 45 of 188 I just wanted to 07 FEBRUARY 2020 – DAY 209 understand that. I interrupted you as you were moving on to talking a b o u t E x c o ’s r o l e . MS MEMELA: Yo u w o u l d t a k e t h e r e c o m m e n d a t i o n t o E x c o . Ye s . CHAIRPERSON: Would you take the recommendation after you have satisfied yourself that you are happy with the recommendation? MS MEMELA: Ye s , a f t e r . . . ( i n t e r v e n e s ) . CHAIRPERSON: MS MEMELA: Or you just take as is? I usually take it as it is, because remember because I d o n ’ t s i t i n t h e E v a l u a t i o n Te a m . 10 CHAIRPERSON: MS MEMELA: Ye s , y e s . I am not there when they are evaluating, so like I mean I usually only would attend their thing if like maybe there is some information that I need to pass to them, I would make an example, for instance if their Board meeting, like maybe depending on the delegation of authority at that time like on what contract that we are running, and then I know that the Board meeting will be in two weeks time from that period so like I mean I will ask like before they start, like that I mean okay guys you need to know like I mean we need to move speedily like I mean the next Board meeting is on this date, which is two weeks from 20 now and if we miss that you must know like we would still have to wait f o r l i k e I m e a n m o r e m o n t h s a n d s t u ff l i k e t h a t , s o t h a t i s w h e n I w o u l d actually go in or maybe when they don’t like really understand the S u p p l y D e v e l o p m e n t , b e c a u s e a t S A AT C h a i r t h e i s s u e o f B E E a n d Supply Development was just zero, the way I pushed it there was even a t i m e w h e r e i t w a s c a l l e d N o n t s a s a ’s B E E , I h a d t o a c t u a l l y l i k e I m e a n Page 46 of 188 07 FEBRUARY 2020 – DAY 209 sit down with my team and made them understand that it was not s o m e t h i n g t h a t I c a m e u p w i t h , i t w a s a c t u a l l y t h e l a w, j a . So I attend like only on invite and then ja they will do e v e r y t h i n g i n d e p e n d e n t l y, s o t h e y w i l l r e c o m m e n d t o m e a n d t h e n a f t e r c e r t a i n q u e s t i o n s l i k e a n d I a m s a t i s f i e d w i t h t h e i r a n s w e r s a n d s t u ff like I would sign. In fact like the most like issue that like I would be looking at it was to apply my mind and make sure that I mean like the submission is flowing for them, because like remember when they do the submissions 10 sometimes they don’t, they are not clear of what they are asking for ...(intervenes). CHAIRPERSON: The presentation of the ...(intervenes). MS MEMELA: Exactly so like I mean it was my responsibility to ensure like I mean they to state everything like I mean in detail so that I mean when it gets to the Board, the Board doesn’t have to ask questions and say okay go back for the work or anything like that. CHAIRPERSON: MS MEMELA: H ’ m m , o k a y. So like after I have satisfied myself with the flowing of the submission I will sign and then take it to like I mean to the Exco, 20 which maybe will give us about three days before it gets to Exco ...(intervenes). CHAIRPERSON: And signing it would that be signification that you are happy with the document including the recommendation or it will simply be signification that you have seen it? MS MEMELA: It will be signification that I am happy and I am Page 47 of 188 07 FEBRUARY 2020 – DAY 209 supporting them on their decision, having satisfied myself that they have followed all the processes. CHAIRPERSON: MS MEMELA: O k a y, n o t h a t i s f i n e . Then it will go to Exco, which I said Exco comprises of t h e G M ’s o f S A AT, G e n e r a l M a n a g e r s , i n c l u d i n g m y s e l f , b e i n g t h e H O D at the time. So I also played the role of being the company secretary for Exco meetings, so like I mean the reason why I was part of that is I w o u l d l i k e s o m e t i m e s t a k e n o t e s , t a k e m i n u t e s f o r t h e E x c o a n d s t u ff , so like it would go to Exco and then Exco will discuss it in detail, raise 10 their questions before it goes to BAC, so like I mean once Exco is happy as well they also sign just like me and say okay like we are h a p p y w i t h w h a t h a s b e e n r e c o m m e n d e d b y t h e C F S T, a n d t h e n f r o m the Exco it goes to BAC. BAC then Chair is the Bid Adjudication Committee that c o m p r i s e s o f l i k e I m e a n m a n a g e r s o r H O D ’s , n o w a c t u a l l y H O D ’s f r o m SAA and all the subsidiaries of SAA, and then people will sit there and look at the submission, and when BAC look at those submissions they don’t start evaluating again, their duty is to check if the evaluation was d o n e f a i r l y, t r a n s p a r e n t l y a s p e r t h e 2 1 7 C o n s t i t u t i o n o r t h e P P FA , a n d 20 e v e r y t h i n g l i k e I m e a n t h e N a t i o n a l Tr e a s u r y k n o w s l i k e I m e a n h a v e w e f o l l o w e d t h e s t u ff , t h a t i s w h a t t h e y l o o k a t a n d i f t h e y t h a t a l s o m a y b e the – because sometimes it will happen that the CFST would r e c o m m e n d t h e b i d d e r, t h a t i s n o t t h e h i g h e s t s c o r i n g b i d d e r a n d p u t down their reasons why they do that, like maybe risks or something like that, so the BAC would also ask why did you like jump the highest Page 48 of 188 07 FEBRUARY 2020 – DAY 209 s c o r i n g b i d d e r, I m e a n h a v e y o u c h e c k e d , h a v e y o u m a d e b e s u r e t h a t like we won’t be taken to court and all that, so those are the things that they look at and then I must explain Chair that like when it goes to BAC f r o m S A AT i t i s n o t f o r a p p r o v a l , i t i s f o r n o t i f i c a t i o n a n d e v e n t h e i r S C M p o l i c y t h a t l i k e I m e a n c o v e r s f o r S A AT. CHAIRPERSON: So why are they called adjudication? It is not for them to adjudicate? MS MEMELA: J a , t h e y – o k a y t h e S A AT P r o c u r e m e n t p a r t h a s g o t i t s own section in the SME policy Chair because of the technical buying of 10 t h e t o o l s a n d s t u ff l i k e t h a t , s o s o m e t i m e s I t h i n k l i k e t h e w a y i t w a s drafted it was to ensure that like maybe if the tool is needed as in urgently they are able to go out and acquire the tool and then notify BAC, so usually then like I mean it will be taken to BAC for notification even afterwards, after it has been acquired. CHAIRPERSON: MS MEMELA: So BAC just notes. BAC notes yes. CHAIRPERSON: MS MEMELA: B u t t h e y q u e r y i f t h e r e i s s o m e t h i n g t o q u e r y. They query if there is certain things that they don’t agree with, like based on the relevant legislation that is surrounding, 20 yes, and then if they feel they need it to go back for work they send it back, ja. CHAIRPERSON: MS MEMELA: And from there it goes to the Board. CHAIRPERSON: MS MEMELA: O k a y. O h , o k a y. Ye s a n d t h e n t h e B o a r d b e i n g t h e a c c o u n t i n g a u t h o r i t y Page 49 of 188 07 FEBRUARY 2020 – DAY 209 of the organisation they take the decision, either they agree or they say o k a y i t i s s u b j e c t t o , o r t h e y o v e r r u l e t h e d e c i s i o n o f t h e C F S Te a m a n d the Management. CHAIRPERSON: Ye s . A D V K AT E H O F M E Y R : Chair I do have some follow-up questions but we have exceeded our teatime schedule, maybe we should take the break and I can follow up afterwards. CHAIRPERSON: Ye s l e t ’s t a k e t h e t e a b r e a k , i t i s t e n t o n o w, w e w i l l resume at 12:05. 10 A D V K AT E H O F M E Y R : CHAIRPERSON: REGISTRAR: Thank you. We adjourn. All rise. I N Q U I RY A D J O U R N S I N Q U I RY R E S U M E S CHAIRPERSON: O k a y, l e t u s c o n t i n u e . 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. Ms Memela thank you for that overview initially in relation to your role. I would just like to pick u p o n a f e w c l a r i f i c a t o r y p o i n t s . Yo u d e s c r i b e d a P r o j e c t M a n a g e r w h e n y o u w e r e d e s c r i b i n g t h e r o l e o f t h e C F S T. D o y o u r e c a l l t h a t ? 20 MS MEMELA: I recall. A D V K AT E H O F M E Y R : Did you ever play the role of Project Manager in relation to the ...(intervenes). MS MEMELA: CFST? A D V K AT E H O F M E Y R : MS MEMELA: Ye s . No. Page 50 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : No, and when a bid documents were referred to Project Managers. Is that the CFST Project Manager? MS MEMELA: Ye s . A D V K AT E H O F M E Y R : Thank you. And then my next question is, just clarificatory again, you said from CST – CFST it goes to Exco and then are you a Member of Exco? MS MEMELA: I was not a Member of Exco until 2017. A D V K AT E H O F M E Y R : MS MEMELA: 10 Right. Ye s . A D V K AT E H O F M E Y R : S o , y o u t h e n w e r e n o t s i g n i n g o ff o n t h e B A C recommendation for the 2016 tender as a Member of Exco, is that right? MS MEMELA: O k a y, y o u a r e m i x i n g t w o d i ff e r e n t c o m m i t t e e s . A D V K AT E H O F M E Y R : MS MEMELA: E x c o a n d B A C . T h e y a r e s e p a r a t e C h a i r. A D V K AT E H O F M E Y R : MS MEMELA: Right. Let us do Exco, ...(intervenes). So ...(intervenes). A D V K AT E H O F M E Y R : S o r r y w h a t I m e a n t t o s a y i s C F S T, y o u s a i d makes a recommendation to Exco, is that right? 20 MS MEMELA: Ye s – j a . A D V K AT E H O F M E Y R : CHAIRPERSON: When the final five-years ...(intervenes). Well I thought she said they make a recommendation to her – to you. MS MEMELA: Ye s , t h e y m a k e a r e c o m m e n d a t i o n t o m e t o c h e c k i f everything is okay like I mean if they have adhered to relevant laws and Page 51 of 188 07 FEBRUARY 2020 – DAY 209 everything that is surrounding the process. Then like I mean, I would s i g n , I t h i n k I u n d e r s t a n d h e r q u e s t i o n n o w, I w o u l d s i g n a s t h e H O D SCM. So, like I think she wants to understand if I sign as a Member of Exco ...(intervenes). A D V K AT E H O F M E Y R : MS MEMELA: Indeed. Oh yes, I sign as HOD SCM. A D V K AT E H O F M E Y R : CHAIRPERSON: But in so doing ...(intervenes). B u t j u s t , I a m s o r r y. Let us just get that right because it is important to understand these things. 10 C F S T, d o t h e y make a decision, or do they only make a recommendation to somebody or to a committee? MS MEMELA: O k a y, C F S T C h a i r, t h e y a r e r e s p o n s i b l e f o r e v a l u a t i o n o f t h e B E E s t u ff , l i k e I m e a n t h e y g o t h r o u g h a l l t h e e l e m e n t s , l i k e I a m t a l k i n g – c r i t i c a l c r i t e r i a , f u n c t i o n a l i t y, B E E , p r i c e . So, like remember t h e i n t e r m s o f t h e P P P FA t h e y h a v e t o g o f o r t h e h i g h e s t s c o r i n g b i d d e r. So like after they have gone through all those elements, and then like they will have certain number that they have like if depending o n t h e d e l e g a t i o n f o r a u t h o r i t y, t h e a m o u n t l i k e i t w i l l b e 9 0 / 1 0 , s o l i k e I mean they would start counting from there. Then like they would then 20 make a recommendation to award or maybe to appoint based on the points that they have came up with, like the highest scoring points. CHAIRPERSON: So are you confirming that what they do is to recommend ...(intervenes). MS MEMELA: CHAIRPERSON: Ye s . And not to make the decisions themselves. Page 52 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Ye s C h a i r. CHAIRPERSON: MS MEMELA: E x a c t l y. CHAIRPERSON: MS MEMELA: A b o u t w h o s h o u l d g e t t h e t e n d e r. O k a y. Ja. CHAIRPERSON: Now the recommendation, was it to you or would it be a recommendation to Exco ...(intervenes). MS MEMELA: Through me. CHAIRPERSON: 10 MS MEMELA: But it has to go via you? O k a y, y e s , t h a n k s C h a i r f o r p u t t i n g i t t h a t w a y. It will be a recommendation to the Board, remember like I mean, all the t r a n s a c t i o n s d e p e n d i n g o n t h e d e l e g a t i o n o f a u t h o r i t y, s o m e l i k e w i l l b e under me and I think for me I only sign for up to a certain amount ...(intervenes). CHAIRPERSON: MS MEMELA: Up to a certain amount? Ye s e x a c t l y. S o , l i k e I m e a n , b a s e d o n t h e d e l e g a t i o n of authority they will be going to the Board. So, like looking at the price of that certain contract it will tell you then that it is a Board m a t t e r. 20 It will go to the Board. So, like they are recommending ...(intervenes). CHAIRPERSON: To t h e p e r s o n w h o h a s t h e p o w e r t o d e c i d e i n t e r m s o f d e l e g a t i o n o f a u t h o r i t y. I t c o u l d b e t h e B o a r d s o m e t i m e s i t c o u l d b e somebody else sometimes ...(intervenes). MS MEMELA: Ye s . CHAIRPERSON: O k a y, a l l r i g h t . Page 53 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: And then just to add there Chairperson, when they recommend through me then I recommend to at Exco, then the CEO then from Exco, like after it came back from BAC the CEO then will recommend to the Board on behalf of Management and the Supply Chain. CHAIRPERSON: Okay so, from the BAC it would not go straight to the Board it would go ...(intervenes). MS MEMELA: It g o e s t h r o u g h t h e C E O . CHAIRPERSON: 10 MS MEMELA: The CEO. Ja. CHAIRPERSON: O k a y, a l r i g h t . A D V K AT E H O F M E Y R : So when the final five year tender that was eventually awarded to the joint venture of JM Aviation and AAR went to the Board, were you a Member of Management at that time? MS MEMELA: A s M a n a g e m e n t o ff - s i g h t ? A D V K AT E H O F M E Y R : MS MEMELA: Ye s , I w a s . A D V K AT E H O F M E Y R : MS MEMELA: 20 Ye s . Right. I was the HOD. A D V K AT E H O F M E Y R : Indeed, so just to follow through you were explaining a moment ago that it is Management that then places the submission before the Board for its decision when the value is within t h e i r d e l e g a t i o n o f a u t h o r i t y. I s t h a t c o r r e c t ? MS MEMELA: It is through the CEO. A D V K AT E H O F M E Y R : Ye s . B u t h e i s s p e a k i n g f o r M a n a g e m e n t . H e Page 54 of 188 07 FEBRUARY 2020 – DAY 209 is not speaking alone is he? MS MEMELA: E x a c t l y. A D V K AT E H O F M E Y R : Right. And just help us with what goes to the Board on the day that it convenes its meeting to make a decision like this? Do they get all of the bid submissions put before them? What do they get? MS MEMELA: Yo u m e a n l i k e I m e a n . . . ( i n t e r v e n e s ) . CHAIRPERSON: In other words what does the CEO take to the Board? Ja what documents? 10 MS MEMELA: Okay the CEO takes the submission to the Board which is the summary of what went on within the CFST and what has been approved or maybe recommended yes, then like it is now a submission that is made to the Board, they do not get all this admin who was who and who was not. A D V K AT E H O F M E Y R : CHAIRPERSON: Let us ...(intervenes). S o , o k a y, I a m s o r r y, s o t h e C F S T s e n d s a d o c u m e n t to you. That document would you call it a submission. MS MEMELA: I t i s a s u b m i s s i o n C h a i r. CHAIRPERSON: 20 And does it seek to summarize the information that they had before them before they made the recommendation that they reached or what? MS MEMELA: Ye s , t h e y s u m m a r i z e w h a t t h e y h a v e a g r e e d u p o n a n d w h a t t h e y h a v e v o t e d f o r, a n d t h e n t h e y w o u l d l i s t t h e b i d d e r s n a m e s , a n d t h e n l i k e t h e y w o u l d s a y p r i c e , B E E , a n d s t u ff l i k e t h a t a n d t h e n that is when we will start knowing that okay from here there is phase Page 55 of 188 07 FEBRUARY 2020 – DAY 209 one, and then from phase one they will explain that okay from phase one, Bidder A or something like that has been disqualified based on this. And then going to phase two, we were left with these two bidders and then like from two, phase three, like that. CHAIRPERSON: And when you say the CEO takes the submission to the Board, is that the same submission he takes to the Board, or would it be a revised submission, that has been revised on his journey from the CFST up to CEO. MS MEMELA: 10 O k a y C h a i r. W h e n i t g o e s t o t h e B o a r d i t i s a r e v i s e d submission. CHAIRPERSON: MS MEMELA: O k a y. It is no longer the same as the one that was coming f r o m C F S T. T h e o n e t h a t i s c o m i n g f r o m C F S T, h a s g o t l i k e I m e a n , a list of signatures like I mean that is for the person who compiled the recommendation which is like usually the Project Manager and then like I mean it would come to me and then like the Members of Exco and then it will go to BAC. Then when it comes from BAC for notification then it will come back and then the CEO then like will revise and take exactly what is not 20 there but like I mean now ...(intervenes). CHAIRPERSON: MS MEMELA: P u t s i t i n h i s o w n w a y. It will just be his signature, yes. CHAIRPERSON: So, he would prepare a revised submission but which i s b a s e d o n t h e s u b m i s s i o n t h a t c a m e f r o m C F S T. MS MEMELA: Ye s C h a i r. Page 56 of 188 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: MS MEMELA: O k a y. Except like I mean maybe the Exco was not in agreement. Because like also Exco has – had the power to say okay ...(intervenes). CHAIRPERSON: MS MEMELA: We do not agree. We do not agree. It is a pity that Ms Hofmeyr jumped ...(intervenes). CHAIRPERSON: MS MEMELA: 10 She might come back. Ye s . So, Chair she jumped from like where Exco had the power to actually give feedback and say okay do not give to these bidders because of this and that and that ...(intervenes). CHAIRPERSON: MS MEMELA: Ye s . A n d s t u ff l i k e t h a t a n d t h e n w e h a d t o a c t u a l l y c a n c e l and restart. CHAIRPERSON: Ye s , o k a y. I t h i n k s h e m i g h t a s k y o u a t s o m e s t a g e a b o u t t h a t , b u t s h e – M s H o f m e y r. A D V K AT E H O F M E Y R : Thank you. T h a n k y o u s o m u c h C h a i r. And then just in relation to the BAC, your role in the BAC in May of 2016, what was that? 20 MS MEMELA: I f I r e m e m b e r c o r r e c t l y, C h a i r I t h i n k I w a s t h e Chairperson of the BAC and I will explain, the – because I think the public would like to know what the role is in there. So, as I said, that like the BAC does not do adjudication. They do not re-evaluate what has already been re-evaluated b y t h e C F S T. T h e o n l y t h i n g t h a t t h e y a r e l o o k i n g a t a r e t h e e l e m e n t s Page 57 of 188 07 FEBRUARY 2020 – DAY 209 o f t h e P P P FA , t h e C o n s t i t u t i o n a n d a l l t h e l e g i s l a t i o n t h a t a r e surrounding this. Then like I mean if they are not happy with certain t h i n g s t h e n t h e y w i l l s a y o k a y, p l e a s e d o t h i s b e f o r e w e n o t e . B u t I w i l l tell you this Chair now ...(intervenes). CHAIRPERSON: MS MEMELA: So, they check compliance. They check compliance. If like I mean, there is like I mean for instance like CFST was not too restrictive in terms of t e c h n i c a l i t i e s a n d s t u ff l i k e t h a t a n d t h e n t h e y c h e c k t h a t o k a y t h e r e w a s f a i r n e s s , t h e r e w a s t r a n s p a r e n c y, t h e r e w a s c o m p e t i t i v e k i n d o f 10 process. So, like I mean, as I said before that like I mean the BAC n o t e s t h e s u b m i s s i o n f r o m S A AT. W h y ? B e c a u s e S A AT h a s g o t i t s o w n c h a p t e r i n t e r m s o f t h e procurement process because of the kind of commodities that they have t o b u y. So, like I mean, they unlike SAA that like would go to BAC m a y b e j u s t l i k e f o r a p p r o v a l , S A AT w i l l g o t o B A C f o r n o t i f i c a t i o n . B u t C h a i r l i k e I d o n o t k n o w m a y b e i f I w i l l g e t t h e e v i d e n c e l a t e r a n d s t u ff , but like we will see that even though I was the Chairperson, all the i t e m s t h a t w e r e c o m i n g f r o m S A AT I r e c u s e d m y s e l f . Although like t h e r e w a s a b s o l u t e l y n o t h i n g t h a t I c o u l d c h a n g e a n d s t u ff l i k e I m e a n , 20 then the BAC would not have any powers to change what has been put like I mean front by the CFST and Exco. CHAIRPERSON: O k a y. A D V K AT E H O F M E Y R : So, did you recuse yourself in relation to the components tender that was awarded in May 2016? MS MEMELA: I recused myself from components and then I remember Page 58 of 188 07 FEBRUARY 2020 – DAY 209 I had recused myself for logistics as well, I think we were also running the tyre tender as well. A D V K AT E H O F M E Y R : Thank you. And, I am jumping now ahead to t h e f i n a l t e n d e r, b e c a u s e t h a t i s w h e r e w e a r e g o i n g t o f o c u s s o m e o f t h e e v i d e n c e t o d a y. Yo u i n d i c a t e d t h a t y o u w e r e p a r t o f M a n a g e m e n t who had received the recommendation from the CFST in that process. Correct? MS MEMELA: Ye s , l i k e t h e r e c o m m e n d a t i o n i s m a d e b y C F S T b a s e d o n t h e i r e v a l u a t i o n a n d t h e r e s u l t s i n t h e C F S T. 10 A D V K AT E H O F M E Y R : And before that then went to the Board as you described it, did you support the decision taken by CFST in terms of the ranking of Air France first, JM Aviation, AAR second and Lufthansa third? MS MEMELA: Okay as I had mentioned Chair that the CFST I like I mean, I always make sure that like I mean they are, their decision is independent from me, they do not feel that I am actually controlling them to do anything and stuff like so. Lufthansa, they have first proposed for Lufthansa to be awarded, and although Lufthansa did not have the Supplier Development and commitment or maybe a mutual 20 j o i n t v e n t u r e w i t h a n y l o c a l c o m p a n y. They submitted that, and I did raise that to like I mean to the Project Manager that okay maybe we might have a problem here because remember the Supplier Development was part of the requirements of the tender but of course based on the preferred or like I m e a n s c o r i n g p o i n t s L u f t h a n s a w a s t h e h i g h e s t s c o r i n g b i d d e r. Page 59 of 188 07 FEBRUARY 2020 – DAY 209 R e m e m b e r t h e P P P FA s a y l i k e I m e a n t h e a w a r d o r t h e t e n d e r should be awarded to the highest scoring bidder and then like it gives you exceptions that like you could give it to the bidder that is like has scored the lowest but like you should be able to justify why you have d o n e t h a t l i k e a n d i t s h o u l d s t a n d i n a C o u r t o f L a w. S o , l i k e I m e a n when they propose for Lufthansa, they did say also like I mean Lufthansa was low-balling. Lufthansa was extremely cheap. C h a i r, Lufthansa as I have mentioned, like I mean, they were the previous s e r v i c e p r o v i d e r f o r c o m p o n e n t s o f S A AT a n d t h e y k n o w v e r y w e l l t h a t 10 t h e y w i l l n o t b e a b l e t o , l i k e I m e a n , w h a t d o y o u c a l l t h i s ? A ff o r d t h e components like with the amount that they put, like I mean, on their proposal. So, like, they were lowballing, but, like I mean, of course, l i k e t h o s e t h i n g s c a n a c t u a l l y, l i k e , b e p u t o n a w a t e r t i g h t c o n t r a c t t o ensure that, like, they are mitigated. So but – like I mean, when they proposed that – like, okay the Board should award, they highlighted the risk that they are picking up f r o m t h i s . A s m u c h a s t h e y a r e c h e a p , t h e r e m i g h t b e a r i s k l a t e r, t h a t , like I mean, maybe they will keep on coming back to us and ask for increase. Most multi-national companies, most of these big companies, 20 t h e y l i k e t o d o t h a t – c o m e i n a n d t h e n , l i k e , a s k f o r i n c r e a s e l a t e r. S o , like, it went to the Board and then the Board noticed that it did not go t o B A C f i r s t , l i k e , I t h i n k t h a t t h e y a p p l i e d t h e f a c t t h a t l i k e , o k a y, i t could go to BAC afterwards after the fact I was not there when, like, I mean, when it was tabled to the Board, but then, I did support the recommendation of Lufthansa. Page 60 of 188 07 FEBRUARY 2020 – DAY 209 T h e B o a r d a s k e d a g a i n l i k e a s t h e y h a v e t h e p o w e r t o s a y, g o back and rework and then like see if it will go to the BAC first before it c o m e s t o u s . S o t h a t ’s w h e n , l i k e I m e a n t h e C F S T r e a l i z e d t h a t , o k a y, I think they think, like I mean, the risk quite too high in terms of the price that like was put by Lufthansa. I am sure you will notice after the ruling of the court like when France took us to court, like I mean, Lufthansa just asked why they did not get the tender and they understood when we responded to them why they could not get the t e n d e r. S o l i k e , t h e y w e n t b a c k t o t h e b i d d e r s a n d s a i d , o k a y, p l e a s e 10 sharpen up your pencil and see if, like I mean, because Air France at that time was still a bit expensive. I think A.J. Walters was extremely expensive. They had already been disqualified maybe. I do not r e m e m b e r, b u t l i k e I m e a n , i t w a s A i r F r a n c e , L u f t h a n s a a n d A A R . S o , like, they were still a bit up and like they went down. And I want to state it on record, Chairperson, that, like I mean, the purpose of going out on this tender and the purpose of, like I mean, testing the market before this final one which was for five years was to ensure that we get as much saving as possible because remember the company had raised that the money that was charged by Air France was 20 extremely high and there was even a seventy million delta that no one c o u l d e x p l a i n w h y S A AT w a s p a y i n g s o m u c h , y o u k n o w ? So, like I mean, charging – like I mean, testing the market and going up and making sure that the CFST to go back was to make sure that we get value for money and much more cheaper than what we were paying Air France before. Page 61 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Ms Memela I think we might have been at cross purposes because the process that you have described now as I understand, it is the process where the bidders kept being approached a g a i n f o r t h e i r b e s t a n d f i n a l o ff e r s . I s t h a t r i g h t ? MS MEMELA: Ye s . A D V K AT E H O F M E Y R : What I had actually asked was whether you s u p p o r t e d t h e f i n a l r e c o m m e n d a t i o n t h a t w a s m a d e t o t h e S A AT B o a r d because you will recall, that was in May of 2016, and that was the recommendation that it be awarded to Air France and that second in the 10 running was JM/AAR and that third in the running was Lufthansa and the question was did you support that position? MS MEMELA: O k a y. L e t m e c o r r e c t y o u , K a t e , L u f t h a n s a w a s n o t t h e third in the running, Lufthansa was the first in the running. A D V K AT E H O F M E Y R : MS MEMELA: Well. Followed by – I am just talking in terms of the preferential, like I mean, oh, the ...(intervenes). CHAIRPERSON: MS MEMELA: The ranking. T h e r a n k i n g . Ye s , b u t I u n d e r s t a n d y o u r q u e s t i o n . Yo u are saying, did I support the recommendation to the Board like to award 20 Air France. A D V K AT E H O F M E Y R : MS MEMELA: Ye s , I s i g n e d f o r A i r F r a n c e . A D V K AT E H O F M E Y R : MS MEMELA: Ye s . Thank you. Ye a h . A D V K AT E H O F M E Y R : I would now like to move to the entity JM Page 62 of 188 07 FEBRUARY 2020 – DAY 209 Aviation and I understand from you when you were first introduced to t h a t e n t i t y. MS MEMELA: When was I first introduced? O k a y, C h a i r, I w a s n o t formally introduced because like I am trying to understand this question. I was not formally introduced to JM. Let me just like I mean put the brief background first like about JM. We had JM International, that has been our supplier as such since 1992 and there has been then all these workshops in terms of bringing in black owned suppliers and s t u ff . 10 So, like I mean, during the workshops, like that is when I got t o k n o w, I g o t t o m e e t s o m e o f t h e b l a c k o w n e d s u p p l i e r s a n d t h e instruction from the Board at that time was that procurement SAA, p r o c u r e m e n t S A AT, p r o c u r e m e n t A i r C h e f s , l i k e p e o p l e , l i k e I m e a n , w e r e t o l d t h a t y o u n e e d t o g o t o t h e P r o c u r e m e n t Te a m a n d r e g i s t e r your names down and then ask for maybe the list of tenders that are a b o u t t o g o o u t . Yo u k n o w ? So, like, they were also told that okay they are welcome to approach these multi-national companies and then like I mean they will b e g i v e n s u p p o r t f r o m S A A a s a w h o l e a n d S A AT a n d A i r C h e f s . 20 So, like I mean, I got to know – like one – some of the Directors of JM like from those workshops. A D V K AT E H O F M E Y R : And I understood from your statement that those workshops commenced in around 2015, is that right? MS MEMELA: They commenced around 2015. A D V K AT E H O F M E Y R : And who in particular did you meet in 2015 Page 63 of 188 07 FEBRUARY 2020 – DAY 209 from JM Aviation South Africa? MS MEMELA: I t h i n k I m a y h a v e m e t M r N d z e k u , Vu y o N d z e k u . A D V K AT E H O F M E Y R : MS MEMELA: She was not there. A D V K AT E H O F M E Y R : MS MEMELA: And had you met a Ms Sokhulu at that stage? At the Supplier Development workshop? Ye s , s h e w a s n o t t h e o n e t h a t l i k e I t h a t a t t e n d e d l i k e I mean her father attended it. Midrand. A D V K AT E H O F M E Y R : And where – was that – I have a recollection t h a t t h a t w a s i n t h e m i d d l e o f t h e y e a r. 10 Am I right in that or do you have a better ...(intervenes). MS MEMELA: I t h i n k i t w a s a r o u n d l i k e M a y, J u n e . A D V K AT E H O F M E Y R : And you say Mr Ndzeku attended that, but Ms Sokhulu did not? MS MEMELA: I do not remember if she was there, but I just remembered Mr Ndzeku was there. That is when we got to chat during this what – the workshops. A D V K AT E H O F M E Y R : MS MEMELA: Ye s . A D V K AT E H O F M E Y R : 20 MS MEMELA: Ye s . And was he ...(intervenes). A n d , I , o k a y. S o r r y, C h a i r. I c h a t t e d w i t h l o t s o f B E E suppliers during these workshops and in fact even outside the workshops that includes even Ms Sambo. Ms Sambo like when she testified here, like I mean, she did mention that, like I mean, I did a s s i s t h e r a n d l i k e I g a v e h e r c e r t a i n d o c u m e n t a t i o n a n d s t u ff , l i k e I m e a n , I t h i n k y o u w i l l g e t t o t h a t l a t e r, b u t , l i k e I m e a n , I d i d n o t o n l y Page 64 of 188 07 FEBRUARY 2020 – DAY 209 meet with Mr Ndzeku and like I mean assist JM like I mean, I have had that responsibility which was actually recorded on my job description. I do not know if you have my job description, like I mean, the S u p p l y D e v e l o p m e n t B E E i s p a r t o f m y j o b d e s c r i p t i o n , C h a i r. A n d t h e n it was also part of the Enterprise Supplier Development strategy that was started in 2014 and then there was an MOU between DTI and SAA to ensure that, like I mean, the transformational agenda is pushed hard. So, like I mean, just like because, I just want to give clarity before Counsel continues with her question that the role that I played 10 was to be as close as possible to these BEE suppliers as I said that t h e r e w e r e n o B E E s u p p l i e r s a t S A AT, l i k e I m e a n , i n o u r d a t a b a s e a n d you will notice that like I mean Mr Ndzeku was not part of the list of black-owned suppliers that was tabled to the Board to notify them that we are progressing in terms of bringing in black-owned suppliers. C h a i r, I m i g h t h a v e r u ff l e d a l o t o f f e a t h e r s b y d o i n g t h a t b e c a u s e f o r t h e f i r s t t i m e S A AT a s t h e S t a t e O w n e d C o m p a n y h a d s o m e b o d y w h o was pushing so hard for black people and then like that, there were certain questions, like not just from open water like from Ernest and Yo u n g a n d s t u ff l i k e , b e c a u s e w h e r e t h e y w o u l d j u s t a s k y o u t h a t l i k e 20 o k a y, d o y o u k n o w S i b o n g i l e S a m b o ? I s s h e y o u r c o u s i n o r s o m e t h i n g like that and I remember I lost it at that time, Chairperson because my understanding and the view in South Africa is that once you interact w i t h a b l a c k s u p p l i e r, b e i n g a b l a c k p e r s o n , a u t o m a t i c a l l y t h e r e i s f r a u d or corruption involved. So like, I had to deal with all those things and I even said Page 65 of 188 07 FEBRUARY 2020 – DAY 209 when I was actually listening to Ms Sambo that like if she had money she will actually have a JEV contract with AAR, not dump each other like I mean, on the five month contract before the last one, and then they warn on the final one. I will be sitting here again, Chairperson, defending myself against another black-owned supplier or maybe any other person saying; you were too close. Yo u f a v o u r e d t h e m a n d s t u ff . Yo u i n t e r a c t e d t o o m u c h . So that is the reality of the matter that when you support a black person, when you talk to them privately trying t o g u i d e t h e m a n d s t u ff l i k e , i t i s a s s u m e d t h a t , l i k e I m e a n , t h e r e i s 10 fraud involved or there is corruption. And when you look into this, C h a i r, l i k e I m e a n , I a m s o r r y, K a t e . I h a v e t o s t a t e t h i s o n r e c o r d . F o r instance, I did mention that there are lots of ever-green contracts at S A AT. S A AT i s a S t a t e O w n e d C o m p a n y. I t i s s u p p o s e d t o , l i k e I m e a n balance what they need from others when they run tender in terms of, l i k e I m e a n , t h e B E E s t a t u s a n d s t u ff l i k e . T h e y a l s o s h o u l d e x e r c i s e s a y i n g , y o u k n o w. So, and, like, that was not done. As long as the contract is between the white suppliers, I am not playing a race card, C h a i r, b u t I a m j u s t s t a t i n g t h e f a c t s t h a t I m e t a t S A AT w h e n I t o o k over this position. 20 But like I mean when I gave instructions to ensure that like – for the supplier to get the tender or business, they have to meet these requirements. The Supplier Development requirements. I went as far as touring Europe, US and everywhere, letting them know about the laws of this country because nobody has ever done that. These c o m p a n i e s l i k e – h a v e b e e n a t S A AT l i k e I m e a n h a v i n g c o n t r a c t s s i n c e Page 66 of 188 07 FEBRUARY 2020 – DAY 209 1999. Nobody questioned that. Nobody questioned the fact that the nip obligation was not adhered to. Of course, it is controlled and managed by DTI, but, like I mean, somebody should have, like I mean – maybe the accounting a u t h o r i t y o r t h e a c c o u n t i n g o ff i c e r b e i n g t h e C E O . had that role. So, like I mean, I Like I mean, also protecting the CEO, protecting the B o a r d , l i k e i n s a y i n g , “ O k a y, w e p u s h h a r d . ” S o , l i k e I m e a n w h e n I listened to Ms Sambo – like I mean saying all those things, I said you k n o w, i t i s a p i t y t h a t I c a n n o t m e n t i o n t h e B E E s u p p l i e r s – o t h e r b y 10 name that I have given like I mean the same help – like given the same help as JM or Ms Sambo, or anybody else, you know – like for instance, like, Air France had Kwane Capital as their black-owned company and, like I mean, I was pushing also for them because they only had the MOU between Kwane Capital being the black owned company in South Africa and then Air France. If you noticed, Kate, if you did not jump there or maybe you will go back, you will notice that when Air France bided in 2015, they bided with Kwane Capital, but like I mean whatever they had promised in terms of Supplier Development, they never delivered. 20 There are certain letters that I wrote, pushing Air France and making sure that t h e y a d h e r e d t o w h a t t h e y h a d c o n f i r m e d w i t h t h e l o c a l s u p p l i e r. N o b o d y, C h a i r p e r s o n , h a s g o n e t h r o u g h m y e - m a i l s a n d h a s g o n e through my laptop and actually picked up all those things that I had raised. T h e f o c u s i s o n l y o n J M a n d l i k e I m e a n , C h a i r, s o r r y. L i k e I Page 67 of 188 07 FEBRUARY 2020 – DAY 209 mean, the open water report, I did say I will explain this. The open water report – like I mean it – the open water came in around 2015 and t h e y c a m e f o r t h e m a i n p u r p o s e . T h e f i r s t o n e w a s t h e f a c t t h a t S A AT was losing assets left right and centre. They would buy spares worth millions of Rands and then later on the spares have been lost and then would have to buy again. h a p p e n i n g , y o u k n o w. There was some sort of a syndicate That was the first one, and the fact that there w a s t h e s c r a p t h a t b e l o n g e d t o S A AT b u t t h e y s t i l l h a d v a l u e a n d l i k e I mean somebody sold the scrap for zero value instead of hundred and 10 seventy-five million. So I was actually mentioning all those things when I talked to the team of investigators that: “Guys I feel that you are being selective in terms of who you focus on, where the focus is on, where is actually names and mentions white people that have made sure l i k e I m e a n t h a t S A AT l o s e s a w h o l e l o t o f m o n e y through assets, through everything”. Nobody is looking back there. CHAIRPERSON: 20 Ye s . O k a y. Ms Memela, the Commission obviously will not finish its job if it is to look at everything. In the process it has to prioritise and in prioritising there may be people who will not agree with its decision to prioritise that, or that, but what you and everyone else have been invited to do since the Commission started is to give the Commission any information you have which you think may relate to matters that fall within its terms of reference. Page 68 of 188 07 FEBRUARY 2020 – DAY 209 So, some people have done so and they might have focused on certain contracts, and then maybe you have not given the Commission information focusing on the contracts on which you wanted to – you would have liked to also look at. S o , e v e n n o w, f r e e i f l a t e r o n y o u w o u l d l i k e t o s e n d d o c u m e n t a t i o n , s t a t e m e n t t o t h e C o m m i s s i o n t o s a y, h e r e a r e o t h e r t h i n g s t h a t f a l l u n d e r t h e C o m m i s s i o n ’s t e r m s o f reference that you might not be aware of and the Commission can look at that. Of course, it is public knowledge that I have said that the 10 Commission will probably have to secure another wing of its scope if it is to finish its work. But I have said that there may be matters are brought to my attention and I might say that one seems to be important. But those that might not looked into by the Commission would have to b e l o o k e d i n t o b y s o m e o t h e r a g e n c y. part. So, I am just explaining that I suggest that what we should do is, answer the questions that Ms Hofmeyr puts to you. M S M E M E L A : O k a y. CHAIRPERSON: If you feel that you need to add some information in o r d e r t o e n s u r e t h a t y o u g i v e – y o u d o j u s t i c e t o y o u r a n s w e r, t h a t i s 20 fine. M S M E M E L A : O k a y. CHAIRPERSON: But I will be quite happy when you are done to give you a chance if there is something else ...(intervenes). MS MEMELA: Alright. CHAIRPERSON: That was not raised by Ms Hofmeyr with you. Page 69 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : O k a y. CHAIRPERSON: Which you think you would like to deal with in order for there to be fairness in terms of your own role and so on. M S M E M E L A : Ye s . CHAIRPERSON: Is that alright? MS MEMELA: That is alright. CHAIRPERSON: Okay 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. So, Ms Memela just to c l a r i f y, w h e n y o u f i r s t m e t M r N d z e k u a t t h a t w o r k s h o p i n M i d r a n d i n 10 May June 2015, was he introduced to you as a JM Aviation South Africa representative? MS MEMELA: Oh, he I – he introduced himself as an individual not as JM. I am not sure when JM was registered but I do know that ...(intervenes). A D V K AT E H O F M E Y R : I t h i n k i t w a s a b o u t O c t o b e r 2 0 1 5 . M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : I s t h a t a c c o r d w i t h y o u r r e c o l l e c t i o n ? MS MEMELA: Ye s . That is ja. so he introduced himself as himself ...(intervenes). 20 A D V K AT E H O F M E Y R : O h . MS MEMELA: Not as the Director of – remember the only JM that was – that we were aware of was JM International which ...(intervenes). A D V K AT E H O F M E Y R : But by October of 2015 when they joined the supplier database, were you aware of his link then to JM Aviation? M S M E M E L A : T h e y d i d n o t j o i n t h e d a t a b a s e i n O c t o b e r. Page 70 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : 2 0 1 5 ? MS MEMELA: 2015. Can you ...(intervenes). A D V K AT E H O F M E Y R : M a y b e w e c a n r e t u r n t o i t . M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : I f y o u w a n t t o g e t t h e s p e c i f i c d a t e t h a t i s t h e ...(intervenes). M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : R e c o l l e c t e d d a t e t h a t I h a v e b u t I j u s t w a n t t o know at what point in time you made the association between Mr 10 Ndzeku and JM Aviation South Africa? Would that have still been within 2015? MS MEMELA: I think it was somewhere in 2016. I do not remember e x a c t l y. J a . A D V K AT E H O F M E Y R : And Ms Sokhulu, when did you make the association between her and JM Aviation? MS MEMELA: Ms Sokhulu came in I think for that negotiations for the G P U ’s . W h e n w a s i t ? W a s i t o n 2 0 1 6 , I t h i n k ? A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Ja. 20 A D V K AT E H O F M E Y R : Ye s . A n d d i d y o u k n o w t h a t t h e y w e r e f a t h e r and daughter? MS MEMELA: I think it was introduced sometime later when there was the negotiations of the contract Chair of JM and AAR. A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Ja. Page 71 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : And did you know that Mr Ndzeku was a Director of Swissport South Africa when you met him in 2015? MS MEMELA: Of course, when we talked because I think I cannot remember everything that we chatted about Chair but I do know he did introduce himself saying okay he does have a lot of aviation experience through Swissport and all that. A D V K AT E H O F M E Y R : I would then like to move to the property p u r c h a s e t h a t y o u m a d e i n – f o r a h o u s e i n B e d f o r d v i e w. M s M e m e l a during your involvement in these two contracts, that is the one 10 i n v o l v i n g t h e s a l e o f t h e G P U ’s a n d t h e o n e i n v o l v i n g t h e c o m p o n e n t s support services that was awarded to the joint venture of JM Aviation and AAR. MS MEMELA: H’mm. A D V K AT E H O F M E Y R : T h e r e w a s a n a m o u n t o f 2 . 5 m i l l i o n R a n d p a i d towards a house you were buying in Bedfordview by JM Aviation. Is that correct? MS MEMELA: The deposit was 1.5 so the amount was the amount of the land owed. A D V K AT E H O F M E Y R : S o r r y, I d o n o t u n d e r s t a n d t h a t . 20 MS MEMELA: I am saying the deposit of the house was 1.5 the amount of the land was 2.5 that was bought by Mr Ndzeku. A D V K AT E H O F M E Y R : N o , n o , s o r r y. M y q u e s t i o n i s w h e n y o u b o u g h t your Bedfordview house in 2016, JM Aviation paid 2.5 million Rand towards the purchase of that house. Is that correct? MS MEMELA: That is correct but it was not JM Aviation, it was Mr Page 72 of 188 07 FEBRUARY 2020 – DAY 209 Ndzeku. It may have come from JM Aviation – I explained that already t o t h e I n v e s t i g a t i n g Te a m a n d I g a v e t h e w h a t t h e p r o v e f o r t h a t . A D V K AT E H O F M E Y R : Well let us go through that if we can. I understand your account of it is at page 21 of your statement that is in DD25A. MS MEMELA: Ja. A D V K AT E H O F M E Y R : A n d y o u s t a r t t h e r e t o d e a l w i t h t h e b a c k g r o u n d to this payment of 2.5 million. M S M E M E L A : Ye s . 10 A D V K AT E H O F M E Y R : A n d y o u i n d i c a t e t h a t i t i n v o l v e d a s a l e b y y o u r mother of two properties. Is that correct? M S M E M E L A : 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 : W h a t w e r e t h o s e t w o p r o p e r t i e s t h a t s h e s o l d ? M S M E M E L A : O k a y, i t w a s t h e l a n d i n E a s t e r n C a p e . C h a i r i t w a s t h e land in Eastern Cape at Mpindweni and the other one it was a land in Mbotyi. So the one the amount that was paid for the purchase it was actually merged to be paid for the purchase in Eastern Cape for Cove Ridge and then because it took longer to happen and then it was redirected to the amount of the house in Bedfordview when the bank 20 approved a certain percentage and then I needed a deposit. CHAIRPERSON: M a y b e M s H o f m e y r, m a y b e w e m u s t g i v e y o u a chance to explain how it came about that you – that payment was made whether by JM or by Mr Ndzeku. M S M E M E L A : Ye s . CHAIRPERSON: I know you have given this explanation here but the Page 73 of 188 07 FEBRUARY 2020 – DAY 209 people who are listening have not read this and there is something that h a s c o m e u p p u b l i c l y. Yo u m i g h t w i s h t o j u s t e x p l a i n t o s a y t h i s i s h o w Mr Ndzeku or JM came to pay for my house. These are the circumstances. Then Ms Hofmeyr will ask you the questions. MS MEMELA: O k a y c h a i r. In 2015 I was purchasing a property in Cove Ridge in Eastern Cape and it took longer to be finalised and then I started looking for a property to live in here in Johannesburg as I was living in Alberton. So, at the time when it was finalised before it was finalised the bond from Standard Bank, they approved a certain 10 percentage. I remember at that time they were quite strict with a p p r o v a l o f 1 0 0 % b o n d a n d s t u ff . So, the deposit was needed. One of some of the deposit was c o m i n g f r o m m y h u s b a n d ’s p e n s i o n f u n d a n d s o m e o f t h e d e p o s i t w a s coming from the amount that was coming from the land purchase of my m o t h e r. And I did ask also that the fact that it was coming from JM what account it was coming from Mr Ndzeku because the deal was b e t w e e n M r N d z e k u a n d m y m o t h e r, n o t J M . J a . C H A I R P E R S O N : M s H o f m e y r. A D V K AT E H O F M E Y R : S o , l e t u s j u s t u n p a c k t h a t a b i t i f w e m a y. Yo u 20 indicated that there were two properties that your mother sold to Mr Ndzeku. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : L o c a t e d i n t h e E a s t e r n C a p e . I s t h a t c o r r e c t ? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : H o w i s s h e i n t r o d u c e d t o M r N d z e k u ? Page 74 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Okay my mom came for the eye operation in Johannesburg in 2015 and I told her about the intention to buy the p r o p e r t y i n E a s t e r n C a p e a n d s t u ff l i k e t h a t . A n d s h e s h o w e d i n t e r e s t that okay I have this kind of – part of lands and she had also land in Vu s i a n d M o u n t F r e r e a t s t u ff . S o , s h e s a i d s h e w o u l d s e l l s o m e o f t h e properties. At that time there was quite an interest like when you talk to some of the BEE partners, there were some of the BEE supplier who were actually interested in buying certain properties in Eastern Cape to 10 develop and do other things, do other projects. So, I remember most of them they bought from Mbotyi and the one in Mpindweni is actually next t o U m z i m v u b u a n d i t w a s f r o m m y m o t h e r ’s p a r e n t s . A D V K AT E H O F M E Y R : S o , d i d y o u p u t h e r i n t o u c h w i t h M r N d z e k u ? MS MEMELA: Ye s . I actually said because Ndzeku from our discussions when we chat, he did explain that he was looking for the property in Eastern Cape and everybody is buying and he has so many projects to run in the coming- ja. So I introduced him. A D V K AT E H O F M E Y R : A n d w h a t d i d y o u u n d e r s t a n d h e w a n t e d t o d o with the property? 20 MS MEMELA: At that time, he did not explain what he wanted to do. A D V K AT E H O F M E Y R : A n d w h a t t y p e o f p r o p e r t y i s i t MS MEMELA: It is the land ...(intervenes). A D V K AT E H O F M E Y R : S o r r y, t h e t w o p r o p e r t i e s ? M S M E M E L A : Ye s , t h e y a r e t h e l a n d . W h e r e m y m o t h e r ’s p a r e n t s u s e d to have the land in Mpindweni and then they moved to another and then Page 75 of 188 07 FEBRUARY 2020 – DAY 209 t h e y l e f t t h a t o n e u n d e r h e r. A D V K AT E H O F M E Y R : I s i t – c a n i t b e u s e d f o r b u s i n e s s p u r p o s e s o r not? MS MEMELA: It can be used for business purposes because it is next t o t h e r i v e r a n d i t i s n e x t t o t h e f i e l d C h a i r. A D V K AT E H O F M E Y R : S o , i s i t z o n e d f o r b u s i n e s s p u r p o s e s ? M S M E M E L A : Ye s , I t h i n k h i s i n t e r e s t w a s f o r t h a t . A n d C h a i r, j u s t t o a d d , w h e n I w a s a s k e d b y t h e I n v e s t i g a t i n g Te a m a r o u n d t h i s f r o m Open Water report, they had said my property was like the deposit was 10 coming from the increase from my salary and I had corrected that. Also, Ms Sambo said the same thing that it was an increase of my salary also Mr Human. So, I explained to them these are the facts and I think this is the part like I said I do not understand the reference or maybe the link between purchase of my property versus the tenders that were running at that time. A D V K AT E H O F M E Y R : When Open Waters was probing with you the salary increase, did you say to them, no, the money for my Bedfordview house did not come from the salary increase. It came from the deposit from Mr Ndzeku. 20 MS MEMELA: O k a y. Chairperson let me give clarity to this. Open W a t e r n e v e r g a v e m e a n o p p o r t u n i t y t o s t a t e m y s i d e o f t h e s t o r y. A t the time when they started checking this, they actually take – they took everything from my laptop and then everything from whoever that they listened to instead of coming to me and asking me questions because I would have clarified at that point where my deposit came from. Page 76 of 188 07 FEBRUARY 2020 – DAY 209 But they have written what they through was happening and it is a result of this Chair certain people nearly got fired because from HR t h e r e c o m m e n d a t i o n f o r m y s a l a r y w a s m a d e f r o m H R a n d s t u ff l i k e . So, I want to put it on record that Open Water never asked me about l i k e w i t h t h e p u r c h a s e o f m y p r o p e r t y. I o n l y f i n d o u t w h e n t h e t e a m – t h e Z o n d o Te a m s t a r t e d a s k i n g q u e s t i o n s . A D V K AT E H O F M E Y R : But they did engage you about the salary increase. MS MEMELA: They did not engage about the salary increase. I only 10 heard about it when I think, Arson Malola-Phiri, was the Acting C h a i r p e r s o n – A c t i n g C E O o f S A AT w a n t e d t o f i n d o u t h o w i s m y s a l a r y b e i n g d i s c u s s e d l i k e i t i s r e l a t i n g t o t h e t e n d e r a n d s t u ff . A n d h e s a i d s o m e o f t h e q u e s t i o n s t h a t w e r e c o m i n g f r o m t h e C o m m i s s i o n ’s Te a m was that maybe it was ratification payment from top Management to me for a job well done. linking to that. I am not sure what job well done but they were Open Water never talked to me about my salary increase. They talked to everybody else except me. A D V K AT E H O F M E Y R : A n d w e w e r e a t t h e p o i n t w h e r e y o u i n d i c a t e d you had introduced your mother to Mr Ndzeku. 20 MS MEMELA: Ja. A D V K AT E H O F M E Y R : He wanted to buy two properties for her for business purposes. Is that correct? MS MEMELA: Okay I am not – not like I am unclear I think he will be the right person to actually answer that question. A D V K AT E H O F M E Y R : Indeed. No, I am interested at the moment Page 77 of 188 07 FEBRUARY 2020 – DAY 209 a b o u t y o u r u n d e r s t a n d i n g o f h i s i n t e n t i o n s f o r t h e p r o p e r t y. M S M E M E L A : O k a y. I d i d n o t u n d e r s t a n d a t t h a t t i m e s o I t h i n k h e w i l l be a correct person to actually answer that one. A D V K AT E H O F M E Y R : And do you know when he concluded the purchase with your mother? MS MEMELA: I think it was concluded between 2015 and 2016. I am not sure about the year but I think it was concluded around there. A D V K AT E H O F M E Y R : A n d d o y o u k n o w w h a t t h e s a l e p r i c e w a s ? MS MEMELA: 10 For Mpindweni it was 2.5, I think. These documents b e l o n g t o m y m o t h e r, n o t m e . S o , I a m a c t u a l l y t a l k i n g o n h e r b e h a l f . A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Ja. So, and then Mbotyi it was I think 500 000. A D V K AT E H O F M E Y R : Are you sure that both transactions went through? M S M E M E L A : I a m n o t s u r e r i g h t n o w. T h a t i s o n e o f t h e t h i n g s t h a t I was trying to figure out but those were the questions that were not asked during the investigating meeting. So, I think Mr Ndzeku is the right person to actually answer that. A D V K AT E H O F M E Y R : W h y d o y o u s a y t h a t . . . ( i n t e r v e n e s ) . 20 MS MEMELA: But I know that the Mpindweni one went through because he paid for that one. A D V K AT E H O F M E Y R : Why do you say those questions were not asked during the meetings with the Commission? M S M E M E L A : N o , I a m s a y i n g t h e q u e s t i o n y o u a r e a s k i n g n o w, i f I a m a w a r e t h a t i t – t h e y w e n t t h r o u g h . Ye s . Page 78 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Do you recall being asked to provide the Commission with all the supporting documents for this transaction? MS MEMELA: I was not asked to submit the supporting documents. I was asked to explain and then Mr Kirtland Chair said, are you sure, do y o u h a v e t h e t i t l e d e e d ? D o y o u h a v e o ff e r t o p u r c h a s e ? D o y o u h a v e this and that? So, I responded to that. So, this is I think where I had said I would appreciate if the team sends me specific written questions so that I am able to answer properly and then I attach exactly what is required. 10 A D V K AT E H O F M E Y R : Would you like me to take you to the e-mail where it was specifically requested that you provide the supporting documents? M S M E M E L A : Yo u c a n t a k e m e t o t h a t e - m a i l . A D V K AT E H O F M E Y R : A n d i t i s w i t h r e f e r e n c e M s S a m b o t o w h e r e y o u say in your own ...(intervenes). CHAIRPERSON: Ms Memela. A D V K AT E H O F M E Y R : Oh, apologies Ms Memela. Where you say in your e-mail that you have – there are papers to support this. I first want to give you that reference. So, you will find it at page 21. 20 M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : O f E x h i b i t D D 2 5 A a n d i t i s a t p a r a g r a p h 4 8 . I f you look at paragraph 48 just before the bottom of the page. MS MEMELA: Ja. A D V K AT E H O F M E Y R : Yo u h a v e b e e n t a l k i n g t h e r e a b o u t t h i s v e r y transaction. Right? And when you get to paragraph 48, you are talking Page 79 of 188 07 FEBRUARY 2020 – DAY 209 about the purchase agreement to sell the two properties and then you talk about Cove Ridge. And then you see in the second last line you have a sentence “there are papers to support this”. Do you see that? MS MEMELA: I see that. I thought you were directing me to the e-mail that I received. A D V K AT E H O F M E Y R : N o , I w a n t t o l o c a t e – b e c a u s e t h e e - m a i l r e f e r s specifically to this sentence in this paragraph of your statement. M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : S o t h a t i s w h y I w a n t e d y o u t o h a v e t h e b e n e f i t 10 of seeing this sentence. M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : I n t h i s p a r a g r a p h o f y o u r s t a t e m e n t . C h a i r f o r this purpose I need to take Ms Memela to a correspondence bundle which has not been handed in yet. I do note that we are close to the tea break. I a m h a p p y t o d o i t n o w. It just involves handing out documents. Otherwise we can do it when we return from the – I beg your pardon, lunch break, C H A I R P E R S O N : Ye s . W h a t i s c o n v e n i e n t t o y o u ? I s i t s o m e t h i n g t h a t is short and ...(intervenes)? 20 A D V K AT E H O F M E Y R : I t i s f a i r l y s h o r t C h a i r. CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : S o , w e c a n h a n d i t u p . CHAIRPERSON: Let us do it ja. A D V K AT E H O F M E Y R : L e t u s d o t h a t . CHAIRPERSON: Let us do it. Page 80 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : I f I m a y b e g l e a v e t h e n t o j u s t t h e n h a n d u p t o yourself Chair a correspondence bundle that has been prepared and to Ms Memela. CHAIRPERSON: H’mm. This has not been admitted as yet, right. A D V K AT E H O F M E Y R : I t h a s n o t C h a i r. CHAIRPERSON: It has not yet. A D V K AT E H O F M E Y R : It was really a correspondence bundle put together in anticipation of Ms Memela possibly making application t o d a y n o t t o a p p e a r. 10 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 i t w a s o n l y c o m p i l e d o v e r n i g h t . B u t i f w e can enter it as ...(intervenes). C H A I R P E R S O N : W e l l t h e r e a r e t w o w a y s o f d e a l i n g w i t h i t . F o r n o w, you just want to refer to one e-mail. A D V K AT E H O F M E Y R : I d o i n d e e d . CHAIRPERSON: Do you contemplate that you will be referring to this correspondence file much later? A D V K AT E H O F M E Y R : N o , n o t a t a l l . U n l e s s s o m e t h i n g a r i s e s i n M s M e m e l a ’s t e s t i m o n y t h a t i s a t o d d s . 20 CHAIRPERSON: Because what we could is maybe just take out. A D V K AT E H O F M E Y R : Ye s . CHAIRPERSON: Make a copy of the e-mail and then we add it to her file. A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: And then we – for purpose of asking questions we Page 81 of 188 07 FEBRUARY 2020 – DAY 209 relate to that without admitting this whole file. 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: Ja. A D V K AT E H O F M E Y R : I a m i n d e b t e d t o y o u f o r t h a t . W h a t I w i l l d o f o r present purposes is just if I may direct you to the pagination in the file. 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 : B u t t h e n w e w i l l e x t r a c t 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 : A n d i n s o f a r a s t h e p a g i n a t i o n i s c o n c e r n e d , I 10 m u s t j u s t b e g i n w i t h a n a p o l o g y. T h i s w a s o r i g i n a l l y p u t t o g e t h e r a s a file of more than 800 pages but it included an enormous amount of repetition. So overnight in preparation for today I had stripped out the repetition but in consequence of the is that the pagination does not run b e a u t i f u l l y f r o m 1 t o w h a t e v e r. I t r e t a i n s t h e o l d p a g i n a t i o n b u t y o u w i l l s t i l l – i t s t i l l m o v e s n u m e r i c a l l y. W e w i l l j u s t h a v e t o f i n d t h e p a g e I a m l o o k i n g f o r. I t i s p a g e 3 9 8 o f t h e c o r r e s p o n d e n c e b u n d l e . CHAIRPERSON: 398. A D V K AT E H O F M E Y R : 3 9 8 . C H A I R P E R S O N : O k a y. 20 A D V K AT E H O F M E Y R : So if you page it will not move beautifully in n u m e r i c a l o r d e r b u t i t d o e s m o v e p r o g r e s s i v e l y. CHAIRPERSON: What I was saying is maybe we should take it out here, give it a page number for this one. A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: So when you refer to it ...(intervenes). Page 82 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Ye s . C H A I R P E R S O N : Yo u r e f e r t o t h e p a g e n u m b e r a s . . . ( i n t e r v e n e s ) . A D V K AT E H O F M E Y R : A s w e h a v e e x t r a c t e 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 : Ye s . CHAIRPERSON: Ja so I think that might be ...(intervenes). A D V K AT E H O F M E Y R : T h a t m i g h t b e p r e f e r a b l e . CHAIRPERSON: That might be preferable. A D V K AT E H O F M E Y R : C h a i r t h e n I a m g o i n g t o a s k i f y o u w o u l d n o t 10 mind taking out from 398 all the way to 422 because this is an e-mail that has an attachment to it. 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 : And we are going to need to look at the attachment. CHAIRPERSON: Should it not be 423? I see that the second ...(intervenes). A D V K AT E H O F M E Y R : S o r r y, 4 4 2 i f I s a i d t h a t i n c o r r e c t l y. CHAIRPERSON: Oh 442. A D V K AT E H O F M E Y R : Ye s , i t i s t h e l a s t p a g e o f a d r a f t a ff i d a v i t . 20 CHAIRPERSON: But at this stage you just want to refer to that e-mail o n l y. A D V K AT E H O F M E Y R : document. And I will take you to one page in attached So, Chair for now my proposal is let us work with the p a g i n a t i o n i n r e d a t t h e t o p i f w e m a y. CHAIRPERSON: H’mm. Page 83 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Then I will indicate how that pagination changes when we put it into the file so that the record will be able to reflect that change. C H A I R P E R S O N : B u t w e p u t i t a t t h e b a c k o f M s M e m e l a ’s b u n d l e . A D V K AT E H O F M E Y R : I n d e e d . I s u g g e s t a t t h e b a c k o f D D 2 5 B . MS MEMELA: So where are we now? CHAIRPERSON: Oh, at the end of DD25B? A D V K AT E H O F M E Y R : B , y e s . C H A I R P E R S O N : O h o k a y. 10 A D V K AT E H O F M E Y R : Because that is the end of the additional documents. CHAIRPERSON: I am sorry Ms Memela we have left you out of this discussion. I think somebody will help you afterwards. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : I n d e e d . W e w i l l a r r a n g e M s M e m e l a ’s f i l e . CHAIRPERSON: Ja. ADV K AT E HOFMEYR: For n o w, she can leave it in the correspondence bundle. CHAIRPERSON: Ja. Sorry we did not tell you. 20 A D V K AT E H O F M E Y R : A p o l o g i e s . CHAIRPERSON: Okay so we go to the end of that bundle. 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 : Yo u s e e w h a t I w a n t e d u s t o d o i s t h a t i f f o r n o w y o u are only going to refer to that e-mail. A D V K AT E H O F M E Y R : H ’ m m . Page 84 of 188 07 FEBRUARY 2020 – DAY 209 C H A I R P E R S O N : W e m a y j u s t p a g i n a t e t h a t e - m a i l o n l y. A D V K AT E H O F M E Y R : Ye s . CHAIRPERSON: Sequentially with this. A D V K AT E H O F M E Y R : Ye s . CHAIRPERSON: Then you can do the rest of the pagination during the l u n c h b r e a k o r w h a t e v e r. A D V K AT E H O F M E Y R : W e l l w h y d o w e n o t d o t h a 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 : 10 I can refer to what follows but we will do pagination without having to go there in the lunchbreak. 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 h i n k t h a t m a k e s e m i n e n c e s e n s 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 : I f I m 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 : So, the current bundle DD25B ends on page 670 as I have it. 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 , w e w o u l d p a g i n a t e t h i s f r o m 6 7 1 . 20 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 : Ms Memela this is an e-mail sent by the C o m m i s s i o n ’s i n v e s t i g a t o r M r K i r t l a n d t o y o u r s e l f . I s t h a t c o r r e c t ? M S M E M E L A : O k a y, w h i c h o n e n o w . . . ( i n t e r v e n e s ) . CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : S o r r y s o , a t t h e t o p r i g h t - h a n d c o r n e r. Page 85 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: H’mm. A D V K AT E H O F M E Y R : The red paginate page is 398. Do you have that? MS MEMELA: 398 ja. A D V K AT E H O F M E Y R : Ye s . D o y o u c o n f i r m t h a t i t i s a n e - m a i l f r o m Mr Kirtland to yourself? MS MEMELA: It is an e-mail coming from Mr Kirtland to myself on the 1 4 t h o f J a n u a r y. A D V K AT E H O F M E Y R : 10 Thank you. Chair just to give a little bit of background to the chronology that precedes this. It is in the correspondence. We can go there if any aspect of it is disputed by Ms Memela. But in the interest of time I just propose to summarise it so that this e-mail can be placed in context. There had been engagements with Ms Memela at the end of l a s t y e a r i n a m e e t i n g w i t h t h e L e g a l Te a m a n d t h e i n v e s t i g a t o r s a n d there was a follow up from January and later in December about an a ff i d a v i t t h a t s h e w a s g o i n g t o p r o v i d e t o t h e C o m m i s s i o n . What happens around this time is Ms Memela had put in an e-mail to the Commission her account of the topics. 20 MS MEMELA: H’mm. A D V K AT E H O F M E Y R : And Mr Kirtland was following up about c o n v e r t i n g t h a t a c c o u n t i n t h e e - m a i l t o a n a ff i d a v i t . And what Mr K i r t l a n d h a d d o n e b y t h i s s t a g e i s a c t u a l l y p l a c e d i t i n t o a n a ff i d a v i t f o r m a t f o r M s M e m e l a a n d h e h a d g o n e t h r o u g h t h e a ff i d a v i t a n d indicated to her specific questions to follow up from the broad account Page 86 of 188 07 FEBRUARY 2020 – DAY 209 that she had given. And so, what is detailed in this e-mail is precisely that. He indicates in the second paragraph that Ms Memela had requested to provide – that we provide her with a standard template of a n a ff i d a v i t t o u s e b y t h e C o m m i s s i o n a n d h i g h l i g h t t h e q u e s t i o n s t h a t she – we still wanted her to address. MS MEMELA: H’mm. A D V K AT E H O F M E Y R : A n d t h e n s h e s a i d I w i l l j u s t c o p y a n d p a s t e t o t h e a ff i d a v i t . And what Mr Kirtland was explaining was that was precisely what he had done the previous week. 10 And you will see the attachment is first the summons, a copy of the summons that was sent a s a c o u r t e s y t o M s M e m e l a . A n d t h e n t h e a ff i d a v i t t h a t h a d b e e n s e n t to Ms Memela from page 424. And Chair if you just scroll into that a ff i d a v i t t o p a g e 4 3 7 . 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 : Yo u w i l l s e e p a r a g r a p h 5 2 a t t h a t p a g e i s basically a replica of paragraph 48 in her current statement before the Commission. CHAIRPERSON: H’mm. A D V K AT E H O F M E Y R : A n d y o u w i l l s e e f o u r l i n e s f r o m t h e b o t t o m . 20 CHAIRPERSON: H’mm. A D V K AT E H O F M E Y R : I t s a y s , “ t h e r e a r e p a p e r s t o s u p p o r t t h i s ” . T h i s is the exact same paragraph we were looking at in her statement. M S M E M E L A : O h o k a y, I t h o u g h t y o u w e r e g o i n g t o s h o w u s t h e e - m a i l that I said I will send the documentation. B u t i t i s o k a y C h a i r, I a m sure there is another e-mail where I had written to Mr Kirtland saying – Page 87 of 188 07 FEBRUARY 2020 – DAY 209 b e c a u s e h e h a d i n d i c a t e d t h a t h e h a d s e n t m e a d r a f t a ff i d a v i t w i t h t h e comments and said ...(intervenes). CHAIRPERSON: Ja no, no, that is fine. Just hang on. M S M E M E L A : Ye s j a . CHAIRPERSON: Let her finish. M S M E M E L A : O k a y. CHAIRPERSON: And then when you have a chance then you can respond. M S M E M E L A : O k a y. 10 CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : Ye s . Ms Memela we are going through this exercise because my questions began with a query about your knowledge of the sale agreements. And I had said to you that we had previously requested that you provide us with those agreements. MS MEMELA: Ja. A D V K AT E H O F M E Y R : A n d 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 , no, we had not made that request. And that is why I am moving to this d o c u m e n t t o s h o w y o u w h e r e w e m a d e t h a t r e q u e s t p r e v i o u s l y. M S M E M E L A : O k a y f r o m t h e a ff i d a v i t . 20 A D V K AT E H O F M E Y R : Ye s . M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : S o , i n t h e a ff i d a v i t a t w h a t i s p a r a g r a p h 5 2 o f t h e a ff i d a v i t i n p a g e 4 3 7 y o u w i l l s e e a p a r a g r a p h b e g i n n i n g , “ m y mother then entered into a purchase agreement”. Do you see that? MS MEMELA: Ja. Page 88 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : A n d d o y o u s e e f u r t h e r d o w n i n t h a t p a r a g r a p h there is the sentence four lines from the bottom starting at it end that says, “there are papers to support this”. Do you see that? MS MEMELA: Ja. A D V K AT E H O F M E Y R : And do you see the comment bubble on the right-hand side of that page from Mr Kirtland saying, please attach all the papers and correspondence in this regard? M S M E M E L A : I a m s e e i n g i t n o w C h a i r. B u t a s I s a i d b u t y o u s a i d I w i l l a n s w e r l a t e r. B u t a s I s a i d . . . ( i n t e r v e n e s ) . 10 CHAIRPERSON: Ye s , n o w t h a t s h e h a s a s k e d y o u t h e q u e s t i o n y o u can deal with it. Ja. M S M E M E L A : O k a y. Ye s . I i n d i c a t e d t o M r K i r t l a n d t h a t I w a s u s i n g m y p h o n e a n d t h a t t h e c o m m e n t s w e r e n o t a p p e a r i n g a n d s t u ff . S o , I could not see the comments on the side and then he had to resend the w o r d a n d t h e n n o t w i t h t h i s – b e c a u s e I s a i d o k a y, I a m u s i n g t h e p h o n e so it does not have that option for me to actually check the comments that he have made. So, I have nothing against submitting the documentation as promised. I can still submit that from my side. So, I did not maybe keep them ...(intervenes). 20 C H A I R P E R S O N : Yo u d i d n o t s e e . MS MEMELA: Because I do not want to submit. CHAIRPERSON: Ja. MS MEMELA: I do have them but it could – they could follow afterwards. CHAIRPERSON: Ja. Page 89 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: It is just Chair what I wanted to know was that I just needed to know because Mr Kirtland only said the link between my purchase of the property and the reason why it is actually raised here is the fact that I purchased it during the time when the component t e n d e r w a s t a k i n g p l a c e a n d s t u ff . So, I was trying to understand I actually wrote to Mr Kirtland as well asking what is the link? Is it because of the director had bought the land or is it because it was both at the same time and or maybe there is just an assumption or suspicions that maybe it was the 10 money for tender which is I do not understand because did – ja. CHAIRPERSON: Ja. MS MEMELA: So, I wanted to find – ja. CHAIRPERSON: Okay but you say you are happy to provide the documents? MS MEMELA: I will provide the documents. C H A I R P E R S O N : Ye s . MS MEMELA: But I am saying also Chair I will provide the documentation as I promised. C H A I R P E R S O N : Ye s . 20 M S M E M E L A : B u t I a l s o w a n t t o k n o w w h a t M s H o f m e y r. CHAIRPERSON: Ja. MS MEMELA: The question is directed to. between my property and the tender? CHAIRPERSON: Ja, no that is fine. MS MEMELA: Ja. Page 90 of 188 I mean what is the link 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: She still has quite some questions for you. Maybe or are you done with this part? 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 understand there to be a concession by Ms Memela so we can move on after the lunchbreak. CHAIRPERSON: Ye s . Okay alright. I think we will take the lunch adjournment and then when – then you can do the pagination of these. A D V K AT E H O F M E Y R : I n d e e d . CHAIRPERSON: And when we resume maybe for purposes of the transcript, you can just announce what the new pages are. 10 A D V K AT E H O F M E Y R : I w i l l d o t h a t p r e c i s e l 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 : T h a n k y o u C h a i r. C H A I R P E R S O N : O k a y. W e a r e g o i n g t o a d j o u r n n o w. A n d i t i s 1 3 : 0 5 we will resume at 14:05. M S M E M E L A : O k a y. CHAIRPERSON: 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 20 CHAIRPERSON: Are we ready? A D V K AT E H O F M E Y R : W e a r e 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 : Chair just over the lunch adjournment we m a n a g e d t o c h a n g e t h e p a g i n a t i o n o n t h e p a g e s . O u r e ff i c i e n t document Management people were actually here with the replacement Page 91 of 188 07 FEBRUARY 2020 – DAY 209 pages before we had even left the room so that was excellent. 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 we also used the break Chair to paginate just a few more documents that I want to hand up now if I may because it picks up on a matter that Ms Memela testified about just before the break. I h a d n o t a n t i c i p a t e d t h a t t h e r e m i g h t b e a d i ff e r e n c e i n h e r recollection from the facts as I had them. get the records. So we just went to go and What they are is communication October 2015. Ms Memela you will recall I asked you when JM Aviation was added to the 10 d a t a b a s e a t S A AT. S o I j u s t w a n t t o h a v e f o r y o u r b e n e f i t t h e r e c o r d s of that. So if I may beg leave to hand up the copies? 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 e y h a v e b e e n p a g i n a t e d a l r e a d y t o g o a t t h e end of Exhibit DD25B. C H A I R P E R S O N : H ’ m m . O k a y. \ A D V K AT E H O F M E Y R : W e w i l l s t a r t w i t h t h o s e d o c u m e n t 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 : A n d t h e y h a v e b e e n p a g i n a t e d t o c o m m e n c e a t page 698 and that is in Exhibit DD25B. 20 C H A I R P E R S O N : S o r r y. Ye s . M s M e m e l a h a v e y o u g o t t h e p a g e s ? M S M E M E L A : I h a v e t h e p a g e s C h a i r. I h a v e t h e p a g e s C h a i r. 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 : 6 9 8 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 : I f w e s t a r t a t t h e b o t t o m o f t h a t p a g e i n t h e e - Page 92 of 188 07 FEBRUARY 2020 – DAY 209 mail that appears that appears in the last half. Ms Memela can you tell us who sent that e-mail and to whom? MS MEMELA: It was Ms Khosi Sokhulu to myself. A D V K AT E H O F M E Y R : A n d t h e s u b j e c t o f t h e e - m a i l ? MS MEMELA: JM Aviation Company Documents. A D V K AT E H O F M E Y R : A n d t h e d a t e o f t h e e - m a i l ? MS MEMELA: 13 October 2015. A D V K AT E H O F M E Y R : And could you read into the record what she says to you in that e-mail? 10 MS MEMELA: “Good day Nontsasa it was a great pleasure to finally meet you on Friday 2 October please f i n d J M A v i a t i o n S o u t h A f r i c a ’s C o m p a n y D o c u m e n t s attached as requested. We look forward to the opportunity to be of service.” A D V K AT E H O F M E Y R : So you will recall in your evidence earlier I asked if you could recall when you first met Ms Sokhulu. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : H a s t h i s a s s i s t e d y o u w i t h t h a t r e c o l l e c t i o n ? MS MEMELA: Ja it assists yes. 20 A D V K AT E H O F M E Y R : So it was in fact on the 2nd of October 2015 that you met her? M S M E M E L A : Ye s i t i s . A D V K AT E H O F M E Y R : And then these documents were forwarded to y o u o n t h e 1 3 t h o f O c t o b e r, w h a t d i d y o u t h e n d o ? MS MEMELA: I forwarded them to the list of guys like at Procurement Page 93 of 188 07 FEBRUARY 2020 – DAY 209 a n d t o o n e B E E o ff i c e r. A D V K AT E H O F M E Y R : Ye s a n d t h a t y o u s e e a t t h e t o p e - m a i l o n t h a t page 698, is that correct? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : A n d y o u r e q u e s t t h a t t h e c o m p a n y b e a d d e d t o the data base, is that correct? MS MEMELA: Ja. A D V K AT E H O F M E Y R : D o y o u k n o w i f t h a t o c c u r r e d ? MS MEMELA: 10 If that occurred I do not – I did not follow up. Like remember there is as I said like I mean a person who is responsible for BEE and Supply Development. A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Ja. A D V K AT E H O F M E Y R : Yo u f a c i l i t a t e d t h e m g e t t i n g o n t o t h e d a t a b a s e and amongst the documents that they had to submit if you will turn to page 727? M S M E M E L A : 7 2 7 . J a . Ye s . A D V K AT E H O F M E Y R : 7 2 7 w h a t i s t h a t d o c u m e n t ? MS MEMELA: Oh it states like the shareholders of JM. 20 A D V K AT E H O F M E Y R : Ye s a n d c a n y o u r e a d i n t o t h e r e c o r d w h o t h o s e shareholders are and what proportions they hold as shares in the c o m p a n y. MS MEMELA: “Dear Sir ...(intervenes).” CHAIRPERSON: Maybe before that just say who the letter comes from a n d s o o n . S y n e r g y, i t c o m e s f r o m S y n e r g y C h a r t e r e d A c c o u n t a n t s , i s Page 94 of 188 07 FEBRUARY 2020 – DAY 209 that right? Ms Memela? MS MEMELA: Okay it is the document of the suppliers so I will let ...(intervenes). CHAIRPERSON: H’mm. MS MEMELA: The documents ...(intervenes). CHAIRPERSON: No, no I just want you to identify who the document came from. MS MEMELA: O h o k a y. At the – on the letterhead is Synergy Chartered Accountants. 10 C H A I R P E R S O N : Ye s a n d i t i s w r i t t e n b y T N y e p a MS MEMELA: Nyepa. CHAIRPERSON: N-y-e-p-a. M S M E M E L A : Ye s . CHAIRPERSON: And it is addressed, to whom it may concern. M S M E M E L A : Ye s . CHAIRPERSON: And then the subject – you can read the subject and then you can identify the shareholders. M S M E M E L A : O k a y. CHAIRPERSON: Actually you can read the letter because that will give 20 a complete picture. M S M E M E L A : O k a y. “Dear Sir or Madam, we hereby confirm that we are the duly appointed auditors of the abovementioned entity and we hereby confirm the e n t i t y ’s shareholding as follows: Ms M V Sokhulu, 35%, Ms I Page 95 of 188 07 FEBRUARY 2020 – DAY 209 N L o u w, 3 0 % , M r J A i r e s , 1 5 % , M r V A N d z e k u , 2 0 % Kindly contact the undersigned hereof should you require any further clarification.” A D V K AT E H O F M E Y R : T h a n k y o u M s M e m e l a y o u j u s t l e f t o u t t h e t i t l e o f t h e l e t t e r, t h e s u b j e c t . W h a t i s t h a t ? M S M E M E L A : O k a y. “ R e J M A v i a t i o n S o u t h A f r i c a P T Y LT D C o m p a n y Registration Number 2015/053564/07 Shareholding confirmation.” 10 A D V K AT E H O F M E Y R : A n d t h e d a t e o f t h e l e t t e r ? MS MEMELA: The date of the letter is 18th of January 2016. A D V K AT E H O F M E Y R : C a n y o u t e l l m e w h e n y o u m e t w i t h M s S o k h u l u on the 2nd of October 2015 what were the circumstances around that meeting? MS MEMELA: Okay Chair I will not remember because like I did not have the information in front of me but like one thing I would remember is that I have met so many BEE companies especially after their w o r k s h o p i n 2 0 1 5 a n d s t u ff l i k e . So I am sure it was definitely about them being added into your data base and like I mean what is it that is 20 expected from them like I mean they should not front and like all those kinds of schooling and training. A D V K AT E H O F M E Y R : D o y o u k n o w t h a t s h e w a s n o t a D i r e c t o r o f J M Aviation at that time? M S M E M E L A : I d o n o t k n o w. A D V K AT E H O F M E Y R : H’mm. Was your understanding from the Page 96 of 188 07 FEBRUARY 2020 – DAY 209 interaction that she did have a role to play there? MS MEMELA: Okay like I mean there are certain questions that you ask like I mean the suppliers. Remember like I mean we – the Board or the Chairpersons of the Board like …(indistinct) the workshops like to actually address like the Supply Development and the lack of like h a v i n g B E E c o m p a n i e s l i k e i n t o t h e d a t a b a s e o f S A AT a n d s t u ff l i k e . So there were certain questions that they were asked. Like I mean question like okay would they be able to provide or supply certain t h i n g s a n d s t u ff l i k e – a n d t h e n t o q u e s t i o n w h o i s t h e d i r e c t o r t h a t t i m e 10 or who is not like it was not part of the – ja. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: Ja. A D V K AT E H O F M E Y R : B u t I t h i n k g i v e n t h i s r e f r e s h i n g o f y o u r m e m o r y would it be fair to say that at least by the end of 2015 you knew Mr Ndzeku, Ms Sokhulu and JM Aviation? M S M E M E L A : Ye s l i k e I m e a n b a s e d o n t h i s i n f o r m a t i o n . A D V K AT E H O F M E Y R : T h a n k y o u . CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : 20 I would now like to move to Cove Ridge because part of the ...(intervenes). CHAIRPERSON: Well I am sorry you say based on this information? MS MEMELA: Ye s b a s e d o n t h e i n f o r m a t i o n h e r e t h a t I r e c e i v e d t h e ...(intervenes). CHAIRPERSON: Yo u a r e n o t t a l k i n g a b o u t t h e l e t t e r a t 7 2 7 b e c a u s e the letter at 727 is 18 January 2016. Page 97 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : Ye s , n o I a m t a l k i n g a b o u t l i k e t h e e - m a i l t h a t w a s s e n t . CHAIRPERSON: About other documents? M S M E M E L A : Ye s . C H A I R P E R S O N : O k a y. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : T h a n k y o u f o r t h a t c l a r i f i c a t i o n . I w o u l d l i k e t o just explore Cove Ridge a little bit more because your evidence previously indicated that that was a property in the Eastern Cape that you were interested in buying, is that correct? 10 MS MEMELA: That is correct. A D V K AT E H O F M E Y R : A n d f o r w h a t p u r p o s e w a s t h a t ? MS MEMELA: It was the purpose for the purpose of business renting out and – ja. A D V K AT E H O F M E Y R : R e n t i n g o u t ? MS MEMELA: Ja – business purposes. A D V K AT E H O F M E Y R : S o w a s – b u s i n e s s p u r p o s e s . M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : O k a y. A n d w a s i t a d e v e l o p e d p r o p e r t y ? MS MEMELA: It was not a developed property it was in the process of 20 being developed. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: Ja. A D V K AT E H O F M E Y R : A n d y o u i n d i c a t e d t h a t y o u r m o t h e r h a d s a i d t o y o u s h e w a n t e d t o a s s i s t w i t h t h e d e p o s i t o n t h a t p r o p e r t y, i s t h a t r i g h t ? MS MEMELA: That is correct. Page 98 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : A n d w h a t w a s t h e s a l e p r i c e o f t h a t p r o p e r t y ? MS MEMELA: I think if I remember correctly Chair it was 2.8. A D V K AT E H O F M E Y R : A n d h o w m u c h w a s t h e d e p o s i t o f t h a t p u r c h a s e price? MS MEMELA: I think like we were going to pay half of that and then like I am getting the amount from the bank, the remaining amount from the bank. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: But it did not continue it was cancelled. 10 CHAIRPERSON: Were you looking Ms Hofmeyr for the deposit that was paid or for the deposit that was required? A D V K AT E H O F M E Y R : The deposit that was required. So I think ...(intervenes). CHAIRPERSON: Ja what was the deposit that was required? MS MEMELA: The deposit that was required I think – I do not remember like I mean if it is written here but like I mean there was a certain amount that was required. But like I mean the cost of the land was 2.8. CHAIRPERSON: 20 Okay the one that you say you paid which was you said about half or would have been more than the deposit that was required by the bank? MS MEMELA: It would have been half of what was required. C H A I R P E R S O N : O h o k a y. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : S o . . . ( i n t e r v e n e s ) . Page 99 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: But it was not finalised. A D V K AT E H O F M E Y R : S o j u s t s o I c a n c l a r i f y. The purchase price was 2.8. The deposit was about half of that and the remainder would be made up by a bank mortgage, is that correct? MS MEMELA: I think that is correct like but I am just checking quickly if it is not recorded. If you tell Ms Hofmeyr what document you are looking for she might be able to help you. MS MEMELA: Okay I am looking for the – over the purchase of the Cove Ridge. 10 A D V K AT E H O F M E Y R : O h y e s l e t u s – c a n I – c a n I j u s t f i n i s h o n e o r two more questions and then we will go there because it will follow the f l o w. A n d t h e n c a n I j u s t u n d e r s t a n d t h e a r r a n g e m e n t w i t h y o u r m o t h e r was that the deposit that she was going to assist with on Cove Ridge would then be redirected to your Bedfordview house when Cove Ridge was cancelled, is that correct? If you will just put your ...(intervenes). CHAIRPERSON: Please switch on your microphone again and then give the answer again. M S M E M E L A : S o r r y C h a i r. CHAIRPERSON: Give that answer again? 20 MS MEMELA: Ye s l i k e I m e a n t h e d e p o s i t t h a t w a s m e a n t f o r C o v e Ridge like then it was going to be later directed to the Bedfordview house. A D V K AT E H O F M E Y R : A n d w h e n d i d y o u f i n d t h e B e d f o r d v i e w h o u s e , do you recall that? MS MEMELA: I think it was around February I do not remember the – Page 100 of 188 07 FEBRUARY 2020 – DAY 209 ja exact dates. A D V K AT E H O F M E Y R : N o o f c o u r s e . MS MEMELA: Ja. A D V K AT E H O F M E Y R : T h a t i s F e b r u a r y 2 0 1 6 , i s t h a t r i g h t ? MS MEMELA: Ja I am saying like I do not remember the exact dates so I – ja. A D V K AT E H O F M E Y R : N o , n o I t h o u g h t y o u m e a n t t h e d a y i n F e b r u a r y b u t y o u s a i d F e b r u a r y. M S M E M E L A : J a I t h i n k s o m e w h e r e i n F e b r u a r y. 10 A D V K AT E H O F M E Y R : R i g h t . M S M E M E L A : L i k e I a m s a y i n g I a m n o t – I d o n o t r e m e m b e r. A D V K AT E H O F M E Y R : B u t I a m j u s t i d e n t i f y i n g t h e y e a r, F e b r u a r y ? MS MEMELA: I think 2016. A D V K AT E H O F M E Y R : R i g h t . R i g h t . B e c a u s e y o u a r e i n 2 0 1 5 . MS MEMELA: Ja. A D V K AT E H O F M E Y R : When you are engaged in the Cove Ridge transaction, is that right? MS MEMELA: That is right. A D V K AT E H O F M E Y R : 20 T h e n y o u f i n d t h e p r o p e r t y i n B e d f o r d v i e w, i s that correct? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : A n d a t t h a t p o i n t y o u c a n c e l t h e C o v e R i d g e s o t h a t y o u c a n p u r s u e t h e B e d f o r d v i e w p r o p e r t y, i s t h a t c o r r e c t ? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : What was the sale price on the Bedfordview Page 101 of 188 07 FEBRUARY 2020 – DAY 209 property? MS MEMELA: Chair this is one of the questions that I had said like I m e a n I w o u l d a s k y o u i f I a m o b l i g e d t o a n s w e r a n d s t u ff l i k e – b e c a u s e I am really trying to figure out like I mean how is my purchase of my h o u s e l i k e I m e a n r e l a t i v e t o w h a t I a m h e r e f o r. C H A I R P E R S O N : Ye s . MS MEMELA: Which is the component. CHAIRPERSON: Well you see the reason why Ms Hofmeyr is asking about details about the purchase of your house and the money that was 10 paid in regard to that came from either Mr Ndzeku or JM is to see whether there may have been anything improper about the payment or – of that amount in regard to your house in circumstances where you w e r e H e a d o f P r o c u r e m e n t a t S A AT a n d M r N d z e k u w a s a D i r e c t o r o f JM and at a certain stage it was making a – putting in bids. So these q u e s t i o n s a r e j u s t t o c h e c k w h e t h e r t h e r e w a s n o t h i n g i m p r o p e r. So from my point of view there should be no problem in answering it but you remember what we said at the beginning. If you feel that answering that question is going to be – you are going to be incriminating yourself you must indicate but on the face of it I do not 20 see a problem. But I do not know much as much as you know about those transactions. MS MEMELA: Ja. Chair like I think the reason why I am raising this I am not running away from accountability or maybe like I mean responding. C H A I R P E R S O N : Ye s . Page 102 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : To t h e f a c t s a n d s t a t i n g m y o w n f a c t s . CHAIRPERSON: H’mm. MS MEMELA: But like I think like I mean remember before the break I did ask like what the link is. CHAIRPERSON: Ja. MS MEMELA: Between my property and ...(intervenes). C H A I R P E R S O N : Ye s . M S M E M E L A : T h e t r a n s a c t i o n s t h a t w e a r e t a l k i n g a b o u t n o w. C H A I R P E R S O N : Ye s , y e s . 10 MS MEMELA: I think like that will give me an indication of where she is heading. CHAIRPERSON: No, you need not know where she is heading. MS MEMELA: Ja. C H A I R P E R S O N : Yo u m u s t j u s t a n s w e r t h e q u e s t i o n . Yo u d o n o t n e e d to worry about where she may be heading. M S M E M E L A : O k a y. CHAIRPERSON: But as I said you know if you feel strongly that maybe if you answer the question you might be incriminating yourself we will hear from you – indicate but if you feel comfortable to answer the 20 question do not worry about where she may be heading. Is that alright? M S M E M E L A : T h a t i s a l r i g h t C h a i r. CHAIRPERSON: Okay alright. 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 e q u e s t i o n ? C H A I R P E R S O N : W e w a n t t o b e f a i r t o e v e r y b o d y. W e w a n t t o b e f a i r to you. We need to ask certain questions to establish what had – what Page 103 of 188 07 FEBRUARY 2020 – DAY 209 happened but we want to make sure that as we do that there is fairness but at the same time we must try and get to the bottom of the situation. M S M E M E L A : O k a y. 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 . A D V K AT E H O F M E Y R : T h e q u e s t i o n w a s , w h a t w a s t h e s a l e p r i c e o f the Bedfordview house? MS MEMELA: It was 3.8. A D V K AT E H O F M E Y R : R3.8 million. So I assume based on your previous testimony that R3.8 million plus R2.8 million at the same time 10 if you had a liability for both would not have been a liability you could meet, is that correct? MS MEMELA: If I had the liability for both? A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Okay I would like I mean continue with both of them. A D V K AT E H O F M E Y R : I n d e e d . MS MEMELA: Ja. A D V K AT E H O F M E Y R : S o a s I u n d e r s t a n d i t o n c e y o u h a d f o u n d t h e Bedfordview house you then decided to cancel the Cove Ridge, is that right? 20 M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : T h a n k y o u . M s S a m b o g a v e a n a c c o u n t i n h e r evidence about an interaction she had had with you around this property and you in fact responded to what she had said in your crossexamination application. MS MEMELA: Ja. Page 104 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : And your statement that you confirmed this morning under oath. I would like to take you to two aspects of it. M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : Yo u w i l l f i n d t h a t i n t h e c r o s s - e x a m i n a t i o n application in front of you numbered 04 of 2020 and the part of your statement that I want to pick up at is at page 8. At 8 there you commence dealing with this aspect at paragraph 8.5. MS MEMELA: H’mm. A D V K AT E H O F M E Y R : Yo u s a y t h e r e : 10 “I deny and refute the allegation as misrepresentation of facts by Ms Sambo in that she was not a close – not that close to me as a friend for m e t o d i s c u s s m y i n t e n t i o n t o b u y p r o – m y p r o p e r t y. (People who are close to me would testify to this that I never share my private information with anyone except one has something to do with such information).” Then you go on and say: “The bank has never declined my application instead 20 in 2015 the banks had been very strict in approving 100% bond.” M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : “But they were mostly approving a certain percentage of the bond requiring a deposit. A deposit which had nothing to do with Ms Kwinana Page 105 of 188 07 FEBRUARY 2020 – DAY 209 and Mr Zwane.” MS MEMELA: H’mm. A D V K AT E H O F M E Y R : And then you go on and explain how that deposit was going to be paid. I just want to pause there. Do you maintain in your evidence today that this payment of this deposit had nothing to do with Ms Kwinana or Mr Zwane? MS MEMELA: I maintain that. A D V K AT E H O F M E Y R : A n d t h e n i f w e c a n g o t o p a g e – p a r a g r a p h 8 . 6 . Yo u s a y t h e r e : 10 “During 2016 Ms Sambo called me congratulating me and informing me that she had heard that I had moved to a new home and asked where it was. I told h e r i t w a s i n B e d f o r d v i e w. That was only from that c a l l s h e l e a r n e d a b o u t m y p r o p e r t y i n B e d f o r d v i e w. I remember she asked me to send her a photo which I did and her comment was, wow this one cannot be less than R10 million. And that time I had not picked up her bitterness towards me. I innocently responded that it was not even close to R4 million 20 a n d a d d e d t h a t m y s a l a r y w o u l d n o t b e s u ff i c i e n t enough to even attempt to purchase a property for R10 million.” Do you see that? MS MEMELA: Ja. A D V K AT E H O F M E Y R : W h y d i d y o u s a y t o M s S a m b o t h a t t h e p r o p e r t y Page 106 of 188 07 FEBRUARY 2020 – DAY 209 was not even close to R4 million? MS MEMELA: Because it was not R4 million. I guess like because I said it is 3.8. A D V K AT E H O F M E Y R : S o i s 3 . 8 n o t c l o s e t o 4 m i l l i o n ? MS MEMELA: Okay it is close but ja I am not sure about where that question is going. But like I mean it close to 4 million. A D V K AT E H O F M E Y R : B u t t h e n w h y d i d y o u t e l l h e r i t w a s n o t c l o s e t o 4 million? MS MEMELA: 10 Look like I mean there are things that like I mean you d i s c l o s e t o c e r t a i n p e o p l e a n d s t u ff l i k e I m e a n I w a s n o t g o i n g t o disclose that to Ms Sambo. Like I mean it is not like she was i n v e s t i g a t i n g o r m a y b e I o w e d h e r a n y i n f o r m a t i o n a b o u t m y p r o p e r t y. A D V K AT E H O F M E Y R : B u t y o u v o l u n t e e r e d i n f o r m a t i o n a b o u t i t s s a l e price as not being close to 4 million, that was false, correct? MS MEMELA: Okay like I mean me saying it Ms Sambo that it was not close to 4 million. So like I mean ...(intervenes). C H A I R P E R S O N : Ye s t h a t i s w h a t M s H o f m e y r i s p u t t i n g t o y o u . M S M E M E L A : Ye s . CHAIRPERSON: Whether you admit that saying that the property was 20 not close to R4 million was not true. MS MEMELA: Ja but like I mean she did not ask about 4 million. Like I mean she talked about 10 million. So like I mean it was just me like responding. So I was writing what I had said like when I was talking to h e r. S o l i k e I m e a n t h i s i s n o t a b o u t 4 m i l l i o n o r a n y t h i n g . L i k e I m e a n I am the one who actually came up with 4 million. Page 107 of 188 She like I mean 07 FEBRUARY 2020 – DAY 209 suspected that it was over 10 million. A D V K AT E H O F M E Y R : Ye s . MS MEMELA: So I am not sure like I mean how maybe saying like not close to 4 million to Ms Sambo stands like I mean to prove that maybe I was lying to her or I had to – I am not sure. Like maybe I do not understand. A D V K AT E H O F M E Y R : M s . . . ( i n t e r v e n e s ) . C H A I R P E R S O N : W e l l n o l e t – o k a y l e t u s d o i t t h i s w a y. MS MEMELA: Ja. 10 C H A I R P E R S O N : A m I c o r r e c t t h a t y o u r p r o p e r t y, t h e p u r c h a s e p r i c e o f your property was 3.8 million? M S M E M E L A : Ye s C h a i r. CHAIRPERSON: Am I correct that Ms Sambo said to you that house after seeing the picture could not be less than R10 million? M S M E M E L A : Ye s l i k e I m e a n i t w a s j u s t a n i n f o r m a l c o n v e r s a t i o n . C H A I R P E R S O N : Ye s . MS MEMELA: Ja. CHAIRPERSON: Is it correct that in responding to her you said the house was not even close R4 million? 20 M S M E M E L A : Ye s I d i d s a y t h a t . CHAIRPERSON: Is R3.8 million close or not close to R4 million? MS MEMELA: It is close to R4 million Chair but like I mean that responding to Sibongile was not something that I was under oath. C H A I R P E R S O N : Ye s . N o , n o . M S M E M E L A : E x a c t l y. Page 108 of 188 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: Let us ...(intervenes). MS MEMELA: So the ...(intervenes). CHAIRPERSON: Let – we will get there. So you accept that it is close to R4 million? M S M E M E L A : Ye s C h a i r. C H A I R P E R S O N : Ye s . A n d y o u a c c e p t t h a t w h a t y o u s a i d w a s n o t t r u e ? M S M E M E L A : Ye s i t w a s n o t . C H A I R P E R S O N : O k a y. D o y o u w a n t t o p r o v i d e a n e x p l a n a t i o n w h y y o u said it was not close to R4 million? 10 MS MEMELA: There is no-one so far that I have given the exact answer of how much my house is. Like it is either I change like I mean because I do not – I never like really disclose such information to anyone. In fact like even my first property in Douglasdale Fourways I have never told anyone how much it was. CHAIRPERSON: But ...(intervenes). MS MEMELA: So like this here like it was just being like me saying to a person like who wants to know that okay like I mean it is not close to this. So I am not sure Sir – Chair that like maybe by saying that like I mean I was supposed to tell her exactly how much. 20 CHAIRPERSON: Well you might not have needed to tell her exactly how much it was. MS MEMELA: Ja. CHAIRPERSON: But you could have said it is not even close to 10 million and left it at that. And that would have been true, is it not? MS MEMELA: Okay but like I mean an informal conversation between Page 109 of 188 07 FEBRUARY 2020 – DAY 209 t w o p e o p l e v e r s u s l i k e m e s i t t i n g h e r e t a k i n g a n o a t h i s l i k e d i ff e r e n t . What I say out there because I was like just quoting what we had said t o e a c h o t h e r. CHAIRPERSON: H’mm. M S M E M E L A : Ye s . CHAIRPERSON: Ms Hofmeyr do you want to take that ...(intervenes). A D V K AT E H O F M E Y R : N o w e d o n o t n e e d t o t a k e t h a t f u r t h e r. C H A I R P E R S O N : Yo u d o n o t ? O k a y. A D V K AT E H O F M E Y R : 10 Ms Sambo has been given an opportunity to explain why she might have said something false to Ms Sambo but unless there is anything else she wants to add we do not need to take t h a t f u r t h e r. T h a n k y o u . 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 : I would then like to move to that agreement that purchase agreement for the Cove Ridge property that you requested you be directed to. It is in Bundle DD25B – apologies A. And you will find it at page 370. MS MEMELA: 370? A D V K AT E H O F M E Y R : Ye s . C a n y o u i d e n t i f y t h e d o c u m e n t a t 3 7 0 ? 20 M S M E M E L A : Ye s I c a n . A D V K AT E H O F M E Y R : Apologies I see you are still getting there. What is that document? MS MEMELA: It is a Deed of Sale. A D V K AT E H O F M E Y R : B e t w e e n w h a t p a r t i e s ? MS MEMELA: Slipknot Investment and Nontsasa Memela. Page 110 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : A n d w h a t p a g e d o e s t h a t d o c u m e n t e n d o n ? MS MEMELA: It ends 374. A D V K AT E H O F M E Y R : And was this the Deed of Sale for you to purchase the Cove Ridge property? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : L e t u s j u s t g o t h r o u g h i t a t p a g e 3 7 1 . I t h i n k you indicated in your evidence earlier that the purchase price was R2.8 m i l l i o n . Yo u c a n s e e t h a t o n p a g e 3 7 1 . I s t h a t c o r r e c t ? MS MEMELA: That is correct. 10 A D V K AT E H O F M E Y R : And you indicated earlier that there was a deposit amount and an amount that would be covered by the bond. Can you identify for us the clause that sets that out? MS MEMELA: The clause – I did not say that there was a clause that will set it out. A D V K AT E H O F M E Y R : O h b u t . . . ( i n t e r v e n e s ) . MS MEMELA: Ja. A D V K AT E H O F M E Y R : B u t i t w a s p a r t o f t h e a g r e e m e n t ? MS MEMELA: It was part of like I mean the plan that okay like I mean the deposit will be paid and then like I mean the remainder I am going 20 to get from the bank. A D V K AT E H O F M E Y R : But would that not have to be set out in the agreement? MS MEMELA: Okay it was not in the agreement. A D V K AT E H O F M E Y R : I t w a s n o t ? MS MEMELA: It was not. Page 111 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : D o y o u k n o w t h e r e q u i r e m e n t s o f t h e A l i e n a t i o n of Land Act for the identification of a purchase price for the sale of immovable property? MS MEMELA: No I do not. A D V K AT E H O F M E Y R : O k a y. And when was the purchase price required to be paid under this agreement? MS MEMELA: It was required to be paid if I remember correctly after 90 days or like – but it was not an agent. I do not remember like the days or maybe the months that like it was required to be paid. So like I 10 do not want to like I mean say things that like I mean when I find out m a y b e w h e n I g o b a c k t o m y f i l e s a n d s t u ff . Like I mean it does not s u p p o r t t h i s . S o I a m s a f e t o s a y l i k e I d o n o t r e m e m b e r. A D V K AT E H O F M E Y R : Well it is about a three-page document. We have looked at it. I struggle to find a provision that indicated when the purchase price had to be paid. Can you assist with that at all? MS MEMELA: The part where it indicates? A D V K AT E H O F M E Y R : W h e n t h e p u r c h a s e p r i c e h a d t o b e p a i d ? MS MEMELA: No it is not here. That is why I am saying like I mean I do not remember like how long it was going to be. And then like I mean 20 it was not agent as well. A D V K AT E H O F M E Y R : I t w a s n o t a g e n t . J u s t e x p l a i n t o u s w h a t t h a t means? MS MEMELA: I am saying like I mean it was not like I mean something that was required to be paid like within 60 days or 90 days. A D V K AT E H O F M E Y R : S o r r y s o I a m j u s t n o t s u r e I u n d e r s t a n d y o u r Page 112 of 188 07 FEBRUARY 2020 – DAY 209 t e s t i m o n y. I thought a moment ago you said you – it did have to be paid in 90 days. M S M E M E L A : I s a i d I d o n o t r e m e m b e r. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: It may have been like 90 days or more. A D V K AT E H O F M E Y R : But you agree that this agreement does not make any provision for when the purchase price has to be paid? MS MEMELA: No it does not. A D V K AT E H O F M E Y R : A n d i t d o e s n o t c o n t a i n a d e p o s i t p r o v i s i o n n o r 10 a provision to get a bond? MS MEMELA: No it does not. A D V K AT E H O F M E Y R : Right. And do you know who the owners and Directors of Slipknot Investments were at the time that you purchased this property? MS MEMELA: I am not sure about like the Directors or the owners of the – but like I mean we signed like I mean based on the company or maybe family trust or something. A D V K AT E H O F M E Y R : W h o . . . ( i n t e r v e n e s ) . MS MEMELA: But I know that like I mean the person who signed for it 20 like that I was buying from was – the person who signed was – the p e r s o n s i g n e d w a s – I t h i n k Ya k h e K w i n a n a . A D V K AT E H O F M E Y R : Ya k h e K w i n a n a ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : T h e C h a i r o f t h e B o a r d o f S A AT ? MS MEMELA: The Chair – ja the former Chairperson of the Board of Page 113 of 188 07 FEBRUARY 2020 – DAY 209 S A AT. A D V K AT E H O F M E Y R : A t t h e t i m e t h a t y o u c o n c l u d e d t h i s a g r e e m e n t w i t h h e r s h e w a s t h e C h a i r o f t h e B o a r d o f S A AT, i s t h a t c o r r e c t ? Yo u can look at page 373. MS MEMELA: 373. A D V K AT E H O F M E Y R : F o r t h e d a t e . I t i s A p r i l 2 0 1 5 . M S M E M E L A : N o I d o n o t r e m e m b e r. L i k e I m e a n w h e n d i d s h e b e c o m e a C h a i r o f S A AT o r n o t ? A D V K AT E H O F M E Y R : W a s s h e k n o w n t o y o u a t S A AT a t t h i s t i m e ? 10 M S M E M E L A : J a l i k e I m e a n s h e h a d k n o w n m e a t S A AT. A D V K AT E H O F M E Y R : Just for the record she was the Chair of the S A AT B o a r d a t t h a t s t a g e . W e h a v e h a d e v i d e n c e t o t h a t e ff e c t . A n d I see it was signed in Centurion on the 21st of April. Do you recall who the witnesses were of this agreement? MS MEMELA: No I do not recall. CHAIRPERSON: The signature of the seller there, who was that? On page 373. MS MEMELA: I think the seller on behalf of the Slipknot was – it was s i g n e d b y M s Ya k h e K w i n a n a . J a . 20 CHAIRPERSON: And you would be able to identify her signature anyway or did she sign in your presence? MS MEMELA: I ...(intervenes). CHAIRPERSON: The – everybody seemed to have signed on the 21st of April 2015. MS MEMELA: Ja I think we signed at the same – but like I cannot Page 114 of 188 07 FEBRUARY 2020 – DAY 209 confirm it. CHAIRPERSON: Were you all at the same place when you signed? MS MEMELA: I think so yes. CHAIRPERSON: So you would know that she signed here? M S M E M E L A : Ye s . Ye s C h a i r. CHAIRPERSON: Okay alright. And in any event that signature would be a signature that you are familiar with having worked with her for quite some time or not really? MS MEMELA: 10 Ja having to – like having seen like on the Board Resolutions. CHAIRPERSON: In other documents. M S M E M E L A : Ye s . 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 : The witnesses appear to have been the same witnesses so I think. MS MEMELA: It was signed at the same place. A D V K AT E H O F M E Y R : Same place indeed. And you can confirm Ms K w i n a n a s i g n e d i t f o r t h e s e l l e r a n d y o u s i g n e d i t a s p u r c h a s e r, i s t h a t correct? 20 MS MEMELA: That is correct. CHAIRPERSON: Would the witnesses have been people that came with her to the place where the signing took place or would one or – one of them have come with you or will both have come with you? Or was it people that were just grabbed as they were passing? M S M E M E L A : N o C h a i r. N o . I t h i n k l i k e i f I r e m e m b e r c o r r e c t l y, b u t Page 115 of 188 07 FEBRUARY 2020 – DAY 209 like I might be wrong, but I think it was signed at the law firm ...(intervenes). C H A I R P E R S O N : O k a y. MS MEMELA: And then like maybe some of the ...(intervenes). CHAIRPERSON: S o i t w o u l d h a v e b e e n t h e s t a ff a t t h e l a w f i r m t h a t may have signed as witnesses? MS MEMELA: Ye s or maybe people that she came with or ...(intervenes). C H A I R P E R S O N : J a . O k a y. 10 MS MEMELA: From, ja. 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 h i c h l a w f i r m w o u l d t h a t b e ? MS MEMELA: I think it will be Mbanjwa Law Firm. A D V K AT E H O F M E Y R : I s t h a t t h e l a w f i r m t h a t w a s g o i n g t o t a k e c a r e of the transfer of the property? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : A s i n d i c a t e d a t p a g e 3 7 1 ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : 20 Thank you and can you just assist me with a sale agreement for R2.8 million. That does not indicate when the purchase price needs to be paid. Was that not an issue for Ms Kwinana when she entered into this agreement with you? MS MEMELA: Like she did not raise an issue. Of course like if it like I mean drafted by the lawyers. We like I mean there were witnesses and s t u ff l i k e I m e a n w e k n e w w h a t w e w e r e a g r e e i n g o n . Page 116 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Ja. A D V K AT E H O F M E Y R : When did you think the purchase price had to be paid? M S M E M E L A : I d o n o t r e m e m b e r. A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Ja. A D V K AT E H O F M E Y R : A n d – b u t w h a t i s a l s o c l e a r i s t h a t t h e r e w a s no deposit provision for this agreement. Was there? 10 MS MEMELA: Like it was – like I think a verbal agreement, but like it was not included into the agreement at least. A D V K AT E H O F M E Y R : A n d a r e . . . ( i n t e r v e n e s ) . MS MEMELA: And ...(intervenes). A D V K AT E H O F M E Y R : Yo u a w a r e y o u s a i d p r e v i o u s l y y o u w e r e n o t aware of the provisions of the Alienation of Land Act, but are you aware that those agreements for the sale of immovable property unlike other agreements do have to be reduced to writing in their terms? MS MEMELA: For it to be valid? A D V K AT E H O F M E Y R : Ye s . 20 MS MEMELA: So like you are saying now like I mean this might be invalid like does not ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . M S M E M E L A : L i k e t h a t d i ff e r f r o m o n e w a y l a w y e r t o a n o t h e r ? A D V K AT E H O F M E Y R : N o . I w o u l d n o t t h i n k i t d i ff e r s f r o m o n e l a w y e r t o a n o t h e r, b u t I d o n o t t h i n k w e n e e d t o h a v e a l e g a l d e b a t e . Page 117 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : O k a y. CHAIRPERSON: Ye s . What – on some of these legal issues I think Ms Hofmeyr is asking so that you can give an answer based on what y o u k n o w a n d i f y o u d o n o t k n o w. I t i s f i n e . P a r t o f t h e r e a s o n i s t h a t y o u a r e a l a w y e r. S o y o u m i g h t k n o w, b u t y o u m i g h t n o t k n o w. L a w i s too wide. So feel free to give what you understand to be the position. MS MEMELA: I did say Chair to her like I mean earlier on that I do not know and that I am ...(intervenes). C H A I R P E R S O N : Ye s . N o . N o . T h a t i s f i n e , b u t I a m j u s t c l a r i f y i n g s o 10 that you do not ...(intervenes). M S M E M E L A : O k a y. CHAIRPERSON: Yo u d o n o t w o n d e r w h y s o m e o f t h e q u e s t i o n s a r e l e g a l . 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 a n d t h e n i f w e c a n m o v e t o t h e deposit that your mother was going to pay ...(intervenes). MS MEMELA: Huh-uh. A D V K AT E H O F M E Y R : B e c a u s e m y . . . ( i n t e r v e n e s ) . C H A I R P E R S O N : I a m s o r r y. B e f o r e t h a t M s H o f m e y r. S o M s M e m e l a , can you tell me how it came about that you went to – how it came about 20 that you concluded this agreement with Slipknot Investments (Pty) Ltd represented by Ms Kwinana. How did it come about? How did this – what happened? M S M E M E L A : O k a y. C h a i r, M s K w i n a n a – o f c o u r s e l i k e m a n y p e o p l e know her as like I mean the Chairperson of like our former Chairperson o f S A AT l i k e y o u d o . . . ( i n t e r v e n e s ) . Page 118 of 188 07 FEBRUARY 2020 – DAY 209 C H A I R P E R S O N : Ye s . MS MEMELA: And like I mean I would – I can say now confidently so that like I mean she was not playing that role alone like as the Chairperson like she would play a role of like a sister advise like in t e r m s o f i n v e s t m e n t a n d s t u ff . She is in that space of like I mean property development and like she would mention that okay this is what I am doing and like I mean if you want to invest like you could do that and do that. So like I mean we started talking about that and then I was 10 interested in investing there. CHAIRPERSON: When you talked about – when you had discussions that led to the signing of this agreement were the two of you quite close or not really? MS MEMELA: Like we were like professional close. C H A I R P E R S O N : Ye s . Ye s . M S M E M E L A : Ye s . Ye s C h a i r. C H A I R P E R S O N : Ye s . Ye s . S o s h e c a m e t o u n d e r s t a n d t h a t y o u w e r e looking at buying property and she told you about a property that was on the market. 20 MS MEMELA: That she was developing and - ja. CHAIRPERSON: That she was developing? MS MEMELA: Ye s . She is in a property development base like for quite some time. C H A I R P E R S O N : Ye s . MS MEMELA: Ja. Page 119 of 188 07 FEBRUARY 2020 – DAY 209 C H A I R P E R S O N : O k a y. MS MEMELA: H’mm. CHAIRPERSON: And you agreed on the price and then she said ...(intervenes). M S M E M E L A : Ye s . CHAIRPERSON: Come to talk to my lawyers and then they prepare an agreement? M S M E M E L A : Ye s . CHAIRPERSON: Is that right? 10 M S M E M E L A : T h a t i s r i g h t C h a i r. CHAIRPERSON: And do you know whether this agreement was actually prepared by the lawyers? I am – I know when I say whether you know w h e t h e r t h e y p r e p a r e d i t . Yo u m i g h t s a y I d o n o t k n o w i f t h e y a c t u a l l y prepared it, but it came from them. M S M E M E L A : Ye s . CHAIRPERSON: Did it come from them as far as you know? MS MEMELA: Ja. My understanding or what I had learnt was that they had been dealing with her properties and property development like I mean all the deeds of sale like were done by them. 20 So like I mean going like from this property to the other there will be just like I mean entering like I mean details of like the next purchaser or like what i n v e s t m e n t a n d s t u ff . S o l i k e I w o u l d s a y I b e l i e v e d i t c a m e f r o m h e r lawyers. 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 : T h a n k y o u C h a i r. Then just in relation to the Page 120 of 188 07 FEBRUARY 2020 – DAY 209 d e p o s i t f o r t h i s p r o p e r t y. MS MEMELA: Huh-uh. A D V K AT E H O F M E Y R : W e h a v e e s t a b l i s h e d t h a t t h a t w a s n o t r e f l e c t e d in the written agreement ...(intervenes). MS MEMELA: Ja. A D V K AT E H O F M E Y R : B u t I u n d e r s t a n d y o u r e v i d e n c e t o b e t h e r e w a s ...(intervenes). MS MEMELA: The intention ...(intervenes). A D V K AT E H O F M E Y R : 10 A deposit of about half of the value that was going to be paid ...(intervenes). M S M E M E L A : T h e i n t e n t i o n . Ye s . A D V K AT E H O F M E Y R : A n d j u s t s o I g e t y o u r e v i d e n c e c o r r e c t . O n c e your mother had concluded the agreement with Mr Ndzeku to sell her properties. She was going to use the proceeds of that to assist you with the deposit. M S M E M E L A : To a s s i s t . . . ( i n t e r v e n e 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 ? MS MEMELA: Ja. That is correct. A D V K AT E H O F M E Y R : 20 So did Ms – did your mother then receive the proceeds from the sale to Mr Ndzeku which I understood was in about 2015 and then make it available for the deposit on this property? MS MEMELA: No. Like I mean it was made directly to the lawyers. So that they can transfer to the lawyers that were responsible for the Bedfordview house. A D V K AT E H O F M E Y R : R i g h t . Page 121 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: H’mm. A D V K AT E H O F M E Y R : A n d . . . ( i n t e r v e n e s ) . MS MEMELA: And then, ja. A D V K AT E H O F M E Y R : So who gave Mr Ndzeku the details about where to pay the money if your mother did not pay it? MS MEMELA: If my mother did not pay it? A D V K AT E H O F M E Y R : S h e d i d n o t p a y t h e d e p o s i t . MS MEMELA: No. She ...(intervenes). 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 y o u r e v i d e n c e . 10 MS MEMELA: Ja. Ja. A D V K AT E H O F M E Y R : It was that Mr Ndzeku rather than paying her ...(intervenes). MS MEMELA: Ja. It shall be ...(intervenes). A D V K AT E H O F M E Y R : W a s g o i n g t o p a y y o u d i r e c t l y ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : A n d h e w a s g o i n g t o p a y t o – d i d y o u s a y t h e transferring attorneys? MS MEMELA: It - like I mean it was going to come from Mr Ndzeku to the Mbanjwa. 20 A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: Ye s . Like – and then like from Mbanjwa to the t r a n s f e r r i n g a t t o r n e y s o r r e g i s t e r i n g a t t o r n e y s . Ye s . A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: But like Mbanjwa was not responsible for the transfer of t h e B e d f o r d v i e w p r o p e r t y. Page 122 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : I u n d e r s t a n d . MS MEMELA: Ja. A D V K AT E H O F M E Y R : S o o n c e M r N d z e k u w a s t o p a y f o r t h e p r o p e r t y he purchased in the Eastern Cape he would just in a sense redirect that money straight to L Mbanjwa Attorneys. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : I s t h a t r i g h t ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : A n d b y t h e t i m e y o u h a d f o u n d t h e B e d f o r d v i e w 10 h o u s e C o v e R i d g e w a s o ff t h e c a r d s . M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : I s t h a t r i g h t ? M S M E M E L A : Ye s . 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 j u s t u n d e r s t a n d t h e t e r m s o f y o u r a r r a n g e m e n t w i t h y o u r m o t h e r. W a s i t a l o a n ? W e r e y o u g o i n g to be paying it back? MS MEMELA: No. It was a donation. A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Ja. 20 A D V K AT E H O F M E Y R : Thank you. Now the cancellation of Cove Ridge took place when you had found the Bedfordview house. Is that right? MS MEMELA: Ja. A D V K AT E H O F M E Y R : W e a r e s t i l l t h e a g r e e m e n t . C H A I R P E R S O N : I a m s o r r y M s H o f m e y r, b e c a u s e I t h i n k y o u m a y h a v e Page 123 of 188 07 FEBRUARY 2020 – DAY 209 – you are almost through on this ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . CHAIRPERSON: Sale agreement. What is strange with this agreement is what Ms Hofmeyr pointed out. Namely although there is a price – purchase price. There is no indication of when the purchaser would be obliged to pay it and whether it would be paid in instalments and it seems to me there is no indication that the agreement does not seem to say this is subject to getting a bond and so on. MS MEMELA: Ja. 10 CHAIRPERSON: When you signed it where you aware of all of those things? M S M E M E L A : Ye s . CHAIRPERSON: But you did not ...(intervenes). MS MEMELA: We ...(intervenes). CHAIRPERSON: Deal with those things? M S M E M E L A : Ye s . L i k e I w e n t – b r o w s e d t h r o u g h . . . ( i n t e r v e n e s ) . CHAIRPERSON: Ja. MS MEMELA: And like I mean, because like they have been dealing with like I mean property development and using the same agreements 20 a n d s t u ff . M y u n d e r s t a n d i n g f r o m t h e c o n t r a c t s a n d l e g a l p o i n t o f v i e w ...(intervenes). CHAIRPERSON: H’mm. MS MEMELA: As much as I did say that like the Alienation of Land Act I mean I would not be aware of, but ...(intervenes). CHAIRPERSON: H’mm. Page 124 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: There might be like an agreement that like I mean provision of the agreement that is written down, but like I mean if the parties like in the same mind and the intention like whatever that like I mean you are agreeing upon. Like I mean that is acceptable. Ja. CHAIRPERSON: So is – so you say you thought that whatever verbal a g r e e m e n t y o u m a y h a v e h a d w i t h t h e s e l l e r. MS MEMELA: Ja. CHAIRPERSON: Would be fine. MS MEMELA: It would have been fine, because like ...(intervenes). 10 C H A I R P E R S O N : Ye s . M S M E M E L A : W e k n e w e a c h o t h e r. S h e k n e w I w o u l d n o t r u n a w a y C H A I R P E R S O N : Ye s . MS MEMELA: And yes. CHAIRPERSON: Ye s , b u t y o u s a y y o u d i d g o t h r o u g h t h e s a l e agreement before signing it? M S M E M E L A : Ye s C h a i r. C H A I R P E R S O N : Ye s . D i d y o u s e e t h a t a t t h e e n d o f i t - t h a t i s c l a u s e 8 the last sentence – do you see that it says? “No agreement to cancel, alter or add to this 20 a g r e e m e n t s h a l l b e o f a n y f o r c e o r e ff e c t u n l e s s signed by both the seller ...(intervenes).” MS MEMELA: Both the seller ...(intervenes). C H A I R P E R S O N : “ . . . a n d t h e p u r c h a s e r. ” M S M E M E L A : Ye s C h a i r. C H A I R P E R S O N : Yo u s a w t h a t ? Page 125 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Ja. CHAIRPERSON: Did you see the sentence of the same paragraph which says: “This agreement constitutes the entire contract between the parties.” MS MEMELA: Huh-uh. CHAIRPERSON: And the next one that says: “ T h e p u r c h a s e r h a s n o t i n m a k i n g t h i s o ff e r r e l i e d on any warranty or representation not contained 10 herein.” MS MEMELA: Ja. C H A I R P E R S O N : Yo u s a w a l l o f t h o s e t h i n g s ? MS MEMELA: I may have not like I mean read like in what like applying my mind on the whole like I mean provision, but that I do know that like I picked up that like I may know cancellation or alteration would be done without the signature of the parties. CHAIRPERSON: But that first sentence that says: “The entire contract ...” It means you cannot say there is another part of the 20 agreement that is verbal. M S M E M E L A : Ye s . I a m n o t s a y i n g . . . ( i n t e r v e n e s ) . C H A I R P E R S O N : Yo u a c c e p t t h a t ? M S M E M E L A : Ye s C h a i r. I a m n o t s a y i n g t h e r e i s a n o t h e r p a r t . I a m saying like there was an intention to pay a deposit ...(intervenes). CHAIRPERSON: H’mm. Page 126 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : MS MEMELA: As soon as like I mean the property ...(intervenes). CHAIRPERSON: H’mm. MS MEMELA: Is sold and then like the money is like available. CHAIRPERSON: H’mm. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : S o r r y. CHAIRPERSON: Ja. It is just a very strange agreement of a property which is quite an important asset for most of us and at a quite high 10 price, R2.8 million. Where there is no indication as to when this will be p a i d . H o w i t w o u l d b e p a i d . O k a y. A l r i g h t . M s H o f m e y r. A D V K AT E H O F M E Y R : M s M e m e l a , j u s t b e f o r e t h e C h a i r ’s l a t e s t comment you testified that it was understood that the deposit would be paid ...(intervenes). M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : W i t h t h e p u r c h a s e – w h e n t h e p u r c h a s e o f y o u r m o t h e r ’s p r o p e r t i e s w e n t t h r o u g h . I s t h a t c o r r e c t ? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : 20 T h e d i ff i c u l t y w i t h t h a t M s M e m e l a i s t h a t t h i s agreement was signed – concluded in April 2015. MS MEMELA: Ja. A D V K AT E H O F M E Y R : Yo u r h a d n o t m e t M r N d z e k u b y t h e n y e t ? MS MEMELA: Like remember like I mean the deposit was not like entirely dependent on Mr Ndzeku. A D V K AT E H O F M E Y R : O h . Page 127 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: I said like I mean my mother showed interest like I mean in selling like the property so that she can help me with the deposit. A D V K AT E H O F M E Y R : Right. So it was your understanding that she was going to sell some property in the Eastern Cape? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : That was then going to form the basis of the deposit here? M S M E M E L A : E x a c t l y. S o t h a t I m e a n . . . ( i n t e r v e n e s ) . A D V K AT E H O F M E Y R : B u t t h a t w a s n o t i n c l u d e d i n t h e a g r e e m e n t ? 10 MS MEMELA: Not in the agreement, but like I mean during the w o r k s h o p s l i k e o f t h e S u p p l i e r D e v e l o p m e n t a n d s t u ff l i k e I m e n t i o n e d like to some of the BEE suppliers of like I mean the intention to sell the l a n d i f a n y o n e i s i n t e r e s t e d i n s t u ff l i k e t h a t . That is when then I mentioned to Mr Ndzeku I think around like May/June ...(intervenes). A D V K AT E H O F M E Y R : A n d t h a t w o u l d h a v e f a c i l i t a t e d y o u b e i n g a b l e to get this property yourself. Is that correct? M S M E M E L A : T h a t i s – s o r r y. R e p e a t t h a t . A D V K AT E H O F M E Y R : S o y o u w e r e s p e a k i n g t o p e o p l e a t t h e S u p p l i e r Development Workshops ...(intervenes). 20 MS MEMELA: Ja. A D V K AT E H O F M E Y R : To s e e i f t h e y w e r e i n t e r e s t e d i n b u y i n g y o u r m o t h e r ’s p r o p e r t y. MS MEMELA: Not people. Like I mean certain individuals. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: Like I mean BEE people. Like I mean ...(intervenes). Page 128 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : R i g h t . M S M E M E L A : E s p e c i a l l y – o k a y. I d o n o t k n o w i f y o u w i l l u n d e r s t a n d , but ...(intervenes). CHAIRPERSON: Not the whole audience you mean. MS MEMELA: Ja. CHAIRPERSON: Ja. M S M E M E L A : Ye s . CHAIRPERSON: Just some of the people. M S M E M E L A : E x a c t l y. 10 CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : I n d e e d . M S M E M E L A : Ye s . S o m e o f t h e m . A D V K AT E H O F M E Y R : A p o l o g i e s . M S M E M E L A : E x a c t l y. S o l i k e I j u s t w a n t e d t o e x p l a i n t o y o u t h a t l i k e I mean sometimes like when you meet a person coming from the same culture or same tribe as you. Like I mean you get to talk like a lot and s t u ff l i k e t h a t a n d c a t c h u p a n d g e t t o s h a r e c e r t a i n l i k e I m e a n information. A D V K AT E H O F M E Y R : H ’ m m . 20 M S M E M E L A : I w i l l m a k e a n e x a m p l e C h a i r. T h a t l i k e m a y b e w h e n y o u walk into the lift and then you meet somebody and they say …(indistinct, African word). Yo u f e e l l i k e o k a y y o u h a v e m e t y o u r brother or your sister and then you start talking and chatting and discussing like. So it was not the whole audience. A D V K AT E H O F M E Y R : N o . N o a n d f o r g i v e m e i f t h a t w a s t h e w a y m y Page 129 of 188 07 FEBRUARY 2020 – DAY 209 question came across. MS MEMELA: Ja. A D V K AT E H O F M E Y R : I a m j u s t t r y i n g t o g e t t h e c h r o n o l o g y r i g h t . S o y o u c o n c l u d e a n a g r e e m e n t i n A p r i l 2 0 1 5 w i t h M s K w i n a n a ’s c o m p a n y, Slipknot Investment ...(intervenes). MS MEMELA: Ja. A D V K AT E H O F M E Y R : To b u y a p r o p e r t y w o r t h 2 . 8 m i l l i o n . C o r r e c t ? MS MEMELA: Ja. A D V K AT E H O F M E Y R : 10 going to try and A t t h a t s t a g e t h e i n t e n t i o n i s y o u r m o t h e r ’s sell some properties in the Eastern Cape ...(intervenes). M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : To a s s i s t y o u w i t h a d e p o s i t o n t h i s p r o p e r t y ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : Yo u then go to Supplier Development Workshops in May 2015 ...(intervenes). MS MEMELA: H’mm. A D V K AT E H O F M E Y R : And you speak to some people at those workshops about the property that your mother is selling. Is that right 20 – correct? M S M E M E L A : O k a y, C h a i r. L e t m e c o r r e c t t h i s p a r t . L i k e I m e a n i t i s n o t l i k e I w e n t t o t h e w o r k s h o p t o t a l k a b o u t t h e p r o p e r t y. T h e p r o p e r t y was just part of the discussion. Like I mean I went to the workshop like for Supplier Development to introduce like BEE companies into the database and all that. They can understand that. Page 130 of 188 07 FEBRUARY 2020 – DAY 209 Like I mean they are welcome to come and be added into a database. So like I mean the discussion would like be added. Like I mean during the discussion or maybe afterwards or so. So I am not saying like I went to the workshop like I am – that is not the picture I am trying to paint. That I went to the workshop like just to discuss the p r o p e r t y. A D V K AT E H O F M E Y R : O h . M s M e m e l a . . . ( i n t e r v e n e s ) . C H A I R P E R S O N : Ye s . S o y o u a r e s a y i n g t h a t a t s o m e s t a g e o r a n o t h e r while you were interacting with some individuals ...(intervenes). 10 M S M E M E L A : Ye s . CHAIRPERSON: Within the workshop ...(intervenes). MS MEMELA: The – yes. CHAIRPERSON: And chatting. The topic cropped up ...(intervenes). MS MEMELA: Then ...(intervenes). C H A I R P E R S O N : O n e w a y o r a n o t h e r. M S M E M E L A : Ye s C h a i r. CHAIRPERSON: Ja. MS MEMELA: Then there would be this topic. For instance like I will make an example with Ms Sambo. 20 Like I mean we used to chat a lot about like I mean her joining ventures like with aviation companies and t h e n g e t t i n g a n o ff i c e a t l i k e w h e r e a t S A AT. L i k e s o t h a t l i k e s h e w i l l be able to provide her services, but like I mean on the same note like I mean even if it is not the same time. Like I mean she would say okay you know like what I mean I am interested in venturing into oil or fuel like I mean and then like I Page 131 of 188 07 FEBRUARY 2020 – DAY 209 mean transporting fuel from this to that and then she say like it makes a l o t o f m o n e y. So like I mean you discuss like those kind of transactions with people and then like it depends like you – if you are interested like you want to embark on it or maybe like if it does not interest you. Then like you leave it. So like I am trying to explain that. That like I mean the discussions were not like necessarily about property or what. A D V K AT E H O F M E Y R : S o i f a n y o f t h e s u p p l i e r s t o w h o m y o u s p o k e a t 10 t h a t w o r k s h o p w e r e i n t e r e s t e d i n b u y i n g y o u r m o t h e r ’s p r o p e r t i e s i n t h e Eastern Cape. MS MEMELA: Ja. A D V K AT E H O F M E Y R : Then you would be able to conclude this transaction with Slipknot Investment. Is that right? M S M E M E L A : Ye s . I w o u l d h a v e b e e n . A n y b o d y i n c l u d i n g M s S a m b o I would have been. A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Ja. A D V K AT E H O F M E Y R : 20 And as it so happened Mr Ndzeku was interested? MS MEMELA: Ja. A D V K AT E H O F M E Y R : O n e l a s t t h i n g b e f o r e w e l e a v e t h e a g r e e m e n t . Yo u s a i d t h a t t h e r e w a s a n u n d e r s t a n d i n g w o r k i n g a l o n g s i d e t h i s agreement. Notwithstanding the clause that the Chair has taken you to. That there would be a purchase price paid at some time. Page 132 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Huh-uh. A D V K AT E H O F M E Y R : Did you have an understanding Ms Kwinana what expectation she had in that regard? from When was she expecting it to be paid? M S M E M E L A : I d o n o t r e m e m b e r. J a . L i k e I s a i d e a r l i e r. A D V K AT E H O F M E Y R : S o i t w a s a c t u a l l y o p e n e n d e d ? MS MEMELA: It was an open – ja. I do not ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: Ja. 10 A D V K AT E H O F M E Y R : So she was going to sell a property of R2.8 million to you without clarity as to when she would receive the money for it? MS MEMELA: L i k e i t w a s n o t i n t h e c o n t r a c t C h a i r. Yo u k n o w a n d I think like I mean when she gets the chance to actually like I mean to be o n t h i s c h a i r. S h e w i l l b e t o p r o v e l i k e I m e a n – s h o w p r e c e d e n c e t h a t like I mean there are lots of other – of her other properties that like I m e a n s h e h a d u s e d t h e s a m e t e m p l a t e a n d s t u ff . I understand like that maybe because of a certain act. Like it s h o u l d h a v e b e e n i n d i c a t e d . Yo u k n o w . . . ( i n t e r v e n e s ) . 20 CHAIRPERSON: No. MS MEMELA: And I guess like I suspect also like because I do not remember very well, but I suspect that like maybe it may have not been indicated. Like I mean the deposit, because we are not sure if like I m e a n m y m o t h e r ’s g o i n g t o g e t a b u y e r d u r i n g t h a t t i m e . S o l i k e I w a s either going to like I mean rely on the bank or maybe take time or like I Page 133 of 188 07 FEBRUARY 2020 – DAY 209 mean sell like I mean something else like I mean to cover here and there. I do remember in – I mentioned this during our meeting. I do n o t k n o w i f i t w a s w i t h y o u o r t h e I n v e s t i g a t i n g Te a m t h a t w h e n I b o u g h t t h e D o u g l a s d a l e p r o p e r t y. I d i d n o t m e n t i o n t h a t I w i l l p a y t h e d e p o s i t , but like I mean when it became available I paid it and then like I mean I had the property in Bloemfontein like for investment purposes in 2007. So like I mean those are the kind of things that like I mean y o u g e t i n t e r e s t e d i n a n d l i k e I m e a n i n v e s t i n g i n p r o p e r t y. 10 So like I mean for me to go through this like detail by detail especially if you buy it like from somebody you know and like I mean who you know that like I mean they will not maybe run away or maybe like they will not say – t h e y w i l l c h a n g e t h e i r m i n d l a t e r o n a n d s a y o k a y. I am no longer selling property to you or something like that. C H A I R P E R S O N : O k a y a n d s h e i s M s H o f m e y r. M S M E M E L A : S o r r y. C H A I R P E R S O N : S h e i s M s H o f m e y r. MS MEMELA: What did I say? C H A I R P E R S O N : O h . A d v o c a t e H o f m e y r. 20 M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : I t h i n k t o d a y y o u h a v e b e e n r e f e r r i n g t o m e a s Kate. C H A I R P E R S O N : J a . Yo u h a v e b e e n r e f e r r i n g . . . ( i n t e r v e n e s ) . M S M E M E L A : O k a y. O k a y. J a . CHAIRPERSON: Ja and I thought it was just once ...(intervenes). Page 134 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: I am sorry if – ja. C H A I R P E R S O N : S o , j a . O k a y. A D V K AT E H O F M E Y R : Ms Memela, let us just talk about the c a n c e l l a t i o n o f t h i s a g r e e m e n t . Yo u i n d i c a t e d t h a t o n c e y o u h a d f o u n d the Bedfordview property you cancelled it. There actually is not an entitlement under this agreement to cancel it. Did you notice that? MS MEMELA: There is no ...(intervenes)? A D V K AT E H O F M E Y R : E n t i t l e m e n t t o c a n c e l . M S M E M E L A : To c a n c e l . L i k e I m e a n i t d o e s n o t l i k e r e a l l y h a v e t o b e 10 in the ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . M S M E M E L A : J a . To c a n c e l t h e c o n t r a c t . A D V K AT E H O F M E Y R : I t i s j u s t t h a t u s u a l l y s e l l e r s . . . ( i n t e r v e n e s ) . MS MEMELA: H’mm. A D V K AT E H O F M E Y R : W a n t t o e n s u r e t h a t t h e p u r c h a s e r s a r e b o u n d by the agreement. Do you accept that? MS MEMELA: I accept that ...(intervenes). A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: 20 But ja. Like I mean it does not necessarily mean that like because there is no cancellation clause like I mean you cannot cancel. A D V K AT E H O F M E Y R : N o . MS MEMELA: Ja. A D V K AT E H O F M Y R : T h a t i s c e r t a i n l y n o t w h a t I w a s s u g g e s t i n g . MS MEMELA: Ja. Page 135 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : I w a s a s k i n g f o r y o u t o c o n f i r m t h a t t h e r e i s n o t ...(intervenes). MS MEMELA: Ja. A D V K AT E H O F M E Y R : An entitlement under the agreement for the purchaser to cancel it. Do you accept that? MS MEMELA: Ja. It is not here. A D V K AT E H O F M E Y R : S o d i d y o u h a v e t o s e c u r e M s K w i n a n a ’s agreement to the cancellation? M S M E M E L A : Ye s . I t h i n k w e s i g n e d s o m e d o c u m e n t a t i o n l i k e I m a y 10 a s k f o r i t a n d t h e n l i k e w e w i l l s e n d i t t o y o u l a t e r. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: Ja. A D V K AT E H O F M E Y R : H ’ m m . C H A I R P E R S O N : W e l l M s H o f m e y r, c l a u s e 7 . . . ( i n t e r v e n e s ) . A D V K AT E H O F M E Y R : H ’ m m . CHAIRPERSON: Does give the – does seem to give the seller – does not the right to cancel if there is a breach. A D V K AT E H O F M E Y R : Ye s . S o r r y, b u t I w a s s a y i n g f r o m t h e p o s i t i o n of the purchaser cancelling. There was not a clause. 20 CHAIRPERSON: Oh. From the purchaser? A D V K AT E H O F M E Y R : Ye 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 : B e c a u s e i n t h i s c a s e i t i s M s M e m e l a w h o l a t e r cancels ...(intervenes). C H A I R P E R S O N : Ye s . Page 136 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Because she is buying the Bedfordview p r o p e r t y. C H A I R P E R S O N : Ye s . MS MEMELA: Ja. C H A I R P E R S O N : O k a y. MS MEMELA: Ja. I think Chair is correct ...(intervenes). CHAIRPERSON: Well ...(intervenes). MS MEMELA: Because I mean under eight as well it says: “No agreement to cancel or alter unless signed by both parties.” 10 So I am saying like there is a document that talks to the cancellation and like I will find that and I will send it. A D V K AT E H O F M E Y R : R i g h t . W e m a y h a v e i t o u r s e l v e s . I w i l l d r a w you ...(intervenes). MS MEMELA: Is it. A D V K AT E H O F M E Y R : Yo u r a t t e n t i o n t o t h a t i n a m o m e n t w h e n I g e t there. MS MEMELA: Alright. A D V K AT E H O F M E Y R : 20 But the facts, if you can just help us with those, at some point did you approach Ms Kwinana about cancelling it? M S M E M E L A : Ye s . L i k e I m e a n t h e – t h a t i s t h e d i s c u s s i o n t h a t s h o u l d happen before you ask about like – ja. A D V K AT E H O F M E Y R : A n d w a s s h e w i l l i n g t o a g r e e ? MS MEMELA: S h e w a s n o t d i ff i c u l t a b o u t i t , b e c a u s e s h e u n d e r s t o o d t h a t l i k e i t t o o k l o n g e r. Like I mean to get like to finalise that - this Page 137 of 188 07 FEBRUARY 2020 – DAY 209 one. Ja. A D V K AT E H O F M E Y R : D i d s h e a l s o a p p r e c i a t e y o u r h a v i n g f o u n d t h e Bedfordview property and wanting to purchase that? Did you discuss that with her? MS MEMELA: I discussed that with her and then like I mean she actually said okay like I mean if we still continue like you can still use L Mbanjwa like I mean to get like I mean the payment and then we will use the – I remember the reference was her name or something. A D V K AT E H O F M E Y R : T h a n k y o u . A r e y o u a w a r e t h a t t h e m o n e y t h a t 10 Mr Ndzeku had committed to pay your mother for the purchase of the properties was paid much later than you actually concluded your Bedfordview sale? MS MEMELA: Ja. A D V K AT E H O F M E Y R : D o y o u r e c a l l w h e n h e p a i d t h e m o n e y ? MS MEMELA: I do not remember when the money was paid. A D V K AT E H O F M E Y R : H ’ m m . M S M E M E L A : J a , b u t l i k e I m e a n i t t o o k l o n g e r. L i k e I m e a n I t h i n k i t took longer to finalise and then like for him to get the amount like to send to Mbanjwa. 20 A D V K AT E H O F M E Y R : D i d y o u h a v e d i s c u s s i o n s w i t h h i m a b o u t t h a t ? M S M E M E L A : L i k e h e h a d d i s c u s s i o n s w i t h m y m o t h e r. S o l i k e I – j a . A D V K AT E H O F M E Y R : O h . W i t h y o u r m o t h e r ? MS MEMELA: Ja. A D V K AT E H O F M E Y R : R i g h t , b e c a u s e t h e y c o n c l u d e d t h e i r a g r e e m e n t in 2015. Page 138 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Ja. 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 ? MS MEMELA: Ja. A D V K AT E H O F M E Y R : A n d h e p a i d i n M a y 2 0 1 6 . M S M E M E L A : 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 ? MS MEMELA: That is correct. 10 A D V K AT E H O F M E Y R : R i g h t , b u t i t w a s o k a y, b e c a u s e y o u h a d already agreement cancelled the once you had purchased the B e d f o r d v i e w p r o p e r t y. M S M E M E L A : 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 ? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : Let us go to the cancellation that you agreed w i t h M s K w i n a n a . Yo u w i l l f i n d t h a t i n D D 2 5 A a t p a g e 3 9 7 . I s t h a t t h e cancellation that you were referring to? MS MEMELA: I think it is the one, but like I think there was some sort of an agreement attached – that was supposed to be attached to this one. 20 A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: I will try and find it. A D V K AT E H O F M E Y R : If we can just go through what this letter contains. Can you tell us to whom it is addressed? MS MEMELA: Attention Kwinana Consult or dear Ms Kwinana. A D V K AT E H O F M E Y R : A n d t h e t i t l e o f i t . Page 139 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: F o r m a l C a n c e l l a t i o n o f S a l e P o r t i o n 11 o f F a r m 9 2 5 Cove Ridge East London. A D V K AT E H O F M E Y R : And can you confirm that you prepared this letter? M S M E M E L A : Ye s . I w r o t e t h e l e t t e r. A D V K AT E H O F M E Y R : A n d i s t h a t y o u r s i g n a t u r e a t t h e b o t t o m o f t h e letter? MS MEMELA: That is the signature. A D V K AT E H O F M E Y R : 10 And let us look at what you said in the first paragraph. Can you read that into the record? MS MEMELA: “I refer to the abovementioned sale and confirm my intention to cancel the transaction as proclamation is taking longer than anticipated and I have since identified a residential property in Bedfordview that I am interested in buying.” A D V K AT E H O F M E Y R : What did you mean when you referred to proclamation taking longer than expected? MS MEMELA: Like I mean they were talking about like I mean certain t h i n g s t h a t l i k e h a d t o b e a p p r o v e d a n d s t u ff . 20 I would not remember like I mean detail by detail. A D V K AT E H O F M E Y R : B e c a u s e I t h o u g h t y o u r e v i d e n c e p r e v i o u s w a s that what was taking long was your ability to get the deposit or the bond. Is that not correct? MS MEMELA: No, no, no. Like I mean I did not say that like that there. Page 140 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: What was taking longer it was because of the deposit. I said like the transaction took longer than anticipated. A D V K AT E H O F M E Y R : R i g h t . MS MEMELA: Ja. A D V K AT E H O F M E Y R : But once you found the Bedfordview property you were now going with it. M S M E M E L A : 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 ? 10 MS MEMELA: That is correct. A D V K AT E H O F M E Y R : And then you go on and say in the second paragraph if you would read that into the record. MS MEMELA: “Therefore this is a formal cancellation of the above transaction. The deposit of which will be used on the sale of the aforementioned house in B e d f o r d v i e w. L Mbanjwa The monies Incorporated in that were respect paid of to this t r a n s a c t i o n s h o u l d n o w b e p a i d o v e r t o t h e s e l l e r ’s a t t o r n e y s b e i n g … ( i n d i s t i n c t ) w i t h a c c o u n t n u m b e r. ” 20 A D V K AT E H O F M E Y R : T h a n k y o u . MS MEMELA: Ja. A D V K AT E H O F M E Y R : W h a t i s t h e d a t e o f t h i s l e t t e r ? MS MEMELA: It is 7 May 2016. A D V K AT E H O F M E Y R : Yo u h a d p u r c h a s e d t h e p r o p e r t y i n B e d f o r d v i e w in February 2016. Had you not? Page 141 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : T h e r e i s a d i ff e r e n c e b e t w e e n p u r c h a s i n g a n d m a k i n g a n o ff e r t o p u r c h a s e . A D V K AT E H O F M E Y R : H u h - u h . M S M E M E L A : J a . S o I d i d n o t p u r c h a s e . I m a d e a n o ff e r t o p u r c h a s e a r o u n d F e b r u a r y. A D V K AT E H O F M E Y R : Ye s a n d w h e n i t i s a c c e p t e d t h e n y o u a r e bound by it. Is that correct? MS MEMELA: Like I mean once it is accepted like you are bound it ...(intervenes). 10 A D V K AT E H O F M E Y R : Ye s . MS MEMELA: B u t r e m e m b e r t h e r e i s a l s o a c o o l i n g o ff p e r i o d ...(intervenes). A D V K AT E H O F M E Y R : Ye s . M S M E M E L A : A n d s t u ff l i k e t h a t , b u t j a . I a l s o l i k e I d o n o t r e m e m b e r like the bond, ...(indistinct) when it was approved. A D V K AT E H O F M E Y R : J a . 6 0 d a y s . MS MEMELA: Ja. A D V K AT E H O F M E Y R : It had to be secured within 60 days of February 2016 acceptance. 20 MS MEMELA: Huh-uh. A D V K AT E H O F M E Y R : H’mm. So you had already committed on the Bedfordview property in February 2016. MS MEMELA: Ja. A D V K AT E H O F M E Y R : C o r r e c t ? MS MEMELA: Correct. Page 142 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : W h y d i d y o u c a n c e l t h i s a g r e e m e n t o n l y o n t h e 7th of May 2016 then? MS MEMELA: Because like I mean there is no way that I was going to continue with both of them. A D V K AT E H O F M E Y R : But then why did you not cancel it in ...(intervenes). M S M E M E L A : A n d i t w a s t a k i n g l i k e I m e a n l o n g e r a l s o t o – y o u k n o w. Like I mean and I saw that like I mean I should focus on the one that is t h e r e s i d e n t i a l p r o p e r t y. 10 A D V K AT E H O F M E Y R : Ms Memela, your testimony earlier was that once you had identified Bedfordview property there was no way that y o u c o u l d a ff o r d 3 . 8 m i l l i o n p l u s 2 . 8 m i l l i o n a n d s o y o u c a n c e l l e d t h e Cove Ridge transaction. Do you recall that evidence? M S M E M E L A : Ye s . T h a t i s e x a c t l y w h a t I a m s a y i n g n o w. T h a t l i k e I mean there is no way that I will continue with both the properties. A D V K AT E H O F M E Y R : Ye s . MS MEMELA: So like I mean I did mention Chair that like I mean I may not remember the dates and when like was it cancelled and like when – b u t I d o k n o w t h a t l i k e I m a d e a n o ff e r t o p u r c h a s e i n F e b r u a r y. J a . S o 20 I am not sure. Like I mean if like you are getting my answers correct or ...(intervenes). A D V K AT E H O F M E Y R : No. I am. Let me be clear about what I am s t r u g g l i n g w i t h . Yo u r p r e v i o u s t e s t i m o n y w a s o n c e y o u h a d s e c u r e d t h e arrangement for the Bedfordview property sale. MS MEMELA: Huh-uh. Page 143 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : Yo u c o u l d n o t c o n t i n u e w i t h t h e C o v e R i d g e property transaction. Is that correct? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : T h a t o c c u r r e d i n F e b r u a r y 2 0 1 6 . C o r r e c t ? M S M E M E L A : T h e o ff e r t o p u r c h a s e w a s d o n e i n F e b r u a r y 2 0 1 6 . A D V K AT E H O F M E Y R : Ye s a n d a c c e p t e d i n F e b r u a r y 2 0 1 6 . M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : C o r r e c t ? MS MEMELA: Correct. 10 A D V K AT E H O F M E Y R : So that is a valid agreement of sale ...(intervenes). M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : F o r t h e B e d f o r d v i e w p r o p e r t y i n F e b r u a r y 2 0 1 6 . MS MEMELA: 2016. Ja. A D V K AT E H O F M E Y R : C o r r e c t . MS MEMELA: Huh-uh. A D V K AT E H O F M E Y R : Yo u r t e s t i m o n y e a r l i e r w a s o n c e y o u h a d d o n e t h a t y o u c a n c e l l e d t h e a g r e e m e n t o n t h e C o v e R i d g e p r o p e r t y. D o y o u recall that evidence? 20 M S M E M E L A : Ye s . L i k e I m e a n h e r e i t w a s c a n c e l l e d . L i k e h e r e i s t h e l e t t e r. I said to you like I will find something like that. That talks to that. A D V K AT E H O F M E Y R : Ye s a n d w e h a v e . . . ( i n t e r v e n e s ) . MS MEMELA: So like I mean your struggle is like now on the dates. A D V K AT E H O F M E Y R : I t i s p r e c i s e l y. Page 144 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: That it was cancelled. A D V K AT E H O F M E Y R : H ’ m m . MS MEMELA: So like I mean you – I do not know Chair if like she is expecting me to have cancelled like immediate in January or maybe that is the impression that I gave her when I responded. CHAIRPERSON: Well just answer to the best of your recollection and knowledge. MS MEMELA: H’mm. CHAIRPERSON: 10 She is going to – she says that her – what she is struggling with are the dates. Now you might or might not recall the dates, but she appreciates that 2015 is quite some time back, but ...(intervenes). MS MEMELA: Huh-uh. C H A I R P E R S O N : I t h i n k j u s t d o y o u r b e s t . O k a y. M S M E M E L A : O k a y. C H A I R P E R S O N : M s H o f m e y r, d o y o u w a n t t o r e p e a t t h e q u e s t i o n ? A D V K AT E H O F M E Y R : Ye s I i n d i c a t e d i n t h e l e a d , a n d i t w a s t h e d a t e s C h a i r, t h a t w e r e t r o u b l i n g m e b e c a u s e I u n d e r s t o o d M s K w i n a n a ’s previous evidence to be once Bedfordview was secured Cove Ridge 20 was no longer an option right and what I can’t understand is why ...(intervenes). MS MEMELA: No Chair ...(intervenes). A D V K AT E H O F M E Y R : I f I c o u l d f i n i s h m y q u e s t i o n . CHAIRPERSON: Let her finish Ms – just don’t forget what you wanted t o s a y. Page 145 of 188 07 FEBRUARY 2020 – DAY 209 M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : If, once the Bedfordview property had been secured and your previous evidence was, then there was no reason to continue with Cove Ridge, why did you wait until May of 2016 only to cancel the Cove Ridge transaction? MS MEMELA: Okay I did not – like maybe I must just like repeat again, like maybe my intention is not like she had interpreted my answer to be. My answer I mean, we still cancelled like the Cove Ridge property a n d l i k e I m e a n a f t e r I h a d i d e n t i f i e d t h e B e d f o r d v i e w i n F e b r u a r y, y o u 10 k n o w, s o I t h i n k l i k e y o u k n o w y o u a r e s t r u g g l i n g b e t w e e n – w i t h t h e p e r i o d b e t w e e n F e b r u a r y a n d M a y. C H A I R P E R S O N : I s t h e p e r i o d c l o s e t o a y e a r. A D V K AT E H O F M E Y R : N o i t ’s a m a t t e r o f t h r e e m o n t h ’s i t ’s t h e s a m e y e a r s o i t ’s F e b r u a r y 2 0 1 6 t o M a y o f 2 0 1 6 a n d t h e c h a l l e n g e f o r m e – let me make it clear is that between February 2016 you had obligations under the Bedfordview property to pay R3.8 million to the sellers and at the same time you had an obligation to pay R2.8 million to Slipknot Investments and that persisted for three further months until you cancelled and I’d understood your previous evidence to be, you could 20 n o t e n t e r t a i n t w o l i a b i l i t i e s l i k e t h a t a n d t h a t i s w h y, o n c e y o u ’ d secured Bedfordview you cancelled Cove Ridge. M S M E M E L A : J a , C h a i r, l i k e f o r m e o r m a y b e m e a n d M s S e a k a w e d i d n o t s e e a n y d i ff e r e n c e b e t w e e n c a n c e l l i n g w h e n o r – b e c a u s e I d i d notify her that like you see I’ve identified this and I think I’m going to be focusing on it. So like it might happen that like we had agreed Page 146 of 188 07 FEBRUARY 2020 – DAY 209 verbally and then we cancelled later on after three months. 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 : The other reason why the date troubles me a b i t , M s M e m e l a , i s t h a t i t ’s t w o d a y s a f t e r t h e d e p o s i t w a s r e c e i v e d from JM Aviation, are you aware of that? MS MEMELA: I’m not aware of remember ...(intervenes). CHAIRPERSON: Sorry what is two days after receipt of the deposit? A D V K AT E H O F M E Y R : So Chair at 397 this Slipknot Investments purchase agreement is cancelled on the 7th of May 2016, if you go back 10 two pages in the file to page 395. 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 : That is the records of the bank account of L Mbangwa Attorneys to whom Mr Ndzeku it is claimed, paid the deposit amount of R2.5 million and that you will see reflected in the fifth line on that page. He paid that in on the 5th of May 2016, that was my r e f e r e n c e t o t w o d a y s e a r l i e 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 : Were you aware that he’d paid it in two days earlier? 20 MS MEMELA: I was not aware until you – or like Andrew showed this to me yes. 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 h a d y o u b e e n l e d t o b e l i e v e b y y o u r m o t h e r that the deposit had been paid earlier? MS MEMELA: No, no she did not discuss that like I mean, the only Page 147 of 188 07 FEBRUARY 2020 – DAY 209 interest that she showed Chair was that she was going to help me with the deposit and the deposit was going to be R1.5 million and then the remainder that was going to help with the legal fees together with my h u s b a n d ’s d e p o s i t a n d t h e n l i k e t h e r e m a i n d e r w a s a l s o g o i n g t o g o t o h e r. A D V K AT E H O F M E Y R : So do you have any understanding why Mr Ndzeku waited so long to pay that deposit for the transaction with your mother? MS MEMELA: I think that – like the person will be in a right position to 10 answer that, it will be Mr Ndzeku. A D V K AT E H O F M E Y R : No I’m just asking whether you have any knowledge about why he delayed until the 5th of May? M S M E M E L A : I h a v e n o k n o w l e d g e , I d o n ’ t r e m e m b e r. A D V K AT E H O F M E Y R : And if you just look at that fifth line on the page. MS MEMELA: Which page? A D V K AT E H O F M E Y R : 395 you’ll see there the date of 5 May in the fifth line and it says under the first column, internet banking payment from and then you’ll see a description for the payment, do you see 20 that? M S M E M E L A : Ye s t h a t ’s w h a t I m e n t i o n e d e a r l i e r o n l i k e , M s K w i n a n a was used as a reference. A D V K AT E H O F M E Y R : Ye s , a n d i t s a y s , c o n s u l t i n g K w i n a n a , t h e r e . M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : D o y o u h a v e a n y i d e a w h y i t w o u l d s a y, Page 148 of 188 07 FEBRUARY 2020 – DAY 209 consulting Kwinana? MS MEMELA: Consulting Kwinana, I think maybe it was her consulting company I don’t know I think she will be the right person to answer but like my understanding like the reason why she was used as a reference i s t h a t l i k e I w a s b u y i n g f r o m h e r l i k e h e r p r o p e r t y a n d s t u ff a n d t h e n now for Mbanjwa to pick up the deposit like was to highlight like I mean Kwinana is – remember they were her main lawyers all this time. So l i k e , t h a t w a s t h e r e a s o n w h y. A D V K AT E H O F M E Y R : 10 No I understand, possibly the reference to Kwinana, what I’m struggling with is consulting, do you have any idea why consulting would be the description. MS MEMELA: No I ...(intervenes). A D V K AT E H O F M E Y R : B e c a u s e t h i s h a d n o t h i n g t o d o w i t h c o n s u l t i n g did it? MS MEMELA: Of course it had nothing to do with consulting, I don’t k n o w, b e t w e e n K w i n a n a a n d M b a n j w a , w h a t i s t h e i r r e l a t i o n s h i p i n terms of consulting or whatever but like I don’t want to answer on behalf of ...(intervenes). A D V K AT E H O F M E Y R : 20 Of course, I was simply interested in whether you had any knowledge as to why it would be described as a consulting payment. MS MEMELA: No. CHAIRPERSON: Well the letter of cancellation that we talked about a few minutes ago at page 397 that you wrote to Slipknot Investments, s a i d a t t e n t i o n K w i n a n a C o n s u l t , w h a t i s t h a t , i s t h a t a c o m p a n y, a f i r m Page 149 of 188 07 FEBRUARY 2020 – DAY 209 belonging to Ms Kwinana or what was it? M S M E M E L A : I d o n ’ t r e m e m b e r C h a i r, I d o n ’ t r e m e m b e r I t h i n k l i k e i f I may ...(intervenes). CHAIRPERSON: But you would have known it at that time at lease. M S M E M E L A : Ye s I ’ m s a y i n g i f I m a y m a y b e t h a t ’s w h a t s h e s a i d l i k e I m u s t r e f e r i t a s l i k e s o t h a t i t ’s i n l i n e I m e a n t h e r e f e r e n c e t o t h e lawyers. CHAIRPERSON: And if – so I’m wondering Ms Hofmeyr whether consulting Kwinana that appears there at page 395 is meant to say this 10 i s f o r c o n s u l t i n g s e r v i c e s o r w h e t h e r i t r e f e r t o a n e n t i t y. I s e e t h a t a t the top of the column it says description ja. A D V K AT E H O F M E Y R : C h a i r I t a k e t h e p o i n t l e t m e f o l l o w u p , i f I m a y, with Ms Memela about that. 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 : L e t ’s a s s u m e , f o r p r e s e n t p u r p o s e s t h a t t h e r e i s a n e n t i t y, K w i n a n a C o n s u l t i n g , t h i s a r r a n g e m e n t t h a t y o u r m o t h e r h a d with Mr Ndzeku had nothing to do with Kwinana Consulting did it? MS MEMELA: No it didn’t. A D V K AT E H O F M E Y R : A n d w h e n h e p a i d t h e R 2 . 5 m i l l i o n o n t h e 5 t h o f 20 May I understand you regarded that as related to the purchase of p r o p e r t y a g r e e m e n t h e ’ d e n t e r e d i n t o w i t h y o u r m o t h e r, i s t h a t c o r r e c t ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : So that too, had nothing to do with Kwinana Consulting? MS MEMELA: It didn’t have anything to do with Kwinana Consulting Page 150 of 188 07 FEBRUARY 2020 – DAY 209 but I mean, because they were the lawyers for her who had been helping her like I mean, they – apparently they had … ( i n d i s t i n c t ) t r a n s a c t i o n s t h a t t h e y w e r e d o i n g t o g e t h e r. lots of So like I mean, they wanted – like she wanted them like to be able to pick up this specific transaction, so I think ...(intervenes). CHAIRPERSON: Why would she want them to associate this deposit with her? MS MEMELA: Like – because like I mean ...(intervenes). CHAIRPERSON: Because, as I understand it, it had nothing to do with 10 h e r. MS MEMELA: It had nothing to do with her but like I mean, remember I was buying a property from her and that she had introduced me to L M b a n j w a A t t o r n e y s . Ye s s o l i k e I m e a n f o r t h e m t o a b l e t o p i c k u p o u t o f a l l t h e i r t r a n s a c t i o n s a n d f i l e s a n d s t u ff t h e y w o u l d k n o w w h i c h o n e is that one because like I mean I remember ...(intervenes). CHAIRPERSON: I’m sorry at the time that they made – they paid this money to L Mbanjwa and Associates, to the law firm the contract between yourself and this Slipknot had not been cancelled, is that right? 20 MS MEMELA: L i k e I m e a n , I ’ m l o o k i n g a t t h e l e t t e r n o w t h a t l e t t e r, I mean Ms Hofmeyr has just like showed me, it had been cancelled like two days before. C H A I R P E R S O N : Ye s , y e s . M S M E M E L A : Ye s t w o d a y s o r t h r e e d a y s b e f o r e j a . CHAIRPERSON: So yes, but is the position – had Mr Ndzeku or JM Page 151 of 188 07 FEBRUARY 2020 – DAY 209 h a d t h e y b e e n t o l d t h a t t h e y m u s t p a y t h e m o n e y i n t o t h e l a w y e r ’s account ...(intervenes). MS MEMELA: Ja instead of Slipknot. CHAIRPERSON: Ja. MS MEMELA: Ja. CHAIRPERSON: But they didn’t know about the Bedfordview property o r d i d t h e y, t h a t i s n o w N d z e k u ? MS MEMELA: Ja like I would assume like he did know or maybe he did not because like I’m not sure how much – what is it that they have 10 d i s c u s s e d , h i m a n d m y m o t h e r b u t l i k e I d o k n o w, l i k e I m e a n , h e k n e w that the purpose of that sale is to pay for my deposit as well ja. CHAIRPERSON: Ms Hofmeyr? A D V K AT E H O F M E Y R : Chair this is just a point that I want to make, n o t d i r e c t l y t o M s M e m e l a b u t i t ’s r e l a t e d t o t h e e v i d e n c e o f M r N d z e k u who is coming on Monday to give evidence and the reason I raise it is b e c a u s e h i s l a w y e r s a r e p r e s e n t t o d a y. W e h a d n o t , u n t i l t o d a y, s t i l l n o t r e c e i v e d a s t a t e m e n t o r a ff i d a v i t f r o m M r N d z e k u b u t w e h a v e h a d discussions in the course of the week and there was an indication that we would receive one in advance of his evidence. We would be most 20 grateful for that, time is running out, hopefully over the weekend but I wanted to just highlight a particular aspect that we would request that t h e y d e a l w i t h i n t h a t a ff i d a v i t b e c a u s e w e h a v e n ’ t b e e n a b l e t o h a v e i n t e r a c t i o n s w i t h M r N d z e k u t o t h i s p o i n t . Yo u s e e t h e c h a l l e n g e i s t h a t this payment was not made by Mr Ndzeku, the payment, not from any personal account of his, it was made from the account of JM Aviation Page 152 of 188 07 FEBRUARY 2020 – DAY 209 a n d s o w h a t I ’ d l i k e t o r e q u e s t t h a t M r N d z e k u d o i n h i s a ff i d a v i t , i s explain to us why the payment was made from JM Aviation and explain to us the tax treatment that was given to this payment in the records for S A R S i n s o f a r a s J M A v i a t i o n ’s Ta x R e c o r d s a r e c o n c e r n e d . S o i f t h a t c a n j u s t b e t a k e n n o t e o f s o t h a t i t c a n b e i n c l u d e d i n t h e a ff i d a v i t . M s Kwinana, the Chair picked up on a point that I was going to make right at the end, which is your indication in your statement in response to Ms S a m b o ’s e v i d e n c e w a s t h a t t h i s w h o l e p a y m e n t o f t h e d e p o s i t h a d nothing to do with Mr Zwane or Ms Kwinana, we have gone through the 10 facts and there is quite a pivotal role that Ms Kwinana has played in all of this, do you accept that? M S M E M E L A : B u t l i k e t h e p a y m e n t h a s n o t h i n g t o d o w i t h h e r, i t ’s n o t c o m i n g f r o m h e r, n o r M r Z w a n e s o t h a t ’s w h a t I m e a n t . A D V K AT E H O F M E Y R : Yo u m e a n t i t d i d n ’ t c o m e f r o m t h e m ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : B u t y o u a c c e p t t h a t , b u t f o r M s K w i n a n a ’s involvement in this, the deposit would not have got to pay for your Bedfordview house? MS MEMELA: No I don’t accept that. 20 A D V K AT E H O F M E Y R : W h y n o t ? MS MEMELA: Because, like I mean, she was not the one who bought the land. A D V K AT E H O F M E Y R : No but you had to cancel the agreement with her and Slipknot Investments in order for the deposit that was going to be paid to be redirected, did you not? Page 153 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: I d i d b u t , l i k e I m e a n C h a i r i t ’s n o t c o m i n g f r o m h e r p e r s o n a l c a p a c i t y o r m a y b e b u s i n e s s c a p a c i t y, s o t h a t ’s w h a t I m e a n , I mean like, they had nothing to do with my deposit. A D V K AT E H O F M E Y R : In the sense that she was not a payer of the deposit. M S M E M E L A : Ye s i t w a s n o t c o m i n g f r o m h e r. A D V K AT E H O F M E Y R : But she did forsake a binding purchase agreement with you in order for the deposit to be re-directed to the Bedfordview house correct? 10 MS MEMELA: Ye s w e c a n c e l l e d b u t i t ’s n o t l i k e I m e a n , s h e a c t u a l l y was going to pay for my – like the property that I was planning to buy from the Eastern Cape like coming from here. So like what I meant when I was responding to Ms Sambo is that, like I mean, this had nothing to do with Mr Zwane or Ms Kwinana because like I mean, how s h e h a d p u t i t i n h e r a ff i d a v i t i t w a s a s i f t h e y w e r e g o i n g t o p a y f o r m e a n d C h a i r, l i k e I m e a n , I j u s t l i k e I m e a n , w a n t e d t o k i l l t h a t n a r r a t i v e because like even now Ms Hofmeyr is still going through like the property and I think I have responded enough and I did promise that I will send the supporting documentation. 20 Like shortly like after like Monday to prove like my state. So I’m more interested now in the link b e t w e e n m y p r o p e r t y a n d t h e c o m p o n e n t t e n d e r, t h e f i n a l c o m p o n e n t tender because like she was there, she was talking about the final component tender like when you came to this one. A D V K AT E H O F M E Y R : Ye s , l e t ’s g o t o w h a t M s S a m b o s a i d b e c a u s e y o u w e r e r e s p o n d i n g t o w h a t s h e ’ d s a i d i n h e r a ff i d a v i t . Yo u ’ l l f i n d t h a t Page 154 of 188 07 FEBRUARY 2020 – DAY 209 in the files on your left-hand side Ms Memela because we need to pick u p M s S a m b o ’s a ff i d a v i t s o i t ’s i n E x h i b i t D D 1 8 a n d y o u ’ l l f i n d i t a t p a g e 35. Ms Memela if you look at the chair next to you, there are a number o f f i l e s t h e r e a n d a m o n g s t t h e m i s t h e b u n d l e c o n t a i n i n g M s S a m b o ’s evidence. M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : Yo u ’ l l n e e d t o p i c k u p E x h i b i t D D 1 8 a n d o p e n i t at page 35. MS MEMELA: Page 35? 10 A D V K AT E H O F M E Y R : Ye s , d o y o u h a v e i t ? MS MEMELA: Ja. A D V K AT E H O F M E Y R : T h e r e l e v a n t p a r a g r a p h i s p a r a g r a p h 1 2 1 t h e r e M s S a m b o s t a t e s i n h e r a ff i d a v i t : “I cannot recall the exact date but it could have been in 2016, Advocate Memela verbally told me that she wanted t o p u r c h a s e a h o u s e a n d t h a t s h e ’ d p u t a n o ff e r i n o n a p r o p e r t y i n B e d f o r d v i e w. T h e o ff e r w a s d e c l i n e d a s h e r salary was not s u ff i c i e n t . Advocate Memela then informed me that Ms Kwinana and Mr Zwane were going 20 t o m a k e a p l a n f o r h e r. ” Do you see that? MS MEMELA: I see that paragraph. A D V K AT E H O F M E Y R : A n d i t i s n o t M s S a m b o ’s a l l e g a t i o n t h e r e t h a t M s K w i n a n a o r M r Z w a n e w e r e g o i n g t o p a y f o r t h e p r o p e r t y, d o y o u accept that? Page 155 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: It is not – are you saying it is not? A D V K AT E H O F M E Y R : I t i s n o t s a y i n g t h a t M s K w i n a n a a n d M r Z w a n e w e r e g o i n g t o p a y f o r y o u r p r o p e r t y, d o y o u a g r e e ? M S M E M E L A : Ye s , l i k e I m e a n . . . ( i n t e r v e n e s ) . A D V K AT E H O F M E Y R : I t i s s i m p l y s a y i n g t h a t t h e y w e r e g o i n g t o m a k e a plan for you, do you accept that? MS MEMELA: B u t l i k e I m e a n t h a t ’s a … ( i n d i s t i n c t ) s t a t e m e n t s o I ...(intervenes). A D V K AT E H O F M E Y R : Ye s . 10 MS MEMELA: So I don’t know if you say I must accept what do you mean? A D V K AT E H O F M E Y R : N o I ’ m s a y i n g , I w a n t u s t o b e c l e a r a b o u t w h a t this means and your understanding. Is your understanding that she was alleging here that Ms Kwinana was going to pay something to that property? M S M E M E L A : C h a i r p e r s o n r e m e m b e r, l i k e I m e a n , I ’ m n o t t h e a u t h o r o f t h i s a ff i d a v i t . . . ( i n t e r v e n e s ) . CHAIRPERSON: N o s h e ’s a s k i n g y o u r u n d e r s t a n d i n g o f w h a t M s Sambo is saying here. 20 M S M E M E L A : J a I s a i d t o h e r, m y u n d e r s t a n d i n g w a s l i k e w h e n s h e said Mr Zwane and Ms Kwinana, like, we’re going to make a plan, like I mean, maybe she meant that the money was going to paid by them. C H A I R P E R S O N : O h o k a y. MS MEMELA: Exactly so like I mean C H A I R P E R S O N : Yo u i n t e r p r e t e d t h e p l a n ? Page 156 of 188 also ...(intervenes). 07 FEBRUARY 2020 – DAY 209 MS MEMELA: I interpreted the plan. C H A I R P E R S O N : To m e a n , t o i n c l u d e p a y i n g f o r y o u ? MS MEMELA: Ye s s o t h a t ’s w h y w h e n s h e ’s a s k i n g l i k e i s t h i s m y u n d e r s t a n d i n g , I ’ m s a y i n g I c a n n o t i n t e r p r e t f o r t h e a u t h o r, b u t m y u n d e r s t a n d i n g w h e n I w a s r e a d i n g i t , t h a t ’s e x a c t l y h o w I u n d e r s t o o d i t b u t I m e a n t h e – l i k e I m e a n , s h e a l s o a d d e d t h a t t h e o ff e r w a s d e c l i n e d . H e r e i t c o u l d a l s o b e p r o v e n t h a t t h e o ff e r f r o m … ( i n d i s t i n c t ) was not declined. So like I mean, I’m just like trying to balance things, I mean it does not necessarily mean because like Ms Sambo stated it, 10 i t ’s c o r r e c t . CHAIRPERSON: Ja. A D V K AT E H O F M E Y R : No indeed, what we seem to have clarified is that Ms Kwinana certainly did not, herself pay over money for the p u r c h a s e o f y o u r p r o p e r t y, c o r r e c t ? MS MEMELA: Correct. A D V K AT E H O F M E Y R : What she did do though, Ms Memela is move from a situation in which you owed her R2.5 million ...(intervenes). MS MEMELA: I owed her? A D V K AT E H O F M E Y R : Ye s w e l l y o u o w e d S l i p k n o t . . . ( i n t e r v e n e s ) . 20 CHAIRPERSON: R2.8 million isn’t it or R2.5 million? A D V K AT E H O F M E Y R : R2.8 million apologies, R2.8 million you ...(intervenes). C H A I R P E R S O N : T h a t ’s i n t e r m s o f t h e s a l e a g r e e m e n t . A D V K AT E H O F M E Y R : Ye s , y o u o w e d h e r R 2 . 8 m i l l i o n i n t e r m s o f t h e sale agreement and then she agreed to forsake the R2.8 million that Page 157 of 188 07 FEBRUARY 2020 – DAY 209 you owed her and have the month that might have come to her got to you to purchase the Bedfordview house, is that correct? MS MEMELA: N o i t ’s n o t c o r r e c t C h a i r a n d I r e f u s e t o l e g i t i m i s e M s H o f m e y r ’s p e r c e p t i o n b e c a u s e l i k e o n c e I s a i d . . . ( i n t e r v e n e s ) . CHAIRPERSON: W e l l l e t m e s a y s h e ’s g i v i n g y o u a c h a n c e t o r e f u t e t h a t o r p u t a d i ff e r e n t p e r s p e c t i v e o r t o p u t y o u r s i d e o f y o u r v e r s i o n . M S M E M E L A : E x a c t l y C h a i r t h a t ’s w h e r e I ’ m g o i n g , t h a t l i k e I m e a n i t s e e m s l i k e s h e ’s p u s h i n g a c e r t a i n n a r r a t i v e a n d I t h i n k l i k e a t t h e e n d of the day today you will know exactly where she wants to go with it but 10 ...(intervenes). CHAIRPERSON: No, no, no Ms Memela, Ms Hofmeyr is an Evidence L e a d e r i n t h e C o m m i s s i o n , s h e i s e n t i t l e d a n d a c t u a l l y s h e ’s o b l i g e d t o ask questions that will probe and try and establish the truth. The rules o f t h e C o m m i s s i o n m a k e t h a t p l a i n , s h e ’s n o t n e c e s s a r i l y – i f y o u l o o k at other witnesses that she has dealt with she does exactly the same. S o s h e ’s o b l i g e d t o a s k q u e s t i o n s w i t h a v i e w t o e s t a b l i s h i n g e x a c t l y what happened, what the position is. So please don’t read into that, a n y p e r s o n a l m o t i v e s a l l s h e ’s d o i n g i s j u s t h e r j o b b u t y o u a r e f r e e t o s a y, t h a t a p p r o a c h t o t h i s i s s u e i s n o t j u s t i f i e d b e c a u s e o f t h e s e f a c t s 20 that I’m placing before the Commission. So you put your perspective fully ja. Okay alright. MS MEMELA: The concern then Chair that I have like with her questioning style, I understand like you’re saying I mean she is supposed to be leading evidence and I mean like when you twist the question to sound like something else instead of what I’m supposed to Page 158 of 188 07 FEBRUARY 2020 – DAY 209 understand to say because I owed Ms Kwinana R2.8 million, like when you’re talking about owing somebody – maybe our interpretation is not t h e s a m e i t w i l l b e l i k e m a y b e s h e h a d l o a n e d m e s o m e m o n e y a n d s t u ff w e a r e t a l k i n g a b o u t t h e d e e d o f s a l e t h a t c o u l d b e c a n c e l l e d . Ye s l i k e I mean the cancellation clause or maybe the entitlement as she had said it was not there but like I mean I’m just concerned about how she had – ja. C H A I R P E R S O N : O k a y n o t h a t ’s f i n e , I t h i n k t h e t h r u s t o f h e r q u e s t i o n w a s , t h e r e w a s a n a g r e e m e n t t h a t y o u h a d w i t h M s K w i n a n a ’s c o m p a n y. 10 MS MEMELA: Ja. CHAIRPERSON: In terms of that agreement you were supposed to buy her property and pay her R2.8 million and I think – she didn’t say this b u t I t h i n k i t ’s i m p l i e d , s h e w a s e n t i t l e d t o i n s i s t t h a t t h i s a g r e e m e n t s t a n d s , y o u m u s t p a y b u t s h e w a s p r e p a r e d t o s a y, o k a y l e t ’s c a n c e l this agreement because you want to buy property elsewhere. Okay but I d o n ’ t w a n t t o a s k t h e q u e s t i o n f o r h e r, I ’ m j u s t g i v i n g y o u m y understanding of her question. MS MEMELA: Okay I understood it that way Chair because I mean she w a s r e a d i n g f r o m M s S a m b o ’s s t a t e m e n t . 20 C H A I R P E R S O N : Ye s o k a y, a l r i g h t . MS MEMELA: S o t h a t ’s w h y I s a i d l i k e I w i l l n o t l e g i t i m i s e w h a t M s Sambo had said. CHAIRPERSON: O k a y. MS MEMELA: And like I mean, my understanding of her statement is like – of her question is like, she is trying to collaborate what Ms Page 159 of 188 07 FEBRUARY 2020 – DAY 209 Sambo has said, I may be wrong but like I’m saying that is not what like what it was meant, I mean I did not owe Ms Kwinana any money other than what was agreed upon for the purchase of the sale which was c a n c e l l e d l a t e r. S o l i k e I m e a n , t h i s s t a t e m e n t l e f t b y M s S a m b o t o s a y like Ms Kwinana and Mr Zwane will make a plan does not really collaborate or justify what she had said here. 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 u n l e s s M s K w i n a n a a g r e e d to cancel the Slipknot investment purchase you would not have been able to buy the Bedfordview house? 10 MS MEMELA: Like, had she refused? A D V K AT E H O F M E Y R : Ye s . MS MEMELA: Then what will be her reason for refusing? A D V K AT E H O F M E Y R : T h a t ’s n o t m y q u e s t i o n I ’ m a s k i n g w h e t h e r y o u accept that if she hadn’t agreed to cancel the Slipknot agreement she had with you, you would not have been able to purchase the Bedfordview house? M S M E M E L A : Ye s I w o u l d n ’ t c o n t i n u e w i t h t h e B e d f o r d v i e w h o u s e . A D V K AT E H O F M E Y R : Thank you. Ms Memela at the time that Mr N d z e k u o r J M A v i a t i o n p a i d t h i s R 2 . 5 m i l l i o n i n t o t h e a t t o r n e y ’s 20 a c c o u n t , t h a t w a s a t 5 M a y 2 0 1 6 , y o u w e r e a M e m b e r o f E x c o o f S A AT is that correct? MS MEMELA: 2016? A D V K AT E H O F M E Y R : Ye s . MS MEMELA: No I became the Member of Exco I think at the 2017 w h e n i t w a s a n n o u n c e d , l i k e I s a i d l i k e e a r l i e r o n C h a i r, l i k e I w a s t h e Page 160 of 188 07 FEBRUARY 2020 – DAY 209 m i n u t e t a k e r o r c o m p a n y s e c r e t a r y f o r E x c o o f S A AT. A D V K AT E H O F M E Y R : I did misunderstand that then, I apologise I thought you said when the submission was placed before Exco, this is the submission in relation to the final components tender you had been a m e m b e r t h a t h a d a g r e e d w i t h t h e s u b m i s s i o n m a d e b y C F S T, d i d I have that wrong? MS MEMELA: I said I had signed and – like I mean I had signed and s u p p o r t e d t h e C F S T a s t h e H O D S u p p l y C h a i n M a n a g e r. A D V K AT E H O F M E Y R : A n d a s H O D f o r S u p p l y C h a i n M a n a g e m e n t y o u 10 didn’t hold a position on Exco? M S M E M E L A : A t E x c o j a . l i k e I m e a n a t t h a t t i m e l i k e i t w a s j u s t G M ’s . A D V K AT E H O F M E Y R : R i g h t a p o l o g i e s a n d y o u w e r e n ’ t a G M y o u w e r e a HOD. M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : I ’ v e u n d e r s t o o d t h a t n o w, s o l e t m e c o r r e c t t h a t at the time that he paid R2.5 million that was going to be used for your p r o p e r t y y o u w e r e o n l y t h e H O D o f P r o c u r e m e n t a t S A AT, c o r r e c t ? M S M E M E L A : Ye s . A D V K AT E H O F M E Y R : A n d a t t h a t t i m e t h e d e c i s i o n o n t h e b i d s f o r t h e 20 final components tender had not yet been concluded, is that correct, it was still open? M S M E M E L A : A t w h a t d a t e c a n y o u r e p e a t I ’ m t r y i n g t o r e m e m b e r. A D V K AT E H O F M E Y R : Ye s , s o h e p a y s o n t h e 5 t h o f M a y a n d j u s t t o help you, it was on the 9th of May that the Board decided, finally to award it to JM Aviation and AAR. So at the time that he paid for the Page 161 of 188 07 FEBRUARY 2020 – DAY 209 p r o p e r t y t h e d e c i s i o n h a d n o t y e t b e e n t a k e n o n t h a t t e n d e r, d o y o u accept that? MS MEMELA: I a c c e p t t h a t b u t l i k e I m e a n i f y o u , l i k e I m e a n C h a i r, I understand the corporate governance I’m sure like the pack, the Board pack had already made its way to the Board like looking on the dates, like I mean the pack should make it to the Board like seven days before the Board Meeting. A D V K AT E H O F M E Y R : Unfortunately that didn’t occur in this case b e c a u s e t h e B A C m e e t i n g o n l y t o o k p l a c e o n t h e 6 t h o f M a y, t h e d a y 10 after he paid the R2.5 million. MS MEMELA: O k a y, j a s o I ’ m t r y i n g t o u n d e r s t a n d l i k e t h e B A C a n d the deposit where is the link? A D V K AT E H O F M E Y R : N o I ’ m a s k i n g a q u e s t i o n o f f a c t M s M e m e l a , a t the time that he paid the R2.5 million the Board had not yet decided who to award the contract to, correct? MS MEMELA: Ja like based on the dates of the Board resolution. A D V K AT E H O F M E Y R : Ye s , a n d a l s o o n t h e d a t e t h a t t h a t p r o p e r t y o r t h a t a m o u n t w a s p a i d t o b e u s e d f o r y o u r p r o p e r t y, J M A v i a t i o n w a s n e g o t i a t i n g t h e s a l e p r i c e o n t h e G P U ’s w i t h S A AT, w a s i t n o t ? 20 M S M E M E L A : Ye s w h i c h w a s a l r e a d y d e c i d e d b y t h e B o a r d . A D V K AT E H O F M E Y R : No it wasn’t actually because what had happened was, on the 26th of April the first e-mail came from Mr Aires s a y i n g , w e ’ l l o ff e r R 2 2 5 0 0 0 f o r t h e G P U ’s . MS MEMELA: Ja. A D V K AT E H O F M E Y R : So that was on the 26th of April and about a Page 162 of 188 07 FEBRUARY 2020 – DAY 209 w e e k a n d a b i t l a t e r o n t h e 5 t h o f M a y t h a t ’s w h e n t h e R 2 . 5 m i l l i o n w a s received and thereafter the Board meets and then the final decision is made on the sale price, do you accept those facts? MS MEMELA: I don’t know Chairperson like because I’m trying to understand ...(intervenes). CHAIRPERSON: If you don’t understand – if you don’t remember the dates you can say you don’t remember the dates. MS MEMELA: No, no I do Chair I do remember the dates, like what I d o n ’ t u n d e r s t a n d i s t h e m e n t i o n i n g l i k e t h e d e p o s i t a n d t h e G P U ’s a n d 10 the component, she just like rightfully reminded me like the proposal to S A AT C E O w a s m a d e o n t h e 2 6 t h o f A p r i l a n d i f y o u c h e c k l i k e t h a t p r o p o s a l a n d t h a t e - m a i l i s n o t a d d r e s s e d t o m e i t ’s a d d r e s s e d t o t h e Acting CEO and the Acting CEO is responding to the – to Jules and I t h i n k l i k e h e ’s s t a t i n g t h a t h e ’s g o i n g t o f o l l o w t h i s a n d t h a t a n d t h a t j a . CHAIRPERSON: W e l l , d o y o u w a n t t o r e p e a t y o u r q u e s t i o n ? Yo u j u s t a n s w e r w h a t y o u k n o w. T h e q u e s t i o n . I f y o u d o n o t k n o w, y o u d o n o t k n o w. MS MEMELA: Chair I might remember like what happened, but like I mean I am worried like as I said earlier on before we started, that I do 20 not want to say yes or no on something that like later on I will have to work so hard to get myself out of. Because like I mean ...(intervenes). CHAIRPERSON: No, no, no, I understand that but that is why I am s a y i n g t o y o u w h e r e i f y o u d o n o t k n o w, w h e r e i f y o u d o n o t r e m e m b e r y o u j u s t s a y y o u d o n o t r e m e m b e r. I f y o u t h i n k i t i s a p a r t i c u l a r a n s w e r but you are not sure, feel free to say I think that is the answer but I am Page 163 of 188 07 FEBRUARY 2020 – DAY 209 not sure, so you do not need to commit yourself to something that you are not sure about – to an answer that you are not sure about, but you just need to answer to the best of your knowledge and ability and to the best of your recollection. Okay? MS MEMELA: O k a y C h a i r. CHAIRPERSON: I s t h a t a l r i g h t ? O k a y. A D V K AT E H O F M E Y R : So, just back to the 5th of May is the date on which the R2.5 million is paid. That was about a month and a bit b e f o r e y o u w e r e c h a r g e d w i t h n e g o t i a t i n g t h e s a l e p r i c e o n t h e G P U ’s 10 with JM Aviation. Is that correct? MS MEMELA: Like I mean, I was instructed like with other colleagues of mine, yes. A D V K AT E H O F M E Y R : Ye s , w e w i l l c o m e t o t h a t i n a m o m e n t . Ms Memela you have given an explanation in your statement to this Commission about this transaction and you have indicated in that statement that you regard there is been no conflict of interest in so far as you were the recipient of this 2.5 million. Is that correct? MS MEMELA: That is correct. A D V K AT E H O F M E Y R : 20 Can you explain to us the basis on which you say there is no conflict of interest if you receive 2.5 million from a party w h o S A AT i s c o n t r a c t i n g w i t h ? MS MEMELA: N o , I d i d n o t r e c e i v e l i k e I m e a n f r o m t h e p a r t y. I t w a s c o m i n g f r o m m y m o t h e r, s o t h e r e i s a d i ff e r e n c e , i t i s n o t l i k e I m e a n there were paying me from their pockets, like I mean just like I mean, yes. Page 164 of 188 07 FEBRUARY 2020 – DAY 209 A D V K AT E H O F M E Y R : They did pay from their pocket; the transaction was JM Aviation paying in to L Mbangwa Attorneys ...(intervenes). MS MEMELA: Ye s , t h e y w e r e p a y i n g f o r l i k e I m e a n f o r t h e l a n d t h a t they were purchasing. So like I mean, when I stated that like there was I d i d n o t s e e a n y t h i n g u n t o w a r d C h a i r, a n d t h e f a c t t h a t l i k e I m e a n I did not see any conflict of interest. I was still responding to their question during our meeting when they said like I mean, did you not think there was a conflict of interest. And I said like from where I was sitting, like I mean like in my capacity as the HOD like there was no 10 c o n f l i c t o f i n t e r e s t , b e c a u s e I d i d n o t s i t i n t h e E v a l u a t i o n Te a m o r t h e people that were making decisions to say I am awarding this tender to you. So that is where I was coming from with the conflict of interest. A D V K AT E H O F M E Y R : So, its – as I understand your position, there is no conflict of interest if you are not involved in the bodies making the decisions. Is that correct? MS MEMELA: I t w i l l b e m y u n d e r s t a n d i n g C h a i r, I m a y b e w r o n g , b u t like all I am saying is like if the decision or maybe whatever transaction h a s a b s o l u t e l y n o t h i n g t o d o w i t h S A AT o r l i k e I m e a n i t i s s o m e t h i n g that is outside like and for me I would not be taking a decision or 20 m a k i n g t h a t d e c i s i o n t o a w a r d t h a t c e r t a i n s u p p l i e r, l i k e f o r m e i t d i d not fall under conflict of interest. Ja you see maybe if there was a b u s i n e s s t h a t w e w e r e g o i n g t o c o n d u c t t o g e t h e r, l i k e i n t h e s i d e , instead of like I mean them buying the property from my mother like t h a t w i l l b e s o m e t h i n g d i ff e r e n t . S o t h a t w a s m y u n d e r s t a n d i n g . A n d I even made an example because like I even said like I do not want to Page 165 of 188 07 FEBRUARY 2020 – DAY 209 mention any names, but like I mean there were certain people that like I mean negotiated with JM, like for other projects although they were the C h a i r p e r s o n o f S A AT a t t h a t t i m e , b u t l i k e I m e a n t h e r e w e r e negotiating for other projects. I did say that in my statement. A D V K AT E H O F M E Y R : Were you aware of the terms of the conflict of i n t e r e s t p o l i c y t h a t S A AT h a d a t t h e t i m e i n 2 0 1 6 ? MS MEMELA: I think like I may have browsed through but like I mean I do not remember if I read it like during the time when I was buying my p r o p e r t y, l i k e I m e a n C h a i r, w h a t I d i d l i k e w a s t o s e p a r a t e t h e t w o , l i k e 10 I mean the property versus the tenders, and I even said that like I mean when we were discussing this, that if I had been like I mean the one w h o h a d s a i d o k a y, l e t u s a w a r d t o J M a n d A A R , t h e n l i k e i t w i l l b e seen as that conflict of interest. Then I would be expected to declare for conflict of interest. But like I mean it was not my decision to award t o A A R . A n d t h e n a l s o , i t w a s n o t m y d e c i s i o n t o s e l l t h e G P U ’s t o J M for Swissport. So that is where then like I mean my understanding of like I did not see any conflict of interest. A D V K AT E H O F M E Y R : Ye s . M y q u e s t i o n w a s d i d y o u k n o w t h e t e r m s o f t h e c o n f l i c t o f i n t e r e s t p o l i c y t h a t o p e r a t e d a t S A AT a t t h e t i m e ? 20 MS MEMELA: N o , I d o n o t r e m e m b e r n o w. A D V K AT E H O F M E Y R : Yo u d o n o t r e m e m b e r w h e t h e r y o u d i d k n o w i t , or you did not know it at the time? MS MEMELA: I did not know it at that time, maybe I did not even have a copy at that time. A D V K AT E H O F M E Y R : How would you then know what interests you Page 166 of 188 07 FEBRUARY 2020 – DAY 209 had to declare? MS MEMELA: L i k e i t i s a c o m m o n k n o w l e d g e l i k e I m e a n C h a i r, l i k e I mean if you enter into a certain agreement with maybe a supplier for s o m e t h i n g t h a t i s i n v o l v i n g t h e c o m p a n y t h a t y o u a r e w o r k i n g f o r. T h e n like I mean for instance if I open a company outside like with somebody and then like they come and tender and then like when that decision is to be made to award to that person, then I am sitting in the decision making, then like I would be able to say okay I actually know these people, and like I mean I will recuse myself or yes something like that 10 is my understanding. A D V K AT E H O F M E Y R : D o y o u t h i n k t h e h e a d o f p r o c u r e m e n t a t S A AT should familiarise themselves with the conflict of interest policy? MS MEMELA: Ye s , l i k e t o a c e r t a i n e x t e n t . A D V K AT E H O F M E Y R : MS MEMELA: Why only to a certain extent? For instance like I mean I do know like from the risk a n d c o m p l i a n c e C h a i r, t h a t l i k e w h e n y o u r e g i s t e r a c o m p a n y a n d s t u ff like there is a certain form that you fill that like I mean you are opening a business outside, especially if, like maybe some of the services or maybe goods like could clash with what is like I mean the services of 20 S A AT o r l i k e t h e c o m p a n y t h a t y o u w o r k f o r. So, like that is my understanding. A D V K AT E H O F M E Y R : Ms Memela let us go to the conflict of interest p o l i c y t h a t a p p l i e d a t t h e t i m e . Yo u w i l l f i n d i t a t D D 2 5 A a n d y o u w i l l need to go to the back to page. Let me give you the first page of it, 436. Page 167 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: 436. CHAIRPERSON: What is the page number? A D V K AT E H O F M E Y R : CHAIRPERSON: 4 3 6 C h a i r. O k a y. A D V K AT E H O F M E Y R : First thing I just want to highlight if I may a b o u t t h i s d o c u m e n t C h a i r. I s t h a t i t i s t h e G r o u p C o n f l i c t o f I n t e r e s t Policy for South African Airways SOC Management in general employees (recommended to be adopted to SAA subsidiaries). There is whole debate in relation to the GPU as to which applicable policy was 10 applying. I understand we were not at that debate here because this w a s t h e G r o u p P o l i c y t h a t w o u l d h a v e a p p l i e d t o S A AT. MS MEMELA: We will have. A D V K AT E H O F M E Y R : MS MEMELA: We will have ...(intervenes). A D V K AT E H O F M E Y R : MS MEMELA: Ye s Yo u w i l l h a v e a . . . ( i n t e r v e n e s ) . I will raise what he has ...(intervenes). A D V K AT E H O F M E Y R : Oh all right I look forward to it Ms Memela. Let us go to page 442. Clause 7 there starts Provisions of Conflict of interest. Do you see that? 20 MS MEMELA: Ye s A D V K AT E H O F M E Y R : It says at 7.1: “Prohibited use of position. not use or seek to use SAA employees shall their positions or employment with SAA to: • Gain direct or indirect Page 168 of 188 benefits for 07 FEBRUARY 2020 – DAY 209 themselves or their family members.“ Do you see that? MS MEMELA: Ye s . A D V K AT E H O F M E Y R : Do you accept that you would unlikely have interacted with Mr Ndzeku or met him but for the Supply Development w o r k s h o p s a t S A AT. MS MEMELA: Okay can you repeat that. A D V K AT E H O F M E Y R : Ye s , w a s i t t h e f a c t t h a t S A AT w a s c o n d u c t i n g Supplier Development workshops that put you into contact with 10 Mr Ndzeku? MS MEMELA: Ye s l i k e I m e a n l i k e I s a i d C h a i r e a r l i e r o n t h a t l i k e I mean there I met Mr Ndzeku through these workshops and I would not have met him maybe like I mean to discuss these but like what I want to add is the fact that it could have been any other like BEE supplier who w a s i n t e r e s t e d i n b u y i n g t h e p r o p e r t y. A D V K AT E H O F M E Y R : Ye s . But it is a product of your position in S A AT t h a t y o u h a d a c c e s s t o M r N d z e k u , c o r r e c t ? MS MEMELA: Ye s . A D V K AT E H O F M E Y R : 20 And what this provision says is that employees may not use their positions to gain a direct or indirect benefit for themselves or their family members, do you accept that you received a direct benefit from Mr Ndzeku in form of the 2.5 million Rand. MS MEMELA: land. It cannot be direct like I mean he was paying for the Ye s , s o l i k e y o u c o u l d s a y i t i s i n d i r e c t . But like I have mean Chair with regards to these as it says at the beginning of the page, Page 169 of 188 07 FEBRUARY 2020 – DAY 209 recommended to be adopted by SAA subsidiaries. This is the first time l i k e I m e a n I s e e t h i s l i k e f o r S A AT. T h a t i s w h y I s a i d l i k e I a m g o i n g to – yes, like I am going to raise that, because like I mean I have not s e e n t h i s o n e , l i k e I m e a n w h a t w e h a v e a t S A AT i s – w h a t I k n o w i s t h e delegation of authority documentation, like I mean you know all these other but like I mean, I guess like I mean if it was not r e c o m m e n d e d t o b e a d o p t e d b y S A A I d o n o t k n o w, l i k e I m e a n , i s t h e r e a d o c u m e n t a t i o n t h a t p r o v e s t h a t i t w a s a d o p t e d b y S A AT ? A D V K AT E H O F M E Y R : 10 Ms Memela we will look for it. Let us assume ...(intervenes). MS MEMELA: Yo u d o n o t h a v e i t n o w. A D V K AT E H O F M E Y R : T h a t i t d i d a p p l y. Right. Then do you think that your acceptance of the 2.5 million Rand was in breach of clause 7.1. MS MEMELA: Acceptance? A D V K AT E H O F M E Y R : MS MEMELA: Ye s . When you say acceptance like I mean it is as if Chair l i k e I m e a n i t w a s a m o n e y p a i d t o m e b y a s u p p l i e r, a n d I a m s a y i n g like I mean, that was the payment for the property that was bought. So, 20 l i k e I m e a n , a n d a l s o I f i n d i t d i ff i c u l t t o r e s p o n d . . . ( i n t e r v e n e s ) . CHAIRPERSON: Is the point that you seek to make and have sought to make for some time, this – that payment was supposed to be paid to y o u r m o t h e r. MS MEMELA: Ye s . CHAIRPERSON: It was just a matter of convenience to say since your Page 170 of 188 07 FEBRUARY 2020 – DAY 209 mother was going to pass it on to you, Ndzeku or JM could well just pay it to Mbangwa Attorneys. MS MEMELA: Ye s . CHAIRPERSON: But you are saying that as far as you are concerned, it was money that they were paying to Mbangwa Attorneys o n b e h a l f o f y o u r m o t h e r. MS MEMELA: Ye s . L i k e b u t l i k e I m e a n f o r m e , f o r m y p u r c h a s e , f o r the purchase of my house ...(intervenes). CHAIRPERSON: 10 And to avoid a situation where they would pay to your mothers account and then she would have to pay it to Mbangwa. MS MEMELA: Ye s . CHAIRPERSON: MS MEMELA: Is that the point you are making or not really? T h a t i s t h e p o i n t I a m t r y i n g t o m a k e C h a i r, b e c a u s e l i k e I mean, how Ms Hofmeyr is putting the question it is as if like I mean I had benefited from JM through like I mean some payment that they r e c e i v e d f r o m S A AT. A n d l i k e I m e a n t o J M a n d t h e n t o m e . S o l i k e I u n d e r s t a n d t h a t y o u t r y i n g t o h i g h l i g h t t h e c o n f l i c t o f i n t e r e s t a n d s t u ff like but you even said that if a direct benefit, and I said like it is an indirect benefit because like it was not coming from them direct to me. 20 I t w a s t o m y m o t h e r a n d t h e n l i k e t o p a y f o r m y p r o p e r t y. S o l i k e I – and then she said like with the other part that I am concerned with C h a i r i s t h a t s h e h a d s a i d l e t u s a s s u m e t h a t i t w a s a d o p t e d b y S A AT and I am saying like I mean this is the first time I see this document. S o l i k e I m e a n r e s p o n d i n g o n t h e a s s u m p t i o n w o u l d b e q u i t e d i ff i c u l t , so like I mean this is the part where I would say I cannot respond Page 171 of 188 07 FEBRUARY 2020 – DAY 209 where like you are talking assumption. CHAIRPERSON: No, no the point you made about whether it was a d o p t e d – t h i s d o c u m e n t w a s a d o p t e d b y S A AT i s a l e g i t i m a t e p o i n t a n d they will look into it as I understand Ms Hofmeyr to establish whether it was adopted or not, am I right? ADV K AT E HOFMEYR: Indeed understanding that it was. C h a i r, I must state it was I do not have the document before me. my I have asked our investigators to obtain it so that we can clear this up. CHAIRPERSON: 10 O k a y. A D V K AT E H O F M E Y R : But I did not want to put it without the document so we will look for that. Then if you go down the page to 7.3.1. it says: “SAA employees shall refuse gift, hospitality or other benefits that could influence their judgment or p e r f o r m a n c e o f o b l i g a t i o n s u n d e r t h i s p o l i c y. ” Do you see that? MS MEMELA: Ye s , I s e e t h a t . A D V K AT E H O F M E Y R : Do you think it is incumbent upon employees o f S t a t e - O w n e d E n t e r p r i s e s t o r e f u s e b e n e f i t s t h a t m i g h t h a v e a e ff e c t 20 on the influencing their judgment. MS MEMELA: Ye s , l i k e I m e a n b e n e f i t s t h a t w i l l i n f l u e n c e t h e judgement when you are in a decision-making position. A D V K AT E H O F M E Y R : Yo u a l w a y s t a c k i t o n t o a d e c i s i o n - m a k i n g position. Is that your clarification? MS MEMELA: R e m e m b e r l i k e I m e a n i t w i l l a ff e c t y o u r j u d g e m e n t a n d Page 172 of 188 07 FEBRUARY 2020 – DAY 209 like I mean your reasoning and how you apply your mind if you were to take a decision in that certain point. So like I mean if the decision has already been made and there is absolutely nothing I can do to change it like for instance in the case of ground power units, so like I mean it w i l l , I w o u l d n o t a g r e e t h a t i t a ff e c t s t h e j u d g e m e n t . CHAIRPERSON: MS MEMELA: Yo u a g r e e w i t h t h e p r i n c i p l e . Ye s w i t h t h e p r i n c i p a l C h a i r. CHAIRPERSON: But what you are saying is as far as you are concerned what is written here would apply if the employee concerned 10 would have the power to make a decision ...(intervenes). MS MEMELA: He has a mandate to make a decision. CHAIRPERSON: MS MEMELA: Ye s t h a t i s t h e p o i n t y o u a r e m a k i n g ? Ye s C h a i r, a n d t h e n I m a d e a n e x a m p l e o f t h e g r o u n d power unit that like the decision was made from the Board and like based on a contract between SAA and Swissport, for reasons known to S A A . A n d a l s o l i k e o n t h e c o m p o n e n t t e n d e r, l i k e o n t h e f i n a l o n e , t h e d e c i s i o n s w e r e m a d e b y t h e B o a r d . Ye s . CHAIRPERSON: Ye s . A D V K AT E H O F M E Y R : 20 Well let us move then if we may to the ground power units and your role in relation to their sale. Chair I would like to start that if we may at DD25A, and I would like to look at the relevant provision of the contract that dealt with this and you will find that at page 316. MS MEMELA: Yo u s a i d D D – p a g e ? A D V K AT E H O F M E Y R : 316. Page 173 of 188 07 FEBRUARY 2020 – DAY 209 CHAIRPERSON: O k a y, g o t i t . A D V K AT E H O F M E Y R : Thank you. This is an extract of the agreement between SAA and Swissport. Are you familiar with that agreement? MS MEMELA: Like I saw the full agreement when I was fighting my case at CCMA. A D V K AT E H O F M E Y R : D i d y o u s e e t h e c l a u s e r e l a t e d t o t h e S A AT sale before that? MS MEMELA: 10 T h e c l a u s e l i k e r e l a t i n g t o t h e G P U ’s ? A D V K AT E H O F M E Y R : MS MEMELA: Ye s . No, like I mean the one that was sent Chair by p r o c u r e m e n t a t S A A i t h a d n o p r o v i s i o n t h a t t a l k s a b o u t t h e G P U ’s . The only time that I got to know about, is when like I mean, Shaiyele was raising the fact that he was not happy with selling all twelve, like h e w a s p r e p a r e d t o s e l l s e v e n G P U ’s a n d t h e n l i k e I m e a n t h e a c t i n g CEO Mr Malola Phiri sent him this. I am not sure where he got it. He may have gotten it like from SAA. A D V K AT E H O F M E Y R : So I do want to go back to the agreement you j u s t r e f e r r e d t o t h a t h a d a b l a n k s p a c e f o r t h e s u p p l i e r, I w i l l c o m e t o 20 that in a moment, but I just want to confirm my understanding. At some p o i n t i n t h e s a l e o f t h e G P U ’s , d i d y o u l o o k a t c l a u s e 8 . 1 a n d 8 . 2 t h a t appear on this page? MS MEMELA: At the sale, like I mean or are you saying like from my involvement with to negotiate the proposal that was put in place. A D V K AT E H O F M E Y R : Ye s . Page 174 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: Ye s , l i k e I m e a n I d i d l o o k i n t o i t . A D V K AT E H O F M E Y R : Thank you. So, let us look at what the clause says. Well it is two clauses: 8.1 and 8.2. Could you read both of those into the record please? MS MEMELA: Okay 8.1 “As part of the continuous improvement of its triple BEE and promoting the governments development agenda, the handling company will sub-contract some of its services or enter into agreement with 5 1 % b l a c k - o w n e d c o m p a n i e s t h a t m a y, t h a t h a v e a 10 representation of all either of the women, youth, disabled persons and military veterans for the purchase of equipment required as part of its investment on the agreement.” And then 8.2 “The handling company agrees to purchase and or arrange purchase of old recently acquired surplus S A AT G P U ’s a t c u r r e n t b o o k v a l u e , f a i r m a r k e t value or other such evaluation as mutually agreed.” 20 A D V K AT E H O F M E Y R : A n d j u s t t o b e c l e a r, i s i t y o u r u n d e r s t a n d i n g that the handling company there is Swissport South Africa? MS MEMELA: Ye s , t h a t i s t h e u n d e r s t a n d i n g . A D V K AT E H O F M E Y R : Right, so Swissport South Africa, just to read it in: “Agrees to purchase or arrange purchase of all Page 175 of 188 07 FEBRUARY 2020 – DAY 209 r e c e n t l y a c q u i r e d b y i t s s u r p l u s S A AT G P U ’s a t current book value, at fair market value or other such valuations as mutually agreed.” Correct. And you did consider that at the time that you were tasked with the negotiation of the sale after the Board had approved. MS MEMELA: After the Board had approved. A D V K AT E H O F M E Y R : MS MEMELA: Ye s . A D V K AT E H O F M E Y R : 10 Is that correct? Right. I mentioned that I did want to take you to another agreement because you indicated in your statement that you had had some interaction with a prior agreement when Mr Peter had supplied it to you. Would you mind going to page 291 of the same bundle DD25, 291, and tell me if that is the agreement you were referring to? MS MEMELA: Tw o ? A D V K AT E H O F M E Y R : MS MEMELA: 291. I d o n o t r e m e m b e r C h a i r. I a m n o t s u r e l i k e t h i s i f t h i s is your team like they found this from my e-mail because like what I said like on my statement is that like when Advocate Peter sent it to me 20 like I did not even look into it, because like he had already taken over l i k e t h e A c t i n g a s t h e C h i e f P r o c u r e m e n t O ff i c e r o f S A A , y e s . A D V K AT E H O F M E Y R : No I fully understand that Ms Memela, then let me just ask you some questions not based on whether you saw it at the time or not, but what you make of it. If you go over the page to 292, you will see there that there is a recordal there at the top, whereas, do Page 176 of 188 07 FEBRUARY 2020 – DAY 209 you see that? MS MEMELA: Ye s . A D V K AT E H O F M E Y R : It says Whereas the carrier that is a reference, you will go over the page to Swissport South Africa. It says “The carrier was carrier awarded various groundhandling services, sorry the carrier is SAA. SAA awarded various ground-handling services to the h a n d l i n g c o m p a n y, t h a t i s a r e f e r e n c e t o S w i s s p o r t South Africa, on 31 July 2012 for a five year period 10 approved by the SAA Board in respect of a p a r t i c u l a r t e n d e r w i t h a n u m b e r. (b) Due to various circumstances the terms and conditions of the contract and service level agreement, commencement date was agreed as 1 January 2016 for a period of five years c o l l e c t i v e l y. ” Do you see that? MS MEMELA: Ye s I s e e t h a t . A D V K AT E H O F M E Y R : 20 Ms Memela we had some evidence yesterday t h a t I t h i n k s o m e o f u s h a d s o m e d i ff i c u l t y w r a p p i n g o u r m i n d s a r o u n d because what had happened in relation to this Ground-Handling Agreement at SAA was that there had been a tender in 2012. Swissport South Africa had been awarded it for five years from 2012. agreement was concluded. Then no 2012, 2013, 2014, and then in 2016 they are awarded another agreement for five years starting on the 1st of Page 177 of 188 07 FEBRUARY 2020 – DAY 209 January 2016. Without any tender process having been followed prior to that. Would your view be that that was inconsistent with procurement requirements? MS MEMELA: Yo u s e e n o w C h a i r. CHAIRPERSON: MS MEMELA: What do I see Ms Memela? Yo u s e e . . . ( i n t e r v e n e s ) . CHAIRPERSON: I hear what Ms ...(intervenes). A D V K AT E H O F M E Y R : That was one of my nicest questions. I don’t u n d e r s t a n d i t a l l , b u t s o b e i t . Ye s . 10 M S M E M E L A : Yo u I m a y s t a t e m y v i e w, l i k e a n d i t m i g h t a g r e e w i t h M s H o f m e y r, a n d s t u ff l i k e a n d s o m e b o d y e l s e m i g h t c o m e b a c k , b u t l i k e remember like in this I do not have I mean the full background of the Swissport, like I mean from 2012 I will still at DBSA. So, I was not at S A A l i k e s o w h e n a l l t h e s e t h i n g s w e r e d i s c u s s e d a n d s t u ff l i k e , b u t ...(intervenes). CHAIRPERSON: Yo u a r e f r e e t o t a l k a b o u t w h a t y o u h a v e p e r s o n a l knowledge of. MS MEMELA: E x a c t l y, w i t h o u t b e i n g s e e n a s s a y i n g p e o p l e h a v e committed. 20 CHAIRPERSON: But she is asking because you – 2015, 2016, you were Head of Procurement. So that may be the reason and therefore you will be familiar with the requirements for procurement. MS MEMELA: O k a y, s o y o u r q u e s t i o n M s H o f m e y r i s i f I w a s i n t h e shoes at SAA what would I regard this arrangement. A D V K AT E H O F M E Y R : I n d e e d , o r t h i s w a s a n a r r a n g e m e n t a t S A AT. Page 178 of 188 07 FEBRUARY 2020 – DAY 209 T h e C h a i r i s a b s o l u t e l y c o r r e c t w i t h r e s p e c t . Yo u w e r e t h e H e a d o f P r o c u r e m e n t a t S A AT. So what I am interested in is your view as to whether an agreement entered into on the 1st of January 2016 for five years, that is awarded to a ground-handling company that is not preceded by any tender process, would be compliant with procurement law as you know it? MS MEMELA: C h a i r, c a n I n o t r e s p o n d ? CHAIRPERSON: MS MEMELA: 10 Ye s , w h a t i s y o u r d i ff i c u l t y ? Yo u k n o w w h y, r e m e m b e r e a r l i e r o n I d i d m e n t i o n t h a t a t S A AT I d i d n o t a p p l y 3 0 % s e t a s i d e . CHAIRPERSON: MS MEMELA: Ye s . And here, there is 30% set aside. So to talk on something that I was not like I mean part of the negotiation, maybe I think like my challenge is coming from there, but like of course I do not have any dispute in terms of saying like I mean of course when you running a tender you have to like I mean follow all these elements; c o m p e t i t i v e , t r a n s p a r e n c y, f a i r n e s s , l i k e I m e a n g i v i n g l i k e I m e a n t h e bidders a chance. But like I mean remember like there are certain deviations that are allowed, by the PFMA but also like I mean the SCM 20 p o l i c y, s o l i k e I m e a n s o m e t h i n g m a y h a v e h a p p e n e d t h a t I a m n o t aware of, that is why I am saying, like I mean, I do not want to commit to Ms Hofmeyr ...(intervenes). CHAIRPERSON: Ye s . So, you saying that you do not have all the facts? MS MEMELA: E x a c t l y, y o u u n d e r s t a n d ? S o l i k e I m e a n , I d o n o t w a n t Page 179 of 188 07 FEBRUARY 2020 – DAY 209 to assume what happened because like I mean I do not have the full facts. A D V K AT E H O F M E Y R : Ye s , I u n d e r s t a n d t h a t . C h a i r w e a r e a t 1 5 : 5 9 . I have embarked upon the GPU aspect. There is still the components aspect. I c e r t a i n l y w i l l n e e d s o m e t i m e t o d o t h a t a n d M r N d z e k u ’s legal representatives have already been informed that we may have to h a v e g o n e o v e r t o d a y ’s e v i d e n c e t o M o n d a y w i t h M s M e m e l a , s o i t would be my suggestion that we do adjourn and we return at 10:00 might also enable Ms Memela to bring those further documents that she 10 indicated she had in relation to the sales, and then we can continue with the evidence then ...(intervenes). MS MEMELA: B u t C h a i r, d o n ’ t I . . . ( i n t e r v e n e s ) . CHAIRPERSON: MS MEMELA: Ms Memela h’mm. Don’t I have a right like I mean to be asked if I am available Monday what if I am in Western Cape? CHAIRPERSON: MS MEMELA: Well that is what I am about to ask you. Exactly because I thought ...(intervenes). CHAIRPERSON: She is not the one to ask you, I am the one to ask you. 20 MS MEMELA: Ye s , I w a s g o i n g t o a s k t h a t C h a i r b e c a u s e m y understanding like I did say in my response like which I response, like which I think was read loud that some of these decisions were like taken by the Board and I do not see why I should go in full detail in terms of like I mean, understanding why the Board had taken certain d e c i s i o n s a n d s t u ff l i k e f o r i n s t a n c e , I m a d e a r e f e r e n c e t o M O U , t h a t Page 180 of 188 07 FEBRUARY 2020 – DAY 209 w a s a B o a r d m a t t e r, I m a d e a r e f e r e n c e l i k e I m e a n t o G P U ’s , t h a t w a s a Board matter like and then, AAR/JM final contract that was a Board decision, so like I mean, if it is 16:00, can we not wrap up, and ...(intervenes). CHAIRPERSON: MS MEMELA: Well ...(intervenes). I d o n ’ t k n o w. CHAIRPERSON: No, no. It is legitimate for you to say if there is a chance you would prefer it if we could wrap up. That is legitimate for you to say that. 10 MS MEMELA: I w o u l d a p p r e c i a t e t h a t C h a i r. CHAIRPERSON: We just need to assess how much time is necessary for Ms Hofmeyr to complete and then of course we must have regard to our availability and your availability obviously you suggest that you are available for us to continue beyond 16:00 for purposes of wrapping up, but of course if in any event we might not finish, there might not be m u c h b e n e f i t i n c o n t i n u i n g t o d a y i f y o u a r e g o i n g t o c o m e b a c k a n y w a y, so that might be another issue to look at. With regard to what you may be asked and what you may not be asked, one can only take that on a case by case basis, as questions get asked. 20 Yo u m i g h t b e a b l e i n regard to some questions to say because you were not involved in the taking of that decision, you are not able to throw light on that. MS MEMELA: Ye s . CHAIRPERSON: And that would be perfect, but it may be that you might not be asked on the basis that you were part of decision making but because you occupied a certain position you would know whether Page 181 of 188 07 FEBRUARY 2020 – DAY 209 taking that decision in certain circumstances was in accordance with policies of the company that kind of thing, so you could be asked that. So, you said Ms Hofmeyr you would still need quite some time because the other part that you have not touched A D V K AT E H O F M E Y R : I n d e e d , t h e b a d n e w s C h a i r, i s t h a t I a m o n page 17 of 31 pages of notes. So, there is almost no prospect we w o u l d c o m p l e t e t o d a y. CHAIRPERSON: That might need what about three hours? A D V K AT E H O F M E Y R : 10 CHAIRPERSON: ADV K AT E I am optimistic, two hours or thereabout. Tw o h o u r s . HOFMEYR: Maybe a bit more depending on the q u e s t i o n i n g a n d o f c o u r s e y o u r q u e s t i o n i n g C h a i r. CHAIRPERSON: Ye s . A D V K AT E H O F M E Y R : So, it seems suitable for us to reconvene on M o n d a y. CHAIRPERSON: Ja. And for Monday otherwise the plan was to have Mr Ndzeku. A D V K AT E H O F M E Y R : I n d e e d , b u t w e a n t i c i p a t e d a p o t e n t i a l r u n o v e r h e r e s o M r N d z e k u i s s c h e d u l e d b o t h f o r M o n d a y a n d Tu e s d a y. 20 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 : So, I am not worried too much to taking into that time. C H A I R P E R S O N : Ye s . M s M e m e l a , w e h a v e d o n e i t q u i t e f r e q u e n t l y i n the past in this Commission that we sit beyond normal hours where to d o s o w o u l d h e l p t o f i n i s h t h e w i t n e s s ’s e v i d e n c e s o t h a t t h e w i t n e s s Page 182 of 188 07 FEBRUARY 2020 – DAY 209 does not have to come back. MS MEMELA: H’mm. CHAIRPERSON: But sometimes when one looks at the amount of time that must – of time that is necessary one is able to say we will not be able to finish and therefore another day must be arranged. So, from what Ms Hofmeyr is saying it is – she says at least 2 hours. Now that seems to suggest to me that we will not have enough time. Do you h a v e a n y d i ff i c u l t y i n t e r m s o f a v a i l a b i l i t y o n M o n d a y s o t h a t w e c o u l d wrap up on Monday? 10 MS MEMELA: Ye s . I have a project that I have to work on in the E a s t e r n C a p e o n M o n d a y. C H A I R P E R S O N : Ye s . MS MEMELA: So, I- and I also do not want to be seen as if I am not cooperating. CHAIRPERSON: Ja. MS MEMELA: I actually did mention to Mr Kirtland that I am up and down. I am in Eastern Cape and I am mostly in Eastern Cape and then this side. C H A I R P E R S O N : Ye s . 20 MS MEMELA: So, there was that arrangement that I had. C H A I R P E R S O N : Ye s . MS MEMELA: Which would mean if I cannot sell, I might lose some income. C H A I R P E R S O N : Ye s . I f y o u a r e n o t a v a i l a b l e o n M o n d a y, w o u l d y o u b e a v a i l a b l e o n Tu e s d a y o r W e d n e s d a y ? Page 183 of 188 07 FEBRUARY 2020 – DAY 209 MS MEMELA: If the Commission allows. CHAIRPERSON: From your side you would be available to be here on Tu e s d a y ? MS MEMELA: Okay ...(intervenes). CHAIRPERSON: Or Wednesday? MS MEMELA: Wednesday I can ja ...(intervenes). C H A I R P E R S O N : W e d n e s d a y. A D V K AT E H O F M E Y R : C h a i r I s h o u l d j u s t r e m i n d y o u t h a t y o u m a y n o t b e a v a i l a b l e o n W e d n e s d a y. I f I m a y ? 10 C H A I R P E R S O N : Ye s . N o , n o . . . ( i n t e r v e n e s ) . A D V K AT E H O F M E Y R : E x c e p t I g u e s s t h e m o r n i n g m i g h t b e f e a s i b l e . CHAIRPERSON: No, you are right but I would be available at least u n t i l l u n c h t i m e – m o r e o r l e s s l u n c h t i m e o n W e d n e s d a y. MS MEMELA: Okay or maybe Chair I do not know I could check. CHAIRPERSON: Ja. MS MEMELA: And notify you before I leave if I will be available on M o n d a y. Ye s . C H A I R P E R S O N : O k a y. MS 20 MEMELA: I will see if I cannot move the commitment ...(intervenes). CHAIRPERSON: The other arrangement. MS MEMELA: That side. CHAIRPERSON: Okay what we can do is that we can adjourn and you c a n c o m m u n i c a t e w i t h t h e L e g a l Te a m m a y b e s o m e t i m e l a t e r t h i s evening or whatever arrangement and if the position is that you are Page 184 of 188 07 FEBRUARY 2020 – DAY 209 able to rearrange your plans for Monday and you are able to come here t h e n w e w i l l c o n t i n u e o n M o n d a y. That would be preferable if your situation permits. But if your situation does not permit then we can – we can arrange that you come back on Wednesday morning. MS MEMELA: O k a y. I also want to get a commitment from Ms H o f m e y r, s h e s a i d s h e m i g h t n e e d 2 h o u r s . Are you sure about 2 h o u r s ? D o y o u t h i n k m a y b e b y 1 0 , 11 w e w i l l b e d o n e b e c a u s e I c o u l d maybe leave immediately afterwards? CHAIRPERSON: On Monday? 10 MS MEMELA: Ja. CHAIRPERSON: I t h i n k w h e n y o u t a l k a b o u t i f i t i s M o n d a y, i f y o u m a k e y o u r s e l f a v a i l a b l e o n M o n d a y. MS MEMELA: If I may myself on Monday maybe I can be able to drive down. C H A I R P E R S O N : P u t i t t h i s w a y. S h e e s t i m a t e s 2 h o u r s a n d s h e s a y subject to my questions. MS MEMELA: Ja. CHAIRPERSON: And there can be m a n y, t h e r e can be many sometimes. So, we could end up going to 3 hours we are not sure. I 20 am not sure and she is not sure. But I do not think that we would go – that we would take 4 hours for example. think it should not go beyond 3 hours. So, I think we both would But we – ja. that is what we think. M S M E M E L A : O k a y. A D V K AT E H O F M E Y R : Chair if I may just make another possible Page 185 of 188 07 FEBRUARY 2020 – DAY 209 suggestion of an earlier start on Monday if that would assist. We could maybe start at 9:30 or 9:00 CHAIRPERSON: Well we – as things stand, I may have a commitment but if the position is that Ms Memela can rearrange her life for Monday and be here. M S M E M E L A : Ye s . CHAIRPERSON: We could look at the possibility of starting at 9:30 but I d o n o t k n o w w h e t h e r t h a t 3 0 m i n u t e s w o u l d m a k e m u c h d i ff e r e n c e i n your life. 10 MS MEMELA: No, it will not. CHAIRPERSON: It will not. So, shall we leave it on the basis that you w i l l b e i n t o u c h w i t h t h e L e g a l Te a m e i t h e r l a t e a t s o m e s t a g e t h i s evening. M S M E M E L A : A c t u a l l y, I w i l l j u s t m a k e a c a l l a n d b e f o r e I l e a v e h e r e , I will give them feedback ja. 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 : C e r t a i n l y. CHAIRPERSON: But we are looking at you continuing on Monday or continuing on Wednesday depending on ...(intervenes). 20 MS MEMELA: The feedback. CHAIRPERSON: The call ja. M S M E M E L A : O k a y. CHAIRPERSON: And then we may as well just stick to 10:00 for Monday ja. A D V K AT E H O F M E Y R : I n d e e d . Page 186 of 188 07 FEBRUARY 2020 – DAY 209 C H A I R P E R S O N : S o , i f w e c o n t i n u e w i t h y o u o n M o n d a y, w e w i l l s t a r t at 10:00. MS MEMELA: Alright. CHAIRPERSON: Okay no, that is alright. Thank you for your cooperation Ms Memela. M S M E M E L A : T h a n k y o u C h a i r. C H A I R P E R S O N : W e a r e t h e r e f o r e g o i n g t o a d j o u r n u n t i l M o n d a y. W e adjourn. REGISTRAR: All rise. 10 I N Q U I RY A D J O U R N T O 1 0 F E B R U A RY 2 0 2 0 20 Page 187 of 188 07 FEBRUARY 2020 – DAY 209 TRANSCRIBER’S CERTIFICATE FOR COMMISSION OF INQUIRY INTO STATE CAPTURE HELD AT PARKTOWN, JOHANNESBURG DATE HELD : 2020-02-07 DAY: : 209 TRANSCRIBERS : B KLINE; M NETTA; D STANIFORTH; B DODD; D BONTHUYS Audio’s are typed verbatim, as far as audible/possible Page 188 of 188